provincial that have been by common Use allowed shall be of force and not to be taken away but by Act of Parliament Now himself confesses that the Canons are against him then may I well conclude that the Law is against him since all Canons then in use are part of the Law at present Page 68. He tells you the Sanction of this Law which was Irregularity is now ceased and that some of our most learned Judges have declared that is taken away by the Reformation First I am to learn that Irregularity was the Sanction of the Law I always understood that the Sanction of a Law was the matter established by it obedience to which was required under the Penalty of Irregularity but I will not stand upon that which if true would open a door to disanul all Laws made under a Penalty by pardoning that But the fore-going Statute of 25 H. 8. cap. 21. clearly shews that all Canons accustomably used are still in force Who hath then taken off the Penalty If no body then their forbearance in Cases of Blood ought still to be observed in obedience to them Of this opinion were the Parliament both Lords and Commons in the Case of the Earl of Strafford whom this Author is pleased to honour with the name of a Cabal as also the Proclamation to call in my Lord Keeper Finch who was then fled both which were done in the Absence and after the Bishops were withdrawn and after William Bishop of Lincoln had given his opinion they ought so to do and are taken notice of by the Author of the Letter pag. 51 52 53. and by him very materially observed that that Proclamation against my Lord Finch was drawn by the Judges by order of the Lords Temporal after the old Parliamentary way from whence it is easie to infer that it was the old Parliamentary way for the Judges to draw up such Proclamations by Command of the Lords Temporal and that the Clergy medled not in those matters To all that hath been said to this purpose he hath either given no answer or what makes against him He tells you that my Lord of Canterbury was first named in Commission for the Tryal of the Queen of Scots This signifies little for here he was only a Commissioner but no Judge in Parliament Secondly That though the Queen could not dispense with the Law in general as to all Individuals yet to any one she might and the express naming him a Commissioner might amount to a Dispensation Thirdly though the Arch-bishop was named yet he was not present at the Tryal whose Names you may see in Cambden's Annals anno 1586. and therefore the Canon was observed for what other reason could be given for his refraining that Service but because by it he might have become irregular I shall add one or two Authorities more and so conclude the point Arch-bishop Abbot in King Iames his time hunting in one of his own Parks shooting at a Deer by an unfortunate Glance of his Arrow kill'd his Keeper much Debate there was whether this Act had made him irregular and that it did so was strongly argued by Williams Bishop of Lincoln then Lord Keeper who said that by the Canon-Law then in force he was ipso facto irregular Here you see the Canon-Law was then deemed in force and Irregularity to be by it contracted At last Commissioners were appointed to examine the business whose Names you may see in Rushworth both Divines Civilians and Common Lawyers After a full Debate they agreed he was not irregular for this was no Crime and therefore by Law could not contract Irregularity for by Law the Arch-bishop was allowed to hunt this accident being only Chance Medley could not bring any Guilt upon him But there was not the least Doubt made of the Canons being in force and that Punishment might be inflicted upon the Breakers of them Baker's Chron. pag. 446. who being then a man of good Age made this Relation upon his own knowledge This may serve in Answer to his Reflection upon Dr. Oates that he hath incurred Irregularity by his Discovery of the Horrid Plot not yet fully examined for this Discovery was but his Duty so far was it from being a Crime that it deserved and hath already found some Reward from his Majesty Of the same Opinion was Arch-bishop Laud with the rest in the Star-Chamber in the Censure of Dr. Leighton where Arch-bishop Laud would not suffer any corporal Punishment to be inflicted upon him until he was first degraded nor his Ears to be cropt in St. Paul's Church-yard because the Ground was consecrated now Degradation and Consecration of Places are the Fruits of the Canon-Law Lastly one Madie was in the High Commission Court Pas. 4 Car. 1. declared irregular and deprived for the same having first as was alledged preached after Suspension By all which it plainly appears that Irregularity may be incurred at this day and therefore those Canons not against the King's Prerogative nor consequently taken away by the Act of 25 Hen. 8. but that Irregularity may still be contracted by the breach of them I have now done with his two first Chapters which contain the substance of his whole Book and have shewed First that it is not clear that Bishops were Barons otherwise than by Appellation that they were never enobled in Blood that no Instrument can be produced what Baronies were annexed to their several Possessions whose Bishopricks have the Title common to other Noblemen as Lincoln Carlisle Bath Worcester York and others which is not usual that one should be Duke or Earl and another Baron of the same place beside the superfetation of Baronies by dividing one Bishoprick into several Baronies But that it is much more reasonable to believe that their Tenure in Cap. by Baronage Service which was imposed upon them as a burthen not an honour might cause them to be called to Parliament as Barones minores lesser Barons but not left out at the King's Pleasure as the lesser Barons were because they were to summon the Clergy to Convocation Secondly I have made it apparent that the Convocation is properly the third Estate in Parliament of which they constitute the upper House and not other than a part of a third Estate among the Lords Thirdly Admitting they were a third Estate in the Lords House entire as some think there could be no colour for their Tryal of a Noble-man who is a Member of another Estate Fourthly the Canons of the Council of Toledo were not the first cause of their absenting themselves in cases of Blood Fifthly I have vindicated the Parliament at Clarendon from all his Exceptions and made it very plain by the natural construction of the Words as well as by the Interpretation of his own Author Fitz-Stephens they are not to be present at any Consultations or Debates where the end may be Blood and that the Proceedings in the Council at
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
a Simon de Bereford Chebalier c. Item in the same Parliament our Lord the King charged the said Earls Barons and Peers to give a right and loyal Iudgement upon Sir Simon de Bereford c. It follows afterwards Si agarderent aviggerent les ditz Countes Barons Piers come Iuges du Parlement per assent du Roy que le dit Simon come treitre fast treisne pendu So the said Earls Barons and Peers as Iudges of Parliament did with the Kings assent award and adjudge Sir Simon de Bereford to be Drawn and Hanged You see the same persons were his Judges who had before Tryed and Condemned the Earl of March yet I must observe a little difference in the expressions The King in giving the charge to the Peers in the Earls Case the words of the Record are The King charges you Earls Barons Les Piers de son Royalme The Peers of his Realm which must be construed Who are the Peers or Being the Peers of his Realm And then their Judgement comes to be set down the Record saith Les queux Countes Barons Piers c. The which Earls Barons and Peers did so and so with a Conjunction Copulative and before Peers as if there were some other Peers after the Earls and Barons which if there were we are sure it could not be the Bishops which is all that we are to enquire into We know that heretofore the Kings of England did sometimes send Writs of Summons to other persons that were not Peers of the Realm but persons of Quality as Bannerets and some Officers as the Warden of the Cinque-Ports whom I find commonly to be the last set down in the List of those who were summoned And those persons so summoned came and attended the Parliament and had Voice and Vote with the Peers as Members of their House and as Peers pro tempore and might be comprized under the general name of Peers and being Lay-men might act as Peers in all Tryals and in all other Judgements of Parliament both Civil and Criminal even in Capital Causes but these could in no sort be esteemed to be Peers of the Realm though they might pass in a large acceptation and a vulgar construction of the expression be termed Peers in Parliament These now might be summoned to a Parliament or two or three Parliaments one after another as pleased the King and then be summoned no more if the King was otherwise minded and they could not pretend to have wrong done them their former Summons having been Ex mera gratia without any right of theirs to them So then I may conclude that it is all one whether you will take it as it is expressed in the Kings charge then The Earls Barons Peers of the Realm c. or as it is when they come to give Judgement and as it is likewise expressed in the Case of Sir Simon de Bereford The said Earls Barons and Peers c. and whether that Conjunction and before the word Peers be of any signification or no to mark out other Peers subsequent to the Barons is not material to what our Asserter would have to be understood of my leaving out any thing for it had all made for me and against him making it clear enough that the Bishops had no part in those Judgements The next Precedent is the Judgement of Iohn Mautravers the Record says Trestouz les Piers Countes Barons assemblez a ceste Parlement a Westminster 〈◊〉 on t examine estroitement sur ce sont assentuz accordez que John Mautravers 〈◊〉 est culpable c. All the Peers Earls and Barons assembled in this Parliament at Westminster have strictly examined and thereupon have agreed and accorded that John Mautravers is guilty c. I appeal now to any man that hath but common sense if it can be imagined that the Prelates or Bishops can be thought to be meant by that expression of All the Peers and if it be not the same in signification as when the King charged them to give righteous Judgement upon the Earl of March saying Si vous charge Countes Barons les Piers de mon Roialme c. And so I charge you Earls Barons the Peers of my Realm c. There the several ranks of Peers are first named and the general word which denotes their Quality common to both which makes them competent Judges of those matters that is their being Peers is put last And here in this Record concerning Mauâ—…avers it is put first Which comes all to one And it is further observable that at the time of that Parliament there were no Temporal Lords before Earls neither Dukes nor Marquesses So if any others were to be understood to be comprised under that General Title of Peers it could be only the Lords Spiritual which is a thing very ridiculous to believe Can it be thought nay can our Asserter himself think I trow not that when the other particular ranks and degrees of the Peerage are expressed and set down nominatim by name as one may say by Tale and by Token Earls and Barons that I say at the same time and to be joyned with them in the same action another rank of men viz. Bishops must pass under a General Title and that put in the first place as if Peerage were an Apellativum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to them or a Genus Imperfectum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the two Species the Lords Spiritual and Lords Temporal which Genus the Logicians define to be Quod speciebus suis non communicatur ex aequo sed alteri magis alteri minus uni speciei immediatè propriè alteri mediatè in ordine ad primariam And that so the Lords Spiritual should still be principally and chiefly meant by the General Name of Peers they Primariò and the Temporal Lords Secundarió Those Logical expressions I know our Asserter understands well who blames others for bringing Illogical arguments therefore I put this to him But that they are not at all Peers of the Realm to speak properly and truly and as they are in the eye of the Law though they have sometimes been stiled so both by themselves and others I have in my former Letter I think made it clear and all that our Asserter saith to the contrary hath not made me change my opinion and I shall say more to it when I come in course to answer what is there said by him In the mean time I shall only add this which I lay for a ground that I do verily believe no instance can be given of an enumeration of some particulars in an Universal Collective Proposition and to leave out that particular which is first in Rank and ought to be first named if any at all be named and to have that to be tacitely implied under the General Term the Signum Collectivum As in this Proposition All the Peers Earls and Baâ—…ons gave such a Iudgement This
doubtful to him who these Lords were whether the Prelates or the Lords particularly named and plusours autres Seigneurs under which he saith very probably the Lords Spiritual might be comprised I see a truth cannot come clearly from him a thing that is most clear he makes it doubtful And one thing he saith most falsely of a Petition commanded to be read Numb 29. En cest Parlement per les Prelates Seigneurs Piers du Parlement By the Prelates and Lords Peers of Parliament which Petition he will have to be concerning this matter which is most false For that which is said Numb 29. is of a Petition and Writ of Error presented by William de Montague Earl of Salisbury which was then read and nothing at all concerning Gomenitz and Weston which is a horrible falshood and imposture of our Asserter to abuse the world so and impose upon the Reader The first request of the Commons concerning this business and to have this matter examined is Numb 38. and then Numb 39. there is mention of a Schedule given in by Weston and the Record saith Ueue leue la dite cedule en plein Parlement The Schedule being seen and read in full Parliament and any thing concerning Weston or Gomenitz before this there is not But some falshood he must still add of his own for the Jesuites Verse is very applicable to him Verba damus cum nostra damus quia fallere nostrum est Et cum nostra damus nil nisi verba damus And indeed throughout his whole Pamphlet he doth but Verba dare take Verba Words as in opposition to reality and truth for it is full of falshoods or take Words in opposition to matter and good sense for his whole Book is a very bundle of words without any good matter in it But one thing more I cannot but observe it is his insisting so much upon a thing which I am confident himself doth not believe though I have known a teller of stories tell one of his own invention so often that at last himself hath begun to believe it to be a truth It is that after the naming several Lords and ending with some Barons there is a general expression â—…t plusours autres Seigneurs Barons Bannerettes And many other Lords Barons and Bannerets my confident Gentleman hath the boldness to add Under which probably the Lords Spiritual might be comprised which he knows the Prelates of those times if they had been concerned in it would never have endured and the Clerk of the Parliament would as soon have eaten Fire as have entered it so Then in the Case of the Murtherers of John Imperial a publick Minister 3 R. 2. because I observe that it is expressed in the Parliament Roll that the Bishops were not present at the framing of the Act to make it Treason in them which I grant in other places of my Letter they might have been being to pass an Act of Parliament in a Legislative way my Gentleman is pleased to say That I forget my self In truth No I did suppose it and do suppose it to be a good Argument à minore to shew that the Prelates were then so modest as to withdraw upon the passing of a Law for the greater punishment of such a Capital Crime which in strictness perhaps they did not need to have done much more then would they avoid the sitting as Judges to take away life in a judicial way which they could no ways pretend to But my Gentleman loves to quarrel and scribble Paper though to no purpose To the Case of Sir Ralph Ferrers 4 R. 2. he only sings over his tedious plain Song That under the general word of Lords of Parliament Bishops may be comprehended and therefore he will have it That they must be so And much good may it do him with his Crambe bis cocta I may say centies cocta for I think he serves up this same dish a hundred times in this his learned Treatise But I may not let pass what he saith upon the Case of the Bishop of Norwich 7 R. 2. how extream falsly he recites things taking all upon trust how this man or t'other man cites a Record but never seeing the Record it self which perhaps he cannot so much as read He desires it may be taken notice of that for those Misdemeanors he was adjudged to make Fine and Ransome to the King and that the Judgement was passed upon him by the Lords by assent of Parliament where he saith he hopes I will not deny but that there were Bishops present and for this sends me to Cotton's Abridgement 7 R. 2. n. 23. but if he would have looked upon the Parliament Roll he would have found this Perquoy del aâ—…ent des Countes Barons autres Seigneurs Temporelz presentz en ce Parlement est assentuz accordez que vous soiez en la mercile Roy mis au fin raunceon pur vostre malfait solonc la quantitée qualitée dicell Therefore by the assent of the Earls Barons and other Lords Temporal present in this Parliament it is agreed and accorded that you shall be at the Kings mercy and put to Fine and Ransome for your misdeeds according to its quantity and quality You see now how this man would impose upon us and what stuff he brings to make good his assertion If I had been guilty of such a falshood I should have heard of it to purpose that both my ears would have rung again and no Ink this Gentleman could have got black enough to set it out in its colours Then he comes to the Case of Michael d la Poole 10 R. 2 where he saith the same things he did before and which I have already answered so to that I refer you The next is the 11 R. 2. where the Prelates withdrawing from Parliament by reason of matters of blood which were then to come into agitation enter a Protestation with a Salvo to their right of sitting in Parment which my Gentleman will have to be meant even of their being present at the agitation of those matters if they were so pleased This hath been treated of before at large already to which I refer you I will only observe this further at present out of the words of their Protestation first they say Quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet personaliter interesse ea propter pro nobis eorum quolibet protestamur eorum quilibet hic presens etiam protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus nec intendit nec vult aliquis eorum dum de hujusmodi materiis agitur vel agetur quomodolibet interesse sed nos eorum quemlibet in ea Parte penitus absentaxe This they declare That it is not lawful for them nor any of them
and Temporal and of the Commons in Parliament in the passing of an Act of Parliament for when a thing is said to be enacted by the King with the advice and assent of the two Houses that advice and assent of the two Houses is their passing and enacting of it as to their part in it For any thing that is done in either House if the King be mentioned in it is said still to be done by him with the Advice and Consent of that House so in a Judgement judicially given by the House of Peers where anciently the King was often present when they acted judicially it is said to be given by the King by the advice of his Lords and here the Duke of Gloucester represented the Kings Person and held the Parliament by Special Commission so the Judgement is said to be given by him by the advice of the Lords Temporal And so the Lords 28H 6. when the King of himself gave the Judgement upon the Duke of Suffolk the Lords protested against it because it proceeded not by their advice and counsel For that is it which gives the form and being to the Judgement and stamps upon it the Authority of the Parliament Then he comes to a Precedent without debate as he calls it which is that of 28H 6. the Duke of Suffolk's case and confessed so by me as he saith but not truly For I do not allow it to be a just and legal precedent I do acknowledge that the Bishops were present all along the whole transaction of that business but as I said in my first Letter to you so I must and do say in this there was in it from the beginning to the end nothing regular nor according to the usage and practice of Parliaments Then it cannot be said to be a Precedent no more than a Monster that hath no shape nor limb of a true Child can be said to be a Child As for the particular deformities of this Monster for so I may term it they are already so fully deciphered in my former Letter as I will not now trouble you with them again So it shall pass at this time as he will have it for a Precedent without debate for it shall not be any further debated Only I must say still it is but a single Precedent and of what force that is or can be when the constant course and practice of Parliaments hath been to the contrary I leave it to you to judge One single Precedent against all other Parliaments is an unequal match one would think I have heard of a great conquering Prince that gave it for his Motto Souls contra omnes but I have not heard it said so of a Parliament Solum contra omnia The authority of any one Parliament I know to be very great yet it is a known Maxime in the Law Parliament poit errer A Parliament may err and another Parliament may mend what one doth amiss Parliament-men are men and may and do sometimes mistake as well as other men it is possible they did so 28H 6. and more than probable they did so because no other Parliament before nor since did ever do the like And for his Recapitulation of all the fore-mentioned Records in all twenty seven which he makes to prove that this was not a single Precedent as I affirm it to be all the rest as he saith concurring with it to admit Bishops to be Judges in Capital Cases I will only say Sit liber Iudex resort to the Records themselves and to what is already said in my former Letter and this and then judge if he saith true Then he hath a fling at me for what I say upon the Case of Nicholas de Segrave 33 E. 1. where he must give me leave to say with truth what he saith falsly of me upon several occasions which is this That he hath not set down things Faithfully and Ingenuously He saith Segrave came into full Parliament into the presence of the King the Arch-bishop of Canterbury and several Bishops Earls and Barons acknowledged his offence and submitted to the Kings pleasure Upon this he observes That here was no Iudicatory of Parliament and then adds that the King pardoned him De advisamento Comitum Baronum Magnatum aliorum By the advice of the Earls Barons Nobles and others You shall see now how faithful and ingenuous a dealer our Asserter is but certainly he takes all upon trust and takes not the pains to see any thing himself First I do acknowledge it was no formal Tryal for there was no impeachment nor Indictment against him but I must say it was Tantamount for he comes in upon Summons into the Parliament then sitting where the Prelates were among the rest of the Members of the House and how long they continued there it appears not by the Record but he being come Nicholas de Warwick the Kings Councel charged him and pressed matters against him And then the King as the Record saith willing to have the advice of the Earls Barons Nobles and others of his Counsel enjoyned them upon the Homage Fidelity and Allegiance which they owed him to give him faithful Counsel what punishment was fit to be inflicted upon such a fact so confessed Who all of them upon a serious debate and advising upon the matter and well weighing all the particulars of it and what was by the said Nicholas plainly and expressly acknowledged do say That such a man deserved to lose his life But afterwards the Record saith Dominus Rer tamen de gratia sua speciali pietate motus malens vitam quam mortem eorum qui se voluntati suae submittunt remittit eidem Nicholao Iudicium vitae membrorum But the King moved by his special grace and piety desiring rather the life than the death of those that submit to his will did remit unto the said Nicholas the Judgement of loss of Life or Member Here you see the King advised not with his Prelates but with the Earls Barons and other Nobles and what did they advise Not to pardon him as our Asserter will have it but they say he deserved death and then the King of himself would not have it go to that extremity Now whether this Judgement would have been final if they had pronounced sentence and adjudged him to death as they only said such a man deserved death or whether this was only to be preparatory to a Tryal and to proceed afterwards upon a formal Impeachment I confess it is not clear to me nor is it greatly material to our purpose only it shews the Bishops were to give no advice in it one way or other and it is rather stronger to prove they are not to meddle in such matters if it was but preparatory For it shews that in those Capital Cases they must have nothing to do with them to determine and judge any thing concerning them from one end to the other ab ovo usque ad mala as the
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
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
