The grand question, concerning the Bishops right to vote in Parliament in cases capital stated and argued, from the Parliament-rolls, and the history of former times : with an enquiry into their peerage, and the three estates in Parliament.
         Stillingfleet, Edward, 1635-1699.
      
       
         
           1680
        
      
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             The grand question, concerning the Bishops right to vote in Parliament in cases capital stated and argued, from the Parliament-rolls, and the history of former times : with an enquiry into their peerage, and the three estates in Parliament.
             Stillingfleet, Edward, 1635-1699.
          
           [4], 188 p.
           
             Printed for M.P., and sold by Richard Rumball ...,
             London :
             1680.
          
           
             Reproduction of original in the University of Illinois (Urbana-Champaign Campus). Library.
             Attributed to Edward Stillingfleet. cf. NUC pre-1956.
             Table of contents: p. [3]
          
        
      
    
     
       
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         eng
      
       
         
           England and Wales. -- Parliament -- Rules and practice.
           Church of England -- Bishops -- Temporal power.
        
      
    
     
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           THE
           GRAND
           QUESTION
           ,
           Concerning
           the
           Bishops
           Right
           To
           VOTE
           in
           PARLAMENT
           In
           Cases
           Capital
           ,
           STATED
           and
           ARGUED
           ,
           FROM
           The
           Parlament-Rolls
           ,
           and
           the
           History
           of
           former
           Times
           .
           WITH
           An
           Enquiry
           into
           their
           Peerage
           ,
           and
           the
           Three
           Estates
           in
           Parlament
           .
        
         
           LONDON
           ,
           Printed
           for
           
             M.
             P.
          
           and
           sold
           by
           
             Richard
             Rumball
          
           Book-binder
           ,
           at
           the
           Ball
           and
           Coffin
           in
           the
           
             Old
             Change
          
           ,
           1680.
           
        
      
       
         
         
         
           THE
           CONTENTS
           .
        
         
           
             CHAP.
             I.
             
          
           
             THE
             Question
             stated
             ;
             and
             general
             Prejudices
             removed
             .
          
        
         
           
             CHAP.
             II.
             
          
           
             The
             Right
             in
             point
             of
             Law
             debated
             .
             Concerning
             the
             Constitution
             of
             Clarendon
             ,
             and
             the
             Protestation
             11.
             
             R.
             2.
             
          
        
         
           
             CHAP.
             III.
             
          
           
             The
             Precedents
             on
             both
             sides
             laid
             down
             :
             those
             against
             the
             Bishops
             examined
             and
             answered
             .
          
        
         
           
             CHAP.
             IV.
             
          
           
             The
             Peerage
             of
             the
             Bishops
             cleared
             ;
             how
             far
             they
             make
             a
             
               third
               Estate
            
             in
             Parlament
             .
             Objections
             against
             it
             answered
             .
          
        
      
    
     
       
         
         
         
           CHAP.
           1.
           
        
         
           The
           Question
           stated
           ;
           and
           general
           Prejudices
           removed
           .
        
         
           THE
           Question
           
             in
             debate
             ,
             as
             it
             is
             stated
             by
             the
          
           Authour
           
             of
             the
          
           Letter
           ,
           is
           ,
           
           Whether
           the
           Bishops
           may
           be
           present
           and
           Vote
           Iudicially
           in
           Capital
           Cases
           ,
           which
           come
           to
           be
           judged
           in
           Parlament
           ,
           either
           in
           giving
           the
           Iudgment
           it self
           ,
           or
           in
           resolving
           and
           determining
           any
           circumstance
           preparatory
           and
           leading
           to
           that
           Iudgment
           ?
        
         
           For
           our
           better
           proceeding
           towards
           a
           Resolution
           of
           this
           Question
           ,
           it
           will
           be
           necessary
           to
           take
           notice
           of
           some
           things
           granted
           on
           both
           sides
           ,
           which
           may
           prevent
           needless
           disputes
           ,
           and
           be
           of
           great
           use
           in
           the
           following
           Debate
           .
        
         
           1.
           
           
             It
             is
             granted
          
           ,
           
           That
           the
           Bishops
           do
           sit
           in
           Parlament
           by
           virtue
           of
           their
           Baronies
           ,
           and
           are
           bound
           to
           serve
           the
           King
           there
           .
           
             And
             one
             part
             of
             the
          
           Service
           
             due
             to
             the
             King
             there
             ,
             is
          
           to
           sit
           in
           Iudgment
           :
           
             for
             the
          
           Authour
           
             of
             the
          
           Book
           entitled
           ,
           The
           Iurisdiction
           of
           the
           House
           of
           Peers
           asserted
           ,
           
             proves
             
             at
             large
          
           ,
           that
           the
           Right
           of
           Iudicature
           belongs
           to
           the
           Barons
           in
           Parlament
           ;
           
             and
             that
             the
          
           Lords
           Spiritual
           
             have
             a
             considerable
             share
             therein
             ,
             appears
             by
             this
             passage
             ,
             in
             the
          
           Title-page
           
             of
             that
          
           Book
           ,
           
             translated
             into
          
           English.
           
        
         
           The
           Iudgment
           of
           the
           Lords
           Spiritual
           and
           Temporal
           is
           according
           to
           the
           Vse
           and
           Custom
           of
           Parlament
           .
        
         
           The
           Vse
           and
           Custom
           of
           Parlament
           is
           the
           Law
           of
           Parlament
           .
        
         
           The
           Law
           of
           Parlament
           is
           the
           Law
           of
           England
           .
        
         
           The
           Law
           of
           England
           is
           the
           Law
           of
           the
           Land.
           
        
         
           The
           Law
           of
           the
           Land
           is
           according
           to
           
             Magna
             Charta
          
           .
        
         
           Therefore
           the
           Iudgment
           of
           the
           Lords
           Spiritual
           and
           Temporal
           is
           according
           to
           
             Magna
             Charta
          
           .
        
         
           Some
           Right
           then
           of
           Iudicature
           in
           Parlament
           the
           Bishops
           have
           by
           
             Magna
             Charta
          
           :
           which
           ,
           whatever
           it
           be
           ,
           is
           as
           much
           theirs
           by
           that
           Charter
           as
           any
           Right
           of
           Temporal
           Persons
           ;
           and
           cannot
           be
           invaded
           or
           taken
           from
           them
           without
           breach
           of
           that
           Charter
           ,
           any
           more
           then
           the
           Rights
           of
           the
           Lords
           Temporal
           ,
           or
           of
           any
           other
           Persons
           whatsoever
           .
           But
           how
           far
           that
           Right
           doth
           extend
           ,
           is
           now
           the
           thing
           in
           Question
           .
        
         
         
           2.
           
           It
           is
           not
           denied
           ,
           
             that
             the
             Bishops
             do
             sit
             in
             Parlament
             by
             the
             same
             kind
             of
             Writs
             that
             other
             Barons
             do
             .
          
           They
           are
           summon'd
           to
           advise
           and
           debate
           about
           the
           great
           and
           difficult
           Affairs
           of
           the
           Kingdom
           ;
           
             cum
             Praelatis
             ,
             Magnatibus
             &
             Proceribus
             dicti
             Regni
             nostri
             Angliae
             colloquium
             habere
             &
             tractatum
          
           ;
           i.
           e.
           to
           joyn
           therein
           with
           the
           Bishops
           and
           other
           Lords
           of
           the
           Kingdom
           .
           So
           that
           by
           the
           King
           's
           Writ
           of
           Summons
           they
           are
           impower'd
           and
           requir'd
           to
           confer
           and
           treat
           of
           all
           the
           weighty
           Affairs
           that
           shall
           be
           brought
           before
           them
           .
           And
           no
           Instance
           is
           so
           much
           as
           offer'd
           to
           be
           produced
           of
           any
           Writ
           wherein
           the
           King
           doth
           limit
           and
           restrain
           the
           Bishops
           ,
           any
           more
           then
           any
           other
           Lords
           of
           Parlament
           ,
           as
           to
           any
           matter
           of
           Consultation
           ,
           or
           Point
           of
           Judicature
           ,
           belonging
           to
           that
           House
           .
           They
           have
           then
           by
           their
           Writ
           of
           Summons
           as
           good
           right
           to
           sit
           in
           all
           Cases
           ,
           as
           in
           any
           :
           and
           since
           the
           other
           Lords
           by
           
             their
             Writs
          
           are
           summoned
           to
           advise
           with
           the
           Prelates
           in
           all
           matters
           that
           shall
           come
           before
           them
           ,
           without
           limitation
           ,
           it
           is
           not
           to
           be
           conceived
           how
           this
           can
           be
           done
           ,
           if
           the
           Bishops
           in
           some
           of
           the
           most
           important
           Debates
           be
           excluded
           .
        
         
           3.
           
           It
           is
           yielded
           ,
           
           That
           if
           the
           House
           proceeds
           
           in
           a
           
             Legislative
             way
          
           by
           passing
           
             Bills
             of
             Attainder
          
           ,
           the
           Bishops
           have
           a
           Right
           to
           sit
           and
           Vote
           therein
           as
           well
           as
           other
           Lords
           :
           at
           these
           it
           is
           said
           ,
           
             that
             the
             Bishops
             are
             or
             should
             be
             all
             present
             at
             the
             passing
             of
             them
             ,
             for
             then
             they
             act
             as
             Members
             of
             the
             House
             of
             Lords
             in
             their
             Legislative
             capacity
             .
          
           But
           men
           do
           as
           certainly
           die
           that
           are
           condemned
           in
           the
           Legislative
           ,
           as
           in
           the
           Iudicial
           Way
           .
           Is
           not
           this
           then
           really
           as
           much
           a
           
             Case
             of
             Bloud
          
           as
           the
           other
           ?
           If
           the
           Bishops
           should
           give
           their
           Votes
           in
           the
           Legislative
           way
           to
           condemn
           a
           Person
           for
           Treason
           ,
           and
           yet
           think
           they
           had
           not
           Voted
           in
           a
           
             Case
             of
             Bloud
          
           ;
           they
           would
           then
           indeed
           be
           like
           
           Chaucer's
           Frier
           ,
           mention'd
           by
           the
           Authour
           of
           the
           Letter
           ,
           that
           would
           have
           
             of
             a
             Capon
             the
             Liver
          
           ,
           
           
             and
             of
             a
             Pig
             the
             Head
             ,
             yet
             would
             that
             nothing
             for
             him
             should
             be
             dead
             .
          
           Doth
           a
           Bill
           of
           Attainder
           cut
           of
           a
           man's
           Head
           without
           making
           it
           a
           Case
           of
           Bloud
           ?
           There
           can
           be
           then
           no
           objection
           now
           made
           against
           the
           
             Bishops
             Right
          
           from
           any
           Canons
           of
           the
           Church
           ;
           for
           those
           allow
           no
           such
           distinction
           of
           proceeding
           in
           the
           Legislative
           ,
           or
           Iudicial
           Way
           .
           
           And
           the
           late
           Authour
           of
           
             the
             Peerage
             and
             Iurisdiction
             of
             the
             Lords
             Spiritual
          
           doth
           grant
           ,
           
             that
             the
             Canons
             do
             prohibit
             the
             Bishops
             voting
             in
             Bills
             of
             Attainder
             ,
             
             as
             much
             as
             in
             any
             Case
             whatsoever
             .
          
        
         
           But
           we
           are
           not
           to
           suppose
           a
           Person
           of
           such
           abilities
           as
           the
           Authour
           of
           the
           Letter
           ,
           would
           go
           about
           to
           exclude
           the
           Bishops
           from
           their
           Right
           of
           Voting
           in
           a
           
             Iudicial
             way
             in
             Cases
             Capital
          
           ,
           unless
           there
           were
           some
           great
           appearance
           of
           Law
           on
           his
           side
           ;
           because
           he
           professes
           so
           
             great
             a
             Desire
             that
             Right
             may
             prevail
          
           ;
           
           and
           
             that
             his
             design
             in
             writing
             was
             ,
             to
             satisfy
             himself
             and
             others
             where
             that
             Right
             is
             .
          
           The
           discovery
           whereof
           is
           our
           present
           business
           .
           Yet
           before
           the
           Authour
           of
           the
           Letter
           comes
           to
           a
           close
           debate
           of
           the
           matter
           of
           Right
           ,
           he
           lets
           fall
           some
           general
           Insinuations
           to
           create
           a
           prejudice
           in
           the
           Reader
           's
           mind
           ,
           as
           to
           the
           
             Bishops
             meddling
             at
             all
             in
             Secular
             Affairs
             ,
          
           as
           though
           it
           were
           inconsistent
           with
           their
           Function
           ,
           and
           with
           some
           passages
           in
           the
           Imperial
           Law.
           And
           because
           men
           may
           sometimes
           doe
           more
           harm
           by
           what
           they
           tell
           us
           
             they
             will
             not
             say
          
           ,
           then
           by
           what
           they
           
             do
             say
          
           ;
           it
           will
           be
           fit
           to
           prevent
           the
           danger
           of
           such
           Insinuations
           ,
           before
           we
           come
           to
           consider
           his
           Arguments
           .
        
         
           1.
           
           The
           first
           is
           ,
           
           
             that
             meddling
             at
             all
             in
             Secular
             Affairs
             seems
             to
             be
             the
             doing
             that
             which
             the
             Apostles
             declared
             they
             would
             not
             doe
             ,
          
           viz.
           
             leave
             the
             Word
             of
             God
             ,
             and
             serve
             Tables
             .
          
           But
           are
           all
           Persons
           of
           Estates
           now
           
           bound
           to
           part
           with
           them
           ,
           as
           the
           Christians
           then
           did
           ?
           
             The
             serving
             of
             Tables
          
           was
           a
           full
           employment
           ;
           and
           they
           who
           attended
           that
           Office
           were
           the
           Treasurers
           of
           the
           Church
           ,
           to
           distribute
           to
           every
           one
           as
           they
           judged
           fit
           ,
           out
           of
           the
           common
           Stock
           .
           Is
           it
           
             no
             Service
             to
             God
          
           ,
           to
           doe
           Justice
           ,
           and
           to
           shew
           Mercy
           ?
           to
           attend
           upon
           the
           publick
           Affairs
           of
           the
           Kingdom
           ,
           when
           they
           are
           called
           to
           it
           by
           their
           Sovereign
           ?
           Or
           are
           all
           Bishops
           now
           in
           the
           same
           circumstances
           the
           Apostles
           were
           when
           the
           Christian
           Church
           was
           to
           be
           planted
           in
           the
           World
           ,
           and
           so
           few
           persons
           as
           the
           12
           Apostles
           made
           choice
           of
           for
           that
           Work
           ?
           Is
           there
           no
           difference
           to
           be
           made
           between
           a
           Church
           constituted
           and
           settled
           and
           incorporated
           into
           the
           Commonwealth
           ,
           and
           one
           not
           yet
           formed
           ,
           but
           labouring
           under
           great
           difficulties
           ,
           and
           making
           its
           way
           through
           constant
           persecutions
           ?
           May
           it
           not
           be
           as
           well
           argued
           ,
           that
           Bishops
           are
           not
           to
           stay
           in
           one
           Countrey
           ,
           nor
           to
           have
           any
           fixed
           habitation
           ,
           because
           the
           Apostles
           passed
           from
           place
           to
           place
           preaching
           the
           Word
           of
           God
           ?
           Doth
           not
           the
           Authour
           of
           the
           Letter
           himself
           confesse
           ,
           
             that
             the
             Clergy
             are
             one
             of
             the
             Three
             Estates
             of
             the
             Kingdom
             ?
          
           
           and
           by
           the
           
             Act
             8
             Eliz.
          
           1.
           the
           Clergy
           are
           called
           
             one
             of
             the
             greatest
             
             States
             of
             this
             Realm
             .
          
           And
           is
           there
           not
           then
           great
           Reason
           ,
           that
           those
           who
           are
           
             the
             chief
             part
             of
             it
          
           ,
           as
           he
           confesseth
           the
           Bishops
           to
           be
           ,
           should
           have
           a
           share
           in
           affairs
           that
           concern
           the
           whole
           Nation
           ?
           And
           would
           it
           not
           seem
           strange
           to
           the
           Christian
           World
           ,
           that
           we
           alone
           of
           all
           the
           Kingdoms
           of
           Europe
           should
           exclude
           the
           Bishops
           from
           having
           an
           equal
           Interest
           with
           the
           other
           Estates
           in
           Parlament
           ?
           For
           it
           were
           easy
           to
           prove
           from
           unquestionable
           Testimonies
           ,
           that
           as
           soon
           as
           the
           Christian
           Religion
           was
           well
           settled
           in
           any
           of
           these
           
             Northern
             Kingdoms
          
           ,
           the
           Bishops
           were
           admitted
           into
           all
           the
           publick
           Councils
           :
           and
           have
           so
           continued
           to
           this
           day
           ,
           where
           the
           Convention
           of
           the
           Estates
           hath
           been
           kept
           up
           ;
           Bohemia
           onely
           excepted
           since
           the
           days
           of
           Sigismond
           .
        
         
           I
           begin
           with
           France
           ,
           where
           Hincmarus
           saith
           ,
           
           
             there
             were
             two
             great
             Councils
             every
             year
             :
             one
             of
             the
             States
             of
             the
             Kingdom
             ,
             for
             ordering
             the
             Affairs
             of
             the
             ensuing
             year
             ,
             and
             redressing
             of
             Grievances
             ;
             and
             in
             these
             the
             Bishops
             were
             always
             present
             :
             and
             the
             other
             of
             the
             King's
             Council
             ,
             which
             managed
             the
             intervening
             Affairs
             ;
             and
             into
             this
             the
             chief
             of
             the
             Bishops
             were
             chosen
             .
          
           It
           were
           endless
           to
           repeat
           the
           several
           Parlaments
           in
           France
           in
           the
           time
           of
           the
           Merovingian
           
           and
           Caroline
           Race
           ,
           wherein
           Laws
           were
           passed
           ,
           and
           the
           great
           Affairs
           of
           the
           Kingdom
           managed
           by
           the
           
             Bishops
             ,
             Noblemen
          
           ,
           and
           others
           .
           Those
           who
           have
           looked
           into
           the
           ancient
           Annals
           and
           Capitulars
           of
           France
           ,
           cannot
           be
           ignorant
           of
           this
           .
           There
           is
           one
           thing
           remarkable
           to
           our
           purpose
           in
           the
           famous
           Council
           of
           Frankford
           ,
           which
           opposed
           the
           Worship
           of
           Images
           so
           stoutly
           ,
           viz.
           that
           after
           the
           matters
           of
           Religion
           were
           agreed
           ,
           then
           ,
           according
           to
           the
           Custom
           of
           that
           Age
           ,
           the
           other
           Estates
           being
           present
           ,
           they
           proceeded
           to
           other
           matters
           :
           and
           then
           Tassilo
           Duke
           of
           Bavaria
           was
           brought
           upon
           his
           Knees
           for
           Treason
           ;
           and
           the
           Cause
           of
           Peter
           Bishop
           of
           Verdun
           was
           heard
           ,
           who
           was
           likewise
           accused
           of
           Treason
           ,
           and
           there
           purged
           himself
           .
           Concerning
           both
           which
           Cases
           there
           are
           2
           Canons
           still
           extant
           among
           the
           Canons
           of
           that
           Council
           :
           
           and
           in
           another
           ,
           the
           Bishops
           are
           appointed
           ,
           by
           consent
           of
           the
           King
           ,
           to
           doe
           Justice
           in
           their
           several
           Dioceses
           .
           And
           that
           they
           had
           not
           onely
           a
           share
           in
           the
           Legislative
           ,
           but
           in
           the
           
             Iudiciary
             part
          
           ,
           appears
           by
           one
           of
           the
           ancient
           Formulae
           in
           Marculphus
           ,
           
           where
           it
           is
           said
           ,
           that
           the
           King
           sate
           in
           Judgment
           
             unà
             cum
             Dominis
             &
             Patribus
             nostris
             Episcopis
             ,
             vel
             cum
             plurimis
             Optimatibus
             
             nostris
             ;
             (
             vel
             ,
          
           in
           the
           language
           of
           that
           Age
           ,
           is
           the
           same
           with
           
             &
             .
          
           )
           This
           was
           the
           Palatine
           Court
           ,
           
           where
           Bignonius
           saith
           
             the
             greater
             Causes
             were
             heard
             ,
             the
             King
             himself
             being
             present
             ,
          
           (
           or
           the
           
             Comes
             Palatii
             ,
             )
             Episcopis
             &
             Proceribus
             adsidentibus
             ,
             the
             Bishops
             and
             Lords
             sitting
             in
             Iudicature
             together
             with
             him
             .
          
           And
           this
           was
           not
           onely
           the
           Original
           of
           the
           Parlament
           of
           Paris
           ,
           as
           a
           standing
           Court
           of
           Iudicature
           ;
           but
           the
           like
           in
           England
           was
           the
           true
           foundation
           of
           the
           
             Supreme
             Court
          
           of
           Iudicature
           in
           the
           House
           of
           Peers
           .
           So
           that
           in
           the
           eldest
           and
           best
           times
           of
           France
           ,
           after
           Christianity
           had
           prevailed
           there
           ,
           neither
           consultation
           about
           publick
           Affairs
           ,
           nor
           administration
           of
           Justice
           were
           thought
           inconsistent
           with
           the
           Function
           of
           Bishops
           .
        
         
           In
           Spain
           ,
           during
           the
           
             Gothick
             Power
          
           ,
           all
           the
           great
           Affairs
           of
           the
           Kingdom
           ,
           and
           even
           the
           Rights
           of
           their
           Princes
           ,
           were
           debated
           and
           transacted
           by
           the
           greatest
           of
           the
           Clergy
           and
           Nobility
           together
           ;
           as
           may
           be
           seen
           in
           the
           several
           Councils
           of
           Toledo
           in
           that
           time
           ,
           
           in
           the
           case
           of
           
             Suintilas
             ,
             Sisenandus
          
           and
           others
           .
           And
           in
           one
           of
           them
           it
           is
           said
           ,
           that
           after
           they
           had
           dispatched
           matters
           of
           Religion
           ,
           they
           proceeded
           
             ad
             caeterarum
             Causarum
             negotia
             ,
             to
             the
             handling
             of
             other
             Causes
             .
          
           
           In
           the
           13.
           
           
           Council
           of
           Toledo
           ,
           the
           Case
           of
           Impeachments
           of
           Treason
           is
           brought
           in
           ;
           and
           Rules
           set
           down
           for
           due
           proceedings
           therein
           .
           And
           yet
           from
           one
           of
           these
           Councils
           of
           Toledo
           it
           is
           ,
           that
           all
           the
           stir
           hath
           been
           made
           in
           the
           Canon-Law
           about
           Bishops
           not
           being
           present
           in
           cases
           of
           bloud
           .
        
         
           In
           Germany
           ,
           the
           first
           Laws
           that
           were
           ever
           published
           were
           those
           by
           
             Lotharius
             II.
             in
             Comitiis
             Regni
          
           ,
           
           saith
           Goldastus
           ;
           and
           there
           were
           present
           33
           
             Bishops
             ,
             34
             Dukes
             ,
             72
             Counts
             ,
          
           besides
           the
           People
           .
           And
           by
           the
           Matriculation-Roll
           of
           the
           States
           of
           the
           Empire
           ,
           it
           appears
           what
           a
           great
           Interest
           the
           Clergy
           have
           preserved
           ther
           in
           from
           the
           first
           times
           of
           the
           prevalecy
           of
           Christianity
           there
           .
           
           And
           Arumaeus
           ,
           a
           considerable
           Protestant
           Lawyer
           of
           the
           Empire
           ,
           saith
           ,
           
             the
             Bishops
             of
          
           Germany
           
             sit
             in
             a
             double
             capacity
             in
             the
             Diets
             ,
             both
             as
             Bishops
             ,
             and
             as
             Princes
             of
             the
             Empire
             .
          
           And
           he
           commends
           
             the
             prudence
             of
             that
             Constitution
             with
             respect
             both
             to
             Iustice
             ,
             and
             the
             Honour
             and
             Safety
             of
             Religion
             .
          
        
         
           
             For
             the
             Kingdom
             of
          
           Bohemia
           ,
           
           Goldastus
           ,
           
             a
             learned
             Protestant
             ,
             saith
             ,
             that
          
           there
           ,
           as
           in
           all
           other
           well-constituted
           Kingdoms
           among
           Christians
           ,
           there
           were
           3
           Estates
           ,
           of
           
             Prelats
             ,
             Nobles
          
           ,
           and
           Commons
           ;
           and
           this
           continued
           ,
           
             he
             saith
          
           ,
           from
           
           the
           time
           Christianity
           was
           received
           ,
           till
           the
           days
           of
           Sigismond
           .
        
         
           No
           sooner
           was
           Christianity
           received
           in
           Hungary
           ,
           
           but
           their
           Princes
           ,
           Stephanus
           and
           Ladislaus
           ,
           called
           their
           great
           Councils
           of
           their
           Prelats
           and
           Nobles
           :
           and
           the
           Laws
           made
           in
           the
           
             Concilium
             Zabolchianum
          
           were
           passed
           by
           the
           King
           ,
           
           with
           all
           his
           Bishops
           and
           Nobles
           ,
           and
           with
           the
           consent
           of
           the
           
             whole
             Clergy
          
           and
           People
           .
        
         
           In
           Poland
           ,
           
           Starovolscius
           
             saith
             ,
             that
          
           their
           Ancestours
           ,
           after
           they
           received
           Christianity
           ,
           out
           of
           regard
           to
           Religion
           ,
           gave
           the
           Bishops
           the
           first
           place
           in
           the
           Senate
           ;
           and
           admitted
           the
           Clergy
           to
           the
           great
           Offices
           of
           the
           Kingdom
           .
           
           And
           Sigismond
           
             in
             his
          
           Constitution
           saith
           ,
           the
           States
           of
           Poland
           consist
           of
           the
           
             Bishops
             ,
             Barons
          
           ,
           and
           Delegates
           ,
           called
           Nuntii
           terrestres
           .
        
         
           
             In
             the
          
           Northern
           Kingdoms
           ,
           
           Adamus
           Bremensis
           
             saith
             ,
             that
          
           the
           Bishops
           ,
           after
           the
           People
           received
           Christianity
           ,
           were
           receiv'd
           into
           their
           publick
           Councils
           .
           
           And
           Loccenius
           
             reckons
             up
             among
             the
             several
             Estates
             ,
             the
          
           Bishops
           ,
           Nobles
           ,
           Knights
           ,
           and
           Deputies
           
             of
             the
             Country
             and
             Cities
             .
             And
             it
             appears
             by
             the
          
           Hirdstraa
           ,
           
           
             or
             the
             ancient
             Laws
             of
          
           Norway
           ,
           the
           Bishops
           as
           well
           as
           Nobility
           were
           present
           in
           the
           Convention
           of
           the
           States
           ,
           and
           all
           publick
           Councils
           .
        
         
         
           The
           like
           might
           be
           proved
           here
           in
           the
           Saxon
           times
           ,
           from
           the
           Conversion
           of
           Ethelbert
           downward
           .
           This
           is
           so
           very
           evident
           ,
           that
           he
           must
           blind
           his
           eyes
           that
           doth
           not
           see
           it
           ,
           if
           he
           doth
           but
           cast
           them
           on
           the
           History
           of
           those
           times
           .
        
         
           These
           things
           I
           have
           laid
           together
           with
           all
           possible
           brevity
           and
           clearness
           ,
           that
           in
           one
           view
           we
           may
           see
           a
           consent
           of
           all
           these
           parts
           of
           the
           Christian
           World
           ,
           in
           calling
           Bishops
           to
           their
           
             publick
             Councils
          
           ,
           and
           most
           solemn
           Debates
           ;
           and
           how
           far
           they
           were
           from
           thinking
           such
           Imployments
           inconsistent
           with
           their
           Sacred
           Function
           ,
           and
           charging
           them
           ,
           that
           thereby
           
             they
             left
             the
             Word
             of
             God
             to
             serve
             Tables
             .
          
           Neither
           can
           this
           be
           looked
           on
           as
           any
           part
           of
           the
           Degeneracy
           of
           the
           Church
           ,
           or
           the
           Policy
           of
           the
           Papacy
           ;
           since
           ,
           as
           the
           fore-cited
           Arumaeus
           saith
           ,
           
             they
             were
             admitted
             to
             this
             honour
             before
             the
             Papal
             Power
             was
             advanced
             ;
             and
             were
             so
             far
             from
             carrying
             on
             the
             Pope's
             designs
             ,
             that
             they
             were
             ,
             in
             most
             Countries
             ,
             the
             greatest
             Opposers
             of
             them
             .
          
           And
           when
           the
           Popes
           began
           to
           set
           up
           their
           Monarchy
           ,
           their
           business
           was
           ,
           to
           draw
           them
           off
           from
           meeting
           in
           these
           Councils
           ,
           under
           several
           pretences
           of
           
             Cases
             of
             Bloud
          
           ,
           and
           other
           things
           ;
           the
           better
           to
           keep
           them
           in
           a
           sole
           Dependency
           on
           themselves
           .
           
           As
           will
           appear
           by
           the
           following
           Discourse
           .
        
         
           2.
           
           
             The
             next
             thing
             suggested
             is
             ,
             that
          
           the
           Imperial
           Law
           doth
           forbid
           Clergy-men
           having
           any
           thing
           to
           doe
           with
           Secular
           matters
           .
           
           
             And
             for
             this
             a
          
           Rescript
           of
           Honorius
           and
           Theodosius
           
             is
             mentioned
             ,
             and
             a
          
           Decree
           of
           Iustinian
           .
           
             To
             which
             I
             answer
          
           ,
        
         
           1.
           
           The
           
             Imperial
             Edicts
          
           are
           not
           the
           Law
           of
           England
           .
           Our
           dispute
           is
           about
           a
           Right
           by
           our
           own
           Laws
           ;
           which
           a
           Rescript
           of
           Honorius
           and
           Theodosius
           can
           neither
           give
           nor
           take
           away
           .
           What
           would
           become
           of
           the
           whole
           frame
           of
           our
           Government
           ,
           and
           of
           our
           just
           Rights
           and
           Properties
           ,
           if
           the
           producing
           of
           Imperial
           Edicts
           would
           be
           sufficient
           to
           overthrow
           them
           ?
           When
           the
           Bishops
           once
           pleaded
           hard
           in
           Parlament
           in
           behalf
           of
           an
           Imperial
           Constitution
           ,
           lately
           adopted
           into
           the
           Canon-Law
           ,
           the
           Answer
           given
           by
           all
           the
           Temporal
           Lords
           was
           ,
           
           
             Nolumus
             leges
             Angliae
             mutare
             ,
             quae
             huc
             usque
             usitatae
             sunt
             &
             approbatae
             .
          
           They
           did
           not
           mean
           ,
           they
           would
           make
           no
           alterations
           in
           Parlament
           ,
           for
           that
           very
           Parlament
           did
           so
           in
           several
           things
           :
           but
           their
           meaning
           was
           ,
           
           as
           Mr.
           Selden
           observes
           ,
           that
           they
           owned
           neither
           Canon
           nor
           Imperial
           Laws
           here
           ,
           any
           farther
           then
           they
           were
           agreeable
           to
           the
           Laws
           of
           the
           Land.
           
        
         
         
           2.
           
           The
           Imperial
           Constitutions
           do
           give
           liberty
           to
           Church-men
           to
           have
           to
           doe
           in
           Secular
           Affairs
           .
           The
           Emperour
           Constantine
           ,
           whose
           Constitutions
           deserve
           as
           great
           regard
           as
           those
           of
           Honorius
           and
           Theodosius
           ,
           to
           shew
           his
           respect
           to
           the
           Christian
           Religion
           ,
           permitted
           all
           men
           to
           bring
           their
           Causes
           before
           the
           Bishops
           ,
           without
           ever
           going
           to
           the
           other
           Tribunals
           ,
           
           as
           Sozomen
           ,
           a
           Lawyer
           of
           Constantinople
           ,
           relates
           .
           And
           this
           is
           the
           true
           foundation
           of
           the
           Constitution
           
             De
             Episcopali
             Iudicio
          
           ;
           as
           Gothofred
           confesseth
           .
           Which
           is
           at
           large
           inserted
           into
           the
           Capitulars
           ,
           
           with
           a
           more
           then
           usual
           introduction
           ;
           and
           made
           a
           Law
           to
           all
           the
           Subjects
           of
           the
           Empire
           ,
           
             Franks
             ,
             Saxons
             ,
             Lombards
             ,
             Britons
             ,
             &c.
          
           and
           therefore
           is
           more
           considerable
           to
           these
           parts
           then
           a
           bare
           Rescript
           of
           Honorius
           and
           Theodosius
           .
           And
           yet
           ,
           these
           very
           Emperours
           ,
           
           in
           a
           Constitution
           of
           theirs
           ,
           do
           so
           far
           ratifie
           the
           Judgment
           of
           Bishops
           upon
           Trial
           by
           consent
           before
           them
           ,
           that
           no
           Appeal
           doth
           lie
           from
           their
           Decree
           .
           What
           Rescript
           then
           is
           this
           of
           theirs
           which
           so
           utterly
           forbids
           Clegy-men
           having
           any
           thing
           to
           doe
           with
           publick
           Functions
           ,
           or
           things
           appertaining
           to
           the
           Court
           ?
           I
           suppose
           that
           Constitution
           of
           Honorius
           is
           meant
           ,
           which
           confines
           the
           
           Bishops
           Power
           to
           what
           concerns
           Religion
           ;
           and
           leaves
           other
           Causes
           to
           the
           ordinary
           Judges
           and
           the
           Course
           of
           Law.
           But
           two
           things
           are
           well
           observed
           by
           
             Iac.
             Gothofred
          
           concerning
           this
           Rescript
           of
           Honorius
           :
           
           1.
           that
           it
           is
           meant
           of
           absolute
           and
           peremptory
           Judgment
           without
           Appeal
           ;
           2.
           that
           whatever
           is
           meant
           by
           it
           ,
           not
           many
           years
           after
           ,
           this
           Constitution
           was
           repealed
           by
           Honorius
           himself
           ,
           and
           the
           Bishops
           sentence
           made
           as
           absolute
           as
           before
           .
           So
           that
           Honorius
           is
           clearly
           against
           him
           ,
           if
           a
           man's
           second
           judgment
           and
           thoughts
           be
           better
           .
        
         
           3.
           
           The
           practice
           of
           the
           best
           men
           in
           those
           Ages
           shews
           ,
           that
           they
           thought
           no
           Law
           in
           force
           to
           forbid
           Church-men
           to
           meddle
           in
           Secular
           Affairs
           :
           as
           might
           be
           at
           large
           proved
           from
           the
           practice
           of
           
             Gregory
             Thaumaturgus
          
           and
           S.
           Basil
           in
           the
           East
           ;
           
           of
           Silvanus
           Bishop
           of
           Troas
           ,
           of
           S.
           Ambrose
           ,
           S.
           Augustine
           ,
           and
           others
           of
           the
           greatest
           and
           most
           devout
           Church-men
           of
           those
           times
           .
           
           And
           S.
           Augustine
           was
           so
           far
           from
           thinking
           it
           unlawfull
           ,
           
           that
           in
           his
           opinion
           S.
           Paul
           commanded
           the
           Bishops
           to
           doe
           it
           .
           
             Constituit
             enim
             talibus
             Causis
             Ecclesiasticos
             Apostolus
             Cognitores
             .
          
           And
           the
           learned
           Gothofred
           of
           Geneva
           saith
           ,
           
           
             Mos
             hic
             frequens
             &
             legitimus
             eundi
             ad
             Iudices
             
             Episcopos
             .
             It
             was
             then
             a
             common
             and
             legal
             practice
             to
             go
             to
             Bishops
             as
             to
             their
             Iudges
             .
          
           Which
           would
           never
           have
           been
           ,
           if
           there
           had
           been
           a
           Law
           in
           force
           to
           forbid
           Bishops
           meddling
           in
           Secular
           Affairs
           .
        
         
           4.
           
           The
           Emperours
           still
           reserved
           to
           themselves
           the
           power
           of
           dispensing
           with
           their
           own
           Rescripts
           ,
           and
           the
           Canons
           of
           the
           Church
           .
           
           Therefore
           the
           Council
           of
           Sardica
           ,
           when
           it
           prohibits
           Bishops
           going
           to
           Court
           ,
           excepts
           the
           Princes
           calling
           them
           thither
           .
           Upon
           which
           Balsamon
           hath
           this
           Note
           ;
           that
           
             although
             the
             Canons
             prohibit
             ,
             yet
             if
             the
             Emperour
             commands
             ,
             the
             Bishops
             are
             bound
             to
             obey
             ,
             and
             to
             doe
             what
             he
             commands
             them
          
           ;
           without
           any
           fault
           either
           in
           the
           Emperour
           or
           them
           .
           And
           in
           other
           places
           he
           asserts
           the
           Emperour's
           power
           of
           dispensing
           with
           the
           strictest
           Canons
           against
           Church-mens
           meddling
           in
           Secular
           Affairs
           :
           
           Thence
           he
           saith
           ,
           the
           Metropolitan
           of
           Side
           was
           chief
           Minister
           of
           State
           under
           
             Michael
             Ducas
          
           ;
           and
           the
           Bishop
           of
           Neocaesarea
           made
           the
           Laws
           of
           the
           Admiralty
           for
           Greece
           .
           And
           the
           Glosse
           upon
           
             Iustinian's
             Novells
          
           observes
           ,
           
           that
           Bishops
           may
           meddle
           with
           the
           Affairs
           of
           the
           Commonwealth
           ,
           when
           their
           Prince
           calls
           them
           to
           it
           .
           And
           this
           is
           the
           present
           Case
           ;
           for
           
           the
           Bishops
           are
           summon'd
           by
           the
           
           King
           's
           Writ
           to
           serve
           him
           in
           the
           publick
           Council
           of
           the
           Nation
           :
           and
           therefore
           no
           
             Imperial
             Rescript
          
           ,
           if
           it
           were
           of
           force
           in
           England
           ,
           could
           have
           any
           in
           this
           Case
           ,
           which
           was
           allowed
           by
           the
           Imperial
           Laws
           themselves
           .
        
         
           5.
           
           There
           is
           a
           great
           Mistake
           about
           
           Iustinian's
           Decree
           .
           
           For
           the
           Bishops
           are
           not
           so
           much
           as
           mention'd
           in
           it
           ;
           but
           the
           
             Defensores
             Ecclesiarum
          
           ;
           who
           were
           Lawyers
           ,
           or
           Advocates
           of
           the
           Church
           :
           as
           appears
           by
           a
           Constitution
           of
           Honorius
           ;
           where
           Gothofred
           proves
           they
           were
           not
           so
           much
           as
           in
           Orders
           .
           
           It
           is
           true
           ,
           Iustinian
           doth
           appropriate
           the
           
             Probat
             of
             Wills
          
           to
           the
           Master
           of
           his
           Revenue
           ;
           but
           the
           Law
           and
           Custom
           of
           England
           ,
           
           as
           Lindwood
           observes
           ,
           hath
           alter'd
           that
           Constitution
           :
           and
           which
           must
           we
           regard
           more
           ,
           Iustinian
           ,
           or
           our
           
             own
             Laws
          
           ?
        
         
           I
           find
           one
           thing
           more
           suggested
           by
           way
           of
           Prejudice
           to
           the
           Cause
           in
           hand
           ,
           viz.
           the
           
             Common
             Law
          
           of
           England
           ,
           
           which
           hath
           provided
           a
           Writ
           upon
           a
           Clergy-man's
           being
           chosen
           an
           Officer
           in
           a
           Mannor
           ,
           saying
           it
           was
           
             contra
             Legem
             &
             Consuetudinem
             Regni
             ,
             &
             non
             consonum
             .
          
           The
           Argument
           had
           been
           altogether
           as
           good
           ,
           if
           it
           had
           been
           taken
           from
           a
           Minister
           of
           a
           
           Parish
           not
           being
           capable
           of
           the
           Office
           of
           Constable
           ;
           and
           it
           had
           as
           effectually
           proved
           that
           Clergy-men
           ought
           not
           to
           meddle
           in
           Secular
           Affairs
           .
        
      
       
         
           CHAP.
           II.
           
        
         
           The
           Right
           in
           point
           of
           Law
           debated
           .
           Concerning
           the
           Constitution
           of
           Clarendon
           ,
           and
           the
           Protestation
           11
           R.
           2.
           
        
         
           HAving
           removed
           these
           general
           Prejudices
           ,
           I
           now
           come
           to
           debate
           more
           closely
           the
           main
           Point
           .
           For
           the
           Authour
           of
           the
           Letter
           undertakes
           to
           prove
           ,
           that
           Bishops
           cannot
           by
           Law
           give
           Votes
           in
           
             Capital
             Cases
          
           in
           Parlament
           .
           
           Which
           he
           doth
           two
           ways
           :
           1.
           by
           Statute-Law
           ;
           2.
           by
           Use
           and
           Custome
           ,
           which
           he
           saith
           is
           Parlament-Law
           :
           and
           for
           this
           he
           produceth
           many
           Precedents
           .
        
         
           I.
           For
           Statute-Law
           ;
           two
           Ratifications
           ,
           he
           saith
           ,
           there
           have
           been
           of
           it
           in
           Parlament
           ;
           by
           the
           
             Constitutions
             of
             Clarendon
          
           ,
           and
           the
           11
           R.
           2.
           
        
         
           1.
           
           The
           
             Constitutions
             of
             Clarendon
          
           ;
           
           which
           he
           looks
           on
           as
           the
           more
           considerable
           ,
           because
           
             they
             were
             not
             the
             enacting
             of
             
             new
             Laws
             ,
             but
             a
             declaration
             of
             what
             was
             before
             .
          
           And
           for
           the
           same
           Reason
           I
           value
           them
           too
           ,
           and
           shall
           be
           content
           this
           Cause
           stand
           or
           fall
           by
           them
           .
        
         
           The
           Constitution
           
             in
             debate
             is
             the
             11
             th
             ,
             which
             is
             thus
             repeated
             and
             translated
             in
             the
          
           Letter
           .
           Archiepiscopi
           ,
           Episcopi
           ,
           &
           universae
           Personae
           Regni
           qui
           de
           Rege
           tenent
           in
           Capite
           ,
           habeant
           possessiones
           suas
           de
           Rege
           ,
           sicut
           Baroniam
           ,
           &
           inde
           Respondeant
           Iusticiariis
           &
           Ministris
           Regis
           ,
           &
           sequantur
           &
           faciant
           omnes
           consuetudines
           Regias
           :
           
             Et
             sicut
             ceteri
             Barones
             ,
             debent
             interesse
             judiciis
             Curie
             Regis
             ,
             quousque
             perveniatur
             ad
             diminutionem
             membrorum
             ,
             vel
             ad
             mortem
             .
          
        
         
           The
           Archbishops
           ,
           Bishops
           ,
           and
           all
           the
           dignified
           Clergy
           of
           the
           Land
           that
           hold
           of
           the
           King
           
             in
             Capite
          
           ,
           shall
           hold
           their
           possessions
           from
           the
           King
           ,
           as
           a
           Barony
           ,
           and
           answer
           for
           their
           estates
           unto
           the
           King's
           Iustices
           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
           Iudgments
           in
           the
           King's
           Courts
           ,
           till
           it
           come
           to
           require
           either
           losse
           of
           Member
           or
           Life
           .
        
         
           The
           Argument
           from
           hence
           he
           enforceth
           from
           the
           solemn
           Recognition
           and
           publick
           confirmation
           of
           these
           Constitutions
           ,
           
           
           and
           the
           Oath
           taken
           to
           observe
           them
           ;
           from
           whence
           he
           concludes
           this
           to
           be
           
             Testimonium
             irrefragabile
             ,
             An
             irrefragable
             and
             invincible
             Testimony
             .
          
           And
           so
           I
           foresee
           it
           will
           prove
           ,
           but
           to
           a
           quite
           contrary
           purpose
           from
           what
           he
           intended
           it
           .
        
         
           
             The
             whole
          
           Question
           
             depends
             upon
             the
             meaning
             of
             the
             latter
          
           Clause
           
             of
             this
          
           Constitution
           .
           
             The
             meaning
             he
             gives
             of
             it
             is
             this
             ,
          
           
           that
           the
           Prelats
           of
           the
           Church
           should
           not
           be
           present
           at
           the
           Iudgments
           given
           in
           the
           King's
           Courts
           when
           losse
           of
           Member
           or
           Life
           was
           in
           question
           .
        
         
           The
           meaning
           of
           it
           I
           conceive
           to
           be
           this
           ,
           that
           the
           Bishops
           are
           required
           to
           be
           present
           in
           the
           King's
           Courts
           as
           other
           Barons
           are
           ,
           till
           they
           come
           to
           give
           Sentence
           as
           to
           Dismembring
           ,
           or
           loss
           of
           Life
           .
        
         
           Whether
           of
           these
           is
           the
           true
           meaning
           is
           now
           to
           be
           considered
           :
           and
           that
           will
           best
           be
           discovered
           these
           three
           ways
           .
           1.
           
           By
           the
           Occasion
           .
           2.
           
           By
           the
           plain
           Sense
           of
           the
           words
           according
           to
           their
           true
           Reading
           .
           3.
           
           By
           the
           subsequent
           Practice
           upon
           this
           Constitution
           in
           the
           Parlament
           at
           Northampton
           soon
           after
           .
        
         
           1.
           
           By
           the
           Occasion
           .
           The
           Authour
           of
           the
           Letter
           assigns
           that
           Occasion
           for
           this
           Constitution
           ,
           for
           which
           there
           is
           not
           the
           least
           colour
           ;
           
             viz.
             That
             the
             Prelats
             of
             that
             
             time
          
           were
           ambitious
           
             of
             a
             kind
             of
          
           Omnipotency
           ,
           
           
             (
             in
          
           Judicature
           
             I
             suppose
             he
             means
             ,
             )
             and
             that
             to
             restrain
             their
             power
             of
          
           Judging
           Capital
           Cases
           this
           Constitution
           
             was
             made
             :
             and
             because
             this
             seemed
             to
             be
          
           a
           diminution
           
             of
             their
             Power
             ,
             therefore
          
           Matt.
           Paris
           
             ranks
             it
             among
             the
          
           Consuetudines
           iniquas
           ,
           the
           wicked
           Customs
           
             of
             the
             former
             times
          
           .
           For
           all
           which
           there
           is
           not
           the
           least
           shadow
           of
           Proof
           ;
           besides
           that
           it
           is
           so
           repugnant
           to
           the
           History
           of
           those
           Times
           ,
           that
           I
           can
           hardly
           believe
           a
           Person
           of
           so
           much
           Learning
           and
           Judgment
           ,
           as
           is
           commonly
           said
           to
           be
           the
           Authour
           of
           the
           Letter
           ,
           could
           betray
           so
           much
           unskilfulness
           in
           the
           Affairs
           of
           those
           Times
           .
           For
           this
           is
           so
           far
           from
           being
           true
           ,
           that
           the
           Bishops
           did
           then
           affect
           such
           a
           Power
           of
           
             Iudging
             in
             all
             Secular
             Causes
          
           ,
           that
           they
           looked
           on
           their
           attendance
           in
           the
           
             King's
             Court
          
           in
           the
           Trial
           of
           Causes
           ,
           as
           a
           burthen
           which
           they
           would
           fain
           have
           been
           rid
           of
           ;
           because
           they
           accounted
           it
           a
           
             Mark
             of
             Subjection
          
           to
           the
           Civil
           Power
           ,
           and
           contrary
           to
           that
           
             Ecclesiastical
             Liberty
          
           ,
           or
           Independency
           on
           Princes
           ,
           which
           from
           the
           days
           of
           Gregory
           VII
           .
           they
           had
           been
           endeavouring
           to
           set
           up
           .
           Which
           H.
           II.
           being
           very
           sensible
           of
           ,
           resolved
           to
           tie
           them
           to
           the
           Service
           of
           their
           Baronies
           ,
           and
           to
           an
           attendance
           
           on
           the
           
             King's
             Courts
          
           together
           with
           
             other
             Barons
          
           .
           But
           lest
           they
           should
           pretend
           any
           force
           on
           their
           Consciences
           ,
           as
           to
           the
           Canons
           of
           the
           Church
           ,
           this
           Constitution
           doth
           not
           require
           ,
           but
           suffers
           them
           to
           withdraw
           ,
           
             when
             they
             came
             to
             Sentence
             in
             matters
             of
             Bloud
             .
          
           And
           that
           this
           was
           the
           true
           Occasion
           ,
           I
           prove
           by
           these
           two
           invincible
           Arguments
           .
        
         
           1.
           
           By
           the
           complaint
           which
           they
           made
           of
           the
           Baronies
           ,
           as
           too
           great
           
             a
             mark
             of
             Subjection
          
           to
           the
           Civil
           Power
           .
           This
           is
           plain
           from
           
             Matt.
             Paris
          
           
           himself
           ,
           to
           whom
           the
           Authour
           of
           the
           Letter
           refers
           :
           for
           when
           he
           speaks
           of
           William
           the
           Conquerour's
           bringing
           the
           Temporalties
           of
           the
           Bishops
           into
           the
           condition
           of
           
             Baronies
             ,
             i.
             e.
          
           forcing
           them
           to
           hold
           them
           of
           him
           
             in
             Chief
          
           upon
           certain
           Duties
           and
           Services
           ,
           he
           calls
           it
           
             Constitutionem
             pessimam
             ,
             a
             most
             wicked
             Constitution
          
           ;
           just
           as
           he
           calls
           the
           Customs
           of
           
             Clarendon
             Consuetudines
             iniquas
             ,
             wicked
             Customs
             .
          
           And
           he
           adds
           ,
           that
           many
           were
           banished
           rather
           then
           they
           would
           submit
           to
           that
           Constitution
           .
           For
           their
           Privileges
           were
           so
           great
           with
           the
           Frank-almoign
           they
           enjoy'd
           in
           the
           Saxon
           times
           ,
           and
           their
           desires
           so
           hearty
           (
           especially
           among
           the
           Monks
           ,
           who
           from
           
           Edgar's
           time
           had
           gotten
           into
           most
           Cathedral
           Churches
           )
           to
           advance
           
           the
           
             Papal
             Monarchy
          
           ,
           that
           they
           rather
           chose
           to
           quit
           all
           ,
           then
           to
           give
           up
           the
           Cause
           of
           the
           
             Churche's
             Liberty
          
           by
           accepting
           of
           Baronies
           .
           Therefore
           
             Matt.
             Paris
          
           calls
           the
           Rolls
           that
           were
           made
           of
           the
           Services
           belonging
           to
           these
           
             Baronies
             ,
             Rotulas
             Ecclesiasticae
             Servitutis
          
           ,
           the
           
             Rolls
             of
             Ecclesiastical
             Slavery
          
           ;
           then
           which
           nothing
           could
           be
           more
           contrary
           to
           that
           
             Ecclesiastical
             Liberty
          
           which
           was
           then
           setting
           up
           by
           Pope
           Hildebrand
           .
           And
           to
           put
           this
           out
           of
           all
           dispute
           ,
           
             Petrus
             Blesensis
          
           ,
           a
           Name
           well
           known
           in
           this
           dispute
           ,
           in
           that
           very
           Book
           where
           he
           complains
           of
           the
           
             Bishops
             Hypocrisy
          
           about
           
             Cases
             of
             Bloud
          
           ,
           in
           being
           present
           at
           hearing
           and
           trying
           Causes
           ,
           but
           going
           out
           at
           Sentence
           ,
           complains
           likewise
           of
           their
           Baronies
           ,
           as
           those
           which
           gave
           occasion
           to
           that
           Hypocrisy
           ,
           and
           as
           
             the
             marks
             of
             the
             vilest
             Slavery
             .
          
           
           
             Et
             in
             occasione
             turpissimae
             Servitutis
             seipsos
             Barones
             appellant
             .
          
           They
           may
           think
           it
           an
           honour
           to
           be
           called
           the
           
             King's
             Barons
          
           ,
           but
           he
           accounts
           it
           
             the
             greatest
             Slavery
          
           ;
           and
           applies
           that
           place
           of
           Scripture
           to
           them
           ,
           
             They
             have
             reigned
             ,
             but
             not
             by
             me
             ;
             they
             are
             become
             Princes
             ,
             and
             I
             know
             them
             not
             .
          
           Now
           
             Pet.
             Blesensis
          
           lived
           in
           the
           time
           of
           H.
           II.
           and
           knew
           the
           whole
           proceedings
           of
           the
           
             Constitutions
             of
             Clarendon
          
           ,
           and
           was
           
           a
           zealous
           maintainer
           of
           
           Becket's
           Cause
           ,
           or
           ,
           which
           was
           all
           one
           ,
           of
           
             the
             Liberties
             of
             the
             Church
          
           ,
           as
           they
           call'd
           them
           ,
           against
           the
           
             Civil
             Power
          
           .
        
         
           2.
           
           By
           the
           fierce
           Contest
           between
           the
           Civil
           and
           Ecclesiastical
           Power
           ,
           about
           the
           Liberties
           of
           Church-men
           .
           This
           was
           carried
           on
           from
           the
           time
           that
           William
           I.
           brought
           them
           into
           Subjection
           by
           their
           Baronies
           :
           his
           Sons
           stood
           upon
           the
           Rights
           of
           the
           Crown
           ;
           whilst
           Anselm
           and
           his
           Brethren
           struggled
           all
           they
           could
           ,
           but
           to
           little
           purpose
           ,
           till
           after
           the
           death
           of
           H.
           I.
           Then
           Stephen
           ,
           to
           gratifie
           the
           great
           Prelates
           ,
           by
           whose
           favour
           he
           came
           to
           the
           Crown
           ,
           yielded
           all
           they
           desired
           :
           but
           he
           soon
           repented
           ,
           and
           they
           were
           even
           with
           him
           for
           it
           .
           Malmsbury
           takes
           particular
           notice
           ,
           that
           he
           yielded
           they
           should
           have
           their
           Possessions
           free
           and
           absolute
           ;
           
           and
           they
           promised
           onely
           a
           
             conditional
             Allegeance
          
           to
           him
           ,
           as
           long
           as
           he
           maintained
           the
           
             Liberties
             of
             the
             Church
          
           .
           When
           K.
           Stephen
           broke
           the
           Canons
           ,
           as
           they
           said
           ,
           by
           imprisoning
           2
           Bishops
           ,
           the
           Bishop
           of
           Winchester
           and
           his
           Brethren
           summon'd
           him
           to
           answer
           it
           before
           them
           in
           Council
           ;
           and
           there
           declared
           ,
           that
           the
           King
           had
           nothing
           to
           doe
           with
           Church-men
           ,
           till
           the
           Cause
           was
           first
           heard
           and
           determined
           by
           themselves
           .
           
           All
           his
           time
           ,
           they
           had
           no
           regard
           to
           his
           Authority
           ,
           when
           it
           contradicted
           their
           Wills
           :
           and
           when
           the
           Peace
           was
           made
           between
           Him
           and
           H.
           II.
           
             Radulphus
             de
             Diceto
          
           takes
           notice
           that
           the
           Power
           of
           the
           Clergy
           increased
           by
           it
           .
           
           In
           this
           state
           H.
           II.
           found
           things
           ,
           
           when
           
             Gul.
             Neuburgensis
          
           saith
           ,
           
             the
             great
             business
             of
             the
             Church-men
             was
             to
             preserve
             their
             Liberties
             .
          
