A LETTER OF A Gentleman to his Friend, Shewing that the BISHOPS Are not to be JUDGES IN PARLIAMENT IN CASES CAPITAL.

Printed in the Year, 1679.


SInce you desire that I would let you know my opinion whether or no the Bishops may be pre­sent and Vote Judicially in Capital Cases which come to be Judged in Parliament, either in giving the Judgment itself, or in resolving and determining of any circumstance pre­paratory and leading to that Judgment, I must tell you that this is now become Vexata Quaestio: The two Houses of Parliament having therein been of dif­ferent Opinions, the House of Peers declaring, that the Lords Spiritual have a right to stay and sit in Court, till the Court proceeds to the Vote of Guilty or Not Guilty, and the House of Com­mons on the other side insisting, That they ought not to have any Vote in [Page 2] the proceedings upon the Impeached Lords.

And this Difference between the Houses having been the unhappy oc­casion of Proroguing the Parliament, may seem to lay an obligation upon every good English man, (if to me your satisfaction were not in the case) as to wish and pray heartily, that these differences may be well composed, that no more Remora's may be to obstruct the proceedings of Parlia­ment, but that the two Houses may joyn with His Majesty to settle this distracted Kingdom, and agree upon, then apply, all necessary remedies (and strong ones they must be) for the prevention of those mischiefs, which the Enemies of the Protestant Religion and of this Government had been long Contriving and Plotting against us, and were now well nigh the atchieving and putting in Execution, if God of his infinite Mercy had not looked upon us, As this I say ought to be every mans wish and prayer, so it cannot but incite every man to satisfie himself [Page 3] and others, where the Right is, and what he ought to have in his wishes: for that Right may prevail, is the na­tural wish of every good man, but good men many times differ in their appre­hensions what is Right.

Therefore it deserves a strict inquiry into the Practice of the Parliaments of former times in such matters, and well to consider upon what ground the Prelates were prohibited having Votes there in Cases of Blood: For that is the Question now before us, What was done heretofore, and what is now to be done in Parliament, that is to say in their Judicial way upon Tryals, not in their Legislative capacity passing Acts of Attainder, in which I know that Bishops have born a part, but that is not now the question.

Nor do I meddle with the General Question, How far forth Clergy-men in Orders are forbidden having any thing to do with Secular matters: Nor what in that particular the Imperial Law requires, as that Rescript of the Emperours Honorius and Theodosius, [Page 4] which Enacts, That Clergy-men shall have no communion with publick Functions, or things appertaining to the Court; Or the Decree of Iustinian, That Bishops should not take upon them so much as the oversight of an Orphan, nor the Proving of Wills, say­ing it was a filthy thing crept in among them, which appertained to the Ma­ster of his Revenue: Nor what our Common Law of England seems to al­low or disallow, having provided a special Writ in the Register upon oc­casion of a Master of an Hospital, being it seems a Clergy-man, and chosen an Officer in a Mannor to which that Hos­pital did belong, saying it was Contra Legem & consuetudinem Regni, & non consonum, It was contrary to the Law and Custom of the Kingdom, and not agreeable to reason, That he who had Cure of Souls, and should spend his time in Prayer and Church-Duties should be made to attend upon Secular Employments. I meddle not neither with what seems to be the Di­vine Law, as having been the Practice of [Page 5] the Apostles, and by them declared to be grounded upon Reason, and to be but what in reason ought to be, which was this, That they should not leave the word of God and serve Tables, though that was a Church-Office: and yet they say, it is not reason we should do that, for their work was the Ministry of the Word and Prayer, much less then were they to be employed in Secular affairs.

None of this I say is my business, my task is only to inquire, what the Law of Parliament is in this particular, and what is so, is the Law of the Land. And my method shall be, to run through all the Parliaments that are up­on the Rolls in the Tower, and take notice of all the Tryals there Recor­ded, as well in Cases Capital as in those that were not so, and shew the diffe­rence in the Parliamentary proceedings upon them, how the Bishops and Pre­lates did commonly joyn with the Temporal Lords in Judging such as were not Capital (and not yet always so, when the Crimes were of a bigger [Page 6] magnitude) but never but once when the Accusation was for a Capital Crime, which was in the Duke of Suf­folks Case, 28. H. 6. when the whole proceeding was so irregular and Unpar­liamentary, as it is to be wondered at, but certainly never to be followed, it is like the Bird in the Poet, Rara avis in terris, nigroque simillima cygno, as shall be shewed more particularly, when I take it up in its Order, as it is men­tioned upon the Rolls. And so I come to my Narrative.

4. E. 3. Roger Mortimer Earl of March, Sir Simon Bereford, and others were Accused and Tryed in Parlia­ment: And the Roll of that Parlia­ment is so defaced, as it cannot be read; but 28. E. 3. Roger of Wigmore Cosin and Heir of that Earl of March de­sires that Attainder may be examined; and by the whole proceedings there re­peated, it appears, none of the Pre­lates were present, the words are Dont le dit Sr. le Roi vous charge Countes, Barons, les Piers de son Roialme, que de si come cestes cho­ses [Page 7] touchent principalement, a lui a vous & a tout le people de son Roi­alme que vous faciez au dit Roger droit & loial Iuggement come affi­ert a un tiel daver. Therefore our said Lord the King charges you, who are Earls, Barons the Peers of the Realm, that as these things chiefly con­cern him and you and all the people of the Kingdom, so you give upon the said Roger a right and legal Iudgment, as it belongs to such a one to have: Then follows Les queux Countes, Barons & Piers les articles par eux exami­nez revindrent, &c. Which Earls, Ba­rons and Peers, having examined the Articles returned, &c. And gave the Judgment, which was, that they should suffer death: The Bishops cannot be understood to be comprized here un­der the general name of Peers, since the Barons are first in rank, and be­sides they cannot pretend to be Peers of the Realm.

5. E. 3. The Parliament was declared to be called for the redress of the breach of the Laws and of the Peace of the [Page 8] Kingdom. Et pur ce que a vis feust a les ditz Prelatz quil ne attenoit pas proprement a eux de conseiler du garde de la pees, ne de chastie­ment des tielx malueis, si alexent mesmes les Prelatz, &c. And be­cause the Prelates were of opinion that it belonged not properly to them to give Counsel about keeping the Peace nor pu­nishing such evils, they went away by themselves, and they returned no more. Et les ditz Countes, Barones & au­tres Grantz per eux mesmes. And the said Earls, Barons and other great ones went by themselves, and these return, and by the mouth of the Lord Beau­mont declare their opinions, what was to be done, Commissioners to be ap­pointed in every County of the best men (des plus grantz) they to be Gardeins de mesme le Comte, Guar­dians or Conservators of the County. These Commissions afterwards brought into Parliament, were read and appro­ved by Nostre Sr. le Roi, les Coun­tes, Barons, & autres Grantz, our Lord the King, the Earls, Barons, and other [Page 9] great ones, no Bishops, so much as to hear the Commissions read, because they were to enquire into all Crimes, as well Capital as other, the Prelates must have no hand in it.

In the same Parliament Sir Iohn Grey and Sir Will de la Zouch had quarrelled in the Kings presence, Sir Iohn had mis mein au cotel laid his hand upon his Sword, they had been impri­soned, and the business brought into Parliament, Le Roi chargea de par la bouche le dit Mr. Geffrey le Scrope toutzles Countes, Barons & autre Grantz en les foies & ligean­ces queulx ils devoient au Roi de lui conseiller ce quil devoit faire de si grand excesse fait en sa presance. The King by the mouth of Sir Geffrey Scrope charged all the Earls, Barons, and other great ones in their Faith and Allegiance, which they ow him, to give him Counsel, what he ought to do upon such an exorbitancy committed in his presence; they go and consider of it, acquit Zouch, judge Grey to Prison: here were no Bishops neither, to Judge so much as of a Battery.

[Page 10]25. E. 3. The proceedings and Judg­ment of death against Sir Will. de Thorp Chief Justice, for Bribery, were brought into Parliament, which the King caused to be read Overtement devaut les Grantz de Parlement pur saver ent lour avys, & examine sur ceo ches­cun aprez autre si sembla a eux toutz, &c. To be read openly before the Grantz, the great men, of Parliament to have their advice upon it, and being all asked one after another, it seemed to them all, that they were very just, Et sur ceo il fut accorde par les Grantz de mesme le Parlement, que si nul autre tiel cas aveigne que nostre Sr. Le Roi preigne lui des Grantz que lui plairra, pur per lour bon a vis faire ceo que pleise a sa Roiale Seig­nurie, Vpon this it was agreed by those Grantz, those Great men, of the Parlia­ment, that if any such other case should hap­pen, our Lord the King might take any one of those Grantz those Great men, whom he should please, to do by their good ad­vice what he should think good. It can­not be understood any Bishops were [Page 11] here under the name of Grantz, and to be of the number of those whom the King should take to assist and advise him in such other Judgments of death for the time to come, if occasion were, which could be no employment for Bi­shops, being to give Judgments of death.

42. E. 3. Sir Iohn de Lee Steward of the Kings House charged with several misdemeanors, the Record saith, Et apres manger vindrent les Prelats, Dues, Countes, Barons, & ascuns des Cōes & illoeques feust fait venir Mr. Iohn de Lee, &c. And after they had eaten, the Prelats, Dukes, Earls, Barons and some of the Commons came, and Sir John de Lee was fetcht thither, &c. The business was there heard, and he was sent to prison. Here the Prelats were present, for the Crime was not Capital.

50. E. 3. Several persons are accu­sed even by the Commons for misde­meanors, and the Bishops present at their Trials and Judgments, as Richard Lyons, who had been Farmer of the Customs; the Lord Latimer, who was [Page 12] the Kings Chamberlain, for Oppressi­on in several places in Britain and in England, he was by the Bishops and Lords adjudged to be imprisoned, and put to Fine and Ransom; and then the Commons desired, he might lose all his Offices, and no longer be of the Kings Council, which the King granted. (Yet after this, 51. E. 3. at the request of the Commons themselves, he was restored to all, and declared innocent, which I take notice of by the way.) At this Parlament of 50. William Ellis of Yar­mouth, as privy and accessary to the misdemeanors of Lyons; Iohn Peach of London, for getting a Monopoly of sweet Wines; the Lord Iohn Nevil, a Privy Counsellor, for buying some debts due by the King at easie prizes, to make advantage to himself: At all these Trials the Bishops were pre­sent, and no body says but they might.

1. R. 2. William de Weston and Iohn de Gomenitz were tried for surrendring Towns and Castles in Flanders to the Kings Enemies; they had put in their [Page 13] Answers, Friday Nov. 22. Saturday they are brought to the Parlament, and Sir Richard le Scrope, Steward of the Kings House, A commandement de Seigneurs avant-ditz, By the command of the Lords aforesaid, told them, That the foresaid Lords, (and the Record tells you who those Lords were,) cest assavoir, to wit, the Duke of Lancaster, the Earls of Cambridge, March, Arundel, Warwick, Stafford, Suffolk, Salisbury and Northumberland, and the Lord Nevil, Lord Clifford, & plusours autres Seigneurs, Ba­rons & Bannerettes esteants au dit Parlement savoient assemblez & a­visez, Many other Lords, Barons and Bannerets being in the said Parliament had met and advised upon it, from the time they had put in their Answers, and found they were not satisfactory; and then gave sentence, saying, that those Lords had adjudged them to death: first Weston was called, and this said to him, and then Gomenitz: Here was none of the Prelats named, and it cannot be imagined they should be un­der [Page 14] the general expression & autres Seignieurs, Barons & Banneret­tes, And other Lords, Barons and Ban­nerets, after the naming of two Barons, for if there had been Bishops, they would have been named before them. Observe likewise, that no Bishops were present from the time that the Priso­ners Answers came in, to have Vote, and determine concerning any part of their Answer, Pardon or whatever they had pleaded.

In the same Parliament, and the ve­ry next thing upon the Roll is the Case of Alice Perrers, accused for breach of an Ordinance made 50 E. 3. against Womens medling with State Affairs, there the Record saith, that she was, Fait venir devant les Prelats & les Seignieurs du Parlement pour y respondre, Made to come before the Prelats and the Lords of the Parliament to make answer; and then follows, Et sur ceo par commandement des Prelats & Seignieurs le dit Mr. Ri­chard le Scrope, rehercea l'Ordo­nance, And then by the command of [Page 15] the Prelates and Lords, the said Sir Ri­chard le Scrope rehearsed the Ordinance. And then she was heard to the particu­lars with which she was charged, and at last was adjudged to be banished, and forfeit her Estate.

Observe in the Trial of Weston and Gomenitz, that only those Temporal Lords there named, had met and con­sidered of the Answers put in by them, as preparatory for the Trial and Judg­ment, and no Bishop present there: And here in the Trial of Alice Perrers, which followed immediately after, it is parti­cularly expressed, that they were pre­sent, and did Vote and Judge as far forth as the Lords Temporal.