for he cannot but know out late King chose rather to loose his Life than resign his Power that he never had quiet Possession but a Prince always strugling against him nor had he the acceptance of the People or any thing but force to buoy him up which after his Death fail'd in his next Descendent By what I have said it may appear to any equal Judge that the Laws made 1 Henry 4. were good notwithstanding his pretended Usurpation And as to the thing it self that the Bishops Absence in cases of Blood doth not make a Judgment given void appears plainly by the Case of the Earl of Salisbury in 2 H. 5. who petitions that a Judgment given against the Father might be reversed and assigns for Error that the Bishops who were Peers of the Realm were not present and upon full hearing and debate it was adjudged no Error Now I appeal to this Author whither he can think that my Lord and his Counsel were so stupid as not to urge what they could think of for the advantage of the Earl and the Clergy for whatsoever other faults might be laid to the charge of his Parent the cause appears to be turn'd upon that hinge by all this we may well conclude that the Lords in that Parliament did not hold the Bishops such Peers as ought to be allowed Judges concerning the Life and Death of Noble-men This Judgment our Author hath not thought fit to take notice of which might be equivalent to error temporis for it was either ignorantia or neglectus rei But he tells you Edward the fourth repealed all again in which he is mistaken for Edward the fourth repealed nothing but what concerned the Title between York and Lancaster with some Charters to others I come now to his third head or point Whether supposing that the Bishops absented as he contends only upon the account of the Canon-Law in the times of Popery whether those Laws do continue in force now since the Reformation he thinks they do not In this I shall be very short and against his Reasons which are rather Surmises than other I shall return direct Authorities of Judges and Lawyers in point First he saith the Canon-Law was grounded upon a superstitious fancy that to be present in Cases of Blood brought upon them Irregularity and hath there a large Digression upon the Unreasonableness of the Canon-Law in many particulars I shall easily yield that many of the Rules brought upon the Church by the Papacy are full of Hypocrisie and self-ends but do not think that our Bishops did first forbear from bloody Tryals about Lanfranks time as if this Canon had been unknown in England till then almost 700 years after the first Council of Toledo for Sir Henry Spelman reckons that Canon to be Anno Christi 400. and William the first came in Anno 1066. And in this first Council this Canon is cited but it is more reasonably referred to the eleventh Council of Toledo and the sixth Canon which expresly forbids their medling in Blood 't will yet be about 500 years before Williams Time It is therefore more probable that their forbearance in those Cases proceeded not from any thing brought in by Laufrank but was received here long before from their obedience to the Apostolick Canons which did not only forbid their medling in Blood but in all secular Employments and were carefully observed till Constantine's time who flourished in the year of Christ 323. 'T is likely enough that the Liberty then taken by the Clergy was restrained in Spain by that Council And if our Author please to observe it till they came to be corrupted by Covetousness and Ambition their chiefest Employment was to make Peace between their Neighbours as Chancellors and Arbitrators rather than as Lawyers and Judges In earnest whoever shall consider the intricacy of the Laws of England as they are called the Common-Law will rather believe when they sate as Chief Justices if ever they did so their Seats were among others better versed in the Common Laws than themselves and they sate rather to direct what was equal according to the rules of Mercy than according to the rigorous balance of Justice This certainly was their Office when they sate with the Earl in the County-Court Mr. Lambert in his Laws of Edgar cap. 5. hath these words Celeberrimus autem ex omni satrapiâ conventus bis quotannis agitor cui quidem illius diocesis Episcopus Aldermannus intersunto quorum alter jura divina alter jura humana populum edoceto Here you see the Bishops Office was only to teach the People the Divine Law as the Earl or Alderman did those of the Land His next Suggestion is rather a Conjecture than a Proof to wit that this Canon was never received contrary to himself before or that if it were received it was in diminution of the King's Prerogative and so repealed by the Statute of 25 H. 8. cap. 19. He might as well have said That all the Ecclesiastical Laws as of Tithes Marriages probate of Wills and other Faculties now exercised in the Ecclesiastical Courts are against the King's Prerogative and therefore void What Success an Attempt of that Nature lately had he may easily call to mind But let me bring into his Remembrance what the Statute made in the same Parliament 25 H. 8. cap. 21. hath in the Preamble of it Whereas his Majesties Realm recognizeth no Superiour under God but only his Majesty hath been and is free from Subjection to any mans Laws but only such as have been devised made and ordained within this Realm for the Weal of the same or to such others as by the Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used among them and have bound themselves by long Custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as the ancient and accustomed Laws of the same by the said Sufference Consents and Customs and none otherwise We see here the Sense of the whole Parliament That such Laws as had been used and accustomed should be look'd upon as the Laws of the Kingdom and not of any foreign Prince or Prelate Now let him tell me what Laws were common to us with any foreign Prelate except the Ecclesiastical and Canon-Law which having been here used are acknowledged a part of the Laws of the Land by Usage and Sufferance of the People So that we have now a whole Parliament that they did not look upon these as against the Kings Prerogative and so null as this Author would have it but fully confirmed as part of the English Law Agreeable with this is my Lord Coke in Cawdrey's Case lib. 5. 32. b. It is says he Resolved and enacted by authority of Parliament that all Canons Constitutions Ordinances and Synodals
Name of Peers or Grands and therefore may be comprehended under those Names when the Name Prelate is not expressed If this Author can be driven out of these holds I shall believe he may fairly quit the Field without any Dishonour I shall begin with the Tryal of Roger Mortimer in 4 Edward the Third but we must fetch our Judgment from what was done in 28 Edward the Third where upon the desire of Roger Wigmore Cousin and Heir of Mortimer that Attainder was examined and all the Proceedings repeated and upon the whole matter the King charges the Earls and Barons the Peers of the Realm that for as much as these things principally concerned him and them and all the People of his Realm that they would do such Right and loyal Judgment as was fit for such a Person to have The Words upon the Record are Le Roy vous charge Counts Barons les Pieres de son Royaum que de si come cestes choses touchent principalment a luy a vous a tout le peuple de son Royaum que vous facies au dit Roger droit loial Iugement come attient a un tel d'avoir Which said Counts Barons and Peers of the Realm returned and gave their Judgment c. The Words are the King charges you Counts Barons the Peers of his Realm not as our Author renders the Words Earls Barons and Peers of the Realm as if Peers were there distinct from Earls and Barons when the Words import no more than who were those Peers to wit the Earls and Barons therefore the Author of the Letter had reason to say the Bishops were not there who were left out in the reference made by the King whose Words are To the Earls and Barons the Peers of the Realm Now if the Question be asked who are those must not the Answer be the Earls and Barons So that the Bishops must be comprehended under the Names of Earls and Barons or not at all From whence it will follow that this Negative is something more than a bare Negative we may at least call it Negativum praegnans a Negative big with an Affirmative for it is first told who were those Peers Secondly to whom those Judgments belonged Chiefly to the King and them and consequentially to all the Kingdom and whatever the Practise is now I think it not hard to prove that anciently no Judgment or very rarely any by the Lords in Parliament was complete in criminal Cases or Execution done till it was ratified by the King yet that I may render all possible Right to the Bishops the matter will bear I would easily grant that if they were at all summoned to that Parliament they might be present whilst the Proceedings against Mortimer were in reading but went away when the Lords proceeded to the consideration of what Judgment was to be given against him which was enough to give them knowledge of the matter in Agitation and as much as was requisite to make them Parties according to the Opinion of my Lord Coke before cited I said if they were summoned because in many ancient Parliaments I cannot find they had any Summons at all as in 49 Hen. 3. 23 Ed. 1. 28 Ed. 1. 1 Ed. 2. 16 Ed. 2. and 6 Ed. 3. but after that were never omitted so that 't is probable enough that they were not summoned in 4 Ed. 3. who were left out in the sixth year of the same King But in this I will not be positive because it may be the Rolls have been lost Pag. 94. He takes a more exact view of the Case of Mortimer in 4 Ed. 3. and presseth strongly to have it allowed that the Judgment against Mortimer and some others was by Act of Parliament because the Reversal of it in 28 E. 3. was by Act and therefore saith he we may justly suppose that the Judgment against them was ratified in Parliament beside some Historians say he was condemned Iudicio Parliamenti and his own Petition is that the Statute and Judgment may be reversed and annulled and from this infers that if the first Judgment was by Act of Parliament and the Bishops not there then they might not be present in their Legislative Right and if they were there then this Negative way of Argument proves nothing that is they de facto were not there therefore de jure they ought not to be there This I confess is subtle but not solid 't is all grounded upon no greater Authority than Supposition First the Reversal was by Act therefore the Judgment was so too this doth not follow for many Judgments in Parliament may be reversed by Act of Parliament which were not so pronounced His second Conjecture hath as little weight because some Historians say it was by Judgment in Parliament therefore by Act because it is not a Parliament without the King and Lords and Commons for except this be his Argument it is of no force at all for it might be and doubtless was by Judgment in the Lords House which in ordinary Speech was called Judgment in Parliament nay how often doth himself infer the Presence of the Bishops from the Words Full Parliament when the Commons were not concerned and indeed meant no more than a full House Lastly Wigmore desiring the Statute and Judgment might be reversed proves as little for every thing ordained that is Statutum is not presently an Act of Parliament though every Act be Statutum Beside I do not find Statutum in the Record but only the Word Judgment used so that for ought appears from our Author the Bishops might well be absent at the first Judgment against Mortimer and not comprehended under the Name of Peers They have less reason to think themselves included under the Name of Barons if we well consider the words of Petrus Blesensis who living in the time of Hen. 2. well knew both what Honour they had and what they pretended then to whose Words are Quidam Episcopi Regum munificientias Eleemosynas antiquorum abusivè Baronias regalia vocant in occasione turpissimae Servitutis seipsos Barones vocant Vereor ne de illis quereretur Dominus dicat Ipsi regnaverunt non ex me Principes extiterunt ego non cognovi scias te accepisse Pastoris officium non Baronis c. Vacuum a secularibus oportet esse animum Modis omnibus cura ne secularibus te involvas Pet. Blesens edit ult p. 551 552. By this learned Arch-Deacon in his Tractate de Institutione Episc. you may be satisfied that he did not believe that Bishopricks which arose from the Bounty of the King or Alms of the People were ever erected into Baronies by the King but abusively or wrongfully so called by themselves who being charged with the Service by the King had a mind to attribute to themselves the Name since they did the Service For he saith they did abusively or wrongfully call their Possessions Baronies
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
and other Lords who were suspected to be of the Confederacy with the said Henry Hotspur alias Percy This was the work of Friday the 18th of February on Saturday the 19th the Commons give Thanks to the Lords Spiritual and Temporal for the rightful Judgment they had given as Peers of Parliament 5 H. 4 from N. 12 to N. 17. This is the whole Case as to Father and Son Now whether the Bishops were present at all these Proceedings and how far is the Question The Grand Questionist contends they were present at the Proceedings both against the Father and the Son at that against the Son from the word full Parliament which he seemeth to infer must include the Bishops and at that against the Father from the Thanks made by the House of Commons the next day after the acquittal of the Earl First as to the Son It appears plainly by the Historians of those times that he was slain in the fourth Year of the King in the life-time of the Father who soon after broke out into Rebellion so that at the time of Henry's Death he was only a Commoner and consequently not to receive any Judgment in the Lord's House alone nor could he be made a Traitor otherwise than by Act of Parliament so that the word full Parliament must either refer to some particular Act of Parliament made in his Case in which the Bishops might be present and the Commons concur or else the Proceedings were wholly irregular and contrary to their own Agreement in 4 E. 3. Now from an illegal Act no Right can be concluded As to the Earl himself we find him suddenly after in open Rebellion defeated and escaped into Scotland with Lord Bardolf and convicted of Treason by the Temporal Lords for not appearing upon Summons and all this within two Years after Now can it be reasonable to think that the Bishops were present at the acquittal of this very Lord in 5 H. 4. who were not present in 7 H. 4. which was but two Years after nor were present at a like Case in 2 H. 4. N. 30. against the Earl of Holland and others which was not three Years before Neither can any weight be laid upon the Thanks of the House of Commons which was only matter of Complement and performed at another time when the House was assembled upon other matters but seeing them there might extend their Thanks to them also who though they could not contribute did nothing to hinder the Clemency of the Temporal Lords towards the Earl besides at the same time it was accorded by the King and Lords upon the Desire of the Commons that certain ill Officers about the King should be discharged in which the Bishops might be Instrumental and very well deserve the Thanks of the Commons at which Desire of the Commons they might assist and be absent at the rest The Precedent of Iohn Lord Talbot will not avail him he exhibited an Accusation against the Earl of Ormond for certain Treasons by him committed this Accusation was in the Marshalsea before the Earl of Bedford Constable of England The King to put an end to this matter doth by Act of Parliament make an Abolition and Discharge of the said Accusation and Discovery The words are That the King by the Advice and Assent of the Lords Spiritual and Temporal and the Commons made an Abolition of the said Detection Whoever denied the Bishops Consent in a Legislative way and had it been otherwise the Commons could not have been I think regularly concerned 2. H. 6. N. 9. The Precedent of the Duke of Suffolk in 28 H. 6. I thought to have passed over being a Case as irregular in the Proceedings as unjust in those that put to death that unfortunate Man Much Art was used by the Court to have preserved him from the Envy of the People A Parliament assembled at Westminster after dismissed into London then prorogued to Leicester that dissolved and another called at Westminister in which the Duke appeared which exasperated the Commons against him But upon the whole Record it appears that no Issue was joyned for after Articles exhibited by the Commons and his denial of them March 14 at the least of the eight first and giving some Answers to others on the 17 th he was sent for again and the Chancellour acquainted him that he had not put himself upon his Peerage and now asketh him how he would be tried who instead of pleading put himself upon the King's Order who caused him to be banished for five Years By all this it appears here were no judicial Proceedings which could not be before Issue joyned so that although the Bishops were present at the reading of the Articles yet this can be no Precedent to entitle them to be present in judicial Proceedings in Capital Causes for here were none at all in this Case and till Issue joyned the Bishops are not bound to withdraw Neither ought it to seem strange that the Viscount Beaumont should make Protestation in the name of the Lords Spiritual and Temporal against these Proceedings which they finding to be extra-judicial in very many Particulars they did not know I mean the Bishops as well as some of the Lords what Construction might be made to their Prejudice for sometimes they met in one place sometimes in another and not always in the Parliament-House to consult of this Business Besides many things pass sub silentio which being questioned would not have been allowed these Observations being added to what hath been said by the Author of the Letter seems to me a full Answer to this Precedent in which the Protestatio is only Protestatio facti not Iuris I have thus put an end to the Examination of this third Chapter and fully considered all his Arguments and Precedents and come now to a view of his fourth and last Chapter CHAP. IV. IN this Chapter our Author hath employed all his Art to assert the Peerage of the Bishops and that they make a third Estate in Parliament in what sense they are called Peers as also that the entire Clergy met in Convocation make a third Estate I have largely shewed before and shall not now repeat I admit they are sometimes called Lords Spiritual tho not so before Rich. II. but Prelates or the like Peers of the Realm Peers in Parliament If by that Appellation you would make them Equals to the Nobilitas Major I think they never were yet have they many Privtledges in respect of their Seats and Episcopal Dignity in the Lords House and by reason of their most honourable Profession have all of them Precedence to Barons I admit also that the Clergy is really a third Estate and that the Bishops in respect that they are the Head of the Clergy may sometimes in ordinary Discourse be called so but are in truth never so exclusively to the rest of the Clergy they all making but one Body or third Estate fully represented
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
guilty he shall be degraded and delivered over to the Temporal Power But if he be first arrested by 〈◊〉 Secular Magistrate and tried and found guilty he shall be delivered to the Bishop to be deprived and then delivered back to Punishment The Precedent of Thomas Merks Bishop of Carlisle our Author allows to be against him but asks whether one Precedent before the time of Hen. 8th be sufficient to expound Magna Charta for in this Case the Immunities of the Church were considered and a Declaration by them that their Priviledges extended not to Treason But for a full Answer I say first that there are more Precedents than one but if there were not would not one with the constant Opinion of all Lawyers and Judges be enough to prevail with a dis-interested Man to believe that the Peers in Magna Charta and the Lex Terrae do not intend Bishops to be such Peers as are to receive their Trial by Noble-men But what Exception can be taken to those Cases after and in the time of Hen. 8th Did he not continue the Roman Religion all his time was it more against his Prerogative than of any of his Predecessors 'T is clear enough that the Proceedings before as well as after were according to Law notwithstanding the Clamour of the Clergy as is plain by Mr. Selden I shall now consider the Case of Adam de Orlton alias Tarlton Bishop of Hereford All Historians of those times as well as other later ones set sorth the violent Proceedings of the Clergy in that matter who took him twice out of the Hands of Justice But it appears by Mr. Selden by the Record Hill 17. E. 2. Rot. 87. Dors coram Rege that he was arraigned in the King's Bench and upon question how he would be tried refuseth to answer there Day is given and the Indictment brought into the Parliament where he makes the same Plea that he is by the Will of God and the Pope Bishop of Hereford and that he ought not to answer before that Court. Here you see whatever the Carriage of the Clergy was and what-ever Judgment was given against him His Exceptions were as much against any Trial in Parliament by the Lay-Lords as else-where And that consequently the Injury they conceived done to them was that they should be tried in any Secular Court whatsoever This you may see in Du Fresnes Glossary Verbo Par. The Trial he required was per Episcopos Pares suos By the Bishops his Peers This appears also by the Complaint of the Bishop of Ely that he was brought to be tried coram Laico Iudice before a Secular Judg. By this our Author's Mistake may appear who saith pag. 144. That they look'd upon themselves out of Parliament as having no Peers in Judgment but Bishops when it is evident by the Case of these Bishops that they made the same Exception as to their Trials before the Lords in Parliament that they did before the Secular Judges out of it and pretended they ought not to be tried before any Lay-Judges whatsoever Neither did they look upon themselves under the same Condition that Lay-Men were but being a distinct Body among themselves thought it reasonable to be judged by themselves only and in their own Courts an Innovation the Law never allowed or gave any Countenance unto I confess I cannot but wonder that any one Person of how great Parts soever should go about to contradict the Opinion of very many learned Judges who have all asserted the contrary to wit that Bishops ought to be tried by Commoners and no one Lawyer of any note that I know of hath hitherto maintained the contrary Methinks those of the Long-Robe should be tender in opposing the Judgments of Stanford Cook Doddridg and Selden except their Opinions were back'd by the Authority of Judges equal in Ability and Learning to those before named Having thus cleared the Precedents urged by Mr. Selden and others from the Exceptions of this Author let us now see what is alledged by him to prove that it was not always so but that sometimes they were tried by the Noble-Men as their Peers in Parliament And to that purpose he propounds the Case of Stratford Arch-bishop of Canterbury out of Arch-bishop Parker's Antiq. Ecclesiae Britan. who tells you that Stratford was at the King's Suit accused of Capital Crimes in the Exchequer that he put himself upon his Trial in Parliament that a Parliament was called and he after some Opposition admitted into the House and there as our Author saith put himself upon the Trial of his Peers this it seems is the Relation of Matth. Parker By the way whom he meant by his Peers doth not yet appear whether the Clergy only or the Lay-Lords But let us have recourse to the Record as it is abridged by Sir Robert Cotton 15 E. 3. Numb 8. The same day the King came into St. Edward's Chamber commonly called the Chamber de Pinct the painted Chamber before whom all the Lords and Commons the Arch-bishop of Canterbury humbled himself and required his Favour which he granted Afterwards the Arch-bishop desired that where he was defamed through the Realm he might be arraigned in open Parliament before his Peers probably by his Peers he understood the Bishops as others had done and not the lay-Lay-Lords Besides this seems to be a Desire of his at a Conference before the King and Lords for it was in the painted Chamber whereas the Commons usually sate in the great Refectory now called Westminster-Hall Let us observe the King's Answer which was that he would attend the common Affairs and after hear others where we see the King did not grant his Desire but gave only a Dilatory Answer Lastly it doth not appear that he was ever arraigned in Parliament for the Record saith Numb 49. And it is to be remembred that all things touching the Arraignment of the Arch-bishop of Canterbury should remain with Sir William de Kedelsby Keeper of the Privy-Seal By which it is evident that these things were not then put into the Hands of Sir William de Kedelsby but to remain there where probably they were before and were only some Papers relating to what was before done in the Chequer for I find no Arraignment recorded about that time Two Yearsafter viz. 17 Edw. 3. Numb 22. All the Proceedings against the Arch-bishop were cancelled by order from the King so that nothing appears to have been done against him to any purpose either in Parliament or else-where 'T is true there was a continuance of the Parliament in 15 o from day to day for a Week about the Trial of Noble-Men that they should not be put to answer but in open Parliament by their Peers to which purpose there are named four Bishops four Earls and four Barons as a Committee to draw up the Plot. These Persons being in their Device assigned as hereafter doth ensue Under the Name of which Peers they
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