           Upon
           this
           the
           great
           Quarrel
           between
           Him
           and
           Becket
           began
           :
           this
           made
           the
           King
           search
           what
           the
           Rights
           of
           the
           Crown
           were
           which
           his
           Ancestours
           challenged
           ;
           to
           these
           he
           was
           resolved
           to
           make
           Becket
           and
           his
           Brethren
           submit
           .
           For
           this
           purpose
           the
           Parlament
           was
           called
           at
           Clarendon
           ,
           and
           after
           great
           debates
           the
           16
           Constitutions
           were
           produced
           ;
           which
           were
           those
           the
           King
           was
           resolved
           to
           maintain
           ,
           and
           he
           made
           the
           Bishops
           as
           well
           as
           others
           swear
           to
           observe
           them
           .
           Now
           when
           the
           rest
           of
           them
           relate
           to
           some
           Exemptions
           and
           Privileges
           which
           the
           Church-men
           challenged
           to
           themselves
           ,
           about
           their
           
             Courts
             ,
             Excommunications
             ,
             Appeals
          
           ,
           and
           such
           like
           ,
           and
           which
           the
           King
           thought
           fit
           to
           restrain
           them
           in
           ;
           (
           From
           whence
           in
           
           Becket's
           Epistles
           it
           is
           said
           ,
           
           those
           Constitutions
           were
           framed
           
             ad
             ancillandam
             Ecclesiam
             ,
             to
             bring
             the
             Church
             in
             subjection
             ,
          
           as
           Baronius
           shews
           
           out
           of
           the
           Vatican
           Copy
           .
           And
           Fitz-Stephen
           
           saith
           ,
           All
           the
           Constitutions
           of
           Clarendon
           were
           for
           
             suppressing
             the
             Liberty
             of
             the
             Church
             ,
             and
             oppressing
             the
             Clergy
             :
          
           I
           say
           ,
           considering
           this
           ,
           )
           is
           there
           not
           then
           great
           Reason
           to
           understand
           this
           11
           th
           .
           Constitution
           after
           the
           same
           manner
           :
           viz.
           that
           notwithstanding
           K.
           
           Stephen's
           Grant
           ,
           
             H.
             II.
          
           would
           make
           them
           hold
           by
           Baronies
           ,
           and
           doe
           all
           the
           Service
           of
           Barons
           in
           the
           
             King's
             Courts
          
           ,
           as
           other
           Barons
           did
           ;
           and
           he
           would
           allow
           them
           no
           other
           Privilege
           ,
           but
           that
           of
           
             withdrawing
             when
             they
             came
             to
             Sentence
             in
             a
             Case
             of
             Bloud
             ?
          
           What
           is
           there
           in
           this
           sense
           ,
           but
           what
           is
           easy
           and
           natural
           ,
           and
           fully
           agreeable
           to
           the
           state
           of
           those
           Times
           ?
           whereas
           there
           is
           not
           the
           least
           foundation
           for
           the
           pretence
           of
           the
           Bishops
           affecting
           to
           be
           present
           in
           all
           Causes
           ,
           which
           the
           King
           must
           restrain
           by
           this
           Constitution
           .
        
         
           This
           sense
           of
           it
           is
           not
           onely
           without
           ground
           ,
           but
           is
           absolutely
           repugnant
           to
           all
           the
           History
           of
           that
           Age.
           For
           if
           this
           Constitution
           was
           intended
           to
           restrain
           the
           Bishops
           from
           trying
           
             Causes
             of
             Bloud
          
           ,
           then
           the
           Bishops
           did
           desire
           to
           be
           present
           in
           those
           Causes
           ,
           and
           the
           King
           would
           not
           suffer
           them
           .
           Whereas
           it
           is
           evident
           that
           the
           Bishops
           pretended
           scruple
           of
           Conscience
           from
           
           the
           Canons
           ,
           that
           they
           could
           not
           be
           present
           ;
           but
           in
           truth
           stood
           upon
           their
           Exemption
           from
           the
           Service
           of
           Barons
           ,
           which
           they
           call'd
           
             Ecclesiastical
             Slavery
          
           .
           And
           therefore
           that
           could
           not
           be
           the
           sense
           of
           the
           Constitution
           ,
           to
           restrain
           them
           in
           that
           which
           they
           desired
           to
           be
           freed
           from
           ,
           and
           which
           by
           this
           Constitution
           of
           Clarendon
           was
           plainly
           forced
           upon
           them
           against
           their
           wills
           .
           For
           Lanfranc
           had
           brought
           the
           Canon
           of
           the
           11
           th
           .
           Council
           of
           Toledo
           into
           England
           ,
           
           
             That
             no
             Bishop
             or
             Clergy-man
             should
             condemn
             a
             man
             to
             death
             ,
             or
             give
             vote
             in
             the
             Sentence
             of
             Condemnation
             :
          
           at
           which
           Council
           were
           present
           2
           Archbishops
           ,
           12
           Bishops
           ,
           and
           21
           Abbots
           .
           And
           before
           H.
           II
           '
           s
           time
           this
           Canon
           of
           Toledo
           was
           received
           into
           the
           Body
           of
           the
           Canon-Law
           ,
           made
           by
           
             Ivo
             ,
             Burchardus
             ,
             Regino
          
           ,
           and
           Gratian
           who
           lived
           in
           the
           time
           of
           K.
           Stephen
           :
           and
           when
           they
           saw
           such
           a
           Canon
           so
           generally
           received
           ,
           is
           there
           not
           far
           greater
           Reason
           to
           think
           they
           desired
           to
           withdraw
           ,
           then
           that
           they
           should
           press
           to
           be
           present
           ,
           and
           the
           King
           restrain
           them
           ?
           But
           the
           Constitution
           is
           so
           framed
           on
           purpose
           ,
           to
           let
           them
           understand
           ,
           that
           the
           King
           expected
           in
           all
           Iudgments
           they
           should
           doe
           their
           Duty
           ,
           as
           other
           Barons
           :
           but
           lest
           they
           should
           think
           he
           purposely
           designed
           
           to
           make
           them
           break
           the
           Canons
           ,
           he
           leaves
           them
           at
           
             liberty
             to
             withdraw
          
           when
           Sentence
           was
           to
           be
           given
           .
           So
           that
           I
           can
           hardly
           doubt
           but
           the
           Authour
           of
           the
           Letter
           ,
           if
           he
           please
           calmly
           to
           reflect
           upon
           the
           whole
           matter
           ,
           will
           see
           reason
           to
           acknowledge
           his
           mistake
           ;
           and
           that
           this
           Constitution
           was
           so
           far
           from
           intending
           to
           restrain
           the
           Bishops
           from
           all
           Iudicature
           in
           
             Cases
             of
             Bloud
          
           ,
           that
           ,
           on
           the
           contrary
           ,
           it
           was
           purposely
           framed
           to
           oblige
           them
           to
           be
           present
           ,
           and
           to
           act
           in
           such
           Causes
           as
           the
           
             other
             Barons
          
           did
           ,
           at
           least
           till
           the
           Cause
           was
           ripe
           for
           Sentence
           :
           which
           last
           Point
           the
           King
           was
           content
           to
           yield
           to
           them
           ,
           out
           of
           regard
           and
           reverence
           to
           the
           Canons
           of
           the
           Church
           .
           For
           the
           words
           of
           the
           Law
           are
           not
           words
           of
           Prohibition
           and
           restraint
           from
           any
           thing
           ,
           but
           of
           Obligation
           to
           a
           Duty
           ;
           which
           was
           ,
           
             to
             be
             present
          
           and
           serve
           in
           the
           
             King's
             Courts
             of
             Iudicature
             ,
             in
             like
             manner
             as
             the
             other
             Barons
             did
             .
          
        
         
           From
           all
           which
           it
           is
           evident
           ,
           I
           think
           ,
           beyond
           contradiction
           ,
           that
           the
           Occasion
           of
           this
           Law
           was
           not
           the
           Ambition
           
             of
             the
             Prelates
          
           ,
           
           (
           as
           the
           Authour
           of
           the
           Letter
           suggests
           )
           
             to
             thrust
             themselves
             into
             this
             kind
             of
             Iudicature
          
           ;
           but
           an
           Ambition
           of
           a
           worse
           kind
           ,
           (
           though
           quite
           contrary
           )
           
           viz.
           under
           a
           pretence
           of
           
             Ecclesiastical
             Liberty
          
           and
           Privilege
           ,
           to
           exempt
           themselves
           from
           the
           Service
           of
           the
           King
           and
           Kingdom
           ,
           to
           which
           by
           virtue
           of
           their
           Baronies
           they
           were
           bound
           ,
           
             sicut
             caeteri
             Barones
             ,
             as
             well
             as
             the
             other
             Barons
             .
          
           And
           therefore
           it
           is
           so
           far
           from
           being
           true
           ,
           that
           the
           Bishops
           exercise
           of
           this
           Iurisdiction
           together
           with
           the
           Temporal
           Lords
           is
           a
           Relique
           of
           Popery
           ,
           and
           one
           of
           the
           Encroachments
           of
           the
           Clergy
           in
           those
           Times
           of
           Ignorance
           and
           Usurpation
           ,
           as
           some
           well-meaning
           Protestants
           are
           now
           made
           to
           believe
           ;
           that
           ,
           on
           the
           contrary
           ,
           the
           Exemption
           of
           the
           Clergy
           from
           this
           kind
           of
           
             Secular
             Iudicature
          
           was
           one
           of
           the
           
             highest
             Points
          
           of
           Popery
           ,
           and
           that
           which
           the
           Pope
           and
           his
           Adherents
           contested
           for
           with
           more
           zeal
           then
           for
           any
           Article
           of
           the
           Creed
           .
           This
           was
           one
           of
           those
           Privileges
           which
           
             Thomas
             Becket
          
           said
           
             Christ
             purchased
             for
             his
             Church
             with
             his
             bloud
             ,
          
           and
           in
           the
           obstinate
           defence
           whereof
           against
           the
           King
           he
           himself
           at
           last
           lost
           his
           life
           .
           And
           now
           to
           put
           the
           matter
           beyond
           all
           doubt
           ,
           I
           appeal
           to
           any
           man
           skill'd
           in
           the
           History
           of
           those
           Times
           ,
           whether
           
             Thomas
             Becket
          
           opposed
           the
           Constitutions
           of
           Clarendon
           to
           the
           death
           ,
           and
           broke
           the
           Oath
           he
           had
           taken
           to
           observe
           them
           ,
           because
           by
           them
           (
           among
           other
           
           things
           )
           the
           Bishops
           were
           excluded
           from
           Iudicature
           in
           
             Cases
             of
             Bloud
          
           ;
           or
           for
           the
           quite
           contrary
           reason
           ,
           (
           among
           others
           )
           because
           this
           Service
           of
           the
           King
           in
           
             his
             Courts
          
           ,
           impos'd
           on
           them
           by
           virtue
           of
           their
           Baronies
           ,
           was
           look'd
           upon
           by
           him
           as
           a
           violation
           of
           the
           Privileges
           of
           the
           Church
           ,
           and
           a
           badge
           of
           
             Ecclesiastical
             Slavery
          
           ,
           which
           by
           all
           means
           he
           desir'd
           to
           cast
           off
           .
           And
           if
           the
           latter
           be
           the
           true
           Reason
           ,
           I
           leave
           it
           to
           the
           impartial
           Reader
           ,
           and
           even
           to
           the
           Authour
           of
           the
           Letter
           himself
           upon
           second
           thoughts
           ,
           whether
           he
           have
           not
           widely
           mistaken
           both
           the
           Occasion
           and
           Meaning
           of
           this
           Law.
           
        
         
           2.
           
           Let
           us
           consider
           the
           plain
           Sense
           of
           the
           words
           according
           to
           the
           
             true
             reading
          
           of
           them
           .
           The
           Authour
           of
           the
           Letter
           hath
           made
           use
           of
           the
           most
           imperfect
           
             Copy
             ,
             viz.
          
           that
           in
           
             Matt.
             Paris
          
           ;
           I
           cannot
           tell
           for
           what
           reason
           ,
           unless
           it
           be
           that
           in
           the
           
             last
             Clause
             [
             in
             Iudicio
          
           ]
           is
           there
           left
           out
           ,
           which
           is
           put
           in
           in
           the
           Copy
           extant
           in
           Gervase
           ,
           and
           in
           the
           Vatican
           Copy
           ,
           and
           in
           several
           MSS.
           in
           all
           which
           it
           runs
           thus
           ,
           
             Et
             sicut
             Barones
             caeteri
             debent
             interesse
             judiciis
             Curiae
             Regis
             cum
             Baronibus
             ,
             usque
             
               perveniatur
               in
               judicio
            
             ad
             diminutionem
             membrorum
             ,
             vel
             ad
             mortem
             .
          
           Now
           here
           are
           two
           things
           to
           be
           distinguished
           .
        
         
         
           1.
           
           Something
           expresly
           required
           of
           the
           Bishops
           as
           to
           their
           
             presence
             in
             the
             King's
             Courts
             ,
             viz.
          
           that
           
             they
             must
             attend
             as
             other
             Barons
             ,
          
           and
           sit
           together
           with
           them
           :
           and
           therefore
           it
           is
           expressed
           twice
           ;
           
             Et
             sicut
             caeteri
             Barones
          
           ,
           in
           the
           beginning
           of
           that
           Clause
           ,
           and
           
             cum
             Baronibus
          
           ,
           again
           after
           ,
           and
           
             debent
             interesse
          
           ,
           in
           the
           middle
           .
           And
           can
           any
           one
           soberly
           think
           ,
           that
           the
           meaning
           of
           all
           this
           is
           ,
           they
           must
           not
           be
           present
           in
           cases
           of
           Bloud
           ?
           No
           :
           the
           Constitution
           saith
           ,
           
             they
             ought
             to
             be
             present
             as
             other
             Barons
             ,
          
           and
           sit
           with
           other
           Barons
           in
           the
           
             Trials
             of
             the
             King's
             Courts
          
           .
           And
           yet
           the
           Authour
           of
           the
           Letter
           doth
           (
           to
           speak
           mildly
           )
           very
           unfairly
           represent
           this
           Constitution
           ,
           as
           if
           it
           did
           forbid
           the
           Prelats
           to
           be
           at
           all
           
             present
             in
             the
             Iudgments
             of
             the
             King's
             Courts
             in
             Cases
             of
             Bloud
          
           ;
           and
           that
           in
           express
           words
           .
           For
           ,
           speaking
           of
           the
           Constitutions
           of
           Clarendon
           ,
           he
           hath
           this
           passage
           ,
           
           
             And
             one
             of
             these
             Constitutions
             was
             ,
             that
             the
             Prelats
             of
             the
             Church
             
               should
               not
               interesse
               Iudiciis
               Curie
               Regis
               ,
               be
               present
               at
               the
               Iudgments
               given
               in
               the
               Kings
               Courts
               .
            
          
           Whereas
           this
           Constitution
           (
           as
           he
           himself
           cites
           it
           afterwards
           )
           runs
           thus
           ,
           
             debent
             interesse
          
           Iudiciis
           Curie
           Regis
           ,
           quousque
           ,
           &c.
           
             they
             ought
             to
             be
             present
             in
             the
             Iudgments
             of
             the
             King's
             Courts
             ,
             till
             it
             come
             to
             loss
             of
             
             Members
             or
             Life
             .
          
           So
           that
           this
           Law
           expresly
           says
           ,
           that
           
             they
             ought
             to
             be
             present
             in
             the
             Iudgments
             of
             the
             King's
             Courts
             ,
             
               till
               it
               come
               ,
               &c.
            
             
          
           And
           when
           
             it
             comes
             to
             loss
             of
             Members
             or
             Life
             ,
          
           it
           doth
           not
           say
           (
           as
           the
           Authour
           of
           the
           Letter
           affirms
           )
           that
           
             they
             should
             not
             be
             present
          
           then
           ,
           nor
           do
           the
           words
           of
           the
           Constitution
           imply
           any
           such
           thing
           ;
           but
           only
           require
           (
           as
           I
           shall
           evidently
           make
           appear
           )
           their
           presence
           so
           far
           ;
           and
           when
           it
           should
           come
           to
           Sentence
           ,
           leaves
           them
           at
           liberty
           to
           withdraw
           in
           obedience
           to
           the
           Canons
           of
           the
           Church
           ,
           which
           they
           pretended
           themselves
           bound
           in
           Conscience
           to
           observe
           .
           And
           this
           is
           the
           true
           Reason
           why
           ,
           among
           the
           16
           Constitutions
           of
           Clarendon
           ,
           
           (
           whereof
           10
           were
           
             condemned
             ,
             6
             tolerated
          
           ,
           but
           
             none
             approv'd
          
           ,
           by
           
             Pope
             Alex.
             III.
          
           )
           this
           11.
           was
           one
           of
           the
           6
           which
           escaped
           with
           an
           
             Hoc
             toleravit
             ,
             this
          
           the
           Pope
           
             was
             content
             to
             tolerate
          
           ;
           because
           in
           the
           last
           Clause
           of
           it
           there
           was
           regard
           had
           to
           the
           Canons
           of
           the
           Church
           .
           Of
           this
           misrepresentation
           of
           the
           Constitution
           under
           debate
           ,
           though
           it
           might
           have
           deserved
           a
           more
           severe
           animadversion
           ,
           I
           shall
           say
           no
           more
           ,
           because
           I
           have
           no
           design
           to
           provoke
           the
           Authour
           or
           any
           body
           else
           ,
           but
           onely
           to
           convince
           them
           .
        
         
           2.
           
           Something
           allowed
           to
           the
           Bishops
           as
           
           peculiar
           to
           themselves
           ,
           viz.
           That
           when
           the
           Court
           hath
           proceeded
           so
           far
           
             in
             judicio
          
           ,
           in
           a
           particular
           Trial
           ,
           (
           for
           before
           it
           is
           Iudiciis
           in
           general
           )
           that
           Sentence
           was
           to
           be
           given
           either
           as
           to
           dismembring
           ,
           or
           loss
           of
           life
           ,
           then
           they
           are
           at
           liberty
           ;
           but
           till
           then
           they
           are
           required
           .
           As
           ,
           suppose
           Charles
           V.
           had
           required
           the
           
             Protestant
             Princes
          
           to
           attend
           him
           to
           Masse
           ,
           as
           
             other
             Princes
          
           did
           ;
           onely
           when
           the
           Mass-Bell
           tinckled
           they
           might
           withdraw
           ;
           would
           not
           any
           reasonable
           man
           understand
           by
           this
           ,
           that
           they
           were
           obliged
           to
           their
           Attendance
           till
           then
           ?
           So
           it
           is
           here
           :
           the
           King
           commands
           their
           Attendance
           till
           it
           comes
           to
           such
           a
           point
           ;
           therefore
           before
           it
           comes
           thither
           ,
           their
           presence
           is
           plainly
           required
           by
           this
           Constitution
           .
           And
           so
           in
           stead
           of
           there
           being
           a
           Statute-Law
           to
           exclude
           the
           Bishops
           at
           such
           Trials
           ,
           there
           is
           one
           to
           require
           their
           presence
           
             in
             judicio
          
           ,
           in
           the
           proceedings
           of
           such
           a
           Trial
           ,
           till
           it
           comes
           to
           Sentence
           .
           All
           that
           can
           be
           said
           in
           this
           case
           is
           ,
           
             that
             the
             last
             Clause
             is
             not
             to
             be
             understood
             of
             the
             Sentence
             ,
             but
             of
             the
             Kind
             or
             quality
             of
             the
             Cause
             ;
             i.
             e.
             they
             are
             to
             be
             present
             in
             the
             King's
             Courts
             ,
             till
             they
             come
             to
             a
             Cause
             wherein
             a
             man's
             Life
             or
             Members
             are
             concerned
             .
          
           But
           that
           this
           cannot
           be
           the
           meaning
           will
           appear
           .
        
         
         
           1.
           
           There
           is
           a
           great
           deal
           of
           difference
           between
           
             quousque
             perveniatur
             ad
             judicium
             mutilationis
             membrorum
             ,
             vel
             mortis
             ,
          
           that
           might
           have
           been
           understood
           of
           a
           
             Cause
             of
             Bloud
          
           ;
           and
           
             quousque
             perveniatur
             in
             judicio
             ad
             mutilationem
             membrorum
             ,
             vel
             ad
             mortem
             ,
          
           for
           this
           supposeth
           a
           Trial
           already
           begun
           ,
           and
           the
           Bishops
           present
           so
           far
           in
           it
           ;
           but
           when
           it
           comes
           to
           the
           point
           of
           mutilation
           or
           death
           ,
           then
           they
           have
           leave
           to
           withdraw
           .
           So
           that
           this
           last
           Clause
           must
           either
           be
           understood
           of
           Execution
           ,
           which
           no
           one
           can
           think
           proper
           for
           the
           
             King's
             Courts
          
           ;
           or
           for
           the
           Sentence
           given
           by
           the
           Court
           ,
           which
           is
           most
           agreeable
           .
        
         
           2.
           
           The
           Sense
           is
           best
           understood
           by
           the
           Practice
           of
           that
           Age.
           For
           ,
           if
           the
           meaning
           of
           the
           Constitution
           had
           been
           ,
           they
           must
           not
           be
           present
           in
           any
           
             Cause
             of
             Bloud
          
           ,
           and
           the
           Bishops
           had
           all
           sworn
           to
           observe
           it
           ;
           can
           we
           imagine
           we
           should
           find
           them
           practising
           the
           contrary
           so
           soon
           after
           ?
           And
           for
           this
           I
           appeal
           to
           
             Petrus
             Blesensis
          
           ,
           
           whose
           words
           are
           so
           material
           to
           this
           purpose
           ,
           that
           I
           shall
           set
           them
           down
           .
           
             Principes
             Sacerdotum
             &
             Seniores
             Populi
             ,
             licèt
             non
             dictent
             judicia
             sanguinis
             ,
             eadem
             tamen
             tractant
             disputando
             &
             disceptando
             de
             illis
             ;
             séque
             ideo
             immunes
             à
             culpa
             reputant
             ,
             quòd
             mortis
             aut
             truncationis
             membrorum
             judícium
             decernentes
             ,
             
             à
             pronuntiatione
             duntaxat
             &
             executione
             poenalis
             sententiae
             se
             absentent
             .
          
           Whereby
           it
           is
           evident
           that
           the
           Bishops
           were
           present
           at
           all
           Debates
           ,
           and
           gave
           
             Votes
             in
             Causes
             of
             Bloud
          
           ;
           but
           they
           absented
           themselves
           from
           the
           Sentence
           ,
           and
           the
           Execution
           of
           it
           .
           It
           is
           true
           ,
           
             Pet.
             Blesensis
          
           finds
           fault
           with
           them
           for
           this
           .
           But
           what
           is
           that
           to
           the
           Law
           ,
           or
           to
           the
           practice
           of
           that
           Age
           ?
           I
           do
           not
           question
           ,
           but
           
             Pet.
             Blesensis
          
           condemned
           the
           observation
           of
           the
           other
           Constitutions
           of
           Clarendon
           ,
           as
           well
           as
           this
           ;
           and
           in
           all
           probability
           this
           passage
           of
           his
           was
           levelled
           at
           those
           Bishops
           who
           did
           observe
           this
           11.
           
           Constitution
           .
        
         
           3.
           
           We
           have
           a
           plain
           way
           to
           understand
           the
           meaning
           of
           this
           Constitution
           ,
           by
           what
           happen'd
           soon
           after
           in
           the
           Parlament
           at
           Northampton
           ,
           which
           was
           summon'd
           upon
           
           Becket's
           Obstinacy
           and
           Contempt
           of
           the
           
           King's
           Authority
           :
           where
           Fitz-stephen
           saith
           ,
           
             he
             was
             accused
             of
             Treason
             ;
             and
             the
             Bishops
             sate
             together
             with
             other
             Barons
          
           ;
           and
           because
           it
           did
           not
           come
           to
           a
           sentence
           of
           Death
           ,
           after
           great
           debate
           between
           the
           other
           Lords
           and
           the
           Bishops
           about
           pronouncing
           the
           Sentence
           ,
           the
           Bishop
           of
           Winchester
           did
           it
           .
           Wherein
           we
           have
           as
           plain
           evidence
           as
           can
           be
           desired
           ,
           that
           the
           Bishops
           did
           sit
           with
           the
           
             other
             Barons
          
           ,
           and
           
           vote
           with
           them
           in
           a
           
             case
             of
             Treason
          
           .
        
         
           To
           this
           Precedent
           the
           Authour
           of
           the
           Letter
           answers
           several
           things
           .
        
         
           1.
           
           That
           none
           of
           the
           ancient
           Historians
           of
           those
           Times
           say
           any
           thing
           of
           his
           being
           accused
           of
           Treason
           :
           
           
             and
             therefore
             he
          
           thinks
           one
           may
           modestly
           affirm
           ,
           
           that
           it
           was
           a
           mistake
           in
           Fitz-stephen
           
             to
             say
             so
             .
             But
             what
             if
             H.
          
           II.
           and
           Becket
           
             himself
             both
             confess
             that
             he
             was
             charged
             with
          
           Treason
           ?
           
           H.
           II.
           
             in
             his
          
           Letter
           to
           Reginaldus
           
             saith
             ,
             that
          
           by
           consent
           of
           his
           Barons
           and
           Clergy
           he
           had
           sent
           Ambassadours
           to
           Pope
           Alexander
           ,
           with
           this
           Charge
           ,
           that
           if
           he
           did
           not
           free
           him
           from
           that
           Traitour
           Becket
           ,
           he
           and
           his
           Kingdom
           would
           renounce
           all
           Obedience
           to
           him
           .
           And
           Becket
           
             did
             not
             think
             this
             a
             bare
             term
             of
             reproach
             ;
             for
             in
             one
             of
             his
          
           Letters
           
             he
             saith
             ,
             that
             defending
             the
             Liberties
             of
             the
             Church
          
           laesae
           Majestatis
           reatus
           sub
           persecutore
           nostro
           est
           ,
           
           was
           looked
           on
           as
           Treason
           
             by
             the
             King.
          
           
           
             And
             even
          
           Gervase
           
             himself
             ,
             to
             whom
             the
          
           Authour
           
             of
             the
          
           Letter
           
             appeals
             ,
             saith
          
           ,
           some
           of
           his
           friends
           came
           to
           him
           at
           Northampton
           ,
           and
           told
           him
           ,
           if
           he
           did
           not
           submit
           to
           the
           King
           ,
           he
           would
           be
           proceeded
           against
           as
           a
           Traitour
           ,
           for
           breaking
           the
           Allegeance
           he
           had
           promised
           to
           the
           King
           ,
           when
           he
           did
           swear
           to
           observe
           the
           ancient
           Customs
           at
           
             Clarendon
             .
             And
          
           
           Fitz-stephen
           saith
           ,
           
           the
           King's
           Council
           at
           Clarendon
           said
           it
           was
           Treason
           ,
           or
           taking
           the
           King's
           Crown
           from
           his
           head
           ,
           to
           deny
           him
           the
           Rights
           of
           his
           Ancestours
           .
        
         
           2.
           
           That
           it
           was
           
             a
             strange
             kind
             of
             Treason
             Becket
          
           was
           charged
           with
           at
           Northampton
           ,
           
           
             viz.
             for
             not
             coming
             when
             the
             King
             sent
             for
             him
          
           ;
           which
           at
           the
           most
           was
           onely
           
             a
             high
             Contempt
             ;
             and
          
           Fitz-stephen
           ,
           
             who
             was
             a
             Creature
             of
             the
             Archbishop's
             ,
             might
             represent
             it
             so
             ,
             to
             draw
             an
             odium
             on
             the
             King.
          
           And
           therefore
           he
           
             looks
             on
             this
             as
             a
             weak
             precedent
             for
             the
             Bishops
             to
             lay
             any
             weight
             upon
             ,
             being
             at
             best
             out
             of
             a
             
               blind
               MS.
            
             of
             an
             Authour
             justly
             suspected
             of
             partiality
             ,
             against
             the
             tenour
             of
             all
             the
             ancient
             Writers
             that
             give
             an
             account
             of
             the
             same
             business
             .
          
           What
           truth
           there
           is
           in
           this
           last
           suggestion
           appears
           in
           part
           already
           ,
           and
           will
           do
           more
           by
           what
           follows
           .
           Must
           all
           the
           
             unprinted
             Records
          
           be
           answered
           with
           saying
           they
           are
           
             blind
             MSS
          
           ?
           I
           cannot
           but
           take
           notice
           how
           unreasonable
           a
           way
           of
           answering
           this
           is
           .
           It
           is
           like
           turning
           of
           that
           pressing
           Instance
           ,
           of
           the
           Bishops
           making
           a
           Proctor
           in
           
             Capital
             Cases
          
           ,
           by
           saying
           it
           was
           
             Error
             temporis
          
           ;
           
           which
           because
           it
           will
           answer
           all
           Instances
           whatsoever
           as
           well
           as
           that
           ,
           is
           therefore
           an
           answer
           to
           none
           .
           Just
           so
           it
           is
           equally
           an
           answer
           to
           all
           MSS
           ,
           
           to
           say
           they
           are
           blind
           ;
           and
           to
           all
           
             printed
             Books
          
           too
           ,
           because
           they
           were
           once
           MSS
           ,
           and
           ,
           for
           any
           thing
           that
           appears
           to
           the
           contrary
           ,
           as
           blind
           as
           
           Fitz-stephen's
           .
           For
           surely
           no
           authority
           is
           added
           to
           a
           Book
           by
           its
           being
           printed
           ;
           unless
           in
           the
           opinion
           of
           the
           common
           people
           ,
           who
           are
           said
           
             to
             take
             all
             for
             true
             that
             is
             in
             Print
             .
          
           I
           do
           not
           go
           about
           to
           parallel
           Fitz-stephen
           with
           Parlament-Rolls
           ;
           but
           I
           say
           ,
           his
           Authority
           is
           very
           good
           ,
           being
           present
           upon
           the
           place
           ,
           and
           the
           best
           we
           have
           ,
           of
           all
           the
           proceedings
           in
           the
           Parlament
           at
           Northampton
           .
           And
           if
           the
           Authour
           of
           the
           Letter
           had
           taken
           the
           pains
           to
           peruse
           him
           ,
           he
           would
           not
           have
           contemned
           the
           Precedent
           drawn
           from
           thence
           ;
           which
           being
           so
           near
           the
           Parlament
           at
           Clarendon
           ,
           (
           that
           ,
           as
           himself
           confesseth
           ,
           
           the
           one
           was
           in
           February
           ,
           the
           other
           in
           
             October
             following
             ,
          
           )
           it
           gives
           the
           best
           Light
           into
           this
           matter
           of
           any
           thing
           in
           that
           Age
           ;
           and
           being
           not
           yet
           fully
           printed
           ,
           it
           will
           be
           worth
           our
           while
           to
           set
           it
           down
           .
           Mr.
           Selden
           hath
           indeed
           printed
           very
           exactly
           the
           Proceedings
           of
           the
           
             first
             Iudgment
          
           upon
           Becket
           ,
           
           about
           the
           Cause
           of
           Contempt
           ,
           for
           not
           coming
           upon
           the
           
             King's
             Summons
          
           ,
           at
           the
           complaint
           of
           Iohn
           the
           Marshall
           ;
           wherein
           the
           Bishops
           did
           certainly
           
             sit
             in
             Iudgment
          
           
           upon
           him
           with
           the
           other
           Barons
           :
           but
           there
           is
           a
           farther
           strength
           in
           this
           Precedent
           ,
           not
           yet
           taken
           notice
           of
           .
           Which
           is
           ,
           that
           after
           this
           Iudgment
           passed
           ,
           Becket
           behaved
           himself
           with
           so
           great
           insolency
           towards
           the
           King
           and
           the
           Bishops
           ,
           upon
           the
           
           King's
           calling
           him
           to
           farther
           account
           ,
           for
           many
           other
           things
           laid
           to
           his
           Charge
           ,
           as
           
             diverting
             the
             King's
             Treasure
          
           ,
           and
           applying
           it
           to
           his
           own
           use
           ,
           and
           
             great
             Accounts
             to
             the
             King
             while
             he
             was
             Chancellour
             ,
          
           &c.
           that
           the
           King
           required
           him
           to
           stand
           to
           the
           Iudgment
           of
           his
           
             Court.
             Becket
          
           gave
           a
           dilatory
           Answer
           :
           the
           King
           summons
           the
           Bishops
           ,
           and
           Earls
           and
           Barons
           ,
           to
           
             give
             Iudgment
          
           against
           him
           :
           the
           Bishops
           tell
           the
           
             King
             ,
             Becket
          
           had
           appealed
           to
           the
           Pope
           ,
           and
           prohibited
           them
           to
           give
           any
           farther
           Judgment
           upon
           any
           Secular
           Complaint
           against
           him
           .
           Whereupon
           the
           King
           sent
           some
           Earls
           and
           Barons
           to
           him
           ,
           to
           expostulate
           the
           matter
           ,
           since
           he
           was
           the
           
             King's
             Subject
          
           ,
           and
           had
           
             so
             lately
             sworn
          
           to
           the
           Constitutions
           at
           Clarendon
           ;
           and
           to
           know
           whether
           he
           would
           give
           Security
           to
           the
           King
           about
           making
           up
           his
           Accounts
           ,
           and
           stand
           to
           the
           Judgment
           of
           his
           Court.
           Becket
           refuseth
           to
           give
           answer
           to
           any
           thing
           ,
           but
           the
           Cause
           of
           Iohn
           the
           Marshall
           ,
           for
           which
           he
           was
           summoned
           to
           appear
           ;
           
           slights
           his
           Oath
           ,
           as
           contrary
           to
           the
           
             Rights
             of
             the
             Church
          
           ,
           and
           confirms
           his
           Appeal
           to
           the
           Pope
           .
           And
           
             such
             an
             owning
             of
             the
             Pope's
             Power
             ,
             in
             derogation
             to
             the
             Rights
             of
             the
             Crown
             ,
          
           Sir
           
             Edward
             Cook
          
           saith
           
             was
             Treason
             by
             the
             ancient
             Common
             Law
             ,
             before
             any
             Statutes
             were
             made
             .
          
           However
           ,
           the
           King
           charges
           the
           Bishops
           by
           virtue
           of
           their
           Allegeance
           ,
           that
           ,
           
             together
             with
             the
             Barons
          
           ,
           they
           would
           give
           Iudgment
           upon
           the
           Archbishop
           .
           They
           excused
           themselves
           
             on
             the
             account
             of
             the
             Archbishop's
             Prohibition
             .
          
           The
           King
           replied
           ,
           
             That
             had
             no
             force
             against
             the
             Constitution
             of
          
           Clarendon
           ,
           
             so
             lately
             made
             and
             acknowledged
             by
             them
             .
          
           The
           words
           of
           Fitz-stephen
           are
           these
           :
           
             Rex
             ,
             responso
             Archiepiscopi
             accepto
             ,
             instat
             Episcopis
             ,
             praecipiens
             &
             obtestans
             per
             homagium
             &
             fidelitatem
             sibi
             debitam
             &
             juratam
             ,
             ut
             simul
             cum
             Baronibus
             de
             Archiepiscopo
             sibi
             dictent
             sententiam
             .
             Illi
             se
             excusare
             coeperunt
             per
             interpositam
             Archiepiscopi
             Prohibitionem
             .
             Rex
             non
             acquievit
             ,
             asserens
             ,
             quòd
             non
             teneat
             haec
             ejus
             simplex
             Prohibitio
             contra
             hoc
             quod
             Clarendonae
             factum
             &
             initum
             fuerat
             .
          
           So
           that
           H.
           II.
           in
           the
           Parlament
           at
           Northampton
           declared
           ,
           that
           
             Bishops
             were
             bound
             ,
             by
             virtue
             of
             the
             Constitution
             of
          
           Clarendon
           ,
           
             to
             be
             present
          
           ,
           and
           
             to
             give
             their
             Votes
             in
             
             cases
             of
             Treason
             .
          
           And
           the
           Bishops
           '
           did
           not
           deny
           this
           ,
           but
           used
           prudential
           arguments
           to
           disswade
           the
           King
           from
           proceeding
           any
           farther
           ,
           the
           Appeal
           being
           made
           ;
           and
           that
           
             it
             was
             for
             the
             good
             of
             King
             and
             Kingdom
             ,
          
           for
           them
           
             to
             submit
             to
             the
             Prohibition
          
           .
           And
           the
           Bishop
           of
           Chichester
           told
           Becket
           ,
           he
           
             made
             them
             go
             against
             the
             Constitutions
             of
             Clarendon
             ,
          
           which
           they
           had
           so
           lately
           sworn
           to
           observe
           ;
           in
           these
           remarkable
           words
           ;
           
             Quo
             contra
             nos
             venire
             compellitis
             ,
             interdicendo
             ,
             nè
             ei
             quod
             de
             nobis
             exigit
             adesse
             possumus
             Iudicio
             .
          
           By
           which
           we
           see
           this
           Constitution
           is
           indeed
           
             an
             irrefragable
             Testimony
          
           ;
           but
           it
           is
           to
           prove
           that
           
             Bishops
             are
             bound
             to
             be
             present
          
           even
           in
           
             Cases
             of
             Treason
          
           ,
           when
           the
           King
           summons
           them
           .
           And
           as
           to
           the
           case
           of
           
           Becket's
           Treason
           ,
           the
           same
           Bishop
           told
           him
           ,
           it
           lay
           in
           
             breaking
             his
             Oath
          
           about
           those
           Constitutions
           ,
           wherein
           
             the
             Rights
             of
             the
             Crown
             were
             declared
             .
          
           And
           if
           this
           be
           not
           Treason
           by
           the
           
             Common
             Law
          
           ,
           Sir
           Edward
           Cook
           's
           Preface
           to
           his
           fifth
           
             Book
             of
             Reports
          
           signifies
           nothing
           .
        
         
           The
           late
           Authour
           of
           the
           
             Peerage
             and
             Iurisdiction
             of
             the
             Lords
             Spirituall
          
           takes
           it
           for
           granted
           ,
           
           that
           by
           the
           Constitution
           of
           Clarendon
           the
           Iurisdiction
           of
           Bishops
           was
           limited
           ,
           that
           it
           should
           
           not
           extend
           
             ad
             diminutionem
             membrorum
             ,
             vel
             ad
             mortem
             .
          
           But
           the
           foregoing
           discourse
           hath
           ,
           I
           suppose
           ,
           made
           it
           evident
           ,
           that
           those
           words
           contain
           no
           Limitation
           ,
           but
           a
           Privilege
           or
           Indulgence
           to
           them
           with
           respect
           to
           the
           Canon-Law
           .
           And
           he
           takes
           very
           needless
           pains
           to
           prove
           this
           to
           be
           
             declarative
             of
             the
             Common
             Law
          
           ;
           and
           that
           the
           Meeting
           at
           Clarendon
           was
           a
           full
           Parlament
           :
           which
           are
           very
           much
           besides
           the
           business
           .
        
         
           All
           that
           looks
           towards
           this
           matter
           ,
           is
           ,
           that
           he
           saith
           ,
           this
           
             Statute
             was
             confirmed
             by
             a
             Council
             at
             Westminster
          
           ;
           for
           which
           he
           cites
           Rog.
           Hoveden's
           Authority
           .
           But
           I
           wish
           he
           had
           produced
           the
           Canon
           entire
           as
           he
           there
           found
           it
           ;
           for
           then
           the
           sense
           of
           it
           would
           have
           been
           better
           understood
           .
           In
           this
           Synod
           at
           
             Westminster
             ,
             Richard
             Archbishop
          
           of
           Canterbury
           produceth
           several
           
             ancient
             Canons
          
           ,
           which
           he
           thought
           fit
           to
           be
           observed
           here
           .
           Among
           the
           rest
           ,
           he
           mentions
           that
           of
           the
           Council
           of
           Toledo
           .
           The
           words
           are
           these
           :
           
             His
             qui
             in
             Sacris
             Ordinibus
             constituti
             sunt
             ,
             judicium
             sanguinis
             agitare
             non
             licet
          
           ;
           here
           he
           makes
           his
           &c.
           and
           leaves
           out
           the
           Prohibition
           which
           declares
           the
           meaning
           and
           extent
           of
           this
           
             Canon
             :
             Vnde
             prohibemus
             ,
             nè
             aut
             per
             se
             membrorum
             truncationes
             faciant
             ,
             aut
             
             inferendas
             judicent
             ;
             Wherefore
             we
             forbid
             them
             ,
             either
             to
             dismember
             any
             persons
             themselves
             ,
             or
             to
             give
             Iudgment
             for
             the
             doing
             of
             it
             .
          
           Both
           which
           were
           practised
           in
           Spain
           in
           the
           time
           of
           the
           Council
           of
           Toledo
           ,
           which
           was
           the
           occasion
           of
           this
           Canon
           .
           And
           then
           follows
           the
           Sanction
           of
           Deprivation
           if
           men
           did
           otherwise
           .
           And
           what
           now
           doth
           this
           signifie
           more
           to
           the
           Constitution
           of
           Clarendon
           ,
           then
           that
           the
           same
           Canons
           were
           now
           revived
           ,
           which
           gave
           the
           occasion
           to
           that
           permission
           of
           withdrawing
           ,
           when
           the
           Sentence
           came
           to
           be
           pronounced
           as
           to
           dismembring
           ,
           or
           
             loss
             of
             Life
          
           ?
        
         
           But
           he
           urges
           farther
           about
           this
           Constitution
           ,
           
           that
           it
           must
           be
           so
           understood
           ,
           as
           to
           exclude
           the
           Bishops
           from
           all
           antecedent
           and
           praeliminary
           things
           which
           do
           relate
           or
           
             tend
             ad
             diminutionem
          
           ,
           &c.
           or
           else
           ,
           saith
           he
           ,
           
             it
             must
             be
             onely
             the
             exemption
             of
             the
             Prelats
             from
             doing
             the
             Office
             of
             Executioners
             ,
             which
             is
             Non-sense
             .
          
           Why
           so
           ?
           though
           it
           be
           not
           the
           whole
           sense
           of
           the
           Canon
           ,
           yet
           surely
           it
           is
           sense
           .
           But
           he
           might
           have
           thought
           of
           
             giving
             Sentence
          
           ,
           which
           the
           Canons
           forbid
           ,
           and
           is
           different
           from
           Execution
           ,
           and
           doth
           not
           exclude
           the
           Bishops
           presence
           at
           Praeliminaries
           .
           The
           Constitution
           of
           Westminster
           ,
           he
           saith
           ,
           is
           plainer
           ,
           
             Non
             debent
             agitare
             judicium
             sanguinis
          
           ;
           
           which
           ,
           he
           saith
           ,
           excludes
           the
           exercise
           of
           any
           Judicial
           Power
           in
           Cases
           of
           Bloud
           .
           Whereas
           it
           appears
           by
           the
           Prohibition
           there
           extant
           ,
           nothing
           is
           forbidden
           but
           
             giving
             Sentence
          
           ;
           at
           which
           the
           Constitution
           of
           Clarendon
           allows
           them
           to
           withdraw
           .
        
         
           2.
           
           The
           second
           time
           
             we
             are
             told
             that
             the
          
           Exclusion
           
             of
             the
          
           Bishops
           in
           Cases
           Capital
           rereived
           a
           Confirmation
           in
           Parlament
           ,
           
           was
           the
           11.
           of
           R.
           II.
           When
           the
           Archbishop
           and
           the
           other
           Bishops
           ,
           upon
           their
           withdrawing
           then
           from
           the
           Parlament
           ,
           in
           regard
           matters
           of
           Bloud
           were
           there
           to
           be
           agitated
           and
           determined
           ,
           in
           quibus
           non
           licet
           alicui
           eorum
           personaliter
           interesse
           ,
           
             as
             they
             say
          
           ,
           in
           which
           it
           was
           not
           lawfull
           for
           any
           of
           them
           to
           be
           present
           in
           person
           ,
           did
           therefore
           enter
           a
           Protestation
           ,
           with
           a
           Salvo
           to
           their
           Right
           of
           Sitting
           and
           Voting
           in
           that
           and
           all
           other
           Parlaments
           ,
           when
           such
           matters
           were
           not
           in
           Question
           :
           which
           Protestation
           of
           theirs
           was
           at
           their
           desire
           enrolled
           in
           full
           Parlament
           
             by
             the
             King's
             Command
             ,
             with
             the
             Assent
             of
             the
             Lords
             Temporal
             and
             Commons
             .
             So
             that
             it
             is
             here
             said
             to
             be
          
           a
           perfect
           and
           compleat
           Act
           of
           Parlament
           ;
           and
           if
           it
           had
           not
           been
           a
           Law
           before
           ,
           would
           then
           have
           been
           made
           one
           .
           
             This
             is
             the
             substance
             of
             what
             is
             more
             largely
             insisted
             
             on
             in
             another
             place
          
           ;
           
           
             and
             what
             strength
             is
             there
             added
             shall
             be
             duely
             considered
             .
          
        
         
           To
           understand
           this
           business
           aright
           ,
           it
           will
           be
           necessary
           to
           set
           down
           the
           Protestation
           it self
           at
           large
           ,
           as
           it
           is
           taken
           out
           of
           
           Courtney's
           Register
           ,
           
           and
           the
           Parlament-Rolls
           ;
           and
           then
           examine
           the
           Points
           that
           do
           arise
           from
           thence
           .
           The
           Protestation
           runs
           thus
           .
        
         
           In
           Dei
           nomine
           Amen
           .
           Cùm
           de
           jure
           &
           consuetudine
           Regni
           Angliae
           ,
           ad
           Archiepiscopum
           Cantuariensem
           ,
           qui
           pro
           tempore
           fuerit
           ,
           necnon
           caeteros
           suos
           Suffraganeos
           ,
           Confratres
           &
           Coëpiscopos
           ,
           Abbatésque
           &
           Priores
           ,
           aliosque
           Praelatos
           quoscunque
           ,
           per
           Baroniam
           de
           Domino
           Rege
           tenentes
           ,
           pertineat
           in
           Parlamentis
           Regis
           quibuscunque
           ,
           ut
           Pares
           Regni
           praedicti
           ,
           personaliter
           interesse
           ,
           ibidémque
           de
           Regni
           Negotiis
           ,
           &
           aliis
           ibidem
           tractari
           consuetis
           ,
           cum
           caeteris
           dicti
           Regni
           Paribus
           ,
           &
           aliis
           ibidem
           jus
           interessendi
           habentibus
           ,
           consulere
           ,
           tractare
           ,
           ordinare
           ,
           statuere
           ,
           &
           diffinire
           ,
           ac
           caetera
           facere
           quae
           Parlamenti
           tempore
           ibidem
           imminent
           facienda
           ;
           in
           quibus
           omnibus
           &
           singulis
           ,
           Nos
           Willielmus
           Cantuar.
           Archiepiscopus
           ,
           totius
           Angliae
           Primas
           ,
           &
           Apostolicae
           sedis
           Legatus
           ,
           pro
           nobis
           ,
           nostrisque
           Suffraganeis
           ,
           Coëpiscopis
           ,
           &
           Confratribus
           ,
           
           bus
           ,
           nec
           non
           Abbatibus
           ,
           Prioribus
           ,
           ac
           Praelatis
           omnibus
           supradictis
           ,
           protestamur
           ,
           &
           eorum
           quilibet
           protestatur
           ,
           qui
           per
           se
           ,
           vel
           per
           Procuratorem
           hîc
           fuerit
           modò
           praesens
           ,
           publicè
           &
           expressè
           ,
           quòd
           intendimus
           ,
           &
           intendit
           ,
           volumus
           ,
           ac
           vult
           quilibet
           eorum
           ,
           in
           hoc
           praesenti
           Parlamento
           ,
           &
           aliis
           ,
           ut
           Pares
           Regni
           praedicti
           ,
           more
           solito
           interesse
           ,
           consulere
           ,
           tractare
           ,
           ordinare
           ,
           statuere
           ,
           &
           diffinire
           ,
           accaetera
           exercere
           ,
           cum
           caeteris
           jus
           interessendi
           habentibus
           in
           eisdem
           ,
           statu
           &
           ordine
           nostris
           &
           eorum
           cujuslibet
           in
           omnibus
           semper
           salvis
           .
           Verùm
           quia
           in
           praesenti
           Parlamento
           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
           hîc
           praesens
           etiam
           protestatur
           ,
           quòd
           non
           intendimus
           ,
           nec
           volumus
           ,
           sicuti
           de
           jure
           non
           possumus
           ,
           nec
           debemus
           ,
           intendit
           ,
           nec
           vult
           aliquis
           eorundem
           ,
           in
           praesenti
           Parlamento
           ,
           dum
           de
           hujusmodi
           materiis
           agitur
           ,
           vel
           agetur
           ,
           quomodolibet
           interesse
           ;
           sed
           nos
           ,
           &
           eorum
           quemlibet
           ,
           in
           ea
           parte
           penitùs
           absentare
           ,
           jure
           Paritatis
           &
           cujuslibet
           eorundem
           interessendi
           in
           dicto
           Parlamento
           ,
           quoad
           omnia
           &
           singula
           mihi
           exercenda
           ,
           nostris
           &
           eorum
           cujuslibet
           statu
           &
           ordine
           congruentia
           ,
           in
           omnibus
           semper
           
           salvo
           .
           Ad
           haec
           insuper
           protestamur
           ,
           &
           eorum
           quilibet
           protestatur
           ,
           quòd
           propter
           hujusmodi
           absentiam
           ,
           non
           intendimus
           ,
           nec
           volumus
           ,
           nec
           eorum
           aliquis
           intendit
           vel
           vult
           ,
           quòd
           processus
           habiti
           &
           habendi
           in
           praesenti
           Parlamento
           super
           materiis
           antedictis
           ,
           in
           quibus
           
             non
             possumus
             ,
             nec
             debemus
             ,
             ut
             premittitur
             ,
             interesse
             ,
          
           quantum
           ad
           nos
           &
           eorum
           quemlibet
           attinet
           ,
           futuris
           temporibus
           quomodolibet
           impugnentur
           ,
           infirmentur
           ,
           seu
           etiam
           infringentur
           .
        
         
           This
           Protestation
           ,
           setting
           aside
           the
           legal
           Formalities
           of
           it
           ,
           consists
           of
           3
           parts
           .
           1.
           
           A
           Declaration
           of
           their
           undoubted
           
             Right
             as
             Peers
             of
             the
             Realm
             ,
          
           by
           virtue
           of
           their
           Baronies
           ,
           to
           Sit
           and
           Vote
           in
           
             all
             Debates
          
           of
           Parlament
           .
           2.
           
           Of
           their
           intention
           to
           
             withdraw
             this
             Parlament
          
           ,
           because
           several
           matters
           were
           to
           be
           handled
           ,
           at
           which
           
             it
             was
             not
             lawfull
             for
             them
             ,
             according
             to
             the
             Canons
             ,
             to
             be
             present
             .
          
           3.
           
           That
           by
           
             this
             absenting
          
           themselves
           they
           did
           not
           intend
           ,
           as
           far
           as
           concerned
           them
           ,
           to
           
             null
             the
             proceedings
          
           of
           that
           Parlament
           .
        
         
           Here
           now
           arise
           three
           main
           Points
           to
           be
           discussed
           .
        
         
           1.
           
           Upon
           what
           Grounds
           the
           Prelats
           declared
           ,
           it
           was
           not
           lawfull
           for
           them
           to
           be
           present
           in
           Parlament
           ,
           at
           such
           matters
           ?
        
         
         
           2.
           
           How
           far
           the
           
           Parlament's
           receiving
           that
           Protestation
           makes
           it
           a
           Law
           ?
        
         
           3.
           
           Whether
           on
           supposition
           it
           were
           a
           part
           of
           Canon-Law
           then
           in
           force
           ,
           it
           continues
           so
           still
           since
           the
           Reformation
           ?
        
         
           1.
           
           Upon
           what
           Grounds
           they
           declared
           it
           unlawfull
           for
           them
           to
           be
           present
           in
           Parlament
           ,
           at
           such
           matters
           ?
           One
           would
           think
           the
           very
           reading
           the
           Protestation
           were
           sufficient
           to
           convince
           any
           man
           ;
           for
           the
           Bishops
           declare
           as
           plainly
           as
           men
           could
           do
           ,
           that
           it
           was
           out
           of
           regard
           to
           the
           
             Canons
             of
             the
             Church
          
           ,
           and
           not
           from
           any
           
             Law
             of
             the
             Land.
          
           For
           how
           was
           it
           possible
           that
           the
           same
           men
           should
           declare
           ,
           that
           by
           reason
           of
           their
           Baronies
           they
           had
           full
           Right
           to
           be
           personally
           present
           in
           all
           Debates
           of
           Parlament
           ,
           if
           there
           were
           some
           Law
           in
           force
           which
           made
           it
           unlawfull
           for
           them
           to
           be
           personally
           present
           ?
           The
           greater
           force
           there
           is
           in
           the
           
           Protestation
           's
           being
           receiv'd
           in
           Parlament
           ,
           the
           greater
           strength
           there
           is
           in
           this
           Argument
           .
           For
           if
           the
           
           Protestation
           's
           being
           allowed
           by
           
             King
             ,
             Lords
             and
             Commons
          
           ,
           make
           it
           (
           as
           the
           Authour
           of
           the
           Letter
           affirms
           )
           a
           perfect
           and
           compleat
           Law
           ,
           then
           their
           Right
           to
           be
           present
           in
           all
           Debates
           of
           Parlament
           is
           a
           Law
           ;
           and
           so
           much
           the
           more
           considerable
           ,
           because
           it
           is
           no
           enacting
           Law
           ,
           
           making
           that
           to
           be
           so
           ,
           which
           was
           not
           before
           ,
           but
           declarative
           of
           what
           was
           confessed
           to
           be
           their
           
             undoubted
             Right
          
           by
           
             King
             ,
             Lords
             and
             Commons
          
           .
           And
           therefore
           I
           do
           not
           wonder
           ,
           that
           the
           Authour
           of
           the
           Letter
           ,
           so
           conveniently
           to
           his
           purpose
           ,
           left
           out
           all
           the
           beginning
           of
           the
           Protestation
           ,
           which
           so
           fully
           clears
           the
           sense
           of
           the
           rest
           .
           For
           the
           very
           same
           thing
           which
           afterwards
           the
           Bishops
           say
           they
           are
           forbid
           to
           doe
           by
           the
           Canons
           ,
           that
           is
           ,
           
             personaliter
             interesse
             ,
             to
             give
             their
             personal
             attendance
             ,
          
           they
           say
           at
           first
           ,
           by
           Right
           of
           their
           Peerage
           ,
           as
           
             Barons
             by
             tenure
          
           ,
           did
           belong
           to
           them
           ;
           for
           there
           the
           words
           are
           
             personaliter
             interesse
          
           too
           .
           Therefore
           that
           personal
           attendance
           in
           such
           matters
           which
           they
           said
           was
           unlawfull
           to
           them
           by
           the
           Canons
           ,
           they
           challenge
           to
           themselves
           as
           their
           just
           Right
           by
           virtue
           of
           their
           Baronies
           .
           But
           is
           it
           possible
           to
           imagine
           ,
           if
           they
           had
           been
           precluded
           from
           sitting
           by
           any
           antecedent
           Law
           ,
           that
           ever
           such
           a
           publick
           avowing
           their
           Right
           would
           have
           passed
           the
           King
           and
           both
           Houses
           ?
           So
           unsuccessfull
           hath
           the
           Authour
           of
           the
           Letter
           been
           in
           his
           Statute-Laws
           ,
           that
           there
           can
           be
           no
           stronger
           evidence
           of
           the
           
             Bishops
             Right
          
           to
           sit
           in
           such
           Cases
           ,
           then
           those
           which
           he
           produceth
           against
           them
           .
        
         
         
           But
           he
           goes
           about
           to
           prove
           this
           Prohibition
           cannot
           be
           understood
           
             onely
             of
             the
             Canon-Law
          
           :
           
           
             for
             the
             Canon-Law
          
           ,
           saith
           he
           ,
           
             was
             to
             them
             above
             all
             Laws
             ;
             and
             what
             was
             forbidden
             by
             that
             Law
             ,
             they
             could
             not
             have
             a
             thought
             ,
             that
             it
             could
             in
             any
             sort
             be
             lawfull
             for
             them
             to
             challenge
             as
             their
             Right
             ,
             upon
             any
             account
             .
          
