Discourse of the peerage & jurisdiction of the Lords spirituall in Parliament proving from the fundamental laws of the land, the testimony of the most renowned authors, and the practice of all ages : that have no right in claiming any jurisdiction in capital matters.
         Barlow, Thomas, 1607-1691.
      
       
         
           1679
        
      
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             Discourse of the peerage & jurisdiction of the Lords spirituall in Parliament proving from the fundamental laws of the land, the testimony of the most renowned authors, and the practice of all ages : that have no right in claiming any jurisdiction in capital matters.
             Barlow, Thomas, 1607-1691.
          
           [6], 28 p.
           
             [s.n.],
             London :
             1679.
          
           
             Attributed to Thomas Barlow. Cf. BLC.
             Reproduction of original in Huntington Library.
          
        
      
    
     
       
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         eng
      
       
         
           England and Wales. -- Parliament. -- House of Lords -- Jurisdiction.
           Church of England -- Bishops -- Temporal power.
           Church and state -- England -- Early works to 1800.
        
      
    
     
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           A
           DISCOURSE
           OF
           THE
           Peerage
           &
           Jurisdiction
           OF
           THE
           LORDS
           SPIRITUAL
           IN
           PARLIAMENT
           .
        
         
           Proving
           from
           the
           Fundamental
           Laws
           of
           the
           Land
           ,
           the
           Testimony
           of
           the
           most
           Renowned
           Authors
           ,
           and
           the
           Practice
           of
           all
           Ages
           .
           THAT
           They
           have
           no
           right
           in
           claiming
           any
           Jurisdiction
           IN
           Capital
           Matters
           .
        
         
           Give
           unto
           Caesar
           the
           things
           which
           are
           Caesars
           ,
           and
           unto
           God
           the
           things
           which
           are
           Gods
           ,
           
             Matth.
             22.
             ver
             .
             21.
             
          
        
         
           LONDON
           ,
           Printed
           in
           the
           Year
           MDCLXXIX
           .
        
      
       
         
         
         
           TO
           THE
           READER
           .
        
         
           IN
           this
           
             licentious
             Age
          
           ,
           and
           especially
           at
           this
           Juncture
           of
           Time
           ,
           when
           every
           impertinent
           Scribler
           ,
           and
           seditious
           Pamphleter
           ,
           hath
           free
           access
           to
           the
           Press
           ,
           it
           may
           be
           thought
           neither
           Prudent
           nor
           Honourable
           ,
           for
           a
           Man
           of
           Sober
           and
           Serious
           Thoughts
           ,
           to
           come
           into
           the
           Field
           and
           list
           himself
           among
           the
           
             Unlearned
             Multitude
          
           of
           Writers
           that
           are
           in
           these
           days
           .
           That
           Popular
           Applause
           which
           is
           generally
           expected
           from
           this
           Method
           ,
           is
           a
           thing
           which
           I
           (
           more
           ambitious
           of
           being
           publickly
           useful
           then
           publickly
           known
           )
           never
           designed
           to
           purchase
           at
           that
           rate
           ;
           and
           therefore
           is
           not
           the
           Motive
           that
           induced
           me
           to
           this
           Undertaking
           .
           I
           would
           have
           been
           glad
           ,
           if
           any
           other
           of
           greater
           Learning
           and
           Parts
           ,
           had
           done
           the
           World
           so
           much
           Favour
           ,
           as
           to
           have
           made
           a
           
             Perfect
             Disquisition
          
           into
           this
           Matter
           ,
           and
           to
           have
           discussed
           the
           Point
           according
           to
           the
           Merits
           of
           the
           Cause
           ;
           for
           then
           I
           doubt
           not
           but
           the
           Reasonableness
           of
           the
           House
           of
           
             Commons
             Dissention
          
           from
           the
           House
           of
           Lords
           ,
           would
           have
           appeared
           to
           all
           Impartial
           and
           
             Dis-interested
             Minds
          
           .
           As
           for
           my
           own
           part
           ,
           I
           confess
           that
           partly
           through
           the
           Consciousness
           of
           my
           own
           Inability
           ,
           and
           partly
           through
           my
           Unwillingness
           to
           be
           concerned
           in
           a
           Thing
           of
           this
           Weight
           ,
           I
           should
           never
           have
           engaged
           my self
           in
           it
           ,
           if
           I
           judged
           it
           not
           necessary
           to
           vindicate
           those
           Persons
           that
           are
           abused
           with
           several
           undecent
           and
           
             unjust
             Calumnies
          
           ,
           in
           a
           late
           Book
           intituled
           .
           
             The
             Honours
             of
             the
             Lords
             Spiritual
             asserted
             ,
          
           &c.
           together
           with
           its
           Preface
           .
        
         
         
           This
           ,
           together
           with
           a
           Desire
           of
           
             Informing
             the
             World
          
           in
           a
           Thing
           which
           is
           much
           talked
           of
           ,
           but
           little
           understood
           ,
           prevailed
           with
           me
           to
           omit
           nothing
           which
           might
           be
           Serviceable
           to
           my
           Country
           ,
           and
           Conducive
           to
           the
           Unity
           and
           Peace
           of
           this
           
             divided
             Kingdom
          
           ;
           especially
           when
           it
           is
           to
           be
           feared
           ,
           there
           are
           too
           many
           such
           as
           the
           Author
           of
           the
           above-mentioned
           Book
           ,
           who
           under
           the
           
             specious
             pretence
          
           of
           Loyalty
           and
           Affection
           to
           the
           Church
           ,
           do
           what
           in
           them
           lies
           to
           make
           the
           
             Gap
             wider
          
           ,
           and
           Distemper
           more
           Incurable
           .
           That
           I
           may
           not
           seem
           to
           
             injure
             him
          
           ,
           you
           may
           consider
           the
           Design
           of
           his
           Discourse
           ;
           The
           Persons
           against
           whom
           he
           directs
           his
           Preface
           ,
           are
           those
           who
           withstood
           the
           
             Pretensions
             of
             the
             Bishops
             to
             Jurisdiction
             in
             Matters
             of
             Blood
          
           :
           those
           are
           no
           other
           than
           that
           
             Honourable
             Assembly
          
           ,
           those
           
             Champions
             of
             the
             Protestant
             Religion
             ,
             and
             the
             Liberties
             of
             the
             People
             of
          
           England
           
             ,
             the
             House
             of
             Commons
             in
             the
             last
             Parliament
             .
          
           To
           Revile
           the
           Representatives
           of
           the
           Commons
           of
           England
           ,
           and
           in
           them
           Virtually
           the
           
             Persons
             themselves
          
           that
           are
           Represented
           ,
           with
           such
           Scandalous
           Aspersions
           ,
           and
           Opprobrious
           Reflections
           ;
           
             Being
             Favourers
             of
             the
             Rebellious
             Commotions
             in
          
           Scotland
           
             ,
             Ill-natured
             ,
             Censorious
             ,
             Covetous
             ,
             Self-seekers
          
           ;
           and
           which
           is
           worse
           than
           all
           this
           ,
           
             as
             being
             of
             the
             same
             Principles
             with
             those
             that
             threw
             down
             Eplscopacy
             ,
             took
             up
             Arms
             against
             their
             Native
             Soveraign
             ,
             Plundred
             and
             Devested
             His
             Majesties
             most
             faithful
             Subjects
             of
             their
             Goods
             ,
             Estates
             ,
             and
             Lands
             ,
             and
             embrewed
             their
             Violent
             ,
             Wicked
             ,
             and
             Rebellious
             Hands
             in
             his
             most
             Sacred
             Blood
             ,
          
           &c.
           
           I
           say
           ,
           such
           Scurrilcus
           and
           Satyrical
           Language
           thrown
           upon
           the
           very
           
             Face
             of
             Authority
          
           ,
           doth
           ill-become
           the
           
             Religion
             of
             a
             Christian
          
           ,
           and
           the
           
             Honesty
             of
             a
             true
             English-man
          
           .
           It
           is
           a
           known
           Maxime
           among
           Men
           of
           bonest
           and
           sober
           Principles
           ,
           and
           Lovers
           of
           the
           
             English
             Nation
             ,
             That
             Nothing
             can
             make
             us
             Happy
             or
             Miserable
             ,
             but
             an
             Union
             or
             Division
             amongst
             our Selves
             :
             If
             there
             be
             a
             good
             Understanding
             betwixt
             Prince
             and
             People
             ,
             nothing
             can
             make
          
           England
           
             miserable
             ;
             but
             if
             there
             be
             Jealousies
             and
             Divisions
             ,
             nothing
             can
             make
             it
             Happy
             .
          
           Therefore
           ,
           whoever
           they
           are
           ,
           that
           by
           
             reciprocal
             Accusations
          
           ,
           and
           raising
           of
           
             mutual
             Jealousies
          
           of
           the
           
           One's
           good
           Will
           and
           Affection
           ,
           and
           the
           Others
           Loyalty
           ,
           especially
           in
           things
           that
           are
           false
           in
           themselves
           ;
           deserve
           to
           be
           lookt
           upon
           as
           inveterate
           Enemies
           to
           the
           Peace
           and
           Happiness
           of
           this
           Kingdom
           :
           And
           yet
           you
           may
           observe
           ,
           that
           whosoever
           can
           give
           the
           Court
           ,
           the
           most
           
             Satyrical
             Language
          
           ,
           expects
           to
           be
           reckoned
           the
           most
           
             Zealous
             Patriot
          
           ,
           &c.
           
           And
           those
           ,
           forsooth
           ,
           who
           can
           with
           the
           greatest
           Scurrility
           ,
           and
           the
           most
           reproachful
           Epithets
           ,
           asperse
           the
           
             House
             of
             Commons
          
           ,
           would
           be
           thought
           the
           
             most
             Loyal
             Subjects
          
           :
           But
           if
           Integrity
           and
           Religion
           it self
           be
           not
           quite
           banished
           from
           the
           Conversation
           of
           Mortals
           ,
           both
           these
           sorts
           of
           People
           will
           fail
           of
           their
           
           Expectation
           .
           I
           have
           read
           of
           two
           great
           Favourites
           of
           Alexander
           the
           Great
           ,
           Hephestion
           and
           Craterus
           ;
           one
           of
           them
           (
           saith
           my
           Author
           .
           )
           
             Alexandrum
             dilexit
          
           ,
           but
           the
           other
           
             dilexit
             Regem
          
           :
           It
           may
           be
           a
           Question
           which
           of
           these
           was
           the
           better
           Subject
           ,
           I
           shall
           not
           undertake
           to
           determine
           it
           ,
           but
           shall
           leave
           it
           with
           an
           Observation
           of
           that
           Noble
           and
           truly
           Loyal
           Courtier
           Sir
           
             Thomas
             Coventry
          
           ,
           Lord
           Keeper
           of
           the
           
             Great
             Seal
          
           to
           His
           late
           Majesty
           ,
           in
           a
           Case
           of
           the
           like
           nature
           :
           Some
           (
           said
           he
           to
           the
           House
           of
           Lords
           )
           
             would
             have
             the
             Kings
             Prerogative
             rather
             Tall
             than
             Great
             ,
             others
          
           e
           contra
           
             ;
             some
             do
             love
             the
             King
             ,
             rather
             than
          
           Charles
           Stuart
           ;
           others
           
             e
             contra
          
           :
           (
           but
           what
           his
           
           Sentiments
           were
           of
           
             those
             Matters
          
           ,
           you
           must
           gather
           from
           what
           he
           said
           a
           little
           after
           )
           
             None
             can
             be
             truly
             Loyal
             ,
             but
             he
             that
             is
             a
             good
             Patriot
             ;
             and
             none
             can
             be
             a
             good
             Patriot
             ,
             but
             he
             that
             is
             truly
             Loyal
             .
          
           The
           Interest
           of
           the
           King
           and
           People
           are
           so
           interwoven
           and
           linked
           together
           ,
           that
           none
           can
           be
           truly
           said
           to
           be
           a
           Lover
           of
           One
           ,
           but
           he
           must
           be
           a
           Lover
           of
           Both.
           
        
         
           But
           to
           return
           to
           our
           Author
           ,
           I
           Protest
           I
           have
           perused
           the
           
             whole
             Volume
          
           with
           the
           greatest
           Impartiality
           that
           can
           be
           ;
           and
           except
           his
           Sawciness
           and
           Ill-nature
           against
           the
           
             House
             of
             Commons
          
           ,
           and
           
             Gentlemen
             of
             the
             Long
             Robe
          
           ,
           I
           find
           nothing
           in
           the
           whole
           Book
           that
           deserves
           any
           Animadversion
           :
           It
           is
           evident
           from
           his
           
             Method
             of
             Arguing
          
           ,
           and
           the
           Medium's
           he
           maketh
           use
           of
           to
           prove
           his
           Assertion
           ,
           that
           he
           is
           altogether
           a
           Stranger
           to
           the
           very
           State
           of
           the
           Controversie
           ;
           and
           that
           notwithstanding
           his
           Confidence
           in
           Asserting
           ,
           his
           Book
           discovers
           more
           Ignorance
           ,
           than
           his
           Preface
           doth
           Petulancy
           :
           And
           it
           is
           no
           wonder
           ,
           for
           Ignorance
           and
           Impudence
           are
           generally
           Concomitant
           :
           And
           this
           is
           all
           that
           I
           think
           fit
           to
           say
           in
           Answer
           to
           him
           .
           The
           Reason
           why
           I
           subjoyn
           the
           following
           Discourse
           ,
           is
           ,
           because
           although
           I
           cannot
           perswade
           my self
           that
           he
           deserves
           a
           Refutation
           ,
           yet
           that
           Truth
           which
           he
           labours
           to
           darken
           with
           an
           
             Impertinent
             Harangue
          
           ,
           deserves
           to
           be
           cleared
           and
           demonstrated
           :
           If
           any
           shall
           go
           about
           to
           Attacque
           this
           Discourse
           with
           Drollery
           ,
           or
           
             Satyrical
             Invectives
          
           ,
           I
           decleare
           before-hand
           ,
           I
           do
           not
           reckon
           my self
           obliged
           to
           Reply
           ;
           I
           do
           not
           think
           it
           a
           Reputation
           for
           
             Men
             of
             Sense
          
           to
           
             Combate
             at
             these
             Weapons
          
           ;
           But
           if
           Occasion
           be
           ,
           I
           shall
           send
           his
           Answer
           to
           the
           Dung-Carts
           ,
           or
           Oyster-Boats
           ,
           from
           whence
           I
           doubt
           not
           ,
           but
           he
           shall
           receive
           due
           Correction
           for
           his
           Folly
           and
           Impudence
           ;
           but
           if
           he
           Assault
           it
           with
           Reason
           and
           Sobriety
           ,
           he
           shall
           find
           a
           Defence
           agreeable
           .
           I
           must
           confess
           I
           am
           heartily
           sorry
           at
           the
           Occasion
           of
           this
           Dispute
           ,
           it
           hath
           unhappily
           fallen
           out
           at
           that
           Moment
           of
           Time
           ,
           when
           above
           
           all
           things
           it
           was
           necessary
           for
           the
           Church
           and
           State
           to
           Confederate
           ,
           and
           joyn
           Hand
           in
           Hand
           ,
           to
           the
           Ruine
           and
           Confusion
           of
           the
           
             Common
             Enemy
          
           ,
           and
           the
           Extirpation
           of
           that
           
             Poysonous
             Plant
          
           ,
           whose
           growth
           will
           quickly
           become
           fatal
           to
           both
           :
           but
           however
           ,
           as
           it
           is
           hard
           on
           the
           one
           side
           ,
           that
           any
           should
           be
           compelled
           to
           lay
           down
           that
           which
           they
           suppose
           is
           their
           Right
           ;
           so
           on
           the
           other
           side
           ,
           it
           is
           a
           thing
           unreasonable
           and
           of
           dangerous
           Consequence
           ,
           to
           admit
           of
           any
           Innovation
           ,
           though
           it
           were
           in
           a
           Matter
           of
           far
           less
           Moment
           than
           this
           is
           :
           so
           that
           there
           is
           great
           Reason
           for
           both
           sides
           to
           insist
           upon
           it
           .
           If
           this
           Enterprise
           of
           mine
           be
           so
           successful
           ,
           as
           to
           convince
           those
           that
           are
           in
           the
           mistake
           ,
           then
           I
           compass
           my
           End
           ,
           and
           am
           Satisfied
           ;
           which
           that
           it
           may
           do
           ,
           I
           refer
           you
           to
           the
           Consideration
           of
           the
           following
           Discourse
           .
        