3 R. 2. The two Merchants that had killed Iohn Imperial, a Publick Minister sent from Genoa, an Act of Parliament passed to make it Treason, the Bishops had no Vote in the passing of this Act; the Record saith, Fait a remembrer que cest darrein Ait issint faite si fust fait par les Iustices en presence du Roy, & des Seigneurs Temporelz en ce Parlement, Memorandum, that [Page 16] this last Act so made was drawn by the Iudges in the presence of the King and the Lords Temporal in this Parliament. They were not so much as present when the Judges were in the preparing of it.

4 R. 2. Sir Ralph de Ferrers arrested by the Duke of Lancaster upon suspicion of Treason, for holding intelligence with the French, brought into Parliament, and there tried; Semblast as Seigneurs du Parlement que le dit Mr. Rauf estoit innocent: It seemed to the Lords of the Parliament that Sir Ralph was in­nocent. Can any man think the Bishops were there, and comprised under the ge­neral expression of les Seigneurs du Parlement? When they were present, it is always particularly expressed, as in Alice Perrers Case, 1 R. 2. and all those questioned and punished for misdemea­nors 50 E. 3. the Lord Latimer and Ly­osn, &c. Alice Perrers was Fait venir devant les Prelats & Seigneurs du Parlement, was made to come before the Prelates and Lords of Parliament; They were Judged by the Bishops and Lords, the Record saith.

[Page 17]7 R. 2. The Bishop of Norwich, who had undertaken an expedition into France and not performed the condi­tions, was charged with several miscarri­ages and misdemeanours in his employ­ment, and one crime capital, which was betraying Graveling to the French for 10000 Franks in Gold, of which yet he cleared himself: Yet that being in for one of his charges, none of the Bishops were present at his Trial, but Michael de la Pool gave this Judgment at the last, Le Roi nostre Sr. a bien entendu ce que vous a vez dit, & ent a eu bone deliberation avec les Srs. Temporalz & semble au Roi & as Srs. Temporalz avant-ditz, que vos responses ne sont rien a propos, Parquoy del assent des Countes, Barons & autres Srs. Temporelz en cest Parlement est assentuz & accordez que vous soiez en la merci le Roy, & mis a fin & a raunceon, Our Lord the King hath well heard what you have said, and hath with his Lords Temporal well considered of it, and it seems to him, and to the [Page 18] Lords Temporal aforesaid, that your an­swers are nothing to the purpose, There­fore by the consent of the Earls, Barons, and other Lords Temporal in this Par­lement, it is agreed that you shall be at the Kings mercy, and put to fine and ran­som.

The Chancellor likewise gave judg­ment in the same way that Parliament on Sir William de Elmham, Sir Thomas Trivet, and others for giving up Holds and Fortresses, and taking money for them.

10 R. 2. Michael de la Pool Lord Chancellor was accused by the Com­mons for several misdemeanors devant le Roi, Prelatz & Seigneurs, Before the King, Prelates, and Lords. Here the Prelates are Judges of misdemeanors together with the other Lords.

11. R. 2. The five Lords Appellants, the Duke of Gloucester, Earls of Derby, Arundel, Worcester, and Earl Marshal making their Protestations, that what they attempted touching their Ap­peals was for the honour of God, safe­ty of the King, the Realm, and their [Page 19] own Lives, The Archbishop of Can­terbury for himself and the whole Clergy of his Province entred a Pro­testation, and the Bishops of Durham and Carlisle did the like; That they absented themselves from Parliament, in regard such matters were to be there agitated, but with a Salvo to their right: Which some will have to be understood of a right to be present even when those matters were in agi­tation, and that it was only upon some prudential consideration that they did withdraw: But this could no ways be their meaning, but they protested their having a right to sit and Vote in Parliament upon all other occasions in the general, Though upon that oc­casion they might not be present. The words of their Protestation make it evident: Nos Willielmus Cant. Archi-Episcopus pro nobis & suffra­ganeis Coepiscopis, &c. protesta­mur quod intendimus & intendi volumus in hoc presenti Parle­mento & aliis interesse, consulere, tractare, statuere, & definire, &c. [Page 20] ac cetera exercere cum ceteris jus interessendi habentibus in omnibus in eisdem statu & ordine nostro sem­per salvis: Uerum quia in pre­senti Parliamento agitur de non­nullis materiis in quibus non licet nobis alicui eorum juxta sacrorum Canonum instituta quomodolibet personaliter interesse, eo propter potestamur quod non intendimus nec volumus sicuti de Iure non possumus nec debemus, dum de hujusmodi materiis agitur vel agetur quomodolibet interesse, sed nos penitus absentare, &c. We Wil­liam Archbishop of Canterbury for our selves, our Suffragans and fellow Bishops protest, that we do intend, and will be thought so to do, to be present in this and other Parliaments to consult, treat of, and determine, &c. and do other things together with others, who have right to be here, in all matters, our state and order always saved unto us entire in the same. But because in this Parliament some matters will be agitated, at any one of which by the institutions of the holy [Page 21] Canon Law we cannot be personally present, we do therefore protest, that we intend not, nor will not, as by the Law we ought not, nor can we in in any sort be present, whilst any of those matters are in debate, or com­ing into debate: but we will absent our selves altogether, &c. It is plain by the Re­cord, that what they will have to be Sal­vum to them is their sitting and acting consulere, & tractare, & statuere, To consult, treat of, and determine in that and all other Parliaments, when such matters are not in question: But for such matters they say, Non licet ali­cui eorum personaliter interesse, And de jure non possumus nec de­bemus interesse▪ It is not lawful to be present in person at any of them, and rightly we cannot, nor ought not to be present. Can it then be thought they should lay claim to any right, to what they say Non licet de jure non possu­mus nec debemus, It is not lawful, and by right we cannot, nor ought not? And to say, their meaning was, that by the Law of the Land or Custom of Parliament they might, and that it was [Page 22] only the Canon Law which hindred them, can have little colour, for the Canon Law was to them above all Laws, and what was forbidden by that Law they could not have a thought, that it could in any sort be lawful for them to challenge, as their right, upon any account.

It is further observable here, that they profess Quod de jure non pos­sumus nec debemus, dum de hu­jusmodi materiis agitur vel agetur quomodolibet interesse, that is, all the time that such matters are in agitati­on; there is no exception of Prelimina­ries, and Preparatories, and of being present and having vote during all the debate, till the pronouncing of Sen­tence, for it is Dum de hujusmodi materiis agitur vel agetur, the whole time from the beginning to the ending, and when such businesses are to come on, that is, when they are going upon them, and when they begin. And then consider the close of this Record, Quelle Protestation leve en plein Parlement, al instance & [Page 23] priere du dit Ercevesque & les au­tres Prelatz susditz, est enrolle, ycy en Rolle du Parlement per com­mandement du Roy, & assent des Seigneurs Temporelz & Comu­nes, Which Protestation being read in full Parliament, at the instant desire of the Archbishop and other the Prelates aforesaid, is entred upon the Parliament Roll, by the Kings command, with the assent of the Lords Temporal and Com­mons. Which is all the formality of passing Laws in Parliament, that was used in those times, Which was only to have it entred in the Roll or Journal Book, that such a thing was agreed upon by the King and the two Houses, then it was drawn into the form of a Law afterwards by the Justices and Kings Council, when the Parliament was risen. So as whatever was the Law before, if it were only the Ca­non Law, it is now come to be the Law and rule of Parliament, and the Law of the Land; but in truth it was so before, and was always so.

[Page 24]20. R. 2. Thomas Haxey Clerk had preferred a Bill in the House of Com­mons for regulating the outragious ex­pences of the Kings House, particu­larly of Bishops and Ladies, De la multitude d' Evesques & lour meignee & aussi de plusours Dames & lour meignee qui de­meurnt en l hostel du Roy, & sont a ses coustages, Of the many Bishops, and their company, and also of many Ladies and their company, that live in the Kings House, and at his charge. The King being exceedingly moved at this, some Bishops and Lords were sent to the Commons to let them know it, and to enquire who had made that com­plaint; the Commons delivered the Bill, and his name who had exhibited it. Haxey was for this tried and adjudged a Traitor, and condemned to death for it. Which Judgment by the way was most unjust, and would not only have shaken, but wholly destroyed the very foundation of Parliament, deterring all men from representing there, and seeking redress of any [Page 25] grievance publick or private, had it continued in force and unquestioned, but 1. H. 4. it was complained of as erroneous and Encontre droit, & la course qui avoit este devant en Par­lementz, Against right, and the course of Parliaments; and therefore Nostre Sr. le Roi del a viz, & assent de toutz les Srs. Spirituelx & Temporelx ad ordeignez & adjuggez, que le dit Iuggement soit du tout cassez, re­versez, repellez, adnullez & tenuz de nul force n'effect, Our Lord the King by the advice and consent of all the Lords Spiritual and Temporal hath ordained and adjudged that the said Iudgment be wholly quashed, reversed, repealed, made null, and held to be of no force nor effect. So this Judgment is damned with Bell, Book and Candle (one may say) and at this the Lords Spiritual were pre­sent, and had vote, but not at the trial and condemnation of Haxey, as appears by the Record, which saith, Fait a re­membrer que mosquerdi aprez la Chandelure maintenant aprez le Iu­gement rendu devers Thomas Haxey [Page 26] Clere [...] (que) fust ajuggez eu Parlement a la mort come Traitour vindrent devant le Roy en Parlement ovek grand humilite l' Ercevesque de Cantirbirs & toutz les autres Pre­iatz▪ & luy prierent de sa grace avoir pitie & merci du dit Thomas & de re­mitter l' execution, Memorandum, that the Wednesday after Candlemas day immediately after that Iudgment was gi­ven upon Thomas Haxey Clerk, who was in Parliament judged to die as a Traitor, the Archbishop of Canterbury and all the other Prelates came with great humility before the King in the Parlia­ment, and besought his Grace to have pity and compassion on the said Thomas, and to remit his execution, which the King granted. So we see, that after the Judgment given in Parliament, the Bishops immediately came into the Parliament, to beg for his pardon, which shews they were not there before.

21. R. 2. The Commons impeached Thomas Arundel Archbishop of Canter­bury of high Treason, and desired he [Page 27] should be put into safe custody; it was answered, that because it touched si haut personne, so high a person, the King would be advised. Afterwards they come and pray that Judgment may be given according to their Impeach­ment and accusation of him, Sur quoy nostre dit Sr. le Roy, & toutz le Srs. Temporelz, & Mr. Thomas le Percy eiant poair sufficient de les Prelatz & Clergie du Roialme d' Engleterre come piert de record en le dit Par­lement adjuggerent & declarerent cest Article conuz per le dit Erce­vesque pur Traison, & le dit Erce­vesque pur Traitour, & sur ce est agarde quil soit banni & ses Tem­poraltees seisis en main le Roy, Whereupon our said Lord the King, and all the Temporal Lords, and Sir Thomas le Percy being sufficiently empowered from the Prelates and Clergy of the King­dom of England as appears upon Record in Parliament, judged and declared this Article acknowledged by the said Arch­bishop to be Treason, and the said Arch­bishop to be a Traitor, and thereupon [Page 28] awarded him to be banished and his Temporalties to be seised into the Kings hands: Here the Bishops were not present in person, but Sir Thomas le Percy, as their Procurator and Proctor authorised by them, may be said to represent them; and so he did, but yet it shews that the Bishops as Bishops and Clergy men could not be there in their persons, and that rather than they should be there present such an unusual thing should be admitted, as that one Layman, who else was no Peer nor had place in the House of Peers to vote there, should be chosen by them, to have all their Proxies put together and united in him; to be disposed of by him as he should think good. For it was never done, but in this one Parliament, there never was in no Parliament before or after such a Procuratorship or Proxy given. And in this Parliament of 21. R. 2. it was thrice done, first here to Sir Thomas Percy, then the Parliament being ad­journed to Shrewsbury, it was there given, it seems by vote only, to Willi­am [Page 29] le Scrope Earl of Wilts, for the words are Sur ce les ditz Prelatz & Clergie nomerent & ordenerent en Parlement per bouche William le Scrope Conte de Wilts, commettant & donant a luy pleine poair aussi avant & en manere come feust comys a Mr. Thomas le Percy per devant, Hereupon the said Prelates and Clergy named and appointed in Parliament by word of mouth William le Scrope Earl of Wilts, and gave him the same power, as full and in the same manner, as before had been granted unto Sir Thomas le Percy. Now, Percy had it by Commissi­on enrolled; which happily was to make it more authentick, because he was but a Commoner. The third time it was done, was in the business between the two Dukes of Hereford and Norfolk, when by this Parliament sitting then at Shrewsbury, that whole matter was referred to the King, to be by him determined by the advice of certain Lords and Commoners there named, and to them were joyned the Earls of Worcester and Wilts Procura­tors [Page 30] for the Clergy. This I must say argues a great unanimity in the voting of the Prelates, which it seems hath ever been, but I must say it was most Unparliamentary, never practiced, but in that one Parliament of the 21. R. 2. which whole Parliament is repealed, and all it did Nulled, and made Void by Act of Parliament 1. H. 4. so as it can­not be urged as a Precedent to infer any thing upon it, nor can it make any thing to prove a right in the Bishops of being personally present in matters of that nature, but rather in my opinion strongly the contrary: And one thing more would be observed, which is, that it seems by the Record, that the whole Clergy of England joyned in making this Proctor, and not only the Prelates, who were Members of the House of Peers, which seems very strange. But more than all this, what­ever was done this Parliament signifies nothing, the whole Parliament stands repealed by 1. H. 4. and all done in it declared Null and Void.