           I
           confess
           I
           can
           see
           no
           force
           in
           this
           Reasoning
           :
           For
           when
           a
           thing
           is
           forbidden
           to
           men
           meerly
           by
           a
           
             positive
             Law
          
           of
           the
           Church
           ,
           and
           the
           penalty
           of
           it
           is
           bare
           Irregularity
           by
           the
           Canons
           ;
           why
           may
           not
           such
           men
           challenge
           their
           own
           Right
           notwithstanding
           those
           Canons
           ,
           because
           the
           Irregularity
           might
           be
           dispensed
           with
           ,
           when
           the
           Pope
           saw
           convenient
           ?
           And
           by
           the
           Constitutions
           of
           O●hobon
           ,
           
           which
           were
           made
           in
           the
           time
           of
           H.
           III.
           we
           find
           ,
           that
           if
           an
           Inferiour
           Clergy-man
           transgressed
           this
           Canon
           ,
           it
           was
           in
           the
           power
           of
           the
           Diocesan
           to
           absolve
           him
           from
           his
           Irregularity
           .
           And
           this
           Canon
           was
           receiv'd
           and
           inforc'd
           most
           here
           in
           England
           on
           the
           inferiour
           Clergy
           ,
           as
           appears
           by
           the
           Canons
           of
           
             Stephen
             Langton
          
           in
           the
           Council
           of
           Oxford
           ,
           
           and
           other
           
             Synodall
             Constitutions
          
           here
           .
           
           For
           it
           is
           a
           Rule
           in
           
             Lyndwood
             ,
             Clericus
             ex
             vi
             verbi
             non
             comprehendit
             Episcopum
             ,
             sed
             cum
             adjuncto
             ,
             sic
             in
             quantum
             illud
             adjunctum
             potest
             concernere
             Episcopum
             .
          
           
           That
           by
           Clerici
           we
           are
           not
           to
           understand
           Bishops
           ,
           unless
           there
           be
           some
           adjunct
           that
           implieth
           it
           .
           
           And
           among
           the
           Decretals
           there
           is
           one
           from
           
             Alexander
             III.
          
           to
           the
           Archbishop
           of
           Canterbury
           ,
           under
           the
           
             Title
             Nè
             Clerici
          
           ,
           to
           the
           same
           purpose
           .
           Where
           the
           Glosse
           ,
           I
           grant
           ,
           comprehends
           Prelats
           ;
           therefore
           I
           will
           not
           deny
           ,
           but
           they
           were
           to
           be
           irregular
           by
           the
           Canon-Law
           ,
           as
           well
           as
           others
           .
           But
           then
           ,
           we
           are
           to
           consider
           ,
           how
           far
           the
           Legatine
           Power
           vested
           in
           the
           Archbishop
           of
           Canterbury
           might
           extend
           in
           such
           a
           Case
           ;
           and
           that
           there
           was
           the
           same
           severity
           in
           the
           Canons
           against
           
           Clergy-men's
           taking
           upon
           them
           any
           Secular
           Office
           :
           and
           yet
           in
           this
           very
           
             Parlament
             ,
             Thomas
             Arundell
             Bishop
          
           of
           Ely
           was
           
             Lord
             Chancellour
          
           ,
           and
           after
           him
           William
           of
           
             Wickham
             Bishop
          
           of
           Winchester
           ,
           and
           before
           them
           
             R.
             Baybroke
             Bishop
          
           of
           London
           ;
           and
           the
           Bishops
           of
           Durham
           and
           Exceter
           were
           
             Lords
             Treasurers
          
           under
           R.
           II.
           and
           in
           H.
           III's
           time
           we
           find
           3
           
             Clergy-men
             Lords
             Chief
             Iustices
             ,
             Pateshull
             ,
             Lovell
          
           and
           Mansell
           ,
           notwithstanding
           these
           Canons
           ;
           and
           in
           Edward
           III's
           time
           almost
           all
           the
           great
           Offices
           of
           the
           Court
           were
           executed
           by
           Clergy-men
           .
           By
           which
           we
           see
           they
           did
           not
           think
           themselves
           so
           strictly
           bound
           to
           observe
           those
           Canons
           ;
           or
           it
           was
           so
           easy
           to
           be
           
           dispensed
           with
           ,
           that
           they
           had
           great
           Reason
           to
           insist
           upon
           the
           challenge
           of
           their
           own
           Right
           ,
           notwithstanding
           the
           Canon-Law
           .
        
         
           The
           truth
           is
           ,
           the
           Canon-Law
           ,
           as
           it
           was
           managed
           in
           those
           days
           ,
           was
           one
           of
           the
           most
           mysterious
           pieces
           of
           
             Ecclesiasticall
             Policy
          
           :
           it
           was
           an
           Engine
           ,
           which
           the
           artificial
           Church-men
           could
           screw
           up
           or
           let
           down
           as
           they
           pleased
           .
           If
           it
           were
           in
           a
           matter
           likely
           to
           be
           prejudicial
           to
           their
           interest
           ,
           (
           as
           it
           was
           most
           apparently
           the
           case
           in
           11
           R.
           II.
           when
           matters
           grew
           so
           high
           between
           R.
           II.
           and
           the
           
             powerfull
             Lords
          
           ,
           and
           so
           many
           Favourites
           were
           to
           be
           impeached
           ,
           and
           among
           them
           
             Alexander
             Archbishop
          
           of
           
             York
             ,
          
           )
           then
           it
           was
           a
           time
           to
           quote
           the
           Canons
           ,
           and
           to
           enter
           a
           Protestation
           ,
           and
           to
           withdraw
           :
           If
           the
           Times
           were
           calmer
           and
           more
           settled
           ,
           or
           some
           great
           Reason
           moved
           them
           ,
           then
           they
           could
           stick
           to
           their
           Right
           of
           Peerage
           ,
           and
           make
           use
           of
           it
           ,
           either
           in
           Person
           ,
           or
           by
           Proxy
           ,
           as
           they
           thought
           convenient
           .
           Nor
           was
           it
           so
           easy
           a
           matter
           to
           resolve
           what
           was
           Canon-Law
           in
           England
           ,
           but
           they
           might
           with
           some
           colour
           make
           use
           of
           either
           of
           these
           Pleas.
           
           For
           in
           this
           very
           Parlament
           11
           
             R.
             II.
          
           the
           Commons
           desire
           that
           those
           may
           be
           reputed
           Traitours
           who
           brought
           
           in
           the
           
           Pope's
           Bulls
           of
           
             Volumus
             &
             Imponimus
          
           :
           which
           shews
           that
           they
           did
           not
           think
           all
           Canon-Law
           that
           passed
           for
           such
           at
           Rome
           .
           And
           15
           
             R.
             II.
          
           Sir
           
             Will.
             Brian
          
           was
           sent
           to
           the
           Tower
           ,
           for
           bringing
           a
           Bull
           from
           Rome
           which
           was
           judged
           prejudicial
           to
           the
           King
           ,
           and
           derogatory
           to
           his
           Laws
           .
           And
           in
           16
           
             R.
             II.
             Will.
             Courtney
             ,
             Archbishop
          
           of
           Canterbury
           ,
           (
           the
           same
           who
           enter'd
           the
           Protestation
           before
           mentioned
           ,
           )
           makes
           another
           of
           a
           different
           kind
           ,
           owning
           the
           Rights
           of
           the
           Crown
           in
           opposition
           to
           the
           
           Pope's
           Encroachments
           .
           Now
           ,
           by
           the
           same
           Reason
           ,
           no
           Canon
           made
           at
           Rome
           ,
           no
           Legatine
           or
           
             Synodal
             Constitutions
          
           ,
           could
           have
           any
           force
           against
           the
           
           King's
           Authority
           .
           But
           the
           King
           himself
           being
           under
           a
           force
           at
           that
           time
           ,
           as
           he
           alwaies
           declared
           afterwards
           ,
           and
           that
           being
           ,
           
           as
           Knighton
           saith
           it
           was
           called
           ,
           
             Parlamentum
             sine
             Misericordia
          
           ,
           the
           King
           having
           tied
           himself
           up
           ,
           not
           to
           pardon
           any
           without
           consent
           of
           the
           Lords
           ;
           he
           might
           be
           willing
           to
           let
           the
           Bishops
           excuse
           themselves
           ;
           because
           that
           might
           give
           some
           colour
           to
           call
           in
           question
           the
           Proceedings
           then
           ,
           as
           it
           did
           21
           
             R.
             II.
          
           when
           all
           the
           Acts
           of
           this
           Parlament
           were
           nulled
           :
           and
           the
           Lords
           and
           Commons
           might
           be
           very
           willing
           to
           let
           the
           Bishops
           
           withdraw
           ,
           that
           their
           business
           might
           proceed
           with
           less
           difficulty
           against
           all
           the
           
           King's
           Ministers
           .
           So
           that
           here
           was
           a
           concurrence
           of
           many
           circumstances
           ,
           which
           made
           the
           Bishops
           think
           fit
           not
           to
           appear
           in
           the
           
             House
             ,
             this
             Parlament
          
           ;
           and
           the
           
             King
             ,
             Lords
          
           and
           Commons
           to
           be
           willing
           to
           receive
           their
           Protestation
           .
           But
           in
           the
           Anti-Parlament
           to
           this
           ,
           that
           I
           mean
           21
           
             R.
             II.
          
           the
           Commons
           pray
           the
           
             King
             ,
             that
             since
             divers
             Iudgments
             were
             undone
             heretofore
             ,
             for
             that
             the
             Clergy
             were
             not
             present
             ,
          
           they
           might
           appoint
           
             some
             Common
             Proctor
          
           with
           sufficient
           Authority
           to
           that
           purpose
           .
           This
           is
           a
           Passage
           which
           deserves
           consideration
           ,
           and
           tends
           very
           much
           to
           clear
           the
           whole
           matter
           .
        
         
           For
           the
           
             House
             of
             Commons
          
           declare
           ,
           
             that
             divers
             Iudgments
             had
             been
             undone
             for
             want
             of
             the
             Presence
             of
             the
             Clergy
             .
          
           Therefore
           their
           Concurrence
           ,
           in
           the
           judgment
           of
           the
           
             House
             of
             Commons
          
           ,
           was
           thought
           necessary
           to
           make
           a
           Iudgment
           valid
           .
           A
           very
           late
           Authour
           finds
           himself
           so
           perplexed
           with
           this
           ,
           that
           he
           knows
           not
           how
           to
           get
           off
           from
           it
           .
           
           He
           cannot
           deny
           this
           to
           be
           in
           the
           Rolls
           of
           Parlament
           ,
           and
           to
           be
           the
           
             first
             Petition
          
           of
           the
           Commons
           :
           but
           then
           he
           blames
           them
           for
           rashness
           and
           errour
           ,
           and
           
             want
             of
             due
             Examination
          
           of
           
           Precedents
           .
           As
           though
           it
           were
           possible
           for
           any
           man
           now
           ,
           to
           understand
           the
           Law
           and
           Practice
           better
           then
           the
           whole
           
             House
             of
             Commons
          
           then
           did
           .
           He
           saith
           ,
           
             they
             were
             mistaken
             palpably
          
           de
           facto
           ,
           
             in
             saying
             that
             divers
             Iudgments
             have
             been
             heretofore
             undone
          
           ;
           and
           yet
           presently
           confesseth
           ,
           that
           
             the
             two
             Iudgments
             against
             the
             two
          
           Spencers
           
             were
             reversed
             for
             this
             Cause
          
           ;
           but
           he
           saith
           ,
           
             there
             are
             no
             more
             to
             be
             found
             .
          
           Where
           doth
           he
           mean
           ?
           in
           his
           Study
           ?
           or
           not
           now
           extant
           in
           the
           Parlament-Rolls
           ?
           But
           have
           we
           all
           the
           Rolls
           of
           Parlament
           that
           were
           then
           in
           being
           ?
           or
           must
           men
           so
           boldly
           charge
           the
           
             House
             of
             Commons
          
           with
           
             Ignorance
             ,
             Errour
             ,
             breaking
             the
             Laws
             ,
          
           because
           they
           speak
           against
           their
           fancies
           ?
           But
           this
           Gentleman
           very
           peremptorily
           concludes
           
             the
             House
             of
             Commons
             then
             guilty
             of
             a
             very
             strange
             and
             unaccountable
             Oversight
             .
          
           It
           is
           great
           pity
           ,
           a
           certain
           Gentleman
           had
           not
           been
           there
           to
           have
           searched
           Records
           for
           them
           ,
           and
           to
           have
           informed
           them
           better
           .
           But
           we
           think
           a
           Iudgment
           of
           the
           
             whole
             House
             of
             Commons
          
           in
           such
           a
           Case
           ,
           declared
           in
           so
           solemn
           a
           manner
           ,
           without
           the
           least
           contradiction
           from
           the
           King
           or
           the
           Lords
           ,
           might
           deserve
           a
           little
           more
           respect
           ;
           and
           it
           had
           certainly
           had
           it
           ,
           if
           it
           had
           made
           for
           
           the
           other
           side
           .
           But
           we
           see
           the
           
             House
             of
             Commons
          
           it self
           is
           reverenced
           ,
           or
           not
           ,
           as
           the
           Judgment
           of
           it
           serves
           mens
           purposes
           .
           And
           yet
           this
           was
           more
           then
           the
           bare
           Iudgment
           of
           the
           
             House
             of
             Commons
          
           :
           for
           a
           Petition
           was
           made
           upon
           it
           ,
           and
           that
           Petition
           granted
           ;
           and
           consequently
           a
           
             Common
             Proctor
          
           appointed
           ,
           and
           that
           Proctor
           allowed
           by
           
             King
             ,
             Lords
             and
             Commons
          
           .
           So
           that
           this
           was
           a
           Judgment
           ratified
           by
           consent
           of
           the
           King
           and
           the
           
             whole
             Parlament
          
           .
           For
           ,
           if
           a
           Petition
           were
           made
           on
           a
           false
           ground
           ,
           what
           had
           been
           more
           proper
           ,
           then
           for
           the
           Lords
           to
           have
           open'd
           this
           to
           the
           Commons
           ,
           and
           to
           have
           told
           them
           how
           unadvised
           and
           false
           their
           Iudgment
           was
           ?
           whereas
           the
           Lords
           consented
           ,
           and
           the
           Proctor
           was
           admitted
           ,
           and
           gave
           his
           Vote
           in
           the
           name
           of
           the
           Clergy
           .
           But
           there
           is
           something
           more
           to
           confirm
           this
           Iudgment
           of
           the
           Commons
           ,
           and
           that
           is
           ,
           the
           
             Parlament
             11
             R.
             II.
          
           making
           Petition
           to
           the
           
             King
             ,
             that
             all
             Iudgments
             then
             given
             might
             be
             approved
             ,
             affirmed
             and
             stablished
             ,
             as
             a
             thing
             duely
             made
             for
             the
             Weal
             and
             Profit
             of
             the
             King
             our
             Sovereign
             Lord
             ,
             notwithstanding
             that
             the
             Lords
             Spiritual
             and
             their
             Procurators
             were
             absent
             at
             the
             time
             of
             the
             said
             Iudgments
             given
             .
          
           What
           means
           this
           Petition
           ,
           if
           there
           had
           
           been
           no
           doubt
           at
           that
           time
           ,
           that
           these
           Judgments
           might
           be
           reversed
           ,
           as
           not
           duely
           made
           ,
           by
           reason
           of
           the
           absence
           of
           the
           Prelats
           ?
           The
           onely
           answer
           in
           my
           mind
           is
           ,
           that
           it
           was
           
             Error
             Temporis
          
           ,
           they
           were
           of
           that
           mind
           then
           ,
           but
           some
           are
           resolved
           to
           be
           of
           another
           now
           .
        
         
           But
           from
           hence
           we
           plainly
           see
           ,
           that
           even
           in
           R.
           II
           '
           s
           time
           the
           Concurrence
           of
           the
           Bishops
           was
           thought
           so
           necessary
           ,
           that
           one
           Parlament
           declared
           
             Iudgments
             had
             been
             reversed
             for
             want
             of
             it
          
           ;
           and
           that
           very
           Parlament
           wherein
           they
           absented
           themselves
           ,
           got
           a
           Clause
           inserted
           on
           purpose
           to
           prevent
           
             the
             nulling
             of
             those
             Iudgments
          
           :
           which
           signified
           nothing
           to
           the
           
             Parlament
             21
             R.
          
           II.
           which
           reversed
           them
           all
           .
        
         
           There
           is
           something
           more
           considerable
           to
           our
           purpose
           in
           this
           
             Parlament
             ;
             viz.
          
           that
           the
           same
           Authour
           produceth
           the
           Testimony
           of
           a
           
             MS.
             
             Chronicle
          
           ,
           
           which
           largely
           handles
           the
           Affairs
           of
           that
           Parlament
           ,
           wherein
           it
           is
           confessed
           ,
           that
           the
           Bishops
           ,
           by
           
             concurring
             with
             the
             Lords
          
           in
           the
           Revocation
           of
           the
           Earl
           of
           
           Arundel's
           Pardon
           ,
           did
           
             give
             Vote
          
           in
           a
           
             Case
             Capital
          
           :
           for
           so
           the
           words
           are
           there
           cited
           ,
           
             Dederunt
             ergo
             locum
             Praelati
             judicio
             Sanguinis
             in
             hoc
             facto
             .
          
           Which
           shews
           that
           the
           Bishops
           did
           
           then
           give
           their
           Votes
           about
           the
           
             validity
             of
             the
             Pardon
          
           :
           which
           the
           Authour
           of
           that
           Chronicle
           indeed
           condemns
           them
           for
           ,
           and
           tells
           us
           some
           thought
           they
           incurred
           Irregularity
           by
           it
           .
           From
           whence
           it
           follows
           ,
           that
           all
           the
           Penalty
           supposed
           to
           be
           incurred
           was
           onely
           Canonical
           ;
           but
           he
           never
           charges
           them
           with
           going
           against
           the
           Law
           or
           
             Custom
             of
             Parlament
          
           therein
           .
        
         
           But
           the
           Authour
           of
           the
           Letter
           saith
           ,
           
           
             Whatever
             was
             done
             this
             Parlament
             signifies
             nothing
             ,
             because
             the
             whole
             Parlament
             stands
             repealed
             by
          
           1
           H.
           
             IV.
             and
             all
             done
             in
             it
             delcared
             null
             and
             void
             .
          
           Yet
           ,
           to
           our
           comfort
           ,
           
           the
           same
           Authour
           tells
           us
           ,
           
             the
             three
          
           Henry's
           
             were
             Usurpers
          
           ;
           and
           therefore
           I
           desire
           to
           be
           satisfied
           ,
           whether
           an
           Vsurper
           ,
           by
           a
           Parlament
           of
           his
           calling
           ,
           can
           null
           and
           repeal
           what
           was
           done
           by
           a
           
             King
             and
             his
             Parlament
          
           .
           If
           he
           may
           ,
           then
           the
           King
           lost
           his
           Title
           to
           the
           Crown
           by
           the
           late
           Vsurpers
           ;
           if
           not
           ,
           then
           the
           
             Parlament
             21
             R.
          
           II.
           could
           not
           be
           repealed
           by
           that
           1
           H.
           IV.
           If
           the
           Authour
           of
           the
           Letter
           had
           considered
           this
           ,
           he
           is
           a
           Person
           of
           too
           great
           Judgment
           and
           Loyalty
           ,
           to
           have
           mention'd
           ,
           more
           then
           once
           ,
           the
           Repeal
           of
           that
           Parlament
           ,
           
           by
           the
           subsequent
           
             Parlament
             1
             H.
          
           IV.
           
        
         
           From
           all
           this
           we
           see
           ,
           that
           by
           the
           Judgment
           
           of
           the
           
             whole
             Parlament
          
           ,
           both
           11
           R.
           II.
           and
           21
           R
           II.
           the
           Bishops
           had
           a
           right
           to
           sit
           ,
           so
           far
           that
           Iudgments
           were
           reversed
           where
           they
           were
           not
           present
           ;
           and
           therefore
           all
           the
           pretence
           they
           could
           have
           for
           withdrawing
           must
           be
           from
           the
           Canon-Law
           :
           which
           although
           not
           sufficient
           to
           bind
           them
           ,
           if
           the
           matter
           had
           been
           contested
           ,
           yet
           it
           served
           them
           for
           a
           very
           colourable
           pretence
           of
           absenting
           themselves
           in
           such
           dangerous
           times
           ,
           as
           those
           of
           11
           R.
           II.
           
        
         
           Here
           the
           
             Authour
             of
             the
             Peerage
             and
             Iurisdiction
             of
             the
             Lords
             Spiritual
          
           thinks
           he
           brings
           seasonable
           relief
           to
           the
           Cause
           ,
           
           when
           he
           undertakes
           to
           prove
           ,
           that
           the
           Bishops
           withdrawing
           was
           not
           meerly
           on
           the
           account
           of
           the
           Canon-Law
           .
           This
           ,
           I
           confess
           ,
           is
           home
           to
           the
           business
           ,
           If
           he
           can
           make
           it
           out
           .
           (
           1.
           )
           He
           saith
           ,
           
             there
             was
             an
             Act
             of
             Parlament
          
           before
           ,
           
             that
             did
             expresly
             prohibit
             them
             to
             excercise
             Iurisdiction
             in
             those
             Cases
             .
          
           This
           we
           utterly
           deny
           .
           And
           the
           Constitution
           of
           Clarendon
           ,
           to
           which
           he
           refers
           ,
           proves
           the
           contrary
           .
           (
           2.
           )
           
             The
             Bishops
             made
             bold
             with
             the
             Canons
          
           when
           they
           thought
           fit
           ,
           
           as
           21
           R.
           II.
           But
           how
           could
           they
           doe
           that
           ,
           unless
           they
           had
           a
           
             Parlamentary
             Right
          
           to
           be
           present
           ?
           He
           saith
           ,
           
             the
             Constituting
             a
             Proxy
             was
             as
             
             great
             a
             violation
             of
             the
             Canons
             ,
             as
             being
             personally
             present
             :
          
           and
           what
           then
           ?
           therefore
           the
           Parlament
           would
           not
           have
           suffered
           them
           to
           doe
           that
           ,
           if
           there
           had
           been
           a
           Law
           to
           exclude
           them
           .
           How
           doth
           this
           prove
           that
           the
           Bishops
           did
           not
           withdraw
           on
           the
           account
           of
           the
           Canons
           II
           R.
           II.
           because
           they
           made
           a
           
             Proxie
             21
             R.
          
           II
           ?
           But
           why
           did
           they
           not
           appear
           personally
           ,
           if
           they
           had
           no
           regard
           to
           the
           Canons
           ;
           when
           the
           receiving
           their
           Proxie
           shewed
           they
           had
           a
           
             legal
             Right
          
           to
           appear
           ?
           But
           he
           grievously
           mistakes
           the
           meaning
           of
           the
           Canon
           of
           
             Stephen
             Langton
          
           in
           Lyndwood
           ,
           when
           he
           interprets
           
             Literas
             pro
             poena
             sanquinis
             instigenda
             scribere
             vel
             dictare
             ,
          
           against
           making
           of
           Proxies
           ;
           which
           is
           onely
           meant
           of
           giving
           or
           
             writing
             the
             Sentence
             for
             Execution
          
           .
           
           (
           3.
           )
           He
           saith
           ,
           they
           were
           excluded
           
             by
             ancient
             Custom
          
           ;
           which
           ,
           by
           a
           very
           subtle
           way
           of
           reasoning
           ,
           he
           proves
           to
           have
           been
           
             part
             of
             the
             Fundamental
             Contract
             of
             the
             Nation
             ,
          
           as
           he
           speaks
           .
           
             Seeing
             then
          
           ,
           saith
           he
           ,
           
             it
             is
             without
             doubt
             that
             there
             was
             such
             a
             Custom
             ,
             that
             the
             Prelats
             should
             not
             exercise
             Iurisdiction
             in
             Capital
             Cases
          
           ;
           (
           not
           so
           altogether
           
             without
             doubt
          
           ,
           unless
           it
           were
           better
           proved
           then
           we
           have
           yet
           seen
           it
           ;
           )
           
             and
             there
             is
             no
             Record
             that
             doth
             mention
             when
             it
             did
             begin
             ,
             
             nor
             any
             time
             when
             it
             could
             be
             said
             there
             never
             was
             such
             an
             Vsage
          
           ;
           (
           yes
           ,
           before
           the
           Council
           of
           Toledo
           being
           published
           in
           Spain
           ,
           and
           receiv'd
           here
           ;
           )
           
             it
             must
             of
             necessity
             be
             supposed
             ,
             that
             it
             is
             as
             ancient
             as
             the
             Government
             it self
             ,
             and
             part
             of
             the
             Fundamental
             Contract
             of
             the
             Nation
             .
          
           Which
           looks
           so
           like
           a
           Iesuitical
           Argument
           ,
           that
           one
           would
           have
           thought
           he
           had
           been
           proving
           Transubstantiation
           by
           it
           .
           For
           just
           thus
           the
           Argument
           runs
           at
           this
           day
           among
           that
           Party
           ;
           There
           was
           a
           time
           when
           it
           was
           reciev'd
           ,
           and
           no
           time
           can
           be
           instanced
           in
           wherein
           it
           was
           not
           ,
           therefore
           it
           was
           a
           part
           of
           the
           Fundamental
           Religion
           of
           
             Iesus
             Christ.
          
           the
           plain
           Answer
           in
           both
           cases
           is
           the
           same
           :
           If
           we
           can
           produce
           unquestionable
           Authority
           to
           which
           a
           Doctrine
           or
           Practice
           is
           repugnant
           ,
           we
           are
           not
           obliged
           to
           assign
           any
           punctual
           time
           in
           which
           it
           must
           first
           come
           in
           .
           But
           in
           this
           case
           ,
           we
           do
           assign
           the
           very
           time
           and
           occasion
           of
           the
           Bishops
           absenting
           themselves
           in
           
             Capital
             Iudgments
          
           ,
           and
           that
           was
           from
           the
           receiving
           the
           Canon
           of
           the
           Council
           of
           Toledo
           here
           :
           For
           no
           such
           practice
           can
           ever
           be
           proved
           before
           .
           And
           therefore
           this
           can
           never
           be
           proved
           to
           be
           any
           part
           of
           the
           
             ancient
             Common
             Law
             of
             England
          
           .
           And
           that
           this
           came
           in
           by
           way
           
           of
           imitation
           of
           other
           Countries
           ,
           appears
           by
           the
           citing
           the
           Council
           of
           Toledo
           both
           by
           Lanfranc
           and
           Richard
           in
           the
           Council
           of
           Winchester
           .
           
           (
           4.
           )
           He
           saith
           ,
           the
           Practice
           is
           
             ancienter
             then
             any
             of
             the
             Canons
             of
             the
             Church
             .
          
           But
           how
           doth
           that
           appear
           ?
           The
           eldest
           Canon
           he
           can
           find
           is
           that
           of
           
             Stephen
             Langton
          
           in
           Lyndwood
           ,
           which
           was
           made
           above
           50
           years
           after
           the
           Parlament
           at
           Clarendon
           .
           But
           we
           have
           made
           it
           evident
           ,
           there
           was
           a
           Canon
           receiv'd
           here
           in
           
           Lanfranc's
           time
           ,
           long
           before
           the
           Constitution
           of
           Clarendon
           .
           And
           so
           a
           full
           Answer
           is
           given
           to
           these
           Objections
           .
        
         
           But
           we
           are
           told
           ,
           by
           the
           Authour
           of
           the
           Letter
           ,
           that
           the
           
             Bishops
             Protestation
          
           being
           receiv'd
           and
           enter'd
           in
           the
           Roll
           ,
           or
           Iournal-Book
           ,
           makes
           it
           to
           pass
           for
           
             a
             Law
          
           ,
           it
           being
           agreed
           to
           by
           the
           King
           and
           two
           Houses
           ;
           so
           as
           whatever
           was
           the
           Law
           before
           ,
           if
           it
           were
           onely
           the
           Canon-Law
           ,
           it
           is
           now
           come
           to
           be
           the
           Law
           and
           Rule
           of
           Parlament
           ,
           and
           the
           
             Law
             of
             the
             Land.
          
           
        
         
           2.
           
           This
           is
           therefore
           the
           second
           Point
           to
           be
           examined
           ,
           Whether
           the
           receiving
           this
           Protestation
           amounts
           to
           a
           Law
           of
           Exclusion
           ?
           which
           it
           can
           by
           no
           means
           do
           for
           these
           two
           Reasons
           :
           1.
           from
           the
           nature
           of
           Protestations
           in
           general
           ,
           2.
           from
           the
           particular
           nature
           of
           
             this
             Protestation
          
           .
        
         
         
           1.
           
           From
           the
           nature
           of
           Protestations
           in
           general
           .
           For
           a
           Protestation
           is
           onely
           a
           Declaration
           of
           their
           minds
           that
           make
           it
           ,
           and
           not
           of
           theirs
           who
           receive
           it
           ,
           or
           suffer
           it
           to
           be
           enter'd
           in
           the
           Acts
           or
           Records
           of
           the
           Court
           ;
           unless
           it
           be
           receiv'd
           in
           such
           a
           manner
           ,
           as
           implies
           their
           consent
           .
           For
           ,
           the
           very
           next
           Parlament
           after
           this
           ,
           13
           R.
           II.
           the
           two
           Archbishops
           ,
           in
           the
           name
           of
           
             the
             whole
             Clergy
          
           ,
           enter
           a
           
             Protestation
             ,
             That
             they
             gave
             no
             assent
             to
             any
             Law
             or
             Statute
             made
             in
             restraint
             of
             the
             Pope's
             Authority
          
           ;
           and
           it
           is
           said
           in
           the
           Rolls
           of
           
             Parlament
             ,
             that
             at
             their
             requests
             these
             Protestations
             were
             enrolled
             .
          
           Will
           any
           man
           hence
           inferre
           ,
           that
           these
           Protestations
           were
           made
           
             Acts
             of
             Parlament
          
           ?
           If
           the
           Cause
           would
           have
           born
           any
           better
           ,
           a
           Person
           of
           so
           much
           skill
           in
           proceedings
           of
           Parlament
           would
           never
           have
           used
           such
           an
           Argument
           as
           this
           .
           Besides
           ,
           it
           is
           a
           Rule
           in
           Protestations
           ,
           
           
             Si
             Protestatio
             in
             Iudicio
             fiat
             ,
             semper
             per
             contrarium
             actum
             tollitur
             ,
          
           saith
           
             Hostiensis
             ;
             A
             Protestation
             ,
             although
             allowed
             in
             Court
             ,
             is
             taken
             off
             by
             a
             subsequent
             Act
             contrary
             to
             it
             .
          
           Which
           shews
           ,
           that
           a
           Protestation
           can
           never
           have
           the
           force
           of
           a
           Law
           ;
           because
           it
           may
           be
           destroy'd
           by
           the
           Act
           of
           the
           Parties
           themselves
           .
           If
           therefore
           the
           Bishops
           did
           afterwards
           act
           contrary
           to
           this
           Protestation
           ,
           
           they
           took
           away
           all
           the
           force
           of
           it
           .
        
         
           2.
           
           The
           particular
           nature
           of
           this
           Protestation
           is
           such
           ,
           as
           doth
           most
           evidently
           preserve
           their
           Right
           to
           be
           personally
           present
           on
           the
           account
           of
           their
           Peerage
           and
           Baronies
           ;
           and
           the
           great
           design
           of
           a
           Protestation
           is
           ,
           
             to
             preserve
             a
             Right
             notwithstanding
             some
             Act
             which
             seems
             to
             destroy
             it
          
           ;
           as
           thier
           
             absenting
             themselves
          
           on
           the
           account
           of
           the
           Canons
           might
           seem
           to
           doe
           .
           But
           of
           this
           already
           .
        
         
           3.
           
           We
           are
           now
           to
           consider
           the
           third
           Point
           ,
           Whether
           ,
           on
           supposition
           that
           on
           the
           account
           of
           the
           Canon-Law
           ,
           the
           Bishops
           had
           always
           withdrawn
           in
           the
           time
           of
           Popery
           ,
           that
           had
           continued
           in
           force
           still
           since
           the
           Reformation
           ?
           I
           think
           not
           ,
           upon
           these
           Reasons
           .
        
         
           1.
           
           Because
           the
           Canon-Law
           was
           founded
           upon
           a
           Superstitious
           fancy
           ,
           viz.
           that
           if
           Clergy-men
           be
           present
           in
           
             Causes
             of
             Bloud
          
           ,
           they
           contract
           Irregularity
           
             ex
             defectu
             perfectae
             Lenitatis
          
           ,
           
           as
           the
           excellent
           
             Canonist
             ,
             Navarr
          
           ,
           saith
           ,
           because
           it
           argues
           
             a
             want
             of
             perfect
             Lenity
          
           .
           But
           if
           we
           consider
           the
           cases
           they
           allow
           ,
           which
           do
           
             not
             incurre
             Irregularity
          
           ,
           and
           those
           they
           do
           not
           allow
           ,
           which
           do
           incurre
           it
           ,
           we
           shall
           find
           all
           this
           stir
           in
           the
           Canon-Law
           about
           this
           matter
           to
           be
           onely
           a
           Superstitious
           kind
           of
           Hypocrisy
           .
        
         
         
           1.
           
           If
           a
           man
           in
           Orders
           gives
           another
           man
           Weapons
           ,
           without
           which
           he
           could
           not
           defend
           himself
           ,
           and
           by
           those
           weapons
           he
           maims
           him
           that
           assaulted
           him
           ;
           this
           doth
           not
           make
           him
           irregular
           :
           but
           if
           he
           kills
           him
           ,
           it
           doth
           :
           and
           yet
           the
           Canons
           make
           the
           case
           of
           Dismembring
           and
           Death
           the
           same
           .
        
         
           2.
           
           It
           makes
           a
           man
           act
           against
           the
           
             Law
             or
             Nature
          
           to
           prevent
           Irregularity
           .
           For
           they
           say
           ,
           if
           it
           be
           for
           the
           defence
           of
           Father
           or
           Mother
           ,
           or
           preventing
           the
           ruin
           of
           his
           Country
           ,
           although
           the
           Cause
           be
           never
           so
           just
           ,
           a
           Clergy-man
           that
           dismembers
           ,
           or
           takes
           away
           another's
           life
           ,
           is
           irregular
           .
        
         
           3.
           
           If
           a
           Clergy-man
           discovers
           Treason
           ,
           or
           accuses
           another
           for
           Treason
           ,
           without
           a
           Protestation
           ,
           that
           he
           doth
           not
           doe
           it
           with
           a
           design
           to
           have
           him
           punished
           ;
           he
           is
           irregular
           :
           but
           if
           he
           makes
           that
           Protestation
           ,
           although
           death
           follows
           ,
           he
           is
           not
           .
        
         
           4.
           
           If
           a
           Clergy-man
           be
           in
           an
           Army
           ,
           and
           perswades
           the
           Souldiers
           to
           fight
           manfully
           ,
           and
           kill
           as
           many
           as
           they
           can
           ;
           this
           doth
           not
           make
           him
           irregular
           ;
           ny
           ,
           although
           he
           beats
           them
           ,
           if
           they
           will
           not
           fight
           :
           but
           if
           he
           happens
           to
           kill
           an
           enemy
           himself
           ,
           then
           he
           is
           .
        
         
           5.
           
           If
           he
           gives
           a
           Souldier
           a
           Sword
           or
           a
           
           Gun
           ,
           by
           which
           he
           dispatches
           his
           enemies
           ,
           if
           he
           did
           it
           with
           a
           particular
           intention
           that
           he
           should
           slay
           or
           maim
           them
           ,
           he
           is
           irregular
           ;
           if
           onely
           with
           a
           general
           intention
           ,
           that
           he
           should
           overcome
           ,
           he
           is
           not
           .
           This
           being
           somewhat
           a
           nice
           Case
           ,
           the
           Canonists
           take
           more
           then
           usual
           pains
           to
           prove
           it
           .
           And
           from
           hence
           they
           defend
           their
           Priests
           and
           Iesuits
           in
           the
           Indies
           ,
           who
           carry
           the
           Cross
           before
           their
           Armies
           into
           the
           Field
           ,
           and
           encourage
           them
           to
           kill
           all
           they
           can
           :
           and
           yet
           Navarr
           saith
           ,
           they
           are
           so
           far
           from
           being
           irregular
           ,
           that
           they
           are
           regularissimi
           ,
           as
           his
           word
           is
           .
        
         
           6.
           
           If
           a
           man
           ,
           to
           gain
           an
           Indulgence
           ,
           carries
           a
           faggot
           to
           burn
           an
           Heretick
           ,
           if
           it
           be
           with
           a
           design
           to
           take
           away
           his
           life
           ,
           he
           is
           irregular
           :
           but
           if
           he
           be
           hanged
           first
           ,
           or
           dead
           before
           it
           be
           thrown
           into
           the
           fire
           ,
           then
           he
           is
           not
           .
        
         
           7.
           
           If
           a
           man
           in
           Orders
           helps
           a
           Chirurgeon
           in
           cutting
           off
           a
           man's
           Leg
           ,
           he
           is
           not
           irregular
           :
           but
           if
           a
           man
           be
           justly
           condemned
           to
           have
           his
           Leg
           cut
           off
           ,
           if
           he
           then
           gives
           any
           assistence
           ,
           he
           is
           irregular
           :
           because
           the
           one
           is
           moved
           out
           of
           Mercy
           ,
           and
           the
           other
           out
           of
           Justice
           .
        
         
           8.
           
           If
           the
           Bishops
           sit
           and
           condemn
           a
           man
           for
           Heresy
           ,
           and
           deliver
           him
           over
           to
           
           the
           
             Secular
             Power
          
           for
           Execution
           ;
           yet
           they
           free
           this
           from
           Irregularity
           ,
           or
           else
           the
           practice
           of
           the
           Inquisition
           were
           lost
           .
           This
           seems
           a
           very
           difficult
           Case
           :
           but
           the
           Canonists
           salve
           this
           ,
           
           by
           saying
           that
           the
           Inquisitours
           ,
           when
           they
           deliver
           them
           over
           to
           the
           
             Secular
             Power
          
           ,
           do
           pray
           
             that
             they
             may
             not
             be
             hurt
             either
             Wind
             or
             Lim
          
           ;
           as
           it
           appears
           by
           the
           Forms
           used
           in
           the
           
             Directorium
             Inquisitorum
          
           .
           And
           if
           this
           be
           not
           the
           height
           of
           Hypocrisie
           ,
           let
           the
           World
           judge
           .
           And
           therefore
           this
           part
           of
           the
           Canon-Law
           is
           not
           consistent
           with
           the
           Sincerity
           of
           the
           Reformation
           .
        
         
           2.
           
           This
           part
           of
           Canon-Law
           is
           inconsistent
           with
           the
           
             King's
             Power
          
           over
           
             Ecclesiastical
             Persons
          
           .
           For
           it
           supposeth
           them
           liable
           to
           the
           penalty
           of
           a
           Law
           ,
           which
           he
           hath
           no
           cognisance
           of
           ,
           and
           derives
           no
           force
           or
           authority
           from
           him
           :
           which
           tends
           to
           the
           diminution
           of
           the
           
             King's
             Prerogative
             Royal
          
           ,
           and
           therefore
           it
           is
           nulled
           by
           the
           
             Stat.
             25
             ▪
             H.
          
           VIII
           .
           c.
           19.
           
           I
           do
           very
           much
           question
           whether
           this
           ever
           were
           any
           part
           of
           the
           Canon-Law
           of
           England
           ,
           notwithstanding
           the
           
             Pope's
             Decretals
             ;
             i.
             e.
          
           whether
           these
           Canons
           ever
           received
           confirmation
           by
           the
           
             Royal
             Authority
          
           ,
           either
           in
           
             Synodal
             Constitutions
          
           ,
           or
           elsewhere
           .
           And
           it
           would
           be
           a
           very
           hard
           
           case
           ,
           if
           
             our
             Kings
          
           had
           not
           the
           same
           Privileges
           which
           are
           allow'd
           in
           
             Popish
             Countries
             ;
             viz.
          
           that
           nothing
           passes
           for
           Canon-Law
           within
           their
           Territories
           ,
           till
           it
           pass
           the
           examination
           of
           the
           
             King's
             Council
          
           ,
           and
           approbation
           by
           his
           Authority
           .
           Thence
           in
           France
           nothing
           passes
           without
           the
           
           King's
           Pareatis
           ;
           nor
           in
           Spain
           or
           Flanders
           ,
           without
           the
           King
           of
           
           Spain's
           Placet
           ;
           no
           nor
           in
           the
           Kingdom
           of
           Naples
           ,
           without
           the
           
             Royal
             Exequatur
          
           .
           It
           is
           well
           known
           ,
           that
           the
           6.
           
           Book
           of
           Decretals
           was
           not
           allowed
           in
           France
           ,
           because
           of
           the
           quarrel
           between
           the
           King
           and
           Boniface
           VIII
           .
           and
           that
           even
           the
           Council
           of
           Trent
           it self
           was
           not
           allowed
           by
           Philip
           II.
           till
           it
           had
           been
           strictly
           examined
           by
           the
           
             King's
             Council
          
           ,
           that
           nothing
           might
           be
           allowed
           which
           tended
           to
           the
           diminution
           of
           his
           Prerogative
           .
           How
           then
           will
           men
           justifie
           the
           making
           that
           a
           part
           of
           the
           Canon-Law
           of
           England
           ,
           which
           was
           repugnant
           to
           the
           Rights
           of
           the
           Crown
           ,
           and
           deprives
           the
           King
           of
           the
           Power
           of
           taking
           advice
           of
           those
           of
           his
           Subjects
           ,
           whom
           he
           hath
           summon'd
           for
           that
           end
           ?
        
         
           3.
           
           The
           Sanction
           of
           this
           Law
           is
           ceased
           ,
           which
           was
           Irregularity
           :
           And
           some
           of
           our
           most
           Learned
           Iudges
           have
           declared
           ,
           that
           is
           taken
           away
           by
           the
           Reformation
           .
           But
           
           in
           case
           any
           be
           of
           another
           opinion
           ,
           I
           shall
           urge
           them
           with
           this
           inconveniency
           ;
           viz.
           that
           the
           great
           Instrument
           of
           discovering
           the
           Plot
           falls
           under
           Irregularity
           by
           it
           .
           For
           it
           is
           most
           certain
           ,
           by
           the
           Canon-Law
           ,
           that
           a
           man
           in
           Orders
           accusing
           others
           of
           Treason
           ,
           without
           making
           his
           due
           Protestation
           in
           Court
           ,
           is
           Irregular
           .
           But
           if
           this
           be
           now
           thought
           unreasonable
           ,
           as
           it
           is
           ,
           in
           the
           person
           of
           an
           Accuser
           ,
           why
           should
           it
           not
           be
           so
           in
           the
           case
           of
           Iudges
           ?
           And
           if
           the
           Irregularity
           be
           taken
           away
           ,
           then
           the
           Sanction
           is
           gone
           :
           and
           if
           the
           Sanction
           be
           taken
           off
           in
           a
           meer
           
             positive
             Law
          
           ,
           the
           force
           of
           the
           Law
           is
           gone
           too
           .
           And
           therefore
           this
           Canon-Law
           ,
           which
           forbids
           
             Clergy-men
             being
             present
             in
             Capital
             Cases
             ,
             and
             giving
             Votes
             therein
             ,
          
           is
           wholly
           taken
           away
           by
           the
           Reformation
           .
           And
           we
           do
           not
           find
           any
           mention
           of
           it
           for
           80
           years
           and
           more
           after
           the
           Reformation
           ;
           till
           about
           the
           time
           of
           the
           Earl
           of
           
           Strafford's
           Trial
           ,
           a
           Book
           being
           printed
           about
           the
           Privilege
           of
           Peers
           ,
           wherein
           this
           Protestation
           was
           mention'd
           ,
           hold
           was
           presently
           taken
           of
           it
           ,
           by
           Men
           who
           thought
           they
           could
           not
           compass
           their
           ends
           without
           removing
           the
           Bishops
           out
           of
           the
           House
           :
           and
           when
           the
           Bishops
           insisted
           on
           their
           Right
           ,
           and
           could
           not
           be
           heard
           ,
           but
           at
           last
           were
           willing
           to
           salve
           
           their
           Right
           by
           Proxies
           ;
           the
           Lords
           of
           the
           Cabal
           prevailed
           with
           their
           friends
           ,
           to
           declare
           they
           would
           use
           no
           Proxies
           themselves
           ,
           and
           so
           by
           that
           artifice
           shut
           the
           Bishops
           out
           of
           Doors
           .
        
         
           4.
           
           The
           practice
           hath
           been
           so
           contrary
           ,
           since
           the
           Reformation
           ,
           that
           I
           find
           no
           manner
           of
           regard
           hath
           been
           shewed
           to
           it
           .
           For
           the
           Archbishop
           of
           Canterbury
           was
           the
           first
           nominated
           in
           the
           Commission
           for
           the
           Trial
           of
           the
           Queen
           of
           Scots
           ;
           as
           appears
           by
           the
           Commission
           it self
           in
           Camden
           ;
           
           which
           is
           directly
           contrary
           to
           the
           Canon-Law
           .
           Some
           distinguish
           the
           Bishops
           acting
           by
           Commission
           ,
           from
           their
           being
           
             Iudges
             in
             Parlament
          
           .
           For
           which
           there
           is
           no
           manner
           of
           Reason
           with
           respect
           to
           the
           Canon-Law
           ,
           which
           is
           rather
           more
           express
           against
           any
           kind
           of
           Commissions
           in
           Cases
           of
           Bloud
           ;
           as
           appears
           by
           the
           Council
           of
           Toledo
           ,
           the
           
             Synodal
             Constitution
          
           ,
           and
           the
           
             Pope's
             Decretals
          
           .
           And
           there
           hath
           never
           been
           any
           scruple
           about
           Divines
           sitting
           on
           the
           Crown-side
           as
           
             Iustices
             of
             the
             Peace
          
           ,
           
           when
           
             Sentence
             of
             death
             is
             pronounced
          
           ;
           nor
           in
           the
           
           Ordinary's
           declaring
           Legit
           ,
           or
           
             Non
             legit
          
           ,
           when
           a
           man's
           life
           depends
           upon
           it
           .
           But
           ,
           which
           is
           yet
           more
           to
           our
           present
           purpose
           ,
           in
           the
           
             Parlament
             22.
             
             May
          
           1626.
           upon
           the
           Impeachment
           of
           the
           Earl
           of
           Bristol
           
           of
           
             high
             Treason
             ,
             10
             Bishops
             ,
             10
             Earls
             ,
             10
             Barons
             ,
          
           were
           appointed
           to
           examine
           the
           Evidence
           ;
           and
           upon
           their
           Report
           he
           was
           sent
           to
           the
           Tower
           by
           the
           
             whole
             House
          
           .
           All
           which
           shews
           ,
           that
           there
           hath
           been
           no
           regard
           had
           to
           the
           force
           of
           the
           Canon-Law
           in
           this
           matter
           since
           the
           Reformation
           :
           That
           being
           a
           Spirit
           lay'd
           long
           since
           by
           the
           Principles
           of
           our
           Church
           ;
           and
           it
           would
           be
           strange
           ,
           if
           some
           mens
           zeal
           against
           Popery
           should
           raise
           it
           again
           .
        
      
       
         
           CHAP.
           III.
           
        
         
           The
           Precedents
           on
           both
           sides
           laid
           down
           :
           those
           against
           the
           Bishops
           examined
           and
           answered
           .
        
         
           II.
           I
           Now
           come
           to
           examine
           the
           Precedents
           ,
           and
           shall
           proceed
           therein
           according
           to
           due
           Order
           of
           Time.
           
        
         
           And
           so
           the
           first
           is
           taken
           from
           the
           Saxon
           times
           ;
           
           viz.
           from
           
           Brompton's
           Relation
           about
           Edward
           the
           Confessour's
           appealing
           to
           the
           Earls
           and
           Barons
           about
           Earl
           Godwin's
           murthering
           of
           his
           Brother
           Alfred
           .
           
           
             Here
             we
             see
          
           ,
           saith
           the
           Authour
           of
           the
           
             Letter
             ,
             it
             was
             onely
          
           ad
           Comites
           &
           Barones
           
             that
             he
             appealed
             ,
             and
             they
             were
             onely
             
             to
             judge
             of
             it
             ,
             and
             not
             Bishops
             or
             Prelates
             .
          
        
         
           I
           have
           2
           things
           to
           answer
           to
           this
           Precedent
           .
           1.
           
           That
           we
           have
           great
           reason
           to
           suspect
           the
           truth
           of
           it
           .
           2.
           
           That
           if
           it
           were
           true
           ,
           we
           have
           no
           reason
           to
           suspect
           the
           Bishops
           to
           be
           excluded
           .
        
         
           1.
           
           For
           the
           truth
           of
           the
           Story
           .
           That
           there
           is
           great
           reason
           to
           suspect
           it
           ,
           appears
           ,
           in
           that
           it
           is
           the
           single
           relation
           of
           Brompton
           ,
           against
           the
           consent
           of
           the
           other
           Historians
           ,
           (
           and
           some
           of
           them
           much
           ancienter
           ,
           and
           nearer
           to
           that
           time
           ,
           )
           who
           mention
           K.
           
           Edward's
           charging
           
             Earl
             Godwin
          
           with
           the
           Death
           of
           his
           Brother
           ,
           not
           in
           Parlament
           ,
           but
           as
           they
           were
           at
           Table
           together
           at
           Winchester
           ,
           upon
           the
           occasion
           of
           a
           saying
           of
           Earl
           Godwin's
           ,
           upon
           the
           King
           's
           Cup-bearer's
           stumbling
           with
           one
           foot
           ,
           and
           recovering
           with
           another
           ;
           See
           ,
           saith
           he
           ,
           
             how
             one
             Brother
             helps
             another
          
           .
           Upon
           which
           
             Matt.
             Westminster
             ,
             Knighton
          
           ,
           and
           others
           say
           ,
           that
           the
           King
           charged
           him
           about
           the
           Death
           of
           his
           Brother
           Alfred
           .
           Whatever
           the
           occasion
           was
           ,
           our
           best
           Historians
           of
           that
           time
           ,
           Malmsbury
           and
           Ingulphus
           ,
           say
           ,
           it
           was
           at
           an
           Entertainment
           at
           Winchester
           ,
           and
           that
           
             Earl
             Godwin
          
           died
           upon
           the
           place
           ;
           being
           choaked
           ,
           as
           they
           say
           ,
           with
           a
           Morsel
           of
           Bread
           he
           took
           with
           
           a
           great
           Execration
           upon
           himself
           if
           he
           were
           not
           innocent
           .
           Knighton
           saith
           ,
           he
           was
           question'd
           for
           the
           Death
           of
           his
           Brother
           by
           Hardecnute
           ,
           and
           that
           he
           cleared
           himself
           ,
           by
           saying
           he
           did
           nothing
           but
           by
           the
           King's
           command
           .
           But
           suppose
           Edward
           to
           be
           never
           so
           weak
           a
           Prince
           ,
           is
           it
           likely
           this
           should
           be
           done
           by
           an
           Appeal
           in
           Parlament
           by
           the
           King
           himself
           ;
           and
           that
           afterwards
           ,
           by
           the
           Judgment
           of
           his
           Earls
           and
           Barons
           ,
           he
           and
           his
           Sons
           and
           12
           Kinsmen
           should
           make
           the
           King
           amends
           ,
           by
           as
           much
           Gold
           and
           Silver
           as
           they
           could
           carry
           between
           their
           Arms
           ?
           Besides
           ,
           Brompton
           saith
           ,
           this
           was
           done
           by
           Godwin
           when
           he
           returned
           to
           England
           ,
           after
           King
           
           Edward's
           coming
           to
           the
           Throne
           ;
           whereas
           Malmsbury
           shews
           ,
           that
           it
           was
           through
           Earl
           Godwin's
           interest
           ,
           that
           ever
           he
           came
           to
           it
           ;
           and
           so
           the
           marrying
           his
           Daughter
           would
           make
           any
           one
           believe
           .
        
         
           2.
           
           But
           suppose
           it
           true
           .
           What
           reason
           is
           there
           to
           conclude
           the
           Bishops
           not
           present
           ,
           who
           were
           never
           absent
           through
           all
           the
           Saxon
           times
           ,
           after
           
           Ethelbert's
           Conversion
           ,
           in
           any
           publick
           Councils
           of
           the
           Nation
           ?
           They
           had
           no
           Canon
           then
           to
           be
           afraid
           of
           ;
           for
           that
           of
           the
           Council
           of
           Toledo
           was
           brought
           in
           by
           Lanfranc
           .
           And
           it
           was
           not
           against
           the
           practice
           of
           those
           
           Times
           .
           For
           if
           we
           believe
           as
           true
           a
           Story
           as
           this
           of
           Brompton
           ,
           the
           Archbishop
           of
           Canterbury
           himself
           condemned
           King
           
           Edward's
           Mother
           Emma
           to
           a
           Trial
           by
           hot
           Irons
           ,
           which
           was
           present
           death
           without
           a
           Miracle
           :
           and
           this
           it
           is
           said
           was
           done
           by
           the
           consent
           
             of
             the
             King
             and
             the
             Bishops
          
           ;
           which
           is
           as
           good
           a
           Precedent
           against
           
             Temporal
             Lords
          
           ,
           as
           the
           other
           is
           against
           the
           Bishops
           .
           However
           ,
           this
           is
           certain
           ,
           that
           the
           Bishops
           then
           sate
           in
           the
           County-Court
           at
           all
           Iudgments
           .
           And
           whereas
           the
           Authour
           of
           the
           Letter
           would
           avoid
           this
           ,
           by
           saying
           that
           no
           
             Capital
             Crimes
          
           were
           tried
           there
           ;
           
           the
           contrary
           is
           most
           certainly
           true
           .
           For
           the
           Laws
           of
           King
           Edward
           ,
           as
           they
           were
           set
           forth
           by
           H.
           I.
           c.
           31.
           mention
           the
           
             Capitalia
             Placita
          
           that
           were
           there
           held
           .
           And
           the
           Authour
           of
           the
           MS.
           Life
           of
           S.
           Cuthbert
           saith
           ,
           that
           when
           one
           of
           Earl
           Godwin's
           Sons
           was
           Earl
           of
           Northumberland
           ,
           and
           one
           Hamel
           ,
           a
           very
           bad
           man
           ,
           was
           imprison'd
           by
           him
           ,
           his
           Friends
           interceded
           earnestly
           with
           him
           ,
           
             nè
             capite
             plecteretur
             ,
             that
             he
             should
             not
             lose
             his
             head
             .
          
           By
           which
           it
           appears
           ,
           that
           
             Cases
             Capital
          
           were
           heard
           and
           determin'd
           in
           those
           Courts
           ,
           the
           Bishop
           and
           Earl
           sitting
           together
           in
           Iudgment
           .
           And
           here
           the
           Point
           is
           plainly
           gain'd
           ,
           because
           the
           Authour
           of
           the
           Letter
           
           grants
           that
           the
           Bishops
           sate
           in
           all
           Iudgments
           in
           the
           County-Courts
           ,
           and
           then
           puts
           the
           matter
           upon
           this
           Issue
           ,
           whether
           
             Capital
             Crimes
          
           were
           there
           tried
           or
           not
           ;
           which
           I
           have
           clearly
           proved
           that
           they
           were
           .
           But
           I
           shall
           make
           another
           advantage
           of
           this
           against
           the
           Authour
           of
           
             the
             Peerage
             ,
             &c.
          
           for
           it
           plainly
           overthrows
           that
           confident
           Assertion
           of
           his
           ,
           
           That
           
             without
             doubt
          
           there
           was
           a
           Negative
           
             Custom
             ,
             that
             the
             Prelates
             should
             not
             exercise
             Iurisdiction
             in
             Capital
             Cases
             ,
          
           so
           ancient
           as
           to
           be
           
             part
             of
             the
             Fundamental
             Contract
             of
             the
             Nation
             .
          