         
           Farewell
           .
        
      
    
     
       
         
         
           A
           DISCOURSE
           OF
           THE
           Peerage
           and
           Jurisdiction
           of
           the
           Lords
           Spiritual
           .
        
         
           AS
           the
           granting
           of
           large
           Immunities
           ,
           Priviledges
           ,
           and
           Possessions
           to
           the
           Church
           ,
           doth
           well
           become
           the
           Piety
           and
           Religion
           of
           a
           Christian
           Prince
           ,
           or
           any
           other
           Supream
           Power
           ;
           And
           as
           the
           robbing
           of
           the
           Church
           of
           any
           of
           its
           Just
           Rights
           ,
           lawfully
           granted
           ,
           is
           Sacriledge
           of
           the
           Highest
           Nature
           :
           So
           it
           is
           the
           Duty
           of
           all
           the
           Sons
           of
           the
           Church
           ,
           upon
           all
           Occasions
           ,
           thankfully
           to
           acknowledge
           the
           Bounty
           and
           Munificence
           of
           their
           Pious
           Benefactors
           ,
           and
           to
           forbear
           all
           unjust
           Claims
           and
           ambitious
           Pretensions
           to
           things
           which
           were
           never
           granted
           :
           A
           failure
           in
           this
           is
           almost
           as
           great
           an
           Immorality
           (
           considering
           the
           Quality
           and
           Profession
           of
           the
           Offenders
           )
           as
           the
           former
           .
           And
           it
           is
           doubtless
           not
           onely
           lawful
           ,
           but
           commendable
           ,
           for
           the
           persons
           whose
           Right
           and
           Property
           is
           invaded
           in
           either
           case
           ,
           to
           defend
           themselves
           with
           all
           their
           power
           against
           the
           Invaders
           ;
           otherwise
           we
           must
           condemn
           our
           Ancestors
           ,
           who
           defended
           the
           Kings
           Prerogative
           ,
           and
           the
           Subjects
           Right
           ,
           when
           it
           was
           encroached
           upon
           by
           Procurers
           of
           Citations
           and
           Process
           of
           Provisions
           and
           Reservations
           of
           Benefices
           ,
           Dispensations
           for
           Pluralities
           ,
           &c.
           from
           the
           
             Court
             of
             Rome
          
           ;
           and
           withstood
           those
           unreasonable
           Demands
           of
           Absolute
           Exemption
           from
           Secular
           Power
           made
           by
           the
           Clergy
           ;
           and
           several
           other
           things
           about
           Marriages
           ,
           Legitimation
           ,
           &c.
           which
           they
           claimed
           by
           vertue
           of
           several
           Decretals
           of
           their
           Popes
           and
           Councils
           :
           I
           confess
           if
           there
           were
           either
           Statute-Law
           or
           Common-Law
           for
           the
           Bishops
           Voting
           in
           Capital
           Cases
           ,
           I
           would
           be
           very
           far
           from
           arguing
           against
           it
           ,
           for
           that
           were
           to
           call
           in
           question
           their
           undoubted
           Right
           .
           But
           if
           there
           be
           any
           reason
           to
           make
           me
           believe
           they
           have
           no
           Right
           at
           all
           in
           that
           case
           ,
           I
           hope
           it
           will
           be
           excusable
           in
           me
           to
           make
           an
           Impartial
           Enquiry
           into
           the
           Thing
           .
        
         
           If
           the
           
             Spiritual
             Lords
          
           have
           any
           right
           of
           Judicature
           in
           Capital
           Cases
           ,
           it
           must
           be
           either
           
             Jure
             Divino
          
           ,
           or
           
             Jure
             Humano
          
           ;
           if
           the
           former
           ,
           it
           must
           be
           proved
           out
           of
           the
           
             New
             Testament
          
           ,
           for
           there
           is
           no
           consequence
           from
           the
           Authority
           and
           Jurisdiction
           of
           the
           
             High
             Priest
          
           under
           the
           Law
           to
           the
           Authority
           of
           Bishops
           under
           the
           Gospel
           ,
           and
           that
           is
           the
           most
           generally
           received
           Opinion
           among
           the
           Protestant
           Divines
           ,
           those
           at
           least
           who
           have
           lifted
           themselves
           under
           the
           Banner
           of
           the
           
             Protèstant
             Religion
          
           ,
           in
           its
           defence
           against
           the
           exorbitant
           power
           and
           usurpation
           of
           the
           
             Bishop
             of
             Rome
          
           ,
           who
           makes
           use
           of
           the
           same
           Argument
           for
           the
           Authority
           of
           his
           Holiness
           
             in
             Cathedra
          
           :
           Because
           whatsoever
           is
           alledged
           out
           of
           the
           
             Old
             Testament
          
           ,
           is
           either
           part
           of
           the
           Mosaical
           method
           of
           administring
           Justice
           ,
           proper
           onely
           to
           the
           Judaical
           Oeconomy
           ;
           or
           else
           belonging
           to
           the
           Temporal
           Constitution
           of
           the
           Kingdom
           of
           Israel
           and
           Judah
           ,
           which
           are
           no
           more
           binding
           to
           us
           ,
           than
           those
           Laws
           of
           theirs
           whereby
           each
           man
           recovered
           his
           right
           and
           property
           :
           or
           than
           the
           Laws
           of
           the
           Syrians
           ,
           or
           any
           other
           Nation
           were
           binding
           to
           the
           Jews
           .
        
         
           Those
           Instances
           that
           are
           given
           of
           so
           great
           trust
           reposed
           in
           ,
           and
           Honours
           conferred
           upon
           ,
           Spiritual
           persons
           by
           
             Christian
             Princes
          
           ,
           after
           the
           first
           three
           Centuries
           ,
           can
           prove
           no
           more
           ,
           but
           that
           so
           was
           the
           Constitution
           of
           the
           Government
           of
           those
           Kingdoms
           ;
           and
           it
           doth
           not
           follow
           that
           therefore
           it
           must
           be
           so
           in
           all
           other
           Kingdoms
           :
           for
           which
           cause
           it
           is
           evident
           ,
           that
           the
           first
           Four
           Chapters
           of
           the
           Gentlemans
           Book
           ,
           are
           altogether
           impertinent
           .
        
         
           If
           the
           
             Spiritual
             Lords
          
           ground
           not
           their
           Claim
           upon
           
             Divine
             Right
          
           ,
           then
           if
           they
           have
           any
           at
           all
           ,
           it
           must
           be
           by
           
             Humane
             Institution
          
           :
           My
           business
           is
           not
           to
           examine
           whether
           such
           an
           Institution
           were
           good
           and
           reasonable
           ,
           or
           not
           ?
           That
           I
           leave
           to
           the
           
           Consideration
           of
           the
           Parliament
           ,
           in
           whose
           Determination
           every
           true
           Subject
           ought
           heartily
           to
           acquiess
           :
           but
           all
           that
           I
           have
           to
           do
           ,
           is
           to
           examine
           whether
           or
           no
           there
           be
           such
           an
           Institution
           ,
           and
           that
           is
           the
           point
           Which
           I
           intend
           to
           insist
           upon
           .
        
         
           No
           Humane
           institution
           can
           do
           their
           Lordships
           any
           kindness
           in
           this
           ,
           except
           the
           Laws
           of
           England
           ,
           and
           those
           are
           of
           two
           sorts
           ,
           either
           Statute-Law
           ,
           or
           Common-Law
           :
           The
           former
           is
           not
           pretended
           to
           ;
           the
           onely
           question
           is
           about
           the
           latter
           :
           for
           that
           same
           Law
           which
           gives
           them
           power
           to
           sit
           in
           the
           House
           of
           Lords
           in
           any
           case
           ,
           gives
           them
           power
           also
           to
           sit
           in
           Capital
           Cases
           ,
           if
           they
           have
           any
           such
           power
           ;
           and
           that
           they
           have
           no
           such
           power
           by
           the
           Common
           Law
           of
           England
           ,
           is
           the
           Probindum
           .
        
         
           Those
           in
           whose
           power
           Originally
           it
           was
           at
           the
           first
           reduction
           of
           this
           Nation
           under
           Rules
           of
           Government
           to
           Invest
           Religious
           Persons
           with
           
             Honours
             ,
             Jurisdictions
          
           and
           Priviledges
           ;
           might
           by
           the
           same
           power
           have
           made
           them
           greater
           or
           lesser
           than
           they
           did
           ;
           and
           consequently
           might
           at
           the
           first
           Institution
           have
           limited
           the
           same
           Jurisdiction
           ,
           &c.
           to
           such
           and
           such
           matters
           as
           they
           themselves
           thought
           fit
           to
           intrust
           them
           with
           ,
           and
           not
           to
           others
           .
           If
           those
           persons
           that
           first
           conferred
           upon
           some
           of
           our
           Clergy-men
           that
           Jurisdiction
           which
           they
           now
           enjoy
           of
           Voting
           in
           the
           
             High
             Court
             of
             Pariament
          
           ,
           had
           given
           it
           indefinitely
           in
           all
           Matters
           ,
           and
           over
           all
           Causes
           ,
           and
           they
           had
           exercised
           their
           Jurisdiction
           accordingly
           from
           time
           to
           time
           ,
           then
           their
           right
           had
           been
           indubitable
           ;
           but
           if
           this
           limitation
           had
           been
           made
           ,
           that
           their
           Jurisdiction
           shall
           extend
           to
           all
           Causes
           ,
           except
           such
           as
           are
           Capital
           ,
           and
           they
           never
           exercised
           any
           Jurisdiction
           in
           such
           ;
           then
           there
           cannot
           be
           any
           colour
           or
           ground
           of
           Claim
           .
           Now
           the
           
             Common
             Law
          
           is
           a
           general
           Custom
           or
           Usage
           in
           this
           Realm
           in
           all
           Ages
           practised
           and
           allowed
           beyond
           the
           memory
           of
           man
           ;
           and
           because
           there
           is
           no
           Record
           ,
           nor
           any
           other
           undeniable
           Evidence
           of
           its
           commencement
           ,
           it
           is
           therefore
           presumed
           to
           have
           been
           a
           Law
           ever
           since
           there
           hath
           been
           any
           Government
           in
           this
           Nation
           :
           Seeing
           therefore
           that
           the
           Jurisdiction
           of
           the
           Bishops
           in
           Parliament
           ,
           is
           supposed
           to
           be
           as
           ancient
           as
           the
           Government
           it self
           ;
           If
           it
           can
           be
           proved
           that
           by
           the
           Common
           Law
           (
           
             i.
             e.
          
           )
           the
           continued
           practice
           of
           all
           Ages
           ,
           the
           Transactions
           whereof
           are
           Recorded
           ,
           the
           Clergy
           never
           did
           exercise
           Jurisdiction
           in
           Cases
           of
           Blood
           :
           then
           inasmuch
           as
           no
           Record
           maketh
           appear
           what
           time
           this
           Custom
           did
           begin
           ,
           we
           must
           of
           necessity
           presume
           that
           their
           not
           Voting
           in
           Capital
           Cases
           ,
           is
           as
           ancient
           as
           their
           Voting
           in
           any
           Case
           ;
           and
           consequently
           that
           those
           who
           first
           conferred
           upon
           them
           their
           Jurisdiction
           in
           Parliament
           ,
           gave
           it
           with
           this
           limitation
           ,
           that
           it
           should
           not
           extend
           to
           Capital
           Cases
           .
        
         
           This
           being
           premised
           ,
           I
           shall
           proceed
           to
           prove
           that
           by
           the
           Common
           Law
           of
           England
           ,
           (
           if
           not
           by
           an
           
             Act
             of
             Parliament
          
           )
           the
           
             Lords
             Spiritual
          
           have
           no
           right
           to
           Vote
           in
           Capital
           Cases
           :
           That
           will
           be
           done
           if
           I
           demonstrate
           these
           two
           things
           ;
           
             
               1.
               
               That
               their
               Voting
               in
               Capital
               Cases
               is
               contrary
               to
               the
               intent
               and
               meaning
               of
               
                 Magna
                 Charta
              
               .
            
             
               2.
               
               That
               it
               is
               contrary
               to
               the
               known
               practice
               of
               all
               Ages
               until
               this
               day
               .
               The
               first
               I
               shall
               prove
               from
               the
               Reason
               and
               Nature
               of
               the
               thing
               ,
               and
               from
               Precedents
               .
            
          
        
         
           By
           the
           29th
           of
           
             Magna
             Charta
          
           it
           is
           ordained
           ,
           that
           ,
           
             Nullus
             liber
             homo
             capiatur
             vel
             imprisonetur
             ,
             &c.
             aut
             ut
             .
             lagetur
             ,
             aut
             exuletur
             ,
             aut
             aliquo
             modo
             destruatur
             ,
             nec
             super
             cum
             ibimus
             ,
             nec
             super
             eum
             mittemus
             nisiper
             legale
             judicium
             parium
             suorum
             ,
             &c.
             
          
           And
           accordingly
           the
           Precept
           of
           the
           Lord
           High
           Steward
           to
           a
           Serjeant
           at
           Arms
           ,
           is
           to
           summon
           ,
           
             Tot
             &
             tales
             Dominos
             Magnates
             ,
             &
             proceres
             hujus
             Regni
             Angliae
             praedicti
             R.
             Comitis
             pares
             ,
             &c.
             Co.
          
           3.
           
           Inst.
           28.
           
           Whence
           it
           is
           evident
           that
           every
           Judge
           must
           be
           a
           Peer
           (
           par
           )
           to
           the
           Prisoner
           ;
           and
           I
           do
           think
           it
           a
           very
           easie
           matter
           to
           prove
           that
           no
           
             Spiritual
             Lord
          
           as
           such
           ,
           is
           Invested
           with
           that
           Parity
           which
           is
           requisite
           within
           the
           intent
           of
           
             Magha
             Charta
          
           ,
           to
           constitute
           him
           a
           sufficient
           Judge
           upon
           the
           life
           and
           death
           of
           a
           Temporal
           Lord
           :
           Before
           I
           enter
           upon
           the
           proof
           of
           this
           ,
           it
           will
           be
           necessary
           to
           say
           something
           of
           the
           Nature
           of
           their
           Peerage
           .
        