besides them In the 47 th of Hen. 3. which to be sure was before the 49 th there was an Army to be sent against Llewelin Prince of Wales who committed Hostilities against the English this 't is certain was no General Council of the Kingdom being only a Summons to the Wars and yet the Great Barons had personal Summons as appears by the Record Rex dilecto fideli suo Rogero de Rigod Comiti Norff. Mares Ang. Salutem quia Llewellinus filius Griffini et cumplures rebelles nostri contra Homagum suum fidelitatem nobis debit am terras nostras fidelium nostrorum in partibus Walliae dudum ut nostis hostiliter sunt aggressi terras illas occupando devastando in nostrum dedecus in nostrum et praedict fidelium nostrorum exheredationem manifestam vobis mandamus sub debito fidelitatis homagij quibus nobis tenemini sicut eaquae de nobis tenetis diligitis quod in festo beati Petri ad vincula proximo futuro sitis apud Wigorn cum Equis Armis cum Servitio vestro nobis debito parati exinde nobiscum proficisci in expeditionem nostram contra praefatum Llewellinum complices suos Rebelles nostros Et it a de contentis in hâc necessitate nostrâ ibim veniatis ut dictorum Rebellium nostrorum versutia adeo patenter reprimatur quod nobis et vobiscedat ad honorem exinde vobis ad grates teneamur speciales Teste Rege apud Westmin 25 o die Maij. Eodem modo mandatum est Phil. Basset c. And this Gentleman if he had thought fit to have trusted Mr. Selden without taking the impertinent Pains as he terms it of searching the Records might have known that about 130 Temporal Barons had then their several Writs But this Author finding a Precept to a Sheriff Quod summoneri facias Archiepiscopos Episcopos Comites Barones Abbates Priores Milites et Liberos Homines qui de nobis tenent in Capite c. concludes that this must necessarily be a Curia Regis in distinction to a Parliament because of the general Writ of Summons whereas a little insight into Records would have acquainted him that the Sheriff was obliged to summon all those by a General Proclamation and then to deliver the particular Writs to the Great Barons amongst them this Record doth not say how they were to be summoned but notwithstanding this every one of those Ranks of Men might have been summoned particularly but to prevent all Mistakes or Evasion we have a Record which explains that very Instance which he insists upon it being of that very time Rex Vicecom Devon salutem praecipimus tibi quod in fide quâ nobis teneris visis literis istis scire facias omnibus de Com. tuo qui de nobis tenent in Capite per Servitium Militare vel per Serjantiam similiter illos qui terras Norman vel Brittan tenent de Ballio Domini Regis Iohannis Patris nostri vel nostro quod sicut tenementa sua quae de nobis tenent diligunt sint apud Winton die Clausi Paschae Parati cum Equis et Armis ad trasfretandum cum Corpore nostro in Pictaviam Literas etiam ipsius certis Personis directas in Com. tuo mitti fac T. R. apud Windles 8 o die Februarij Here was notice given to all or general Summons and particular Writs also to be delivered to some of the Tenants and thus for ought appears to the contrary it always was This alone were enough to shew that he has mistaken King John's Charter which he thinks has establish'd this difference but his own Explication of it will make it more apparent Which I shall consider under this next Head CHAP. II. Some erroneous Suppositions which may have contributed to Mr. Hunt 's Belief that the Tenants in Chief were the only Members of the General Council of the Kingdom till 49 H. 3. or that Tenants in Capite only constituted both the Curia and the Parliament according to the imagined different Summons considered ALL the Grounds which Mr. Hunt can pretend for this besides the matter of Fact in relation to the Summons which I have already examined must be either 1. From the Interpretation of King Iohn's Charter 2. His Notion of Tenure in Capite or 3. The belief that William the first made an Absolute Conquest of this Nation If King Iohn's Charter requires that the Great Tenants in Chief should have particular Summons to Parliament then indeed there would be a reason why though all the Tenants in Chief were obliged to attend in the Curia upon general notice yet some might not be concluded by any Act of Legislation unless they had notice of Attendance to such end But if he knew not what was meant by Tenure in Capite 't is odds but he might mistake the Sense of that part of King Iohn's Charter which relates to the Tenants in Chief And if William the first did not make an absolute Conquest 't will be wonderful how those that derived from under his Grant should be the only Persons interested in the Government exclusive of all others but if he did make such a Conquest then a very little Evidence would be enough to make one believe that none but Tenants in Chief were Cives or any part of the Civil Society To take away all Colour from his Presumption I shall shew I. That he gains no help from King Iohn's Charter II. That he mistakes the Nature of Tenure in Capite III. That he would have done well to have answered the Objections against the supposed Conquest before he concluded for it I. He can gain no help from King Iohn's Charter for his Interpretation of it fights against its self He himself acknowledges a difference between the Curia Regis and Parliament and particularly that in the Curia the Suitors assessâ—…aids and Escuage to which purposes he will have it that they were summoned by General Writs and yet contends that by King Iohn's Charter the Great Tenants in Capite who were Suitors at the Curia were to be summoned in particular de scutagiis assidendis to assess Escuage and that the Council where this was assest was a Parliament according to his imaginary distinctive Mark But let us observe his way of demonstrating his Sense of this Charter he divides some of the Clause in dispute into two parts and leaves out as not material to the Enquiry what particularly relates to the Cities Ports Burroughs and Villâ—…e Townships or Parishes in which alone according to his own Division the Liberties of sending Burgesses to Parliaments must have been confirmed and provided for and yet notwithstanding such omission will have it that the modus Parliamenti in King John 's time was in the said Charter declared His first Division is this Nullum scutagium vel auxilium ponam in Regno nostro nisi per
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
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
casu fieri consuevit Teste Rege apud Lancetost 18. die Octobris 34. FINIS ERRATA PAge 113. line 3. in Marg. read true way P. 117. l. 18. r. Bannerets Ib. l. 21. r. Banneret P. 122. l. 2. r. St. P. 144. l. 8. r. ingenuously So P. 145. l. 31. P. 160. l. 5 after the Word Barony add in the Margine viz. Ecclesiastical Persons P. 174. or 274. T l. 18. r. done P. 204. V l. 2. r. Counsel So l. 11. Ib. P. 212. X l. 22. r. permixtim P. 217. X l. 26. r. de tout le c. P. 220. l. 6. r. taken Other Literal Mistakes the Reader is desired to correct with his Pen. A TABLE of the Principal CONTENTS The Number of the Page being often mistaken through the Printers false counting to one another the Reader is desired where the Figures are wrong to observe the Letter which begins the Sheet A Page Abby of Molross O 206 207 Absence of the Bishops not merely from the Canon-Law 84 N 181 182 Adam de Orlton's Case R 267 T 180 Agitare Judicium Sanguinis prohibited H 101 and N 157 183 Allusion made by the Questionist not solid 165 Appeal to Rome no capital Crime antiently M 173 Appeal of Earl Godwin Q 227 Appeals in Trial V 191 192 193 Appellation ought to be governed by the Right S 278 Apostles their Rule p. 89 how far their Practice to be urged for Example now 133 Apostolick Canons against Clergy-Men their medling in Secular Affairs P 135 216 Arch-bishop Stratford's Case T 282 283 284 Arundel Earl his Case O 208 Assemby at Northampton no Parliament p. 170 171 172. Matters carried there in great Heat and no Iudgment of Treason given M 172 173 Attainders what they are 9 10 Augustine St. his Opinion 94 95 B. BArons how made enobled in Blood and how made 107 to 120 Barons by Blood and by Tenure different 78 118 119 120 Barones Majores who 78 Z 245 246 Barones Minores who 7 8 Barons Peer who 21 107 117 Barones Regis who 107 Z 247 to 250 Barones Regni who ibid. Baronagium and how comprehensive 107 P 202 203 Y 226 S 278 Becket not impeached of Treason from 65 to 70 and from 172 to N 180 Berkeley Sir Tho. his Case 28 29 V 196 Blesensis his Words marked 97 98 125 167 168 R 261 Bishops whether they sit in Parliament by vertue of any Baronies p. 106 108 and how 122 c. T 174 or 274 Bishops not Barons 77 108 19 123 124 125 Bishops how they sate with the Earls 91 92 93 145 P 217 Bishops Service and Tenure a Burthen 106 124 125 Their Tenure offects not their Persons 77 Bishops if a third Estate not capable to try a Peer 128 Bishops the form of their Writs no Argument of their Power 86 129 130 when present always exprest that they were 36 Bishops medling in Secular Affairs forbidden 129 135 P 216. Their Opposition to the King at Clarendon and from what Cause 141 Bishops Power clipt at Clarendon 99 O 144 when to go away in Criminal Cases 161 196 197 even in Acts of Parliament R 265 Bishops Absence not merely from the Canons 8 84 N 181 182 183 190 N 193 O Bishops Protestation p. 5 6 7 translated and explained 41 42 and N 185 to 194 Bishops not reckoned Nobles T 184 or 284 not called Lords till the time of Rich. II. 108 Bishop of Norwich his Case 40 Bishop of Carlile tried by a common Iury T 279 so Bishop of Ely 278 ibid. Bishops Absence no Error 47 Bishops had no Right to be present in the Debate and handling matters of Blood 143 Bishops not comprehended under the name of Peers or Grands if put after Earls and Barons 14 18 to 25 32 Bishops if others named always named where they are present 24 29 32 36 and that before others R 261 Bishops not Peers to Temporal Lords 71 to 99 S 280 Bishops sit in respect of Temporal Possessions 83 yet in the quality of Spiritual Persons T 174 or 274 and S 289 Bishops cannot sit in a double Capacity S 288 289 T 174 Bishops contended to be tried by their own Order T 181 or 281 whence their pretence of Immunity proceeded 153 Bishops to be tried by common Iuries T 277 to 282 Bishops their Equivocation 141 Bishops Messengers of Peace V 197 Bishops chief Employment to make Peace in civil Affairs antiently Counsellours not Iudges p. 89 91 their refusing to give Advice about keeping the Peace 30 31 266 and R 269 Bishops but part of a third Estate 80 to 85 and 126 127 137 S 290 Bishops in France never sit in that Chamber of Parliament which tries Capital Cases 90 Bishops never absent not prov'd Q 228 Bishops no where allowed to sit Inquisitors of Blood V 198 Bishops not summoned to Parliament several times Q 238 Bishops a Question whether they might be even of a Committee in matters of Blood V 199 Boeges de Bayon's Case 25 26 Brady Dr. his Assertions and Fancies condemned Pref. to the 2d Part and p. 189 in Marg. V X A a 204 205 224 227 Burroughs and Burgesses Z 237 238 C. CAmbridg Earl 50 Canons forbidding of Clergy-men to meddle in Capital Causes still in force 87 164 and P 217 to 222 Canons concerning Blood as anciently in England as the Conquest and part of the common Law N 181 182 Capitalis Justiciarius Angliae what Office 137 138 Capitalia placita what Q. 229 230 231 Chancellour when no Peer how tried T 285 286 Charter of King John the Author's Interpretation of it asserted against Dr. Brady X 206 207 against Mr. Hunt Z 237 to 242 Clarendon the meeting there a Parliament 139 Clarendon and the Parliament there considered 99 100 142 Clarendon Earl his Arguments against the pretended Conquest A a 260 to 263 Chivaler who B b 284 Clergy subjected to Baron-Service 112 140 Clergy their Power in Primitive-times 89 their Power in other Nations 90 Clerus never taken for the Bishops alone 126 Commons and Commonalty of the Kingdom where Records and Histories manifestly shew their Presence at Parliament before 49 Hen. 3â—… X 211 to Y 22â—… Commons their Vote in Danby's Case O 98 Commons sometimes meant by Grands R 270 S 279 226 3d Part anciently had their share in Judicature R 266 267 268 Commons always Members of Parliament 172 O 202 sâ—… together with the Lords in the times of Hen. I and King Stephen X 212 and long afterwards O 202 203 204 Mr. W's Grounds for the Belief that they had no Right to come to Parliament till 49 H. 3. answered and turned against him X 210 to Y 227 so Mr. Hunt's p. 221 222 223 Y 235 and to A a 268 Commons their Petition 21 R. 2. p. 11. and O 195 196 Community of Names no Argument of Right S 278 Concordia 4 E. 3. 27 R 263 Conquest disclaimed by William the first 139 A a 260 no Conquest
p. 146. Gr. Qu p. 146. Ridley p. 86. Gr. Qu. p. 147. Walling p. 109. Baker p. 1â—…4 Dan. p. 214 An 1323. Seld. pri Bar. p. 147. Gr. Qu. p. 144. Gr. Qu. p. 126. 15. E. 3. N. 8 Gr. Qu. p. 128. Gr. Qu p. 132. 31 Edw 1 a N. B. the Submission of the matter to the K. without any Exception by the Lords makes the King sole Iudg and so the Case can no longer go on in any Parliamentary Way b The reason I conceive why the Reference to the King was made by them both was because no Proceedings could be in Parliament in regard the Vâ—… dict was nâ—… returned upon Oath and so in it self null Disc. of Peerage p. 4. Gr. Qu. p. 132. Gr. Qu. p. 134. Gr. Qu. p. 135. Gr Qu. p. 14â—… Gr. Qu. p. 142. Gr. Qu. p. 143. Cook 3 Inst p. 30. 4 E 3. N. 16 17. Milites 5 E. 3. N. 15. Cotton Antid Brittan p. 56. Mr. Hunt p. 156. Hunt p. 133. 166. Dr. Brady against Jani Angl. c. p. 26. c 29. a Ant. Brit. p. 59. b Mr Hunt p. 148. Mr. Hunt p. 150. The King 's ordiâ—…ry setlâ—…d nâ—… established Court was a different shing from the Confluence of Baâ—…ons and Tenents in Capite at those thre great Feasts which were set and appointed times for great and General Councils if there were an Appearance sufficient Brady against Jani Anglorum c. pag. 30. Dr Brady against Jani Angl. p. 30. Vid. 1. Instit. f. 69 b Escuage nest q. penalty puâ—… non se sans de Service de Chivaler Bruertons c. 6. Rep. f. 2. a. Ant. Brit. p. 59 Ibid. p. 57. Ant. Brit. p. 59 Anti Brit. p. 57. Rot. Pat. 48. H. 3. infra P. 30. Rot. Pat. 42. H 3. The Original Record is not now to be found but I have seen an Abridgment of it done by Mr. Selden Mr. W. his second Argument considered Pol. Vir. lib. 11. fol. 188. 16 H. 1. 1 Rolls fol. 11. Ead. lib. 3. f. 58. Spelm. Coâ—…c vol. 2. f. 35. Cron. Eliense Vid. Jus Angl. p. 211. Hist. Norm gest a Stepho Rege f. 93 Antid Brit. p. 59. Mr. W. his third Agument fully answered Anti. Brit. p. 59. This the Hinge of the Controversy as to the Fact Whether the Commons of England were introduced into Parliament or had any Share or Votes in making of Laws for the Government of the Kingdom or had any Communication in Affairs of State otherwise than as represented by the Tenants in Capite before the 49th of Hen. 3. vid. Dr. Brady a-against Mr. Petyt p. 1 2. Mr. Hunt p. 152. Rot. Parl. 4. E. 3. N. 3. les Piers Counts Barons Counts Barons les Piers 4 E. 2. Rot. Parl. Rot. Cart. 5. â—…o m5 n. 33. Rot. Sat. 25. E. 1. n. 38. Rot. Iarl 15 E. 3. a. 50. d. Sta. Westm. 1. 3E 1. 2. Iusti. 156. Rot. Pat. 48 H. 3. paâ—…s unica m. 8. d. Rot. Pat. 43 H. 3. pars unica in 8. n. 10. Vid. Jan. Angl. facies nova p. 246. Both Mr W. and Mr. Hunt argue this may Vid. Mr. H. p. 152. Mr. Hunt p. 152. Eademrus f. 49. Vid. Ian. Angl. facies 〈◊〉 p. 214. â—…ad f. 58. Ricard Hagustaldensâ—… f. 312. Croniceâ—… Eliense Eâ—… vet Regist in Archivis Cant. Arch. Vid Ian. Angl. c. p. 221. Claus. 15. Jo p. 2. m. 7. vid. Ian. c. p. 231. Rot. Claus. 38. H. 3. m 7. c. 2. Ian. Angl. c. p. 245. Rot. Claus. 21. H. 3. m. 7. d. Magna Charta 9. H. 3. Mr. Hunt p. 152. Vid. Jus Angl. ab antiquo c. 8. Eadm supra Rich. Hagulst Ant. Brit. p. 60. Matth. Paris Addit f. 217. Matth. Prâ—…is fol. 978. Ibid. Rot. Pat. 42. H. 3. m. 10. Rot. Pat. 42 H. 3 m. 4. Stat. St. p 27 E. 3. Dr. Brady against Mr. Petyt p. 126. Dr. Brady against Mr. Petyt p. 130. Mr. Hunt p. 156. Mr. Hunt p 1â—…8 Mistakes Mr. Hunt p. 155. Ibid. p. 154. Mr. Hunt p. 154. Mr. Hunt p. 151 179. Vid. Jus Anglorum ab antiquo Addit p. 20 to 32. Mr. Hunt p. 149. See Escuage taxt at such a a Military Assembly Inter Com. de Termin Sâ—… Mich. 4â—… H. 3. r. 4. â—…id Ian. Ang. p 240. Rot. Claus. 47. H. 3. m. 7. do so Page 156. Seld. Tit. Hon. fol. 592. Mr. Hunt p. 148. Rot. Claus. 26 H. 3. pars 1. m. 10. P. 131. P. 148. Contradictio in Terminis P. 165. Pag. 160. Mr. Hunt p. 159. So Dr. Brady consesses out of Mat. Paris against Jan. Ang. c. p. 6 6 Vid. Jus Ang. p 154. Et de scutagiis assidendis submoneri faciemus c. King John's Charter Mr. Hunt p. 166. Page 151. Vid. Jan. Ang. Facies nova throughout Page 156. Mr. Hunt p. 157. Page 157. Mr. Hunt p. 158 Claus. 47. H. 3. m. 7. d. Claus. 29. E. 1. m. 14 d. Mr. Hunt 〈◊〉 p. 158. Vid. Jus Ang. ab antiquo p. 108. Benedictus Abbas sub Effigie Iulij A. 11. f. 72. in Bib. Cot. Cam Ordines Angl. p. 61. Quarto Vid. Jan. Ang. facies nova p. 189. Tit. of Hon. f. 583. Hoveden f. 494. Mr. Hunt p. 153. Magna Charta H. 1. Spelman's Glos. Tit. Hereâ—…tum Spelm. Glos. Tit. Heriot Magna Charta Johannis Rs. P. 163 164. After the Statute of Qua Emptores entire Services aâ—… Fealty Hâ—…rsots and the like might â—…e multiolyed to the Lord upon the Tenants parcelling out the Lands but not before Vid. Talbot's c 8. R. f. 105 a. So Bruerton's c. 6. Rep. f 1. 2. 1 Inst. f. 93. a. Mirror p. 7. 1 Inst. f. 58. The Author of Antid Brit. builds much upon this Authority Antid p. 10. 2 Inst. f. 65. 1 Inst. ibid. Mirror p. 11. Ibid. p. 7. Vid. Spelman 's Councils Vol. 1. f. 340. Rex non potuit distrahere patrimonium Regni sine assensu procerum Dyer 〈◊〉 Eliz. f. 229. b. Magna Charta cap. 32. 2 Inst. f. 66. 1 Instit. f. 142. 2 Instit. f. 67. 14 H. 3. Tit. Prerog Stat. de Hibernia 1 Inst. f. 67. a. Vid. Jus Ang. p. 34 to 58 p. 139. Mr. Petyt's Preface p. 20. So Roâ—… de temp R's Jo. Lord Hales his Collections in Lincolns-Inn lib. Jus Angl. p. 80 to 100. Ibid. p. 112 to 117. Addit p. 90. Jus Angl. p. 99 to 106. Mr. Hunt p. 130. Survey of the Leviathan p. 109. Survey of the Lev. p. 148. Mr. Hunt p. 153. Page 155. Ibid. pag. 157. Supra p. 212. Mr. Hunt p. 122. Ibid. p. 131. Page 129. Page 163. Page 164. Page 173. Page 2. Page 179 180. Page 156. Vid. Postscript p. 28. Mr. Hunt p. 155. Page 148. Page 151. Fortescue de laudibus Legum Ang. p. 38. b. Vocatio Congregatio Populorum Gentium omnium qui ibi omnes convenire debent universi qui sub protectione pace Domini Regis degunt consistunt in Regno praedicto ibi
Lord HOLLIS HIS REMAINS BEING A Second Letter to a Friend Concerning the JUDICATURE OF THE BISHOPS IN PARLIAMENT In the Vindication of what he wrote in his First and in Answer to a Book since published against it Entituled The Rights of the Bishops to judge in Capital Cases in Parliament cleared c. It contains likewise part of his Intended Answer to a second Tractate Entituled The Grand Question touching the Bishops Right to Vote in Parliament Stated and Argued To which are added Considerations in Answer to the Learned Author of the Grand Question c. By another Hand And Reflections upon some passages in Mr. Hunt 's Argument upon that Subject c. By a Third London Printed for R. Janeway 1682. The GENERAL PREFACE THE name of the Lord Hollis is so well known both to the Active and Contemplative part of Mankind that no more need be said to recommend any Papers to the World than to give Assurance that they were his and by him Designed for the Press I am perswaded that most who Read the first of these ensuing Treatises and have been conversant in that Great Man 's Writings cannot but acknowledge this for the Genuine product of his large Soul and close way of Reasoning But besides the inward testimony of the thing it self we have other sufficient proof of its being Authentick from such as had the Honour of a familiarity with that Extraordinary Person in his life time to whom he communicated his thoughts on this Subject as he from time to time committed them to Paper He lived not to finish any more of his Answer to the Grand Question c. than what is now published but often affirmed that he had Conquer'd all the difficulties in it Nature was spent and all the Oyl of his Vital Lamp was consumed before he could advance further with his Pen And when we consider that he had past the Age of Man having arrived to his eighty first year and that he still continued Writing for Eternity when he was upon quitting this Mortal state we may well say that his Life went not out in a Snuff as most very aged men expire but that he ascended to Heaven in a bright flame which still continues to enlighten us that remain here below Surely I cannot be taxt of impertinence if I here strew upon his Herse some of Cicero 's happy flowers since one would think they sprung up now for this very purpose Est etiam quietae purae atque eleganter actae aetatis placida ac lenis senectus qualem accepimus Platonis qui uno octagesimo aetatis anno Scribens Mortuus est Let no Man say that it misbecame him to spend his time thus when he was posting to Eternity He had found Truth to stand in need of his Defence and his own Reputation was called in question upon his appearing for it And next to Devotion which without doubt had a due share of his time nothing perhaps can give a greater foretaste of the joys of Heaven than the sense of a Mans having fully vindicated Truth and his own good name The Author of the Considerations is likewise a person of great Age and well known for his great Learning Nor would his Name if made publick give any small Reputation to his Book But he is so sincere a Lover of Truth that I dare say he would not have any Man byast with a previous disposition to believe that there is more force in his Arguments than he finds but leaves them to their natural energy For me to pretend to give the Characters of such Authors as these two would he a presumption beyond what I am guilty of in putting some Papers of mine in the retinue of theirs But though my Character cannot do sufficient Right to either yet a Confutation of Mr. Hunt 's Errors may be a piece of Justice to the Lord Hollis who has been much undervalued by this warm Author And as Mr. Hunt is a Man justly in Reputation for his Parts and Literature unless it be shewn that his Authority is of no great weight in this sort of Learning he might wound by his Censure where he doth no great feats with his Argument I doubt not but he will pardon my freedom with him since he has used as much or more with what I have formerly published to the World Indeed by his Preface one would think that he had wrote before I had set out any thing relating to Antiquities But then he must needs have understood by way of Prophecy what I would say about the Curia Regis great part of which he makes use of and concerning the explication of King Iohn's Charter and several other things which he opposes I am sensible that enough has been said by the Two learned Authors on whose Papers mine attend to clear the Question concerning the Bishops Voting in Capital Cases in Parliament from all the dust raised by Mr. Hunt But he having put things together in another manner than had been done before some might think it requisite that there should be a particular Answer given to every thing of his that bears the face of an Argument both upon the account of the weight his Assertions may carry with many and the want of Judgement in others to apply what may be found in these Treatises to silence all Objections in how different a manner soever they may be repeated And truly this I had done according to my Talent but considering that those things are wrote for the Learned whose Judgements are too delicateisoon to rellish the same dish drest over and over again I thought it convenient to suspend the publication of what has occurr'd to me upon that Subject Nor shall I at present interpose in that Controversie any further than to free my self from a two-horned Argument which I were very dull not to perceive my self to be concerned in if not solely aim'd at by it Having first taken a difference between the Great or General Council of the Nation to which Proprietors of Lands as such had right to come till 49 H. 3. And the Curia Regis compos'd of the Kings immediate Tenants and Officers I had occasion to enquire into the nature of the Curia Regis mentioned in the Constitution of Clarendon which obliges the Ecclesiastick Tenants in Capite interesse judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem This I took to relate to Judgements in the Curia Regis as such And the ground of coming to the Great or General Council being different from that of coming to the Curia From thence I conceived might be gathered a sufficient Reason why the Bishops might have been allow'd to vote in a Legislative Capacity in cases of Blood And yet that practice might no ways extend to warrant their sitting as Iudges upon such Causes either when there was a bare Curia de More or when it sat within the General Council of the Kingdom more
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
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
would run through all the Tryals upon Record in that I have omitted four in that 4 E. 3. I shall give you an account of those Tryals in that Parliament and you will see that I could have no sinister end in not mentioning them and that all of them proved and confirmed my assertion that the Bishops had no part in any of them I expressed as much as was necessary to prove they were not present at Roger de Mortimers Earl of March who was the chief and the principal of those Delinquents and whose Tryal was the leading Case to all the rest I give you the words of the Record how after the exhibiting of the Articles against him the King bespake the Judges the Peers who were to judge him and charged them in these words Dont le dit Sr. le Roy vous charge Counts Barons les Piers de son Royalme que de st come cest choses touchent principalement a lui a vous a tout le people c. Therefore our said Lord the King charges you the Earls Barons Peers of his Realm that as these things chiefly concern him and you and all the people c. You give righteous Judgment I ask now if this be not as clear as the Sun at noon-day that by the words of this Record I charge you the Earls Barons Peers of the Realm which is the same as if he had said I charge you Earls and Barons who are the Peers of the Realm can be no otherwise understood but that only the Earls and Barons are the Peers that are there charged and none else to give this righteous Judgment The Earls and Barons are the two Species particularly enumerated and Peers is the genus which comprehends both And the same persons whom the King had so charged are they who tryed and gave Judgement upon the Earl of March as the Record shews it saying Les queux Countes Barons Piers c. did judge him guilty of those Treasons And the very same persons did give Judgement immediately in that very Parliament upon the rest viz. Sir Simon de Bereford John Mautravers Boeges de Bayons and the rest Therefore my not mentioning their Tryals which our Asserter lays to my charge as a Crime and a not doing what I had engaged my self to do which was to run through all the Tryals in those Parliament Rolls could not be designedly done with an intention to conceal any thing which made against me as it is maliciously and very falsely interpreted for they all made for me and it was a passing over sub silentio of so many Precedents that confirmed and fortified what I asserted And should you Sir ask me why I omitted the mentioning of them I profess I could give you no good account of it but that it was a meer inadvertency When the question first arose about the Judicature of the Bishops I took some short notes of some Copies of Records that I had and then seeing that all those particular Tryals in 4 E. 3. hung all upon one string and were managed by the same persons it seems I thought it then sufficient to set down the proceedings in the first which was the rule and foundation of the proceedings in the rest and afterwards when I came upon your request to take a little more pains in making my enquiry into the usage of ancient Parliaments I was afterwards more exact in it but when I wrote my Letter to you I made use of my notes which I had taken of the first Parliament and particularly of 4 E. 3. where these other Tryals as I say were left out But I shall now give you an account what they are and you will see it was not for my advantage to conceal them nor would it have been for our Asserters advantage if they had been mentioned but he quarrels at every thing Only give me leave before I come to that to set it down as a general Rule and a very true one That wherever there is an enumeration of particulars of several ranks and degrees which goes downwards beginning with the higher and ending with a lower and in the close a general expression is of Others to be added to and joined with them those others must not be of a higher rank and a superiour degree to that particular which is last mentioned but either of the same degree or of a lower This is a judged Case even in the business of Bishops in Cokes second Report in the Arch-bishop of Canterbury's Case p. 46. Ad este adjuge que Evesques ne sont include deins le Statute 13 Eliz. c. 10. It hath been adjudged that Bishops are not included in the Statute 13 Eliz. c. 10. which saith That Colledges Deans and Chapters Parsons Vicars and then concludes and Others having Spiritual Promotions that these last words cannot include Bishops for reasons before given which reasons are upon the Statute of 31 H. 8. concerning the dissolution of Abbies which mentioning their coming into the Kings hand by Renouncing Relinquishing Forfeiture Giving up c. and concludes with general words Or any other means this cannot be understood of an Act of Parliament which is a higher way of conveyance than any of those specified So Sir Edward Coke upon the Statute of Westminster the second c. 41. which saith Si Abbates Priores Custodes Hospitalium aliarum domorum Religiosarum c. hath this Comment Seeing this Act begins with Abbots c. and concludeth with other Religious Houses Bishops are not comprehended within this Act for they are superiour to Abbots c. and these words Other Religious Houses shall extend to Houses inferiour to them that were mentioned before So I conclude that the Record saying Earls and Barons and Peers c. the general words And Peers can comprehend none but some other Peers equal only or inferiour to Barons and not any above them as I am sure Bishops will say they are And I will tell you when those of a higher degree may and must be comprehended under a general expression that is when the Enumeration or Climax for so I may call it goes upwards beginning with a lower Rank and rising higher in those which they particularize As if it be said Barons Earls and all other Peers here Marquesses and Dukes will be comprehended and Bishops also would be if they were Peers which they are not but still I say if the enumeration descend none higher than the last mentioned can be understood to be meant by any general clause I think you are satisfied that the E. of March was Tryed and Judged only by the Temporal Lords to whom the K. had committed his Tryal and charged them only with it Sir Simon de Bereford was the next who was Tryed and by the same Persons the Record is Item en mesme le Parlement si chargea nostre Sur le Roy les ditz Countes Barons Piers a donner droit loyal Iugement come affiert