           It
           were
           a
           thousand
           pities
           that
           such
           well-sounding
           words
           ,
           so
           handsomely
           put
           together
           ,
           should
           signifie
           nothing
           .
           I
           dare
           not
           be
           so
           positive
           as
           he
           is
           ,
           but
           am
           of
           opinion
           ,
           that
           if
           he
           could
           be
           perswaded
           to
           produce
           this
           
             Fundamental
             Contract
             of
             the
             Nation
          
           ,
           which
           I
           perceive
           he
           hath
           lying
           by
           him
           ,
           it
           would
           not
           amount
           to
           so
           much
           as
           a
           
             blind
             Manuscript
          
           .
           If
           it
           be
           said
           ,
           that
           Brompton
           onely
           mentions
           Earls
           and
           Barons
           ,
           and
           Bishops
           were
           not
           then
           made
           Barons
           ;
           I
           answer
           ,
           that
           Baronies
           were
           brought
           into
           England
           by
           the
           Conquerour
           ,
           and
           therefore
           Brompton
           must
           speak
           improperly
           ,
           and
           consequently
           ,
           taking
           it
           onely
           for
           a
           Title
           of
           Honour
           ,
           he
           means
           no
           more
           then
           those
           who
           were
           the
           Great
           men
           of
           that
           time
           ,
           
           and
           so
           may
           take
           in
           the
           Bishops
           too
           :
           of
           which
           more
           afterwards
           .
           But
           there
           is
           one
           thing
           more
           in
           the
           Laws
           of
           
             H.
             I.
          
           (
           which
           were
           onely
           a
           restoring
           K.
           
             Edward's
             Laws
          
           )
           that
           implies
           that
           Bishops
           had
           then
           a
           Power
           of
           Judging
           in
           
             Cases
             Capital
          
           ;
           which
           is
           
             c.
             58.
             
             Qui
             occiderit
             Episcopum
             sit
             in
             arbitrio
             Principis
             &
             Episcoporum
             ,
             He
             that
             killed
             a
             Bishop
             was
             to
             be
             left
             to
             the
             Will
             of
             the
             King
             and
             the
             Bishops
             .
          
           Which
           shews
           that
           they
           were
           to
           hear
           and
           examine
           the
           whole
           Evidence
           ,
           and
           to
           give
           Judgment
           according
           to
           it
           .
        
         
           After
           the
           Saxon
           times
           ,
           
           the
           
             first
             Precedent
          
           produced
           is
           of
           the
           33
           
             Edw.
             I.
          
           concerning
           
             Nicolas
             Segrave
          
           ,
           who
           was
           summon'd
           to
           appear
           in
           Parlament
           ,
           and
           after
           his
           Offences
           were
           open'd
           ,
           the
           King
           advises
           
             onely
             with
             the
             Temporal
             Lords
          
           ,
           who
           declared
           ,
           such
           a
           man
           deserved
           to
           lose
           his
           Life
           .
           But
           is
           he
           sure
           the
           Bishops
           were
           not
           present
           ?
           No
           :
           he
           saith
           ,
           
             that
             doth
             not
             appear
             by
             the
             Record
             ;
             but
             it
             appears
             clearly
             they
             were
             not
             to
             meddle
             with
             it
             .
          
           How
           so
           ?
           
             The
             King
             declares
             ,
             that
             he
             would
             have
             the
             Advice
             Comitum
             ,
             Baronum
             ,
             Magnatum
             ,
             &
             aliorum
             de
             Consilio
             suo
             .
          
           But
           is
           he
           sure
           they
           are
           not
           comprehended
           under
           Magnates
           ,
           and
           that
           there
           were
           no
           Clergy-men
           at
           that
           time
           of
           the
           King's
           Counsel
           ?
           What
           thinks
           
           he
           is
           
             William
             de
             Hamilton
             ,
             Dean
          
           of
           
             York
             ▪
          
           who
           was
           made
           
             Lord
             Chancellour
             Ian.
             16.
             33
             
             Edw.
             I.
          
           and
           this
           Parlament
           was
           held
           the
           next
           Sunday
           after
           S.
           Matthias
           ,
           which
           was
           the
           latter
           end
           of
           February
           ?
           And
           in
           the
           35.
           year
           ,
           
             Ralph
             de
             Baldock
             ,
             Bishop
          
           of
           London
           ,
           was
           made
           
             Lord
             Chancellour
          
           :
           and
           scarce
           any
           other
           but
           Church-men
           had
           that
           Office
           all
           his
           days
           .
           The
           Bishop
           of
           Bath
           and
           Wells
           was
           Chancellour
           near
           twenty
           years
           of
           his
           Reign
           ;
           after
           him
           the
           Bishop
           of
           Ely
           ;
           after
           him
           the
           Dean
           of
           Chichester
           ;
           and
           then
           comes
           the
           Dean
           of
           York
           .
           And
           among
           the
           
             Lords
             Treasurers
          
           of
           his
           time
           ;
           were
           the
           Archdeacon
           of
           Dorset
           ,
           the
           Abbot
           of
           Westminster
           ,
           two
           Bishops
           of
           Bath
           and
           Wells
           ,
           whereof
           one
           was
           Treasurer
           at
           this
           time
           .
           These
           two
           ,
           I
           hope
           ,
           we
           may
           suppose
           to
           be
           of
           the
           
             King's
             Counsel
          
           in
           this
           business
           ;
           who
           we
           are
           certain
           were
           both
           Church-men
           .
           And
           if
           they
           adjudged
           
             Nic.
             de
             Segrave
          
           worthy
           of
           death
           ,
           who
           so
           likely
           to
           deliver
           that
           Judgment
           as
           the
           Chancellour
           ?
           But
           suppose
           these
           were
           not
           there
           ,
           whom
           doth
           he
           mean
           by
           the
           Magnates
           then
           distinct
           from
           Earls
           and
           Barons
           ,
           who
           were
           of
           the
           
             House
             of
             Peers
          
           ?
           Mr.
           Selden
           will
           inform
           him
           ,
           if
           he
           needs
           it
           ,
           that
           there
           were
           no
           Dukes
           till
           the
           II.
           of
           
             Edw.
             III.
          
           nor
           the
           Title
           of
           
           Marquess
           till
           
             R.
             II.
          
           nor
           of
           Vicount
           till
           
             H.
             VI.
          
           And
           yet
           here
           were
           Magnates
           in
           Parlament
           ,
           who
           were
           neither
           Earls
           nor
           Barons
           :
           and
           therefore
           we
           must
           in
           all
           reason
           understand
           the
           great
           Church-men
           ,
           who
           were
           not
           so
           nice
           of
           meddling
           with
           
             Criminal
             Causes
          
           in
           Parlament
           of
           the
           highest
           nature
           in
           the
           time
           of
           
             Edw.
             I.
          
           As
           appears
           by
           the
           great
           Cause
           so
           much
           agitated
           in
           Parlament
           20
           
             Edw.
             I.
          
           concerning
           the
           Earls
           of
           Hereford
           and
           Gloucester
           ;
           where
           this
           latter
           is
           charged
           with
           raising
           Arms
           without
           Commission
           ,
           and
           committing
           Murthers
           and
           horrible
           Devastations
           in
           the
           Lands
           belonging
           to
           the
           other
           ;
           and
           the
           King
           in
           Parlament
           appoints
           the
           Bishop
           of
           Ely
           with
           others
           to
           be
           a
           Committee
           for
           examination
           of
           this
           matter
           .
           And
           when
           they
           had
           both
           submitted
           to
           the
           King's
           Pleasure
           ,
           we
           have
           these
           remarkable
           words
           in
           the
           
             Placita
             Parlamentaria
             .
             
               Per
               Consilium
               Archiepiscoporum
               ,
               Episcoporum
               ,
               Comitum
               ,
               Baronum
               ,
               ceterorumque
               de
               Consilio
               suo
               existentium
               ,
               facere
               volens
               in
               premissis
               ,
               &
               ut
               voluntas
               sua
               justa
               sit
               &
               rationabilis
               ,
               prout
               decet
               ,
               eorumque
               assensum
               in
               premissis
               petiit
               ,
               &
               Consilium
               .
               Propter
               quod
               ,
               habito
               tractatu
               diligenti
               coram
               ipso
               Domino
               Rege
               &
               Consilio
               suo
               super
               predictis
               ,
               tam
               ipsi
               Domino
               
               Regi
               quam
               ceteris
               Prelatis
               &
               Magnatibus
               ,
               &
               singulis
               de
               Consilio
               suo
               ,
               videtur
               quoad
               Comit.
               Gloucestr
            
          
           .
           and
           then
           follows
           the
           Sentence
           ;
           which
           I
           confess
           did
           not
           extend
           to
           Life
           ,
           but
           to
           a
           Forfeiture
           of
           his
           Estate
           to
           the
           King.
           However
           ,
           we
           see
           hereby
           that
           the
           Bishops
           were
           present
           at
           all
           the
           
             praeliminary
             Debates
          
           ,
           and
           the
           King
           asked
           their
           Advice
           ;
           so
           that
           they
           had
           their
           Votes
           in
           the
           Sentence
           ,
           whether
           it
           should
           extend
           to
           Life
           or
           not
           .
        
         
           In
           the
           Reign
           of
           
             Edw.
             II.
          
           we
           meet
           with
           a
           remarkable
           Precedent
           in
           behalf
           of
           the
           
             Bishops
             Right
          
           ,
           which
           is
           of
           a
           Iudgment
           reversed
           made
           by
           the
           
             Lords
             
               without
               the
               Prelats
            
             viz.
          
           ,
           the
           Iudgment
           against
           the
           two
           
             Spencers
             15
             E.
             II.
          
           which
           Iudgment
           is
           said
           to
           be
           passed
           at
           Oxford
           that
           year
           ,
           but
           in
           the
           Parlament
           at
           York
           ,
           
           the
           same
           year
           ,
           it
           was
           nulled
           and
           made
           void
           before
           the
           King
           ,
           Lords
           and
           Commons
           ;
           and
           one
           of
           the
           Reasons
           given
           for
           it
           is
           ,
           
             because
             the
             Lords
             Spiritual
             ,
             who
             were
             Peers
             ,
             assented
             not
             to
             it
             .
          
           This
           Precedent
           had
           been
           cited
           and
           allowed
           by
           Mr.
           Pryn
           ,
           in
           his
           
             Plea
             for
             the
             Lords
          
           ;
           
           and
           therefore
           it
           is
           to
           be
           wonder'd
           the
           Authour
           of
           the
           Letter
           takes
           no
           notice
           of
           it
           .
           But
           the
           later
           Authour
           of
           
             the
             Discourse
             about
             the
             Bishops
             Peerage
             and
             Iurisdiction
             ,
          
           
           owns
           the
           truth
           
           of
           the
           thing
           ,
           saying
           ,
           
             that
             the
             two
             Iudgments
             aganst
             the
             two
          
           Spencers
           
             were
             reversed
          
           15
           Edw.
           II.
           
             for
             this
             Cause
             ,
             through
             the
             great
             favour
             and
             interest
             they
             then
             had
             at
             Court.
          
           But
           then
           he
           thinks
           he
           hath
           taken
           off
           the
           force
           of
           this
           Precedent
           ,
           by
           saying
           that
           1
           Edw.
           III.
           c.
           1.
           
             this
             Iudgment
             is
             declared
             good
             ,
             and
             therefore
             the
             said
             Reversal
             null
             and
             void
             ;
             and
             the
             two
          
           Spencers
           
             upon
             this
             affirmance
             of
             the
             Iudgment
             were
             executed
             .
          
           This
           last
           Assertion
           every
           one
           knows
           to
           be
           a
           grievous
           mistake
           ,
           that
           hath
           but
           looked
           into
           our
           History
           :
           for
           the
           Spencers
           were
           executed
           before
           Edw.
           III.
           came
           to
           the
           Crown
           ;
           the
           elder
           in
           
             October
             19
             Edw.
          
           II.
           the
           other
           the
           latter
           end
           of
           
             November
             20
             Edw.
          
           II.
           And
           whereas
           he
           insists
           upon
           the
           
             Affirmance
             of
             the
             Iudgment
             1
             Edw.
          
           III.
           he
           had
           done
           well
           to
           have
           look'd
           a
           little
           farther
           ,
           and
           then
           he
           would
           have
           found
           that
           Act
           also
           repealed
           21
           R.
           II.
           So
           that
           if
           the
           Act
           of
           1
           Ed.
           III.
           which
           affirms
           the
           first
           Judgment
           ,
           may
           seem
           to
           take
           off
           the
           force
           of
           this
           Precedent
           ,
           the
           repealing
           of
           that
           Act
           in
           the
           21
           
             R.
             II.
          
           restores
           it
           again
           ,
           and
           leaves
           it
           in
           its
           full
           force
           .
           Especially
           if
           it
           be
           considered
           ,
           that
           the
           Act
           of
           1
           
             Ed.
             III.
          
           was
           not
           barely
           repealed
           ,
           but
           declar'd
           in
           Parlament
           to
           be
           unlawfull
           ,
           because
           
             Ed.
             II.
             
             was
             living
          
           ,
           
           
             and
             true
             King
             ,
             and
             imprison'd
             by
             his
             Subjects
             at
             the
             time
             of
             that
             very
             Parlament
             of
             1
             Ed.
             III.
             
          
        
         
           Thus
           far
           this
           Precedent
           is
           good
           .
           But
           I
           will
           conceal
           nothing
           that
           may
           with
           any
           colour
           be
           objected
           against
           it
           .
           And
           I
           cannot
           deny
           but
           what
           the
           Authour
           of
           the
           Letter
           objects
           ,
           against
           the
           Bishops
           constituting
           a
           Proctor
           to
           represent
           them
           in
           Capital
           Causes
           ,
           seems
           to
           be
           of
           equal
           force
           against
           this
           
             Precedent
             ,
             viz.
             That
             this
             Parlament
             of
             the
             21
             R.
             II.
             and
             all
             that
             was
             done
             in
             it
             ,
             was
             repeal'd
             in
             the
             1
             H.
             IV.
          
           And
           if
           that
           be
           so
           ,
           (
           and
           those
           Acts
           of
           State
           which
           then
           passed
           had
           not
           again
           been
           repealed
           1
           
             Ed.
             IV.
          
           )
           then
           the
           Repealing
           of
           that
           of
           1.
           
           
             Ed.
             III.
          
           signifies
           nothing
           ,
           and
           consequently
           the
           Affirmance
           of
           the
           
             first
             Iudgment
          
           against
           the
           two
           Spencers
           is
           good
           notwithstanding
           that
           Repeal
           .
           And
           therefore
           that
           we
           may
           examine
           this
           matter
           to
           the
           bottom
           ,
           I
           shall
           set
           down
           the
           very
           words
           of
           the
           Authour
           of
           the
           Letter
           concerning
           it
           .
           Speaking
           of
           the
           Declaration
           made
           by
           the
           Lawyers
           in
           the
           10
           
             Ed.
             IV.
          
           concerning
           the
           Bishops
           making
           a
           Procurator
           in
           Capital
           Causes
           ,
           he
           hath
           these
           words
           :
           
           
             It
             is
             true
             ,
             here
             is
             mention
             made
             of
             their
             making
             a
             Proctor
             ,
             which
             was
          
           Error
           temporis
           ,
           
             the
             Errour
             of
             those
             times
             ,
             grounded
             
             upon
             what
             was
             so
             lately
             done
             ,
             (
             as
             they
             looked
             upon
             it
             )
             though
             irregularly
             done
             ,
             in
             the
             last
             Parlament
             of
             R.
             II.
             whom
             they
             consider'd
             as
             their
             lawfull
             King
             ;
             and
             in
             truth
             he
             was
             so
             ,
             the
             three
          
           Henry's
           
             that
             came
             between
             being
             but
             Vsurpers
             .
          
           And
           again
           ,
           speaking
           of
           the
           same
           business
           of
           a
           Proctor
           in
           the
           21
           
             R.
             II.
          
           he
           hath
           this
           remarkable
           passage
           :
           
           
             I
             have
             already
             shewed
             ,
             that
             this
             whole
             Parlament
             was
             repeal'd
             for
             the
             extravagant
             things
             that
             were
             done
             in
             it
             ,
             of
             which
             this
             was
             one
             .
             And
             therefore
             nothing
             that
             was
             then
             done
             can
             signifie
             any
             thing
             to
             a
             leading
             case
             any
             ways
             to
             be
             followed
             ;
             and
             this
             as
             little
             as
             any
             :
             except
             it
             could
             be
             made
             appear
             ,
             which
             I
             am
             confident
             it
             cannot
             ,
             that
             some
             Iudgment
             had
             been
             reversed
             upon
             that
             account
             ,
             because
             the
             Prelats
             were
             not
             present
             ,
             and
             had
             not
             given
             their
             assent
             to
             it
             .
          
        
         
           Now
           if
           I
           can
           make
           out
           these
           two
           things
           ,
           1.
           
           That
           the
           Parlament
           of
           
             R.
             II.
          
           was
           not
           legally
           repeal'd
           ;
           2.
           
           That
           the
           Iudgment
           against
           the
           two
           Spencers
           was
           revers'd
           ,
           and
           that
           the
           Repeal
           of
           that
           Reversal
           in
           1
           
             Ed.
             III.
          
           was
           revok'd
           in
           21
           
             R.
             II.
          
           upon
           this
           very
           account
           ,
           
             because
             the
             Prelats
             were
             not
             present
             ,
             and
             had
             not
             given
             their
             assent
             to
             it
          
           ;
           I
           hope
           the
           Authour
           of
           the
           Letter
           will
           be
           satisfy'd
           ,
           that
           
           both
           this
           Precedent
           ,
           and
           the
           Case
           of
           a
           Proctor
           ,
           are
           very
           significant
           in
           this
           Cause
           ;
           and
           that
           there
           is
           a
           great
           difference
           between
           being
           confident
           ,
           and
           certain
           of
           any
           thing
           .
        
         
           1.
           
           That
           the
           Parlament
           of
           21
           
             R.
             II.
          
           was
           not
           legally
           repeal'd
           .
           And
           for
           this
           I
           take
           the
           
           Authour
           's
           own
           acknowledgment
           ,
           that
           
             R.
             II.
             was
             in
             truth
             lawfull
             King
             ,
          
           and
           that
           
             H.
             IV.
          
           was
           but
           an
           Vsurper
           :
           Nay
           ,
           I
           add
           farther
           ,
           that
           
             R.
             II.
          
           was
           alive
           and
           in
           prison
           when
           
             H.
             IV.
          
           repeal'd
           the
           Parlament
           of
           21
           
             R.
             II.
          
           For
           so
           it
           is
           said
           in
           the
           very
           Act
           of
           Repeal
           ,
           that
           
             R.
             II.
             late
             King
             of
          
           England
           
             was
             pursued
             ,
             taken
             ,
             put
             in
             ward
             ,
             and
             
               yet
               remaineth
               in
               ward
            
             .
          
           And
           now
           I
           leave
           it
           to
           the
           Authour
           of
           the
           Letter
           ,
           whether
           a
           Parlament
           call'd
           by
           a
           lawfull
           King
           ,
           and
           the
           Acts
           of
           it
           ,
           ought
           to
           be
           deem'd
           legally
           repeal'd
           by
           a
           Parlament
           that
           was
           call'd
           by
           an
           Usurper
           ,
           and
           held
           whilst
           the
           lawfull
           King
           was
           alive
           ,
           and
           detain'd
           in
           prison
           .
        
         
           2.
           
           That
           the
           Iudgment
           against
           the
           two
           Spencers
           was
           revers'd
           ,
           and
           the
           Repeal
           of
           the
           Reversal
           of
           it
           in
           1
           
             Ed.
             III.
          
           revok'd
           in
           21
           
             R.
             II.
          
           and
           that
           upon
           this
           very
           account
           ,
           
             because
             the
             Prelats
             were
             not
             present
             ,
             and
             had
             not
             given
             their
             assent
             to
             it
          
           ;
           which
           the
           Authour
           of
           the
           Letter
           is
           
           
             confident
             cannot
             be
             made
             appear
          
           .
           
           That
           this
           Iudgment
           was
           reversed
           for
           this
           Reason
           I
           have
           already
           shewn
           ,
           viz.
           in
           the
           Parlament
           at
           
             York
             15
             Ed.
             II.
          
           And
           I
           shall
           now
           shew
           ,
           that
           the
           Repeal
           of
           that
           Reversal
           in
           1
           
             Edw.
             III.
          
           was
           revok'd
           in
           21
           
             R.
             II.
          
           and
           that
           upon
           the
           account
           mentioned
           .
           For
           in
           this
           Parlament
           
             Tho.
             le
             Despenser
          
           ,
           Earl
           of
           Gloucester
           ,
           exhibited
           
             two
             Bills
          
           ,
           in
           which
           he
           prayeth
           that
           the
           Revocation
           of
           the
           Exile
           of
           the
           two
           Spencers
           in
           15
           
             Ed.
             II.
          
           might
           be
           brought
           before
           the
           King
           and
           confirmed
           ,
           and
           that
           the
           Repeal
           of
           the
           same
           made
           in
           the
           1
           
             Ed.
             III.
          
           might
           be
           revoked
           .
           Of
           which
           Act
           of
           Repeal
           these
           Errours
           are
           assigned
           ,
           among
           others
           :
           
           
             because
             the
             Prelats
             ,
             
               who
               are
               Peers
               of
               the
               Realm
               ,
            
             did
             not
             assent
             to
             the
             Iudgment
          
           ;
           and
           
             because
             it
             was
             made
             onely
             by
             the
             Earls
             and
             Barons
             ,
             Peers
             of
             the
             Realm
             ,
          
           &c.
           and
           
             because
             it
             was
             made
             against
             the
             form
             of
             the
             Great
             Charter
             of
          
           England
           ,
           
             in
             which
             it
             is
             contain'd
             ,
             that
             no
             man
             shall
             be
             exil'd
             ,
             or
             otherwise
             destroyed
             ,
             but
             by
             the
             lawfull
             Iudgment
             of
             his
             Peers
             ,
             or
             by
             the
             Law
             of
             the
             Land.
          
           So
           that
           it
           seems
           it
           was
           look'd
           upon
           as
           a
           breach
           of
           the
           
             Great
             Charter
          
           ,
           for
           the
           Temporal
           Lords
           to
           condemn
           a
           Peer
           without
           the
           Assent
           of
           the
           Bishops
           ,
           and
           that
           such
           a
           Iudgment
           was
           
           not
           esteem'd
           
             a
             lawfull
             Iudgment
             by
             his
             Peers
             .
          
           And
           those
           Errours
           of
           the
           
             first
             Iudgment
          
           assign'd
           in
           the
           Revocation
           of
           it
           in
           15
           
             Ed.
             II.
          
           are
           allowed
           in
           this
           Parlament
           of
           21
           
             R.
             II.
          
           and
           that
           Revocation
           confirm'd
           ,
           and
           the
           Repeal
           of
           it
           in
           1
           
             Ed.
             III.
          
           revok'd
           upon
           the
           same
           account
           .
           I
           shall
           onely
           observe
           ,
           
           that
           in
           this
           Parlament
           (
           as
           before
           in
           15
           
             Ed.
             II.
          
           )
           the
           Bishops
           are
           declared
           to
           be
           
             Peers
             ;
             
               Peers
               of
               the
               Realm
            
             ,
             Rot.
             55.
             
             
               Peers
               in
               Parlament
            
             ,
             Rot.
          
           56.
           &
           61
           ;
           but
           most
           fully
           and
           distinctly
           in
           the
           Roll
           last
           cited
           ,
           
             Peers
             of
             the
             Realm
             in
             Parlament
             .
          
           Of
           which
           farther
           use
           may
           be
           made
           in
           the
           
             last
             Chapter
          
           concerning
           the
           
             Peerage
             of
             the
             Bishops
          
           .
        
         
           And
           now
           to
           sum
           up
           the
           force
           of
           this
           Precedent
           for
           the
           Iurisdiction
           of
           the
           Bishops
           in
           
             Cases
             of
             Treason
          
           .
           Here
           is
           a
           Reversal
           of
           a
           Iudgment
           ,
           because
           
             made
             without
             the
             Assent
             of
             the
             Prelats
             ,
          
           by
           the
           Parlament
           at
           York
           in
           15
           
             Ed.
             II.
          
           And
           whereas
           it
           is
           said
           this
           Reversal
           was
           repeal'd
           ,
           and
           the
           
             first
             Iudgment
             affirm'd
          
           in
           1
           
             Ed.
             III.
          
           I
           have
           shew'd
           ,
           that
           this
           was
           no
           
             legal
             Repeal
          
           ,
           because
           
             Ed.
             II.
          
           was
           alive
           ,
           and
           
             lawfull
             King
          
           ,
           (
           or
           else
           
             Ed.
             III.
          
           could
           never
           have
           been
           so
           )
           in
           the
           time
           of
           that
           first
           Parlament
           of
           
             Ed.
             III.
          
           and
           consequently
           
             Ed.
             III.
          
           at
           that
           time
           was
           an
           Usurper
           ,
           and
           the
           
           Proceedings
           of
           that
           Parlament
           null
           and
           void
           .
           So
           that
           the
           Reversal
           in
           15
           
             Ed.
             II.
          
           stands
           good
           ,
           notwithstanding
           the
           Repeal
           in
           1
           
             Ed.
             III.
          
           Besides
           that
           this
           Repeal
           (
           whatever
           it
           was
           )
           is
           solemnly
           revok'd
           in
           21
           
             R.
             II.
          
           And
           
             H.
             IV.
          
           who
           revers'd
           all
           the
           Proceedings
           of
           the
           Parlament
           of
           21
           
             R.
             II.
          
           during
           the
           life
           of
           
             R.
             II.
          
           is
           acknowledg'd
           by
           the
           Authour
           of
           the
           Letter
           to
           have
           been
           an
           Vsurper
           ,
           and
           
             R.
             II.
          
           to
           have
           been
           a
           
             lawfull
             King.
          
           And
           now
           I
           think
           that
           this
           Precedent
           hath
           all
           the
           advantage
           that
           can
           be
           ,
           and
           that
           the
           
             Iurisdiction
             of
             the
             Bishops
          
           in
           
             Cases
             of
             Treason
          
           could
           not
           have
           been
           asserted
           in
           a
           higher
           manner
           ,
           then
           to
           have
           a
           Iudgment
           in
           
             Case
             of
             Treason
          
           solemnly
           revers'd
           in
           two
           Parlaments
           for
           this
           very
           cause
           ,
           
             because
             the
             Bishops
             ,
             who
             are
             Peers
             ,
             assented
             not
             to
             it
             :
          
           And
           this
           Precedent
           own'd
           by
           the
           
             House
             of
             Commons
          
           ,
           in
           their
           Petition
           to
           have
           a
           
             Common
             Proctor
          
           appointed
           by
           the
           Clergy
           ,
           in
           this
           very
           Parlament
           of
           21
           
             R.
             II.
          
           as
           is
           acknowledg'd
           by
           the
           Authour
           of
           the
           Letter
           .
           
        
         
           To
           conclude
           this
           matter
           ;
           whether
           the
           Acts
           of
           Parlament
           which
           contain
           this
           declaration
           of
           the
           Peerage
           of
           Bishops
           ,
           and
           their
           
             Iurisdiction
             in
             Cases
             of
             Treason
          
           ,
           were
           sufficiently
           repeal'd
           or
           not
           ;
           this
           solemn
           
           Assertion
           of
           it
           in
           two
           several
           Parlaments
           ,
           together
           with
           the
           Petition
           of
           the
           Commons
           mentioned
           before
           ,
           are
           a
           most
           clear
           evidence
           ,
           that
           in
           the
           general
           Opinion
           of
           the
           
             King
             ,
             Lords
          
           ,
           and
           Commons
           ,
           this
           Iurisdiction
           did
           of
           right
           belong
           to
           the
           Bishops
           .
           And
           I
           am
           sure
           they
           are
           a
           Demonstration
           against
           the
           
             Authour
             of
             the
             Peerage
          
           his
           Assertion
           ,
           of
           a
           Negative
           
             Custome
             ,
             ancient
             as
             the
             Constitution
             of
             the
             Nation
             ,
          
           that
           
             Prelats
             should
             not
             exercise
             Iurisdiction
             in
             Capital
             Cases
             .
          
           For
           had
           this
           been
           a
           clear
           and
           undoubted
           Custom
           from
           the
           first
           original
           of
           this
           Nation
           ,
           it
           is
           morally
           impossible
           it
           could
           have
           entred
           into
           the
           minds
           of
           two
           Parlaments
           ,
           solemnly
           to
           have
           raised
           this
           doubt
           ,
           whether
           a
           Judgment
           given
           in
           a
           case
           of
           Treason
           by
           the
           Temporal
           Lords
           without
           the
           Assent
           of
           the
           Bishops
           were
           valid
           ,
           and
           to
           have
           determin'd
           that
           it
           was
           not
           ;
           when
           yet
           there
           was
           no
           manner
           of
           reason
           to
           imagine
           that
           the
           Bishops
           ever
           had
           any
           Jurisdiction
           in
           such
           Cases
           ,
           nay
           ,
           when
           there
           was
           an
           immemorial
           Custome
           and
           Usage
           to
           the
           contrary
           ,
           namely
           ,
           that
           the
           Temporal
           Lords
           had
           in
           all
           times
           exercised
           this
           Jurisdiction
           alone
           ,
           and
           the
           Bishops
           had
           been
           excluded
           from
           any
           share
           in
           it
           .
        
         
         
           And
           in
           the
           Apology
           of
           
             Adam
             D'Orleton
             ,
             Bishop
          
           of
           Hereford
           ,
           and
           after
           of
           Winchester
           ,
           for
           his
           imprisoning
           
             R.
             de
             Baldock
          
           ,
           a
           great
           Confident
           of
           Hugh
           Despencer's
           ,
           he
           declares
           ,
           that
           the
           reason
           why
           he
           was
           carried
           to
           Newgate
           was
           through
           the
           violence
           of
           the
           People
           ;
           although
           ,
           saith
           he
           ,
           the
           Parlament
           then
           sitting
           ,
           there
           was
           no
           cause
           of
           fear
           but
           Justice
           would
           be
           done
           .
           His
           words
           are
           ,
           
             Domino
             Rege
             ,
             Praelatis
             ,
             Comitibus
             ,
             ac
             aliis
             terrae
             Optimatibus
             Lundoniae
             tunc
             congregatis
             &
             praesentibus
             ,
             pro
             Iustitia
             ibidem
             in
             Parlamento
             convocatis
             omnibus
             exhibenda
             .
          
           Which
           shews
           that
           the
           Prelats
           then
           did
           sit
           in
           matters
           of
           Justice
           in
           the
           House
           of
           Lords
           ,
           and
           in
           
             Cases
             Capital
          
           ;
           for
           this
           
             R.
             de
             Baldock
          
           was
           arraigned
           at
           Hereford
           for
           the
           same
           Crimes
           that
           
             Hugh
             Despencer
          
           was
           .
        
         
           But
           the
           main
           strength
           of
           the
           Cause
           is
           supposed
           to
           lie
           in
           the
           Precedents
           produced
           out
           of
           the
           
             Rolls
             of
             Parlament
          
           from
           the
           4
           
             Edw.
             III.
          
           to
           the
           38
           
             H.
             VI.
          
           The
           force
           of
           these
           Precedents
           will
           be
           better
           understood
           ,
           if
           we
           consider
           these
           things
           .
        
         
           
             I.
             That
             many
             of
             them
             are
             meer
             Negative
             Testimonies
             .
             So
          
           4
           Edw.
           III.
           
             at
             the
             Trial
             of
          
           Roger
           Mortimer
           ,
           
           
             it
             is
             said
             ,
             the
          
           Earls
           ,
           Barons
           and
           Peers
           of
           the
           Realm
           were
           present
           ,
           therefore
           the
           Bishops
           were
           not
           ▪
           
           5
           Edw.
           III.
           onely
           the
           Great
           ones
           returned
           ,
           
           therefore
           the
           Bishops
           did
           not
           .
           
             So
             in
             the
             Case
             of
             Sir
          
           Iohn
           Grey
           .
           
             From
             whence
             he
             inferrs
          
           ,
           that
           the
           Bishops
           were
           not
           to
           Iudge
           so
           much
           as
           of
           a
           Battery
           .
           
           25
           Edw.
           III.
           
             in
             Sir
          
           William
           Thorp's
           Case
           ,
           the
           Grantz
           de
           Parlament
           were
           asked
           their
           advice
           ,
           therefore
           not
           the
           Bishops
           .
           
           1
           R.
           II.
           
             in
             the
             Case
             of
          
           Weston
           and
           Gomenitz
           ,
           the
           Bishops
           not
           mention'd
           ;
           but
           other
           Lords
           ,
           Barons
           and
           Bannerets
           .
           
           Sir
           Ralph
           de
           Ferrer's
           
             Case
             4
          
           R.
           II.
           the
           Bishops
           not
           present
           ,
           because
           not
           comprised
           under
           les
           Seigneurs
           de
           Parlament
           .
           
             The
             like
             in
             Sir
          
           Iohn
           Oldcastle
           '
           
             s
             Case
             5
          
           H.
           V.
           
           The
           Question
           ,
           
             he
             saith
             ,
             is
          
           ,
           whether
           Bishops
           be
           comprehended
           under
           les
           Seigneurs
           de
           cest
           present
           Parlament
           .
           
             In
             the
          
           Earl
           of
           Devonshire
           '
           
             s
             Case
          
           31
           H.
           VI.
           
             the
             strength
             lies
             in
             this
          
           ,
           
           that
           the
           Peers
           are
           onely
           mention'd
           ;
           and
           he
           supposes
           no
           man
           will
           say
           ,
           the
           Bishops
           were
           his
           Peers
           or
           Lords
           of
           the
           Realm
           .
           
             So
             that
             here
             are
             Eight
          
           Precedents
           ,
           
             that
             are
             no
             more
             then
          
           Negative
           Testimonies
           :
           
             concerning
             which
             in
             general
          
           ,
           
           the
           Authour
           of
           the
           Iurisdiction
           of
           the
           House
           of
           Peers
           asserted
           
             hath
             a
             good
             observation
             ;
             viz.
          
           That
           one
           ,
           or
           two
           ,
           or
           twenty
           Precedents
           in
           the
           Negative
           ,
           nay
           ,
           I
           say
           more
           ,
           were
           the
           number
           equal
           as
           many
           in
           the
           Negative
           as
           in
           the
           Affirmative
           ,
           yet
           
           it
           could
           not
           disprove
           their
           Iurisdiction
           :
           it
           would
           onely
           shew
           ,
           their
           Lordships
           were
           free
           Agents
           ,
           to
           doe
           it
           ,
           or
           not
           to
           doe
           it
           ,
           as
           they
           saw
           Cause
           ;
           but
           their
           Iurisdiction
           remained
           entire
           still
           ,
           to
           doe
           it
           whensoever
           they
           would
           .
           
             So
             I
             say
             here
             ;
             supposing
             that
             the
          
           Spiritual
           Lords
           
             were
             not
             present
             in
             these
             Cases
             ,
             it
             onely
             shews
             ,
             that
             they
             were
          
           free
           Agents
           ,
           
             and
             might
             withdraw
             at
             some
             times
             ,
             and
             be
             present
             at
             others
             :
             which
             cannot
             overthrow
             their
          
           Right
           ,
           
             for
             these
             Reasons
          
           .
        
         
           (
           1.
           )
           Several
           of
           his
           
             Negative
             Precedents
          
           ,
           if
           they
           prove
           any
           thing
           ,
           prove
           the
           Bishops
           were
           not
           there
           ,
           when
           he
           confesses
           they
           might
           have
           been
           there
           .
           As
           ,
        
         
           1.
           
           In
           Cases
           of
           Misdemeanours
           .
           At
           the
           Trial
           of
           Sir
           
             Iohn
             de
             Lee
          
           ,
           
           42
           
             Ed.
             III.
          
           being
           charged
           with
           several
           Misdemeanours
           ,
           the
           Record
           saith
           ,
           
             the
             Prelats
             were
             present
             .
             50
             Edw.
             III.
          
           
           Several
           persons
           were
           accused
           by
           the
           Commons
           for
           Misdemeanours
           ,
           and
           the
           Bishops
           he
           confesseth
           were
           present
           ;
           as
           
             Rich
             ,
             Lions
             ,
             Iohn
             Lord
             Latimer
             ,
             William
             Ellis
             ,
             Iohn
             Peecher
             ,
             Lord
             Iohn
             Nevil
             :
          
           at
           all
           these
           
             Trials
             the
             Bishops
          
           ,
           saith
           he
           ,
           
             were
             present
             ;
             and
             no
             body
             says
             but
             they
             might
             .
          
           So
           in
           the
           Case
           of
           
             Alice
             Perrers
          
           ,
           
           50
           
             Edw.
             III.
          
           the
           Record
           saith
           ,
           the
           
             Prelats
             were
             present
             ,
             and
             gave
             
             Iudgment
          
           as
           to
           Banishment
           ,
           and
           Forfeiture
           of
           her
           Estate
           .
           
           10
           
             R.
             II.
             Mich.
             de
             la
             Pool
             ,
             Lord
             Chancellour
             ,
          
           was
           accused
           by
           the
           Commons
           for
           several
           Misdemeanours
           before
           the
           
             King
             ,
             Prelats
          
           ,
           and
           the
           Lords
           .
           Here
           he
           yields
           the
           Prelats
           were
           Iudges
           of
           Misdemeanours
           together
           with
           other
           Lords
           .
           And
           yet
           if
           several
           of
           his
           
             Negative
             Precedents
          
           do
           prove
           any
           thing
           ,
           they
           prove
           too
           much
           ,
           
             viz.
             that
             the
             Bishops
             ought
             not
             to
             be
             present
             at
             the
             Trial
             of
             Misdemeanours
             :
             For
             ,
          
           he
           saith
           ,
           
             the
             Bishops
             were
             not
             present
             at
             the
             Trial
             of
             Weston
             and
             Gomenitz
             ,
             1
             R.
             II.
             nor
             at
             the
             Trial
             of
             the
             Bishop
             of
             Norwich
             7
             R.
             II.
          
           nor
           at
           such
           Iudgments
           as
           that
           of
           Sir
           
             William
             de
             Thorp
             25
             Edw.
             III.
          
           
           
             who
             was
             condemned
             for
             Bribery
          
           :
           and
           yet
           he
           yields
           they
           were
           at
           the
           Trial
           of
           
             Mich.
             de
             la
             Pool
             10
             R.
             II.
          
           But
           if
           they
           ought
           not
           to
           be
           present
           at
           those
           of
           25
           
             Ed.
             III.
          
           and
           1
           
             R.
             II.
          
           and
           7
           
             R.
             II.
          
           neither
           ought
           they
           to
           have
           been
           present
           at
           the
           Trial
           of
           
             Mich.
             de
             la
             Pool
          
           .
           Either
           therefore
           his
           argument
           doth
           not
           prove
           they
           were
           not
           present
           at
           the
           former
           ,
           being
           onely
           from
           
             general
             words
          
           ;
           or
           they
           ought
           not
           to
           have
           been
           present
           at
           the
           latter
           ,
           which
           he
           confesses
           they
           were
           .
           This
           will
           best
           appear
           by
           comparing
           the
           Cases
           together
           .
           1
           
             R.
             II.
          
           the
           Commons
           
           deliver
           in
           a
           Schedule
           to
           the
           Lords
           of
           their
           Demands
           ,
           before
           they
           would
           proceed
           to
           a
           Subsidy
           ;
           among
           which
           one
           was
           ,
           
             That
             all
             such
             who
             without
             cause
             had
             lost
             or
             given
             up
             any
             Castle
             ,
             or
             Town
             ,
             or
             Fortress
             ,
             to
             the
             dishonour
             of
             the
             King
             ,
             or
             dammage
             of
             the
             People
             ,
             may
             be
             put
             to
             their
             Answer
             before
             the
             Lords
             and
             Commons
             that
             Parlament
             .
          
           Here
           was
           no
           particular
           Impeachment
           of
           these
           Persons
           ;
           but
           upon
           this
           the
           Lords
           sent
           for
           these
           two
           Persons
           who
           were
           Prisoners
           in
           the
           Tower
           upon
           this
           account
           ;
           and
           the
           Charge
           against
           them
           was
           ,
           delivering
           two
           Towns
           in
           Flanders
           without
           Commission
           .
           Weston
           made
           a
           long
           and
           plausible
           Defence
           ,
           to
           which
           no
           Answer
           was
           given
           ;
           yet
           both
           were
           condemned
           to
           die
           .
           
           The
           Bishop
           of
           
             Norwich
             was
             charged
             with
             several
             Miscarriages
          
           and
           Misdemeanours
           ,
           saith
           he
           :
           why
           might
           not
           the
           Bishops
           be
           present
           at
           this
           Trial
           ?
           To
           that
           he
           saith
           ,
           
             he
             was
             charged
             with
             one
             Capital
             Crime
             ,
          
           viz.
           betraying
           Graveling
           
             to
             the
             French
          
           :
           but
           he
           confesseth
           ,
           
             he
             cleared
             himself
             of
             this
             ,
             before
             they
             came
             to
             Iudgment
             :
          
           and
           yet
           he
           would
           have
           the
           Bishops
           excluded
           at
           this
           Iudgment
           ;
           and
           that
           of
           Sir
           
             William
             Elmham
          
           ,
           Sir
           
             Thomas
             Trivet
          
           ,
           and
           others
           ;
           but
           confesses
           they
           were
           present
           at
           the
           Trial
           and
           
             Iudgment
             of
             Mich.
             
             de
             la
             Pool
             .
          
           Let
           us
           then
           see
           ,
           what
           kind
           of
           Trial
           this
           was
           .
           He
           was
           impeached
           in
           the
           name
           of
           the
           
             Commons
             of
             England
          
           ,
           and
           6
           Articles
           were
           exhibited
           against
           him
           .
           The
           main
           were
           ,
           
             concerning
             defrauding
             the
             King
             ,
             and
             misimploying
             the
             Aids
             granted
             to
             the
             King
             last
             Parlament
             ,
             whereby
             much
             mischief
             happen'd
             to
             the
             Kingdom
             :
          
           as
           may
           appear
           by
           the
           Rolls
           ,
           and
           the
           Articles
           printed
           in
           Knighton
           .
           
           Upon
           these
           Articles
           ,
           the
           Record
           saith
           that
           the
           Commons
           prayed
           
             that
             Iudgment
             of
             Death
             might
             pass
             upon
             him
             ,
             as
             it
             did
             upon
             Sir
          
           William
           de
           Thorp
           
             for
             receiving
             20
             li.
             by
             way
             of
             Bribery
             .
          
           And
           yet
           this
           Iudgment
           of
           Sir
           
             William
             de
             Thorp
          
           is
           one
           of
           the
           Precedents
           against
           the
           Bishops
           being
           present
           ;
           when
           he
           allows
           that
           they
           were
           present
           at
           the
           whole
           Trial
           of
           this
           
             Mich.
             de
             la
             Pool
          
           ,
           when
           a
           great
           
             Minister
             of
             State
          
           was
           so
           hotly
           charged
           by
           the
           Commons
           ,
           for
           offences
           of
           so
           great
           a
           nature
           ,
           and
           which
           in
           their
           Judgment
           
             deserved
             no
             less
             then
             Death
          
           .
           From
           whence
           it
           follows
           ,
           by
           his
           own
           confession
           ,
           that
           the
           Bishops
           may
           be
           present
           ,
           when
           the
           Ministers
           of
           State
           are
           impeached
           by
           the
           Commons
           of
           such
           Crimes
           which
           in
           their
           Iudgment
           deserve
           no
           less
           then
           Death
           .
        
         
         
           2.
           
           In
           Acts
           of
           Attainder
           ,
           when
           the
           Houses
           proceed
           in
           a
           
             Legislative
             way
          
           ,
           he
           grants
           
             the
             Bishops
             may
             be
             present
          
           ;
           and
           yet
           if
           some
           of
           his
           Precedents
           signifie
           any
           thing
           ,
           they
           prove
           they
           ought
           not
           to
           be
           present
           at
           the
           passing
           of
           them
           .
           As
           ,
        
         
           1.
           
           In
           the
           Case
           of
           
             Roger
             Mortimer
          
           and
           others
           accused
           and
           tried
           in
           Parlament
           4
           
             Ed.
             III.
          
           He
           confesseth
           the
           Roll
           cannot
           be
           read
           ,
           
           and
           therefore
           referrs
           to
           28
           
             Ed.
             III.
          
           where
           
             Roger
             of
             Wigmore
          
           desires
           
             that
             the
             Attainder
             may
             be
             examin'd
             :
          
           which
           was
           reversed
           by
           Act
           of
           Parlament
           ,
           and
           therefore
           we
           may
           justly
           suppose
           the
           Iudgment
           given
           against
           him
           was
           ratified
           in
           Parlament
           .
           
           And
           some
           of
           our
           Historians
           say
           ,
           he
           was
           condemned
           
             judicio
             Parlamenti
          
           .
           And
           in
           the
           Petition
           of
           
             Roger
             Wigmore
          
           ,
           he
           prays
           
             that
             the
             said
             Statute
             and
             Iudgment
             may
             be
             reversed
             and
             annulled
             .
          
           If
           therefore
           the
           Prelats
           could
           not
           be
           present
           here
           ,
           then
           they
           are
           not
           to
           be
           present
           in
           the
           
             Legislative
             way
          
           :
           If
           they
           were
           present
           in
           Acts
           of
           Attainder
           ,
           then
           this
           general
           Negative
           way
           of
           arguing
           proves
           nothing
           ;
           for
           then
           the
           Bishops
           were
           comprehended
           under
           the
           name
           of
           Peers
           :
           which
           ,
           without
           any
           Reason
           ,
           he
           saith
           ,
           
             the
             Bishops
             cannot
             pretend
             to
             be
          
           ;
           when
           it
           is
           notorious
           that
           they
           challenged
           it
           in
           
             Parlament
             
             11
             R.
             II.
          
           and
           it
           was
           then
           allowed
           ,
           as
           well
           as
           their
           Protestation
           .
        
         
           2.
           
           
             In
             the
             case
             of
             the
             Murther
             of
          
           Iohn
           Imperial
           ,
           
           3
           R.
           II.
           an
           Act
           of
           Parlament
           passed
           to
           make
           it
           Treason
           :
           
             and
             he
             proves
          
           the
           Bishops
           had
           no
           Vote
           in
           it
           ,
           nor
           were
           present
           at
           the
           preparing
           it
           .
           
             And
             yet
             he
             confesses
          
           ,
           
           that
           the
           Bishops
           have
           a
           right
           to
           sit
           in
           all
           Acts
           of
           Attainder
           ,
           because
           they
           sit
           then
           in
           their
           Legislative
           capacity
           .
           
             Therefore
             these
          
           Negative
           Precedents
           
             prove
             nothing
          
           .
        
         
           (
           2.
           )
           The
           insufficiency
           of
           these
           
             Negative
             Precedents
          
           appears
           by
           this
           ,
           that
           we
           can
           make
           it
           appear
           by
           good
           Testimonies
           ,
           that
           the
           Bishops
           have
           been
           often
           comprehended
           under
           the
           general
           Titles
           of
           
             Grantz
             ,
             Peers
          
           ,
           and
           
             Lords
             of
             Parlament
          
           ,
           without
           any
           express
           mention
           made
           of
           them
           .
        
         
           And
           because
           the
           great
           force
           of
           many
           of
           his
           Testimonies
           lies
           wholly
           in
           this
           ,
           that
           the
           Bishops
           are
           not
           comprehended
           under
           the
           names
           of
           
             Grantz
             ,
             Seigneurs
          
           ,
           and
           Peers
           ,
           I
           shall
           endeavour
           to
           make
           it
           clear
           beyond
           exception
           ,
           that
           if
           the
           Precedents
           must
           be
           determined
           by
           the
           general
           words
           ,
           all
           the
           advantage
           lies
           on
           the
           Bishops
           side
           .
        
         
           It
           is
           certain
           that
           in
           elder
           times
           the
           
           
             Baronagium
             Anglie
          
           did
           take
           in
           all
           the
           Lords
           of
           Parlament
           ,
           both
           Spiritual
           and
           Temporal
           .
           But
           I
           betake
           my self
           to
           the
           expressions
           used
           in
           the
           Records
           ;
           and
           because
           the
           matter
           of
           the
           debate
           is
           confined
           within
           the
           times
           of
           
             Ed.
             II.
          
           and
           IV.
           I
           shall
           take
           notice
           of
           the
           language
           of
           Parlament
           within
           that
           time
           ;
           reserving
           that
           of
           their
           Peerage
           to
           the
           proper
           place
           for
           it
           .
        
         
           
             I
             begin
             ,
             as
             the
          
           Authour
           
             of
             the
          
           Letter
           
             doth
             ,
             with
          
           4
           Edw.
           III.
           
             and
             in
             that
             year
          
           n.
           6.
           
             the
             Record
             runs
             thus
             ;
             
               Et
               est
               assentu
               &
               accorde
               per
               nostre
               Seigneur
               le
               Roi
               ,
               &
               tout
               le
               Grantz
               en
               plcyn
               Parlement
               :
               where
               a
               Law
               was
               passed
               concerning
               Trial
               by
            
             Peers
             ;
             
               and
               in
               the
               passing
               of
               a
               Law
               our
               Authour
               allows
            
             the
             Bishops
             to
             be
             present
             .
             
               But
               it
               is
               more
               plain
            
             n.
             12.
             
             
               Accorde
               per
               nostre
               Seigneur
               le
               Roi
               ,
               &
               les
               Grantz
               de
               mesinme
               le
               Parlement
            
             It
             is
             agreed
             by
             the
             King
             ,
             and
             the
             Great
             ones
             in
             Parlament
             .
             
               But
               that
               the
            
             Bishops
             
               are
               comprehended
               under
               theseGrantzis
               evident
               ;
               for
               it
               is
               there
               said
               ,
            
             that
             the
             Petitions
             of
             Edmund
             Earl
             of
             Kent
             and
             Margaret
             Countess
             of
             Kent
             ,
             
               to
               which
               that
               Agreement
               referrs
            
             ,
             were
             read
             before
             the
             King
             ,
             the
             Prelats
             ,
             the
             Counts
             ,
             the
             Barons
             ,
             and
             other
             Grantz
             of
             the
             Parlament
             .
             
               In
               the
               same
               year
            
             ,
             n.
             14.
             
               we
               meet
               with
               
                 les
                 Preres
                 des
                 Prielatz
                 &
                 
                 autres
                 Grantz
              
            
             ,
             the
             Petition
             of
             the
             Bishops
             and
             other
             Great
             men
             :
             
               and
               then
               it
               follows
               ,
               
                 Nostre
                 Seigneur
                 le
                 Roi
                 en
                 pleyn
                 Parlement
                 ,
                 per
                 assent
                 ,
                 accord
                 ,
                 prieres
                 &
                 conseal
                 des
                 ditz
                 Prelatz
                 &
                 autres
                 Grantz
              
            
             Our
             Lord
             the
             King
             in
             full
             Parlament
             ,
             by
             the
             assent
             ,
             accord
             ,
             petition
             and
             advice
             of
             the
             said
             Prelats
             and
             other
             
               Grantz
               .
               Which
               shews
               that
               they
               are
               some
               of
               the
               Grantz
               of
               Parlament
               .
            
          
           ;
           ;
        
         
           5
           
             Ed.
             III.
             n.
             3.
             
             Touz
             les
             Prelatz
             &
             autres
             Grantz
             :
             n.
             13.
             
             Grantz
          
           in
           general
           is
           used
           in
           the
           Debate
           between
           the
           Abbot
           of
           Crowland
           and
           Sir
           
             Thomas
             Wake
          
           :
           and
           
             n.
             15.
             le
             Roi
             &
             as
             autres
             Grantz
             en
             pleyn
             Parlement
             :
             n.
             16.
             
             Item
             fu
             accorde
             per
             le
             Roi
             &
             touz
             le
             Grantz
             en
             mesme
             le
             Parlement
             ,
             auxibien
             per
             Prelatz
             come
             per
             autres
             ;
             It
             was
             agreed
             by
             the
             King
             and
             the
             Great
             men
             of
             the
             Parlament
             ,
             as
             well
             by
             the
             Prelats
             as
             others
             .
          
           Nothing
           can
           be
           plainer
           then
           that
           here
           the
           Bishops
           are
           called
           Grantz
           ,
           as
           well
           as
           the
           other
           Lords
           of
           Parlament
           .
        
         
           6
           
             Ed.
             III.
             n.
             1.
             
             Devant
             nostre
             Seigneur
             le
             Roi
             ,
             &
             touz
             le
             Prelatz
             ,
             &
             autres
             Grantz
             :
             The
             Articles
             were
             read
             before
             the
             King
             ,
             the
             Prelats
             ,
             and
             other
             Great
             men
             .
          
           If
           the
           Bishops
           had
           not
           been
           comprehended
           under
           Grantz
           ,
           the
           Record
           would
           
           have
           onely
           used
           Grantz
           ,
           and
           not
           
             autres
             Grantz
          
           .
           But
           the
           same
           expression
           is
           again
           used
           n.
           5.
           
           In
           the
           second
           part
           of
           the
           Rolls
           of
           that
           year
           ,
           n.
           1.
           we
           find
           three
           several
           ways
           of
           expressing
           the
           Persons
           then
           present
           :
           the
           first
           ,
           
             les
             Prelatz
             ,
             Countes
             ,
             Baronns
             ,
             &
             autres
             Grantz
             du
             Parlement
          
           ;
           the
           next
           is
           ,
           
             queux
             Prelatz
             ,
             &
             autres
             Grantz
          
           ;
           the
           third
           is
           ,
           
             touz
             le
             Grantz
             en
             mesme
             le
             Parlement
             :
          
           and
           all
           these
           are
           used
           to
           express
           the
           same
           Persons
           .
           And
           again
           
             n.
             3.
             touz
             les
             Grantz
             du
             dit
             Parlement
          
           ;
           which
           are
           there
           opposed
           to
           
             Chivalers
             des
             Countez
          
           ;
           and
           are
           more
           distinctly
           mention'd
           before
           in
           these
           words
           ,
           
             les
             ditz
             Prelatz
             ,
             Countes
             ,
             Barouns
             ,
             &
             autres
             Grantz
             ,
             &
             les
             Chivalers
             des
             Countes
             ,
             &
             tote
             la
             Conumune
             .
          
           Sometimes
           the
           Grantz
           are
           taken
           in
           general
           ,
           for
           all
           of
           the
           House
           of
           Peers
           ;
           and
           the
           Commons
           for
           the
           Lower
           House
           .
           So
           21
           Ed.
           III.
           
             n.
             63.
             il
             assentuz
             per
             lui
             ,
             les
             Grantz
             ,
             &
             la
             dit
             Comunalte
             a
             son
             Parlement
             :
          
           and
           again
           ,
           
             ditz
             Grantz
             &
             de
             tote
             la
             Com̄e
             susditz
             :
          
           and
           ,
           
             le
             Roi
             per
             assent
             des
             Grantz
             commanda
             a
             la
             ditz
             Com̄e
             .
          
           From
           these
           examples
           ,
           and
           many
           more
           which
           might
           ,
           if
           it
           were
           needfull
           ,
           be
           produced
           ,
           it
           evidently
           appears
           that
           the
           Bishops
           were
           Grantz
           in
           Parlament
           ,
           
           according
           to
           the
           language
           of
           that
           Time
           :
           and
           therefore
           the
           Precedents
           produced
           wherein
           onely
           the
           Grantz
           are
           mention'd
           ,
           are
           of
           no
           force
           at
           all
           against
           the
           Presence
           of
           the
           Bishops
           .
           And
           that
           Assertion
           of
           the
           Authour
           of
           the
           Peerage
           ,
           
           &c.
           appears
           to
           be
           without
           any
           ground
           ,
           
             viz.
             that
             the
             Bishops
             are
             never
             spoken
             of
             in
             any
             Record
             but
             by
             the
             name
             of
             Bishops
             or
             Prelats
             ,
             or
             some
             such
             name
             ,
             to
             distinguish
             them
             from
             the
             Laiety
             .
          