         
           Their
           Peerage
           doth
           accrue
           either
           by
           the
           Investitute
           of
           their
           Bishopricks
           ,
           
             ipso
             facto
          
           ,
           or
           by
           their
           Summons
           to
           Parliament
           ;
           it
           is
           agreed
           by
           all
           Authors
           of
           greatest
           Authority
           ,
           that
           they
           are
           Parliamentary
           Lords
           immediately
           by
           their
           Investiture
           and
           Induction
           into
           the
           Temporalities
           ,
           which
           are
           held
           of
           the
           King
           
             per
             Baroniam
          
           ,
           and
           are
           therefore
           
           Lords
           of
           Parliament
           only
           
             ratione
             tenurae
          
           ;
           so
           is
           
             Coke
             ,
             Stamford
             ,
             Selden
          
           ,
           and
           others
           :
           But
           they
           are
           not
           intituled
           to
           any
           more
           Honour
           or
           Jurisdiction
           by
           their
           Writs
           ,
           for
           these
           ,
           two
           Reasons
           :
           1.
           
           Because
           a
           Summons
           to
           Parliament
           cannot
           of
           its
           self
           create
           a
           Baron
           ,
           for
           then
           all
           the
           Kings
           Judges
           ,
           Serieants
           and
           Councel
           had
           been
           ennobled
           in
           divers
           Parliaments
           in
           the
           time
           of
           Edw.
           1.
           in
           all
           of
           Edw.
           2.
           and
           most
           of
           Edw.
           3.
           for
           they
           had
           then
           the
           self-same
           Writ
           that
           Earls
           and
           Barons
           had
           ,
           yea
           and
           the
           Kings
           two
           Escheators
           had
           the
           same
           Writ
           ,
           Annu
           12.
           and
           14
           of
           Edw.
           2.
           
           The
           first
           Summons
           extant
           upon
           Record
           is
           that
           of
           49
           H.
           3.
           which
           is
           one
           joynt
           Summons
           to
           all
           the
           Lords
           and
           Judges
           ,
           and
           is
           the
           same
           in
           substance
           with
           the
           Writ
           of
           Summons
           at
           this
           day
           ,
           which
           is
           given
           to
           the
           Lords
           ,
           and
           differs
           onely
           in
           matter
           of
           Form.
           Anno
           23.
           
           Edw.
           1.
           
           Jan.
           23.
           
           The
           Writs
           are
           several
           ,
           the
           only
           difference
           is
           in
           the
           Style
           ,
           and
           the
           words
           following
           ,
           (
           viz.
           )
           
             Super
             ar
             duis
             negotiis
             quibusdam
             nos
             &
             Regnum
             nostrum
             &
             vos
             caterosque
             de
             eodem
             Regno
             tangentibus
             ,
             &c.
             
          
           To
           the
           Bishops
           and
           other
           Clergy
           .
           To
           the
           Temporal
           Lords
           after
           the
           style
           the
           Writ
           runs
           .
           
             Nos
             ,
             &c.
             &
             vos
             caeterosq●●
             〈◊〉
             &
             magnates
             ,
             &c.
             taugentibus
             ,
             &c.
             
          
           To
           the
           Judges
           it
           was
           ,
           
             Vos
             caterosque
             de
             consilio
             nostros
             ,
             &c.
             tangentibus
             .
          
           But
           in
           all
           these
           ,
           the
           Mandamus
           ,
           which
           is
           the
           most
           essential
           part
           of
           the
           Writ
           ,
           is
           the
           very
           same
           ;
           
             viz.
             Vobis
             Mandamis
             ut
             ,
             &c.
             personaliter
             inter
             sitis
             super
             dictis
             negotiis
             cum
             Rege
             ,
             &
             caeteris
             magnatibus
             &
             proceribus
             ,
             &c.
             trataturi
             vestrumque
             consilium
             impensuri
             ,
          
           &c.
           
           The
           same
           is
           the
           27
           of
           Ed.
           1.
           and
           almost
           in
           all
           the
           time
           of
           Edw.
           2.
           and
           from
           the
           20th
           to
           the
           49th
           year
           of
           Edw.
           3.
           
           That
           which
           I
           infer
           from
           this
           is
           ,
           that
           either
           a
           Writ
           of
           its
           self
           without
           the
           performance
           of
           other
           Ceremonies
           ,
           as
           
             Investiture
             of
             Robes
          
           ,
           &c.
           cannot
           make
           a
           man
           Noble
           ;
           or
           else
           the
           Judges
           in
           those
           Four
           Kings
           Reigns
           having
           the
           same
           Mandamus
           in
           their
           Writs
           which
           the
           Earls
           and
           Barons
           had
           verbatim
           ,
           and
           the
           same
           in
           substance
           with
           the
           Mandamus
           to
           Peers
           at
           this
           day
           ,
           were
           all
           ennobled
           .
        
         
           And
           further
           ,
           There
           doth
           frequently
           occur
           in
           ancient
           Records
           and
           Writings
           a
           difference
           between
           
             Barones
             majores
          
           ,
           and
           
             Barones
             minores
          
           ;
           the
           first
           are
           called
           sometimes
           Barons
           ,
           and
           the
           other
           
             Barons
             Peers
          
           .
           That
           they
           both
           received
           their
           Writs
           and
           sate
           in
           Parliament
           ,
           is
           undeniable
           :
           The
           Nobility
           of
           the
           first
           was
           without
           doubt
           inheritable
           ,
           but
           so
           was
           not
           the
           last
           ,
           but
           were
           called
           
             Barons
             Peers
          
           ,
           because
           of
           the
           parity
           of
           their
           Reyenue
           .
           Thus
           saith
           the
           
             Modus
             tenendi
             Parliamentum
          
           ,
           (
           always
           allowed
           for
           Authentick
           before
           Mr.
           Prynne
           .
           )
           
             summoneri
             &
             venire
             debent
             omnes
             &
             singuli
          
           Comites
           Barones
           
             &
             corum
          
           pares
           
             scilicet
             illi
             qui
             habent
             terras
             ad
             valentiam
             ●●…ius
          
           Comitatus
           integri
           ,
           viz.
           
             Vig●…ti
             feoda
             ,
             &c.
             vel
             ad
             valentiam
             unius
          
           Baroniae
           ,
           &c.
           
             &
             nulli
          
           minores
           
             Laici
             summoneri
             debent
             ,
             sed
             si
             eorum
             praesentia
             necessaria
             velutilis
             fuerit
             Rex
             solebit
             talibus
             brevia
             mitte●…
             .
          
           So
           that
           these
           
             Baronum
             pares
          
           ,
           or
           
             Barones
             minores
          
           ,
           because
           of
           the
           Parity
           of
           their
           Revenue
           ,
           were
           called
           or
           omitted
           
             ad
             libitum
          
           ,
           though
           the
           majores
           ought
           to
           be
           summoned
           
             de
             jure
          
           ;
           which
           proves
           a
           Writ
           of
           Summons
           to
           Parliament
           ,
           doth
           not
           ennoble
           the
           Party
           ,
           otherwise
           this
           Difference
           must
           fall
           to
           the
           ground
           .
           The
           Roll
           of
           18
           Ed.
           3.
           
           N.
           35.
           
           Is
           that
           the
           Cause
           of
           Summons
           was
           declared
           in
           the
           presence
           of
           the
           King
           and
           divers
           Lords
           there
           named
           ,
           
             &
             autres
             Barones
             ,
             &
             Bannerettes
             .
             Chevaliers
             de
             Comites
             ,
             Citizens
             &
             Burgeiis
             ,
             &c.
          
           So
           46
           of
           Ed.
           3.
           
           N
           7.
           the
           Roll
           is
           ,
           
             Dukes
             ,
             Earls
             ,
             Barons
             and
             Bannerets
             :
          
           And
           in
           many
           of
           the
           Parliament
           Rolls
           of
           Ed.
           3.
           it
           occurs
           by
           the
           
             Prelates
             ,
             Earls
             ,
             Barons
             ,
             and
             other
             Grandees
          
           ;
           by
           which
           it
           is
           evident
           ,
           that
           anciently
           there
           sate
           in
           the
           House
           of
           Lords
           sometimes
           some
           that
           were
           under
           the
           Degree
           of
           a
           Baron
           ,
           and
           they
           could
           not
           be
           Lords
           by
           Inheritance
           ,
           because
           a
           Barony
           is
           the
           lowest
           Degree
           of
           Inheritable
           Nobility
           ;
           but
           they
           could
           not
           be
           there
           present
           without
           their
           Writs
           ;
           It
           doth
           therefore
           follow
           ,
           that
           a
           Writ
           ,
           together
           with
           an
           Appearance
           in
           obedience
           to
           it
           ,
           doth
           not
           Ennoble
           the
           Party
           .
           Note
           ,
           That
           anciently
           the
           King
           by
           his
           Letters
           could
           have
           discharged
           any
           Banneret
           from
           serving
           in
           the
           Lower
           House
           ;
           because
           ,
           if
           he
           pleased
           ,
           he
           might
           upon
           occasions
           have
           summoned
           him
           to
           serve
           in
           the
           House
           of
           Lords
           ;
           and
           that
           is
           apparent
           from
           a
           Record
           in
           the
           7th
           of
           Rich.
           2.
           
           R.
           42.
           dorso
           .
           Sir
           
             Tho.
             Camoys
          
           was
           chosen
           one
           of
           the
           Knights
           of
           the
           Shire
           for
           Surrey
           ,
           and
           his
           Father
           and
           Grandfather
           had
           been
           summoned
           to
           several
           Parliaments
           before
           :
           the
           King
           discharged
           this
           Gentleman
           from
           serving
           in
           the
           House
           of
           Commons
           ,
           because
           Ipse
           (
           saith
           the
           Record
           )
           
             &
             quam
             plures
             Antecessores
             sui
          
           Banneretri
           
             fuerint
             :
             
             Nos
             animadvertentes
             quod
             hujusmodi
          
           Banneretti
           
             ante
             haec
             tempora
             in
          
           Milites
           Comitatus
           
             eligi
             minime
             consueverunt
             ,
             &c.
          
           
           If
           this
           Camoys
           had
           been
           reputed
           a
           Baron
           ,
           the
           Country
           would
           never
           have
           chose
           him
           ;
           and
           if
           he
           had
           been
           really
           a
           Baron
           ,
           the
           King
           would
           never
           have
           discharged
           him
           because
           he
           was
           a
           Banneret
           ,
           but
           because
           he
           was
           a
           Baron
           .
        
         
           Another
           Reason
           for
           this
           may
           be
           gathered
           out
           of
           the
           Patent
           of
           
             John
             Beauchamp
          
           of
           Holt
           ,
           the
           words
           of
           which
           are
           these
           :
           —
           
             Sciatis
             quod
             pro
             bonis
             &
             gratuitis
             servitiis
             ,
             quae
             dilectus
             &
             fidelis
             Miles
             noster
          
           Johannes
           de
           Beauchamp
           ,
           de
           Holt
           ,
           
             seneschallus
             hospitii
             nostri
             ,
             nobis
             impendit
             ,
             ac
             loco
             per
             ipsum
             tempore
             corenationis
             nostrae
             hucusque
             impensis
             ,
             &
             quempro
             Nobis
             tenere
             poterit
             in
             futurum
             in
             nostris
             consiliis
             &
             parliamentis
             ,
             nec
             non
             ,
             &c.
             ipsum
          
           Johannem
           
             in
             unum
          
           Parium
           &
           Baronum
           
             Regni
             nostri
             Angliae
             praesecimus
             ,
             volentes
             quod
             idem
          
           Johannes
           
             &
             haeredes
             masculi
             de
             corpore
             suo
             exeuntes
             statum
          
           Baronis
           
             obtineant
             ,
             ac
             Domini
             de
          
           Beauchamp
           &
           Barones
           de
           Kiderminster
           
             nuncupentur
             ,
             in
             cujus
             ,
             &c.
             T.
             Rege
             apud
          
           Wodestock
           ,
           10.
           
           Oct.
           It
           is
           probable
           that
           he
           was
           created
           Baron
           before
           he
           received
           this
           Patent
           ,
           because
           the
           Patent
           wants
           the
           words
           of
           Creation
           ;
           
             Ipsum
             Johannem
             praefecimus
          
           :
           but
           it
           is
           not
           said
           ,
           
             per
             praesentes
             praeficimus
          
           ;
           and
           therefore
           the
           Patent
           running
           in
           the
           
             preterperfect
             tense
          
           could
           have
           no
           other
           operation
           but
           only
           to
           Record
           a
           thing
           which
           was
           past
           :
           but
           he
           was
           not
           Created
           by
           Writ
           before
           the
           Patent
           ,
           because
           it
           is
           dated
           Oct.
           10.
           and
           he
           received
           no
           Writ
           till
           the
           Decem.
           following
           :
           Wherefore
           seeing
           that
           undoubtedly
           he
           was
           a
           Baron
           before
           he
           received
           either
           Patent
           or
           Writ
           ;
           for
           the
           Patent
           ,
           which
           is
           Matter
           of
           Record
           ,
           saith
           ,
           
             Ipsum
             praefecimus
          
           ;
           it
           follows
           ,
           that
           before
           this
           time
           a
           Baron
           hath
           been
           created
           without
           a
           Writ
           ,
           which
           could
           be
           no
           otherwise
           then
           by
           the
           performance
           of
           a
           Ceremony
           ,
           as
           
             Investiture
             of
             Robes
          
           ,
           &c.
           and
           this
           Patent
           was
           only
           an
           entring
           of
           the
           Creation
           ,
           
             being
             a
             transitory
             thing
          
           upon
           Record
           .
        
         
           2.
           
           Admitting
           that
           Barons
           have
           been
           created
           by
           Writs
           ,
           yet
           Prelates
           are
           not
           created
           Barons
           by
           their
           Writs
           ,
           because
           there
           is
           a
           difference
           between
           a
           Writ
           sent
           to
           a
           person
           that
           hath
           no
           right
           
             ex
             debito
             justitiae
          
           to
           demand
           it
           ;
           and
           a
           Writ
           sent
           to
           one
           that
           was
           a
           Lord
           of
           Parliament
           before
           ,
           and
           ought
           
             de
             jure
          
           to
           have
           been
           summoned
           .
           The
           former
           ,
           together
           with
           the
           persons
           obedience
           ,
           may
           perhaps
           make
           him
           a
           Baron
           :
           but
           the
           latter
           
             I
             conceive
          
           doth
           not
           make
           any
           addition
           to
           ,
           or
           enlargement
           of
           ,
           their
           precedent
           Honour
           ,
           but
           only
           summons
           them
           to
           exercise
           their
           Jurisdiction
           ,
           and
           put
           that
           power
           ▪
           which
           they
           have
           in
           execution
           ,
           and
           that
           is
           only
           
             reducere
             potentiam
             in
             actum
          
           ,
           otherwise
           every
           Lord
           would
           be
           newly
           created
           at
           every
           Parliament
           ;
           every
           one
           to
           whom
           the
           Honour
           is
           entailed
           ,
           would
           have
           a
           Fee-simple
           ,
           for
           a
           Writ
           will
           make
           a
           man
           a
           Peer
           in
           Fee
           without
           the
           word
           (
           Heirs
           )
           and
           every
           Lord
           Bishop
           ,
           L.
           Keeper
           ,
           L.
           Treasurer
           ,
           L.
           Privy
           Seal
           ,
           would
           be
           as
           such
           Inheritable
           Peers
           ,
           or
           at
           least
           for
           life
           ,
           which
           are
           both
           false
           ;
           for
           after
           Regradation
           their
           Peerage
           is
           ended
           :
           Wherefore
           it
           being
           certain
           that
           all
           the
           Lords
           both
           Spiritual
           and
           Temporal
           ought
           to
           be
           summoned
           to
           every
           Parliament
           ,
           the
           Summons
           must
           of
           necessity
           have
           respect
           to
           that
           Right
           which
           doth
           entitle
           them
           to
           demand
           them
           .
        
