[Page] Lord HOLLIS HIS REMAINS: BEING A Second Letter to a Friend, Concerning the JUDICATURE OF THE BISHOPS IN PARLIAMENT, In the Vindication of what he wrote in his First; and in Answer to a Book since published against it, Entituled, The Rights of the Bishops to judge in Capital Cases in Parliament, cleared, &c. It contains likewise part of his Intended An­swer to a second Tractate, Entituled, The Grand Question touching the Bishops Right to Vote in Parliament, Stated and Argued. To which are added Considerations, in An­swer to the Learned Author of the Grand Que­stion, &c. By another Hand. And Reflections upon some passages in Mr. Hunt's Argument upon that Subject, &c. By a Third.

London, Printed for R. Janeway, 1682.

The GENERAL PREFACE.

THE name of the Lord Hollis is so well known, both to the Active, and Contemplative part of Mankind, that no more need be said to recommend any Papers to the World, than to give Assurance that they were his, and by him Designed for the Press.

I am perswaded that most who Read the first of these ensuing Treatises, and have been conversant in that Great Man's Writings, cannot but acknow­ledge this, for the Genuine product of his large Soul, and close way of Reasoning.

But besides the inward testimony of the thing it self, we have other suffici­ent [Page] proof of its being Authentick, from such as had the Honour of a familiarity with that Extraordinary Person in his life time, to whom he communicated his thoughts on this Subject, as he from time to time committed them to Paper.

He lived not to finish any more of his Answer to the Grand Question, &c. than what is now published; but often affirmed that he had Conquer'd all the difficulties in it: Nature was spent, and all the Oyl of his Vital Lamp was consumed, before he could advance fur­ther with his Pen: And when we con­sider that he had past the Age of Man, having arrived to his eighty first year, and that he still continued Writing for Eternity, when he was upon quitting this Mortal state, we may well say that his Life went not out in a Snuff, as most very aged men expire; but that he ascended to Heaven in a bright flame, which still continues to enlighten us that remain here below.

[Page] Surely I cannot be taxt of imperti­nence, if I here strew upon his Herse some of Cicero's happy flowers, since one would think they sprung up now for this very purpose,

Est etiam quietae, & purae, atque eleganter actae aeta­tis placida, ac lenis Cicero de Sene­ctute. ult. edit. tom. 4. f. 532. senectus, qualem ac­cepimus Platonis, qui uno & octagesimo aetatis anno Scribens Mortuus est.

Let no Man say that it misbecame him to spend his time thus, when he was posting to Eternity: He had found Truth to stand in need of his Defence, and his own Reputation was called in question upon his appearing for it.

And next to Devotion, (which with­out doubt had a due share of his time,) nothing perhaps can give a greater fore­taste of the joys of Heaven, than the sense of a Mans having fully vindicated Truth, and his own good name.

[Page] The Author of the Considerations is likewise a person of great Age, and well known for his great Learning: Nor would his Name, if made publick, give any small Reputation to his Book: But he is so sincere a Lover of Truth, that I dare say, he would not have any Man byast with a previous disposition to believe, that there is more force in his Arguments than he finds, but leaves them to their natural energy.

For me to pretend to give the Cha­racters of such Authors as these two, would he a presumption beyond what I am guilty of, in putting some Papers of mine in the retinue of theirs.

But though my Character cannot do sufficient Right to either; yet a Confu­tation of Mr. Hunt's Errors may be a piece of Justice to the Lord Hollis, who has been much undervalued by this warm Author. And as Mr. Hunt is a Man justly in Reputation for his Parts and Literature, unless it be shewn [Page] that his Authority is of no great weight in this sort of Learning, he might wound by his Censure where he doth no great feats with his Argument.

I doubt not but he will pardon my freedom with him, since he has used as much, or more, with what I have formerly published to the World. In­deed by his Preface one would think, that he had wrote before I had set out any thing relating to Antiquities: But then he must needs have understood by way of Prophecy what I would say about the Curia Regis, great part of which he makes use of, and concerning the ex­plication of King Iohn's Char­ter, and several other things, which he opposes.

I am sensible that enough has been said by the Two learned Authors (on whose Papers mine attend:) to clear the Question concerning the Bishops Voting in Capital Cases in Parliament, from all the dust raised by Mr. Hunt.

[Page] But he having put things together in another manner than had been done be­fore, some might think it requisite that there should be a particular Answer gi­ven to every thing of his that bears the face of an Argument, both upon the account of the weight his Assertions may carry with many, and the want of Judgement in others, to apply what may be found in these Treatises to silence all Objections, in how different a man­ner soever they may be repeated. And truly this I had done according to my Talent, but considering that those things are wrote for the Learned, whose Judgements are too delicateisoon to rellish the same dish drest over and over again; I thought it convenient to suspend the pub­lication of what has occurr'd to me up­on that Subject.

Nor shall I at present interpose in that Controversie any further, than to free my self from a two-horned Argu­ment, which I were very dull not to per­ceive [Page] my self to be concerned in, if not solely aim'd at by it.

Having first taken a difference be­tween the Great, or General Coun­cil of the Nation, to which Proprie­tors of Lands, as such, had right to come, till 49 H. 3. And the Curia Regis compos'd of the Kings immedi­ate Tenants, and Officers; I had occa­sion to enquire into the nature of the Curia Regis, mentioned in the Con­stitution of Clarendon, which obliges the Ecclesiastick Tenants in Capite, interesse judiciis Curiae Regis quousque perveniatur ad dimi­nutionem membrorum, vel ad mortem. This I took to relate to Judgements in the Curia Regis, as such: And the ground of coming to the Great, or General Council being different from that of coming to the Curia; From thence I conceived might be gathered a sufficient Reason, why the Bishops might have been allow'd [Page] to vote in a Legislative Capacity in cases of Blood: And yet that practice might no ways Jani Angl. facies nova, p. 186. extend to warrant their sitting as Iudges upon such Causes, ei­ther when there was a bare Curia de More, or when it sat within Habet Rex Curiam suam in concilio suo in Parliamentis suis ubi terminatae sunt dubitationes judiciorum, & no­vis injuriis emersis nova constituuntur reme­dia, & unicuique justitia prout meruerit, retribuetur ibidem, Fleta lib. 2. cap. 2. The passage relating to the constituting new remedies must needs here relate to the power of the Magnum concilium, or curia in making Ordinances. Vid. Jus Angl. ab antiquo. Addit. p. 40. the General Ib. p. 39. Council of the King­dom, more than the Suitors at the Curia being Summon'd.

The Legislative power they exercised as Members of the General Council or Parliament: And the Iudicial power, as Jan. Angl. p. 186, 189, 190. Members of the Cu­ria, [Page] and were Members of the Curia, as they held Lands of the King in Chief: Whereas Men came to the Par­liament generally upon the account of property in Land, without consideration of tenure, so it were free. In short, a Man may have that in an extraordina­ry capacity in Parliament, which he has not there in an ordinary. I likewise held that Becket was try'd for Misdemeanors Jan. Angl. &c. p. 201. only, though according to the Language of those days they were crimina Laesae Maje­statis, and that the Try­al Ib. p. 199. was in a bare Curia Regis, when no more Ib. p. 189. than Suitors to that were summoned.

Mr. Hunt's Argument upon this fol­lows,

If it was the Curia Regis wherein the ordina­ry Justice of the Na­tion Mr. Hunt's Argu­ment, p. 17. was admini­stred, [Page] and not the Parliament was intended in the Assize of Clarendon, in which the priviledge and indul­gence under the quosque was al­low'd to Bishops, then the Assize of Clarendon is unduly urg'd against the Bishops judging in Cases of Blood in Parliament, &c. And consequently by the Assize of Cla­rendon the Bishops have no leave to withdraw. If the Court wherein Thomas Becket was tryed was the Curia Regis, then the Bishops judging in that Court in that cause doth most clearly declare (that be­ing a case in point) that the quo­usque was an indulgence which they might use or wave.

Now to my thinking, this seeming ir­refragable Argument has no real force: For, not to mention his wrong interpretation of Vid. p. 100. & 139 to 166. the Constitution of Clarendon, nor yet Vid. p. 65 to 70, & 172 to 181. [Page] his mistake of the Fact in relation to Becket's Tryal, as if he were Try­ed for a Capital Offence: In both which I doubt not but he will receive Conviction to the contrary from these two Learned Authors: I am bold to say, that there is no manner of conse­quence in the first Branch of his Di­lemma, which is the only thing that can lye upon me to answer: And truly, I conceive, that it by no means follows, that because the Curia Regis in the Constitution of Clarendon is not the whole Parliament, but only that Court which (either when a Parliament was held, or when only a Council of Te­nants in Capite, or Lords, assem­bled) had the sole exercise of the Judi­cial Power, that therefore Iudgements in Parliament before the Lords, such as were Members of the Curia, are not affected by that Constitution, any more than we can now say, the House of Lords cannot be concerned in any [Page] matter which does not belong to the whole Parliament.

I shall only add three Observations, which may go far to put an end to this Controversie.

1. That part of the Constitution of Clarendon, which says of the Ec­clesiastick Tenants in Chief, De­bent interesse Judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel Dr. Stillingfleet says, The King insisted on the re­ceiving the Anci­ent Customes of Clarendon. An­swer to Cressy's Apol. p. 100. ad mortem, was part of the avitae consuetudines ec­clesiasticae.

If it had been a New Law, then indeed whatever was not expresly for­bidden, were matter of Liberty: But it being only in affir­mance of the Ancient This received o­ver all the We­stern Church. Bur­net's History of the Reformation. f. 101. Law, their Liberty went no further than the usage, which was [Page] to be present only till such Causes came to be tryed.

2. If Precedents are as Mr. Hunt censures them, like an Oracle, that will al­ways Mr. Hunt's Arg p. 6. give a Re­sponse agreeable to the Enquirer and Consulter; then we must, as I formerly did, look to the Law in the Case, Jan. Angl. facies nova, à p. 186. to 219. without entring into the large Field of Prece­dents.

3. If the Canons require the Bishops not to concern themselves in the Tryals of Capital Causes, and those Canons have been sufficiently received to be­come the Law of the Land; which these Authors prove undenia­bly, then the Bishops Vid. p. 87, 183, 184, &c. must ever be supposed to have been absent when such matters came in que­stion in Parliament; unless they are mentioned there by name, and cannot be [Page] comprehended under words common to them with the Temporal Lords, any more than we can imagine that the Po­pish Lords, who are excluded the Lords House by Act of Parliament (yet still are Peers) are Parties to any Judge­ment given by the Peers there.

…
SIR,

THE former trouble I gave you upon this Subject, you pulled upon your self by desiring my opinion in it; but for this I now give you, I must beg your pardon, it being singly upon my own account, to do my self [...]ht, and justifie what I then wrote to you, against several asper­sions cast upon me in a Pamphlet entituled, The Right of Bishops to judge in Capital Cases in Parliament, &c. made it seems by the same person, who had set out the other Pamphlet intituled, The Honours of the Spiritual Lords asserted, &c. Of which I gave you some ac­count in a Postscript to my former Letter, and I think, without any sharp reflection either up­on that Author or his work. The most I said was, When I had instanced in three notorious falsifications of his: The first is, p. 112. where he quotes Mr. Selden to prove, That the Spiri­tualty made their Proxies in Capital Causes in more Parliaments than the 21 R. 2. for that they did it likewise in the 2 H. 4. and 2 H. 5. which I shew was a mistake, and only said he could not find it so in the Record it self, but that he took it upon trust out of the Margin of [Page 2] Mr. Seldens book of the Priviledges of the Ba­ronage p. 125. where there is such a quotation of the 2 H. 4. and the 2 H. 5. but wholly misapplyed by our Assertor of Honours; for Mr. Selden alledges that Precedent to shew, that whereas 2 H. 5. it was by the then Earl of Salisbury assigned as an error in the At­tainder of his Father, (who was condemned of High-Treason in the 2 H. 4.) because it was done Sans Assent des Prelates, which are the words of the Record, Without the As­sent of the Prelates (by the way speaks nothing of Proxies) it was then adjudged to be no error, and his Petition rejected, which in truth is a strong Argument to prove that the Pre­lates had no right to be present at such Try­als and Judgments, which is the main Question between us. And though he being of another mind, had maintained his opinion by so gross a prevarication, I was so far from retorting it upon him with any bitterness, saying, It was disingenious, and a suppressing of truth, and not set­ting things down faithfully; which is his ordinary language concerning me: Or with insipid jeers, saying, I wear a sharp Sword, a Tren­chant Toledo, as one of the younger house of great Alexander; and that he brings me to the Sun like Alexanders Horse; and telling of the Magical combate in Apuleius; and a City of Birds in Aristophanes, and such other scur­ralous passages as his Book is full of; which shews the sweetness of the Gentlemans nature, and the goodness of his cause, which he main­tains only by railing and false assertions: Whereas I rather lessened his fault, saying, [Page 3] only that he was mistaken, by being misled by the Printers misplacing the quotation, so excusing him from any wilful error, and purposely vent­ing of untruths.

I do the like in another great falshood of his in the page following, upon his citing a Record 21 R. 2. In the case of the Earl of Arundel, which he makes to be, That the Lord Steward by the assent of the King, Bishops and Lords, adjudged the said Earl guilty of Treason; whereas the Record runs, That the Lord Steward by the commandment of the King and all the Temporal Lords, and Sr. Thomas Percy, empowered by the Prelates, and all the Clergy of the Kingdom, judged him guil­ty, &c. This you see is a foul misrepresenting of his Precedent, and imposing upon the Rea­der a falshood instead of a true Record, for it shews that no Bishop was personally present, and I make it out, That the putting of a Lay-man in their steads, is a strong evidence of the incapacity of all Clergy men to be any of them personally present at any of those Tryals. Yet in this I rather excuse our bold Assertor, shewing how he was misled here likewise by Sr. Robert Cottons Abridgment; and only add this, That methinks one should not venture to quote a Record upon any mans allegation without consulting the Record it self, which, I said, I am sure he had not done; which I think was as gentle a reprimand as could be, and shews, That I supposed him such a lover of truth, as that if he had known it a falshood, he would not have made use of it, only he was deceived, relying upon the authority of that learned [Page 4] Antiquary, Sir Robert Cotton; but in truth I am now of another mind, and see my Gentleman hath a large Conscience, and a mercenary Pen to publish any thing right or wrong to please those that set him on work.

His third notorious falshood is, The Prece­dent, which he cites of Richard Earl of Cam­bridge, who he saith, 3 H. 5. was tryed in Parliament, upon an accusation of Treason, and found guilty; the Lords Spiritual being personally present, and bids us see the Record of it in the Tower: To which I only say, That he had not done it himself, for he would have found it contrary to what he asserts; and that the Earl of Cambridge was tryed, condemned and executed at Southampton by a special Commissi­on; and that his Attainder was afterwards brought into Parliament, and there confirmed by Act of Parliament, at which the Bishops might be present.

Now I pray you Sir, do you judge if I gave him any occasion for such a reply as he hath made to me throughout, from the beginning to the end of his Pamphlet: and if he should not first have considered the Beam in his own eye, and have purged himself, and given the world satisfaction for these gross mistakes of his, rather than add more to them as he hath done all along his book, with language fitter for Billingsgate, than for the eyes or ears of any sober man: But I see it is the nature of the Beast, as the Proverb is, which he cannot help, therefore we must take him as he is,

Naturam expellas furca licet, usque recurret.

[Page 5] And now Sir I must beseech you to pardon the trouble I have given you with this long Recapitulation of those his falshoods in his former Pamphlet: In which I have been the longer to set forth the advantage he gave to one that would have fallen soul upon him, and how gently I dealt with him, thereby to justifie, or at least something excuse my sharp­ness with him now (which I confess and am sorry for) for his base return of scoffings and railings against me, not fit for a Gentleman, who deserved better at his hands, and gave him not the least provocation for it: But tread upon a Worm, and it will turn again. And so I shall apply my self to answer what he saith as to his Arguments in the maintenance of his Assertions, which I think will not prove very convincing, and will follow him, as he sayes he would follow me, step by step, and I hope I shall make it appear, that he hath made ma­ny a false step, and will begin with his Postula­ta's as he calls them, wherein he saith we do agree, but he means I think like Dogs and Cats.

His first Postulatum is concerning the Pro­testation of the Bishops 11 R. 2. Wherein he saith we both agree that it is a Law, But that I have not set it down faithfully, leaving out the most considerable things in it, because they make against me; which if I have done, I am a very bad man, and may pass not as he stiles me for, One of the younger house of great Alexander, but rather of the house of this great Asserter him­self, who is the chief of the family of the As­serters of untruths. His charge against me is, [Page 6] for leaving out a passage in my recital of this Protestation, which is, what they say in the beginning of it, and likewise towards the end of it, claiming themselves to be Peers, and that in right of their Peerage by the Laws and Customes of the Kingdom, they ought to be personally present in all Parliaments. Then he subjoyns another Protestation in the 28 H 6. which he saith also I have not cited faith­fully and ingenuously, as I ought to have done. This is a great charge upon me if it be true, that I have done any thing unfaithfully and dis­ingenuously, of which I hope I shall be able to purge my self.

And first give me leave to make a Protesta­tion for my self in the general, which I do upon the faith of a Christian and an honest Man, and it is this, That neither in the citing of these Records, or any other throughout my Letter to you, I have purposely and willingly left out or concealed any thing that I thought mate­rial, because it made against my opinion: But what I have written is the naked truth as I am fully perswaded in my Soul and Con­science, and all that I have done in it hath been singly and meerly for the discovery of the truth, and the satisfying of my self and o­thers, of which I take the searcher of all hearts to witness; and let our Asserter say so much if he dares, though for venting falshoods for truths, I find him a daring man.

And now to come to these particulars, I will first lay before you upon what ground and to what end I urged that Protestation of the Bishops, 11 R. 2. It was for two reasons, [Page 7] One to shew, That it being at their desire en­rolled in full Parliament by the assent of the King, Lords Temporal and Commons, it came to be the Law of the Land, though it had not been so before: The second thing was to shew that the Salvo of the Prelates in that Pro­testation extended only to their Right of Sitting in Parliament in other cases, but not in Cases of Blood; and that they did not therein at all pretend to that: which I think I very clearly proved in that Letter, to which I refer my self. But for these omissions which he makes so criminal: As for the first, concerning my not expressing that they made their Peerage a ground of their Protestation: I answer, That since what I conceived and maintained to have been their end in their Protestation, which was, Only to assert and lay claim to their Right of being present in Parliament in all o­ther matters, but matters of Blood, was not at all controverted by me, but that, to which I fully agreed in omnibus, I did not think it at all necessary nor proper to insert what moved them to make such a Protestation, but only so much as was to the purpose for what I alledged that Precedent: The matter of their Peerage is another point, for which in truth there is little ground, notwithstanding all their claim to it; and that it be sometimes attributed unto them by such as desire to please them, and per­haps by many ignorantly and mislead to it, in regard of their sitting in the Upper House of Parliament, and having a Parity of Vote with the Temporal Lords in the Legislative part, and likewise in the judicial part of that House, [Page 8] in all other Cases but of Blood, from which they have been particularly debarred both by their own Canon Law, and afterwards by the Law of the Land, and the custome and usage of Parliament, which may very well make ma­ny persons not considering the true nature of Peerage, nor examining with care and dili­gence what in that particular our Law saith, and what hath been the usage of Parliament, give them that Appellation: But I have in my former Letter cleared also this point (I think) very fully, and shall say more to it in this, when I come to answer that Article hereafter in course, as our Assertor brings me to it, for this now is but by the way upon occasion of this his first Postulatum.

And now for his other charge upon my un­faithful citing the Protestation in 28 H. 6. leaving out how the Lords Spiritual and Tem­poral joyned in challenging their Right of Ju­dicature, and that the Judgment given by the King concerning the Duke of Suffolk should not turn to their prejudice, but they and their Successors should enjoy their liberties in case of their Peerage hereafter, as freely and as large­ly as their Ancestors had before them: I shall give a like answer to this as I did to the other, I concealed nothing that was necessary and proper to be said, which may appear by my letting forth particularly the whole proceed­ing in that Tryal, step by step, how the Pre­lates joyned in the management of it, from the beginning to the end; therefore certainly it had been no more a disadvantage to me to ac­knowledge that the Prelates claimed such a [Page 9] Right in a verbal Protestation, than that they did actually exercise it, as I say they did all a­long in the whole transaction of that business: Therefore if it was designedly done, it was a weak design in me; my end was only to shew the palpable extravagances of that Tryal, and of the Kings taking upon himself to give the Judgment, and so mentioned the Lords Pro­testing against it, in which the Prelates joyn­ed with the Temporal Lords, as well as they had in all the foregoing passages of it: for the matter of their Peerage, I reserved it still to be spoken to in a clause apart by it self, when it comes to be the proper subject matter in question, I did it in my former Letter to you, and I shall do the same in this.

His second Postulatum is concerning Attain­ders, in which he saith we both agree that Bi­shops may and ought to be present, and yet Attainders, saith he, are matters of Blood; and learnedly he adds, That it is not material in the Judgment of any considering person, which way a mans life is taken away, whether by way of Attain­der, or by Impeachment; and infers further, That the Canon Law, which by a jeer he saith, I call the Law of Laws, is not so indispen­sibly obliging. And our Asserter it seems puts himself into the rank of those consider­ing persons, that make an Attainder and an Impeachment two distinct species or kinds of proceeding against a Criminal person to take away Life, saying it is not material which of the two wayes life is taken away, whether by Attainder or Impeachment. Oh the Ignora­mus, that wants a considering Cap to judge [Page 10] aright and know what an Attainder is, which is what follows upon the Conviction and Con­demnation of the guilty Person, be it upon an Impeachment in Parliament and Tryal there in a judicial way, or by an Act of Parliament in the Legislative way, or by a special Com­mission of Oyer and Terminer under the great Seal; the Attainder is the Result and Conse­quent of those three wayes of Tryal and Con­demnation, and not a distinct thing running in a different channel from an Impeachment or from any of the other wayes of Tryal, being the end and consequent as I say of all Tryals, when the person is found Guilty. The Term Attainder or Attainted implies so much, which our Etymologists derive from the Latin At­tingere, to Touch or Reach to a thing; Now a Criminal person is touched or reached unto, and seized upon by the Law, upon an Im­peachment and Tryal in Parliament, or by a Tryal out of Parliament by Commission, as well as by an Act of Parliament, so I think one may give it this Definition, That it is a Notion in Law, whereby the Law reacheth and seiseth upon a Condemned person, taints his Blood and divesteth him of all his Privi­ledges both in publick and private concerns, which he enjoyed before as a Free Man of England.

Besides, our confident Asserter doth not con­sider the nature of the Question in controver­sy, which is not, Whether a Bishop quatenus a Bishop, an Ecclesiastical person in holy Orders, may be present as a Judge in any case when mat­ters of Blood are agitated? and whether the [Page 11] Canon Law be so obliging, as that in no case he may, but whether by the Law of the Land, and the custome and usage of Parliament, the Bishops be forbidden it, when the House of Peers acts in a judicial capacity to condemn any body, and not when they pass an Act of Parliament for it, and I think it is clearly made out, That they may in the latter case, passing a Law for it, and not in the former, to act as Judges in a judicial way.

His third Postulatum is concerning the Peti­tion of the Commons 21 R. 2. That in regard divers Judgments in Parliament had been here­tofore undone and repealed, for that the Lords Spiritual were not present at them, the King would command them to make some their common Procurator with sufficient authority thereunto; which would put an end to all con­troversies: To this he saith, That for me to demand what in particular those Judgments were at this distance of time, is neither equi­table nor rational: And truely I made no such demand, for I do very well know what judg­ments the Commons did then not intend, which were all Judgments in Capital Cases; for it is most clear by all Records of Parliament, and all the vestigia that remain with us of the usage and proceedings of antient Parliaments, that there is not the least colour for so much as a doubt or a suspition that the Prelates or Lords Spiritual could have any part in those Judgments. And we know on the other side, what judgments they had their shares in, which were all Judgments in such Civil Causes as came into the Parliament, and in Criminal [Page 12] Causes that were not Capital, and the Com­mons then could intend none but these, which was enough to satisfie me, that this Petition of theirs at that time was no wayes contrary or repugnant to what I maintained. And by the way, methinks it is worth observation, the reason they give of their desire that the Bishops would make a Proctor, not so much for that, that their presence there was of so absolute necessity, as that what was done without them was in it self null and void, but to put an end to all controversies; which shews the Prelates had expressed some dissatisfaction, and had gotten some things which had been done in their ab­sence to be undone and Repealed, which con­sidering their power at that time, and how all the Laity was in awe of them, would have a great effect upon mens minds, and make them do what else they would not have done, and perhaps strain a point a little to satisfie them: And still it shews, that notwithstanding their absence they were good and valid, till the same power that had made them did Repeal them. And to shew what an ascendant the Prelates had over King and Parliament and the whole Kingdom at that time, see what they did but the year before 20 R. 2. They declared un­to the King in open Parliament, That they were sworn to the Pope and See of Rome, and if any thing were in Parliament attempted in restraint of the same, they would in no wise assent thereunto, but would utterly withstand the same: and can we then wonder, if the Commons were not ve­ry loth to displease them, and willing to com­ply with them much rather than have a contro­versie [Page 13] with them, and perhaps be fain at last to undo what they had done?

His fourth Postulatum is upon the Protesta­tion of Viscount Beaumont in the name of the Lords Spiritual and Temporal in the Case of William de Pole Duke of Suffolk, which hath been touched upon before, wherein he now saith I have left out the most material words; but what they are he expresseth not, nor can I imagine what he means; As I have already said, I have been very particular in setting down every circumstance of the whole proceed­ing, acknowledged the actings of the Prelates in it thoroughout as far forth as the Temporal Lords, and then I say, how upon the Kings gi­ving Judgment upon the Duke, that Viscount in the name of the Lords Spiritual and Tempo­ral made that Protestation, That it should not be nor turn in prejudice nor derogation of them, their heirs, ne of their Successors in time to come. I think this was sufficient to shew that I did ac­knowledg all that could be pretended to for the Bishops Judicature in that business, and what this Assertor would have more, and wherein I have failed I can not imagine, on­ly I see he is a quick-sighted Gentleman and can see further into a Milstone, than ano­ther man, and spy a fault which another can­not see.

He hath a fifth Postulatum, to whichI can say nothing, for I understand not what he would be at, he speaks of my accurateness in ma­king a distinction between the Matter andForm of a Law, and then saith, He observes three things (though he expresseth but two) which [Page 14] he saith, he shall have occasion to make use of hereafter when he comes to speak of the parti­cular Cases; and I must refer my Answer to what I shall there find, when I believe I shall make it appear that he makes no great use of them, nor of any other Argument that he brings.

And now I come to the particular Cases, the first is 4 E. 3. of Roger Mortimer Earl of March being then condemned for Treason. Here our Asserter saith, That by 28 E 3. up­on his Cousin Roger of Wigmore's petitioning to have this Judgment and Attainder reversed, I acknowledg it to be an Attainder, If I say truth, say nothing to the purpose. This is gentile language, and which discovers my Gentlemans ignorance, as well as his rudeness; his igno­rance in conceiving an Attainder to be only by a Law, by an Act of Parliament, in which Bi­shops may be present, and if they were not so, but did withdraw, it was their own voluntary act, and no diminution to their Rights: I have already upon his second Postulatum handled this point so fully, and made I think both his errour and the truth so clear, as I need not say any thing more to it here.

Then it is a pretty Argument he brings a­gainst my saying, That the Record being, Les queur Counts, Barons & Piers les Ar­ticles per eur eramine; rebindrent, &c. Which Earls, Barons and Peers having examined the Articles returned, &c. It must be inferred that the Bishops cannot be comprehended un­der the word Peers, since the Barons are na­med first; To this his Answer is, Well but I find [Page 15] the contrary, Peers many times put before Ba­rons, particularly in Mr. Selden's Baronage, p. 12. then he cites a Record of the Judgment against John Mautravers, where it is said, For which the said Peers of the Land and Judges of Parliament adjudge and award, &c. Doth this at all contradict my quotation of the Record in Roger of Mortimers Case, but that it is as I say, That the general word Peers is there put after the Barons, and being so cannot comprehend Bi­shops, because in some other Records that word is put before.

He talks of drawing arguments illogically, I am sure this is so. I would put him a Case, he brings his Action of Slander against one, for that at such a time in such a place he had spoken ill of him, and said he was a lying Knave, and other words that will bear an Action, and proves it by witness; That man proves by other Witnesses, That at another time and in another place he had spoken very well of him, and said, He was a fine Gentle­man; I ask now if he would be satisfied with this, and not stand upon it, that he had pro­ved his Plaint, and expects a Verdict and Judg­ment upon it: So may I say, that my Prece­dent stands good, and proves what I alledge it for, and what he saith, is not to the pur­pose.

But I will go further, and make it appear that even his Precedents that he alledges, make all for me, and against himself, and though he charges me with not being so good as my word, saying, That I would run through all the Tryals upon Record, in that I have omit­ted [Page 16] four in that 4 E. 3. I shall give you an ac­count of those Tryals in that Parliament, and you will see that I could have no sinister end in not mentioning them, and that all of them prov­ed and confirmed my assertion, that the Bishops had no part in any of them. I expressed as much as was necessary to prove they were not present at Roger de Mortimers Earl of March, who was the chief and the principal of those Delinquents, and whose Tryal was the lead­ing Case to all the rest. I give you the words of the Record, how after the exhibiting of the Articles against him, the King bespake the Judges, the Peers who were to judge him, and charged them in these words, Dont le dit Sr. le Roy vous charge Counts, Barons, les Piers de son Royalme, que de st come cest choses tou­chent principalement, a lui a vous & a tout le people, &c. Therefore our said Lord the King char­ges you the Earls, Barons, Peers of his Realm, that as these things chiefly concern him and you and all the people, &c. You give righteous Judgment. I ask now if this be not as clear as the Sun at noon-day, that by the words of this Record, I charge you the Earls, Barons, Peers of the Realm, (which is the same as if he had said, I charge you Earls and Barons who are the Peers of the Realm) can be no otherwise understood, but that only the Earls and Barons are the Peers that are there charged, and none else, to give this righteous Judgment: The Earls and Ba­rons are the two Species, particularly enume­rated, and Peers is the genus which compre­hends both: And the same persons whom the King had so charged are they who tryed and [Page 17] gave Judgement upon the Earl of March, as the Record shews it, saying, Les queux Countes, Barons & Piers, &c. did judge him guilty of those Treasons. And the very same persons did give Judgement immediately in that very Parliament upon the rest, viz. Sir Simon de Bereford, John Mautravers, Boeges de Bayons, and the rest. Therefore my not mentioning their Tryals, which our Asserter lays to my charge as a Crime, and a not doing what I had engaged my self to do, which was to run through all the Tryals in those Parlia­ment Rolls, could not be designedly done, with an intention to conceal any thing which made against me, as it is maliciously and very falsely interpreted, for they all made for me, and it was a passing over sub silentio, of so many Precedents that confirmed and fortified what I asserted. And should you, Sir, ask me, why I omitted the mentioning of them? I profess I could give you no good account of it, but that it was a meer inadvertency.

When the question first arose about the Ju­dicature of the Bishops, I took some short notes of some Copies of Records that I had; and then seeing that all those particular Tryals in 4 E. 3. hung all upon one string, and were managed by the same persons, it seems I thought it then sufficient to set down the proceedings in the first, which was the rule and foundation of the proceedings in the rest, and afterwards when I came upon your request, to take a little more pains in making my enquiry into the usage of ancient Parliaments, I was after­wards more exact in it; but when I wrote my [Page 18] Letter to you, I made use of my notes which I had taken of the first Parliament, and par­ticularly of 4 E. 3. where these other Tryals as I say, were left out. But I shall now give you an account what they are, and you will see it was not for my advantage to conceal them, nor would it have been for our Assert­ers advantage if they had been mentioned; but he quarrels at every thing.

Only give me leave before I come to that, to set it down as a general Rule, and a very true one, That wherever there is an enume­ration of particulars of several ranks and de­grees, which goes downwards, beginning with the higher and ending with a lower, and in the close, a general expression is of O­thers to be added to, and joined with them, those others must not be of a higher rank and a superiour degree to that particular which is last mentioned, but either of the same degree, or of a lower. This is a judged Case even in the business of Bishops in Cokes second Re­port in the Arch-bishop of Canterbury's Case, p. 46. Ad este adjuge que Evesques ne sont in­clude deins le Statute, 13 Eliz. c. 10. It hath been adjudged that Bishops are not included in the Statute 13 Eliz. c. 10. which saith, That Col­ledges, Deans and Chapters, Parsons Vicars, and then concludes, and Others having Spi­ritual Promotions, that these last words cannot include Bishops, for reasons before given, which reasons are upon the Statute of 31 H. 8. concerning the dissolution of Abbies, which mentioning their co­ming into the Kings hand, by Renouncing, Relin­quishing, Forfeiture, Giving up, &c. and concludes [Page 19] with general words, Or any other means; this cannot be understood of an Act of Parliament, which is a higher way of conveyance, than any of those specified. So Sir Edward Coke upon the Statute of Westminster the second, c. 41. which saith, Si Abbates, Priores, Custodes Hospitalium & aliarum domorum Religiosarum, &c. hath this Comment, Seeing this Act begins with Abbots, &c. and concludeth with other Religious Houses, Bishops are not comprehended within this Act, for they are superiour to Abbots, &c. and these words, Other Religious Houses, shall extend to Houses inferiour to them that were men­tioned before. So I conclude, that the Record saying, Earls and Barons and Peers, &c. the general words, And Peers, can comprehend none but some other Peers, equal only, or in­feriour to Barons, and not any above them, as I am sure Bishops will say they are. And I will tell you when those of a higher degree may, and must be comprehended under a ge­neral expression, that is, when the Enume­ration or Climax (for so I may call it) goes upwards, beginning with a lower Rank, and rising higher in those which they particula­rize: As if it be said, Barons, Earls, and all other Peers; here Marquesses and Dukes will be comprehended, and Bishops also would be, if they were Peers, which they are not; but still I say, if the enumeration descend, none higher than the last mentioned, can be un­derstood to be meant by any general clause.

I think you are satisfied that the E. of March was Tryed and Judged only by the Temporal Lords to whom the K. had committed his Try­al, [Page 20] and charged them only with it. Sir Simon de Bereford was the next who was Tryed, and by the same Persons; the Record is Item en mesme le Parlement si chargea nostre Sur le Roy les ditz Countes, Barons & Piers a donner droit & loyal Iugement come affiert a Simon de Bereford, Chebalier, &c. Item, in the same Parliament our Lord the King charged the said Earls, Barons and Peers to give a right and loyal Iudgement upon Sir Simon de Bereford, &c. It follows afterwards, Si agarderent & avig­gerent les ditz Countes, Barons & Piers, come Iuges du Parlement per assent du Roy que le dit Simon come treitre fast treisne & pendu. So the said Earls, Barons and Peers, as Iudges of Parliament, did with the Kings as­sent, award and adjudge Sir Simon de Bereford to be Drawn and Hanged. You see the same persons were his Judges, who had before Try­ed and Condemned the Earl of March; yet I must observe a little difference in the expres­sions: The King in giving the charge to the Peers in the Earls Case, the words of the Record are, The King charges you Earls, Barons, Les Piers de son Royalme, The Peers of his Realm, which must be construed, Who are the Peers, or Being the Peers of his Realm: And then their Judgement comes to be set down, the Record saith, Les queux Countes, Barons & Piers, &c. The which Earls, Barons, and Peers, did so and so, with a Conjunction Copulative [and] before Peers, as if there were some other Peers after the Earls and Barons; which if there were, we are sure it could not be the Bishops, which [Page 21] is all that we are to enquire into: We know that heretofore the Kings of England did sometimes send Writs of Summons to other persons, that were not Peers of the Realm, but persons of Quality, as Bannerets, and some Officers, as the Warden of the Cinque-Ports, whom I find commonly to be the last set down in the List of those who were summon­ed: And those persons so summoned, came and attended the Parliament, and had Voice and Vote with the Peers, as Members of their House, and as Peers pro tempore, and might be comprized under the general name of Peers, and being Lay-men, might act as Peers in all Tryals, and in all other Judgements of Parliament, both Civil and Criminal, even in Capital Causes; but these could in no sort be esteemed to be Peers of the Realm, though they might pass in a large acceptati­on, and a vulgar construction of the expres­sion, be termed Peers in Parliament. These now might be summoned to a Parliament, or two or three Parliaments one after another, as pleased the King, and then be summoned no more, if the King was otherwise minded; and they could not pretend to have wrong done them, their former Summons having been Ex mera gratia, without any right of theirs to them. So then I may conclude that it is all one, whether you will take it as it is expressed in the Kings charge then, The Earls, Barons, Peers of the Realm, &c. or as it is when they come to give Judgement, and as it is likewise expressed in the Case of Sir Simon de Bereford, The said Earls, Barons and Peers, [Page 22] &c. and whether that Conjunction [and] be­fore the word Peers, be of any signification or no, to mark out other Peers subsequent to the Barons, is not material to what our As­serter would have to be understood of my leaving out any thing, for it had all made for me, and against him, making it clear enough, that the Bishops had no part in those Judgements.

The next Precedent is the Judgement of Iohn Mautravers, the Record says, Trestouz les Piers, Countes & Barons, assemblez a ceste Parlement a Westminster, [...] ont exa­mine estroitement, & sur ce sont assentuz & accordez que John Mautravers [...] est cul­pable, &c. All the Peers, Earls and Barons, assembled in this Parliament at Westminster, have strictly examined, and thereupon have agreed and accorded that John Mautravers is guilty, &c. I appeal now to any man that hath but common sense, if it can be imagined, that the Prelates or Bishops can be thought to be meant by that expression of All the Peers, and if it be not the same in signification, as when the King charged them to give righte­ous Judgement upon the Earl of March, say­ing, Si vous charge Countes, Barons, les Piers de mon Roialme, &c. And so I charge you Earls, Barons, the Peers of my Realm, &c. There the several ranks of Peers are first na­med, and the general word, which denotes their Quality, common to both, which makes them competent Judges of those mat­ters, that is, their being Peers is put last: And here in this Record concerning Mau­ [...]avers it is put first. Which comes all to one. [Page 23] And it is further observable, that at the time of that Parliament, there were no Tem­poral Lords before Earls, neither Dukes nor Marquesses: So if any others were to be un­derstood to be comprised under that General Title of Peers, it could be only the Lords Spiritual, which is a thing very ridiculous to believe: Can it be thought, nay can our As­serter himself think, I trow not, that when the other particular ranks and degrees of the Peerage are expressed and set down nominatim by name (as one may say) by Tale and by Token, Earls and Barons, that (I say) at the same time, and to be joyned with them in the same action, another rank of men, viz. Bishops must pass under a General Title, and that put in the first place, as if Peerage were an Apellativum [...] to them, or a Ge­nus Imperfectum [...], to the two Spe­cies, the Lords Spiritual and Lords Tempo­ral, which Genus the Logicians define to be Quod speciebus suis non communicatur ex aequo, sed alteri magis, alteri minus, uni speciei immediatè & propriè, alteri mediatè & in ordine ad prima­riam: And that so the Lords Spiritual should still be principally and chiefly meant, by the General Name of Peers, they Primariò, and the Temporal Lords Secundarió. Those Lo­gical expressions I know our Asserter under­stands well, who blames others for bringing Illogical arguments, therefore I put this to him. But that they are not at all Peers of the Realm, to speak properly and truly, and as they are in the eye of the Law, though they have sometimes been stiled so, both by [Page 24] themselves and others, I have in my former Letter I think made it clear, and all that our Asserter saith to the contrary, hath not made me change my opinion, and I shall say more to it, when I come in course to answer what is there said by him.

In the mean time I shall only add this, which I lay for a ground, that I do verily believe no instance can be given of an enumeration of some particulars in an Universal Colle­ctive Proposition, and to leave out that par­ticular which is first in Rank, and ought to be first named, if any at all be named, and to have that to be tacitely implied under the General Term, the Signum Collectivum, As in this Proposition, All the Peers, Earls and Ba­ [...]ons, gave such a Iudgement: This I say, that if the Bishops did joyn in the Judgement, it would have been so expressed, and they would have been first named, otherwise it is like an Et caetera in the beginning of an Enumerati­on, which in the close, and after an enu­meration of some particulars, may intimate a joyning of some others that are not parti­cularly specified and named, but is never put in the beginning. And I think, I may with confidence affirm, That there is no example in all the Rolls of Parliament, that any of the Benches of the House of Lords hath been particularly mentioned in any business, and if the Prelates did likewise act in it, that they were not also particularly mentioned, and always in the first place, nay, before any other, even before the Prince of Wales, and the Princes of the Blood, as may be seen in [Page 25] the Roll 28 E. 5. upon Roger of Wygmore's Petition, the Record saith, Le Roy [...]st venir devant lui & les Prelatz & Edward son fitz eisne Prince de Gales, Henri Duc de Lancastre, Countes, Barons & Piers le Iugement, &c. The King caused to be brought before him, and the Prelates, and Edward Prince of Wales his eldest Son, and Henry Duke of Lancaster, and the Earls, Barons and Peers, the Iudgement, &c. Now is it probable, or can it be belie­ved, that the Decorum concerning the Bi­shops being in those times still so punctually observed, and that respect always given to the Prelacy, whenever they were concerned to mention them particularly and in their due place, that they would in that Parliament of E. 3. be content to be comprized under a ge­neral notion, and pass as a man may say In­cognito, when others have more respect shew­ed them, to have their names recorded? I do not think that the Clerk of the Parlia­ment durst have been guilty of so great a disrespect to them: Therefore we may well conclude, that in this Judgement upon Mau­travers, the Prelates were not at all signified under the general word of Trestouz les Piers, Countes & Barons: All the Peers, Earls and Barons; nor were they at all present, or had any part in that Tryal, no more than in that of Roger de Mortimer, Earl of March.

The other persons judged that Parliament, had all the same Judges, and passed under the same Judicature. The Record for Boeges de Bayons and John Deuerell is, Item tieu Iugement est assentiez & accorde que soit fait [Page 26] de Boeges de Bayons, John Deuerell pur la cause sus [...]ite, &c. Item, The same Judgement was agreed to, and accorded to be given upon Boeges de Bayons and John Deuerell, for the cause aforesaid, &c. The very same words are likewise for the Judgements upon Thomas de Gurney, and William de Ocle. And to prove it more authentically that they were all Ejus­dem farinae, of one and the same nature, I will give you the Kings Writ that declares them to be so, to the Lord Treasurer, and Barons of the Exchequer, commanding them so to inroll those Judgements, and with them a kind of Protestation made by those Peers, stiled a Concordia ne trahatur in Consequentiam: An Agreement that it should not be drawn into Consequence: That is, Not made a Precedent, to oblige and compel them to judge hereafter any but their Peers, because of the Judgement they had then given against Sir Simon de Bere­ford, John Mautravers, and the rest, who were Commoners: For as for those who were their Peers, they could not avoid the Trying of them, particularly in Parliament, where on­ly a Peer of the Realm can be tryed in Par­liament time, which hath ever been the pri­viledge of the Peers; and from which I shall in due time and place, before I make an end, draw I think, an Argument not to be answer­ed, that the Bishops are not Peers, for if they be Peers, and questioned in Parliament time, they must be Tryed in Parliament.

But 4 E. 3. Stephen, Bishop of London, having been complained of in Parliament for saying, That if Edward the Second were still alive (as [Page 27] he was informed that he was, and in Corfe-Castle) he would assist him with all his force, to re-establish him in his Throne; was by the Parliament, referred for his Tryal to the Kings Counsel, and by them to the Kings-Bench, where putting himself super Patriam, to be Tryed as all Commoners do, a Jury was empannelled, and the Tryal went on there in the Kings-Bench, till at last he got the Kings Pardon: This is Term. Pasc. 4 E. 3. rot. 53. Now had the Bishop been truly and really a Peer of the Realm, neither could the House of Peers have avoided the Trying of him themselves, nor would he have submit­ted to a Tryal elsewhere out of Parliament, the Parliament being once possessed of his Cause.

But this is by the by, the Writ for inrolling those Judgements, and the Concordia is, In Memor and. Scaccarii inter Brevia directa Baroni­bus de Termino Sancti Hillarii Rot. 33. 5 E. 3. In these words, Rex Thes. & Baronib. suis salutem. Bittimus vobis sub pede Sigilli no­stri quaedam Iudicia in Parliamento nostro apud Westmon. nuper tento per Comites, Barones at alios Pares regni nostri super Rogerum de Mortuo Mari & quosdam alios reddita, nec non quandam Concordiam per nos & Pares praedictos, nec non Communita­tem Regni nostri in eodem Parliamento fa­ctam super praemissis, Mandantes quod Iudicia & Concordiam praedicta in Scaccario nostro praedicto coram vobis legi & publicari & ibidem seriatim irrotulari & de caetero ibidem obser­ [...]ari faciatis, Teste me ipso apud Wyndesor 15. [Page 28] die Februarii, Anno regni nostri 5. Per ip­sum Regem & Concilium. The King to the Treasurer and Barons greeting. We send you under our Seal, certain Judgements given in our Parliament late at Westminster, by the Earls, Barons, and other Peers of our Realm, upon Ro­ger of Mortimer, and some others; also an Agreement made in the same Parliament by Our Selves, the foresaid Peers, and the whole Com­monaliy, concerning the matters aforesaid; com­manding you, that the said Judgements and Agree­ment you cause to be read in your presence in our Court of the Exchequer, and there to be enrolled in course, and duly observed. Given under our Test at Windsor, Febr. 15. in the fifth year of our Reign. All this shews there was no varia­tion in any of those Tryals, but all went on pari passu, in the same Method. And it is not probable there could be any great change in their proceedings, the Parliament continuing together so short a time, but fifteen days in all, as Mr. Pryn observes by the Writs of wages in his fourth Part, which is concern­ing Parliamentary Writs. And I think I may now say, that few will believe I concealed these Precedents because they made against me. The Case of Sir Thomas Berckley is of another nature, his Tryal is said to be Inter Placita Coronae tenta coram Domino E. Rege in pleno Par­liamento suo, &c. Mem. Thomas de Berkeley Miles venit coram Rege in pleno Parliamento suo, & al­locutus de hoc, &c. about the murther of Edward the Second, and asked how he would be tryed, Ponit se super Patriam: So twelve Knights were empannelled, who did acquit [Page 29] him. I do not look upon this as a Tryal by the House of Peers, acting in their ordinary Judici­al Capacity. There was some other Court in those times in time of Parliament, where the Peers probably were the principal Judges, but then were added to them some great Offi­cers of the Crown, and of the Judges of Westminster-Hall, before whom those Pleas of the Crown were held; I confess this is to me Terra incognita, a thing of which I can give no very good account. But I think one may affirm with confidence that no Prelates were amongst them, for they would have been menti­oned, if they had been there; as in all Criminal Causes which were Capital, or in any thing con­cerning such Causes, I observe, they were: And even in this Case of Sir Thomas Berckley the next Parliament, N. 18. it is said, [...]tem en mesme le Parlement si prierent les Prelatz, Countes [...] Barons, pout Mr. Thomas de Berkley a nostre Sur le Roy [...]il lui voustst deliver de meynprise, &c. Item, in the same Parliament the Prelates, Earls and Barons besought the King that he would set Sir Thomas Berkley at liberty from his Mainprize. I do observe they are always named, and never omitted if any else be named, which is my Postulatum to our Asserter, and not as he injuriously would put it upon me, p. 56. of his Pamphlet, That I should maintain, That the Prelates are in all Cases particularly named, or else they cannot be thought to be there, and then to disprove it, quotes a Bill of Subsidy, where the words are, Les Seigneurs & Communes si sont as­sentez: The Lords and Commons have agreed: [Page 30] And Semble as Seigneurs du Parlement: It seems to the Lords of Parliament; and a hun­dred such instances more, I know, he may give: And the Trifler could not but know that I could intend it of no other but of the matters in question, which were Judgements in Criminal Causes.

And I shall add but this more to shew the im­probability of the Prelates of those times being at all employed in Tryals of that nature, and least of all, that we should imagine they could be comprized under general expressions, which if it were, would argue an unquestionable right and title in them to such a Judicature. Let us consider the Statute made but two years before, it is 2 E. 3. c. 2. which confirms a Statute formerly made 27 E. 1. c. 3. which Enacts, That the Justices of Gaol delivery which are sent down into the several Counties, when they enquire of Felonies and Murthers, if one of them be a Clerk, then some discreet Knight of that County shall be associate to him that is the Lay-man, and shall deliver the Gaol. We see how careful they were then that no Church-man should take Cognizance of Matters of Blood, Canon Law, Common Law, and Statute Law did prohibit it.

And now to follow my Gentleman to the Parliament 5 E. 3. in which he tells me, I have not been fortunate in the choice of my To­pick, because that Parliament being called for the redress of the Peace, and the Bishops saying, It did not properly belong to them to give the King counsel for the keeping of the Peace of the Kingdome, signified nothing. But had they [Page 31] said it did not all belong to them, it had been somewhat to the purpose. But under this Gentlemans favour, I think it is to the pur­pose, to shew that the Bishops did then be­lieve and acknowledge that it did not pro­perly belong to them to look to the keeping of the Peace, that it was not their proper work, which implies that they conceived their duty and employment to lie another way: And it is a strong argument à minore, that if they might not do that, and advise the King in doing what was necessary for the keeping of the Peace, and punishing the breakers of it, much less could they be put up­on it to judge in Matters of Blood. And for them to say that It did not properly belong to them, was a little softer, and more respect­ful to the King to excuse themselves from doing what he required of them for giving their advice, than if they had bluntly said, That it was not at all of their duty to give such advice; which had grated a little too much, and had been a kind of retorting it upon the King for requiring a thing in it self improper and unreasonable. And yet they did as strong­ly put it off from themselves, saying, It did not properly belong to them; for no prudent and sober man will do a thing that is not proper for him, nor can it be required of him, that he should. So I think my Topick was very good; and I may say I am not alto­gether unfortunate to have to deal with so weak and impertinent an Adversary.

What he saith in the Case of Sir John Grey, and Sir William de la Zouch, of Bishops, that [Page 32] they are sometimes comprehended under the general word of Les Grantz, I never denied it; but in that place where the King did charge, Toutz les Countes, Barons, & au­tres Grantz en lour foies & ligeances, &c. All the Earls, Barons, and other great men, &c. I say that Bishops cannot be comprehended there, because in that place it can be under­stood but of such great persons, whose Rank is after the Barons, where I am sure no Clerk of the Parliament durst ever rank the Prelates. And another Rule which I stand upon is, That if any one Bench of the House of Peers be named and specified, as that of Earls or Ba­rons, that of the Bishops (if the Bishops were present) is never left out, but always first placed.

The next scratch he gives me, is upon the Case of Sir William Thorp 25 E. 3. upon my inferring, that by the General Term of the Grantz in that Parliament, who approved of the Judgement of death given upon Thorp, it cannot be supposed that the Bishops are understood, because they tell the King, that if such a Case should happen afterwards, the King might call any of those Grantz whom he pleased, and by their advice, give such a Judgement of himself, which I say could not be meant of Bishops, because it was no em­ployment for them to assist in Judgements of death. Upon this, my Gentleman is pleased in good serious earnest (as he scoffingly expresses it) to ask, if this be not petere Principium, to beg what I am to prove. And I answer in true serious earnest, that I do not petere Prin­cipium, [Page 33] not beg the Question; for the Que­stion is first general, Whether Bishops in Par­liament can be employed in such Judgements, and then particularly whether among the Grantz of that Parliament of 25 E. 3. that af­firmed that Judgement against Thorp, there were any Bishops? And I infer there was none, because they tell the King, that hereafter even out of Parliament, if any body else offend in like manner, he may take any of them, that is, of those Grantz that now give him this advice, to joyn in condemning him; and by the Law of the Land, a Bishop could not joyn, therefore there was no Bishop amongst them: And that by the Law, Bishops and all Clergy-men were prohibited, appears by the Act of Parliament of the second of that King which I mentioned before, confirming one to the same purpose made in Edward the First's time, that No Clerk should be a Ju­stice of Gaol-delivery for Tryal of Felons: this, I think, is not petere Principium, to prove the true meaning of what was done at that time in the House of Lords, by what the Law of the Land had already established, which must regulate what the House of Lords then did, and doth shew there could be no Bishops in the number of those Grantz.

Then for what he saith of the Commons charging Michael de la Poole before the King, Prelates and Lords, which was in 10 R. 2. and parallelling his crime to that of Sir William Thorp, who for it was condemned to dye; upon which he will infer that Michael de la Poole was charged with a Capital crime, and accused of [Page 34] it by the Commons before the Prelates, as well as before the other Lords, who gave their Judge­ments upon it. He may examine the Record, and he will find that the Impeachment was on­ly for Misdemeanors, cozening the King in an exchange of Land, when he was Chancellour, and some other miscarriages of that nature: And it is the Impeachment, which is in the nature of an Indictment, that governs the Tryal, be the crime what it will: As it is laid in the Impeachment or the Indictment, it must be so found upon the Tryal, at the least it can be found no higher, less haply it may be: A man that is Indicted for a Misdemea­nour, cannot be found Capitally Guilty. And though by a comparison, by way of aggra­vation, it was likened to Thorp's Case, Mi­chael de la Poole made it appear there was no resemblance between them: And who will take pains to read the Record of Thorp, which I dare say this Trifler never did, nor scarce any Record; will see that the ground of that Judgement, which made it Capital, was that himself had submitted to such a con­dition, when he took upon him the Office of Chief Justice; the words are, Si sembla a eur le Jugement sur ceo rendu resonable de­puis qil se obligea mesmes per son serement a tiel penance fil feist alencontre: The Judge­ment given upon it, seemed to them to be agreeing to reason, since he had bound himself by his Oath unto such a punishment, if he did contrary to his Oath. And I must say, it would go hard with a great many, if every one should be hanged that cozens the King.

[Page 35] And it is a pretty remark of his upon Sir John Lee's Case 42 E. 3. that the Record saying, That he was brought before the Prelates, Dukes, Earls, Barons, and some of the Commons, &c. He observes, that if at this Tryal any thing had been objected which had been Ca­pital, the Bishops were present at it: And I say he might have made a truer observation than that, which is, That they might be well assured, that nothing Capital was to be ob­jected, because then the Bishops would not have been present. And one thing I am sure is observable, which is, that the Bishops, that is, the Prelates are here recorded to be present, and to be ranked before the Dukes, Earls, &c. We are sure, if any be specifi­ed, they are, and still ranked in the first place.

What my Gentleman means, in what he saith upon the Tryals 50 E. 3. I understand not; they are the Cases of Richard Lyons, the Lord Latimer, William Ellis, the Lord Nevill, and John Peach, all these were only charged with Misdemeanors; he saith their crimes were great and hainous, and reckons the loss of Forts among them, which he saith was a crime Capital in Gomenitz and Weston, 1 R. 2. and that I acknowledge the Bishops to have been present at those Tryals. But still this learn­ed Gentleman, who brags here that he will not suffer the World to be longer amused and imposed upon by my Notions, doth him­self still mistake the business, not well under­standing the nature of the thing he treats of. Otherwise he would consider that the Tryal [Page 36] of a Criminal person must always be pursu­ant to his Charge; which is a point I have already spoken to, therefore I shall say little here, only this, that the Impeachment of the Commons against those persons, was only for Misdemeanors, their Tryal was accordingly, and the Bishops were present. And for what he saith of Gomenitz and Weston was clean another Case; it was for betraying those Towns which they had undertaken to keep, when the force upon them was not so great: However, it is not material what their Crime would appear to be upon proof, but what their Charge was, and that was Capital. Then for what he adds of the Bishops being comprehended un­der the general Apellation of Les Seigneurs du Parlement; The Lords of Parliament; in several Cases which he there cites, which he beats upon over and over again, in so ma­ny several places of his Pamphlet, and sets up like a Man of Straw of his own making, to make sport with, is what I never denied: my Position is, That I have still observed in all Tryals of Crimes, when Bishops could be present, it is so expressed that they were so, as in all Crimes not Capital; and I do not think one Instance can be given to the contra­ry. And my other Position, which I affirm with more confidence, is, That if any of the other ranks of the Lords be mentioned, the Bishops are so likewise, or else it is a cer­tain argument that they were not there.

My Gentleman is a little put to his Trumps in the Case of Gomenitz and Weston, 1 R. 2. That is so plain, first, the Commons coming [Page 37] and desiring, That such as had lost Towns and Castles by their own default, might be punished, Per agard des Seigneurs & Ba­ronage; By the Judgement of the Lords and Baronage: whereupon those Lords command­ed Gomenitz and Weston to be brought before them, and upon a long hearing, condemned them both to death: And the Lords are par­ticularly named, the Duke of Lancaster first, and ten more Earls and Barons by name, of whom Roger Lord Clifford was the last; and then a general clause, Et plusours autres Setgneurs, Barons & Bannerettes; And many other Lords, Barons and Bannerets. Now this is so plain, and exclusive of all Prelates, as my Gentleman is forced to confess, that it seems doubtful to him who these Lords were, whether the Prelates, or the Lords particular­ly named; and plusours autres Seigneurs, un­der which (he saith) very probably the Lords Spiritual might be comprised. I see a truth cannot come clearly from him, a thing that is most clear, he makes it doubtful: And one thing he saith most falsely, of a Petiti­on commanded to be read, Numb. 29. En cest Parlement per les Prelates, & Seigneurs, Piers du Parlement; By the Prelates, and Lords, Peers of Parliament; which Petition he will have to be concerning this matter, which is most false. For that which is said Numb. 29. is of a Petition, and Writ of Error, pre­sented by William de Montague, Earl of Salis­bury, which was then read, and nothing at all concerning Gomenitz and Weston; which is a horrible falshood, and imposture of our As­serter [Page 38] to abuse the world so, and impose upon the Reader. The first request of the Com­mons concerning this business, and to have this matter examined is Numb. 38. and then Numb. 39. there is mention of a Schedule given in by Weston, and the Record saith, Ueue & leue la dite cedule en plein Parle­ment; The Schedule being seen and read in full Parliament; and any thing concerning Weston or Gomenitz before this, there is not: But some falshood he must still add of his own, for the Jesuites Verse is very applicable to him,

Verba damus cum nostra damus, quia fallere no­strum est;
Et cum nostra damus, nil nisi verba damus.

And indeed throughout his whole Pamphlet he doth but Verba dare, take Verba, Words, as in opposition to reality and truth, for it is full of falshoods; or take Words in opposition to matter and good sense, for his whole Book is a very bundle of words, with­out any good matter in it. But one thing more I cannot but observe, it is his insisting so much upon a thing, which I am confident himself doth not believe, though I have known a teller of stories tell one of his own invention so often, that at last himself hath begun to believe it to be a truth: It is, that after the naming several Lords, and ending with some Barons, there is a general expression, [...]t plusours autres Seigneurs, Barons & Ban­nerettes; And many other Lords; Barons and Bannerets; my confident Gentleman hath the boldness to add, Under which probably the Lords [Page 39] Spiritual might be comprised; which he knows the Prelates of those times, if they had been concerned in it, would never have endu­red, and the Clerk of the Parliament would as soon have eaten Fire, as have entered it so.

Then in the Case of the Murtherers of John Imperial, a publick Minister, 3 R. 2. be­cause I observe, that it is expressed in the Parliament▪ Roll, that the Bishops were not present at the framing of the Act to make it Treason in them, which I grant, in other places of my Letter they might have been, being to pass an Act of Parliament in a Le­gislative way, my Gentleman is pleased to say, That I forget my self: In truth No, I did suppose it, and do suppose it to be a good Argument à minore, to shew that the Prelates were then so modest, as to withdraw upon the passing of a Law for the greater pu­nishment of such a Capital Crime, which in strictness perhaps they did not need to have done, much more then would they avoid the sitting as Judges to take away life in a judi­cial way, which they could no ways pretend to: But my Gentleman loves to quarrel, and scribble Paper, though to no purpose.

To the Case of Sir Ralph Ferrers, 4 R. 2. he only sings over his tedious plain Song, That under the general word of Lords of Par­liament, Bishops may be comprehended, and therefore he will have it, That they must be so: And much good may it do him with his Cram­be bis cocta, I may say centies cocta, for I think he serves up this same dish a hundred times in this his learned Treatise.

[Page 40] But I may not let pass what he saith upon the Case of the Bishop of Norwich, 7 R. 2. how extream falsly he recites things, taking all upon trust, how this man or t'other man cites a Record, but never seeing the Record it self, which perhaps he cannot so much as read. He desires it may be taken notice of, that for those Misdemeanors he was adjudg­ed to make Fine and Ransome to the King, and that the Judgement was passed upon him by the Lords by assent of Parliament; where he saith, he hopes I will not deny but that there were Bishops present, and for this sends me to Cotton's Abridgement, 7 R. 2. n. 23. but if he would have looked upon the Parliament Roll he would have found this, Perquoy del a [...]ent des Countes, Barons & autres Seig­neurs Temporelz presentz en ce Parlement est assentuz & accordez que vous soiez en la mercile Roy, & mis au fin & raunceon pur vostre mal­fait solonc la quantitée & qualitée dicell: There­fore by the assent of the Earls, Barons, and other Lords Temporal present in this Parliament, it is agreed and accorded, that you shall be at the Kings mercy, and put to Fine and Ransome, for your misdeeds, according to its quantity and qua­lity. You see now how this man would im­pose upon us, and what stuff he brings to make good his assertion: If I had been guilty of such a falshood, I should have heard of it to purpose, that both my ears would have rung again; and no Ink this Gen­tleman could have got black enough to set it out in its colours.

[Page 41] Then he comes to the Case of Michael d la Poole, 10 R. 2 where he saith the same things he did before, and which I have already answered, so to that I refer you.

The next is the 11 R. 2. where the Pre­lates withdrawing from Parliament, by rea­son of matters of blood, which were then to come into agitation, enter a Protestation with a Salvo to their right of sitting in Par­ment, which my Gentleman will have to be meant even of their being present at the agi­tation of those matters, if they were so pleased. This hath been treated of before at large already, to which I refer you; I will only observe this further at present, out of the words of their Protestation, first, they say, Quia in praesenti Parliamento agitur de nonnullis materiis, in quibus non licet nobis aut alicui eorum juxta Sacrorum Ca­nonum instituta quomodolibet personaliter in­teresse, ea propter pro nobis & eorum quolibet protestamur, & eorum quilibet hic presens eti­am protestatur, quod non intendimus nec vo­lumus sicuti de jure non possumus nec debe­mus, nec intendit, nec vult aliquis eorum dum de hujusmodi materiis agitur vel agetur, quomodolibet interesse, sed nos & eorum quem­libet in ea Parte penitus absentaxe: This they declare, That it is not lawful for them, nor any of them, by the institutions of the Holy Canons, to be personally present, and that of Right they can­not, nor ought to be there, and therefore they do not intend in any sort, quomodolibet, to be present, but wholly to absent themselves, while those matters are handling. Can any man now [Page 42] have the fore-head to maintain, that they could have a thought of challenging still a right, contrary to such prohibitions, and to say, that it was only the Canon Law that did prohibit them: I say still that the Ca­non Law was to them above all Laws, and the Prelates of those times conceived them­selves to be above all other Laws; even not to be subject to them, but what the Canon Law did allow or forbid, was accordingly by them held to be most lawful or unlawful. The Salvo they add, makes it clear, Iure pa­ritatis nostrae & cuju [...]ibet eorum interessendi in dicto Parliamento, quoad omnia & singula inibi exercenda nostris & eorum cuju [...]ibet Sta­tui & Ordini congruentia in omnibus salbis; The right of our Parity, and of every one of them (that is, our equal right in the general, and of every one of us in particular, with the rest of the Lords) of being present and acting in the said Parliament, as to all things and every thing be­fitting our State and Order, always remaining un­to us safe and entire. Now I would ask, if it can be imagined, that they would, by way of Protestation, reserve to themselves a liber­ty (when they pleased) to do what they said was not lawful for them to do, and that which of right, and according to the Law to which they were subject and must obey, they could not, nor ought to meddle with? And if such things can be thought to be Statui & Ordini congruentia, for their Salvo extends on­ly to such things as are agreeable to their State and Order. Indeed, I think it a solecism to have such a thought. And I know it will be [Page 43] excepted against, that I do take Paritas here in such a sense, and not to be Nomen Apella­tivum, to signifie Peerage, a rank of men; but I consider how it is put, that it is Paritas in­teressendi in Parliamento, which in my opinion is proper to render a Parity, or an equal right with others, to be present in Parliament. But let them construe it Peerage, it matters not to me, I have handled that point fully by it self in my former Letter, and shall do it again in this before I make an end, to shew I am not afraid of that expression; and though in those times the Prelates gave themselves sometimes that Character, that it did not at all belong unto them. And he beats upon this again, That this was left out purposely by me in my citing this Protestation, which I have sufficiently cleared already amongst his Postulata's, therefore I shall not trouble you with it again in this place.

In the Case of Thomas Haxey, 20 R. 2. my Gentleman is so ingenious, as to say, He be­lieves the Bishops were not present, but then he tells you why; because it was an erroneous Judgment, and an Irregular Condemnation, and so commends their Prudence: And sure, he hath been with some Witch to raise some of those Prelates from the Grave, as the Witch of Endor did Samuel, to tell him the true cause why they withdrew themselves, and did then forbear to use their Right, as he saith it is lawful for every man to do, else he could never have hit so pat upon the true cause of their withdraw­ing, whereas otherwise a man might say it was because they knew they had no right to [Page 44] be there; and if it had been their right, they should the rather have made use of it, to pre­vent and hinder an unrighteous Judgement, and have caused a righteous one to be given. And more than that, if it was their Right, and that they had a calling to be there, they were bound to attend the Service, and I think it would have been a breach of Duty, and a Sin in them to withdraw themselves from it.