           These
           general
           Negatives
           are
           very
           bold
           and
           dangerous
           things
           ;
           and
           one
           Affirmative
           overthrows
           them
           .
           But
           I
           have
           produced
           many
           Instances
           to
           the
           contrary
           ,
           and
           might
           do
           many
           more
           .
           Such
           men
           who
           dare
           venture
           upon
           such
           bold
           Sayings
           ,
           must
           be
           presumed
           to
           have
           read
           over
           all
           the
           Records
           themselves
           ;
           and
           must
           presume
           that
           none
           else
           ever
           so
           much
           as
           looked
           into
           them
           .
           But
           that
           Authour
           discovers
           too
           much
           his
           Second-hand
           Learning
           in
           these
           matters
           ;
           and
           we
           might
           have
           wanted
           several
           of
           his
           Precedents
           ,
           had
           it
           not
           been
           for
           Mr.
           
             Selden's
             Baronage
          
           .
        
         
           As
           to
           the
           Title
           of
           
             Seigneurs
             du
             Parlament
          
           ,
           
           being
           common
           to
           the
           Bishops
           ,
           I
           am
           prevented
           by
           another
           hand
           .
        
         
           
             I
             shall
             onely
             adde
             two
             Precedents
             more
             ,
             not
             taken
             notice
             of
             by
             others
             .
             The
             one
          
           7
           R.
           II.
           
             The
             Answer
             of
          
           Mich.
           de
           la
           
           Pole
           
             is
             said
             to
             becoram
             Magnatibus
             &
             Communitate
             in
             Parlamento
             ;
             where
             the
          
           Authour
           
             of
             the
          
           Letter
           confesseth
           the
           Bishops
           were
           present
           ,
           
             and
             therefore
             comprehended
             under
             theMagnates
             .
             The
             other
          
           15
           H.
           VI.
           One
           Philipps
           complained
           against
           the
           Bishop
           of
           London
           to
           the
           House
           of
           Commons
           :
           they
           sent
           the
           Complaint
           up
           to
           the
           Lords
           :
           the
           Bishop
           asks
           the
           Advice
           of
           the
           House
           ;
           who
           gave
           this
           Answer
           ,
           
             Non
             consentancum
             fuit
             aliquem
             Procerum
             alicui
             in
             eo
             loco
             responsurum
             .
             Which
             had
             signified
             nothing
             ,
             if
             the
             Bishops
             had
             not
             been
             allowed
             to
             be
          
           Proceres
           Regni
           .
           
             So
             much
             for
             his
          
           Negative
           Precedents
           .
        
         
           II.
           Some
           of
           his
           Precedents
           were
           condemned
           in
           Parlament
           to
           be
           irregular
           and
           erroneous
           in
           other
           respects
           ;
           and
           therefore
           it
           is
           no
           wonder
           if
           they
           should
           be
           so
           in
           this
           .
        
         
           1.
           
           The
           Iudgment
           upon
           
             Roger
             Mortimer
          
           ,
           Earl
           of
           
             March
             ,
             4
             Ed.
          
           III.
           was
           reversed
           in
           Parlament
           28
           
             Ed.
             III
          
           as
           
             defective
             and
             erroneous
          
           in
           all
           points
           ;
           being
           without
           any
           
             Proof
             or
             Witnesses
          
           ,
           or
           bringing
           the
           
             Person
             to
             answer
             for
             himself
          
           .
           And
           therefore
           it
           was
           an
           Honour
           for
           the
           Bishops
           not
           to
           be
           present
           .
        
         
           2.
           
           The
           Iudgment
           upon
           Haxey
           ,
           
           20
           R.
           II.
           
             is
             confessed
             by
             the
          
           Authour
           
             to
             be
          
           
           most
           unjust
           ,
           and
           would
           not
           onely
           have
           shaken
           ,
           but
           wholly
           destroyed
           the
           very
           foundation
           of
           Parlament
           ;
           and
           reversed
           1
           H.
           IV.
           as
           against
           Right
           and
           Course
           of
           Parlaments
           .
           
             And
             he
             confesseth
          
           the
           Bishops
           were
           present
           at
           condemning
           it
           ,
           but
           not
           at
           passing
           it
           .
           
             Which
             also
             makes
             much
             for
             their
             Honour
             .
          
        
         
           III.
           Some
           of
           his
           Precedents
           prove
           that
           when
           the
           Bishops
           did
           withdraw
           ,
           they
           did
           it
           voluntarily
           ,
           and
           took
           care
           to
           preserve
           their
           Right
           ,
           either
           by
           Protestation
           ,
           or
           appointing
           a
           Proxy
           .
        
         
           [
           1.
           ]
           
             That
             they
             withdrew
          
           voluntarily
           .
           So
           5
           Ed.
           III.
           
             it
             is
             said
          
           ,
           
           that
           the
           Bishops
           did
           withdraw
           at
           that
           time
           ,
           being
           of
           opinion
           that
           it
           did
           not
           properly
           belong
           to
           them
           to
           give
           Counsel
           about
           keeping
           the
           Peace
           ,
           and
           punishing
           of
           Malefactours
           :
           
             and
             so
             ,
             saith
             he
          
           ,
           they
           went
           away
           by
           themselves
           ,
           and
           returned
           no
           more
           .
           
             But
             although
             this
             proves
             nothing
             but
             a
          
           voluntary
           Act
           
             of
             the
          
           Bishops
           in
           withdrawing
           ;
           
             yet
             the
             representation
             made
             of
             this
             matter
             is
             so
             partial
             ,
             and
             different
             from
             the
          
           Record
           ,
           
             that
             I
             cannot
             but
             take
             a
             little
             more
             notice
             of
             it
             .
          
        
         
           1.
           
           He
           saith
           ,
           
             that
             the
             Prelats
             being
             of
             opinion
             that
             it
             belonged
             not
             properly
             to
             them
             to
             give
             Counsel
             about
             keeping
             the
             Peace
             ,
             or
             punishing
             such
             evils
             ,
             they
             went
             away
             by
             
             themselves
             ,
             and
             returned
             no
             more
             .
          
           Thereby
           insinuating
           ,
           that
           they
           looked
           on
           this
           matter
           as
           wholly
           unfit
           for
           them
           to
           meddle
           in
           ,
           and
           thereupon
           left
           the
           House
           .
           Whereas
           the
           words
           of
           the
           Record
           are
           ,
           
             Si
             alerent
             mesmes
             les
             Prelatz
             &
             les
             Procurators
             de
             la
             Clergie
             per
             eux
             mesmes
             a
             conseiler
             de
             choses
             susdites
             ,
             &
             les
             ditz
             Countes
             ,
             Barons
             &
             autres
             Grantz
             per
             eux
             mesmes
             :
             So
             the
             Prelats
             and
             Proctors
             of
             the
             Clergy
             went
             by
             themselves
             toconsult
             about
             the
             aforesaid
             matters
             ,
             and
             the
             Earls
             ,
             Barons
             and
             other
             Great
             men
             by
             themselves
             .
          
           So
           that
           this
           withdrawing
           was
           but
           into
           several
           Committees
           ,
           as
           was
           usual
           at
           that
           time
           ,
           by
           which
           the
           sense
           of
           the
           3
           Estates
           was
           best
           understood
           ;
           and
           then
           they
           met
           together
           ,
           and
           agreed
           upon
           what
           was
           fit
           to
           be
           made
           a
           Law.
           This
           appears
           by
           6
           
             Edw.
             III
             A
             quen
             jour
             de
             Ioedi
             eu
             ont
             trete
             &
             deliberation
             ,
             cest
             assavoir
             les
             ditz
             Prelats
             per
             eux
             mesmes
             ,
             &
             les
             ditz
             Countes
             ,
             Barons
             ,
             &
             autres
             Grantz
             ,
             per
             eux
             mesmes
             ;
             &
             auxint
             les
             Chivalers
             des
             Countes
             per
             eux
             mesmes
             :
             Upon
             which
             Thursday
             they
             enter'd
             upon
             debate
             ,
          
           (
           concerning
           the
           News
           from
           
             Scotland
             )
             the
             Prelats
             by
             themselves
             ,
             the
             Lords
             and
             other
             Great
             men
             by
             themselves
             ;
             and
             so
             the
             
             Knights
             of
             Counties
             by
             themselves
             .
          
           The
           Houses
           being
           then
           not
           wholly
           separate
           ,
           nor
           always
           together
           ;
           but
           dividing
           into
           Committees
           ,
           and
           not
           into
           Houses
           ,
           as
           occasion
           required
           ;
           and
           then
           joyning
           together
           to
           express
           their
           common
           Sense
           .
           So
           40
           
             Ed.
             III.
          
           when
           the
           occasion
           of
           their
           meeting
           was
           deliver'd
           ,
           which
           was
           an
           extraordinary
           message
           from
           Rome
           ,
           the
           Pope
           sending
           for
           Tribute
           and
           Homage
           ,
           it
           is
           said
           ,
           
             the
             Bishops
             went
             by
             themselves
             ,
             and
             the
             other
             Lords
             by
             themselves
             ,
             and
             the
             Commons
             by
             themselves
          
           ;
           and
           then
           met
           together
           ,
           and
           declared
           their
           unanimous
           resolution
           to
           oppose
           to
           the
           uttermost
           any
           such
           Demand
           .
           Such
           a
           withdrawing
           of
           the
           Bishops
           it
           was
           in
           this
           case
           .
           For
           they
           and
           the
           
             Proctors
             of
             the
             Clergy
          
           (
           whether
           by
           them
           we
           understand
           the
           
             Procuratores
             Cleri
          
           ,
           who
           ,
           according
           to
           the
           
             Modus
             tenendi
             Parlamentum
          
           ,
           made
           a
           
             part
             of
             the
             Parlament
          
           ;
           or
           the
           Proxies
           of
           the
           
             absent
             Bishops
          
           ,
           who
           were
           allowed
           to
           supply
           their
           places
           ,
           as
           appears
           by
           35
           
             Ed.
             I.
          
           and
           the
           Case
           of
           the
           Bishops
           of
           Durham
           and
           Carlile
           in
           the
           Parlament
           at
           
             Westminster
             Ed.
          
           II.
           and
           17
           R.
           II.
           and
           many
           other
           instances
           afterwards
           )
           thought
           fit
           to
           consider
           in
           this
           matter
           what
           was
           
             most
             proper
          
           for
           them
           .
           And
           accordingly
           we
           find
           
           
             Ecclesiastical
             Censures
          
           added
           to
           the
           
             Civil
             Sanctions
          
           ,
           and
           brought
           in
           by
           the
           Prelats
           at
           that
           time
           ,
           which
           are
           still
           extant
           in
           the
           Record
           .
        
         
           2.
           
           
             Whereas
             he
             saith
          
           ,
           the
           Bishops
           returned
           no
           more
           ,
           the
           Record
           
             saith
             the
             contrary
             .
             For
             it
             expresly
             saith
             ,
          
           that
           the
           Orders
           for
           keeping
           of
           the
           Peace
           agreed
           on
           by
           the
           Committee
           of
           Lords
           were
           read
           before
           the
           King
           ,
           the
           Bishops
           ,
           the
           Knights
           of
           Counties
           ,
           and
           the
           Commons
           ,
           and
           did
           please
           them
           all
           ;
           
             &
             per
             nostre
             Seigneur
             le
             Roi
             ,
             Prelatz
             ,
             Countes
             ,
             Baronns
             ,
             &
             autres
             Grantz
             ,
             &
             auxint
             per
             les
             Chivalers
             de
             Countez
             &
             gentz
             de
             Commun
             ,
             furent
             pleynment
             assentuz
             &
             accordez
             .
             And
             the
             same
             is
             immediately
             said
             of
             the
          
           Censures
           
             brought
             in
             by
             the
          
           Bishops
           .
           
             Which
             made
             me
             extremely
             wonder
             at
             his
             saying
          
           that
           the
           Bishops
           returned
           no
           more
           ;
           
             whereas
             it
             is
             very
             plain
             ,
             they
             did
             not
             onely
          
           return
           ,
           
             but
             the
          
           Orders
           
             were
             read
             before
             them
             ,
             and
             they
             did
             give
             their
          
           assent
           
             to
             the
          
           Passing
           
             of
             them
          
           .
        
         
           In
           the
           
             Parlament
             11
             R.
          
           II.
           that
           it
           was
           onely
           a
           
             voluntary
             withdrawing
          
           ,
           I
           prove
           from
           the
           concessions
           of
           the
           Authour
           of
           the
           
             Letter
             ;
             viz.
             that
             they
             might
             be
             present
             in
             all
             Acts
             of
             Attainder
             .
          
           For
           it
           is
           evident
           from
           the
           
             printed
             Statutes
          
           ,
           that
           they
           
           proceeded
           by
           way
           of
           Attainder
           against
           the
           
             Ministers
             of
             State
          
           ;
           and
           therefore
           they
           might
           have
           been
           present
           ,
           if
           they
           pleased
           ,
           upon
           the
           Authour
           's
           own
           grounds
           .
           How
           is
           it
           then
           possible
           for
           him
           to
           understand
           
             de
             Iure
             non
             possumus
             ,
             in
             their
             Protestation
          
           11
           R.
           II.
           of
           the
           
             Law
             of
             the
             Land
          
           ,
           when
           he
           grants
           that
           in
           all
           Acts
           of
           Attainder
           ,
           they
           may
           
             de
             jure
          
           be
           present
           and
           give
           their
           Votes
           ?
        
         
           [
           2.
           ]
           When
           they
           did
           solemnly
           withdraw
           ,
           they
           took
           care
           to
           preserve
           their
           Right
           two
           ways
           ;
           (
           1.
           )
           by
           Protestation
           ,
           (
           2.
           )
           by
           Proxie
           .
        
         
           1.
           
           By
           Protestation
           ,
           saving
           their
           Right
           ;
           which
           was
           receiv'd
           by
           the
           House
           ,
           and
           enter'd
           :
           
           of
           which
           before
           .
           The
           late
           Authour
           of
           the
           
             Peerage
             and
             Iurisdiction
             of
             the
             Lords
             Spiritual
          
           will
           not
           allow
           the
           Protestation
           to
           be
           an
           argument
           of
           any
           
             Right
             ;
             neither
          
           ,
           saith
           he
           ,
           
             doth
             the
             permission
             or
             allowance
             of
             any
             Protestation
             yield
             the
             Right
             which
             the
             Protester
             is
             desirous
             to
             save
             ,
             but
             onely
             saves
             the
             Right
             which
             he
             had
             before
             ,
             if
             he
             had
             any
             .
          
           Whereas
           the
           Authour
           of
           the
           Letter
           makes
           it
           as
           good
           as
           a
           Law
           ,
           
           being
           entred
           in
           the
           Iournal-Book
           ,
           that
           such
           a
           thing
           was
           agreed
           
             by
             the
             King
             and
             the
             two
             Houses
             .
          
           I
           will
           not
           deny
           that
           the
           former
           Authour
           speaks
           
           more
           reasonably
           in
           this
           matter
           ,
           when
           he
           saith
           ,
           
             that
             the
             utmost
             a
             Protestation
             can
             doe
             is
             ,
             to
             anticipate
             a
             Conclusion
             ,
          
           or
           Estoppell
           ;
           i.e.
           
             to
             provide
             that
             the
             doing
             of
             any
             such
             Act
             as
             is
             contained
             in
             the
             Protestation
             ,
             shall
             not
             be
             construed
             to
             the
             prejudice
             of
             the
             Party
             ,
             so
             as
             to
             bar
             or
             conclude
             him
             from
             claiming
             afterwards
             that
             which
             in
             truth
             is
             his
             Right
             .
          
           It
           is
           true
           ,
           this
           Protestation
           passed
           with
           greater
           solemnity
           then
           usually
           ;
           for
           it
           was
           
             with
             the
             consent
             of
             the
             King
             and
             both
             Houses
             :
          
           but
           however
           it
           retained
           the
           nature
           of
           a
           Protestation
           .
           And
           there
           was
           no
           distinction
           at
           that
           time
           between
           a
           Iournal-Book
           and
           the
           
             Rolls
             of
             Parlament
          
           .
           For
           a
           good
           Authour
           assures
           us
           ,
           
           
             the
             Iournals
             of
             the
             Vpper
             House
             began
             1
             H.
          
           VIII
           .
           and
           therefore
           the
           Authour
           of
           the
           Peerage
           ,
           
           &c.
           deserved
           no
           such
           severe
           reproof
           on
           that
           account
           .
           But
           this
           is
           all
           I
           plead
           for
           ,
           viz.
           that
           this
           Protestation
           was
           a
           Salvo
           to
           their
           Right
           ;
           which
           meeting
           with
           no
           contest
           or
           opposition
           in
           the
           Houses
           ,
           but
           passing
           with
           unanimous
           consent
           ,
           is
           a
           certain
           argument
           the
           Houses
           did
           not
           think
           there
           was
           any
           Law
           to
           exclude
           them
           .
           And
           therefore
           the
           Authour
           of
           the
           Iudicature
           very
           well
           saith
           ,
           
             That
             had
             it
             not
             been
             for
             the
             Canon-Law
             ,
          
           (
           for
           which
           he
           referrs
           to
           the
           
             Synodal
             Constitutions
          
           at
           Westminster
           
           21
           H.
           II.
           which
           is
           onely
           reviving
           the
           Council
           of
           
             Toledo's
             Canon
             ,
             )
             they
             might
             have
             been
             present
             both
             by
             Common
             Law
             ,
             and
             by
             the
             Law
             of
             God.
             
          
        
         
           2.
           
           By
           Proxie
           ,
           or
           one
           
             common
             Procurator
          
           to
           appear
           in
           Parlament
           for
           them
           ,
           and
           to
           vote
           in
           the
           name
           of
           the
           whole
           Body
           .
           This
           was
           receiv'd
           and
           allow'd
           21
           
             R.
             II.
          
           upon
           the
           Petition
           of
           the
           
             House
             of
             Commons
             ,
             because
             Iudgments
             had
             been
             reversed
             without
             their
             concurrence
             .
          
           Against
           this
           the
           Authour
           of
           the
           Letter
           objects
           many
           things
           which
           are
           easily
           answer'd
           .
        
         
           1.
           
           That
           
             hence
             it
             appears
             they
             could
             not
             be
             personally
             present
             .
          
           
           On
           the
           contrary
           ,
           from
           hence
           it
           follows
           they
           had
           a
           
             Parlamentary
             Right
          
           to
           be
           present
           ;
           although
           they
           said
           by
           
             Canon-Law
             they
             could
             not
          
           .
        
         
           2.
           
           
             That
             it
             was
             never
             practised
             but
             in
             this
             one
             Parlament
             .
          
           That
           is
           strange
           ,
           when
           himself
           confesseth
           ,
           that
           it
           passed
           for
           good
           Law
           10
           Ed.
           IV.
           
             Term.
             Pasch.
             n.
          
           35.
           and
           the
           same
           is
           cited
           by
           
             Stamford
             Placit
             .
             Cor.
          
           l.
           3.
           f.
           153.
           
           
           To
           which
           judgment
           of
           the
           Lawyers
           ,
           and
           the
           greatest
           of
           their
           time
           ,
           (
           for
           Littleton
           was
           then
           Judge
           10
           
             Ed.
             IV.
          
           )
           we
           have
           a
           very
           extraordinary
           Answer
           called
           
             Error
             Temporis
          
           ;
           
           which
           will
           equally
           make
           void
           the
           Law
           or
           Iudgment
           of
           any
           Age.
           But
           is
           it
           possible
           ,
           that
           should
           pass
           
           for
           
             Law
             10
             Ed.
          
           IV.
           which
           was
           never
           practised
           but
           once
           21
           
             R.
             II.
          
           and
           the
           contrary
           practice
           had
           been
           onely
           allowed
           all
           the
           intermediate
           times
           ?
           Thus
           a
           short
           answer
           may
           be
           given
           to
           the
           Constitution
           of
           Clarendon
           ,
           it
           was
           
             Error
             Temporis
          
           ;
           to
           the
           
             allowing
             the
             Protestation
             11
             R.
          
           II.
           it
           was
           
             Error
             Temporis
          
           ;
           and
           so
           on
           to
           the
           end
           of
           the
           Chapter
           .
           If
           there
           were
           any
           
             Error
             Temporis
          
           in
           this
           matter
           ,
           it
           lay
           in
           this
           ,
           that
           they
           took
           this
           
             Precedent
             21
             R.
             II.
          
           for
           a
           sufficient
           Ground
           ,
           
             that
             the
             Bishops
             should
             onely
             appear
             by
             Proxy
             in
             such
             Cases
          
           ;
           whereas
           the
           Canon-Law
           being
           taken
           away
           since
           the
           Reformation
           as
           to
           these
           matters
           ,
           their
           Right
           of
           Personal
           appearing
           doth
           return
           to
           them
           of
           course
           .
        
         
           3.
           
           That
           
             this
             Parlament
             was
             repealed
          
           1
           H.
           IV.
           
           But
           this
           I
           have
           answer'd
           already
           from
           his
           own
           words
           ,
           wherein
           he
           acknowledges
           him
           to
           be
           an
           Vsurper
           ,
           and
           consequently
           the
           Repeal
           not
           made
           by
           a
           legal
           Parlament
           .
           And
           this
           Repeal
           was
           again
           taken
           off
           1
           Ed.
           IV.
           
        
         
           4.
           
           
             That
             it
             is
             not
             at
             all
             Parlamentary
             ,
             for
             one
             or
             two
             men
             to
             represent
             a
             whole
             Body
             .
          
           The
           consequence
           then
           is
           ,
           that
           they
           ought
           to
           enjoy
           their
           own
           
             Personal
             Right
          
           .
           All
           that
           we
           urge
           from
           hence
           is
           ,
           that
           the
           Bishops
           kept
           up
           their
           Right
           still
           by
           their
           Proxies
           ,
           when
           they
           thought
           the
           Canons
           
           would
           not
           allow
           voting
           in
           their
           
             own
             Persons
          
           .
        
         
           IV.
           Some
           of
           his
           Precedents
           do
           prove
           ,
           that
           after
           the
           Protestations
           and
           Proxies
           ,
           they
           did
           assert
           their
           
             own
             Personal
             Right
          
           ,
           and
           were
           present
           both
           at
           Examinations
           ,
           and
           at
           the
           
             whole
             Proceedings
          
           .
        
         
           1.
           
           At
           Examinations
           .
           
             As
             in
             the
             Case
             of
             Sir
          
           William
           Rickill
           1
           H.
           IV.
           
             who
             was
             brought
             to
             Parlament
          
           before
           the
           King
           and
           the
           two
           Houses
           ,
           
           the
           Lords
           Spiritual
           and
           Temporal
           and
           the
           Commons
           then
           assembled
           together
           .
           
             And
             he
             grants
             the
          
           Bishops
           
             were
             present
             at
             his
             Examination
          
           .
        
         
           2.
           
           At
           the
           
             whole
             Proceedings
          
           ,
           
           28
           
             H.
             VI.
          
           where
           he
           confesseth
           
             the
             Bishops
             were
             not
             onely
             personally
             present
             ,
             but
             did
             act
             and
             bear
             a
             principal
             part
             in
             aIudicialproceeding
             in
             Parlament
             ,
             in
             a
             Case
             that
             was
             in
             it self
             Capital
             ,
             viz.
             of
          
           William
           de
           la
           Pole
           ,
           
             Duke
             of
          
           Suffolk
           .
           Which
           is
           very
           fully
           related
           by
           the
           Authour
           ,
           and
           needs
           no
           repetition
           .
           All
           that
           he
           hath
           to
           say
           to
           this
           ,
           is
           ,
           
             that
             the
             whole
             Proceedings
             were
             irregular
             ,
             and
             not
             to
             be
             drawn
             into
             Precedent
             .
          
           Whereas
           a
           great
           Lawyer
           in
           his
           time
           ,
           Sir
           
             E.
             C.
          
           made
           use
           of
           this
           as
           a
           sufficient
           Precedent
           in
           a
           Case
           of
           great
           moment
           ,
           
             about
             Commitment
             upon
             a
             general
             Accusation
             .
          
           But
           there
           is
           not
           any
           Irregularity
           expressed
           or
           intimated
           
           in
           the
           Bishops
           appearing
           ,
           and
           judging
           as
           other
           Lords
           did
           ;
           and
           the
           Judgment
           was
           not
           reversed
           because
           of
           their
           being
           there
           ,
           as
           we
           have
           shewed
           others
           have
           been
           for
           their
           being
           absent
           .
        
         
           V.
           None
           of
           all
           his
           Precedents
           do
           prove
           that
           the
           Bishops
           were
           ever
           excluded
           from
           sitting
           ,
           by
           any
           Vote
           of
           the
           House
           of
           Lords
           or
           Commons
           .
           That
           they
           might
           
             voluntarily
             withdraw
          
           ,
           we
           deny
           not
           ;
           or
           not
           
             be
             present
             at
             giving
             of
             Iudgment
             out
             of
             regard
             to
             the
             Canons
             :
          
           which
           is
           all
           that
           is
           proved
           by
           the
           Precedent
           of
           
             Iohn
             Hall
             1
             H.
             IV.
          
           of
           the
           Earls
           of
           Kent
           ,
           
           Huntington
           ,
           
           &c.
           2
           
             H.
             IV.
          
           of
           Sir
           
             Iohn
             Oldcastle
             5
             H.
             V.
          
           and
           of
           Sir
           
             Iohn
             Mortimer
             2
             H.
             VI.
          
           
           And
           this
           we
           have
           made
           appear
           was
           done
           by
           them
           out
           of
           regard
           to
           the
           Canon-Law
           ;
           
           the
           force
           of
           which
           being
           taken
           away
           by
           the
           Reformation
           ,
           the
           Bishops
           are
           thereby
           restored
           to
           their
           just
           
             Parlamentary
             Right
          
           .
           Neither
           can
           any
           Disusage
           be
           a
           bar
           to
           that
           Right
           ,
           since
           the
           ground
           of
           that
           Disusage
           was
           something
           then
           supposed
           to
           be
           in
           force
           ,
           which
           is
           now
           removed
           by
           the
           Reformation
           .
           And
           I
           fear
           ,
           if
           this
           kind
           of
           arguing
           be
           sufficient
           to
           overthrow
           the
           
             Bishops
             Right
          
           ,
           much
           stronger
           of
           the
           same
           kind
           may
           be
           used
           to
           overthrow
           the
           
             King's
             Supremacy
          
           in
           mattters
           of
           Religion
           .
           
           So
           great
           care
           ought
           men
           to
           have
           ,
           lest
           under
           the
           colour
           of
           a
           mighty
           zeal
           against
           Popery
           ,
           they
           do
           overthrow
           the
           very
           Principles
           of
           our
           Reformation
           .
        
         
           VI.
           There
           are
           Precedents
           upon
           Record
           in
           the
           Rolls
           of
           Parlament
           ,
           which
           are
           not
           mention'd
           by
           the
           Authour
           of
           the
           Letter
           ,
           which
           do
           prove
           that
           the
           Bishops
           were
           present
           at
           the
           Examination
           of
           Treason
           and
           
             Capital
             Offences
          
           in
           Parlament
           .
           And
           that
           within
           the
           time
           ,
           
           wherein
           he
           pretends
           to
           give
           an
           account
           of
           
             all
             the
             Trials
             recorded
             in
             the
             Rolls
             .
          
           Which
           shews
           how
           easily
           men
           pass
           by
           those
           things
           they
           have
           no
           mind
           to
           see
           .
        
         
           I
           begin
           with
           4
           
             Ed.
             III.
          
           and
           I
           must
           doe
           him
           that
           right
           ,
           as
           to
           say
           ,
           that
           he
           doth
           not
           onely
           mention
           the
           Trial
           of
           
             Roger
             Mortimer
          
           ,
           
           but
           of
           Sir
           
             Simon
             Bereford
             and
             others
             who
             were
             accused
             and
             tried
             in
             Parlament
             .
          
           But
           pretending
           ,
           
             that
             the
             Roll
             of
             that
             Parlament
             is
             so
             defaced
             that
             it
             cannot
             be
             read
             ,
          
           he
           runs
           to
           that
           of
           28
           
             Ed.
             III.
          
           and
           so
           gently
           passes
           over
           all
           
             the
             other
             Trials
          
           which
           are
           in
           the
           Record
           ,
           and
           are
           more
           plain
           and
           express
           as
           to
           this
           matter
           .
           Among
           the
           Articles
           against
           
             Roger
             Mortimer
             ,
             Ed.
             l
          
           of
           March
           ,
           one
           is
           ,
           
             that
             after
             he
             knew
             certainly
             the
             death
             of
             Edw.
          
           II.
           
             he
             made
             use
             of
             Instruments
             to
             perswade
          
           Edward
           
             Earl
             of
          
           Kent
           ,
           
             that
             King's
             Brother
             ,
             that
             he
             was
             
             still
             living
             ,
             and
             so
             drew
             him
             into
             a
             design
             for
             his
             Rescue
             ;
             for
             which
             he
             was
             attainted
             at
          
           Winchester
           ,
           
             and
             there
             suffer'd
             death
             for
             it
             .
          
           Among
           these
           Instruments
           the
           chief
           was
           one
           Mautravers
           ,
           who
           for
           that
           Reason
           was
           attainted
           this
           Parlament
           :
           and
           the
           words
           of
           the
           Record
           are
           ,
           
           
             Trestouz
             les
             Pieres
             ,
             Counts
             &
             Barons
             assemblez
             a
             cest
             Parlement
             a
          
           West
           .
           
             si
             ont
             examine
             estraitement
             ,
             &
             sur
             ce
             sont
             assentuz
             &
             accordez
             ,
             que
          
           John
           Mautravers
           
             si
             est
             culpable
             de
             la
             mort
             Esmon
             Count
             de
          
           Kent
           ,
           &c.
           
           
             All
             the
             Peers
             ,
             Counts
             and
             Barons
             assembled
             in
             this
             present
             Parlament
             ,
             upon
             strict
             examination
             do
             assent
             and
             agree
             ,
             that
          
           John
           Mautravers
           
             is
             guilty
             of
             the
             death
             of
          
           Edmund
           
             Earl
             of
          
           Kent
           .
           Here
           we
           have
           the
           strict
           Examination
           of
           a
           
             Capital
             Case
          
           in
           Parlament
           ,
           and
           
             all
             the
             Peers
          
           are
           said
           to
           be
           present
           at
           it
           .
           It
           is
           used
           as
           an
           argument
           by
           the
           Authour
           of
           the
           
             Letter
             ,
             that
             in
             the
             case
             of
          
           Roger
           Mortimer
           ,
           
           
             the
             Bishops
             could
             not
             be
             comprized
             under
             the
             general
             name
             of
             Peers
             ,
             since
             the
             Barons
             are
             first
             in
             rank
             .
          
           But
           here
           the
           Peers
           are
           mentioned
           before
           Counts
           and
           Barons
           ;
           and
           it
           will
           be
           impossible
           for
           him
           to
           assign
           any
           other
           Peers
           at
           that
           time
           ,
           that
           were
           named
           before
           them
           ,
           but
           the
           Prelats
           ;
           who
           frequently
           are
           so
           put
           in
           the
           Records
           of
           
           that
           time
           :
           as
           in
           the
           same
           Parlament
           n.
           12.
           
           
             Prelatz
             ,
             Countes
             ,
             Barons
             ;
             n.
             13.
             
             Et
             per
             assent
             des
             ditz
             Prelatz
             ,
             Countes
             ,
             Barons
          
           ;
           so
           again
           n.
           14.
           15.
           17.
           24.
           25.
           
           But
           the
           Authour
           of
           the
           Letter
           saith
           ,
           
           
             they
             cannot
             pretend
             to
             be
             Peers
             of
             the
             Realm
             .
          
           Let
           him
           name
           then
           other
           Peers
           of
           the
           Realm
           at
           that
           time
           ,
           who
           were
           neither
           Counts
           nor
           Barons
           ,
           and
           were
           before
           them
           .
           But
           if
           we
           are
           to
           judge
           who
           are
           Peers
           of
           the
           Realm
           by
           the
           Records
           of
           Parlament
           ,
           I
           do
           not
           question
           but
           I
           shall
           make
           it
           evident
           ,
           that
           the
           Bishops
           were
           so
           esteemed
           ;
           and
           that
           some
           persons
           ,
           who
           pretend
           to
           great
           skill
           in
           Records
           ,
           either
           have
           not
           searched
           so
           diligently
           ,
           or
           have
           not
           observed
           so
           carefully
           about
           this
           matter
           as
           they
           might
           have
           done
           .
           But
           of
           this
           afterwards
           .
        
         
           In
           the
           same
           Parlament
           Judgment
           was
           passed
           upon
           
             Boges
             de
             Boyons
             ,
             Iohn
             Deveril
             ,
             Thomas
             Gurnay
             ,
             William
             Ocle
          
           ;
           but
           being
           by
           way
           of
           Attainder
           ,
           and
           not
           upon
           
             particular
             examination
          
           ,
           which
           is
           mentioned
           in
           the
           case
           of
           Mautravers
           ,
           I
           pass
           them
           over
           .
        
         
           
             In
             the
             Pleas
             of
             the
             Crown
             held
             before
             the
             King
             in
             this
          
           Parlament
           ,
           
             we
             find
             another
             Case
             which
             relates
             to
             our
             present
             debate
          
           ;
           viz.
           of
           Thomas
           Lord
           Berkely
           and
           Knight
           ,
           
             who
             was
             arraigned
             for
             the
          
           death
           of
           King
           Ed.
           II.
           who
           came
           before
           the
           King
           
           
             in
             pleno
             Parlamento
          
           ,
           in
           full
           Parlament
           ,
           
             and
             there
             pleaded
          
           Not
           guilty
           ;
           and
           declared
           he
           was
           ready
           to
           clear
           himself
           as
           the
           King's
           Court
           should
           advise
           .
           Then
           they
           proceeded
           to
           particular
           examination
           of
           him
           ,
           how
           he
           could
           acquitt
           himself
           ,
           being
           Lord
           of
           the
           Castle
           where
           the
           King
           was
           murthered
           ,
           he
           being
           committed
           to
           his
           Custody
           and
           
             John
             Matravers
          
           .
           He
           pleaded
           for
           himself
           ,
           that
           he
           was
           then
           sick
           at
           Bradley
           ,
           and
           knew
           nothing
           of
           it
           .
           They
           charged
           him
           ,
           that
           the
           Keepers
           of
           the
           Castle
           were
           of
           his
           own
           appointing
           ;
           and
           therefore
           he
           was
           bound
           to
           answer
           for
           them
           .
           He
           answer'd
           ,
           that
           they
           with
           Matravers
           having
           receiv'd
           the
           King
           into
           their
           custody
           ,
           he
           was
           not
           to
           be
           blamed
           for
           what
           they
           did
           :
           and
           for
           this
           he
           put
           himself
           upon
           his
           Country
           .
           At
           the
           day
           appointed
           for
           his
           Trial
           ,
           he
           appears
           
             again
             coram
             Domino
             Rege
             in
             pleno
             Parlamento
          
           ;
           and
           the
           Iury
           returned
           him
           Not
           guilty
           .
           But
           because
           he
           appointed
           Gurney
           and
           Ocle
           to
           keep
           his
           Castle
           of
           Berkely
           ,
           by
           whom
           the
           King
           was
           murthered
           ,
           the
           King
           appoints
           him
           a
           day
           the
           next
           Parlament
           to
           hear
           his
           Sentence
           ;
           and
           in
           the
           mean
           time
           he
           was
           committed
           to
           the
           custody
           of
           
             Ralph
             Nevil
          
           Steward
           of
           the
           King's
           House
           .
           
             In
             the
             next
             Parlament
          
           5
           Edw.
           III.
           n.
           18.
           
           The
           Prelats
           ,
           Earls
           and
           Barons
           petition
           the
           
           King
           ,
           that
           he
           might
           be
           discharged
           of
           his
           mainprisors
           :
           the
           which
           was
           granted
           ,
           and
           a
           farther
           day
           given
           him
           to
           appear
           next
           Parlament
           .
           
             But
             we
             reade
             no
             more
             of
             him
             ,
             till
             the
             Summons
             he
             had
          
           14
           Ed.
           III.
           
             as
             one
             of
             the
          
           Lords
           in
           Parlament
           .
           
             The
             great
             force
             of
             this
          
           Precedent
           
             lies
             in
             understanding
             what
             is
             meant
             by
             appearing
             before
             the
             King
          
           in
           full
           Parlament
           .
           
             If
             under
             this
             the
          
           Bishops
           
             be
             comprehended
             ,
             then
             this
             will
             be
             an
             uncontroulable
             Precedent
             of
             the
             presence
             of
             the
          
           Bishops
           
             in
             the
             Examination
             of
             a
          
           Case
           Capital
           .
        
         
           
             What
             the
             importance
             of
             this
             phrase
             of
          
           full
           Parlament
           
             is
             ,
             will
             best
             appear
             by
             the
             use
             of
             it
             in
             the
          
           Records
           
             of
             that
             time
          
           .
           4
           Ed.
           III.
           n.
           6.
           
           
             Et
             est
             assentu
             &
             accorde
             per
             nostre
             Seigneur
             le
             Roi
             ,
             &
             touz
             les
             Grantz
             en
             pleyn
             Parlement
             .
             Where
             it
             was
             agreed
             ,
          
           that
           the
           procedings
           at
           that
           time
           by
           the
           Lords
           against
           those
           who
           were
           not
           Peers
           should
           not
           be
           drawn
           into
           consequence
           ;
           and
           that
           the
           Peers
           should
           be
           charged
           onely
           to
           try
           Peers
           .
           
             Which
             hath
             all
             the
             formality
             of
             an
          
           Act
           of
           Parlament
           :
           
             and
             therefore
          
           all
           the
           Estates
           were
           present
           ,
           n.
           8.
           
           
             Accorde
             est
             per
             nostre
             Seigneur
             le
             Roi
             &
             son
             Conseil
             en
             pleyn
             Parlement
             .
             Which
             was
             an
          
           Act
           of
           Pardon
           
             concerning
             those
             who
             followed
             the
          
           Earl
           of
           Lancaster
           .
        
         
         
           5
           
             Ed.
             III.
             n.
          
           10.
           we
           have
           the
           particular
           mention
           of
           the
           Bishops
           ,
           as
           some
           of
           those
           who
           do
           make
           a
           
             full
             Parlament
             .
             Accorde
             est
             per
             nostre
             Seigneur
             le
             Roi
             ,
             Prelatz
             ,
             Countes
             ,
             Barons
             ,
             &
             autres
             Grantz
             du
             Roialm
             en
             pleyn
             Parlement
             :
          
           and
           n.
           17.
           
           
             En
             pleyn
             Parlement
             si
             prierent
             les
             Prelatz
             ,
             Countes
             ,
             Barons
             ,
             &
             autres
             Grantz
             de
             mesme
             le
             Parlement
             ,
             a
             nostre
             Seigneur
             le
             Roi
             ,
          
           &c.
           
        
         
           6
           
             Ed.
             III.
             n.
          
           5.
           the
           Archbishop
           of
           Canterbury
           made
           his
           Oration
           
             en
             pleyn
             Parlement
          
           ,
           which
           is
           explained
           by
           
             en
             la
             presence
             nostre
             Seigneur
             le
             Roi
             ,
             &
             de
             touz
             les
             Prelatz
             ,
             &
             autres
             Grantz
             .
             n.
             9.
             
             Si
             est
             accorde
             &
             assentu
             per
             touz
             en
             pleyn
             Parlement
             :
          
           who
           those
           were
           ,
           we
           are
           told
           before
           in
           the
           same
           number
           ,
           
             viz.
             les
             Prelatz
             ,
             Countes
             ,
             Baronns
             ,
             &
             touz
             les
             autres
             somons
             a
             mesme
             le
             Parlement
             .
          
           Which
           is
           the
           clearest
           explication
           of
           
             full
             Parlament
             ,
             in
             the
             presence
             of
             all
             those
             who
             were
             summon'd
             to
             Parlament
             .
          
           From
           whence
           it
           follows
           ,
           that
           where
           a
           
             full
             Parlament
          
           was
           mention'd
           at
           that
           time
           ,
           the
           Bishops
           were
           certainly
           present
           ;
           and
           consequently
           did
           assist
           at
           the
           Trial
           of
           
             Thomas
             Lord
             Berkely
          
           ,
           who
           appeared
           before
           the
           
             King
             in
             full
             Parlament
          
           :
           as
           
             Nich.
             de
             Segrave
          
           did
           33
           
             Ed.
             I.
          
           and
           there
           
           the
           Bishops
           are
           expresly
           mention'd
           as
           present
           ;
           as
           appears
           by
           what
           hath
           been
           said
           before
           concerning
           his
           Case
           .
        
         
           5
           
             H.
             IV.
             Henry
             Hotspur
          
           ,
           Son
           to
           the
           
             Earl
             of
             Northumberland
          
           ,
           was
           declared
           a
           Traitour
           by
           the
           King
           and
           
             Lords
             in
             full
             Parlament
          
           ;
           and
           the
           same
           day
           ,
           the
           Father
           was
           ,
           upon
           examination
           ,
           
             acquitted
             of
             Treason
             by
             the
             Peers
             .
          
           It
           is
           not
           said
           that
           this
           was
           done
           
             in
             full
             Parlament
          
           ,
           as
           the
           other
           was
           :
           but
           there
           are
           several
           circumstances
           which
           make
           it
           very
           probable
           the
           Bishops
           were
           then
           present
           .
           (
           1.
           )
           When
           the
           Earl
           of
           Northumberland
           took
           his
           
             Oath
             of
             Fidelity
             to
             the
             King
             ,
             he
             did
             it
             ,
          
           saith
           the
           Record
           ,
           
             upon
             the
             Cross
             of
             the
             Archbishop
          
           ;
           which
           was
           to
           be
           carried
           before
           him
           ,
           if
           he
           went
           out
           of
           the
           House
           .
           (
           2.
           )
           The
           Archbishop
           of
           
             Canterbury
             pray'd
             the
             King
             ,
             that
             forasmuch
             as
             himself
             and
             other
             Bishops
             were
             suspected
             to
             be
             in
          
           Piercie's
           
             Conspiracy
             ,
             that
             the
             Earl
             might
             upon
             his
             Oath
             declare
             the
             truth
             :
          
           who
           thereupon
           did
           clear
           them
           all
           .
           Which
           shews
           that
           the
           Archbishop
           was
           then
           present
           in
           the
           House
           .
           And
           for
           the
           same
           reason
           that
           he
           was
           present
           ,
           we
           may
           justly
           suppose
           the
           other
           Bishops
           to
           have
           been
           so
           too
           .
           (
           3.
           )
           The
           Earl
           of
           
             Northumberland
             beseeched
             the
             Lords
             and
             Earls
             and
             Commoners
             ,
             
             that
             if
             he
             brake
             this
             Oath
             ,
             they
             would
             intercede
             no
             more
             with
             the
             King
             for
             him
             .
          
           Now
           the
           better
           to
           understand
           this
           ,
           we
           are
           to
           consider
           ,
           that
           H.
           IV.
           takes
           notice
           in
           his
           declaration
           upon
           the
           Rebellion
           of
           Sir
           
             Henry
             Piercy
          
           ,
           
           that
           
             the
             Earl
             of
             Northumberland
             and
             his
             Son
             gave
             out
             ,
             that
             they
             could
             have
             no
             access
             to
             the
             King
             ,
             but
             by
             the
             Mediation
             of
             the
             Bishops
             and
             Earls
             ,
             and
             therefore
             did
             beseech
             them
             to
             intercede
             with
             the
             King
             for
             them
             .
          
           It
           is
           not
           then
           probable
           ,
           that
           those
           should
           be
           now
           left
           out
           ,
           when
           the
           words
           are
           
             large
             enough
          
           to
           comprehend
           them
           ,
           and
           no
           one
           circumstance
           is
           brought
           to
           exclude
           them
           .
           For
           that
           general
           one
           ,
           of
           
             their
             not
             being
             Peers
          
           ,
           will
           be
           fully
           refuted
           afterwards
           .
        
         
           But
           that
           which
           puts
           this
           out
           of
           dispute
           is
           ,
           (
           4.
           )
           that
           the
           Record
           saith
           ,
           n.
           17.
           the
           Commons
           not
           onely
           gave
           the
           King
           thanks
           for
           the
           pardon
           of
           the
           Earl
           of
           Northumberland
           ,
           but
           the
           Lords
           Spiritual
           and
           Temporal
           ,
           in
           these
           remarkable
           words
           ;
           
             Et
             au●i
             mesmes
             les
             Cōes
             remercierment
             les
             Seigneurs
             Espirituelx
             &
             Temporelx
             de
             lour
             bon
             &
             droiturell
             judgment
             quils
             avoient
             fait
             come
             Piers
             du
             Parlement
             :
             And
             likewise
             the
             Commons
             gave
             thanks
             to
             the
             Lords
             Spiritual
             and
             Temporal
             for
             the
             good
             and
             right
             Iudgment
             which
             they
             had
             given
          
           
           in
           this
           case
           
             as
             Peers
             of
             Parlament
          
           .
           Which
           is
           a
           clear
           Precedent
           of
           the
           Bishops
           judging
           in
           a
           Capital
           Case
           ,
           and
           that
           as
           Peers
           .
        
         
           2
           
             H.
             VI.
             n.
             9.
             
             Iohn
             Lord
             Talbott
          
           had
           accused
           
             Iames
             Boteler
             ,
             Earl
             of
             Ormond
             ,
          
           of
           sundry
           Treasons
           before
           
             the
             King
             and
             his
             great
             Council
          
           ;
           and
           after
           ,
           before
           
             Iohn
             Duke
             of
             Bedford
             ,
             Constable
             of
             England
             .
          
           The
           King
           takes
           advice
           of
           his
           Parlament
           about
           it
           ;
           and
           then
           it
           is
           expresly
           said
           in
           the
           
             Record
             ,
             De
             avisamento
             &
             assensit
             Dominorum
             Spiritualium
             &
             Temporalium
             ac
             Communitatis
             Regni
             Anglie
             ,
             in
             eodem
             Parlamento
             existent
             '
             ,
             facta
             fuit
             quedam
             abolitio
             delationis
             ,
             nuntiationis
             ,
             &
             detectionis
             predict
             ,
          
           &c.
           
           Here
           the
           King
           adviseth
           with
           the
           
             Lords
             Spiritual
          
           in
           an
           accusation
           of
           Treason
           ;
           and
           therefore
           they
           must
           be
           present
           in
           the
           debates
           concerning
           it
           .
        
         
           I
           leave
           now
           any
           considerate
           person
           to
           judge
           impartially
           on
           which
           side
           the
           Right
           lies
           .
           For
           on
           the
           one
           side
           ,
        
         
           1.
           
           There
           is
           the
           Constitution
           of
           Clarendon
           interpreted
           by
           
             H.
             II.
          
           and
           the
           Bishops
           at
           Northampton
           .
        
         
           2.
           
           A
           Protestation
           of
           their
           Right
           enter'd
           ,
           and
           allowed
           by
           King
           ,
           Lords
           and
           Commons
           ,
           11
           
             R.
             II.
          
           
        
         
           3.
           
           A
           Reversing
           of
           Iudgments
           owned
           by
           Parlament
           for
           
             want
             of
             their
             presence
             ,
             21
             R.
             II.
             
          
        
         
         
           4.
           
           A
           Preserving
           of
           their
           Right
           by
           Proxie
           ,
           when
           they
           thought
           their
           Personal
           attendance
           contrary
           to
           the
           Canons
           .
        
         
           5.
           
           A
           Bar
           to
           a
           total
           discontinuance
           of
           their
           personal
           Right
           ,
           by
           an
           allowed
           
             Precedent
             28
             H.
             VI.
          
           
        
         
           6.
           
           A
           Restoring
           them
           to
           their
           former
           Right
           ,
           by
           removing
           of
           the
           force
           of
           the
           Canon-Law
           upon
           the
           Reformation
           .
        
         
           7.
           
           No
           one
           Law
           or
           Precedent
           produced
           for
           excluding
           them
           ,
           even
           in
           those
           Times
           ,
           when
           they
           thought
           the
           Canons
           did
           forbid
           their
           presence
           .
        
         
           8.
           
           Several
           Precedents
           upon
           Record
           ,
           wherein
           they
           were
           present
           at
           Examinations
           and
           Debates
           about
           
             Cases
             Capital
          
           .
        
         
           On
           the
           other
           side
           ,
        
         
           1.
           
           The
           Precedents
           are
           General
           ,
           and
           Negative
           .
        
         
           2.
           
           Or
           relating
           to
           such
           Cases
           wherein
           they
           are
           allowed
           to
           be
           present
           .
        
         
           3.
           
           Or
           of
           Iudgments
           condemned
           as
           erroneous
           by
           Parlament
           .
        
         
           4.
           
           Or
           of
           
             voluntary
             Withdrawing
          
           ,
           with
           Protestation
           of
           their
           Right
           ,
           and
           making
           of
           Proxies
           .
        
         
           5.
           
           Or
           of
           
             not
             being
             present
          
           at
           the
           passing
           of
           Iudgment
           out
           of
           regard
           to
           the
           Canon-Law
           .
        
         
           And
           now
           on
           which
           side
           the
           Right
           lies
           ,
           let
           the
           Authour
           of
           the
           Letter
           himself
           judge
           .
        
      
       
         
         
           CHAP.
           IV.
           
        
         
           The
           Peerage
           of
           the
           Bishops
           cleared
           ;
           how
           far
           they
           make
           a
           third
           Estate
           in
           Parlament
           .
           Objections
           against
           it
           answered
           .
        
         
           THERE
           remain
           Two
           things
           to
           be
           considered
           ,
           which
           are
           put
           in
           by
           way
           of
           Postscript
           by
           the
           Authour
           of
           the
           Letter
           :
           the
           one
           concerns
           the
           Peerage
           of
           the
           Bishops
           ,
           the
           other
           their
           Being
           a
           
             Third
             Estate
          
           in
           Parlament
           .
        
         
           1.
           
           Concerning
           their
           Peerage
           .
           To
           prove
           this
           
             two
             Statutes
          
           had
           been
           alledged
           ,
           25
           
             Ed.
             III.
             c.
          
           6.
           and
           4
           
             H.
             V.
             c.
          
           6.
           and
           the
           opinion
           of
           Iudges
           and
           Lawyers
           out
           of
           the
           Year-Books
           .
           But
           although
           these
           had
           been
           very
           significant
           ,
           if
           they
           had
           been
           against
           them
           ;
           they
           have
           the
           hard
           fortune
           to
           signify
           nothing
           ,
           when
           they
           are
           for
           them
           .
           A
           meer
           Protestation
           becomes
           
             good
             Law
             ,
             very
             substantial
             Law
             ,
          
           if
           it
           be
           supposed
           to
           make
           against
           the
           Bishops
           ;
           and
           yet
           in
           
             that
             very
             Protestation
          
           the
           
             Right
             of
             Peerage
          
           is
           expresly
           challenged
           ,
           (
           as
           well
           as
           it
           is
           asserted
           and
           taken
           for
           granted
           in
           the
           Statutes
           mention'd
           .
           )
           Is
           that
           part
           of
           
           the
           
             Protestation
             invalid
          
           ?
           and
           must
           nothing
           pass
           for
           Law
           but
           what
           is
           against
           them
           ?
           Is
           it
           credible
           that
           a
           
             Right
             of
             Peerage
          
           should
           be
           owned
           and
           received
           in
           Acts
           of
           Parlament
           ,
           in
           Protestations
           ,
           in
           Year-Books
           ,
           time
           after
           time
           ;
           and
           no
           opposition
           made
           against
           it
           by
           the
           
             Temporal
             Lords
          
           all
           that
           time
           ,
           in
           case
           they
           believed
           the
           Bishops
           had
           challenged
           that
           which
           by
           no
           means
           did
           belong
           to
           them
           ?
           Did
           not
           the
           
             Temporal
             Lords
          
           understand
           their
           own
           Privileges
           ?
           or
           were
           they
           willing
           to
           suffer
           the
           Bishops
           to
           assume
           their
           Titles
           to
           themselves
           without
           the
           least
           check
           or
           contradiction
           ,
           and
           let
           their
           Protestations
           be
           enter'd
           in
           the
           Rolls
           of
           Parlament
           without
           any
           contrary
           Protestation
           ?
           I
           do
           not
           question
           but
           the
           Authour
           of
           the
           Letter
           did
           reade
           the
           
             Bishops
             Protestation
          
           at
           large
           in
           the
           
             Parlament-Rolls
             11
             R.
             II.
          
           And
           can
           any
           thing
           be
           plainer
           ,
           then
           that
           therein
           they
           challenge
           a
           Right
           of
           Peerage
           to
           themselves
           ,
           
             ut
             Pares
             Regni
             —
             cum
             caeteris
             Regni
             Paribus
             ,
             &
             c.
             ?
          
           And
           this
           Protestation
           ,
           he
           saith
           ,
           
             was
             enter'd
             by
             consent
             of
             the
             King
             ,
             Lords
             Temporal
             ,
          
           and
           Commons
           ;
           as
           is
           expressed
           in
           the
           Rolls
           .
           Were
           the
           
             Temporal
             Lords
          
           awake
           ?
           or
           were
           they
           mean
           and
           low-spirited
           men
           ?
           No
           ;
           they
           were
           never
           higher
           then
           at
           this
           
           time
           ,
           when
           the
           King
           himself
           durst
           not
           withstand
           them
           .
           What
           could
           it
           be
           then
           ,
           but
           meer
           conviction
           of
           their
           just
           Right
           of
           Peerage
           ,
           which
           made
           them
           suffer
           such
           a
           Protestation
           as
           that
           to
           pass
           ,
           after
           so
           solemn
           and
           unusual
           a
           manner
           ,
           and
           to
           be
           enrolled
           
             par
             Commandment
             du
             Roy
             ,
             &
             assent
             des
             Seigneurs
             Temporels
             &
             Communs
          
           ;
           as
           it
           is
           in
           the
           Rolls
           ?
           Was
           all
           this
           onely
           
             a
             Complement
             to
             the
             Potent
             Clergy
             at
             that
             time
             ?
          
           But
           who
           can
           imagine
           that
           
             King
             ,
             Lords
          
           and
           Commons
           should
           complement
           at
           that
           rate
           ,
           as
           to
           suffer
           the
           Bishops
           to
           challenge
           a
           Peerage
           to
           themselves
           in
           Parlament
           ,
           if
           they
           had
           not
           an
           undoubted
           Right
           to
           it
           ?
           This
           
             one
             argument
          
           is
           sufficient
           to
           convince
           any
           reasonable
           man.
           Especially
           when
           we
           consider
           ,
           that
           in
           the
           same
           Parlament
           ,
           before
           the
           Protestation
           was
           brought
           in
           ,
           a
           motion
           was
           made
           n.
           7.
           by
           all
           the
           
             Lords
             Spiritual
             and
             Temporal
             ,
             which
             they
             claimed
             come
             leur
             libertez
             &
             franchise
             ,
             as
             their
             Liberty
             and
             Privilege
             ,
             that
             all
             weighty
             matters
             moved
             in
             this
             Parlament
             ,
             or
             to
             be
             moved
             in
             any
             to
             come
             ,
             touchant
             Pieres
             de
             la
             Terre
             ,
             concerning
             the
             Peers
             of
             the
             Realm
             ,
             should
             be
             determin'd
             ,
             adjudged
             and
             discussed
             by
             the
             course
             of
             Parlament
             ;
             and
             not
             by
             the
             Civil
             ,
             nor
             by
             the
             Common
             
             Law
             of
             the
             Land
             ,
             used
             in
             inferiour
             Courts
             of
             the
             Realm
             .
             The
             which
             Claim
             ,
             Liberty
             and
             Franchise
             ,
             the
             King
             most
             willingly
             allowed
             and
             granted
             in
             full
             Parlament
             .
          