         
           The
           Inference
           which
           I
           draw
           from
           all
           this
           ,
           is
           ,
           That
           the
           Lords
           Spiritual
           having
           no
           Peerage
           upon
           the
           account
           of
           their
           Writs
           ,
           cannot
           claim
           any
           at
           all
           ,
           except
           it
           be
           
             Jure
             Episcopatus
          
           ,
           (
           that
           is
           )
           
             ratione
             terrarum
             quas
             tenent
             per
             Baroniam
             .
          
           So
           that
           now
           I
           come
           to
           the
           next
           point
           ;
           viz.
           Whether
           such
           whose
           Peerage
           is
           
             ratione
             tenure
          
           ,
           and
           dies
           either
           with
           the
           determination
           of
           his
           Estate
           in
           the
           Land
           ,
           or
           the
           dissolution
           of
           the
           Tenure
           ,
           be
           a
           competent
           Judge
           of
           one
           whose
           blood
           is
           ennobled
           in
           case
           of
           life
           and
           death
           ,
           within
           the
           meaning
           and
           intent
           of
           
             Magna
             Charta
          
           ,
           which
           enacts
           that
           every
           one
           shall
           be
           tryed
           
             per
             legale
             judicium
             parium
             suorum
          
           .
           The
           Negative
           I
           hope
           effectually
           to
           prove
           from
           these
           following
           Reasons
           :
        
         
           1.
           
           Every
           ones
           Peerage
           ought
           to
           be
           measured
           and
           proportioned
           according
           to
           the
           limits
           and
           extent
           of
           that
           
             ratione
             cujus
          
           he
           is
           a
           Peer
           ;
           he
           that
           is
           a
           Peer
           ,
           not
           only
           upon
           the
           account
           of
           his
           Possessions
           ,
           but
           also
           upon
           the
           account
           of
           the
           quality
           and
           nobility
           of
           his
           Blood
           ,
           hath
           a
           right
           of
           Judicature
           and
           Legislation
           both
           in
           those
           things
           that
           regulate
           Mens
           Estates
           and
           Properties
           ,
           and
           also
           in
           those
           things
           that
           concern
           Life
           and
           Death
           ;
           buthe
           that
           hath
           no
           Peerage
           but
           what
           is
           praedial
           or
           feudal
           ,
           and
           not
           personal
           
           a
           Peerage
           accruing
           by
           vertue
           of
           his
           Tenure
           and
           Possessions
           ,
           and
           not
           the
           Nobility
           of
           his
           Blood
           ,
           can
           have
           no
           Jurisdiction
           but
           such
           as
           is
           agreeable
           to
           the
           nature
           of
           his
           Peerage
           ;
           that
           is
           ,
           such
           as
           shall
           extend
           to
           matters
           of
           Property
           and
           Possession
           ,
           but
           not
           to
           matters
           of
           Blood
           ;
           for
           as
           to
           this
           he
           is
           no
           more
           a
           Peer
           (
           
             i.
             e.
             Par
          
           )
           to
           a
           Temporal
           Lord
           ,
           than
           any
           private
           Gentleman
           ,
           and
           therefore
           hath
           no
           more
           Jurisdiction
           ;
           for
           it
           is
           Parity
           that
           makes
           a
           man
           capable
           of
           Jurisdiction
           within
           the
           Statute
           :
           This
           is
           confirmed
           by
           the
           Authority
           of
           that
           Learned
           Antiquary
           ,
           Mr.
           
             John
             Selden
          
           ,
           in
           the
           first
           Edition
           ,
           of
           his
           
             Titles
             of
             Honour
          
           ,
           a
           Volume
           in
           Quorto
           ,
           347
           ,
           (
           which
           I
           the
           rather
           cite
           ,
           because
           it
           was
           Printed
           in
           King
           James
           his
           time
           ,
           and
           therefore
           not
           liable
           to
           exception
           )
           his
           words
           are
           these
           ;
           
             A
             Bishop
             shall
             not
             be
             tried
             by
          
           Peers
           
             in
             Capital
             Crimes
             ,
             because
             these
             are
             personal
             ,
             and
             his
             being
             a
          
           Baron
           ,
           is
           Ratione
           Tenurae
           ,
           
             and
             not
             of
             personal
             Nobility
          
           .
           So
           it
           is
           in
           Br.
           Abr.
           Tit.
           Enquest
           99.
           
           
             Although
             in
             an
             Action
             for
             Land
             ,
          
           &c.
           
             a
             Bishop
             shall
             have
             Knights
             in
             his
             Jury
             ,
             as
             other
             Lords
             ,
             yet
             when
             he
             is
             tryed
             for
             his
             life
          
           (
           it
           's
           said
           )
           
             he
             shall
             not
             have
             Knights
             in
             his
             Jury
             :
          
           By
           Which
           Book
           it
           is
           evident
           ,
           that
           a
           Bishop
           is
           a
           Peer
           not
           in
           respect
           of
           his
           Person
           ,
           but
           of
           his
           Possessions
           .
        
         
           2.
           
           The
           whole
           Statute
           of
           
             Magna
             Charta
          
           is
           a
           Grant
           or
           rather
           a
           Confirmation
           of
           the
           Priviledges
           and
           Liberties
           of
           the
           Subjects
           of
           England
           ;
           and
           it
           is
           to
           be
           supposed
           that
           the
           enjoyment
           of
           every
           of
           those
           Priviledges
           that
           are
           there
           granted
           ,
           is
           a
           great
           advantage
           and
           happiness
           to
           the
           Subject
           :
           but
           wherein
           the
           advantage
           of
           a
           mans
           being
           tryed
           
             per
             Pares
          
           doth
           lie
           ,
           is
           a
           Point
           worth
           the
           Consideration
           :
           I
           conceive
           it
           to
           be
           this
           ,
           When
           those
           are
           to
           be
           Judges
           ,
           who
           may
           be
           under
           the
           same
           Circumstances
           with
           the
           Prisoner
           ,
           and
           when
           by
           their
           Judgment
           the
           Prisoner
           can
           lose
           nothing
           but
           what
           his
           Judges
           ;
           if
           they
           be
           under
           his
           Circumstances
           may
           lose
           also
           ;
           he
           may
           expect
           that
           they
           will
           not
           give
           Judgment
           but
           upon
           Mature
           Deliberation
           ,
           and
           that
           the
           Consideration
           that
           it
           may
           be
           their
           own
           case
           will
           deter
           them
           from
           giving
           a
           rash
           judgment
           against
           a
           man
           that
           is
           innocent
           ,
           or
           not
           apparently
           guilty
           :
           Whereas
           if
           a
           mans
           Life
           and
           Fortune
           ,
           his
           Honour
           ,
           the
           Inheritable
           Quality
           of
           his
           Blood
           ,
           his
           Name
           and
           Reputation
           ,
           and
           whatsoever
           may
           be
           comfortable
           in
           this
           World
           ,
           were
           disposable
           at
           the
           will
           and
           pleasure
           of
           inferiour
           persons
           ,
           who
           have
           not
           every
           of
           these
           themselves
           ,
           and
           consequently
           know
           not
           the
           true
           value
           and
           worth
           of
           them
           ,
           nor
           the
           importance
           of
           the
           matter
           that
           is
           judicially
           before
           them
           ;
           it
           may
           be
           presumed
           that
           they
           will
           not
           be
           so
           careful
           and
           concerned
           in
           the
           Cause
           ;
           and
           it
           is
           to
           be
           feared
           they
           will
           be
           too
           ready
           to
           give
           an
           inconsiderate
           and
           rash
           judgment
           .
           This
           I
           take
           to
           be
           the
           onely
           benefit
           of
           a
           mans
           being
           tryed
           by
           his
           Peers
           ,
           which
           is
           very
           significantly
           expressed
           in
           the
           Statute
           
             De
             Proditoribus
          
           ,
           25
           Ed.
           3.
           cap.
           2.
           in
           these
           words
           ;
           
             Et
             de
             ceo
             soit
             provablement
             attaint
             de●overt
             fait
             per
             gents
             de
             lour
             condition
             ,
          
           &c.
           
           But
           to
           apply
           this
           to
           our
           present
           design
           ,
           let
           us
           consider
           what
           a
           Temporal
           Lord
           loseth
           by
           an
           Attainder
           ;
           In
           the
           first
           place
           he
           loseth
           his
           Life
           ,
           his
           Estate
           real
           and
           personal
           :
           If
           that
           were
           all
           ,
           a
           Gentleman
           might
           be
           his
           Peer
           ;
           but
           there
           is
           something
           more
           ,
           he
           forefeits
           his
           Nobility
           ,
           which
           is
           irrecoverable
           ,
           being
           quite
           extinguished
           ;
           the
           inheritable
           quality
           of
           his
           Blood
           is
           thereby
           corrupted
           ,
           the
           House
           of
           Lords
           themselves
           suffer
           with
           him
           ,
           for
           they
           lose
           a
           Member
           for
           ever
           :
           But
           a
           Bishop
           forfeits
           nothing
           but
           what
           he
           hath
           in
           his
           Natural
           Capacity
           ,
           and
           if
           he
           be
           considered
           as
           such
           ,
           he
           is
           no
           Peer
           ;
           if
           he
           be
           considered
           as
           a
           Bishop
           ,
           
             i.
             e.
          
           As
           holding
           Lands
           of
           such
           a
           Value
           in
           the
           Right
           of
           his
           Bishoprick
           of
           the
           King
           ,
           he
           is
           a
           Peer
           ,
           but
           his
           Peerage
           is
           in
           no
           danger
           through
           his
           Attainder
           ;
           the
           succession
           (
           which
           he
           is
           supposed
           to
           be
           as
           tender
           of
           as
           a
           Natural
           person
           is
           of
           his
           Posterity
           )
           is
           not
           thereby
           tainted
           ;
           for
           his
           Peerage
           ,
           together
           with
           all
           his
           Posterity
           and
           Land
           ,
           
             Ratione
             cujus
          
           he
           is
           a
           Peer
           ,
           go
           to
           the
           Successor
           without
           any
           restauration
           ;
           (
           see
           Stamford
           187.
           6.
           
           )
           and
           so
           the
           House
           of
           Lords
           lose
           never
           a
           Member
           :
           How
           then
           can
           Bishops
           ,
           having
           no
           Nobility
           which
           they
           can
           lose
           ,
           and
           consequently
           not
           being
           
             Gents
             de
             lour
             condition
          
           ,
           be
           fit
           Judges
           upon
           the
           Life
           and
           Death
           of
           Noble
           men
           ?
           And
           upon
           what
           grounds
           can
           more
           Justice
           be
           expected
           from
           such
           than
           from
           honest
           substantial
           Freeholders
           ?
        
         
           If
           this
           do
           not
           please
           ,
           let
           any
           of
           the
           most
           violent
           Maintainers
           of
           this
           pretended
           Temporally-spiritual
           Jurisdiction
           give
           a
           rational
           account
           ,
           wherein
           the
           advantage
           of
           a
           mans
           being
           tryed
           by
           his
           Peers
           ,
           doth
           consist
           ;
           and
           let
           him
           make
           appear
           that
           the
           Lords
           Temporal
           are
           any
           Sharers
           of
           this
           Priviledge
           when
           they
           are
           tryed
           by
           Bishops
           ,
           and
           I
           am
           
           satisfied
           ;
           but
           till
           then
           ;
           he
           must
           give
           me
           leave
           to
           conclude
           ,
           that
           this
           Jurisdiction
           which
           is
           pretended
           to
           ,
           is
           an
           abuse
           of
           the
           Satute
           of
           
             Magna
             Charta
          
           ,
           and
           therefore
           a
           violence
           offered
           to
           the
           Liberties
           of
           the
           Subjects
           of
           England
           .
        
         
           3.
           
           The
           Bishops
           are
           not
           Peers
           in
           that
           sense
           the
           Question
           is
           above
           stated
           in
           ,
           because
           they
           shall
           not
           themselves
           be
           tryed
           by
           Peers
           in
           Parliament
           :
           If
           their
           Parity
           be
           not
           sufficient
           to
           Entitle
           them
           to
           demand
           a
           Tryal
           by
           Temporal
           Lords
           ,
           then
           they
           cannot
           be
           Peers
           ,
           so
           as
           to
           be
           Judges
           upon
           the
           Tryal
           of
           Temporal
           Lords
           :
           but
           if
           they
           be
           really
           Peers
           to
           all
           intents
           and
           purposes
           ,
           then
           we
           charge
           all
           our
           Ancestors
           with
           a
           gross
           Violation
           of
           the
           Subjects
           Priviledges
           granted
           by
           
             Magna
             Charta
          
           ;
           for
           every
           Bishop
           is
           
             Liber
             homo
          
           ,
           a
           Subject
           of
           this
           Realm
           ,
           and
           ought
           of
           Right
           to
           have
           the
           benefit
           of
           a
           Subjects
           Priviledge
           of
           being
           tryed
           by
           his
           Peers
           :
           But
           seeing
           by
           the
           constant
           practise
           in
           former
           Ages
           ,
           even
           in
           those
           times
           when
           the
           Tyranny
           of
           ambitious
           Prelates
           ,
           and
           the
           Insolence
           of
           Popish
           Usurpers
           ,
           did
           swell
           to
           so
           great
           a
           height
           ;
           when
           the
           poor
           credulous
           affrightned
           Laity
           ,
           were
           glad
           for
           fear
           of
           being
           delivered
           Prisoners
           
             In
             manus
             &
             custodiam
             Diaboli
          
           ,
           and
           secluded
           from
           the
           Society
           and
           Conversation
           of
           Mankind
           ,
           to
           truckle
           at
           the
           Feet
           of
           the
           domineering
           Clergy
           ,
           and
           condescend
           to
           almost
           all
           their
           Demands
           ,
           however
           unreasonable
           or
           unjust
           they
           were
           ;
           insomuch
           ,
           that
           Innovations
           in
           favour
           of
           them
           were
           easily
           allowed
           ,
           and
           new
           acquisitions
           of
           Honour
           and
           Power
           easily
           obtained
           .
           I
           say
           ,
           if
           in
           those
           times
           the
           Honour
           of
           being
           Tryed
           by
           Peers
           hath
           been
           denied
           to
           them
           ,
           it
           may
           well
           be
           inferred
           that
           they
           had
           no
           Right
           ;
           for
           if
           it
           were
           a
           thing
           which
           they
           had
           any
           colour
           of
           pretension
           to
           ,
           is
           it
           reasonable
           to
           suppose
           that
           they
           quietly
           without
           reluctancy
           would
           resign
           it
           ?
           when
           we
           have
           Records
           and
           Histories
           full
           of
           their
           Clamours
           for
           breach
           of
           
             Magna
             Charta
          
           ,
           of
           their
           Contentions
           with
           their
           Liege
           Lord
           and
           Sovereign
           in
           things
           that
           were
           against
           the
           known
           and
           established
           Laws
           of
           the
           Kingdom
           ,
           tending
           to
           the
           diminution
           of
           the
           Kings
           Prerogative
           ,
           the
           hindring
           of
           the
           Execution
           of
           Justice
           upon
           Malefactors
           ,
           and
           the
           dispossessing
           and
           injurious
           Expulsion
           of
           the
           Subject
           from
           his
           just
           and
           hereditary
           Right
           ,
           where
           they
           had
           no
           reason
           in
           the
           world
           for
           it
           ,
           onely
           that
           they
           were
           inflamed
           with
           indignation
           ,
           that
           the
           Native
           Courage
           and
           inbred
           Generosity
           of
           Mind
           that
           was
           in
           our
           Ancestors
           ,
           not
           induring
           themselves
           to
           be
           trod
           upon
           ,
           nor
           their
           Necks
           to
           be
           laid
           under
           a
           Yoke
           of
           Tyranny
           and
           Usurpation
           ;
           did
           obstruct
           the
           unsufferable
           growth
           of
           that
           Power
           and
           Dominion
           which
           their
           own
           Pride
           and
           Ambition
           ,
           together
           with
           the
           example
           and
           success
           of
           their
           Brethren
           in
           other
           Countries
           ,
           had
           spurr'd
           them
           on
           to
           .
           These
           things
           are
           well
           enough
           known
           to
           all
           people
           ,
           whose
           Eyes
           are
           opened
           ,
           and
           therefore
           I
           shall
           not
           insist
           upon
           them
           ;
           but
           shall
           prove
           that
           Bishops
           ought
           not
           to
           be
           tryed
           by
           Temporal
           Lords
           :
           and
           for
           that
           I
           have
           the
           Suffrage
           of
           all
           Learned
           men
           ,
           My
           Lord
           Coke
           in
           the
           Third
           Institutes
           ,
           Fol.
           30.
           is
           express
           in
           the
           Point
           ,
           
             Spiritual
             Lords
             shall
             not
             be
             tryed
             by
             Peers
             .
             Stamford
          
           in
           his
           Pleas
           of
           the
           Crown
           ,
           Lib.
           3.
           cap.
           1.
           