I say that if the Bishops did joyn in the Judgement it would have been so expressed and they would have been first named otherwise it is like an Et caetera in the beginning of an Enumeration which in the close and after an enumeration of some particulars may intimate a joyning of some others that are not particularly specified and named but is never put in the beginning And I think I may with confidence affirm That there is no example in all the Rolls of Parliament that any of the Benches of the House of Lords hath been particularly mentioned in any business and if the Prelates did likewise act in it that they were not also particularly mentioned and always in the first place nay before any other even before the Prince of Wales and the Princes of the Blood as may be seen in the Roll 28 E. 5. upon Roger of Wygmore's Petition the Record saith Le Roy â—…st venir devant lui les Prelatz Edward son fitz eisne Prince de Gales Henri Duc de Lancastre Countes Barons Piers le Iugement c. The King caused to be brought before him and the Prelates and Edward Prince of Wales his eldest Son and Henry Duke of Lancaster and the Earls Barons and Peers the Iudgement c. Now is it probable or can it be believed that the Decorum concerning the Bishops being in those times still so punctually observed and that respect always given to the Prelacy whenever they were concerned to mention them particularly and in their due place that they would in that Parliament of E. 3. be content to be comprized under a general notion and pass as a man may say Incognito when others have more respect shewed them to have their names recorded I do not think that the Clerk of the Parliament durst have been guilty of so great a disrespect to them Therefore we may well conclude that in this Judgement upon Mautravers the Prelates were not at all signified under the general word of Trestouz les Piers Countes Barons All the Peers Earls and Barons nor were they at all present or had any part in that Tryal no more than in that of Roger de Mortimer Earl of March The other persons judged that Parliament had all the same Judges and passed under the same Judicature The Record for Boeges de Bayons and John Deuerell is Item tieu Iugement est assentiez accorde que soit fait de Boeges de Bayons John Deuerell pur la cause susâ—…ite c. Item The same Judgement was agreed to and accorded to be given upon Boeges de Bayons and John Deuerell for the cause aforesaid c. The very same words are likewise for the Judgements upon Thomas de Gurney and William de Ocle And to prove it more authentically that they were all Ejusdem farinae of one and the same nature I will give you the Kings Writ that declares them to be so to the Lord Treasurer and Barons of the Exchequer commanding them so to inroll those Judgements and with them a kind of Protestation made by those Peers stiled a Concordia ne trahatur in Consequentiam An Agreement that it should not be drawn into Consequence That is Not made a Precedent to oblige and compel them to judge hereafter any but their Peers because of the Judgement they had then given against Sir Simon de Bereford John Mautravers and the rest who were Commoners For as for those who were their Peers they could not avoid the Trying of them particularly in Parliament where only a Peer of the Realm can be tryed in Parliament time which hath ever been the priviledge of the Peers and from which I shall in due time and place before I make an end draw I think an Argument not to be answered that the Bishops are not Peers for if they be Peers and questioned in Parliament time they must be Tryed in Parliament But 4 E. 3. Stephen Bishop of London having been complained of in Parliament for saying That if Edward the Second were still alive as he was informed that he was and in Corfe-Castle he would assist him with all his force to re-establish him in his Throne was by the Parliament referred for his Tryal to the Kings Counsel and by them to the Kings-Bench where putting himself super Patriam to be Tryed as all Commoners do a Jury was empannelled and the Tryal went on there in the Kings-Bench till at last he got the Kings Pardon This is Term. Pasc. 4 E. 3. rot 53. Now had the Bishop been truly and really a Peer of the Realm neither could the House of Peers have avoided the Trying of him themselves nor would he have submitted to a Tryal elsewhere out of Parliament the Parliament being once possessed of his Cause But this is by the by the Writ for inrolling those Judgements and the Concordia is In Memor and. Scaccarii inter Brevia directa Baronibus de Termino Sancti Hillarii Rot. 33. 5 E. 3. In these words Rex Thes. Baronib suis salutem Bittimus vobis sub pede Sigilli nostri quaedam Iudicia in Parliamento nostro apud Westmon nuper tento per Comites Barones at alios Pares regni nostri super Rogerum de Mortuo Mari quosdam alios reddita nec non quandam Concordiam per nos Pares praedictos nec non Communitatem Regni nostri in eodem Parliamento factam super praemissis Mandantes quod Iudicia Concordiam praedicta in Scaccario nostro praedicto coram vobis legi publicari ibidem seriatim irrotulari de caetero ibidem obserâ—…ari faciatis Teste me ipso apud Wyndesor 15. die Februarii Anno regni nostri 5. Per ipsum Regem Concilium The King to the Treasurer and Barons greeting We send you under our Seal certain Judgements given in our Parliament late at Westminster by the Earls Barons and other Peers of our Realm upon Roger of Mortimer and some others also an Agreement made in the same Parliament by Our Selves the foresaid Peers and the whole Commonaliy concerning the matters aforesaid commanding you that the said Judgements and Agreement you cause to be read in your presence in our Court of the Exchequer and there to be enrolled in course and duly observed Given under our Test at Windsor Febr. 15. in the fifth year of our Reign All this shews there was no variation in any of those Tryals but all went on pari passu in the same Method And it is not probable there could be any great change in their proceedings the Parliament continuing together so short a time but fifteen days in all as Mr. Pryn observes by the Writs of wages in his fourth Part which is concerning Parliamentary Writs And I think I may now say that few will believe I concealed these Precedents because they made against me The Case of Sir Thomas Berckley is of another nature his Tryal is said to be Inter Placita
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
by the institutions of the Holy Canons to be personally present and that of Right they cannot nor ought to be there and therefore they do not intend in any sort quomodolibet to be present but wholly to absent themselves while those matters are handling Can any man now have the fore-head to maintain that they could have a thought of challenging still a right contrary to such prohibitions and to say that it was only the Canon Law that did prohibit them I say still that the Canon Law was to them above all Laws and the Prelates of those times conceived themselves to be above all other Laws even not to be subject to them but what the Canon Law did allow or forbid was accordingly by them held to be most lawful or unlawful The Salvo they add makes it clear Iure paritatis nostrae cujuâ—…ibet eorum interessendi in dicto Parliamento quoad omnia singula inibi exercenda nostris eorum cujuâ—…ibet Statui Ordini congruentia in omnibus salbis The right of our Parity and of every one of them that is our equal right in the general and of every one of us in particular with the rest of the Lords of being present and acting in the said Parliament as to all things and every thing befitting our State and Order always remaining unto us safe and entire Now I would ask if it can be imagined that they would by way of Protestation reserve to themselves a liberty when they pleased to do what they said was not lawful for them to do and that which of right and according to the Law to which they were subject and must obey they could not nor ought to meddle with And if such things can be thought to be Statui Ordini congruentia for their Salvo extends only to such things as are agreeable to their State and Order Indeed I think it a solecism to have such a thought And I know it will be excepted against that I do take Paritas here in such a sense and not to be Nomen Apellativum to signifie Peerage a rank of men but I consider how it is put that it is Paritas interessendi in Parliamento which in my opinion is proper to render a Parity or an equal right with others to be present in Parliament But let them construe it Peerage it matters not to me I have handled that point fully by it self in my former Letter and shall do it again in this before I make an end to shew I am not afraid of that expression and though in those times the Prelates gave themselves sometimes that Character that it did not at all belong unto them And he beats upon this again That this was left out purposely by me in my citing this Protestation which I have sufficiently cleared already amongst his Postulata's therefore I shall not trouble you with it again in this place In the Case of Thomas Haxey 20 R. 2. my Gentleman is so ingenious as to say He believes the Bishops were not present but then he tells you why because it was an erroneous Judgment and an Irregular Condemnation and so commends their Prudence And sure he hath been with some Witch to raise some of those Prelates from the Grave as the Witch of Endor did Samuel to tell him the true cause why they withdrew themselves and did then forbear to use their Right as he saith it is lawful for every man to do else he could never have hit so pat upon the true cause of their withdrawing whereas otherwise a man might say it was because they knew they had no right to be there and if it had been their right they should the rather have made use of it to prevent and hinder an unrighteous Judgement and have caused a righteous one to be given And more than that if it was their Right and that they had a calling to be there they were bound to attend the Service and I think it would have been a breach of Duty and a Sin in them to withdraw themselves from it And now I come to a Bundle of Words indeed it is what he says concerning their Proxies 21 R. 2. out of which one shall have much ado to pick some sense and what it is he would be at I will do my endeavour in it He first puts us in mind of his fifth Postulatum and of what he said there of the difference between the Matter of a Law and the Manner of its enacting and that a Law may be repealed for the Matter of it and yet the Manner of making it still hold good This I suppose he saith because I except against the authority which that Parliament at the desire of the Commons gave the Bishops to make their Common Procurator in regard that whole Parliament was afterwards repealed and consequently all it did made null and void Yes saith he the Parliament was repealed by 1 H. 4. because it condemned those who were his friends as Traytors to the King and Government yet the proceedings in that Parliament were just and lawful To which I answer That what was done that Parliament agreeing with the practice and usage of other Parliaments was certainly just for the Manner of the doing though the Matter might be repealed and made null But what was never done before in any Parliament nor any thing like it could not receive any stamp of Authority for its being done in this Parliament because the Parliament it self had no authority a subsequent Parliament repealing it and making it as if it had never been And this of all the Bishops joyning to make a Common Proctor was never done in any Parliament before nor since If any should object that Henry the Fourth was an Usurper and had no right nor Title to repeal former Parliaments nor to make any Laws This were an Objection if it should be allowed would have a long tail and carry a very bad consequence for it would sweep away at once all the good Laws that were made in three Kings raigns and would make such a Hiatus in our Statute Laws as would put things into a very great disorder We know that in Edward the Fourth's time which followed immediately after those three Henries in all the Acts of Parliament which passed when mention is made of any thing done in those Kings Reigns still what was done is allowed of and confirmed and to their Persons and Government the Parliament still gives this Character that they were Kings indeed but not of right Which implies the stamp of Soveraign power and authority to be set upon all their actions and so upon the Parliaments that were summoned and held by them and principally there because of the concurrence and conjunction of the whole Kingdome in all things there done Nay in some Acts of Parliament we find care taken that nothing should clash with what had been done in Parliament by some of those Kings as 14 E. 4. c. 4. there is a Statute
concerning Breakers of Truce and a Proviso in it That this Act shall not extend to any Act or Ordinance made 2 H. 5. late indeed and not of right King of England But still he is acknowledged King of England de facto which goes a great way to authorize any thing done under their power Therefore 11 H. 7. c. 1. A Law is provided to indemnifie all persons that shall do service to the King in being whether he have right or no. As for what is said of the Bishops making their Common Proxy at the prayer of the House of Commons That their Proceedings might be valid and not questioned in future Parliaments by reason of their absence and that divers Judgements had been reversed because they were not present It is true it is so expressed in the Roll of that void Parliament which as it hath no authority nor validity in it self so it is very strange that if there had been ground for this apprehension there should remain nothing upon Record in all the Rolls of Parliament that ever any Judgement or any other act done in any Parliament had been so repealed We know it was once attempted 2 H. 5. by Thomas Montacute Earl of Salisbury as I told you in my former Letter who brought his Writ of Error to reverse the Judgement given against his Father 2 H. 4. because the Bishops as he alledges there being Peers of Parliament were not parties to that Judgement but it was declared to be no Error and his Petition was rejected And we know that in Edward the First 's time there was a Parliament held at St. Edmonds-bury Clero excluso not a Prelate admitted to it And in Henry the Eighth's time all the Judges of England declared it for Law That the King might hold a Parliament with his Lords Temporal and Commons altogether without the Lords Spiritual Tout sans les Spirituels Seigneurs it is in Keilwayes Reports in Dr. Standish's Case Therefore there is no reason to think that any Judgements were repealed upon the Bishops being absent seeing their presence is not of necessity for the constituting and sitting of a Parliament And especially not for the Judgements which we treat of in Capital Cases because by what appears upon Record and by all the Laws Canon Common and Statute Law they never were present I always except that Unparliamentary Extravagant Proceeding and Judgement of Henry the Sixth in the twenty eighth of his Reign upon William de la Pool Our Asserter tells us of some Judgements reversed 15 E. 2. particularly in the Case of the Spencers but he doth not tell us where he finds it nor I believe doth he know himself having only taken it up some where upon trust as he doth other things But in this 21 R. 2. upon the Petition of the Earl of Gloucester it appears by the Record of the proceedings against the two Spencers Father and Son in that 15 E. 2. which are there repeated at large that there was nothing Capital in their Case neither in the Charge nor in the Judgement so as this signifies nothing to the matter in question which is all can be said to it And as little shall I say to his witty allusion of bringing me to a sight of my self as Alexander did his Horse to the Sun that he might not kick only this I might say if I were as foul-mouthed as he that indeed such a scoffing injurious Scribbler were fitter to be answered with a kick than with fair reasoning by way of Argument Next we come to the 1 H. 4. Sir William Rickhill's Case where I think I should do well only to transcribe what he hath written to shew it needs no answer but that I should waste too much Ink and Paper I represented in my Letter to you that Rickill being sent for into Parliament no formal charge being against him to give an account only by what order he had taken the Duke of Gloucester's Confession at Calais which he did the Bishops present but when they came to consider what was to be done upon it then only the Lords Temporal were asked their opinion which I alledge to shew that the Bishops there were not advised with because it might be preparatory to a further proceeding by way of Tryal And this our Asserter says is to serve an Hypothesis and learnedly gives it us in Greek and bids the Reader judge and so do I. Then for the Tryal of Hall who was one of the murtherers of the Duke of Gloucester he hath the condescension to acknowledge it probable that the Bishops were not there but then saith that they left it to the Temporal Lords without any Impeachment to their right it being secured before by the security of a confessed Act of Parliament 11 R. 2. it is their Protestation he harps at And if I had as much Greek as he I would say it in Greek that he now doth serve an Hypothesis or in good English beg the Question for that is his meaning of serving an Hypothesis for the Right which the Bishops there saved he will have to be and hath forty times repeated it to judge Capitally when they please but I have clearly shewed it was not of their assisting in those Judgements as he still will have it to be but other Judgements and proceedings in Parliament where in truth they had a right to assist Then follows the Case of William Sautre 2 H. 4. where he is pleased to give me a wipe for stiling him the Protomartyr of England and out of his great reading informs that St. Alban lived some hundreds of years before him but he must give me leave to inform him that the common acceptation of Martyrs amongst us Protestants now is of such Orthodox persons as have suffered for the truth whom the Papists have put to death for Hereticks and this man was the first of them in England He hath some other notable Remarks one is that whereas I said that the Bishops and Clergy of those times were the chief Promoters of bringing him to his end which I meant of their declaring him an Heretick and then turning him over to the Secular Power he observes upon it That then they acted in a Capital Case which he saith makes against me And that if it was the Lords Temporal who signed the Warrant for his execution that the Bishops had no hand in it and so have escaped my lash but who were his Judges nondum constat I am sure it doth not constare to me to what purpose he saith all this which I do not find to make either for him or against me No more than what he saith of the Case of the Earls of Kent Huntington and Salisbury 2 H. 4. who he grants were declared and adjudged Traytors by the Temporal Lords and no Bishops present and then saith he will give a Parallel Case it is of the Earl of Cambridge and the Lord Scroope 3 H. 5. where the Bishops were present and
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
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
Baronies for ought appears of elder time which he denies any did before the time of William the first of which perhaps more anon doth believe that this Tenure was enacted by some Parliament in William's time preceding to this whose Journals or Records are now lost yet adds for a further Proof the Authority of an ancient Manuscript in his hand belonging it seems to the Abbey of Ramsey of Matth. Paris where over the Year 1070 are inserted these Words In this Year the Servitium Baroniae was imposed upon Ramsey This perhaps might equally concern other Abbies yet seems but a weak Proof of the matter in question as to the Bishops did not somewhat in Ingulphus and the subsequent Practice give some Light to the Business But neither Laws nor Practice ought to be forced or stretched to a greater Latitude than the natural Construction of the Words will bear It cannot reasonably be denied but that in the Times of our Ancestors when Learning in Lay-men was very rare that the Clergy bare a great sway in the Councils of Princes and Great Men who busied themselves in little more then Feats of Arms and Hospitality But the Clergy a wary and vigilant sort of People guided by the subtile Heads of Rome under whose Banner they always fought what under pretences of Piety Satisfaction for Sins commited Redemption of Souls out of Purgatory and what not captivated the Consciences and drained the Purses of most of the ignorant Multitude Nay so holy was their Function and so sacred their Persons that no Secular Tribunal was by them thought sanctified enough to question their Actions but they still pressed to be remitted to their own or by their Appeals to Rome frustrated the Designs of the Civil Magistrate William the first being desirous to put a stop to this exorbitant Pride and growing Power of these Men and yet not disgrace their Calling did as before is mentioned out of Mat. Paris ordain that the Clergy should not be wholly exempted from all Secular Service and probably might before that have altered their Tenure which most-what before was in Frankalmoign unto the Tenure in capite sicut Baroniam or in the nature of a Barony by which they were made subject to such Services as Tenants in cap. per Baroniam were tyed unto and were called to Parliaments and sate among the other Noble-Men and the Barons Peers being first summoned thereunto by the King 's Writ Most Men have considered the Nobilitas Major or those who constituted the House of Peers under a threefold Relation First as made Earls or Barons by Creation and an actual Ceremony of investure of Robes and a succeeding Charter and Writ to attend in Parliament when summoned The Charter comprehended some Limitation how the Honour should go or else some Pension to the Barons to support their Dignity and Title of which you may see more Examples in Mr. Selden's Tit. of Hon. Part 2. Cap. 5. Such I conceive was that Charter made by King Stephen to Mandevile Earl of Essex and renewed again by Maud the Empress the like was that of Miles Earl of Hertford granted by Maud and renewed by Hen. II. which Charter only served to convey the third penny of the County Now these Charters being usual as to Earls which was the highest Degree at that time and an actual Ceremony being also used in the making of Knights which was the lowest degree of Honour I see no reason but to believe that the same Ceremony of Invetisture was used to Barons which was the middle Degree Some Light is given to this by considering the Charter granted to the Lord Iohn Beauchamp of Holt. where the words are Ipsum Iohannem in unum Parium Baronum Regni nostri Angliae praefecimus volentes quod idem Johannes haeredes masculi de Corpore suo exeuntes statum Baronis obtineant ac Domini de Beauchamp Barones de Kiddermister nuncupenter In cujus rei Testimonium c. Here being in this Charter no words of Creation but all in the Praeterperfect Tense we have promoted must refer to some Act done before and this Charter served only to limit how the Estate should go Mr. Seld. Tit. Hon. Part 2. Cap. 5. p. 747. I edit in fol. I know reckons this as the first Creation of a Baron by Patent but doth not observe the words nor his own Subsequent Patents made to others where the words are in the Present Tense and constituent of the Honour granted viz. Praficimus constituimus creamus we do create promote and appoint Neither can I imagine what Right those Ancient Barons of which we have yet some left who were so before Rich. II. have to come this day in Robes had not their Ancestors been invested with them in their Creation and different from those of Earls Now this as it was the most ancient so was it the most honourable way of conferring Honours so was it also the most noble by which their Blood was not only enobled but also all other Rights and Priviledges competible to that Degree were given unto them and certainly we must make some difference between one made a Peer of the Kingdom by Charter and one so called in ordinary Speech of which Name no Man in the Kingdom but is in some sense capable we being all Peers to those of our own Degree Now of these Peers thus enobled by the Invetisture of Robes some were called to Parliament by Writ after the Ceremony of Invetisture had been performed and had never any Patent to limit the descent of the Honour Such had their Honour in fee-simple and it went to the Heirs general of which we have many Examples where the Sole Daughter and Heir of such a Baron hath not only conveyed the Honour to her Descendents but enjoyed the Title herself during Life Amongst many I will only instance in one Charles Longuevile Son and Heir to Susanna Heir general to the Barony de Grey of Ruthin left only one Daughter named Susanna Charles her Father was received in Parliament in his Robes in the latter end of King Charles the first his Reign he dying left the foresaid only Daughter who after his Death married Sir Henry Yelverton of Easton Manduit in Northamptonshire Baronet Sir Henry died leaving Sir Charles Yelverton Baronet his Son and Heir then a Minor Susanna enjoyed the Honour during her Life and at her Death left Charles still under Age who immediately possessed the Honour and at his full Age was called by Writ sate in his Robes in Parliament till he died which happened soon after his Age of twenty one without any issue leaving the Honour to Henry his Brother and Heir yet alive and under Age. See Sir William Dugdale's History of the Baronage Title Lord Grey first Part pag. 718 719. The second way by which some have conceived Barons were made hath been by Writ only without any other Formality or Ceremony whatsoever and of this
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.