           From
           whence
           it
           is
           evident
           ,
           that
           the
           King
           and
           Parlament
           did
           allow
           the
           Right
           of
           Peerage
           in
           the
           
             Lords
             Spiritual
          
           ;
           for
           it
           is
           said
           expresly
           in
           the
           Record
           ,
           
             that
             all
             the
             Spiritual
             as
             well
             as
             Temporal
             Lords
             joyned
             in
             this
             Claim
             :
          
           which
           being
           allowed
           them
           in
           
             full
             Parlament
          
           ,
           is
           an
           evidence
           beyond
           contradiction
           of
           their
           Right
           of
           Peerage
           .
        
         
           
             But
             against
             this
             no
             less
             is
             pretended
             then
          
           Magna
           Charta
           ,
           viz.
           
             that
             every
             man
             who
             is
             tried
             at
             the
          
           King's
           Suit
           must
           be
           tried
           by
           his
           Peers
           .
           
           Now
           if
           a
           Bishop
           be
           tried
           for
           any
           Capital
           offence
           ,
           he
           is
           tried
           by
           the
           Commoners
           ,
           and
           that
           is
           the
           Common
           Law
           of
           England
           ;
           it
           hath
           ever
           been
           so
           ,
           never
           otherwise
           :
           then
           must
           Commoners
           be
           his
           Peers
           ,
           and
           he
           and
           Commoners
           must
           be
           Pares
           .
        
         
           To
           this
           Argument
           ,
           how
           strong
           soever
           it
           appears
           ,
           these
           two
           things
           may
           be
           justly
           answer'd
           .
        
         
           1.
           
           That
           the
           matter
           of
           Fact
           cannot
           be
           made
           out
           ,
           that
           a
           Bishop
           hath
           always
           been
           tried
           by
           Commoners
           .
        
         
           2.
           
           That
           if
           it
           could
           ,
           it
           doth
           not
           overthrow
           their
           
             Peerage
             in
             Parlament
          
           .
        
         
         
           (
           1.
           )
           That
           the
           matter
           of
           Fact
           cannot
           be
           made
           out
           ,
           
             viz.
             that
             if
             a
             Bishop
             be
             tried
             for
             a
             Capital
             Offence
             ,
             he
             is
             tried
             by
             the
             Commoners
             ;
             that
             it
             hath
             ever
             been
             so
             ,
             never
             otherwise
             .
          
           
           For
           in
           15
           
             Ed.
             III.
             Iohn
             Stratford
             ,
             Archbishop
          
           of
           Canterbury
           ,
           was
           at
           the
           
             King's
             Suit
          
           accused
           of
           
             Capital
             Crimes
             ,
             viz.
          
           of
           no
           less
           then
           Treason
           ,
           and
           Conspiracy
           with
           the
           
             French
             King.
          
           He
           put
           himself
           upon
           his
           
             Trial
             in
             Parlament
          
           .
           A
           Parlament
           was
           called
           ;
           and
           he
           at
           first
           refused
           admission
           into
           the
           House
           ;
           which
           he
           challenged
           
             tanquam
             major
             Par
             Regni
             post
             Regem
             ,
             &
             Uocem
             primam
             in
             Parlamento
             habere
             debens
             ,
             as
             the
             First
             Peer
             of
             the
             Realm
             after
             the
             King
             ,
             and
             having
             the
             first
             Uote
             in
             Parlament
             .
          
           Upon
           which
           ,
           and
           the
           intercession
           of
           his
           Friends
           ,
           he
           is
           admitted
           into
           the
           House
           ;
           and
           there
           he
           put
           himself
           upon
           the
           
             Triall
             of
             his
             Peers
          
           .
           At
           which
           time
           a
           great
           Debate
           arose
           in
           the
           House
           ,
           which
           continued
           a
           whole
           Week
           ;
           and
           it
           was
           resolved
           ,
           
             that
             the
             Peers
             should
             be
             tried
             onely
             by
             Peers
             in
             Parlament
             .
          
           Whereupon
           the
           Archbishop
           had
           12
           Peers
           appointed
           to
           examine
           the
           Articles
           against
           him
           :
           4
           Bishops
           ,
           
             viz.
             London
             ,
             Hereford
             ,
             Bath
             ,
          
           and
           Exceter
           ;
           4
           Earls
           ,
           
             Arundel
             ,
             Salisbury
             ,
             Huntingdon
          
           ,
           and
           Suffolk
           ;
           and
           4
           Barons
           ,
           
           
             Percy
             ,
             Wake
             ,
             Basset
          
           ,
           and
           Nevil
           .
           Here
           we
           have
           all
           that
           can
           be
           desired
           in
           the
           case
           .
           Here
           is
           a
           Bishop
           tried
           at
           the
           
             King's
             Suit
          
           ,
           and
           for
           a
           
             Capital
             Crime
          
           ;
           and
           yet
           not
           tried
           by
           Commoners
           ,
           but
           by
           his
           Peers
           ,
           and
           that
           after
           long
           debate
           in
           the
           House
           concerning
           it
           .
           If
           it
           be
           said
           ,
           
             that
             he
             was
             tried
             by
             the
             Lords
             as
             Iudges
             in
             Parlament
             ,
             and
             not
             as
             his
             Peers
          
           ;
           it
           is
           answer'd
           ,
           1.
           
           Then
           Bishops
           are
           
             Iudges
             in
             Parlament
          
           in
           
             Cases
             Capital
          
           :
           for
           so
           this
           was
           ,
           and
           4
           Bishops
           appointed
           to
           examine
           it
           .
           2.
           
           The
           Debate
           in
           the
           House
           was
           about
           
             Trial
             of
             Peers
             by
             their
             Peers
          
           ;
           and
           upon
           that
           it
           was
           resolved
           ,
           that
           the
           Archbishop
           should
           be
           tried
           by
           the
           House
           .
           For
           the
           King
           designed
           to
           have
           him
           tried
           in
           the
           Exchequer
           for
           the
           matters
           objected
           against
           him
           ,
           and
           the
           Steward
           of
           the
           
             King's
             House
          
           and
           
             Lord
             Chamberlain
          
           would
           not
           suffer
           him
           to
           enter
           into
           the
           
             House
             of
             Lords
          
           ,
           till
           he
           had
           put
           in
           his
           Answer
           in
           the
           Exchequer
           .
           Upon
           which
           the
           great
           Debate
           arose
           ;
           and
           therefore
           the
           Resolution
           of
           the
           House
           is
           as
           full
           a
           Precedent
           in
           this
           Case
           as
           can
           be
           desired
           .
        
         
           I
           do
           not
           deny
           ,
           that
           the
           Rolls
           of
           Parlament
           of
           that
           year
           seem
           to
           represent
           the
           12
           Peers
           ,
           as
           Birchington
           calls
           them
           ,
           not
           as
           appointed
           to
           examine
           the
           particular
           
           Case
           of
           Stratford
           ;
           but
           to
           draw
           up
           in
           form
           the
           desire
           of
           the
           Peers
           as
           to
           a
           Trial
           by
           their
           Peers
           ,
           in
           Parlament
           :
           the
           which
           is
           extant
           in
           the
           
             Record
             15
             Ed.
             III.
             n.
          
           7.
           
           However
           ,
           this
           Argument
           doth
           not
           lose
           its
           force
           as
           to
           the
           Peerage
           of
           the
           Bishops
           ;
           but
           it
           is
           rather
           confirmed
           by
           it
           .
           For
           there
           they
           pray
           the
           King
           ,
           by
           the
           Assent
           of
           the
           Prelats
           ,
           Counts
           and
           Barons
           ,
           that
           the
           Peers
           of
           the
           Realm
           may
           not
           be
           judged
           but
           in
           Parlament
           ,
           
             &
             per
             lour
             Piers
             ,
             and
             by
             their
             Peers
             :
          
           and
           after
           it
           follows
           ,
           
             that
             they
             may
             not
             lose
             their
             Temporalties
             ,
             Lands
             ,
             Goods
             and
             Chattels
             ,
          
           &c.
           
           Who
           were
           capable
           of
           
             losing
             their
             Temporalties
          
           ,
           but
           the
           Prelats
           ?
           Therefore
           this
           Law
           must
           respect
           them
           as
           well
           as
           others
           .
           As
           farther
           appears
           not
           onely
           by
           the
           Occasion
           ,
           but
           by
           the
           Consequent
           of
           it
           .
           For
           it
           follows
           ,
           n.
           8.
           that
           the
           
             Archbishop
             of
             Canterbury
             was
             admitted
             into
             the
             King's
             Presence
             ,
             and
             to
             answer
             for
             himself
             in
             Parlamentdevant
             les
             Piers
             ,
             before
             his
             Peers
             :
          
           which
           the
           King
           granted
           .
           So
           that
           the
           Rolls
           of
           Parlament
           put
           this
           matter
           beyond
           contradiction
           .
        
         
           In
           21
           R.
           II.
           Thomas
           Arundel
           ,
           Archbishop
           of
           Canterbury
           ,
           
             was
             impeached
             of
          
           High
           Treason
           
             before
             the
          
           King
           and
           Lords
           in
           Parlament
           .
           The
           King
           '
           
             s
             answer
             was
          
           ,
           That
           forasmuch
           as
           this
           Impeachment
           
           did
           concern
           so
           high
           a
           Person
           ,
           
             &
             Pier
             de
             son
             Roialm
          
           ,
           (
           
             it
             is
             in
             the
          
           Record
           ,
           
             but
             left
             out
             in
             the
          
           Abridgment
           )
           
             and
             a
             Peer
             of
             the
             Realm
             ,
          
           the
           King
           would
           be
           advised
           .
           
             But
             soon
             after
             he
             was
             condemned
             for
          
           Treason
           
             by
             the
          
           House
           ,
           
             theProxie
             of
             the
             Bishops
             ,
             Sir
          
           Tho.
           Percy
           ,
           
             giving
             his
          
           Vote
           .
           
             The
             force
             of
             this
             doth
             not
             lie
             barely
             in
             his
             being
             impeached
             before
          
           the
           House
           of
           Peers
           
             in
             time
             of
          
           Parlament
           ;
           
             but
             that
             the
          
           King
           
             called
             him
             in
             his
          
           Answer
           
             a
             Peer
             of
             the
             Realm
          
           .
        
         
           And
           because
           two
           Laws
           were
           already
           passed
           ,
           the
           one
           ,
           
             that
             Peers
             were
             to
             try
             none
             but
             Peers
             ,
             4
             Ed.
             III.
             n.
          
           6.
           the
           other
           ,
           
             that
             Peers
             were
             to
             be
             tried
             onely
             by
             their
             Peers
             ,
             15
             Ed.
             III.
             n.
          
           7.
           the
           former
           of
           these
           ,
           
           the
           Authour
           of
           the
           
             Iurisdiction
             of
             the
             House
             of
             Peers
             asserted
          
           (
           one
           well
           known
           to
           the
           Authour
           of
           the
           
             Letter
             )
             would
             have
             onely
             looked
             on
             as
             a
             Temporary
             Order
             of
             the
             House
             .
          
           
           But
           our
           greatest
           Lawyers
           are
           of
           another
           opinion
           .
           And
           an
           eminent
           Lawyer
           still
           living
           urged
           this
           as
           an
           Act
           of
           
             Parlament
             ,
             because
             it
             is
             said
             ,
             that
             the
             King
             in
             full
             Parlament
             assented
             to
             it
             :
          
           and
           he
           added
           ,
           
             that
             the
             words
             are
             both
             Affirmative
             and
             Negative
             ;
             they
             shall
             not
             be
             bound
             ,
             or
             charged
             to
             try
             any
             other
             then
             Peers
             ,
             but
             be
             thereof
             discharged
             ;
             and
             that
             
             therein
             they
             declare
             it
             to
             be
             against
             Law
             for
             them
             to
             exercise
             Iurisdiction
             on
             those
             who
             were
             not
             their
             Peers
             .
          
           From
           whence
           it
           follows
           ,
           that
           since
           Stratford
           and
           Arundel
           ,
           Archbishops
           of
           Canterbury
           ,
           were
           allowed
           to
           be
           tried
           by
           the
           House
           of
           Peers
           ,
           (
           without
           Impeachment
           from
           the
           Commons
           )
           they
           were
           looked
           on
           as
           Peers
           by
           the
           whole
           House
           .
        
         
           The
           latter
           Act
           ,
           the
           same
           Authour
           cannot
           deny
           
             to
             be
             a
             binding
             Law
          
           ;
           but
           he
           hath
           a
           strange
           fetch
           to
           avoid
           the
           force
           of
           it
           ;
           
           
             viz.
             that
             this
             Law
             was
             made
             with
             respect
             to
             the
             Case
             of
          
           Roger
           Mortimer
           4
           
             Ed.
             III.
             and
             not
             to
             the
             Case
             of
          
           Stratford
           
             then
             in
             Agitation
          
           :
           which
           is
           without
           all
           colour
           of
           Reason
           .
           For
           the
           Case
           then
           was
           of
           a
           different
           nature
           ,
           viz.
           about
           the
           Peers
           trying
           those
           who
           were
           not
           Peers
           ,
           as
           Sir
           
             Simon
             Bereford
             ,
             &c
          
           :
           but
           here
           the
           case
           was
           ,
           
             whether
             Peers
             should
             be
             tried
             by
             any
             others
             then
             their
             Peers
             ;
             and
             the
             King
             granted
             they
             should
             not
             .
          
           Now
           upon
           this
           Stratford
           was
           allowed
           to
           be
           tried
           by
           his
           Peers
           in
           Parlament
           ;
           and
           therefore
           this
           Trial
           upon
           these
           Acts
           is
           an
           invincible
           Argument
           of
           the
           Peerage
           of
           the
           Bishops
           .
        
         
           In
           28
           
             H.
             VI.
          
           when
           
             William
             de
             la
             Pole
             ,
             Duke
          
           of
           Suffolk
           ,
           waved
           being
           tried
           by
           his
           Peers
           ,
           and
           submitted
           to
           the
           
             King's
             
             Mercy
          
           ;
           
           the
           Record
           saith
           ,
           (
           as
           the
           Authour
           of
           the
           Letter
           himself
           confesseth
           )
           that
           Viscount
           Beaumont
           ,
           
             on
             the
             behalf
             of
             the
             LordsSpiritualand
             Temporal
             ,
             and
             by
             their
             advice
             ,
             assent
             and
             desire
             ,
          
           moved
           the
           King
           ,
           that
           a
           
             Protestation
             might
             be
             enter'd
             in
             the
             Parlament-Roll
             ,
          
           that
           
             this
             should
             not
             be
             ,
             nor
             turn
             in
             prejudice
             nor
             derogation
             of
             them
             ,
             their
             Heirs
             ,
             ne
             of
             their
             Successours
             in
             time
             coming
             ;
             but
             that
             they
             may
             have
             and
             enjoy
             their
             Liberties
             and
             Freedoms
             as
             largely
             as
             ever
             their
             Ancestours
             and
             Predecessours
             had
             or
             enjoy'd
             them
             before
             this
             time
             .
          
           Which
           Sir
           
             R.
             Cotton
          
           more
           briefly
           expresseth
           ,
           
             n.
             52.
             that
             neither
             they
             nor
             their
             Heirs
             should
             by
             this
             example
             be
             barred
             of
             their
             Peerage
             .
          
           The
           Authour
           of
           the
           Letter
           more
           fully
           puts
           in
           Successours
           ,
           as
           well
           as
           Heirs
           ;
           for
           this
           Protestation
           was
           made
           in
           behalf
           of
           the
           
             Lords
             Spiritual
          
           as
           well
           as
           Temporal
           .
           But
           very
           unfairly
           leaves
           out
           the
           most
           material
           words
           in
           the
           Record
           ,
           viz.
           [
           after
           
             Freedoms
             ,
             ]
             in
             case
             of
             their
             Peerage
             .
          
           And
           I
           appeal
           to
           the
           Authour
           himself
           ,
           whether
           these
           words
           be
           not
           in
           the
           Record
           ;
           and
           with
           what
           ingenuity
           they
           are
           left
           out
           ,
           I
           cannot
           understand
           .
           I
           do
           not
           charge
           the
           Authour
           of
           the
           Letter
           himself
           with
           this
           ;
           but
           whosoever
           searched
           the
           Records
           for
           him
           ,
           hath
           dealt
           very
           
           unfaithfully
           with
           him
           .
           And
           I
           suppose
           ,
           if
           he
           had
           seen
           this
           passage
           himself
           ,
           he
           would
           never
           have
           so
           peremptorily
           denied
           the
           Peerage
           of
           the
           Bishops
           ;
           nor
           asserted
           with
           so
           much
           assurance
           ,
           that
           they
           
             are
             onely
             to
             be
             tried
             by
             Commoners
             ,
             and
             that
             it
             was
             always
             so
             ,
             and
             never
             otherwise
             .
          
        
         
           (
           2.
           )
           Suppose
           the
           Bishops
           have
           been
           tried
           by
           
             Commoners
             out
             of
             Parlament
          
           ,
           this
           doth
           not
           take
           away
           their
           
             Right
             of
             Peerage
             in
             Parlament
          
           .
           For
           all
           our
           dispute
           is
           concerning
           the
           Right
           of
           their
           
             Peerage
             in
             Parlament
          
           ;
           and
           if
           that
           be
           allowed
           ,
           we
           are
           not
           to
           dispute
           concerning
           the
           difference
           that
           in
           some
           respects
           may
           arise
           by
           Custom
           ,
           or
           practice
           of
           Common
           Law
           ,
           between
           Peers
           by
           Descent
           ,
           and
           Peers
           by
           Tenure
           in
           Right
           of
           their
           Baronies
           .
           And
           therefore
           the
           Authour
           of
           the
           
             Peerage
             of
             the
             Lords
             Spiritual
          
           might
           have
           spared
           all
           the
           needless
           pains
           he
           takes
           about
           this
           :
           
           for
           we
           do
           not
           contend
           that
           they
           have
           an
           
             Inheritable
             Peerage
          
           ,
           but
           that
           they
           are
           
             Peers
             in
             Parlament
          
           ,
           having
           a
           Right
           to
           sit
           and
           judge
           there
           by
           virtue
           of
           their
           Baronies
           .
        
         
           But
           from
           hence
           he
           undertakes
           to
           prove
           ,
           
             that
             by
             Magna
             Charta
             they
             cannot
             be
             Iudges
             of
             such
             who
             are
             ennobled
             in
             Bloud
             .
          
           This
           comes
           home
           to
           our
           present
           
           business
           ,
           and
           therefore
           must
           be
           considered
           .
        
         
           1.
           
           He
           saith
           ,
           
           that
           he
           who
           hath
           onely
           a
           Praedial
           or
           Feudal
           ,
           and
           not
           
             Personal
             ,
             Peerage
             ,
             can
             have
             no
             Iurisdiction
             but
             such
             as
             is
             suitable
             to
             the
             nature
             of
             his
          
           Peerage
           ;
           and
           therefore
           can
           onely
           
             extend
             to
             matters
             of
             property
             and
             possession
             ,
             and
             not
             to
             matters
             of
             Bloud
             .
          
           But
           that
           this
           is
           a
           very
           trifling
           and
           ill-consider'd
           argument
           appears
           by
           this
           ,
           that
           he
           grants
           a
           
             Lord
             Keeper
             ,
             Lord
             Privy
             Seal
             ,
             Lord
             Treasurer
             ,
          
           to
           be
           Peers
           by
           their
           Offices
           ;
           for
           ,
           as
           he
           speaks
           ,
           
             after
             Regradation
             their
             Peerage
             is
             ended
             :
          
           and
           he
           will
           not
           deny
           that
           these
           may
           sit
           as
           Iudges
           in
           
             Capital
             Cases
          
           ,
           although
           they
           be
           Peers
           onely
           by
           their
           Offices
           .
           Those
           that
           are
           
             Peers
             in
             Parlament
          
           have
           Right
           to
           judge
           in
           
             all
             Cases
          
           that
           belong
           to
           the
           Iudicature
           of
           Parlament
           .
        
         
           2.
           
           He
           saith
           ,
           that
           the
           Reason
           of
           
             Magna
             Charta
          
           is
           ,
           
           that
           the
           Iudges
           and
           
             Prisoner
             may
             be
             under
             the
             same
             Circumstances
             .
          
           But
           this
           kind
           of
           arguing
           as
           well
           excludes
           a
           
             Lord
             Keeper
          
           ,
           who
           is
           
             no
             Baron
          
           ,
           as
           a
           Bishop
           ;
           and
           supposes
           that
           mens
           capacity
           for
           Judgment
           depends
           upon
           perfect
           equality
           of
           Circumstances
           :
           whereas
           Knowledge
           and
           Integrity
           go
           farther
           towards
           constituting
           
           one
           that
           is
           a
           Peer
           but
           in
           one
           respect
           ,
           a
           just
           Judge
           ,
           then
           
             bare
             Inheritance
          
           of
           Honour
           can
           do
           .
           But
           to
           give
           a
           full
           Answer
           to
           this
           Argument
           ,
           on
           which
           that
           Authour
           lays
           so
           much
           weight
           ,
           and
           challenges
           any
           Person
           ,
           
             to
             give
             a
             rational
             account
             wherein
             the
             advantage
             of
             a
             man's
             being
             tried
             by
             his
             Peers
             doth
             consist
          
           ;
           I
           shall
           (
           1
           )
           shew
           that
           this
           was
           not
           the
           Reason
           of
           
             Trial
             by
             Peers
          
           ;
           (
           2
           )
           give
           a
           brief
           account
           of
           the
           true
           and
           original
           Reason
           of
           it
           .
        
         
           [
           1.
           ]
           That
           this
           was
           not
           the
           Reason
           .
        
         
           1.
           
           Not
           in
           the
           Judgment
           of
           the
           
             Peers
             themselves
          
           ,
           as
           that
           Authour
           hath
           himself
           sufficiently
           proved
           ,
           when
           he
           takes
           so
           much
           pains
           to
           prove
           
             p.
             3.
             that
             a
             Writ
             of
             Summons
             to
             Parlament
             doth
             not
             ennoble
             the
             Bloud
          
           ;
           and
           consequently
           ,
           doth
           not
           put
           persons
           into
           equality
           of
           Circumstances
           with
           those
           
             whose
             Bloud
             is
             ennobled
          
           :
           and
           yet
           he
           grants
           ,
           
             that
             those
             who
             sate
             in
             the
             House
             of
             Peers
             by
             virtue
             of
             their
             Summons
             did
             judge
             as
             Peers
          
           ;
           as
           is
           manifest
           from
           his
           own
           
             Precedents
             p.
          
           15.
           from
           the
           4
           Edw.
           3.
           
           From
           whence
           it
           follows
           ,
           that
           this
           was
           not
           thought
           to
           be
           the
           Reason
           by
           the
           Peers
           themselves
           in
           Parlament
           .
        
         
           2.
           
           That
           this
           was
           not
           the
           Reason
           in
           the
           Judgment
           of
           our
           greatest
           Lawyers
           ;
           because
           they
           tell
           us
           ,
           that
           where
           this
           Reason
           
           holds
           ,
           yet
           it
           doth
           not
           make
           men
           Judges
           .
           As
           for
           instance
           ,
           
             those
             who
             are
             ennobled
             by
             Bloud
             ,
             if
             they
          
           be
           not
           Lords
           of
           Parlament
           ,
           are
           not
           to
           be
           Judges
           in
           the
           case
           of
           one
           ennobled
           by
           Bloud
           .
           
             Onely
             a
             Lord
             of
             the
             Parlament
             of
             England
             ,
          
           saith
           Coke
           ,
           
           
             shall
             be
             tried
             by
             his
             Peers
             being
             Lords
             of
             Parlament
             ;
             and
             neither
             Noblemen
             of
             any
             other
             Country
             ,
             nor
             others
             that
             are
             called
             Lords
             ,
             and
             are
             no
             Lords
             of
             Parlament
             ,
             are
             accounted
          
           Pares
           
             Peers
             within
             this
             Statute
          
           .
           Therefore
           the
           Parity
           is
           not
           of
           Bloud
           ,
           but
           of
           Privilege
           in
           Parlament
           .
        
         
           3.
           
           The
           Practice
           it self
           shews
           that
           this
           was
           not
           the
           Reason
           .
           For
           this
           Reason
           would
           equally
           hold
           whether
           the
           Trial
           be
           at
           the
           
             King's
             Suit
          
           ,
           or
           the
           
             Suit
             of
             the
             party
          
           :
           but
           in
           the
           latter
           case
           ,
           as
           in
           
             an
             appeal
             for
             Murther
          
           ,
           a
           man
           whose
           bloud
           is
           ennobled
           must
           be
           tried
           by
           those
           whose
           bloud
           is
           not
           ennobled
           ;
           
           even
           
             by
             an
             Ordinary
             Iury
             of
             12
             men
             .
          
           And
           I
           desire
           our
           Authour
           to
           consider
           what
           becomes
           of
           
             the
             inheritable
             quality
             of
             Bloud
          
           in
           this
           case
           ,
           when
           Life
           and
           Fortune
           lies
           at
           the
           mercy
           of
           12
           substantial
           Free-holders
           ?
           who
           ,
           it
           is
           likely
           ,
           do
           not
           set
           such
           a
           value
           upon
           Nobility
           as
           Noble-men
           themselves
           do
           :
           and
           yet
           our
           Law
           ,
           which
           surely
           is
           not
           against
           
           
             Magna
             Charta
          
           ,
           allows
           an
           
             Ordinary
             Iury
             at
             the
             Suit
             of
             the
             party
          
           to
           sit
           in
           Judgment
           upon
           the
           greatest
           Noble-men
           .
           Therefore
           this
           Reason
           can
           signifie
           nothing
           against
           the
           Bishops
           ,
           who
           are
           Lords
           in
           Parlament
           ,
           as
           I
           have
           already
           proved
           .
        
         
           [
           2.
           ]
           
             I
             shall
             give
             a
             brief
             account
             of
             the
             true
             and
             original
          
           Reason
           
             of
             this
          
           Trial
           by
           Peers
           ;
           
             without
             which
             ,
             that
          
           Authour
           
             it
             seems
             is
             resolved
             to
             conclude
             ,
          
           that
           the
           Iurisdiction
           of
           the
           Bishops
           in
           Capital
           Cases
           is
           an
           abuse
           of
           Magna
           Charta
           ,
           and
           a
           Violation
           offer'd
           to
           the
           Liberties
           of
           English
           Subjects
           .
        
         
           As
           to
           the
           general
           Reason
           of
           the
           
             Trial
             by
             Peers
          
           ,
           it
           is
           easie
           to
           conceive
           it
           to
           have
           risen
           from
           the
           care
           that
           was
           taken
           ,
           to
           prevent
           any
           unfair
           proceedings
           in
           what
           did
           concern
           the
           Lives
           and
           Fortunes
           of
           men
           .
           From
           hence
           Tacitus
           observes
           of
           the
           old
           Germans
           ,
           
           that
           
             their
             Princes
             ,
             who
             were
             chosen
             in
             their
             great
             Councils
             to
             doe
             justice
             in
             the
             several
             Provinces
             ,
             had
             some
             of
             the
             People
             joyned
             with
             them
             ,
             both
             for
             Advice
             and
             Authority
             .
          
           These
           were
           Assessours
           to
           the
           Judges
           ;
           that
           mens
           lives
           and
           fortunes
           might
           not
           depend
           on
           the
           pleasure
           of
           one
           man
           :
           and
           they
           were
           chosen
           out
           of
           the
           chief
           of
           the
           People
           ,
           none
           but
           those
           who
           were
           
             born
             free
          
           being
           capable
           
           of
           this
           honour
           .
           In
           the
           latter
           times
           of
           the
           
             German
             State
          
           ,
           before
           the
           subduing
           it
           by
           Charlemagn
           ,
           
           some
           learned
           men
           say
           ,
           
             their
             Iudges
             were
             chosen
             out
             of
             the
             Colleges
             of
             Priests
             ,
             especially
             among
             the
             Saxons
             .
          
           After
           their
           being
           conquer'd
           by
           him
           ,
           there
           were
           2
           Courts
           of
           Judicature
           established
           among
           them
           ,
           as
           in
           other
           parts
           of
           the
           
             German
             Empire
          
           .
        
         
           1.
           
           One
           ordinary
           and
           
             Popular
             ,
             viz.
          
           by
           the
           Comites
           ,
           or
           great
           Officers
           sent
           by
           the
           Emperour
           into
           the
           several
           Districts
           ;
           and
           the
           Scabini
           ,
           who
           were
           Assistants
           to
           the
           other
           ,
           and
           were
           generally
           chosen
           by
           the
           People
           .
           The
           number
           of
           these
           at
           first
           was
           uncertain
           ;
           but
           in
           the
           Capitulars
           they
           are
           required
           to
           be
           seven
           ,
           who
           were
           always
           to
           assist
           the
           Comes
           in
           passing
           Judgments
           .
           But
           
             Ludovicus
             Pius
          
           ,
           in
           his
           second
           
             Capitular
             ,
             A.
             D.
          
           819.
           c.
           2.
           enlarged
           their
           number
           to
           12.
           
           And
           if
           they
           did
           not
           come
           along
           with
           him
           ,
           they
           were
           to
           be
           chosen
           out
           of
           the
           most
           substantial
           Free-holders
           of
           the
           County
           :
           for
           the
           words
           are
           ,
           
             De
             melioribus
             illius
             Comitatûs
             suppleat
             numerum
             duodenarium
             .
          
           This
           I
           take
           to
           be
           the
           true
           Original
           of
           our
           Juries
           .
           For
           our
           Saxon
           Laws
           were
           taken
           very
           much
           from
           the
           Laws
           of
           the
           
             Christian
             Emperours
          
           of
           the
           Caroline
           Race
           ,
           as
           I
           could
           at
           large
           
           prove
           ,
           if
           it
           were
           not
           impertinent
           to
           our
           business
           ;
           and
           thence
           discover
           a
           great
           mistake
           of
           our
           Lawyers
           ,
           who
           make
           our
           ancient
           Laws
           and
           Customs
           peculiar
           to
           our selves
           .
           As
           in
           this
           very
           case
           of
           
             Trial
             by
             Peers
          
           ,
           which
           was
           the
           common
           practice
           of
           these
           parts
           of
           the
           World.
           Therefore
           
             Otto
             Frisingensis
          
           takes
           notice
           of
           it
           as
           an
           unusual
           thing
           in
           Hungary
           ;
           
           
             Nulla
             sententia
             à
             Principe
             ,
             sicut
             apud
             nos
             moris
             est
             ,
             per
             pares
             suos
             exposcitur
             —
             sola
             sed
             Principis
             voluntas
             apud
             omnes
             pro
             ratione
             habetur
             :
          
           that
           
             they
             were
             not
             judged
             by
             their
             Peers
             ,
             but
             by
             the
             Will
             of
             their
             Prince
             .
          
           Which
           shews
           ,
           that
           this
           way
           of
           Trial
           was
           looked
           on
           as
           the
           practice
           of
           the
           Empire
           ,
           and
           as
           preventing
           the
           inconveniences
           of
           arbitrary
           Government
           .
           And
           it
           was
           established
           in
           the
           Laws
           of
           the
           Lombards
           ,
           
           and
           the
           Constitutions
           of
           Sicily
           .
           In
           the
           one
           it
           is
           said
           to
           be
           
             Iudicium
             Parium
          
           ;
           in
           the
           other
           ,
           
             proborum
             virorum
          
           .
           In
           the
           
             Saxon
             Laws
          
           of
           King
           Ethelred
           at
           Wanting
           ,
           c.
           4.
           12
           
           
             Freemen
             are
             appointed
             to
             be
             sworn
             to
             doe
             Iustice
             among
             their
             neighbours
             in
             every
             Hundred
             .
          
           
           Those
           in
           the
           Laws
           of
           Alfred
           are
           rather
           12
           Compurgators
           then
           Iudges
           ;
           however
           some
           make
           him
           the
           Authour
           of
           the
           
             Trial
             by
             Peers
          
           in
           England
           .
           But
           by
           whomsoever
           it
           was
           brought
           into
           request
           here
           ,
           
           it
           was
           no
           other
           way
           of
           Trial
           ,
           then
           what
           was
           ordinary
           in
           other
           parts
           of
           Europe
           ;
           and
           was
           a
           great
           instance
           of
           the
           moderation
           of
           the
           Government
           of
           the
           
             Northern
             Kingdoms
          
           .
        
         
           2.
           
           There
           was
           an
           extraordinary
           or
           
             Royal
             Court
          
           of
           Iudicature
           :
           and
           that
           either
           by
           way
           of
           Appeal
           ,
           which
           was
           allowed
           from
           inferiour
           Courts
           ;
           or
           in
           the
           
             Causes
             of
             Great
             men
          
           ,
           which
           were
           reserved
           to
           this
           
             Supreme
             Court.
          
           In
           which
           either
           the
           King
           himself
           was
           present
           ,
           or
           the
           
             Comes
             Palatii
          
           ,
           who
           was
           
             Lord
             High
             Steward
          
           ;
           and
           all
           the
           
             Great
             persons
          
           were
           Assessours
           to
           him
           .
           In
           such
           a
           
             Court
             Brunichildis
          
           was
           condemned
           in
           France
           ;
           
           and
           Tassilo
           Duke
           of
           Bavaria
           in
           the
           Empire
           ;
           and
           Ernestus
           ,
           and
           other
           
             Great
             men
          
           ,
           
           
             A.
             D.
          
           861
           ;
           and
           Erchingerus
           and
           Bartoldus
           under
           Conradus
           ,
           the
           last
           of
           the
           
             French
             Race
          
           .
           And
           among
           the
           Causes
           expresly
           reserved
           for
           this
           
             Supreme
             Court
          
           ,
           were
           those
           which
           concerned
           the
           Prelats
           as
           well
           as
           the
           Nobles
           .
           
           
             Vt
             Episcopi
             ,
             Abbates
             ,
             Comites
             ,
             &
             potentiores
             quique
             ,
             si
             causam
             inter
             se
             habuerint
             ,
             ac
             se
             pacificare
             noluerint
             ,
             ad
             nostram
             jubeantur
             venire
             praesentiam
             :
             neque
             illorum
             contentio
             aliubi
             judicetur
             .
          
           But
           in
           this
           Court
           they
           challenged
           that
           as
           their
           privilege
           to
           be
           
             tried
             by
             their
             Peers
          
           ;
           who
           were
           
           called
           
             Pares
             Curiae
          
           .
           
           So
           the
           
             Emperour
             Sigismund
          
           ,
           in
           his
           Protestation
           before
           the
           States
           of
           the
           
             Empire
             ;
             Cùm
             secundùm
             juris
             communis
             dispositionem
             ,
             nec
             non
             usum
             ,
             morem
             ,
             stylum
             &
             consuetudinem
             sacri
             Romani
             Imperii
             ,
             feudalis
             contentio
             per
             Dominum
             feudi
             ,
             ac
             Pares
             Curiae
             terminanda
             sit
             ,
          
           &c.
           And
           again
           ,
           
             nisi
             Parium
             nostrae
             Curiae
             arbitrio
          
           .
           
           So
           likewise
           in
           France
           ,
           as
           Tilius
           saith
           ,
           
             Haec
             judiciorum
             ratio
             ,
             ut
             de
             causis
             feudalibus
             judicent
             Feudales
             Pares
             ,
          
           
           
             in
             Gallia
             est
             perantiqua
          
           .
           So
           in
           Fulbertus
           one
           Count
           sends
           word
           to
           another
           ,
           
             that
             their
             Cause
             should
             not
             be
             determin'd
             ,
             nisi
             in
             Conventu
             Parium
             suorum
             .
          
           And
           many
           other
           examples
           might
           be
           produced
           :
           but
           these
           are
           sufficient
           to
           make
           us
           understand
           the
           
             true
             Original
          
           of
           this
           Right
           of
           Peerage
           ;
           which
           was
           from
           the
           
             Feodal
             Laws
          
           ;
           and
           all
           those
           who
           held
           of
           the
           
             same
             Lord
          
           ,
           and
           by
           the
           
             same
             Tenure
          
           ,
           were
           said
           to
           be
           Pares
           Peers
           .
           And
           therefore
           since
           the
           Bishops
           in
           England
           were
           Barons
           by
           Tenure
           ever
           since
           William
           I.
           by
           consequence
           they
           were
           Peers
           to
           other
           Barons
           ;
           and
           had
           the
           same
           original
           Right
           of
           Trial
           by
           other
           Barons
           as
           their
           Peers
           ,
           holding
           by
           the
           
             same
             Tenure
          
           ,
           and
           sitting
           in
           the
           
             same
             Court.
          
           And
           thus
           I
           hope
           I
           have
           given
           (
           what
           that
           Authour
           so
           impatiently
           
           desired
           ,
           viz.
           )
           a
           
             rational
             account
          
           of
           the
           
             Trial
             by
             Peers
          
           ;
           and
           have
           thereby
           shewed
           ,
           that
           this
           is
           so
           far
           from
           being
           any
           disadvantage
           to
           the
           Bishops
           Cause
           ,
           that
           it
           adds
           very
           much
           to
           the
           Iustice
           of
           it
           .
        
         
           And
           that
           this
           is
           so
           far
           from
           being
           
             a
             violation
             of
             Magna
             Charta
          
           ,
           that
           it
           is
           within
           the
           intention
           and
           meaning
           of
           it
           ,
           I
           thus
           prove
           .
           In
           the
           14.
           ch
           .
           of
           
             Magna
             Charta
          
           we
           read
           ,
           
             Comites
             &
             Barones
             non
             amercientur
             nisi
             per
             Pares
             suos
             :
          
           but
           by
           the
           Common
           Law
           the
           Amerciament
           of
           a
           Bishop
           is
           the
           same
           with
           that
           of
           a
           Lay-Baron
           ;
           and
           therefore
           in
           the
           sense
           of
           the
           Law
           ,
           they
           are
           looked
           on
           as
           Peers
           .
           And
           all
           the
           
             Parlamentary
             Barons
          
           ,
           whether
           Bishops
           or
           Abbots
           ,
           were
           amerced
           as
           Barons
           .
           Thence
           15
           Edw.
           2.
           a
           Writ
           was
           directed
           to
           the
           Justices
           of
           the
           Common
           Pleas
           ,
           
           that
           they
           should
           not
           amerce
           the
           Abbot
           of
           
             Crowland
             tanquam
             Baro
          
           ,
           because
           he
           did
           not
           hold
           
             per
             Baroniam
             aut
             partem
             Baroniae
          
           .
           And
           it
           is
           confessed
           by
           the
           most
           learned
           Lawyers
           ,
           that
           the
           
             Lords
             Spiritual
             do
             enjoy
          
           the
           same
           
             legal
             Privileges
          
           ,
           
           in
           other
           respects
           ,
           which
           the
           Temporal
           Barons
           do
           ;
           as
           in
           
             real
             Actions
          
           to
           
             have
             a
             Knight
             returned
             in
             their
             Iury
          
           ;
           
           
             as
             to
             a
             day
             of
             Grace
             ;
             hunting
             in
             the
             King's
             Forests
             ;
             Scandalum
             Magnatum
             ,
          
           &c.
           
           Now
           since
           the
           Law
           of
           England
           
           allows
           onely
           a
           
             double
             Parity
             ,
             viz.
          
           as
           
             to
             Lords
             of
             Parlament
          
           ,
           and
           Commons
           ,
           whether
           Knights
           ,
           Esquires
           ,
           Gentlemen
           ,
           or
           Yeomen
           ,
           without
           any
           consideration
           of
           the
           great
           inequality
           of
           circumstances
           among
           them
           ;
           
             (
             Yeomen
          
           having
           as
           little
           sense
           of
           Gentility
           ,
           as
           Commons
           can
           have
           of
           the
           privileges
           of
           
             Nobles
             ;
          
           )
           it
           is
           apparent
           that
           this
           
             Trial
             by
             Peers
          
           was
           not
           founded
           upon
           
             equality
             of
             circumstances
          
           ;
           and
           that
           in
           all
           reason
           ,
           those
           who
           do
           enjoy
           the
           
             legal
             Privileges
          
           of
           Peers
           ,
           are
           to
           be
           looked
           on
           as
           such
           by
           
             Magna
             Charta
          
           .
        
         
           
             But
             the
             great
             Objection
             is
          
           ,
           that
           the
           Lawyers
           are
           of
           another
           opinion
           ,
           as
           to
           this
           Trial
           by
           Peers
           ;
           and
           not
           onely
           the
           common
           sort
           ,
           
             who
             take
             all
             upon
             Trust
             which
             they
             find
             in
             the
             modern
             Law-Books
             ,
             but
          
           those
           who
           have
           searched
           most
           into
           Antiquity
           ,
           such
           as
           Mr.
           Selden
           and
           Sir
           
             Edw.
             Coke
          
           .
        
         
           To
           this
           therefore
           I
           answer
           .
        
         
           1.
           
           The
           Authour
           of
           the
           Peerage
           ,
           
           &c.
           proves
           the
           Bishops
           are
           not
           Peers
           ,
           because
           not
           to
           be
           tried
           by
           Peers
           .
           
           
             This
             consequence
             Mr.
          
           Selden
           
             utterly
             denies
             ;
             for
             he
             saith
             ,
          
           it
           is
           true
           and
           plain
           that
           the
           Bishops
           have
           been
           Peers
           .
           
             For
             which
             he
             quotes
          
           the
           Bishop
           of
           Winchester's
           Case
           ,
           who
           was
           question'd
           in
           the
           King's
           Bench
           for
           leaving
           the
           Parlament
           at
           
           Salisbury
           in
           the
           beginning
           of
           Ed.
           III.
           and
           he
           pleaded
           to
           the
           declaration
           ,
           
             quod
             ipse
             est
             unus
             e
             Paribus
             Regni
             ,
          
           that
           he
           was
           one
           of
           the
           Peers
           of
           the
           Realm
           :
           
             which
             ,
             he
             saith
          
           ,
           was
           allowed
           in
           Court.
           
             And
             from
             other
          
           Book-cases
           and
           Parlament-Rolls
           
             he
             there
             evidently
             proves
             ,
             that
             the
          
           Bishops
           were
           Peers
           :
           
             which
             he
             not
             onely
             asserts
             in
             that
             confused
          
           Rhapsodie
           ,
           
             which
             went
             abroad
             under
             his
             name
             ;
             but
             in
             his
             elaborate
             Work
             of
             the
             last
             Edition
             of
             his
          
           Titles
           of
           Honour
           ,
           
           
             in
             which
             he
             corrected
             and
             left
             out
             the
             false
             or
             doubtfull
             passages
             of
             his
             first
             Edition
             .
             And
             among
             the
             rest
             ,
             that
             passage
             wherein
             this
          
           Authour
           triumphs
           ,
           A
           Bishop
           shall
           not
           be
           tried
           by
           Peers
           in
           Capital
           Crimes
           .
           
             The
             same
             thing
             I
             confess
             is
             said
             in
             the
          
           Privileges
           of
           the
           Baronage
           ;
           
             which
             he
             there
             calls
          
           a
           point
           of
           Common
           Law
           as
           it
           is
           distinguished
           from
           Acts
           of
           Parlament
           ;
           
             i.
             e.
          
           the
           custom
           and
           practice
           hath
           been
           so
           .
           
             And
             the
             onely
             evasion
             he
             hath
             for
          
           Magna
           Charta
           
             is
             this
          
           ;
           
           that
           it
           is
           now
           to
           be
           interpreted
           according
           to
           the
           current
           practice
           ,
           and
           not
           by
           the
           literal
           interpretation
           of
           the
           Words
           .
           
             Which
             is
             an
             admirable
             answer
             ,
             if
             one
             well
             considers
             it
             ,
             and
             justifies
             all
             violations
             of
          
           Magna
           Charta
           ,
           
             if
             once
             they
             obtain
             and
             grow
             into
          
           Custom
           .
           
             For
             then
             ,
             no
             matter
             for
             the
             express
             words
             of
          
           Magna
           
           Charta
           ,
           
             if
             the
             contrary
             practice
             hath
             been
             received
             and
             allowed
             in
             legal
             proceedings
             .
             This
             is
             to
             doe
             by
          
           Magna
           Charta
           ,
           
             as
             the
             Papists
             doe
             by
             the
          
           Scriptures
           ,
           viz.
           
             make
             it
             a
          
           meer
           Nose
           of
           Wax
           ,
           
             and
             say
          
           it
           is
           to
           be
           interpreted
           according
           to
           the
           Practice
           of
           the
           Church
           .
        
         
           2.
           
           Some
           things
           are
           affirmed
           about
           this
           matter
           with
           as
           great
           assurance
           as
           this
           is
           ,
           which
           have
           not
           been
           the
           constant
           practice
           .
           
           Coke
           is
           positive
           ,
           
             that
             Bishops
             are
             not
             to
             be
             tried
             by
             their
             Peers
          
           ;
           but
           so
           he
           is
           in
           the
           same
           page
           ,
           
             that
             a
             Nobleman
             cannot
             wave
             his
             Trial
             by
             his
             Peers
             ,
             and
             put
             himself
             upon
             the
             Trial
             of
             the
             Countrey
             :
          
           Whereas
           it
           is
           said
           in
           the
           
             Record
             4
             Ed.
          
           III.
           that
           
             Thomas
             Lord
             Berkely
             ,
             ponit
             se
             super
             Patriam
             ,
             put
             himself
             upon
             his
             Countrey
             ,
          
           and
           was
           tried
           by
           a
           Jury
           of
           12
           Knights
           .
           And
           28
           H.
           VI.
           the
           Duke
           of
           Suffolk
           declined
           the
           Trial
           of
           his
           Peers
           ,
           and
           submitted
           to
           the
           King's
           mercy
           .
           By
           which
           it
           appears
           ,
           that
           this
           was
           a
           Privilege
           which
           was
           not
           to
           be
           denied
           them
           ,
           if
           they
           challenged
           it
           ;
           but
           ,
           at
           least
           before
           15
           Ed.
           III.
           they
           might
           wave
           it
           if
           they
           pleased
           ;
           and
           after
           that
           too
           ,
           if
           they
           were
           tried
           out
           of
           Parlament
           .
           For
           this
           
             Trial
             by
             Peers
          
           was
           intended
           for
           a
           security
           against
           arbitrary
           Power
           in
           taking
           away
           mens
           Lives
           ;
           and
           therefore
           it
           was
           
           allowed
           
             at
             the
             King's
             Suit
          
           ,
           but
           not
           
             at
             the
             Suit
             of
             the
             Party
             .
          
           But
           if
           Bishops
           were
           tried
           out
           of
           Parlament
           ,
           and
           did
           voluntarily
           decline
           the
           challenge
           of
           this
           Privilege
           ,
           this
           is
           no
           argument
           at
           all
           against
           their
           
             Right
             of
             Peerage
          
           :
           and
           so
           I
           find
           some
           say
           it
           was
           in
           the
           Case
           of
           Fisher
           ,
           
           
             Bishop
             of
             Rochester
          
           ,
           in
           H.
           VIII
           '
           s
           time
           ;
           which
           is
           the
           great
           Precedent
           in
           the
           Law-Books
           .
        
         
           3.
           
           The
           method
           of
           Proceeding
           as
           to
           the
           
             Trial
             of
             Bishops
          
           by
           
             Common
             Iuries
          
           ,
           while
           the
           
             Pope's
             Power
          
           continued
           in
           England
           ,
           is
           not
           so
           clear
           ,
           that
           any
           forcible
           Argument
           can
           be
           drawn
           from
           thence
           .
           Because
           the
           Bishops
           then
           looked
           on
           themselves
           as
           having
           
             no
             Peers
          
           ,
           out
           of
           Parlament
           ,
           in
           point
           of
           Judgment
           ,
           but
           Bishops
           .
           As
           in
           the
           famous
           Case
           of
           Adam
           Bishop
           of
           Hereford
           ,
           under
           Edw.
           II.
           who
           was
           rescued
           from
           the
           King's
           Bench
           by
           his
           Brethren
           the
           Bishops
           ,
           because
           they
           looked
           on
           his
           appearing
           there
           as
           a
           Violation
           of
           the
           Liberties
           of
           the
           Church
           .
           I
           do
           not
           go
           about
           to
           defend
           these
           Proceedings
           ;
           but
           I
           am
           sure
           the
           Authour
           of
           the
           
             Peerage
             ,
             &c.
          
           very
           much
           misrepresents
           this
           business
           :
           for
           he
           makes
           it
           as
           if
           the
           Bishop
           were
           
             legally
             convicted
             in
             Court
             by
             a
             common
             Iury
             ,
          
           
           and
           that
           
             after
             conviction
             he
             was
             deliver'd
             to
             the
             Archbishop
             ,
             to
             the
             intent
             ,
          
           as
           he
           supposes
           ,
           
           
             that
             he
             should
             be
             degraded
          
           .
           Whereas
           ,
           in
           truth
           ,
           the
           Bishops
           carried
           him
           out
           of
           the
           Court
           ,
           without
           his
           giving
           any
           Answer
           to
           the
           Endictment
           ;
           and
           when
           he
           was
           absent
           ,
           the
           King
           commanded
           the
           Iury
           to
           bring
           in
           their
           Verdict
           ;
           and
           without
           ever
           being
           heard
           to
           make
           any
           Defence
           for
           himself
           ,
           
           they
           found
           him
           guilty
           in
           all
           the
           Articles
           laid
           to
           his
           Charge
           .
           That
           Authour
           very
           freely
           bestows
           the
           terms
           of
           Impudence
           on
           the
           Bishops
           of
           that
           time
           ,
           and
           Ignorance
           on
           those
           who
           go
           about
           to
           defend
           them
           :
           
           but
           I
           desire
           to
           know
           whether
           of
           these
           two
           makes
           a
           man
           thus
           misrepresent
           a
           matter
           of
           fact
           ?
           For
           it
           was
           so
           far
           from
           being
           true
           ,
           
             that
             upon
             Conviction
             he
             was
             deliver'd
             to
             the
             Archbishop
             to
             be
             degraded
          
           ;
           that
           he
           never
           appeared
           in
           Court
           after
           ,
           but
           continued
           under
           the
           Archbishop's
           care
           ,
           till
           ,
           after
           a
           while
           ,
           he
           fully
           reconciled
           him
           to
           the
           King
           ;
           notwithstanding
           the
           Jury
           found
           him
           guilty
           of
           Treason
           .
           I
           desire
           to
           be
           informed
           ,
           whether
           we
           are
           to
           understand
           
             Magna
             Charta
          
           by
           such
           a
           Trial
           as
           this
           ?
           Whether
           he
           were
           
             judged
             by
             his
             Peers
          
           ,
           I
           know
           not
           ;
           but
           I
           am
           sure
           he
           was
           not
           
             by
             the
             Law
             of
             the
             Land
          
           ;
           
           which
           I
           think
           is
           as
           good
           a
           part
           of
           
             Magna
             Charta
          
           as
           the
           other
           .
           And
           this
           ,
           our
           Historians
           tell
           us
           ,
           
             is
             the
             First
             Instance
             
             of
             any
             Trial
             of
             this
             kind
             ,
             of
             any
             Bishop
             in
             England
             :
          
           which
           hath
           too
           much
           of
           force
           and
           violence
           in
           it
           ,
           to
           be
           a
           good
           Interpreter
           of
           
             Magna
             Charta
          
           .
        
         
           The
           
             Second
             Precedent
          
           is
           verbatim
           out
           of
           Mr.
           Selden
           concerning
           
             Iohn
             de
             Isle
          
           ,
           and
           
             the
             Bishop
             of
             Ely
             his
             Brother
          
           ;
           which
           concerns
           such
           matters
           ,
           wherein
           himself
           confesses
           the
           
             Privilegium
             Clericale
          
           was
           allowed
           ;
           and
           the
           Record
           saith
           ,
           
             the
             Archbishop
             entering
             his
             plea
             ,
             that
             he
             was
             to
             be
             deliver'd
             to
             him
             as
             a
             member
             of
             his
             Church
             ,
             he
             was
             accordingly
             deliver'd
             ,
          
           after
           the
           Jury
           had
           given
           in
           their
           Verdict
           .
           Which
           shews
           ,
           indeed
           ,
           the
           good
           will
           that
           was
           then
           used
           ,
           to
           take
           away
           even
           the
           
             allowed
             Privileges
          
           of
           the
           Clergy
           by
           common
           Juries
           .
           And
           this
           is
           another
           stout
           Interpreter
           of
           
             Magna
             Charta
          
           ;
           when
           
             Bracton
             ,
             Briton
             ,
             Fleta
             ,
             Stat.
             West
             .
             1.
             
             Articuli
             Cleri
             c.
          
           15.
           are
           confessed
           ,
           
           even
           by
           Sir
           
             Edw.
             Coke
          
           ,
           to
           be
           so
           clear
           in
           the
           
           Clergie's
           behalf
           in
           these
           matters
           .
        
         
           The
           
             Third
             Precedent
          
           ,
           which
           is
           likewise
           out
           of
           the
           same
           Authour
           ,
           is
           of
           
             Thomas
             Merks
             ,
             Bishop
             of
             Carlisle
          
           ;
           who
           ,
           for
           his
           fidelity
           to
           R.
           II.
           and
           the
           true
           Heirs
           of
           the
           Crown
           ,
           against
           the
           Usurpation
           of
           H.
           IV.
           was
           found
           guilty
           of
           Treason
           by
           a
           
             common
             Iury.
          
           But
           Mr.
           Selden
           
           is
           so
           ingenuous
           as
           to
           take
           notice
           ,
           that
           the
           Writ
           directed
           to
           the
           Justices
           had
           in
           it
           a
           
             Non
             obstante
          
           to
           a
           Statute
           lately
           made
           at
           
             Westminster
             ;
             Licèt
             in
             Stat.
             apud
             Westm.
             nuper
             edito
             inter
             caetera
             continetur
             ,
             quòd
             nullus
             Archiep.
             nec
             Episcopus
             coram
             Iusticiariis
             nostris
             occasione
             alicujus
             criminis
             impetatur
             ,
             absque
             speciali
             praecepto
             nostro
             ,
             quousque
             ,
          
           &c.
           
           Which
           was
           read
           in
           Court
           :
           but
           the
           Judges
           urging
           ,
           
             that
             the
             Liberties
             of
             the
             Church
             did
             not
             extend
             to
             high
             Treason
             ,
          
           then
           it
           is
           said
           ,
           he
           did
           
             ponere
             se
             super
             Patriam
          
           ;
           just
           as
           
             Thomas
             Lord
             Berkely
          
           did
           4
           Ed.
           III.
           This
           is
           the
           onely
           Precedent
           that
           proves
           that
           a
           Bishop
           ,
           before
           the
           time
           of
           H.
           VIII
           .
           did
           
             put
             himself
             upon
             a
             common
             Iury
             :
          
           and
           yet
           we
           find
           as
           good
           a
           Precedent
           of
           this
           sort
           ,
           concerning
           an
           allowed
           Peer
           of
           the
           Realm
           .
           And
           whether
           this
           single
           Precedent
           be
           sufficient
           to
           interpret
           
             Magna
             Charta
          
           ,
           against
           the
           plain
           sense
           of
           the
           words
           ,
           and
           to
           make
           a
           
             constant
             practice
          
           ,
           I
           leave
           any
           rational
           man
           to
           judge
           .
        
         
           But
           if
           this
           were
           yielded
           in
           Cases
           of
           high
           Treason
           ,
           wherein
           the
           Privilege
           of
           Clergy
           holds
           not
           ;
           (
           especially
           since
           the
           
             Statutes
             25
             Ed.
          