1. H. 4. The Commons had desired [Page 31] that Sir William Rikhill, (who had been a Judge in the Common Pleas, and had been sent by R. 2. to Calais to take the Confession of the Duke of Glo­cester, who soon after was there mur­thered) might be put to answer upon what account he did it: He was under arrest for it; and was brought into Parliament before the King and the two Houses, the Lords Spiritual and Temporal, and the Commons then assembled together: The whole mat­ter was examined, the conclusion was, saith the Record, Sur ceo chascun Sr Temporel esteant en plein Par­lement examine severalment sur la response du dit William, dit quil avoit fait loyalnent & quil ny avoit en luy aucun coupe, Hereupon every Lord Temporal being in full Parliament severally asked concerning the answer of the said William, said he had carried himself Loyally, and that he had commit­ted no fault. There was no charge, no impeachment against him, so the Bishops might be, and were present at his ex­amination, as the Commons also were, [Page 32] but they must have no hand in giving any Judgment upon it, because it might have been a preparatory to an Accusation and an Impeachment, if he had not given so good satisfaction, as it seems he did in the account he gave of his employment.

That Parliament Iohn Hall a Servant of the Duke of Norfolk's, who had helped to murther the Duke of Glo­cester at Calais was tried before the King and the Lords Temporal: The Record saith, Il sembla au Roy & a toutz les Srs. Temporels quil avoit deservi davoir si dure mort come la Ley luy pourroit donner, Et sur ceo toutz les Srs. Temporelz per assent du Roy adjuggerent quil seroit treinez del Tower-hill jusques a les fourkes de Tyburn, &c. It seemed to the King and to all the Temporal Lords that he deserved as cruel a death as the Law could inflict: And hereupon all the Temporal Lords with the assent of the King gave Iudgment that he should be drawn from Tower-hill to the Gallows at Tyburn, &c. there to be hanged, &c.

[Page 33]2 H 4. The first Writ de Haeretico com­burendo was agreed upon only by the Lords Temporal, it was in the Case of William Santre, (our St. Stephen, the Pro­tomartyr of England,) the Record is, Item cest Mesquerdy un Brief fust fait as Meir & Uiscountz de Londres per advis des Srs. Temporelx en Parlement de faire execution de William Sautre, Item this Wednesday a Writ was framed, by the advice of the Lords Temporal in Parliament, directed to the Mayor and Sheriffs of London for the execution of William Sautre. I doubt not but the Bishops and Cler­gy of those times were the chief pro­moters of this, though not appearing to be Actors in it: Which yet would not have been a direct condemnation of him, as his Judges, nor any thing to be determined by them tending to his conviction, but only an advice gi­ven to the King to make it his Act under the Broad Seal to order his exe­cution; yet they then were not to have a hand even in a matter of this nature.

[Page 34]The same Parliament the Earls of Kent, Huntington, and Salisbury, the Lord le Despencer, and Sir Ralph Lum­ley, who for levying War against the King had been taken and executed, were by the Lords Temporal declared and adjudged Traitors, and their Estates to be forfeited, the names of the Lords that made this Declaration, and gave this Judgment are there set down, the Prince of Wales the first, and the Lord le Scroope the last, five and twen­ty in all; Not a Bishop amongst them, so much as to declare and judge it a Treason, though the persons who had committed it were dead before: So as it seems they must not have a hand neither in the Antecedent, what is Preliminary and Preparatory to the death of a Man, nor in the Consequent, what is to be done after, so far from being the Judges to try or condemn him.

5. H. 4. The Earl of Northumberland had Petitioned the King for his Par­don for having, contrary to his Alle­giance, gathered Forces, and given Liveries: The King gave this Petiti­on [Page 35] to the Judges, to have their opi­nion of it; the Lords Protested against it, and said, that the Judgment be­longed to them, and retained the bu­siness, Et puis leve & entendue la Petition les Srs. come Piers du Parlement, a queux tielz Iuge­ment. apperteinnent de droit, ad­juggerent, que ceo que fust fait per le Conte nestoit pas trahison mes trespas tant seulement. Sur quoy le dit Conte molt humblement re­mercia le Roy & les ditz Srs. ses Piers de lour droiturel Iugement. And then the Petition being read and understood, the Lords as Peers of Par­liament, to whom such Iudgments do of right appertain, did give their Iudg­ment, that what the Earl had done, was no Treason, but only a Trespass, where­upon the said Earl did most humbly thank the King and the said Lords his Peers for their righteous Iudgment. Now the Bishops could not be said to be his Peers, which shews they were not there.

[Page 36]7 H. 4. A Judgment was given much like to that in the 2 H. 4. The King commanded the Lords Temporal to deliver their advice concerning the Earl of Northumberland and the Lord Bardolph, who had been killed at Bramham More in Yorkshire by the Sheriff of the County, who therewith the Posse Comitatus encountred them in the field; There were proceedings against them in the Court of Chivalry after their deaths, upon certain Arti­cles of Treason there exhibited against them. These Articles were brought in­to Parliament, upon reading of which those Lords Temporal adjudged their Crime to be Treason.

5 H. 5. The Commons, Baillerent une Petition, delivered a Petition, directed Al honorable Prince le Duc de Bedford Gardein d' Engleterre, & as tres sages Srs. de cest present Parlement, To the honourable Prince the Duke of Bedford Gardian of Eng­land, and to the most wise Lords of this present Parliament, that Sir Iohn Old­castle might be brought before them, [Page 37] who was indicted and outlawed in the Kings Bench for Treason, and excom­municated by the Archbishop of Can­terbury for Heresie; and that due exe­cution might be done upon him ac­cording to their discretion by autho­rity of Parliament. Pur quoy agar­de est per les Srs. avant ditz del assent de le dit Gardein & a la priere susdit, que le dit John come Traitor au Roy & a son Royalme so it ames­nez a la Tour de Londres & dillo­eques soit treinez parmi la cite de Londres as novelles Fourches en la paroche de St. Giles & illoeques soit penduz & ars pendant, Wherefore it is adjudged by the Lords aforesaid, with the assent of the said Gardian upon the foresaid Request, that the said John, as a Traitor to the King and his Realm, be carried to the Tower of London, and thence drawn through the City of Lon­don to the new Gallows in St. Giles Pa­rish, and there to be hanged, and burnt hanging. The question is now, if it shall be understood, that under the general expression of Les Srs. de cest [Page 38] present Parlement the Bishops were comprized; and so to have been par­ties in this Judgment, and I conceive not, first, because I observe that gene­rally throughout all the Records and Journals of Parliament almost in all transactions, but especially and con­stantly I find it so in matters of Judi­cature, where they were present, it is always mentioned and expressed so, at That the Lords Spiritual and Temporal, or That the Prelats, and Earls, and Ba­rons did so and so, as it was in the Cases before mention ed of Sir Iohn Lee, Richard Lyons, the Lord Latimer, and the rest, accused of misdemea­nours; And my other reason is, that in this particular Case of Sir Iohn Old­castle I find the Clergy had done their parts with him before, declaring him an Heretick, and turning him over to the Secular power, as the words of the Excommunication run, where after having expressed a great tenderness of the desperate condition of his Soul, and much bewailed his obdurateness, they do condemn him for a Heretick, [Page 39] Relinquentes eum ex nunc tan­quam Hereticum Iudicio Seculari, Leaving him from thence forward as an Heretick to the Secular Iudgment. So certainly those good men, I mean those Popish Bishops, would have no more to do with him as to his farther Exe­cution, that the world might see they were not Men of bloud.

2. H. 6. Sir Iohn Mortimer had been committed to the Tower upon suspici­on of Treason against Henry the Fifth, and made an escape out of prison, be­ing taken again he was indicted of Treason at Guild-Hall: The Indict­ment by the Kings command was re­turned into Chancery, then brought into Parliament by the Bishop of Durham Lord Chancellour, and by him, Coram Humfrido Duce Gloucestriae (who in the Kings absence was commissionated to call and hold that Parliament) ac aliis Dominis Tempora­libus in eodem Parliamento tune existen­tibus fuit liberatum, Was delivered to Humfry Duke of Glocester, and other the Lords Temporal being then in [Page 40] Parliament to be by them affirmed, as it was, and Sir Iohn Mortimer then brought before them, and adjudged by them to be drawn, hanged, and quartered: Et super hoc viso & ple­nius intellecto Indictamento per dictum Ducem de avisamento dicto­rum Dominorum Temporalium, ac ad requisitionem totius Commu­nitatis in presenti Parliamento existentium auctoritate istius Par­liamenti ordinatum est & statu­tum, &c. quod ipse usque ad Tur­rim ducatur, &c. And hereupon the said Indictment being seen and well un­derstood, it was by the said Duke, by the advice of the said Lords Temporal, at the prayer of the whole Commonalty in this present Parliament, and by the Authority thereof Ordered and Decreed, &c. that he should be led to the Tower, and from thence drawn to Tyburn, and there exe­cuted. We see here the Bishops did not offer to advise so much as concern­ing the Indictment, if it should be ad­mitted of and received by the Parlia­ment, though a Bishop, being Lord [Page 41] Chancellor was by vertue of his Office to bring it out of the Chancery, and present it to the House, as he did, and there left it.

28 H. 6. is the sole single President of Bishops being present, and not only so, but acting and bearing a principal part in a Judicial proceeding in Parlia­ment in a Case that was in it self Capi­tal, though strangely shuffled off, and Justice wholly eluded.

Ianuary 22. William de la Pole Duke of Suffolk preferred a Petition to the King, complaining how he was defamed, as if he were other than a true man to the King and the Realm, and desiring that any man would say wherein, that he might give his Answer there­unto. Munday 26. the Commons sent some of their Fellows to the Chan­cellour, who was Archbishop of York and a Cardinal, praying him, that whereas the Duke of Suffolk had that same day in his own declaration confes­sed, that there was a very heavy rumour and noise of infamy upon him, he would let the King know it, that he might be [Page 42] committed to ward after the course of Law in eschewing of inconveniencies that may sue thereupon hereafter (they are the words of the Record.) The next day Tuesday, the Chancellour ac­quainted the King and the Lords with it, and asked the Lords what should be done upon the Commons request. The Judges were asked what the Law was in this matter; the Chief Justice answered for the rest, that in these ge­neral Terms of Slander and Infamy many things may be understood which deserve not imprisonment, but he de­sired more time to consider of it with his Fellows: The Lords staid not for their return, but all of them from the lowest to the highest were of one opi­nioa, that he should not be committed to ward till the Specialty of the mat­ter were declared. Wednesday the 28. the Chancellour and other Lords were sent down by the Kings commandment to the House of Commons, and the Speaker declared unto them, That seeing special matter was required, they had daily information from se­veral [Page 43] parts of England, that the Realm was sold to the Kings Adversary of France by the Duke of Suffolk, and that he had fortified Wallingford Castle to be a place of refuge unto them, and this the Commons do think is special matter of suspicion of Treason laid to his charge, for which he ought to be committed, and therefore it was the desire of the Commons that he might be so, upon which desire he was sent to the Tower. The seventh of Fe­bruary the Chancellour again and se­veral Lords both Spiritual and Tem­poral were by the Kings command sent again to the House of Commons, and the Speaker William Tresham gave them a Bill containing several Articles of High Treason against the said Duke, which Bill he in their names desired, Ut in presenti Parliamento inacti­taretur, to be inrolled in Parliament, and the Duke upon it to be proceeded against. The twelfth of February this Bill was read in the House of Lords, and it was thought fit by all the Lords, that the Justices should have a Copy of it, [Page 44] and report their advice what should be done, but the King would have it respited, till he was otherwise advised. The seventh of March next following it was thought fit by the most part of the Lords, that the Duke should then come to his Answer. The ninth of March the Lords were again sent down to the Commons at their request, and another Bill was delivered to them containing certain Articles of mispri­sions and horrible offences committed by the Duke, which they desired might be Enacted in this High Court of Par­liament, (so is the expression) and he to be proceeded against. The same day the Duke of Suffolk was brought from the Tower, by vertue of the Kings Writ, into the presence of the King and the Lords Spiritual and Tem­poral in the Parliament Chamber, both the Bills of the Articles were read un­to him, of which he desired Copies; which was granted: and to be nearer at hand to give in his Answer, and come to his Trial, the King by the advice of the Lords committed him to [Page 45] the ward of three persons, Esquires, to be kept in a Tower within the Kings Palace of Westminster. The thir­teenth of March he was sent for to come before the King and the Lords Spiritual and Temporal, to answer to his Charge, which he did, denying all of Treason laid unto him, and excu­sing the rest. The fourteenth the Chief Justice rehearsed to the Lords by the Kings commandment, what had passed the day before, and asked them what advice they would give, which they put off till Munday the sixteenth, and that day nothing was done. Then Tuesday the seventeenth the King sent for all the Lords Spiritual and Tempo­ral, who were in Town, into his innest Chamber with a Gabel Window over a Cloyster within the Palace of Westmin­ster: The Lords are all named, viz. the two Archbishops, the Duke of Buc­kingham, thirteen Bishops, six Earls, two Viscounts, two Abbots, the Prior of St. Iohn, and nineteen Barons, who being assembled, the King sent for the Duke of Suffolk, who came, and was [Page 46] upon his knees all the time the Chan­cellour spake unto him, who by the Kings commandment remembred what passed at his Trial, and particularly, that he had not then put himself upon his Peerage, and asked him now what he had more to say. The Duke said, that, not departing from his Answers and Declarations, he did wholly sub­mit himself to the Kings rule and go­vernance to do with him as he list. Whereupon the Chancellour (who, as I said before, was Archbishop of York, and a Cardinal) by the Kings com­mandment said unto him, Sir, I con­ceive that you▪ not departing from your Answers and Declarations in the matters aforesaid, not putting you upon your Peerage submit you wholly to the Kings rule and governance, wherefore the King commandeth me to say to you, that as touching the great and horrible things in the first Bill comprised, the King boldeth you neither declared nor changed; And as touching the second Bill touching mis­prisions, which be not Criminal, the King by force of your submission, by his own [Page 47] advice, and not reporting him to the advice of his Lords, nor by way of Iudgment, for he is not in place of Iudg­ment, putteth you to his rule and gover­nance, that is to say, that you before the first of May shall absent your self out of the Realm of England unto the end of five years, but you may abide in the Realm of France, or in any other Lordships or places being under his obeissance, and you shall not bear malice to any man for any thing done to you in this Parliamont. And forthwith the Viscount Beaument on the behalf of the said Lords Spiri­tual and Temporal, and by their ad­vice, assent, and desire, recited, said, and declared to the Kings Highness. That this that was so decreed and done by his Excellency concerning the person of the said Duke, proceeded not by their ad­vice and counsel, but was done by the Kings own demeanance and rule, there­fore they besought the King that this their Saying might be enacted in the Parlia­ment Roll, for their more declaration hereafter, with this Pretestation that it should not be, nor turn in prejudice nor [Page 48] derogation of them, their Heirs, ne of their Successors in time coming, but that they may have and enjoy their Liberties and Free­dom as largely as ever their Ancestors or Predecessors had and enjoyed before this time.