And now I come to a Bundle of Words in­deed, it is what he says concerning their Proxies, 21 R. 2. out of which one shall have much ado to pick some sense, and what it is he would be at, I will do my endeavour in it. He first puts us in mind of his fifth Postulatum, and of what he said there of the difference between the Matter of a Law, and the Manner of its enacting, and that a Law may be repealed for the Matter of it, and yet the Manner of making it still hold good. This I suppose he saith, because I ex­cept against the authority which that Parlia­ment, at the desire of the Commons, gave the Bishops to make their Common Procura­tor, in regard that whole Parliament was af­terwards repealed, and consequently all it did, made null and void. Yes, saith he, the Parliament was repealed by 1 H. 4. because it condemned those who were his friends, as Traytors to the King and Government; yet the proceedings in that Parliament were just and lawful. To which I answer, That what was done that Parliament, agreeing with the practice and usage of other Parliaments, was [Page 45] certainly just for the Manner of the doing, though the Matter might be repealed, and made null: But what was never done before in any Parliament, nor any thing like it, could not receive any stamp of Authority for its being done in this Parliament, because the Parliament it self had no authority, a sub­sequent Parliament repealing it, and making it as if it had never been: And this of all the Bishops joyning to make a Common Proctor was never done in any Parliament before nor since.

If any should object, that Henry the Fourth was an Usurper, and had no right nor Title to repeal former Parliaments, nor to make any Laws. This were an Objection if it should be allowed, would have a long tail, and carry a ve­ry bad consequence, for it would sweep away at once all the good Laws that were made in three Kings raigns, and would make such a Hiatus in our Statute Laws, as would put things into a very great disorder. We know that in Edward the Fourth's time, which fol­lowed immediately after those three Henries, in all the Acts of Parliament which passed, when mention is made of any thing done in those Kings Reigns, still what was done is al­lowed of, and confirmed, and to their Per­sons and Government, the Parliament still gives this Character, that they were Kings indeed, but not of right. Which implies the stamp of Soveraign power and authority to be set upon all their actions, and so upon the Parliaments that were summoned and held by them, and principally there, because [Page 46] of the concurrence and conjunction of the whole Kingdome in all things there done. Nay, in some Acts of Parliament we find care taken, that nothing should clash with what had been done in Parliament by some of those Kings, as 14 E. 4. c. 4. there is a Sta­tute concerning Breakers of Truce, and a Pro­viso in it, That this Act shall not extend to any Act or Ordinance made 2 H. 5. late indeed, and not of right, King of England. But still he is acknowledged King of England, de facto, which goes a great way to authorize any thing done under their power. Therefore 11 H. 7. c. 1. A Law is provided to in­demnifie all persons that shall do service to the King in being, whether he have right or no.

As for what is said of the Bishops making their Common Proxy, at the prayer of the House of Commons, That their Proceedings might be valid, and not questioned in future Par­liaments by reason of their absence, and that di­vers Judgements had been reversed, because they were not present. It is true, it is so expressed in the Roll of that void Parliament, which as it hath no authority nor validity in it self, so it is very strange, that if there had been ground for this apprehension, there should remain nothing upon Record in all the Rolls of Parliament, that ever any Judgement, or any other act done in any Parliament had been so repealed. We know it was once at­tempted 2 H. 5. by Thomas Montacute, Earl of Salisbury (as I told you in my former Let­ter) who brought his Writ of Error to re­verse [Page 47] the Judgement given against his Father 2 H. 4. because the Bishops (as he alledges there) being Peers of Parliament, were not parties to that Judgement, but it was decla­red to be no Error, and his Petition was reje­cted. And we know that in Edward the First's time, there was a Parliament held at St. Edmonds-bury, Clero excluso, not a Prelate admitted to it. And in Henry the Eighth's time all the Judges of England declared it for Law, That the King might hold a Parliament with his Lords Temporal and Commons, altoge­ther without the Lords Spiritual. Tout sans les Spirituels Seigneurs, it is in Keilwayes Re­ports, in Dr. Standish's Case. Therefore there is no reason to think, that any Judge­ments were repealed upon the Bishops being absent, seeing their presence is not of necessi­ty for the constituting and sitting of a Parlia­ment. And especially not for the Judgements which we treat of in Capital Cases, because by what appears upon Record, and by all the Laws, Canon, Common and Statute Law, they never were present, I always except that Unparliamentary Extravagant Proceeding and Judgement of Henry the Sixth, in the twenty eighth of his Reign, upon William de la Pool.

Our Asserter tells us of some Judgements reversed 15 E. 2. particularly in the Case of the Spencers, but he doth not tell us where he finds it, nor I believe, doth he know him­self, having only taken it up some where up­on trust, as he doth other things. But in this 21 R. 2. upon the Petition of the Earl of [Page 48] Gloucester, it appears by the Record of the proceedings against the two Spencers, Father and Son, in that 15 E. 2. which are there re­peated at large, that there was nothing Ca­pital in their Case, neither in the Charge nor in the Judgement, so as this signifies nothing to the matter in question, which is all can be said to it. And as little shall I say to his witty allusion of bringing me to a sight of my self, as Alexander did his Horse to the Sun, that he might not kick; only this I might say, if I were as foul-mouthed as he, that indeed such a scoffing injurious Scribbler were fitter to be answered with a kick, than with fair reasoning by way of Argument.

Next we come to the 1 H. 4. Sir William Rickhill's Case, where I think, I should do well only to transcribe what he hath written, to shew it needs no answer, but that I should waste too much Ink and Paper: I represented in my Letter to you, that Rickill being sent for into Parliament, no formal charge being against him, to give an account only by what order he had taken the Duke of Gloucester's Confession at Calais, which he did, the Bishops present; but when they came to consider what was to be done upon it, then only the Lords Temporal were asked their opinion, which I alledge to shew, that the Bishops there were not advised with, because it might be prepa­ratory to a further proceeding by way of Tryal: And this our Asserter says, is to serve an Hypothesis, and learnedly gives it us in Greek, and bids the Reader judge, and so do I. Then for the Tryal of Hall, who was one of [Page 49] the murtherers of the Duke of Gloucester, he hath the condescension to acknowledge it pro­bable that the Bishops were not there, but then saith, that they left it to the Tempo­ral Lords, without any Impeachment to their right, it being secured before by the security of a confessed Act of Parliament, 11 R. 2. it is their Protestation he harps at. And if I had as much Greek as he, I would say it in Greek, that he now doth serve an Hypothesis, or in good English, beg the Question, for that is his meaning of serving an Hypothesis, for the Right which the Bishops there saved, he will have to be, and hath forty times repeated it, to judge Capitally when they please; but I have clearly shewed it was not of their assisting in those Judgements, as he still will have it to be, but other Judgements and proceedings in Parliament, where in truth they had a right to assist.

Then follows the Case of William Sautre, 2 H. 4. where he is pleased to give me a wipe for stiling him the Protomartyr of En­gland; and out of his great reading informs, that St. Alban lived some hundreds of years before him; but he must give me leave to inform him, that the common acceptation of Martyrs amongst us Protestants now, is of such Orthodox persons as have suffered for the truth, whom the Papists have put to death for Hereticks, and this man was the first of them in England. He hath some other notable Remarks; one is, that whereas I said that the Bishops and Clergy of those times were the chief Promoters of bringing him to his [Page 50] end, which I meant of their declaring him an Heretick, and then turning him over to the Secular Power, he observes upon it, That then they acted in a Capital Case, which he saith makes against me: And that if it was the Lords Temporal who signed the Warrant for his execution, that the Bishops had no hand in it, and so have escaped my lash, but who were his Judges, nondum constat, I am sure it doth not constare to me to what pur­pose he saith all this, which I do not find to make either for him, or against me.

No more, than what he saith of the Case of the Earls of Kent, Huntington, and Salis­bury, 2 H. 4. who he grants were declared and adjudged Traytors by the Temporal Lords, and no Bishops present, and then saith, he will give a Parallel Case, it is of the Earl of Cambridge, and the Lord Scroope, 3 H. 5. where the Bishops were present, and that I confess they might be so, because it was in passing an Act of Parliament to con­firm their Attainder. But my Gentleman is mistaken, as he commonly is almost in all his Assertions, for the Cases are not parallel, the Earls of Kent, Huntington and Salisbury had no Tryal, had not been legally condemned and attainted, but being taken in Circester by the Townsmen rising upon them, were by them in a tumultuary manner put to death, and the House of Peers afterwards in a judicial way ad­judged the fact of those Lords Treason, and them Traytors; and this was done only by the Temporal Lords, who are there particu­larly named. But the Earl of Cambridge and [Page 51] the Lord Scroope had been Tryed, Condemned and Executed at Southampton, and this Judge­ment afterwards was brought into Parliament, and there confirmed by Act of Parliam. where the Bishops were, and might be present: but our Asserter hath ill luck in all his allegations.

And he will have as ill luck in what he saith to the Earl of Northumberland's Case, 5 H. 4. where I am sure he begs the Question, and doth Disputare ex non concesso, for whereever Lords, or Peers of Parliament are mentioned, he will have the Bishops to be comprehend­ed, whereas those general words, as all other such, are to be understood Secundum subjectam materiam: If it be in a Case where the Bishops are particularly by the Law of the Land, and the continual practice in the execution of that Law excluded, and others are comprized un­der the same general expression, it must be understood of them only, and not of those upon whom there is such a bar. Now they who will have the Bishops to be Peers, do not make them the sole and only Peers, but allow Earls and Barons to be Peers with them. But I do not allow them to be Peers at all, our Asserter will prove them to be Peers by two Records, Mautravers Case, 4 E. 3. and their Protestation, 11 R. 2. I have already given an account of what is in Mautravers Case, the words are, All the Peers, the Earls and Barons being met, &c. Is it not ridiculous to expound this, that by All the Peers is meant only the Bishops, as if the dignity of the Peerage did principally belong to them, that they should be Peers Sans queue, as the [Page 52] French denominate a thing that belongs to some particular person more properly, and in a more eminent degree, than it doth to any body else? Or is it not more rational, and indeed only so, to understand this ex­pression to import that the Earls and Barons were the Peers who then met, and that say­ing, All the Peers, the Earls and Barons, &c. the Earls and Barons are an Exegesis, an ex­position of the foregoing general denominati­on of Peers, so Mautravers Case makes no­thing for him, but much against him: And as to their own Protestation, 11 R. 2. indeed they call themselves Peers there, but that doth not make them so, I have spoken to this point already very fully, and sorry I am that I am forced to do it again, and to do it so often, but he leads me to it, who doth as the Pro­verb saith, Reciprocare serram, go over and over the same thing, as much as ever any man did, I think, and as often mistake. The force of my Argument to prove that by the general appellation of the Lords who protest­ed against the Kings delivering the Earls Pe­tition to the Judges, to have their opinion, and judged the fact themselves not to be Trea­son, but a Trespass, could not be meant Bishops, because the Record saith, Sur quoy le dit Conte molt humblement remercia le Roy, & les ditz Seigneurs ses Piers de lour droiturel Iugement: Whereupon the said Earl very humbly thanked the King, and the said Lords his Peers, for their right Iudgement. Now the Bishops could not be Peers to the Earl, who could not try him nor be tryed by [Page 53] him, they being to be tryed only by Com­moners, and Commoners to try them, if there be occasion, of which more shall be said afterwards in its proper place. I will here only observe one thing, that our Asserter hath it instead of Humbly thanked, Humbly reve­renceth the King; which he takes out of the Pamphlet that goes under the name of Mr. Sel­dens Baronage, which I have ever looked up­on as a spurious Book, not made by Mr. Sel­den, who would never have so translated Remercia, and being full of faults and false­hoods, yet this Book, and Sir Robert Cotton's Abridgment, which hath likewise faults e­nough, are the chief Oracles that he consults, and which do many times deceive him, as the ancient Oracles did those who resorted to them. Of as little signification is what he adds of the Lords of Parliament declaring the action of Henry Percy, who was killed at the Battel of Shrewsbury to be Treason; where he doth assure you the Bishops were present, and you shall have his Oath for it, I dare say, if you will: And how doth he prove it? Why, saith he, the Arch-bishop of Canterbury was present at the former Iudgement, for in express words he prayed the King, that for­asmuch as he and other Bishops were suspected to have been of confederacy with Henry Percy, that the Earl of Northumberland would now publish the truth, whereupon the Earl, by the Kings com­mand upon his Oath, purged them all. And then learnedly argues, That here was no de­parture of the Arch-bishop and of the other Bishops concerned: And I believe him, for [Page 54] in truth here is a good proof that they were all present, but to be purged themselves, that they should not be thought Criminal, not to act as Judges, which is what our worthy Asserter doth assert, and what he would have us think that he fully proves, which he doth more solito, that is Cujus contrarium, &c. Then my Gentleman (for he is an active Gentle­man) makes an Alman leap to the very end of the last leaf of Sir Robert Cotton's Abridge­ment, where he finds a marginal note of Mr. Prynn's to this purpose, That the three Estates must concur to make a Parliament, or Richard the Third's title would still be ambigu­ous; and this he thrusts in here by head and shoulders, I understand not how to the present purpose, I think only to have the oc­casion to say, that Mr. Prynn knew better of Records, and what Plein Parlament meaneth than I, and another whom he joyns with me, and twenty more such as we are, which I de­ny not, though he should add to the number, himself, and forty more who were no wiser than he, who all of them would not make our ballance two grains the heavier.

Then he comes to the Case of the Earl of Northumberland, and the Lord Bardolph, 7 H. 4. which, he saith, I say is like to that of the Earls of Kent, Huntington and Salisbury, 2 H. 4. and that is true, for in both those Cases, those Lords after their deaths (having had their lives taken from them in a tumultuary way, without any formal Tryal) the business being brought into Parliament, were by the Tem­poral Lords, in a Judicial way of proceeding, [Page 55] adjudged to be Traytors, and their fact to be Treason. But then he adds, that I like­wise make the Case of the Earl of Cambridge, 3 H. 5. like to these, which is not true, be­ing of a clean different nature, an Act of Par­liament which had its rise from a request of the House of Commons, who brought it up to the Lords; here, I say, the Bishops were, and might be present.

That which he saith to the Case of Sir John Oldcastle, 5 H. 5. is so threadbare with rub­bing it over and over again, and hath been so often said, and so often answered, as that it would too much trespass upon your patience, Sir, to trouble you with any one word of it more; I think I have made it exceeding clear, where under the general term of Lords of Parliament, Bishops may be understood to be comprehended, and where not. Those particular Cases which he now brings to prove his Assertion, are point blank against him, that is the Case of Mautravers, 4 E. 3. and of Gomenitz and Weston, 1 R. 2. in that of Gomenitz many particular Lords are named, several Earls and Barons, and then a general clause, Et plusieurs autres Seigneurs, Barons & Bannerettes. Is it possible to think that Bi­shops come in that fag end? Indeed I do ob­serve one thing in this Case of Sautre, which is not in any of the other; I cannot say that I lay any great stress upon it, yet something it is, that the Record expresses that the Bi­shops had done with him, declaring him a Heretick, and then Relinquentes eum ex nunc Iudicio seculari: Leaving him from henceforward [Page 56] to the Secular Judgement, as if they should say, They would have no more to do with him.

And as convincingly he argues in the Case of Sir John Mortimer, 2 H. 6. He confesses with me that the Indictment found against him at the Guild hall was brought into Parlia­ment, before the Duke of Gloucester, and the Lords Temporal, Fuit liberatum, It was there delivered to them; and then he cites a Record (as he makes it) De advisamento dictorum Dominorum auctoritate istius Parliamenti or­dinatum est & statutum quod ipse usque ad Turrim ducatur; By the advice of the said Lords, it was ordained and enacted by authority of the said Parliament, and by the advice of the said Lords Temporal, that he should be led to the Tower: These are his words, and how he hath mangled, and falsely rendred and ex­pounded the Record, you will judge by the words of the Record it self, which I will here faithfully set down. It is this, Numb. 18. Memorand. quod 26. die Februarii anno prae­senti de advisamento Dominorum Tempora­lium ac ad Supplicationem Communitatis Regni Angliae in praesenti Parliamento exi­stentiam redditum fuit quoddam Iudicium ver­sus Iohan. de Mortimer, de Bishops. Natfield in Comitatu Nertford Chevalier, cujus quidem Iu­dicii recordum patet in Schedula per Iohannem Hals unum Iusticiariorum Domini Regis de banco edita & praesenti Rotulo consuta: Memor. That the 26th of February of this present year, by the advice of the Lords Temporal, and at the Petition of the Commons in this present Parliament, a certain Judgement was given upon Sir John Mor­timer [Page 57] of Bishops-Hatfield, in the County of Hertford, Knight; the Record of which Judge­ment appears in a Schedule drawn by John Hals, one of the Justices of the Kings-bench, and fasten­ed to this Roll. Then follows the Schedule it self, where is set down what past at Guild­hall upon the sinding of the Indictment, and how that Indictment was brought into the Parliament, Coram duce Bedfordiae ac aliis Dominis Temporalibus; Before the Duke of Bedford, and the other Lords Temporal; and how Sir John Mortimer was brought before them by the Lieutenant of the Tower, and how the Commons desired the Indictment might be affirmed, and that Judgement might be given upon him: Then follows, Super hoc viso & plenius intellecto Indictamento, per dictum Ducem de advisamento dicto­rum Dominorum Temporalium ac ad re­quisitionem totius Communitatis authori­tate istius Parliamenti ordinatum est & statutum quod Indictamentum affirmetur, & praedictus Iohannes Mortimer de proditioni­bus praedictis sit convictus, ad Turrim duca­tur, usque ad furcas de Tyburn trahatur, & super eas suspendatur, &c. Hereupon the Indict­ment being viewed and well understood, it was by the foresaid Duke, by the advice of the said Lords Temporal, and at the request of all the Commons, ordained and decreed that the Indictment should be affirmed, and the foresaid John Mortimer stand convicted of his foresaid Treasons, should be carried to the Tower, then drawn to the Gal­lows at Tyburn, and there hanged, &c. This was a Judgement of the House of Peers in [Page 58] their Judicial capacity, upon an Impeach­ment, and at the pursuit of the House of Commons, who prosecuted and pressed the evidence before the Lords; the words of the Record are, Tota Communitas praefatum Indictamentum illud in omnibus fuxta vim formam & effectum efusoem pro vero & fideli In­dictamento affirmat, ac praefatis Duci ac aliis Dominis Temporalibus supplicat eadem Com­munitas quatenus iidem Dux & Domini In­dictamentum praedictum pro vero & fideli In­dictamento affirmare vellent, & quod executio dicti Iohannis Mortimer ut de proditionibus & feloniis convicti fiat; The whole House of Com­mons do affirm the foresaid Indictment to be in all points for the force, form and effect thereof, a true and legal Indictment, and that execution of the said John Mortimer, as of one convicted of the said Treasons and Felonies may follow. This you see was a formal Tryal in all points, and a Judgement upon it, and so it is en­tred upon the Roll, such a day, 26 Febru­arii de advisamento Dominorum Temporalium ad Supplicationem Communitatis redditum fuit quod­dam Iudicium versus Iohannem de Mortimer, &c. And our Asserter here tells us a tale of a Tub, that the matter should be decreed after by Authority of Parliament, of which the Bishops are an essential part, and there­fore were present, which is an excellent Chi­mae [...]a, as if the Advisamentum Dominorum Temporalium, & Authoritas Parliamenti, were two distinct things, and the work of several persons, some actors in the one who were not so in the other, and that the advice of the [Page 59] Lords Temporal had produced some other things which had a greater authority, and that the Bishops had joyned in that, which shews his ignorance in the course of Parliaments, for the Judgement which is given Judicially in the House of Lords hath upon it the stamp and the authority of the whole Parliament, and that Advisamentum of the Lords Tem­poral here, was the Judgement, as is the ad­vice and assent of the Lords Spiritual and Temporal, and of the Commons in Parlia­ment in the passing of an Act of Parliament, for when a thing is said to be enacted, by the King, with the advice and assent of the two Houses, that advice and assent of the two Houses is their passing and enacting of it, as to their part in it: For any thing that is done in either House, if the King be mentioned in it, is said still to be done by him with the Advice and Consent of that House, so in a Judgement judicially given by the House of Peers (where anciently the King was often present, when they acted judicially) it is said to be given by the King, by the advice of his Lords, and here the Duke of Gloucester represented the Kings Person, and held the Parliament by Special Commission; so the Judgement is said to be given by him, by the advice of the Lords Temporal. And so the Lords 28H. 6. when the King of himself gave the Judgement upon the Duke of Suffolk, the Lords protested against it, because it proceeded not by their advice and counsel: For that is it which gives the form and being to the Judgement, and stamps upon it the Authority of the Parliament.

[Page 60] Then he comes to a Precedent without de­bate, as he calls it, which is that of 28H. 6. the Duke of Suffolk's case, and confessed so by me, as he saith, but not truly. For I do not allow it to be a just and legal precedent. I do acknow­ledge that the Bishops were present all along the whole transaction of that business, but as I said in my first Letter to you, so I must and do say in this, there was in it from the beginning to the end nothing regular, nor according to the usage and practice of Par­liaments: Then it cannot be said to be a Pre­cedent, no more than a Monster, that hath no shape nor limb of a true Child, can be said to be a Child. As for the particular defor­mities of this Monster (for so I may term it) they are already so fully deciphered in my former Letter, as I will not now trouble you with them again: So it shall pass at this time as he will have it, for a Precedent without de­bate, for it shall not be any further debated. Only I must say still, it is but a single Prece­dent, and of what force that is, or can be, when the constant course and practice of Par­liaments hath been to the contrary, I leave it to you to judge: One single Precedent against all other Parliaments, is an unequal match one would think. I have heard of a great conquering Prince, that gave it for his, Motto, Souls contra omnes, but I have not heard it said so of a Parliament, So­lum contra omnia. The authority of any one Parliament I know to be very great, yet it is a known Maxime in the Law, Parliament poit errer, A Parliament may [Page 61] err; and another Parliament may mend what one doth amiss; Parliament-men are men, and may, and do sometimes mistake as well as other men; it is possible they did so, 28H. 6. and more than probable they did so, because no other Parliament before nor since, did ever do the like. And for his Recapitulation of all the fore-mentioned Records, in all twenty seven, which he makes to prove that this was not a single Precedent, as I affirm it to be, all the rest (as he saith) concurring with it, to admit Bishops to be Judges in Capital Cases, I will only say, Sit liber Iu­dex, resort to the Records themselves, and to what is already said in my former Letter and this, and then judge if he saith true.

Then he hath a fling at me for what I say upon the Case of Nicholas de Segrave, 33 E. 1. where he must give me leave to say with truth, what he saith falsly of me upon several occa­sions, which is this, That he hath not set down things Faithfully and Ingenuously. He saith Se­grave came into full Parliament into the pre­sence of the King, the Arch-bishop of Canterbu­ry, and several Bishops, Earls and Barons, ac­knowledged his offence, and submitted to the Kings pleasure: Upon this he observes, That here was no Iudicatory of Parliament; and then adds, that the King pardoned him, De advi­samento Comitum, Baronum, Magnatum, & aliorum: By the advice of the Earls, Barons, Nobles, and others. You shall see now how faithful and ingenuous a dealer our Asserter is, but certainly he takes all upon trust, and takes not the pains to see any thing himself. [Page 62] First, I do acknowledge it was no formal Tryal, for there was no impeachment nor In­dictment against him, but I must say it was Tantamount, for he comes in upon Summons into the Parliament then sitting, where the Prelates were among the rest of the Members of the House, and how long they continued there, it appears not by the Record, but he being come, Nicholas de Warwick, the Kings Councel, charged him, and pressed matters against him. And then the King, as the Re­cord saith, willing to have the advice of the Earls, Barons, Nobles, and others of his Counsel, enjoyned them upon the Homage, Fidelity and Alle­giance which they owed him, to give him faithful Counsel, what punishment was fit to be inflicted upon such a fact so confessed: Who all of them upon a serious debate, and advising upon the matter, and well weighing all the particulars of it, and what was by the said Nicholas plainly and ex­pressly acknowledged, do say, That such a man deserved to lose his life. But afterwards the Record saith, Dominus Rer tamen de gratia sua speciali pietate motus, malens vitam quam mortem eorum, qui se voluntati suae submit­tunt, remittit eidem Nicholao Iudicium vitae & membrorum. But the King moved by his special grace and piety, desiring rather the life than the death of those that submit to his will, did remit unto the said Nicholas the Judgement of loss of Life or Member. Here you see the King advised not with his Prelates, but with the Earls, Barons, and other Nobles, and what did they advise? Not to pardon him, as our Asserter will have it, but they say he deserved [Page 63] death, and then the King of himself would not have it go to that extremity. Now whether this Judgement would have been final, if they had pronounced sentence, and adjudged him to death, as they only said such a man deserved death, or whether this was only to be prepa­ratory to a Tryal, and to proceed afterwards upon a formal Impeachment; I confess it is not clear to me, nor is it greatly material to our purpose, only it shews the Bishops were to give no advice in it one way or other; and it is rather stronger to prove they are not to meddle in such matters, if it was but prepa­ratory: For it shews that in those Capital Cases they must have nothing to do with them to determine and judge any thing concerning them, from one end to the other, ab ovo usque ad mala, as the saying is, neither in the Judgement it self, nor any thing leading to it.

So he comes to the Arch-bishop Becket's Case, where he notably spends his mouth, but like an ill Hound, all upon false Hunting, and indeed runs riot so far, as he is not to be lashed in: He fills several leaves of his Book with Encomium's of the Popish Clergy, because some of them sometimes did what it was their duty to do, which doth not excuse them in the general current of their proceedings, com­monly to stand for the authority of the Pope, and the See of Rome, against the Regal power, and the authority of Parliaments, as they did 20 R. 2. saying, They were sworn to the Pope, and to that See, and they would oppose whatever the King, and the Temporal Lords should do. [Page 64] En restriaion del Poair Apostoliqué ou deroga­gation de la libertoe de Saina Eglise; In re­straint of the Power Apostolick, or derogation of the Liberty of Holy Church.

So he takes much pains to assert the Kings natural right to command his Subjects to serve him upon any emergency, and so to make Clergy-men Justitiaries, if he see cause for it: Which then gives them power of Judicature, and I do ac­knowledge it, but it is to be understood of Judicature in such Cases as the Law of the Land allows; we know they have been some of them Lord Chancellours, Lord Treasu­rers, Lord Privy Seal; but can he shew me, that any of them judged in Cases of Blood? For this Case of Beckett's is certainly misre­presented in Fitz-Stephens manuscript. We know there have been heretofore in many Counties, Justices of Assize, which have been Clergy-men, joyned with others in Commis­sion, who were not Clergy-men, to take As­sizes in the County: And the Act of Parlia­ment, 27 E. 1. c. 3. coming to give power to those Justices of Assize to deliver the Gaols, and so to be made Justices of Gaol-deli­very, and try Felons and Murtherers; it provides, that if one of them be a Clerk, then one of the most discreet Knights of the Shire shall be associated to him, that is a Lay-man, and be empowered by the Knights Writ to deliver the Gaols of the Shires, and chasten and punish whom they shall find to be guilty. And this Statute is confirmed, 2 E. 3. c. 2. which makes it mani­fest what the intendment of the Law is in [Page 65] that particular, that Clerks must not meddle to judge in Cases of Blood, and must hold good even for Bishops, who are all of them Clerks.

As for this Case of Beckets, which only stands upon the credit of a Manuscript, said to be made by Fitz-Stephens, a Monk, whom he characterizes for a sober and grave Histo­rian, and more solito, out of the sweetness of his nature gives me a lash, saying, It is usual with me to let fall expressions to vi­lifie Testimonies and Precedents when they make against me; and this because I stile it a Blind Manuscript, and suspect the Author as partial, having been a creature of Beckets, and consequently no friend to the King. And therefore I give rather credit to the una­nimous consent of the Historians of those times, who do not relate the passages of that Tryal to be as he makes them, than I do to him and his Manuscript. I call it a Blind Manuscript, because it sees not the light, lyes obscure in some bodies Closet, Mr. Selden doth not tell where, and I dare say our Asserter never saw it, though he terms the Author a grave Historian. His tale is, how at that great Council at Northampton, Archiepiscopus laesae Majestatis Coronae Regiae arguitur, quia est a Rege citatus pro causa Iohannis, neque venerat, neque idonee se excusasset, &c. The Arch-bishop is questioned for Treason against the Crown of the King, because he was summoned by the King in the Cause of John (that is one John the Marshal, who complained that the Arch-bishop had done him injustice in his Court) and he neither came, nor had sifficiently excused himself upon [Page 66] sickness, or any other just reason which might necessarily hinder him, whereupon he was con­demned to forfeit his personal estate, and the Bishops and Barons not agreeing who should pro­nounce the sentence, they putting it off from one to another, at last the King commanded the Bi­shop of Winchester to do it. This is his sto­ry, and one may think it a strange piece of Treason, one not to come immediately upon a Summons to attend the King, especially if it be true what all the Historians that write of those times have related of this bu­siness. Gervasius Dorobernensis is an Author, as Mr. Selden observes, who lived in that age, and one of whom Mr. Selden, and all Antiquaries (we are sure) have a good opini­on: and though our Asserter is confident enough to affirm they all have so of Fitz-Stephen, it is of what I do not find, that much hath been said by them to shew that, nor do I think that any of our Antiquaries, but Mr. Selden, doth so much as mention him: And from Gervasius Dorobernensis, we have this relation, Rex praecepit praesules & Proceres regni apud Northamptoniam una cum ipso Archiepiscopo convenire, &c. The King com­manded the Prelates and Nobles of the King­dome, together with the Arch-bishop himself, to meet at Northampton, where the Arch-bishop was accused of many things; first, that he had not fully done justice to one John that had a suit before him; then that upon this occasion being called into the Kings presence, he neglected to come. To this the Arch-bishop made answer, That John had all the justice done him that was due to him, [Page 67] that he had illegally defamed his Court, that he would not swear upon the Evangelists, as the cu­stome is, but upon an old Song-book which he brought with him. But that being upon this sum­moned, he came not into the Kings presence, was not upon any contempt, but that he was hindred by a great sickness, and that he had excused himself by two competent witnesses whom he had sent for that purpose; yet this served not his turn, but Curiali Iudicio & Episcoporum consensu condemnatus est; He was condemned by the Iudgement of the Court, the Bishops consenting to it, that all his personal estate should be at the Kings disposing. This now is delivered unto us by an unquestionable known Author, who lived in that time. Fitz-Stephen and he agree in the matter of the Accusation, and agree in the Judgement, but Fitz-Stephen lays it to be Crimen laesae Majestatis Coronae Regiae, High-Treason, which must be for not coming to the King when he was summoned: Gervasius saith, that he sent his excuse by two witnes­ses, who testified that he was then very sick, and not able to come, which we all know to be a Lawful Essoine, De malo lecti, which cannot be disallowed, but must excuse, nay, justifie any bodies absence. Now can any body that is master of common sense, be­lieve Fitz-Stephens relation, who will have this to be a Capital crime, High Treason, and a Capital proceeding upon it? We see the Sen­tence was far from Capital, and could not have been such as it was, if the Crime had been laid in the Accusation to be High Trea­son. Roger de Hoveden in his relation of this [Page 68] business, makes no mention of Treason, He saith, That the King calling a great Council at Northampton, Taedium magnum fecit Ar­chiepiscopo, did a thing which much vexed the Arch-bishop, which was, that he caused his Horses to be put into the Arch bishops Inn, where­upon the Arch-bishop sent the King word, that he would not come to the Council till his Inn was clear­ed of those Horses; yet upon the second day of the meeting, the Arch bishop came into the Chapel where the Council sate, and there desired the Kings leave, that he might go over into France to visit Pope Alexander who was then there, which the King denied him, and said he should first an­swer for the injustice he had done to John the Marshal, in his Court: This John having com­plained to the King, that he had had a long suit in the Arch bishops Court for some Land he held of him, and could have no Iustice, and that there­upon, Curiam Archiepiscopi Sacramento fal­st ficaverat secundum consuetudinem Regni: He had, according to the custome of the King­dom, upon Oath charged the Court with wrong doing (which I take to be a protesting against the proceeding of that Court, and the Judge­ment there given, in the nature of a Writ of Error.) The Arch-bishop answered to this, That John had no injustice done him, and that he brought into the Court a certain strange Book, and would swear upon that; how for want of Iustice, he left my Court, which the Officers that kept my Court, looked upon as an injury done to me, because it is the Law of the Kingdome, Quod qui Curiam alterius falsificare voluerit, oportet eum jurare super sacrosancta Evange­lia: [Page 69] Whoever will so charge a Court with false dealing, must take his Oath upon the Holy Evan­gelists. Notwithstanding this, the King swore he would have Iustice done upon him. Et Barones Curiae; And the Barons of the Court gave Iudge­ment on him to be at the Kings mercy: Which Iudgement the Arch-bishop going about to reverse, (Iudicium illud falsificare, is the expression) He was perswaded by the Barons to submit himself to the Kings mercy for a Fine of five hundred pounds. Here is nothing in all this that can possibly infer any thing like Treason.

And it is something observable, what both these Authors say of the Judgement given; Gervasius saith, Curiali Iudicio & Epis­coporum consensu condemnatus est; as if the part of the Bishops in this judgement were some­thing differing from the Act of the Court, and not comprized in it: Hoveden saith, Barones Curiae Regis judicaverunt eum; as if the Bishops had no hand in it at all. Radulphus de Diceto Decanus Londinensis, I suppose Dean of Pauls, who lived in those times, mentions this business, he saith, That the Arch-bishop was questioned upon John the Marshals complaint, and fined 500 l. and that he was questioned likewise for moneys received by him, when he was Chan­cellour, for some Bishopricks and Abbies, of which he had received the profits, during their vacancies, and that not finding the Bishops to be his friends, he appealed from their Judge­ment, but then the Proceres, the Nobles, though he appealed from their Judgement likewise, yet they In eum nec confessum nec convictum, sententiam intorserunt: They wrested [Page 70] a Iudgement against him, though he confessed nothing, nor was at all convicted. You see here is not a word of Treason laid to his charge, nor nothing Capital, or any thing towards it. Matthew Paris tells you the same story, and almost in the very same words. Now let any man judge, whether all those Histo­rians concurring, or single Fitz-Stephen dis­agreeing, deserves more credit: And that which hath greatest weight with me, is the Argument drawn ex natura rei, the crime which all agree that the Arch-bishop was charged with, was his not appearing upon the Kings Summons, which without a great and a very false Multiplying-Glass, cannot appear to be any thing like Treason: So I must conclude, that since the Charge against him had nothing of Capital in it, the pro­ceedings upon it was not as against a Capital Offender, not brought to Tryal as a Prisoner, but came in upon a bare Summons, and tarried there, and returned at full liberty, the Judgement neither of loss of Life nor Limb, but meerly Pecuniary, and, as some of the Authors say, compounded with for five hundred pounds: I must I say, conclude, that this whole Case is nothing to our purpose, and neither the Law nor usage of Parliament did bar the Bishops from being personally present at such a Tryal.

And now I come to the point of Peerage, which I have so fully handled in my former Letter, as I think I need not say much in this. Our Asserter brings three Arguments to prove them to be Peers: The first is, That it is [Page 71] the general stile of all Parliaments from the beginning, to be Generale Concilium Cleri & Populi, even before the coming in of the Normans; which no man denies. The businesses of the Church, as well as of the Civil State are there determined; the Writ of Summons shews it, which saith, That the King intending to call a Parliament, Pro quibusdam arduis negotiis Nos Statum & defensionem Regni Angliae & Ecclesiae Anglicanae concernentibus. Bishops and Temporal Lords are summoned, and heretofore several others were summoned as Bannerets, and sometimes other persons of Quality who likewise were not Peers, and yet were called to the Parliaments as pleased the King; and the Judges are so summoned at this day, Super dictis negotiis tractaturi consilium suum impensuri. Where the Bishops act as Bishops, and what by the Law of the Land, and the practice and usage of Parliaments they ought to do, that they do, and may do; the Temporal Lords in like manner, and so likewise the Judges every one acts in his Sphere; but this neither gives the Bishops power to judge in Capital Causes, if otherwise it be prohibited them, nor doth it make them Peers, no more than it did formerly the Bannerets, and others, for their being summoned to sit and vote in the House of Peers: We had the experience of this the last Parliament, a Baron pretending to a much ancienter station among the Peers, by proving that his Ancestor had been summoned by one of our former Kings, to sit more than once in the House of Lords, yet not making [Page 72] it appear that that favour had been still continued to him; and it being made appear on the other side, that several Families in this Kingdom would have the same pretence upon the like ground, it was the opinion of the House, that he had no Right to it; and consequently that his Ancestor was never acknowledged to be a Peer os the Realm, and his Blood enobled, which otherwise would have descended from him to his Posterity, and to this present Baron, who is since enobled by a later Creation, but takes nothing from that Ancestor. So then it is clear, that sitting in the House of Peers, and having a parity of Vote, and enjoying many of the same priviledges with the Peers, doth not in true and proper speaking, make the Bishops Peers; no more than 21 R. 2. Sir Tho­mas Percy sitting with the Peers, and Voting with them, as Procurator for the Bishops, was thereby a Peer.

His next Argument is, That in several Rolls of Parliament they are expressly called Peers, which cannot be denied, nor doth that make them Peers, if the essential parts of Peerage, be wanting to them: We know that denominations are many times taken up in a large and improper sense, for some circumstances, some similitudes, something which is extraneous unto them, yet wherein they agree with things of another nature: And so Bishops having place and vote in the House of Peers, and joyning with the Peers of the Realm, sitting in Parliament, in all things, with equal power uno excepto, saving [Page 73] only in cases of Blood, it is no wonder if they are often stiled Peers of Parliament. But the Precedents he cites, are falsly recited both in the Case of Mautravers, and that of Gomenitz and Weston, as I have shewed before.

His third Argument is, That they have judged as Peers, upon Peers of Parliament. But I deny that they judge there as Peers, but as called to the Parliament, to be Members of the House of Lords, as Bannerets were for­merly, and many principal Gentlemen who were still Commoners, and some Officers, as the Warden of the Cinque-Ports, who was no Peer sometimes, and yet summoned up to the House of Lords, and all these judged such Peers as were tryed in those Parliaments in which they sate.

However, that Bishops are not Peers of the Realm, and so consequently not proper­ly and truly Peers of Parliament, though of­ten called so, I think will be clearly made out.

First, I must, as I have formerly done, in­sist upon the Great Charter, which Sir Edward Cooke saith, is declaratory of the Principal grounds of the Fundamental Laws of England, and which the Statute made 25 E. 3. Confir­matio Chartarum, will have to be observed as the Common Law, and all Judgements given against it, to be undone and holden for nought, this Law is certainly to be obeyed, and what is done in observance of this Law, is most legal: And it enjoyning every man to be tryed by his Peers, and Bishops being try­ed [Page 74] by a Jury of Commoners, Commoners are their Peers, and they are Peers to Com­moners, and not Peers of the Realm: Peers per eminentiam, as I may call them, or else Magna Charta is broken, and made a Law of no authority.

2. To be a Peer of the Realm, their Blood must be enobled, and their Persons dignified; nor can they otherwise be put into the same rank with those who are so, which would make but an ill accouplement, and they would never draw well together. Now Bishops do not sit in Parliament ratione Nobilitatis, but ratione Officii, as Stamford saith in his Pleas of the Crown, p. 153. En respect de lour possession se launcient Baronies anneres a lour dig­nitées: In respect of their possessions, viz. the ancient Baronies annexed to their dignities.

3. If they were Peers, and their Persons enobled, their Wives would be noble, and have the priviledges of Peeresses, being Mar­ried or Widows, for Husband and Wife are one person in Law; but we know they have no such priviledge, which shews their Husbands to be no Peers.

4. If Bishops were Peers of the Realm, and any of them questioned for a Capital Crime in Parliament time, they could be tryed and judged only by the House of Peers, and by no other Court of Judicature. The Lords could not avoid the trying of them them­selves, indeed any but Peers they may refuse, except it be upon an Impeachment by the House of Commons, for then they must re­tain it, and proceed in it, but not otherwise, [Page 75] except they see some great cause for it, Pro bono Publico, as it is 1 R. 2. when the Com­mons desired that no suit between Party and Party should be undertaken, and determined by the Lords, or the Officers of the Council, but that the Common Law might have its course, except it be in such a business, and against so great a person as one cannot else hope to have right done in it: The same is confirmed 1 H. 4. which I alledge to justifie the Judicature of the House of Lords, upon those who are not their Peers, upon special occasion: But for trying of their Peers is a duty incumbent upon them, which they must perform; and any Peer who is questioned, may challenge it as his right, and it cannot be denied him. And therefore 4 E. 3. when they had, upon the Kings earnest pressing them, Tryed and Condemned Sir Simon de Bereford, Sir Iohn Mautravers, and other Commoners, they make a Protestation, that they nor their Successors, Ne seroient mes tenus ne charges a rendre Iugements sur autres, que sur lur Piers: Should not be bound nor charged to give Iudgement upon any but their Peers. But we know that they have some­times turned off Bishops to Inferiour Courts, as appears by the Record of it in the Exche­quer, the same 4 E. 3. Stephen Gravesend, Bi­shop of London, was complained of in Parlia­ment, by one Iohn de Wymburne, for saying, That if Edward the Second was yet living, as he was informed he was in Corf-Castle, he would assist him with all his power, to re­establish him in his Throne. Sir Edward [Page 76] Cooke saith, that by order of Parliament the matter was referred to be tryed in the Kings­bench, but the Record saith, that the Parlia­ment referred it to the Kings Council, and appointed him to appear before them at Woodstock upon Sunday fortnight after Easter, and that they turned him over to the Kings­bench to be Tryed by the Chief Justice Scroope, and his fellow Judges. Whereas had this Bishop been then accounted a Peer of the Realm, he must have been Tryed in Parlia­ment; the Parliament being once possessed of his Cause, and they could not have referred him to any other Judicature.

So here you have four Essential parts of Peerage all of them wanting in Bishops, and the want but of one Essential part is enough to destroy the whole. He can be no Peer of the Realm who is at the Kings sute Capi­tally Tryed by a Jury of Commoners, if Magna Charta be good Law, which is our All as we are Free-men. Secondly, He who is not himself enobled, cannot be a Peer in equal rank to one that is: For all Peers are equally Peers, as we may say, Peerage doth not recipere magis & minus. The meanest Baron is as much a Peer as the greatest Duke, else they were not Peers, it would be Contra­dictio in adjecto, an Imparity in a Parity. Thirdly, If the Husband be enobled, the Wife must be so; but the Wife of a Bishop is not enobled, therefore the Person of her Husband is not, for the Wife and the Husband are one. Fourthly, If a Bishop were a Peer, he could in Parliament time be Tryed no where [Page 77] but in the House of Peers, but Matter of Fact we find to be otherwise. Therefore, I think, I may safely conclude that Bishops are no Peers.

But before I leave this point, I must answer one thing which is said, They say, they hold by Baronage, and therefore they are Barons, as Fitz Stephen makes the Bishops in their al­tercation with the Temporal Lords about the pronunciation of the Sentence against the Arch-bishop, saying, Non sedemus hic Episcopi, sed Barones: Nos Barones, & vos Barones, Pares hic sumus: We sit not here in Parliament as Bishops, but as Barons; we are Barons, and you are Barons: Here we are Peers. Fitz-Ste­phen's authority signifies nothing to me; but this I know is said, and believed by many, there­fore it must be answered, to disabuse many, who may think, that holding by Barony creates a Baron, which it doth no more, than holding by Knights service, makes a man a Knight, or holding by Villanage makes a man a Villain, which many do to this day, even but here at East-Barnet, and yet are good Free-men and no Villains, for it works not upon the Person, as Fleta saith, l. 3. c. 13. the service they do, is ratione tenementi non personae. So the Bishops holding per Baronagium, are thereby made subject to do the service of Ba­rons, and to obey the Kings, Writ of Sum­mons to attend the Parliament, which makes them Lords of Parliament; but affects not their person. The Bishop of the Isle of Man is a Bishop as well as any of the rest, first instituted by Pope Gregory the Fourth, as Sir Edward Cooke saith; but not holding [Page 78] by Baronage, hath no place nor vote in Par­liament. We must know that this Tenure by Baronage was first created by William the First, of all the Lands which held of the Crown in Capite, consisting of so many Knights Fees, these Lands were divided, some to Lay-men, some to Ecclesiastical persons: And these were all bound to certain services, though not all to the same, and among others, all to attend in Parliament, whenever the King pleased to Summon them, and so became Lords of Par­liament. This continued so till King Iohn's time, when the number of the Temporal Lords growing so great and numerous, that King made some alteration, which certainly was setled and confirmed by Parliament, but justly the time when this was done is not known, the Record of it being lost. The alteration was, that none of the Temporal Lords should come to Parliament but such as received the Kings Writ, a particular Summons for it. These were called Barones Majores; those who were not so summoned, and so did not come to Parliament were stiled Barones Mi­nores, and were still Feodal Barons as before, and held their Lands per Baronagium, but were not Lords of Parliament. Therefore it was not barely holding by Barony, which made the person a Baron even in those times, there was an act of the Kings requisite even in the Sum­moning of him to Parliament, to make that Honour to affect and enoble the Person, and so to fix it, and make it hereditary in the Family; which way of dignifying a Person continued till the eleventh year of Richard the [Page 79] Second, when Iohn de Beauchamp, Steward of the Houshold, was first created by Patent, Baron of Kiderminster, since which time it hath still been practised to make them all Barons by Patent. But the Bishops have still continued upon the first Institution of being by their Tenures obliged, and accordingly Summoned to attend in Parliament, which made them Lords of Parliament, but not Peers of the Realm.

And now I come to his last point making them a Third Estate, for which he cites the Bill presented to Richard the Third in his first Parliament where they are made so, and to this I can oppose other passages in Parliament clean contrary, as that 2 H. 4. where the Temporal Lords and they together, are made to be one of the three Estates, and other in­stances may be given of the same nature: But let us a little consider how that Bill was fra­med, 1 R. 3. it was first devised by certain Lords Spiritual and Temporal, and other Nobles, and notable Personages of the Com­mons, a Party picked out and chosen for that purpose, who presented it in the behalf, and in the name of the Three Estates of this Realm of England; and what was this to do, to declare Edward the Fourth to have lived in adultery with Dame Elizabeth Gray, whom he had married, being precontracted to Dame Ellianor Bottiler, daughter to the Earl of Shrewsbury, and consequently all his Children, Bastards, Edward the Fifth a Bastard, and Eli­zabeth his Sister, a Bastard, afterwards mar­ried to Henry the Seventh, which entituled [Page 80] him and his Posterity to the Crown, set an end to all the foregoing competitions, and setled it as it is at this day, this Bill, as the Record saith, was first presented and delivered to their Soveraign Lord the King, that was to R. 3. whom they made so in the name and on the behalf of the said Three Estates, out of Parliament, and now by the said Three Estates assembled in Parliament, ratified and confirmed. And truly, I must say, this is not an authority to be bragged of, for making the Bishops a Third Estate.

But then let us see if the Bishops sitting in the House of Lords, have the necessary and essential qualifications of being a Third Estate in Parliament, without which they cannot be a Third Estate there: That the Clergy is one of the three Estates of the Realm, and they the Principal and Chief of them, no body denies: And that they are Summoned to Parliament as a Third Estate of the Realm, the dignified Clergy personally, others of the Inferiour sort by their Procurators and Re­presentatives, is likewise confessed; but not to have any part in making of Laws for the good Government of the Kingdom, no not so much as in matters meerly concerning the Church; but they may offer and propose and be consult­ed with, but whatever they agree upon must come to the two Houses of Parliament, and receive the stamp of their Authority, before it can be presented to the King to become a Law, and be binding to the People: This is the work of the Convocation which meets at the same time with the Parliament, and there [Page 81] is convened the Third Estate of the Realm; Where the Bishops make the Upper House. and there sit as Bishops according to their Spi­rituality. But their Summons gives them ano­ther capacity, which is to meet in the House of Lords, and there Cum caeteris Praelatis, Mag­natibus & Proceribus regni de arduis negotiis Sta­tum regni & Ecclesiae specialiter tangentibus tra­ctare & consilium impendere; and thither they are obliged to come and attend by their Te­nure of their Baronies, where they sit in their Personal Capacity, to do the service which they owe for the Lands they hold of the King.

Now we will consider, if being there upon such an account, it can any ways stand with reason, and the nature of a Third Estate, to esteem them to be so. 1. To represent the body of the lesser Clergy, as our Asser­ter will have them to do, who else, he saith, would be in a worse condition than the mean­est Clown, having no body to represent them in giving Aids and Subsidies; first, I say, that as Subsidies were heretofore given in Parlia­ment, which was the ancient Parliamentary way of supplying the necessities of the Crown and Government, where the Convocation gave the Supply of the Clergy, the Bishops as Members of the House of Lords, had no­thing to do in it, but as Members of the Con­vocation they had, and the Representatives of the lesser Clergy, who were chosen by them, and made up the Lower House of the Convocation; they gave their consents, and joyned in that Gift for the whole body of the Clergy; the two Houses of Parliament did [Page 82] only ratifie and confirm what the Convocati­on had done, and therefore only the begin­ning and the end of that Act of Subsidy given by the Clergy, not the body of it, was open­ly read in the several Houses of the Lords and Commons. So 4 R. 2. the Commons having offered to give an aid, so as the Clergy, who enjoyed a third part of the Realm, would pay one third part of the Summ; the Clergy an­swered, That they were not to grant any Aid by Parliament, but of their own free wills, and there­fore willed the Commons to do their duties, and they would do theirs. This was the ancient way of granting supplies in Parliament, where you see the lesser Clergy had their Represen­tatives, which it seems our Asserter did not understand, and so no wonder if he did mi­stake, as he commonly doth. And this I must say further, the lesser Clergy, as he calls them, are little beholding to him, to have them to be represented by Bishops, having no hand in the choice of them: This I am sure, puts them into a meaner condition than the mean­est Clown, who if he have but 40 s. Free-hold, gives his voice to whom he will to re­present him in Parliament, to give his assent to part with his Money, and to make any Law to bind him. Of later times they have taken up another way of granting publick supplies, which is of so much in the Pound, which they call a Pound-rate, and this brings in the Clergy to pay their proportion, who are now as busie as any in electing of Members to Parliament. In a word, none can represent another in Par­liament, that is not chosen by him; every [Page 83] particular person that hath right of vote, be­ing included in the majority of Vote: So the whole Clergy, being the third Estate of the Realm, and the Bishops not being chosen by them, they cannot represent that third Estate.

2. The Bishops sit not in the House of Lords Ratione Spiritualitatis, as was the opinion of all the Judges of England, 7 H. 8. in Keil­way's Reports, in Dr. Standish's Case. Les Spiritual Seignieurs nont ascun place en [...]e Parlament chamber per reason de lour Spi­ritualtie mes solement per reason de lour tem­poral possessions: The Lords Spiritual have no place in the Parliament chamber by reason of their Spiritualty, but by reason of their Temporal pos­sessions. How then can they be said to be there a Third Estate, to represent the Clergy of En­gland, when they sit not there as Clergy-men?

3. If they be a Third Estate, they must have a Negative voice to whatever is proposed in the House, if the majority of their opinions be against it. And for our Asserter to say, that the Custome, and so the Law of the Parliament is otherwise, and that the two Estates of the Lords Temporal and Spiritual make but one House, where they vote inter­mixedly. Why, this shews they are not two Estates, because they do vote intermix­edly, for if they were so, they must vote severally, and not be twisted so together as they are, as I said before in my former Let­ter, like a nest of Boxes one within another. And think what a disparagement it would be to the House of Lords, that two Estates must be clapped together, to make them equal [Page 84] to the one Estate of the House of Com­mons.

4. If the Bishops were a Third Estate, the Parliament could not act as a Parliament without them, for a Parliament is composed, and must consist of Three Estates, and nothing is binding but what is so passed. But we know that in Edward the First's time, there was a Parliament called and held Clero excluso, and Laws were there made, when none of them were present, and many Acts have passed in several Parliaments, when the Bi­shops have all voted against them. The Judges in that of 7 H. 8. deliver their opini­ons for Law: Due nostre Sur le Roy poit as­setz bien tener son Parlement per luy, & ses Temporal Seigniors & per ses Commons, tout sans les Spirituals Seigniors: Our Lord the King can hold his Parliament himself with his Temporal Lords, and his Commons, wholly with­out the Lords Spiritual.

These, and many other Reasons, confirm me in my opinion, that Bishops are neither Peers of the Realm, nor a Third Estate in Parliament, yet they might be both, and not invalidate my Position, which I at first under­took to prove, which was only this, that by the Practice and Custome of Parliament, and by the Law of the Land, Bishops are prohi­bited from meddling in Parliament as Mem­bers of the House of Lords in any Tryal of a Criminal Person, where the Charge, the Pro­ceedings, and the Sentence upon it is Capital, and goes to the Loss of Life or Members, only one Precedent excepted, that extravagant one [Page 85] of 28 H. 6. And my good friend the Asserter who hath almost as many Errata's as Lines in his Book, must give me leave to summ up all my Corrections of them in one Distich, as Martiall did those of his Friend Fidentinus; such another Fidentinus, it seems, as our As­serter; and it was this,

Emendare tuos O Fidentine libellos
Multae non possunt, una litura potest.

And I must say the Verse doth not better qua­drare with the product of his Brains, which hath so many faults as can only be covered and put out of sight with one rasure from the beginning to the end, than this one and the same Name of Fidentinus deciphers the Confidence of them both, Nullâ pallescere culpâ. And so I shall leave my Friend Fidentinus to learn better manners, if he be not altogether incorrigi­ble; and apply my self to peruse and answer (if I can) a Treatise of a worthy Gentleman, who is, I see, of a differing opinion from me, and hath much more of reason, and some­thing, though not much more of civility and fairness in the maintaining of it, so as whether or no his reasons will convince me, I know not; but if they do, I will certainly grant it, for my Maxime is still, Amicus Plato, amicus Socrates, sed magis amica Veritas.

The Writer of this Treatise, intituled, The Grand Question concerning the Bishops right to vote in Parliament in Cases Capital, Stated and Argued; doth state the Question right, that is, Whether the Bishops may be present and [Page 86] vote Judicially in Capital Cases which come to be judged in Parliament, either in giving the Judgement it self, or in resolving and determining any circumstance preparatory, and leading to that Judgement. Then he sets down some things granted on both sides, as 1. That Bishops do sit in Parliament by vertue of their Baronies, and are bound to serve the King there. From this he infers they have a Right of Judicature, which is not denied; but the question is, as he saith himself, what this Judicature is. 2 That they sit by the same kind of Writ, that other Ba­rons do. Upon which he would infer, that they are impowered and required to confer and treat of all the weighty affairs that shall be brought before them, the King having not limited nor restrained the one more than the other. But it follows not, because all are called together by the same authority, that therefore the same duty is incumbent upon all, if there be a higher power that directs what every ones duty is to do, when they are come together. Now the King acts in a higher Sphere by the Law of the Land, and the law and practice of Parliament which prohibits Bishops from meddling with judging of Capital Causes in Parliament, nor did they ever do it, but in one extravagant proceeding in 28 H. 6. where nothing was regular nor Parliamentary from the beginning to the end, which I look upon as altogether insignificant to alter what is so setled by Law and constant Custome, there­fore the Kings Writ of Summons cannot dis­pence with that, to make that lawful, which in it self is unlawful; as I have sufficiently [Page 87] proved it. And I will now go a little further in it, than I did before, for hitherto I have only insisted upon the Law of Parliaments, as a thing setled in Parliament by the Constitu­ons of Clarendon in Henry the Second's time, and the Protestation of the Bishops enrolled in Parliament by the King, Lords and Commons, 11 R. 2. but now I will deliver my opinion (which I submit to better Judgements) that they lye still under a Restraint by the Canon Law, which by the Statute 25 H. 8. c. 12. which (was repealed 1 and 2 Phil. and Mar. but revived 1 Eliz.) is still of force, where it is not repugnant to the Laws of the Realm, which we are sure this branch of it, restraining Bishops from judging Capitally is not; so far from it, that it is confirmed and strengthened by the Law of the Land. 3. The third Par­ticular in which he saith all agree, is, That they have their Votes in Bills of Attainder, acting in their Legislative capacity, which is as much a Case of Blood as the other, and perhaps as much forbidden by the Canon. But I desire this worthy Person to consider, that the Practice of Parliament is the Law of Parliament, and is the commanding Law for regulating the Proceedings of Parliament, and that hath over­ruled this Point, that in the making of a Law, every Free-man of the Kingdom doth give his consent, either explicitly if he be a Member of either House, or implicitly by his Representa­tive, for every Free-man of the Kingdome is there present, or represented. And it is the Fundamental Constitution of our English Free­dome, that no man can be bound by any [Page 88] Law, but what himself hath consented to; now a Bill of Attainder is as much a Law as any Statute Law of the Kingdom. There­fore Bishops have acted in a Legislative capa­city to judge and condemn Capitally, as seve­ral Precedents we have of it in Henry the Eight's time, but not in a judicial capacity. And to say the Canon Law prohibits one as much as the other, the Statute of 25 H. 8. clears that point, which takes away the force of the Canon in the one, not to abridge Mem­bers of Parliament from voting in the Legi­slative way, and strengthens it in the other, forbidding Bishops to vote Judicially in Cases of Blood. Yet if you will have me deliver you freely my opinion in it, I think it is an abuse crept in since Henry the Eight's time, for before none were judged by Bill, but such as had been slain in open War, or Tryed, Condemned and Executed by Commission, and then the proceed­ings brought into Parliament, and there appro­ved of, and the Attainder confirmed, but under Henry the Eighth several persons were con­demned by Bill, and the Earl of Strafford late­ly in our memories, which seems now to be authorized by the Practice of Parliament. Sir Edw. Cooke tells a story which he had from Sir Thomas Gaudy, one of the Judges of the Kings-bench, how the King had commanded Cromwel, and the Earl of Essex, to attend the Ju­stices, and know of them, if a man who was forth coming should be condemned by Act of Parliament, without being heard; who after some fencing, answered if it were so, it could not be afterwards called into question; and [Page 89] Cromwel himself was not long after so served; but this is by the way. Multa quae fieri non de­bent, facta valent. I have been a little the longer in these particulars, because it will much smooth our way in the following discourse.

And this worthy Gentleman must give me leave to say, That he needed not have put himself to all that trouble of his first Chapter, in telling us of the mighty power the Clergy had in the Primitive times in the ordering of Secular affairs, which certainly was more by way of Counsel, than any thing of Authority by way of Judgement, and in a Judicial way. And he will avow to me, I doubt not, that the ministery of the word was a full employ­ment for the Apostles, and so for Bishops, who call themselves their Successors, as well as serving of Tables, and other ministerial duties was a full employment for those whom he calls the Treasurers of the Church; and therefore they said it for themselves, and left it as a Rule for their Successors, even to Bi­shops, and all other dispencers of the Word and Sacraments, that it was not reason they should leave the Word of God, and serve Tables. Which it seems was a Non est Conso­num, by the Law of God, just as by the Com­mon Law of the Kingdom, a Writ was pro­vided, declaring it to be likewise a Non est Consonum, and to be Contra morem & Consuetu­dinem Regni, that Clergy-men should be em­ployed in Secular affairs. This indeed I hint­ed at then, as I gave also some little touch at the Government of the Church by the Im­perial Law, but not that I put any stress upon [Page 90] it, but meerly to circumscribe the Question, and keeping it within limits, by a Negative, declaring what it was not, and an Affirmative, expressing what it was, how Bishops in Par­liament could not Judicially act in Capital Cases.

Therefore were it all so as this learned Gen­tleman seems to infer, that in France, Spain, Ger­many, and those Northern Kingdoms which he mentions, that Bishops were joyned with the Civil Magistrates in ordering the Publick Affairs of those Nations, and that they had a share not only in the Legislative, but in the Judiciary part, as he alledgeth two Authors to prove it to have been in France, it would not be of any signification to decide our Controversie, for what is this to us to regulate our Parlia­ments, and to operate on our Laws? But first for matter of Fact, as to France, to which I can speak a little, having spent many years in that Kingdom, and I have, by way of dis­course, informed my self from the Ambassa­dour who is here from that Crown, who doth assure me, that the Judges (whom they call Counsellors, and not Judges, as we do) who are Clergy-men, as many there are joyn­ed with the others of the Laity, never sit in that Chamber of Parliament, which trys Ca­pital Causes, which they call the Tournelle. I believe the same may be observed in those other Countries which our Author mentions, and I do not see how it could be otherwise, the severity of the Canon Law being so strict in the prohibition of it.

[Page 91] But as I said before, the Primitive Christi­ans had that veneration for the Clergy, and especially for the Bishops, that they were still joyned with the Civil Magistrate, in order­ing the affairs both in Church and State. The matters of the Church, they determined Judi­cially, in Secular affairs, whether Criminal or other, only by way of Counsel, if the Ci­vil Magistrate to whose Province they be­longed, did not do his part. I am sure it was so in England. Brompton in his Chronicle, recites the Laws of King Athelstane in this particular: I cited his very words in the ori­ginal in my former Letter, I shall now repeat them very faithfully in English. He saith, It appertains of right to a Bishop to promote that which is right, both concerning God and the World. A little after he addeth, He ought likewise diligently, together with the Secular Judges, to promote Peace and Concord. And soon upon it, he hath this passage, The Bi­shop ought to be present in Judgement with the Secular Judges, not to suffer any buds of wicked­ness to sprout, if he can hinder it. His Presence and his Counsel was rather a check upon the Judge, than to determine any thing in Secu­lar affairs. Sir Henry Spelman is a little more particular in delivering unto us the nature of that mixt Court, it is in his Glossary upon the word Comes. The Earl, he saith, did pre­side in that County Court, not alone, but joyned with the Bishop; he to deliver what was Gods Law, the other what was Mans Law, and that the one should help and counsel the other: Especially the Bishop to do it to the Earl, for it was lawful [Page 92] for him sometimes to reprove the other, and to re­duce him, bring him into order if he went astray. Then he tells us what the work of that Court was, that it had cognizance but of petty mat­ters, That the Earl had not cognizance of great mens businesses, for such matters are to be brought in­to the Kings Courts, he only judges poor mens Causes. Hence it is, that by our Law, Actions for Debts and Trespasscs are not to be commenced in the County Court, if it be for above the value of 40s. It seems that in ancient times it was but one Court, but each Judge had his proper work, the Ecclesi­astical Judge to distribute and deliver to them what was Gods Law, the Secular Judge, Mans Law. And so it continued till William the First's time, who first separated the two Courts, as appears by his Charter to Bishop Remigius, which Mr. Selden relates in his Comment upon Eadmerus, p. 167. which he saith the King did Communi Concilio Archiepiscoporum suorum & raeterorum Episcoporum, & Abba­tum, & omnium Principum regni sui: In a Common Council, by the advice of his Arch bi­shops, and the rest of the Bishops and Abbots, and all the great men of the Kingdom: The words are, Wherefore I command you, and en­joyn you by my Royal authority, that no Bishop nor Arch deacon presume to hold Plea in the Hundred Court any more upon the Episcopal Laws, nor bring any Cause that pertains to the rule of Souls before the Judgement of Secular persons, but that who­ever is questioned according to the Episcopal Laws for any misdemeanour or fault, shall come to that place which the Bishop shall chuse and nominate for that purpose, and there shall make answer for him­self, [Page 93] and not in the Hundred Court, but shall, ac­cording to the Canons, and the Episcopal Laws, do that which is just and right both to God and to his Bishop. This was again confirmed 2 R. 2. and so the Courts came to be divided, as they continue to this day. But nothing can be concluded out of that large Enumeration, of the Bishops being admitted in those ancient times to Publick Councils, which was more for their Advice, and Counsel and Direction, than to act any thing at all Authoritatively and Juridically, and least of all to have any vote to determine any thing in Cases of Blood, which the Canon Law made a Noli me tangere to them: I deny not, but before there were Christian Magistrates, even in the Apostles times, the Ministers of the Gospel did many times interpose and recon­cile differences and sutes, which many times happened amongst believers; as St. Paul saith, Is there not a wise man among you, no not one that shall be able to judge between his Bre­thren? Nor doth he exclude the Bishops, that they may not come in as one of those wise men: Yet 1 Cor. 6. 4. he seems to exclude them: For he saith, If then ye have judgement of things pertaining to this life, set them to judge who are least esteemed in the Church. Which doth seem to intimate, as if he meant not the Bishops, for sure they are not least esteemed. But doth any man think, that they were by this authorized to compel men to submit to their Judgement, to punish or imprison, or lay any corporal punishment upon them, if they would not? Indeed I cannot think so. [Page 94] Nor do I find that St. Augustine was of that opinion, the term he gives to those whom the Author of that Treatise will have to be Ec­clesiastical Judges, doth not imply so much, rather the contrary methinks: He calls them Cognitores, which denotes rather one that took notice of such differences, and would endeavour to compose them, than a Judge to determine them, which hath made me exa­mine that passage more particularly. In his Comment upon the 118 Psalm he saith, speak­ing of those who interrupted them in their enquiry into the duty which they owed to the Commandments of God, Non solum cum perse­quuntur, aut litigare nobiscum volunt, verum eti­am cum obsequuntur & honorant, & tamen cum suis vitiosis & negotiosis cupiditatibùs adiuvandis ut occupemur, & eis nostra tempore impendamus, efflagitant, aut certè infirmos premunt, ut causas suas ad nos deferre compellant, quibus dicere non audemus, dic homo, quis me constituit Iudicem aut divisorem inter vos? Constituit enim talibus causis Ecclesiasticos Apostolus Cognitores, in foro prohi­bens jurgare Christianos. Here is nothing of coercion in all this, they acted not as Judges, nay, he complains that the Clergy-men them­selves were persecuted, and compelled to go to Law; or if they seemed to shew them some respect, and would be ruled by them, and drew them from their occupations to compose things between them, they would not drive them away, and say, who made me a Judge between you? For the Apostle who forbids Christians going to Law, makes the Clergy to be Cognitores, Referees or Umpires between [Page 95] which is the greatest act of Charity that can be, and most befitting the calling of the Mini­sters of Gods Word. But what saith St. Austin a little after, Good men he saith will hearken to us, and seldome trouble us with their Secular affairs, but others, qui inter se pertinaciter agunt, & quando bonos premunt, nostra Iudicata contemnunt, faciunt que nobis perire tempora rebus eroganda di­vinis: Good men will hearken to him, he saith, but those who are perverse do Iudicata contemnere, despise his award of it; which shews he took not upon him any authority of determining any thing. And so in his 147th Epistle to Proculianus the Donatist, he hath this passage, Et homines quidem causas suas Se­culares apud nos finire cupientes, quando eis ne­cessarii fuerimus sic nos Sanctos & Dei servos appel­lant ut negotia terrae suae peragant, aliquando aga­mus & negotium salutis nostrae, & salutis ipsorum: Non de auro, non de argento, non de fundis & pecoribus, pro quibus rebus quotidie submisso capite salutamur, ut dissentiones hominum terminemus, &c. Nothing plainer than that all this is pure­ly out of good will a work of Charity to those who desire him to determine their Secular dif­ferences, in which the Clergy then had meerly an eye upon Gods Glory, the good of their own Souls, and of the Souls of those for whom they took that pains. But all this is Nihil ad rem, let the Clergy have right or no right to judge of Secular Causes, it will not decide our Controversie, Whether Bishops in Parliament can meddle in cases of Blood: Hic Rodus, Hic Saltus, if we do all extravagate, I must come back to this.