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
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
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
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
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-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
comprehends them all so that our Question being concerning their Rights in Parliament if this be not meant of one it will neither advantage nor prejudice me but only shew how willing they were to break through all Rubs when they could in those times of their Power and the Blindness of the People The whole Sentence by our Author abridged to his purpose is as followeth Illud coelestem exasperat iram plerisque discrimen aeternae damnationis accumulat quod quidam principes sacerdotum seniores populi licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpa reputant quod mortis truncationis Membrorum decernentes à pronunciatione duntaxat executione paenalis sententiae se absentent Sed quid hac simulatione perniciosius est Nunquid definire discutere licitum est quod pronunciare non licet In English This doth exasperate the Wrath of Heaven that certain of the Chief Priests or Bishops and Elders of the People notwithstanding they do not dictate or pronounce Judgments of Death yet they handle them in their Disputations and discussions of the same yet notwithstanding think themselves free from Guilt because though they Decree the Sentence of Death or loss of Members they only absent themselves at the pronunciation of the Penal Sentence But what is more pernicious than this Simulation Is it lawful to discuss and determine what is unlawful to pronounce And in the whole Treatise inveighs against the general neglect of the Bishops in performing their Duty not confining himself to any place and seems a prophetical description of the practise of the Inquisition afterward brought in by S. Dominick But if it were referred to the practise of some of the Bishops and Clergy of England probably it may be meant of such as were made Secular Judges or sate with the Earls in the County Court where they perhaps were present at the discussion though not at the Sentence which was left to be pronounced by the Secular Judge till after the time of Edw. 1. See 28 Edw. 1. c. 3. where it is ordained that the Justices appointed to take Assizes in every County where they do take as they be appointed Assizes shall remain together if they be Lay-men but if one of them be a Clerk then one of the most discreet Knights of the Shire being Associate to him that is a Lay-man by our Writ shall deliver the Goals of our Shires Here we see their Power though Justices to meddle in Capital Cases was prohibited nay some Records are in the Tower that when two have been commissioned as Judges for the same Circuit the Commission of the Clerk has been restrained to common Pleas that to the Lay-man unlimited see Iani Ang. facies nova pag. 209. 210. Shall we now believe that what was prohibited to Clerks in Edward the First his Time was permitted to them in the High Court of Parliament in subsequent times I have given my Reasons why I think Seniores Populi could not comprehend the Abbots Priors Lords and Commons yet if any man will contend this was a Parliament then must Seniores Populi comprehend amongst others the Commons and their Proceedings to be in a legislative way in which the Commons could only meddle and in which we deny not the Clergy to have their part so that this doubty Precedent will no way serve our Author's Turn His second Instance to make good his Assertion is taken from the Authority of Will. Fitz-Stephen a Monk of Canterbury in MSS. in Sir Rob. Cotton's Library and some other private hands in which he relates what happened to Arch-bishop Becket in the Contest between the King and him in the great Council at Northam ton called soon after Becket's obstinate Carriage at Clarendon in which Relation among others that Author hath these Words Secunda die considentibus Episcopis comitibus Barenibus Angliae omnibus Norpluribus Roffensis Episcopus quidam alius nondum venerat Archiep. lesae majestatis coronae regiae Arguitur quia se ut supra narratum est à rege citatus ro causa Johannis to wit Iohn the Marshal neque venerat neque idonee se excusasset Archiepiscopi depulsio nullum locum habuit Allegata tamen Johannis supradicti injuria jurisdictione hujus causae propria curiae suae integritate Rex exigit judicium Archiepiscopi nulla ratio est approbata Then after much debate who should do it Judgment was pronounced by the Bishop of Winchester which ended in the Confilcation of all his personal Estate The Sum of what Fitz-Stephen saith which is cap. 10. col 2. p. 21. in that Copy I have seen is this That when the Bishops and Barons of England and many of Nor. Normandy as Mr. Selden thinks were met together the Arch-bishop is there accused of Treason because having been cited by the King in the Cause of one Iohn he appeared not nor gave in a sufficient Excuse To let pass what is materially replyed by the Author of the Letter to this Authority I shall make some Observations of my own not yet taken Notice of First That this Assembly held at Northampon was not a Parliament but a great Counsel summoned by the King soon after Becket's stubborn carriage to his Prince at Clarendon to be advised by them how to humble that proud Man where it was lawful for him to use the Counfel of any of his Subjects of Normandy or others as he thought good who certainly in an English Parliament could not be admitted amongst the natural English Secondly we hear nothing of the rest of the Clergy nor the commons but of the Bishops Earls and Barons but that the Commons had allways right to appear in Parliament is learnedly made good by Mr. Petit in his Tractate of the ancient Rights of the Commons In the next place the relation of Fitz-Stephens is not only different from the relation of other Historians but in it self is subject to many Exceptions For first it is plain he was not accused of High Treason in the case of John the Marshal as he saith which appears by the Judgment of that Council which upon the whole matter reac'hd only a Confiscation of his personal Estate which shews clearly the Accusation was not in that Case for Treason because they here punished him with a lesser Punishment than was due to Treason now 't was not in their Power to change the nature of the Crime but must have either found him guilty of Treason or have acquitted him But the Truth is there was a second Accusation by the King about the same time and in the same Place concerning Accounts to the King of Receits during the Vacancy of the Sees of some Bishopricks when he was Chancellor to which he refused to give other Answer saying He was not cited in that Cause and over and above that he was fully
having then made his Appeal Neither to speak my Mind freely can I see how he could be accused of Treason for Who was the Accuser The King could not because by reason of the dignity of his Person no Averment could be made against him neither could any man be tryed but by his Peers Now we hear of no Articles exhibited no Jury summoned nor no legal Proceedings in case it had been a Parliament for though Mag. Charta was not so perfect as in Henry the Third's Time yet all Historians agree 't was granted in Henry the First 's Time of the chief Points whereof Stephen Langton Arch-bishop of Canterbury brought a Copy into the Parliament in King John's Time a worthy Prelate he was though an Italian though it were the Law of the Land before and though the Council of the King might in some Misdemeanours proceed arbitrarily yet in Treason they could not as is well observed by Mr. Selden Priv. of Bar. ca. 4. pa. 10. but they were in those Cases to be tryed by their Equals Co. 2. Inst. pag. 50. tells you 't was as ancient as William the First gives you an Example of Roger Earl of Hereford so tryed in his Time But we have not yet done with Fitz-Stephens for our Author tells you that the King upon the proud Answer of Becket charges the Bishops that together with the Barons by virtue of their Allegiance they would give Judgment upon the Arch-bishop They excuse themselves The King presseth them Fitz-Steph Words are Rex responso Archiep accepto instat Episcopis praecipiens obtestans per homagium fidelitatem sibi debitam juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam c. This he translates That the Bishops together with the Barons would give Judgment upon the Arch-bishop This appears to be after his Appeal when the giving of Judgment or medling farther in the Business was refused beside the undue Translation of the Words which signifie no more but the desire of the King that they would tell him their Opinion touching the Arch-bishop I wish he would give me any good Authority where dictare Regi sententiam for sibi here is the same can signifie giving Judgment upon a Criminal as he translates them I know very well that dictare judicium may be taken to deliver any Sentence leisurely Linw. lib. 3. Ne Cler. vel Mon. where it is all one with dicere or suggerere sententiam Beside no such Sense can be affixed to these Words for the King's Question refers to them all in general but certainly the King did not mean they should all pronounce Sentence but only privately tell him their Thoughts yet from hence would our Author infer that this was a Parliament and that the Bishops had Power to give Judgment in Criminal Cases when he hath proved neither because in Truth this was only an Attempt of the King 's to draw them to his Party having then Intentions to send to Rome about this matter The Words of the Bishop of Chichester which he spake to Becket after his Appeal to Rome will do him as little Service for they import no more than that the Interdict laid upon him and the rest from doing any thing against him during his Absence hindred them from being present at such Proceedings against him as the King required from them 'T is not to be doubted but the King would have pressed them to deliver their Opinions whither his Appeal were Treason or not what their Judgment would have been no man knows If it had been a Parliament then summons must have been sent out for his Appearance and Proceedings by Bill of Attainder in a Legislative way not arbitrary in Cases Capital Seld. pri Bar. cap. 4. pag. 10. as before noted He closes this Head of Discourse with a pretended Confutation of the Author of the Tractate of Peerage a Book by some snarl'd at but by none answered but let us examine what they both say The Author of the Discourse of Peerage tells you pag. 14. and backs what he saith by the Authority of Justice Doddridge Sir Edward Cook and Mr. Selden that these were only certain Recapitulations of the King's Prerogative and the Peoples Right then sought to be infringed by the Pope and Clergy That these Recapitulations were avite consuetudines is confessed and that that Canon concerning Blood is as ancient in England as the Conquest our Author acknowledgeth that Gervasius Dorobernensis reckons this Article among the Laws then established from all which the Discourser of Peerage might very well argue That which was a Custom in Henry the First 's Time taken notice and allowed in Henry the Second's Time and of the beginning whereof there is no Memorial extant nor account to be given ought reasonably to be esteemed as part of the ancient Custom which is the common Law of the Kingdom All that the grand Questionist thinks fit to reply to this is that it is little to his Purpose because this Clause in Question is not a Limitation of their Power but a Priviledge and Indulgence for their Absence That this Fancy is erroneous I have before shewed from the natural Sense of that Clause as also that long before these Constitutions they were both by their own Canon Law and Custom of the Nation prohibited from being present in Cases and Consultations of Blood and that themselves admitted not only the Liberty but the Obligation by their constant Obedience given to that Law and Custom in absenting themselves in those Cases as the Author of the Letter hath asserted and shall by me be farther cleared in my Answer to his Precedents Now I do not think that this Author believeth that these Constitutions gave them a greater Liberty than they had before but if it found them bound that Statute left them so and was as all affirmative Statutes are though not introductory of a new Law yet are they corroborative of the old and in their Oath they swear Obedience to this Article as well as to the rest to wit that they would according to their Duty be present in all Proceedings in Parliament with the rest of the Barons except in Cases of Blood in which they tell us afterwards that it was not lawful for them to be present at any hand so that upon their Allowance there was more than a Liberty for there was a Law against them Beside could this Sense be allowed it would no way serve to make good his main Hypothesis that they might be present till the definitive Sentence came to be given for if the Law were obligatory as to any part why not to every part of it Our Aurhor is as little fortunate in his attempt to evade the Authority of Roger Hoveden pag. 40. who saith That 't was agreed in the Synod at Westminster that no Clergy-man should agitare Iudicium sanguints He tels you this was part of a Canon agreed at Toledo which
Ricard Archbishop of Canterbury thought fit to have received here and I think would inferr that here was no more done then a Proposal of this to be received not that itw as so But if we will believe Gervas Dorbernensis in 22 H. 2 fo 1429. An. 1175. he will tel you they went much farther His Words are Hoc concilio ad emendationem ecclesiae Anglicanae assensu Domini Regis Primorum omnium Regni haec promulgata sunt capitula Among which one is His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut perse membrorum truncationes faciant aut inferendas judicent Here is not only a Proposition of the Arch-bishop but an Assent and Promulgation of the same by the King and chief of the Kingdom And the true Sense of that Canon which being so confirm'd had the force of a Law is That Clergy-men should not agitare or medle in any Tryal of Blood which certainly extends to Preliminaries but are prohibited to make Amputations themselves or give their Opinion or Judgment that such Amputations ought to be made by others Their presence at such Trials was unlawfull Non licet and their Acting prohibited So at last I have done with this clause and have shewd that it is not indulgent but restrictive that it was a custom in H. 1. time sworn to at Clarendon published at Westminster 12 years after and by all this made part of the Law of the Nation have answered all his Subterfuges and Evasions have shewed the Interpretation I have given was always received I expect now so much Ingenuity in this Author that he will either yield to my Sense or give another agreeable to the Rules of Grammar and the proper Signification of the Words and not take the Liberty to explain them at his Pleasure and confound Voices Moods and Numbers Insomuch that this Statute will remain Testimonium irrefragabile still and I am sure if he observes his due bounds he must give an Interpretation equipollent to to what I have given So hard it is for the greatest Wits to maintain an ill Cause I come now to the Consideration of the Protestation made in the Parliament held in 11. R. 2. which our Author saith much cleareth the whole Business especially the preface therof for the omission of which he blames the Author of the Letter I shall give it you in English which our Author hath not thought fit to do and by that means deprived many of his Readers of means to make a true Judgment of it In the Name of God Amen For as much as by the Law and Custom of the Kingdom of England it belongs to the Arch-bishop of Canterbury for the time being as also to the rest of his Suffragans Fellow-Brethren and Fellow-Bishops with the Abbots Priors and other Prelats whatever who hold of the King by Barony as Peers of the foresaid Kingdom to be personally present in the Parliaments of the King whatsoever and there with the rest of the Peers and others that have right to be there present concerning the arduous Affairs of the Nation and concerning other things there usualy to be treated of to Consult Treat Ordain Appoint and Define and other things to do which there in time of Parliament are prepared or fitted to be done In all and singular of which We William Arch-bishop of Canterbury Primate of England and Legate Apostolical for our selves our Suffragans our Felow-Bishops and Fellow-Brethren as also for the Abbots Priors and all the foresaid Prelates do protest and every one of them doth protest who either by himself or his Proctor shall be here Present at this time publickly and expresly that we intend and every one of us will in this present Parliament and others as Peers of the fore-said Kingdom after our accustomed manner be present to Consult Treat Ordain and Define and all other things ro exercise together with the rest that have right to be present in the same The Condition State and Order of us and every one of us being still saved But for as much as in this present Parliament some matters are to be treated of in which it is not lawful for us or any of them according to the Decrees of the Holy Church and the Canons thereof to be at any hand personally present For which Reason we for our selves and for every of them do protest and every one of them here doth also protest That we intend not nor will because according to the Law we cannot nor ought not be present in this present Parliament whilst such matters are or shall be treated of but that we and every one of them will upon that occasion all together absent our selves our right of Peerage and of theirs as to our and their being present in the said Parliament and as to our and every of their exercising and doing all and singular things our and their order in all things allways preserved And we farther protest and every one of them protesteth that by reason of this our absence we do not intend neither doth any one of them intend or will that the Trials or Proceedings had or to be had in this present Parliament upon those aforesaid matters in which we cannot nor ought not as is premised be present as much as in us lyes or any of them lyes shall in times to come be any way impugned weakened or broken He tells you that this Protestation saving the legall Formalities consists of three parts First a declaration of their undoubted Right as Peers of the Realm by virtue of their Baronies to sit and Vote in all Debates in Parliament Where by the way the words are de Regni negotiis not omnibus of the affairs of the Kingdom not all of them and aliquibus may as well be understood as omnibus and this appears soon after upon their own shewing for they tell you they intend to be present in this and all other Parliaments and presently after tell you it is not lawful for them to be present in this Parliament while such matters were handled to intend to be present and then tell you that 't is not lawful to be present in this Parliament shews that their Power was limited and not universal however upon this Protestation they went out at the Begining and made no Proctor for they tell you they ought not to be personally present at any hand where such Affairs are or would be treated of which certainly was before the definitive sentence so that the Canon required their absence at Preliminaries according to the sense of all times till these new expounders came in place I will not here dispute whether this Protestation be an act of Parliament with Submission to better Judgments I think it hard that what was intended as a Protestation should by Construction be advanced to an Act no more than his present Majesties Concessions upon the desire of
Canons when 't is for our Advantage to break them I might now proceed to the Examination of his Iast Head How far the Canon Law is at this day binding But because I would not leave any thing untaken notice of he thinks fit to make use of for the strengthening his Cause I shall speak something to what he farther urgeth He tells you out of Knighton That this Parliament was called Parliamentum sine Misericordiâ and that many Circumstances concurred which might make the Lords willing to admit of their Protestation because their business might proceed better against the King's Ministers He need not have urged Inducements to perswade the Lords to admit of their Protestation except he had first shewed they had Power to have refused it But by this Inducement he insinuates that the Bishops would probably have obstructed Justice against those wicked Ministers about the King What the Accusation was for which some of them were executed I shall let you seek in the Historians of those times being unwilling to rake into that Puddle any deeper I shall therefore leave this Parliament and the mysterious Canons as our Author well calls them and come to the Anti-Parliament to this held in 21 R. 2. where as he saith the King had a Mind to undoe what was done in the Parliament in 11 R. 2. which Intention this Author saith he had kept in his Mind ten Years by being willing to let the Bishops be absent in 11. that he might have that pretence to Question in this Anti-Parliament the things then done An undecent Charge he lays upon the King if it be well considered The Declaration by help of the Bishops that the King's Pardon granted in Parliament in 11. was revocable by the King was the Labour of his Ministers in 〈◊〉 which those Ministers prevailed in 〈◊〉 Measure but their Actions with 〈◊〉 â—…cceeding Murther of the D. of Gloâ—… the King's Uncle bred such a Jealousie and Distrust between the King and his People that I may call it the first Stone which left not rolling till it ended in the Ruine of that poor Prince who continued not King much more than a Year after and was soon after the Deprivation of his Crown deprived of his Life also What Art was used to make that Parliament subservient to their ends I need not tell you One of the first Attempts was what I touched before to make Pardons granted by the King in Parliament revocable at his Pleasure in this the Clergy were very instrumental After this the Commons come to do their Parts and they represent that divers Judgments had been undone heretofore for that the Clergy were not there present and therefore pray they might appoint some common Proctor with sufficient Authority to that Purpose From hence he infers two things First That the Commons thought their Presence necessary because Judgments had been undone for want of it Therefore their Concurrence in Judgment was thought necessary to make a Judgment valid Secondly That they should therefore make a common Proctor This is strange Logick Their Presence was thought necessary and Judgments undone for want of it therefore they ought to be present I think ought to have been the Consequent but the Commons pray that in that respect they should make a Proctor I should think now the true Inference ought to have been The Bishops and Clergy ought not to be personally present in Cases of Blood yet because it is fit they should be represented at least in some Cases let them nominate a common Proctor to be in their stead where their Concurrence is necessary This is Sense the other is contradictory 'T is evident by this Petition of the Commons that matter of Blood was to be treated of for there needed no Proctor for any other use since themselves might have been present And I think it very clear by the Year-book in 10 E. 4. that when Issue was once joyned 't was their Duty to absent themselves For that Book is that the Peer questioned may plead not guilty and then the Bishops to depart so that it is plain they were not to vote after Issue joyned in matters of Blood So Hakewell in his Modus Tenend pag. 84. before cited saith That to our days when Question is had of the Attainder of any Peer the Bishops are to depart Now I take the Law to be all one what â—…ue is joyned in a Capital Accusation so as there be any upon which the Court may proceed to Famination of the Cause and to Judgment accordingly As to our purpose in the case of the 〈◊〉 of Danby he pleads the King's Pardon the King's Counsel or the Commons demur The matter then in Issue upon the Demurrer is whether the Pardon is good in Law upon which the Bishops according to 10 E. 4. are to go out because if the Pardon be found invalid then must Sentence of Death be pronounced against the Criminal for I take the Law to be That the pleading a Pardon in Bar upon an Endictment or Impeachment is a Confession that all the matters contain'd in the Endictment or Impeachment are true and he shall never be admitted to plead Not Guilty afterward But this by the way Our Question is about the Commons Petition that they would make a Proctor which being in matter of Blood the Author of the Letter saith was the only time whether this was Error temporis as one saith the Error of that time or an inconsiderate rash Desire of the Commons as another is not necessary to enquire for it doth not appear that any Capital Judgments had been reversed by reason of their Absence so that their desire fails in the ground of it if they meant of Capital ones for the first Judgment against the Spencers was affirmed in 1 Ed. 3. and the Reversal made 15 Ed. 2. was made null so that the Commons it seems were ignorant in that and might be unadvised in the rest as they sometime have been Beside if he consult Sir Edward Coke in his 2 Instit. cap. de Asportatis religiosor pag. 586. he doth well excuse the Commons in shewing that the Bishops were present at the Charge against the Spencers in 1 Ed. 2. so that the Commons might not know how far the Bishops were conusant of the thing and looking only on the out-side were ignorant of the Act in 1 E. 3. for the Discourser saith there were no more No replyes the Grand Questionist not in his Study but the Commons might know of more for we have not all the Rolls What then This at best is but a Surmise and the two Judgments against the two Spencers were enough to make their Allegation true that divers Judgments had been reversed for that cause though it be not to excuse their Ignorance in not knowing that the first Judgment against them was revived by the Statute of 1 Ed. 3. And it seems strange to me that he that had so much