I have been the more large in this account, which I have given of this Trial, marking out every step of the proceedings in it, that whosoever reads it may see how irregular and ex­travagant it was from the beginning to the end, from the Commons first de­siring that the Duke of Suffolk should be committed upon so sleight a ground as his complaining in the House of Lords, that he was ill spoken of, and defamed, to the close of all, the Judg­ment given by the King by the mouth of the Chancellour for his banishment, in regard he had not put himself upon his Peerage, which yet the Chancel­lour said the King did not do as his Judge, for that he was not in the place of Judgment. And it was an odd thing and unusual, that some Prelates and some Lords should be sent down [Page 49] to the House of Commons to receive the Articles of this Impeachment. All this was such a Hodge-podge of a Trial, as no man can tell what to make of it, nor can it be of any signification to be a president and a rule of proceeding in matters of that nature in Parliament.

But admit it had been never so regu­lar, it is but one single president of Bi­shops and Prelates acting in a Judicial capacity in a Capital cause in Parlia­ment, against multitudes excluding them; it was once so, and never but once: And can that be thought suffi­cient to alter and change the constant course and practice of Parliaments, which hath been otherwise? Had it been questioned then, and upon a de­bate and mature consideration, been so resolved at that time, this had signified something: but it was done and no exception taken, which they call a pas­sing Sub silentio, and more, it was never done but once. But Sir Edward Coke goes further, and saith, that two or three presidents are nothing, if forty be contrary, and it is so here; he tells [Page 50] you too, when it is that they signifie nothing; that is, Quand les Presi­dents passe sans challenge del par­tie ou debate des Iustices, When they be not challenged by the party concerned, or not considered of, and debated by the Iudges, as neither of them was here done, it is in Slades case in the 4. Re­ports. It is a rule in Law, A facto ad jus non valet argumentum, but it may withal be said, and truly, A saepe facto ad jus contra semel factum valet argu­mentum. Upon the whole matter, one may boldly affirm, that this President of 28 H. 6. is no ground for the Bishops to build their claim upon, of having a right to sit and vote in Parliament in Capital Causes.

31 H. 6. is the Earl of Devonshire's Case, the Record runs thus. Be hit re­membred that where the 14. day of March the said 31 year of this present Parlia­ment, Thomas Earl of Devonshire upon an Indictment of High Treason, by him supposed to be done against the Kings ho­nourable estate and person, afore Humfrey Duke of Bucks, Steward of England for [Page 51] that time assigned, and of the same Trea­son by his Peers the noble Lords of this Royaume of England being in this said present Parliament, was acquitted of all things contained in the same Indictment. Now I suppose no man will say, That the Bishops were either his Peers, or Lords of the Realm.

38 H. 6. The Lord Stanley was ac­cused by the Commons for being in confederacy with the Duke of York, and they desire he may be committed to prison; the Answer is, The King will be advised; which is all was done: And this is the last president of any Im­peachment, or of any person questio­ned in Parliament in a Judicial way, that is upon the Rolls in the Tower.

And I do not remember that I have read or heard of any Trial in Parlia­ment in a Judicial way since that time till the E. of Straffords in our memory, whose Trial was compleated in that way, but he was attainted and condem­ned by the Legislative power; During all the Trial, from the beginning to the end, the Bishops were never pre­sent [Page 52] at any part of it: And it yet ap­pears upon the Journal Book of the House of Peers, though many passages be razed, but this is not, That upon the 9. of March 1640. upon a Report brought in by the Lord Privy Seal of something concerning that business, and a debate arising upon it, the Bishops withdrew, it being In agitatione cause sangui­nis.

It is true, there was in that same Parliament the February before an Im­peachment of High Treason brought up from the House of Commons against the Lord Keeper Finch, but it never came to Trial, for he fairly ran away, and got beyond Sea, whereupon by the Order of the Lords Temporal, a Pro­clamation was issued forth for him to appear the 10. of March following: the words of the Proclamation are, Rex, Uice-comiti, &c. Cum Com­munitas Regni nostri Anglie in presenti Parliament. Iohannem Dominum Finch de Fordich nuper Custodem Magni Sigilli Anglie de Alta Proditione accusaverit & [Page 53] impetierit, Cumque per Dominos Temporales in eodem Parliamen­to de assensu & advisamento nostris Ordinatum existit, quod Proclama­tio per totum regnum nostrum An­glie publice fiat, qd. idem Iohannes Dominus Finch in propria persona sua compareat, & se reddat coram nobis & prefatis Dominis, decimo die Martii proxime futuro ad re­spondendum & standum recto co­ram nobis & prefatis Dominis ex hoc parte: Nos volentes &c. The King to the Sheriff, &c. Whereas our Commons of this our Kingdom of En­gland have in this Parliament accused and impeached John Lord Finch of Fordich, late Lord Keeper of the Great Seal of England, of High Treason, And whereas the Lords Temporal have in the same Par­liament with our consent and advice Or­dered a Proclamation to be published throughout our whole Kingdom of En­gland, that John Lord Finch do perso­nally appear and yield up himself to us and the foresaid Lords, upon the 10. of March next following, to answer for his [Page 54] Treason, and stand to the Iudgment of us, and the foresaid Lords in that behalf; We willing that the Order have its due effect, do command and strictly enjoyn you, that upon the receipt of these presents, you do in all Cities, Market Towns, and such other places within your Bayliwick, as to you shall seem expedient, cause in our name to be publickly proclaimed, That John Lord Finch do appear in per­son and render himself before us, and the foresaid Lords in this present Parlia­ment, upon the 10. of March aforesaid, to answer for the Treason aforesaid, and stand to the Iudgment of us and the fore­said Lords in that behalf, according to the tenor of the foresaid Order. This was the Proclamation, Ordered to be made onely by the Temporal Lords, and no Bishops present, yet was it no part of the Trial, but meerly a course taken to have him in Court, that he might be tried. But because it looked towards a Trial, the Bishops must have no hand in it.

And it is further observable in this president, that the Kings learned Coun­sel [Page 55] was ordered to draw up this Procla­mation according to the antient Par­liamentary way, which shews that it was the ancient Parliamentary way, That only the Lords Temporal should be interested in such Proceedings, and have the ordering of them, and not at all the Bishops.

And I can give you an ancient Pre­sident out of the Placita Parliamen­taria in the 33 of Ed. 1. Nicolas de Segrave being with the King in an Ex­pedition into Scotland, had a quarrel with Iohn de Crumbwell, left the Kings Army, and went to fight with Crumb­well in France: He was for this by the Kings command at his return sum­moned to appear in Parliament, which he did, Uenit in pleno Parliamen­to in presentia ipsius Domini Re­gis, Archiepiscopi Cantuariensis & plurimorum Episcoporum, Comi­tum, Baronum & aliorum de Con­silio Domini Regis tunc ibidem existentium, He came into the Parlia­ment before the King, the Archbishop of Canterbury, and many other Bishops, [Page 56] Earls, Barons, and others of the Kings Counsel there present. The business is opened before them by Nicolas de Warwick, who charged him with lea­ving the King amongst his Enemies, and doing what in him lay to expose him unto their power; whether the Bishops continued in Parliament to hear this, appears not by the Record, but it appears clearly, that they were not to meddle in it, not so much as to advise upon it, for it follows, Et su­per hoc Dominus Rex volens ha­bere avisiamentum Comitum▪ Ba­ronum, Magnatum & aliorum de Consilio suo, injunxit eisdem in homagio, fidelitate & ligiancia qui­bus ei tenentur, quod ipsum fideli­ter consulerent qualis poena, pro tali facto sic cognito fuerit infligen­da. Qui omnes habito super hoc diligenti tractatu & avisiamento consideratis & intellectis omnibus in dicto facto contentis, & per pre­dictum Nicolaum plene & expresse cognitis dicunt, Quod hujusmodi meretur penam amissionis vite, [Page 57] The King willing to have the advice of the Earls, Barons, and other great men of his Counsel, injoyned them upon the Ho­mage, Fidelity, and Allegeance which they owe him, to give him faithful Coun­sel, what punishment was to be inflicted upon such a crime so confessed, who all upon a serious debate and advising upon the matter, and well weighing all the par­ticulars of it, and what was by the said Nicolas expresly acknowledged, do say, That such a man deserved to lose his life, but the King pardoned him afterwards. Still you see Bishops are not so much as advised withal in a Case of Life and Death.

This we see hath been the usage in Parliament all along, since the Jour­nals and Records can give us any light of what was there done. And out of History I can go further, and cite you an ancienter President than all these: In Edward the Confessors time, who in a Parliament convened in London, as Brompton relates it in his Chronicle, Col. 937. upon Earl Godwin's appea­ring there, who was said to have for­merly [Page 58] murthered Alfred the Kings Bro­ther, presently cried out, Proditor Godwine ego te appello de morte Alfredi fratis mei, quem proditi­onaliter occidisti, cui Godwinus se excusando respondit, Domine mi Rex salva reverentia & gratia vestra, pace & dominatione, fratrem ve­strum nunquam prodidi nec occidi, unde super hoc pono me in consi­deratione Curie vestre. Tunc dixit Rex, Carissimi Domini Comites & Barones terre qui estis homines mei legii hic congregati, & appel­lum meum responsumque Godwini audistis, volo quod inter nos re­ctum judicium decernatis, & debi­tam justiciam faciatis, Comitibus vero & Baronibus super hoc ad in­vicem tractantibus, &c. Thou Trai­tor Godwin, I do accuse thee of the death of my Brother Alfred, whom thou didst treacherously kill; whom Godwin an­swered, excusing himself, My King, with reverence to your Grace, and to your Go­vernment, and with your good leave I have not used treachery to your Brother, [Page 59] nor have I killed him, and of this I refer my self to the Iudgment of your Court. Then the King said, Dear Lords, Earls, and Barons of the Land, who are my Liege People here assembled, you have heard my Appeal, and Godwins Answer, I will have you to decree righteous Iudg­ment betwixt us, and to do that Iustice which ought to be done. And the Earls and Barons debating this among them­selves, some were of one opinion, some of another, and at last they agreed to offer the King a great sum of money, and to beseech him that he would take off his displeasure from Earl Godwin, and pardon him. The Historian adds, Quorum considerationi Rex con­tradicere nolens, quicquid judica­verant per omnia ratificavit, Whose opinion the King not willing to contra­dict, agreed to, and ratified all that they had done: Here we see it was only Ad Comites & Barones that he appealed, and they were only to Judge of it, and no Bishops nor Prelates.