[Page 96] His next Chapter will be more to the pur­pose, it is concerning the Constitutions of Clarendon, and the Protestation of the Bishops 11 R. 2. These two particulars well cleared, and no disguise put upon them, will go a great way: He begins with the Constitutions of Clarendon, which he conceives to be that Bi­shops are thereby required to be present in the Kings Courts, as other Barons are, till they come to give Sentence as to dismembring, or loss of life, and his Method is to judge of them by these three ways: 1. The occasion. 2. The plain sense of the words, according to their true reading. 3. By the subsequent Practice upon this constitution in the Parlia­ment at Northampton soon after.

1. For the occasion, this Author is pleased to say, he can hardly believe I should betray so much unskilfulness in the affairs of those times, as to say, that the Bishops did then affect such a power of Judicature in Secular Causes, and I think I have good warrant to be of that opinion. Petrus Blesensis, whom this Author cites, as living in Henry the Se­cond's time, and knowing the whole proceed­ings of those Constitutions, complains of it sufficiently. In the first and genuine Edition of them, Printed at Mentz in Quarto, pub­lished by Busaeus the Jesuite in 1600, in his Treatise De institutione Episcopi, p. 542. he hath this passage, Illud coelestem exasperat iram & plerisque discrimen damnationis accumulat, quod quidam principes Sacerdotum & seniores populi licet non dictent Iudicia Sanguinis, eadem tamen tractent disputando & disceptando de illis, seque [Page 97] ideo immunes à culpa reputant, quod mortis aut truncationis membrorum Iudicium discernentes, à prounciatione duntaxat & executione poenalis sen­tentiae se absentant. Sed quid hac simulatione perniciosius est? Nunquid discutere & definire licitum est, quod pronunciare non licet? This provokes Gods wrath, and heaps up upon ma­ny a danger of damnation, that some of the prime of Church-men, and Elders of the People, though they do not dictate Iudgements of Blood, yet they debate them, and dispute of them, and therefore repute themselves free from fault, in regard they have withdrawn themselves from being present, at the pronouncing and giving order for the execu­tion of the penal Iudgement, though they had before agreed to the punishment of Death, or loss of Limbs. But what can be more pernicious than such dissembling? Can it be lawful to debate and to determine a thing, which it is unlawful to pro­nounce? Then he compares them to King Saul, that had resolved upon the destruction of David, but would not that his hand should be upon him, but that he should fall by the hands of the Phi­listines; or to the Scribes and Pharisees, that cryed out against our Saviour, Crucifie him, Crucifie him, but said it was not lawful for them to put any man to death. Is not this as good as Chaucer's Fryer that this Author quips me with, p. 4.? I do not say that Blesensis blamed all the Bishops for evading the Law in that manner, he saith they were quidam Principes Sacerdotum, some of the great Bishops. But the Author would have it to be the Universal Practice and Opinion of all the Bishops and Clergy to understand the Constitution of Cla­rendon, [Page 98] that they might continue to sit in Judgement till the Sentence was to be pro­nounced; and in the Edition of Blesensis, Printed at Paris in 1667. instead of quidam it is Printed quidem, but by a manifest error which carries no sense with it, and the Mar­ginal Notes in both Editions shew it, which is, Abusus Clericorum qui causas sanguinis discu­tiunt; marking out the abuse of them that did so. This was obvious enough to the Au­thor in his quotation of Blesensis, therefore he might have spared the censure of my un­skilfulness in the affairs of these times, since I had such a Leader to follow as Blesensis; and more have I cause to complain of his want of Charity to me, p. 31. taxing me with representing those constitutions very unfairly, which is an expression of one engaged in a party, and not of one that only seeks for truth, but to shew his Reading and Learning, as I am afraid that Author doth, who raiseth a great deal of dust meerly to blind mens eyes, and mis▪ lead them into errours; and thus he commends himself for speaking mildly, and much good may his mildness do him.

It is apparent that the Clergy were then very high, having gotten a great head by the favour they had found from the Usurper King Stephen, where on both sides they served one anothers turns, and Henry the Second, to bring things again into order, call'd that great Counsel at Clarendon, where, by the Advice of the Prelates and the Nobility of the Realm, a recapitulation was made of part of the ancient customs and priviledges under [Page 99] the former King, and particularly under his Grand-father Henry the First, which for the future he would have to be observed in the Kingdom, and thus Propter dissentiones & dis­cordias saepe immergentes inter Clerum & Iusti­ciarios Domini Regis & Magnatum Regni. There were sixteen of those Articles, the eleventh was, that they should hold their possessions of the King in Capite, sicut Barc­niam; and should be answerable to the King for their Services; and should as Barons, in­teresse Judiciis Curiae Regis, quousque perveniatur ad diminutionem Membrorum, vel ad Mortem. Here we see the occasion of that meeting at Clarendon, it was to remove all causes of dif­ference between the Great Bishops and the Civil Magistrates; let us now see what was most likely to displease them, it's not pro­bable it should be for being reduced to stand upon even ground with the rest of the Nobi­lity, and great men of the Realm; but if in any thing they are made less, and abridg'd of the powers which the others have, it stands most with reason they should be troubled at that; and to be forc'd to walk out of the Judge­ment-hall after they had cryed Crucifige, is a great lessening of their figure, I think more than if they had not at all meddled in it. But this Worthy Author saith, I have made use of the most Imperfect Copy of Matthew Paris, and saith in the Vatican Copy, and several MSS. it runs thus, Debent interesse Judiciis Curiae Regis cum Baronibus, donec perveniatur in Iudicio ad diminutionem Membrorum vel ad Mortem. Now in my opinion, this makes more against [Page 100] the sense he would put upon these words, which is, that they may stay and have a hand in managing the debate upon the Evidence, and agreeing upon the Sentence, but must be gone when it is pronounced, (which as I said before, I look upon as a greater scorn put upon them, as Blesensis saith, Quid hac simula­tione perniciosius est, nunquid discutere & definire licitum, quod non licet pronunciare.) For I should think that mentioning in Iudicio in the second part should not have a different con­structionthan Iudiciis Curiae in the first part. For there the Judicia Curiae which they may be present at, is to be understood of the whole proceeding, from the bringing in of the Charge against a Criminal person, to the pronoun­cing of the Sentence: And can it be rationally thought that Iudicium in the second place should be meant only of the sentence which is the principal part, and which the corrupti­on of mans nature doth chiefly lead him unto. The Poet saith,

——Qui nolunt occidere quenquam,
Posse volunt—

This power of killing and slaying, Potestas Iuvandi & Nocendi, is a pleasing thing, and we are naturally angry with what abridgeth us of it. So I must conclude this point, that it's most probable the Bishops were most scan­dalized at this eleventh Article.

Secondly, Let us consider how to arrive at the true meaning of that constitution, which must be by comparing the passages of these [Page 101] times together, whereby we shall see how they understood it: Yoyu have already heard what Petrus Blesensis judged of those who would re­tain that Image of Judicature, how much he blamed them, and what menaces of Gods Judgements he denounced against them, for the words of that Constitution were not so clear and positive that it gave not Ansam dis­putandi to those whose Inclinations led them to turn it into another sense, and content themselves to play at small Games rather than sit out altogether. So the Wisdome of that time to make it yet more plain, and take away all ambiguity, moved the King to call another Great Council at Westminster in the year 1175. eleven years after, Ad Emenda­tionem Anglicanae Ecclesiae ex assensu Domini Regis & Primorum omnium Regni; where the third Article is, His qui in Sacris ordinibus constituti sunt Iudicium Sanguinis agitare non licet unde prohibemus ne aut per se membrorum truncationes faciant, aut inferendas judicent. Quod siquis tale fecerit concessi ordinis privetur officio & loco, Inhibemus etiam sub interminatione anathematis, ne quis Sacerdos habeat vicecomitum aut praeposit [...] secularis officium. It is not lawful for those who are in Holy Orders to act at all in Judgements of Blood, wherefore we forbid them to have any thing to do with taking off mens Limbs, or to judge of any such thing. And if any do such a thing, he shall be deprived of the of­fice and dignity of his Orders: And we also forbid, under the pain of being Anathematized, that no Priest shall take upon him the Office of a Sheriff, or of a Secular Judge. This [Page 102] makes it out plain, what the sense of those times was; that it was not lawful for them to act at all in cases of Blood; and this is as much the Law of the Land, as the Constitu­tions of Clarendon, or as any other Statute Law. But our Author, p. 42. quarrels at this, as only standing upon Roger Hoveden's authority, and wishes he had produced the whole Canon entire for it: Here you have two of our Ancient Historians that liv'd in these times, and agree in Terminis upon the relation of what there passed: But our Author is not satisfied, tells us the Council of Toledo makes an &c. and leaves out the prohibition, which declares the meaning and extent of their Canon: He will have this Prohibition, and Sanction of deprivation to attend only upon the latter part, that is, if they do joyn in pronouncing the Sentence: But where doth he find that distinction allowed, it is what the Clergy have framed and imagined to themselves to give them some Power: Admit we should allow them that, it makes it not the more lawful for them; there is still a Non licet, which is subject to punishment, and though the Ecclesiastical Law doth not go to that height to cut off a Member, deprive him ab Officio & Beneficio, yet it may go less in a lower Sentence, however the Civil Sanction may impose what punishment such a misdemea­nour may deserve.

Caetera desiderantur.

FINIS.
…

[Page] CONSIDERATIONS Touching that QUESTION, Whether the PRELATES Have Right to sit among the LORDS, And VOTE with them in PARLIAMENT IN Capital Cases, When the Lords sit in their Judicial way of Proceeding upon the Tryal of any of their Peers? In which it is asserted, That they have no Right to Sit and Vote with them in such Cases; Neither can it be made appear, they have ever practised the same. In Answer to the Reasons and Records urg­ed by the Learned Author of the Grand Question, &c.

LONDON, Printed in the Year 1682.

To the Reader.

THis Tractate which is now made pub­lick, was written soon after the Pub­lication of that Book intituled, The Grand Question concerning the Bishops Right to vote in Parliament in Ca­ses Capital, stated and argued, &c. It hath lain by the Author many Months, and should still have continued in the Dark had not the unseasonable thrusting into the World of a Book, called, An Argument for the Bishops Right in judging in Capital Cases in Parliament. For their Right unalterable to that place in the Government they now enjoy (by one Thomas Hunt Esq) stirred up the Pens of others, and the desire of Friends, me among them, to assert, as I believe, the contrary Truth. I assure the Reader; I did not at all guess the Author of the Grand Question, when I took into my thoughts the Con­sideration of his Book. Fame hath since put it upon a Person of so great Worth and Learning in all sorts of Literature, and for whom I have not only a particular Honour my self, but the present and future Times will look upon as one of the greatest Champions of the English Church against Popish Superstition and Idolatry. I should difficultly have been engaged in this Con­test, did I not know the Modesty and Ingenuity of this Learned Person is so great, that he will not [Page 98] take it ill to have his Reasons examined by a far less knowing Pen, which shall be always ready to submit to better Judgments.

I have examined this Author, Chapter by Chapter, have given Answers to his Reasons, and shewed the Infirmity of those Records he hath thought proper to urge for his Opinion, and have given some other of my own, not taken notice of by him, I hope material to that end for which they are alleged: I was not willing to trust too much to Abridgments; nor had either the Time or Con­venience to search the Originals, and therefore had recourse for some to a very near Relation of my own, who is well stored with that sort of Treasure, and who never denied me the use of any thing in his well-furnish'd Library I desired from him. Truth is but one; but Men may va­ry in their Apprehensions concerning it. As to others which I could not be supplied with from him, I must acknowledg my self deeply obliged to my much honoured, and very learned Friend, Mr. William Petyt, of the Inner Temple, who was not only pleased to read over the ensuing Treatise, but to give me the sight of a rich Ma­gazine of the Transcripts of Records which he hath fairly written by him, as also to give me the Copies of some, necessary to my purpose, which I either had not, or not so fully as from him. The Wrold hath already seen something of his, and may in due time expect more, in Reply to the learned Dr. Brady, in whom I find various and useful Learning, but (if I may have leave to say so) one misled in some measure by different Notions of Words, and Interpretations of them, contrary to [Page 99] their known and common Acceptation. Some part of his Book hath been already considered by the Author of Jani Anglorum facies altera: But the intire Answer to it we must expect from Mr. Petyt, who hath favoured me with the sight of a short Specimen of a greater Work to follow. I must not here forget my very deserving, and worthy Friend Mr. Atwood of Grays-Inn, whose Assistance I received in transcribing some Records for me. He is a Person whom God hath endowed with a good Estate, and a large measure of Knowledg, for the few Years he hath hitherto spent in the World, and who (I speak it to the shame of most of our young Men) spends his time in Studies useful to himself and to the Kingdom in which he lives. Having already seen from his youthful Labours so good Effects, we may well expect from his more ma­ture Judgment things of greater Advantage to the learned part of this Nation.

But let us now return to Mr. Hunt, a good Protestant he appears to be in his Postscript, which in these unconstant times deserves Com­mendation; and in his Book, he shews himself a Man of various reading and learning, with a competent Knowledg in the Tongues, but other­wise, if I much mistake not, a Man of confu­sed, and undigested Notions, by which he forces things to serve his turn, contrary to their true meaning, from meer Conjectures and Surmises of his own, without any colour of Demonstrati­on. His whole Book consists of three Parts, Argumentative, Invective, or Reproachful and Extravagant, or Conjectural. I cannot com­pare [Page 100] his Argumentative Part better than to a gleaning after a full Vintage. There is no­thing in it which had not been soreseen by the Author of the Grand Question, and pressed by him with much more Learning, Subtilty, and Closeness of arguing, or else wholly left out as unconclusive to the matter he had in hand; of whom it may be said, what was once of Hector in another Case, Si Pergama dextra defendi possent, etiam & hâc defensa fuissent. What is by me said in answer to his Arguments in this Treatise, must be left to the Judgment of such as shall read it. The second Part is invective, reproachful, and unsavoury, in which I would advise no Writer to follow his Steps. Soft Words, and strong Arguments, may convince a Reader, whom railing Language will but ex­asperate. I shall name some few of that sort, that he may not think I accuse him falsly.

In his Preface he blames the Author of the Grand Question, for treating his Adversaries Page 7. too kindly who deserved sharper Reflections then he hath given them. 'Tis plain by the 25th Page of his Book, that he knew the Octavo Gen­tleman, as he calls him, on whom he there ironi­cally Page 25. bestows the Title of discrect Gentleman, and instances in his Talk against Bishops, when he was young, which he could not leave when he was Page 24. old. This Person he charges with Falshood, unrighteous dealing, imposing upon the People, Self-Condemnation, undue Art, and such Stuff, Pag. 13. with a design to shut the Bishops out of Pag. 13, and Pag. 37, &c. the House; an Extravagant Surmise of his own, without any Colour given by the Author of [Page 101] the Leter, Pag. 37. want of Candor, Integri­ty, &c. Pag. 38. Iniquity, Prevarication, Pe­tulancy, Spight, inveterate Displeasure, Grin­ning, Page 38. whetting his Teeth, and squinting upon them with an evil Eye, with much other such Language throughout his Book, which the Reader may observe, if he pleases. He ought, with more Reason, to have considered the Age, the Quality, the Place, this Octavo Gentle­man beld at Court, the Service he had done his Country both at home and abroad, rather than to have loaden the Ashes of a dead Noble-Man, with Revilings railing Language and Reproaches, who was known to be a Person of so great Worth, and Experience. The Reader will pardon this Warmth in me; when I hear a Person, now at rest, so slighted, who, had he been alive, this little Gown-man durst not have approached without marks of Reverence, and Submission. But let us allow him to make up the shortness of his Reasoning by the length of his Railing.

Thirdly, His Extravagancies are so numerous, that nigh every Leaf hath somewhat or other of that Nature, Conjectures, and Surmises, with­out any manner of Proof, must pass for De­monstrations. One while the Bishops are Spi­ritual Barons, a Title I never remember given to them; nay, not so much as Lords Spiritual till the time of Rich. II. Another time Feudal Barons, and that there was no other than Feudal Nobility: Sometimes they are Barones Majo­res; yet not enobled in Blood, nor their Ho­nour Page 129. conferred upon them by any actual Ceremo­ny, [Page 102] or otherwise esteemed than Barons by Te­nure; and that William the Conqueror inten­ded that as an Honour, which themselves, and all other Historians complain of as a Bur­then. That the Bishops in Parliament are a full third Estate; and yet we know Acts are good when they are either excluded absent, or oppose the passing them; and yet they never re­presented any but themselves. Sometime he is troubled that the Nomination of the Bishops is in the King. These things cursorily observed by me, makes his whole Book appear an indigested Lump, fit to be lick'd over, if so it may be brought into any form. 'Tis not unlike a Lot­tery, where after a hundred Blanks, you may chance get a Prize: But I shall leave a fur­ther Examination of his crude Notions to ano­ther Hand, who may be more concerned to de­tect his Errors than I am: However, I cannot omit the taking notice of his pompous Title; [...]tis indeed a Titulus Sesquipetulcus; Their Right unalterable in that place in the Govern­ment they now enjoy: which Fancy is confirmed by a Consequence of his own making, Page 122, That the Bishops cannot be detruded from that Place they bear in the Constitution of the Go­vernment: for that no Government can legally, or by any lawful Power be changed, but must remain for ever once established, and it cannot be less then Treason of State to attempt a Change. No Authority in the World is competent to make any Alteration.

How false this Position is, he will find, if he consult the frequent Change of Governments [Page 103] since the Creation, in the Jewish, Grecian, Roman, nay, in our Britannick State, with many others in all parts of the World. Neither can I imagine this Maxime can serve him to any other end, than to arraign those Parliaments who have made Laws without them, or that in 17 Car. 1. Anno 1642, which by Act took a­way their Seats in that House. And lastly, to accuse those as Traitours to the State, if any hereafter shall attempt it. I am confident, no Parliament will endeavour to take from them their just Right; but to say they cannot, and that the Government cannot then subsist, is as absurd, as the other is unlikely. I must further observe, that this Author doth upon all Occasi­ons blame those Persons, who deny the Prelates that judicial Power in Capital Cases he would place in them as Enemies to the Government; whereas he ought to know, that Exceptio pro­bat regulam, in non exceptis. He that gives them Authority in all things that are clear, and denies it them in dubious, doth more asserttheir Right, then he that by giving it them in all things, doth rather perplex it. I have now done with this unwary Writer, who whilst he seems so zealous for the Government, doth him­self in the main part of it unhinge, and destroy it. Doth he not, Pag. 144. endeavour to de­stroy the most ancient Court of Chancery, which he calls both a Reproach, and Grievance to the Nation? Doth he not spend some Leaves to shew how this may be effected? by setting up as many Chancellours as there shall be Judges in Courts, which must in the end, be either wholly [Page 104] useless, or run us upon an Arbitrary way of proceeding, and put an end to all our ancient way of Trials by Iuries, and leave all in the Breast of the Iudg to determine. Let him not now think to take off the Envy of this by a fawn­ing commendation of our present Lord Chancel­lour. I am so well acquainted with the great Abilities, and large Endowments of that Noble Person, that I doubt not but his just Decrees in that Court will remain as perpetual Testimonies of his Conscientious Iustice, and Equitable Di­stribution of it in that place in which he is now settled. Nor can I believe he will be pleased with any, tho never so due Commendations, to the Disparagement of his worthy Predecessors, or such as hereafter may succeed him in the most Honourable Station in which he now is worthily placed.

[Page 105] DId the Author of this Treatise be­lieve that the Lord Bishops vo­ting as Judges in Parliament, in Cases of Life and Member, could any way conduce either to their Honour or Greatness, or the Good of the Church and Nation, he would never have entred the List in this Quarrel, being himself wholly conformable; and in his Judgment fully approving the Polity of the Church of England, as the best reformed of any other he knows, having cleared herself from the Superstitious Formalities of the Church of Rome on the one hand, and on the other, not requiring from her Children, under Terms of Communion, any thing, in which she may not lawfully as he thinks be obeyed. But being fully convinced, that their asser­ting this Right in themselves, will bring forth no other Fruit, except Envy to their Persons, and perhaps sometime or other, through the unequal Affections of a head­strong People, Prejudice to their Functi­ons, I have been the more easily indu­ced to make known my Thoughts herein.

I observe there have already been made publick six elaborate Treatises upon this Subject; four asserting a Right in them to vote in Parliament in matters of Blood, and two against it. But because the last and most learned Tractate, which goes un­der [Page 106] the name of the Grand Question, &c. is look'd upon, and indeed is the most ma­terial, I shall apply my self chiefly to the Examination of his Arguments, and I hope discover the Errors, Fallacies, or Inconse­quences of them.

He tells us at first, that 'tis granted on both sides, that the Bishops sit in Parlia­ment Gr. Qu. p. 1. by virtue of their Baronies. This I must take Liberty to question as doubtful, still premising that Truth doth not lye in what Men may say of themselves, or passeth under common Estimation of Men, but what upon serious Examinition of the Question shall be found to be true, I shall endeavour to make it appear, that many who held Lands in Cap per Baroniam, or, per servitium Baroniae, were not enobled in Blood, nor had Right to demand their Writ of Summons as the Noble Barons had, but were to expect the King's Will and Pleasure, and were often left out: These were secundae Dignitatis Barones, or Barons by Tenure only, of which some might probably be adopted into the Nobi­litas Major, afterwards as Barones adscriptij, yet at first were not so; and this was to them an Honour, but to the Bishops a Bur­then, who held their Lands free before, and had no Honour conferred upon them as the rest had. For tho it be true that all the great Noble-Men held per Baroniam; yet was it not their Tenure which gave them that Right, as I shall shew by and by. [Page 107] These second sort of Barons were called Barons Peers, because they held of the King in Capite, as his immediate Free-hold­ers, and were stiled Barones Regis, for the Word imported then no more but Men holding of the King's Person in Capite. These subdivided their Lands to others, under the like Military Service; these were likewise called Barons from their ap­pearing at their Lord's Court, called the Court Baron; and Baronagium became a Word of general Signification, compre­hending those liberè Tenentes, or Sutors to the Court Baron, who together with the King's immediate Tenants, who were the Barones Regis, that is, the Kings immedi­ate Free-holders, made up the Communitas Angliae, and comprehended all Persons ex­cept such as held in Villenage. Besides these, thus made by the King, there were others, some found here, some brought out of Normandy, of great Nobility and Extraction, who had of their own, great Possessions, as Earldoms and Counties in this Country, and others brought over with the Conquerour out of Normandy, of an Inferiour Rank, to whom he gave the like Honour, out of the Lands of those ad­hered to Harold, which all held of him per Baroniam, but by Creation were many of them afterwards made of a higher Rank, and were called Comites Regis, and Majores Barones Regni; they being possessed of the like Honours in their several Countries be­fore. [Page 108] The Bishops, I conceive, were not under any of these Ranks, but were called to Parliaments ratione Episcopalis Dignita­tis, not ratione Tenurae, only, of which they complained as a Burthen. Creation they had none to any higher Honour than Epis­copal; their Tenure could not give them a greater Honour than to be Barones mino­res, or Barons, Peers. Neither can I find in any Act of Parliament or Record, that they were called Lords before the time of Rich. II. and then first called Lords Spiritual, to shew their Honour arose from their Spiri­tual Function, and not from any Tempo­ral Possessions; nor the name of Barons applied to them except by themselves, who perhaps finding the Burthen of their Ser­vice which before was free, were willing that others should give them the Title, tho there was no more reason that their Te­nure by Baron Service should make them Barons, than that Knight Service should make the Tenant a Knight. Having thus cleared my way, I shall in the next place, shew that these Barones Minores, or Barons Peers, were sometimes summoned by Writs to Parliament, and sometimes left out. The Abbot of Feversham (one under the Seld. Tit. hon. p. 730. I edit fol. same Rule with the Bishops) was summo­ned to 12 Consecutive Parliaments as Te­nant in capite per Baroniam, and then left out, 19 Edw. 2. Rot. penes remem. Dom. Re­gis 19 Edw. 2. in Scall. Thomas de Furnival had been sumoned to 30 Parliaments, and yet upon [Page 109] an Amerciment in the Exchequer, pleads he was no Baron: now except he had held in Cap. per Baroniam, or part of a Barony, he could not have been summoned at all as a Member of Parliament. Whether his Plea were allowed doth not appear upon the Record, but by this and some other Re­cords in my hand to the same purpose, it seems to me that many that held per Baro­niam, were not Barons, but at the best Bannerets, or Barons Peers.

I cannot find by my utmost search, that a­ny thing hitherto hath madeit apparent, that Baronies were ever annexed to the Possessi­ons of the Bishops; but Men have general­ly taken it for granted, that they were so. They say that William the first, soon after his Reception to the Crown of England, did introduce new Tenures, and establish­ed Counties and Baronies, and did then order that Bishops, and the Parlia­mentary Clergy should hold per Baroniam, or sicut Baroniam, which the Learned Mr. Selden saith in the language of those Times signified the same thing: For he saith, that tenere de Rege in capite, and habere possessio­nes sicut Baroniam; and to be a Baron ac­cording to the Laws of those Times, are synonimous: Seld. Tit. Hon. part 2. pag. 704, Seld. Tit. Hon. pag. 704. Cook, Hakewell, and others say they hold per Baroniam. But the Proofs, any that I have met with, offer to make good this Division by William, or that Tenure per Baroniam, did infer more when a minor [Page 110] Baron in my Judgment, are not cogent. What they urge is taken out of Wendover, and from him transcribed by Matth. Paris. Mat Par. p 7. ult. ed. He first greatly blaming the Act of Willi­am, hath these Words; Episcopatus, & Ab­batias, omnes quae Baronias tenebant, & cate­nus ab omni servitute saeculari libertatem habu­erant sub servitute statuit militars irrotulans singulos Episcopatus, & Abbatias pro volun­tate suâ quot Milites sibi, & successoribus suis Hostilitatis tempore voluit a singulis exhiberi. That is;

He established under Military Service all Bishopricks, and Abbeys which held Ba­ronies, and at that time had freedom from all Secular Service, inrolling them all, and appointing according to his Pleasure what Souldiers in time of War they should seve­rally find unto him, and his Successors.

Mr. Selden finding the contradiction in these Words, that their Baronies which should have kept them, as he thought, free from Secular Service, as the words import, were the only thing that bound them to it, thinks there ought to be a Parenthesis af­ter Baronias (in purâ & perpetuâ eleemosina) & eatenus ab omni servitio saeculari, &c. and makes the words run thus: All Bishops and Abbeys that held Baronies in Frankalmoign, and in that respect freed from all Secular Service, &c. And backs this Conjecture by the Authority of Mr. Cambden, who he conceives might have seen some Copy where those words were. But he need not [Page 111] have put himself to the trouble of that Conjecture, had he translated (eatenus) at Ad id tempo­ris. that time, as the word signifies, and never that I know in that respect. However, find­ing further, that this would not take away all doubt, because the words refer not to all Bishopricks and Abbeys, but to such only as then possessed Baronies, for ought ap­pears of elder time, which he denies any did before the time of William the first, (of which perhaps more anon) doth believe Mr. Hunt thinks that the Tenure made them Barons, and that Te­nure and Bar­ronies were coincident. Seld Tit. Hon. p. 699. and 700. that this Tenure was enacted by some Par­liament in William's time preceding to this, whose Journals, or Records are now lost; yet adds for a further Proof, the Authori­ty of an ancient Manuscript in his hand (belonging it seems to the Abbey of Ram­sey) of Matth. Paris, where over the Year 1070, are inserted these Words: In this Year the Servitium Baroniae, was imposed upon Ramsey. This perhaps might equally concern other Abbies; yet seems but a weak Proof of the matter in question as to the Bishops, did not somewhat in Ingul­phus, and the subsequent Practice, give some Light to the Business. But neither Laws nor Practice ought to be forced or stretched to a greater Latitude than the natural Construction of the Words will bear.

It cannot reasonably be denied, but that in the Times of our Ancestors, when Lear­ning in Lay-men was very rare; that the Clergy bare a great sway in the Councils of Princes and Great Men, who busied them­selves [Page 112] in little more then Feats of Arms, and Hospitality. But the Clergy, a wary and vigilant sort of People, guided by the subtile Heads of Rome, under whose Ban­ner they always fought; what under pre­tences of Piety, Satisfaction for Sins com­mited, Redemption of Souls out of Purgatory, and what not, captivated the Consciences, and drained the Purses of most of the ignorant Multitude. Nay, so holy was their Function, and so sacred their Persons, that no Secular Tribunal was by them thought sanctified enough to question their Actions, but they still pres­sed to be remitted to their own, or by their Appeals to Rome, frustrated the De­signs of the Civil Magistrate. William the first being desirous to put a stop to this ex­orbitant Pride, and growing Power of these Men, and yet not disgrace their Cal­ling, did (as before is mentioned out of Mat. Paris) ordain that the Clergy should not be wholly exempted from all Secular Service, and probably might before that, have altered their Tenure, which most­what before was in Frankalmoign, unto the Tenure in capite sicut Baroniam, or in the nature of a Barony, by which they were made subject to such Services as Tenants in cap. per Baroniam were tyed unto, and were called to Parliaments, and sate a­mong the other Noble-Men, and the Ba­rons Peers, being first summoned thereun­to by the King's Writ. Most Men have [Page 113] considered the Nobilitas Major, or those who constituted the House of Peers under a threefold Relation. First, as made Earls, or Barons by Creation, and an actual Ce­remony of This I take to be the only true of eno­bling any body as to the No­bilitas Major. investure of Robes, and a succeeding Charter, and Writ to attend in Parliament when summoned. The Char­ter comprehended some Limitation how the Honour should go; or else some Pensi­on to the Barons to support their Dignity and Title, of which you may see more Ex­amples Seld. Tit. Hon. par. 2. cap. 5. cir. finem. in Mr. Selden's Tit. of Hon. Part 2. Cap. 5.

Such I conceive was that Charter made by King Stephen to Mandevile Earl of Essex, and renewed again by Maud the Empress: the like was that of Miles Earl of Hertford, granted by Maud, and renewed by Hen. II. which Charter only served to convey the Vid. Els [...] p. 33. third penny of the County. Now these Charters being usual as to Earls, which was the highest Degree at that time, and an actual Ceremony being also used in the making See Mr. Seld. Jans Angl. facies altera ult. e­dit. p. 51. of Knights, which was the low­est degree of Honour; I see no reason but to believe that the same Ceremony of Invetisture was used to Barons which was the middle Degree.

Some Light is given to this by conside­ring the Charter granted to the Lord Iohn Beauchamp of Holt. where the words are; [Page 114] Ipsum Iohannem in unum Parium, & Baro­num Regni nostri Angliae praefecimus volentes quod idem Johannes, & haeredes masculi de Corpore suo exeuntes statum Baronis obtineant, ac Domini de Beauchamp, & Barones de Kid­dermister nuncupenter. In cujus rei Testimo­nium, &c. Here being in this Charter no words of Creation, but all in the Praeter­perfect Tense (we have promoted) must refer to some Act done before; and this Charter served only to limit how the Estate should go: Mr. Seld. Tit. Hon. Part 2. Cap. 5. p. 747. I edit. in fol. I know reckons this Seld. Tit. Hon. pag. 747. as the first Creation of a Baron by Patent, but doth not observe the words, nor his own Subsequent. Patents made to others where the words are in the Present Tense, and constituent of the Honour granted, (viz.) Praficimus, constituimus, creamus, we do cre­ate, promote, and appoint. Neither can I imagine what Right those Ancient Ba­rons, of which we have yet some left who were so before Rich. II. have to come this day in Robes, had not their Ancestors been invested with them in their Creation, and different from those of Earls. Now this as it was the most ancient, so was it the most honourable way of conferring Honours; so was it also the most noble, by which their Blood was not only enobled, but also all other Rights and Priviledges competible to that Degree were given unto them; and certainly we must make some difference be­tween [Page 115] one made a Peer of the Kingdom by Charter, and one so called in ordinary Speech, of which Name, no Man in the Kingdom, but is in some sense, capable; we being all Peers to those of our own Degree. Now of these Peers thus enobled by the In­vetisture of Robes; some were called to Parliament by Writ after the Ceremony of Invetisture had been performed, and had never any Patent to limit the descent of the Honour. Such had their Honour in fee­simple, and it went to the Heirs general, of which we have many Examples, where the Sole Daughter and Heir of such a Baron, hath not only conveyed the Honour to her Descendents, but enjoyed the Title herself during Life. Amongst many, I will only instance in one; Charles Longuevile, Son and Heir to Susanna, Heir general to the Baro­ny de Grey of Ruthin, left only one Daugh­ter named Susanna, Charles her Father, was received in Parliament in his Robes in the latter end of King Charles the first, his Reign; he dying, left the foresaid only Daughter, who after his Death, married Sir Henry Yelverton of Easton. Manduit in Northamptonshire Baronet; Sir Henry died, leaving Sir Charles Yelverton Baronet, his Son and Heir then a Minor, Susanna enjoy­ed the Honour during her Life; and at her Death, left Charles, still under Age, who immediately possessed the Honour; and at his full Age, was called by Writ, [Page 116] sate in his Robes in Parliament till he died, which happened soon after his Age of twenty one, without any issue, leaving the Honour to Henry his Brother, and Heir, yet alive, and under Age. See Sir William Dugdale's History of the Baronage, Title Lord Grey, first Part, pag. 718, 719. Dugd. Baron.

The second way by which some have conceived Barons were made, hath been by Writ only, without any other Formali­ty, or Ceremony whatsoever; and of this Opinion have been some Heraulds, and have contended, that by the Writ of Sum­mons, the Person was enobled, and if his Descendents were so called for three De­scents, the Blood was enobled, I conceive this Opinion to be erroneous: For it is against a Maxime in Law, that the King should pass any thing by Implication, and as unreasona­ble to believe he might not have Liberty to require the Counsel of his Subjects with­out conferring an Honour upon them, he did not intend. Besides it will hence fol­low, That during divers Parliaments of Edw. 1. almost all in Edw. 2. and many in Edw. 3. all the Judges, King's Serjeants, and many other were enobled, for they had the same Writ the Barons had, yet were never accounted such; nay, were of­ten after such Summons omitted. The known Case of Mounthermer is very perti­nent to our purpose, who having married [Page 117] the Relict of the Earl of Gloster, who had a great part of the Earldom in Jointure, her Husband was summoned as an Earl during the Minority of her Son; but after he came of Age Mounthermer was summo­ned as a Query, Whether this Summons gave him other Ti­tle than a Mi­nor Baron. Baron during his own Life, and after wholly omitted in his Descen­dents. If it be said that his Summons eno­bled him, but in regard his Descendents were not called, the Blood was not enobled; what will they then say to the Case of Radulphus de Camois, who was summoned, and his Son after him in 7 Edw. 2. yet in 7 Edw. 2. 7 Rich. 2. 7 Rich. 2. Claus. Memb. 32. in dors. Thomas Camois the Grand-child, was chosen one of the Knights for Surrey, and discharged by the King's Writ, because he and his An­cestors were Baronets: and the said Thomas was summoned, and served in that Parlia­ment, 7 Rich. 2. not as a Baron, but as a Barons Peer, or Baronet, which was an inferiour sort of Honour, and signisied the same Vid. Cot. Post. [...]ls. edit. pag. 344. thing that Tenants in Cap. did in the time of King John. But that these sorts of Peers were sometimes summoned, and sometimes omitted at the King's Pleasure. The only difference being that which ap­peared when they came thither, the one appearing, (viz.) The inheritable Barons in their Robes, the others not, but in Ha­bits different from the Barons. Now that there was this difference, is made plain by those Authorities shall be produced under [Page 118] the next Head, which is, that there were a sort of Persons called Barons, who were so by Tenure only, that is to say, who held of the King in Cap. and had such a number of Knights-fees, and upon that account were summoned as Barons, or ra­ther as Barons Peers; Mr. Selden seems to Seld. Tit. Hon. pag. 690. say in his Tit. Hon. Part 2. Sect. 17. pag. 690. That all Honorary Barons of that time whereof he speaks, were for ought appears, Barons only by Tenure: The words are cautelous, and his Expressions, as became a Learned Man, warily set down. First, Honorary Barons, (viz.) Such as had the Honorary Name of Barons, but not the Blood; for such I take his meaning to be, because he gives us no Definition of Ho­norary Barons, nor why, if it be admit­ted, that Barons had their beginning from the number of Knight's fees, which they held, why Earls had not the like begin­ning, who held of the King in Cap. as well as the others. Now that there was a clear distinction between Barons enobled in Blood, and those that held only in Cap. the one we find called Barones Majores, the greater Barons; the other Barones Mino­res, lesser Barons. The red Book in the Exchequer, or Remembrancers Office, at­tributed to Gervasius, Tilburiensis, speaks of it as an undoubted Truth, Quidam, &c. Some hold of the King in Cap. things belong­ing to the Crown, to wit greater or lesser [Page 119] Barons. Quidam enim de Rege tenent in Part 2. c. 13. Capite quae ad Coronam pertinent, Barones, scil. majores, seu minores; by which it appears they both held of the King in Cap. yet were distinguished into greater or lesser. Fitstephens in the Life of Thomas of Becket, Fitstep. c. 11. Chap. 11. mentions, Secundae Dignitatis Ba­rones, Barons of a second Degree, Matth. Paris, Anno 1215, hath these words: Matth. Paris, Anno 1215. Summoneri faciemus, Archiepiscopos, Episco­pos, Abbates, Comites, & majores Barones Regni sigillatim per Literas nostras. Et prae­terea faciemus submoneri in generali per Vice­comites, & Ballivos nostros omnes alios qui in Cap. tenent de nobis, ad certum diem. Here we see two different sorts of Barons, the one summoned by the King's Writ, the other by the Sheriff. The first sort by Writs sealed by the Chancellor, the rest by Writs to the Sheriff; yet both held in Capite: But certainly, omnes qui de Rege te­nent in Capite, must be understood with a reasonable Restriction. For it will be ve­ry evident to any Man who shall examine the Inquisitions post Mortem, remaining in the Tower, that much Land held per Ba­roniam, was in the Hands of private Men, who were never reputed Barons; neither could these Inquisitions be understood of Tenures from Mesne Lords, and not from the King, because all Tenures per Baroni­am, were Tenures in Capite, which must be from the King. Besides, if the Tenure [Page 120] of Land made a Baron, Why were not the Purchasers of those Lands by the King's Licence of Alienation, ever after the Stat. of quia emptores Terrarum, called to Parlia­ment as Barons? The Case of the Earl of Arundel, 11 Hen. 6. will not mend the matter, for his Ancestor was created by Writ, and the Castle entailed upon him; so that he was called to Parliament not by having the Land only, but by virtue of the Creation of his Ancestor, and the Entail upon it. In so much, that I still con­ceive that the ancient Nobility (from whatsoever beginning it arose) was made inheritable by Creation, and Investiture of Robes; upon which sometimes followed Cnarters which directed how it should de­scend; and the Confusion in Historians hath proceeded from their not distinguish­ing Barons from Barons Peers, so called, not from their Parity in Honour, but in Estate and Tenure, but wanting Investi­ture, were called, or left out, at the Pleasure of the King. This Distinction is clearly mentioned in the old Modus tenendi Parlia­mentorum, printed by Mr. Hakewell. Sum­moneri Hakewell pag. 4. debent omnes, & singuli Comites, & Barones, & eorum Pares. All Earls, and Barons ought to be summoned, as also their Peers. I know the Authority of this Treatise hath been questioned by some Learned Men, but by none with more vi­olence and less reason than by Mr. Prin in [Page 121] his fourth part of his Register of Writs, P [...]in. 591, &c. p. 591. To which, easie Answers may be given, if we consider the Translators out Seld. Tit. Hon. part 2. p. 743 of the Saxon Tongue, might easily trans­late Words which they thought of an equi­valent Signification, by words in use at that time; as Wittena Gemot. for Parliament, and the like. Others of as great Judgment, have as strenuously defended the Autho­rity of it. Sir Edward Cook in his Juris­diction Cook's Iuris. of Courts. of the Court of Parliament, strong­ly defends its Antiquity, and Mr. Hakewell pag. 135. testifies to have seen an Exem­plification Hakew. Mod. p. 135. of it under the Great Seal of Ireland, in the time of Henry the fourth; testifying the same to have been sent into Ireland by Henry the second, for a Form of holding Parliaments in that Kingdom: So that we must either admit the Great Seal of Ireland to be forged, or confess the Modus as ancient as Henry the second's Dan. Cron. Anno 1133. time. Many admit that it was sent into Ireland as a Modus for that Country, but was not so for England, which seems to me unreasonable, it not being likely we should give them a Patern different from our own, who now observe most of the Rules there given. Daniel, Anno 1133, in the Life of Henry the first, will tell you that in his time, the word Parliament began to be in use, after the Convocation of his Parliament at Salisbury, in the 15th Year of his Reign. Nay, much ancienter, even [Page 122] as old as Canutus, (if we believe the old Book of Sir Edmundsbury) who in the fifth Year of his Reign, summoned all his Pre­lates, Nobles and Great Men to his Parliament, as you may see more Rights of the Crown, p. 100. Cook's Pre­face to his 9th Report sets it out at large. fully, Rights of the Crown, p. 100. By all which of much more that might be added, we may see how dangerous it is to judg of Books by the promiscuous use of words: I have made this short Digression, to the end that what I shall say hereafter, may be made clearer.

I shall now apply my self to the Case of the Clergy, and consider their Right to sit in Parliament. This Right of theirs must grow since the Conquest, from the Te­nure of their Land in Capite, sicut Baroni­am, and consequently, they cannot be reckoned but amongst the Barons by Te­nure, and are not properly Barons, but Peers, no way enobled in Blood, nor of longer continuance than the Foundation upon which the Tenure is built, continues. Thus we see in the Dissolution of Monaste­ries, the Tenure was extinguished. The same in Bishopricks, as that of Westminster, and others, where the Corporation being dissolved, the Tenure, as to them, was ex­tinguished. I know very well they would not now be thought to sit Ratione Episcop. Dignitatis, as Bishops, but as Barons. In [Page 123] that famous Wrangle at Northampton, touching Becket, who should pronounce Sentence against him, The Bishops tell the Lords, Non sedemus hic Episcopi, sed Barones; nos Barones, & vos Barones, pares hic sumus. Fitst. Fitst. cap. 10, col. 2. Seld. Tit. Hon. cap. 5. pag. 706. cap. 10. col. 2. Seld. Tit. Hon. part 2. cap. 5. pag. 706. We sit not here Bishops, but Barons. N. B. their cal­ling themselves Ba­rons, did not make them such who were at first summoned Ratione Episcopalis Dignitatis. We Barons, and you Barons are here Peers, or Equals. Not meaning by these words, that they were otherwise Peers than such as their Tenure made them, which was only to hold in Cap. sicut Baroniam, or in the nature of a Barony; for although that tenere per Baroniam, & sicut Baroniam, perhaps are all one, neither of them imply a Barony, but only the Services of a Ba­rony, which the Bishops, by their Tenure, were bound to perform, as also the Abbots. And I am the more confirmed in this Opi­nion, because I do not find that any Exa­mination was made what their Possessions were, nor of how many Knights Fees they consisted; but were they more or less, the Tenure was the same; whereas 'tis pro­bable the Possessions of some were above twenty Knights Fees, the rate of an Earl, others less than thirteen, yet still the Te­nure and Peerage was the same.

[Page 124] Neither is any Record, or Patent pro­duced, nor I think can be, where any Ba­rony was annexed to their Possessions. 'Tis evident that out of one Bishoprick, others have been taken, as Peterborough out of Lincoln, Oxford out of Gloster; yet these Bishops came to Parliament, and still un­der the same Tenure and Service. In Edward the sixth's time, Cranmer had his Episcopal Dignity during Pleasure, Was he then a Baron at will?

We may safely conclude from the Com­plaint of all Historians of those Times, that Tenure in Capite, and their Services, which arose by it, was put upon them Vid. Rot. Fin. 9. H. 3. me. 3. 12. E. 2. Funivals c. 18. E. 2. Nevils c. as a Burthen, not as an Honour, but imposed upon them to make them know they were Subjects, which they could hardly be brought to believe, having such Dependance upon Rome. Yet was it not thought fit wholly to exclude them from all Councils, and therefore this expedient was found out, that they should hold their Lands by doing such Services as Barons did, and sit amongst them in Parliament in the nature of Barons, which they im­proved afterwards to the Appellation of themselves by the name of Barons, but ne­ver could to equal Priviledges with those Persons who were truly such. Petrus Ble­sensis, in his Tractate de Institutione Episco­pali, [Page 125] hath these words, which I have occa­sion to cite more at large towards the end of this Treatise, pag. 129.

Quidam Episcopi, Regum muni­ficentias, & eleemosynas antiquorum, Pet. Blesens. yy. 2. edit. in Quarto, or some Lines before, see after p. 58, and p. 129. b] wrongfully or con­trary to the true use. abusivè Baronias, & Regalia vo­cant, & in occasione turpissimae Ser­vitutis se ipsos Barones vocant.

Some Bishops abusively call the Bounties of Princes, and the Alms of their Ancestors, Baro­nies, and Royalties; and taking occasion from that base Slavery (he means certain­ly the Slavery in performing those Services put upon them by their Tenure) call them­selves Barons. This he much, and largely inveighs against, from all which, it may reasonably be collected that they gave themselves that Title, rather than that it was given them by the King; who yet sate in Parliament together with the other Barons, not as a distinct Estate from them, but involved with them as part of a third Estate, which was intirely represented in Convocation. For it seems to me very clearly, that they never were a distinct Estate in Parliament; if Kelway, fol. 184. saith, That the Convocation is not a part of the higher House, neither the Bi­shops any part of it, but sit there as they have Temporal Baronies. But he doth not say the Convocation is not one Estate, or part of the Parliament, which however, is but the Opinion of a Serjeant at Law. by Parliament you understand that part of it which consisted of Counts and Barons; yet were [Page 126] they the chief and principal part of a third Estate in Parliament in respect of the Con­vocation, which began, continued, and en­ded with it; and where their Debates, Gifts to the King, and other Transactions bind only their own Body. Neither is it reasonable to believe them a third Estate here, otherwise than they are so accounted in other parts of the World, to wit, a part of that Body the Clergy, who being a Select Portion, or Lot of the Lords, and Embassadours of Christ, look'd upon them­selves as not accountable to any Secular Tribunal. Neither is it material whether they sate mixt with the Laity, as perhaps they have sometimes done, for this can­not alter their being a third Estate, as Clergy-men, let their Votes be gathered together, or apart. Indeed I cannot see how it is possible they should be a third Estate in that House where they sit among the Lords; for besides their Unwil­lingness to own that they sit as Bishops, but as Barons; I would fain have any Man tell me, how it comes to be so. Dr. Hey­lin will tell you that Clerus was never taken Dr. Heylin's Stumbling­block. for the Bishops, distinct from the other Clergy: By what Title do they then claim it? by any Grant from the King that should be produced by Usage or Allow­ance? that's denied. Nay, the Impossibi­lity is manifest: For I conceive by Law, the King cannot make an Estate, for if he [Page 127] could, he might make a fourth, a fifth, or a sixth Estate, and require consent from them all to the making any Law which would alter the Frame of the Government. Mr. Prin hath very well proved them to be only a third Estate in Convocation, from the manner of penning their Grants there, (to wit) By the name of Prelates, and Clergy of the Province of Canterbury and York—orderly assembled in a Pro­vincial Synod, or Convocation—may be ratified, and confirmed in your High­ness's Courn of Parliament—with the Assent of the Lords Spiritual and Temporal, not Prelates, and Clergy, as in their Grant: Prin. fourth part of his Kalender, p. 594, 595. to these I might Prin. fourth p. Kal. p. 594, 595. add many more Authorities Caudrey's Case Cook part 5. p. 8. Clerus & tota Gens Laicalis; but these eare enough, and I take it a full Answer to his several Records urged to that purpose, and for Explanation of the Author of the Letter, who when he saith they are a third Estate of the Kingdom, not of the Parliament; that is to say, not in that House of Parliament where they sit mixt with the Temporal Lords. But should I admit them a third Estate in the Lords House, as this Author, and others contend they are, and so a distinct Estate from the Lay-Lords, What colour can they then have to judg a Peer upon an Impeachment for Life, when them­selves, [Page 128] tho they sit among them, are a distinct Estate from them, and so no way their Peers, which I take to be a very strong Argument ad Hominem. I have thus past his first Assertion; and given An­swer to his Conceit of their being a third Estate in the Lords House; if by it he mean an intire third Estate, and not a part of it, as I said before. For when they act in Convocation, they act with the rest of the Clergy, as an intire third Estate, can they, that is, the Bishops in the Lords House, be more than part of a third Estate; where they vote not as Bishops, but as Ba­rons, as themselves would have it? Certainly, we must not shut out the Convocation to re­present the Clergy: if then the Bishops in Convocation represent but a part of the Clergy, how they should be an intire Re­presentative of them in another place, whilst both are in being, is to me a Rid­dle.

[Page 129] Let us now come to his argumentative part. After he hath climbed a Ladder of five Steps, he comes at last to this Conclu­sion: That to sit in Iudgment with the Lords is not against Magna Charta. What if this Gr. q. p. [...]. shall be granted him? Doth it thence fol­low, that they are such Peers as are enabled to try those in Capital Cases who are eno­bled in Blood, and have inheritable Baro­nies in themselves by Creation? Magna Charta is a general Charter, which directs the Proceedings in the Tryal of all men by their Peers. Who are Peers to one another, is not there the Question; neither doth the Author of the discourse of Peer­age make any other use of it.

The ancient Canons forbid them to med­dle at all in secular Affairs: if therefore the Indulgence of Kings have admitted their Presence in Parliaments in some Ca­ses, doth it thence follow, that they have Right to be there in all Cases, or to try Peers for their Lives, to whom they are no way equal? The Author proceeds, and, Gr. q. p. 3. in the next place, insists upon the Forms of their Writs, which are of the same kind with those of the other Barons, which be­ing not limited nor restrained, neither ought their Power so to be.

The Weakness of this Argument is ve­ry apparent; for, by this he may infer, that the Judges and some others had the same Right: for, Mr. Elsing in his Modus, pag. 11. hath observed, that the Writs Els. p. [...]. [Page 130] were alike to the Lords, to the Judges, and some others, in diverse years of Ed. 1. in most of Ed. 2. and many of Ed. 3. But the Words of these Writs, though general, were to be interpreted by the Practise of the Court, and not contrarily. Again, there is a great deal of difference between giving Counsel in difficult matters, ac­cording to their Writ, and trying Men for their Lives; an Employment no way proper for Messengers of Peace, and Preachers of glad Tidings. Lastly, the Earls and Barons are Consiliarii nati, Coun­sellors by their Birth, and so have a natu­ral Right to give Counsel in all Affairs being once assembled in Parliament; and for that Reason, upon the Death of the King, the Nobilitas Major have all equal Right to meet in Council, in order to a Successor, so have not the Bishops; nay, though Privy Counsellors, their Commis­sion ceasing, they have then no Right to come into Council with the other Lords.

In the next place he saith, Men as cer­tainly dye by Bills of Attainder, where Gr. q. p. 4. the Bishops have an undoubted Right to vote in their Legislative Capacity, and therefore to vote in Cases of Blood is not incompatible with their Function.

To this I answer, the Cases are very different, as well to the matter of the Law as the Reason of it. For first, Custom or whoever gave them Right to sit in the Lords House, in the Nature, or amongst [Page 131] the temporal Barons, though Ecclesiastical Persons, did not restrain them as to their Concurrence in the making new Laws, yet very well might as to their judging in some Laws already made: so that the one is agreeable to the Laws of the Kingdom, and the Laws of Parliament, and the other not so: And if any thing in that Particu­lar had been contrary to the Holiness of their Calling or their Rules of Living, it had been fit for them to have informed the King and Lords, and not for them to take notice of it otherwise. Nay, in that very Case, when that Bill shall come to be pas­sed into a Law, by the King, the Lords Spiritual ought to absent themselves, as it was held by Mr. Bagshaw, a Reader of the Middle-Temple, in the time of Arch-bishop Laud, by whose Power, he was then pro­hibited from farther Proceedings in his said Lectures. Rush. Hist. Collect. part 2. pag. 990. Hist. Coll. part. 2. pag. 990. Secondly, the passing a new Law, be it what it will, doth not immediately, but by Consequence may concern Blood. Now the Bishops, who are always supposed to incline to Mercy rather than Severity, may perpetually, with a good Conscience, hinder the passing such a Bill as shall pu­nish a Delinquent with Death who had not capitally offended before. But, when once a Man is capitally impeached for transgressing a known Law, and Issue joyned thereupon, 'tis not now in their Power, with a good Conscience, to ac­quit [Page 132] the Guilty, because they must there opine according to the Proofs before them, which is a very strong Argument why they might be permitted to be present in the one Case, and not in the other. Last­ly, if this way of arguing were good, it would follow, that the Commons ought to have equal Power with the Lords in all other Cases, because they have with them an equal Power in passing Bills.

The néxt Section consists in blaming Gr. q. p. 6. the Insinuation of his Adversary, who saith, their medling with secular Affairs was against the Apostles Practise, though in a matter concerning the Church; men­tions the Rescript of Honorius and Theo­dosius, and so passeth that point. In which, it appears he insinuates no more than William the First ordained, who Vid. Dan. p. 35. 46. Baker p. 26. & 30. appointed that they should meddle with nothing but what concerned the rule of Souls, and govern themselves according to the Rules of the Church, so that you see the Canons of the Church were consi­dered in their Admission to sit.

What he saith in Opposition to this, is, that it is a part of God's Service to do Ju­stice and Mercy, and to attend the pub­lick Affairs of the Kingdom, when they Gr. q. p. 6. shall be thereunto called: that the Bishops now are not under the same Circumstan­ces the Apostles were when the Christian Church was to be planted, and now when [Page 133] it is constituted: that the Apostles travel­led from Place to Place, which the Bishops are not now bound to do: that the Cler­gy N. B. Here he makes the whole Clergy to be one of the three Estates. are one, yea, the chiefest of the three Estates, and therefore reasonable they should be concerned in the Affairs which concern the whole Nation; and after that, produces Examples out of the Practise of other Nations: (which at best signifies no­thing to ours) neither is what he saith any way argumentative to his Advantage, ex­cept he had first proved that he that first appointed them to preach the Gospel, and attend the Affairs of the Church, did not think that Employment enough to spend their whole time in. And although the Apostles, who were Messengers, did go about their Errands to several Places whi­ther they were sent, it doth not appear that St. James, who was a Bishop, and not an Apostle, except we shall call him the Thirteenth, ever parted from Jerusalem, but attended the business of the Church there. But, since this Author hath thought fit to put us upon this Question, let us ex­amine it a little higher.

'Twill be undoubtedly agreed on all hands, that our Saviour did not delegate to others a greater Power than God had given him the Exercise of to himself. But it is clear in the Case of the Young Man, Luke 12. 14. who would have had him command his Brother to divide the Inhe­ritance with him; Man, who made me a [Page 134] Judge, and a Divider? That is, none hath made me so, because his Kingdom was not of this World; that is, consisted not in secular things. The next place I shall remember, is 2 Ep. Tim. chap. 2. vers. 4. No man that warreth intangleth himself with the Affairs of this Life, that he may please him that hath chosen him to be a Souldier. Hugo Grotius upon this place will tell you, that this is a Similitude taken from the Roman Law, which would not suffer any Souldier to be employed in any Affairs, but Military, quotes the Law and the Practise; tells you out of Florus, that Post­humius, a man of consular Dignity, was punished for appointing his Souldiers to as­sist him in his Field. 'Tis true, the Words are general, but being applyed to Timothy, who was then employed in a Spiritual course of Life, they cannot think to please him who set them on Work, if they be engaged in secular Matters, which have not some immediate Reference to the Church: And, I believe no temporal Prince would take it well that his Ambas­sador should engage himself in the Affairs of any other Prince, without his particular Commission. This Sense is generally em­braced, though in our Question we ex­clude not all secular Matters, but Blood only.

The third place I will mention, is the seventh and eightieth Apostolick Canons, [...], Presbyter aut Diaconus nequaquam [Page 135] seculares curas adsumat, sin aliter dejiciatur. Let no Bishop, Presbyter, or Deacon, at any hand take upon him the Care of Se­cular things; and he that doth, let him be deposed.

I suppose here are some Testimonies more than a thousand years ancienter than any Council of Toledo, against their med­ling in Blood: for, Qui includit omne ex­cludit nihil. If all secular Employments be forbidden, then the medling in Blood is not excluded. It cannot seem to me rea­sonable, that we should use those Argu­ments as Bishop Davenant and others do against the Usurpation of the Pope, in things of this Nature, which may with as much force be retorted upon our selves. I am not ignorant what is usually replyed by men of a contrary Judgment, and hath been learnedly and candidly put together by the Author of the Honour of the Lords Spiritual asserted, who hath written with more Clearness and equal Reason, I think, to those of that side who have come after him.

Far be it from me to envy the Honour of the Clergy in their several Degrees and Orders, or to think the Ambassadors of God should live basely or sordidly and not be used with all due Respect among men. Neither is it any way reasonable, that they who in an afflicted Church li­ved upon the general Contribution of the Saints, should be put to such Streights in a [Page 136] flourishing one: but all this is to be un­derstood with that necessary Limitation, that no Employment should take them off from their main Business, the Care of the Churches committed to their Charge.

If they can satisfie themselves that their Spiritual Work is not enough to take up their whole time, let them in God's name be engaged in secular Offices: but I think if the greatest part of their Power were not transferred to their Chancellors and Lay­officers, there would be time little enough left them for secular things. I remember to have read in a Book called Il Nipotismo, Il Nipotis­mo de Ro­ma. p. 37. (the design whereof is to shew the Cor­ruption of the Church of Rome in the mat­ter of their Nephews) that about 226 years after Christ, when the Clergy began to appropriate Lands to the use of the Church, they began to grow proud, covetous, and negligent in their over-sight of the Church­es: to the same Purpose you may peruse a Book of Father Paoles de materie ecclesi­ [...]. Pad. paolo de materie ecclesiasti­che. And truly, this is the general com­plaint of Petrus Blesensis (an Author our learned Adversary makes some use of) in many of his Epistles and Sermons, inso­much, that I wish there were not Truth in that Report, that upon the too great Splen­dour of the Churches, Poison was sowed among them.

Certainly this Kingdom hath given them a great share in the Government, which hath not only allowed them the [Page 137] first Rank in the Estates of the Nation, but hath by Law made them appear to be so in the Convocation, where they have both an upper and lower House; where they give Subsidies, make Laws for the Church, and where a part of them sit among the Lords, not only to press the Allowance of those Laws by the Civil Power, but also to have their share in ma­king new ones.

This, one would think were enough to content them without desiring to have a Judicial Power in Cases of Blood, which I doubt not to prove is by Law forbidden them.

But, I fear the charging this Desire up­on Our Bi­shops Rights. pag. 61. them is rather an Artifice of their Ene­mies, who by assixing this Calumny up­on them, which indeed is not their De­sign, labour to lessen them in the Estima­tion of the World, and by that means bring into Contempt both their Persons and Callings.

Many Examples I confess are given, where Christian Emperours and Princes have made use of the Service of Bishops as Counsellors, Chancellors, and Chief Justices, and the like; but upon Examina­tion it will appear, that as to our own Kingdom, the Offices of these Persons were much mistaken. The Office of Ca­pitalis Justiciarius Angliae, was not to sit and judge Causes among Associates, as at this day, but was the Chief Officer of the [Page 138] Nation, had the Appellation of Prorex; and had Power, in the Absence of the King, to displace any Officer of the Cinque-Ports, and to do any thing as Vice-Roy and Protector of the Kingdom; of which, see at large Sir Henry Spelman's Glossary, in the Word Capitalis Justiciarius. Upon Spel. Glos. verb. Cap. Justic. Co. 2. Inst. p. 26. Examination it will be manifest, that when they sate in any such places, their Service rather was to direct the Consci­ence, to make amicable ends of Contro­versies, to preach Peace to others, and pursue it themselves, till the Subtilty of Rome turned Religion into Policy, and destroyed the Power of it. How far the Edicts of Princes were binding, is not my Task to enquire, but only how far that of their not medling in Blood was a part of the Law and Custom of this Kingdom, and observed here. But, what I have said in this Chapter, especially as to the Baro­nies of Bishops, I have delivered by way of Proposal, not Determination, and up­on a clear Answer of my Reasons, shall be ready to retract any thing I have writ­ten.

CHAP. II.

I Come now to the Examination of his second Chapter, in which, the Recog­nitions made at the Parliament held at Clarendon, come under Examination, to­gether with the Protestation made 11 R. 2. I call it a Parliament, because I find it ge­nerally so esteemed by our best Lawyers, and I think denyed to be so by very few. Mr. Selden calls it that great Parliament Seld. tit. hon. part 2. p. 703. at Clarendon, Tit. Hon. part. 2. ch. 5. p. 703. the first Edit. in fol. Coo. 2. Instit. ch. 2. p. 6. and in many other places. Hoveden saith, there met Clerus & Populus Angliae. Where note, he makes Clerus comprehend Bi­shops, Abbots, and all Ecclesiastical Per­sons, and Populus both Lords and Com­mons, contrary to what Dr. Brady hath asserted, but very weakly proved.