Reverence for the then House of Commons should have so little Respect to the Opinion of both Houses now for the Commons unanimously voted That the Bishops ought not to be present at any Debate concerning the Earl of Danby or the Lords in the Tower by them impeached of Treason Journ of Parl. pag. 258. and 267. The Lords about the same time voted That the Bishops were to go out when their Lordships proceeded to examine Guilty or Not Guilty This Author with great Confidence and little Respect affirms they have right to stay till the definitive Sentence is to be given But let me now admit that it was reasonable in the House of Commons to move that they might make a Proctor and that the Bishops had also Right to nominate one in Capital Cases yet certainly when they all absented themselves together 't was in their Choice whether they would make any or no and consequently their omitting it as in 11 R. 2. could be no cause to reverse a Judgment as the Commons alledged The Reason is as I touched before because they take notice of the matter in Question by hearing the Accusation read which is always done before they go away which is enough to make any Act good and to be said to pass by their Consent because they voluntarily absent themselves though with Allowance of the Lords where their Presence is not lawful Vid. Co. 2. Inst. de Asport Relig. pag. 586. So that the Reason of the House of Commons was every way weak and unsound In the next place let me examine what the Office of a Proctor is being made It is plain by the Imperial Law that a Proctor is in the Nature of an Attorney to appear and make Answer in the name of his Client to such things as the Court shall think fit to demand but never by that or any other had he Power to over-rule or contradict what was the sense of the Court. I have seen some ancient Precedents of Persons under the degree of Noble men made Proctors by the Bishops for which consult Mr. Selden's Privil of the Baron pag. 5. Hon. of the Lords Spir. pag. 27. Els. Mod. pag. 16. But in all Cases I have met with the ancient form runs thus At the Parliament at Carlisle under Edward the First the Words are Ad consentiendum quod tunc ibidem per dictos Prelatos Proceres contigerit ordinari Another in Edward the First 's time in a Parliament at Westm. runs thus Ad comparendum audiendum pro nobis in hoc Parliamento tractanda consentienda So that their Power was but to appear and hear for them what by others were to be treated and consented to Accordingly Mr. Selden saith that in Attainders upon Appeal they made their Proctors for assenting in Parliament I hear nothing of dissenting Seld. Privil Bar. pag. 5. Neither is it reasonable to believe the Lords would suffer any Commoner to sit and vote among them as Judges neither do we read of any place where such a Proctor was to sit having no right of his own to be there If you will say he was to sit upon the Bishops Bench and there to give his Vote you give the Bishops Power by their simple deed to give place and vote in Parliament which is as much as the King can do by his Letters Patents and by which the Patentee is enobled Neither is it just to think they could any way transfer a Right for others to judge for them where themselves were prohibited to be present or judge It appears that in the Parliament in 49th of Henry the Third there were a hundred and twenty Bishops Abbots Priors and Deans 't is not like there were many fewer in 21 Richard the Second who was not long after him Can any one now think the Lords would suffer Thomas Percy to dispose of a hundred and twenty Votes It had been much safer to have let the Clergy to have been personally present than to unite in one man a power to over-ballance them all I think it probable for the Reasons before given that their Proctor either sate among the mean Officers or that in those times the Lords and Commons sate together and that this Percy was one of those that served for his Country But against this is urged that in Edward the Third's Time there were distinct Houses though before that Time they might sit together Sir Ed. Coke Prin and others are of Opinion they sate together far in Edward the Third's Time why may not that be extended to his Son Richard the Second the exact time when they divided being not so exactly agreed upon I have before shewed out of Mr. Petit Rot. Parl. 2 Henry the Fifth pars 2. n. 10. that the Commonalty have ever been accounted a part of the Parliament I have also shewed out of Cambden Selden and others that Baronagium comprehended both Lords and Commons and in all Histories of those Times you shall frequently meet with Concilium Baronum Baronagium and the like Mr. Selden tells you Tit. Hon. part 2. chap. 5. no. 16. pag. 689. that the Burgesses of some good Towns as well as the Cinque-Ports which still retain the same name were called Barons In the seventeenth of King John dors claus memb 7. Baronib Germuthae Gipswici Norwici c. Mat. Paris Anno 1253. pag. 863. speaking of the Citizens of London hath these Words being englished Whom for the Dignity of the City and the ancient Liberties of the same we usually call Barons Of this Identity of Names we can give no better account than because they were usually joyned with the other Barons in great Councils of which there were also two sorts Gervasius Tilburiensis part 2. cap. 13. speaks of Barones majores and mineres Fitz-Steph cap. 11. mentions secunde dignitatis Barones In the Mag. Char. of King Iohn Mat. Par. Anno 1215. mentions a Summons to a Common Counsel of the greater Barons by the King 's Writ and of other Tenants in Cap. which were Barones minores by the Sheriff but all of them comprehended under the general Name of Barones or Baronagium under which general Name all meeting who had any Right to come either as Barons or Free-holders we have no reason to believe they did not all sit together in the same Counsel whereunto they were summoned under the same Name The old Modus put out in English by Hakewell with his seeming Approbation of the Book saith in his Chapter concerning Cases and Judgments that are heard that every degree might go by it self and consider of it by which it appears they then sate together 6 Edw. 3. Elsing p. 96. and 99. saith in two Parliaments they went apart and in one gave Subsidies apart The Case is in 50 Edward 3. where the cause of Summons being shew'd the Commons were willed to withdraw to their ancient place and consult among themselves proves no more than that
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
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
and Royalties and themselves Barons both blaming and threating them from God for so doing and involving themselves in Secular Matters This Author flourished in the time of Hen. II. ancient enough to know the truth and how they were look't upon in those days Moreover I do not find it can be made appear except conjecturally that they were ever present where they were not first named The Honour of their Function makes them be called before Dukes and Earls and being by that reason Pralati leâ—… no Man deprive them of their Right and by Post-Position make them post Lati. Lastly This Person being executed in 4 Edw. 3. as appears by the Record in 28 E. 3. Cot. p. 85. without any Accusation or Answer makes me believe the Bishops being Men of Piety would not by their Prefence countenance so illegal a thing tho they had had Right without entring their Protestation manifesting their dislike of it neither do I believe their Spirits so humble to suffer a Post-Position of their Titles But this whole matter will I conceive be better cleared if I shall acquaint the Reader with something more concerning this Roger Earl of March than hath yet come to this learned Person 's Knowledg In 5 Edw. 3. the very next Year after the summary Judgment was given against Mortimer and Matrevers a Commoner at the Complaint of the King we find inter Brevia Baronibus direct 5 E. 3. m. 33. penes rememorat Dom. Regis in Sâ—…cio that those Judgments were per Comites Barones alios Pares Regni not a Syllable of the Prelates nor can the word alios take them in since in the whole current of Records the Prelates were never placed after Earls and Barons And the alij Pares were either such as might be extraordinarily summoned an usual Practice at that time or they were the Barons Peers viz. Barones Minores besides the succeeding words clear the Point For there was in 4 E. 3. an Agreement and Concordia made by the Lords and Commons that such Proceedings should not for the future be drawn into Example to judg Commoners to death upon Summary Articles without any Concurrence from them Now this Concord was made by the Temporal Lords not by the Prelates but per nos Pares praedictos nec non Communitatem Regni in eodem Parliamento Now in 4 E. 3. the Reference was made to the Earls and Barons the Peers to whom of right such Judgments belonged and no Prelates comprehended and here they are called Pares praedicti Add to this Rot. Parl. 13 E. 3. Numb 8. Le grant des Graunts where an Aid was granted to the King then in war with France The Record saith Les Countes Barouns esteantzen dit Parlement Granteront pour eiix pour leur Peers de la terre qui teignent per Baronie la desme garb la disme tuzon la disme Aignel de touts leur demaignes Terres Now if the Prelates were understood by the word Peers in this place then it must be granted that the Earls and Barons taxed the Prelates who always taxed themselves and the inferiour Clergy in Convocation But the succeeding words will clear the matter which run thus in the same Record Et pour ceo quil fu aviis as Prelatez Countes Barouns autres Graunts que pour les ploite des besognes c. the Record is touching a speedy Supply to the King Here we see where the Bishops were concerned they were named which shews they were no more comprehended under Peers before than under the word Magnates in this Clause I could multiply Records to this purpose and am confident no clear Example can be given where they were necessarily comprehended after Counts and Barons The next Authority he quotes to weaken the Authority of those he calls Negative Precedents is the case of the Murther of Iohn Imperiall a publick Minister sent from Genoa This Case I conceive is not truly stated by the Author of the Letter and misapplied by the Grand Questionist The Point in question in the Record was what Offence the Murther of this publick Minister was which matter was referred to the Judges for their Advice who agreed that it was Treason within the Statute of 25 E. 3. This their Judgment was confirmed in Parliament whilst the Doubt was in Agitation among the Judges 't was not material who was there But after they had given their Sense what was meant by this Confirmation in Parliament is the next Question Whether more were meant than an approving of the Opinion given by the Judges by them drawn up in form and this may well be the meaning of that whole Proceeding which Practice is usual in our days but cannot be called a Judgment in Parliament tho it might be their Opinion But if you will rather believe it to be by Act of Parliament then must the Commons be Parties of whom we hear no mention nor any Statute to that purpose extant that I can find and in that Case the Bishops might have been present if they would and whether they were or not is not material Vid. Cot. 3. R. 2. N. 38. p. 183. Yea in Acts of Parliament when the Sentence comes to be given they are to withdraw as it was held by Mr. Edward Bagshaw a learned Reader of the middle Temple who for some Opinions by him held touching the Bishops was by the Power of Arch-bishop Laud suspended from proceeding in his reading Rushw. Hist. Coll. Tom. 2. p. 990. The next Precedent is in 5 E. 3. Which in conclusion will do him as little Service as the former The Author of the Letter pag. 7 8. tells us that that Parliament was summoned for redress of the Breach of the Law and the Peace of the Kingdom and the Record saith further that 't was to consult touching Lands in Guienne and the Marriage of the King in which the Bishops went away and returned no more I confess I know no reason but they might have staid it seems they thought otherwise being in all likelihood privy to some Actions to be treated there wherein Sentence of Blood might be pronounced But be their reason what you will their words are these Et pour ceo que avisefust a les dits Prelates qu'il nattient proprement a eux de Counseiller de la gard de la paix de chastiment de tels malvois s'allerent mesmes les Prelates Which words do not only import that they voluntarily went away but that it did properly behove them not to be present in such matters or to give Counsel for the Punishment of such Crimes The same word is used in 1 Hen. 4. Cot. p. 392. where the King by the mouth of the Arch-bishop of Canterbury declares that the Commons in that Case were only Petitioners and that all Judgments belonged to him and the Lords belonged that is the Commons had no Right thereto so here nattient proprement is that
properly they had no Right thereto That all Judgments belonged to the King and Lords is only an Affirmation of the Arch-bishop but binds not the Commons See Posthu Cottoni p. 350. For I think it very plain that anciently the Commons as well as the Lords had their share in Judicature I shall touch some Records which the Reader may consult at leisure Rot. claus 12. E. 2. m. 5. in the Case of Hugh Audley and his Wife Margaret the Relict of Pierce Gaveston they petition'd to be restored to certain Lands given to Pierce A nostre Signure le Roy son Consâ—…l Prelatez Countes Barons del ' sa terre the Petition was brought into full Parliament and debated habito diligeâ—…i tractatu in pleno Parliamento tam per Prâ—…latos quam per Comites Barones totam Communitatem Regni Concordaâ—… Consideratum 't was ordained considered and agreed per Praelatos Comites Barones totâ—…m Communitatem Regni that all the King's Grants to the said Pierce Peter and his Wife should be revoked and the Deeds cancelled Et quod istud Iudicrum intretur in Rot. Parliament in Cancellariâ—… exinde â—…iur in scaccarium ad utrumque Bancum to be enrolled Nothing can be plainer than that this was a Judgment and no Act of Parliament and that not concerning Blood the Prelates concurred and that probably both Houses sate and voted together as one Body I shall add one Record more in a Capital Case and that is entred Rot. Patent 3 E. 3. pars prima me 33. The Case of Adam Orleton or Tarlton Bishop of Hereford and after of Worcester This Bishop was about 17 E. 2. convicted of Treason before Sir Henry Staunton and other Justices In 1 E. 3. he petitions that the Process and Record in which there was Error might be brought into Parliament and examined and he restored to his Estate Praetextu hujus petitionis mandatum fuit by a Writ Galfrido de Scroop who had the Record quod venire faceret recordum processum praedicta quae sunt in custodiâ suâ in pleuo Parliamenio where after he had assigned several Errors the Record concludes Et quia videtur Dom. Regi praefatis comitibus Proceribus Concilio Dom. Regis toti Communitati Regni convocatis ad Parliamentum quod praedictum recordum processus omnino erronea sunt rationibus praedictis concessum est quod eadem recorda processus adnullentur c. This was clearly a Judgment in Parliament in which the Commons were certainly present and that it was not an Act appears plainly for the Record was certified and Errors assigned and 't is worth observation that he did not assign for Error that he was before convicted by a common Jury but admitted it legal Next I think the Prelates were not Parties to the Reversal of the Judgment given in 17 E. 2. for it is coram Praefatis comitibus Proceribus c. though they were at the recital of the Errors neither is it much material for they might very well be Parties to the Examination of a Judgment in a Capital Case for whether they concurred either in affirming or reversing the Record that made them no Parties to the first Judgment but is only a Concurrence in Opinion that what before had been done by others was well or ill done by them I could cite many other Records where the Commons were present in Parliamentary Judgments but let these suffice But this may seem too large a Digression since I was upon the consideration of 5 E. 3. in which I say Secondly It doth not appear that this was an Advice taken up by themselves for the words are not fust avise par eux or ils furent d'avis it was thought fit by themselves but are et pour ceo que avis feust a eux that is because Advice was given them by others to go away they absented themselves probably in Obedience to those Laws which forbad their Presence And they returned no more saith the Author of the Letter p. 8. and the Advice was given by the Lords Temporal only No saith the Grand Questionist p. 102. The Bishops and Proctors of the Clergy went only into another Room to consult therein which was usual in those times I do not at all doubt but the Members of Parliament have several Rooms to retire to upon occasion but that in this Case they did go apart to consult and give Advice in this Business seems very unreasonable for any one to believe because they had but immediately before declared that the Consideration of such matters properly belonged not to them to meddle with and accordingly withdrew certainly no considerate Man will think they went to consult about what they in the same Breath said belonged not to them Besides we see the return of the Lords and Commons without any mention of the Bishops and the Advice given by them by the mouth of Sir Henry Beamont their Speaker which Advice was afterwards put into a Law and then the Prelates might be present tho they were not at giving the Advice For the Record saith It was enacted by the King Bishops Lords and Commons which then became a Law to which the Prelates might justly give their Consent in their Legislative Capacity whatever it concerned Where note that Sir Robert Cotton translates Grands Commons I think with good reason though carp't at by Mr. Prin in the Margine for we heard nothing of them before and soon after we find them named and undoubtedly concerned in all Proceedings before See Matth. Paris p. 55. Magnates Grands comprehends Counts Barons Knights or any other considerable Person together with many others which would be endless to quote Having before shewed that what our Author calls negative Precedents were not simply so and that the Author of the Letter had great reason to believe them absent where they were not named and where the Laws forbad their Presence especially having on his side the Authorities of 4 E. 3. Numb 1. of 1 H. 4. Numb 80. where the Temporal Lords assume unto themselves the power of judging Peers which Opinion is also made good by the late Votes of the Lords in Parliament May 15 1679. By the Case of Dr. Leighton in the Star-Chamber 6 Car. 1. It is evident that the Prelates were not look'd upon in the same sort that the Temporal Peers were for the Information against him was for writing a scandalous Book against the King Queen Peers and Prelates where Peers and Prelates are contra-distinguished and not taken synonymously as may be gathered by the Sentence and being another Body were judged as Peers to one another not to the Temporal Lords I come now to the Consideration of what he saith pag. 90. he there alledges that many of those the Author of the Letter calls Negative Precedents if they prove any thing prove too much for some of them admit they were not present