But some I hear alledge a President in 11 H. 2. of Archbishop Becket, who [Page 60] was at a great Council Solemne Con­silium at Northampton accused of Treason, and other misdemeanors, where Bishops were his Judges, as well as Temporal Lords. This they fetch out of Mr. Seldens Titles of Honour, who cites for it a Manuscript made by a Monk, called Stephanides, or Fitz-Stephen, and there it is said, that the Archbishop was accused Lese Maje­statis Regie Corone, quia est a Rege citatus in causa Johannis neque ve­nerat, neque idonee se excusasset, Accused of Treason because being sum­moned by the King in the Cause of one John le Mareschal, and he neither came himself, nor sent a sufficient excuse, and that for it he was sentenced to forfeit all his Movables, and that the Lords and the Bishops could not agree upon pronouncing the Judgment, they put­ting it off from one to the other, and that at last the King commanded the Bishop of Winchester to do it: This is what that Manuscript saith. But none of the ancient Historians of those times say any thing of his being accused of [Page 61] Treason. And which makes it the more unlikely, is, that it was soon after that solemn ratification of the Con­stitutions of Clarendon, which all both Bishops and Lords, had sworn to ob­serve for ever, declaring them then to be the Law of the Land, and to be Consuetudines & Libertates ante­cessorum suorum, The Customs and Priviledges of their Ancestors, (which makes me say, it was rather a Decla­ring what was the Law before, than making a new Law; though what was then done, was sufficient to make it a Law, if it had not been so before:) And one of these Constitutions was, that the Prelates of the Church should not Interesse judiciis Curie Regis, Be present at the Iudgments given in the Kings Courts, when loss of Mem­bers or Life was in question. This great Council or Parliament was in February at Clarendon, and the other at Northampton was in October following; so it is not likely they should so soon forget, and do contrary to what they had bound themselves to so lately by [Page 62] a solemn Oath publickly in open Par­liament: And I think one may modest­ly affirm, that it was a mistake in the Writer of that Manuscript to say, that the Archbishop was then charged with Treason: Gervasius Dorobernensis saith, he was charged with two things; one, not doing Justice in his Ecclesiastical Court to one Iohn, (who was Iohn the Mareschal, that complained of the Archbishops detaining some Land from him;) the other, that being sent for by the King upon occasion of Mareschals complaint, he came not: The first he excused, laying the fault upon Mareschal himself for abusing the Court, bringing veterum cantuum codicillum, and old Song-Book, to swear upon, and refusing to swear super Evangelium, ut moris est, upon the Evangelists, as the Custom is, whereby he said he did Curiam su­am infamare, Defame his Court. The other he answered, proving by two sufficient Witnesses, Per duos legales viros, that it was sickness hindred him, and not any contempt. This is the [Page 63] account which Gervasius gives, and saith not a word of any Treason; nei­ther doth Matthew Paris, nor Roger Hoveden, who both of them give a relation of that proceeding at Northam­pton against the Archbishop. And to say the truth, it would be a strange High Treason, only not to come being sent for by the King, though there had been no sickness in the case, at most it could have been but a High Con­tempt, and punishable by Fine and Imprisonment, or the like; and pro­bable it is, that Fitz-Stephen, who was a Creature of the Archbishops, might represent it so, only to draw more Odium upon the King for his severity against the Bishop, even to an inju­stice, when in truth there was no such thing. However we may look upon it, as but a weak President for the Bi­shops to lay any weight upon to prove their right to sit, and vote, and judge in a Capital cause, Causa sanguinis, be­ing at the best but out of a blind Manuscript of an Author justly suspe­cted of great partiality, against the [Page 64] tenour of all the ancient Writers that give an account of the same busi­ness.

But we must go a step further to clear this matter in question, for it seems some of the Bishops do say, that though they will have no part in the Condemnation and pronouncing Judg­ment upon a Criminal person, as to loss of Life or Member, yet they may and will vote and Judge in such things as are but Preliminary and Preparatory to that condemnation, and yet think they have no hand in bloud, though they have a hand in doing that, which will infallibly cause the taking away of of a mans Life, and shedding of his Blood, so they would divide two things which in truth have so near a relation and dependency the one upon the other, as they are only separated by a little time coming between; one thing to be done first, and that being done, the other must necessarily fol­low, and be done presently after: And they doing the former, may be well said to do the latter; and if any [Page 65] Law prohibit them from having to do with the latter, the same Law doth and must prohibit them medling with the former. It is a rule in Logick, Causa causae est causa causati. If the Judg­ments of the Bishops determine one thing, which is the necessary cause of any other thing, their Judgment may be said, and really it doth determine the other thing.

As take for example the particular case upon which this Question hath been moved, the Earl of Danbyes Pardon, of the validity or invalidity whereof they will be Judges: It is hoped they will be just Judges, and incline neither way, but according to the merits of the Cause before them, so what their Judgment will be till they have heard all, themselves cannot tell. Now, if by their Judgment the Pardon be de­termined to be invalid and ille­gal, and that carry with it a convicti­on of the Crime of which he stands impeached (as some will have it to do, saying, that the taking of a Par­don implies a guilt, and is in Law a [Page 66] confession of the Crime pardoned) and so his condemnation must necessa­rily follow even for Treason, the im­peachment being so, doth not their Judgment subject him to that condem­nation? How then can they say, we will have no part in condemning him? Is not this something like the Frier in Chaucer, that would have, of a Capon the Liver, of a Pig the Head, yet would that nothing for him should be dead: So they forsooth will take upon them to Judge his Pardon to be no Pardon, which brings on infallibly his condem­nation, and yet say with that Frier, God forbid he should die for us, That we should have any hand in his bloud: But certainly this will not pass for cur­rant either in Foro Iudicii, or Foro Conscientiae, to excuse them from being Actors in his Condemnation.

To evade this, some say the Bishops may be present, and hear what will be said Pro and Con concerning this Par­don, and those only shall deliver their opinions and judgments of it, who are satisfied of the Validity and Legality [Page 67] of it, but those amongst them who are of another mind, shall withdraw and give no vote, and then it cannot be said that any of them have a hand in condemning him. But how this will sute with the Office of a Judge let any man judge, whose duty it is to con­demn the Guilty, as well as to acquit the Innocent, and who ought to do the one or the other in every business that comes before him, as he finds ground for it upon hearing the Alle­gations, and Proofs: And besides, it is most Unparliamentary, for in Parlia­ment all who are at the debate of a business, ought to give their vote to the Question one way or other, ac­cording to their sense of it, and as they in their consciences think it just.

But to break thorough all at once they will have it, That it is only by the Canon Law that this restraint is upon them, and that the forbearance of their Predecessors being Papists, and so subject to that Law, was only in that respect; which Law being of [Page 68] no force at present, and taken away by Act of Parliament, they are now at Liberty, though in modesty they think sit sometimes to withdraw, but have a right to continue sitting, if they please.

To which in answer I shall say, that I will not deny but that the Canon Law might give the first rise, and a be­ginning to such an usage, and no Law could be of greater force to introduce and establish such a thing, as being that to which only the Clergy of those times would be subject, conceiving themselves to be above, and not bound by any other: But it is most clear, that it came afterwards to receive a Civil Sanction, and to have not only the stamp of the Authority of Parliament set upon it by the continual practice there, and we know that Consuetu­do Parliamenti est Lex Parliamen­ti, The Custom of Parliament is the Law of Parliament: But that two several times there have been particular and express Confirmations, and Ratificati­ons of it in Parliament, which makes [Page 69] it a Statute Law of the Land, as much as any other can be, which we have in our printed Statute Books.

The first time was at a Great Council, which was then their Parliament, at Cla­rendon about the 10 of H. 2. where were made that which they call the Con­stitutions of Clarendon, which were not new things then first made, but a recapi­tulation of some things that had been in use and practice in former times. Matthew Paris and Gervasius Dorobor­nensis recite them at large, other ancient Historians more succinctly: There were of them sixteen in number: Mat­thew Paris gives the best account of them, and of the whole proceeding in that affair. He tells you, how the Archbishops, Bishops, Abbots, Priors, Earls, Barons, and other great ones Aliis Proceribus being present, Facta est Recognitio, sive Recordatio partis Consuetudinum & Libertatum an­tecessorum suorum, A Recapitula­tion or a Rehearsal was made of the Li­berties and Customs of their Ancestors in the time of H. 1. and of other Kings; so [Page 70] it was not a new Law, and but then enacted, but it was indeed a Declara­tion of what was the Law before, yet then more solemnly enjoyned, In re­gno observari & ab omnibus teneri, To be in the Kingdom observed and kept by all men: and this in regard of dif­ferences oft times arising between the Kings Justices and the Clergy, Propter dissensiones & discordias saepe emergentes inter Clerum, & Iusticiarios Domini Re­gis, that Popish Clergy being still apt enough to encroach upon the Civil power, which made it the more neces­sary to revive and re-establish the old Law and Custom of the Kingdom. Six­teen Articles were then agreed upon, one of which, the eleventh, runs thus, Archiepiscopi, Episcopi, & universe Persone Regni, qui de Rege tenent in Capite habeant possessiones suas de Rege, sicut Baroniam, & inde respondeant Iusticiariis & Mini­stris Regis, & sequantur, & faciant omnes Consuetudines Regias. Et sicut ceteri Barones, debent inter­esse Iudiciis Curie Regis, quous­que [Page 71] perveniatur ad diminutionem membrorum vel ad mortem; The Archbishops, Bishops, and all the digni­fied Clergy of the Land, that hold of the King in Capite, shall hold their posses­sions from the King, as a Barony, and answer for their Estates unto the Kings Iustices and Ministers, and shall observe and obey all the Kings Laws. And together with the other Barons they are to be present at all Iudgments in the Kings Courts, till it come to require either loss of member or life. And this Article as well as the rest they are sworn to ob­serve. See how the Author expresseth it, Hanc Recognitionem sive Re­cordationem de consuetudinibus & libertatibus iniquis Archiepiscopi, Episcopi, Abbates, Priores, & Cle­rus cum Comitibus, Baronibus, & Proceribus, cunctis juraverunt, & firmiter in verbo veritatis promise­runt viva voce tenendas & obser­vandas Domino Regi & heredibus suis, bona fide, & absque malo in­genio in perpetuum, This Recogni­tion or Recordation of these wicked Cu­stoms [Page 72] and Liberties did the Archbishops, Bishops, Abbots, Priors, and the whole Clergy, together with the Earls, Barons, and all the Great men swear to, and firmly promise upon the word of truth, by word of mouth, that they should be kept and ob­served to the King and his Heirs in true faith without any evil meaning for ever.

Now, can there be a more solemn establishing, and a stronger confirma­tion of any Law to have it inviolably observed and obeyed by the whole Nation that this we find here? where besides the authority of the Parlia­ment, (for these great Councils were the Parliaments of those times) there is an Oath, which is the greatest Obli­gation that mankind is capable of, ma­king even God a party to it, to see it obeyed, and punish the transgressors. And from whom have we the testimo­ny of these transactions to assure us of the matter of Fact? From Matthew Paris a Monk, one that would not be partial for the Lords Temporal in re­lating matters to give them more power in Judicature, and less to the [Page 73] Lords Spiritual, than of right belonged to each, and looking upon this exclu­sion of the Prelats from the power of Judging in such cases, to be some dimi­nution of their Omnipotency, which they were so ambitious of, he therefore ranks it amongst the Consuetudines iniquas the wicked Customs of the for­mer times. So we have here Testi­monium irrefragabile an irrefragable and invincible testimony, upon which we may build our faith, and have a certain assurance that there was really such an usage in ancient times, and that it was then in that 10. year of H. 2. again ratified and confirmed, since these Monks have so recorded it, and trans­mitted it to posterity.

The second time time that this recei­ved a Confirmation in Parliament was the 11 of R. 2. which I mentioned be­fore, when the Arch-bishop of Canter­bury and the other Bishops upon their withdrawing then from the Parliament in regard matters of Bloud were to be there agitated, and determined, In qui­bus non licet alicui eorum personaliter in­teresse, [Page 74] as they say, In which it was not lawful for any of them to be present in person, did therefore enter a Protesta­tion with a Salvo to their right of Sit­ting and Voting in that and all other Parliaments, when such matters were not in question: which Protestation of theirs was at their desire enrolled in full Parliament (as the Record saith) Par commandment du Roy, & as­sent des Seigneurs Temporelz & Communes, By the Kings command with the assent of the Lords Temporal and Commons. So indeed it was here a perfect and compleat Act of Parlia­ment, and if it had not been a Law be­before, would than have been made one.