           
             De
             Trial
             per
             les
             Peers
          
           ,
           saith
           ,
           That
           the
           Statute
           of
           
             Magna
             Charta
          
           ,
           and
           20
           H.
           6.
           cap.
           9.
           
           Which
           gives
           Dutchesses
           ,
           Countesses
           ,
           and
           Baronnesses
           the
           same
           Priviledge
           that
           their
           Husbands
           have
           ;
           
             Nad
             este
             mise
             in
             〈◊〉
             dextender
             a
             un
             Evesque
             on
             Abbe
             coment
             que
             ils
             injoient
             le
             nosme
             des
             Seignior
             de
             Parlement
             ,
             car
             ils
             nont
             cel
             nosme
             d'
             Evesque
             ou
             Abbe
             ratione
             Nobilitatis
             sed
             ratione
             〈◊〉
             ne
             ont
             lieu
             in
             Parlement
             in
             respect
             de
             lour
             Nobilitie
             ,
             ejus
             in
             respect
             de
             lour
             possession
             ,
             Sc.
             l'auncient
             Baronies
             annexes
             a
             lour
             Dignities
             &
             accordant
             a
             ceo
             il
             ●ad
             divers
             Presidents
             dont
             l'un
             fuit
             in
             temps
             le
             Roy
             H.
          
           8.
           &c.
           
           Of
           the
           same
           Opinion
           ,
           and
           for
           the
           same
           Reason
           is
           
             Selden
             ,
             ubi
             supra
          
           ;
           We
           find
           the
           same
           agreed
           by
           Justice
           
             Dodderidge
             ,
             pag.
          
           59
           ,
           112.
           and
           Elsynge
           in
           his
           
             ancient
             Method
             of
             holding
             Parliaments
          
           ,
           pag.
           41.
           
           And
           the
           Book
           which
           I
           above
           cited
           ,
           
             Br.
             Tit.
             Enquest
          
           99.
           27
           
           H.
           8.
           in
           the
           Bishop
           of
           
           Rochester's
           Case
           ,
           it
           is
           resolved
           ,
           That
           when
           a
           Bishop
           is
           to
           be
           tryed
           for
           Treason
           ,
           it
           is
           not
           necessary
           that
           he
           have
           Knights
           in
           his
           Jury
           ,
           although
           he
           shall
           have
           that
           Priviledge
           in
           a
           Tryal
           for
           his
           Land
           ;
           which
           proves
           that
           his
           Peerage
           is
           more
           for
           the
           Priviledge
           of
           the
           Lands
           and
           Possessions
           of
           the
           Bishoprick
           ,
           then
           the
           Person
           of
           the
           Bishop
           :
           as
           you
           may
           further
           see
           if
           you
           compare
           this
           Book
           with
           Plowd
           .
           117.
           
           
             Br.
             Tit.
             Tryal
          
           142.
           and
           
             Fitz.
             Cor.
          
           115.
           
           And
           I
           dare
           affirm
           there
           is
           not
           any
           one
           Lawyer
           or
           Antiquary
           of
           Note
           that
           disagrees
           from
           this
           :
           But
           before
           I
           go
           from
           this
           ,
           I
           shall
           strengthen
           these
           Authorities
           by
           Precedents
           .
        
         
         
           I
           shall
           begin
           with
           
             Adam
             de
             Orleton
          
           ,
           or
           Tarleton
           Bishop
           of
           Hereford
           ,
           who
           in
           the
           17
           of
           Ed.
           2.
           was
           accused
           while
           he
           was
           sitting
           in
           Parliament
           ,
           of
           Conspiring
           with
           
             Roger
             Mortimer
          
           Earl
           of
           March
           ,
           and
           aiding
           him
           with
           Horse
           and
           Arms
           in
           open
           Rebellion
           ;
           whereupon
           he
           was
           ordered
           to
           the
           Barr
           of
           the
           House
           of
           Lords
           ;
           he
           made
           no
           Answer
           to
           those
           Crimes
           that
           were
           laid
           to
           his
           charge
           ,
           only
           that
           he
           was
           Suffragan
           to
           the
           Archbishop
           of
           Canterbury
           ,
           who
           was
           his
           direct
           Judge
           under
           the
           Pope
           ,
           and
           without
           his
           leave
           and
           the
           consent
           of
           his
           Fellow-Bishops
           he
           would
           not
           answer
           :
           Now
           although
           the
           Statute
           of
           
             Articuli
             Cleri
          
           restraining
           the
           benefit
           of
           Clergy
           to
           Felony
           ,
           was
           made
           but
           eight
           years
           before
           this
           ,
           yet
           the
           rest
           of
           the
           Clergy
           in
           that
           disorderly
           time
           (
           observe
           the
           Humility
           ,
           Obedience
           ,
           and
           Loyalty
           of
           our
           Spiritual
           Fathers
           in
           those
           days
           )
           had
           the
           impudence
           in
           the
           presence
           of
           the
           King
           ,
           to
           pull
           him
           violently
           from
           the
           Barr
           and
           deliver
           him
           to
           the
           Archbishop
           :
           
           The
           King
           was
           enraged
           at
           this
           Insolence
           ,
           and
           gave
           special
           Order
           to
           apprehend
           him
           again
           ,
           which
           was
           done
           ,
           and
           was
           arraigned
           upon
           an
           Indictment
           at
           the
           Kings-Bench-Bar
           ,
           and
           upon
           the
           Question
           ,
           
             How
             he
             will
             be
             tryed
          
           ?
           He
           said
           ,
           
             Quod
             ipse
             est
             Episcopus
             Herefordensis
             ad
             voluntatem
             Dei
             &
             Sammi
             Pontificis
             ,
             &
             quod
             materia
             praedict
             Articulor
             '
             sibi
             imposi●…
             adeo
             ardua
             est
             quod
             ipse
             non
             debet
             in
             Curia
             hac
             super
             praedictis
             Articul
             '
             imposii
             respondere
             nec
             inde
             respondere
             potest
             absque
             offensu
             Divino
             &
             Sanctae
             Ecclesiae
             .
          
           Hereupon
           Day
           is
           given
           over
           ,
           and
           after
           some
           Contiuances
           ,
           the
           Record
           goes
           on
           thus
           ;
           
             Et
             praeceptum
             est
             Vic'
             Comit
             '
             Hereford
             quod
             venire
             faciat
             coram
             Domino
             Rege
             ,
          
           &c.
           
             tot
             &
             tales
          
           ,
           &c.
           
             ad
             inquirendum
             prout
             mores
             est
          
           ,
           &c.
           
           And
           a
           Common
           Jury
           is
           returned
           ,
           which
           find
           him
           Guilty
           ,
           and
           his
           Goods
           and
           Lands
           are
           seised
           into
           the
           Kings
           Hands
           ,
           and
           after
           Conviction
           ,
           he
           is
           delivered
           unto
           the
           Archbishop
           ,
           to
           the
           end
           (
           I
           suppose
           )
           that
           he
           should
           be
           Degraded
           ;
           for
           in
           this
           Case
           being
           High
           Treason
           there
           could
           be
           no
           Purgation
           .
           See
           the
           Record
           of
           his
           Attainder
           ,
           Hill.
           17
           E.
           2.
           
           
             Coram
             Rege
          
           ,
           Rot.
           87.
           
           Dors
           '
           Co●
           3.
           
           Inst.
           30.
           
           
             Fuller's
             Ch.
             Hist.
             fol.
          
           107.
           
           
             Tho.
             Walsingham
             ,
             fol.
          
           199.
           
           It
           appears
           by
           the
           Record
           it self
           ,
           and
           all
           the
           Histories
           of
           those
           times
           ,
           what
           Artifices
           were
           used
           ,
           and
           with
           what
           Industry
           every
           Stone
           was
           turned
           by
           the
           Clergy
           ,
           to
           keep
           the
           Bishop
           from
           the
           Justice
           of
           the
           Nation
           ;
           and
           is
           it
           to
           be
           supposed
           ,
           that
           they
           would
           wave
           their
           
             Jus
             Paritatis
          
           ,
           if
           they
           had
           it
           ?
           We
           have
           a
           world
           of
           Complaints
           in
           Walsingham
           ;
           and
           other
           old
           Monks
           ,
           against
           the
           whole
           Proceeding
           ,
           but
           not
           one
           word
           of
           any
           Injury
           done
           to
           their
           Peerage
           .
        
         
           The
           next
           Precedent
           is
           in
           Trin.
           30.
           
           E.
           3.
           
           Rot.
           11.
           
           
             John
             de
             Isle
          
           Brother
           to
           
             Thomas
             Hen
          
           Bishop
           of
           Ely
           ,
           was
           Indicted
           in
           Huntington
           ,
           that
           he
           with
           divers
           others
           ,
           
             per
             assensum
             &
             procurationem
             Episcopi
             praedict
          
           28
           E.
           3.
           
           
             Diae
             Lunae
             post
             Testum
             Sancti
             Jacobi
             ,
          
           burnt
           the
           House
           of
           the
           Lady
           Wake
           ,
           at
           〈…〉
           by
           
             Sommersham
             in
             Comitat.
             praedict
             ,
             &
             quod
             praedict
             Tho.
             Episcopus
             sciens
             praedict
             combustionem
             per
             praedict
             servientes
             suos
             esse
             factam
             ,
             dictos
             servientes
             apud
          
           Sommersham
           
             praedict
             postea
             receptavit
          
           ,
           &c.
           
           And
           also
           it
           was
           found
           before
           the
           Justices
           and
           Coroners
           ,
           that
           29
           E.
           3.
           the
           said
           Bishop
           was
           guilty
           
             de
             assensu
          
           of
           the
           Murder
           of
           one
           
             William
             Holme
          
           ,
           slain
           by
           
             Ralph
             Carelesse
          
           and
           
             Walter
             Ripton
          
           ,
           called
           
             little
             Watt
          
           ,
           upon
           Malice
           conceived
           against
           Holme
           ,
           because
           he
           followed
           the
           Suit
           of
           the
           Lady
           Wake
           ;
           the
           Principals
           were
           attainted
           by
           Owtlawry
           ,
           the
           Bishop
           was
           Arraigned
           ,
           and
           upon
           question
           ,
           how
           he
           would
           be
           tryed
           ?
           He
           answered
           ,
           
             Quod
             ipse
             est
             membrum
          
           Domini
           Papae
           ,
           
             &
             quod
             ipse
             ab
             ordinario
             suo
             viz.
             venerabili
             Patre
             Domino
          
           Simone
           Archiepiscopo
           Cant.
           
             Angliae
             Primat
             respondere
             non
             potest
             ,
             &
             super
             haec
             Dominus
          
           Archiepiscopus
           
             praesons
             hic
             in
             Curia
             petit
             quod
             dictus
             Episcopus
          
           Eliensis
           ,
           
             de
             feloniis
             praedictis
             sibi
             impositis
             hic
             coram
          
           Laico
           Judice
           
             non
             cogatur
             respondere
             ;
             &
             ut
             sciatur
             inde
             rei
             veritas
             per
             inquisitionem
             Patriae
             praecept
             '
             est
             Vicecom
          
           &c.
           
             Ad
             quens
             diem
          
           ,
           &c.
           
           
             Jurat
             '
             trial
          
           ,
           &c.
           
             dicunt
             super
             Sacramentum
             suum
             quod
             idem
          
           Episcopus
           
             est
             in
             nullo
             culpabilis
             ;
             sed
             dicunt
             quod
             idem
          
           Episcopus
           
             post
             feloniam
             factam
             ipsos
             servientes
             receptavit
             sciens
             ipsos
             feloniam
             fecisse
             ,
          
           &c.
           
           
             Et
             super
             haec
             p●●…ict
          
           '
           Archiepiscopus
           
             praese●s
             in
             Cur
             '
             petit
             ipsum
             tanquam
             Membrum
             Ecclesiae
             sibi
             lib●●●●…
             ,
             &
             ei
             liberatur
             custodiend
             '
             prout
             decet
             .
          
           Here
           is
           a
           Bishop
           Indicted
           ,
           Arraigned
           ,
           Tryed
           by
           a
           Common
           Jury
           ,
           and
           Convicted
           as
           accessory
           to
           several
           Felonies
           ,
           as
           burning
           of
           a
           House
           ,
           and
           killing
           a
           Man
           ,
           both
           before
           and
           after
           the
           Felonies
           committed
           :
           And
           it
           is
           observable
           ,
           the
           Jurors
           were
           tryed
           as
           appears
           by
           this
           Record
           ,
           and
           that
           proves
           the
           Bishop
           had
           his
           
           Challenges
           to
           them
           at
           his
           Tryal
           :
           And
           is
           it
           not
           very
           strange
           that
           they
           should
           proceed
           at
           this
           Rate
           against
           a
           
             Peer
             of
             the
             Realm
          
           ,
           over
           whom
           they
           had
           no
           Jurisdiction
           ,
           and
           a
           Bishop
           too
           ,
           at
           such
           a
           time
           when
           the
           Clergy
           were
           the
           onely
           men
           about
           Court
           ;
           
           as
           
             Simon
             Langham
          
           ,
           Archbishop
           of
           Canterbury
           ,
           Lord
           Chancellor
           ;
           
             William
             Wickham
          
           Archdeacon
           of
           Lincoln
           ,
           Keeper
           of
           the
           Privy
           Seal
           ;
           
             David
             Willer
          
           Parson
           of
           Somersham
           ,
           Master
           of
           the
           Rolls
           ;
           ten
           beneficed
           Priests
           ,
           Masters
           of
           the
           
             Chancery
             ;
             William
             Mulse
          
           Dean
           of
           S.
           