in Convocation as I have sufficiently I hope made appear pag. 19 20 c. of this Discourse As also that they had the Appellation of Barons and Peers not that they really were so which must have enobled their Blood but in respect of their Tenure in Capite sicut Baroniam or per Servitium Baroniae and for the most part so called by themseves only Our Author's Suggestion p. 151. that they sit in Parliament in a double Capacity as it is new so is it not solid He saith when they sit in the House in a judicial way they sit only in the Capacity of Temporal Barons and that this appears by the Constitution of Clarendon where the King requires their Attendance as his Barons But that in their Legislative Way they have a farther Capacity as representing a third Estate in Parliament I say this Fancy is new for I do not believe any before him look'd upon them as representing a third Estate in Parliament and not representing it I know they have been said to sit in respect of their Possessions which are Temporal in their own nature but not so when given Deo Ecclesiae but that they sate in any other Quality than Spiritual Persons I never heard nor can conceive Methinks if they have a Capacity to sit in the Quality of Temporal Barons they should also have a Capacity to change their Spiritual Robes and put on Temporal The Constitutions of Clarendon he saith require their Attendance in Judicature as his Barons and from thence would infer they sit in the Quality of Temporal Barons But how doth this follow I hope they may sit as Spiritual Barons But when all is done this Allegation of his is not sincere for the words are Debent interesse judiciis curiae Regis sicut caeteri Barones or cum caeteris Baronibus that is to say 't is their Duty to be present in Trials in the King's Court with the other Barons or as the other Barons are there present which words are far from inferring that they sit there in the Quality of Temporal Barons no more than the Judges rather that they sit not as Barons at all but only amongst them who are so It is evident therefore that his first Argument drawn from the Constitutions of Clarendon is not solid His next Suggestion that they are a third Estate in Parliament if by Parliament he mean their Convention in Convocation from the issuing out of Writs to the Guardian of the Spiritualties in the Vacancy of the Episcopal See I shall not contend with him only I think it from hence plain that they have Right to sit as Members of the Convocation properly where with the rest of the Brethren they make up a third Estate in which Writs there is generally a Clause of Praemunientes added to shew that other Clerks are to be chosen to sit in Convocation for which reason the Guardians in their Vacancy have their Writs directed to them lest the Convocation should not be full Now how this can prove them a third Estate in the Lords House I should be glad this Author would instruct me so that his Conceit of their sitting there in a double Capacity is of no weight and all his Precedents cited to that purpose might have been spared which do not in the least measure prove that the Bishops sit in the Lords House as a third Estate because Clerks shall be chosen to sit in Convocation by Writs directed to the Guardians of the Spiritualties where there are no Bishops or when they are beyond Sea rather evinces the necessity of a Convocation to meet in Consultation as to Ecclesiastical Matters which are only proper for their Function Lastly Let it be observed that his Quotations out of the Author of the Letter pag. 93. as to Doctor Standish his Case are mistaken the Author's words are the Judges said The Lords Spiritual have no Place in Parliament by reason of their Spiritualties in which respect in truth their place is in Convocation but by reason of their Temporal Possessions that is holding their Tempoporal Possessions in nature of Baronies The Scope of that Book is to shew that a Parliament might be held without them who indeed were no Barons but had liberty to sit among them by an Indulgence in respect of their Possessions And at last I am perswaded our Author will hardly be bound by that Opinion for if that be true how can they sit there as a third Estate if their Right to sit there be only as Temporal Barons This Authority is only from Kelway 7 Hen. 8. 184. See the Case at large in Burnet Our Grand Questionist goes on and endeavours to prove and clear that intricate matter as it hath been made touching the Interest the Clergy then had in Parliaments as well as Convocations but chiefly to prove that all the Interest they had in Parliaments was not meerly upon the account of their Temporal Baronies which the Bishops and many of the Abbots then had this he saith is the great but common mistake of the Author of the Letter 'T is first to be observed that he hath not proved that to hold Land by Baron-Service and to be a Baron is all one which by me is left doubtful as appears by what is said in the first Chapter of this Treatise Neither see I any reason why tenere per Baroniam should make a Baron more than Tenere per Militare Servitium should make a Knight Secondly That what he now saith is only a Pursuit of his precedent Conceit that the Bishops sit in the Lord's House in a double Capacity because as he saith there is a Distinction made even in Parliament between the several Estates of the Clergy and Laity How far this is argumentative and how far his Precedents warrant what he affirms I shall examine by and by only in the mean time would desire him to tell me whether they could come to Parliament at all without first receiving the King's Writ and in the next place Whether the King 's Writ imply any other Capacity than as Spiritual Persons holding their Possessions per Servitium Baroniae and voting among the Lords in respect of their Lands which are in their own nature Temporal Estates in the Hands of Spiritual Persons but by their Dedication to God made spiritual also which is as much as can be drawn from what Mr. Selden saith in the place quoted by our Author pag. 151. That they met as Counsellors in the Saxon's time in their Wittena Gemot I will not deny but whether by virtue of any Writ Summons or rather by general Allowance as Counsellors or what other way he cannot prove Records there are none or very few and Historians give but a dark account of those Times and things then one but which way soever they then sate certainly by William I. their right of sitting was much altered the Frame of things being in some measure altered also in so much that they
bring in the Chancellour and Treasurer and such like Officers and that all Estates should enjoy their Liberties 15 E. 3. N. 6 7 8. Here was indeed a Matter concerning Trials of Noble-Men had under Consideration but never reduced to any Law as the Practice of subsequent Times and the late Bill of the Lords about Trials do enough manifest But doth it not appear by this Record that the Bishops were not reckoned Nobles of the Land when he finds the Chancellour and Treasurer and such like Officers attempted to be brought in at that time and so not to have had any Right before But saith our Author it after follows that they may not lose their Temporalities Lands Goods and Chattels Now none were capable to lose their Temporalities but Bishops therefore this Law must have respect to them as well as other Nobles of the Land The Answer to this is very easy that the Clergy who had then all Power did endeavour to bring in their Fellows the other great Officers who were almost all Church-men Simon Langham Arch-bishop of Canterbury was Chancellour William Molso Dean of St. Martins le Grand Receiver and Keeper of the Kings Treasure and Jewels with many others as you may find Baker p. 141. These had Temporalities to lose and such Officers the Church always hoped to have had of their own Tribe but as I said before of this Attempt came no other Effect than to shew their aspiring Thoughts And whatever Opinion the Author of the Iurisdiction of the House of Peers is of as to the Roll of 4 Edw. 3. I believe the Law at this day will not be so taken that a Chancellour being no Peer shall be so tried by reason of his Office I am sure my Lord Keeper Bridgman being no Peer never voted in the House of Lords and the present Lord Chancellour when he gives his Vote goes to his place as a Baron See Hakewell p. 114. Ancient Customs how these great Officers are placed in Parliament when they are Peers and when not and certainly if their placing be different their Trials ought to be so too Neither can it seem reasonable to any considerate Man that a Person though such an Officer should not be capacited to give his Vote as a Baron and yet by virtue of his Office should be tried by Noble-Men Therefore I must take leave to deny what he affirms that they are Peers by virtue of their Office or that they have Right to be present in Parliament in all Cases of Judicature so as to concur in Sentence with the Nobles of the Land as our Author affirms pag. 132. The King may make whom he pleases Chancellour and the Statute assigns his Place but he cannot vote there without the King's Letters Patents to that purpose as I conceive See Old Modus Hakewell p. 14. I have in the first Chapter of this Treatise spoken largely to that Point and shewed in what sense a Bishop may be called Peer of the Realm And pag. 90 and 91. have handled the matter of Proxies therefore may pass over the Case of Arch-bishop Arundel which our Author proposes pag. 128. To the Case of William de la Pool I have spoken before only shall here observe that the submitting his Cause to the King was no waver of his Peerage for the matter never came to any formal Issue consider thâ—… Case of Nicholas Segrave in 31 Edw. 1. Ridley p. 266. who being accused of many Crimes Segrave being summoned thereunto appears in full Parliament confesseth the Fact and submits to the King This was no Waver of any Legal Trial by his Peers nor any disrespect to the Lords who might otherwise have ordered the summoning a Jury to try the Fact but by the King's Pardon that labour was saved The like may be taken notice of in that famous Case between the Earl of Hereford and Essex against the Earl of Glovester and Hertford in 20 Edw. 1. Riley p. 74. Where upon a very long pleading the Case in effect proves to be but this The Earl of Hereford complains to the King of great Robberies Depredations and Murthers committed by the Earl of Glocester in his Lands in Brecknock after the King's Inhibition The King for Remedy of this appoints the Bishop of Ely William of Valence his Uncle Iohn Mettingham and Robert Hertford to hear the Complaints of the said Earl and also the Answer of the said Earl of Glocester and his Servants to the Complaint of the Earl of Hereford and to summon a Jury for the Trial of the same and also commanded Robert Tiptoft Iusticiario suo de Westwell to be there present and to summon the said Delinquents to be before the said Commissioners and that Enquiry should be made per Sacramentum tam Magnatnm quam aliorum proborum Hominum Legalium de partibus Walliae comitat Glocest. They that is the Magnates which it seems were Noble-Men excepted against the taking an Oath and said 't was unheard of and that they would do nothing sine consideratione Parium suorum The Jury give in their Verdict against Glocester the Parties all submit to the King who by the Advice of Arch-bishops Bishops Earls Barons and the rest of those who were of his Counsel declare that the Earl of Glocester had forfeited his Liberties c. The words are Videtur tam ipsi Dom. Regi quam caeteris Praelatis Magnatibus reliquis de Consilio ejus quoad Comitem Glocestriae quod Libertas sua praedicta viz. totum Regale in Terris suis praedictis de Mergannon cum pertinentiis pro se haeredibus suis foris facta est ratione delicti praedicti c. In this Record there are many things Observable First The Bishop of Ely here mentioned was not a Judg in this Case between the two Earls but joyned in Commission with others who were empowered to summon a Jury to enquire of the matter of Fact not to condemn either Party but was only in the nature of an Inquest or Grand-Jury in order to a Trial. 2. That Noble-Men Magnates such as refused to take an Oath were returned of the Jury 3. That the Verdict was given in to the Commissioners notwithstanding some of the Jury were not sworn 4. That the Jury was summoned out of several Counties viz. Glocestershire and Wales Lastly and that for which I have chiefly produced it that this Submission of both Parties to the King was no waver of their Peerage Neither doth it appear that this Award made by the King with the Consent of those Prelates Earls c. was made in Parliament tho it be inter Placita Parliamentaria but only by such private Counsellours as the King thought fit to make use of in that Affair That it was no Parliamentary Judgment is evident from these two Reasons First The putting themselves to the Reference of the King was no putting themselves upon any Trial by their Peers because that should have been done only
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
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
one nay some might have been obliged to attend upon one Cause of Summons exprest which were not upon another for if the King had an Occasion of transporting an Army beyond Sea in that case only they that held by the Service of going into forreign Parts together with such as were tied to general Service were obliged to attend and liable to pay Escuage upon their default to be taxed by them who were present according to the Obligation of their Tenure If the Tenure were to go into Scotland or Wales they could not by reason of their Tenure be compelled to go else-where whereas the Attendance at the King's Court ex more was what I take it lay upon every Tenant in Chief holding by Knights Service Ratione Tenurae and was not superseded by King Iohn's Charter but still they that were not present were concluded as to all Acts of the King's Court Baron either in Criminal or Civil Causes as much as in the Court-Baron of an Inferiour Lord the Suitors present may proceed to all Judgments within the Cognizance of their respective Courts where through the common neglect of the Suitors the Steward for the most part gives Judgment by himself Mr. W. who was the first Author of a Lawyer that ran Counter to me makes a distinction between a Parliament and a Curia Regis which I conceive to be without any difference in Relation to the several Powers of the Curia and the Great Council of the Nation except that 't was less in that which is now called the Parliament than 't was in the Curia for he says that to the Curia the Tenants were obliged to come Ratione Tenurae but to the other they could not come but ex Gratia Regis Upon which 't is further observable 1st That he yields that the Commons others beside the Tenants in Chief had as much right as the Tenants in Chief to come to the Parliament before the 49th Hen. 3. for he grants that they too came sometimes before that time ex Gratia 2dly Whereas he supposes that King Iohn's Charter of Resignation was void not being in Magno Concilio though 't was in Communi Concilio Faronum he assignes no reason in the World for it's being void for admit that to the Commune Concilium Faronum or Curia the Tenants in Capite came Ratione Tenurae and to the General Council of the Kingdom ex Gratia which he subjoyns as the Ground for avoiding that ignominious Resignation which he agrees with me contrary to Dr. Brady to have been made in the Curia Regis and not in the General Council of the Kingdom does it follow that because they had no Right to come to the General Council though they had to the Curia that therefore a Resignation in the Curia was not good nay does it not follow that because they had no Right to come to the General Council therefore the King might exercise his absolute Power in such a Counsel as he should think fit to call and might oblige the Nation in any Act of his done by such Advice or Consent Nay rather if there were a Counsel where they might ex 〈◊〉 be present which Mr. W. makes the same with Ratione Tenurae does it not follow that there would be less Obligation upon them from any Act done in the General Council of the Kingdom where they had no Right to be present and so no consent of theirs could be urged to inforce the Obligation than from the Determinations of that Counsel where they were necessary Members But Mr. W. his Grounds for his Belief that the Commons had no Right to come to the General Council of the Kingdom before the 49th of Hen. 3. are two 1st That in the 45th of Hen. 3. only three were ordered to be Representatives for every County the Year I take to have been mistaken by the Printer for the Settlement and Reformation of the Government which he mentions was in the 48th and that he means that Settlement and not one before in the 42d is evident by his citing Si videatur Communitati Praelatorum â—…ronum which is in the Record of the 48th and not in any of the 42d that I have seen But 't is evident by the Record that the three he mentions were assigned for the Electors of a standing Counsel to the King which was to act out of Parliament as well as in but with no Authority in Legislation besides admit that they were intrusted with all the Power of the Counties I cannot find any force in the Argument that because a Representative was then agreed on therefore they had no Right to come before that time in their own Persons But indeed in the 42d of that King there was a Representive of the Commons who were in those times accounted only the Citizens and Burgesses this was pur espargner les Costs des Communs to spare the Charges of the Commous which I use not to shew that all such came any otherwise than two for a place But that the settling a Representative is an Argument that before that time they came in greater Numbers 2dly His second Argument is the Authority of Pollidore Virgil which proves wholly against him for it says that the Populus rarely were consulted with before the time of Hen. I. Adeo ut ab Henrico primo id Institutum Iure Manasse diâ—…i possit Even he allows the Right of the Commons to be a constituent part of Parliament to have been an Institution or a settled Right long before the 49th of Hen. 3. no less than one hundred forty nine Years And in the Case of Godsoll and others against Sir Christopher Heydon my Lord Cook affirmed that he had seen a Record in the time of Hen. I. of the Commons Degrees and Seats in Parliament his words are these En Ancient temps tout le Parliament sea insimul le Separation fuit Par le desire del Commons mes â—…ent obstant ils font forsque un mese ieo aie veiw un Record 30 H. 1. de lour Degrees Seats That the Commons were Members of the General Councils of the Kingdom in the time of Hen. I I think is very plain when we find even at Synods Assemblies for Ecclesiastical Affairs Nobilitas Populusque minor and Laici tam divices quam mediocres But that they then had any Order and certain Seats there I cannot readily believe And indeed we find that in the Reign of King Stephen who immediately succeed Hen. I. 't is spoke of as customary for the Uulgus or Commons which were Infinita Multituto Plebis to come as Members of the Great Council and to intermix themselves with Men of the greatest Quality as 't is usual in Crouds Uulgo etiam confusè permixtum ut solct se ingerente 3dly Mr. W. his third Argument is that where a Record makes mention of Arch-bishops Bishops Abbots Priors
Kingdom 9 H. 3. 39 Years before the 49th of that King per Common assent tout de le Reaum and this in another Record is said to be Per le Roy Piers Commune de la terre And the Statute of Westminster the first eleven Years after 49. H. 3. was ordained per Passentments de Archievesques Evesques Abbies Priors Countees Barons Et tout la Comminalty de la terre illonques Summonees Now what Man of common Sense can believe that the Clerus Populus cotius Regni after the Comites Barones 5 Io. the Commune de la terre after the Peers 9. Hon. 3. and tout le Eomminalty de la terre after Countees and Barons 3 Edw. 1. were no more than the Prelates Earls and Barons indeed there being no Et between Baronum and Cleri 5 Io. were it not for other Records explanatory of the like there might be some Colour for Mr. Hunt's supposal that Eleri Populi were only comprehensive of the Orders foregoing and might be in the same sense with Communitas Archiepiscoporum Episcoporum Comitum Baronum But for the penning of Records both Mr. Hunt and Mr. W. know better than to think the Clerks in those times stuffed them with Tautologies Mr. Hunt's way of expressing the same Notion I shall soon consider more particularly But admit that my Interpretation of Records is generally erroneous yet 't is manifest that the Record which is cited and insisted on to warrant the contrary shews that there were other Persons at the General Council of the Kingdom besides Prelates Earls and Barons and that these were such as are now called Commons The Record was the form of Peace agreed on in the 48th Year of Hen. 3. it says Haec est forma Pacis a Domino Rege Domino Edwardo filio suo Praelatis Proceribus omnibus Communitate Regni Angliae communitèr concorditèr approbata c. Amongst other things 't was agreed ad Reformationem Statûs Regni Angliae that there should be chose in that Parliament three Men who should have Power from the King toname nine that should be the King 's standing Counsel and if any of the three displeased the Community of the Prelates and Barons or were by them thought unfitting for their Office Si videatur Communitati Praelatorum Baronum one or more should be placed in his or their Room per Concilium Communitatis Praelatorum Baronum and the Record concludes Haec autem ordinatio facta fuit apud London de Consensu Voluntate Praecepto Domini Regis necnon Praelatorum Baronum acetiam Communitatis tunc ibi presentium Upon this 't is observable 1. That et Communitas Regni in the beginning of the Record next after the Praelates and all the Peers must necessarily be the Commons of England nor can Et possibly be taken otherwise than as introductive of other Persons besides the Prelates and all the Peers before expresly mentioned for that the Record concludes as it were with an Intention of preventing all manner of expositive Cavils for having declared that the Ordinance then made was by the Consent Will and Authority of the King necnon and as well of the Prelates and Barons it adds Ac etiam Communitatis tune ibt presentium which must necessarily be and also of the Commons then and there present as well as the Prelates and Barons presentium being taking as relating to all that went before or and also of the Community of them that were then and there present that is all that were present were Parties to the Ordinance if the first then the Commens also were there by name if the second tho Communuas be not taken as an Appellative for the Commons of England yet that they were then and there present is as evident from the Record since it shews that others were present besides the King Prelates and all the Peers that those others were Parties to the Ordinance then made and as they could not possibly be of an higher Rank than what were before exprest but much less the same being so manifestly distinguished with an and also from what went before they must needs have been inferiour that is Commoners unless there was another Rank of Men that were neither Lords nor Commons but between both wherefore 't is a demonstration that there was then present and acting in a Legislative Capacity a Body of Commons over and above or distinct from the Prelates and all the Peers or Barons above mentioned 2. In this Parliament 48 H. 3. there was a particular matter referred by the King and that in a full Parliament of Prelates Peers or Barons and also the Commons to the Disposition and Management of the Prelates and Barons only and surely 't was no great thing for them to be empowered to remove or put in Electors of the King 's standing Counsel which was all that was referred to them without consulting the Commons upon every occasion But I cannot discern the least Consequence that because the word Communitas doth many times extend to the Prelates and Barons which as Mr. W. rightly observes it doth that therefore it must be limited to them and extend no further whatever words come between And I would thank him that should satisfy my reason how it is possible it should be confin'd to them when there comes and or and also to extend it farther If Mr. Hunt had observed how distinctly all the Orders of Parliament are mentioned in this Record viz. Praelati Proceres omnes Communitas Regni Angliae and again Praelati Barones ac etiam Communitas and had further observed how full and clear the Evidence is that all of them together referred or consented to the King 's referring the matter before taken notice of to the Earls and Barons only or to the Community or Generality of them from whom another Community the Communitas Regni Angliae then and there present was sufficiently distinguish'd in other parts of the Record and that that Affair was to be managed per Consilium Praelatorum Baronum he would never have insisted upon this as demonstration that Communitas Regni Angliae after Praelati Proceres omnes nay tho with an ac etiam has no other Sense than Commune Concilium Regni and was as a comprehensive Term of those that made it or was used exegetically as Mr. W. has it If it had been Praelati Proceres Commune Concilium Regni or Communitas Regni there because there is no discretive and or and also the latter might be comprehensive of the former But whatsoever may be said of the careless penning of Records or Histories anciently yet when there are numbers of Records or Histories expressing the Parties present at general Assemblies of the Kingdom some of the like penning with the aforesaid form of Peace 48 H. 3. some more express and particular if possible shall all the Clerks