But it was a Law before, and this needed not, to make it more a Law than it was before; yet certainly what was here done must be of some signification, and add some weight, that it may be said at least, that it seems to enforce some greater compliance with it, and to heighten the offence of such as will not conform to it.

[Page 75]And by the way, let me desire to be well understood what I mean by say­ing, This would make it a Law if it was not one before, I do not mean the Protestation would be a Law, for a Protestation Modo & Forma cannot be a Law, but the subject matter of it was then enacted; which did consist of two Particulars, the one, That the Prelates had a right and a Priviledge to sit and vote in Parliament in all other businesses; the other, That they had no Right, nor was it lawful for them to be present in Parliament when such businesses were in question: Which one would think they might look upon as a Right and Priviledge, to be exempt from being obliged to attend in such Cases, Cases of Bloud: As the Lords Temporal, who are Peers of the Realm, challenge it to be their Right and Priviledge not to be re­turned in Juries upon the Trial of Commoners. Though, to speak the truth, I doubt those Prelates did not much desire this Priviledge, but the Salvo to their Right of sitting in all [Page 76] Parliaments to have been what they aimed at most in their Protestation, and which they would have to be enrolled, but the one could not be without the other; and upon no terms would they admit the least scruple should be of their right to sit in Parliament, which their withdrawing at that time might seem else to call in some question as they thought, and therefore they would make that Protestation; For that Po­pish Clergy was very ambitious, and loved to have the rule over all persons and things; we see it by Matthew Pa­ris how he branded those Constituti­ons of Clarendon with terming them Consuetudines iniquas, and the Archbi­shop Becket himself after he had sworn to them, repented him of it, and en­joyned a severe Penance to himself, and suspended himself from the Office of the Altar for several months, till he had the Popes Absolution. This makes me doubt if the Clergy was of another mind in Richard the Seconds time, and if they could not have been well enough contented to have continued [Page 77] sitting as Judges in all Cases, if the Ca­non Law had not debarred them, but that being they would make that Pro­testation, consisting, as I say, of those two parts, both which being so appro­ved of by the Parliament, and there en­rolled, became then, and so continue to be, the Law of the Kingdom: For in those times all Laws were so made: On­ly the substance of the Law was agreed upon in Parliament by King, Lords, and Commons, and entred in the Journal Book; And the Kings Justices did afterwards draw it up into form, and then publish it to be the known standing Law of the Kingdom. But that was not needful here, because it was not a new thing, that did then re­ceive its first being. Neither, I say, was it new before in Henry the Seconds time, it appearing by what was then transacted, that it was in usage in Henry the Firsts time, only it was ratified in that Great Council of Clarendon under Henry the Second with a little more solemnity, and the addition of an Oath for the better observance of it. And [Page 78] we may carry it yet a little higher to Edward the Confessors days, as appears by his Appeal against Earl Godwin in a Great Council, which was their Parlia­ment, and how long it had been the use and practice before that, God knows.

In E. 4th. time it was the declared Law of the Land, you have it in the Year-Book of 10 E. 4. Term. Pas. n. 35. the words are, Quant un Sr. est en­dite ceo serra maunde en le Parlia­ment & la le Seneschal d' Engleterre le mettra a respondre & il dira De rien culpable, & se sera trie per Pa­res suos, donque les Seigniors Espirituelx, que ne poient consent al mort de home, ferront un Procu­rator en le Parliament & donque le Seneschal doit examiner primes le pluis puisne Seignior que est, sil soit culpable, & issint separatim a toues les Seigniors queux sont la, &c. When a Lord is indicted it shall be returned into Parliament, and there the Steward of England shall put him to an­swer, and he shall say, Not guilty, and this shall be tried by his Peers, and then the [Page 79] Lords Spiritual, who may not consent to the death of any man, shall make their Procurator in Parliament, and then the Lord Steward shall ask the youngest Lord, if he be Guilty, and so severally all the Lords that are there, &c. This I al­ledge to shew that even by the Law of the Land, the Bishops cannot be Jud­ges in a Case Capital; it is true here is mention made of their making a Pro­ctor, which was Error Temporis, the Errour of those times, grounded upon what was so lately done, (as they looked upon it) though irregularly done in the last Parliament of R. 2. whom they considered as their last lawful King; and in truth he was so, the three Hen­ries that came between being but Usurpers; and therefore they had, it seems, a deference for what was then done, though as I have already said, it was never done before, nor is it in truth a thing very practicable and not at all Parliamentary, to have one man, or two men (as we see it was also done that Parliament,) represent the whole Bench of Bishops. And more than all [Page 80] this (as I have already observed, which it seems, was not then thought of) that whole Parliament of R. 2. stands re­pealed, and all that was done in it de­clared by a subsequent Act of Parlia­ment to be Null and Void. But this is but by the way; my intent in quoting this Book Case, is onely to shew that the Bishops were not excluded Judg­ing in Capital Cases by the Canon Law alone, but that the Law of the Land did likewise confirm it, and the Courts of Westminster did so conceive of it.

So I think I may well conclude, and with some confidence affirm, that Bi­shops now are not to be Judges to Sit and Vote in Parliament in any Trial, or part of a Trial, that is, in any circum­stance, which doth any ways lead or conduce to such a Trial of any Ca­pital Offender, but the whole Judg­ment is singly and wholly in the Lords Temporal, and to them onely such Judgments do belong, as was challen­ged by them in the Case of the Earl of Northumberland, 5 H. 4. and is so de­clared to be in several other Cases upon [Page 81] the Rolls of Parliament. And having thus delivered you my opinion, and my grounds for that opinion, I sub­mit it to your judgment and rest,

Your Humble Servant.

AS I was closing my Letter, two Papers were brought me, one in Written hand, the other Printed, which maintain an Opinion clean contrary to mine; I shall tell you what they say, and give my Answer to it, then leave it to you to determine, who is in the right.

The written Paper, to prove their right of Judicature in all Cases, none excepted, declares Bishops to be Peers [Page 82] of the Land, and a Third Estate in Parliament, and therefore are not to be excluded from being Judges in all Cases, as well Capital as other.

To prove them Peers of the Land he urges Statute Law, and Common Law; for the Statute Law, he al­ledges the 25 of Ed. 3. c. 6. and the 4 of H. 5. c. 6.

First, For the Statute Law, let me tell you, It is not every expression Obiter upon the By, that is in the Pre­amble of a Statute (as this is of Bi­shops to be called Peers in these Sta­tutes) that makes a thing pass for Law, except it be by way of Declaration, declaring it to be a Law, or reciting it as a Law before made: And then I shall shew you how these two particu­lar Statutes run, and what they are. That of the 25 E. 3. it is true, hath in the Preamble, that the Prelates had prayed the King that their Temporal­ties thenceforth might not be seised upon for such contempts, sith they were Peers of the Land, that is, by their own sayings they were Peers, for [Page 83] so it was only, the Statute doth not make them so. The Record is, that among the Petitions of the Clergy, one is Come Ercevesques & Evesques tiegnent lour Temporaltees du Roi en Chief & pertant sont Pieres de la Terre, come sont autres Countees & Barons, quil vous pleise a eux graunter que nul Iu­stice pur soul contemptz puisse de­soremes lour Temporaltees faire prendre, &c. Seeing Archbishops and Bishops hold their Temporalties of the King in Capite, and therefore are Peers of the Land as are other Earls and Ba­rons, that you will be pleased to grant unto them, that no Iudge may henceforward for meer contempts cause their Temporal­ties to be seised: The Answer is, That the Law is so, and cannot be changed, but the King is willing that in such Cases a reasonable Fine may be taken. So you see they indeed call themselves Peers, which the King takes no notice of in his Answer, but speaks to the matter of their Petition; And even in his Answer intimates, that they are [Page 84] not in the same condition with Earls and Barons, for he saith the Law is so for them, that is, that they should for­feit their Temporalties for such Con­tempts, which no man will say was the Law for Earls and Barons to forfeit their Lands for any Contempt, but well were they liable perhaps to pay a good Fine for it: So then I may say that those Bishops were a little mista­ken, to affirm that they were Peers of the Land just as other Earls and Barons are.

The other Statute is of the 4 H. 5. and is only concerning Ireland, it saith, That by a Statute in Ireland, no Irish­man was to be preferred to any Digni­ty in the Church, and yet some were made Archbishops and Bishops, and they make their Collations to Irish Clerks, then follows, And whereas they are said to be Peers of the Parliament in the same Land, they bring with them Irish Servants to Parliaments and Councils, who give intelligence to the Irish Rebels. That Statute is now confirmed; And what this makes to prove the English [Page 85] Bishops Peers of the Land, I see not, nor I think no body else can, at most it can but declare them to be Peers of the Parliament of Ireland, and it is too, even for those Irish Bishops, but that they are so said to be, that is, said to be Peers, not that they are so.

But to prove that they are not Peers of England, I think we have a better Law, even Magna Charta it self; It saith, That every man who is tried at the Kings sute must be tried by his Peers: Now, if a Bishop be tried for any Capital offence, he is tried by the Commoners, and that is the Common Law of the Land, it hath ever been so, never otherwise; then must Com­moners be his Peers, and he and Com­moners must be Pares. The Great Charter of Englands Liberties Magna Charta declares them so: A Temporal Lord, Duke, Earl, or Baron cannot be Judge in the Case of a Bishop, ex­cept it be in Parliament, where the Temporal Lords be the sole Judges, and those to whom Judgment doth properly belong: nor on the other side [Page 86] can any Bishop be their Judge, how then can they be said to be Pares, Fellow Peers? For my part I see not.

Then for their being a Third Estate in Parliament (for which that Writer alledges Mr. Seldens authority) is a thing so contrary to Reason, as I can no ways yield to it. First, let me lay this foundation, that I do acknowledge the Subjects of England to be divided into three Estates, The Nobility, the Clergy, and the Commonalty; these are the several Estates of the King­dom, and the Bishops are part, and the chief part of one of these, viz. the Clergy: And sometimes these three Estates have joyned in some transacti­ons, as 9 H. 5. in the ratification of a Peace with the King of France, Charles the Sixth, who had desired it should be so, he having had it ratified in France by the three Estates there; the Record saith, Uolensque idem Sere­nissimus Dominus noster pro parte sua dictam pacem & omnia & sin­gula contenta in ea modo consimili [Page 87] per ipsum & tres Status Regni sui jurari, firmari & roborari, prout ex dicte pacis tenore astringitur & ob­ligatur, dictam pacem bene & fide­liter in omnibus se observanturum in verbo Regio, & ad Sancta Evan­gelia per ipsum corporaliter tacta juravit & promisit, ac dictos tres status, viz. Prelatos & Clerum, Nobiles & Magnates, nec non Communitates dicti Regni sui secundo Maii ad Palatium suum Westminst. ad majora firmitatem & robur Pacis predicte fecit congre­gari, quibus quidem tribus sta­tibus per Cancellarium suum tenorem dicte Pacis & singulos Articulos ejusdem seriose exponi fe­cit, &c. The King willing for his part, that the said Peace, and all the particulars of it should in like manner be sworn to, con­firmed, and ratified by Him and the three Estates of his Kingdom, according as he was obliged by the tenour of it to do, did swear and promise, laying his hand upon the holy Evangelists, in the word of a King, that he would well and faithfully [Page 88] observe and keep it in every circumstance; And the said three Estates, to wit, the Prelates and Clergy for one, the No­bles and Great men for another, and the Commons for the third, he caused to come before him the second of May at his Palace of Westminster for the better con­firmation and strengthening of the Peace, to which three Estates he caused his Chan­cellour to declare what the Peace was, and every Article thereof &c. Here indeed the Prelates, and all the Clergy together with them, are declared to be one of the three Estates of the Kingdom, which is to be understood as they are assembled in the Convocation, where all are pre­sent in their Persons, or their Represen­tatives, but this is no part of the Parli­ament, nor is it any ways entrusted with the Legislative power, though it assemble in Parliament time. And in 11 H. 7. the very same Case hapned again, and the three Estates of the Kingdom joyned with the King in the Ratification of a Peace with France in the same manner.

But the three Estates of Parliament are clean another thing, Each must [Page 89] have a Negative voice to all that passeth there. If the Major part of the House of Commons be against any thing there proposed, there is an end of it, it is rejected. It is the same in the House of Lords, and the Bishops are intermin­gled with the Temporal Lords in ma­king up that Majority, as part of that Majority: whereas were they one of the Estates, reason would they should vote by themselves, separately from the other Lds, which would make another Estate; but they do not only not vote apart by themselves the whole body of them to­gether, but even that body is divided and separated within it self, one part from another. For the two Archbishops give their Votes after all the Nobility have given theirs, and the rest of the Bi­shops between the Barons and the Vis­counts, so that the Barons excepted, all the rest of the Peers, Dukes, Mar­quesses, Earls, and Viscounts divide the Archbishops from the Bishops: If then they be an Estate, it is an Estate within an Estate, like a Nest of Boxes one within another, which how [Page 90] agreeable it is to reason, let any man judge.