But before I enter into a more narrow Examination of this Statute, I think it not amiss to give a short Account of the Hi­story of those times, from William the First, to the tenth year of Hen. the Second, when this Meeting was, with Relation on­ly What Dr. Bradies Fancy is in that Parti­cular, let him make good, if he can. to the King and the Church. It will not be denyed, that William the First dis­claimed all Title to the Crown of England by Conquest, and swore to observe the Laws of Edw. the Confessor, which were our Laws before: yet notwithstanding, it [Page 140] is generally agreed, that he erected Te­nures in Capite, and Baronies, and that amongst others he obliged the Bishops who before held their Lands in Frankalmoign, to do Service to his Courts, and to hold their Lands in Cap. sicut Baroniam, and not to make their so frequent Appeals to Rome, and Journeys thither, without his License, being a thing contrary to the known Laws of his Kingdom; which is made evident by Sir Edward Cook in Caw­dryes Coo. Caw­dreys Case. Twysden's Vind. of Schism. Case, and Sir Roger Twysden in his Vindication of the Church of England, in point of Schism. These were the Servitu­tes ecclesiasticae, and the Pessimae consuetudi­nes, so much complained of by Mat. Paris and other Monks of that Age. But how­ever, so it stood during the Times of Will. the First, Will. the Second, and Hen. the First; after whose Death, Stephen, without any Right, (and contrary to their Oaths made to Maud, Daughter to Henry the First then alive) by the Aid of the Bishops gets into the Throne, and by their Pow­er, was kept there till a Composition was made with Maud. In Recompence of this their breach of Oath, Stephen frees them and the rest of the Clergy, from answering in any other Courts but Ecclesiastical: by which, In a Parliament held at Ox­ford, Anno 1136. he grants by his Charter, under his Hand, That all Persons and Causes Ecclesiastical, should appertain only to Ecclesiasti­cal Judges. they now look'd upon themselves as free from the secular Power, because they were answerable for no Of­fences, [Page 141] but in their Courts. In this State of things Stephen dies, and Hen. the Second, Son to Maud, according to Capitulation, is received to the Crown; who, after he had setled his Affairs in Normandy, resolves to do the like in England: but, fearing some Opposition to his Designs might arise from the Clergy, he first calls toge­ther an Assembly or Council at Westmin­ster, in the ninth year of his Reign; where he propounds, That all such of the Cler­gy as should be taken, and convicted for any heinous Crime, should lose the Privi­ledge of the Church, and be delivered to the civil Magistrate, to be punished for their Offences, as other the Kings Subjects were. To this, the Arch-bishop Becket, with the rest of his Brethren, refused to give their Consent, as being against the Liberties of the Church, which were con­firmed to them by King Stephens Charter. This Answer put the King to a second Question; Whether the Arch-bishops and Bishops would submit themselves to the Laws and Customs observed by them in the time of his Grand-father, Henry the First? They answered equivocally, They would; their Order, the Honour of God, and the Holy Church in all things saved: with which Answer, the King was more enraged. But, the News of this Breach coming to Rome, the Pope writes, and sends a Messenger from Rome, charges the Arch-bishop to make Peace with his Lord [Page 142] the King, and to promise to observe his Laws without Exception. The Arch-bi­shop thus humbled, repairs to the King at Woodstock, and there promises to observe the King's Laws so far forth as was requi­red. Upon this Submission, the King, having before broken up his Council at Westminster, summons this Parliament to meet at Clarendon, in the tenth Year of his Reign, where he gives in Charge, that they should call to Mind, and put in Exe­cution and Writing the Laws of his Grand-father, Henry the First. Of which, these following were the chief. First, that there should be no Appeals to Rome without the Kings leave. That Lay-men might han­dle cases of Tithes. That no Arch-bishop or Bishop should excommunicate any per­son who held of the King in Cap. or in­terdict any official of his without his leave, &c. The eleventh of them was at large what we have now under Considera­tion; which I shall repeat and translate as it ought to be, by and by. But, by this short Relation I have made of the Histo­ry of those Times, it may appear plainly, that their yielding Obedience to the known Laws of the Kingdom in matters of Appeal, appearing and answering in the King's Courts, (though it were the ancient Usage and Custom of the Realm) was the thing that most vexed them, and not how far their Presence was required in cases of Blood, brought into [Page 143] Parliament, in which they were content­ed to be limited by the Usage of that Court, and to afford or forbear their Pre­sence, according to that Obligation which was incumbent upon them from the Ca­nons of the Church, invigorated by the constant Usage of the Nation. If therefore, I can make it good, that the Bishops had no Right to be present in the Debate, and handling matters of Blood, and that that was the known Law, and the Sense of this Act now before us, and of the subsequent Protestation in 11. of R. 2. I shall think my self competently safe, though some seeming Precedents and Records should be brought against me: for, it is the Law must be the Measure and Standard of our Actions, and not always Records; the Reasons whereof, are sometimes obscure, and the matter it self many times shortly rehearsed, and not always legal. I must confess, this Author hath much laboured to fix a Sense upon this Article subservient to his Purpose; but the more he struggles the more he is intangled. 'Tis worth Ob­servation, that four or five, I suppose, dif­ferent Persons, have written in the Defence of the Bishops Right to vote in Capital Causes in Parliament; and having all of them a necessity to say something to this Law of Clarendon, do all of them give different Interpretations of the meaning of it: a great Argument of a weak Cause. The first, whose Title is, The Honour of [Page 144] the Lords Spiritual, &c. I presume being satisfied with the general Sense which was put upon these Constitutions from all times, from which it is always unsafe to vary, and perceiving that those illegal Pri­viledges granted to them by King Stephen, were, by the reviving the Laws of Henry the First, abolished, doth ingeniously con­fess in three places, pag. 26. at the end of the sixth Chapter, and in the same page at the beginning of the seventh Chap. ‘That at Clarendon their Wings were indeed much clip'd, yet the Priviledge of sitting Hon. of the Lords. p. 26. and voting in Parliament, is left intire to them; and tho' they never of late voted in Capital Cases, yet they have ever made their Proxies, as he hopes to make appear.’ In Chapter the seventh he hath these words, ‘We confess as before, for that they were Spiritual Persons, they were not to sit in Capital Causes and loss of Limb; but adds, that long before they had exercised this Power.’ By which Words, it appears, that in the Judgment of that Author, whatever their Power and Practice was before, yet that now by the Laws of Henry the First recognized, at this Parliament at Clarendon, that Power was taken away, and not since practised. That they had such Power before, he endea­vours to prove out of Compton and Spel­man, neither of which Authors, make good any more, than that the Bishop was Assessor with the Earl in the County-court; [Page 145] which was only to advise him in point of Conscience; not much unlike the Offices of our Surrogates, who sit in consistory with the Bishops Chancellor, in whom we know resides all the Power. That this is so, appears by the Laws of Edgar, put out by Mr. Lambert, who in his fifth Chap­ter hath these Words. Centuri [...] comit [...]is quisque [...]t antea praescribitur interesto—Celeberrimus autem ex omni Sa [...]ia bis quotannis conventus agitor: cui cuidem illius Diocesis Episcopus & senator intersunto, quo­rum Laws of Edg. ch. 5. alter jura divina, alter humana popu­lum edoceto. By which, we see 'twas the Office of the Bishop to direct the People in Divine Laws, as it was of the Senator or Earl to teach them Humane: of the same Opinion is Sir Edward Coo. 2 Instit. p. 488. Coo. Mag. Cha. p. 488. Stat circumspecte agatis. Lastly, Chap. 8. pag. 32. he mentions the Council at West­minster, that in regard they might not Agi­tare judicium sanguinis, they had many times forborn to meddle in such Matters. The whole Chapter is concerning Bills of Attainder: now whether he meant that in such cases they did sometime absent them­selves, let himself explain. This Author not fore-seeing the Advantage would be made of these Constitutions, or else, ho­ping to help himself upon the Power they had to make Proxies, doth ingeniously confess the Truth, but is deserted by all those of his Side who follow him. The Author of the Rejoinder, p. 5. tells you, that Rejoin. p. 5. [Page 146] the Constitutions of Clarendon permit the Bishops to be present, and vote till it comes to loss of Life or Member, which is not till the passing of Sentence upon the Pri­soner. I believed the loss of Life and Member was the Execution, and if they may be there, and vote till then, they may be present as long as any other; for when that is given, all go away: but, if his Meaning be that they should go away when the Sentence is to be pronounced, the precedent Words will not bear that Construction: so that according to him, this is rather an imping than clipping the Wings of the Bishops, as the former Au­thor affirmeth. Beside, this Exposition is contrary to the Votes of the Lords, who tell you, they must go away when their Lordships proceed to voting Guilty or Not Guilty, which is before the definitive Sen­tence, which is always given in the Pre­sence of the Prisoner, the other not. Vide Iournal of Parl. pag. 258. 15 Maii, 1679. Jour. of [...]arl p. 258. in which, they explained a former Vote, made by their Lordships, 13 Maii, 1679. in which, they had voted that the Lords Spiritual had Right to stay in Court in Capital Cases, till Sentence or Judgment of Death came to be pronounced: by which, you see the House of Lords have disowned that Sense our late Interpreters would put upon the Words of this Con­stitution, though themselves before had given colour to that Interpretation. Our [Page 147] third Author, intituled, The Rights of the Bishops, fairly passeth over this Law, only Bishops Rights. p. 139. 141. tells you, that a Bishop pronounced Sen­tence against Becket in case of Treason, as Fitztephen, a grave Author, saith; and far­ther tells you, That though the Prince may indulge many Priviledges to his Clergy, as this of not compelling them to vote in Parliament in cases of Blood, where by the Canon Law they are prohi­bited, yet that Law, must yield to the Law of the Land, (but how if the Canon Law be part of the Law of the Land, what's then to be done?) which cannot devest the King of his Right of using his Sub­jects, Clerks, or not, in any Places or Em­ployments he shall think fit to employ them in; or in which he may think them capa­ble of doing Him or the Publick any Ser­vice. This I confess is plain dealing, and I wish it were not too much the Sense of some of our greatest Clerks, that let the Law be what it will, it cannot bind the King's Hands from making use of any of his Subjects in what he pleases, though the Employment be forbidden by Law. This is the Meaning our third Author gives of this Constitution; and much good may it do him.

Our last Author, in his Grand Question, comes next to be examined, in which I shall be more large, because in him is concentred what the rest have said, and his Cause defended with much Learning, and variety of Reading.

[Page 148] He names the Constitutions of Claren­don, and the Protestation in 11 R. 2. as Gr. q. p. 19. the two main Laws against him. The Constitutions of Clarendon (which were no more than a Recognition of the anci­ent Laws and Customs of England, not made, but revived by Hen. the First, and now confirmed by his Grand-son Hen. the Second) he considers as the most materi­al, and is content this Cause should stand or fall by them. He tells you, the Con­stitution in Debate is the eleventh in num­ber; of which, the Words are,

Archiepiscopi Episcopi, & universae Perso­nae regni qui de Rege tenent in Capite, habe­ant Possessiones suas de Rege, sicut Baroniam, & inde respondeant Justiciariis & Ministris Regis, & faciant omnes consuetudines Regi­as: Et ficut ceteri Barones debeant inter­esse Iudiciis curie Regis quousque perveni­atur ad diminutionem Membrorum vel ad Mortem.

After the Words, he gives us the Trans­lation of them, made by the Author of the Letter, in the following manner.

‘The Arch-bishops and Bishops, and all the dignified Clergy of the Land, that hold of the King in Capite, shall hold their Possessions of the King, as a Barony, and answer for their Estates un­to the King's Justices and Ministers, and shall observe and obey all the King's Laws: and, together with the other Ba­rons, they are to be present at all Judg­ments [Page 149] in the King's Courts, till it comes to require either loss of Life or Member.’

But, pray Sir, why did you not rather give us a Translation of these Words of your own? If the Author of the Letter have made an imperfect Translation, why did not you mend it? I believe, if this Author had found it would have advantaged his Cause, some Exceptions would have been taken to the Translation. I shall by and by give the Reader a full account of the true Sense of the whole Period; but will first make appear the Unreasonableness of the Exposition he makes of the last Clause of it.

Et sicut caeteri Barones debent interesse ju­diciis Curiae Regis quousque perveniatur ad diminutionem Membrorum, vel ad Mortem.

The Meaning he conceives to be, That the Bishops are required to be present in the King's Courts as other Barons are, till Gr. q. p. 20. they come to give Sentence, as to dismem­bring or loss of Life.

Why he translates Curiae Regis in the plural Number, the Kings Courts, which is in the singular the King's Court, and in this place, hath always been understood of the High Court of Parliament, in which, the other Barons had an Interest to be present as Judges, and in which Sense, it is very often taken, as is made clear by Mr. Petit, in his learned Discourse Petit▪ pr. p. 45. Ger. Dorob. p. 1653. of the ancient Rights of the Commons of England. Pref. pag. 45. out of Gervasius Do­robornensis. pag. 1653. who speaking of the [Page 150] Election of Arch-bishop Lanfrank, hath these Words; Eligentibus eum Senioribus ejusdem ecclesiae cum Episcopis ac principibus Clero & Populo Angliae in Curia Regis, in assumptione Sanctae Mariae: and another Author saith, it was Consensu & Consilio omnium Baronum suorum, omniumque Epis­coporum & Abbatum totiusque Populi An­gliae commisit ei Dorobornensem ecclesiam. That this was a Parliament, we have little Reason to doubt, and that it was called Curia Regis. See also Inter com. T. Hill. 17 E. 3. penes remem. in Scacc. 29. & 32 H. 3. mem. 12. 13. in dors. rot. claus. Consideratum [...] E. 3. fuit in Cur. nostra & toto Parliamento nostro, &c. Wherein, Cur. Regis, & totum Parl. are but expressive of the same thing, and not two Courts, as I think: I very well know, that Curia Regis had various accep­tations; sometime it signified that Court of Justice that at those times followed the King's Person; sometime it was taken for Aula Regis, where Entertainments and Feasts were made, as we read often in our Historians; but, I take it here to be un­derstood of the High Court of Parliament, for the Reasons before touched, and many others, if any shall seem to doubt of it.

Next, why doth he leave out Judiciis, whereas the Words are, The Bishops, as the other Barons, ought to be present Ju­diciis curiae Regis, in Trials in the King's Court, (viz. the Parliament) he renders they are to be present in the King's [Page 151] Courts. To help himself under the co­vert of an ill Translation, savours not of that candour justly to be expected from so learned a Person, and one that seeketh af­ter Truth, rather than Victory? but, since this Author is a subtile and no loose Wri­ter, give me leave to guess at the Reason of it. He saw plainly, that had he fairly rendred the Words [The Bishops as other Barons, have Right to be present in all Causes, Sentences, or Judgments in the King's Court, or Parliament, till the Cause, Sentence, or Judgment come to concern Life or Member; the Word Ju­diciis, in the plural Number, must have referred to other Judgments in other cases, and then the latter clause [till Judgment, or Sentence came to concern Life or Mem­ber] would have been clearly restrictive as to cases of Blood; for, to be present at the Judgments of the Court till Judgment, is Non-sense, except the Words be apply­ed to different cases. Now, this Interpre­tation would have quite destroyed his main Undertaking, who at last gives a Sense of the Words, not only coincident with that given by the Author of the Bi­shops Rights, to which I have before spo­ken, but contrary to the Votes of the Lords in Parliament; who, though they seem to admit their Presence in the hear­ing such a case, yet will not admit them to have any part or voice in the judging of it. Beside, I must needs take notice, [Page 152] that 'tis a strange Translation of the words, Quousque perveniatur, or, in judicio perve­niatur ad diminutionem Membrorum vel ad mortem. Till they come to give Sentence; when the Words more naturally import, till Judgment may be fulfilled in the cut­ting off of Member, or Life; which is Ex­ecution. But, I shall anon give him a more proper Translation of the Words: in the mean time, will consider all his Sub­terfuges and cunning Evasions, by which he would give colour to his Interpre­tation.

First, from the occasion the Author of Gr. q. p. 20. the Letter, pag. 73. had said. The Pre­lates affected a kind of Omnipotency. (he conceives the Author means in Judicature) and I conceive he made that Supposition, because he judged it for his Advantage to suppose so: not that the thing was true, or that the Author of the Letter gave him any cause to take up that Fancy. Their Affectation of Omnipotency was not to be freed from that part of the Law of the Land which was agreeable with the Laws of the Church, which they were content to submit to; but their Desire was, to be freed from those they thought were against them, to wit, to do Service to the King, for their Lands, to answer to his Justices and Ministers, to be subject to the secular Power for any crimes they should commit. These were the things they stormed at, and were the Ecclesiasti­cal [Page 153] Bondage and the wicked Constitutions Matt. Paris, and other Historians of his Time so much exclaimed against, because they would have had all their Affairs trans­acted in their own Courts; so that our Author need not have spent ten Pages, to prove what no body affirms. Much of the Contests between the King and Cler­gy arose from the Charter granted by K. Stephen, Anno 1136. That all Persons and Causes ecclesiastical should appertain only to ecclesiastical Judges; which Charter, whatever stir they made about it, accord­ing to our Author's Logick, was void: (for Maud the Empress, Daughter to Hen­ry the First, third Son to William the First, and so right Heir to the Crown, was then alive, to whom the Bishops and People had sworn Obedience; and therefore King Stephen was as much an Usurper as Hen. the Fourth.) This Charter was the Latis offendiculi, the stumbling Stone they could not escape, and the meer restoring now at Clarendon the ancient Laws and Customs confirmed to the People by Hen. 1. was what gave them the greatest Disturbance; not that they affected any Omnipotency of Judicature, at least in cases of Blood: insomuch, that our Author had no reason to pin a Sense upon the Words of the Au­thor of the Letter, to which, he had no Inducement from any Words of that Author.

[Page 154] Having done with the Occasion, we Gr. q. p. 30. come now to his second Enforcement of his Opinion, viz. the plain meaning of the Words. First, he quarrels with the copy, the Author of the Letter follows, taken out of Matt. Paris and Wendover, who not­withstanding, in Mr. Selden's Opinion, have best preserved the meaning of this Constitution. Seld. tit. hon. part 2. pa. 703. Seld. tit. hon. p. 703. 704.

Though I do not grant his Vatican co­py, following, as he saith, Gerv. Doroberni­ensis is better, yet for once I am content to follow his copy, and admit the Words in Judicio to be inserted, which are left out by Matt. Paris, yet I think necessarily im­plyed; but shall never yield to his un­warrantable construction of them, which in conclusion amounts to this.

That the Bishops were bound to be in the Kings Courts in all Judgments, till it came to Sentence of loss of Life and Mem­ber, and then they might go out, in obe­dience to the Canons of the Church, if Gr. q. p. 32. they pleased, to which they pretended themselves bound in Conscience to give Obedience; and that for this Reason, the Pope marked this Constitution with a hoc tolerandum, the others with hoc improban­dum. I confess, I think the Interpretation of these Words contrary to their natural Sense, and contrary to the Opinion and Practise of former times, who have always understood them to import, that the Cler­gy [Page 155] ought to be present in all Tryals in Parliament, except in Tryals of Blood.

But, before I proceed to make good the true Sense and Translation of these words, it will be necessary to explain the Signifi­cation of some of them. First, Quousque usque quo, dummodo, praeterquam, are often times indifferently taken, as signifying the same thing, and are limiting, restraining Particles, and used as Exceptions to some­thing which went before, [...] till what time, till when, so far forth, except when, or the like.

Secondly, Iudicium signifies properly a Tryal at Law, a Case, a Suit, or Process, and is not taken for a definitive Sentence, except when it is delivered as the Opinion of the Court, resulting upon a precedent Tryal had before others; in which, he that pronounces Sentence hath not, or very rarely, more than a directive Power, and do's not give his own single Opinion but the Sense of others, in matters debated. Actiones quarum causa in jus quisque vocatur quandoque dicuntur judicia. Ut in L. in bon. fid. 13. de Usuris L. 4. C. tit. 32. L. Mora S. in bo. fid. Theophilus refert in S. 1. de Act. quas Athenienses [...] dicebant & Budaeus notat. in communi Lingua Graeca per [...] generali nomine dicebant litem, actionem, paenam, mulctam & judicium, to wit, the whole Proceedings. Iudicium est legitima disceptatio duorum, aut plurium coram judice Cale. Dict. Calv. Lex. jurid­circa [Page 156] finem. to the same purpose. By these Authorities and many more, 'tis plain, that Judicium, Judgment, comprehends the whole Proceedings in any Cause, and not the Sentence only.

Pervenio signifies to arrive at, or the Ac­complishment, or Bounds of any thing; as pervenire ad metam is to arrive at, or come to the Goal. Ovid speaking of the Return made by the Eccho, hath these Words, Verba refert aures non pervenientia nostras, Words that arrived not at our Ears, they came not to the Terms or Bounds designed. So pervenior, in the Pas­sive Voice, must signifie to be arrived at, or accomplished in.

That Judicium in our Case must be ta­ken in the Sense I have given, I shall evince from the general Opinion of Law­yers. I shall begin with Magna Charta: The Words there are judicium Parium, and understood of a Tryal by his Equals. The Question which is asked the Prisoners after their Plea, is, not who shall give Sentence upon thee? but how wilt thou be tryed? and they that give Sentence are not those that try them in criminal Cases: nay, their appealing to a Tryal by them, is account­ed a standing Mute. The next Authori­ty shall be from the Council at Westminster, in the 22. year of Hen. 2. no more than twelve years after the Assize of Clarendon, Hoveden f. 543. Ger. Dorob. fo. 1429. An. 1175. and as Hoveden saith, taken out of the 11. of Toledo, and summoned as Gervas of Can­terbury [Page 157] saith; In hoc consilio ad emendatio­nem Ecclesiae Anglicanae, ex assensu Domini Regis & primorum omnium Regni haec sub­scripta promulgata sunt Capitula. Amongst which, this is one.

His qui in sacris ordinibus constituti sunt ju­dicium sanguinis agitare non licet: unde prohibemus ne aut Non licet ought not to be translated, it is not conve­nient as Mr. Hunt would have it, and never hath that Signification but when a Law intervenes, which makes it as well unlawful as inconvenient; for, eve­ry Law makes the Breach of it inconvenient. per se Membrorum truncatio­nes faciant, aut inferendas judicent. That such as were in holy Orders should not agitate or meddle in Tryals of Blood as a thing unlawful: for which Reason, they are prohibited from cutting off any Member themselves, or from giving their Opinions or Judgments that such Pu­nishments ought to be inflicted. This Sy­nod we see was not only a Meeting of the Clergy, but with them of the Primores Regni, and the Determinations promulga­ted by their Assent and the Assent of the King: for the Lay-men did usually meet with the Clergy in their Councils, in those days. To which purpose, see a Tractate of a late learned Writer, in his Iani Angl. fac. nov. pag. 213. which came not to my hand till very lately. Now, whether this Agi­tation of the Clergy, in matters of Blood, had reference to the ordinary Courts of Justice, in which they might not be pre­sent, or to all in general, is not material, since it is only produced to shew the mean­ing [Page 158] of the Word; and certainly, if it be inclusive as to those Courts, it is not ex­clusive to any other. And Agitation in Tryals being naturally before Sentence, Agitation in Tryals must extend to Pre­liminaries.

Let us now come to the Constitutions of Arch-bishop Langton in Linwood. 'Tis first Linw. lib. 3. tit. 29. Ne qui Cler. found, lib. 3. tit. 29.

Ne Clerici vel Mon. fo. 269. ult. edit. Praesenti statuimus decreto, &c. ‘Nec Ju­risdictiones exerceant saeculares, praeser­tim illas quibus judicium sanguinis est annexum. His quoque duximus adjun­gendum, ne scilicet judicium sanguinis in locis sacris tractetur, in ecclesia vide­licet, vel in caemeterio. Authoritate quoque Concilii districtius inhibemus ne quis Clericus beneficiatus, vel in sacris ordinibus constitutus literas pro paena sanguinis infligenda scribere, vel dictare praesumat, vel ubi judicium sanguinis tractatur, vel exercetur intersit.’ The Sum of all which is, that no Clergy-man should exercise Jurisdiction in any cause to which Sentence of Blood was annexed. That no causes concerning Blood should be held in Churches or Church-yards: Lastly, that they should not be interessed where causes of Blood were handled, nor should presume to write, or dictate such Sentences to be inflicted. ‘To the same purpose are the Constit. of Othobon. Ne cler. advocat. tit. 7. p. 91. Let him [Page 159]look upon his own Authority out of Ho­stiensis, Protestatio in judicio is meant of a Protestation in a Suit, or Process. I am sure these are Testimonies more than enough, to shew the true meaning of judi­cium among Lawyers, which is the only end for which I have produced them.’

I shall now come to the true Translati­on of the Words, but shall not follow Mr. Selden; and after him, the Author of the Letter, in rendring Universae personae Regni, all the dignified Clergy: nor shall I allow of his Criticism of Persona or Per­sonatus, because, for ought appears to me, some Clergy-men, who were not dignified might, by License from the King, purchase Lands held in Capite sicut Baroniam, and thereupon, think themselves exempt from Vid. Treat. of the No­bil. pag. 68. supposed to be by Doddridg. this Law.

Having thus far cleared the way, I come now to the true Translation of the Words themselves, which are,

‘Archiepiscopi Episcopi, & Universae Personae Regni, qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam, & inde respondeant Ju­sticiariis, & Ministris Regis, & faciant omnes consuetudines regias.’ Et sicut ceteri Barones debent interesse Judiciis Curie Regis, quousque perveniatur [in Ju­dicio] ad diminutionem Membrorum vel ad Mortem.

[Page 160] In English.

‘Let the Arch-bishops and Bishops, and all Persons whatsoever of the Kingdom, who hold of the King in Capite, have their Possessions from the King in the Na­ture of a Barony; and by reason thereof, let them answer the King's Justices and Ministers, and perform all Royal Customs. And in like manner, as the rest of the Ba­rons 'tis their Duty to be present at all Debates, Process, or Proceedings in the King's Court (viz. the Parliament) till what time, so far forth, or except when in the Tryal, Debate, or Process, the loss of Life or Member may fall out to be the Upshot or Conclusion of the Case, or the matter put in Issue.’

In plain English, in all cases where the Issue or Conclusion may fall out to be end­ed in loss of Life, or Member, they are by this Law to be absent. Now I hope upon Issue joyn'd, if the Impeachment be of a capital Crime, the conclusion or upshot may happen to be found to concern Life or Member. And that this is the true Sense and Construction of the Words, I dare appeal to any Man, who is so far Ma­ster of the Language, as not to think fit to consound Moods, Tenses, and Num­bers, at Pleasure, as this Author seems to do, when he reads Curiae Regis the King's Courts, which being in the singular Num­ber, resers only to the King's great Court, the Parliament, the King's Courts in the [Page 161] plural. Perveniatur in the Potential Mood, when such a thing may be brought to pass, with pervenitur in the Indicative Mood, when such a thing is brought to pass, that is, as he erroneously translates, till Sentence comes to be given. And the Authorities before-cited evidently shew, that the Wri­ters of those Ages understood the Law in that sense. To which Authorities, I shall now add the Opinions of Mr. Selden, Sir Edward Cook, Mr. Hakewell, and Fitz-Ste­phens, a Writer of good esteem with our Author. Mr. Selden, Tit. Hon. part. 2. ch. 5. Seld. tit. hon. p 704. p. 704. explaining these Constitutions of Clarendon, saith, that the meaning of this in question is, That the Bishops were to sit in Judgment with the rest of the Barons in all cases, save in cases of Blood. Now, I hope, every man will admit 'tis a case of Blood before Sentence, and that the Ba­rons sit in Judgment when the Matter comes to be treated of before them. Sir Ed­ward Coke, cap. de Asportatis Relig. cites the Parliament of 11 R. 2. where, by their own Cook 2 Inst. pag. 587. acknowledgment, they went out before any Debate; their presence being prohi­bited by the Canon-Law. Mr. Hakewel, in his Mod. ten. pag. 84. hath these words; Hakewell mod pa. 84. ‘Therefore we see the Presence of the Bi­shops in Parliament, in respect of their Baronies, is, Duousque perveniatur ad diminutionem, &c. for so, even unto our times, when Question is had of the At­tainder of any Peer, or other, in Parlia­ment [Page 162] the Arch-Bishops and Bishops de­part the House, and make their Proctors.’ Here you see they are to depart when Que­stion is had, &c. As to their making Pro­ctors I shall speak more fully hereafter, as also shall shew, that the Canon Law both by these Constitutions and before them, was part of the Consuetudines Regni: yet this, by the way, appears plainly, that the de­sire of the Cominons in 21 R. 2. that they might make Proctors, must have reference to the beginning, not the end of the Try­al, when the naming them was useless. But let me not do him wrong; for, pag. 33. he touches the Sense I have given, but dislikes it; viz. That the last Clause is not to be understood of the Sentence, but of the kind and quality of the Cause: that is, they are to be present in the King's Courts, till they come to a Cause where Life and Member are concerned. This Sense certainly is near the Truth, but that he confounds the Potential with the Indi­cative Mood. The Words are, where Life or Member may be concerned, which he reads, are concerned, and so seems to re­fer them to the Sentence which ought to be referred to the whole Proceedings. In the last place, let us hear the Sense his grave Author Fitz-Stephens puts upon this last Clause. After the Appeal of the Arch-bishop Becket to Rome, the King expostu­lates the matter with him; asketh him why he would break his Oath, so lately [Page 163] sworn at Clarendon? Amongst which, Hec una est ut Episcopi omnibus ejus assint Adsint. judiciis preterquam judicio sanguinis. That is, That the Bishops should be present at all Tryals, except when the Tryal con­cerned Blood; where you see, he renders Duousque by preterquam as indeed [...]sque quo, quousque, usque dum, praeterquam, have the same Sense all restrictive. Now Fitz-Stephen was undoubtedly at the Parliament at Clarendon, which was not above seven months before the Meeting at Northampton. Fitz. cap. 10. col. 12. Fitz. ca. 10. col. 12.

Our Author proceeds, and tells you, there is a great deal of difference between Duousque perveniatur ad judicium muti­lationis Membrorum vel Mortis, and quo­usque perveniatur in judicio, &c. I confess, I understand not this Criticism, which however is not warranted by the Authori­ty of any Copy; neither can it be made capable of any good Sense, except one not different to what I have given; for if it were quousque perveniatur ad judicium, &c. I ask to what doth perveniatur refer? I think most properly to Curia Regis. That is to say, 'tis their Duty to be present at all Proceedings in Parliament, until such a Case may fall out where Life or Member may be concerned. For, we must not be permitted to fancy a Sense of Words, and then, contrary to all Rule, wrest them to our own Biass, and against the Opinion of such as writ before us: neither are we [Page 164] to expect from these old Monkish Wri­ters, such polite Latin as Tully writ, but take their meaning as others who liv'd nearer the time have done before us. So that I have done with this Clause, when I have first told the Reader, that I have trans­lated debent interesse. 'Tis their Duty to be present, because they would often take Li­berty to go away, or protest, or be trou­blesom upon several Pretences: sometime the Canons allowed them not when the Law did; sometime the Liberty of the Church was concerned, as appears by the Statute de asportatis religiosorum, where they absented themselves. Co. 2. Inst. pag. 585. All these Subterfuges were obviated by this Co. Ma. Ch. p. 585. Statute, (although perhaps not by them well observed) which required their At­tendance in Parliament in all Causes where they were not prohibited by the received Laws of the Nation. Now our Author acknowledgeth, that the Council of Toledo was brought into England by Lan­frank, in William the First his time; which Council, is put out in the second Tome of the English Councils, by Sir Will. Dug­dale and Mr. Spelman, as the Work of Sir Henry his Father. That Council forbids their Presence in Cases of Blood, which be­ing, as he admits, received here as low as the Conquest, made it a Custom in Henry the First his Time, and an ancient Custom in Hen. the Second, and now being allowed [Page 165] at the Parliament at Clarendon, to which they all swore, makes that Custom or Ca­non as much a part of the Law of England, as any affirmative Statute can, and so not to be repealed, except by as equal Autho­rity as that by which it first became a Law, and was now affirmed as such.

By what hath been hitherto said, I think it will appear competently plain to any unbiassed Reader, that the word [in judicio] doth not refer, as he supposes, to that par­ticular Tryal then in Court, as if it had respect to one Period in the Tryal, and Gr. q. p. 33. left them at liberty to be present at all other parts of it; but was restrictive to all Try­als whatsoever which might have their Conclusion in Blood: and his Allusion in the same Page is as little solid. As sup­pose, saith he, ‘Charles the Fifth had re­quired the Protestant Princes to attend him to Mass, as other Princes did, only when the Mass-Bell tinckled they might withdraw; would not any reasonable man believe by this that they were ob­liged to their Attendance till then: So here the King commands their Atten­dance till it comes to such a Point; therefore before it comes to such a point, their Presence is plainly required by this Constitution.’ This Allusion or Supposi­tion doth no way answer our Case; except he had shewed us that there were different sorts of Masses, in some whereof, the tinck­ling-Bell sounded, in others not: and then [Page 166] Charles the Fifth had required their Atten­dance at all Masses, until such a Mass might sall out in which the tinckling-Bell was to sound; here their Absence would have been allowed during every part of such a Mass. Our Case is the same; some Tryals there are in Parliament which may concern Life or Member, others which cannot. Now the Statute saith, 'tis their Duty to be present in all Tryals, until such a Tryal happen in which Life or Member may be concerned. I hope here this Restriction will have Reference to the whole Tryal, and not any particular Pe­riod of it. I had not said this, the matter being sufficienttly cleared before, but out of Apprehension, that some unwary Rea­der might be misled by this Author's Sub­tilty, and believe there was weight where indeed there was none.

But however, the Words of Petrus Ble­sensis will give great light to the whole Gr. q. p. 34. matter. This Petrus Blesensis was Arch-Deacon of B [...]th, and the place cited is That Edi­tion in q [...] [...] [...]. [...] certainly the best, the latter ones being printed from that Copy. Pet. Bl [...]n. Y y 2. amongst his O [...]ula, in the Edition I have in Quarto, and precedent to that other in Folio. 'Tis in his Tractate de institutione Episcopali. pag. 542. (or rather, Y y 2 for the Pages are in my Copy falsly numbred; dedicated to the then Bishop of Worcester. The Design of the whole Tractate is to shew the duty of a Bishop, and by the whole Scope seems to be addressed to all Bishops, and not to the English only. He lived in the [Page 167] time of Hen. 2. for his 136. Epistle is to Pope Alexander the Third, from K. Henry, about the Rebellion of his Son.

The Words are not in my Edition, as the Author recites them, Principes Sacerdo­tum & seniores Populi. But, Quidam Principes Sacerdotum, & Seni­ores Populi. Not the The critically learned Mr. Hunt, in his undigested Lump, instead of a methodical Discourse, pag. 5 [...]. endea­vours to cure the Ignorance of his Readers, by telling them, that by Principes Sacerdotum & Seniores Po­puli, the Bishops are only meant; who from the Dignity and Worthiness of their Order, are called Seniores, a note of Dignity, in all Countries. He should have done well to have add­ed Q [...]m Principes Sacerdotum, & S [...]es populi, as the first and best Edition of Petrus Blesensis hath it. That Senior is a name of Honour, he might have learn'd at School: but that the Chief Priests and the Elders often m [...]ned in Scripture were the same [...]ns, he hath taught no body nor learnt himself; and certain­ly the Addition of Populus will do him little Service. But this Author would be an excellent Man, were he as good at proving as propounding. chief Priest and El­ders, but certain of the Chief Priests and Elders of the People. By which, it seems to me, this could not be understood of an English Parliament, because all the Bi­shops had equal right to be present in Par­liament, and this is restrained to certain of them. Secondly, I think Seniores Populi never comprehends Abbots, Priors, with Lords and Commons together: I know Ba­ronagium, Clearus, & Populus, are sometime so taken; but I believe Seniores populi ne­ver comprehends them all: so that our Question being concerning their Rights in Parliament, if this be not meant of one, it will neither advantage nor prejudice me, but only shew how willing they were to [Page 168] break through all Rubs when they could, in those times of their Power, and the Blindness of the People. The whole Sen­tence by our Author abridged to his pur­pose, is as followeth.

Illud coelestem exasperat iram, & plerisque discrimen aeternae damnationis accumulat quod Vide before p. 18. and after p. 129. quidam principes sacerdotum, & seniores po­puli, licet non dictent judicia sanguinis, ea­dem tamen tractant disputando, & disceptan­do de illis, seque ideo immunes à culpa repu­tant, quod mortis & truncationis Membrorum Mortes & truncatio­nes melius ut videtur. decernentes, à pronunciatione duntaxat, & executione paenalis sententiae se absentent. Sed quid hac simulatione perniciosius est? Nunquid definire, & discutere licitum est quod pronun­ciare non licet.

In English.

This doth exasperate the Wrath of Hea­ven, that certain of the Chief Priests (or Bishops) and Elders of the People, not­withstanding they do not dictate, or pro­nounce Judgments of Death, yet they han­dle them in their Disputations, and dis­cussions of the same; yet notwithstanding think themselves free from Guilt, because, though they Decree the Sentence of Death, or loss of Members, they only absent them­selves at the pronunciation of the Penal Sentence. But what is more pernicious than this Simulation? Is it lawful to dis­cuss and determine what is unlawful to pronounce? And in the whole Treatise inveighs against the general neglect of the [Page 169] Bishops in performing their Duty, not confining himself to any place, and seems a prophetical description of the practise of the Inquisition, afterward brought in by S. Dominick.

But if it were referred to the practise of some of the Bishops and Clergy of Eng­land, probably it may be meant of such as were made Secular Judges, or sate with the Earls in the County Court, where they perhaps were present at the discussion, though not at the Sentence, which was left to be pronounced by the Secular Judge, till after the time of Edw. 1. See 28 Edw. 1. c. 3. where it is ordained, that the Justices ap­pointed to take Assizes, in every County where they do take as they be appointed Assizes, shall remain together, if they be Lay-men; but if one of them be a Clerk, then one of the most discreet Knights of the Shire, being Associate to him that is a Lay-man, by our Writ shall deliver the Goals of our Shires. Here we see their Power, though Justices, to meddle in Ca­pital Cases was prohibited; nay some Re­cords are in the Tower, that when two have been commissioned as Judges for the same Circuit, the Commission of the Clerk has been restrained to common Pleas; that to the Lay-man unlimited, see Iani Ang. facies nova. pag. 209. 210. Shall we Ian. Angl. fa. nov. pag. 209. 210. now believe, that what was prohibited to Clerks in Edward the First his Time, was permitted to them in the High Court of Parliament in subsequent times?

[Page 170] I have given my Reasons why I think Seniores Populi could not comprehend the Abbots, Priors, Lords, and Commons; yet if any man will contend this was a Parliament, then must Seniores Populi comprehend, amongst others, the Com­mons and their Proceedings to be in a le­gislative way, in which the Commons could only meddle, and in which, we de­ny not the Clergy to have their part; so that this doubty Precedent will no way serve our Author's Turn.

His second Instance to make good his Assertion, is taken from the Authority N. B. Nothing urged by Mr. Hurt, p. 62. does prove that Meeting a Parliament, but such a Council as was free for the King to call, of such Persons as he pleased. I am sure here are neither Abbots nor Commons summoned. I presume this Author never read Fitz-Stephens, whose words are considentibus, not consulentibus Epis­copis. We have seen such a Concili­um magnum at York, called by King Charles the First. of Will. Fitz-Stephen, a Monk of Canterbu­ry, in MSS. in Sir Rob. Cotton's Library, and some other pri­vate hands, in which he relates what hap­pened to Arch-bi­shop Becket, in the Contest between the King and him in the great Council at Nor­tham ton, called soon after, Becket's obsti­nate Carriage at Clarendon: in which Re­lation, among others, that Author hath these Words. Secunda die considentibus Epis­copis comitibus Barenibus Angliae omnibus Nor­pluribus Roffensis Episcopus, & quidam alius nondum venerat. Archiep. lesae majestatis co­ronae [Page 171] regiae Arguitur; quia (se) ut supra narratum est à rege ci­tatus Arguitur I conceive doth more properly [...]gnifie to induce or argue a thing to be so, as well as to blame or accuse, and is more properly applyed to Ar­guments or Disceptations. ro causa Johannis (to wit, Iohn the Marshal) neque venerat neque idonee se excu­sasset. Archiepiscopi depulsio nullum locum habuit. Allegata tamen Johannis supradicti injuria, & juris­dictione hujus causae propria, & curiae suae in­tegritate; Rex exigit judicium. Archiepiscopi nulla ratio est approbata. Then after much debate who should do it, Judgment was pronounced by the Bishop of Winchester, which ended in the Confilcation of all his personal Estate. The Sum of what Fitz-Stephen saith (which is cap. 10. col. 2. p. 21. in that Copy I have seen) is this, That Fitz. cap. 10. col. 2. when the Bishops and Barons of England and many of Nor. Normandy (as Mr. Selden thinks) were met together, the Arch-bishop is there accused of Treason, because ha­ving been cited by the King in the Cause of one Iohn, he appeared not, nor gave in a sufficient Excuse.

To let pass what is materially reply­ed by the Author of the Letter, to this Authority, I shall make some Observa­tions of my own, not yet taken Notice of. First, That this Assembly held at Northampon was not a Parliament, but a great Counsel summoned by the King soon after Becket's stubborn carriage to his Prince at Clarendon, to be advised by them how to humble that proud Man; where it was [Page 172] lawful for him to use the Counfel of any of his Subjects, of Normandy or others, as he thought good; who certainly, in an English Parliament could not be admitted amongst the natural English. Secondly we hear no­thing of the rest of the Clergy nor the com­mons but of the Bishops, Earls and Barons; but that the Commons had allways right to appear in Parliament, is learnedly made good by Mr. Petit in his Tractate of the ancient Rights of the Commons. In the next place, the relation of Fitz-Stephens is not on­ly different from the relation of other Hi­storians, but in it self is subject to many Ex­ceptions: For first it is plain he was not ac­cused of High Treason in the case of John the Marshal, as he saith, which appears, by the Judgment of that Council, which upon the whole matter reac'hd only a Confiscation of his personal Estate, which shews clearly the Accusation was not in that Case for Treason, because they here punished him with a lesser Punishment than was due to Treason: now 'twas not in their Power to change the nature of the Crime, but must have either found him guilty of Treason, or N. B. In those times, Treason in common Speech was a general name for all Offences the King thought did ledere Majestatem re­giam, till afterward the matter was better explained in 25 E. 3. Vid. Jani Anglor. facies nova, p. 199. have acquitted him. But the Truth is, there was a second Accusati­on by the King, about the same time, and in the same Place, con­cerning Accounts to the [Page 173] King of Receits, during the Vacancy of the Sees of some Bishopricks, when he was Chancellor, to which he refused to give other Answer, saying, He was not cited in that Cause, and over and above, that he was fully discharged of all Accounts whatsoever when he was made Arch-bishop: but the Heats and Animosi­ties occasioned hereupon, made him ap­peal to Rome; which being so immediately after, and contrary to his Oath at Claren­don, might be called by the Name of Treason in those Days: yet it appears plainly, that an Appeal to Rome was not in those times look'd upon as a Capital Crime. To this Purpose, see Spelman's Councils. Tom. 2. fol. 119. Concilium Pan-Britan. apud Pipewell, Congregatis illic Ar­chiepiscopis Britanniae quibusdam. Norman. Galliae & Hiberniae Episcopis Abat. &c. infra nominat. praesente etiam ipso Ricardo Rege, An. Dom. 1189. & 1 Ric. 1.

The King having given the Arch-bi­shoprick of York, Gaufrido fratri suo quon­dam Lincolniae electo. The Arch. of Canterb. Calumniatus est consecrationem illius, & pro­hibuit ei ne ipse ab alio quam ab eo conse­crationem seu sacerdotalem ordinem suscipe­ret. Super hoc appellant ad Dom. Papam. coram Rege & universis Episcopis, & Clero & Populo chartam Willielmi Regis Bastardi in qua continebatur controversia quae olim ver­tebatur inter Cantuariensem & Eboracensem ecclesias protulit. Here you see an Appeal [Page 174] to Rome, publickly made, and the Appel­lant not questioned for Treason or any other Misdemeanour; and this done in 1 Rich. 1. who was the Son of Hen. 2. But admit this Appeal, or rather Perjury, in that time had been a Capital Crime, his Appeal here hindred the pronouncing any Judgment: So that Fitz-Stephen is mistaken in the first Point; for he was neither accu­sed nor condemned of Treason in the cause of John the Marshal. Secondly, he tells you he was accused of Treason, because being cited, he did neither appear, nor competently excuse himself, which must be understood to be meant by some other Proctor or Advocate; for, if he did not appear, 'tis impossible he should excuse himself any other way: for it is clear he was at Northampton, Ipsa die venimus Nor­thamptoniam, saith Fitz-Stephen, cap. 10. co. 1. Fitz. cap. 10. co. 1. That the Court sate not till the second day after their coming, and he made an Appearance on the third, is confessed by the same Author, who a little before tells you, he sent quatuor Milites to give his Answer, and the King's These Milites I con­ceive might be such as held in Capite, and were sometime called Baronets or Barones minores. Exception was, that he did not answer in his proper Person, which certainly by Law he was not obliged to do, so that here was but a Contempt of one day; however, they were resolved to proceed for the Arch-bishops Depulsio, or answer for him­self, took not place; for so I take the [Page 175] meaning of depulsio to be. Archiepiscopi ratio nulla est habita. Whether you take ratio for an Account, which probably he might give as to 300 l. prerended to be due to John the Marshal, or in any other Sense, 'twas not allowed. Last­ly, you have these words, Archiepisco­pus autem quia sententiae, vel recordationi Curia Regis non licet contradicere sustinuit, Curia Re­gis was here the Kings Council then sum­moned. consilio Episcoporum, ad Acta, ad mitigandum, & honorandum Regem, solenni, & manuum ipsius missione quasi concessionis Judicii uti mo­ris est ibi. The Archbishop, by the Coun­sel of the other Bishops, because he might not contradict the Sentence, and memorial of the Kings court, submitted to their Acts; to the end that by his Submission he might Manuum depressio, I take to be Submis­sion. Honour the King, and mitigate his Anger; and yielded to the Judgment, and put in for his Sureties, all the Bishops, except London, of which, notice was taken. Can any thing now be clearer than this, that he both ap­peared, submitted to the Judgment, and put in Sureties to perform it, and that here could not be any formal accusation of Trea­son, whatsoever the Counsellors might dis­pute among themselvs. So that Fitz-Stephen's Relation, as to this matter, is not only con­trary to the Judgment of the Court, which condemned him not for Treason, and con­tradictory to himself, who making the Rela­tion as an Historian of what was done in that case where himself was present, must be sup­posed to write what in truth was the matter of [Page 176] Fact, and not what was the Opinion or Dis­course of others; except he had told us so. But this proud Prelate being, as the King thought, not sufficiently humbled by the Judgment aforesaid, nor by many other Affronts put upon him by the King's Offi­cers, a new Crime, as I touched before, is found out against him, for Accounts, to the value of 3000 Marks, to which he is required to answer, and to which, saith our Questionist, he gave a dilatory An­swer; Gr. q. p. 39. so that the King requires him to stand to the Judgment of the Court: But the Answer he gave was this, That the King knew well enough, that before his Election to the See of Canterbury, he was discharged; and how the Prince, the Ba­rons of the Exchequer, and Sir Robert Lu­cy, Chief Justice, gave him a Discharge for all Accounts and secular Receipts from the King, and so free and clear, was cho­sen to the See, and would plead the same no more. Was this now a dilatory An­swer, and not a clear Discharge? What doth any Accountant in the Exchequer do more? Neither could the Court expect, being cited upon another Business, he should bring his Discharge in his Pocket. But what if this Accusation had been true? Was this Treason? If every Cheater had been a Traytor, the King would have had enow to hang? But this Storm went higher, for Becket finding himself over-power'd by the King's Party, and [Page 177] menacing Words from them, comes in his Archiepiscopal Robes, with a Cross in his hand, and appeals to Rome; for which, he was blamed and sharply rebuked by his old Enemy the Arch-bishop of York; and as Hoveden saith, by London and others. But, by his Appeal he avoided all Senten­ces could be pronounced against him, yet left his Enemies and the King much in­censed against him. Gervase of Canterbury tells you, col. 1392. that the King sitting upon his Throne, it seems in a hurry, for the Words are euntes discernite, said, go­ing forth, Consider what this perjured and contumacious Traytor ought to suffer Itur, judicatur. They went out and gave their Opinion, for this could be no legal Judg­ment, because first it was out of the place where the Council sate, and his Appeal pre­vented all farther Proceedings, as it was then held. This is the Sum of the Story, taken out of Daniel's History upon the Year 1164. as he saith, particularly delivered according to the Writers of those Times: who those were he tells you in his Preface; Hoveden, Giraldus Cambrensis, Mat. Paris, Mat. Westm. Rishanger, and others. By this Relation you may see the Credit of this grave MSS. Author, who hath knit together so many Mistakes, and different from the Relation of others, of, or near the same time. But the Bishop is now gone, though before his going the King expostulates the mat­ter with him; to whom he answered, [Page 178] That he was summoned in the Cause of John, the Marshal, and would answer to no other, having then made his Ap­peal. Neither, to speak my Mind free­ly, can I see how he could be accused of Treason; for, Who was the Accuser? The King could not, because by reason of the dignity of his Person no Aver­ment could be made against him; nei­ther could any man be tryed but by his Peers. Now we hear of no Articles ex­hibited, no Jury summoned, nor no le­gal Proceedings in case it had been a Par­liament: for, though Mag. Charta was not so perfect as in Henry the Third's Time, yet all Historians agree 'twas grant­ed in Henry the First's Time; of the chief Points whereof, Stephen Langton, Arch-bi­shop of Canterbury, brought a Copy into Mat. Paris Anno 1213. pa. 240. the Parliament in King John's Time (a worthy Prelate he was, though an Italian) though it were the Law of the Land be­fore; and though the Council of the King might, in some Misdemeanours, pro­ceed arbitrarily, yet in Treason they could not, as is well observed by Mr. Sel­den, Priv. of Bar. ca. 4. pa. 10. but they Seld. Pr. Bar. cap. 4. pag. 10. were in those Cases to be tryed by their Equals. Co. 2. Inst. pag. 50. tells you, 'twas as ancient as William the First, gives you an Example of Roger, Earl of Hereford, so tryed in his Time. But we have not yet done with Fitz-Stephens; for, our Author tells you, that the King, upon the proud Gr. q. p. 40. [Page 179] Answer of Becket, charges the Bishops, that together with the Barons, by virtue of their Allegiance, they would give Judg­ment upon the Arch-bishop. They ex­cuse themselves. The King presseth them. Fitz-Steph. Words are, Rex responso Ar­chiep. accepto instat Episcopis praecipiens, & obtestans per homagium, & fidelitatem sibi debitam & juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam, &c. This he translates, That the Bishops, to­gether with the Barons, would give Judg­ment upon the Arch-bishop. This appears to be after his Appeal, when the giving of Judgment, or medling farther in the Business, was refused: beside the undue Translation of the Words, which signifie no more but the desire of the King that they would tell him their Opinion touch­ing the Arch-bishop, I wish he would give me any good Authority where dictare Re­gi sententiam (for sibi here is the same) can signifie giving Judgment upon a Cri­minal, as he translates them. I know ve­ry well, that dictare judicium may be ta­ken to deliver any Sentence leisurely. Linw. lib. 3. Ne Cler. vel Mon. where it is all one with dicere or suggerere sententiam. Beside, no such Sense can be affixed to these Words; for, the King's Question refers to them all in general, but certain­ly the King did not mean they should all pronounce Sentence, but only privately tell him their Thoughts: yet from hence [Page 180] would our Author infer, that this was a Parliament, and that the Bishops had Power to give Judgment in Criminal Ca­ses, when he hath proved neither; be­cause in Truth, this was only an Attempt of the King's to draw them to his Party, having then Intentions to send to Rome about this matter. The Words of the Bishop of Chichester, which he spake to Becket after his Appeal to Rome, will do him as little Service; for they import no more, than that the Interdict laid up­on him and the rest from doing any thing against him during his Absence, hindred them from being present at such Proceedings against him as the King re­quired from them. 'Tis not to be doubted, but the King would have pres­sed them to deliver their Opinions, whi­ther his Appeal were Treason or not: what their Judgment would have been, no man knows. If it had been a Parlia­ment, then summons must have been sent out for his Appearance, and Proceed­ings by Bill of Attainder, in a Legisla­tive way, not arbitrary in Cases Capital. Seld. pri. Bar. cap. 4. pag. 10. as before noted. He closes this Head of Discourse with a pretended Confutation of the Author of the Tractate of Peerage, a Book by some snarl'd at, but by none answered: but let us examine what they both say. The Author of the Discourse of Peerage, tells you, pag. 14. and backs [Page 181] what he saith, by the Authority of Ju­stice Doddridge, Sir Edward Cook, and Cook 2 Inst. 631. Seld. ubi supra. Mr. Selden, that these were only certain Recapitulations of the King's Preroga­tive and the Peoples Right, then sought to be infringed by the Pope and Cler­gy. That these Recapitulations were avite consuetudines, is confessed, and that that Canon concerning Blood is as an­cient in England, as the Conquest, our Author acknowledgeth, that Gervasius Dorobernensis reckons this Article among the Laws then established, from all which the Discourser of Peerage might very well argue. That which was a Cu­stom in Henry the First's Time, taken notice and allowed in Henry the Second's Time, and of the beginning whereof there is no Memorial extant, nor ac­count to be given, ought reasonably to be esteemed as part of the ancient Cu­stom, which is the common Law of the Kingdom. All that the grand Question­ist Gr. q. p. 42 thinks fit to reply to this, is, that it is little to his Purpose, because this Clause in Question is not a Limitation of their Power, but a Priviledge and In­dulgence for their Absence. That this Fancy is erroneous, I have before shew­ed from the natural Sense of that Clause, as also, that long before these Constitu­tions they were both by their own Ca­non Law, and Custom of the Nation, prohibited from being present in Cases [Page 182] and Consultations of Blood, and that themselves admitted not only the Liber­ty but the Obligation, by their constant Obedience given to that Law, and Cu­stom in absenting themselves in those Cases, as the Author of the Letter hath asserted, and shall by me be farther cleared in my Answer to his Precedents. Now, I do not think that this Author believeth that these Constitutions gave them a greater Liberty than they had before; but if it found them bound, that Statute left them so, and was as all affirmative Statutes are, though not in­troductory of a new Law, yet are they corroborative of the old, and, in their Oath, they swear Obedience to this Ar­ticle as well as to the rest; to wit, that they would, according to their Duty, be present in all Proceedings in Parliament, with the rest of the Barons, except in Cases of Blood, in which they tell us afterwards, that it was not lawful for them to be present at any hand; so that upon their Allowance, there was more than a Liberty, for there was a Law against them. Beside, could this Sense be al­lowed, it would no way serve to make good his main Hypothesis, that they might be present till the definitive Sen­tence came to be given: for, if the Law were obligatory as to any part, why not to every part of it?

[Page 183] Our Aurhor is as little fortunate in his Gr. q. p. 42. attempt to evade the Authority of Roger Hoveden pag. 40. who saith, That 'twas agreed in the Synod at Westminster, that no Clergy-man should agitare Iudicium san­guints. He tels you this was part of a Canon agreed at Toledo, which Ricard, Archbishop of Canterbury thought fit to have received here, and, I think would inferr, that here was no more done then a Proposal of this to be received, not that itw as so. But if we will believe Gervas. Dorbernensis, in 22 H. 2 fo. 1429. An. 1175. Ger. Dor. An. 1175. he will tel you, they went much farther. His Words are, Hoc concilio ad emendationem ecclesiae Angli­canae Legis vigorem habeat quic­quid de consilio & de con­sensu Magn. & Reipubl. com­muni sponsione authoritate Regis sive principis praece­dente juste fuerit definitum & approbatum. vid Bracton lib. 1. cap. 1. assensu Domini Regis & Primorum omnium Regni haec promulgata sunt capitula. Among which one is. His qui in sacris ordinibus constituti sunt judicium sanguinis agi­tare non licet, unde prohibemus ne aut per­se membrorum truncationes faciant aut in­ferendas judicent. Here is not only a Propo­sition of the Arch-bishop but an Assent and Promulgation of the same, by the King and chief of the Kingdom. And, the true Sense of that Canon, which being so confirm'd, had the force of a Law, is, That Clergy-men should not agitare, or medle in any Tryal of Blood; which certainly extends to Preliminaries, but are prohibited to make Amputations themselves, or give their Opi­nion, [Page 184] or Judgment that such Amputations ought to be made by others. Their pre­sence at such Trials was unlawfull (Non licet) and their Acting prohibited.

So at last I have done with this clause; and have shewd that it is not indulgent but restrictive; that it was a custom in H. 1. time, sworn to at Clarendon, published at Westminster 12 years after, and, by all this, made part of the Law of the Nation; have answered all his Subterfuges, and Evasi­ons, have shewed the Interpretation I have given was always received. I ex­pect now so much Ingenuity in this Au­thor, that he will either yield to my Sense, or give another, agreeable to the Rules of Grammar, and the proper Signification of the Words; and not take the Liberty to explain them at his Pleasure, and confound Voices, Moods and Num­bers: Insomuch, that this Statute will re­main Testimonium irrefragabile still; and I am sure, if he observes his due bounds he must give an Interpretation equipollent to to what I have given. So hard it is for the greatest Wits to maintain an ill Cause.

I come now to the Consideration of the Protestation made in the Parliament held Gr. q. p. 44. in 11. R. 2. which our Author saith, much cleareth the whole Business, especially the preface therof; for the omission of which he blames the Author of the Letter. I shall give it you in English, which our Author hath not thought fit to do, and by that means [Page 185] deprived many of his Readers of means to make a true Judgment of it.

‘In the Name of God, Amen. For as much as by the Law and Custom of the Kingdom of England, it belongs to the Arch-bishop of Canterbury, for the time being, as also to the rest of his Suffragans, Fellow-Brethren, and Fellow-Bishops, with the Abbots, Priors, and other Prelats whatever, who hold of the King by Barony, as Peers of the foresaid Kingdom, to be personally present in the Parliaments of the King whatsoever, and there, with the rest of the Peers, and others that have right N. B. who were these others? to be there present concerning the arduous Affairs of the Nation, and con­cerning other things there usualy to be treated of to Consult Treat, Ordain, Appoint and Define, and other things to do, which there in time of Parlia­ment are prepared, or fitted to be done. In all and singular of which, We, William Arch-bishop of Canterbury Pri­mate of England, and Legate Apo­stolical for our selves, our Suffragans our Felow-Bishops, and Fellow-Brethren, as also for the Abbots Priors and all the foresaid Prelates, do protest, and every one of them doth protest, who either by himself, or his Proctor shall be here Present at this time publickly and expresly that we intend, and every one of us will in this present [Page 186] Parliament, and others as Peers of the fore-said Kingdom after our accustom­ed manner, be present to Consult, Treat, Ordain, and Define, and all other things, ro exercise together with the rest that have right to be present in the same: The Condition, State, and Order of us, and every one of us, being still saved. But, for as much as in this present Parliament, some matters are to be treated of, in which it is not lawful for us, or any of them, according to the Decrees of the Ho­ly Church, and the Canons thereof, to be at any hand personally present. For which Reason, we for our selves, and for every of them, do protest, and every one of them here doth also protest, That we intend not, nor will, (because according to the Law we cannot nor ought not) be present in this present Parliament whilst such matters are, or shall be treated of: but that we, and every one of them, will upon that occasion all together absent our selves, our right of Peerage, and of theirs, as to our, and their being present in the said Parliament, and as to our, and eve­ry of their exercising, and doing all and singular things, our, and their or­der in all things allways preserved. And we farther protest, and every one of them protesteth, that by reason of this our absence we do not intend, neither doth [Page 187] any one of them intend, or will, that the Trials, or Proceedings had, or to be had, in this present Parliament, upon those aforesaid matters in which we cannot, nor ought not (as is premised) be present, as much as in us lyes, or any of them lyes, shall in times to come be any way impugned, weaken­ed, or broken.’

He tells you, that this Protestation, sa­ving Gr. q. p. 47. the legall Formalities consists of three parts.

First a declaration of their undoubted Right as Peers of the Realm, by virtue of their Baronies, to sit, and Vote, in all Debates in Parliament. Where by the way the words are de Regni negotiis not omnibus, of the affairs of the King­dom, not all of them, and aliquibus may as well be understood as omnibus: and this appears soon after upon their own shewing; for they tell you they intend to be present in this and all other Par­liaments, and presently after tell you it is not lawful for them to be present in this Parliament while such matters were hand­led to intend to be present, and then tell you that 'tis not lawful to be pre­sent in this Parliament shews that their Power was limited, and not universal: however upon this Protestation they went out at the Begining, and made no Proct­or; for, they tell you, they ought not to be personally present at any hand [Page 188] where such Affairs are or would be treated of, which certainly was before the definitive sentence; so that the Canon required their absence at Preliminaries, according to the sense of all times till these new expounders came in place.

I will not here dis­pute whether this Pro­testation Mr. Hunt tells you, p. 87. that if this be a Law it is a Law only for that case. 'Tis true, the Pro­testation, as such, was personal to them but the Canons I hope that put them upon a Non licet and de jure non possumus were not per­sonal also; for here is a Prohibi­tion, both by the Canon, Com­mon and Statute Law. be an act of Parliament: with Sub­mission to better Judg­ments, I think it hard that what was intend­ed as a Protestation should by Constructi­on be advanced to an Act, no more than his present Majesties Concessions, upon the desire of the Lords and Commons, in the case of some of the late Traitors, should have the like con­struction; and the entring into the Roll by the Clerk, was no more then entring into the Lords Journal now.

But, since our Author hath made his Observations, let him give me leave also to make mine. First, This protes­tation is cunningly worded by their own Direction, therefore their calling them­selves Peers of the Realm doth not make them such in any new sense; neither doth entring in their Journal Book do more than make it a Record, and ren­der them liable to Punishment, if any thing unfit in it shall be taken notice of [Page 189] An example of this we have in the Bishops Protestation, 1641. That all Laws to be made in their forced Absence should be void: which could not any way weaken them, or ours here, that they should be good, any ways strengthen those Laws then made. The next thing obser­vable is, that he saith, 'Tis their un­doubted Right, as Peers of the Realm, by virtue of their Baronies, to sit and vote in all Debates in Parliament. In which Assertion, he begs two things: first, That they sit there by Vertue of their Baronies, whereas he hath not proved they ever had any, except tenere sicut, or quasi per Baroniam, or per serviti­um Baroniae, be equivalent with esse Baro­nem, which I cannot so easily admit, though they call themselves so, and in ordinary Speech may be so called by others, that Question having never been determi­ned though admitted in Pleading by Counsel.) The Reasons of my Doubts I have given in my first Chapter, and shall submit them to more learned Judgments. They say, here they sit as Barons, but allow that they have no Right to judge in those Cases then in Agitation: and notwithstanding, it should be true, that William the First divided the Kingdom into Counties and Baronies, to hold of him in Capite; a County to contain twen­ty Knights Fees, a Barony thirteen, or thereabout: it doth not appear that eve­ry [Page 190] Bishop had thirteen Knights Fees, or that some of them had not above twen­ty, yet all of them held equally in Capite, sicut Baroniam, and sate there among the Nobility, as Associates to them. I shall farther observe, that their Right to sit and vote there was more so­lito, as they had usually done, and this with a Salvo, or Saving to their State and Order: so that except our Author had first proved that 'twas their usual manner to vote and judge in matters of Blood; and that this was agreeable to their State and Order which themselves de­ny, he hath done nothing: for, they pretend not to any other Right but what they usually enjoyed, and what was agreeable to their State and Order. Let now our Author take what Advan­tage he can from the Preface to the Protestation; for the Omission of which, he so much blames the Pen-man of the Letter.

The second matter he affirms and at­tempts Gr. q. p. 49. to prove, is, that their absenting themselves was merely in obedience to the Canons of the Church, and not out of Respect to any other Law. Yet Sir William Baker's Continuer, pag. 478. ult. Edit. saith, their Absence was not from their Obedience to the Canon-Law only, but according to the Practise of the King­dom to this day: by which it seems, he look'd upon it as the common Practise [Page 191] for them to do so. For, he tells you, 'twas impossible they should claim such a Right by virtue of their Baronies, or that the Lords should allow such a Prote­station if there were any other Law against them then in force: And that if this Protestation were a Law, the Case was more strong on their side: for, then it declares they had that Right they pre­tended to, by Law. Should I admit this for once? Doth it not also as solemnly declare, that in Cases of Blood they are barred by the Canon-Law, and so make that Bar a part of the matter enacted. But for a fuller Answer and Discharge of what he urgeth, without repeating what I have said before, as to the Protestation it self, let me put him in mind, what I doubt not he knows, that all Arguments ab impossibili, or Deductions ad impossibile, are the weakest ways of Demonstration, and never used where any other can be brought, which at best, in this Case, can only argue a Neglect in the Lords.

But secondly, he may be advertised, that all protestations are entered accord­ing to the desire of the Protestors, and not made an Act of the House. Lastly all this is but what they usually did, and hath not relation to any other Matter than what was their Custom, and was agreeable to their State and order, which was to absent themselves in cases of Blood.

[Page 192] His Digression afterward for for two or three Leaves, about the Power of Gr. q. p. 51, 52, &c. of the Pope, or his Legate to dispense with Irregularity, which here he calls a Penalty; Gr. q. p. 68. in another place, the Sanction it self, to­gether with the mystery of the Canon-Law, serves in my Judgment to no o­ther end, but to shew, the Bishops were generally Time-servers, and forced Polity and Religion to bend to their turns; forgetting that nothing is profit­able which is not first Just. However, we do not hear of any Dispensation grant­ed here either by the Pope or his Legate: and I would be glad this Author did let us know that his Opinion is, that the Pope or Legate, have a legal Power to to dispence with those Canons established in Councils, and received by a Nation. I always did believe, that those that attributed to the Pope a greater Power then I do, did not look upon him under any other Notion than as one trusted to keep, and not to break the Canons.

Having thus cleared the Protestati­on from his Objections, let us examine the clear meaning of it. This Author saith that the very reading it is sufficient to Gr. q. p. 41. convince any man that the Canons were the only cause of their absence. I will not deny but that it might him; but do not believe it hath Reason to force others to be of this mind: For, if two Laws were against them, to wit, the Canon-Law and [Page 193] the Common-Law, confirmed in Parlia­ment, 'twas not unusual for those sort of men to express which of them they had most mind to. But beside this, I find no Absurdity to affirm they took notice of both, though more obscurely of the last: by a Non licet to the one, by a de jure non possumns. to the other. 'Tis not law­ful for us at any hand, by the first, viz. the Canons, which are to us a greater Law than any other. Next, by the Law of the Land, de jure non possunius. Not that in it self our Presence in all Cases were un­lawful, if the Canons were not in the way. But there is also another Law which pro­hibits us from being present in those Ca­ses in which otherwise we might have thought it reasonable to have given our Assistance, who are no such strict Obser­vers of the Canons, when 'tis for our Ad­vantage to break them.

I might now proceed to the Examinati­on of his Iast Head; How far the Canon Law is at this day binding. But, because I would not leave any thing untaken no­tice of, he thinks fit to make use of for the strengthening his Cause, I shall speak something to what he farther urgeth.

He tells you out of Knighton, That this Gr. q. p. 53. Parliament was called Parliamentum sine Misericordiâ, and that many Circumstan­ces concurred, which might make the Lords willing to admit of their Protestati­on, because their business might proceed [Page 194] better against the King's Ministers. He need not have urged Inducements to per­swade the Lords to admit of their Prote­station, except he had first shewed they had Power to have refused it. But by this Inducement he insinuates, that the Bishops would probably have obstructed Justice against those wicked Ministers about the King. What the Accusation was, for which some of them were executed, I shall let you seek in the Historians of those times, being unwilling to rake into that Puddle any deeper. I shall therefore leave this Parliament and the mysterious Ca­nons, as our Author well calls them, and come to the Anti-Parliament to this, held Gr. q. p. 53. in 21 R. 2. where, as he saith, the King had a Mind to undoe what was done in Gr. q. p. 54. the Parliament in 11 R. 2. which Intenti­on, this Author saith, he had kept in his Mind ten Years, by being willing to let the Bishops be absent in 11. that he might have that pretence to Question in this Anti-Parliament, the things then done. An undecent Charge he lays upon the King, if it be well considered.

The Declaration, by help of the Bi­shops, that the King's Pardon granted in Parliament, in 11. was revocable by the King, was the Labour of his Ministers in [...] which those Ministers prevailed in [...] Measure; but their Actions, with [...] [...]cceeding Murther of the D. of Glo­ [...], the King's Uncle, bred such a [Page 195] Jealousie and Distrust between the King and his People, that I may call it the first Stone which left not rolling till it end­ed in the Ruine of that poor Prince, who continued not King much more than a Year after, and was soon after the De­privation of his Crown deprived of his Life also.

What Art was used to make that Par­liament subservient to their ends, I need not tell you. One of the first Attempts was (what I touched before) to make Pardons granted by the King in Parlia­ment, revocable at his Pleasure; in this the Clergy were very instrumental. After this, the Commons come to do their Parts, and they represent, that divers Judgments had been undone heretofore, for that the Clergy were not there pre­sent; and therefore pray they might ap­point some common Proctor, with suffici­ent Authority to that Purpose. From hence he infers two things:

First, That the Commons thought their Presence necessary, because Judgments had been undone for want of it: Therefore their Concurrence in Judgment was thought necessary to make a Judgment valid.

Secondly, That they should therefore make a common Proctor. This is strange Lo­gick: Their Presence was thought necessary, and Judgments undone for want of it; therefore, they ought to be present, I think, ought to have been the Conse­quent: [Page 196] but the Commons pray that in that respect they should make a Proctor. I should think now, the true Inference ought to have been, The Bishops and Clergy ought not to be personally pre­sent in Cases of Blood, yet because it is fit they should be represented, at least in some Cases, let them nominate a common Pro­ctor, to be in their stead; where their Con­currence is necessary. This is Sense, the other is contradictory.