           III.
           c.
           4.
           and
           4
           H.
           IV.
           
             c.
             2
             ,
             3.
          
           )
           Mr.
           Selden
           tells
           them
           ,
           that
           there
           is
           no
           consequence
           from
           hence
           ,
           because
           
           
             they
             are
             not
             to
             be
             tried
             by
             Peers
             ,
             therefore
             they
             are
             not
             Peers
             :
          
           since
           the
           Common
           Law
           may
           limit
           this
           Privilege
           of
           Peers
           in
           one
           particular
           case
           ,
           which
           may
           hold
           in
           all
           others
           .
           As
           it
           is
           no
           diminution
           to
           the
           Peerage
           of
           the
           
             Temporal
             Lords
          
           ,
           to
           be
           tried
           by
           a
           
             common
             Iury
             at
             the
             Suit
             of
             the
             Party
             .
          
           I
           conclude
           the
           Answer
           to
           this
           Argument
           ,
           
           as
           Mr.
           Camden
           doth
           his
           Discourse
           about
           this
           subject
           ;
           who
           having
           proved
           that
           the
           Bishops
           do
           enjoy
           all
           other
           Privileges
           of
           Peers
           ,
           except
           this
           of
           being
           tried
           by
           them
           ,
           (
           which
           he
           seems
           to
           attribute
           to
           a
           kind
           of
           Revenge
           upon
           them
           ,
           for
           pleading
           such
           exemptions
           by
           the
           Canon-Law
           )
           after
           all
           ,
           he
           
             leaves
             it
             to
             the
             Lawyers
             to
             determine
             ,
             whether
             this
             be
             juris
             explorati
             .
          
           The
           meaning
           of
           which
           I
           am
           sure
           is
           not
           ,
           as
           the
           Authour
           of
           the
           Letter
           expresseth
           it
           ,
           
             that
             it
             was
             always
             so
             ,
             and
             never
             otherwise
             .
          
        
         
           But
           the
           great
           difficulty
           to
           some
           is
           ,
           
             that
             a
             Praedial
             or
             Feudal
             Barony
             doth
             not
             ennoble
             the
             Bloud
             ;
             and
             therefore
             can
             give
             no
             Right
             of
             Peerage
             .
          
           Whereas
           it
           is
           well
           known
           ,
           that
           all
           the
           Baronies
           of
           England
           were
           such
           from
           the
           
           Conquerour's
           time
           ,
           till
           after
           the
           
             Barons
             Wars
          
           ,
           when
           ,
           for
           Reason
           of
           State
           ,
           it
           was
           thought
           necessary
           to
           make
           the
           Nobility
           more
           dependant
           on
           
           the
           Crown
           .
           And
           all
           that
           were
           Barons
           were
           
             Pares
             ,
             i.
             e.
             Peers
          
           .
           So
           
             du
             Fresn
          
           quotes
           an
           old
           Poem
           of
           the
           
             Common
             Laws
             of
             England
          
           ,
        
         
           Barons
           nous
           appellons
           les
           Piers
           del
           Realm
           .
           
        
         
           In
           France
           ,
           from
           whence
           our
           Baronies
           first
           came
           ,
           Ecclesiastical
           Persons
           with
           
             praedial
             Baronies
          
           are
           thought
           as
           capable
           of
           Peerage
           as
           any
           .
           For
           ,
           there
           at
           first
           all
           the
           
             Barones
             Regni
          
           (
           who
           both
           in
           France
           and
           England
           were
           the
           same
           with
           the
           
             Barones
             Regis
          
           ,
           however
           some
           of
           late
           have
           distinguished
           them
           )
           sate
           in
           the
           great
           Council
           ,
           and
           all
           publick
           Affairs
           passed
           through
           them
           ;
           and
           they
           were
           judged
           by
           their
           own
           Order
           :
           and
           these
           were
           called
           
             Pares
             Regni
          
           ,
           among
           whom
           the
           Bishops
           were
           comprehended
           .
           At
           last
           Lewis
           VII
           .
           
             A.
             D.
             1179.
          
           (
           as
           most
           Authours
           agree
           )
           chose
           Twelve
           out
           of
           the
           great
           number
           of
           the
           Peers
           of
           France
           ;
           of
           which
           half
           the
           number
           were
           Bishops
           who
           held
           
             feudal
             Baronies
          
           of
           the
           King
           ;
           and
           the
           Archbishop
           of
           Rheims
           is
           the
           First
           of
           the
           whole
           Number
           .
           And
           because
           these
           enjoy'd
           greater
           Privileges
           then
           other
           Peers
           ,
           their
           number
           was
           increased
           by
           particular
           Favour
           ;
           but
           the
           ancient
           Right
           of
           Peerage
           remained
           to
           all
           the
           Barons
           of
           the
           Realm
           .
           In
           Scotland
           ,
           
           when
           they
           appointed
           
             Twelve
             Peers
          
           for
           the
           
             King's
             Council
          
           ,
           
           they
           were
           4
           
             Bishops
             ,
             4
             Earls
             ,
             4
             Barons
             .
          
           So
           that
           in
           the
           neighbour
           Nations
           
             Feodal
             Baronies
          
           were
           never
           thought
           inconsistent
           with
           Peerage
           :
           and
           we
           have
           as
           little
           Reason
           to
           think
           them
           so
           with
           us
           ;
           since
           to
           this
           day
           ,
           the
           Bishops
           do
           enjoy
           not
           onely
           the
           great
           Right
           of
           Peerage
           ,
           of
           sitting
           and
           voting
           in
           the
           House
           of
           Peers
           ,
           but
           have
           some
           personal
           Privileges
           of
           Peers
           allowed
           them
           by
           the
           
             Common
             Law
          
           ,
           as
           is
           already
           shewed
           .
        
         
           II.
           The
           last
           thing
           to
           be
           considered
           is
           ,
           the
           Capacity
           in
           which
           they
           sit
           in
           the
           House
           ,
           whether
           as
           a
           
             Third
             Estate
          
           or
           not
           ?
           The
           Authour
           of
           the
           Letter
           not
           onely
           denies
           it
           ,
           but
           opposes
           it
           with
           great
           vehehemency
           ,
           and
           offers
           many
           Authorities
           and
           Reasons
           against
           it
           .
           All
           which
           must
           be
           weighed
           with
           the
           same
           calmness
           and
           impartiality
           ,
           which
           hath
           been
           hitherto
           used
           in
           this
           Discourse
           .
           And
           there
           are
           Three
           things
           to
           be
           distinctly
           handled
           for
           the
           clearing
           of
           this
           Matter
           :
           1.
           
           His
           Foundation
           ;
           2.
           
           His
           Authorities
           ;
           3.
           
           His
           Reasons
           .
        
         
           (
           1.
           )
           His
           Foundation
           whereupon
           he
           builds
           ;
           
           which
           is
           ,
           
             that
             the
             Bishops
             sit
             in
             the
             House
             onely
             in
             the
             capacity
             of
             Temporal
             Barons
             ;
             William
             the
             Conquerour
             having
             
             brought
             the
             Temporalties
             of
             Bishops
             under
             the
             condition
             of
             Baronies
             .
          
           That
           they
           do
           sit
           there
           in
           the
           Right
           of
           their
           Baronies
           ,
           was
           yielded
           at
           first
           ;
           but
           whether
           they
           sit
           there
           onely
           in
           that
           capacity
           ,
           is
           the
           thing
           in
           Question
           .
        
         
           And
           here
           I
           crave
           leave
           to
           make
           use
           of
           this
           
           Authour's
           distinction
           ,
           and
           to
           apply
           it
           to
           this
           purpose
           ;
           
             viz.
             of
             the
             Bishops
             sitting
             in
             the
             House
             in
             a
             Iudicial
             way
             ,
             and
             in
             the
             Legislative
             way
             .
          
           When
           they
           sit
           
             in
             the
             Iudicial
             way
          
           ,
           as
           
             Members
             of
             the
             Supreme
             Court
             of
             Iudicature
             ,
          
           I
           grant
           that
           they
           sit
           onely
           in
           the
           capacity
           of
           
             Temporal
             Barons
          
           ;
           as
           appears
           by
           the
           Constitution
           of
           Clarendon
           ,
           where
           the
           King
           requires
           their
           attendance
           in
           Iudicature
           as
           his
           Barons
           :
           But
           that
           in
           the
           
             Legislative
             way
          
           they
           have
           a
           farther
           Capacity
           ,
           as
           representing
           a
           
             Third
             Estate
          
           in
           Parlament
           ,
           I
           prove
           by
           these
           Arguments
           .
        
         
           [
           1.
           ]
           During
           the
           Vacancy
           of
           
             Bishopricks
             ,
             Writs
          
           were
           sent
           to
           the
           Guardians
           of
           the
           Spiritualties
           ,
           to
           attend
           the
           Parlament
           .
           Which
           Mr.
           Selden
           ,
           
           who
           cannot
           be
           suspected
           for
           partiality
           in
           this
           matter
           ,
           saith
           ,
           
             is
             obvious
             in
             the
             Rolls
             of
             Parlament
          
           ;
           and
           which
           he
           cannot
           deny
           to
           be
           an
           evidence
           
             of
             the
             Bishops
             sitting
             in
             Parlament
             as
             Bishops
             ,
             and
             as
             Spiritual
             onely
             ,
             as
             they
             did
             in
             
             the
             Saxon
             times
             ,
          
           in
           the
           
             Wittena
             gemot
          
           .
           So
           likewise
           ,
           
             the
             Vicars-general
          
           had
           Writs
           when
           the
           Bishops
           were
           beyond
           Sea.
           But
           neither
           of
           these
           could
           sit
           in
           Parlament
           as
           
             Temporal
             Barons
          
           .
        
         
           But
           because
           so
           much
           depends
           on
           the
           proof
           of
           this
           ,
           and
           no
           man
           hath
           yet
           undertaken
           it
           ,
           I
           shall
           bring
           clear
           Testimonies
           of
           the
           constant
           practice
           of
           it
           ,
           from
           the
           Records
           of
           the
           Tower.
           
        
         
           24
           Edw.
           
             I.
             Writs
             were
             directed
          
           Custodi
           Archiepiscopatûs
           Eborum
           ,
           sede
           vacante
           ;
           &
           Electo
           Menevensi
           ,
           vel
           ejus
           vices
           gerenti
           ,
           ipso
           agente
           in
           partibus
           transmarinis
           .
        
         
           27
           Ed.
           I.
           Custodibus
           Episcop
           .
           Lincoln
           .
           sede
           vacante
           ;
           &
           Capitulo
           Eccles.
           B.
           P.
           Eborum
           ,
           Custodibus
           Spiritual
           .
           ejusdem
           Dioces
           .
           sede
           vacante
           .
        
         
           5
           Ed.
           II.
           Vicario
           generali
           Archiep.
           Eborum
           ,
           ipso
           Archiepiescopo
           in
           remotis
           agente
           .
        
         
           6.
           
           Ed.
           II.
           Custodi
           Archiepiscopatûs
           Cantuar
           .
           sede
           vacante
           .
        
         
           7
           Ed.
           
             II.
             To
             the
             same
          
           ,
           &
           Custodi
           Episcop
           .
           London
           .
           sede
           vacante
           .
        
         
           1
           Ed.
           III.
           Custodi
           Spiritualitatis
           Archiep.
           Cantuar.
           sede
           vacante
           :
           
             and
             twice
             the
             same
          
           2
           Ed.
           III.
           
        
         
           7
           Ed.
           III.
           Rex
           dilecto
           sibi
           in
           Christo
           
           Priori
           Eccles.
           Christi
           Cantuar.
           Custodi
           Spiritualit
           .
           Archiep.
           Cantuar.
           sede
           vacante
           .
        
         
           10
           Ed.
           III.
           Custodi
           Spirit
           .
           Episcop
           .
           Norwic
           .
           sede
           vacante
           .
        
         
           11
           Ed.
           III.
           Custodi
           Spirit
           .
           Episcop
           .
           Cicestr
           .
           sede
           vacante
           ;
           &
           H.
           Episcopo
           Lincoln
           .
           vel
           ejus
           Vicario
           generali
           ,
           ipso
           Episcopo
           in
           remotis
           agente
           .
        
         
           12
           Ed.
           
             III.
             A
             more
             general
             Writ
             to
             the
             Archbish.
          
           &c.
           vel
           Vicariis
           vestris
           generalibus
           ,
           vobis
           in
           partibus
           transmarinis
           agentibus
           .
        
         
           14
           Ed.
           III.
           T.
           Episcop
           .
           Hereford
           .
           vel
           ejus
           Vicario
           generali
           ,
           ipso
           Episcopo
           in
           remotis
           agente
           .
        
         
           20
           Ed.
           III.
           Custodi
           Spiritualit
           .
           Episcop
           .
           Assaphensis
           ,
           &c.
           
        
         
           The
           like
           we
           find
           20
           
             E.
             (
             3.
             )
             34.
             36.
             38.
             44.
             5
             
             R.
             (
             2.
             )
             6.
             7.
             9.
             10.
             12.
             13.
             18.
             20.
             7
             
             H.
             (
             4.
             )
             8.
             2
             
             H.
             (
             5.
             )
             3.
             4.
             5.
             7.
             8.
             9.
             2
             
             H.
             (
             6.
             )
             4.
             5.
             9.
             10.
             11.
             15.
             18.
             20.
             25.
             29.
             12
             
             Edw.
          
           4.
           
           In
           all
           these
           years
           ,
           there
           are
           Writs
           directed
           ,
           either
           to
           the
           Guardians
           of
           the
           Spiritualties
           in
           the
           Vacancies
           of
           the
           Sees
           ,
           or
           to
           the
           Vicars-general
           or
           Chancellours
           in
           their
           absence
           beyond
           the
           Seas
           .
           Which
           are
           sufficient
           to
           prove
           this
           to
           have
           been
           the
           constant
           practice
           of
           Parlaments
           in
           those
           times
           .
        
         
           [
           2.
           ]
           Some
           Church-men
           were
           summon'd
           to
           
           Parlament
           who
           could
           have
           no
           pretence
           to
           sit
           there
           as
           
             Temporal
             Barons
          
           .
           For
           49
           H.
           III.
           the
           Deans
           of
           
             York
             ,
             Exceter
             ,
             Wells
             ,
             Salisbury
          
           and
           Lincoln
           were
           summon'd
           with
           the
           like
           Writ
           as
           the
           rest
           .
           And
           Mr.
           Selden
           observes
           ,
           
           that
           in
           the
           times
           of
           Edw.
           I.
           Edw.
           II.
           Edw.
           III.
           where
           the
           Clause
           Praemunientes
           is
           omitted
           in
           the
           Writ
           to
           the
           Bishops
           ,
           there
           particular
           and
           several
           Writs
           were
           sent
           to
           some
           Deans
           and
           Priors
           of
           
             Cathedral
             Churches
          
           ,
           to
           appear
           in
           Parlament
           .
        
         
           But
           to
           prove
           more
           fully
           the
           interest
           the
           Clergy
           had
           then
           in
           Parlaments
           ,
           it
           is
           worth
           our
           observing
           ,
           that
           in
           the
           ancient
           Records
           there
           are
           4
           several
           sorts
           of
           Writs
           wherein
           the
           Clergy
           were
           concerned
           .
        
         
           1.
           
           In
           the
           common
           Writs
           of
           Summons
           to
           Parlament
           sent
           to
           the
           Archbishops
           and
           Bishops
           ,
           with
           the
           Clause
           of
           Praemunientes
           ,
           which
           runs
           thus
           ;
           
             Premunientes
             Priorem
             &
             Capitulum
          
           ,
           or
           
             Decan
             .
             &
             Capit.
             Ecclesie
             vestre
             ,
             Archidiaconos
             ,
             totumque
             Clerum
             vestre
             Dioces
             .
             facientes
             ,
             quod
             iidem
             Prior
             &
             Archidiaconi
             in
             propriis
             personis
             suis
             ,
             ac
             dictum
             Capitulum
             per
             unum
             ,
             idemque
             Cierus
             per
             duos
             Procuratores
             idoneos
             ,
             plenam
             &
             sufficientem
             potestatem
             ab
             ipsis
             Capitulo
             &
             Clero
             habentes
             ,
             predictis
             die
             &
             loco
             intersint
             ,
             ad
             
             consentiendum
             hiis
             que
             tunc
             ibidem
             de
             communi
             consilio
             ipsius
             Regni
             nostri
             ,
             divina
             favente
             Clementia
             ,
             contigerint
             ordinari
             .
          
           
           So
           Mr.
           Selden
           represents
           it
           from
           the
           50
           Ed.
           III.
           membr
           .
           6.
           
           And
           with
           him
           Sir
           Edw.
           
           Coke
           agrees
           ;
           who
           saith
           ,
           
             by
             this
             Clause
             in
             the
             Writ
             of
             Summons
             to
             the
             Bishops
             ,
             they
             are
             required
             to
             summon
             these
             persons
             to
             appear
             personally
             at
             the
             Parlalament
             :
          
           but
           he
           proves
           
             they
             had
             no
             Voices
             there
             ,
             because
             they
             are
             required
             onely
          
           ad
           consentiendum
           ,
           &c.
           
           Which
           is
           a
           very
           weak
           argument
           .
           For
           ,
           (
           1.
           )
           His
           own
           great
           
             Authority
             ,
             Modus
             tenendi
             Parlamentum
          
           ,
           saith
           expresly
           ,
           
             they
             were
             called
          
           ad
           tractand
           .
           &
           deliberand
           .
           
             and
             that
             their
             names
             were
             called
             over
             in
             the
             beginning
             of
             Parlament
             ;
             and
             that
             they
             had
             a
             Voice
             there
             ,
             and
             did
             make
             up
             part
             of
             the
             Commons
             of
             England
             .
          
           Not
           that
           the
           
             Procuratores
             Cleri
          
           did
           sit
           together
           with
           them
           ,
           after
           they
           had
           a
           Speaker
           of
           their
           own
           ▪
           of
           which
           I
           find
           no
           Precedent
           :
           but
           they
           sate
           by
           themselves
           ,
           having
           a
           Prolocutor
           of
           their
           own
           :
           which
           is
           the
           very
           same
           name
           used
           in
           the
           Rolls
           for
           the
           Speaker
           of
           the
           House
           of
           Commons
           .
           (
           2.
           )
           These
           words
           do
           not
           exclude
           them
           from
           being
           part
           of
           the
           
             commune
             Concilium
             Regni
          
           ,
           but
           onely
           shew
           ,
           that
           their
           Consent
           was
           required
           ,
           according
           to
           the
           
           Custom
           of
           that
           time
           .
           And
           23
           Ed.
           I.
           the
           Clause
           is
           more
           full
           ,
           
             ad
             tract
             and.
             ordinand
             .
             &
             faciend
             .
          
           the
           like
           24
           Ed.
           I.
           But
           in
           27
           Ed.
           I.
           the
           words
           are
           ,
           
             ad
             faciend
             .
             &
             consentiend
          
           .
           (
           3.
           )
           The
           same
           argument
           would
           exclude
           the
           Commons
           from
           any
           Voices
           :
           for
           in
           23
           Ed.
           I.
           the
           Writ
           for
           chusing
           Knights
           and
           Burgesses
           ran
           after
           the
           same
           manner
           ;
           
             ita
             quod
             dicti
             milites
             plenam
             &
             sufficientem
             potestatem
             pro
             se
             &
             Commun
             '
             Comit
             '
             predict
             '
             &
             dicti
             Cives
             &
             Burgenses
             pro
             se
             &
             Communit
             Civit
             '
             &
             Burg
             '
             tunc
             ibidem
             habeant
             ,
             ad
             faciend
             '
             tunc
             quod
             de
             communi
             Consilio
             ordinabitur
             in
             premissis
             .
          
           Would
           any
           man
           be
           so
           unreasonable
           to
           infer
           from
           hence
           ,
           that
           the
           House
           of
           Commons
           have
           no
           Votes
           ?
           The
           same
           form
           is
           used
           26
           Ed.
           I.
           —
           30
           of
           the
           same
           .
           In
           5
           Ed.
           II.
           it
           is
           ,
           
             ad
             consentiendum
          
           ,
           &c.
           
           6
           Ed.
           II.
           it
           is
           ,
           
             ad
             faciend
             .
             quod
             de
             communi
             Consilio
             contigerit
             ordinari
             .
             7
             Ed.
          
           II.
           
             ad
             faciendum
             &
             consentiend
          
           .
           and
           so
           it
           continued
           to
           the
           26
           
             Ed.
             III.
          
           when
           first
           came
           in
           ,
           
             ad
             tract
             and.
             consulend
             .
             faciend
             .
          
           but
           44
           Ed.
           I.
           it
           was
           onely
           ,
           
             ad
             consulend
             .
             &
             consentiend
             .
             46
             Ed.
             III.
          
           it
           was
           ,
           
             ad
             faciendum
             &
             consentiendum
             his
             quae
             tunc
             de
             communi
             Concilio
             Regni
             contigerit
             ordinari
             :
          
           so
           47
           Edw.
           III.
           Which
           hath
           been
           the
           general
           form
           ,
           ever
           since
           
           observed
           ,
           and
           would
           exclude
           the
           House
           of
           Commons
           from
           any
           Votes
           in
           Parlament
           ,
           as
           well
           as
           the
           Clergy
           .
        
         
           2.
           
           There
           were
           other
           Writs
           of
           Summons
           to
           Parlament
           wherein
           the
           
             Clause
             Praemunientes
          
           was
           left
           out
           ;
           and
           then
           particular
           Writs
           were
           sent
           to
           such
           Deans
           and
           
             dignified
             Clergy-men
          
           as
           the
           King
           thought
           fit
           .
           So
           it
           was
           not
           onely
           49
           H.
           III.
           but
           there
           were
           two
           Summons
           23
           Ed.
           I.
           and
           in
           one
           of
           them
           the
           Clause
           Praemunientes
           was
           inserted
           ,
           in
           the
           other
           not
           .
           It
           was
           left
           out
           25
           Ed.
           I.
           and
           in
           one
           27
           Ed.
           I.
           and
           put
           in
           another
           ,
           and
           left
           out
           again
           28.
           and
           30.
           of
           Ed.
           I.
           Inserted
           1
           Ed.
           II.
           in
           one
           Writ
           ,
           and
           omitted
           in
           others
           ;
           and
           so
           in
           the
           3
           following
           years
           :
           but
           afterwards
           generally
           inserted
           ,
           except
           6
           Ed.
           II.
           13.
           16.
           18.
           
           In
           5
           Ed.
           III.
           it
           was
           omitted
           ,
           and
           so
           in
           6.
           and
           some
           few
           years
           afterwards
           :
           but
           then
           it
           generally
           obtained
           ,
           that
           the
           Clause
           Praemunientes
           was
           put
           into
           the
           Writs
           of
           the
           Bishops
           Summons
           to
           the
           Parlament
           .
        
         
           3.
           
           There
           were
           Writs
           of
           Summons
           to
           
             great
             Councils
          
           ,
           which
           were
           no
           Assemblies
           of
           the
           Estates
           ;
           and
           then
           onely
           some
           great
           Bishops
           and
           Lords
           ,
           or
           other
           Great
           men
           were
           summon'd
           ,
           without
           any
           Writs
           to
           others
           ,
           or
           any
           notice
           taken
           of
           them
           .
           In
           such
           a
           
           Summons
           2
           Ed.
           II.
           onely
           4
           Bishops
           are
           named
           ;
           18
           Ed.
           II.
           onely
           6
           ;
           19
           onely
           5
           ;
           2
           Ed.
           III.
           onely
           2.
           and
           the
           Guardian
           of
           the
           Spiritualties
           of
           the
           See
           of
           Canterbury
           :
           and
           so
           4
           Ed.
           III.
           and
           in
           another
           the
           same
           year
           ,
           3
           besides
           the
           Archbishop
           of
           
             Canterbury
             .
             5
             Ed.
          
           III.
           Summons
           were
           sent
           to
           the
           Archbishop
           of
           York
           ,
           and
           19
           Bishops
           more
           .
           11
           Ed.
           III.
           the
           Writ
           was
           directed
           to
           the
           
             Archbishop
             of
             York
             ,
             and
             such
             Bishops
             ,
             Earls
             ,
             and
             Great
             men
             as
             were
             of
             the
             King's
             Council
             :
          
           and
           two
           more
           were
           summon'd
           the
           same
           year
           .
           The
           form
           of
           the
           Writ
           differs
           little
           from
           that
           to
           the
           Parlament
           ,
           onely
           the
           Clause
           Praemunientes
           is
           always
           left
           out
           ,
           and
           onely
           some
           particular
           Bishops
           and
           Nobles
           are
           called
           ,
           and
           no
           Writs
           for
           elections
           of
           Knights
           or
           Burgesses
           .
           In
           the
           16
           Ed.
           III.
           the
           Writ
           is
           sent
           to
           the
           Archbishop
           and
           7
           Bishops
           more
           ;
           but
           none
           to
           
             Abbots
             ,
             Priors
             ,
             Sheriffs
             ,
             &c.
             
          
           Which
           shews
           that
           this
           was
           
             Magnum
             Concilium
          
           ,
           as
           it
           is
           sometimes
           called
           ,
           but
           no
           Parlament
           .
        
         
           4.
           
           There
           were
           Writs
           to
           summon
           a
           Convocation
           distinct
           from
           the
           Writ
           of
           Summons
           to
           the
           Parlament
           with
           the
           Clause
           Praemunientes
           .
           This
           will
           appear
           by
           the
           first
           Writ
           of
           Summons
           to
           a
           Convocation
           ,
           which
           I
           have
           seen
           ;
           which
           bears
           
           date
           at
           
             Lincoln
             17.
             
             Feb.
             9
             Ed.
             II.
          
           but
           the
           Parlament
           was
           summon'd
           16.
           of
           October
           before
           ,
           to
           meet
           at
           
             Lincoln
             in
             quindenâ
             S.
             Hilarii
          
           ;
           with
           the
           Clause
           Praemunientes
           in
           the
           Writ
           to
           the
           Bishops
           .
           In
           which
           Summons
           to
           Convocation
           it
           is
           expressed
           ,
           that
           
             those
             Bishops
             and
             others
             of
             the
             Clergy
             ,
             who
             were
             summon'd
             to
             Parlament
             ,
             did
             ,
             as
             far
             as
             they
             were
             concerned
             ,
             unanimously
             yield
             to
             a
             Subsidy
             ;
             but
             so
             ,
             that
             others
             of
             the
             Clergy
             who
             were
             not
             summon'd
             to
             Parlament
             should
             meet
             in
             Convocation
             ,
             and
             consent
             thereto
             .
             Therefore
             the
             King
             sends
             his
             Writ
             to
             the
             Archbishop
             to
             summon
             all
             the
             Prelats
             ,
             whether
             Religious
             or
             others
             ,
             and
             others
             of
             the
             Clergy
             of
             his
             Province
             ,
             to
             meet
             at
          
           London
           
             post
             15.
             
             Pasch.
             ad
             tractand
             .
             &
             consentiend
             .
          
           &c.
           Here
           we
           have
           the
           plain
           difference
           between
           the
           Writs
           to
           Parlament
           ,
           and
           to
           Convocation
           .
           The
           Writs
           to
           the
           Parlament
           were
           sent
           to
           the
           Archbishops
           and
           all
           the
           Bishops
           ,
           with
           the
           clause
           Praemunientes
           ,
           &c.
           summoning
           those
           of
           the
           Clergy
           who
           were
           then
           thought
           necessary
           to
           the
           
             Assembly
             of
             the
             Three
             Estates
             in
             Parlament
             :
          
           but
           when
           a
           Convocation
           was
           called
           ,
           then
           the
           Writs
           were
           onely
           directed
           to
           the
           
             Two
             Archbishops
          
           ,
           who
           were
           to
           summon
           the
           rest
           of
           the
           Clergy
           ,
           and
           not
           onely
           those
           who
           held
           by
           Baronies
           ,
           
           but
           others
           of
           the
           dignified
           Clergy
           ,
           
             tam
             exemptos
             quàm
             non
             exemptos
          
           ,
           with
           the
           
             Proctors
             of
             the
             Chapters
             and
             Clergy
             of
             the
             Diocese
             ,
             ad
             tractand
             '
             &
             consulend
             '
             super
             premissis
             una
             vobiscum
             &
             aliis
             per
             Nos
             tunc
             mittendis
             .
          
           So
           it
           is
           expressed
           in
           the
           Writ
           for
           
             Convocation
             11
             Ed.
          
           III.
           29
           Ed.
           III.
           31
           Ed.
           III.
           7
           R.
           II.
           28
           H.
           VI.
           23
           Ed.
           IV.
           onely
           these
           two
           last
           have
           this
           difference
           ,
           
             ad
             tractand
             '
             ,
             consentiend
             '
             ,
             conclud
             '
             super
             premissis
             ,
             &
             aliis
             que
             sibi
             clarius
             exponentur
             tunc
             ibidem
             ex
             parte
             nostra
             .
          
        
         
           These
           things
           I
           have
           laid
           together
           ,
           not
           barely
           to
           clear
           this
           intricate
           matter
           ,
           (
           as
           it
           hath
           been
           made
           )
           of
           the
           interest
           the
           Clergy
           then
           had
           in
           Parlaments
           as
           well
           as
           Convocations
           ;
           but
           chiefly
           to
           prove
           from
           hence
           ,
           that
           all
           the
           interest
           they
           had
           in
           Parlaments
           was
           not
           meerly
           on
           the
           account
           of
           the
           
             Temporal
             Baronies
          
           which
           the
           Bishops
           and
           many
           of
           the
           Abbots
           then
           had
           .
           Which
           is
           the
           great
           ,
           but
           common
           mistake
           of
           the
           Authour
           of
           the
           Letter
           .
        
         
           [
           3.
           ]
           After
           the
           Bishopricks
           were
           made
           Baronies
           ,
           the
           distinction
           even
           in
           Parlament
           is
           kept
           up
           between
           the
           several
           Estates
           of
           the
           Clergy
           and
           Laiety
           .
           For
           although
           Baronagium
           doth
           often
           take
           in
           all
           ;
           yet
           sometimes
           they
           are
           so
           remarkably
           distinguished
           ,
           that
           we
           may
           see
           they
           
           were
           looked
           on
           as
           two
           distinct
           Estates
           in
           Parlament
           .
           So
           Eadmerus
           ,
           (
           speaking
           of
           what
           passed
           in
           the
           
             Parlament
             3
             H.
             I
          
           )
           saith
           ,
           it
           was
           done
           
             utriusque
             Ordinis
             concordi
             curâ
             &
             solicitudine
             ,
          
           
           
             by
             the
             consent
             of
             both
             Estates
             .
          
           So
           
             Matt.
             Paris
          
           ,
           speaking
           of
           the
           Summons
           to
           appear
           in
           the
           beginning
           of
           H.
           I.
           comprehends
           all
           under
           those
           2
           Estates
           ,
           
           
             Clerus
             Angliae
             ,
             &
             Pop.
             universus
             :
          
           and
           again
           ,
           
             Respondente
             Clero
             ,
             &
             Magnatibus
             cunctis
             .
          
           Speaking
           of
           a
           Parlament
           under
           H.
           II.
           he
           saith
           ,
           
           
             Convocato
             Clero
             Regni
             ,
             ac
             Populo
             .
          
           In
           39
           H.
           III.
           describing
           a
           Parlament
           ,
           he
           calls
           those
           assembled
           
             Nobiles
             Angliae
             ,
             tam
             viri
             Ecclesiastici
             quàm
             Seculares
             .
          
           And
           in
           the
           Writs
           of
           Summons
           the
           distinction
           hath
           been
           always
           preserved
           between
           the
           Praelati
           and
           the
           Magnates
           :
           for
           in
           those
           to
           the
           Bishops
           it
           is
           ,
           
             cum
             caeteris
             Praelatis
             ,
             Magnatibus
          
           ,
           &c.
           in
           those
           to
           the
           
             Temporal
             Lords
             ,
             cum
             Praelatis
             ,
             Magnatibus
             ,
          
           &c.
           
           In
           those
           to
           the
           Bishops
           they
           were
           commanded
           ,
           
             in
             Fide
             &
             Dilectione
             quibus
             nobis
             tenemini
             :
          
           in
           those
           to
           the
           
             Temporal
             Lords
             ,
             in
             Fide
             &
             Homagio
          
           ;
           or
           ,
           since
           Ed.
           III.
           
             in
             Fide
             &
             Ligeancia
          
           .
           Which
           shews
           that
           they
           were
           not
           summon'd
           meerly
           as
           
             Temporal
             Barons
          
           .
        
         
           [
           4.
           ]
           The
           Authour
           of
           the
           Letter
           confesseth
           
           
             the
             Clergy
             to
             be
             one
             of
             the
             three
             Estates
             of
             the
             Kingdom
          
           ;
           
           but
           denies
           them
           to
           be
           
             one
             of
             the
             three
             Estates
             in
             Parlament
             .
          
           From
           whence
           I
           argue
           thus
           .
           Either
           the
           Clergy
           must
           be
           represented
           in
           Parlament
           ,
           or
           one
           of
           the
           
             Estates
             of
             the
             Kingdom
          
           is
           not
           at
           all
           represented
           there
           .
           And
           if
           one
           of
           the
           
             Estates
             of
             the
             Kingdom
          
           be
           not
           there
           represented
           ,
           how
           can
           it
           be
           a
           
             perfect
             Representative
          
           ?
           So
           that
           this
           distinction
           of
           the
           
             Three
             Estates
             of
             the
             Kingdom
          
           ,
           and
           the
           
             Three
             Estates
             in
             Parlament
          
           ,
           unavoidably
           overthrows
           the
           
           Parlament's
           being
           a
           compleat
           Representative
           .
           But
           in
           23
           H.
           VIII
           .
           n.
           33.
           as
           Mr.
           Petyt
           observes
           ,
           there
           is
           this
           passage
           in
           the
           
             Parlament-Rolls
             .
             It
             is
             considered
             and
             declared
             by
             the
             whole
             Body
             of
             this
             Realm
             ,
          
           
           
             now
             represented
             by
             all
             the
             Estates
             of
             the
             same
             assembled
             in
             this
             present
             Parlament
             .
          
           Therefore
           
             all
             the
             Estates
             of
             the
             Kingdom
          
           must
           be
           represented
           in
           Parlament
           .
           And
           1
           
             Eliz.
             c.
             3.
             
             The
             Lords
             Spiritual
             and
             Temporal
             and
             the
             Commons
          
           are
           said
           to
           
             represent
             in
             Parlament
             the
             Three
             Estates
             of
             the
             Realm
             .
          
           From
           whence
           it
           follows
           ,
           that
           ,
           according
           to
           the
           sense
           of
           the
           Parlament
           ,
           if
           the
           Clergy
           be
           an
           Estate
           of
           the
           Kingdom
           ,
           as
           he
           saith
           they
           are
           ,
           they
           must
           be
           represented
           in
           Parlament
           ,
           
           or
           the
           whole
           Body
           of
           the
           Realm
           cannot
           be
           there
           represented
           .
        
         
           (
           2.
           )
           We
           now
           come
           to
           consider
           the
           weight
           of
           Authority
           in
           this
           matter
           .
           For
           which
           I
           shall
           premise
           two
           things
           .
        
         
           1.
           
           That
           the
           whole
           Parlament
           assembled
           are
           the
           best
           Judges
           ,
           which
           are
           the
           
             Three
             Estates
             in
             Parlament
          
           ;
           and
           their
           Authority
           is
           more
           to
           be
           valued
           ,
           then
           that
           of
           any
           particular
           Persons
           ,
           whether
           Lawyers
           ,
           or
           others
           .
        
         
           2.
           
           That
           no
           Parlaments
           can
           give
           better
           Testimony
           in
           this
           matter
           ,
           then
           those
           which
           have
           assumed
           most
           to
           themselves
           .
           For
           if
           there
           be
           
             Three
             Estates
             in
             Parlament
          
           ,
           and
           the
           Bishops
           be
           none
           ,
           then
           the
           King
           must
           be
           one
           of
           the
           Three
           ;
           as
           the
           Authour
           of
           the
           Letter
           insinuates
           ,
           throughout
           this
           discourse
           :
           and
           the
           natural
           consequence
           from
           hence
           seems
           to
           be
           a
           co-ordination
           ;
           or
           that
           two
           joyning
           together
           may
           over-rule
           the
           third
           .
           Therefore
           in
           all
           Reason
           ,
           if
           any
           Parlaments
           would
           have
           made
           the
           King
           one
           of
           the
           
             Three
             Estates
          
           ,
           it
           would
           have
           been
           either
           the
           
             Parlament
             1
             H.
          
           IV.
           which
           deposed
           one
           King
           ,
           and
           set
           up
           another
           ;
           or
           that
           1
           R.
           III.
           which
           disinherited
           the
           Children
           of
           Ed.
           IV.
           and
           set
           up
           their
           Uncle
           .
        
         
           I
           shall
           therefore
           first
           from
           the
           Rolls
           of
           
           these
           two
           Parlaments
           shew
           ,
           which
           are
           the
           
             Three
             Estates
             in
             Parlament
          
           ;
           and
           from
           them
           ,
           evidently
           prove
           that
           the
           King
           is
           none
           ,
           but
           the
           Bishops
           are
           the
           
             Third
             Estate
          
           .
        
         
           I
           begin
           with
           the
           Parlament
           1
           H.
           IV.
           By
           the
           Rolls
           it
           appears
           ,
           (
           1.
           )
           That
           R.
           II.
           appointed
           two
           Procurators
           to
           declare
           his
           Resignation
           of
           the
           Crown
           ,
           
             coram
             omnibus
             Statibus
             Regni
             ,
             
               before
               all
               the
               States
               of
               the
               Kingdom
            
          
           .
           From
           whence
           it
           unavoidably
           follows
           ,
           1.
           that
           the
           King
           was
           none
           of
           them
           ;
           2.
           that
           the
           Estates
           of
           the
           Kingdom
           and
           the
           Estates
           in
           Parlament
           are
           the
           same
           thing
           .
           (
           2.
           )
           Among
           the
           Articles
           against
           R.
           II.
           one
           is
           concerning
           the
           Impeachment
           of
           
             Tho.
             Archbishop
          
           of
           
             Canterbury
             
               coram
               Rege
               &
               omnibus
               Statibus
               Regni
               ,
            
             before
             the
             King
             and
             all
             the
             Estates
             of
             the
             Realm
             .
          
           The
           King
           then
           was
           none
           of
           the
           Estates
           .
           (
           3.
           )
           The
           Commissioners
           for
           the
           sentence
           of
           Deposition
           are
           said
           to
           be
           appointed
           
             per
             Pares
             &
             Proceres
             Regni
             Anglie
             Spirituales
             &
             Temporales
             ,
             &
             ejusdem
             Regni
             Communitates
             ,
             omnes
             Status
             ejusdem
             Regni
             representantes
             ;
             
               by
               the
               Peers
               and
               Lords
               Spiritual
               and
               Temporal
               ,
               and
               the
               Commons
               of
               the
               Kingdom
               ,
               representing
               all
               the
               States
               of
               the
               Kingdom
               .
            
          
           Where
           observe
           ,
           
           1.
           
           The
           Bishops
           are
           called
           Peers
           ,
           as
           well
           as
           the
           
             Temporal
             Lords
          
           .
           2.
           
           The
           Estates
           of
           the
           Parlament
           are
           
             to
             represent
             all
             the
             Estates
             of
             the
             Kingdom
             .
          
           3.
           
           The
           
             Three
             Estates
          
           in
           Parlament
           are
           the
           
             Lords
             Spiritual
             ,
             the
             Lords
             Temporal
             ,
             and
             the
             Commons
             of
             the
             Realm
          
           ;
           and
           Fabian
           expresly
           calls
           them
           
             the
             Three
             Estates
             of
             this
             present
             Parlament
             ,
          
           
           representing
           the
           whole
           Body
           of
           the
           Realm
           .
        
         
           
             In
             the
          
           Rolls
           of
           Parlament
           1
           R.
           III.
           
             it
             is
             recorded
          
           ,
           that
           before
           his
           Coronation
           ,
           certain
           Articles
           were
           deliver'd
           unto
           him
           in
           the
           name
           of
           the
           Three
           Estates
           of
           the
           Realm
           of
           England
           ,
           that
           is
           to
           say
           ,
           of
           the
           Lords
           Spiritual
           and
           Temporal
           and
           of
           the
           Commons
           by
           name
           ,
           &c.
           
           Now
           forasmuch
           as
           neither
           the
           said
           Three
           Estates
           ,
           neither
           the
           said
           Persons
           which
           in
           their
           name
           presented
           and
           deliver'd
           (
           as
           it
           is
           afore
           said
           )
           the
           said
           Roll
           unto
           our
           said
           Sovereign
           Lord
           the
           King
           ,
           were
           assembled
           in
           form
           of
           Parlament
           ,
           divers
           Doubts
           have
           been
           moved
           ,
           
             &c.
             
             Now
             by
             the
             said
          
           Three
           Estates
           assembled
           in
           this
           present
           Parlament
           ,
           and
           by
           Authority
           of
           the
           same
           ,
           be
           ratified
           ,
           and
           enrolled
           ,
           
             &c.
             
             Upon
             which
             Mr.
          
           Pryn
           
             himself
             makes
             this
             Marginal
             Note
          
           ,
           
           The
           Three
           Estates
           must
           concurr
           to
           make
           a
           Parlament
           ;
           no
           one
           or
           two
           of
           them
           being
           a
           full
           or
           real
           Parlament
           ,
           but
           all
           conjoyned
           .
        
         
         
           But
           lest
           I
           should
           seem
           to
           take
           advantage
           onely
           of
           these
           
             two
             Parlaments
          
           ,
           I
           shall
           now
           shew
           this
           to
           have
           been
           the
           constant
           sense
           of
           the
           Parlaments
           ;
           as
           will
           appear
           by
           these
           following
           Records
           .
        
         
           In
           1
           H.
           VI.
           n.
           12.
           
           All
           the
           Estates
           of
           the
           Realm
           
             are
             said
             to
             be
          
           assembled
           in
           Parlament
           .
           3
           H.
           VI.
           n.
           19.
           
             the
             Three
             Estates
          
           assembled
           in
           this
           present
           Parlament
           .
        
         
           6
           H.
           VI.
           n.
           24.
           the
           Duke
           of
           Gloucester
           desired
           an
           explanation
           of
           his
           Power
           as
           Protector
           :
           in
           the
           Answer
           ,
           drawn
           up
           by
           the
           Lords
           appointed
           for
           that
           purpose
           ,
           it
           is
           alledged
           
             that
             H.
             V.
             could
             not
             by
             his
             last
             Will
             ,
             nor
             otherwise
             ,
             alter
             ,
             change
             ,
             or
             abroge
             ,
             without
             the
             Assent
             of
             the
             
               Three
               Estates
            
             nor
             commit
             or
             grant
             ,
             to
             any
             Person
             ,
             Governance
             or
             Rule
             of
             this
             Land
             ,
             longer
             then
             he
             lived
             .
          
           ;
           Nevertheless
           they
           adde
           ,
           
             It
             was
             advised
             and
             appointed
             by
             the
             Authority
             of
             the
             King
             ,
             assenting
             the
             Three
             Estates
             of
             this
             Realm
             .
          
           Which
           shews
           how
           far
           the
           King
           was
           from
           being
           thought
           one
           of
           the
           
             Three
             Estates
          
           in
           Parlament
           at
           that
           time
           .
        
         
           10
           H.
           VI.
           n.
           17.
           
           Ralph
           Lord
           Cromwell
           
             put
             in
             a
             Petition
             to
             the
          
           Parlament
           ,
           that
           he
           was
           discharged
           the
           Office
           of
           King's
           Chamberlain
           in
           a
           way
           contrary
           to
           the
           Articles
           for
           the
           Council
           sworn
           8
           H.
           
             VI.
             
               coram
               
               tribus
               Regni
               Statibus
            
             ,
          
           before
           the
           Three
           Estates
           of
           the
           Realm
           ,
           
             as
             they
             were
             assembled
             in
             Parlament
             :
             which
             appears
             by
             the
          
           Record
           8
           H.
           VI.
           n.
           27.
           
        
         
           11
           H.
           VI.
           n.
           10.
           
           The
           Duke
           of
           Bedford
           appeared
           in
           Parlament
           ,
           and
           declared
           the
           Reasons
           of
           his
           coming
           
             coram
             Domino
             Rege
             &
             tribus
             Regni
             Statibus
             ,
             before
             the
             King
             and
             the
             Three
             Estates
             of
             the
             Realm
          
           ;
           as
           it
           is
           in
           the
           Record
           ,
           but
           not
           mention'd
           in
           the
           Abridgment
           .
        
         
           n.
           11.
           
           
             Domino
             Rege
             &
             tribus
             Regni
             Statibus
             in
             presenti
             Parlamento
             existentibus
             ,
          
           the
           King
           and
           the
           Three
           Estates
           of
           the
           Realm
           being
           present
           in
           Parlament
           .
           
             Nothing
             can
             be
             plainer
             ,
             then
             that
             the
          
           King
           
             is
             none
             ;
             and
             that
             the
          
           Three
           Estates
           of
           the
           Kingdom
           
             are
             the
          
           Three
           Estates
           in
           Parlament
           .
        
         
           11
           H.
           VI.
           n.
           24.
           
           Lord
           Cromwell
           Treasurer
           
             exhibits
             a
             Petition
             in
             Parlament
             ,
             wherein
             he
             saith
             ,
          
           the
           estate
           and
           necessity
           of
           the
           King
           and
           of
           the
           Realm
           have
           been
           notified
           to
           
             the
             Three
             Estates
             of
             the
             Land
             assembled
             in
             Parlament
             .
          
        
         
           
             In
             an
          
           Appendix
           
             annexed
             to
             the
          
           Rolls
           of
           Parlament
           
             that
             year
             ,
             the
          
           Duke
           of
           Bedford
           
             saith
             ,
             in
             his
             Petition
             to
             the
             King
             ,
          
           how
           that
           in
           your
           last
           Parlament
           yit
           liked
           your
           Highness
           ,
           by
           yadvis
           of
           
             Three
             
             Estates
             of
             his
             Land
             ,
          
           to
           will
           me
           ,
           &c.
           
        
         
           23
           H.
           VI.
           n.
           11.
           
           Presente
           Domino
           Rege
           ,
           &
           tribus
           Regni
           Statibvs
           in
           presenti
           Parlamento
           existentibus
           ,
           &c.
           
        
         
           28
           H.
           VI.
           n.
           9.
           
           Domino
           Rege
           &
           tribus
           Regni
           Statibus
           in
           pleno
           Parlamento
           comparentibus
           ,
           &c.
           
        
         
           After
           these
           I
           shall
           insist
           upon
           the
           Precedents
           cited
           by
           the
           Authour
           of
           the
           Letter
           himself
           ;
           
           
             viz.
             the
             Ratification
             of
             the
             Peace
             with
             France
             by
             the
             Thrée
             Estates
             9
             H.
          
           V.
           and
           11
           H.
           VII
           .
           which
           he
           alledges
           
             as
             an
             extraordinary
             thing
             ,
             that
             the
             Three
             Estates
             joyned
             in
             these
             Transactions
             :
          
           whereas
           in
           truth
           it
           was
           nothing
           but
           a
           Ratification
           of
           the
           Peace
           
             in
             Parlament
          
           ;
           and
           consequently
           ,
           those
           
             Three
             Estates
             of
             the
             Kingdom
          
           ,
           are
           
             the
             Three
             Estates
             of
             Parlament
          
           .
           
           For
           the
           Parlament
           was
           then
           sitting
           at
           both
           these
           Ratifications
           ;
           and
           no
           other
           Assembly
           of
           the
           
             Thrée
             Estates
          
           was
           ever
           known
           in
           England
           .
           
           Walsingham
           saith
           ,
           that
           H.
           V.
           called
           
             aParlament
             ,
             which
             was
             sitting
             at
             that
             time
             :
          
           for
           the
           King
           kept
           S.
           
             George's
             Feast
          
           at
           Windsor
           that
           year
           ,
           from
           thence
           he
           went
           to
           the
           Parlament
           at
           London
           ,
           which
           ended
           within
           a
           Month
           ;
           and
           the
           Ratification
           of
           the
           Peace
           bears
           date
           May
           2.
           
           Judge
           then
           ,
           whether
           these
           were
           not
           the
           
             Three
             Estates
             in
             Parlament
          
           ?
           But
           
           to
           prove
           this
           more
           fully
           .
           It
           seems
           by
           23
           H.
           VI.
           
             n.
             24.
             that
             a
             Statute
             was
             made
             in
             the
             time
             of
             H.
             V.
             that
             no
             Peace
             should
             be
             made
             with
             France
             without
             the
             consent
             of
             the
             Three
             Estates
             of
             both
             Realms
          
           ;
           which
           was
           then
           repealed
           .
           But
           whom
           they
           meant
           by
           the
           
             Thrée
             Estates
          
           here
           in
           the
           time
           of
           H.
           VI.
           appears
           by
           28
           H.
           VI.
           n.
           9.
           when
           the
           
             Chancellour
             ,
             in
             the
             presence
             of
             the
             King
             ,
             gave
             thanks
             to
             the
             Three
             Estates
             ,
             and
             prorogued
             the
             Parlament
             :
          
           where
           it
           is
           plain
           ,
           the
           
             Three
             Estates
             in
             Parlament
          
           were
           meant
           ,
           and
           that
           the
           King
           could
           be
           none
           of
           them
           .
           In
           38
           H.
           VI.
           
             n.
             38.
             .
             the
             Chancellour
          
           again
           ,
           
             in
             the
             presence
             of
             the
             King
             and
             of
             the
             Three
             Estates
             ,
             having
             given
             thanks
             to
             all
             the
             Estates
             ,
             dissolved
             the
             Parlament
             .
          
           But
           that
           which
           puts
           this
           matter
           out
           of
           doubt
           is
           ,
           that
           in
           the
           
             Parlament
             1
             H.
          
           VI.
           the
           
             Queen
             Dowager
          
           in
           her
           Petition
           mentions
           the
           Ratification
           made
           in
           
             Parlament
             9
             H.
          
           V.
           and
           saith
           ,
           
             it
             was
             not
             onely
             sworn
             by
             the
             King
             ,
             but
             by
             the
             Thrée
             Estates
             of
             the
             Kingdom
             of
             England
             :
             Cest
             assavoir
             ,
             les
             Prelatz
             ,
             Nobles
             ,
             &
             Grands
             ,
             &
             per
             les
             Comuns
             de
             mesm
             le
             Roialm
             Dengleterre
             ;
             that
             is
             to
             say
             ,
             by
             the
             Prelats
             ,
             Nobles
             ,
             and
             other
             Grandees
             ,
             and
             by
             the
             Commons
             of
             the
             Realm
             of
             England
             :
          
           as
           appears
           more
           fully
           ,
           
           saith
           that
           Petition
           ,
           by
           the
           Records
           and
           Acts
           of
           the
           said
           Parlament
           .
           And
           the
           King
           there
           declares
           in
           four
           several
           Instruments
           ,
           that
           the
           said
           Articles
           of
           Peace
           were
           approved
           and
           ratified
           by
           Authority
           of
           Parlament
           ,
           in
           these
           words
           ;
           
             Qui
             quidem
             Pax
             ,
             Tractatus
             ,
             conclusio
             &
             concordia
             ,
             omnesque
             Articuli
             contenti
             in
             eisdem
             ,
             in
             Parlamento
             dicti
             Patris
             nostri
             apud
             Westm.
             2
             0
             die
             Maii
             A.
             R.
             9.
             tento
             ,
             Auctoritate
             ejusdem
             Parlamenti
             approbati
             ,
             laudati
             ,
             auctorizati
             &
             acceptati
             .
          
           Nothing
           can
           be
           plainer
           from
           hence
           ,
           then
           that
           the
           
             Three
             Estates
             of
             the
             Kingdom
          
           were
           no
           other
           then
           
             the
             Three
             Estates
             in
             Parlament
          
           .
           And
           the
           same
           appears
           by
           another
           Petition
           of
           the
           same
           
             Queen
             ,
             2
             H.
          
           VI.
           n.
           19.
           
        
         
           For
           latter
           Times
           I
           shall
           instance
           onely
           in
           the
           
             Parlament
             1
             Eliz.
             c.
          
           3.
           wherein
           the
           
             Lords
             Spiritual
             and
             Temporal
             and
             Commons
             declare
             ,
             that
             they
             do
             represent
             in
             Parlament
             the
             Thrée
             Estates
             of
             the
             Realm
             .
          
           From
           whence
           it
           follows
           ,
           1.
           
           That
           the
           
             Three
             Estates
             of
             the
             Kingdom
          
           must
           be
           represented
           in
           Parlament
           .
           2.
           
           That
           the
           
             Lords
             Spiritual
             and
             Temporal
             and
             the
             Commons
          
           do
           represent
           
             those
             Three
             Estates
             of
             the
             Kingdom
             ,
          
           and
           therefore
           are
           the
           
             Three
             Estates
          
           in
           Parlament
           .
           3.
           
           That
           the
           
           King
           can
           be
           none
           of
           the
           
             Estates
             in
             Parlament
          
           ,
           because
           he
           doth
           not
           represent
           any
           of
           
             the
             Estates
          
           of
           the
           Kingdom
           .
        
         
           And
           it
           is
           a
           wonder
           to
           me
           ,
           that
           any
           man
           ,
           who
           considers
           the
           Constitution
           of
           the
           Government
           of
           Europe
           ,
           and
           how
           agreeable
           it
           was
           in
           all
           the
           Kingdoms
           of
           it
           ,
           as
           to
           the
           Assemblies
           of
           the
           
             Three
             Estates
          
           ,
           could
           ever
           take
           the
           King
           to
           be
           one
           of
           
             the
             Three
             Estates
             in
             Parlament
          
           .
           For
           the
           Question
           would
           seem
           ridiculous
           to
           persons
           of
           any
           other
           Nation
           ,
           if
           we
           should
           ask
           them
           whether
           the
           King
           was
           reckon'd
           among
           the
           
             tres
             Ordines
             Regni
          
           ?
           For
           by
           the
           
             Three
             Estates
          
           they
           all
           mean
           the
           
             Three
             Ranks
          
           of
           men
           ,
           the
           
             Clergy
             ,
             Nobility
          
           ,
           and
           Commonalty
           .
           
           But
           the
           Authour
           of
           the
           Letter
           could
           not
           deny
           that
           
             these
             were
             the
             Three
             Estates
             of
             the
             Kingdom
          
           ;
           but
           he
           saith
           ,
           
             the
             Three
             Estates
             of
             Parlament
             are
             clean
             another
             thing
             :
          
           which
           I
           may
           reasonably
           suppose
           ,
           is
           sufficiently
           disproved
           by
           the
           foregoing
           Discourse
           .
        
         
           But
           he
           quotes
           several
           Authorities
           for
           what
           he
           saith
           ,
           which
           must
           now
           be
           examined
           ,
           and
           will
           appear
           to
           be
           of
           no
           weight
           ,
           if
           compared
           with
           the
           evidence
           already
           given
           on
           the
           other
           side
           .
        
         
           
             The
             first
          
           Authority
           
             is
             of
          
           King
           Iames
           ,
           
           in
           his
           Speech
           at
           the
           Prorogation
           of
           the
           Parlament
           
           1605.
           
             wherein
             he
             saith
          
           ,
           the
           Parlament
           consists
           of
           a
           Head
           ,
           and
           a
           Body
           ;
           the
           King
           is
           the
           Head
           ,
           the
           Body
           are
           the
           Members
           of
           the
           Parlament
           .
           This
           Body
           is
           subdivided
           into
           two
           parts
           ,
           the
           Vpper
           ,
           and
           the
           Lower
           House
           .
           The
           Vpper
           consists
           of
           the
           Nobility
           and
           the
           Bishops
           ;
           the
           Lower
           of
           Knights
           and
           Burgesses
           .
           