             Martins
             le
             grand
          
           ,
           Chief
           Chamberlain
           of
           the
           Exchequer
           ,
           Receiver
           and
           Keeper
           of
           the
           Kings
           Treasure
           and
           Jewels
           ;
           
             William
             Aksby
          
           Archdeacon
           of
           Northampton
           ,
           Chancellour
           of
           the
           
             Exchequer
             ;
             William
             Dighton
          
           Prebendary
           of
           S.
           Martins
           ,
           Clerk
           of
           the
           Privy
           Seal
           ;
           
             Richard
             Chesterfield
          
           Prebend
           of
           S.
           Stephens
           ,
           Treasurer
           of
           the
           Kings
           House
           ;
           
             Henry
             Snatch
          
           Parson
           of
           Oundell
           ,
           Master
           of
           the
           Kings
           Wardrobe
           ;
           
             John
             Newnham
          
           Parson
           of
           Fenny-stanton
           ,
           one
           of
           the
           Chamberlains
           of
           the
           
             Exchequer
             ;
             John
             Rowseby
          
           Parson
           of
           Harwich
           ,
           Surveyor
           and
           Controller
           of
           the
           Kings
           Works
           ;
           
             Thomas
             Brittingham
          
           Parson
           of
           Asby
           ,
           Treasurer
           to
           the
           King
           for
           the
           part
           of
           Guisnes
           ,
           and
           the
           Marches
           of
           
             Calice
             ;
             John
             Troys
          
           a
           Priest
           ,
           Treasurer
           of
           Ireland
           .
           These
           I
           have
           specified
           here
           ,
           because
           when
           any
           Examples
           are
           put
           of
           Justice
           had
           against
           Ecclesiastical
           Malefactors
           ,
           there
           are
           a
           sort
           of
           people
           who
           presently
           cry
           out
           ,
           
             Their
             wings
             were
             clipt
             :
             They
             were
             under
             contempt
             and
             hated
             by
             the
             Laity
             ,
          
           &c.
           
           But
           what
           Credit
           is
           to
           be
           given
           to
           them
           ,
           may
           be
           gathered
           from
           what
           hath
           been
           said
           .
        
         
           
             Thomas
             Merkes
          
           Bishop
           of
           Carlisle
           ,
           was
           in
           the
           2
           H.
           4.
           
           Indicted
           of
           Conspiring
           with
           Holland
           Earl
           of
           Kent
           ,
           and
           the
           Dukes
           of
           Exceter
           and
           Surrey
           ,
           and
           the
           Duke
           of
           
             Aumerle
             ,
             Montacute
          
           Earl
           of
           
             Salisbury
             ,
             Spencer
          
           Earl
           of
           Glocester
           ,
           and
           others
           ,
           to
           kill
           the
           King
           :
           he
           was
           thereupon
           Arraigned
           before
           Thomas
           Earl
           of
           Warwick
           ,
           and
           other
           Justices
           of
           Oyer
           and
           Terminer
           ,
           in
           Middlesex
           ,
           and
           Tryed
           by
           a
           Common
           Jury
           ,
           and
           found
           Guilty
           ;
           afterward
           the
           Record
           was
           removed
           to
           the
           
             Kings
             Bench
          
           ,
           and
           the
           Bishop
           put
           into
           the
           Marshalsea
           ,
           and
           afterward
           he
           is
           brought
           to
           the
           Bar
           ,
           and
           being
           asked
           ,
           if
           he
           had
           any
           thing
           to
           shew
           why
           Judgment
           should
           not
           be
           given
           on
           him
           ,
           he
           pleads
           his
           Pardon
           ,
           and
           it
           is
           allowed
           :
           
             See
             the
             Record
             of
             his
             Attainder
             ,
             Hill.
          
           2.
           
           H.
           4.
           
           
             Coram
             Rege
             ,
             Rot.
          
           6.
           
           Co.
           2.
           
           Inst.
           636.
           3.
           
           Inst.
           30.
           
        
         
           But
           to
           come
           somewhat
           nearer
           our
           times
           ;
           Fisher
           Bishop
           of
           Rochester
           is
           Indicted
           ,
           Arraigned
           ,
           and
           Tryed
           by
           a
           Common
           Jury
           ,
           for
           speaking
           Treasonable
           Words
           against
           an
           Act
           of
           Parliament
           made
           the
           26
           of
           H.
           8.
           making
           the
           King
           Head
           of
           the
           Church
           ,
           and
           abolishing
           the
           Authority
           of
           the
           Pope
           of
           Rome
           ;
           and
           was
           Condemned
           at
           the
           
             Kings
             Bench
          
           ,
           and
           Executed
           ,
           
             Br.
             Tit.
             Tryal
          
           142.
           
           Inquest
           99.
           27
           
           H.
           8.
           
        
         
           The
           last
           that
           I
           shall
           name
           ,
           is
           that
           Holy
           and
           Renowned
           Martyr
           ,
           Archbishop
           Cranmer
           ,
           who
           was
           Tryed
           with
           Lady
           
             Jane
             Gray
          
           ,
           and
           her
           Husband
           Lord
           Guilford
           ,
           and
           two
           younger
           Sons
           of
           the
           Duke
           of
           
             Northumberland
             ,
             Ambrose
          
           and
           Henry
           ,
           at
           Guild-Hall
           ,
           before
           the
           Lord
           Mayor
           and
           Judges
           ,
           the
           Third
           Day
           of
           Nov.
           in
           the
           First
           Year
           of
           Queen
           
           Mary's
           Reign
           ,
           1553.
           
           Where
           they
           were
           all
           found
           Guilty
           ,
           and
           Condemed
           of
           High
           Treason
           .
           None
           of
           these
           were
           Executed
           upon
           this
           Judgment
           ,
           except
           Lady
           
             Jane
             Gray
          
           and
           her
           Husband
           ,
           who
           upon
           a
           Second
           Miscarriage
           of
           her
           Father
           the
           Duke
           of
           Suffolk
           ,
           in
           joyning
           with
           Sir
           
             Thomas
             Wyat
          
           to
           oppose
           King
           
           Philip's
           Landing
           ,
           were
           Executed
           in
           the
           Tower
           the
           12th
           of
           Febr.
           following
           :
           On
           the
           20th
           of
           April
           following
           ,
           
             Cranmer
             ,
             Ridley
          
           ,
           and
           Latimer
           ,
           were
           adjudged
           Hereticks
           at
           Oxford
           ,
           and
           Degraded
           by
           Commission
           from
           the
           Pope
           ,
           and
           a
           little
           after
           Cardinal
           Poole
           succeded
           Cranmer
           ,
           who
           was
           burnt
           as
           a
           Heretick
           14th
           of
           Febr.
           1556.
           
           All
           this
           is
           known
           to
           those
           that
           are
           acquainted
           with
           the
           Transactions
           of
           those
           times
           ;
           and
           therefore
           it
           is
           evident
           both
           from
           the
           Authority
           of
           Learned
           Men
           ,
           and
           the
           Practice
           of
           all
           Ages
           in
           all
           times
           ,
           that
           Bishops
           have
           been
           Tryed
           by
           Common
           Juries
           :
           And
           sure
           it
           was
           not
           without
           ground
           that
           so
           Grave
           and
           Judicious
           an
           Author
           as
           Camden
           ,
           should
           say
           ,
           That
           the
           Spiritual
           Lords
           enjoy
           all
           the
           Priviledges
           that
           Temporal
           Lords
           do
           ,
           saving
           only
           the
           business
           of
           Tryal
           by
           Peers
           .
        
         
           Having
           thus
           proved
           what
           I
           before
           asserted
           concerning
           the
           Tryal
           of
           Lords
           Spiritual
           ;
           I
           shall
           in
           the
           next
           place
           consider
           the
           Answers
           that
           are
           generally
           made
           to
           these
           Arguments
           and
           Authorities
           .
           Those
           I
           observe
           to
           be
           principally
           two
           :
           
             
             
               1.
               
               They
               will
               very
               well
               agree
               with
               those
               Authors
               that
               say
               ;
               Bishops
               are
               not
               to
               be
               Tryed
               by
               Peers
               ;
               but
               then
               (
               say
               they
               )
               it
               was
               not
               for
               want
               of
               Peerage
               ,
               but
               because
               they
               would
               not
               be
               put
               to
               answer
               for
               any
               Capital
               Crime
               before
               Lay-Judges
               .
            
             
               2.
               
               They
               say
               ,
               that
               if
               it
               happened
               that
               at
               any
               time
               a
               Bishop
               was
               Tryed
               by
               Lay-men
               and
               by
               Common
               Juries
               ,
               then
               they
               were
               first
               Degraded
               .
            
          
        
         
           If
           there
           were
           no
           more
           to
           be
           said
           for
           this
           ,
           the
           very
           reading
           of
           the
           fore-mentioned
           Precedents
           would
           easily
           make
           appear
           the
           weakness
           of
           these
           Objections
           ;
           for
           it
           appears
           by
           the
           very
           Records
           ,
           that
           their
           Priviledge
           of
           Clergy
           was
           insisted
           upon
           ,
           and
           that
           with
           a
           great
           deal
           of
           Zeal
           and
           Fervency
           ;
           insomuch
           that
           the
           Passage
           of
           the
           Bishop
           of
           Hereford
           ,
           is
           a
           thing
           taken
           notice
           of
           in
           a
           special
           manner
           by
           all
           the
           most
           Famous
           Historians
           of
           this
           Nation
           ;
           and
           it
           is
           generally
           agreed
           ,
           that
           about
           Fourteen
           Bishops
           came
           with
           their
           Crosses
           erected
           to
           the
           place
           of
           Judgment
           ,
           threatning
           all
           people
           with
           Excommunication
           that
           offered
           to
           oppose
           them
           in
           that
           which
           they
           intended
           ;
           and
           yet
           we
           find
           that
           he
           was
           not
           delivered
           till
           after
           he
           was
           found
           Guilty
           :
           And
           it
           's
           manifest
           from
           all
           the
           other
           Precedents
           ,
           that
           they
           were
           found
           Guilty
           ,
           and
           most
           of
           them
           Condemned
           to
           die
           upon
           the
           Verdict
           of
           Twelve
           Lay-men
           .
           But
           as
           to
           the
           business
           ▪
           of
           Deprivation
           ,
           you
           may
           observe
           ,
           that
           throughout
           the
           whole
           Records
           they
           are
           named
           Bishops
           ,
           as
           
             Episcopus
             Herefordensis
             ,
             Eliensis
          
           and
           Roffensis
           ,
           which
           could
           not
           be
           if
           they
           were
           Degraded
           ;
           for
           then
           these
           Titles
           were
           not
           rightful
           additions
           in
           Law.
           And
           although
           it
           being
           evident
           that
           so
           it
           was
           
             de
             facto
          
           ,
           is
           a
           sufficient
           Answer
           to
           the
           Objections
           ;
           yet
           for
           more
           abundant
           satisfaction
           ,
           I
           shall
           be
           somewhat
           more
           large
           in
           this
           ,
           and
           shall
           shew
           that
           so
           it
           ought
           to
           be
           
             de
             jure
          
           .
        
         
           In
           handling
           this
           Point
           ,
           I
           shall
           consider
           these
           following
           Particulars
           :
           
             
               1.
               
               To
               whom
               this
               
                 Privilegium
                 Clericale
              
               ,
               or
               Exemption
               from
               Temporal
               Jurisdiction
               ,
               ought
               to
               have
               been
               allowed
               ?
            
             
               2.
               
               I
               shall
               consider
               somewhat
               of
               the
               Nature
               of
               this
               Exemption
               and
               Immunity
               ,
               and
               how
               far
               they
               were
               exempted
               from
               Secular
               Power
               .
            
             
               3.
               
               I
               shall
               examine
               in
               what
               Cases
               it
               was
               allowed
               ,
               and
               in
               what
               ,
               not
               .
            
             
               4.
               
               At
               what
               time
               .
            
             
               5.
               
               Upon
               what
               account
               it
               was
               that
               Clergy-men
               were
               delivered
               to
               their
               Ordinaries
               in
               those
               Cases
               where
               the
               benefit
               of
               Clergy
               was
               not
               allowed
               .
            
          
        
         
           And
           lastly
           ,
           I
           shall
           shew
           at
           what
           time
           regularly
           they
           were
           Degraded
           .
        
         
           I.
           As
           for
           the
           first
           ,
           It
           was
           generally
           allowed
           to
           all
           within
           Holy
           Orders
           ,
           whether
           Secular
           ,
           or
           Regular
           ,
           and
           in
           an
           equal
           Degree
           to
           all
           such
           ,
           not
           respecting
           Superiority
           ,
           or
           Inferiority
           :
           The
           poor
           Country-Parson
           had
           as
           good
           and
           as
           large
           a
           Right
           to
           it
           ,
           as
           my
           Lord
           Bishop
           .
           This
           is
           proved
           ,
           first
           ,
           From
           the
           Canons
           that
           gave
           this
           Immunity
           ;
           the
           first
           (
           I
           think
           )
           were
           made
           by
           Pope
           Gaius
           ,
           and
           those
           run
           ;
           
             Clericus
             coram
             Judice
             Seculari
             Judicari
             non
             debet
             nec
             aliquid
             contra
             ipsum
             fieri
             ,
             per
             quod
             ad
             periculum
             mortis
             vel
             ad
             mutilationem
             membrorum
             valeat
             perveniri
             ,
          
           &c.
           
           See
           
             Linwood
             Tit.
             de
             foro
             compet
             .
             c.
             contingit
             .
             Polichro
             .
             lib.
          
           4.
           c.
           24.
           
             of
             Pope
             Gaius
             ,
             and
          
           Onuphrius
           
             in
             his
             Comment
             upon
          
           Platina
           ,
           
             in
             the
             life
             of
             that
             Pope
             .
          
           Therefore
           seeing
           he
           cannot
           take
           any
           advantage
           of
           these
           Canons
           ,
           except
           as
           Clericus
           ,
           and
           must
           claim
           it
           by
           the
           same
           Name
           that
           inferiour
           Priests
           do
           ,
           he
           must
           have
           it
           in
           the
           same
           Degree
           .
           But
           that
           which
           is
           a
           great
           deal
           stronger
           than
           the
           Construction
           of
           Canons
           ,
           is
           the
           Confirmation
           that
           is
           made
           by
           our
           Acts
           of
           Parliament
           ;
           this
           Priviledge
           is
           granted
           to
           all
           that
           are
           Clerici
           ,
           or
           Clerks
           in
           French
           ,
           and
           Clergy-men
           in
           English
           ;
           and
           to
           all
           such
           indefinitely
           without
           distinction
           ,
           or
           respect
           of
           the
           several
           Ranks
           and
           Degrees
           of
           men
           within
           Holy
           Orders
           :
           So
           you
           will
           find
           it
           in
           
             Marlebridge
             c.
          
           28.
           
           West
           .
           1.
           c.
           2.
           
           
             Art.
             Cler.
             c.
          
           15.
           25
           
           E.
           3.
           c.
           4
           ,
           &
           5.
           4
           
           H.
           4.
           c.
           3.
           and
           the
           rest
           .
           So
           that
           without
           all
           question
           ,
           a
           Bishop
           can
           pretend
           to
           no
           more
           Priviledge
           than
           any
           other
           Clerk
           
             causa
             qua
             supra
          
           .
           This
           I
           thought
           fit
           to
           observe
           first
           ,
           because
           that
           every
           Authority
           and
           Precedent
           that
           I
           shall
           bring
           of
           an
           inferiour
           Priest
           ,
           is
           as
           strong
           for
           my
           purpose
           ,
           as
           if
           it
           were
           of
           a
           Bishop
           .
        