Besides, would it be for the honour of the House of Lords, that two Estates must be put together to keep the bal­lance even with the House of Com­mons, who are but one Estate, and that their two should signifie no more than that one? And most clearly it would be a great disparagement to the Peerage of the Kingdom, the Tempo­ral Lords, and would make them to be a poor Estate, that another Estate must be joyned to them, to make up their Negative voice, and set them upon even ground with the House of Commons.

But this is further to be said, were the Bishops one of the Three Estates, a Parliament could not be held with­out them, no Law, no Act of Parlia­ment could be made, if the Major part of the Bench of Bishops did not agree to it; but we know it to be other­wise in point of fact. Parliaments have sate without a Bishop, and Acts of Parliament have been made the Bishops [Page 91] dissenting, and our Law-Books say it may be so in point of Law: That it hath been so, Bishop Iewel acknow­ledges it in his Defence of the Apolo­gy of the Church of England, p. 522. he bids you read the Statutes of Ed. 1. and you will find, that in a Parlia­ment solemnly holden by him at St. Ed­munds Bury the Archbishops and Bi­shops were quite shut forth; and yet the Parliament held on, and good and wholsom Laws were there enacted, the Record saying, Habito Rex cum suis Baronibus Parliamento, & Clero excluso, &c. The King holding a Parliament with his Barons, and ex­cluding the Clergy, &c. Crompton hath this likewise in his Book of Courts un­der the Title, Parliament, p. 19. b. So certainly that King did not believe his Clergy to be a Third Estate of his Parliament, or he would never have left them out: for it must necessarily have followed that his Parliament would have been lame and imperfect: But doubtless he knew the Law to be, as all the Judges of England said it [Page 92] was in Henry the Eighths time when the question was, as the Title of the Book Case runs in Keilways Reports, p. 180. b. Lou Supreme Iurisdiction per­teigne al Roy ou al Pape, To whom the Supreme Iurisdiction belongs to the King or the Pope? For that hath still been in competition between the Crown and that Clergy, I mean the Po­pish Clergy. It is in Dr. Standishes Case, 7 H. 8. p. 184. b. Les Iustices disoient que nostre Sr. le Roy poit assez bien tener son Parlement per luy & ses Temporal Seigniors & per ses Commons, tout sans les Spirituals Seigniors, car les Spi­ritual Seigniors nont ascunt place en le Parlement chamber per rea­son de lour Spiritualtie, meis sole­ment per reason de lour Temporal possessions, The Iudges said, That our Lord the King might well enough hold his Parliament by himself and the Lords Tem­poral and his Commons, wholly without Lords Spiritual, for the Lords Spiritual have no place in Parliament by reason of their Spiritualty, but by reason of their Tem­poral [Page 93] possessions; that is, holding their Lands, their Temporal possessions in nature of Baronies, sicut Baroniam, as it is in the Constitutions of Clarendon, not that they were truly and really Barons, enobled in bloud, but by their Tenure of such Land dignified to sit in Parliament, and do the King service there, as the Temporal Lords by their Tenure were bound to do.

For this was the Policy of William the First, he divided all the Lands that escheated to him by his conquest into so many Knights Fees, and so many Knights Fees he erected into a Barony, the Temporalties of Bishops likewise, and so of many Abbots and Priors he erected into Baronies, all to hold of him in Capite, and upon account of those Baronies both the Temporal Lords and the Spiritual Lords, not only Bishops, but also those Abbots and Priors had of right place in Parlia­ment, and were bound to serve him there: Now, I would ask if they all holding by one Tenure, and by that [Page 94] Tenure sitting in Parliament could pos­sibly be imagined to be two different Estates? Certainly, they could not be then two different Estates, for they were all Feodal Barons; And what hath since hapned to make a difference? The change hath been only this; The Temporal Lords holding so by their Tenure grew so numerous, that King Iohn put them into two ranks, of Ba­rones Majores, and Barones Minores, and only the Majores had Writs of Summons to come to Parliament. Afterwards in Richard the Seconds time Barons were created by Patent, and so had Place and vote in Parlia­ment. I ask now, if it be probable, nay, if it be possible, that this should alter the constitution of Parliament, that that House which before consisted but of one of the Estates, should now be divided into two Estates. They are still qualified to be Members of Parliament as before, a Baron sate as a Baron, an Earl as an Earl; Being made by Patent, or by Writ, or by holding such a proportion of Land, alters not [Page 95] the case as to their sitting in Parlia­ment, for it is being of such a degree, which makes them Peers of Parlia­ment, how they rose to that degree is not material. And what should make the Lords Spiritual, who have recei­ved no change in their being called to be Members of that House, to be now an Estate by themselves, which they were not before? I profess I see not the least colour of reason to think there should be any change, but as they were in the beginning, so they are still, no other than Fellow Mem­bers of that House with the Tempo­ral Lords, and together make up one House.

But this is also to be considered, that if the Bishops were a Third Estate of Parliament, not only the Parliament could not be held without them, but nothing could pass in Parliament, that at least the Major part of them should not assent to: But so far from that, not only what we find in the Journals of former times, but daily experience tells us, that Acts have passed not only [Page 96] when the Major part of that Bench was against them, but many times when the whole Bench was strongly of another mind.

20 R. 2. The Bishops upon occasion of the Statute of Provisors enter a Protestation against whatsoever should be done in derogation or restriction of the power of their Holy Father the Pope, saying they were sworn to his Holiness, and to the Court of Rome: These were likely to make a good Third Estate of an Eng­lish Parliament: And is it not then a wonder that any Engiish man should desire to bring Popery in again, for Bishops to controule both King and Parliament? Would it not set even Mo­narchy it self one degree lower? Sure it would: But this is by the way. Consider further, that if they had had such a power of being a Third Estate in the days of Queen Eli­zabeth, those good Acts for a Re­formation in Religion had never pas­ed, and the Reformation had never been. 1 Eliz. The Bill for restoring the first Fruits and Tenths to the Im­perial [Page 97] Crown of England, which pas­sed February 4. The Bill for restoring the Supremacy to the Crown, and re­pealing divers Acts made to the con­trary, which passed March 18. The Bill giving authority to the Queen upon avoidance of a Bishoprick to take some part of the Temporalties into her hands, recompensing the same with Impropriate Parsonages, which passed April 7. All the Bishops present were against the passing of these Bills. And before that, in Edward the Sixths time, they were against the Bill for Priests to marry, which passed Feb. 19. 2 E. 6. So the Bill for ordering Ecclesiastical Ministers, giving power to Six Prelates, and Six other men, learned in the Laws, to set down the form and manner of their Consecra­tion, which passed Ian. 25.3 E. 6. The Bill for nominating thirty two Persons to peruse the Ecclesiastical Laws, which passed Ian. 31. The Bill for abolishing and putting away divers superstitious Books, as Legends, Mis­sals, Processionals, and the like, and [Page 98] taking away Images out of Churches and Chappels, which passed also that Parliament. All these good Bills the Bishops were against, yet they passed into Laws, and were the foundation of our Reformation, which, had they been a Third Estate, had never been laid, for those Bills had not passed. But you will say perhaps, that we need not fear such mischiefs and inconvenience from our Protestant Bishops, and I grant it, nor do I urge these things with any such ap­prehension; I only shew you what the Popish Bishops did then, and that if they had been a Third Estate, such mischiefs would have followed upon it, and thence to infer, That they were not in those times so accounted, and that our Protestant Bishops cannot then pre­tend to it now, They then, and These now having Place and Vote in Parlia­ment upon the same terms.

But then we have good Authority to inform us which are truly the Three Estates: King Iames seems to make it clear in a Speech he made at the Pro­rogation of the Parliament in the year [Page 99] 1605. the words are these, As for the thing it self (that is, the Parliament) it is composed of a Head and a Body, The Head is the King, the Body are the Members of the Parliament; This Body again is subdivided into two parts, the Vpper and the Lower House. The Vp­per House compounded partly of Nobility, Temporal men, who are Heritable Coun­sellours to the High Court of Parliament by the honour of their Creation and Lands; And partly of Bishops, Spiritual men, who are likewise by the virtue of their Place and Dignity Counsellours, Life Renters, or Advitam of this Court. The other House is composed of Knights for the Shires and Gentry, and Burgesses for the Towns. But because the number would be infinite for all the Gentlemen and Burgesses to be present at every Par­liament, therefore a certain number is selected and chosen out of the great Body, serving only for that Parliament, where their Persons are the Representation of that Body. You see that wise King makes the Body to consist of Two Parts, the Upper House, or the House [Page 100] of Lords to be one of those parts, consisting of Lords Temporal, and Lords Spiritual, who together make one part; And the House of Com­mons another part: It is true, he calls neither of them an Estate, but most certain he cannot be thought to under­stand the Spiritual Lords to be an Estate by themselves, making them to be but a Part of one of the Parts of that Body: For by the same reason he may be said to make the House of Commons consist of two Estates, say­ing, it is composed of Knights of the Shires, and Burgesses for the Towns. But King Charles the First is plainer in his expressions, in his Answer to the Nineteen Propositions sent to him from the two Houses, Iune 2. 1642. He tells them, That neither one Estate should transact what is proper for two, nor two what is proper for three. And in that same Answer he saith a little after, It is most unreasonable that two Estates propo­sing something to the Third, the Third should be bound to take no advice whether it were fit to pass, but from those two, who [Page 101] did propose it. Nothing can be clearer than this, to shew what the opinion of that good King was concerning the three Estates in Parliament.

And 2 H. 4. n. 32. It is so declared by the House of Commons even to the King himself, and to the Lords, That the three Estates of Parliament are the King, the Lords Spiritual and Tempo­ral, and the Commons, who should all be at an Vnity among themselves, and therefore hearing there were some diffe­rences between the Lords, they humbly prayed the King to compose them.

And Stephen Gardiner Bishop of Winchester, sometime Lord Chancellor, an ancient Parliament-man in Henry the Eighths time, who well understood the constitution of Parliaments, in his Letter to the Lord Protector in Edward the Sixths time, which Letter is in the second Volume of the Book of Mar­tyrs, Printed in 1641. p. 7. doth ac­knowledge it, and saith, That the three Estates make a Law, and com­pares the three Estates in Parliament to the three Christian Vertues, Faith, [Page 102] Hope, and Charity, and saith, That it were the same absurdity and untruth to say the Higher House and the Lower House exclude the King in the Office of making Laws, as it would be in Re­ligion to say, that Faith excludeth Charity in the Office of Justification. Here you have the Testimony of a Bishop: I confess, a Popish Bishop, as you may see by his application of this Simile, to make Charity (that is, works of Charity) to have a part in Justification. But I meddle not with his Divinity: As to that which he saith of the Estates in Parliament, he is in the right, and he was one that knew well enough what was due to the Or­der of Bishops, even to the full extent of it, and would not have shortned it the breadth of one hair, yet he makes them not an Estate by themselves, but as joyned with the Lords Tem­poral.

Then for the Common Law, you have Finch in his Book of Law dedica­ted to King Iames, the first Chapter of the second Book, p. 21. who saith the [Page 103] very same thing in very plain terms: His words are these, Lassemblie de ceux trois Estates c' est assavoir, Roy, Nobilitie, & Commons, qui sont le Corps del Realme, est appel une Parlement, & lour decree un Act de Parlement, car sans touts troys (come si soit fait per Roy & Seig­niors, mes rien parle del Com­mons) nest ascun Act de Parle­ment, The Assembly of the Three Estates, that is to say, King, Nobles, and Com­mons, who are the Body of the Realm, is called a Parliament, and their Decree is an Act of Parliament, for without all three (as if it were done by the King and Lords, and no mention of the Commons) it is no Act of Parliament. Can any thing be plainer?

You see now with how little appea­rance of truth the Writer of that Paper takes upon him to declare Bishops to be either Peers of the Land, or one of the Three Estates, and what ill Topicks he hath chosen to prove them to have right of Judicature in all Cases Crimi­nal and Capital, for that is his Asser­tion upon it.

[Page 104]For what he cites out of some Year-books, that in some pleadings their Counsel calls them Peers, will not make them so; nay, should the Judges them­selves stile them Peers, as perhaps they might complement the potent Clergy of those days, it could not alter the Law of the Land, which makes Com­moners their Peers, seeing they are to be tried by Commoners.

As for matter of Fact, to prove that they have Judged in Capital Cases, he cites the Protestation in the eleventh of R. 2. and then their making their Pro­curator, and so Judging by Proxy in the 21 of R. 2. To which I need say nothing in this Postscript, having so largely in my Letter treated of it.

Then he gives many Precedents of their voting in Bills of Attainder, which is all Not to the purpose, for that is not in Question. Acts of Attainder are Laws, and every Freeman is supposed to give his Consent to every Law, ei­ther by his Representative, or in Per­son if a Member of Parliament; And Bishops being Members may I think [Page 105] claim to do it Personally.