             The
             force
             of
             the
             Argument
             lies
             in
          
           King
           Iames
           
             his
             making
             the
          
           Bishops
           
             but
             a
          
           Part
           of
           the
           Vpper
           House
           :
           
             but
             that
             this
             doth
             not
             exclude
             their
             being
             a
          
           Third
           Fstate
           ,
           
             I
             prove
             by
             a
             Parallel
             Instance
             .
             In
          
           5
           H.
           
             IV.
             the
          
           Bishop
           of
           London
           ,
           being
           Chancellour
           ,
           compared
           the
           Parlament
           to
           a
           Body
           ,
           as
           King
           Iames
           
             did
             ;
             but
             he
             made
             the
          
           Chùrch
           the
           Right
           Hand
           ,
           the
           Temporal
           Lords
           the
           Left
           Hand
           ,
           
             and
             the
          
           Commonaltie
           the
           other
           Members
           ;
           
             yet
             presently
             after
             ,
             he
             calls
             these
             ,
          
           the
           several
           Estates
           which
           the
           King
           had
           called
           to
           Parlament
           .
           
             But
             that
             the
          
           Bishops
           
             sitting
             in
             the
          
           same
           House
           with
           the
           Temporal
           Lords
           
             doth
             not
             hinder
             their
             being
             a
          
           distinct
           Estate
           ,
           
             will
             appear
             ,
             when
             we
             come
             to
             answer
             his
          
           Reasons
           .
           
             And
             for
          
           King
           Iames
           
             his
             sense
             as
             to
             this
             matter
             ,
             we
             may
             fully
             understand
             it
             by
             this
             passage
             in
             his
          
           Advice
           to
           his
           Son.
           
           As
           the
           whole
           Subjects
           of
           our
           Countrey
           (
           by
           the
           ancient
           and
           fundamental
           Policy
           of
           our
           Kingdom
           )
           are
           divided
           into
           
           Three
           Estates
           ,
           &c.
           
           
             These
             words
             are
             spoken
             of
             the
          
           Kingdom
           of
           Scotland
           ;
           
             but
             the
          
           ancient
           and
           fundamental
           Policy
           
             of
             that
             is
             the
             same
             with
          
           England
           ;
           
             and
             he
             that
             believed
          
           the
           Subjects
           made
           the
           Three
           Estates
           
             there
             ,
             could
             never
             believe
             the
          
           King
           
             to
             be
             one
             of
             them
             here
             .
          
        
         
           The
           next
           Authority
           is
           of
           
             King
             Charles
             I.
          
           
           
             in
             his
             Answer
             to
             the
             19
             Propositions
             Iune
             2.
             1642.
             wherein
             he
             tells
             the
             two
             Houses
             ,
             that
             neither
             one
             Estate
             should
             transact
             what
             is
             proper
             for
             two
             ,
             nor
             two
             what
             is
             proper
             for
             three
             .
          
           To
           which
           I
           answer
           ,
           that
           the
           Penner
           of
           that
           Answer
           was
           so
           intent
           upon
           the
           main
           business
           ,
           
             viz.
             that
             the
             two
             Houses
             could
             doe
             nothing
             without
             the
             King
             ,
          
           that
           he
           did
           not
           go
           about
           to
           dispute
           this
           matter
           with
           them
           ,
           
             whether
             the
             King
             were
             one
             of
             the
             Three
             Estates
             or
             not
          
           ;
           but
           taking
           their
           supposition
           for
           granted
           ,
           he
           shews
           that
           they
           could
           have
           no
           Authority
           to
           act
           without
           the
           
             King's
             concurrence
          
           .
           But
           the
           unwary
           Concessions
           in
           that
           Answer
           were
           found
           of
           dangerous
           consequence
           afterwards
           ,
           when
           the
           
           King's
           enemies
           framed
           the
           
             Political
             Catechism
          
           out
           of
           them
           ;
           which
           is
           lately
           reprinted
           ,
           no
           doubt
           ,
           for
           the
           good
           of
           the
           People
           .
        
         
           In
           2
           H.
           IV.
           n.
           32.
           
           he
           makes
           
             the
             House
             of
             Commons
             to
             declare
             to
             the
             King
             and
             
             Lords
             ,
             that
             the
             Three
             Estates
             of
             the
             Parlament
             are
             the
             King
             ,
             the
             Lords
             Spiritual
             ,
             and
             Temporal
             .
          
           Whereas
           the
           truth
           of
           that
           matter
           is
           this
           :
           A
           difference
           had
           happen'd
           in
           the
           House
           of
           Lords
           ,
           between
           the
           Earl
           of
           Rutland
           and
           
             Lord
             Fitz-Walter
          
           ;
           whereupon
           the
           
             House
             of
             Commons
          
           go
           up
           to
           the
           King
           and
           the
           Lords
           ,
           and
           having
           ,
           it
           seems
           ,
           an
           
             Eloquent
             Speaker
          
           ,
           who
           ventured
           upon
           dangerous
           Metaphors
           ,
           he
           makes
           bold
           with
           the
           Similitude
           of
           the
           Trinity
           ;
           because
           that
           would
           help
           him
           to
           perswade
           them
           to
           Vnity
           :
           but
           if
           he
           had
           left
           the
           King
           out
           ,
           he
           might
           have
           been
           suspected
           to
           have
           set
           up
           an
           
             Independent
             Power
          
           in
           the
           
             Three
             Estates
          
           :
           therefore
           lest
           he
           should
           lose
           his
           Similitude
           ,
           (
           which
           goes
           a
           great
           way
           with
           an
           eloquent
           man
           )
           he
           strains
           another
           point
           ,
           and
           draws
           the
           King
           into
           his
           Trinity
           .
           And
           is
           such
           an
           expression
           to
           be
           mention'd
           in
           comparison
           with
           the
           express
           Declaration
           but
           the
           year
           before
           ,
           1
           H.
           IV.
           of
           both
           Houses
           concerning
           the
           
             Three
             Estates
             in
             Parlament
          
           ?
        
         
           Next
           to
           this
           Similitude
           ,
           that
           of
           
             Stephen
             Gardiner
          
           ought
           to
           be
           mention'd
           ;
           
             who
             compared
             Faith
             ,
             Hope
             ,
             and
             Charity
             ,
             concurring
             to
             Iustification
             ,
             to
             the
             concurrence
             of
             the
             Three
             Estates
             in
             Parlament
             ,
          
           i.e.
           
             the
             King
             and
             two
             Houses
             ,
             to
             the
             making
             of
             
             Laws
             .
          
           But
           I
           wonder
           the
           Authour
           of
           the
           Letter
           ,
           who
           expresseth
           so
           much
           dislike
           of
           his
           Divinity
           ,
           would
           take
           his
           Iudgment
           in
           Politicks
           .
           But
           this
           notion
           of
           making
           the
           
             King
             one
             of
             the
             Three
             Estates
             ,
          
           how
           valuable
           soever
           it
           be
           to
           some
           men
           ,
           is
           ,
           it
           seems
           ,
           onely
           to
           be
           met
           with
           in
           some
           grave
           ancient
           Similitudes
           .
           But
           of
           what
           Authority
           these
           are
           ,
           against
           the
           constant
           sense
           of
           Parlaments
           so
           fully
           declared
           ,
           I
           leave
           any
           man
           of
           understanding
           to
           judge
           .
        
         
           For
           the
           judgment
           of
           
             eminent
             Lawyers
          
           ,
           
           he
           quotes
           but
           one
           in
           
             King
             Iames
          
           his
           time
           ,
           
             viz.
             Finch
             in
             his
             Book
             of
             Law
             ,
             l.
             2.
             ch
             .
             1.
             who
             doth
             indeed
             ,
          
           in
           the
           words
           quoted
           by
           him
           ,
           
             make
             the
             King
             ,
             Lords
             and
             Commons
             to
             be
             the
             Three
             Estates
             .
          
           But
           I
           can
           hardly
           imagine
           how
           a
           
             learned
             Lawyer
          
           could
           fall
           into
           such
           a
           gross
           mistake
           ,
           unless
           the
           
             Modus
             tenendi
             Parlamentum
          
           should
           give
           the
           occasion
           to
           it
           ;
           which
           was
           accounted
           
             no
             blind
             MS.
          
           in
           those
           days
           ,
           but
           a
           very
           great
           Treasure
           ,
           as
           appears
           by
           Sir
           
             E.
             Coke
          
           ,
           who
           cites
           it
           on
           all
           occasions
           .
           And
           very
           few
           Lawyers
           had
           the
           judgment
           in
           Antiquity
           which
           Mr.
           Selden
           had
           ,
           who
           first
           discovered
           the
           just
           Age
           and
           Value
           of
           that
           MS.
           
           This
           Authour
           indeed
           ,
           towards
           the
           conclusion
           of
           his
           Treatise
           ,
           makes
           the
           
             King
             the
             first
             of
             the
             Estates
             :
          
           but
           then
           he
           
           makes
           
             Six
             Estates
             in
             Parlament
          
           ,
           or
           Degrees
           ,
           as
           he
           calls
           them
           ;
           and
           delivers
           this
           for
           good
           doctrine
           at
           the
           very
           end
           of
           his
           Treatise
           ,
           
             that
             if
             any
             one
             of
             all
             these
             be
             summon'd
             ,
             and
             do
             not
             appear
             ,
             yet
             ,
          
           with
           him
           ,
           
             it
             is
             notwithstanding
             a
             full
             Parlament
             :
          
           nay
           ,
           he
           expresly
           saith
           ,
           
             the
             King
             may
             hold
             a
             Parlament
             without
             a
             House
             of
             Lords
             .
          
           But
           there
           are
           so
           many
           other
           such
           Positions
           discover'd
           by
           others
           in
           that
           Treatise
           ,
           that
           I
           need
           to
           say
           no
           more
           of
           it
           .
           And
           as
           to
           this
           point
           of
           the
           
             King
             's
             being
             one
             of
             the
             Estates
             in
             Parlament
             ,
          
           Sir
           
             Ed.
             Coke
          
           ,
           who
           otherwise
           too
           much
           admired
           that
           Treatise
           ,
           declares
           against
           it
           ,
           in
           the
           very
           beginning
           of
           his
           
             Treatise
             of
             the
             Parlament
             .
             This
             Court
             ,
          
           saith
           he
           ,
           
             consisteth
             of
             the
             King's
             Majesty
             ,
             sitting
             there
             as
             in
             his
             Royal
             Politick
             capacity
             ;
             and
             of
             the
             Three
             Estates
             of
             the
             Realm
             ;
             viz.
             of
             the
             Lords
             Spiritual
             ,
             Archbishops
             and
             Bishops
             ,
             the
             Lords
             Temporal
             ,
             and
             the
             Commons
             of
             the
             Realm
             .
          
           And
           however
           the
           Authour
           of
           the
           Letter
           may
           slight
           Mr.
           
           Selden's
           Judgment
           in
           this
           matter
           ;
           
           yet
           these
           two
           may
           be
           sufficient
           to
           weigh
           down
           the
           Scales
           against
           any
           
             one
             Lawyer
             's
             Authority
          
           to
           the
           contrary
           ;
           especially
           ,
           since
           they
           were
           never
           suspected
           ,
           I
           dare
           say
           ,
           for
           any
           partiality
           towards
           the
           Clergy
           .
        
         
         
           (
           3.
           )
           But
           the
           Authour
           of
           the
           Letter
           thinks
           to
           carry
           this
           point
           by
           meer
           strength
           of
           Reason
           .
           We
           must
           therefore
           diligently
           consider
           the
           force
           of
           his
           Arguments
           .
        
         
           1.
           
           
             If
             Bishops
             were
             one
             of
             the
             Estates
             in
             Parlament
             ,
          
           
           
             Reason
             would
             they
             should
             vote
             by
             themselves
             separately
             from
             other
             Lords
             ,
             which
             would
             make
             another
             Estate
             :
             But
             they
             do
             not
             onely
             not
             vote
             apart
             by
             themselves
             ,
             the
             whole
             Body
             of
             them
             together
             ;
             but
             that
             Body
             is
             divided
             and
             separated
             within
             it self
             ,
             one
             part
             from
             another
             .
          
           If
           both
           Houses
           ever
           sate
           together
           ,
           as
           some
           imagine
           ,
           (
           and
           as
           they
           do
           in
           a
           neighbour
           Kingdom
           ,
           )
           this
           way
           of
           Reasoning
           will
           make
           but
           
             one
             Estate
          
           in
           Parlament
           all
           that
           time
           .
           But
           to
           give
           a
           clear
           answer
           to
           this
           objection
           ;
           I
           distinguish
           two
           things
           in
           the
           Bishops
           ,
           their
           
             Spiritual
             Capacity
          
           ,
           by
           which
           they
           represent
           ;
           and
           their
           
             Civil
             Capacity
          
           as
           Barons
           ,
           in
           which
           they
           vote
           ,
           according
           to
           the
           Rules
           of
           the
           House
           .
           For
           ,
           the
           manner
           of
           giving
           their
           Votes
           is
           a
           thing
           under
           the
           Regulation
           of
           the
           House
           ,
           and
           depends
           upon
           Custom
           ;
           but
           their
           
             Spiritual
             Capacity
          
           as
           Bishops
           ,
           in
           which
           they
           represent
           ,
           doth
           not
           .
           And
           the
           Reason
           of
           their
           sitting
           together
           with
           other
           Lords
           ,
           is
           upon
           the
           account
           of
           their
           Writs
           of
           Summons
           ;
           which
           ,
           as
           Mr.
           Selden
           confesseth
           ,
           
           ever
           since
           the
           latter
           end
           of
           Edw.
           III.
           hath
           been
           ,
           for
           the
           
             Bishops
             cum
             ceteris
             Prelatis
             ,
             Magnatibus
             &
             Proceribus
             ,
             colloquium
             habere
             &
             tractatum
             :
          
           and
           therefore
           they
           are
           bound
           
             to
             sit
             together
          
           in
           the
           same
           place
           with
           the
           
             Temporal
             Lords
          
           ,
           or
           else
           they
           cannot
           
             advise
             and
             confer
             together
          
           .
           And
           I
           leave
           the
           Authour
           of
           the
           Letter
           to
           consider
           ,
           whether
           his
           Reason
           ,
           or
           the
           
             King
             's
             Writ
          
           ,
           ought
           to
           take
           place
           .
        
         
           2.
           
           
             If
             the
             Bishops
             were
             a
             Third
             Estate
             ,
          
           
           
             they
             must
             have
             a
             Negative
             voice
             to
             all
             that
             passeth
             there
             :
             But
             the
             Bishops
             are
             intermingled
             with
             the
             Temporal
             Lords
             in
             making
             up
             the
             Majority
             ,
             as
             a
             part
             of
             it
             .
          
           Since
           I
           have
           evidently
           proved
           the
           Clergy
           to
           be
           one
           of
           the
           
             Three
             Estates
             in
             Parlament
          
           ,
           if
           he
           be
           sure
           that
           every
           Estate
           ought
           to
           have
           a
           
             Negative
             voice
          
           ,
           then
           I
           am
           sure
           that
           this
           Objection
           lies
           more
           upon
           him
           to
           answer
           ,
           then
           upon
           the
           Bishops
           .
           But
           to
           prevent
           any
           new
           disputes
           ,
           I
           shall
           return
           this
           Answer
           to
           it
           .
           Since
           it
           is
           agreed
           on
           both
           sides
           ,
           that
           the
           Bishops
           do
           sit
           in
           the
           House
           as
           
             Temporal
             Barons
          
           ,
           and
           in
           that
           respect
           do
           make
           up
           the
           
             Majority
             of
             Votes
          
           in
           the
           House
           of
           Lords
           ;
           it
           could
           not
           but
           seem
           unreasonable
           ,
           that
           they
           who
           voted
           
             as
             Barons
          
           in
           the
           House
           should
           have
           a
           
             Negative
             voice
          
           in
           
             another
             capacity
          
           :
           and
           by
           
           this
           means
           they
           lost
           their
           distinct
           
             Negative
             voice
          
           ,
           because
           by
           the
           
             King's
             Writs
          
           they
           were
           to
           sit
           and
           vote
           with
           the
           
             Temporal
             Lords
          
           .
           Just
           as
           it
           is
           in
           the
           Diets
           of
           Germany
           :
           Since
           the
           distribution
           of
           that
           
             Assembly
             of
             the
             Estates
             of
             the
             Empire
          
           into
           the
           several
           Chambers
           ,
           the
           Prelates
           vote
           according
           to
           their
           Ranks
           :
           the
           
             Three
             Electors
          
           in
           the
           
             Electoral
             College
          
           ;
           the
           other
           Bishops
           ,
           that
           are
           Princes
           of
           the
           Empire
           ,
           in
           the
           Chamber
           of
           Princes
           ;
           and
           those
           who
           are
           not
           Princes
           ,
           with
           the
           Counts
           and
           Barons
           .
           So
           that
           here
           the
           Votes
           of
           the
           Bishops
           are
           mingled
           with
           the
           rest
           ,
           without
           a
           
             distinct
             Negative
             voice
          
           ;
           and
           yet
           no
           one
           questions
           but
           the
           Bishops
           do
           represent
           a
           
             distinct
             Estate
          
           of
           the
           Empire
           .
        
         
           3.
           
           
             This
             is
             a
             disparagement
             to
             the
             House
             of
             Lords
             ,
          
           
           
             that
             another
             Estate
             must
             be
             joyned
             with
             them
             to
             make
             up
             their
             Negative
             .
          
           No
           more
           ,
           then
           to
           the
           Princes
           of
           the
           Empire
           ,
           to
           have
           the
           Bishops
           joyned
           with
           them
           ,
           when
           the
           
             Imperial
             Cities
          
           vote
           by
           themselves
           .
           But
           what
           disparagement
           is
           this
           ,
           for
           those
           to
           make
           up
           the
           
             Majority
             of
             the
             Votes
          
           of
           the
           Baronage
           ,
           who
           sit
           there
           as
           Barons
           by
           Tenure
           ,
           by
           a
           Right
           as
           ancient
           as
           Will.
           the
           Conquerour
           ,
           by
           the
           
           Authour
           's
           own
           confession
           ?
        
         
           4.
           
           If
           the
           Bishops
           make
           a
           Third
           Estate
           ,
           
           
           then
           a
           Parlament
           could
           not
           be
           held
           without
           them
           :
           But
           a
           Parlament
           hath
           sate
           
             excluso
             Clero
          
           ,
           as
           that
           of
           Ed.
           I
           ;
           and
           that
           it
           may
           do
           so
           in
           point
           of
           Law
           ,
           appears
           by
           the
           Resolution
           of
           the
           Iudges
           in
           Keilway's
           Reports
           ,
           because
           the
           Bishops
           sit
           in
           Parlament
           by
           reason
           of
           their
           Baronies
           .
           
             This
             is
             the
             great
             Objection
             ,
             to
             which
             I
             shall
             give
             a
             full
             Answer
             .
          
        
         
           [
           1.
           ]
           It
           is
           dangerous
           arguing
           from
           
             extraordinary
             Cases
          
           to
           the
           excluding
           any
           one
           of
           the
           Estates
           of
           the
           Kingdom
           from
           being
           represented
           in
           Parlament
           :
           because
           no
           one
           can
           tell
           where
           this
           way
           of
           arguing
           will
           stop
           .
           If
           a
           Parlament
           may
           be
           good
           without
           
             one
             Estate
          
           ,
           why
           not
           without
           another
           ?
           And
           we
           have
           seen
           an
           House
           of
           Lords
           excluded
           as
           unnecessary
           ,
           upon
           such
           kind
           of
           arguments
           ;
           
             because
             they
             sit
             in
             their
             own
             Persons
             ,
             and
             represent
             none
             but
             themselves
             .
          
           If
           we
           once
           depart
           from
           the
           ancient
           and
           legal
           Constitution
           of
           Parlaments
           ,
           there
           will
           be
           no
           end
           of
           Alterations
           .
           Every
           new
           Modeller
           of
           Government
           hath
           something
           to
           offer
           that
           looks
           like
           Reason
           ,
           at
           least
           to
           those
           whose
           interest
           it
           is
           to
           carry
           it
           on
           .
           And
           if
           no
           Precedents
           can
           be
           found
           ,
           then
           they
           appeal
           to
           a
           certain
           invisible
           thing
           called
           
             the
             Fundamental
             Contract
             of
             the
             Nation
             :
          
           which
           being
           a
           thing
           no
           where
           to
           be
           found
           ,
           may
           
           signify
           what
           any
           one
           pleaseth
           .
           Suppose
           one
           extraordinary
           case
           happens
           through
           the
           disorder
           of
           Times
           ,
           
             that
             the
             Clergy
             have
             been
             left
             out
             in
             a
             Parlament
          
           ;
           what
           doth
           this
           signify
           towards
           altering
           the
           
             legal
             Constitution
          
           and
           constant
           Course
           of
           Parlaments
           ,
           which
           from
           the
           beginning
           of
           Parlaments
           in
           this
           Nation
           ,
           have
           had
           the
           Estate
           of
           the
           Clergy
           represented
           in
           them
           ?
           as
           sufficiently
           appears
           by
           Mr.
           
           Petyt's
           learned
           Preface
           to
           his
           late
           Discourse
           of
           
             the
             ancient
             Right
             of
             the
             Commons
             .
          
           
           The
           first
           after
           King
           Ethelbert's
           Conversion
           was
           ,
           
             Commune
             Concilium
             tam
             Cleri
             quàm
             Populi
             .
          
           That
           under
           Ina
           was
           ,
           
             omnium
             Episcoporum
             ,
             &
             Principum
             ,
             Procerum
             Comitum
             ,
             &
             omnium
             Sapientum
             Seniorum
             &
             Populorum
             totius
             Regni
             .
          
           That
           under
           
             Edmund
             the
             Elder
          
           was
           ,
           
             Concilium
             magnum
             Episcoporum
             ,
             Abbatum
             ,
             Fidelium
             Procerum
             &
             Populorum
             .
          
           I
           might
           adde
           many
           more
           :
           as
           that
           at
           Becanceld
           under
           
             King
             Withred
             A.
             D.
          
           694.
           
           
           Episcopis
           ,
           &c.
           
             Ducibus
             &
             Satrapis
             in
             unum
             glomeratis
             .
          
           At
           Clovesho
           under
           Kenulphus
           of
           Mercia
           ;
           at
           Calecyth
           ,
           at
           London
           ,
           at
           Kingston
           .
           Nay
           ,
           not
           one
           can
           be
           found
           by
           me
           in
           the
           Saxon
           times
           ,
           wherein
           the
           Bishops
           are
           not
           expresly
           mention'd
           .
           So
           that
           if
           there
           be
           such
           a
           thing
           to
           be
           found
           as
           
             the
             Fundamental
             Contract
             
             of
             the
             Nation
          
           about
           the
           Constitution
           of
           Parlaments
           ,
           I
           do
           not
           question
           but
           they
           have
           their
           share
           in
           it
           .
           Insomuch
           that
           Sir
           
             H.
             Spelman
          
           makes
           it
           his
           description
           of
           the
           Wittena-Gemot
           ,
           that
           in
           it
           ,
           as
           Mr.
           Petyt
           observes
           ,
           
             Convenêre
             Regni
             Principes
             ,
             tam
             Episcopi
             quàm
             Magistratus
             ,
             liberique
             homines
          
           ;
           i.e.
           
             it
             was
             an
             Assembly
             of
             the
             Three
             Estates
             .
          
           So
           that
           before
           there
           were
           any
           such
           things
           as
           Baronies
           ,
           they
           were
           an
           
             essential
             part
             of
             the
             English
             Parlament
             .
          
           And
           must
           all
           this
           clear
           and
           undoubted
           evidence
           from
           the
           first
           mention
           of
           Parlaments
           be
           rejected
           ,
           because
           once
           upon
           a
           time
           ,
           a
           certain
           King
           called
           a
           certain
           Parlament
           ,
           wherein
           ,
           upon
           some
           Distast
           between
           the
           King
           and
           the
           Clergy
           ,
           the
           other
           Estates
           continued
           sitting
           without
           them
           ?
        
         
           [
           2.
           ]
           This
           single
           Instance
           about
           the
           Parlament
           under
           Ed.
           I.
           is
           much
           misunderstood
           ,
           as
           will
           appear
           by
           these
           considerations
           .
        
         
           1.
           
           That
           the
           
             Clergy
             excluded
             themselves
          
           ,
           and
           were
           not
           shut
           out
           by
           the
           Act
           of
           the
           King
           and
           the
           
             other
             Estates
          
           .
           For
           upon
           the
           Bull
           of
           Pope
           Boniface
           VIII
           .
           forbidding
           the
           Clergy
           giving
           any
           more
           Subsidies
           ,
           (
           which
           was
           procured
           by
           
             Archbishop
             Winchelsee
          
           ,
           as
           our
           Historians
           relate
           )
           a
           Parlament
           being
           called
           by
           Ed.
           I.
           at
           
             Saint
             Edmondsbury
          
           on
           purpose
           for
           
             Subsidies
             ,
             the
             
             Clergy
             refuse
             ,
             upon
             the
             Pope's
             prohibition
             ,
             till
             they
             had
             consulted
             the
             Court
             of
             Rome
             ;
             and
             go
             away
             every
             one
             to
             their
             own
             homes
             :
          
           notwithstanding
           which
           ,
           the
           King
           proceeds
           with
           the
           other
           
             two
             Estates
          
           ,
           and
           gets
           
             Subsidies
             from
             the
             Laiety
          
           .
           So
           that
           the
           
             exclusion
             of
             the
             Clergy
          
           came
           from
           their
           own
           
             voluntary
             Act
          
           ;
           when
           the
           King
           desired
           no
           such
           thing
           ,
           nor
           the
           other
           
             two
             Estates
          
           ,
           but
           were
           all
           extremely
           provoked
           at
           this
           withdrawing
           of
           the
           Clergy
           .
           That
           this
           Parlament
           was
           called
           purposely
           for
           the
           Subsidy
           ,
           appears
           by
           the
           Writ
           still
           upon
           Record
           ;
           wherein
           the
           Archbishop
           is
           summon'd
           to
           appear
           ,
           
           
             ad
             ordinandum
             de
             quantitate
             &
             modo
             subsidii
             memorati
             .
          
        
         
           2.
           
           Whereas
           it
           is
           insinuated
           ,
           
             that
             great
             matters
             were
             done
             ,
             and
             good
             Laws
             passed
             ,
             when
             the
             Clergy
             were
             excluded
          
           ;
           I
           find
           no
           such
           thing
           .
           It
           is
           true
           ,
           the
           confirmation
           of
           
             Magna
             Charta
          
           by
           Ed.
           I.
           (
           which
           was
           a
           great
           thing
           indeed
           )
           is
           said
           ,
           in
           the
           Statute-Books
           ,
           to
           be
           done
           
             the
             same
             year
             ,
             viz.
             25
             Ed.
          
           I.
           But
           that
           it
           could
           not
           be
           done
           in
           that
           Parlament
           ,
           I
           thus
           prove
           .
           That
           Parlament
           was
           called
           crast
           .
           
           Animarum
           ;
           the
           King
           appoints
           another
           at
           
             London
             crast
             .
             Hilarii
          
           :
           where
           the
           difference
           still
           continuing
           ,
           he
           appoints
           a
           new
           Parlament
           on
           the
           day
           of
           
             S.
             Peter
             ad
             Vincula
          
           ,
           or
           Lammas-day
           ,
           
           wherein
           
             he
             was
             reconciled
             to
             the
             Archbishop
             and
             Clergy
             .
          
           Then
           Fealty
           is
           sworn
           to
           his
           Son
           ,
           before
           his
           going
           into
           Flanders
           ;
           and
           the
           King
           excused
           himself
           as
           to
           the
           great
           Taxes
           and
           Subsidies
           ,
           on
           the
           account
           of
           his
           Wars
           .
           While
           he
           was
           about
           Winchelsea
           ,
           a
           Remonstrance
           is
           sent
           to
           him
           of
           the
           
             Grievances
             of
             the
             Nation
          
           ,
           in
           the
           name
           of
           the
           
             Archbishops
             ,
             Bishops
             ,
             Earls
             ,
             Barons
             ,
             and
             the
             whole
             Commons
             of
             England
             ,
          
           wherein
           they
           complain
           of
           
             illegal
             Taxes
          
           ,
           and
           
             the
             breach
             of
             Magna
             Charta
          
           .
           The
           King
           gives
           a
           dilatory
           answer
           ,
           and
           passes
           over
           into
           Flanders
           .
           In
           his
           absence
           the
           People
           refuse
           to
           pay
           the
           Taxes
           ,
           and
           the
           Lords
           combine
           together
           ,
           and
           all
           things
           tend
           to
           an
           open
           Rebellion
           .
           His
           
             Son
             Ed.
          
           II.
           calls
           a
           Parlament
           at
           London
           ,
           and
           promises
           a
           Confirmation
           of
           the
           
             Charter
             ,
             and
             that
             no
             Taxes
             should
             hereafter
             be
             raised
             ,
             either
             on
             Clergy
             or
             Laiety
             ,
             without
             their
             consent
             .
          
           Which
           being
           sent
           over
           ,
           Edw.
           I.
           confirmed
           it
           with
           his
           
             own
             Seal
          
           :
           which
           was
           all
           done
           within
           the
           compass
           of
           this
           year
           .
           But
           he
           again
           ratified
           it
           in
           the
           
             Parlament
             27
             Ed.
          
           I.
           So
           that
           nothing
           was
           done
           in
           that
           Parlament
           at
           
             S.
             Edmondsbury
          
           ,
           but
           
             granting
             a
          
           12
           th
           
             of
             the
             Laiety
             to
             the
             King.
          
           And
           when
           the
           great
           Laws
           were
           passed
           ,
           the
           
             King
             and
             
             Clergy
          
           were
           
             reconciled
             ,
             and
             they
             sate
             in
             Parlament
             .
          
           And
           the
           Archbishop
           of
           Canterbury
           fell
           into
           the
           King's
           displeasure
           afterwards
           ,
           for
           being
           so
           active
           a
           promoter
           of
           them
           .
           The
           summe
           then
           of
           this
           mighty
           argument
           is
           ,
           
             that
             the
             Lords
             and
             Commons
             once
             granted
             their
             own
             Subsidies
             ,
             without
             the
             concurrence
             of
             the
             Clergy
          
           ;
           therefore
           the
           Clergy
           are
           no
           
             essential
             part
          
           of
           the
           parlament
           .
        
         
           3.
           
           The
           Reason
           assigned
           in
           
           Keilway's
           Reports
           ,
           why
           the
           King
           may
           hold
           a
           Parlament
           without
           the
           Bishops
           ,
           is
           very
           insufficient
           :
           
           
             viz.
             because
             they
             have
             no
             place
             in
             Parlament
             by
             reason
             of
             their
             Spiritualty
             ,
             but
             by
             reason
             of
             their
             Temporal
             possessions
             .
          
           The
           insufficiency
           of
           which
           Reason
           will
           appear
           by
           two
           things
           .
        
         
           1.
           
           That
           it
           is
           not
           true
           :
           as
           appears
           by
           this
           ,
           that
           the
           Clergy
           are
           
             one
             of
             the
             Estates
             of
             the
             Kingdom
          
           ;
           and
           all
           the
           Estates
           of
           the
           Kingdom
           must
           be
           represented
           in
           Parlament
           .
        
         
           2.
           
           Were
           it
           true
           ,
           it
           is
           no
           good
           Reason
           .
           For
           why
           may
           they
           be
           excluded
           
             because
             they
             sit
             on
             the
             account
             of
             their
             Baronies
             ?
          
           Where
           lies
           the
           force
           of
           this
           Reason
           ?
           Is
           it
           because
           there
           will
           be
           Number
           enough
           without
           them
           ?
           That
           was
           the
           
           Rump's
           Argument
           against
           the
           
             Secluded
             Members
          
           .
           
           And
           I
           hope
           the
           Authour
           of
           the
           Letter
           will
           not
           justify
           their
           Cause
           .
           Or
           is
           it
           because
           they
           hold
           their
           Baronies
           by
           Tenure
           ?
           So
           did
           all
           the
           ancient
           Barons
           of
           England
           :
           and
           why
           may
           the
           King
           hold
           his
           Parlament
           with
           the
           other
           Barons
           ,
           without
           the
           Bishops
           ;
           and
           not
           as
           well
           with
           the
           Bishops
           ,
           without
           the
           other
           Barons
           ?
           Which
           I
           do
           not
           see
           how
           it
           can
           be
           answer'd
           upon
           those
           grounds
           .
           Suppose
           the
           Question
           had
           been
           thus
           put
           ,
           Since
           all
           the
           ancient
           
             Lords
             of
             Parlament
          
           were
           Barons
           by
           Tenure
           ,
           and
           Parlaments
           were
           held
           for
           many
           Ages
           without
           any
           Barons
           by
           Patent
           or
           by
           Writ
           ,
           why
           may
           not
           the
           King
           hold
           his
           Parlament
           after
           the
           ancient
           way
           ,
           onely
           with
           Barons
           by
           Tenure
           ?
           I
           do
           not
           see
           ,
           but
           as
           good
           a
           Reason
           may
           be
           given
           for
           this
           ,
           as
           that
           in
           
           Keilway's
           Reports
           .
           All
           that
           I
           plead
           for
           is
           ,
           that
           our
           good
           ancient
           and
           legal
           Constitution
           of
           Parlament
           may
           not
           be
           changed
           for
           the
           sake
           of
           any
           single
           Precedents
           ,
           and
           rare
           Cases
           ,
           and
           obscure
           Reports
           built
           upon
           weak
           and
           insufficient
           Reasons
           .
           
           For
           ,
           as
           the
           Authour
           of
           the
           Letter
           very
           well
           saith
           ,
           
             Consuetudo
             Parlamenti
             est
             Lex
             Parlamenti
             ,
             The
             constant
             Practice
             of
             Parlaments
          
           (
           and
           not
           one
           single
           Instance
           )
           
             is
             the
             Law
             of
             Parlaments
          
           .
           And
           suppose
           that
           Precedent
           of
           25
           Ed.
           I.
           
           as
           full
           as
           could
           be
           wished
           in
           this
           case
           ;
           yet
           I
           return
           the
           answer
           of
           the
           Authour
           of
           the
           Letter
           in
           a
           like
           case
           ,
           
           
             This
             is
             but
             one
             single
             Precedent
             ,
          
           (
           of
           a
           Parlament
           without
           Bishops
           ,
           )
           
             against
             multitudes
             wherein
             they
             were
             present
             :
             it
             was
             once
             so
             ,
             and
             never
             but
             once
             .
             And
             can
             that
             be
             thought
             sufficient
             to
             alter
             and
             change
             the
             constant
             course
             and
             practice
             of
             Parlaments
             ,
             which
             hath
             been
             otherwise
             ?
          
        
         
           Nothing
           now
           remains
           ,
           but
           a
           severe
           reflexion
           on
           the
           
             Popish
             Bishops
             for
             opposing
             the
             Statute
             of
             Provisors
             ,
          
           
           
             and
             the
             several
             good
             Acts
             for
             the
             Reformation
             .
          
           But
           what
           this
           makes
           against
           the
           
             Votes
             of
             Protestant
             Bishops
          
           is
           hard
           to
           understand
           .
           If
           he
           thinks
           those
           could
           not
           make
           
             a
             good
             Third
             Estate
             in
             Parlament
             ,
          
           who
           took
           Oaths
           to
           the
           Pope
           contrary
           to
           their
           Allegeance
           ,
           and
           the
           interest
           of
           the
           Nation
           ,
           so
           do
           we
           .
           If
           he
           have
           a
           great
           zeal
           for
           the
           Reformation
           ,
           so
           have
           all
           true
           Members
           of
           the
           Church
           of
           England
           ,
           who
           ,
           we
           doubt
           not
           ,
           will
           heartily
           maintain
           the
           Cause
           of
           our
           Church
           against
           the
           Vsurpations
           of
           Rome
           ,
           though
           the
           heat
           of
           others
           should
           abate
           .
           For
           did
           not
           our
           
             Protestant
             Bishops
          
           seal
           the
           Reformation
           with
           their
           Bloud
           ,
           and
           defend
           it
           by
           their
           admirable
           Writings
           ?
           What
           Champions
           hath
           the
           
             Protestant
             Religion
          
           
           ever
           had
           to
           be
           compared
           in
           all
           respects
           with
           our
           
             Cranmer
             ,
             ●idley
             ,
             Iewel
             ,
             Bilson
             ,
             Morton
             ,
             Hall
             ,
             Davenant
             ,
          
           and
           many
           other
           Bishops
           of
           the
           Church
           of
           England
           ?
           And
           notwithstanding
           the
           hard
           fortune
           
             Archbishop
             Laud
          
           had
           in
           other
           respects
           ,
           not
           to
           be
           well
           understood
           in
           the
           Age
           he
           lived
           in
           ;
           yet
           his
           enemies
           cannot
           deny
           his
           Book
           to
           be
           written
           with
           as
           much
           strength
           and
           judgment
           against
           the
           Church
           of
           Rome
           ,
           as
           any
           other
           whatsoever
           .
           I
           shall
           conclude
           with
           saying
           ,
           that
           the
           Clergy
           of
           the
           Church
           of
           England
           have
           done
           incomparably
           more
           Service
           against
           Popery
           ,
           from
           the
           Reformatition
           to
           this
           day
           ,
           then
           all
           the
           other
           Parties
           among
           us
           put
           together
           :
           And
           that
           the
           Papists
           at
           this
           time
           wish
           for
           nothing
           more
           ,
           then
           to
           see
           men
           ,
           under
           a
           pretence
           of
           Zeal
           against
           Popery
           ,
           to
           destroy
           our
           Church
           ;
           and
           while
           they
           cry
           up
           
             Magna
             Charta
          
           ,
           to
           invade
           the
           legal
           Rights
           thereof
           ,
           and
           thereby
           break
           the
           first
           Chapter
           of
           it
           ;
           and
           from
           disputing
           the
           
             Bishops
             presence
             in
             Cases
             Capital
          
           ,
           to
           proceed
           to
           others
           ;
           and
           so
           by
           degrees
           to
           alter
           the
           
             ancient
             Constitution
          
           of
           our
           Parlaments
           ,
           which
           will
           unavoidably
           bring
           Anarchy
           and
           Confusion
           upon
           us
           :
           from
           which
           ,
           as
           well
           as
           
             Popery
             ,
             Good
             Lord
             ,
             deliver
             us
             .
          
        
         
           THE
           END
           .
        
         
      
    
     
       
         Notes, typically marginal, from the original text
         
           Notes for div A61556-e360
           
             Letter
             p.
             1.
             
          
           
             Lett.
             p.
             93.
             
          
           
             Lett.
             p.
             3.
             118.
             
          
           
             Lett.
             p.
             66.
             
          
           
             P.
             21.
             
          
           
             Lett.
             p.
             2
             ,
             3.
             
          
           
             Lett.
             p.
             5.
             
          
           
             Lett.
             p.
             86.
             
          
           
             Hincmar
             .
             Epist
             .
             de
             Ordine
             lalatii
             .
          
           
             Concil
             .
             Franc.
             
               c.
               3.
               
               &
            
             9.
             
          
           
             Marculph
             .
             Form.
             l.
             1.
             c.
             25.
             
          
           
             Not.
             in
             Marc.
             p.
             287.
             
          
           
             
               Concil
               .
               Tolet
            
             .
             4.
             c.
             75.
             5.
             c.
             7.
             6.
             c.
             17.
             8.
             in
             Praef.
             12.
             c.
             1.
             17.
             c.
             1.
             17.
             c.
             1.
             
          
           
             Cont
             l.
             Tolet
             .
             13.
             c.
             2.
             
          
           
             Rer.
             Aleman
             .
             To.
             2.
             
             Cod.
             Leg.
             Antiq.
             B.
             362.
             
          
           
             Arumae
             .
             de
             Comitiis
             ●
             .
             35.
             c.
             4.
             
             ●
             .
             98.
             
          
           
             Goldast
             .
             Bohem
             .
             l.
             5.
             c.
             1.
             
          
           
             Bonfin
             .
             dec
             .
             2.
             l.
             1.
             
          
           
             Decret
             .
             Ladiss
             .
             p.
             12.
             
          
           
             Starovolse
             .
             ●olon
             .
             p.
             2●5
             .
          
           
             Herburt
             .
             Stat.
             Regni
             Pol.
             p.
             263.
             
          
           
             
               Adam
               .
               Brem
            
             .
             de
             situ
             Dan.
             n.
             85.
             
          
           
             Loccen
             .
             Antiq
             .
             S●eco
             .
             Goth.
             c.
             8.
             
          
           
             Ius
             Aulicum
             N●rveg
             .
             c.
             3.
             c.
             36.
             
          
           
             Lett.
             p.
             3
             ,
             4.
             
          
           
             Stat.
             Merton
             
               c.
               9.
               20
               
               H.
            
             3.
             
          
           
             Dissert
             .
             ad
             Flet.
             c.
             9.
             
             §
             2.
             
          
           
             Soz.
             hist.
             l.
             1.
             c.
             9.
             
          
           
             
               Capitul
               .
               Carol
            
             .
             &
             Ludov
             .
             l.
             6.
             c.
             281.
             ed.
             Lindenb
             .
             c.
             366.
             ed.
             Baluz
             .
          
           
             
               Cod.
               Just.
            
             de
             Epise
             .
             Audient
             .
             l.
             1.
             tit
             .
             4.
             c.
             8.
             
          
           
             
               Cod.
               Theodos
            
             .
             l.
             16.
             tit
             .
             11.
             c.
             1.
             
          
           
             
               Greg.
               NysS
            
             .
             vit
             .
             Greg.
             Basil.
             in
             ep
             .
             Socr.
             l.
             7.
             c.
             37.
             
          
           
             Ambros.
             de
             Offic.
             l.
             2.
             c.
             24.
             
          
           
             Aug.
             ep
             .
             147.
             in
             Ps.
             118.
             conc
             .
             24.
             
          
           
             
               Jac.
               Goth.
               in
            
             cod
             ▪
             Theod.
             ad
             Extrav
             .
             de
             Episc.
             judicio
             .
          
           
             Concil
             .
             Sardic
             .
             c.
             7.
             
          
           
             Balsam
             .
             in
             Can.
             4.
             
             Concil
             .
             Chalced.
             
          
           
             Auth.
             Collat
             .
             1.
             tit
             .
             6.
             
             Novell
             .
             6.
             c.
             2.
             
          
           
             Justin.
             Cod.
             l.
             1.
             tit
             .
             3.
             c.
             41.
             
          
           
             
               Cod.
               Theod.
            
             l.
             16.
             tit
             .
             2.
             n.
             38.
             
          
           
             Lindwood
             l.
             3.
             de
             Testam
             .
          
           
             Lett.
             p.
             4.
             
          
        
         
           Notes for div A61556-e4660
           
             Lett.
             p.
             68.
             
          
           
             Lett.
             p.
             69.
             
          
           
             Lett.
             p.
             71
             ,
             72.
             
          
           
             Lett.
             p.
             61.
             
          
           
             Lett.
             p.
             73.
             
          
           
             Matt.
             Paris
             
               ad
               A.
               D.
            
             1070.
             
          
           
             
               Pet.
               Bles.
            
             de
             Institut
             .
             Episc
             .
             p.
             451.
             
          
           
             Malmsbur
             .
             hist.
             Novell
             .
             p.
             100.
             b.
             
          
           
             
               Rad.
               de
               Diceto
            
             Imag.
             histor
             .
             p.
             509.
             528.
             
          
           
             Gul.
             Neuburg
             .
             
               l.
               2.
               c.
            
             16.
             
          
           
             Bar.
             ad
             A.
             D.
             1164.
             n.
             3.
             
          
           
             Fitz-Stephen
             vit
             .
             Th.
             Beck
             .
             M
             S.
             
          
           
             Spelm.
             Concil
             .
             To.
             2.
             p.
             8
             ,
             9
             ,
             11.
             
          
           
             P.
             73.
             
          
           
             pag.
             61.
             
          
           
             Baronius
             ad
             Ann.
             1164.
             
          
           
             
               Pet.
               Bles.
            
             de
             Instit.
             Episc.
             p.
             454.
             
          
           
             Lett.
             p.
             60.
             
          
           
             pag.
             62.
             
          
           
             Vol.
             Epistol
             .
             Becket
             in
             Bibl.
             Cotton
             .
             MS.
             l.
             1.
             ep
             .
             65.
             
          
           
             Ep.
             52.
             
          
           
             Gervas
             .
             Chronic
             .
             p.
             1391.
             
          
           
             Fitz-stephen
             Vit.
             Th.
             Becket
             .
             de
             Concilio
             apud
             Clarendon
             .
          
           
             Lett.
             p.
             63.
             
          
           
             pag.
             79.
             
          
           
             pag.
             61.
             
          
           
             Titles
             of
             Honour
             ,
             p.
             2.
             c.
             5.
             n.
             20.
             
          
           
             pag.
             14.
             
          
           
             pag.
             18.
             
          
           
             Lett.
             p.
             73.
             
          
           
             ●
             .
             19
             ▪
             &c.
             
          
           
             Rot.
             Parl.
             11
             
               R.
               2.
               n.
            
             9.
             
          
           
             Lett.
             p.
             21
             ,
             22.
             
          
           
             Const.
             Othob
             .
             
               c.
               Nè
               Clerici
            
             .
          
           
             Spelman
             .
             Conc.
             To.
             2.
             p.
             183.
             p.
             451.
             
          
           
             Lyndwood
             ad
             tit
             .
             de
             Loc.
             &
             cond
             .
             c.
             vendentes
             .
             Si
             quis
             Clericus
             .
          
           
             Decretal
             .
             l.
             3.
             tit
             .
             50.
             c.
             5.
             
          
           
             
               Rot.
               Parlam
            
             .
             11
             R.
             2.
             p.
             1.
             n.
             26.
             
          
           
             Knighton
             p.
             2701.
             
          
           
             A
             Discourse
             of
             the
             Peerage
             and
             Jurisdiction
             of
             the
             Lords
             Spiritual
             ,
             p.
             26.
             
          
           
             Discourse
             of
             the
             Peerage
             ,
             
               &c.
               p.
            
             20.
             
          
           
             Lett.
             p.
             30.
             
          
           
             p.
             79.
             
          
           
             Lett.
             p.
             8●
             .
             pag.
             115.
             
          
           
             pag.
             19.
             
          
           
             p
             20.
             
          
           
             p.
             21.
             
          
           
             pag.
             23.
             
          
           
             Sum.
             l.
             1.
             de
             Constit.
             n
             18.
             pag.
             24.
             
          
           
             Man●al
             .
             c.
             27.
             
          
           
             Covarruv
             .
             ad
             Clem.
             fi
             surios
             .
             p.
             2.
             
             §
             5.
             n.
             6.
             
          
           
             Camden
             .
             Annal.
             A.
             D.
             1586.
             
          
           
             Vid.
             Lyndwood
             in
             Constit
             .
             Othob
             .
             c.
             Nè
             Clerici
             .
             v.
             In
             eisdem
             .
          
        
         
           Notes for div A61556-e18790
           
             Lett.
             p.
             57.
             
          
           
             pag.
             59.
             
          
           
             Lett.
             p.
             110.
             
          
           
             Lett.
             p.
             21.
             
          
           
             Lett.
             p.
             55.
             
          
           
             Claus.
             15
             Ed.
             2.
             n.
             23
             ,
             24.
             &
             dors
             .
             13.
             32.
             
          
           
             Plea
             for
             the
             Lords
             ,
             p.
             193.
             
          
           
             Discourse
             of
             the
             Bishops
             Peerage
             ,
             pag.
             20.
             
          
           
             Rot.
             64.
             21
             
             R.
             2.
             
          
           
             pag.
             79.
             
          
           
             pag.
             115.
             
          
           
             pag.
             115.
             
          
           
             Kot
             .
             55
             ,
             56.
             21
             
             R.
             2.
             
          
           
             R.
             2.
             21.
             
          
           
             pag.
             115.
             
          
           
             Lett.
             p.
             6.
             
          
           
             pag.
             8
             ,
             9.
             
          
           
             pag.
             10.
             
          
           
             pag.
             13.
             
          
           
             pag.
             16.
             
          
           
             pag.
             37.
             
          
           
             pag.
             51.
             
          
           
             Jurisdiction
             of
             the
             House
             of
             Peers
             asserted
             ,
             p.
             91.
             
          
           
             Lett.
             pag.
             11.
             
          
           
             p.
             12.
             
          
           
             pag.
             14.
             
          
           
             pag.
             18.
             
          
           
             Lett.
             p.
             10.
             
          
           
             pag.
             17.
             
          
           
             Knighton
             de
             Event
             .
             p.
             2684.
             
          
           
             Lett.
             pag.
             6.
             
          
           
             Cestrens
             .
             l.
             7.
             c.
             44.
             
             Knighton
             ,
             p.
             2558.
             
          
           
             pag.
             15.
             
          
           
             pag.
             3.
             118.
             
          
           
             pag.
             15
             ▪
             
          
           
             Rights
             of
             the
             Bishops
             ,
             
               p.
               56
               ,
               57
               ,
               &c.
               
            
          
           
             Lett.
             p.
             24.
             
          
           
             Lett.
             p.
             8.
             
          
           
             pag.
             24.
             
          
           
             Lett.
             p.
             23.
             
          
           
             
             Selden's
             Bar.
             pag.
             6.
             
          
           
             Rights
             of
             the
             Bishops
             ,
             pag.
             76.
             
          
           
             Lett.
             p.
             28.
             
          
           
             pag.
             78.
             
          
           
             pag.
             79.
             
          
           
             Lett.
             p.
             79.
             
          
           
             Lett.
             p.
             31.
             
          
           
             pag.
             41.
             to
             pag.
             48.
             
          
           
             pag.
             32.
             
          
           
             pag.
             34.
             
          
           
             pag.
             37.
             
          
           
             pag.
             39.
             
          
           
             pag.
             5.
             51.
             
          
           
             pag.
             6.
             
          
           
             Rot.
             Parl.
             4
             
               Ed.
               3.
               n.
            
             3.
             
          
           
             pag.
             7.
             
          
           
             pag.
             7.
             
          
           
             
               Walsingh
               ▪
            
             hist.
             Angl.
             pag.
             366.
             
          
        
         
           Notes for div A61556-e31000
           
             Lett.
             pag.
             85.
             
          
           
             Antiq.
             Brit.
             pag.
             223.
             
          
           
             pag.
             192.
             
          
           
             Coke
             2.
             
             Inst.
             c.
             29.
             p.
             50.
             
             Sir
             
               J.
               M.
            
             Arg.
             concerning
             the
             Iurisdiction
             of
             the
             Peers
             ,
             in
             Skinners
             Case
             .
          
           
             pag.
             193.
             
          
           
             pag.
             47.
             
          
           
             pag.
             3
             ,
             4
             ,
             &c.
             
          
           
             pag.
             4.
             
          
           
             pag.
             5.
             
          
           
             2
             Instit.
             p.
             48.
             
          
           
             Coke
             2
             Instit
             .
             p.
             49.
             
             
             Selden's
             Titles
             of
             Honour
             ,
             4to
             .
             pag.
             347.
             
          
           
             De
             Morib
             .
             Germ.
             c.
             12.
             
          
           
             H.
             Mei●om
             .
             de
             I●mensulâ
             .
             ●
             .
             4.
             
          
           
             
               Otto
               Frising
            
             .
             de
             gestis
             Fred.
             l.
             1.
             c.
             31.
             
          
           
             Leg.
             Longobard
             .
             
               l.
               3.
               tit
            
             .
             8.
             
             §
             4.
             
             Constit.
             Sicil
             .
             
               l.
               1.
               tit
            
             .
             44.
             
          
           
             Alfred
             .
             vit
             .
             l.
             2.
             p.
             72.
             
          
           
             Aimoin
             .
             l.
             4.
             c.
             1.
             
          
           
             Rhegin
             .
             l.
             2.
             
          
           
             Capit.
             l.
             3.
             c.
             77.
             
          
           
             Sigism
             .
             Orat.
             A.
             D.
             1434.
             
          
           
             Tilius
             de
             rebus
             Gal●icis
             .
          
           
             Fulbert
             .
             ep
             .
             96.
             
          
           
             Claus.
             15
             E.
             ●
             .
             m.
             12.
             
          
           
             Selden
             of
             Baron
             .
             p.
             152.
             
          
           
             Titles
             of
             Hon.
             4
             to
             .
             p.
             347.
             
          
           
             pag.
             6.
             
          
           
             Privil
             .
             of
             Baronage
             ,
             pag.
             143.
             
          
           
             
               Titles
               of
               Honour
            
             ,
             Sec.
             Part.
             ch
             .
             5.
             
             §
             32.
             in
             Marg.
             
          
           
             pag.
             153.
             
          
           
             3.
             
             Instit.
             pag.
             30.
             
          
           
             Godwin
             .
             vit
             .
             Rich.
             Scroop
             Archiep
             .
             Eborac
             .
          
           
             pag.
             7.
             
          
           
             Walsingh
             .
             pag.
             119.
             
          
           
             pag.
             7.
             14.
             
          
           
             
               Antiq.
               Cantuar
            
             .
             in
             Walt.
             Raynolds
             pag.
             215.
             ed.
             
             Han.
             
          
           
             2.
             
             Instit.
             ●
             .
             633
             ,
             &c.
             
          
           
             Camden
             .
             Brit.
             pag.
             123.
             
          
           
             Glossar
             .
             v.
             Pares
             .
          
           
             Walsingh
             .
             
               ad
               A.
               D.
            
             1296.
             
             Mat.
             Westm.
             A.
             1295.
             
          
           
             pag.
             93.
             
          
           
             Titles
             of
             Honour
             ,
             p.
             2.
             ch
             .
             5.
             n.
             17.
             23.
             
          
           
             Ib.
             n.
             22.
             
          
           
             Titles
             of
             Honour
             ,
             p.
             595.
             
          
           
             4
             Instit.
             p.
             4.
             
          
           
             Eadmer
             .
             l.
             pag.
             67.
             
          
           
             Matt.
             Paris
             pag.
             55.
             
          
           
             pag.
             143.
             
          
           
             pag.
             86.
             
          
           
             The
             ancient
             Right
             of
             the
             Commons
             ,
             pag.
             61.
             
          
           
             Fabian
             .
             7.
             par
             .
             R.
             2.
             s●l
             .
             158.
             
          
           
             Abridgment
             of
             Records
             ,
             pa.
             710.
             714.
             
          
           
             pag.
             86.
             
          
           
             Bacon
             H.
             7.
             pag.
             144.
             
          
           
             Hist.
             Angl.
             pag.
             404.
             
          
           
             pag.
             88.
             
          
           
             pag.
             98.
             
          
           
             
               Basilic
               .
               Dor.
            
             l.
             2.
             p.
             159.
             of
             his
             Works
             .
          
           
             pag.
             100.
             
          
           
             pag.
             101.
             
          
           
             pag.
             103.
             
          
           
             pag.
             86.
             
          
           
             pag.
             89.
             
          
           
             pag.
             89.
             
          
           
             pag.
             90.
             
          
           
             pag.
             91.
             
          
           
             pag.
             7
             ,
             &c.
             
          
           
             Concil
             .
             Brit.
             p.
             182.
             189.
             318.
             327.
             336.
             340.
             344.
             428.
             534.
             
          
           
             Claus.
             24
             Ed.
             1.
             
             M.
             7.
             dorso
             .
          
           
             Walsingh
             .
             pag.
             18.
             
             Thorn.
             
               ad
               A.
            
             1296.
             
             Knighton
             ,
             p.
             2491.
             
             Matt.
             West
             .
             pag.
             428.
             
          
           
             pag.
             92.
             
          
           
             pag.
             68.
             
          
           
             pag.
             49.
             
          
           
             pag.
             96.