         
           II.
           As
           for
           the
           second
           Point
           ,
           I
           shall
           not
           need
           to
           be
           very
           large
           upon
           it
           ,
           but
           shall
           observe
           one
           thing
           which
           will
           be
           serviceable
           to
           my
           present
           purpose
           ,
           and
           that
           is
           this
           :
           That
           every
           Temporal
           Magistrate
           and
           Judge
           of
           this
           Kingdom
           ,
           hath
           ,
           and
           in
           all
           times
           ever
           had
           ,
           by
           the
           Common
           Law
           ,
           Jurisdiction
           over
           every
           Subject
           in
           the
           same
           Degree
           
           of
           Nobility
           that
           was
           resident
           within
           the
           Verge
           and
           local
           extent
           of
           his
           Jurisdiction
           :
           This
           Power
           and
           Authority
           of
           his
           being
           Universal
           ,
           he
           was
           never
           bound
           to
           take
           notice
           of
           the
           Priviledges
           and
           Immunities
           of
           any
           particular
           Orders
           and
           Societies
           of
           Men
           ,
           if
           they
           themselves
           would
           not
           take
           advantage
           of
           it
           ;
           so
           that
           this
           same
           
             Previlegium
             Clericale
          
           was
           no
           absolute
           exemption
           from
           Secular
           Authority
           ,
           so
           as
           to
           make
           all
           Proceedings
           before
           a
           Secular
           Judge
           ,
           to
           be
           
             Coram
             non
             Judice
          
           :
           but
           the
           end
           and
           design
           of
           it
           was
           ,
           that
           when
           any
           Clergy-man
           was
           Arraigned
           as
           a
           Malefactor
           before
           a
           Secular
           Judge
           ,
           then
           in
           some
           Cases
           ,
           before
           he
           suffered
           the
           punishment
           that
           was
           due
           by
           Law
           ,
           he
           was
           delivered
           to
           his
           Ordinary
           to
           make
           his
           Purgation
           ;
           if
           he
           could
           ,
           then
           his
           Ordinary
           discharged
           him
           ;
           but
           if
           he
           could
           not
           ,
           then
           he
           was
           Degraded
           and
           sent
           back
           to
           the
           Temporal
           Magistrate
           to
           suffer
           punishment
           according
           to
           his
           Demerits
           .
           That
           the
           Proceedings
           of
           a
           Secular
           Judge
           upon
           one
           within
           Holy
           Orders
           ,
           are
           not
           
             Coram
             non
             Judice
          
           ,
           might
           be
           proved
           both
           out
           of
           Civilians
           and
           Canonists
           ;
           but
           that
           would
           not
           be
           much
           to
           the
           purpose
           if
           I
           should
           ,
           and
           therefore
           I
           shall
           forbear
           ;
           only
           shall
           take
           notice
           of
           a
           Passage
           in
           Dr.
           
           Ridley's
           
             View
             of
             the
             Civil
             and
             Ecclesiastical
             Law
             ,
          
           pag.
           86.
           
           
             If
             a
             Clerk
          
           (
           says
           he
           )
           
             be
             first
             Arrested
             by
             his
             Spiritual
             Judge
             ,
             and
             found
             guilty
             ,
             he
             shall
             be
             Degraded
             and
             delivered
             over
             to
             the
             Temporal
             power
             ;
             but
             if
             he
             be
             first
             Arrested
             by
             the
             Secular
             Magistrate
             ,
             and
             Tryed
             ,
             and
             found
             Guilty
             ,
             he
             shall
             be
             delivered
             to
             the
             Bishop
             to
             be
             deprived
             ,
             and
             then
             delivered
             back
             to
             punishment
             .
          
           The
           same
           in
           effect
           he
           saith
           p.
           158.
           whereby
           he
           doth
           allow
           ,
           that
           according
           to
           the
           Ecclesiastical
           Law
           ,
           the
           Temporal
           Judges
           were
           allowed
           to
           have
           Jurisdiction
           over
           men
           within
           Holy
           Orders
           :
           But
           let
           him
           or
           any
           of
           the
           Civilians
           or
           Canonists
           say
           what
           they
           will
           ,
           it
           's
           no
           great
           matter
           ;
           we
           must
           consider
           what
           the
           Law
           of
           England
           saith
           in
           this
           case
           :
           for
           the
           Canons
           never
           were
           in
           force
           in
           England
           any
           further
           than
           they
           were
           voluntarily
           received
           ,
           and
           so
           transmitted
           as
           a
           common
           Usage
           or
           Custom
           to
           Posterity
           by
           Tradition
           ,
           and
           so
           became
           part
           of
           the
           Common
           Law
           ;
           or
           else
           were
           confirmed
           by
           Act
           of
           Parliament
           ,
           and
           so
           became
           part
           of
           our
           Statute-Law
           ,
           of
           which
           more
           hereafter
           .
           And
           that
           by
           the
           Law
           of
           England
           the
           Proceedings
           against
           Ecclesiastical
           Persons
           before
           a
           Secular
           Judge
           ,
           are
           not
           
             coram
             non
             Judice
          
           ,
           I
           prove
           by
           these
           Cases
           :
           An
           Appeal
           of
           Robbery
           was
           brought
           against
           a
           Monk
           ,
           who
           was
           tryed
           and
           acquitted
           ;
           upon
           this
           the
           Abbot
           and
           the
           Monk
           brought
           a
           Writ
           of
           Conspiracy
           against
           divers
           who
           procured
           and
           abetted
           the
           said
           Appeal
           :
           whereupon
           the
           Defendants
           appear
           ,
           and
           go
           to
           Tryal
           ;
           but
           the
           Abbot
           and
           Monk
           get
           a
           Verdict
           and
           Judgment
           to
           recover
           1000
           Marks
           damages
           ,
           Co.
           2.
           
           Inst.
           638.
           
           But
           it
           is
           certain
           ,
           that
           a
           Writ
           of
           Conspiracy
           cannot
           lye
           except
           the
           Plaintiff
           had
           been
           
             Legitimo
             modo
             acquietatus
          
           ,
           and
           that
           he
           could
           not
           be
           ,
           if
           the
           whole
           Proceedings
           upon
           the
           Appeal
           had
           been
           
             Coram
             non
             Judice
          
           .
           So
           if
           at
           the
           Common
           Law
           a
           Clergy-man
           had
           been
           Indicted
           of
           Felony
           ,
           and
           had
           confessed
           the
           Fact
           in
           Court
           ,
           he
           could
           not
           have
           had
           the
           benefit
           of
           his
           Clergy
           ,
           because
           the
           end
           of
           granting
           it
           ,
           was
           ,
           that
           he
           might
           make
           his
           Purgation
           before
           the
           Spiritual
           Judge
           ,
           but
           that
           he
           could
           not
           after
           he
           had
           confessed
           the
           Fact
           in
           Court.
           
             Co.
             ubi
             supra
             ,
             Stamford
          
           124.
           
           And
           yet
           no
           Confession
           
             coram
             non
             Judice
          
           is
           conclusive
           .
           All
           which
           doth
           evidently
           prove
           ,
           That
           the
           allowance
           of
           those
           Canons
           which
           gave
           the
           first
           birth
           to
           this
           Immunity
           ,
           did
           not
           trench
           to
           the
           prejudice
           of
           Temporal
           Judges
           ,
           so
           as
           to
           bar
           them
           of
           that
           Jurisdiction
           which
           they
           have
           over
           every
           Subject
           by
           the
           Common
           Law
           :
           And
           the
           Nature
           of
           it
           will
           further
           appear
           ,
           if
           we
           take
           into
           consideration
           the
           Third
           Particular
           ,
           which
           is
           this
           :
        
         
           III.
           In
           what
           Cases
           the
           benefit
           of
           Clergy
           was
           allowable
           ,
           and
           in
           what
           not
           ;
           This
           Immunity
           was
           allowed
           in
           England
           long
           before
           any
           Statute
           was
           made
           for
           its
           confirmation
           ;
           it
           was
           allowed
           onely
           in
           such
           cases
           as
           were
           judged
           reasonable
           ,
           but
           never
           in
           full
           satisfaction
           to
           the
           demands
           of
           the
           Clergy
           :
           Kellaway
           .
           7
           H.
           8.
           181.
           b.
           But
           the
           Clergy
           (
           as
           their
           Custom
           then
           was
           )
           were
           willing
           to
           improve
           any
           Concession
           to
           their
           best
           advantage
           ,
           according
           to
           the
           common
           Proverb
           ,
           
             When
             they
             had
             got
             an
             Inch
             ,
             they
             would
             take
             an
             Ell.
          
           And
           to
           that
           end
           did
           with
           a
           great
           deal
           of
           fervency
           and
           zeal
           (
           no
           doubt
           )
           insist
           upon
           their
           Priviledge
           as
           an
           absolute
           Exemption
           from
           all
           Temporal
           Jurisdiction
           ,
           to
           all
           intents
           and
           purposes
           ,
           extending
           to
           all
           Crimes
           and
           Offences
           whatsoever
           ,
           and
           thundring
           out
           Excommunications
           ,
           and
           such
           like
           Maledictions
           ,
           forced
           some
           people
           for
           quietness
           sake
           to
           comply
           with
           them
           ,
           (
           as
           appears
           by
           
             Bracton
             ,
             
             lib.
             fol.
          
           123.
           )
           to
           the
           great
           incouragement
           of
           all
           sorts
           of
           Villanies
           and
           Outrages
           ,
           and
           consequently
           to
           the
           grievous
           oppression
           and
           vexation
           of
           the
           Subject
           :
           for
           this
           assurance
           ,
           or
           at
           least
           hopes
           of
           Impunity
           ,
           let
           loose
           the
           Reigns
           of
           Rapine
           and
           Violence
           ,
           and
           was
           the
           most
           effectual
           course
           that
           could
           be
           taken
           for
           the
           dissolution
           of
           any
           Government
           ,
           and
           the
           utter
           desolation
           and
           ruine
           of
           any
           Country
           whatsoever
           .
           
           To
           give
           a
           check
           to
           this
           exorbitant
           Licentiousness
           ,
           strict
           care
           is
           taken
           by
           the
           Judges
           and
           Magistrates
           ,
           that
           Justice
           be
           duly
           executed
           ,
           and
           Offenders
           legally
           punished
           ;
           and
           therefore
           the
           
             Privilegium
             Clericale
          
           not
           to
           be
           allowed
           in
           any
           Case
           otherwise
           then
           according
           to
           the
           ancient
           Custom
           :
           Hence
           were
           the
           seeds
           of
           Envy
           and
           of
           a
           very
           lasting
           Discord
           between
           Church
           and
           State
           sown
           ;
           nothing
           but
           Animosities
           ,
           Rancour
           ,
           Revenge
           and
           Hatred
           ,
           is
           the
           Subject
           of
           the
           History
           of
           those
           times
           ,
           especially
           the
           time
           of
           
             Thomas
             Beckett
          
           :
           Bulls
           ,
           Citations
           ,
           Excommunications
           ,
           on
           the
           one
           side
           ,
           and
           seising
           of
           Temporalities
           ,
           Imprisonment
           and
           Banishment
           ,
           on
           the
           other
           side
           ,
           were
           the
           Complements
           that
           people
           were
           entertained
           with
           in
           those
           days
           :
           These
           Differences
           grew
           to
           such
           a
           height
           ,
           that
           although
           through
           a
           formal
           Reconciliation
           ,
           both
           Parties
           seemed
           to
           be
           pacified
           ;
           yet
           the
           Root
           of
           the
           Matter
           remaining
           untouched
           ,
           the
           Fewds
           break
           forth
           ,
           and
           the
           Matter
           must
           be
           decided
           by
           Act
           of
           Parliament
           :
           And
           so
           I
           shall
           by
           the
           construction
           of
           these
           old
           Statutes
           ,
           and
           other
           Precedents
           ,
           give
           a
           direct
           Answer
           to
           the
           Question
           .
        
         
           1.
           
           It
           is
           undeniable
           ,
           that
           
             Privilegium
             Clericale
          
           was
           never
           allowed
           to
           any
           that
           were
           Guilty
           of
           
             Crimen
             laesae
             Majestatis
          
           :
           The
           first
           Statute
           that
           we
           find
           among
           the
           Printed
           Statutes
           ,
           which
           doth
           directly
           speak
           of
           it
           ,
           is
           Westm.
           1.
           c.
           2.
           which
           is
           declarative
           of
           the
           Common
           Law
           by
           the
           express
           words
           of
           the
           Statute
           ,
           
             Solonque
             le
             Custom
             avant
             ces
             heures
             use
             ,
          
           but
           faith
           not
           one
           word
           of
           Treason
           ,
           only
           allows
           the
           Priviledge
           in
           Cases
           of
           Felony
           ,
           
             Si
             Clearke
             soit
             prise
             pur
             rette
             de
             Felony
             .
          
           Wherefore
           this
           Statute
           being
           in
           the
           Affirmative
           ,
           determines
           nothing
           concerning
           Treason
           ,
           but
           leaves
           that
           as
           it
           was
           before
           at
           the
           Common
           Law.
           Not
           long
           after
           the
           Clergy
           renewed
           their
           Complaints
           ,
           and
           among
           the
           rest
           ,
           complain
           that
           Secular
           Judges
           have
           passed
           Judgment
           of
           Death
           upon
           men
           within
           Holy
           Orders
           ,
           and
           claim
           their
           Priviledge
           absolutely
           and
           generally
           in
           Articles
           several
           ,
           which
           they
           presented
           to
           the
           King
           in
           Parliament
           .
           To
           this
           they
           receive
           Answer
           by
           the
           Statute
           commonly
           called
           
             Articuli
             Cleri
          
           ,
           in
           these
           words
           :
           
             Clericus
             ad
             Ecclesiam
             confugiens
             pro
             Felonia
             pro
             Immunitate
             Ecclesiastica
             obtinenda
             ,
          
           &c.
           
             gaudebit
             Libertate
             Ecclesiastica
             ,
             juxta
             laudabilem
             consuetudinem
             Regni
             hactenus
             usitatam
             .
          
           This
           being
           an
           Answer
           much
           like
           the
           former
           ,
           did
           not
           sufficiently
           answer
           their
           Desires
           ,
           expressing
           only
           Felony
           ;
           nor
           on
           the
           other
           side
           did
           it
           hinder
           the
           Temporal
           Judges
           from
           proceeding
           against
           them
           ,
           as
           against
           Lay-men
           in
           Cases
           of
           High
           Treason
           ,
           as
           they
           had
           done
           always
           before
           :
           Wherefore
           they
           do
           afterwards
           ,
           viz.
           in
           the
           25th
           of
           E.
           3.
           make
           a
           grievous
           Complaint
           ,
           that
           the
           Kings
           Judges
           had
           given
           Judgment
           of
           High
           Treason
           against
           Houby
           and
           Cibthorp
           ,
           Priests
           ,
           and
           several
           other
           Religious
           Persons
           ,
           whereby
           they
           were
           Hanged
           ,
           Drawn
           and
           Quartered
           ,
           to
           the
           great
           Dishononr
           of
           the
           Church
           ,
           &c.
           
           To
           this
           they
           have
           a
           direct
           Answer
           by
           the
           Statutes
           of
           25
           E.
           3.
           c.
           4
           ,
           &
           5.
           