'Tis evident by this Petition of the Commons, that matter of Blood was to be treated of; for there needed no Proctor for any other use, since themselves might have been present. And I think it very clear by the Year-book, in 10 E. 4. that when Issue was once joyned, 'twas their [...] E 4. 3 [...]. Duty to absent themselves. For, that Book is, that the Peer questioned may plead not guilty, and then the Bishops to depart; so that it is plain they were not to vote after Issue joyned, in matters of Blood. So Hakewell, in his Modus Tenend. pag. 84. before cited, saith, That to our days, when Question is had of the Attain­der of any Peer, the Bishops are to depart. Now I take the Law to be all one, what [...]ue is joyned in a Capital Accusation, so as there be any upon which the Court may proceed to Famination of the Cause, and to Judgment accordingly.

As to our purpose in the case of the [...] of Danby, he pleads the King's Par­don, [Page 197] the King's Counsel, or the Commons, demur. The matter then in Issue upon the Demurrer, is, whether the Pardon is good in Law; upon which, the Bishops, according to 10 E. 4. are to go out; be­cause, if the Pardon be found invalid, then must Sentence of Death be pro­nounced against the Criminal: for, I take the Law to be, That the pleading a Pardon in Bar upon an Endictment or Impeachment, is a Confession that all the matters contain'd in the Endictment or Impeachment are true, and he shall never be admitted to plead Not Guilty after­ward. But this by the way. Our Questi­on is about the Commons Petition, that they would make a Proctor, which being in matter of Blood, the Author of the Letter saith, was the only time; whe­ther this was Error temporis, as one saith, the Error of that time, or an inconside­rate rash Desire of the Commons, as ano­ther, is not necessary to enquire: for, it doth not appear, that any Capital Judg­ments had been reversed by reason of their Absence, so that their desire fails in the ground of it, if they meant of Capi­tal ones: for, the first Judgment against the Spencers was affirmed in 1 Ed. 3. and the Reversal made 15 Ed. 2. was made null; so that the Commons it seems were ignorant in that, and might be unadvised 23 H. 6. no. 41. inter Petit conn [...], and many others. in the rest, as they sometime have been. Beside, if he consult Sir Edward Coke in [Page 198] his 2 Instit. cap. de Asportatis religiosor. pag. 586. he doth well excuse the Com­mons Co. 2 Inst. pag. 286. in shewing that the Bishops were pre­sent at the Charge against the Spencers in 1 Ed. 2. so that the Commons might not know how far the Bishops were conusant of the thing, and looking only on the out-side, were ignorant of the Act in 1 E. 3. for the Discourser saith, there were no more.

No, replyes the Grand Questionist, not in his Study, but the Commons might know of more, for we have not all the Rolls. What then? This at best is but a Surmise, and the two Judgments against the two Spencers were enough to make their Allegation true, that divers Judg­ments had been reversed for that cause; though it be not to excuse their Igno­rance in not knowing that the first Judgment against them was revived by the Statute of 1 Ed. 3. And it seems strange to me, that he that had so much Reverence for the then House of Com­mons, should have so little Respect to the Opinion of both Houses now: for, the Commons unanimously voted, That the Bishops ought not to be present at any Debate concerning the Earl of Danby, or the Lords in the Tower, by them impeach­ed of Treason. Journ. of Parl. pag. 258. and 267. The Lords, about the same time, Iourn. of Parl. pag. 258. and 267. voted, That the Bishops were to go out when their Lordships proceeded to examine [Page 199] Guilty, or Not Guilty. This Author, with great Confidence, and little Respect, af­firms, they have right to stay till the definitive Sentence is to be given.

But, let me now admit that it was reasonable in the House of Commons to move that they might make a Proctor, and that the Bishops had also Right to nominate one in Capital Cases, yet cer­tainly, when they all absented themselves together, 'twas in their Choice whether they would make any or no; and con­sequently, their omitting it, as in 11 R. 2. could be no cause to reverse a Judg­ment, as the Commons alledged. The Reason is, as I touched before, because they take notice of the matter in Questi­on, by hearing the Accusation read, which is always done before they go away, which is enough to make any Act good, and to be said to pass by their Consent, because they voluntarily absent themselves, though with Allowance of the Lords, where their Presence is not lawful. Vid. Co. 2. Inst. de Asport. Relig. pag. 586. So that the Reason of the House of Com­mons Co. 2. Inst. pag. 586. was every way weak and unsound.

In the next place, let me examine what the Office of a Proctor is, being made.

It is plain by the Imperial Law, that a Proctor is in the Nature of an Attorney, to appear, and make Answer in the name of his Client, to such things as the Court shall think fit to demand; but never, [Page 200] by that, or any other, had he Power to over-rule or contradict what was the sense of the Court.

I have seen some ancient Precedents of Persons under the degree of Noble men, made Proctors by the Bishops; for which, consult Mr. Selden's Privil. of the Seld. Priv. Bar. p. 5. Hon. of Bishops, p. 27. Els. Mod. p. 16. Baron. pag. 5. Hon. of the Lords Spir. pag. 27. Els. Mod. pag. 16. But in all Cases I have met with, the ancient form runs thus. At the Parliament at Carlisle under Edward the First, the Words are, Ad consentiendum quod tunc ibidem per dictos Prelatos & Proceres contigerit ordinari. Another in Edward the First's time, in a Parliament at Westm. runs thus. Ad comparendum & audiendum pro nobis in hoc Parliamento tractanda & consentienda. So that their Power was but to appear and hear for them what by others were to be treated, and consented to. Ac­cordingly Mr. Selden saith, that in At­tainders upon Appeal, they made their Proctors for assenting in Parliament: I hear nothing of dissenting. Seld. Privil. Bar. Seld. Pr. o [...] Bar. p. 5. pag. 5.

Neither is it reasonable to believe; the Lords would suffer any Commoner to sit, and vote among them as Judg­es; neither do we read of any place where such a Proctor was to sit, having no right of his own to be there. If you will say he was to sit upon the Bishops Bench, and there to give his [Page 201] Vote, you give the Bishops Power, by their simple deed, to give place and vote in Parliament; which is as much as the King can do by his Letters Patents, and by which, the Patentee is enobled. Nei­ther is it just to think they could any way transfer a Right for others to judge for them, where themselves were prohi­bited to be present or judge.

It appears, that in the Parliament in Petit's anc. Rights. p. 62. Prin's Calender. p. 56. and 160. 49th. of Henry the Third, there were a hundred and twenty Bishops, Abbots, Priors, and Deans: 'tis not like there were many fewer in 21 Richard the Se­cond, who was not long after him. Can any one now think the Lords would suffer Thomas Percy to dispose of a hundred and twenty Votes? It had been much safer to have let the Clergy to have been personally present, than to unite in one man a power to over-ballance them all. I think it probable, for the Reasons be­fore given, that their Proctor either sate among the mean Officers, or that in those times the Lords and Commons sate together, and that this Percy was one of those that served for his Country. But against this is urged, that in Edward the Third's Time there were distinct Houses; though before that Time they might sit together. Sir Ed. Coke, Prin, and Coo. 4. Inst. cap. 1. p. 2. Vid. Rot. Claus. 12 E. 2. m. 5. dorso. Audley's Case judic. per Pre­latos Comites Barones, & totam communitatem Regni. yet no Act. Vid. hic p. 133. Vid. etiam Rot. Parl. 50. Ed. 3. n. 131. & 189. Cottoni Posth. f. 349. Eliz. Burgh's Case. [Page 202] others, are of Opinion, they sate toge­ther far in Edward the Third's Time: why may not that be extended to his Son Richard the Second, the exact time when they divided being not so exactly agreed upon?

I have before shewed out of Mr. Pe­tit, Rot. Parl. 2 Henry the Fifth, pars 2. n. 10. that the Commonalty have ever been accounted a part of the Parliament. I have also shewed out of Cambden, Sel­den, and others, that Baronagium com­prehended both Lords and Commons, and in all Histories of those Times you shall frequently meet with Concilium Ba­ronum, Baronagium, and the like. Mr. Selden tells you, Tit. Hon. part 2. chap. 5. no. 16. pag. 689. that the Burgesses of Seld. tit. hon. p. 689. some good Towns, as well as the Cinque-Ports, which still retain the same name, were called Barons. In the seventeenth of King John, dors. claus. memb. 7. Ba­ronib. Germuthae Gipswici Norwici, &c. Mat. Paris, Anno 1253. pag. 863. speaking of the Citizens of London, hath these Words, (being englished) Whom for the Dignity of the City, and the ancient Liberties of the same, we usually call Barons. Of this Identity of Names we can give no better account, than because they were usually joyned with the other Barons in great Councils, of which there were also two sorts. Gervasius Tilburiensis Ger. Tilb. Fitz. Mat. Paris. part 2. cap. 13. speaks of Barones majores [Page 203] and mineres. Fitz-Steph. cap. 11. menti­ons secunde dignitatis Barones. In the Mag. Char. of King Iohn, Mat. Par. Anno 1215. mentions a Summons to a Common Counsel of the greater Barons by the King's Whether this was meant of a Parliament or other Council, not material to this point, the Reason being the same as to meeting upon Summons to the one or t'other. Writ, and of other Tenants in Cap. which were Barones mino­res by the Sheriff, but all of them comprehended under the general Name of Barones or Baronagium; under which ge­neral Name, all meeting who had any Right to come, either as Barons or Free-holders, we have no reason to believe they did not all sit together in the same Counsel, whereunto they were summon­ed under the same Name. The old Mo­dus, put out in English by Hakewell, with his seeming Approbation of the Book, Hakewell. pa. 18. saith, in his Chapter concerning Cases and Judgments that are heard, that eve­ry degree might go by it self, and con­sider of it; by which it appears, they then sate together. 6 Edw. 3. Elsing. p. 96. and 99. saith, in two Parliaments they went apart, and in one gave Subsidies apart. The Case is in 50 Edward 3. where the cause of Summons being shew'd, the Commons were willed to withdraw to their ancient place, and consult among themselves, proves no more than that they had a place to go to when 'twas fit they should consult apart, not that they [Page 204] always did so; no more than it doth that the Prelates sate not among the Lords, because they sometimes went apart, and had a place to go to as well as the Com­mons. We know, that 7 Iacobi, when Prince Henry was created Prince of Wales, they all sate together in the Court of Requests, and may do again when the King pleaseth.

I have now done with this rather curi­ous than necessary Question, which I had not touched upon, had not Percy's place in Parliament given me occasion a little to search into it. Yet I think it not amiss here to insert the Prayer of the Com­mons, and the form of the Proxy, made by the Clergy to Sir Thomas Percy, in 21 Rich. 2. memb. 6. no. 9. as it is at large 21 R. 2. memb. 6. upon the Record, that the Reader may be able to give a rational Judgment both what his Power was, and how the Clergy were represented by him.

The Commons first pray the King, that whereas divers Judgments and Or­dinances before time, made in the time of his Progenitors, had been recalled and made null because the Estate of the Clergy were not present, Et N. B. 'Tis plain, by Clergy here was more meant than the Bi­shops only; for the Abbots were reckoned as part of the Clergy, I suppose. pour ceo prierent au Roy que pour surety de sa person, & salvation de son royaum les Prelates, & le Elergy ferroient un Pro­curateur avet povoir sufficient pour consentir en leur nome, a [Page 205] toutes choses, & ordonances a justifier en cest present Parlament, & que sur ceo chacun seigneur spirituel diront pleinment son avis. Sur quoy le dicts seigneurs spirituels commet­terent leur plein povoir generalment a un lay personne, & nomerent en especial Thomas Percy Chevalier, & sur ceo baillerent au Roy une schedule contenant leur povoir, la quelle nostre seigneur le roy receust & com­manda (le dit. Mardy) estre entre de re­cord, en rolle de Parlement de quelle cedule la form sensuit.

Nos Thomas Cantuariensis, & Robertus Ebor. Archiepiscopi ac praelati, & Clerici utriusque provinciae Cantuar. & Eborac. jure ecclesiarum earundem habentes jus inter es­sendi in singulis Parlamentis Domini nostri Regis, & regni Angl. pro tempore celebran­dis, nec non tractandi, & expediendi in eis­dem quantum ad singula in instanti Parlamen­to pro statu & honore Domini nostri Regis nec non Regaliae suae, ac quiete, & pace, & tran­quillitate regni judicialiter justificand. Vene­rabili viro Domino Thomae de Percy Mil. nostram plenarie committimus potestatem: ita ut singula per ipsum facta in praemissis perpe­tuis temporibus habeantur.

It is observable in this Prayer, the Commons recite Ordinances as well as Judgments, to have been made null by reason of the Bishops Absence, and com­prehended not Judgments alone. Now of what Latitude Ordinances were ta­ken, whether temporary, or otherwise [Page 206] look'd upon as Laws, is not very cer­tain.

Secondly, they desire such a Proctor as might have Power to confent to such things as should be done.

Thirdly, they naming a Lay-man who had no Right of his own to sit there, and giving the King a Schedule of their Procuration, was enough to make their Right be preserved to them without any explicite Consent by their Proctor, or perhaps his being so much as present at any Debate.

But I now proceed to observe how Gr. q. p. 57. ready our Author is to pick what Ad­vantage he can against the Author of the Discourse of Peerage, from the words by him quoted out of the Manuscript Hi­story written by the Abbot of Molros in Scotland, where the King of England sent Bishop Fox, as I remember, to treat with the King of Scotland, Iames the Fourth, Sir William Dromond's Life of Iames the Fourth. pag. 200. ult. Edit. in octavo. Discourse. pag. 20. then there, touching a Match between the Children of those two Princes. 'Tis a Book to be seen in some few hands, and writes of the Parliament in 21 R. 2. The Author of the Discourse, pag. 20. tells you, that that Manuscript Author blames the Prelates much for the Opinion they gave generally about the Revocation of Pardons: but in this, as in many other Authorities that make against him, our Author curtails the Words, and cites no more than makes for his turn. The [Page 207] Words at large are these: Dederunt ergo locum judicio sanguinis in hoc facto. Ita quod dubitabatur à pluribus si non incurrerent in poenam irregularitatis pro negotio memorato; unde contigit quod propter istud minus pecca­tum inciderent in aliud majus peccatum con­sequentur, ut laicam personam constituerent procuratorem pro iisdem qui illorum vice con­sentirent ad judicium sanguinis dandum in isto Parliamento si necesse foret & occasio emersisset.

‘The Prelates by this act of theirs gave Allowance or Countenance to Tryals of Blood; insomuch, that it was doubt­ed by many, whether they did not fall under the Penalty of Irregularity, by reason of the foresaid business: from whence it happened, that instead of that lesser Offence they fell into a greater by Consequence, in that they made a Lay-man their Proctor, who in their Room might consent to a Judgment of Blood, to be given in that Parlia­ment, if it were needful, or occasion had happened.’

I have translated dare locum fudicio san­guinis, to give way or Allowance to a Judgment of Blood; because it appears by the subsequent Words, he meant them so, The use the Author of the Discourse of Peerage makes of these Words, is to shew, that the Canons were not the on­ly Cause that hindred their presence in II Rich. 2. For then, when they had no [Page 208] Encouragement from the King or Lords, then they ought not at any hand to be present in such Cases: but here in 21. when they had any Allowance or Connivence as to the Laws against them, then the Canons were neglected altoge­ther.

His Inference seems to me rational and good. Oh! but saith the Grand Questi­onist, Gr. q. p. 57. they were present in voting the Pardon to the Earl of Arundel revocable. Under his Favour, I think he is mistaken, for the Book warrants no such matter, only tells you, that they gave a general Vote, that Pardons granted in Parliament were revocable by the King; by conse­quence whereof, some of those who were pardoned in 11. were executed in 21. which Votes, I hope might pass, though the Parties concerned were not present, and this meaning the book seems to en­force: For, first that Author saith, it was a doubt amongst many, whether that act did not make them incur the Penalty of Irregularity, which would have been none, had they personally by their Votes, revoked the Pardon granted to the Earl of Arundel. Secondly, he saith by ma­king a Proctor in that Case of Blood, they committed a greater Fault than the for­mer; but certainly, the making a Lay Proctor was not a greater Fault than actual Allowance, and personal voting in Blood, which that Author charges them with. [Page 209] Lastly, they made a Proctor at the be­ginning of the Tryal, as is manifest, and agreed by all; therefore the Crime charged upon the Clergy, could not but be before any Proceedings against any of the Criminals, except that prelimina­ry Vote which made them guilty of Blood in that Chronicler's Sense. In Conclusion, there was no Act to revoke these Pardons, but the King, it seems, caused Execution to be done upon his own Authority, and those general Votes in which the Clergy were present: so that after all this Attempt, the Authority of this MSS is against him.

But after all this, we have one help left, saith the Author of the Letter, for if this Action in this Parliament would do him any Service, the whole Parliament was repealed in I Henry the Fourth, and so no Authority to be laid upon it. I, but replyes the Grand Questionist, the Author Gr. q. p. 58. of the Letter admits that the three Hen­ries, Fourth, Fifth, and Sixth, were U­surpers, and therefore the Repeal of that Parliament void: I acknowledge the Author of the Letter saith so, but he is so to be understood as the Law is now ta­ken, not as it was then; for, we see Henry the Fourh in Parliament claimed the Crown as his Right, as being Heir to Iohn of Gaunt, fourth Son to Edward the Third; whereas the Title of Mortimer who was by another Parliament declared [Page 210] next Heir, arose by his Marriage with Philippa, Daughter and Heir to Lionel Duke of Clarence, who was the third Son to Edward the Third: but it was never before determined, that the Daughter of a third Brother should be preferred in Suc­cession to the Crown, to the Son of a Fourth. We see Maud the Empress, Daughter to Henry the First, could not be received Queen, though she attempt­ed, and sought for it, neither ever had we a Queen since the Conquest till that time. Nor can I divine how long it might have remained a Question, had not that Con­troversie been determined by the happy Union of both Titles in Henry the Se­venth, who married the Daughter and Heir of the house of York.

The next Question will be, how far Laws made by an Usurper generally re­ceived, and accepted by the People upon the resignation of the immediate prece­dent Possessor shall be esteemed valid.

I fear, if we make such Laws void, we must find some new way to make ma­ny of ours good till Henry the Second. Was not Robert eldest Son to William the First, alive till toward the latter end of the Reign of Henry the First, who about the eighth Year after he was King, de­prived him of his Eyes; after which, he lived a Prisoner twenty six Years? Wil­liam Rufus had no better Title than the Acceptance of the People, and his Com­position [Page 211] with his Brother Robert, who resigned his Title for 3000 Marks per an. Henry the First succeeds by Title no bet­ter, till Robert's miserable Death, which happened in the thirty fifth year of his Reign, and about a year before his death. After him, Stephen steps into the Throne, help'd by two powerful Friends, the Bi­shop of Winchester the Popes Legate, his own Brother, and the Bishop of Salisbury his great Friend, and this in the Life of Maud, Daughter to Henry the First, and his own Brother Theobald, whose Title, though bad, was better than Stephen's, they being both Grand-children to Willi­am the first, by Adela his Daughter, mar­ryed to the Earl of Blois. But for this great favour, and their breach of Oath to Maud, he promised great Immunities to the Church, and amongst other, that Clergy-men should not be bound to answer to secular Courts. But by our Author's Logick, this Concession was void, and the Clergy had no reason to complain, because the old Law was revi­ved at Clarendon. At last, to sodder all, a Composition was made, that Henry, Maud's Son, should have the Crown after Stephen's death; which was performed by her Consent, Maud being then alive, who having strugled for the Crown as much as she could, was at last contented with this Composition, which was the on­ly legal Title King Stephen had, and [Page 212] no more voluntary in Maud than was that of Richard the Second. But at length Maud dyes, and Henry the Second and his Son Richard the first, enjoyed the Crown in their just Rights.

After their Death, Iohn comes upon the Stage, in the Life of Arthur his elder Brother's Son, so that here we have ano­ther Usurper; after whose death, and the death of Arthur, Henry the Third had a good Title, whose Descendents enjoy it to our Time; for the Quarrels between York and Lancaster were not about the Line, but the Persons; insomuch, that till Henry the Third, the best Title to the Crown was the Acceptance of the People, and particular Compositions with those who had the greater Right. Come we nearer home, to the time of Henry the Seventh, who after the Death of his Mo­ther, and his Marriage with the Daughter and Heir of Edward the Fourth, was rightful King. His Eldest Daughter was marryed into Scotland, from whom, our present King enjoys his Crowns, upon an unquestionable Title. We will now come to his Son, Henry the Eighth: he had two Daughters, Mary and Elizabeth, the first by Katharine, his elder Brother Arthur his Relict; the second by Anne of Bullein, born in the Life of his first repudiated Wife Queen Katharine. Ma­ry was by Act of Parliament declared a Bastard, as born within unlawful Espou­sals: [Page 213] Elizabeth after the Disgrace of her Mother, was served in the same kind, yet we see both of them successively enjoyed the Crown by virtue of another Act which entailed it upon them, with the approbation of the people; where­as, otherwise the true Right would have been in Mary Queen of Scots, our pre­sent Sovereigns great Grand-mother. I might pursue this Theme through France, in the case of Hugh Capet; See Sir Hen. Wot­ton's Inte­rest of the Princes of Christend. this Que­stion touched upon. through Spain, in the family of the D. of Medina Celi; and at present in Portugal, but I will not go out of our own Kingdoms; and have said enough to make it manifest, that Laws may be made or repealed by such Kings as are in Possession, by Composition or Resig­nation, with the acceptance of the Peo­ple, else our unwary Author hath laid a foundation to overthrow or weaken, not only most of our Laws, but most of the Laws of Europe.

Over and above all this, if the Laws of Henry the fourth, fifth, and sixth, were not good, why did not the Nobility made in that time, get new Charters of Creation in Edward the fourth's time? Nay, what became of the whole Hierar­chy? Many of the Prelates and inferiour Clergy, must of necessity be consecrated by those that were no Bishops, and con­sequently, their Consecration and Orders by them conferred, were void, and all [Page 214] our subsequent Clergy, who derive their Authority from those who had no le­gal Right, extinguished; a thing, in my Judgment, worth consideration to such as would avoid Laws made by actual Kings, though their just Title might be disputed.

His mentioning Oliver rather deserves pity for his Inadvertence, than any other Answer: for, he cannot but know, out late King chose rather to loose his Life than resign his Power; that he never had quiet Possession, but a Prince always strugling against him; nor had he the acceptance of the People, or any thing but force to buoy him up, which after his Death fail'd in his next Descendent. By what I have said, it may appear to any equal Judge, that the Laws made 1 Henry 4. were good, notwithstanding his pretended Usurpation. And as to the thing it self, that the Bishops Absence in cases of Blood doth not make a Judg­ment given, void, appears plainly by the Case of the Earl of Salisbury, in 2 H. 5. who petitions that a Judgment given against the Father, might be reversed, and assigns for Error, that the Bishops who were Peers of the Realm, were not present; and upon full hearing and de­bate, it was adjudged no Error. Now I appeal to this Author, whither he can think that my Lord and his Counsel were so stupid, as not to urge what they [Page 215] could think of for the advantage of the Earl, and the Clergy; for whatsoever other faults might be laid to the charge of his Parent, the cause appears to be turn'd upon that hinge: by all this we may well conclude, that the Lords in that Parliament did not hold the Bishops such Peers as ought to be allowed Judges con­cerning the Life and Death of Noble-men. This Judgment our Author hath not thought fit to take notice of, which might be equivalent to error temporis, for it was either ignorantia or neglectus rei. But he tells you, Edward the fourth re­pealed all again, in which he is mistaken; for, Edward the fourth repealed nothing but what concerned the Title between York and Lancaster, with some Charters to others.

I come now to his third head or point, Gr. q. p. 64. Whether supposing that the Bishops ab­sented, as he contends, only upon the ac­count of the Canon-Law in the times of Popery, whether those Laws do continue in force now since the Reformation: he thinks they do not. In this I shall be very short, and against his Reasons, which are rather Surmises than other, I shall re­turn direct Authorities of Judges, and Lawyers in point.

First, he saith the Canon-Law was grounded upon a superstitious fancy, that to be present in Cases of Blood brought upon them Irregularity, and hath there [Page 216] a large Digression upon the Unreasona­bleness of the Canon-Law, in many par­ticulars. I shall easily yield, that many of the Rules brought upon the Church by the Papacy, are full of Hypocrisie and self-ends, but do not think that our Bi­shops did first forbear from bloody Try­als about Lanfranks time, as if this Canon had been unknown in England till then, almost 700 years after the first Council of Toledo, for Sir Henry Spelman reckons that Canon to be Anno Christi, 400. and William the first came in Anno 1066. And Spel. Coun. tom. 2. p. 8. in this first Council, this Canon is cited: but it is more reasonably referred to the eleventh Council of Toledo, and the sixth Canon, which expresly forbids their Con. Tol. 11 Can. 6. medling in Blood; 'twill yet be about 500 years before Williams Time. It is there­fore more probable, that their forbearance in those Cases proceeded not from any thing brought in by Laufrank, but was received here long before, from their obe­dience to the Apostolick Canons, which did not only forbid their medling in Blood, but in all secular Employments; and were carefully observed till Constantine's time, who flourished in the year of Christ 323. 'Tis likely enough, that the Liber­ty then taken by the Clergy was restrained in Spain by that Council. And if our Author please to observe it, till they came to be corrupted by Covetousness and Ambition, their chiefest Employ­ment [Page 217] was to make Peace between their Neighbours, as Chancellors and Arbi­trators, rather than as Lawyers and Judges. In earnest, whoever shall con­sider the intricacy of the Laws of Eng­land, as they are called the Common-Law, will rather believe, when they sate as Chief Justices, if ever they did so, their Seats were among others better versed in the Common Laws than themselves, and they sate rather to di­rect what was equal according to the rules of Mercy than according to the rigorous balance of Justice. This cer­tainly was their Office when they sate with the Earl in the County-Court. Mr. Lambert in his Laws of Edgar, cap. 5. hath these words:

Celeberrimus autem ex omni satrapiâ Lamb. Laws Ed­gar. cap. 5. conventus bis quotannis agitor cui quidem illi­us diocesis Episcopus, & Aldermannus inter­sunto quorum alter jura divina, alter jura humana populum edoceto.

Here you see the Bishops Office was only to teach the People the Divine Law, as the Earl or Alderman did those of the Land.

His next Suggestion is, rather a Con­jecture than a Proof; to wit, that this Gr. q. p. 67. Canon was never received, (contrary to himself before) or that if it were recei­ved it was in diminution of the King's Prerogative, and so repealed by the Sta­tute of 25 H. 8. cap. 19. He might as See the Provisos in the Acts. [Page 218] well have said, That all the Ecclesia­stical Laws, as of Tithes, Marriages, probate of Wills, and other Faculties now exercised in the Ecclesiastical Courts, are against the King's Prerogative, and therefore void. What Success an At­tempt of that Nature lately had, he may easily call to mind.

But let me bring into his Remem­brance, what the Statute made in the same Parliament, 25 H. 8. cap. 21. hath in the Preamble of it. 25 H. 8. cap. 21.

‘Whereas his Majesties Realm re­cognizeth no Superiour under God, but only his Majesty, hath been, and is free from Subjection to any mans Laws, but only such as have been de­vised, made, and ordained within this Realm for the Weal of the same, or to such others as by the Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent, to be used among them, and have bound themselves by long Custom to the ob­servance of the same; not as to the observance of the Laws of any foreign Prince, Potentate, or Prelate, but as the ancient and accustomed Laws of the same by the said Sufference, Consents, and Customs, and none otherwise.’

We see here, the Sense of the whole Parliament, That such Laws as had been used and accustomed, should be [Page 219] look'd upon as the Laws of the King­dom, and not of any foreign Prince or Prelate. Now let him tell me, what Laws were common to us with any fo­reign Prelate, except the Ecclesiastical and Canon-Law, which having been here used, are acknowledged a part of the Laws of the Land by Usage and Sufferance of the People. So that we have now a whole Parliament, that they did not look upon these as against the Kings Prerogative, and so null as this Author would have it; but fully confirmed as part of the English Law. Agreeable with this is my Lord Coke in Cawdrey's Case, lib. 5. 32. b. It is, says he, Resolved and enacted by authority of Par­liament, Co. lib. 2. 32 b. that all Canons, Constitutions, Ordinances and Synodals provincial, that have been by common Use allowed, shall be of force, and not to be taken away, but by Act of Parliament.

Now himself confesses that the Ca­nons are against him; then may I well conclude, that the Law is against him, since all Canons then in use, are part of the Law at present.

Page 68. He tells you, the Sanction Gr. q. p. 68. of this Law, which was Irregularity, is now ceased, and that some of our most learned Judges have declared, that is ta­ken away by the Reformation.

First, I am to learn, that Irregularity was the Sanction of the Law: I always [Page 220] understood, that the Sanction of a Law was the matter established by it, obedi­ence to which, was required under the Penalty of Irregularity; but I will not stand upon that, which if true, would open a door to disanul all Laws made under a Penalty, by pardoning that. But the fore-going Statute of 25 H. 8. cap. 21. clearly shews, that all Canons accustomably used, are still in force; Who hath then taken off the Penalty? If no body, then their forbearance in Cases of Blood ought still to be observed in obedience to them. Of this opinion were the Parliament, both Lords and Commons, in the Case of the Earl of Strafford; whom this Author is pleased Gr. q. p. 57. to honour with the name of a Cabal; as also, the Proclamation to call in my Lord Keeper Finch, who was then fled; both which, were done in the Absence and after the Bishops were withdrawn, and after William, Bishop of Lincoln, had given his opinion they ought so to do, and are taken notice of by the Author of the Letter, pag. 51, 52, 53. and by him very materially observed, that that Proclamation against my Lord Finch, was drawn by the Judges, by order of the Lords Temporal, after the old Parli­amentary way: from whence it is easie to infer, that it was the old Parliament­ary way, for the Judges to draw up such Proclamations, by Command of [Page 221] the Lords Temporal, and that the Clergy medled not in those matters. To all that hath been said to this pur­pose, he hath either given no answer, or what makes against him. He tells you, that my Lord of Canterbury was first named in Commission for the Tryal of the Queen of Scots. This signifies little; for here he was only a Commissioner, but no Judge in Parlia­ment. Secondly, That though the Queen could not dispense with the Law in general as to all Individuals, yet to any one she might, and the express na­ming him a Commissioner, might a­mount to a Dispensation. Thirdly, though the Arch-bishop was named, yet he was not present at the Tryal; Whitgift was then Arch-bi­shop. Cambd. An. Anno 1586. and Baker, 391. whose Names you may see in Cambden's Annals, anno 1586. and therefore the Canon was observed: for, what other reason could be given for his refraining that Service, but because by it he might have become irregular. I shall add one or two Authorities more, and so conclude the point. Arch-bishop Abbot in King Iames his time hunting in one of his own Parks, shooting at a Deer, by an unfortunate Glance of his Ar­row, kill'd his Keeper: much Debate there was, whether this Act had made him irregular; and that it did so, was strongly argued by Williams, Bishop of Lincoln, then Lord Keeper, who said, [Page 222] that by the Canon-Law then in force, he was ipso facto irregular. Here you see the Canon-Law was then deemed in Rush. hist. Col. part p. 61. force, and Irregularity to be by it con­tracted. At last, Commissioners were appointed to examine the business, whose Names you may see in Rushworth, both Divines, Civilians, and Common Law­yers. After a full Debate, they agreed he was not irregular; for this was no Crime, and therefore by Law could not contract Irregularity; for, by Law the Arch-bishop was allowed to hunt: this accident being only Chance Medley, could not bring any Guilt upon him. But there was not the least Doubt made of the Canons being in force, and that Punishment might be inflicted upon the Breakers of them. Baker's Chron. pag. 446. who being then a man Baker. pag. 446. of good Age, made this Relation upon his own knowledge.

This may serve in Answer to his Reflection upon Dr. Oates, that he hath Gr. q. p. 69. incurred Irregularity by his Discovery of the Horrid Plot, not yet fully exa­mined, for this Discovery was but his Duty; so far was it from being a Crime, that it deserved, and hath already found some Reward from his Majesty.

Of the same Opinion was Arch-bishop Laud, with the rest in the Star-Cham­ber, in the Censure of Dr. Leighton; Rush. hist. Coll. part 2. pag. 56. where Arch-bishop Laud would not suf­fer [Page 223] any corporal Punishment to be in­flicted upon him until he was first degra­ded, nor his Ears to be cropt in St. Paul's Church-yard, because the Ground was consecrated; now Degradation and Con­secration of Places, are the Fruits of the Canon-Law. Lastly, one Madie was in the High Commission Court Pas. 4 Car. 1. Rush. com. 2. App. p. 15. declared irregular, and deprived for the same, having first, as was alledged, preached after Suspension. By all which it plainly appears, that Irregularity may be incurred at this day; and therefore those Canons not against the King's Prerogative, nor consequently, taken away by the Act of 25 Hen. 8. but that Irregularity may still be contracted by the breach of them.

I have now done with his two first Chapters, which contain the sub­stance of his whole Book, and have shewed;

First, that it is not clear that Bishops were Barons, otherwise than by Appel­lation; that they were never enobled in Blood; that no Instrument can be produced what Baronies were annexed to their several Possessions, whose Bi­shopricks have the Title common to other Noblemen; as Lincoln, Carlisle, Bath, Worcester, York, and others, which is not usual, that one should be Duke or Earl, and another Baron of the same place, beside the superfetation of Baro­nies, [Page 224] by dividing one Bishoprick into se­veral Baronies. But, that it is much more reasonable to believe that their Tenure in Cap. by Baronage Service, which was imposed upon them as a bur­then, not an honour, might cause them to be called to Parliament as Barones mi­nores, lesser Barons, but not left out at the King's Pleasure, as the lesser Barons were, because they were to summon the Clergy to Convocation.

Secondly, I have made it apparent, that the Convocation is properly the third Estate in Parliament, of which they constitute the upper House, and not other than a part of a third Estate among the Lords.

Thirdly, Admitting they were a third Estate in the Lords House, entire as some think, there could be no co­lour for their Tryal of a Noble-man, who is a Member of another Estate.

Fourthly, the Canons of the Council of Toledo, were not the first cause of their absenting themselves in cases of Blood.

Fifthly, I have vindicated the Parlia­ment at Clarendon from all his Excep­tions, and made it very plain by the natural construction of the Words, as well as by the Interpretation of his own Author Fitz-Stephens, they are not to be present at any Consultations or De­bates, where the end may be Blood; [Page 225] and that the Proceedings in the Council at Northampton make fully against him; as also, his Fancy that the Bishops had Right to be present till the definitive Sentence concerning Blood was to be gi­ven, is against the Opinion of both Houses, in the last Parliament.

Sixthly, I have shewed that the Pro­testation made 11 Richard the Second, if it were not a Law, was a solemn Confession by themselves, that the Ca­non-Law was against them, and fur­ther given great Probability that there was in it respect had to the established Law of the Kingdom.

Seventhly, I prove that the Canons are still in force, that they are a part of the Law of England, and not to be annulled but by act of Parliament, and that Irregularity is not taken away by the Reformation.

Lastly, I have given clear Answers to all his pretended Authorities and Reasons urged in his second Chapter, and shewed, that they are either not to the Purpose, or misapplyed, or against him.

I should now come to examine his Precedents in his third Chapter, and assert the manner of Tryal of Bishops by common Juries, but that is fully done by the learned Author of the Discourse of Peerage; and for Prece­dents, if there were any, as I think [Page 226] there are not yet, the Law being a­gainst him, they would signifie little. Yet, least he should think himself ne­glected, I shall in the next Chapter take them into Consideration.

CHAP. III.

I Will not be long in the Examina­tion of his Precedents; because, in my Opinion, the Lords in the last Parliament have determined the Con­troversie. For, our Author contends, that the Bishops have Right to be present till the definitive Sentence comes to be given, and longer if they please, for he sets them at Liberty. Now the Lords in their explanatory Votes, Gr. q. p. 32. made May 15. 1679. have declared, That the Bishops have Right to sit in Journ. of Parl. pag. 258. Court till the Court proceed to the Vote of Guilty or Not Guilty. Tho' this their Lordships have now admitted be a Liberty greater than, I think, their Predecessors ever enjoyed, who in Cases of Blood went out at the be­ginning, yet this Vote takes from them Vid. Hake­well mod. p. 84. all Power Judicature as Peers to the Lords, for it gives them no Liberty to pass any Vote, but only allows them to [Page 227] sit as Spectators, but reserves the Judg­ment to themselves.

I perceive this Author is not willing Gr. q. p. 70. to give much credit to the Relation of Brompton, touching what he report­eth of the King's appealing Earl God-win of the Death of his Brother. I will not concern my self in this mat­ter, it being before the Conquest, and a Story in which the Relaters much dif­fer; some say 'twas at the Table, others in Council (why not in both?) next his Appeal is to the Earls and Barons. I wonder our Author doth not say that the Bishops were here meant by Barons. For if there were then no Ba­rons, some others must be compre­hended under that name; and not long after, our Author tells you, the Bishops were comprehended under that Name in the case of Hamel. Vid. Leg. Quaere What that Word then meant. Edvar. conf. cap. 8. & nono de decimis & apibus, where the Name Barons is used before the Conquest. I will not give overmuch credit to this Relation of Brompton, the rather, because William of Malmsbury looks upon it as a Romance; for he saith, Rumigeruli spargunt, Croni­ca tacent. Yet perhaps Brompton's Au­thority may go hand in hand with Fitz-Stephen. But, admitting the Story had some Truth in it, his Endeavour to prove the Bishops present, is not un­pleasant. Gr. q. p. 73.

[Page 228] He tells you, after the Conversion of Ethelbert, they were never absent in any Councils of the Nation that were Pub­lick, and that there was then no Canon to be afraid of; for the Council of Toledo was brought in by Lanfrank some time after. First he assumes a Negative, they were never absent; which cannot be pro­ved, except by one who had lived all those times. Next he tells you, they had no Canon to be afraid of: it seems they lived then without Rule; I do not believe this Author would have them do so still. Thirdly, he saith that Council of Toledo (take the first or the Gr. q. p. 74. eleventh, the last of them about five hundred years before) was first brought in by Lanfrank. I think the substance of that Council was observed before, but not established as a Canon till the Synod at Westminster, of which I have spoke before.

The Story of the Arch-bishops con­demning Queen Emma, might be as true as that other of Godwin, and both Romantick: but however, he tells you, the Bishops did certainly sit in the County-Courts at all Judgments. What their Office was in those Courts, I have told you before out of the Laws of Alfred: as also you may find the same in Sir Henry Spelman's Gloss. verb. Comes. pag. 140, 141. where he at large dis­courses Spel. Gloss. word Co­mes. p. 140. 141. of the Causes to be tryed in [Page 229] those Courts, and tells you they were only for the ease of the Poor, and things of small value; and that the great and powerful men had their Tryals in the Kings Courts; and more to the same purpose, which the Reader may peruse if he see good: and in part are tran­scribed by the Author of the Letter. pag. 108, 109, 110. Now let any man judge whether the Opinion of Sir Hen­ry Spelman, or his Conjecture of Capi­talia placita, and the Legend of Saint Cuthbert, be of most Credit. The Au­thor of the Letter tells you, that no Capital Crimes were triable in the County-Court.

But our Author tells us out of the Laws of Edw. the Confes. set out by Henry the first, mention is made of Ca­pitalia placita, cap. 31. The Title of the Chapter is, De Capitalibus Placitis. The words follow:

In summis & capitalibus placitis unus Hundredus, aut comitatus judicetur à duo­bus, non unus duos judicet. Sic inter judi­ces studia diversa sunt, ut alii sic alii ali­ [...]er fuisse tendunt vincat sententia melio­rum & cui justicia magis acquieverit. In­teresse comitatui debent Episcopi Comites, & caeterae potestates qui dei leges, & se­culi negotia justâ consideratione diffiniant. Recordatione curiae Regis nulli negare licet alias licebit per intelligibiles homines placiti, & nemo de Capitalibus placitis testimonio [Page 230] convincatur, &c.—Unusquisque per pares suos judicandus est.

In this obscure Law there is nothing at all that sounds like a Tryal in Cri­minal Matters, except our Author will say, that in such Cases no man shall be convicted by Witnesses, when there is no other way to try matter of Fact, except his own Confession: for, the Words are, that no man may be con­victed by Testimony. Next, it is plain, Summa, and Capitalia placita are joyned together, one explaining the other; so that I conceive nothing more is meant than considerable Cases, where the mat­ter in Law was dubious to the Judges, who were not one Bishop, and one Earl, but Bishops, Earls, and other great men, and the Judgment was not to be given according to the major, but of the better Opinion of such as were the Judges. The Records of the Court were not to be denyed to any man, (others it seems might) by under­standing men concerned in the Cause. The meaning of the Law I take to be, that Cases of Right might be tryed here of any Value, but criminal Cases were not medled withall.

I remember not to have read any where, that Capitalia placita had that Signification our Author suggests; Placita Coronae, Placita Parliamentaria, and Pla­cita Communia I have met with; but [Page 231] Capitalia Placita, for Placita Capitalium criminum, is new to me. However the meaning of that be, yet the Manu­script Life of Saint Cuthbert, as to the thing it self, will help us out. He tells you (it may be with as much Truth as Brompton) that one Hamel the Son of Earl Godwin, being imprisoned by the Earl of Northumberland, his Friends earnestly interceded with the Earl, that he might not loose his Head. Here in­deed we find a man imprisoned by an Earl, Application made to the Earl in his behalf; no mention of a­ny Bishop, any Tryal, or any farther Proceeding in the business: but the Tryal, and the Bishops Presence at it, are both supplyed by our Author, who hath proved neither, or produced greater Proof than the Authority of a loose Legend, and that lame too: and yet upon this he triumphs, as if Gr. q. p. 74. the Point were clearly gained, when there is nothing of what he would have made good by him. Is it not now a thousand Pities, that so well Gr. q. p. 77. sounding Words, so well put together, should signifie nothing?

The next Precedent our Author takes into Consideration, is that of Ni­cholas Segrave, cited by the Author of the Letter, pag. 55. by this Author, Lett.. p. 55. Gr. q. p. 76. pag. 76. which he would evade, by [Page 232] supposing the Bishops might be com­prehended under the Name of Magna­tes, or Counsellors, and shews, that some of the Bishops were probably then of his Counsel. For a clear Answer to these Surmises, I shall give you shortly the whole Case, as you shall find it at large, inter placita Parlam. 33 Ed. 1. Ri­ley, pag. 266. Pla. Parl. 33 Ed. 1.

Nicholas Segrave had Summons by the Sheriff, and the Command of the King, to answer to such things as should be objected against him, and to hear, and stand to what the Curia Domini Regis, to wit, the Parliament, considera­ret in praemissis.

Segrave upon this Summons, Venit in pleno Parliamento in praesentiâ ipsius Do­mini Regis Arch. Cantuariensis, & plu­rimorum Episcopor. Comitum, Baronum, & aliorum de This Consilium Regis I take to be that steddy Counsel that always attended the King at his Parliament, though perhaps not always Members. Consilio Regis tunc ibidem existentium.

Nicholas de Warwick (perhaps the King's Atturney) accuseth him of ma­ny and great Crimes, which he offers to prove. Segrave confesseth all, sub­mits to the King de alto. & basso, Et super hoc Dom. Rex volens habere avi­samentum Comitum Baronem, Magnatum & aliorum de consilio suo injunxit eis­dem [Page 253] in Homagio, fidelitate, & ligeantia quibus, ei tenentur quod ipsum fideliter con­sulerent qualis poena pro tali facto sic cog­nito fueri infligenda. The Comites Ba­rones, Magnates, &c. adjudge him wor­thy of Death. After this, the King pardons him, and orders him to put in seven Sureties, and to render him­self a Prisoner at the King's Command, and to be accountable to the King for the Issues of his Land, held in his own or his Wifes Name: This, in short, is the Case of Segrave, in which it is very clear, that at the Accusation the Bishops were present, as of Right they might be, but at the Tryal they are omitted. Now to suppose them comprehended under a general Name, and out of Order, who were particular­ly expressed when their Presence was lawful, is both unusual and unreasona­ble: unusual, because it is against the See Coo. 2. Rep. Arch. Cant. Case. Divers Ca­ses to that purpose. Rule of Law, to comprehend the greater after the Nomination of the lesser; and so to take the Bishops un­der the name of great Men who are constantly first named, and were so here at the Beginning. Secondly, 'tis un­reasonable to make a different Constru­ction of the same Words in different Cases or Laws: now we know that in the Statute de Asportatis Religiosorum, the Words are Comites, Barones, Mag­nates, [Page 254] where we know the Bishops were not comprehended under the Name Magnates, nor ought to be here; and to suppose the contrary is against the Current of all Acts of Parliament and Records. By the Magnates, and alii de Consilio were meant the Judges and other Counsellors at Law, whose Advice the King required, as was very just and usual in those times. 'Tis likewise ob­servable, that the Word Consilio is writ­ten with an (s) which shews, those Counsellors he advised with were not necessarily Members of Parliament, for then the Word would have been writ­ten with a (c) Concilio.

His remarkable Precedent of the D'Spencers, will stand him in as little Gr. q. p. 79. stead; in the Reign of Edward the Se­cond they were both condemned, and the Exilium Hugonis D'Spencer is to be seen in the old Natura brevium. Those Judgments were afterward reversed at York, in 15 Edward the Second; but in 1 Edward the Third, the first Judg­ments were affirmed, and so they were look'd upon as condemned Persons, which continued (though themselves were dead) for above seventy years; til by the prevailing Party, in 21 Rich­ard the Second, that Act was again called in question, as void, in regard the Bishops were absent: and the Bi­shops [Page 255] desired to make a Proctor by the Commons, which they accordingly did; but at last, through their exorbi­tant Proceedings, that whole Parlia­ment was repealed in 1 Henry the Fourth. To this I have largely spo­ken before, to which I shall refer the Reader, with this farther Advertise­ment, that in troublesome times things are not always carryed as they ought to be; wherefore, we are not always to look at what was, but what ought to have been done: neither are we to be governed by seeming Precedents, such as sometimes, as in the Case of Ship-money, may be produced against Law.

I have before made it manifest, that the Canons of the Church long before Lanfrank's time forbad Clergy-men to meddle either in Blood or secular Em­ployments; neither is it reasonable to believe the Laws of this Land were different from the general Rule incum­bent upon all Clergy-men to observe, especially when we see the Immunities granted them by King Stephen were so early recalled by Henry the Second, and the Constitutions then made at Claren­don, look'd upon as the ancient Customs of the Nation; insomuch, that the Dis­courser had very good reason to say 'twas the common Usage, which is the com­mon Law of England.

[Page 256] Pag. 88. Our Author comes to the Examination of those Records urged Gr. q. p. 88. against him: and his Exceptions in ge­neral are:

First, That they are Negative, the Bishops were not present at Tryals of Blood, therefore they had no Right to be present.

Secondly, They were sometimes ab­sent when they were not prohibit­ed, therefore their Absence was volun­tary.

Thirdly, they are sometimes com­prehended under the Name of Peers, or Grands, and therefore may be com­prehended under those Names when the Name Prelate is not expressed.

If this Author can be driven out of these holds, I shall believe he may fairly quit the Field, without any Disho­nour.

I shall begin with the Tryal of Ro­ger Gr. q. p. 88. Mortimer, in 4 Edward the Third, but we must fetch our Judgment from what was done in 28 Edward the Third; where, upon the desire of Roger Wig­more, Cousin, and Heir of Mortimer, that Attainder was examined, and all the Proceedings repeated; and upon the whole matter, the King charges the Earls and Barons, the Peers of the Realm, that for as much as these things principally concerned him, and them, [Page 257] and all the People of his Realm, that they would do such Right and loyal Judgment as was fit for such a Person to have. The Words upon the Re­cord are, ‘Le Roy vous charge Counts, Barons, les Pieres de son Royaum que de si come cestes choses touchent principal­ment a luy, a vous, & a tout le peuple de son Royaum que vous facies, au dit Roger droit, & loial Iugement come at­tient a un tel d'avoir.’ Which said Counts, Barons, and Peers of the Realm, returned and gave their Judgment, &c. The Words are, the King charges you Counts, Barons, the Peers of his Realm, not as our Author renders the Words, Earls, Barons, and Peers of the Realm, as if Peers were there distinct from Earls and Barons, when the Words im­port no more than who were those Peers, to wit, the Earls and Barons: therefore the Author of the Letter had reason to say the Bishops were not there who were left out in the refe­rence made by the King, whose Words are, To the Earls and Barons, the Peers of the Realm. Now if the Que­stion be asked who are those, must not the Answer be, the Earls and Ba­rons? So that the Bishops must be comprehended under the Names of Earls and Barons, or not at all. From whence it will follow, that this Nega­tive [Page 258] is something more than a bare Negative, we may at least call it Nega­tivum praegnans, a Negative big with an Affirmative: for it is first told, who were those Peers. Secondly, to whom those Judgments belonged. Chiefly to the King and them, and consequentially, to all the Kingdom: and whatever the Practise is now, I think it not hard, to prove, that anciently no Judgment, or very rarely any by the Lords in Parlia­ment, was complete in criminal Cases, or Execution done till it was ratified by the King; yet, that I may render all possible Right to the Bishops the mat­ter will bear, I would easily grant that (if they were at all summoned to that Parliament) they might be present whilst the Proceedings against Mortimer were in reading, but went away when the Lords proceeded to the considera­tion of what Judgment was to be gi­ven against him, which was enough to give them knowledge of the matter in Agitation, and as much as was requi­site to make them Parties, according to the Opinion of my Lord Coke be­fore cited.

I said (if they were summoned) because in many ancient Parliaments I cannot find they had any Summons at all, as in 49 Hen. 3. 23 Ed. 1. 28 Ed. 1. 1 Ed. 2. 16 Ed. 2. and 6 Ed. 3. but after that were [Page 259] never omitted: so that 'tis probable e­nough, that they were not summoned in 4 Ed. 3. who were left out in the sixth year of the same King. But, in this I will not be positive, because it may be the Rolls have been lost.

Pag. 94. He takes a more exact view of Gr. q. p. 94. the Case of Mortimer in 4 Ed. 3. and pres­seth strongly to have it allowed, that the Judgment against Mortimer, and some others, was by Act of Parliament, because the Reversal of it in 28 E. 3. was by Act: and therefore, saith he, we may justly suppose, that the Judgment against them was ratified in Parliament: beside, some Historians say, he was condemned Iudicio Parliamenti, and his own Petition is, that the Statute and Judgment may be rever­sed and annulled; and from this infers, that if the first Judgment was by Act of Parliament, and the Bishops not there, then they might not be present in their Le­gislative Right; and if they were there, then this Negative way of Argument proves nothing, that is, they de facto were not there, therefore de jure they ought not to be there. This I confess is subtle, but not solid; 'tis all grounded upon no greater Authority than Supposition. First, the Reversal was by Act, therefore the Judgment was so too; this doth not fol­low, for many Judgments in Parliament may be reversed by Act of Parliament [Page 260] which were not so pronounced. His second Conjecture hath as little weight, because some Historians say it was by Judgment in Parliament, therefore by Act, because it is not a Parliament with­out the King, and Lords, and Commons; for, except this be his Argument, it is of no force at all; for it might be, and doubtless was, by Judgment in the Lords House, which in ordinary Speech was called Judgment in Parliament; nay, how often doth himself infer the Presence of the Bishops from the Words, Full Parliament, when the Commons were not concerned, and indeed, meant no more than a full House. Lastly, Wigmore desiring the Statute and Judgment might be reversed, proves as little: for, every thing ordained that is Statutum is not pre­sently an Act of Parliament though eve­ry Act be Statutum. Beside, I do not find Statutum in the Record, but only the Word Judgment used; so that for ought appears from our Author, the Bishops might well be absent at the first Judg­ment against Mortimer, and not compre­hended under the Name of Peers. They have less reason to think themselves in­cluded under the Name of Barons, if we well consider the words of Petrus Ble­sensis, who living in the time of Hen. 2. well knew both what Honour they had, and what they pretended then to: whose Words are;

[Page 261] Quidam Episcopi Regum munificientias, & See before p. 18. in the Edition in Quarto. Pet. Bles. [...]. edit. p. 551. col. 1, 2. in fol. Idem p. 552. col. 2. Eleemosynas antiquorum abusivè Baronias, & regalia vocant, & in occasione turpissimae Servi­tutis seipsos Barones vocant. Vereor ne de illis quereretur Dominus & dicat: Ipsi regnaverunt, & non ex me, Principes extiterunt, & ego non cognovi scias te accepisse Pastoris officium, & non Baronis, &c. Vacuum a secularibus oportet esse animum—Modis omnibus cu­ra ne secularibus te involvas; Pet. Blesens, edit. ult. p. 551, 552. By this learned Arch-Deacon in his Tractate de Institutione Episc. you may be satisfied that he did not be­lieve that Bishopricks which arose from the Bounty of the King, or Alms of the Peo­ple, were ever erected into Baronies by the King, but abusively or wrongfully so called by themselves, who being charged with the Service by the King, had a mind to attribute to themselves the Name, since they did the Service. For, he saith, they did abusively or wrongfully call their Pos­sessions Baronies, and Royalties, and them­selves Barons, both blaming, and threat­ing them from God for so doing, and invol­ving themselves in Secular Matters. This Author flourished in the time of Hen. II. ancient enough to know the truth, and how they were look't upon in those days. Moreover, I do not find it can be made appear, except conjecturally, that they were ever present, where they were not first named. The Honour of their Function makes them be called before Dukes and [Page 262] Earls, and being by that reason Pralati, le [...] no Man deprive them of their Right, and by Post-Position make them post Lati. Lastly, This Person being executed in Cot. p. 85. 4 Edw. 3. as appears by the Record in 28 E. 3. Cot. p. 85. without any Accusation or Answer, makes me believe, the Bishops being Men of Piety, would not by their Prefence countenance so illegal a thing, tho they had had Right, without entring their Protestation, manifesting their dislike of it; neither do I believe their Spirits so hum­ble to suffer a Post-Position of their Titles.

But this whole matter, will I conceive, be better cleared, if I shall acquaint the Reader with something more concerning this Roger Earl of March, than hath yet come to this learned Person's Knowledg. In 5 Edw. 3. the very next Year after the summary Judgment was given against Mortimer and Matrevers, a Commoner, at the Complaint of the King, we find inter 5 E. 3. m. 33. Brevia Baronibus direct, 5 E. 3. m. 33. penes rememorat Dom. Regis in S [...]cio; that those Judgments were per Comites, Barones, & alios Pares Regni, not a Syllable of the Prelates; nor can the word alios take them in, since in the whole current of Records, the Prelates were never placed after Earls and Barons. And the alij Pares, were either such as might be extraordina­rily summoned (an usual Practice) at that time, or they were the Barons Peers, viz. Barones Minores; besides, the succee­ding [Page 263] words clear the Point. For there was in 4 E. 3. an Agreement, and Concordia Rot. Parl. 4. E. 3. n. 6. made by the Lords and Commons, that such Proceedings should not for the fu­ture be drawn into Example, to judg Com­moners to death upon Summary Articles, without any Concurrence from them. Now this Concord was made by the Temporal Lords, not by the Prelates, but per nos & Pares praedictos nec non Communitatem Regni in eodem Parliamento. Now in 4 E. 3. the 5 E 3. ubi su­pra. Reference was made to the Earls, and Ba­rons; the Peers, to whom of right such Judgments belonged, and no Prelates com­prehended, and here they are called Pares praedicti.

Add to this, Rot. Parl. 13 E. 3. Numb. 8. Le grant des Graunts, where an Aid was N. B. Cotton Abridg. Counts and Barons by Lords, as [...] often does. granted to the King, then in war with France. The Record saith ‘Les Countes & Barouns esteantzen dit Parlement Granteront pour eiix & pour leur Peers de la terre qui teignent per Baronie la desme garb, la disme tuzon, la disme Aignel de touts leur demaig­nes Terres.’ Now if the Prelates were understood by the word Peers in this place, then it must be granted that the Earls and Barons taxed the Prelates, who always taxed themselves, and the inferiour Clergy in Convocation: But the succeeding words will clear the matter, which run thus in the same Record: Et pour ceo quil fu aviis as Prelatez Countes Barouns & autres Graunts [Page 264] que pour les ploite des besognes, &c. the Record is touching a speedy Supply to the King. Here we see where the Bishops were con­cerned, they were named, which shews they were no more comprehended under Peers before, than under the word Magna­tes in this Clause. I could multiply Re­cords to this purpose, and am confident, no clear Example can be given where they were necessarily comprehended after Counts and Barons.

The next Authority he quotes to wea­ken the Authority of those he calls Nega­tive Gr. Qu. p. 95. Precedents, is the case of the Murther of Iohn Imperiall, a publick Minister sent from Genoa.

This Case I conceive, is not truly stated by the Author of the Letter, and mis­applied by the Grand Questionist. The Point in question in the Record was, what Offence the Murther of this publick Mini­ster was? which matter was referred to the Judges for their Advice, who agreed that it was Treason within the Statute of 25 E. 3. This their Judgment was confir­med in Parliament, whilst the Doubt was in Agitation among the Judges, 'twas not material who was there. But after they had given their Sense, what was meant by this Confirmation in Parliament, is the next Question: Whether more were meant than an approving of the Opinion given by the Judges, by them drawn up in form? [Page 265] and this may well be the meaning of that whole Proceeding, which Practice is usual in our days, but cannot be called a Judg­ment in Parliament, tho it might be their Opinion. But if you will rather believe it to be by Act of Parliament, then must the Commons be Parties, of whom we hear no mention, nor any Statute to that pur­pose extant that I can find; and in that Case the Bishops might have been present if they would, and whether they were or not, is not material. Vid. Cot. 3. R. 2. N. 38. p. 183. Yea in Acts of Parliament, when the Sentence comes to be given, they are to withdraw, as it was held by Mr. Edward Bagshaw, a learned Reader of the middle Temple, who for some Opinions by him held touching the Bishops, was by the Power of Arch-bishop Laud suspended from proceeding in his reading. Rushw. Hist. Coll. Tom. 2. p. 990.

The next Precedent is in 5 E. 3. Which Gr. Qu. p. 89. in conclusion, will do him as little Service as the former. The Author of the Letter pag. 7, 8. tells us, that that Parliament was summoned for redress of the Breach of the Law, and the Peace of the Kingdom; and the Record saith further, that 'twas to consult touching Lands in Guienne, and the Marriage of the King; in which the Bi­shops went away, and returned no more. I confess, I know no reason but they might have staid, it seems they thought other­wise, [Page 266] being in all likelihood privy to some Actions to be treated there, wherein Sen­tence of Blood might be pronounced. But be their reason what you will, their words are these. Et pour ceo que avisefust a les dits Prelates qu'il nattient proprement a eux de Counseiller de la gard de la paix, & de chastiment de tels malvois s'allerent mesmes les Prelates. Which words do not only import that they voluntarily went away, but that it did properly behove them not to be pre­sent in such matters, or to give Counsel for the Punishment of such Crimes. The same word is used in 1 Hen. 4. Cot. p. 392. where the King by the mouth of the Arch-bishop Cot. p. 392. of Canterbury, declares that the Commons in that Case were only Petitio­ners, and that all Judgments belonged to him and the Lords; belonged, that is, the Commons had no Right thereto; so here nattient proprement is that properly they had no Right thereto. That all Judg­ments belonged to the King and Lords, is only an Affirmation of the Arch-bishop, but binds not the Commons: See Posthu. Cottoni, p. 350. For I think it very plain, that anciently the Commons, as well as the Lords, had their share in Judicature. I shall touch some Records which the Rea­der may consult at leisure; Rot. claus. 12. E. 2. m. 5. in the Case of Hugh Audley and his Wife Margaret, the Relict of Pierce Gaveston; they petition'd to be restored to [Page 267] certain Lands given to Pierce, A nostre Sig­nure le Roy, & son Cons [...]l Prelatez, Countes & Barons del' sa terre: the Petition was brought into full Parliament and de­bated, habito dilige [...]i tractatu in ple­no Parliamento, tam per Pr [...]latos quam per Comites, Barones, & totam Commu­nitatem Regni Concorda [...], & Consideratum; 'twas ordained, considered, and agreed, per Praelatos, Comites, & Barones, & tot [...]m Commu­nitatem Regni, that all the King's Grants to the said Pierce, Peter, and his Wife; should be revoked, and the Deeds cancel­led. Et quod istud Iudicrum intretur in Rot. Parliament, & in Cancellari [...], & exinde [...] ­iur in scaccarium, & ad utrum (que) Bancum, to be enrolled. Nothing can be plainer than that this was a Judgment, and no Act of Parliament, and that not concerning Blood, the Prelates concurred, and that probably both Houses sate, and voted together as one Body.

I shall add one Record more in a Capital Case, and that is entred, Rot. Patent. 3 E. 3. pars prima me. 33. The Case of A­dam Orleton, or Tarlton Bishop of Here­ford, and after of Worcester. This Bishop Rot. Claus. 1 E. 3. m. 13. pro Episc. He­reford. was about 17 E. 2. convicted of Treason before Sir Henry Staunton, and other Justi­ces. In 1 E. 3. he petitions that the Process and Record, in which there was Error, might be brought into Parliament and ex­amined, and he restored to his Estate. Prae­textu [Page 268] hujus petitionis mandatum fuit (by a Writ) Galfrido de Scroop (who had the Record) quod venire faceret recordum, & pro­cessum praedicta quae sunt in custodiâ suâ in ple­uo Parliamenio, where after he had assign­ed several Errors, the Record concludes; Et quia videtur Dom. Regi praefatis comitibus, Proceribus Concilio Dom. Regis, & toti Com­munitati Regni convocatis ad Parliamentum quod praedictum recordum & processus omnino erronea sunt rationibus praedictis concessum est quod eadem recorda, & processus adnullen­tur, &c. This was clearly a Judgment in Parliament, in which the Commons were certainly present: and that it was not an Act, appears plainly, for the Record was certified, and Errors assigned; and 'tis worth observation, that he did not assign for Error, that he was before convicted by a common Jury, but admitted it legal. Next, I think the Prelates were not Parties to the Reversal of the Judgment given in 17 E. 2. for it is coram Praefatis comitibus Proceribus, &c. though they were at the recital of the Errors; neither is it much material, for they might very well be Parties to the Examination of a Judgment in a Capital Case; for whether they con­curred either in affirming, or reversing the Record, that made them no Parties to the first Judgment, but is only a Concurrence in Opinion, that what before had been done by others, was well or ill done by them. [Page 269] I could cite many other Records where the Commons were present in Parliamentary Judgments, but let these suffice.

But this may seem too large a Digressi­on, since I was upon the consideration of 5 E. 3. in which I say,

Secondly, It doth not appear that this was an Advice taken up by themselves; for the words are not (fust avise par eux) or ils furent d'avis, it was thought fit by them­selves, but are (et pour ceo que avis feust a eux) that is, because Advice was given them by others to go away, they absented them­selves probably in Obedience to those Laws which forbad their Presence: And they returned no more, saith the Author of the Letter, p. 8. and the Advice was given by the Lords Temporal only: No, saith the Grand Questionist, p. 102. The Bishops Gr. Qu. p. 102. and Proctors of the Clergy went only into another Room to consult therein, which was usual in those times. I do not at all doubt but the Members of Parliament have several Rooms to retire to upon occasion: but that in this Case, they did go apart to consult, and give Advice in this Business, seems very unreasonable for any one to be­lieve, because N. B. The King's going to the holy Land was then in debate, touching which, the Bi­shops might well consult. they had but immediately before declared, that the Consideration of such matters properly belonged not to them to meddle with, and accordingly withdrew: certainly no considerate Man will think they went to consult about what [Page 270] they in the same Breath said belonged not to them. Besides, we see the return of the Lords and Commons, without any menti­on of the Bishops, and the Advice given by them by the mouth of Sir Henry Beamont (their Speaker) which Advice was after­wards put into a Law, and then the Prelates might be present, tho they were not at giving the Advice. For the Record saith, It was enacted by the King, Bishops, Lords, and Commons, which then became a Law, to which the Prelates might justly give their Consent in their Legislative Capacity, whatever it concerned. Where note, that Sir Robert Cotton translates Grands, Com­mons, I think with good reason, though carp't at by Mr. Prin in the Margine, for we heard nothing of them before, and Matth. Paris p. 55. Magna­tes comprehen­dit Comes, Ba­ro, miles, seu a­liqua alia no­tabiles Perso­na: Vid. Mr. Pe­tyt, p. 101, 94, 95. soon after we find them named, and un­doubtedly concerned in all Proceedings be­fore: See Matth. Paris p. 55. Magnates, Grands, comprehends Counts, Barons, Knights, or any other considerable Person, together with many others which would be endless to quote.

Having before shewed, that what our Author calls negative Precedents, were not simply so, and that the Author of the Letter had great reason to believe them ab­sent where they were not named, and where the Laws forbad their Presence, especially having on his side the Authorities of 4 E. 3. Numb. 1. of 1 H. 4. Numb. 80. where the [Page 271] Temporal Lords assume unto themselves N. B. The Abridger often translates Counts and Barons in the Record by the name of Lords, only because when the Bi­shops were meant Lords Spiritual, or some word e­quivalent was expressed. Rush. Hist. Col. part 2. p. 55. the power of judging Peers, which Opini­on is also made good by the late Votes of the Lords in Parliament, May 15, 1679. By the Case of Dr. Leighton in the Star-Chamber 6 Car. 1. It is evident that the Prelates were not look'd upon in the same sort that the Temporal Peers were; for the Information against him was for wri­ting a scandalous Book against the King, Queen, Peers, and Prelates, where Peers and Prelates are contra-distinguished, and not taken synonymously, as may be gathered by the Sentence, and being another Body, were judged as Peers to one another, not to the Temporal Lords.