So I have done with the Paper, and come to the Printed Book, stiled, The Honours of the Lords Spiritual asserted; And Six Chapters are taken up in bla­zoning their Honour, which no body endeavours to take from them, nor do I think it to be any part or degree of Honour, to judge men to death. It is certainly an employment which in my opinion no body will envy to any that hath it. Then for those great Places which the Bishops enjoyed here in England, mentioned in the fifth Chapter, I no ways wonder at it; we know, that Popish Clergy had ambi­tion enough to covet to have the whole rule, and in those blind and supersti­tious times power enough to obtain what they had a mind to, both Prince and People in a manner awed by them; who yet sometimes would complain, and break out a little, as Scholars sometimes rise against their School-masters. So 45 E. 3. The two Houses joyn, Countes, Barones & Communes, and represent to the King, how the Go­vernment [Page 106] of the Kingdom had been a long time in the hands of the Clergy, Per ent grant mischiefs & dam­mages sont avenuz en temps passe & pluis purroit eschier en temps avenir al disherison de la Coronne, & grant prejudice du Royalme, Whereby great mischiefs and damages have happened in times past, and more may fall out in time to come, to the dishe­rison of the Crown, and great prejudice to the Realm; And therefore they humbly pray the King, that he would employ Laymen. So 20 R. 2. The Commons complain, That the King kept so many Bishops about him in his Court, and advanced them and their fol­lowers. Therefore you see it was not always pleasing to the Kingdom: But all this is by the By; though that Au­thor takes a great deal of pains to en­large himself upon this Subject, which is not at all to our purpose, nor deci­ding the point in question one way or other.

In his two last Chapters, the seventh and the eighth only, he toucheth up­on [Page 107] it. He first gives this for a Rule, That it was the common usage and right of the Bishops in ancient times to sit and vote in Parliament in all Cases, as well Criminal as otherwise, either by them­selves or their Proxies. As for their Proxies, as I have already said, it was never done but in one Parliament, which Parliament is repealed, and all that was done in it, of no signification. And besides, as I have already told you in my Letter, if that Parliament had not been repealed, yet that unparlia­mentary Nonsensical action of the whole Bench of Bishops, and all the Clergy with them, empowering one Man, as they did Sir Thomas Percy, to give one Vote for them all, shews the manifest indispensable unlawfulness of their being Personally Present, that rather than that should be, such an Irrational Unprecedented thing should be admitted of; which is my Answer to all that he saith, and to the Prece­dent that he quotes out of the 21 of R. 2.

Now let us examine what he saith of [Page 108] their being in Person present at such Trials. He quotes Bromptons Chroni­cle, reciting among the Laws of King Athelstan this concerning Bishops, I will cite Brompton's words right as they are, Episcopo jure pertinet omnem rectitudinem promovere Dei, viz. & seculi, It appertains of right to a Bishop, to promote that which is right both con­cerning God and the World. A little after he saith, Debet etiam sedulo pacem & concordiam operari cum seculi Iudicibus, He ought likewise di­ligently together with the secular Iudges to promote Peace and Concord. After he saith, Debent Episcopi cum seculi Iudicibus interesse Iudiciis ne per­mittant si possint, ut aliqua pra­vitatum germina pullulaverint, The Bishops ought to be present in Iudg­ments with the Secular Iudges, not to suffer any buds of wickedness to sprout if they can hinder it. Then he tells you what they must do in their Judgings, see that every man have right, that rich men do not oppress poor men, nor Masters their Servants, and the like, [Page 109] and to look to Weights and Measures, that there be no cozening nor cheating, but that they may live like Christians. Here is nothing of judging a Capital Crime; far from it.

His next Authority is out of Sir Henry Spelmans Glossary upon the word Comes; there it is, Comes presidebat foro Comitatus, non solus, sed adjunctus Episcopo, hic ut jus divinum, alter ut humanum diceret, alterque alteri auxilio esset & consilio, Presertim Episcopus Comiti; Nam in hunc illi ani­madvertere sepe licuit, & errantem cohibere, The Earl did preside in the County Court, not alone, but joyned with the Bishop: He, to deliver what was Gods Law; the other, what was Mans Law: And that the one should help and counsel the other; especially the Bishop to do it to the Earl, for it was lawful for him some­times to reprove the other, and to reduce him, bring him into order if he went astray. He leaves out what the Bi­shops work was, he omits that clause, Episcopus ut jus Divinum diceret, for [Page 110] this was not to try Capital Crimes: But Sir Henry Spelman tells us further, that that Court had cognisance but of petty matters, De causis Magnatum & Potentiorum non cognovit Co­mes, nam he ad Aulam Regiam deferende, Pauperum tantum & minus potentum judicabat. Hinc & Legibus nostris hodie prohibetur debili aut injuriarum actiones in Comitatu intendere, si rei litigate valor non sit minor 40 solidis, The Earl hath not cognisance of great mens bu­siness, for such matters are to be brought in­to the Kings Courts, he only judges poor mens Causes. Hence it is, that by our Law Actions for Debt and Trespasses are not to be commenced in the County Court, if it be for above the value of 40 Shillings. Judge now I pray you, what all this makes to prove that Bishops have right to judge of Treason, Felony, and those transcendent Crimes which deserve death.

He then quotes Mr. Selden, and makes him say, in his Introduction to his Treatise of the Priviledges of the [Page 111] Barons of England, that Omnes Praelati & Magnates had this Priviledge till the Prelates lost it by the Parliament of 17 Car. 1. I find no such thing there, he saith, That the Prelacy had heretofore the first place in the Summons, but that they had then lost it. And this I observe further, that Mr. Selden makes the whole upper House to be but one Estate whether the Bishops be there or No; It was one Estate formerly when the Bishops had the Priviledge of sitting there, and when they had the first place in the Summons, and it was one Estate then in Mr. Seldens time when they had lost that Priviledge, but our Assertor in the Printed Paper would take no notice of this.

Now I come to his Precedents, he first begins with their Proxies, and cites many Parliaments where Bishops gave Proxies, which no man denies, and they do it still, only they give their Proxies now only to Bishops like themselves who are Members of the House, not to such as are no Members, as it seems they did then: But giving [Page 112] Proxies to represent the whole Bench of Bishops, or any one Bishop in any Judgment of death, except in that one Parliament of 21 R. 2. I utterly deny. Indeed he tells us of the 2. H. 4. and 2 H. 5. that they did it it there in those Parliaments, but I dare say he cannot find it there, I am sure I cannot, and I do verily believe he never looked there, but that he takes it upon trust out of the Margin of pag. 125. of Mr. Sel­dens Book of the Priviledges of the Baronage, where indeed there is such a quotation, but misplaced by the Prin­ter, having reference to what is said at the end of the Paragraph, of Thomas Earl of Salisbury, 2 H. 5. endeavouring to reverse the Attainder of his Father, Iohn Earl of Salisbury, who was attain­ted 2 H. 4. and not at all concerning what is said of Proxies in the first part of the Paragraph, as our Assertor would here apply it.

Then he cites a Precedent or two to make out that Bishops were personally present at the giving of some Judg­ments of Death, which if they be tru­ly [Page 113] related, he saith something, but I believe they will be found to be of as little weight, as all he said before: His first is among the Pleas of the Crown, 21 R. 2. of the Impeachment, as he calls it, of the Earl of Arundel, and others, by the Lords Appellants, the Earls of Rutland, Kent, Huntington, and others. He saith the Earl of Arun­del being brought to the Bar by the Lord Nevil, Constable of the Tower, that the Articles exhibited against him by the Lords Appellants were read, to which he only pleaded two Pardons, which Pardons not allowed, the Lords Appellants demanded Judgment against him: Whereupon the Lord Steward, by the Assent of the King, Bishops, and Lords, adjudged the said Earl guilty, and Convict of all the Articles, and thereby a Traitor to the King and Realm, and that he should be therefore Hanged, Drawn and Quartered. This our Assertor saith, who quotes Sir Robert Cottons Col­lections for it, and there indeed it is so, but methinks one should not venture to quote a Record upon any mans Alle­gation, [Page 114] without consulting the Record it self, and that I am sure he hath not done, for it saith expresly, that it was only the Lords Temporal and Sir Tho­mas Percy, Proctor for the Prelats, that gave that Judgment. The words of the Record are, Sur quoy le dit Duc de Lancaster per commandement du Roy & toutz les Srs. Temporels & Mr. Thomas Percy aiant poair sufficiant des Prelatz & Clergie du Roialme d'Engleterre come piert de Record en le dit Parlement per assent du Roy agarderent le dit Counte d' Arundel coupable & con­vict de toutz les pointz dount il est appellez, & per taunt luy ajugge­rent Traitour au Roy & au Roi­alme, & quil soit treinez, penduz decollez & quarterez, Whereupon the said Duke of Lancaster by the Kings Command, and all the Lords Temporal, and Sir Thomas Percy being sufficiently empowered by the Bishops and Clergy of the Kingdom of England, as appears upon Record in the said Parliament, did by the Kings assent declare the said Earl of [Page 115] Arundel guilty and convict of all the points of which he was accused, and there­fore did adjudge him a Traitor to the King and Realm, and that he should be drawn, hanged, his head cut off, and body quartered. You see the Bishops were none of them present, but theit Pro­curator was, to which in my Letter I have largely spoken, and need not re­peat it here.

He urges also a Precedent in this same Parliament, of the Commons by the mouth of their Speaker Sir Iohn Bussy, praying the King, That for that divers Iudgments were heretofore undone for that the Clergy were not present, that the Cler­gy would appoint some to be their Common Proctor, with sufficient authority there­unto. I have already shewed, that this whole Parliament was repealed, for the extravagant things that were done in it, of which this was one: And there­fore nothing that was then done can signifie any thing to be a leading Case any ways to be followed. And this as little as any, except it could be made appear, which I am confident it cannot, [Page 116] that some Judgment had been reversed upon that account because the Prelates were not present, and had not given their Assent to it. Indeed 2 H. 5. Tho­mas Montacute, Earl of Salisbury, at­tempted it, brought his Writ of Error to reverse the Judgment given 2 H. 4 against his Father, Iohn Earl of Salisbu­ry, and did assign that for an Error as the Record saith, Item Error de ceo que le dit John susdit Count dust for­faire terres & tenements sans assent des Prelates, qui sont Piers en Parlement les queux ne furent mye faits parties as Declaration & Iug­gementz avandits, Item, An Error in this, that the foresaid Earl John should forfeit Lands and Tenements the Pre­lates not assenting, who are Peers of Parliament, yet were not at all made par­ties to the abovesaid Declaration and Iudgments. But this was adjudged to be no Error, and the Condemnation of his Father to have been just and Legal: And I am very confident that this is the only Precedent of such an Attempt, and yet it makes a stronger argument [Page 117] against it, that it was endeavoured, and rejected, for now it is a Judged Case. And besides, as I have already observed, this desire of the Commons, of their making a Proctor shews what the opini­on of those times was, that the Bishops could not be personally present at such Judgments, which is all that is now in question between us.

His next Precedent is 3 H. 5. when Rich. Earl of Cambridge, and others were tried for Treason for levying War a­gainst the King, the Bishops then perso­nally sitting in Parliament, as he saith, and he bids us see the Record in the To­wer, which I dare say he had not done himself, for then he would have found it contrary to what he asserts, that Ri­chard Earl of Cambridge, and Henry Lord Scroope with him were not Tried nor condemned in Parliament as he saith they were, but by a special Commissi­on directed to the Duke of Clarence, and other their Peers, Earls, and Ba­rons at Southampton, and were there condemned and executed; but the whole Proceedings against them were [Page 118] afterwards brought into Parliament at the desire of the Commons, and were there at their desire likewise ratified and confirmed, and the Bishops then were and might be present, for I look upon it as an Act of Parliament, yet not attain­ting them, but confirming their Attain­der, for they were Convicted, Condem­ned, and Attainted before at South­ampton.

His last Chapter of Precedents from H. 8. to the 29 Eliz. is only of Bills of Attainder, and so acknowledged by him, and therefore Nothing to the pur­pose. As I have said before those Bills are Laws, though Private Laws, where­to every Freeman of England doth con­sent either in Person or Represented; and Bishops are or should be all present at the passing of them, for then they act as Members of the House of Lords in their Legislative capacity: But for their being Judges in any Trial of Life and Death, or part of a Trial, when the House proceeds in a Judicial way, I see no reason by all that hath been said on the other side, to change my opini­on, [Page] [...] [Page] [...] [Page 100] [...] [Page 101] [...] [Page 102] [...] [Page 103] [...] [Page 104] [...] [Page 105] [...] [Page 106] [...] [Page 107] [...] [Page 108] [...] [Page 109] [...] [Page 110] [...] [Page 111] [...] [Page 112] [...] [Page 113] [...] [Page 114] [...] [Page 115] [...] [Page 116] [...] [Page 117] [...] [Page 118] [Page 119] That they ought not. Sir, you see what is said on both sides, be you Judge, who is in the right.


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