of Parliament and learned Monks or other old Authors be taxed with heedless Impertinencies nay even want of understanding what they wrote Eadmerus who was a very corrrect Writer and lived in the time of which he wrote tells us that at one General Convention in the Reign of Hen. I. there were tota Nobilitas cum Populi numerositate at another tho it was held only for Ecclesistical Affairs there were Nobilitas Populusque minor The Election of King Stephen as a grave Prior of those Times tells us was a primoribus Regni cum favore Cleri Populi Clericorum Laicorum universitate In that King's Reign there was adunatum Concilium Cleri Populi a General Council of the Clergy and Laity together which now one would say were a Parliament and Convocation united the Members of this Council follow Episcoporum atque Abbatum Monachorum Clericorum Plâ—…bisque iufinita multitudo the Authority for this is a Legier Book of the Abby of Ely wrote as it should seem in the time of Hen. I. These kind of Books were generally kept with great Exactness and were in the nature of Records From the like Authority we have it that Archiepiscopi Episcopi Comites atque alij omnes were consenting to the Election of King Iohn But to mention a few undoubted Records to this purpose In the 15 th of King Iohn there were Precepts to all the Sheriffs of England to summon in every County Milites who were to come with Arms Barones without Arms and four Knights for every Shire quatuor discretos Milites de comitatu to a General Council at Oxford In the 38 th of Hen. III. besides the Tenants in Chief two legales discreti Milites were required to come for every County vice omutom singulorum to be chosen by the Milites alij de Comitatu And several Records before the 49th of H. 3. describing the Members of Parliaments mention besides the Clergy Comites Barones Milites liberi Homines some libere Tenentes others omnes de Regno Now can there be the least colour to believe that all these were no more than the Prelates and great Barons or only the greater and less Nobility holding in Chief whatever Dr. Brady or others may obtrude upon the World That the Commune Concilium Baronum may sometimes be used in the same sense with Commune Consilium Regni affords no help to Mr. Hunt because where the expressions are too lax and general Barones shall be taken in it's utmost extent and consequently shall comprehend ordinary Free-holders who were Nobiles Barones minores long before the 49th of Hen. 3. But the Question is Whether when Records or Histories make a Distinction between Barones and others coming after the Distinction can be thought to be without any manner of Difference and so vain and idle as that the Porulus minor or Populi numerositas after Nobilitas is a Term comprehensive of the Nobility before mentioned or when there were Primores Regni cum Clero Populo the chief of the Kingdom with all the Clergy and People the word People was but comprehensive of the Primores so that the Primores were there together with themselves But surely I need not run over all these Instances and many more produceable to convince even Dr. Brady Mr. Hunt and Mr. W. of the absurdity of interpreting Records after their manner But Mr. W. thinks to help out his Record by an Historian and cites the Additaments to Matthew Paris mentioning the Letter wrote to the Pope in the Case of Adomar de Valens which begins thus Communitas Procerum Magnatum aliorumque Regni Angliae and was subscribed by some Earls and great Men and Peter de Monteforti vice totius Communitatis this Mr. W. says was in the name of the whole Baronage not the House of Commons or Commonalty of England there being mention of the universitas Baronagij but not universitas Regni Popularis I take it to be manifest that all the Question which can arise upon these words is not as Mr. W. puts it whether Symon Montfort subscribed in the names of the Barons only or of the Commons only But whether some of the great Barons having set their hands themselves Montfort being the last Man that subscribed did not do it in the name of the rest of the Great Barons not subscribing and of the Commons too as part of the Baronage or Communitas of Earls Barons and others And I think nothing is more clear then that the Commons were part of the Community here intended Matthew Paris tells us that 't was ex parte Regni totius Angliae universitate and this he says was scriptum a Farnagio and that the Commons were part of the Kingdom at Parliaments and went under the Denomination of the Faronage at that very time is evident beyond Contradiction from Record for whereas the Title of the Writ expressing some Matters agreed upon between the King and his People in that very Parliament is pro Rege Faronagio Anâ—…liae the body of the Writ runs Rex omnibus c. cum pro negotiis nostris arduis Regnum nostrum tangentibus proceres Fideles Regni nostri ad nos London in Quindena Pasche prox praeterit faceremus convocari c. And another Record explains and reduces to a certainty the Proceres Fideles and the Faronage and calls them Hanshomes the high Men the Prelates and great Barons Prodes homes the Magnates and Grands of the Counties and the Commune de Reaum the Commons of the Cities and Boroughs and with this his own Instance out of Matthew Paris exactly agrees for there were the Comites and Proceres the great Barons the Magnates or Grands of the Counties and alij who must needs be the Commons of the Cities and Boroughs as they were distinguished from the Grands of the Counties even as late as the 27th E. 3. This may serve for a full and clear Answer to Dr. Brady's Exposition of the forementioned Letter whom both Mr. Hunt and Mr. W. may thank for misleading them in this Point and this sufficiently shews the Vanity and Falshood of the Doctor 's Assertion that the Commons as at this day known are not to be found amongst the Community of England in old Historians except he will place Matthew Paris amongst the Moderns This I think may suffice in answer to any thing wherein Mr. W. his Authority may be used against me I cannot be so short in my Observations upon Mr. Hunt because he aims many Blows at me in the dark and may be thought in many places to have wounded my Arguments or the Reputation of my Endeavours which he represents as impertinent or like a Contest de lanâ Caprinâ In opposition to my Notion of the Curia Regis he produces another
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
one another and through the Pride and Ambition of some who thought themselves above that Law And when the numbers of Frank-pledges had that happy Combination still been maintained would through the vast Multiplication of Proprietors have been too great to assemble together upon any Occasion requiring Counsel and serious Debates There is one Difficulty which arises upon the examining this point of Antiquity that is since we rarely meet with Authorities tho some there be which particularly describe such as Citizens and Burgesses as summoned to or present at the General Councils of the Kingdom What shall we think of them To which I am bold to say that even Citizens and Burgesses might have come under the Consideration of Free-holders inter liberos Regni tenentes or Barones Baronagium Barnagium or the like For either they were 1. Corporations by Charter Or 2. Corporations by Prescription And I think it will be probable at least that Property in Land the continuance of which in any Family made Nobility was the occasion of the Priviledges of them all And in such respect the Freemen there were numbred amongst the Nobles tho afterwards when Trade prevailed amongst them the Generality of them might be but quasi optimates and yet by Custom they obtained the name of Barones as in London Warwick the five Ports c. And probably upon the account of the first Erection But that I may not talk wholly at random I shall offer a Scheme of the ancient Polity in relation to them which at least will not be disproved For the first the Corporations by Charter they were of two kinds 1. Such as were incorporated by the King 2. Such as were incorporated by the Subject 1. Of those that were incorporated by the King there were Cities that is Boroughs which had a Bishop's See or else Boroughs only But the Episcopal See making the only difference they fall not here under any different Consideration I conceive that though to these at the time of the Incorporation the King granted several Franchises as Markets Fairs and the like Yet he gave no Right of sending Members to Parliament to them who had it not before but of them that were so incorporated some were Minores tenentes in Capite inferiour Tenants in Chief such as by King John's Charter were where not incorporated to be summoned in general to the Commune Concilium or Curia Regis Many of these for the sake of such Immunities as belonged to free Boroughs consented to be incorporated and thereupon they being one entire Body naturally fell into a Representation and answered together by their Head-boroughs or any other that they chose as one Tenant St. Albans I take it was of this kind the Burgesses of which pleaded that they held the said Vill of the King in Capite ipsi sicut caeteri Burgenses Regni ad Parliamenta Regis cum ea summoneri contigerit per duos comburgenses suos venire debeant prout totis retroactis temporibus venire consueverunt pro omnibus Servitus Regi faciendis quae quidem Servitia iidem Burgenses Antecessores sui Burgenses Villae praedictae tam tempore Domini Edwardi nuper Regis Angliae Patris Regis Progenitorum quam tempore Regis nunc semper ante instans Parliamentum ut pâ—…ittatur 〈◊〉 Nomina quorum Burgonsium sic praedictâ Villâ ad Parliamenta Regis veâ—…entium in rotulis Cancellariae semper irrotulata fuerunt I before had occasion to examine Dr. Brady's Interpretation of the Answer to the â—…ea here the Plea it self comes to be considered And whereas he renders pâ—…o oâ—…us Servitus in lieu of all Services I conceive the Sense to be no more than thus That they held of the King in Chief and that as other Burgesses of the Kingdom they were to be represented at the King's Parliaments when they happened to be summoned by two of their fellow-Burgesses as ever since they were incorporated they had used to come for the performing of any of their Services And that they had not forfeited their Charter nor ought their Corporation to be dissolved for that they had duly performed all their Services And for proof that to Parliament especially they had all along come by Representation they appeal to the Rolls of Chancery Certainly no Man before the Doctor thought that the coming to Parliament excused any Rent or other Service which was incumbent upon them But thus much is obvious from this that here were Minores Barones Tenants in Chief whose Tenure must have been created by Charter who were fallen into a Representation And that this was upon the account of Property in Land which occasioned their Services and their being united as one Tenant But besides these there were Tenants of Honours or Manors in the King's Hands or in the Subjects which were incorporated by the King's Charter and sent their Representatives to Parliament I shall instance only in a Corporation holding of a Subject but incorporated by the King's Charter King John by his Charter to William Brewer who in all likelihood was Lord of the Mannor of Brugwater or Bridgwater grants that Brugwater should be a free Burrough and that it should have Markets and Fairs And 26 of Edward the first when the first Roll of Burgesses begins we find Burgesses for Bridgwater entred amongst the rest And 't is observable that there is not to be found any Charter giving them the priviledg of sending Burgesses nor could such a Priviledg arise by Implication Wherefore they must necessarily have come upon the account of their Property in Land with no other Alteration than that their divided Interests were all conjoyn'd in one 2. But besides these there were some incorporated by Subjects Of those who incorporated them some had Regalia themselves as the Counts Palatine of Chester One of which Leofrick Brother to the Confessor in his life-time incorporated Coventry under the Prior and Monks of Chester Whereupon the Burghers of Coventry were represented in the General Councils of the Kingdom as one entire Body We find that it sent Burgesses to Parliament 26 Edw. 1. and from its first Corporation must needs have done so according to its Plea which was allowed 34 Edw. 1. For it pleads that it was neither Civitas Burgus nor Dominicum Regis That therefore it ought not to be taxt or taliated as such but was to be charged only when the whole County was charged or in the like Proportion and they pray that the Taxors and Collectors may not be suffered to distrain amongst them otherwise than it had been totis retroactis temporibus in all times past since they became one Body that is that ever since they were a Body they us'd not to be taxt as the King's Demesnes whether Cities Boroughs or Manors which might be out of Parliament and even when there was a Parliament they bore the heaviest Burthens But as the County as to the way
the Parliament till the 49th of H. 3. This I think may be enough to satisfy any reasonable Man that the Government was the same before the 49th of H. 3. that 't was after and that it had not its Rise from Rebellion nor yet from Conquest or Usurpation but from a Consent binding on both sides And thus I have shewn which Mr. Hunt does not that our Government exactly answers his Rule or Idea of a lawful Government which he says Is the Representative of the People in what they are to be governed by it and by their Consent to itâ—… in the first erecting thereof they do trust their Governours with the Rule and Order of their Lives and Estates c. But 2. He puts such Matter in Issue for asserting the present Government as can never be maintained That William the first made no Conquest of England and that the Interest of the Commons in Parliament did not begin by Rebellion in the 49th of H. 3. have been thought good Mediums to settle the Foundations of our Government Mr. Hunt indeed looks upon all Labours to this purpose as impertinent But this he says is certain That whatever thing of Government is introduced by the Consent of the Prince and that Aleration assented to and embraced avow'd and own'd by every Man of the Community by Actions and other open Declarations of a full consent and this continued for Centuries of Years and in all that time applauded and found agreeable to the Interest of the Prince and People and the old Government abolish'd and impracticable the very matter of it ceasing and it become a thing impossible as well as not desirable to restore it I say whatever Constitution is thus introduced and establish'd is as unmoveable as unalterable or no Government is as if it had been ever so Wherefore to shew that our Government was so introduced and establish'd that it ought not to be altered according to him we must prove every one of these following Particulars 1. That admitting a Conquest and that the Commons came into Parliament by rebelling against the Heir of the Conqueror yet theywere introduced by the legal Consent of the Prince 2. That this Constitution was assented to and embraced avowid and own'd by every Man in the Community by Actions and other open Declarations of a full Consent 3. That for Centuries of Years this has constantly been applauded and found agreeable to the Interest of Prince and People 4. That though there were a Conquest yet the Right of Conquest is abolished 5. That the exercise of a Government according to such a Right is become impracticable impossible and not desirable by any 6. That the very Matter of it ceases I may well without further inlarging conclude this Head with his own words If our Government must take its Fate upon such Issues as these I am sure we shall not long hold it 3dly But then he yields so much of the Fact put in Issue by me as sets aside the Foundation of his whole Post-script and yet admit he answers all Objections against his Post-script the Grounds which I go upon are of the most general Use. That there was an absolute Conquest of the Nation by William the first and that he admitted none to any Shares in the Government but such as derived their Interest from his Bounty is contended for by many Tanquam pro aris focis And tho the History of King William the first his entring upon the Government is very strong against them and may be the first thing considerable Yet from the supposition that the Tenants in Chief such as were the Suitors at the Curia made the Parliament where the absolute Government of the Nation was plac'd they very strongly may infer a Conquest Whereas the Proof of the difference of the Curia Regis and the Concilium Pambritannicum or Parliament shews that all the pretence of Conquest is out of doors and consequently the Government is such as now it is by free Consent on all sides not founded on Usurpation upon the Rights of any nor is there the least pretence of unsettling what as the great Fortescue observes has not chang'd with the People or Rulers Admit a Conquest and the Inheritance which every one claims in the Laws will be maintainable only as a naked Right and naked Rights are thin and metaphysical Notions which few are Masters or Judges of But Conquest or no Conquest a Government derived from the Pleasure of one or consented to by all are Questions which any ordinary Capacity is able to judg of when the Testimonies rely'd on by both sides are laid before them And though Matters depending upon Testimony are not capable of Demonstration so far as they depend upon that yet where Testimonies are made use of for the laying a Foundation upon which some Metaphysical Notions of Right are built it is possible to demonstrate that the Testimonies will not serve the purpose for which they are brought but are clearly on the otherside And it that be done it wholly silences the Dispute better than Mr. Hunt's Scheme of Probabilities or his Metaphysical nay or Physical Notions of the Right of Fatherhood If therefore it be shewn that there is not the least shadow for pretence of a Conquest or that only such as derived what they had from the Bounty of the Prince were interested in the Government and Legislature certainly the whole Frame of Consequences built upon such Supposition easily falls to the ground I appeal to the World Whether what Mr. Hunt thought fit to say for the preventing the World's being troubled with such impertinent Labours and to divert those that thus employ themselves to Undertakings more useful to the Publick can be of such a general Use and Satisfaction as the destroying those Foundations which are laid for a Government not known to our Laws nor own'd in our so well constituted and so ancient Frame the Admittance of which would root up the very Foundations He says our Government was always materially the same When according to him 't was neither materially nor formally the same it is now Whereas this Labour which he explodes shews that 't was always both materially and formally the same and therefore unalterable If there were a Conquest that Conquest establish'd a Government or it did not If it establish'd a Government then according to him no following Consent even of the Conqueror can divest him of any part of that Right which was given by the Conquest For upon the Bishops account he tells us They cannot be detruded from that Place they bear in the Constitution of the Government for that no Government can be legally or by any lawful Power changed but must remain for ever once establish'd and it can be no less than Treason of State to attempt a Change No Authority in the World is competent to make any Alteration If it be said This is contrary to the
taught no body nor learnt himself and certainly the Addition of Populus will do him little Service But this Author would be an excellent Man were he as good at proving as propounding Vide before p. 18. and after p. 129. Mortes truncationes melius ut videtur Ian. Angl. fa. nov pag. 209. 210. N. B. Nothing urged by Mr. Hurt p. 62. does prove that Meeting a Parliament but such a Council as was free for the King to call of such Persons as he pleased I am sure here are neither Abbots nor Commons summoned I presume this Author never read Fitz-Stephens whose words are considentibus not consulentibus Episcopis We have seen such a Concilium magnum at York called by King Charles the First Arguitur I conceive doth more properly â—…gnifie to induce or argue a thing to be so as well as to blame or accuse and is more properly applyed to Arguments or Disceptations Fitz. cap. 10. col 2. N. B. In those times Treason in common Speech was a general name for all Offences the King thought did ledere Majestatem regiam till afterward the matter was better explained in 25 E. 3. Vid. Jani Anglor facies nova p. 199. Fitz. cap. 10. co 1. These Milites I conceive might be such as held in Capite and were sometime called Baronets or Barones minores Curia Regis was here the Kings Council then summoned Manuum depressio I take to be Submission Gr. q. p. 39. Mat. Paris Anno 1213. pa. 240. Seld. Pr. Bar. cap. 4. pag. 10. Gr. q. p. 40. Cook 2 Inst. 631. Seld. ubi supra Gr. q. p. 42 Gr. q. p. 42. Ger. Dor. An. 1175. Legis vigorem habeat quicquid de consilio de consensu Magn. Reipubl communi sponsione authoritate Regis sive principis praecedente juste fuerit definitum approbatum vid Bracton lib. 1. cap. 1. Gr. q. p. 44. N. B. who were these others Gr. q. p. 47. Mr. Hunt tells you p. 87. that if this be a Law it is a Law only for that case 'T is true the Protestation as such was personal to them but the Canons I hope that put them upon a Non licet and de jure non possumus were not personal also for here is a Prohibition both by the Canon Common and Statute Law Gr. q. p. 49. Gr. q. p. 51 52 c. Gr. q. p. 68. Gr. q. p. 41. Gr. q. p. 53. Gr. q. p. 53. Gr. q. p. 54. 〈◊〉 E 4. 3â—… 23 H. 6. no. 41. inter Petit connâ—… and many others Co. 2 Inst. pag. 286. Iourn of Parl. pag. 258. and 267. Co. 2. Inst. pag. 586. Seld. Priv. Bar. p. 5. Hon. of Bishops p. 27. Els. Mod. p. 16. Seld. Pr. oâ—… Bar. p. 5. Petit's anc Rights p. 62. Prin's Calender p. 56. and 160. Coo. 4. Inst. cap. 1. p. 2. Vid. Rot. Claus. 12 E. 2. m. 5. dorso Audley's Case judic per Prelatos Comites Barones totam communitatem Regni yet no Act. Vid. hic p. 133. Vid. etiam Rot. Parl. 50. Ed. 3. n. 131. 189. Cottoni Posth f. 349. Eliz. Burgh's Case Seld. tit hon p. 689. Ger. Tilb. Fitz. Mat. Paris Whether this was meant of a Parliament or other Council not material to this point the Reason being the same as to meeting upon Summons to the one or t'other Hakewell pa. 18. 21 R. 2. memb 6. N. B. 'T is plain by Clergy here was more meant than the Bishops only for the Abbots were reckoned as part of the Clergy I suppose Gr. q. p. 57. Sir William Dromond 's Life of Iames the Fourth pag. 200. ult Edit in octavo Discourse pag. 20. Gr. q. p. 57. Gr. q. p. 58. See Sir Hen. Wotton's Interest of the Princes of Christend this Question touched upon Gr. q. p. 64. Spel. Coun. tom 2. p. 8. Con. Tol. 11 Can. 6. Lamb. Laws Edgar cap. 5. Gr. q. p. 67. See the Provisos in the Acts. 25 H. 8. cap. 21. Co. lib. 2. 32 b. Gr. q. p. 68. Gr. q. p. 57. Whitgift was then Arch-bishop Cambd. An. Anno 1586. and Baker 391. Rush. hist. Col. part p. 61. Baker pag. 446. Gr. q. p. 69. Rush. hist. Coll. part 2. pag. 56. Rush. com 2. App. p. 15. Gr. q. p. 32. Journ of Parl. pag. 258. Vid. Hakewell mod p. 84. Gr. q. p. 70. Quaere What that Word then meant Gr. q. p. 73. Gr. q. p. 74. Spel. Gloss. word Comes p. 140. 141. Gr. q. p. 74. Gr. q. p. 77. Lett. p. 55. Gr. q. p. 76. Pla. Parl. 33 Ed. 1. a This Consilium Regis I take to be that steddy Counsel that always attended the King at his Parliament though perhaps not always Members See Coo. 2. Rep. Arch. Cant. Case Divers Cases to that purpose Gr. q. p. 79. Gr. q. p. 88. Gr. q. p. 88. Gr. q. p. 94. See before p. 18. in the Edition in Quarto Pet. Bles. 〈◊〉 edit p. 551. col 1 2. in fol. Idem p. 552. col 2. Cot. p. 85. 5 E. 3. m. 33. Rot. Parl. 4. E. 3. n. 6. 5 E 3. ubi supra N. B. Cotton Abridg. Counts and Barons by Lords as 〈◊〉 often does Gr. Qu. p. 95. Gr. Qu. p. 89. Cot. p. 392. Rot. Claus. 1 E. 3. m. 13. pro Episc. Hereford Gr. Qu. p. 102. * N. B. The King 's going to the holy Land was then in debate touching which the Bishops might well consult Matth. Paris p. 55. Magnates comprehendit Comes Baro miles seu aliqua alia notabiles Persona Vid. Mr. Petyt p. 101 94 95. N. B. The Abridger often translates Counts and Barons in the Record by the name of Lords only because when the Bishops were meant Lords Spiritual or some word equivalent was expressed Rush. Hist. Col. part 2. p. 55. Gr. Qu. p. 90. N. B. Though there were no particular Impeachment against Weston and Gomenes by the Commons yet the general one being the delivering Forts and Castles was Treason at the Examination of which the Prelates ought to be absent Vid. Gr. Qu. p. 92. Gr. Qu. p. 90. Rot. Proces in Parl. Gr. Qu. p. 117. Gr. Qu. p. 95. See before p. 131. the Records there cited Matth. Paris Anno 1100. Rot. cl 3. E. 2. m. 16. in dorso 34 Edw. 1. Gr. Qu p. 100. See before p. 131. N. B. The Iudgment may well be given after the Parties are dead an hundred Examples may be given where their Bones have bin burned their Bodies hanged c. contrary to what Mr. Hunt thinks 2 H. 4. N. 30 4 Edw. 3. 5 H. 4. N. 12. to 17. Gr. Qu. p. 119. 2 H. 6. N. 9. Viz. The Fact was not by their Advice which they desired to have entred Gr. Qu. p. 121. Gr. Qu p. 151. Gr. Qu. p. 151. 7 H. 8. p. 184. Grand Quest. p. 260. Vid. Dier fol. 60. Cromp. Jurisd Courts p. 2. Grand Quest. p. 124. Stanf lib. 1. cap. 3. Cook 3d Instit. â—…ol 30. Seld. Priv. of Bar. p. 45. and others Gr. Q.