I come now to the Consideration of what he saith pag. 90. he there alledges that ma­ny Gr. Qu. p. 90. of those the Author of the Letter calls Negative Precedents, if they prove any thing, prove too much: for some of them admit they were not present when they might have been; others, that they were present, when by his own Rules, they should have been excluded, either therefore the general words where they are not mentio­ned, do not enforce their Absence, or that they oughtto have been excluded at some other Trials, where the Author of the Let­ter admits they were, or might have been present. The chief Case he instanceth in, is that of Michael de la Pool Chancellour of England, who was accused of many Mis­demeanours [Page 272] by the House of Commons, and as (I think he would infer) such as Thorp Chief Justice, was found guilty of, be­ing Capital: where the Author of the Let­ter saith, the Bishops were not present, yet allows them to have been present in the Case of this Chancellour, a parallel Case, as he saith, with that of Thorp: either therefore, saith our Author, they might have been present in the Case of Thorp, or they should have been absent in Trial of Pool. This is his Argument, as near as I can ga­ther out of his Words, put together some­thing N. B. Though there were no particular Im­peachment a­gainst Weston and Gomenes by the Com­mons, yet the general one being the deli­vering Forts and Castles, was Treason; at the Exami­nation of which, the Prelates ought to be absent. Vid. Gr. Qu. p. 92. obscurely.

I need give no other Answer to this, than to lay before you the words of the Re­cord.

This Accusation was exhibited by the Commons in 10 R. 2. against Michael de la Pool, Lord Chancellour, in full Parliament, before the King, Bishops and Lords, and six Articles were objected by them against him. The first was, That he purchased Lands of the King of great value, whilst he was Chancellour; the other five, as the Record saith, were only Quarrels, and of little concern.

To the first, and most considerable, the Chancellour put in a fair Answer; the Commons reply, and urge things to the utmost, and amongst other things, say, That whereas by the Popes Provisions, a Person was recommended to the Priory of St. An­thonies; [Page 273] he, the said Chancellour, would not suffer him to be admitted till the Grantee had contracted to pay to the Chancellor, and his Son 100 l. yearly: and then paral­lel this with Thorp's Case, and would have had the Chancellor in the same fault with Thorp, for Bribery as a Judg, and conse­quently incur the same Judgment. The Chancellor replies, and shews great diffe­rence between the Cases. Upon the whole matter, Judgment was given against him, pursuant to the Accusation for Misdemea­nours only, in which the Bishops were, and might be present; and the parallelling it with Thorp's Case, was only in the Manage­ment of the Cause by the Commons, and no part of the Accusation.

Neither is it reasonable to believe that which our Author asserts in the same Page, Gr. Qu. p. 90. that the Prelates were free Agents, and might withdraw at some times, and be present at others, as they saw cause. For beside that, this is contrary to the express Law of Clarendon, which expresly declares that 'tis their duty to be present in all Pro­ceedings in Curia Regis, which in that place must be understood of the Parliament, be­cause they were to be present with the other Lords, tho I know that Curia Regis, is sometimes taken in a more laxe Sense; for all the Courts in Westminster are the King's Courts, and unto which they were to give Obedience and Attendance in Cases [Page 274] not prohibited. I say, over and above, this Act at Clarendon, it seems to me very unreasonable to suppose, that such a Body of Men had liberty to give their Attendance when they pleased, without leave of the House, or cause shewed why 'twas fit they should be absent, or that the Author of the Letter meant more when he saith, they might have been present, than that they were not prohibited by the Law of Clarendon, which only had Relation to Matters of Blood. But these Men had other Canons to go by, when they thought fit, as well as those of Toledo, and 'tis pro­bable enough, that the rest of the Noble-Men, finding them most constant Factors for the Pope, were willing enough to let them be absent upon any colourable Pre­tence when they desired it. Is not one clear Precedent against them in point of greater weight, than many dubious, and equivocal ones; which cannot without great Art, be wire-drawn to speak to their advantage? Let him consult the Discourse of Peerage, pag. 17. The Case of the Earl of Northumberland, 7 Hen. 4. Rot. processus Rot. Proces in Parl. cor Dom. Rege in Parl. in 5 Hen. 4. This Noble-Man came into Parliament, and con­fessed before the King and Lords, that he had done against his Allegiance, in gather­ing Power and giving Liveries; this Fact by the Lords, was adjudged no Treason, for which he gives Thanks to the Lords [Page 275] his Judges, and a day after, the Commons do the like, where the Prelates are named, as our Author affirms, and to which I shall speak by and by. But in 7 Hen. 4 the same Earl was in actual Rebellion in the Gr. Qu. p. 117. North, and his Forces dispersed by the Earl of Westmarland; but he, and the Lord Bardolf fled into Scotland, the rest were most of them taken Prisoners. This Case came into Parliament, where the King commands the Lords Temporal, Peers of the Realm, to advise what Process to make, and what Judgment to render against the Earl of Northumberland and Lord Bardolf. Nothing can be plainer than that the King look'd upon the Lords Temporal as those Peers who were proper to give Judg­ment touching their Fellow Peers, who had fled from Trial in a case of Blood: The Record goes on; the said Lords ad­vised thereupon, and gave Counsel to the King: Then the said Lords, Peers of the Realm, by assent of the King, order sum­moning the said Lords to appear at a day given, or to stand convicted by Award of the Peers in Parliament. The King farther demanded the Opinion of the Lords Temporal touching the Arch-bishop of York, who was in the same Treason. The Lords Temporal, by the Assent of the King, and by their Authority, declared, and a­warded the said Earl, and Lord, to stand convict of Treason, for not appearing [Page 276] upon Summons. 'Tis very clear, that this whole Business was transacted by the Lords Temporal without the Bishops, and with the Concurrence of the King. 'Tis not to be believed that the Bishops would have sate quiet, had they thought themselves wronged in these Proceedings: See the Discourse of Peerage, pag. 17, 18. I think it hardly possible to find a more clear Re­cord in the Point than this is. First, here were two Noble Lords defeated in actual Rebellion, and fled from Justice into Scot­land. The King upon this, would not so much as consult with his Prelates, knowing them by Law no proper Counsellours a­gainst Peers in matters of Blood, applies himself to his Lords Temporal, they order Proclamations by order of the King, en­joyning the said Lords to appear at a day certain, or to stand convict; they not ap­pearing, are by Award of the Lords Tem­poral convicted of Treason; and a Year after, one is slain, the other mortally woun­ded at Bramham-moor in York-shire. Can any thing be more agreable to the Practice at this day against Men that fly from Justice, and are convicted for non-appea­rance? He must have a new way of rea­soning, who considering that in 4 E. 3. the Earls and Barons are declared those Peers, to whom such Judgments belong; that in 5 E. 3. the Prelates declared, that in a Case where Blood might be, it be­longed [Page 277] not to them to be present; that in 7 R. 2. the Temporal Lords were only con­cerned in a Case where the Accusation was Treason, with many other Cases, that in 1 Hen. 4. the Lords are declared Judges in such matters; that in 2 Hen. 4. in a like Trial or Judgment, the Temporal Lords are all named, who were the Judges; that now in 7 Hen. 4. the Temporal Lords are again declared Judges, and after all this, that the Prelates should be deemed proper Judges in Cases of Blood upon bare Surmi­ses, and no direct Proof, seems to me to savour of a Man wedded to an Opinion which he resolves to maintain; when at last, tho Precedents confirm what the Law is, 'tis that must determine the Contro­versy. This I say in Relation to what Mr. Hunt objects. This Precedent may in Gr. Qu. p. 95. part, serve to give answer to those Argu­ments drawn from the Identity of Names, to the Identity of Right. The Bishops saith the Grand Questionist are sometimes comprehended under the name of Grands, Seigneurs, and Peers; therefore their Right is equal to all others who enjoy those Names: How he attempts to make this good, we shall see anon. But first, let him consider how weak a way of arguing this is; we know nothing is more equi­vocal than Names. Many are called Lords, who had once that Name, as Embassadors, Chief Justice, &c. or such whose Fathers [Page 278] are Dukes; so Earls Eldest Sons, yet are indeed but Commoners: so Baronagium comprehends all the whole Parliament; Barons there are of the Cinque-Ports, of the Exchequer, and of some chief Towns, as I have noted before from Mr. Selden: so we are not to judg the Right from the Appel­lation, but govern the Appellation by the Right.

The first Precedent he urges is, pag. 96. where in 4 E. 3. an Act passed for Trial by Peers, Cotton, Numb. 6. 'Tis agreed un­to by the King, and all the Grands in full Parliament, that tho the Lords had tried some, who were not their Peers, upon Accusation by the King in a summa­ry way against Law, it should be so no more. If the Bishops were here compre­hended under the Name of Grands, so were the Commons too, if it should be an Act of Parliament; will he hence infer, See before p. 131. the Re­cords there ci­ted, that the Commons have an equal Right with the Lords because they all are called Grands?

Who were esteemed Grands or Magna­tes, see Matth. Paris, in Anno Dom. 1100. Matth. Paris Anno 1100. Rot. cl. 3. E. 2. m. 16. in dorso. Inhibitio ne qui Magnates, viz. Comes, Baro, Miles seu aliqua alia notabilis Persona, &c. Here you see under Magnates, are taken Earls, Barons, Knights, or any other Per­son of Rank. So Milites Comitatuum, [Page 279] and Barones quin (que) portuum, are called Magnates inter com. brevia de term. sctae. trin. Sct. Mich. An. 34. E. 1. penes rentem. Dom. 34 Edw. 1. thesaurarij in Scaccario; he that desires more, let him consult Mr. Petyt's Learned Discourse of the ancient Rights of the Commons, pag. 93, 94. and in sundry o­ther places. I think therefore I may safe­ly conclude this Point: That where Grands are named alone, there not only the Bi­shops, but the Earls, Barons, Judges, and Commons might be comprehended, but where the Grands are mentioned after the Earls, and Barons, there the Bishops who ought first to be named, shall never be taken in secondarily, and by Implication. Neither is it any thing to our Question, whether it were for their Honour to be absent in some Cases, as he intimates, pag. 100. in the Case of Roger Mortimer, Gr. Qu, p. 100. but what the matter of Fact was.

Pag. 112. He would comprehend the Prelates among the Peers, because in 4 E. 3. N. 3. The words are, ‘All the Peers, Counts and Barons assembled in Parlia­ment, upon strict Examination, do assent, and agree, that John Mautrevers is guilty of the Death of Edmund Earl of Kent.’ Here he would infer that the Prelates were present at the Examination of that Capital Crime, under the name of Peers, because at that time, there were no Dukes, nor [Page 280] others of Superiour Degree to Earls; but See before p. 131. he doth not consider, that the word Peers, in this place, doth only denote who those Peers then mentioned were [Peers] viz. Earls and Barons, not Bishops, as before Magnates, viz. Comes, Baro, Miles, &c. As when we say a Noble-Man is to be tri­ed by his Peers, we understand only those that are truly so, and not others that some­times may be called so; this is much clea­red by the Record 2 Hen. 4. N. 30. The Lords Temporal by the Assent of the King, N. B. The Iudgment may well be given after the Parties are dead, an hun­dred Examples may be given, where their Bones have bin burned, their Bodies hang­ed, &c. con­trary to what Mr. Hunt thinks. adjudged Thomas Holland late Earl of Kent, Iohn Holland late Earl of Huntington, 2 H. 4. N. 30 and others, Traitors; this Judgment was after the Parties were dead, and but the second Successor after Edward the third. Why did not now the Prelates come in and claim their Right? Certainly they would have done it, but that they knew the Law and Practice was against them; what else is material in this Chapter, hath been taken notice of by the Author of the Letter, and others; so that it needs no further Ex­amination: and I may safely conclude, that where the Prelates are not named, they are not understood. Now that in this case, the Bishops could not be meant by the word Peers, is very plain from the Record it self: For the fore-named Iohn Mautre­vers being not in hold, the said Peers do pray our Lord the King, that search should be made for him throughout the Realm; [Page 281] and a Reward promised. Now if the Bi­shops were meant by the word Peers alone, for Earls and Barons are named, witness the Peers, Earls and Barons; then by Pari­ty of Reason the said Peers should be meant only of the Bishops, as if they alone had made the desire for the Apprehension of the said Matrevers, and the Earls and Ba­rons had been unconcerned, which is ab­surd: See 4 E. 3. Mem. 3. N. 3. Seld. Ba­ron. p. 13. 4 Edw. 3.

Our Author concludes his third Chapter with the Case of Henry Hotspur, the eldest Son of the Earl of Northumberland, who for having levied War with others against the King, was declared a Traitor (being before slain in Battel) by the King and Lords in full Parliament: this was upon Friday the 18th of February; upon the same Friday, upon that Case, and the Petition of the Earl Father to Henry, and Examination of his Cause by the Lords as Peers of Parliament, to whom such Judgment belonged (for the King would then have referred the whole matter to the Judges) he was de­clared innocent of Treason, or Felony, but only finable for Trespass at the King's Pleasure: for which the said Earl gave Thanks to the King and Lords, for their rightful Judgment, and also at the same time purged upon his Oath the Arch-bishop of Canterbury, the Duke of York, and other [Page 282] Lords, who were suspected to be of the Confederacy with the said Henry Hotspur, alias Percy. This was the work of Friday the 18th of February; on Saturday the 19th, the Commons give Thanks to the Lords Spiritual and Temporal for the rightful Judgment they had given as Peers of Parlia­ment, 5 H. 4 from N. 12, to N. 17. This is the whole Case as to Father and Son. Now 5 H. 4. N. 12. to 17. whether the Bishops were present at all these Proceedings, and how far, is the Question. The Grand Questionist contends they were present at the Proceedings both against the Father and the Son; at that against the Son from the word, full Parlia­ment, which he seemeth to infer, must in­clude the Bishops; and at that against the Father, from the Thanks made by the House of Commons the next day after the acquittal of the Earl.

First, as to the Son: It appears plainly by the Historians of those times that he was slain in the fourth Year of the King, in the life-time of the Father, who soon after broke out into Rebellion, so that at the time of Henry's Death he was only a Com­moner, and consequently not to receive any Judgment in the Lord's House alone, nor could he be made a Traitor other­wise than by Act of Parliament; so that the word full Parliament, must either refer to some particular Act of Parliament made [Page 283] in his Case, in which the Bishops might be present, and the Commons concur, or else the Proceedings were wholly irregular and contrary to their own Agreement, in 4 E. 3. Now from an illegal Act, no Right can be concluded.

As to the Earl himself, we find him sud­denly after in open Rebellion, defeated, and escaped into Scotland with Lord Bar­dolf, and convicted of Treason by the Temporal Lords, for not appearing upon Summons, and all this within two Years after. Now can it be reasonable to think that the Bishops were present at the ac­quittal of this very Lord in 5 H. 4. who were not present in 7 H. 4. which was but two Years after, nor were present at a like Case in 2 H. 4. N. 30. against the Earl of Holland, and others, which was not three Years before? Neither can any weight be laid upon the Thanks of the House of Com­mons, which was only matter of Comple­ment, and performed at another time when the House was assembled upon other matters, but seeing them there, might ex­tend their Thanks to them also, who though they could not contribute, did no­thing to hinder the Clemency of the Tem­poral Lords towards the Earl; besides, at the same time it was accorded by the King, and Lords, upon the Desire of the Com­mons, that certain ill Officers about the King should be discharged, in which the Bishops [Page 284] might be Instrumental, and very well de­serve Gr. Qu. p. 119. the Thanks of the Commons, at which Desire of the Commons, they might assist, and be absent at the rest.

The Precedent of Iohn Lord Talbot will not avail him; he exhibited an Accusation against the Earl of Ormond for certain Treasons by him committed; this Accusa­tion was in the Marshalsea before the Earl of Bedford, Constable of England. The King, to put an end to this matter, doth by Act of Parliament make an Abolition, and Discharge of the said Accusation, and Discovery. The words are, That the King by the Advice and Assent of the Lords Spiritual and Temporal, and the Commons, made an Abolition of the said Detection. Whoever denied the Bishops Consent in a Legislative way? and had it been otherwise, the Commons could not have been, I think, regularly concerned. 2. H. 6. N. 9. 2 H. 6. N. 9.

The Precedent of the Duke of Suffolk in 28 H. 6. I thought to have passed over, being a Case as irregular in the Procee­dings, as unjust in those that put to death that unfortunate Man. Much Art was used by the Court to have preserved him from the Envy of the People. A Parlia­ment assembled at Westminster, after dis­missed into London, then prorogued to [Page 285] Leicester; that dissolved, and another cal­led at Westminister, in which the Duke ap­peared, which exasperated the Commons against him. But upon the whole Record it appears that no Issue was joyned; for after Articles exhibited by the Commons, and his denial of them, March 14, at the least of the eight first, and giving some Answers to others on the 17th, he was sent for again, and the Chancellour acquainted him, that he had not put himself upon his Peerage, and now asketh him how he would be tried; who instead of pleading, put him­self upon the King's Order, who caused him to be banished for five Years. By all this it appears, here were no judicial Proceedings, which could not be before Issue joyned: so that although the Bishops were present at the reading of the Articles; yet this can be no Precedent to entitle them to be pre­sent in judicial Proceedings in Capital Cau­ses, for here were none at all in this Case, and till Issue joyned, the Bishops are not bound to withdraw. Neither ought it to seem strange that the Viscount Beaumont should make Protestation in the name of the Lords Spiritual and Temporal against these Proceedings, which they finding to be extra-judicial in very many Particulars, they did not know, I mean the Bishops, as well as some of the Lords, what Con­struction might be made to their Preju­dice: for sometimes they met in one [Page 286] place, sometimes in another, and not always in the Parliament-House, to con­sult of this Business. Besides, many things pass sub silentio, which being questioned, would not have been allowed: these Ob­servations being added to what hath been said by the Author of the Letter, seems to me a full Answer to this Precedent, in which the Protestatio is only Protestatio Viz. The Fact was not by their Advice, which they de­sired to have entred. facti, not Iuris. I have thus put an end to the Examination of this third Chapter, and fully considered all his Arguments, and Precedents, and come now to a view of his fourth and last Chapter.

CHAP. IV.

IN this Chapter our Author hath em­ployed Gr. Qu. p. 121. all his Art to assert the Peer­age of the Bishops, and that they make a third Estate in Parliament, in what sense they are called Peers; as also that the entire Clergy, met in Convocation, make a third Estate, I have largely shewed before, and shall not now re­peat. I admit they are sometimes cal­led Lords Spiritual, tho not so before Rich. II. but Prelates or the like, Peers of the Realm, Peers in Parliament. If by that Appellation you would make them Equals to the Nobilitas Major, I think they never were, yet have they many Privtledges in respect of their Seats and Episcopal Dignity in the Lords House; and, by reason of their most honourable Profession, have all of them Precedence to Barons. I admit also that the Clergy is really a third Estate; and that the Bishops, in respect [Page 288] that they are the Head of the Clergy, may sometimes in ordinary Discourse be called so, but are in truth never so exclusively to the rest of the Clergy, they all making but one Body, or third Estate, fully represented in Convocati­on, as I have sufficiently, I hope, made appear, pag. 19, 20, &c. of this Dis­course. As also that they had the Ap­pellation of Barons and Peers, not that they really were so, which must have enobled their Blood, but in respect of their Tenure in Capite sicut Baroniam, or, per Servitium Baroniae, and for the most part so called by themseves only. Our Author's Suggestion, p. 151. that they sit in Parliament in a double Ca­pacity, Gr. Qu: p. 151. as it is new, so is it not solid. He saith, when they sit in the House in a ju­dicial way, they sit only in the Capacity of Temporal Barons; and that this ap­pears by the Constitution of Clarendon, where the King requires their Atten­dance as his Barons: But that in their Legislative Way, they have a farther Ca­pacity, as representing a third Estate in Parliament, I say this Fancy is new; for I do not believe any before him look'd upon them as representing a third [Page 289] Estate in Parliament: and not repre­senting it, I know they have been said to sit in respect of their Possessions, which are Temporal in their own na­ture, but not so when given Deo & Ecclesiae; but that they sate in any other Quality than Spiritual Persons, I ne­ver heard, nor can conceive. Me­thinks if they have a Capacity to sit in the Quality of Temporal Barons, they should also have a Capacity to change their Spiritual Robes, and put on Temporal. The Constitutions of Clarendon, he saith, require their At­tendance in Judicature as his Barons; and from thence would infer they sit in the Quality of Temporal Barons. But how doth this follow? I hope they may sit as Spiritual Barons. But when all is done, this Allegation of his is not sincere, for the words are, Debent in­teresse judiciis curiae Regis sicut caeteri Barones; or, cum caeteris Baronibus; that is to say, 'tis their Duty to be present in Trials in the King's Court with the other Barons, or as the other Barons are there present; which words are far from inferring that they sit there in the Quality of Temporal [Page 290] Barons (no more than the Judges) rather that they sit not as Barons at all, but only amongst them who are so. It is evident therefore that his first Ar­gument, drawn from the Constitutions of Clarendon, is not solid. His next Gr. Qu. p. 151. Suggestion, that they are a third Estate in Parliament (if by Parliament he mean their Convention in Convocati­on) from the issuing out of Writs to the Guardian of the Spiritualties in the Vacancy of the Episcopal See, I shall not contend with him; only I think it from hence plain, that they have Right to sit as Members of the Convocation properly, where, with the rest of the Brethren, they make up a third Estate, in which Writs there is generally a Clause of Praemunientes added, to shew that other Clerks are to be chosen to sit in Convoca­tion, for which reason the Guardians in their Vacancy have their Writs di­rected to them, lest the Convocation should not be full. Now how this can prove them a third Estate in the Lords House, I should be glad this Author would instruct me? so that his Conceit of their sitting there in [Page 291] a double Capacity, is of no weight, and all his Precedents cited to that purpose, might have been spared, which do not in the least measure prove that the Bishops sit in the Lords House as a third Estate; because Clerks shall be chosen to sit in Convocation, by Writs directed to the Guardians of the Spiritualties, where there are no Bishops, or when they are beyond Sea, rather evinces the necessity of a Convocation to meet in Consul­tation as to Ecclesiastical Matters, which are only proper for their Fun­ction.

Lastly, Let it be observed that his Quotations out of the Author of the Letter, pag. 93. as to Doctor Standish his Case, are mistaken; the Author's words are, the Judges said—‘The Lords Spiritual have no Place in 7 H. 8. p. 184. Parliament by reason of their Spi­ritualties (in which respect, in truth their place is in Convocation) but by reason of their Temporal Posses­sions; that is, holding their Tempo­poral [Page 292] Possessions in nature of Baro­nies.’ The Scope of that Book is to shew that a Parliament might be held without them, who indeed were no Barons, but had liberty to sit among them by an Indulgence in respect of their Possessions. And at last, I am perswaded our Author will hardly be bound by that Opinion; for if that be true, how can they sit there as a third Estate, if their Right to sit there be only as Temporal Barons? This Authority is only from Kelway, 7 Hen. 8. 184. See the Case at large in Burnet.

[Page 273] Our Grand Questionist goes on, and en­deavours Grand Quest. p. 260. to prove, and clear that intricate matter (as it hath been made) touch­ing the Interest the Clergy then had in Parliaments, as well as Convocations: but chiefly to prove, that all the Interest they had in Parliaments, was not meerly upon the account of their Temporal Baronies, which the Bishops and many of the Abbots then had; this he saith, is the great, but common mistake of the Author of the Let­ter.

'Tis first to be observed, that he hath not proved, that to hold Land by Baron-Service, and to be a Baron, is all one, which by me is left doubtful, as appears by what is said in the first Chapter of this Treatise. Neither see I any reason why tenere per Ba­roniam, should make a Baron more than Tenere per Militare Servitium, should make a Knight.

Secondly, That what he now saith, is only a Pursuit of his precedent Conceit, that the Bishops sit in the Lord's House in a double Capacity, because, as he saith, there is a Distinction made, even in Parliament, be­tween the several Estates of the Clergy and Laity. How far this is argumentative, and how far his Precedents warrant what he affirms, I shall examine by and by; on­ly in the mean time, would desire him to tell me, whether they could come to Par­liament at all without first receiving the King's Writ? and in the next place, Whe­ther [Page 174] the King's Writ imply any other Ca­pacity, than as Spiritual Persons, holding their Possessions per Servitium Baroniae, and voting among the Lords, in respect of their Lands, which are in their own nature, Temporal Estates in the Hands of Spiritu­al Persons, but by their Dedication to God, made spiritual also; which is as much as can be drawn from what Mr. Selden saith in the place quoted by our Author, pag. 151. That they met as Counsellors in the Saxon's time in their Wittena Gemot, I will not de­ny, but whether by virtue of any Writ, Summons, or rather by general Allowance as Counsellors, or what other way, he can­not prove: Records there are none, or very few; and Historians give but a dark ac­count of those Times, and things then one: but which way soever they then sate, cer­tainly by William I. their right of sitting was much altered, the Frame of things being in some measure altered also, in so much that they must now meet under such Qualifica­tions, and no other, as were by him allowed them, which by all Men is agreed to be as Tenants to the King in Capite, for their Pos­sessions, which they held in the Nature, and by the Service of Baronies. This be­ing so, I see not what use he can make of the Distinction made in Parliament be­tween the several Estates of the Clergy and Laity. The Question is not, Whether the Clergy and Laity are distinct Estates? which no Man ever denied: but, whether the [Page 175] Bishops, distinct from the other Clergy in Convocation, be an entire third Estate in the Lord's House: that they are so, no Man hath yet proved. His Authority out of Eadmerus, speaking of what was done in Parliament in 3 Hen. 1. saith, it was done Utrius (que) ordinis concordi Curâ, & sollicitudi­ne, by the unanimous care and trouble of both Orders, Ranks, or Degrees: Why must [Ordo] signify an Estate, rather than a Degree or Rank? Now I hope Men of different Degrees may sit together with­out being different Estates. Dukes, Earls, Marquesses, Viscounts, Barons, now sit together, yet may make but one Estate. But let [Ordo] signify that Estate as he would have it, and as he thinks it doth; why must it signify an intire Estate? or what doth it more import, than that it was done by the Joint-Consent of the Lords and Commons? who might then sit toge­ther, and were not at any time left out, as is sufficiently proved by Mr. Petyt. Matth. Paris his Clerus and Populus, and the other Cases by him there mentioned, compre­hended the whole Body of the Clergy and Laity met together in Parliament, inclu­ding as well the Inferiour Clergy as the Su­periour, sitting in their due Ranks. All the rest of his Precedents made use of by him, seem rather to enforce that the King is not a third Estate, than that the Bishops are more than a part of a third Estate among the Lords. But this Point, whe­ther [Page 276] the King be one Estate or not in Parli­ament; and how an Head can be considered as no part of the Body, I leave to others to dispute, but must rest in this undeniable Conclusion, that there can be no legal co­ordinate Power however the case stands: for as in the Body natural, nothing can be done without the concurrence of the Head: So in the Body Politick, nothing can justly be done without the concurrence of the King in matters of publick concern in Par­liament, except their Proceedings deviate Vid. Dier fol. 60. Cromp. Jurisd. Courts, p. 2. from the ordinary Rules of the known Laws of England.

I have put off the Examination of the first part of his fourth Chapter, that I might conclude this Discourse with an Answer to the Matters he there alledgeth.

He finds himself pressed with that strong Argument, drawn as well from Magna Charta, as from divers Precedents, that the Bishops were not Peers to Noble-Men, but were themselves tried by a common Jury in Matters Capital; and therefore were not of Condition to try Noble-Men, who had in themselves Inheritable Noble Blood.

To this Argument he opposes two things. First, That the matter of Fact Grand Quest. p. 124. cannot be made out that a Bishop hath al­ways been tried by Commoners. Secondly, That if it could, it doth not overthrow their Peerage in Parliament.

[Page 277] This second Assertion I will easily grant, if by Peerage in Parliament, be no more meant than a Community of Appellation by reason of their sitting amongst the Lords, and their Precedence in place, with some other Priviledges as to Amercia­ments, days of Grace, and the like. But certainly if it can be cleared, that they have of right been tried by common Juries, and that as well before, as after the time of Henry the 8th: Nay, that they have not look'd upon the Lords in Parliament as their Peers, and proper Judges: I may then rationally conclude that they are not Peers in Parliament to that end to try, or be tried by Noble-Men there.

It is plain by all our Law-books, that out of Parliament no such Priviledg belongs to them. For first, out of Parliament, over and above the express Authority of Stan­ford, a Judg in Queen Mary's time, Sir Edward Coke, a great Judg in our time, Mr. Selden a great Lawyer, and Antiquary; Stanf lib. 1. cap. 3. Cook. 3d Instit. [...]ol. 30. Seld. Priv. of Bar. p. 45. and others. Mr. Cambden, an Herauld, great Scholar, and Historian; all agree that Bishops shall not be tried by Noble-Men, and that man­ner of Triall hath never been put in use as to them. Now if this be confessed to be the Law out of Parliament, let the Author give me one Example, that a Man of right ought for a like Offence to be tried by one sort of Jury out of Parliament, and ano­ther in it. The Case of Appeals, under which Covert he endeavours to hide him­self, [Page 178] I shall discuss anon. The Priviledg they claimed as Clerks, was common to all other Clerks as well as to them, but there are many Cases of Clerks tried in Secular Courts, and the Trial allowed to be good, to which purpose, see Cook's second Instit. 638; but never any Exception of theirs allowed of, as if those Trials were illegal. As to the Case of Bishops, and their Trials by common Juries, Mr. Selden is very clear, and gives many Examples both before, and after Hen. 8th's time, which are not so to be slighted, as this Author seems to do. That of John de Isle, the Bishop of Ely's Gr. Q. p. 146. Brother, is full to the point; where the Bishop was arraigned, and upon Question how he would be tried, stood upon his Pri­viledg as Clerk, that he was a Member of the Pope's, and therefore ought to be brought to his Answer before his Ordina­ry the Arch-bishop of Canterbury, who was there ready to demand him, affirming that he ought not to answer before a Lay-Judg; this Plea was rejected, and a day given to the Bishop, and a Jury impannelled, sworn, and tried, (which shews he had his Chal­lenge). The Jury bring in their Verdict, and find that the Bishop was not guilty of the Fellony laid to the Charge of John de Isle his Brother, and his Companions; but they find that after the Felony committed, the said Bishop knowing that these Persons had committed Felony, did receive and harbour them: upon which, a Writ was [Page 179] directed to enquire what Goods and Chat­tels he had, and his Person, upon request of the Arch-bishop, delivered him to be kept as it behoved him to do. Now let any Man judg whether here were not in every respect a legal proceeding. The matter of Fact tri­ed by the Verdict of twelve Men: Inquisi­tion made concerning his Goods, Lands, and Chattels, himself (the Crime being only receiving of Felons) delivered to the Arch-bishop, either to make his Purgation, or to be kept in due manner. Was here now any Willingness in the Court to break the Law? as our Author saith, pag. 146. or not rather a perfect Observation of it. Gr. Qu p. 146. Is not this perfectly agreeable to what Dr. Ridley, in his view of the Civil and Ec­clesiastical Laws, saith pag. 86. ‘If a Clerk be first arrested by a Spiritual Judg, and Ridley, p. 86. found guilty, he shall be degraded, and delivered over to the Temporal Power. But if he be first arrested by [...] Secular Magistrate, and tried, and found guilty, he shall be delivered to the Bishop to be deprived, and then delivered back to Pu­nishment.’

The Precedent of Thomas Merks Bishop of Carlisle, our Author allows to be against him: but asks whether one Precedent be­fore Gr. Qu. p. 147. the time of Hen. 8th, be sufficient to expound Magna Charta: for in this Case, the Immunities of the Church were conside­red, and a Declaration by them, that their Priviledges extended not to Treason. But for a full Answer, I say first, that there are [Page 280] more Precedents than one: but if there were not, would not one, with the con­stant Opinion of all Lawyers, and Judges, be enough to prevail with a dis-interested Man, to believe that the Peers in Magna Charta, and the Lex Terrae, do not intend Bishops to be such Peers as are to receive their Trial by Noble-men? But what Ex­ception can be taken to those Cases after, and in the time of Hen. 8th? Did he not continue the Roman Religion all his time? was it more against his Prerogative, than of any of his Predecessors? 'Tis clear enough that the Proceedings before, as well as after, were according to Law, notwithstanding the Clamour of the Clergy, as is plain by Mr. Selden.

I shall now consider the Case of Adam de Orlton, alias Tarlton, Bishop of Hereford.

All Historians of those times, as well as other later ones, set sorth the violent Pro­ceedings of the Clergy in that matter, who Walling. p. 109. Baker p. 1 [...]4 Dan. p. 214 An 1323. Seld. pri. Bar. p. 147. took him twice out of the Hands of Justice. But it appears by Mr. Selden, by the Record Hill. 17. E. 2. Rot. 87. Dors coram Rege, that he was arraigned in the King's Bench, and upon question how he would be tried, re­fuseth to answer there: Day is given, and the Indictment brought into the Parlia­ment, where he makes the same Plea, that he is by the Will of God, and the Pope, Bishop of Hereford; and that he ought not to answer before that Court. Here you see whatever the Carriage of the Clergy was, and what-ever Judgment was given [Page 281] against him: His Exceptions were as much against any Trial in Parliament by the Lay-Lords, as else-where. And that conse­quently the Injury they conceived done to them, was, that they should be tried in any Secular Court whatsoever. This you may see in Du Fresnes Glossary Verbo (Par.) The Trial he required was, per Episcopos Pares suos, By the Bishops his Peers. This ap­pears also by the Complaint of the Bishop of Ely, that he was brought to be tried coram Laico Iudice, before a Secular Judg. By this our Author's Mistake may appear, who saith, pag. 144. That they look'd up­on Gr. Qu. p. 144. themselves out of Parliament as having no Peers in Judgment but Bishops; when it is evident by the Case of these Bishops, that they made the same Exception as to their Trials before the Lords in Parliament, that they did before the Secular Judges out of it, and pretended they ought not to be tried before any Lay-Judges whatsoe­ver. Neither did they look upon them­selves under the same Condition that Lay-Men were; but being a distinct Body a­mong themselves, thought it reasonable to be judged by themselves only, and in their own Courts: an Innovation the Law ne­ver allowed, or gave any Countenance un­to. I confess, I cannot but wonder that any one Person, of how great Parts soever, should go about to contradict the Opinion of very many learned Judges, who have all asserted the contrary, to wit, that Bishops [Page 182] ought to be tried by Commoners; and no one Lawyer of any note, that I know of, hath hitherto maintained the contrary. Me­thinks those of the Long-Robe should be tender in opposing the Judgments of Stan­ford, Cook, Doddridg, and Selden, except their Opinions were back'd by the Autho­rity of Judges equal in Ability and Learn­ing to those before named.

Having thus cleared the Precedents ur­ged by Mr. Selden, and others, from the Ex­ceptions of this Author; let us now see what is alledged by him to prove that it was not always so, but that sometimes they were tried by the Noble-Men as their Peers in Parliament. And to that purpose he pro­pounds the Case of Stratford Arch-bishop of Canterbury, out of Arch-bishop Parker's Antiq. Ecclesiae Britan. who tells you that Stratford was at the King's Suit accused of Capital Crimes in the Exchequer, that he Gr. Qu. p. 126. put himself upon his Trial in Parliament; that a Parliament was called, and he, after some Opposition, admitted into the House; and there, as our Author saith, put himself upon the Trial of his Peers: this it seems is the Relation of Matth. Parker. (By the way, whom he meant by his Peers, doth not yet appear) whether the Clergy only, or the Lay-Lords.

But let us have recourse to the Record, as it is abridged by Sir Robert Cotton, 15 E. 3. Numb. 8. 15. E. 3. N. 8

[Page 183] The same day the King came into St. Edward's Chamber, commonly called the Chamber de Pinct, (the painted Cham­ber) before whom, all the Lords and Commons, the Arch-bishop of Canterbury humbled himself, and required his Favour, which he granted. Afterwards the Arch-bishop desired that where he was defamed through the Realm, he might be ar­raigned in open Parliament before his Peers: probably by his Peers, he under­stood the Bishops, as others had done, and not the Lay-Lords: Besides, this seems to be a Desire of his at a Conference before the King and Lords; for it was in the painted Chamber, whereas the Commons usually sate in the great Refectory, now called Westminster-Hall. Let us observe the King's Answer, which was, that he would attend the common Affairs, and after hear others; where we see the King did not grant his Desire, but gave only a Di­latory Answer. Lastly, it doth not ap­pear that he was ever arraigned in Parlia­ment; for the Record saith, Numb. 49. And it is to be remembred, that all things touching the Arraignment of the Arch-bishop of Canterbury should remain with Sir William de Kedelsby, Keeper of the Privy-Seal. By which it is evident, that these things were not then put into the Hands of Sir William de Kedelsby, but to remain there, where probably they were before, and were only some Papers relating to [Page 284] what was before done in the Chequer; for I find no Arraignment recorded about that time. Two Yearsafter, viz. 17 Edw. 3. Numb. 22. All the Proceedings against the Arch-bishop were cancelled by order from the King; so that nothing appears to have been done against him to any purpose, ei­ther in Parliament, or else-where.

'Tis true, there was a continuance of the Parliament in 15o, from day to day, for a Week, about the Trial of Noble-Men, that they should not be put to answer, but in open Parliament by their Peers, to which purpose, there are named four Bishops, four Earls, and four Barons as a Committee to draw up the Plot.

These Persons being in their Device, assigned, as hereafter doth ensue. Under the Name of which Peers, they bring in the Chancellour, and Treasurer, and such like Officers, and that all Estates should enjoy their Liberties, 15 E. 3. N. 6, 7, 8. Here was indeed a Matter concerning Trials of Noble-Men had under Consideration, but never reduced to any Law, as the Practice of subsequent Times, and the late Bill of the Lords about Trials, do enough mani­fest.

But doth it not appear by this Record, that the Bishops, were not reckoned Nobles of the Land, when he finds the Chancel­lour, and Treasurer, and such like Offi­cers, attempted to be brought in at that time, and so not to have had any Right [Page 285] before? But saith our Author, it after fol­lows, that they may not lose their Tem­poralities, Lands, Goods, and Chattels. Now none were capable to lose their Temporalities but Bishops, therefore this Law must have respect to them, as well as other Nobles of the Land.

The Answer to this is very easy, that the Clergy, who had then all Power, did endeavour to bring in their Fellows the other great Officers, who were almost all Church-men. Simon Langham Arch-bishop of Canterbury, was Chancellour, William Molso Dean of St. Martins le Grand, Recei­ver, and Keeper of the Kings Treasure and Jewels, with many others, as you may find Baker, p. 141. These had Temporalities to lose, and such Officers, the Church al­ways hoped to have had of their own Tribe; but, as I said before, of this At­tempt came no other Effect than to shew their aspiring Thoughts. And whatever Opinion the Author of the Iurisdiction of Gr. Qu. p. 128. the House of Peers, is of, as to the Roll of 4 Edw. 3. I believe the Law at this day will not be so taken, that a Chancellour being no Peer, shall be so tried by reason of his Office. I am sure, my Lord Keeper Bridg­man being no Peer, never voted in the House of Lords, and the present Lord Chancellour, when he gives his Vote, goes to his place as a Baron. See Hakewell, p. 114. Ancient Customs, how these great Officers are placed in Parliament when [Page 186] they are Peers, and when not; and cer­tainly if their placing be different, their Trials ought to be so too. Neither can it seem reasonable to any considerate Man, that a Person, though such an Officer, should not be capacited to give his Vote as a Baron, and yet by virtue of his Office, should be tried by Noble-Men. There­fore I must take leave to deny what he affirms, that they are Peers by virtue of their Office, or that they have Right to be present in Parliament in all Cases of Judi­cature, so as to concur in Sentence with the Nobles of the Land, as our Author affirms, pag. 132. The King may make Gr. Qu: p. 132. whom he pleases Chancellour, and the Sta­tute assigns his Place, but he cannot vote there without the King's Letters Patents to that purpose, as I conceive: See Old Mo­dus, Hakewell, p. 14.

I have in the first Chapter of this Trea­tise spoken largely to that Point, and shew­ed in what sense a Bishop may be called, Peer of the Realm. And pag. 90, and 91. have handled the matter of Proxies, there­fore may pass over the Case of Arch-bishop Arundel, which our Author proposes, pag. 128.

To the Case of William de la Pool, I have spoken before, only shall here observe, that the submitting his Cause to the King, was no waver of his Peerage, for the matter never came to any formal Issue; consider th [...] Case of Nicholas Segrave in 31 Edw. 1. 31 Edw: 1: [Page 187] Ridley, p. 266. who being accused of many Crimes; Segrave being summoned there­unto, appears in full Parliament, confesseth the Fact, and submits to the King. This was no Waver of any Legal Trial by his Peers, nor any disrespect to the Lords, who might otherwise have ordered the summoning a Jury to try the Fact, but by the King's Pardon that labour was saved.

The like may be taken notice of in that famous Case between the Earl of Hereford and Essex, against the Earl of Glovester and Hertford, in 20 Edw. 1. Riley p. 74. Where, upon a very long pleading, the Case in effect proves to be but this: The Earl of He­reford complains to the King, of great Rob­beries, Depredations, and Murthers com­mitted by the Earl of Glocester, in his Lands in Brecknock, after the King's Inhibition. The King, for Remedy of this, appoints the Bishop of Ely, William of Valence his Uncle, Iohn Mettingham, and Robert Hertford, to hear the Complaints of the said Earl, and also the Answer of the said Earl of Glocester, and his Servants, to the Com­plaint of the Earl of Hereford, and to sum­mon a Jury for the Trial of the same, and also commanded Robert Tiptoft, Iusti­ciario suo de Westwell, to be there pre­sent, and to summon the said Delinquents to be before the said Commissioners, and that Enquiry should be made per Sacramen­tum tam Magnatnm, quam aliorum proborum Hominum, & Legalium de partibus Walliae, [Page 288] & comitat Glocest. They, that is, the Mag­nates (which it seems were Noble-Men) excepted against the taking an Oath, and said 'twas unheard of, and that they would do nothing sine consideratione Parium suorum. The Jury give in their Verdict against Glocester, the Parties all submit to the N. B. the Submission of the matter to the K. without any Exception by the Lords, makes the King sole Iudg, and so the Case can no longer go on in any Parlia­mentary Way. King, who by the Advice of Arch-bishops, Bishops, Earls, Barons, and the rest of those who were of his Counsel, declare that the Earl of Glocester had forfeited his Liberties, &c. The words are, Videtur tam ipsi Dom. Regi quam caeteris Praelatis, Magna­tibus, & reliquis de Consilio ejus quoad Comi­tem Glocestriae quod Libertas sua praedicta, viz. totum Regale in Terris suis praedictis de Mer­gannon cum pertinentiis pro se, & haeredibus suis foris facta est ratione delicti praedicti, &c.

In this Record there are many things Observable; First, The Bishop of Ely here mentioned, was not a Judg in this Case between the two Earls, but joyned in Commission with others, who were em­powered to summon a Jury to enquire of the matter of Fact, not to condemn either Party, but was only in the nature of an Inquest, or Grand-Jury, in order to a Trial. 2. That Noble-Men [Magnates] such as refused to take an Oath, were re­turned of the Jury. 3. That the Verdict was given in to the Commissioners, not­withstanding some of the Jury were not sworn. 4. That the Jury was summoned out of several Counties, viz. Glocestershire [Page 189] and Wales. Lastly, and that for which I have chiefly produced it, that this Submissi­on of both Parties to the King was no waver of their Peerage. Neither doth it appear, that this Award made by the King with the Consent of those Prelates, Earls, &c. was made in Parliament, tho it be inter Placita Parliamentaria, but only by such private Counsellours as the King thought fit to make use of in that Affair. That it was no Parliamentary Judgment; is evident from these two Reasons: First, The putting themselves to the Reference of the King, was no putting themselves upon any Trial by their Peers, because that should have been done only by the Earl of Gloster, against whom the Bill was found; whereas here the Reference is made by both, The rea­son I conceive why the Refe­rence to the King, was made by them both, was be­cause no Pro­ceedings could be in Parlia­ment, in re­gard the V [...] ▪ dict was n [...] returned upon Oath, and so in it self null: and to the Kingalone. Next we find the King here was present with the rest, which was not usual; if the Lords had proceeded judicially wherever the mat­ter was heard, whether in Parliament, or else-where. Besides, it is observable that the word Consilium, is twice written with an [s]; whereas, if it had been a Parlia­ment, the word would have been written with a [c], as was generally observed by the Writers of those Times. In Conclu­sion, this Record makes nothing either to the Bishops Power of judging in Criminal Cases, or that Submission of a matter to the King should be a waver of Peerage, but was a making the King an Arbitrator, [Page 190] for they knew the Verdict was void, being not upon Oath.

I have before denied that such Persons as sate in the Lord's House by virtue of their Office, had any Right to be tried by Noble-Men, except they had an inherita­ble Right of their own, as well as their Office. I am not therefore concerned to examine as to Predial Feudal, or Personal Right, what is urged by our Author, or Disc. of Peer­age, p. 4. Gr. Qu. p. 132. any other, because I have throughout this Discourse, maintained that no Man can have any Priviledg, or Right of Trial, but according to the nature of his Peerage, which seems to me, not only reasonable, but within the plain meaning of Magna Charta: that the Triers and Party tried, ought to be of the same Condition, and capable to undergo the same Penalties in like Case. That what the Discourser hath said as to the Regradation of their Peer­age when their Office shall be taken away, means no more, than that Officers shall no longer sit among the Peers, not that they had any Right of Peerage during the con­tinuance thereof, tho they were placed a­mong them by a particular Law, or Usage. Neither is our Author's Reason of any force, that because Persons enobled in Blood in a Forreign Country, shall not try Gr. Qu. p. 134. a Peer of England; therefore the Parity is not of Blood, but of Priviledg in Parlia­ment: For he cannot but know that all Laws are originally made for the benefit [Page 191] of those who are born subject to them, or adopted into them by Naturalization, and such shall have the full benefit of all things appliable to their English Condition, as if they were natural born-Subjects. Others that are Strangers, tho of equal, or greater Quality, shall not enjoy the Rights invested in the Natives by their Birth, but only the Protection, and Priviledge of the Laws of that Country where they are, during their abode there.

Another Argument is drawn by our Au­thor from the Proceedings in Cases of Ap­peal against a Noble-Man at the Suit of the Party: He argues thus. If in Appeal of Murther, or the like, at the suit of the Par­ty, a Noble-Man shall be tried by a Jury of good Free-holders, then their Exempti­on from being always so tried, proceeds from their sitting in Parliament, and not from Nobility of Blood, and therefore all those who have Right to sit in that House, have Right to the same Priviledg: But the Bishops have Right to sit in the same House, and are called Barons, therefore they ought to enjoy the same Priviledge other Barons have.

This Argument, how specious soever it may appear, is unconclusive in many re­spects. First, It doth not follow, that those that have Priviledg to sit in the same House, have the same Priviledges to all Intents, and Purposes. My Lords the Judges, and all Justices of the Peace, sit [Page 192] upon the same Bench, and by the same Commission, yet are not equal in all Cir­cumstances. Nay; my Lords the Bishops themselves, though they are of the same Order and Quality, yet are not equal in Priviledges. I have before shewed that there were Barones Minores, who were not properly Barons, but so called, and might be left out at the King's Pleasure: But such as are enobled in Blood may demand their Writs, which the Barones Minores could not. And if now the Bishops have that Right (which is not certain) it is because they are to summon the Clergy, without which the Parliament would not be compleat as to the Convocation. And were it not for that Reason, the Bishops might be now wholly left out, for they be­ing only Barons by Tenure, cannot be in any other Rank than were the Barones Mi­nores, who were left out at the King's Plea­sure. I have before asserted, they hold their Possessions, per Servitium Baroniae, as a Bur­then, not Honour to them; and their sit­ting among the Lords was only indulged to the Dignity of their Function as Bishops, they being indeed no more than Commo­ners. Neither secondly, doth it any way follow, that because Peers in some Cases shall be tried by a Common Jury, therefore those who are properly Commoners, and only pri­viledged to sit among the Lords, should par­ticipate of the same Honour with them.

[Page 193] To examine farther into the Reason, why in all Criminal Cases at the Suit of the King, the Trial shall be by Peers, not so in an Appeal for the same Crime, Sir Edw. Coke will tell you, One reason is because the Trial, if it ought to be so, must be before a Lord Steward, and no Appeal can be brought before a Lord Steward, who is but only Temporary, but ought to be brought before the Judges in the King's ordinary Courts of Justice. We are likewise fur­ther to consider, that Inequality of Persons, is not of the Law of Nature, but of Hu­man Constitution; and that the Statute of Magna Charta, is but a Confirmation of our ancient Rights, in which all Subjects were Pares. But since it is apparent, that ever since Magna Charta, and perhaps long before, the Trials at the Suit of the Party have been as they now are: we must look upon them as a Branch of the common Law of England, never taken away from the Commoners; but that the King, and No­ble-Men, as to what concerned the Crown, were contented to introduce that manner of Trial as to the Nobles, and long use and Custom hath now made it to be recei­ved as the Law of England; yet the poor Commoner never received that way of Trial as to his own Right, who look'd upon the Verdict of twelve substantial Men of his Neighbourhood, as much better Secu­rity for them and their Heirs, than a Trial upon Honour: When upon their Appeal [Page 194] it would always have been in the Power of the King to name again the same Lords for Triers, which they had before, and by that means defeat them of the benefit of their Appeal, to which the Law gives so great respect, that upon an Appeal brought, all Proceedings at the King's Suit should (as has been taken for Law) stay till the Appeal were determined, because a parti­cular wrong to a private Person in the Murther of an Husband, or very near Rela­tion, is of greater Consideration to the Party, than the general loss of a Subject is to the King.

I shall not pursue this Author in his Di­gression touching the ground, and reason Gr. Qu. p. 135. of the Trial by Peers, since our Question is not, what the Law may be in other Countries; but what the Practice of our own is, and of what sort of People those Peers are to be composed. That is to say, Whether the Jury for the Trial of Bishops shall be composed of Noble-Men, or of Commoners? In this he confesseth that the Lawyers, and those of them who have Gr Qu. p. 14 [...]. most searched into Antiquity, are of a dif­ferent Opinion to what he maintains as to this Particular. A shrewd Objection I take it this is! for every one ought to be credited in his own Art, and 'tis ten to one the Generality of the Lawyers are ra­ther in the right, than Strangers to the Profession, or Lawyers of a lower Rank, than those great Masters have been. But [Page 195] that he may say something, he tells you Gr. Qu. p. 142. that Mr. Selden not only in that confused Rapsody goes under his name, but in his more elaborate second Edition of his Ti­tles of Honour, admits the Bishops to be Peers, in which he hath corrected, and left out the false or doubtful Passages of his first Edition, and among the rest, that Passage; A Bishop shall not be tried by Peers in Capital Crimes. What then? doth this Omission supersede those Prece­dents laid down by him in that Rapsody, as he calls it, which was as much his as the other? The leaving out that Passage might be a Neglect in the Printer: I am sure, 'tis no Retractation of what he had said before. Neither need I tell this Au­thor, how Books come sometimes to be corrupted. Secondly, He saith, some things Gr. Qu. p. 143. have been affirmed about this matter with as great Assurance as this is, which have not been the constant Practice; Coke, he saith, is positive in his third Instit. p. 30. Cook 3 Inst p. 30. That a Bishop should not be tried by Peers, and in the same Page, that a Noble-Man cannot wave his Trial by his Peers, and put himself upon the Trial of the Coun­try. And doth this Author think the Law to be otherwise? Yes, he saith in the Re­cord of 4. Edw. 3. That Thomas Lord Berk­ley put himself upon his Country.

I have a Transcript of the Record by me, which I received from my learned and worthy Friend, Mr. Atwood of Greys-Inn; [Page 196] but because it is in Latine, and agrees with the Abridgment by Sir Robert Cotton, and review ed by Mr. Prin, I shall not tran­scribe except two or three Lines.

Thomas de Barkele Miles venit coram Domino Rege in pleno Parliamento suo, &c. 4 E 3. N. 16, 17.

Cotton 4 E. 3. Numb. 16, 17. In a Plea of the Crown holden before the King this Parliament. Thomas of Berkley Knight, was arraigned for the Death of Edw. II. for that the said King was committed to the keeping of the said Thomas, and Iohn Mau­trevers at the Castle of Thomas at Berkley in Glocestershire, where he was murthered.

Thomas pleads that he was sick at Beud­l [...]y without the said Castle, at the Death of the said King, and put himself upon the Trial of 12 Knights, (named in the Re­cord) by whom he was acquitted. Here Milites. we have an Arraignment of Thomas de Berkele Knight in 4 Edw. 3. but none of Thomas Lord Berkele as this Author sup­poseth. In 5 Edw. 3. Numb. 15. I find the 5 E. 3. N. 15. Cotton. same Person at the request of the whole Estate, discharged by the name of Sir Tho­mas Berkley; so that it seems plain, he was then no Peer, and consequently no waver of Peerage, in 14 Edw. 3. and in 4 Rich. 2. Cot. p. 187. I find him summoned to Parlia­ment, not before 14 Edw. 3.

When any Noble Man had the Addition of Miles, the name of his Barony, was ge­nerally expressed; and the word Dominus annexed, Iohn de Beauchamp Militi Domino [Page 197] de Beauchamp 27 Hen. 6. Rob. de Hungerford Mil. Dom. de Moleyns, and many others; Insomuch that I am confident, that in 4 E. 3. Thomas de Berkley had never been summo­ned, and so not inter Barones Majores. And the Milites were Tenants in Capite.

I have at last examined all the parts of this elaborate Treatise, in which the Au­thor hath endeavoured with all Art and Industry imaginable, to support a declining Cause. I have not to my Knowledg, left any Argument unconsidered, which hath been thought material by this Writer to be urged in defence of that Cause, the Maintenance whereof he had undertaken. I have been longer I confess, in this Discourse than at first I thought to have been, but this must be attributed to the Subtilty of my Adversary, who by learned Digressions, and cunning Insinuations, hath indeed clouded the Truth, and rendered it less visible to the Eyes of common Readers.

Notwithstanding, what I have said, if this Drudgery of being present as Judges in Criminal Cases, or in the Trials of Noble-Men in Parliament, be the Right of the Lords Spiritual in Parliament: If the Embassadours of Christ, the Messengers of Peace, and the Preachers of Mercy and Reconciliation to God in Christ, have more mind to be Executioners of God's strange Work, than in what he delights? If they delight rather to make Wounds, than to bind them up, let them enjoy that Burthen [Page 198] according to their Desire. But their Pre­tences to it hitherto, have been ineffectual, and of late, all Power of Judicature in Cases of Blood, hath been denied them in several Parliaments by both Houses. Nei­ther hath this Author been yet so happy, as to have produced any one clear Prece­dent, where they have been present at the Trial, and have given Votes for the ac­quittal, or Condemnation of any Noble-Man brought to Judgment in Parliament in Cases of Blood: Or that any of their Order have been in such Cases tried by Noble-Men, or indeed have desired to be so tried.

Certainly this Nation, together with the most of other Christians in Europe, li­ved under the Papal Communion till the times of Reformation; and therefore the Bishops here cannot reasonably be supposed to have enjoyed Priviledges different, or greater than those enjoyed by their Fel­lows in other Places, where they had the greatest, as well Power, as Honour. But I think I may with Confidence affirm they were no where allowed to sit Inquisitors of Blood, and not only to debate, but at their Pleasure to give Sentence in such Cases as Secular Persons in Secular Courts. I very well remember that in the Parliament be­gun here, 1640, it was at the beginning thereof hotly debated in the Lords House, whether any Bishop might be so much as of a Committee in any Parliamentary [Page 199] Examination in the Case of my Lord Straf­ford, because it was a Case of Blood, in which, by Law they ought not to meddle; the Debate was put off; and the Bishops were willing to absent themselves accor­ding to the Opinion of one of their own Body, and agreeable to the Practice and Usage of the Kingdom, being only allowed by the Lords to enter a Protestation, saving their Rights in that, and other Cases. Now this very Question seems to me an over-ruling ours: for if it were then a Questi­on whether they might be of a Committee in Cases of Blood, where the Judges were often joyned with the Lords, it can be no doubt, but that they ought not to be ad­mitted to give their Votes as Judges in the like Cases in their Persons.

…

[Page] REFLECTIONS UPON Antidotum Britannicum, AND Mr. Hunt's late Book and Post-script, As far as concerns the Controversy between Doctor Brady and the Authorof Jani An­glorum facies nova, and of Jus Anglorum ab Antiquo.

London, Printed Anno 1682.

CHAP. I.

The true and essential Difference between the General Council of the King­dom, and the Curia Regis, main­tained against Dr. Brady, Mr. W. and Mr. Hunt; with a short Account of some Reasons why Mr. Hunt might have spared his Censures upon them, who apply themselves to the Study of Antiquities.

SInce Dr. Brady received a Reply, two of my Brethren of the Gown, Mr. W. and Mr. Hunt, both of Greys-Inn, have appeared in print, in behalf of the King's Tenants in Capite, and will needs have it that these ingrost the Right of coming to Parliament, as one calls it, or the Magnum Concilium, as the other, till 49 of Hen. 3.

One professes that he never read what Antid. Brit­tan. p. 56. has been wrote upon this Subject either by Mr. Petyt or me.

The other slights it all, as a Dispute not worth the Cost and Pains spent about it; Mr. Hunt, p. 156. and grants many of Dr. Brady's Hypotheses, but denies his Consequences, and so allows him to be a good Antiquary, but an ill Logician.

[Page 204] That there was a Curia Regis, or Com­mon Council of the Tenants in Chief (such especially as held of the King by Knights Service) distinct from the Great Council of the Nation, or Parliament: In which Curia, Hunt, p. 133. & 166. the King's Tenants granted to the King Auxilia, Aids; and did act many things in relation to their Tenures: Both agree with me directly against Dr. Brady, who will have it, that all the King's Tenants by Dr. Brady a­gainst Jani Angl. &c. p. 26. c: 29. Knights Service never met in any Council or Court, but thereby it became the General Council of the Nation, or Parliament.

In which, since he is opposed by these two learned Authors, agreeing with me, they have given so much Credit to my No­tion, that they have prevented that fur­ther trouble; which I might have given the inquisitive World upon that point.

If I can free my self from the force of these Gentlemens Arguments, or Objecti­ons upon those things wherein I differ from them, I think I need not fear the empty Thunder of Men of other Professi­ons; but may look upon my Notions as sufficiently established.

Both Mr. W. and Mr. Hunt, are Men of much longer standing, and greater natural and acquired Parts, then I can pretend to; yet if I have the good fortune to fall into the Paths of ancient Truth, no modern Authorities ought to beat me out of them. They both will have it, that the Tenants in Chief were the only Members of the Curia [Page 205] Regis, which was held for Matters within the King's ordinary Power, and of the Magnum Concilium, or Parliament, where the extraordinary Power was exercised. Against them both, before I examine their supposed grounds from Authority, this ob­vious Objection in reason may be urged.

If all the Tenants in Capite by Knights Ser­vice, were obliged to attend in the Curiâ, either by virtue of their Tenure as Ant. Brit. p. 59. one takes it, or of general Summons, as the Mr Hunt, p. 148. other, and the consent of none but such Tenants were requisite for passing of Laws in Parliament, what reason can be assigned, why Laws might not have been made in the Curia, and so that have be­come a Parliament when ever the King pleased to declare it so? Can a more par­ticular Summons, and notice of Arduous Affairs, which is Mr. Hunt's Notion, lay Mr. Hunt, p. 150. a greater Obligation upon them to be pre­sent, who, however, were bound to come? And if they were bound to come, can Ab­sence be reasonably pleaded to free any The King's ordi [...]ry set­l [...]d n [...] esta­blished Court, was a diffe­rent shing from the Con­fluence of Ba­ [...]ons and Te­nents in Capite at those thre great Feasts, which were set and appointed times for great and General Councils if there were an Appearance sufficient. Brady against Jani Anglorum, &c. pag. 30. from the Obligation of what was then a­greed on? Indeed Dr. Brady, who will have it that every full Confluence of the Tenants in Chief by Knights Service to Counsel, was a General Council of the Nation; supposes that even before King [Page 206] John's Charter, and while he thinks that they were to come to Parliament ex More, without Summons, if but a few appeared, it was no General Council: which is an absurd Supposal, unless there was before that a Law in being, that they should not act without a certain number, as supposing that forty were to make a full House, as now 'tis said to be with the Commons; for otherwise they who did appear, did, according to the general Rule of making Laws, bind them who were absent through their own default.

But if we consider how contrary it was to the Usage of those Times, to make Laws, or insert Clauses, or Words, idle or unne­cessary, we shall not easily believe that they would, according to Mr. Hunt's Supposal, have made Provision for the particular summoning of those for arduous Affairs, who were obliged to attend at the Council without such Summons. Indeed I am a­ware that Dr. Brady hath charged me with putting such a sense upon King John's Char­ter, as would imply a needless Provision.

The Doctor tells us that by King John's Charter the Cause of Summons was to be exprest, and from thence he would infer that it was a Great Council there inten­ded; for, saith he, such Provision were needless if there had been but one Cause for which they were to be summoned, Dr Brady a­gainst Jani Angl. p. 30. which he urges as the Consequence of my interpreting that Summons there provided [Page 207] for, to have been only for raising such Aids in the Curia as could be imposed upon the King's immediate Tenants; and none else. Now admit that this had been to a Parlia­ment, and had taken in all manner of Char­ges to be laid upon the Subject, if the rai­sing of Taxes were the only work of a Par­liament, the providing that they should have notice when a Tax had been required, would have been as impertinent; and if the Parliament had any other Power, this Provision had been as defective as he sup­poses 'twas, according to my rendring, su­perfluous.

For that Summons mentioned in King John's Charter, is restrained, and limited to the granting of Aids, but there is not one word, or syllable of making, or enacting Laws, which is the main business of Parli­aments, and therefore this must be intended of some Inferiour Counsel, and not of the General Council of the Kingdom. But if the Charter be taken to be meant only of raising such Aids as lay upon none but the King's Tenants, if those Aids branch them­selves into Escuage and Tallage, here were two Causes of Summons, as the one or the other was required; or if only such Aid as Escuage was within the Provision, still the Cause or the Occasion of raising the Escuage might be different; and there­fore the cause of Summons more than one; nay some might have been obliged to at­tend upon one Cause of Summons exprest, [Page 208] which were not upon another; for if the King had an Occasion of transporting an Army beyond Sea; in that case only they that held by the Service of going into for­reign Vid. 1. Instit. f. 69: b: Parts, together with such as were tied to general Service, were obliged to attend, and liable to pay Escuage, upon Escuage nest. q. penalty pu [...] non se sans de Service de Chivaler, Bruertons c. 6. Rep. f. 2. a. their default, to be taxed by them who were present according to the Obligation of their Tenure. If the Tenure were to go into Scotland or Wales, they could not, by rea­son of their Tenure, be compelled to go else-where, whereas the Attendance at the King's Court ex more, was what, I take it, lay upon every Tenant in Chief, holding by Knights Service, Ratione Tenurae, and was not superseded by King Iohn's Charter, but still they that were not present, were concluded, as to all Acts of the King's Court Baron, either in Criminal, or Civil Causes; as much as in the Court-Baron of an Infe­riour Lord, the Suitors present may pro­ceed to all Judgments within the Cogni­zance of their respective Courts, where, through the common neglect of the Suitors, the Steward for the most part gives Judg­ment by himself.

Mr. W. who was the first Author of a Lawyer that ran Counter to me, makes a distinction between a Parliament and a Curia Regis, which I conceive to be without any difference in Relation to the several Powers of the Curia, and the Great Coun­cil of the Nation, except that 'twas less in [Page 209] that which is now called the Parliament, than 'twas in the Curia; for he says that to the Curia the Tenants were obliged to come Ratione Tenurae, but to the Ant. Brit. p. 59 other they could not come but ex Gratia Regis.

Upon which 'tis further observable:

1st, That he yields that the Commons, others beside the Tenants in Chief, had as much right as the Tenants in Chief to come to the Parliament before the 49th Hen. 3. for he grants that they too came sometimes Ibid. p. 57. before that time ex Gratia.

2dly, Whereas he supposes that King Iohn's Charter of Resignation was void, not Ant. Brit. p. 59 being in Magno Concilio, though 'twas in Communi Concilio Faronum, he assignes no reason in the World for it's being void; for admit that, to the Commune Concilium Faronum, or Curia, the Tenants in Capite came Ratione Tenurae, and to the General Council of the Kingdom ex Gratia, which he subjoyns as the Ground for avoiding that ignominious Resignation, which he agrees with me, contrary to Dr. Brady, to have been made in the Curia Regis, and not in the General Council of the King­dom; does it follow that because they had no Right to come to the General Council, though they had to the Curia, that there­fore a Resignation in the Curia was not good? nay, does it not follow, that because they had no Right to come to the General Council, therefore the King might exercise [Page 210] his absolute Power in such a Counsel as he should think fit to call, and might oblige the Nation in any Act of his done by such Advice or Consent?

Nay rather, if there were a Counsel where they might ex [...] be present, which Mr. W. makes the same with Ratione Tenurae, does it not follow that there would be less Obligation upon them from any Act done in the General Council of the Kingdom, where they had no Right to be present, and so no consent of theirs could be urged to inforce the Obligation, than from the Determinations of that Counsel where they were necessary Members? But Mr. W. his Grounds for his Belief that the Commons had no Right to come to the Ge­neral Council of the Kingdom before the 49th of Hen. 3. are two.

1st, That in the 45th of Hen. 3. only three were ordered to be Representatives Anti Brit. p. 57. for every County, the Year I take to have been mistaken by the Printer; for the Settle­ment, and Reformation of the Government which he mentions, was in the 48th; and that he means that Settlement, and not one before in the 42d, is evident, by his citing Si videatur Communitati Praelatorum & [...] ­ronum, which is in the Record of the 48th, and not in any of the 42d, that I have seen.

But 'tis evident by the Record that the three he mentions, were assigned for the Rot. Pat. 48. H. 3. infra P. 30. Electors of a standing Counsel to the King, which was to act out of Parliament as well [Page 211] as in, but with no Authority in Legislati­on; besides, admit that they were intru­sted with all the Power of the Counties, I cannot find any force in the Argument, that because a Representative was then agreed on, therefore they had no Right to come before that time in their own Per­sons. But indeed in the 42d of that King, there was a Representive of the Commons, who were in those times accounted only the Rot. Pat. 42. H 3. The O­riginal Record is not now to be found, but I have seen an Abridgment of it, done by Mr. Selden. Citizens and Burgesses; this was pur espar­gner les Costs des Communs; to spare the Charges of the Commous, which I use not to shew that all such came any otherwise than two for a place; But that the settling a Representative is an Argument, that be­fore that time they came in greater Num­bers. Mr. W. his se­cond Argument considered.

2dly. His second Argument is the Au­thority of Pollidore Virgil, which proves wholly against him; for it says that the Populus rarely were consulted with before Pol. Vir. lib. 11. fol. 188. 16 H. 1. the time of Hen. I. Adeo ut ab Henrico primo id Institutum Iure Manasse di [...]i possit.

Even he allows the Right of the Commons to be a constituent part of Parliament, to have been an Institution, or a settled Right long before the 49th of Hen. 3. no less than one hundred forty nine Years. And in the Case of Godsoll, and others against Sir Christopher Heydon, my Lord Cook affir­med that he had seen a Record in the time of Hen. I. of the Commons Degrees, and Seats in Parliament, his words are these, [Page 212] En Ancient temps tout le Parliament sea insi­mul, 1 Rolls fol. 11. & le Separation fuit Par le desire del Commons mes [...]ent obstant ils font fors (que) un mese, ieo aie veiw un Record 30 H. 1. de lour Degrees, & Seats.

That the Commons were Members of the General Councils of the Kingdom in the time of Hen. I, I think is very plain, when we find even at Synods, Assemblies for Ecclesiastical Affairs, Nobilitas Popu­lus (que) Ead. lib. 3. f. 58. minor, and Laici tam divices, quam Spelm. Co [...]c. vol. 2. f. 35. mediocres. But that they then had any Order, and certain Seats there, I cannot readily believe. And indeed we find that in the Reign of King Stephen, who imme­diately succeed Hen. I. 'tis spoke of as customary for the Uulgus, or Commons, which were Infinita Multituto Plebis, to Cron. Eliense. Vid. Jus Angl. p. 211. come as Members of the Great Council, and to intermix themselves with Men of the greatest Quality, as 'tis usual in Crouds; Hist. Norm. gest. a Stepho Rege f. 93:. Uulgo etiam confusè & permixtum, ut solct se ingerente.

3dly. Mr. W. his third Argument is, that where a Record makes mention of Arch-bishops, Antid. Brit. p. 59. Mr. W. his third Agu­ment fully answered. Bishops, Abbots, Priors, Barons, and all the Commonalty of the Kingdom or Land, &c. It doth not from hence neces­sarily follow, that the Commons were then present, for the word And may be taken Anti. Brit. p. 59. exegetically, and expositive, and not in­troductive of any other Persons; and the word Communitas, doth many times ex­tend to the Prelates, and Barons, therefore [Page 213] it is said, Si videatur Communitati Prae­latorum & Baronum. Here lies the force of all the Cavils upon the Records, menti­oning others besides Tenants in Capite, and Mr. Hunt insists upon the same in effect, with the very same Instance. I shall here chiefly This the Hinge of the Controversy as to the Fact; Whether the Commons of England were introduced in­to Parlia­ment, or had any Share or Votes in ma­king of Laws for the Go­vernment of the Kingdom, or had any Com­munication in Affairs of State, other­wise than as represented by the Tenants in Capite, be­fore the 49th of Hen. 3. vid. Dr. Brady a­against Mr. Petyt, p. 1, 2. apply my self to Mr. W. and I cannot but observe, that what I have here cited out of his Book, either contains an Assertion with­out any manner of Proof offered, or else the latter part is used for the Proof of the other; but surely 'tis an odd kind of Proof that And may be used exegetically, because the word Communitas may extend to several Particulars, and as well to Prelates, and Barons as others, when particularly ex­prest along with it, which is no more than that the other words are exegetical, or expositive of Communitas, not that Com­ [...]as, or And joyned with it, can be expositive of those other words.

Wherefore the Assertion that And may be used exegetically stands naked by it self, without any colourable Cover or Support; and I would gladly see at least some Colour for the Belief, that the Conjunction And, was ever used as expositive, or exegetical of any word or words foregoing; Indeed when 'tis Husband and Wife, they may notional­ly be the same in Affections and Desires, and become one Flesh, as Body and Soul make one Man: But I think no Man will say that the Wife is exegetical of the Husband, and is no more than what was mentioned before [Page 214] when the Husband was named, nor will any but such as believe the Mortality of the Soul, and that 'tis nothing else but the Temperament of the Body, or its animal Spirits, suppose the Soul and Body to be the same; indeed if they were, the Body ought to stand by it self, without mention of the Soul with a distinctive And.

Till some one Instance can be produced, in which Mr. W. can make it out to the common reason of Mankind, that And ought to be used otherwise than as intro­ductive of something not expresly mentioned be­fore, he must give me leave to think that in the matter of our Dispute And is necessa­rily introductive of some other Persons. But according to the Rule of making And exege­tical, where 'tis expressed in the Instance given in the Record 48 H. 3. Si videatur Communitati Praelaturum & Baronum, Et must by plain Consequence be exegetical of the Praelati; and so the Barons were only the Community of, or all, the Praelates.

I take it to be obvious that And of it self can never be expositive: the question then will be, what may or ought to be the Exposition of words, which singly taken, are of more general, or more restrained Senses, and how far they may or ought to be enlarged or restrained, according to their Position, or according to the nature of the words which are used along with them.

[Page 215] And in my Opinion, it is contrary to the Laws of Interpretation, that a word used in a general Sense, and as comprehen­ding others, should explain those others particularly set down, as that Communi­tas which here Mr. W. would have taken in a general sense, as not confined to one Or­der, should explain what is meant by Prae­lates, Peers, and Barons, before particula­rized: on the other side, words of a parti­cular explicit meaning, coming before or after, one of more general import, shall explain and restrain the general Sense. Thus Praelatorum & Baronum, either before or after Communitar, restrain that word Communitas to the Community of the Pre­lates and Barons; and I dare say, no one Record can be shewn of the times, either be­fore or after the 49th of Hen. 3. which will warrant a contrary Exposition of such Words. And indeed there has no Reason been pretended why Communitas or Po­pulus, joyned to some Orders of Men ex­pressed, should be the same with what went before, but what is a manifest beg­ging of the Question, and supposing that the Commons were not present in the General Councils at the Times the Records mention, and therefore that the word Communitas or Populus was superfluous, and referred to what was sufficiently exprest before, was comprehensive of the foregoing Particulars, as Mr. Hunt will have it: this illogical Pe­titio Mr. Hunt, p. 152. principij is a Leaden Vein which runs [Page 216] through all Doctor Brady's Writings.

But let us a little observe the pennings of Records, which may give Light to this matter; you shall there find words of a restrained Sense, following one of more ge­neral, to be exegetical or explanatory of the general, as the Peers, Earls, and Barons; Rot. Parl. 4. E. 3. N. 3. les Piers Counts & Barons. there Earls and Barons denote what Peers are meant, because there might have been Bannerets, an inferiour Order of Peers.

Then you shall find words of a limited Sense going before to be restrictive of a word following, which otherwise would have had a more general Sense, as Earls and Barons [the Peers] there the Earls Counts & Barons les Piers, 4 E. 2. Rot. Parl. and Barons are the only Peers: But where 'tis Earls, Barons and Peers, there neither the first nor the last words can be exposi­tive, because And severs them, and conse­quently makes them to be of different Senses; wherefore And is necessarily in­troductive of other Persons; and the word Peers, which without And might have been a Genus to the several Species of Earls and Barons, must needs be an Inferiour Species under a Genus not there mentioned. But still Peers could not have explained the Earls and Barons, but Earls and Barons would be expositive of Peers, which is more comprehensive in its Signification.

And thus where 'tis Communitas Prae­latorum & Baronum, Communitas is the Genus to these two Species, and the more particular words restrain the Communitas [Page 217] to them; wherefore 'tis the whole Body of the Prelates and Barons, and none else; but where it is Praelati, Comites, Barones, & Populus, or & Communitas, there the Po­pulus or Communitas must be inferiour to the rest particularly mentioned, being there is a descent from the higher Orders still to the lower; if they begin at the bottom, they end with the highest, at least that which is added at the last, must be something distinct, or different from, or not paticularly exprest in what went be­fore, which is enough for my purpose. I shall close this with a few more Examples out of Records. In a General Council of the Kingdom held in the fifth Year of King Iohn's Reign, after he had married his se­cond Wife, having been divorced from the first: the new Queen was solemnly crowned, unanimi consensu & concordi Vo­luntate Rot. Cart. 5. [...]o. m5. n. 33. Archiepiscoporum, Episcoporum, Comi­tum Baronum, Cleri, et Populi totius Reg­ni. Magna Charta was confirmed in a General Council of the Kingdom, 9 H. 3. 39 Years before the 49th of that King per Rot. Sat. 25. E. 1. n. 38. Common assent tout de le Reaum; and this in another Record, is said to be Per le Rot. Iarl. 15 E. 3. a. 50. d. Roy, Piers & Commune de la terre.

And the Statute of Westminster the first, Sta. Westm. 1. 3E. 1. 2. Iusti. 156. eleven Years after 49. H. 3. was ordained per Passentments de Archievesques, Evesques, Abbies, Priors, Countees, Barons, Et tout la Comminalty de la terre illonques Sum­monees.

[Page 218] Now what Man of common Sense can believe that the Clerus & Populus cotius Regni, after the Comites, & Barones 5 Io. the Commune de la terre, after the Peers; 9. Hon. 3. and tout le Eomminalty de la terre, after Countees and Barons, 3 Edw. 1. were no more than the Prelates, Earls and Barons; indeed there being no Et between Baronum and Cleri, 5 Io. were it not for other Records explanatory of the like, there might be some Colour for Mr. Hunt's supposal that Eleri & Populi were only comprehensive of the Orders foregoing, and might be in the same sense with Communi­tas Archiepiscoporum, Episcoporum, Comitum, & Baronum. But for the penning of Re­cords, both Mr. Hunt and Mr. W. know better, than to think the Clerks in those times stuffed them with Tautologies. Mr. Hunt's way of expressing the same Notion, I shall soon consider more particu­larly.

But admit that my Interpretation of Records is generally erroneous; yet 'tis manifest that the Record which is cited and insisted on to warrant the contrary, shews that there were other Persons at the Gene­ral Council of the Kingdom besides Prelates, Earls and Barons, and that these were such as are now called Commons.

The Record was the form of Peace agreed on in the 48th Year of Hen. 3. it says.

[Page 219] Haec est forma Pacis a Domino Rege, & Rot. Pat. 48 H. 3. pa [...]s uni­ca m. 8. d. Domino Edwardo filio suo, Praelatis & Proceri­bus omnibus, & Communitate Regni Angliae, communitèr & concorditèr approbata, &c.

Amongst other things 'twas agreed, ad Reformationem Statûs Regni Angliae, that there should be chose in that Parliament three Men, who should have Power from the King toname nine, that should be the King's standing Counsel; and if any of the three displeased the Community of the Prelates Rot. Pat. 43 H. 3. pars uni­ca in 8. n. 10. and Barons, or were by them thought un­fitting for their Office; Si videatur Com­munitati Praelatorum & Baronum, one or Vid. Jan. Angl. facies nova p. 246. more should be placed in his or their Room, per Concilium Communitatis Prae­latorum & Baronum; and the Record con­cludes, Haec autem ordinatio facta fuit apud London de Consensu Voluntate & Praecepto Domini Regis necnon Praelatorum, Baronum, acetiam Communitatis tunc ibi presentium.

Upon this 'tis observable:

1. That et Communitas Regni, in the beginning of the Record, next after the Praelates and all the Peers, must necessarily be the Commons of England, nor can Et possi­bly be taken otherwise than as introductive of other Persons besides the Prelates and all the Peers, before expresly mentioned; for that the Record concludes, as it were with an Intention of preventing all manner of expositive Cavils; for, having declared that the Ordinance then made, was by the Consent, Will, and Authority of the King [Page 220] necnon, and as▪well of the Prelates and Ba­rons; it adds, Ac etiam Communitatis tune ibt presentium, which must necessarily be, and also of the Commons then and there present, as well as the Prelates and Barons [presentium] being taking as relating to all that went before; or and also of the Community of them that were then and there present, that is, all that were present were Parties to the Ordinance; if the first, then the Commens also were there by name; if the second, tho Communuas be not taken as an Appellative for the Commons of England, yet that they were then and there present, is as evident from the Record, since it shews that others were present be­sides the King, Prelates, and all the Peers, that those others were Parties to the Or­dinance then made, and as they could not possibly be of an higher Rank, than what were before exprest, but much less the same, being so manifestly distin­guished with an and also, from what went before, they must needs have been inferiour, that is, Commoners, unless there was another Rank of Men, that were nei­ther Lords nor Commons, but between both: wherefore 'tis a demonstration that there was then present and acting in a Le­gislative Capacity, a Body of Commons, over and above, or distinct from the Pre­lates and all the Peers or Barons, above mentioned.

[Page 221] 2. In this Parliament 48 H. 3. there was a particular matter referred by the King, and that in a full Parliament of Prelates, Peers, or Barons, and also the Commons, to the Disposition and Management of the Prelates and Barons only; and surely 'twas no great thing for them to be empowered to remove, or put in Electors of the King's standing Counsel, which was all that was referred to them, without consul­ting the Commons upon every occasion. But I cannot discern the least Consequence that because the word Communitas, doth many times extend to the Prelates and Ba­rons, which, as Mr. W. rightly observes, it doth; that therefore it must be limited to them, and extend no further, whatever words come between. And I would thank Both Mr W. and Mr. Hunt argue this may: Vid. Mr. H. p. 152. him that should satisfy my reason how it is possible it should be confin'd to them, when there comes and, or and also to ex­tend it farther.

If Mr. Hunt. had observed how distinctly all the Orders of Parliament are mentioned in this Record, viz. Praelati & Proceres om­nes, & Communitas Regni Angliae, and again, Praelati, Barones, ac etiam Communitas, and had further observed how full and clear the Evidence is, that all of them together re­ferred, or consented to the King's referring the matter before taken notice of, to the Earls and Barons only, or to the Community or Generality of them, (from whom another Community, the Communitas Regni Angliae [Page 222] then and there present, was sufficiently distinguish'd in other parts of the Record) and that that Affair was to be managed per Consilium Praelatorum, & Baronum, he would never have insisted upon this as de­monstration that Communitas Regni An­gliae, after Praelati & Proceres omnes, nay, tho with an ac etiam, has no other Sense than Commune Concilium Regni, and was as a comprehensive Term of those that made it, Mr. Hunt, p. 152. or was used exegetically, as Mr. W. has it. If it had been Praelati & Proceres, Commune Concilium Regni, or Communitas Regni, there, because there is no discretive and, or and also, the latter might be comprehen­sive of the former. But whatsoever may be said of the careless penning of Records or Histories anciently; yet when there are numbers of Records or Histories expressing the Parties present at general Assemblies of the Kingdom, some of the like penning with the aforesaid form of Peace 48 H. 3. some more express and particular, if possible; shall all the Clerks of Parliament, and learned Monks, or other old Authors be taxed with heedless Impertinencies, nay even want of understanding what they wrote?

Eadmerus, who was a very corrrect Writer, and lived in the time of which he wrote, tells us, that at one General Con­vention, in the Reign of Hen. I. there were Eademrus, f. 49. Vid. Ian. Angl. facies [...], p. 214. [...]ad. f. 58. tota Nobilitas cum Populi numerositate; at another, tho it was held only for Ecclesi­stical Affairs, there were Nobilitas, Popu­lus (que) minor.

[Page 223] The Election of King Stephen, as a Ricard Ha­gustaldens [...]; f. 312. grave Prior of those Times tells us, was a primoribus Regni, cum favore Cleri & Populi, Clericorum, & Laicorum universitate.

In that King's Reign there was aduna­tum Concilium Cleri & Populi, a General Council of the Clergy and Laity together, which now one would say were a Parlia­ment and Convocation united; the Mem­bers Cronice [...] Eliense. of this Council follow, Episcoporum; at (que) Abbatum, Monachorum, & Clericorum, Pl [...] ­bis (que) iufinita multitudo; the Authority for this is a Legier Book of the Abby of Ely, wrote as it should seem in the time of Hen. I. These kind of Books were generally kept E [...] vet. Re­gist. in Archi­vis Cant. Arch. Vid Ian. Angl. &c. p. 221. with great Exactness, and were in the nature of Records. From the like Autho­rity we have it that Archiepiscopi, Episcopi, Comites atque alij omnes, were consenting to the Election of King Iohn.

But to mention a few undoubted Records to this purpose.

In the 15th of King Iohn, there were Claus. 15. Jo p. 2. m. 7. vid. Ian. &c. p. 231. Precepts to all the Sheriffs of England to summon in every County Milites, who were to come with Arms, Barones without Arms, and four Knights for every Shire, & qua­tuor discretos Milites de comitatu, to a General Council at Oxford.

In the 38th of Hen. III. besides the Te­nants Rot. Claus. 38. H. 3. m 7. c. 2. Ian. Angl. &c. p. 245. in Chief, two legales & discreti Milites were required to come for every County, vice omutom & singulorum, to be chosen by the Milites & alij de Comitatu.

[Page 224] And several Records before the 49th of H. 3. describing the Members of Parlia­ments, Rot. Claus. 21. H. 3. m. 7. d. mention besides the Clergy, Co­mites, Barones, Milites, liberi Homines, some, & libere Tenentes, others, & omnes de Magna Charta 9. H. 3. Regno.

Now can there be the least colour to be­lieve that all these were no more than the Prelates and great Barons, or only the greater and less Nobility holding in Chief, whatever Dr. Brady or others may obtrude upon the World?

That the Commune Concilium Baronum, may sometimes be used in the same sense with Commune Consilium Regni, affords no help to Mr. Hunt; because where the expressions Mr. Hunt p. 152. are too lax and general, Barones shall be taken in it's utmost extent, and consequent­ly shall comprehend ordinary Free-holders, who were Nobiles, & Barones minores long Vid. Jus Angl. ab antiquo c. 8. before the 49th of Hen. 3. But the Que­stion is, Whether when Records or Histo­ries make a Distinction between Barones, and others coming after, the Distinction can be thought to be without any manner of Difference, and so vain and idle, as that the Porulus minor, or Populi numerositas Eadm. supra. after Nobilitas, is a Term comprehensive of the Nobility before mentioned; or when there were Primores Regni cum Clero & Populo the Rich. Hagulst. chief of the Kingdom with all the Clergy and People, the word People, was but compre­hensive of the Primores, so that the Primores were there together with themselves. But [Page 225] surely I need not run over all these In­stances, and many more produceable to convince even Dr. Brady, Mr. Hunt, and Mr. W. of the absurdity of interpreting Records after their manner.

But Mr. W. thinks to help out his Re­cord by an Historian, and cites the Ad­ditaments to Matthew Paris, mentioning the Ant. Brit. p. 60. Letter wrote to the Pope in the Case of Adomar de Valens, which begins thus:

Communitas Procerum, Magnatum, alio­rum (que) Matth. Paris Addit. f. 217. Regni Angliae, and was subscribed by some Earls and great Men, and Peter de Monteforti vice totius Communitatis; this Mr. W. says was in the name of the whole Baronage, not the House of Commons, or Commonalty of England, there being menti­on of the universitas Baronagij, but not uni­versitas Regni Popularis.

I take it to be manifest that all the Que­stion which can arise upon these words is not, as Mr. W. puts it, whether Symon Montfort subscribed in the names of the Barons only, or of the Commons only: But whether some of the great Barons having set their hands themselves, Montfort, being the last Man that subscribed, did not do it in the name of the rest of the Great Barons not subscribing, and of the Commons too, as part of the Baronage, or Communitas of Earls, Barons and others. And I think no­thing is more clear then that the Commons were part of the Community here intended.

[Page 226] Matthew Paris tells us, that 'twas ex par­te Matth. Pr [...]is, fol. 978. Regni & totius Angliae universitate, and this he says was scriptum a Farnagio, and that the Commons were part of the King­dom Ibid. at Parliaments, and went under the Denomination of the Faronage at that very time, is evident beyond Contradiction from Record: for whereas the Title of the Writ expressing some Matters agreed upon between the King and his People in that very Parliament, is, pro Rege, & Faro­nagio Rot. Pat. 42. H. 3. m. 10. An [...]liae, the body of the Writ runs, Rex omnibus &c. cum pro negotiis nostris ar­duis Regnum nostrum tangentibus proceres, & Fideles Regni nostri ad nos London in Quin­dena Pasche prox. praeterit faceremus convo­cari, &c.

And another Record explains, and re­duces to a certainty the Proceres & Fideles and the Faronage, and calls them Hans­homes Rot. Pat. 42 H. 3 m. 4. (the high Men, the Prelates and great Barons) Prodes homes (the Magnates and Grands of the Counties) and the Commune de Reaum (the Commons of the Cities and Boroughs) and with this his own Instance out of Matthew Paris, exactly agrees, for there were the Comites and Pro­ceres (the great Barons) the Magnates, or Grands of the Counties, and alij, who must needs be the Commons of the Cities and Boroughs, as they were distinguished Stat. St. p 27 E. 3. from the Grands of the Counties, even as late as the 27th E. 3.

[Page 227] This may serve for a full and clear An­swer Dr. Brady a­gainst Mr. Pe­tyt, p. 126. to Dr. Brady's Exposition of the fore­mentioned Letter, whom both Mr. Hunt and Mr. W. may thank for misleading them in this Point; and this sufficiently shews the Vanity and Falshood of the Doctor's Assertion, that the Commons as at this day Dr. Brady a­gainst Mr. Pe­tyt, p. 130. known, are not to be found amongst the Commu­nity of England in old Historians, except he will place Matthew Paris amongst the Mo­derns.

This I think may suffice in answer to any thing wherein Mr. W. his Authority may be used against me.

I cannot be so short in my Observations upon Mr. Hunt, because he aims many Blows at me in the dark, and may be thought in many places to have wounded my Arguments, or the Reputation of my Endeavours, which he represents as imper­tinent, Mr. Hunt, p. 156. or like a Contest de lanâ Caprinâ.

In opposition to my Notion of the Cu­ria Regis, he produces another, which he thinks he demonstrates, whereas Mr. W. takes the Curia to have been the only Court where the Tenants could pretend to come ex debito, or Ratione Tenurae. Mr. Hunt will have it that they, and they only, came both to the Curia, and to Parliament ex de­bito whatever others might sometimes have been called ex Gratia: But then he thinks that he has found a sure means to distin­guish which was a Parliament, and which was a Curia, by the nature of the Summons. If [Page 228] it was to all Tenants in Chief by Knights Ser­vice generally, it made a Curia: If the Great Barons had special Summons, 'twas a Parliament in his Judgment. To con­vince Mr. Hunt, p 1 [...]8. him of his Mistakes in this and other Matters, which he might have rectified, if he had not undervalued the Study of English Antiquities, will not be enough to him, unless I likewise shew how convenient it would have been for him, to have had more regard to some of those Matters of Fact within that Learning, which I con­ceive, I have made good against Dr. Brady, and which Mr. Hunt has not yet vouch­safed to confute, otherwise than by an ipse dixit.

First, Wherefore I shall first shew him some Mistakes which I am concerned to represent to him; And that

  • (1.) As to the matter in Issue, in rela­tion to what our Government was before the 49th of Hen. 3.
  • (2.) As to the manner of summoning the Parliament, or General Council of the Kingdom, and the Curia, whereby he thinks he is able to distinguish the one from the other.

Secondly, I shall shew the Erroniousness of some Suppositions which may have contri­buted to Mr. Hunt's belief, that the Tenants in Chief were the only Members of the Parliament till the 49th Hen. 3. Or that Tenants in Capite only, constituted both [Page 229] the Curia and the Parliament, according to the fancied different Summons.

Thirdly, I shall shew that he himself, in effect, grants that more than Tenants in Chief had right to come to the Great Coun­cil of the Nation, in which the Nation's Rights were involved.

Fourthly, That even according to his own Notion of Tenure in Capite, all Proprie­tors of Land, as such, had, till the 49th of Hen. 3. right to come to the General Council of the Kingdom.

Fiftly, That whereas he would set aside the Question of what the Government was till the 49th of Hen. 3. as impertinent.

  • (1.) His own Notion, by which he would supplant the Labours of others, destroy's it self, while mine maintains what he aims at.
  • (2.) He puts such matter in issue for asserting the present Government, as can never be maintained.
  • (3.) He yields so much of the Fact a­gainst me, as sets aside the whole Foundati­on of his Postscript. And yet,

Admit he answers all Objections against his Postscript, the Grounds which I go upon are of the most general use.

(1.) The first of his Mistakes, which I cannot but animadvert on, seems to be wil­full; for he renders the matter of late put in Mistakes. Issue, as to what our Government was before the 49th of Hen. 3. to be whether the Counties in all this time had their Re­presentatives [Page 230] in Parliament by the Formali­ty Mr. Hunt, p. 155. of a Choice? and, as if our Government was according to the Concessions of them who have lately appeared in the defence of it, to take it's fate upon this Issue, viz. Whether our present House of Commons, in the Ibid. p. 154. same form as it is now constituted, was not in being ever after the Conquest? and as if we should yeild, that otherwise it were no essen­tial part of our Government.

I must confess, according to his Insinu­ation, that whoever puts it upon this point, betrayeth the Cause of the Government, Mr. Hunt, p. 154. but he would do well to name the Man who has done this Disservice.

This I must confess I have insisted upon, that Proprietors of Land, as such, without consideration of Tenure, or collated Dignity, have from the time of William the first, downwards to the 49th of H. 3. enjoyed a Right of coming to the Great Councils of the Kingdom, and could not be bound by any Laws to which they had not consented either in Person, or by Representation, yielded to sometimes before, but not set­led till the 49th of Hen. 3.

And Mr. Petyt hath satisfied Mr. Hunt Mr. Hunt, p. 151, & 179. himself, that the Cities and Boroughs were represented in Parliament from time be­yond the account of Records or History.

But this I desire may be considered, that admit there were no Representation of the Free-holders of the Counties settled at any time within the Reign of Hen. III, or in [Page 231] any other King's Reignnow appearing; and farther, that it cannot be shewn, that such Free-holders ever came to the General Councils of the Kingdom in their own perso­nal Interest; yet however, if it appear that such as are now represented by the Knights of the respective Shires, gave their Votes to Parliamentary Proceedings, by such as they particularly appointed to that end before the 49th of Hen. 3. the present Constitution stands sufficiently established without the least Imputation of Novelty, or Usurpation.

And this were enough for my purpose: Vid. Jus An­glorum ab an­tiquo, Addit. p. 20, to 32. But since many Arguments induce the be­lief that before the 49th of Hen. 3. such ordinary Free-holders often came to the General Councils of the Kindom without special Election and Representation, I should have given too great Advantage to the Underminers of Common Right, if I should have undertaken to prove that the Counties, from the time of the reputed Conquest downwards, always had their Repre­sentatives by the formality of a Choice, which Mr. Hunt, I thank him, would put upon me to prove.

His second Mistake, as to the manner of summoning the Great Council and the Curia, wherein he thinks that there lies an essen­tial difference between the two Courts, is nearly conjoyned to the first, and if it were no mistake, would overthrow my Notion: for if, as he holds, only Tenants in Chief [Page 232] made the General Council, of the Kingdom, as well as the Curia, then my belief that others besides such Tenants had right to come to the General Council, would be groundless; and it might be probable that the different Mr. Hunt, p. 149. Summons might distinguish the Courts.

But whereas he fancies it to have been a distinctive Mark, or certain Diagnostick of a Parliament, where the Summons were personal to the Bishops, Earls, and the Greater Barons; if he had been pleased to have taken the Pains to consult the Records, he would have found the Summons to have been as personal to the Wars, and consequently to the Curia (which besides other Occasions for its sitting, was held at the place of Ren­dezvous, to charge Escuage upon the See Escuage taxt at such a a Military As­sembly, Inter Com. de Ter­min. S [...]. Mich. 4 [...]. H. 3. r. 4. [...]id. Ian. Ang. p 240. Defaulters) as 'twas to the General Council, which if I prove, I hope 'twill be yielded that the essential Difference of those two Courts could not arise from the nature of the Sum­mons to the King's Tenants, whether all were called in general, or some among the rest in particular, but from the Persons summoned, whether only Tenants in Chief, or others be­sides them.

In the 47th of Hen. 3. which to be sure, was before the 49th there was an Army to be sent against Llewelin Prince of Wales, who committed Hostilities against the En­glish; this 'tis certain was no General Coun­cil of the Kingdom, being only a Summons to the Wars; and yet the Great Barons had personal Summons, as appears by the Record.

[Page 233] Rex dilecto & fideli suo Rogero de Rigod Co­miti Rot. Claus. 47. H. 3. m. 7. do so. Norff. Mares. Ang. Salutem; quia Llewelli­nus filius Griffini et cumplures rebelles nostri con­tra Homagum suum & fidelitatem nobis debit am terras nostras & fidelium nostrorum in partibus Walliae dudum ut nostis hostiliter sunt aggressi terras illas occupando & devastando in nostrum dedecus & in nostrum et praedict. fidelium nostro­rum exheredationem manifestam vobis manda­mus sub debito fidelitatis & homagij quibus nobis tenemini & sicut eaquae de nobis tenetis diligitis quod in festo beati Petri ad vincula proximo futuro sitis apud Wigorn cum Equis & Ar­mis & cum Servitio vestro nobis debito parati exinde nobiscum proficisci in expeditionem nostram contra praefatum Llewellinum & compli­ces suos Rebelles nostros. Et it a de contentis in hâc necessitate nostrâ ibim veniatis ut dictorum Rebellium nostrorum versutia adeo pa­tenter reprimatur quod nobis et vobiscedat ad ho­norem & exinde vobis ad grates teneamur spe­ciales. Teste Rege apud Westmin. 25o die Maij.

Eodem modo mandatum est Phil. Basset, &c. And this Gentleman (if he had thought Page 156. fit to have trusted Mr. Selden, without taking the impertinent Pains as he terms it, Seld. Tit. Hon. fol. 592. of searching the Records, might have known that about 130 Temporal Barons had then their several Writs.

But this Author finding a Precept to a Mr. Hunt, p. 148. Sheriff, Quod summoneri facias Archiepiscopos, Episcopos, Comites, Barones, Abbates, Pri­ores, Milites, et Liberos Homines qui de no­bis tenent in Capite, &c. concludes that [Page 234] this must necessarily be a Curia Regis in distinction to a Parliament, because of the general Writ of Summons: whereas a little insight into Records would have acquainted him that the Sheriff was obliged to summon all those by a General Proclamation, and then to deliver the particular Writs to the Great Barons amongst them; this Record doth not say how they were to be summoned; but not­withstanding this, every one of those Ranks of Men might have been summoned parti­cularly: but to prevent all Mistakes, or Evasion we have a Record which explains that very Instance which he insists upon, it being of that very time.

Rex Vicecom. Devon salutem praecipimus tibi quod in fide quâ nobis teneris visis literis Rot. Claus. 26 H. 3. pars 1. m. 10. istis scire facias omnibus de Com. tuo qui de nobis tenent in Capite per Servitium Militare vel per Serjantiam & similiter illos qui terras Norman. vel Brittan. tenent de Ballio Domini Regis Iohannis Patris nostri vel nostro quod si­cut tenementa sua quae de nobis tenent diligunt sint apud Winton. die Clausi Paschae Parati cum Equis et Armis ad trasfretandum cum Corpore nostro in Pictaviam Literas eti­am ipsius certis Personis directas in Com. tuo mitti fac: T. R. apud Windles 8o die Fe­bruarij.

Here was notice given to all, or gene­ral Summons, and particular Writs also to be delivered to some of the Tenants, and thus, for ought appears to the contrary, it always was.

[Page 235] This alone were enough to shew that he has mistaken King John's Charter, which he thinks has establish'd this diffe­rence; but his own Explication of it will make it more apparent.

Which I shall consider under this next Head.

CHAP. II.

Some erroneous Suppositions, which may have contributed to Mr. Hunt's Belief, that the Tenants in Chief, were the only Members of the General Coun­cil of the Kingdom till 49 H. 3. or that Tenants in Capite only, consti­tuted both the Curia, and the Parlia­ment, according to the imagined dif­ferent Summons, considered.

ALL the Grounds which Mr. Hunt can pretend for this, besides the matter of Fact in relation to the Summons which I have already examined, must be either;

  • 1. From the Interpretation of King Iohn's Charter.
  • 2. His Notion of Tenure in Capite; or,
  • 3. The belief that William the first, made an Absolute Conquest of this Nation.

[Page 236] If King Iohn's Charter requires that the Great Tenants in Chief should have parti­cular Summons to Parliament, then indeed there would be a reason why, though all the Tenants in Chief were obliged to at­tend in the Curia upon general notice, yet some might not be concluded by any Act of Legislation, unless they had notice of Attendance to such end.

But if he knew not what was meant by Tenure in Capite, 'tis odds but he might mistake the Sense of that part of King Iohn's Charter which relates to the Tenants in Chief. And if William the first did not make an absolute Conquest, 'twill be won­derful how those that derived from under his Grant, should be the only Persons interested in the Government, exclusive of all others: but if he did make such a Conquest, then a very little Evidence would be enough to make one believe that none but Tenants in Chief were Cives, or any part of the Civil Society.

To take away all Colour from his Pre­sumption; I shall shew,

  • I. That he gains no help from King Iohn's Charter.
  • II. That he mistakes the Nature of Te­nure in Capite.
  • III. That he would have done well, to have answered the Objections against the supposed Conquest, before he con­cluded for it.

[Page 237] I. He can gain no help from King Iohn's Charter; for his Interpretation of it fights against its self. He himself acknowledges a difference between the Curia Regis, and Parliament, and particularly that in the Curia the Suitors assess [...]aids and Escuage, to which purposes he will have it, that they P. 131. were summoned by General Writs; and yet P. 148. contends, that by King Iohn's Charter, the Contradictio in Terminis. Great Tenants in Capite, who were Suitors at the Curia, were to be summoned in parti­cular de scutagiis assidendis, to assess Escuage; and that the Council where this was assest, P. 165. was a Parliament, according to his imagi­nary distinctive Mark.

But let us observe his way of demonstra­ting his Sense of this Charter: he divides some of the Clause, in dispute, into two parts, and leaves out (as not material to the Enquiry) what particularly relates to the Cities, Ports, Burroughs, and Vill [...]e (Townships or Parishes) in which alone, ac­cording to his own Division, the Liberties Pag. 160. of sending Burgesses to Parliaments must have been confirmed and provided for; and yet, not­withstanding such omission, will have it that the modus Parliamenti in King John's time, was in the said Charter declared.

His first Division is this.

Nullum scutagium vel auxilium ponam in Regno nostro, nisi per Commune Concilium Regui nostri, nisi ad Corpus nostrum redi­mendum, et ad Primogenitúm Filium nostrum [Page 238] Militem faciendum, et ad primogenitam Filiam nostram semel maritandam, et ad hoc non fiet nisi rationabilè auxilium.

The Charter has further, which is omit­mited by him.

Simili modo fiat de Civitate Londinensi, & Civitas Londinensis habeat omnes antiquas Libertates, & Liberas Consuetudines suas tam per terras, quàm per aquas: praeterea volumus & concedimus quod omnes aliae Civitates, & Burgi, & Villae, & Barones de quinque Portu­bus, & omnes Portus, habeant omnes Liberta­tes, & Liberas Consuetudines suas.

Here Mr. Hunt, to be sure, would have it divided; since he begins the other part with Et ad habendum commune Concilium Regni. Wherefore 'tis manifest, that even according to his rendring of this part of the Charter, the Modus of Parliament is not declared; the right of the Burroughs a­mongst other places to come to the Great Council being only implied, under the rest of their Liberties and free Customs, whereas he himself confesses, That we have no Histo­ry of the Commencement of their Right, and that Mr. Hunt, p. 159. it was an ancient Establishment in the Govern­ment before Magna Charta. As I had for­merly urg'd in Iani Anglorum facies nova, and in Ius Anglorum ab antiquo. Et ad ha­bendum commune Concilium de Scutagiis assidendis aliter quam in tribus casibus prae­dictis, either ought to be read along with what relates to the Cities, Burroughs, Ports, and Parishes or Townships, and so their Right [Page 239] of coming to the Commen Council of the Kingdom is provided for in an especial manner, as well as their other Liberties, and Free Customs. Or else, the right of the Inhabitants of these places, the integral parts of the Kingdom, to send, or come to the Common, or General Council of the King­dom, must have been included in the general Provision for their Liberties, and Free Cu­stoms, and no otherwise taken care of.

And then H. the 3ds Charter, being in So Dr. Brady consesses out of Mat. Paris a­gainst Jan. Ang. &c. p. 6:, 6;. Vid. Jus Ang. p 154. nullo dissimilis, or the same in Substance with this of King Iohn; and having no express Provision for the manner of summoning the General Council of the Kingdom, and only leaving Escuage to be raised, as 'twas in the time of H. the 2d, it shews that Escuage was to be raised in such a Council so sum­moned, as is provided for in King Iohn's Charter, with which H. the 3ds agreed in Substance: wherefore to say Escuage should be raised, as 'twas in the time of H. the 2d, was as much as to say, that for the assessing Escuage the Arch-Bishops, Bishops, Abbots, Earls, and all the Great Barons of the King­dom Et de scutagiis assidendis sub­moneri facie­mus, &c. King John's Char­ter. holding in Chief, were to be summoned by special Writs, the other Tenants in Chief by general ones, and for this they should have forty days notice.

But let us see what is made of a contrary Exposition.

By the first commune Concilium, Mr. Hunt conceives the Curia Regis was meant, Mr. Hunt. p. 166. and that out of that Court the King would not [Page 240] impose Escuage, or Aid upon his Tenants, except it were in those three Cases of Aid mentioned.

But then, Et ad habendum commune Concilium Regni aliter quam in tribus casibus praedictis & de scutagiis assidendis he conceives to be meant of Parliament, and that all mat­ters other than those three mentioned, Aids, and Escuage, which were due by Tenure, should be done by that commune Concilium, that is, his Parliament.

Truly I know not how he will free him­self from a contradiction upon this, when he makes Et ad habendum commune Concilium Regni aliter quam in tribus casibus praedictis, Et de Scutagiis assidendis to be meant of a Parliament, though before he had exempted Escuage from the Court of Parliament and assigned it to the Curia. And this shews clearly, that no other Council but the Cu­ria Regis is there mentioned, there being no Provision, except what was contained under Liberties, and Free Customs, for any other matters besides Escuage, and Aids, and these such as he confesses to have been due from the King's Tenants, for where 'tis Nullum Scutagium vel auxilium ponam in Regno nostro, nisi per commune Concilium Regni nostri. By this commune Concilium he owns the Curia Regis was meant.

For the three Aids excepted in the Char­ter, to be sure there was no need of a Coun­cil of Tenants, they being Incidents, and of course raised and returned into the Exche­quer, and the King expresly reserved unto [Page 241] himself a Power of raising them without convening any Council at all; so that in short all the Common Council that can be here found by him is only a Curia Regis for the assessing of Escuage, so that where 'tis Nul­lum Scutagium vel auxilium, auxilium is con­fined to such as lay upon the Tenants who were to be summoned to the Curia, who were Tenants by Knights Service only; and therefore he rightly observes (if he takes it of such as held not per servitium Militare) Page 151. that the Burgesses were not Suitors to the Cu­ria Regis, and where 'tis Commune Conci­lium de Auxiliis, & de Scutagiis, if they ought to be joined together, the Word Scutagium brought in with an and is exegeti­cal, and explanatory of the general Word Aid, and confines it to Aid upon Tenants by Knights Service: and it is certain that the matters excepted were incident to Knights Service as well as Socage Tenure. According to which, as London held in common Socage, [...]ili modo fiat de Civitate London, must be meant, that as Escuage was raised in the Common Council of the Tenants by Knights Ser­vice, in like manner Tallage in London should be settled in its Common Council; for accor­ding to Mr. Hunt, the City of London being a Burrough, was no part of the Curia Re­gis, which he says is the Commune Concili­um just before mentioned, wherefore simili modo fiat can have no other meaning; being 'tis manifest that their Aid was to be raised in a Common Council.

[Page 242] After all it must be agreed, that this Charter is not carefully, and clearly penn'd, however here is enough to shew that it can­not possibly serve the contrary side. Be­sides the uncontroulable Evidence of what was the modus of General Councils both be­fore, and after the making of this Charter, Vid. Jan. Ang. Facies nova throughout. till the 49th of H. the 3d.

But Mr. Hunt might well be out, in his Interpretation of King John's Provision a­bout the Tenants in Capite, since.

II. He mistakes the Nature of Tenure in Capite, which I shall evince by these three particulars.

  • 1. In that he supposes that none of the Tenants in Chief were Majores Barones, but Bishops, and Earls.
  • 2. That none were Barones Regni, but Tenants in Chief, and none Barones Regis, but such as were called of Grace to Parlia­ment.
  • 3. In imagining that if a Tenant in Ca [...] ­te, granted out to never so many, all the Grantees were Tenants in Capite, and owed the same entire Service that the first Gran­tee did.

1. His Errours upon his first and second Heads cannot be truly shown, unless they be fully transcribed in their full Dimen­sions.

When the Conqueror (says he) did in­novate his Tenures in Capite, and made all Page 156. Men of great Estates Barons, and by their [Page 243] Tenures and Estates Members of Parlia­ment, we then had such Laws, quas vulgus elegerit, and the nwe had materially our three Estates, though not so well sized and sorted as since.

We had then I say many great Free-holders Mr. Hunt, p. 157. in every County that by their Te­nures were Members of Parliament, where­as now we have but two, and tho the Peo­ple did not not chuse them, yet the Men of that Order, seem chosen once for all interpretatively by the People in their consent to the Government. In this Con­stitution, scarce any Man that was fit to be chosen, but was without the Peoples choice a Member of Parliament, as there now are more who are fit to be chosen than they can chuse, so that the Barones Minores were then instead of Knights of the Shire, and the Barones Majores, Bishops and Earls did then, as now, make the Parliament.

Besides, Barones Majores and Minores there, was at this time a distinction be­tween the Barones Regis, and Barones Regni, which I will explain, to prevent any Mistake that may grow thereupon: The Barones Regni, were Barons by Tenure, and made part of the Government by the Constitu­tion of the first William, and so in process of Time, called Barones Regni, because they had by Continuance of that Constitution, acquired a fixed Right to that Honour.

But because of the frequent Wars be­tween Page 157. the Barons and the Kings at that [Page 244] time, they did omit to summon, some who were Barons by Tenure, and now duly called Barones Regni, to Parliament, and called others, that had no Right to be called Rati­one Tenurae, and those they called Barones Regis. This was ill taken by the Lords, and was one of the occasions of their War with King Iohn, upon which they obtained his Charter for Remedy, as follows. Baro­nes Majores Regni sigillatim summoneri faceret; the truth of this as to the Fact will appear by the History of those Times; and that this is the reason of this distinction of Barones Regis and Barones Regni, doth ap­pear by the recited Charter of King Iohn, where the Majores Barones are called Baro­nes Regni; for the Barons were more con­cerned for the losing of their Honours, than they were at the Communication of the like Honour to others, and with rea­son, though all Honours are lessened by the numbers of those that participate of them.

The Inconveniency and Mischiefs of this Mr. Hunt, p. 158: Constitution were very great, and very sensible, by making the Government to consist of one Order, there was no third to moderate and hold the Ballance.

I shall not here enlarge upon his [...], of the Conquest, nor upon his Con­jecture of one of the Occasions of the Barons Wars, nor yet upon his notion of three E­states materially the same when but one Or­der, and by the same reason, if all were in one, [Page 245] by virtue of▪ his Spiritual and Temporal Power, and he had by a Conquest all the pro­perty of the Nation, here the Government was materially the same, with Lords Spi­ritual and Temporal, and Commons in his Belly, as when he had disgorged, and scat­tered abroad the Property and Power.

But to the purpose of the above-men­tioned Heads.

1. Whereas he will have it, that only Bishops and Earls were Majores Barones, it appears manifestly to the contrary from the words of King Iohn's Charter, which he mistakes, Submoneri faciemus Archiepis­copos, Episcopos, Abbates, Comites & Majores Barones Regni, Sigillatim.

Here are Majores Barones Regni, after Bishops and Earls: And I need not here remind him of the Vanity of the Notion of making Majores Barones exegetical, or comprehensive of what went before. 'Tis certain if Bishops were Majores Barones as well as Earls, here are others intended al­so; and why are not such as held whole Ba­ronies, as some did, Great Barons? Besides, you shall find numbers of Barons to have received particular Summons, even to the Wars, according to the Provision in King Iohn's Charter for summoning the Majores Barones Sigillatim.

I will give him some Names, and see whether he makes Earls of them all.

[Page 246] Three Bassets. Claus. 47. H. 3. m. 7. d.

  • William de Harecourt.
  • Roger de Somerey.
  • Iohn Forreigner, Extraneus.
  • Richard de Grey.
  • Ern. de Bosco, &c.

But if all these were Earls, what thinks he of the nine hundred and odd, who re­ceived special Summons, De veniendo ad Regem cum Equis & Armis us (que) Berwicam super Twedam in the 29th of Edw. 1. Claus. 29. E. 1. m. 14 d.

2. Whereas he will have it that the Baro­nes Regni were Barons by Tenure, and the Mr. Hunt [...] p. 158. Barones Regis by Call to Parliament, he might have known that every Baro Regis was a Baron of the Kingdom, but every Baron of the Kingdom was not Baro Regis, in a strict Sense. Wherefore accordingly King Iohn's Charter confines the special Summons, which as, I say, was to the Curia Regis, to such Great Barons of the Kingdom as held in Capite. There being after Majores Ba­rones Regni in a different Provision, Et om­nes alios qui de nobis tenent in Capite.

Wherefore when all the Barons of the Kingdom were summoned, it took in the Majores and Minores, both those that held in Capite and otherwise. But when they are used distinctly, 'tis wholly contrary to his Supposition; for the Barones Regis were properly, and strictly, they who held im­mediately of the King, as all manner of Authorities warrant.

[Page 247] Indeed I am almost ashamed here to bring Proof of a thing so evident: But he may please to observe that Thanus and Ba­ro were always of the same Acceptation. Thanus Regis was strictly, he who held Lands of the King by any kind of Tenure; and so was Baro Regis; tho somtimes ap­propriated to him that held by Knights Service, and an ordinary Thane was no Vid. Jus Ang. ab antiquo, p. 108. more than an honest Free-holder by any sort of Tenure, as appears by Dooms-day-Book it self.

But I conceive the Difference between Baro Regni and Regis, is sufficiently shewn in this following Authority.

In the 23d of Hen. 2. Benedictus Abbas, Benedictus Abbas sub Ef­figie, Iulij A. 11. f. 72. in Bib. Cot. tells us the King summoned Magnum Con­cilium de Statutis Regni sui coram Episcopis, Comitibus, & Baronibus Terrae, & coram eis per Concilium Comitum, et Baronum, Mili­tum, et hominum suorum; he made the fam'd Assize at Northampton.

Here are Barones Terrae, or Regni, and Barones, Milites, et Homines sui. Here ei­ther all the Barones Regni were Barones Regis, or sui: And then his distinction between Baro Regni and Baro Regis falls to the ground; there being no Difference; or else there is that very Difference I stand upon, viz. That the Barones Regni were comprehensive of all sorts of Barons, the Barones Regis were the King's Tenants in Capite. Amongst which, there were Knights at least: And the Homines sui, I take it [Page 248] were his great Officers and Justices. These made a Select Council, acting in Parliament, and out of it, either in a full Body, or con­tracted by Agreement, as I could easily shew.

But the Tenants in Capite, were the King's ordinary Council, and therefore manifest­ly the Assize there was drawn up and ad­vised by them in full Parliament, with the Consent of all the Barons of the Kingdom: under which, in those ancient Times omnes quodamodo ordines Regni continebantur, as Cam: Ordines Angl. p. 61. Quarto. Mr. Cambden observes. But 'tis observa­ble, that here 'tis Homines sui, or Regis, to shew that the Justices and others, who came not upon the account of Free-hold, but as the King's Servants, were not to be termed Barones sui.

A few Years before this, there was a Vid. Jan. Ang. facies nova, p. 189. Summons for an Assembly at this very place; and 'twas manifestly no more than a Curia Regis.

1. Whereas there were the Barones Tit. of Hon. f. 583. Terrae at the last above named, to this were summoned only Tenants in Capite.

2. Whereas then they were to exercise a Legislative Power, de Statutis Regni; this was only for a Judicial Power, such as Te­nants in Capite exercised by themselves, for 'twas only upon the Case of Becket.

3. Whereas the former was called, Mag­num Concilium de Statutis Regni, this Mag­num Concilium, as some call it, was but Curia Regis: Barones Curiae Regis adjudi­caverunt [Page 249] eum esse in Misericordia: As Hove­den Hoveden, f. 494. informs us.

Now the Question is, Whether those Tenants in Capite, the Barones Curiae, were Barones Regis; which that they were, I think is very obvious, they being, by rea­son of holding of the King, obliged to at­tend at his Court: And that these were the King's Barons, or Barons of his Court, or owing Suit, and Service there, must needs be synonimous.

But utterly to silence this Gentleman, Mr. Hunt, p. 153. he grants that Hen. I. was crown'd in an ex­traordinary Convention of the People; that is more than Tenants in Chief consented to that Change in the Succession.

Now that very King's Charter, says Magna Char­ta, H. 1. 'twas Communi Concilio Baronum Regni; when among these he comes to mention such as held of him in Chief, he calls them his Barons, emphatically (not but that all were his Barons in a remote sense) Si ali­quis Baronum meorum, vel Comitum, sive alio­rum qui de me tenent mortuus fuerit, haeres suus non redimat Terram suam sicut faciebat tem­pore Fratris mei.

This Relief, it seems, in his Brother's time was uncertain, and immoderate, and was by him reduced to the old Standard, as 'twas in Canutus his time, as appears by the Comparison of the Laws of both.

The Earls Relief was eight Horses, four with Furniture, four without, besides Spelman's Glos. Tit. He­re [...]tum. Arms, and a certain quantity of Gold. [Page 250] The Thanus Regis primarius, as in King Spelm. Glos. Tit. Heriot. Canutus his Law, or qui ei proximus, as in Henry the 1st, paid for Hereot or Relief, which there were synonimous, four Hor­ses, two with Furniture, two without, &c. The Mediocris Thanus paid one Horse with Furniture, and other things more or less, according to the Custom of the Places un­der different Laws.

Here was Thanus, or Baro Regis prima­rius, the same with Baro Major, and Thanus Mediocris, or Baro Minor, one of the alij qui de nobis tenent in Capite mentioned in King John's Charter: And surely no Man will say that this Relief was not payable because of tenure in Capite.

By the 17th of King John, it had become customary for the Relief to be paid in Mo­ney; as appears by his Charter. Magna Charta Johannis Rs.

Siquis Comitum vel Baronum nostrorum, sive aliorum tenentium de nobis in Capite per Ser­vitium Militare mortuus fuerit & relevium debeat, habeat hareditatem suam per antiquum relevium, scilicet haeres vel haeredes Comitis de Baroniâ Comitis integrâ per centum libras, hae­res vel haeredes Militis de integro feudo, Militis per centum solidos ad plus, et qui minus debuerit minus, vel secundum antiquam consuetudinem feudorum.

Here Baro noster was manifestly the same with Thanus Regis in the older Laws; and Baro de Baroniá integrâ, with Thanus prima­rius, or qui ei proximus. The Mediocris Thanus Regis was the Miles, or libere te­nens, [Page 251] one holding in Chief by Knights Service, by whatsoever Proportion of a Knights Fee.

And by this time I think 'tis evident, that they whom Mr. Hunt supposes to have been the only Barones Regni, were in a strict Sense the Barones Regis, and but part of the Barons of the Kingdom.

3. Whereas he Imagines that if a Tenant in Capite by Knights Service granted out to never so many, they all owed the same en­tire and indivisible Service to the King, and were his Tenants in Capite; in this he must needs have been mistaken: But that I may not seem to misrepresent his Sense, I shall transcribe his Words, and then endeavour to bring them out of their Clouds.

‘The Feudal Baronage, says he, was as P. 163, & 164. large and as numerous as the Tenures by Knights Service in Chief, which were ca­pable of being multiplied several ways, for every part of the Fee, however divided, the Services reserved upon that Fee that were entire and indivisible, were to be performed by the several Proprietors of the several parts of the divided Fee.’

In this Paragraph there are three postu­lata.

  • 1. That Tenure by Knights Service in Chief, was Tenure by Barony.
  • 2. That every Tenure by Knights Service had some entire indivisible Service incident to it.
  • [Page 252] 3. That this entire indivisible Service was multiply'd to the benefit of the King, upon the Tenants aliening any part of the Fee.

The two first I agree to his Hands; but dispute the third, I conceive with good rea­son: For upon the first view 'tis evident, that if the Grantee of the King's Tenant in Chief by Knights Service would (before the After the Sta­tute of Qua Emptores en­tire Services, a [...] Fealty, H [...] ­rsots, and the like, might [...]e multiolyed to the Lord, upon the Tenants parcelling out the Lands, but not before. Vid. Talbot's c 8. R. f. 105 a. So Bruerton's c. 6. Rep. f 1. & 2. 1 Inst. f. 93. a. Mirror. p. 7. Statute of Quia emptores terrarum) have been a Tenant in Chief, by reason of the entire and indivisible Service incident to the Tenure of his Land, by the same reason the Grantees of Land held of the King in Chief by Socage or other Free Tenure would have been Tenants in Capite, because of Fealty, which is as indivisible an incident to all other Free Tenures, as Homage or any thing else belonging to Knights Service. And by Con­sequence upon this Notion, since the King, even before the pretended Conquest, had ra­tione Coronae, the Supream Signiory of all the Land of the Kingdom, as the Mirror shews: All the Land of the Kingdom would have been held of the King immediately before the Statute of Quia Emptores terrarum. And then to be sure ever after, since that provi­ded that Lands shall be held as the Feoffor held over, which by this opinion must al­ways have been of the King immediately.

But I mnst needs say, this Errour of Mr. Hunt's is the most excusable of any I meet with in his Book, because the great Lord Cook leads him the way.

[Page 253] For he tells us, and refers to the Mirror 1 Inst. f. 58. for Proof, ‘That by the Laws and Ordi­nances of ancient Kings, and especially of The Author of Antid: Brit. builds much upon this Au­thority. Antid. p. 10. King Alfred, it appeareth that the first Kings of this Realin had all the Lands of England in demesne, and les Grandes, Man­nors & Royalties, they reserved to them­selves: and of the Remnant they for the Defence of the Realm, enfeoft the Barons of the Realm with such Jurisdiction as the Court Baron now hath, and instituted the Free-holders to be Judges of the Court Baron.’

Then he tells us in his second Institutes, ‘That till the Statute of 24. E. 3. whereby 2 Inst. f. 65. 'tis provided that Alienations of Lands made by Tenants, which held of H. 3. or of other Kings before him, to hold of them­selves, should stand in force, saving to the King his Prerogative of the time of his Great Grand-Father, his Father, and his own: It was doubted, whether the King's Tenant, might have given part of the Te­nancy to hold of himself.’

Which is in Effect the same with Mr. Hunt's Notion of all the Tenants hold­ing of the King in Chief.

1. But 'tis obvious that by what the Lord Cook said of the Laws of King Alfred and others; whereby he supposes Tenures were erected not only of the King, but of his Grantees, who had their Court Barons: His Opinion was that the King's Tenant might have granted out to hold of himself, [Page 254] for otherwise how could he have had his Court of Tenants?

2. Whereas he supposes that the Laws of King Alfred, shew that the Kings had all the Lands in Demesne, there is but one Law of King Alfred, mentioned in the Mir­ror, and that is for the great Councils assem­bling at London twice a year, or oftner, if 1 Inst. ibid. need be; Not any thing of Tenures.

3. But amongst the Establishments made per cel estate per plusors Royes, by several Kings in Parliament, the Mirror says, Assentus Mirror p. 11. fuist que les choses suivant serrent appendant aux Roys & al droit de la corone, Soveraigne jurisdiction, la Soveraign Signory, &c. come Franchises, treasnre trove, &c. Then it goes on Ceux droits retiendrent les primers Roys & delremnant de la terre enfefferont les Countees, Barons, &c.

Here 'tis plain that no more than the Rights aforesaid, amongst which Chief Ci­ties, Chief Ports, and Great Mannors were named, not all the Lands, were retained by the first Kings: And tho they are said to have Infeoff'd others of the rest of the Land to hold of them, yet that does not necessa­rily imply that they had all in them before: Nay, the Mirror shews the contrary; for it says, ‘That after God pleased to abate the Ibid. p. 7. British Nobility, who used Force rather than Law, he left the Realm to the most humble and simple of all the adjacent Countries, the Saxons, who came to con­quer it from Almain, de la quel gent il y eu­rent [Page 255] iesque quarant Soveraigns que touts soy tiendrent a Companions.’ Amongst these forty Princes, being equal and independent, here was no King, till they came to make a Choice. And so the Mirror tells us they did, having felt the smart of their Compe­titions. Then Eslierent de eux un Roy a reigner sur eux & Governer le People de dieu & a Maintainer & Defendre les Persons & les Biens en quiet per les Rules de droit.

This shews they did not resign their Pro­perties to the King, for they chose him to defend them, yet it seems they consented to take Grants from the King by such Ser­vices as were in common agreed upon: And though they were principally from him, as Vid. Spelman's Councils, Vol. 1. f. 340. Rex non potuit di­strahere patri­monium Regni sine assensu procerum. Head of the Body Politick, yet any Man that observes the Forms of the Saxon Kings Grants, will not think it a vain Imagination, that such as I speak of, should have been with universal Consent.

4. But I cannot find any Warrant to question the Tenants Power at the Common Law to Grant out to hold of himself. And I am sure there is an express Resolu­tion for it in Dyer, the Words are thus in English;

‘A Man seized of a Mannor in Fee, held Dyer [...]. Eliz. f. 229. b. of the King in Capite, before the Statute of Quia Emptores Enfeoffs J. S. of part of the demeans in Fee, without saying more: the Feofee enfeoffs another to hold of the Feoffor and his Heirs by 26 s. and 8 d. Rent for all Services. The Land clearly [Page 256] is not held in Capite. And the first Mes­nalty is not held of the Feoffor as of the Mannor by Knights Service.’

The Statute of 34 E. 3. mentioned be­fore by the Lord Cook, is not in the least contrary to this: For whereas before Mag­na Charta, the King's Tenant might have alien'd as he pleas'd, and Magna Charta's Provision (Quod nullus liber homo det de caete­ro Magna Charta cap. 32. amplius alicui, vel vendat alicui de terrâ suâ, quàm ut de residuo terrae suae possit sufficienter fieri Domino feodi servitium ei debitum, quod pertinet ad feodum illud) interpretatively gave a Fine to the King when his Tenant alien'd; which was not due before that great Charter was made; The Statute 34. E. 3. gave the King Fines for Alienations made in the time of any King, even before the making of the Charter.

The Lord Cook cites an Answer to a Petition in Parliament, 18. E. 1. Rex non vult aliquem medium, which is no more than that he would not grant his Tenant who then petition'd, Licence to alien: However he had not forfeited his Land if he had a­lien'd, but the King might have entred and 2 Inst. f. 66. seized the Land in the Name of Distress for a reasonable Fine for the Trespass: Which the Lord Cook takes for the better Opinion. And if the Land were forfeited, to be sure the indivisible Service could not have been multiplied, as Mr. Hunt imagines.

[Page 257] 'Tis certain, that tho at the Common Law the King, or any other Lord, might have distrained for his Services, reserved upon the Original Grant, in the Lands of any inferiour Grantee as well as in the 1 Instit. f. 142. Lands of his immediate Tenants; yet there was this Inconvenience, that the Wardships and Marriages were not so con­siderable when the Lands were parcell'd out, and the Lands of the immediate Te­nant, (who only was to be in Ward, or to be married by the first Grantor) were of less value.

Therefore was that Provision by Magna Charta, by the Interpretation of which, the King was to have Fines upon Aliena­tions. But tho the Inconvenience of Te­nants aliening to hold of themselves, was taken away by the Statute of Quia emptores Terrarum, 18 Edw. 1. which gave Tenants free Power to alien their Lands; and pro­vided that the Alienees should hold of the Alienors immediate Lords with an Ap­portionment of Services: Yet Licences of Alienation being of settled Prerogative, were not taken away from the King, he not being named in the Statute. 2 Instit. f. 67.

By that Statute indeed, if a Tenant in Capite aliened with Licence, the Alience became Tenant in Capite; for the Statute divided the Signiory. But how it could be at the Common Law in any other Case than that of Copartners, who are but as one Heir, and plac'd in the same Relation [Page 258] to the Lord, I cannot imagine. I find in the Statute of Ireland this of Copartners is mentioned as the Law of England.

In Regno nostro Angliae talis est Lex & 14 H. 3. Tit. Prerog. Stat. de Hibernia 1 Inst. f. 67. a. Consuetudo, quod siquis tenuerit de nobis in Ca­pite, & habuerit Filias heredes, ipso patre de­functo, antecessores nostri habuerunt, & semper nos habuimus, & cepimus homagium de omnibus hujusmodi Filiabus, & singulae earum tenerent de nobis in Capite in hoc Casu.

Which shews that the Case of Copart­ners (being a single Instance of the continu­ance of the same immediate Service, not­withstanding the division of the Fee,) was an Exception out of a general Rule.

But I dare say, no body that under­stands any thing of the Feudal Law, as it has been received in this or other Nati­ons, will be of Mr. Hunt's Opinion in this particular.

3dly, Mr. H. would have done well to have answered the Objections against the sup­posed Conquest before he concluded for it; and I shall take it for granted, 'tis a Que­stion heartily begg'd, 'till I find an Answer to these Arguments in Ius Anglorum ab an­tiquo.

1. That the Histories of those Times Vid. Jus Ang. p. 34, to 58, & p. 139. Mr. Pe­tyt's Preface, p. 20. So Ro [...]. de temp. R's Jo. Lord Hales his Collections in Lincolns-Inn, lib. prove undeniably, that William the first came in upon Terms, which he swore to at his Coronation, and solemnly confirmed afterwards. This indeed was a Conquest in the Language of those times, as 'twas di­stinguish'd [Page 259] from an Hereditary Right, but no otherwise.

Thus in King Iohn's time, a Man pleads, that his Father had such a thing de Conquest [...] suo, viz. by his own Purchase or Acqui­sition.

2. That Dooms-day-Book it self demon­strates that Men enjoyed their Lands under Jus Angl. p. 80 to 100. their old Titles, And those Laws of St. Edw. which the Histories assure us were confir­med by Compact with William the first, without particular Confirmation of their Estates.

3. That we have later Records of the allowance of Titles derived from before the Norman Acquisition, nay, even of the Ibid. p. 112, to 117. whole Palatinate of Chester, the Title to which was laid only in Descent, even after King William's Confirmation.

4. That ancient Historians, and Dooms-day-Book confirm the Opinion of that Addit. p. 90. Jus Angl. p. 99, to 106. Judg in Edw. III. time, who informs us that William the first, disseized only them that were in Arms against him, and forfeited by Mr. Hunt, p. 130. opposing that Title which the Nation re­ceived.

Till Mr. Hunt has answered these Argu­ments amongst others in Ius Anglorum ab antiquo; I hope he will not be angry that some are so critical that they will not call the first William, Conqueror; especially since Conquestor and Conquestus cannot now be reduced to their old peaceable Signification.

[Page 260] And therefore are by no means to be admitted, unless we take the sense of the Judicious Lord Clarendon, who rebukes Mr. Hobbs for insisting upon William the first his Title by Conquest, as being what he himself renounced and abdicated, if he ever had it.

If Mr. Hobbs says that unhappy Great Survey of the Leviathan, p. 109. Man,

Had taken the pains, and known where to have been informed of the Pro­ceedings and Transactions of William the Conqueror, he would have found Cause to believe that that great King did ever dexterously endeavour from the time that he was assured that his Possession would not be disturbed, to divest himself of the Title of a Conqueror, and made his legal Claim to what he had got by the Will of Edward the Confessor, whose Name was precious to the Nation, and who was known to have a great Friend­ship for that Prince, who had now reco­vered what had been his.

And he knew so well the ill Conse­quence which must attend the very ima­gination that the Nation had lost its Pro­priety, that he made haste to grant them an Assurance that they should still enjoy all the Benefits and Priviledges which were due to them by their own Laws and Customs: By which they should be still governed as they were during that King's whole Reign, who had enough of the un­questionable Demesnes, and Lands belong­ing [Page 261] to the Crown, of which he was then possest without a Rival, and belonging to those Great Men; who had perish'd with their Posterity in the Battel with Harold, to distribute to those who had born such Shares, and run such Hazards in his pros­perous Adventure. And those Laws and Customs, which were before the Con­quest, are the same which the Nation and Kingdom have been since governed by to this day; with the Addition of those Statutes and Acts of Parliament, which are the Laws of the Successive Kings, with which they have gratified their Subjects, in providing such new Security for them, and Advantages to the Publique, as upon the Experience and Observation of the Ages and Times when they were made, contributed to the Honour and Glory of the King, as well as Happiness of the People. Many of which are but the Co­pies and Transcripts of ancient Land­marks, making the Characters more plain and legible, of what had been practised and understood in the preceding Ages, and the Observations thereof are of the same Profit and Convenience to the King and People.

And upon Mr. Hobbs his Supposition, that William the first, at his Reception had dispens'd with the Subjection of the Ecclesiasticks, by the Oath he took not to infringe the Liberty of the Church: The Lord Clarendon has to the same purpose with the former, or rather [Page 262] as evidence that there was no colour of a Conquest, these words:

‘They who know any thing of that Survey of the Lev. p. 148. time, know that the Oath he took, was the same, and without any Alteration, that all the former Kings, since the Crown had rested on a single Head, had taken, which was at his Coronation, after the Bishops and the Barons had taken their Oath to be his true and faithful Subjects: The Arch-bishop who crowned him, pre­sented that Oath to him which he was to take himself, which he willingly did, to defend the holy Church of God, and the Rectors of the same; to govern the uni­versal People subject to him, justly to establish equal Laws, and to see them justly executed. Nor was he more wa­ry in any thing, than, as hath been said before, that the People might ima­gine that he pretended any other Title to the Government than by the Con­fessor; tho it is true, that he did by de­grees introduce many of the Norman Customs, which were found very useful or convenient, and agreeable enough, if not the same, with what had been former­ly practised. And the common Reproach of the Laws being from time to time put into French, carries no weight with it: For there was before that time so rude a Collection of the Laws, and in Languages so Forriegn to that of the Nation, British, Saxon, Danish and Latine, almost as un­intelligible [Page 263] as either of the other, that if they had been all digested into the English, that was then spoken, we should very little better have understood it, than we do the French, in which the Laws were afterwards rendred. And it is no won­der since a Reduction into order was ne­cessary, that the King who, was to look to the Execution, took care to have them in that Language which himself best un­derstood, and from whence issued no In­convenience, the former remaining still in the Language in which they had been written.’

CHAP. III.

That Mr. Hunt himself in Effect grants, that more than Tenants in Chief had right to come to the Great Council of the Nation in which the Nation's Rights were involved.

‘I Do not deny, (says he) but upon a Change in the Succession to the Mr. Hunt, p. 153. Crown, there might have been in this time extraordinary Conventions of the People, to declare their universal Assent for better assuring such Successors, discoun­tenancing the real Prince, and preserving the Peace, as in the Case of William the second, Henry the first, King Stephen, and King John, &c. with an assent of such an Assembly as this; at least King John should only (if so) have made his King­dom Tributary to the Pope.’

1. Here he grants that sometimes more than Tenants in Capite assembled at Coun­cil.

2. That to some purposes such Assemblies were needful, not only to quiet the Minds of the People, but to transfer over a Natio­nal Right.

For, he says, if ever there were extraor­dinary Conventions, which he owns to have [Page 265] been in some Cases, then King John could have made the Kingdom Tributary only in such a Council, viz. an extraordinary Convention. Wherefore Government being, Page 155. as he says, Rei Publicae Communis Sponsio, he grants, that the Government here, was not absolutely in the King and his Te­nants in Chief: For if it had, they might have disposed of all the Nation's Rights.

Wherefore in effect, he yields, That the Men of that Order were not chosen once for all Ibid. pag. 157. interpretatively by the People in their Consent to the Government.

But further, if he yields us those Autho­rities which shew that the People of the Land, the Free-holders, used to assemble for the declaring their Assent to the Su­pream Governour, with what colour can he set aside those Authorities which menti­on Assemblies to other purposes in as gene­ral Terms?

If an ordinary Free-holder was under the word Populus at an Election to the Crown, or Recognition of a Title; how comes the Signification to be restrained at other times? Will not Vulgus, Plebs, Populus mi­nor, Laici mediocres, and the like, denote Supra p. 212. more than Tenants in Capite, as well at one publick Assembly in the some King's Reign, as at another? Unless a prior Law be shewn, which excludes the Commons from one Council, but admits them to the other? But I cannot find any thing more in this Suppositi­on than a downright begging the Question. [Page 266] Indeed if William the first made a Conquest of England; so as that he divided out all the Lands of the Kingdom to be held of him in Chief: And the Alienees of Tenants in Chief still held immediately of the King; neither of which will readily be proved: then in­deed, but not till then, the Populus Minor at the Councils would be taken for the Te­nants in Chief only. But the admittance that the presence or consent of more than Te­nants in Chief, was at any time needful to any Act of rightful Civil Power, wholly de­stroys the supposition of a Conquest; unless we can believe that the conquer'd ought to give Laws to the Conqueror; or that, not­withstanding any kind of Establishment, the dernier resort, and Supremacy of Power, is always in the People. Which is a No­tion that would unsetle all Governments, making them precarious. Whereas he him­self tells us,‘No Government can be le­gally, or by any lawful Power chang'd, but Mr. Hunt p. 122. must remain for ever, once establish'd.’

CHAP. IV.

That even according to Mr. Hunt's No­tion of Tenure in Capite, all Proprie­tors of Land, as such, had till the 49th of H. 3. right to come to Parliament.

THis, though never so strange, I think will be granted me, that he does, if he makes all the Free-holders of the Kingdom Tenants in Capite per Baroniam.

He supposes,‘that the whole Kingdom was upon the matter turn'd into one great Ibid. p. 131. Mannor by William the First (all Men made his Tenants) And that all the great Possessions (by which he must mean the Mannors, of which others held) were made Baronies.’

Now this, ‘Feudal Baronage, he Page 129. says, was capable of being multiplied se­veral Page 163. ways: For every part of the Fee, however divided, the Services reserved Page 164. upon that Fee, that were entire and indi­visible, were to be performed by the seve­ral Proprietors of the several parts of the divided Fee.’

Since he uses this as a Proof of the Mul­tiplication of Baronies, according to the Argument, Baron-Service was indivisible.

[Page 268] Thus every Proprietor, as he had part of the divided Fee, was part of the Baronage, and consequently, ‘If all the Baronage both Spiritual and Temporal de jure, ought Page 173. to have Summons now to Parliament, without respect to Estate or Tenure, there would be a great many Pretenders.’

But to be sure, when all the Baronage were summoned antiently, these inferior Tenants came, by his own Rule, as owing the Service of Barons, and so ratione Tenurae, were Barones Regni.

But the Baronage of England having been always, in his Opinion, the Lords Spiritual, and Temporal; and Nobility having been Page 2. Foudal, or because of the Feud, the Bur­gesses, being all, according to him, till about the time of H. 3. under Tenure by Baronage, were as good Lords as the best; And why were not honest Free-holders so too, as well Page 179, & 180. as Traders, most of them, then 'tis likely, Mechanicks?

CHAP. V.

Whereas he would set aside the Questions of what the Government was, till 49th of H. 3. as impertinent. (1.) His own Notion, by which he would supplant the Labours of others, de­stroys it self, while mine maintains what he aims at. (2.) He puts such matter in Issue for asserting the present Government, as can never be maintained. (3.) He yeilds so much of the Fact against me as sets aside the whole Foundation of his Postscript. And yet admit he answers all Objections against his Post­script, the Grounds which I go upon are of the most General Use.

‘FOr preventing the Worlds being Page 156. troubl'd with impertinent Labours, and to divert those that thus em­ploy themselves to Undertakings more useful to the Publick, & advantagious to themselves, he thought fit to tell us, that the Parliament was always materially the same.’

But we are at a loss to know what he means, by materially the same.

For 'tis manifest, that according to his Notion, if the Government were from the time of our Dispute always in one, it would have been materially the same, as 'tis now, and yet he will not allow the Legislative Power to be in one here. ‘Every Govern­ment, Vid. Postscript p. 28. says he, is the Representative of the People in what they are to be govern­ed [Page 270] by it, by their consent to it, in the first erecting thereof, they do trust their Go­vernours Mr. Hunt, p. 155. with the Rule and Order of their Lives and Estates for the Common-Weal.’ This seems to be his meaning of materially the same, as 'tis brought to shew that 'tis not needful, in order to the maintaining the present right of the Commons, to shew, ‘That the Counties in all this time had their Representatives in Parliament, by the for­mality of a Choice.’ Which no Man, that I know of, has of late laboured to prove.

But if this be his meaning of materially the same, then all Governments are materi­ally the same; Whereas they may be so for­mally, as founded in the consent of the Peo­ple, which he presupposes.

But if William the First was an absolute Conqueror, as he all along yeilds to Dr. Bra­dy, where was the consent of the People to his Government? And how can a Govern­ment by consent, now of constituent parts, different from what he thinks ours was at the first Erection by the Conquest, be either materially or formally the same with such a Government by Conquest?

But we must seek further for his Page 148. meaning in materially the same. He tells us, the Parliament and the Curia Regis, were materially the same, that is, as one would think there, consisted of the same Members, the only difference being laid to be in the nature of the Summons. And yet he tells [Page 271] us, that the ancient Burroughs sent Members Page 151. to Parliament, but that such were not Suitors to the Curia Regis: How then were these materially the same?

Thus 'tis plain that he has laid no man­ner of Foundation for our Government by King, Lords, and Commons, or by King, and three States (which he takes to have been the E [...]entials of our Government from the Conquest) but what himself un­dermines. Whereas what I go upon pre­vents all manner of Pretences for unhinging of it, and is the same in effect with what the Great Fortescue observed in the time of H. 6.

Et in omnibus Nationum harum, & Regum Fortescue de laudibus Le­gum Ang. p. 38. b. earum temporibus, regnum illud eisdem quibus jam regiter consuetudinibus continuè regulatum est, quae si non optimae extitissent, aliqui illorum justitiâ, ratione, vel affectione concitati eas mut assent.

Indeed this Assertion, of that famous Chancellor, has been much exploded by those, who think that the altering of some Laws, or Customs, is a change of the Go­vernment; And therefore say, that he was greatly mistaken, because many old Customs have been abolish'd: Whereas he certain­ly meant it of the Fundamental Constituti­on. Which, as far as ever I could learn, was, and is, that every Proprietor (of Land especially) should in the General Council of the Kingdom, consent to the making those Laws under which they were to Live.

[Page 272] In the time of the Confessor, as appears in Vocatio & Congregatio Populorum & Gentium om­nium qui ibi omnes conve­nire debent, & universi qui sub protectio­ne & pace Do­mini Regis de­gunt & consi­stunt in Regno praedicto, & ibi providere de­bent indemni­tatibus coronae regni hujus per Commune Concilium & ibi providendum est ad insolentiam malefactorum repri­mendam, &c. Leges Sanct. Ed. de Grove. Vid Ius Angl. ab Antiq. Cap. 7. Dr. Brady says, the Controversy is concerning matter of Fact only. Against Jan. Angl. facies nova. p. 1. the Transcript of his Laws, there was a Folcmote, or General Assembly of the People of all the Counties of England, which was to be held once a Year on the Kalends of May, to treat of all Matters of State and Publick Concern: the very Law for such Assembly was received and confirmed in the 4th of William the First. So that then by Law, and of Right, whatever was the Fact, the Peo­ple of all the Counties of England, that is, all the Members of the County Courts, the Free-holders, were to meet in a Great Coun­cil, or Parliament, as we now call it.

Admit that this is to be taken of every County respectively, (which were to make as many distinct Governments as Counties): still the Sym. Dunel. f. 243. Anno 1121. So Mat. West. f. 352. 37. H. 3. Adunatio Conciliorum, or, Calling Ego enim quando volue­ro faciam ea satis summoneri propter mea dominica necessaria ad voluntatem meam Ian. Angl. p. 34. Spelm. Glos. tit. Hund. together of the Counties and Hundreds, as often as there was need, which H. the [...]st promis'd by his Charter, would come to the same thing.

And that all the Members of the several Vid. Additions to Ius Angl. ab antiquo a p. 20. [...]d p. 32. County Courts, were Members of the Great or General Council, and came accordingly if [Page 273] they pleased. Not to mention the several Authorities by me formerly insisted on, I conceive may appear by comparing two Authors of undoubted Credit and sufficient Antiquity, who shew what the Great Coun­cil was in the time of Henry the second.

In the 16 of Henry the second, that King held his Easter Court Baron at Windsor, as Bromton shews us, Rer tenuit Curiam suam in solemnitate Paschali. Thither indeed Brompton, f. 1060. were flock't most of the Nobility, fere om­nes Regni Anglae Episcopii, & Magnates.

But this being a Curia de more, or an or­dinary Court, which no more than Te­nants in Chief were obliged to take notice of, nothing of universal Obligation could then be Establish'd: Wherefore from hence the King went to London, where, as that Historian says, de Coronatione Filij sui Brompton, An. 1170. Henrici majores & Regui sui Statutis mag­num celebravit Concilium. Gervasius, who Gervasii Cro­bica, f. 1412. lived in that very time, acquaints us par­ticularly with the Summons, and Appea­rance thereupon, Convenerunt die Statuto ex mandato Regis ad Londoniam totius An­gliae Episcopi, Abbates, Comites, Barones, Vice-comites, Praepositi, Aldermanni, cum Fi­de-iussoribus suis.

There assembled at London, according to the King's Summons, the Bishops, Abbots, Sheriffs, the Heads of Hundreds, and of Ty­things, This Expla­nation is war­ranted by St. Edward [...] [...] Habent etiam with all the Frank-pledges through­out England; unless the Fide-jussores An­swer to the Manucaptores, of which imme­diately. [Page 274] If this take not in all the Free-holders Aldermanni in Civitatibus & in Burgis clau­sis & murae val lat [...], & in Ca­stellis eandem Dignitatem & Potestacem, & modum qua­lem habent praepositi Hun­dredorum & Wapentachio­rum. Vid. Spel. Glos. Tit. Al­dermannus. of England, I know not what will; for he that was within no free-pledge, or was no Fide-jussor, was either an Out-Law, or not his own Man, but his that was to be answerable for him: But every Master of a Family, or Jus Angl. ab antiq. p. 192. Free-holder, that was within the Protection of the Laws, was one of the Frank-pledges. And indeed Bronton tells us in express Terms, that all the Libere sui Regni tenentes all the Free-holders of the Kingdom were there, for they all swore Allegiance to the young King, as well as to the Father.

Omnes Comites, Barones, & liberos Regni sui tenentes devenire homines novi Regis Filij sui sibi (que) super reliquias sanctorum Ligeantias Bromptor, f. 10 [...]1. & Fidelitates jurare, Fidelitate semper nihil­ominus suâ salvâ.

But if the Fidejussores mentioned in Ger­vasius Ex Blundel Brev. penes Rem. R's in socio, 23. E. 1. North Nomi­na duorum mil. Johannes Doyley de Stoke miles Willus Mur­dake miles Manucapto­res Johannis Doyley mil. Ris. Bird de Stoke Wiliiel. Ellis de eadem. Many more of like nature. were no more than the Manucaptores, which used to answer for the Appearance of them that were chose to represent the Counties, Cities, and Boroughs in Parlia­ment, then here is positive proof of such Representation of the Commons as was in the times of Edw. I. Edw. II. and so down­wards. Yet 'tis not improbable that the Pledges, or Manucaptors for the Knights, Citizens and Burgesses chose to parliament, were introduced long after this time in­stead of the Fidejussors, or Frank-pledges, when that admirable ancient Polity about Frank-pledges became impracticable, and [Page 275] was discontinued or broken through the Francus, Ple­gius seu Fide­jussor Spelm. Glos. Tit. Franc. pl. general Corruption of Manners, which rendred it impossible for whole Neighbour­hoods to answer for one another, and through the Pride and Ambition of some who thought themselves above that Law.

And when the numbers of Frank-pledges, (had that happy Combination still been maintained) would through the vast Mul­tiplication of Proprietors have been too great to assemble together upon any Oc­casion requiring Counsel and serious De­bates.

There is one Difficulty which arises upon the examining this point of Antiquity; that is, since we rarely meet with Autho­rities, So nono H. 3. Milites & libe­re tenentes & omnes de Reg. Magna Char­ta cap. 38. 2 Inst. f. 76. tho some there be, which particu­larly describe such as Citizens and Bur­gesses as summoned to, or present at the General Councils of the Kingdom, What shall we think of them.

To which I am bold to say, that even Citizens and Burgesses might have come un­der the Consideration of Free-holders, in­ter liberos Regni tenentes, or, Barones, Baro­nagium, Barnagium, or the like.

For either they were; 1. Corporations by Charter; Or, 2. Corporations by Pre­scription. Spelm. Glos. Tit. lib. hom. ad Nobiles [...] lim s [...]tabunt [...] [...] a majoribus or­tos omniuo li­beris. And I think it will be probable at least, that Property in Land, the continu­ance of which in any Family made Nobi­lity, was the occasion of the Priviledges of them all. And in such respect the Free­men there were numbred amongst the No­bles, [Page 276] tho afterwards when Trade prevai­led amongst them, the Generality of them might be but quasi optimates, and yet by Custom, they obtained the name of Barones, Vid. Can [...]den's Ordines Angl. f. 122. as in London, Warwick, the five Ports, &c. And probably upon the account of the first Erection.

But that I may not talk wholly at ran­dom, I shall offer a Scheme of the ancient Polity, in relation to them which at least will not be disproved.

For the first, the Corporations by Char­ter, they were of two kinds.

  • (1.) Such as were incorporated by the King.
  • (2.) Such as were incorporated by the Subject.

1. Of those that were incorporated by 1 Inst. f. [...]10. b. the King there were Cities, that is, Boroughs, which had a Bishop's See, or else Boroughs only. But the Episcopal See, making the only difference, they fall not here under any different Consideration.

I conceive that though to these at the time of the Incorporation, the King gran­ted several Franchises, as Markets, Fairs, and the like: Yet he gave no Right of sending Members to Parliament, to them who had it not before: but of them that were so incorporated, some were Minores tenentes in Capite, inferiour. Tenants in Chief, such as by King John's Charter were (where not incorporated) to be summoned in general to the Commune Con­cilium, [Page 277] or Curia Regis. Many of these for the sake of such Immunities as belonged to free Boroughs, consented to be incorporated: and thereupon they being one entire Body, naturally fell into a Representation, and answered together by their Head-boroughs, or any other that they chose, as one Te­nant.

St. Albans I take it was of this kind, the Burgesses of which pleaded, that they held the said Vill of the King in Capite, & ipsi sicut caeteri Burgenses Regni ad Parliamenta Rot. Parl. 8. E. 2. N. 233. Regis cum ea summoneri contigerit per duos comburgenses suos venire debeant prout totis retroactis temporibus venire consueverunt pro omnibus Servitus Regi faciendis, quae quidem Servitia iidem Burgenses & Antecesso­res sui Burgenses Villae praedictae tam tempore Domini Edwardi nuper Regis Angliae Patris Regis & Progenitorum, quam tempore Regis nunc semper ante instans. Parliamentum ut p [...]ittatur [...] Nomina quorum Bur­gonsium sic praedictâ Villâ ad Parliamenta Regis ve [...]entium in rotulis Cancellariae semper irro­tulata fuerunt.

I before had occasion to examine Dr. Brady's Interpretation of the Answer to the [...]ea; here the Plea it self comes to be considered: And whereas he renders p [...]o o [...]us Servitus, in lieu of all Servi­ces, Dr. Brady a­gainst Mr. Pe­tyt, p. 78. I conceive the Sense to be no more than thus:

That they held of the King in Chief, and that as other Burgesses of the Kingdom, [Page 278] they were to be represented at the King's Parliaments, when they happened to be summoned by two of their fellow-Bur­gesses, as ever since they were incorpora­ted, they had used to come, for the perfor­ming of any of their Services. And that they So if summo­ned to attend the Justices in Eire, or the like. had not forfeited their Charter, nor ought their Corporation to be dissolved, for that they had duly performed all their Services. And for proof that, to Parliament especi­ally, they had all along come by Represen­tation, they appeal to the Rolls of Chan­cery.

Certainly, no Man, before the Doctor, thought that the coming to Parliament excused any Rent or other Service, which was incumbent upon them.

But thus much is obvious from this, that here were Minores Barones, Tenants in Chief (whose Tenure must have been cre­ated by Charter) who were fallen into a Representation: And that this was upon the account of Property in Land, which occasioned their Services, and their being united as one Tenant.

But besides these, there were Tenants of Honours or Manors in the King's Hands, or in the Subjects, which were incorporated by the King's Charter, and sent their Re­presentatives to Parliament.

I shall instance only in a Corporation holding of a Subject, but incorporated by the King's Charter.

[Page 279] King John by his Charter to William Pro Burgen­sibus de Brug­water ut sit li­ber Burgus per Chartam Regis Johan. factam Wi. Br. Cart. 11. Ed. 2. m. 5. n. [...]0. Cart. 11. E. 2. m. 5. n. 132. Vid. Prin. Regist. of Writs. Brewer, who in all likelihood was Lord of the Mannor of Brugwater or Bridgwater, grants that Brugwater should be a free Bur­rough, and that it should have Markets and Fairs. And 26 of Edward the first, when the first Roll of Burgesses begins, we find Burgesses for Bridgwater entred amongst the rest.

And 'tis observable, that there is not to be found any Charter giving them the pri­viledg of sending Burgesses, nor could such a Priviledg arise by Implication. Where­fore they must necessarily have come upon the account of their Property in Land, with no other Alteration than that their divided Interests were all conjoyn'd in one.

2. But besides these, there were some in­corporated by Subjects.

Of those who incorporated them, some had Regalia themselves, as the Counts Pa­latine of Chester: One of which Leofrick, Brother to the Confessor, in his life-time, incorporated Coventry under the Prior and Monks of Chester. Whereupon the Bur­ghers of Coventry were represented in the General Councils of the Kingdom as one en­tire Body. We find that it sent Bur­gesses to Parliament 26 Edw. 1. and from its first Corporation must needs have done so, according to its Plea which was allow­ed 34 Edw. 1. For it pleads that it was neither Civitas, Burgus, nor Dominicum [Page 280] Regis. That therefore it ought not to be Inter Coima de term. St. Mich. An. 34. Edw. 1. vid. part of it en­forc't Jan. Angl. p. 241. taxt or taliated as such, but was to be char­ged only when the whole County was char­ged, or in the like Proportion: and they pray that the Taxors and Collectors may not be suffered to distrain amongst them, otherwise than it had been, totis re­troactis temporibus in all times past, since they Vid. at the end this inser­ted at large. became one Body; that is, that ever since they were a Body, they us'd not to be taxt as the King's Demesnes, whether Cities, Bo­roughs, or Manors (which might be out of Parliament, and even when there was a Parliament, they bore the heaviest Bur­thens): But as the County, as to the way of charging, or at least as to the Propor­tion, but they having been at Parlia­ment 26 E. 1. which was but eight Years Vid. Prin's Regist. before by Representatives of their own, not of the County in general, it shews how they had been taxt, totis retroactis tempo­ribus.

But besides the Charters of Counts Pala­tine erecting Corporations, there were others granted by some, who were particu­larly impowered to that purpose, or how­ever they might have been confirmed by the King afterwards.

But I shall give an Example of a Corpo­ration raised by virtne of such a Power given by the King, and confirmed after­wards.

[Page 281] Thurstinus Dei Gratiâ sciatis me dedisse, & Charta Anti­qua R. n. 18. concessisse, & Concilio Capituli Eborac & Be­verlac & Concilio meorum Faronum meâ Cartâ confirmasse hominibus de Beverlaco om­nes libertates iisdem legibus quibus ulli de Ebo­rac habent in suâ Civitate, praeterea enim non lateat vos quòd Dominus H. Rex noster con­cessit Hen. I. nobis potestatem faciendi de bonâ volunta­te suâ, & sua Chartâ confirmavit Statuta no­stra & Leges nostras juxta formam Burgensi­um de Eborac. &c.

H. Rex Angliae, &c. Sciatis me concessisse, Carta Ant'q. R. n. 15. & dedisse, & hâc Chartâ mea confirmasse Ho­minibus de Beverlaco liberum Burgagium se­cundum libertates, Leges, & Consuetudines Bur­gens. de Eboraco, & suam gildam Mercato­rum cum placitis suis, & Feloneo & cum omni­bus liberis consuetudinibus, & libertatibus suis, cum omnibus rebus sicut, Thurstinus Archiepis­copus ea iis dedit, &c.

There is another Confirmation by King Henry of the Charter by Thurstan, and also Ibid. n. 16. William Arch-bishop of York, to the same free-Borough:

And also another of King Richard, Rich. I. wherein he mentions the Confirmation of the Bishop's Charters by his Grand-Fa­ther.

Tenentes de Villâ Beverlaci in auxiliis, tam Inter Bre. dir. Baron de Term. S. Trin. 8 Ed 2. penes Rem. D. Thes. This like Co­ventry. Regi, quam Primogenitoribus, cum Communi­tate praedict Comitatus semper hactenus & non cum Communitate Civitatum & Burgorum taxari & contribuere consuevisse.

[Page 282] I need not go to prove that these came by reason of their Property in Land, they being either the Kings Tenants, or the Te­nants of Subjects. And whatever Priviledges their Interest might prevail with them to suffer to Traders amongst them, 'tis cer­tain they were granted to the Free-holders.

2. But then there were Corporations by Prescription, where since now all the Free-men chuse, it may seem more difficult to prove that they came upon the account of Property in Land.

Many of these received Charters in Con­firmation of their Priviledges, yet, if they were taken away, would remain good Cor­porations at the Common Law. I may in­stance in London; of which there is this memorable Passage in the Confessors Laws.

Debet etiam in London quae caput est regni Leges Sanct. Ed. de Here­tachiis. & legum semper Curia Domini Regis singulis septimanis die Lunae Hustingis sedere & teneri. And amongst other things quae huc usque consuetudines suas unâ semper inviolabilitate conservat.

King John's Charter provides for the an­cient Liberties, and free Customs of the Ci­ty of London in particular, and of all other Cities, Burroughs, Vills and Ports, and some Charters of other Kings may seem more like new Grants than Confirmations of the old Priviledges: But thus much is certain, that those Cities, Boroughs, and Vills which had their Liberties, and free Customs con­firm'd [Page 283] by Magna Charta 9. H. 3. which was in the same Terms as to that part with King John's, were Cities, Burroughs, and Vills at the Common Law. And that we may frame an Idea of these, we must have re­course to the old Saxon Laws.

By them it should seem that there was a greater equality amongst the Masters of Fa­milies, Habeat omnis Dominus fa­miliam inple­gio suo L. Canuti. c. 52. than afterwards, and the Law of Frank-pledges was well suited to such equa­lity; when no Man was above giving that Security to the Government, upon which St. Edward's Law says, Est quaedam summa L. Sanct. Ed. de Friborgis. & maxima Securitas, per quam omnes Statu firmissimo sustinentur ut unusquisque stabiliet se sub fidejussionis Securitate.

And as every City, or Burrough was a Vill, that being the Genus to both as well as Vid. Jus Ang. ab antiquo, p. 13, 14, 15. L. de Friborg. an inferior Species, the Law provided quod de omnibus Villis sub decimali fidejussione debe­bant esse universi, of these Vills they that had special Priviledges, Markets, Fairs, and the like, were free Burroughs. And as the Vills, so the Burroughs at the Common Law were made up of a certain number of Free-men, whose Property might extend far into the Counties. These at first were under Ty­things. Afterwards as in the time of H. 1. Property falling into more Hands within Aldermannus novemdeci­morum in the Laws of H. 1. Spelm. Glos. Tit. Alderman­nus. the same Tract of Land or Precinct, we find them answering for one another by Twentys, the Headburrough was Alderman­nus, or Praepositus Villae, or Burgi. Every one of these as a Fidejussor, I take it, came [Page 284] anciently to the General Council of the King­dom in his own Person if he pleas'd: But very frequently they might intrust their Aldermannus, or Headburrough, to answer for them. But the Franck-pledges disconti­nuing, they might accustom themselves to electing of Members, sometimes one, some­times more, upon every Summons to Parlia­ment; And thereupon in every Burrough at the Common Law, the Elections are by all the Free-men, which answer to the Franck-pledges formerly, except that 'tis likely of Old all the Franck-pledges were ve­ry considerable Free-holders.

But still these Burroughs could not take in all the Free-holders, nor yet the Vills, as an­ciently, consisting of clusters of Inhabitants. But if any Man grew wealthy, he loved to live by himself in some Castle, or large Seat which he might build abroad in the Coun­try. Such look'd upon themselves to be too great to give Sureties for their good Beha­viour, as those that liv'd in Clusters did: And by the time of Edw. the First Chivalers and their Children, (And I take it, every considerable Free-holder, was a Chivaler or Britton e. 29. p. 72. b. Vid. Stat. West. 1. c. 10. 3. E. 1. the Coroner to be des plus loialz & plus sages Chiva­lers. Vid. eti­am Ian. Ang. Facies nova p. 47. & 48. Gentleman,) were exempted from the Law of Franck-pledges. Doubtless every one of these, as the Possessionati in Poland, came to the General Councils in Person.

As the Lands were further improved, and a free increase of Natures Stores made Men luxurious, Great Men put themselves into Straits, and were often obliged to sell [Page 285] their Inheritances, and to manumit their Et si Cheorl­man [...] romove­atur ut habe­at quinque hi­das terrae, &c. Et si Filius Fi­lii ejus hoc as­sequatur ut tantum terrae habeat postea est qui nasce­tur ex cis si­thercunde Ge­nerationis, &c. Leges Aldesta­ni Bromton f. 846. Servants, or release Servile Tenures, and the Off-spring of these who themselves were Cheorls or Pesants, were, according to the Saxon Law, which probably enough continued long after the Norman's Acquisi­tion, enobled, or became Gentlemen by the Descent of five Hides of Land to the third or fourth Generation.

Thus, together with the divisions of Lands amongst the several Children of great Proprietors, and subdivisions downwards, as the Families branch'd out, the Numbers of Free-holders became by King Iohn's time lit­tle less than infinite, tota regni Nobilitas quasi sub numero non cadebat. And this sort of Matth. Paris Edit. Tig. f. 246. Nobility, for the most part to be sure, look'd upon themselves to be above Citizens, or Burgers, and scorn'd to be within Frank-pledges, and be bound with Sureties to their good Behaviour. (Which Dr. Brady tells us Dr. Brady's Glos p. 31. (and rightly enough, if he speak of the Time of Edw. 1.) was only for the ordinary Free-men, or the Bulk and multitude of the Free-men, or small Free-holders.) All that look'd upon themselves as Gentlemen, at the least, were without any manner of Representation; and wherever they were interested, appear­ed in Person, and sometimes in very disor­derly Multitudes. Some sensible of the in­convenience of it, and expence and trouble to themselves, of their free Choice became incorporated by Charter as aforesaid, be­ing either the Kings Tenants, or some infe­riour [Page 286] Lords, or it may be the Tenants of several Mannors joining together, and their coming to Parliament, or as the Burrough of St. Alban's pleads, pro omnibus serviciis fa­ciendis, was a consequent upon their Incor­poration.

Free-hold, I take it was the occasion of all this, though afterwards Traders might be admitted to Priviledges amongst them. The Traders and Free-holders within Ci­ties or Boroughs sent their Delegates; whilst here, as in Poland, the Possessionati, Men li­ving Vid. supra. upon their Lands in the Counties, came to the General Councils in their own Persons. Vid. Jan. Ang. facies nova p. 66. Thus it was here till the 49th of H. the 3d, as I think the Authorities formerly insisted on by Mr. Petyt in behalf of the Citizens, and Burgesses, and by me for the Possessionati in the Counties, sufficiently Warrant.

Wherefore the Alteration which was made in the Government in the 49th of H. the 3d. if any were then made, was the cal­ling out some of these Proprietors, Earones Comitatus, to come in their own Persons, and putting a Representation upon the rest, which was most likely to be done by the Perswasion and Influence of the King, though with the consent of the People; And there­fore Jan. Ang. &c. p. 263. I must say, 'tis most probable that what is by Mr. Cambden's Author transmit­ted to us, as done a little before the Death Additions to Jus Ang. p. 20. Vid. Mr. Selden Obj. against this answered. Jan. Ang. a p. 250. ad 256. of H. the 3d, must have been some years af­the 49th, and the Kings Victory at Evesham over the Great Barons, whom he curb'd by [Page 287] the Less, the Commons; Which prevail'd on his side, by whose Assistance he depriv'd many great Men of a judicial Power in Par­liament, and of the right to special Summons, while the Commons had their Power preser­ved in their Representatives, they were all interested in the Legislature as before. But all the Great Barons had not their former Interest in the Supream Judicature, and yet this variation in respect of the Great Lords, was no change of the outward frame of the Government, but only a diminution of the Priviledges of some particular Men. And though the bringing in Representations, where no Representations were before, al­tered the Frame, and Appearance of the Government; yet it did not the Constitu­tion and fundamental Interest of Proprietors of Land, with whom the Ballance of Power has ever been in this Nation; the Foundati­on is and was the same, like the same Soul animating the same Body, when 'tis greater, and when by reason of Tumults and Sediti­ons, as we may call them, in the Spirits, 'tis wasted from its Corpulency, and there­by often brought to a more assured state of Health than ever before.

This more healthful State in a contracted Body of Proprietors of Land, I yeild to have been setled in the Reign of H. the 3d. It happening that there were Writs to that Purpose, just in the 49th 'tis concluded that then it was first begun; Whereas by the same Argument 'twas in the 38th, when [Page 288] two for every County were summoned to Parliament Vice omnium & singulorum. But if Rot. Claus. 38. H. 3. m 7. & 12. I should confine my self to Authorities within the time of the first Edward, immedi­ate Successor to H. the 3d, I doubt not but Jani Angl. &c. p. 244 there were enough to satisfy any unbyass'd Reader, that the Commons, such as are now represented by Knights, Citizens and Burgesses, had before the 49th of H. the 3d, Shares or Votes in making of Laws for the Government of the Kingdom, and had communication in Affairs of State, otherwise then as represented by the Dr. Brady a­gainst Mr. Pe­tyt. p. 1. & 2. Tenants in Capite, notwithstanding Dr. Bra­dy's Affirmation to the contrary.

In the 24th of E. 1. the Earls, Barons, Rot. Pat. 24. Ed. 1. N. 22. Jus Ang. p. 160. Stat. Stap. 27.Ed. 3. Knights, and others of the Kingdom, which others was then, and afterwards, meant of the Commons of the Cities and Boroughs, gave a Subsidy, Sicut aliàs nobis & progenitoribus nostris Regibus An­gliae.

And sure Hen. the 3d could be but one Progenitor, so that the Farones Minores, the Free-holders of Land, (which ever since the 49th, or some other Year of Hen. the 3ds Reign, were represented by the Knights of the Counties, (who were not in those times to be sure confined to Knights by Tenure or Dubbing) And the Commons of Cities, and Burroughs, at the least from within the Reign of King John, to whom Hen. the 3d. immediately succeeded, were Members of Parliament, be­ing Parties to Grants there made. And [Page 289] omitting the Prescription of the Burrough of St. Albanes from Rot. Parl. 8. Edw. 2. n. 2 [...]3. See that Record vin­dicated from Dr. Brady's Misconstruction, Jus Ang. ab antiq. p. 28, 29, 30. within the time of the Progeni­tors of Edward the first, to use but one Authority not mentio­ned in either of my Tracts.

In the 28 of E. 1. the Knights, Citizens, Rot Claus. 28. E. 1. m. 12. dorso. and Burgesses had been summoned to the Parliament at Westminster; Nobiscum de di­versis negotiis nos & Populum Regni specialiter tangentibus tractatur: and Writs issued out for their reasonable Expences, prout aliis consuevit in casu consimili.

1. Upon which 'tis observable, that de quibusdam arduis, which is now in use in the Writs of Summons, ought not to be restrai­ned to a few great matters, but extends to divers, according to the different natures of matters brought before, or appearing to them.

2. That the Commons had not only an Assent without power of dissenting; but they were to treat as well as the Peers.

(3.) That their coming was not a new thing then, as if begun but 35 Years ago, in the 49th of H. 3. but it was of Custom, and legal Prescription, so far that it laid an Obligation upon the Subject to contribute to these Expences; and surely an Usage of 35 Years would not be a sufficient Charge in Law.

4. That though there is no Evidence that Representations for Counties were settled before the 49th of Hen. 3. Yet the Free­holders [Page 290] were often at Parliament by Repre­sentation, and thence there was ground in reason to occasion the Custom that they should bear the Charges of them that they chose: Nay, if there were no actual Choice, there was tacit Consent, (from which Custom may arise) that those who were willing, and at leisure to be at Council, should answer for, and have Contributions from the rest. But let both Dr. Brady and Mr. Hunt consider the Precedents above Mr. Hunt, p. 149. mentioned, of Coventry, and Bridgwa­ter, which did not hold of the King, and yet sent Burgesses to Parliament; and let them give a categorical Answer, whether they believe that the Majores Barones Regni, and omnes alij holding in Capite, mentioned in King John's Charter, made the Parlia­ment till the 49th of H. 3.

This I think may be enough to satisfy any reasonable Man, that the Govern­ment was the same before the 49th of H. 3. that 'twas after, and that it had not its Rise from Rebellion, nor yet from Conquest, Contrary to Dr. Brady, a­gainst Mr. Pe­tyt, p. 210. or Usurpation; but from a Consent bind­ing on both sides.

And thus I have shewn (which Mr. Hunt does not) that our Government exactly answers his Rule or Idea of a lawful Go­vernment, which he says, Is the Representa­tive of the People in what they are to be go­verned Page 155. by it, and by their Consent to it [...], in the first erecting thereof they do trust their [Page 291] Governours with the Rule and Order of their Lives and Estates, &c. But,

2. He puts such Matter in Issue, for asser­ting the present Government, as can never be maintained.

That William the first made no Conquest of England, and that the Interest of the Commons in Parliament did not begin by Rebellion in the 49th of H. 3. have been thought good Mediums to settle the Foun­dations of our Government. Mr. Hunt Page 156. indeed looks upon all Labours to this pur­pose as impertinent: But this he says is cer­tain, That whatever thing of Government is introduced by the Consent of the Prince, and Pag. 154, 155. that Aleration assented to and embraced, a­vow'd, and own'd by every Man of the Com­munity, by Actions, and other open Declarati­ons of a full consent; and this continued for Cen­turies of Years, and in all that time applauded, and found agreeable to the Interest of the Prince, and People, and the old Government abolish'd and impracticable, the very matter of it ceasing, and it become a thing impossible, as well as not desirable to restore it. I say, whatever Constitution is thus introduced, and establish'd, is as unmoveable as unalterable, (or no Government is) as if it had been ever so.

Wherefore, to shew that our Govern­ment was so introduced and establish'd, that it ought not to be altered, according to him, we must prove every one of these following Particulars.

  • [Page 292] 1. That admitting a Conquest, and that the Commons came into Parliament. by re­belling against the Heir of the Conqueror; yet theywere introduced by the legal Con­sent of the Prince.
  • 2. ‘That this Constitution was assented to, and embraced, avowid, and own'd by every Man in the Community, by Actions, and other open Declarations of a full Consent.’
  • 3. ‘That for Centuries of Years this has constantly been applauded, and found agreeable to the Interest of Prince and People.’
  • 4. That though there were a Conquest, yet the Right of Conquest is abolished.
  • 5. That the exercise of a Government according to such a Right, is become impracticable, impossible, and not desirable by any.
  • 6. That the very Matter of it ceases.

I may well without further inlarging, conclude this Head with his own words.

If our Government must take its Fate upon such Issues as these, I am sure we shall not long Page 154. hold it.

3dly. But then he yields so much of the Fact put in Issue by me, as sets aside the Foundation of his whole Post-script; and yet admit he answers all Objections a­gainst his Post-script, the Grounds which I go upon are of the most general Use.

That there was an absolute Conquest of the Nation by William the first, and that [Page 293] he admitted none to any Shares in the Go­vernment, but such as derived their Inte­rest from his Bounty, is contended for by many, Tanquam pro aris & focis. And tho the History of King William the first his entring upon the Government, is very strong against them, and may be the first thing considerable: Yet from the supposi­tion that the Tenants in Chief, such as were the Suitors at the Curia, made the Parlia­ment, where the absolute Government of the Nation was plac'd, they very strongly may infer a Conquest. Whereas the Proof of the difference of the Curia Regis, and the Concilium Pambritannicum, or Parliament, shews that all the pretence of Conquest is out of doors, and consequently the Govern­ment is such, as now it is by free Consent on all sides; not founded on Usurpation upon the Rights of any, nor is there the least pretence of unsettling what, as the great Fortescue observes, has not chang'd Supra p. 271. with the People, or Rulers.

Admit a Conquest, and the Inheritance which every one claims in the Laws will be maintainable only as a naked Right, and naked Rights are thin and metaphysical Notions, which few are Masters or Judges of.

But Conquest, or no Conquest, a Govern­ment derived from the Pleasure of one, or consented to by all, are Questions which any ordinary Capacity is able to judg of, when the Testimonies rely'd on by both [Page 294] sides are laid before them. And though Matters depending upon Testimony, are not capable of Demonstration, so far as they depend upon that; yet where Testi­monies are made use of for the laying a Foundation, upon which some Metaphysi­cal Notions of Right are built; it is possible to demonstrate that the Testimonies will not serve the purpose for which they are brought, but are clearly on the otherside. And it that be done, it wholly silences the Dispute, better than Mr. Hunt's Scheme of Mr. Hunt, p. 205. Probabilities, or his Metaphysical, nay, or Physical Notions of the Right of Father­hood.

If therefore it be shewn that there is not the least shadow for pretence of a Conquest, or that only such as derived what they had from the Bounty of the Prince, were inte­rested in the Government and Legislature, certainly the whole Frame of Consequences built upon such Supposition easily falls to the ground.

I appeal to the World, Whether what Mr. Hunt thought fit to say for the preventing Page 206. Page 156. the World's being troubled with such imperti­nent Labours, and to divert those that thus employ themselves to Undertakings more useful to the Publick, can be of such a general Use and Satisfaction, as the destroying those Foundations which are laid for a Go­vernment not known to our Laws, nor own'd in our so well constituted, and so ancient Frame, the Admittance of which, [Page 295] would root up the very Foundations.

He says our Government was always materially the same. When according to him 'twas neither materially nor formally the same it is now.

Whereas this Labour which he explodes, shews that 'twas always both materially and formally the same, and therefore un­alterable.

If there were a Conquest, that Con­quest establish'd a Government, or it did not.

If it establish'd a Government, then, ac­cording to him, no following Consent, even of the Conqueror, can divest him of any part of that Right which was given by the Conquest. For upon the Bishops account, he tells us, ‘They cannot be detruded Mr. Hunt, p. 122. from that Place they bear in the Consti­tution of the Government, for that no Government can be legally, or by any lawful Power, changed, but must remain for ever, once establish'd; and it can be no less than Treason of State to attempt a Change: No Authority in the World Page 122. is competent to make any Alteration.’

If it be said, This is contrary to the Post-script, which affirms, ‘That nothing can be the Concerns of Men united in any Polity, but may be govern'd and or­dered Post-scrip, p. 33 by the Laws of their Legislature for their good;’

[Page 296] At least this shews how in matters of Notion, and naked Rights, great Wits may not only differ from others, but from them­selves.

But let us give the Argument raised from Conquest, its full weight, and see whether Mr. Hunt maintains our present Establish­ment upon clearer Grounds than they do who search Antiquity about the Point.

The absolute Power and Government This is begg'd throughout Mr. Hobbs's pernicious Di­alogue between a Philosopher and Student of the Common Laws of Eng­land. of the Nation, was by the right of Conquest setled in William the First and his Heirs: this being so, could not be parted with.

For it must be either voluntarily, or by Compulsion: For the first, Sir Robert Fil­mer will tell you, No Man can bind himself in a matter depending of his own Will, there can be no Obligation which taketh State from the Power of Kings, f. 1. meer Will of him that bindeth himself.

If by Compulsion, then they will tell you for the same Causes that a private Man may be relieved from his unjust and unreasonable Pro­mise, as that it was so grievous; or, for he was Patriarcha p. 97. by Deceit or Fraud circumvented, or induced thereunto by Terrour or Force, or just Fear, or by some great hurt; even for the same causes the Prince or Princes may be restor'd in that which toucheth the diminishing of his or their Maje­sty.

[Page 297] If it be said, That this would as well hold in relation to the Peoples parting with that Right which was once in them: they will tell you that no Government can be exerci­sed but Monarchy; That no other Govern­ment is owned by God Almighty, in the New, or Old Testament, but Monarchy: That while God's People were without a King in Israel, there was Confusion, and Anarchy. If Adam was no Monarch, at least God himself was, and 'twas a Theocracy. And therefore admit Paternal Power was not Monarchical, yet a Man might as well seize upon a People without a Government, as upon a piece of Land unoccupied. And when once he became Conqueror, he was let into a Divine Right of ordering arbitrarily all things within that district, and could not depart from it. And though e­very Monarch was not absolute, (for the Jewish Kings were not) yet every Mo­narch by Conquest must needs be so, be­ing received without any Conditions, or Limitations.

Now Mr. Hunt himself, going chiefly to shew that Paternal Power was not, as such, absolute, does not answer this Hypothesis, and the Examination of it depends upon such searches into the bottom of things and the shewing them naked in their Metaphy­sical Existences, that very few Men can [Page 298] judg of the Controversy, at least not so ma­ny, as may, of the meaning of Writers and Records carefully compared together, and in many places freed from all possible Am­biguity; but still the more ambiguous they are, the more evidently will they over­throw all those Pretences upon which these Notions are built. For if the Records and Histories give such doubtful Responses, as Mr. Hunt imagines, then indeed we must Mr. Hunt, p. 6. look only to the present Government. Whereas if Dr. Brady, and his Friends, could shew those ancient Authorities to be plainly on their side, they would have many that would improve their Noti­on of the House of Commons their beginning by Rebellion, into an Argu­ment that they ought to be cast off as Usurpers upon the Divine Right of the Conqueror.

Or at least, yeild but that one Point of the Conquest, they will tell you agreeably to Mr. Hunt's Assertion, that a Government by Conquest is unalterable by any lawful p. 122. supra. Power; And, as that is wholly different from a Government by consent, whatever implies, or admits of the consent of Subjects to the passing any Law, is contrary to the Fundamentals of the Government, and is like a Superstructure of Hay and Stubble, whi [...]h ought to be consumed.

[Page 299] Others will tell you that the most free Concessions of a Conquering Prince, or one claiming under that Title, and not departing with his Dominion, can no more oblige himself or his Succes­sors in any thing that may restrain his Soveraign Will and Pleasure, than a Man can depart with the freedom of his Will.

And the most seeming Restraints can be no more than temporary Provisions, or ordinary Methods of Ruling, which the Prince as he found occasion might remove, notwithstanding the strictest Clauses of Perpetuity, they being of like Interpretation with such Passages as related to the continuance of the Jewish Law, or Oeconomy, which was to have no place in the New Heavens, and new Earth.

But if they should yeild that all Grants and Charters, &c. are binding to the Prince who made them; yet Sir Robert Filmer tells Vid. Power of Kings, f. 1. us expresly; The Laws, Ordinances, Letters, Patents, Priviledges, and Grants of Princes, have no Force but during their Life, if they be not ratified by the express Consent, or at least by the sufferance of the Prince following, who had knowledg thereof.

[Page 300] These Notions have more Favourers per­haps, than there are Men of Judgment or Honesty enough to shew the weakness of them. Nor has Mr. Hunt, that I know of, directly encountred them with his two­edg'd Weapon; But if the supposed Fact which they are built upon, be prov'd to be no more than Supposition, all the most spe­cious Superstructures are but Castles in the Air, which vanish like Smoak.

¶ Inter Communia brevia de Termino Michaelis, Anno 34. Edw [...].

EX pacte eorundem hominum. Regi est ostensum quod cum Uilla praedicta Civi­tas, Inter Re­cord penes Re [...] D [...] Thes in sceio rema­nen pro ho­minibus Ville de Co­ventre. Burgus, seu Dominicum Regis, non erictat, ut homin [...] Uill [...] predicte tanquam Cives, Burgenses, seu Tenentes de Domi­no Regis in al [...]quibus auxilus, [...] seu contributionil us Regi, seu progenitoril us suis concessis taxari consueberunt, seu tallia­ri, sed tantum cum Communitate Co [...] War: Taxatores tamen & Collectores XXX & XX in [...] praedicto homines prae­dictos tanquam Burgenses tarari & XXX de bonis & rebus suis ad opus Regis levare ni­tuntur, in ipsorum hominum [...]ampnum nori medicum, & gravamen, & depa [...]perationem manifem. Et quià Rex non vult quod iidem homines indebi è pregraventur in lâc parte [...]andat [...] quod scruta [...]. Rotulis & Memorandis de consimilil us [...]enibus factis in Uill [...] prae [...]â tam tempore Regis, quam proge [...]orum suorum praedictorum, & si eis constare poterit evidenter quod praedi­cta Willa de Covent [...], non si [...] Civitas, Bur­gus, aut Manerium de antiquo Dominico Corone Regis, ut praedictum est, & quod [Page 302] dicti homines simul cum aliis extra Civitates Burgos, & Maneria praedicta manentes ad hu­ [...]usmodi prestationem Regi faciendam [...]ari debeant, & semper ha [...]enus ta [...]ri con [...]ueve­runt, tunc ipsos homines ad prestationem Regi ratione praedictae concessionis de XXX Regi ratione faciendum per praedictos Tatato­res & Collectores distringi non permittant, aliter quam totis temporibus retroactis in hujusmodi casu fieri consuevit. Teste Rege apud Lancetost. 18. die Octobris, 34.

FINIS.

ERRATA.

PAge 113. line 3. in Marg. read true way. P. 117. l. 18. r. Bannerets. Ib. l. 21. r. Banneret. P. 122. l. 2. r. St. P. 144. l. 8. r. ingenuously, So P. 145. l. 31. P. 160. l. 5 after the Word Barony add in the Mar­gine, viz. Ecclesiastical Persons. P. 174. or 274. T l. 18. r. done. P. 204. V l. 2. r. Counsel. So l. 11. Ib. P. 212. X l. 22. r. permixtim, P. 217. X l. 26. r. de tout le, &c. P. 220. l. 6. r. taken.

Other Literal Mistakes the Reader is desired to cor­rect with his Pen.

A TABLE of the Principal CONTENTS.

The Number of the Page being often mistaken, through the Printers false counting to one another, the Rea­der is desired, where the Figures are wrong, to observe the Letter which begins the Sheet.

A
  • Page.
  • Abby of Molross, O 206, 207
  • Absence of the Bishops, not merely from the Canon-Law, 84, N 181, 182
  • Adam de Orlton's Case, R 267, T 180
  • Agitare Judicium Sanguinis prohibited, H 101, and N 157, 183
  • Allusion made by the Questionist not solid, 165
  • Appeal to Rome no capital Crime antiently M 173
  • Appeal of Earl Godwin, Q 227
  • Appeals in Trial, V 191, 192, 193
  • Appellation ought to be governed by the Right, S 278
  • Apostles their Rule, p. 89, how far their [Page] Practice to be urged for Example now, 133
  • Apostolick Canons against Clergy-Men their medling in Secular Affairs, P 135, 216
  • Arch-bishop Stratford's Case, T 282, 283, 284
  • Arundel Earl, his Case, O 208
  • Assemby at Northampton, no Parliament, p. 170, 171, 172. Matters carried there in great Heat, and no Iudgment of Trea­son given, M 172, 173
  • Attainders what they are, 9, 10
  • Augustine St. his Opinion, 94, 95
B.
  • BArons, how made enobled in Blood, and how made, 107, to 120
  • Barons by Blood and by Tenure, different 78, 118, 119, 120
  • Barones Majores who, 78, Z 245, 246
  • Barones Minores who, 7, 8
  • Barons Peer who,, 21, 107, 117
  • Barones Regis who, 107, Z 247, to 250
  • Barones Regni who, ibid.
  • Baronagium, and how comprehensive, 107, P 202, 203, Y 226, S 278
  • Becket not impeached of Treason, from 65 to 70, and from 172 to N 180
  • Berkeley, Sir Tho. his Case, 28, 29, V 196
  • Blesensis his Words marked, 97, 98, 125, 167, 168, R 261
  • Bishops, whether they sit in Parliament by vertue of any Baronies, p. 106, 108, and how 122, &c. T 174, or 274
  • Bishops not Barons, 77, 108, 19, 123, 124, 125
  • [Page] Bishops, how they sate with the Earls, 91, 92, 93, 145 P 217
  • Bishops Service and Tenure a Burthen, 106, 124 125, Their Tenure offects not their Persons, 77
  • Bishops if a third Estate, not capable to try a Peer, 128
  • Bishops the form of their Writs no Argu­ment of their Power, 86, 129, 130 when present, always exprest that they were, 36
  • Bishops medling in Secular Affairs forbid­den, 129, 135, P 216. Their Opposition to the King at Clarendon, and from what Cause, 141
  • Bishops Power clipt at Clarendon, 99, O 144 when to go away in Criminal Cases, 161, 196, 197 even in Acts of Parliament, R 265
  • Bishops Absence not merely from the Ca­nons, 8, 84, N 181, 182, 183, 190 N 193 O
  • Bishops Protestation, p. 5, 6, 7, translated and explained, 41, 42, and N 185 to 194
  • Bishops not reckoned Nobles, T 184, or 284 not called Lords till the time of Rich. II. 108
  • Bishop of Norwich his Case, 40
  • Bishop of Carlile tried by a common Iury, T 279 so Bishop of Ely, 278, ibid.
  • Bishops Absence no Error, 47
  • Bishops had no Right to be present in the De­bate, and handling matters of Blood, 143
  • Bishops not comprehended under the name of Peers or Grands, if put after Earls and Barons, 14, 18, to 25, 32
  • [Page] Bishops, if others named, always named where they are present, 24, 29, 32, 36 and that before others, R 261
  • Bishops not Peers to Temporal Lords, 71, to 99, S 280
  • Bishops sit in respect of Temporal Possessions 83 yet in the quality of Spiritual Persons, T 174 or 274, and S 289
  • Bishops cannot sit in a double Capacity, S 288, 289, & T 174
  • Bishops contended to be tried by their own Order, T 181, or 281, whence their pretence of Immunity proceeded 153
  • Bishops to be tried by common Iuries T 277 to 282
  • Bishops their Equivocation, 141
  • Bishops Messengers of Peace, V 197
  • Bishops chief Employment to make Peace in civil Affairs, antiently Counsellours not Iudges, p. 89, 91, their refusing to give Advice about keeping the Peace, 30, 31, 266, and R 269
  • Bishops but part of a third Estate, 80, to 85, and 126, 127, 137, S 290
  • Bishops in France never sit in that Chamber of Parliament, which tries Capi­tal Cases, 90
  • Bishops never absent not prov'd, Q 228
  • Bishops no where allowed to sit Inquisitors of Blood, V 198
  • Bishops not summoned to Parliament several times Q 238
  • Bishops a Question, whether they might be e­ven [Page] of a Committee in matters of Blood, V 199
  • Boeges de Bayon's Case, 25, 26
  • Brady Dr. his Assertions and Fancies con­demned Pref. to the 2d Part, and p. 189 in Marg. V, X, A a, 204, 205, 224, 227
  • Burroughs and Burgesses, Z 237, 238
C.
  • CAmbridg Earl, 50
  • Canons forbidding of Clergy-men to meddle in Capital Causes still in force, 87, 164, and P 217, to 222
  • Canons concerning Blood as anciently in England, as the Conquest and part of the common Law, N 181, 182
  • Capitalis Justiciarius Angliae, what Of­fice, 137, 138
  • Capitalia placita, what, Q. 229, 230, 231
  • Chancellour when no Peer, how tried, T 285, 286
  • Charter of King John, the Author's Inter­pretation of it asserted against Dr. Bra­dy, X 206, 207, against Mr. Hunt, Z 237, to 242
  • Clarendon the meeting there a Parlia­ment, 139
  • Clarendon, and the Parliament there con­sidered, 99, 100, & 142
  • Clarendon Earl, his Arguments against the pretended Conquest, A a 260, to 263
  • Chivaler who, B b 284
  • Clergy subjected to Baron-Service, 112, 140
  • Clergy their Power in Primitive-times, 89 their Power in other Nations, 90
  • [Page] Clerus never taken for the Bishops alone, 126
  • Commons and Commonalty of the Kingdom, where Records and Histories manifestly shew their Presence at Parliament before 49 Hen. 3 [...] X 211, to Y 22 [...]
  • Commons their Vote in Danby's Case, O 98,
  • Commons sometimes meant by Grands, R 270, S 279, & 226, 3d Part, anciently had their share in Judicature, R 266, 267, 268
  • Commons always Members of Parliament, 172 O 202 s [...] together with the Lords in the times of Hen. I: and King Stephen, X 212 and long afterwards, O 202, 203, 204 Mr. W's Grounds for the Belief, that they had no Right to come to Parliament till 49 H. 3. answered, and turned a­gainst him, X 210, to Y 227; so Mr. Hunt's p. 221, 222, 223, Y 235, and to A a 268
  • Commons their Petition, 21 R. 2. p. 11. and O 195, 196
  • Community of Names no Argument of Right, S 278
  • Concordia 4 E. 3. 27, R 263
  • Conquest disclaimed by William the first, 139, A a 260, no Conquest, 258, to A a 263 wherefore the Point of Conquest exami­ned and what improvement, is made of the admittance of it, 293 to 300
  • Constitutions of Clarendon expounded, and the Bishops Wings clipt there, 144, to 166
  • Convocation of the Clergy, 81, 82, 127, 137, S 290
  • [Page] Corporations, an account of them, and of their ancient Interest in Parliament, 276, to 286, 3d part
  • Coventry, its first Representation in Parlia­ment, B b 279
  • Crimes some that did laedere Majestatem Regiam not capital, 172, in marg▪
  • Curia Regis, of various Acceptation, 150
  • Curia Regis how far Mr. W. and Mr. Hunt agree with the Author against Dr. Brady, as to its being distinct from the General Council of the Nation V 204 Objection against them where their No­tion of it differs from the Authors, 205 particular Objections against Mr. W's Notion of it, 209, & X 210 Mr. Hunt's mistake about it, 231 to Y 235
D.
  • DAnby's Plea, O 197
  • Demeasn, the Kings of England ne­ver had all the Lands of the Kingdom in demeasn, 3d part, p. 253, to 255
  • Dictare Sententiam, how understood, N 179
  • Doctor Oates vndicated, P 222
  • Doctor Standish his Case, 47, & S 291
E.
  • EArls and Barons are the Peers of the Realm, 22, 23, 24, R. 263
  • Earls and Barons consiliarij nati, 138
  • Earl of Arundel's Case O 208
  • [Page] Earl of Hereford and Glocester their Case, T 287, V 189
  • Earl Godwin his Appeal, Q 227
  • Earl of Northumberland, 51, 54, & R 274, 275
  • Earl of Salisbury, Kent, Huntington, their Case, 50
  • Ellis William's Case, 35
  • Errors none by the Bishops absence, 47
  • Estate Bishops, but part of a 3d Estate, 80 to 85
  • Exegetical where words used exegetically 52, X 213
  • Explication of several words, quos (que) Ju­dicium pervenior, 155, 156
  • Exposition of words according to the stan­ding, 18, to 25, 52, X 212, to Y 226 and Q 233, 234
F.
  • FErrer's Sir Ralph's Case, 39
  • Fitstephen's Authority examined, 77
  • Fortescu [...] his Authority, B b 271
  • Form of Writs no Proof of Right 86
  • Franck-pledges at a Great Council of the Kingdom, and who within them, B b 273, 274, 275, 283, 284
G.
  • GEntlemen how became so, C c 285
  • Glocester Earl, and Hereford their Case, T 287, and V 189
  • Godwin Earl his Appeal, Q 227
  • Gomentez and Weston their Cases, 37
  • [Page] Grants, where the Bishops not comprehended under that word, itsextent, 32, S 278, 279,
  • Government the same before 49 H. 3. as since, 3d part, 271, to 290
  • Gurney Thomas 26
H.
  • HAxy Thomas his Case; 43
  • Henry Hotspur's Case, S 281, 282, 283
  • Huntington's Earl Case, 50, S 280
  • Hunt Mr. the Censure of his Book, Pref. to the second Treatise,
  • His wrong Translation of non licet, in mar. 157
  • His Mistakes Y 229, &c. Reasons why he might have spared his Censures, Y 228, 229
I.
  • IMpeachment when by the Commons, the Lords obliged to to try a Commoner, 14
  • Interesse ubi judicium sanguinis tracta­tur vel exercetur prohibited, 158
  • John Imperial's Case, 39, R 264
  • Irregularity, P 221, 222, 223
  • Judicial Power in Capital Cases denied the Bishops in the Northern Kingdoms. 90
  • Judicial Power denied them here by Canon, Common and Statute Law, Vid. Bi­shops Absence not meerly from the Canons. Judgments in which the Bishops had share, 11 Judicium a word of various Acceptations, 155 Judgments alledged to be void for the Ab­sence of the Bishops, 11, 195, O 196
  • [Page] Judgments in Parliament and the Curia Regis how reconciled, General Pref. V fin.
K.
  • KEnt Earl, S 280
  • King cannot make an Estate, 126, 127
  • King Stephen's Grants reversed at Cla­rendon, 141, 142
  • King Rich. II. undecently reflected on, O 194
L.
  • LAwyers confessedly differ from the Que­stionist as to the Trial of Bishops, T 277, and V 194
  • Laws made upon a dubious Title good, 45, 46 P 209 to 214
  • Laws concerning the matter and manner of their making, 44, 45
  • Lay-men used to meet with the Clergy in their Councils, 157
  • Lee Sir John's Case, 35
  • Legislative Power in capital Matters al­lowed to Bishops, yet no judicial Power inferred, Gen. Pref. 87, 88, 131, 132 and even that an Abuse crept in since Hen. VIII. 88
  • London a Corporation at the Common Law B b 282
  • Lord Latimer, Lions, Richard, &c. 35
  • Lords of Parliament 36
  • Lords Temporal expresly named in the Re­cord as sole Iudges, 40, 58, and R 276, S 280
M.
  • [Page]MAnucaptors, B b 274
  • March Earl, 22
  • Mautraver's Case, 20, 51, 279, S 280, 281, ibid.
  • Modus tenendi Parl. its Antiquity, 121
  • Molross the Abby its Case, and the Au­thority of that Book answered, G 206, 207
  • Mortimer Sir Iohn's case whether judg'd by Act of Parliament, 56, to 59, R 262
  • Mortimer Roger's Case 14, and R 262
N.
  • NAmes equivocal no good Argument from thence, P 227
  • Nevel Lord, 35
  • Nobilitas Major, how made, 113 Bishops no part of such Nobility, S 287
  • Northumberland Earl, R 51, 54, 274, 275
O.
  • OAts Dr. vindicated, P 222
  • Objections from Reason against Mr. W. and Mr. Hunt, where they dif­fer from the Autthor's Notion of the Curia Regis, 3d part, 205, 206
  • Ocle William, 26
  • Old-Castle Sir John, 55
  • Old Modus its Antiquity, 121
  • Omnipotency and the Bishop's Affectation of it, in what sense understood by Lord H. 152 153
  • Orlton's Case, R 267
P.
  • [Page]PArdons made revocable at Pleasure, O 195
  • Parliament when the word first in use, 121
  • Parliament at Clarendon, 139
  • Peace, of the Bishops refusing to give Coun­sel about it, 30, 31, R 266, 269
  • Percy Henry's Case, 53
  • Peers of the Realm who, 20, 21
  • Pessimae Consuetudines what, 140, 142
  • Petrus Blessensis his Testimony, 97, 98, 125, 167, 168, R 261
  • Plain dealing, 147
  • Plea of the Earl of Danby, O 197
  • Pool William Duke of Suffolk, 13, T 286
  • Pool Michael's Case, 33, 34, R 272
  • Presidents urged against Lord Hollis make for him 14
  • Proctors or Proxies why the Bishops desire to make them, 12 concerning their making them, 46, 162, 197, 199, B 200, 201, 204, 205
  • Proprietors of Land as such, their In­terest in the Great Council of the Kingdom, Y 230, 231 and B b 273, to 291
  • Protestations of the Lord Hollis his Sincerity, 6
  • Protestation made by the Bishops, 11, R 2 5, 6, 7, 8, 41, 42, 43, and O 185, to 194
  • Protestations in the names of the Lords Spiritual and Temporal, 8, 13
  • Protomartyr, 49
Q.
  • QUestion concerning the Bishops stated, 10, 11
R.
  • [Page]REcapitulation of Arguments against the Bishops being Iudges in case of Blood, N 184
  • Again more fully. P 223, 224. Q 225. S 277
  • Rickhil, Sir William's Case. 48
  • Reflections upon R. the 2d. undecent. O 194
  • Regradation of Peers. V 190
S.
  • SAlisbury Earl's Case. 50
  • Sautree William's Case. 49
  • Scheme of the Government as it anciently stood, and now stands. B b 271 to 291
  • Scripture against the Bishops their medling in Secular Affairs. 134
  • Scroop Lord. 50
  • Segrave's Case. 61, 62, and Q 232, 233. T 287
  • Seniores Populi, who meant by them. 167, 170
  • Sinister ends in the Parliament, 21 R. 2. O 195
  • Spencer's their Case. 48 O 197, 198. and Q 234
  • Standish his Case. 47 and S 291
  • Statute 27. Ed. Ist. c. 3. and 2. Ed. 3. for­bidding Churchmen to take Cognizance of Matters of Blood. 30, 33, 64. and 169
  • Statute of Clarendon a binding Law and only affirmative of the old Law. 153
  • Statute of Westminster Anno 1175, for­bidding all Persons in Holy Orders Judi­cium Sanguinis agitare. 101, 102, 157
  • Stephen Bishop of London tryed by a Com­mon Iury. 27
  • [Page] Stephen King his Charter to the Clergy. 140 153
  • Stratford Arch-Bishop his Case. T 283
  • Succession to the Crown. 209 to P 214
  • Suffolk Duke his Case. 13, 60. S 284, 285
T.
  • TAlbot Lord his Case. S 285
  • Temporal Lords sole Iudges of Peers. 40 56 R 276. S 280
  • Tenants in Capite more than they Members of Parliament before 49th H. 3d. yeilded in Effect by Mr. Hunt. 264 to 268. 3d. Part.
  • Tenure in Capite created. 78 A a 253
  • Tenure in Capite Mr. Hunt's Mistakes about it. 242 to A a 258
  • Tenure by Barony inferred no more than a Minor Baron. 78 109 118 119 120
  • Thorp Sir William. 32 33
  • Titles Vid. Succession to the Crown.
  • Treason declared by the Iudges in Parlia­ment. R 264 265
  • Trial of Bishops by a Common Iury. 26, 27 T 278, 279
  • Trials in Appeals and the reason thereof V 191, 192, 193
U.
  • UTriusque ordinis consensus explai­ned. T 275, 276
W.
  • Waver of Peerage. T 286, 287
  • Westminster the Council there forbiding Churchmen to meddle in matters of Blood 101, 102, 157

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