           Whereby
           (
           reciting
           their
           Complaint
           )
           it
           is
           Enacted
           and
           Declared
           ,
           that
           all
           Clergy-men
           Convicted
           for
           Treason
           or
           Felony
           against
           any
           other
           Person
           than
           the
           Kings
           Majesty
           ,
           shall
           enjoy
           the
           Liberties
           of
           the
           Holy
           Church
           ,
           &c.
           and
           from
           henceforward
           (
           but
           never
           before
           )
           the
           benefit
           of
           Clergy
           was
           allowed
           in
           Petit
           Treason
           ,
           till
           by
           23
           ,
           &
           25
           ,
           &
           32
           H.
           8.
           it
           was
           taken
           away
           ;
           but
           High
           Treason
           is
           excepted
           out
           of
           that
           Statute
           of
           E.
           3.
           and
           therefore
           was
           ever
           since
           punished
           without
           the
           allowance
           of
           Clergy
           as
           it
           was
           before
           :
           And
           accordingly
           the
           Abbot
           of
           Missenden
           was
           Condemned
           to
           be
           Hanged
           ,
           Drawn
           and
           Quartered
           ,
           
             Pro
             contra
             factione
             &
             resectione
             legalis
             monetae
             Angliae
             ,
             Mich.
             coram
             Rege
          
           31
           E.
           3.
           
           Rot.
           55.
           
           And
           it
           is
           taken
           for
           a
           General
           Rule
           ,
           Trin.
           21
           E.
           3.
           
             coram
             Rege
             ,
             Rot.
          
           173.
           
           
             Quod
             privilegium
             Clericale
             non
             competit
             seditioso
             equitanti
             cum
             Armis
             ,
          
           &c.
           
           Thus
           I
           have
           shewn
           that
           in
           the
           Cases
           of
           
             Orleton
             ,
             Merkes
             ,
             Fisher
          
           ,
           and
           Cranmer
           ,
           the
           benefit
           of
           Clergy
           could
           not
           be
           allowed
           by
           the
           Law
           of
           England
           ,
           they
           being
           Cases
           of
           High
           Treason
           .
        
         
           But
           in
           Cases
           of
           Felony
           ,
           the
           benefit
           of
           Clergy
           was
           always
           allowed
           ,
           till
           it
           was
           taken
           away
           in
           Cases
           of
           Murder
           
             ex
             malitia
             praecegitata
          
           ,
           Poysoning
           ,
           Burglary
           ,
           Robbery
           ,
           &c.
           
           by
           the
           1
           &
           6
           Edw.
           6.
           cap.
           12.
           &
           cap.
           10.
           
           This
           is
           sufficient
           for
           this
           Point
           .
        
         
           IV.
           The
           Fourth
           Question
           ,
           At
           what
           time
           the
           benefit
           of
           Clergy
           ought
           to
           be
           pleaded
           or
           demanded
           ?
           comes
           to
           be
           examined
           .
           I
           conceive
           ,
           that
           the
           common
           practice
           both
           before
           and
           after
           the
           Statute
           of
           Westm.
           1.
           was
           to
           deliver
           them
           to
           the
           Ordinary
           after
           Conviction
           ,
           and
           therefore
           they
           would
           not
           suffer
           them
           to
           demand
           it
           before
           :
           My
           Reason
           is
           ,
           because
           the
           Statute
           of
           Westm.
           saith
           thus
           ;
           
             Si
             Clearke
             soit
             prise
             pur
             rette
             de
             felony
             ,
             &
             si
             il
             soit
             per
             l'
             Ordinarie
             demand
             ,
             il
             luy
             soit
             livere
             solonque
             la
             priviledge
             de
             Saint
             Eccl
          
           '
           &c.
           
             solonque
             le
             custom
             avant
             ses
             lieures
             use
             .
          
           This
           Statute
           grants
           no
           new
           Priviledge
           ,
           but
           confirms
           only
           that
           which
           they
           had
           before
           :
           And
           as
           for
           the
           time
           of
           allowing
           the
           Priviledge
           ,
           the
           words
           of
           the
           Statute
           are
           so
           ambiguous
           ,
           that
           it
           is
           very
           hard
           to
           determine
           the
           Question
           from
           thence
           ;
           only
           the
           Statute
           refers
           it
           to
           the
           Custom
           of
           the
           former
           Ages
           :
           for
           the
           Priviledge
           of
           the
           Holy
           Church
           is
           to
           be
           allowed
           
             solonque
             le
             custom
          
           ,
           &c.
           
           Now
           all
           the
           Judges
           of
           England
           did
           after
           this
           Statute
           determine
           ,
           that
           they
           would
           not
           deliver
           any
           Prisoner
           to
           the
           Ordinary
           till
           he
           was
           first
           Indicted
           ,
           and
           also
           thereupon
           Arraigned
           ,
           and
           till
           it
           was
           Inquired
           by
           an
           Inquest
           upon
           his
           Arraignment
           ,
           whether
           he
           were
           Guilty
           or
           not
           Guilty
           ;
           if
           not
           Guilty
           ,
           then
           he
           was
           discharged
           without
           any
           more
           ado
           ;
           but
           if
           Guilty
           ,
           his
           Goods
           and
           Chattels
           ,
           Lands
           and
           Tenements
           were
           forfeited
           ,
           and
           his
           Body
           delivered
           to
           the
           Ordinary
           :
           So
           saith
           Britton
           ,
           cap.
           4.
           f.
           11.
           
           
             Si
             Clearke
             encoupe
             de
             felony
             allegga
             Clergie
             ,
             &
             soit
             per
             l'
             Ordinarie
             demand
             ,
             donque
             serra
             enquise
             comment
             il
             est
             miscrue
          
           (
           
             i.
             culpable
          
           )
           
             &
             sil
             est
             trovenient
             miscrue
             donque
             il
             aleraquite
             .
             Et
             sil
             soit
             &
             trove
             miscrue
             ,
             ses
             Chateux
             serroient
             taxes
             ,
             &
             ses
             terres
             prises
             in
             maine
             le
             Roy
             ,
             &
             sen
             corps
             deliver
             al
             Ordinarie
             .
          
           The
           same
           you
           will
           find
           in
           the
           
             Mirr
             .
             c.
          
           3.
           
           Co.
           2.
           
           Inst.
           164.
           in
           his
           Exposition
           upon
           that
           Statute
           ;
           and
           Stamford
           131.
           
           And
           this
           we
           must
           suppose
           to
           have
           been
           the
           practice
           before
           the
           Statute
           ;
           because
           the
           Statute
           appoints
           the
           ancient
           Custom
           to
           be
           observed
           ,
           and
           there
           were
           none
           that
           knew
           the
           ancient
           Custom
           so
           well
           as
           the
           Judges
           of
           those
           times
           ;
           and
           therefore
           this
           determination
           of
           the
           Judges
           was
           either
           according
           to
           the
           Custom
           
             avant
             ses
             heures
             use
          
           (
           as
           the
           Statute
           speaks
           )
           or
           else
           it
           was
           not
           according
           to
           Law
           :
           but
           that
           is
           absurd
           ,
           especially
           seeing
           it
           was
           not
           only
           one
           resolution
           ,
           but
           the
           constant
           practice
           ever
           since
           ;
           for
           in
           the
           Record
           of
           all
           Indictments
           of
           Clergy-men
           ,
           if
           they
           refused
           to
           answer
           ,
           but
           pleaded
           their
           
             Privilegium
             Clericale
          
           ,
           and
           were
           demanded
           by
           their
           Ordinary
           ;
           the
           Record
           is
           entred
           —
           
             Sed
             ut
             sciatur
             qualis
             ei
             liberari
             deberat
             ,
          
           (
           i.
           whether
           Guilty
           or
           not
           Guilty
           )
           
             inquiratur
             inde
             rei
             veritas
             per
             patriam
             .
          
           And
           in
           the
           Year-Books
           we
           have
           multitudes
           of
           Cases
           that
           do
           prove
           it
           ,
           as
           you
           may
           see
           in
           the
           Margent
           ;
           
           the
           same
           is
           proved
           by
           the
           fore-mentioned
           Record
           of
           the
           Bishop
           of
           Ely
           ,
           30
           E.
           3.
           
           And
           there
           is
           a
           like
           Case
           ,
           40
           E.
           3.
           
           
             Fitz.
             Tit.
             Cor.
          
           91.
           
           And
           the
           Statute
           of
           25
           E.
           3.
           c.
           4.
           saith
           expresly
           ,
           That
           all
           Clergy-men
           Convict
           of
           Treason
           and
           Felony
           ,
           &c.
           
           Which
           intimates
           that
           Clergy
           was
           not
           to
           be
           allowed
           till
           after
           Conviction
           .
           And
           so
           I
           have
           answered
           what
           ever
           they
           can
           object
           against
           the
           above-cited
           Authorities
           and
           Precedents
           from
           the
           benefit
           of
           Clergy
           ;
           and
           therefore
           shall
           now
           briefly
           consider
           the
           two
           last
           Particulars
           .
        
         
           V.
           In
           the
           fifth
           place
           I
           am
           to
           consider
           ,
           Upon
           what
           account
           it
           was
           that
           Clergy-men
           were
           delivered
           to
           their
           Ordinaries
           ,
           in
           those
           Cases
           where
           the
           benefit
           of
           Clergy
           was
           not
           allowed
           :
           The
           delivering
           of
           a
           Clerk
           Convict
           to
           his
           Ordinary
           ,
           could
           be
           only
           for
           these
           ends
           ,
           either
           that
           he
           might
           make
           his
           Purgation
           before
           his
           Spiritual
           Judge
           ,
           or
           that
           the
           Ordinary
           might
           Degrade
           him
           ,
           and
           then
           deliver
           him
           over
           to
           the
           Secular
           Power
           ,
           to
           be
           punished
           according
           to
           Law
           as
           a
           Lay-man
           ,
           lest
           Scandal
           and
           Indignity
           should
           be
           put
           upon
           the
           Church
           :
           The
           former
           is
           onely
           in
           Cases
           where
           Clergy
           is
           allowed
           ;
           for
           where
           there
           is
           no
           Clergy
           ,
           there
           can
           be
           no
           Purgation
           :
           The
           latter
           is
           ,
           where
           no
           Clergy
           can
           be
           allowed
           :
           The
           former
           is
           
             de
             Jure
          
           ,
           and
           cannot
           be
           denied
           .
           I
           do
           not
           mean
           
             Jure
             Canonico
          
           ,
           but
           is
           a
           Custom
           which
           hath
           been
           allowed
           time
           out
           of
           mind
           ,
           and
           confirmed
           by
           several
           Acts
           of
           Parliament
           ;
           and
           for
           that
           reason
           only
           ,
           I
           say
           ,
           it
           is
           
             de
             Jure
          
           .
           
           The
           latter
           is
           ,
           
             de
             Gratia
          
           ,
           and
           Arbitrary
           ;
           for
           our
           Judges
           have
           had
           such
           an
           Honour
           and
           Esteem
           for
           the
           Dignity
           of
           a
           Priest
           ,
           that
           they
           usually
           did
           deliver
           them
           to
           the
           Bishop
           to
           be
           Degraded
           ,
           before
           the
           Sentence
           of
           Law
           was
           executed
           upon
           them
           .
           So
           it
           is
           in
           all
           Cases
           of
           High
           
           Treason
           ,
           for
           there
           being
           no
           room
           for
           Purgation
           ,
           the
           Judges
           are
           not
           at
           all
           obliged
           to
           deliver
           him
           ,
           but
           out
           of
           favour
           they
           were
           wont
           to
           do
           it
           ,
           to
           the
           end
           he
           might
           be
           Degraded
           ;
           and
           if
           that
           Custom
           were
           still
           observed
           ,
           there
           were
           no
           great
           harm
           in
           it
           :
           yet
           in
           Trin.
           24.
           
           H.
           8.
           in
           Spilmans
           Reports
           we
           have
           a
           Case
           of
           one
           
             George
             Nobles
          
           a
           Priest
           ,
           who
           was
           Convicted
           at
           the
           Gaol
           delivery
           of
           Newgate
           ,
           of
           Clipping
           the
           Kings
           Coin
           ;
           and
           by
           the
           Resolution
           of
           all
           the
           Judges
           ,
           they
           passed
           Sentence
           of
           Death
           upon
           him
           before
           any
           Degradation
           ,
           and
           he
           was
           accordingly
           Executed
           in
           his
           Canonical
           Vestments
           .
           In
           a
           Record
           upon
           the
           Parliament
           ,
           Roll
           21
           E.
           1.
           
           Rot.
           9.
           it
           is
           to
           be
           found
           ,
           that
           one
           
             Walter
             ,
             de
             Berton
          
           was
           Convicted
           of
           Counterfeiting
           the
           great
           Seal
           ;
           but
           the
           Record
           saith
           ,
           
             Qui
             convictus
             tradatur
             Episcopo
             Sarum
             qui
             eum
             petiit
             ut
             Clericum
             suum
             sed
             sub
             pena
             ,
          
           &c.
           
             &
             sub
             forma
             qua
             decet
             quia
             videtur
             Concilio
             quod
             in
             tali
             casu
             non
             admittenda
             est
             purgatio
             .
          
           Here
           it
           appears
           a
           person
           Convicted
           was
           delivered
           to
           his
           Ordinary
           in
           case
           where
           there
           could
           be
           no
           Purgation
           ;
           and
           so
           no
           benefit
           of
           Clergy
           ;
           and
           therefore
           it
           is
           evident
           that
           it
           was
           to
           the
           end
           he
           should
           be
           Degraded
           ,
           and
           upon
           that
           the
           Delivery
           is
           with
           a
           Subpoena
           ,
           which
           can
           be
           understood
           no
           otherwise
           but
           that
           he
           should
           re-deliver
           him
           .
        
         
           VI.
           As
           to
           the
           last
           point
           ,
           at
           what
           time
           they
           ought
           to
           be
           Degraded
           ,
           may
           be
           determined
           partly
           from
           what
           hath
           been
           said
           already
           ;
           for
           the
           end
           of
           Degradation
           ,
           is
           only
           to
           prevent
           that
           Scandal
           and
           Irreverence
           which
           would
           otherwise
           be
           thrown
           upon
           that
           honourable
           Profession
           ,
           which
           all
           sober
           and
           true
           Christians
           are
           very
           tender
           of
           :
           And
           certainly
           there
           cannot
           regularly
           be
           any
           Deprivation
           or
           Degradation
           before
           Conviction
           ;
           for
           no
           Clerk
           can
           be
           Deprived
           or
           Degraded
           of
           any
           Benefice
           or
           Dignity
           ,
           except
           upon
           full
           Evidence
           he
           be
           found
           such
           and
           such
           a
           person
           as
           is
           uncapable
           of
           enjoying
           it
           .
           And
           as
           a
           Bishop
           cannot
           refuse
           a
           Clerk
           presented
           ,
           except
           there
           be
           special
           cause
           for
           it
           ,
           as
           criminosus
           ,
           &c.
           so
           neither
           can
           he
           deprive
           one
           that
           is
           already
           Inducted
           without
           special
           cause
           ;
           and
           in
           any
           Court
           of
           Record
           the
           Cause
           must
           be
           specially
           pleaded
           ,
           because
           it
           is
           Traversable
           ,
           
             Co.
             lib.
          
           5.
           2.
           
             part
             .
             fol.
          
           58.
           
           Specots
           Case
           .
           Suppose
           then
           that
           any
           Ecclesiastical
           Person
           is
           Arrested
           for
           Treason
           ,
           the
           Ordinary
           cannot
           deprive
           him
           ,
           except
           he
           first
           pass
           Sentence
           upon
           him
           ,
           that
           he
           is
           criminosus
           ;
           but
           he
           cannot
           pass
           Sentence
           of
           Deprivation
           upon
           him
           ,
           while
           he
           is
           under
           the
           Custody
           of
           the
           Temporal
           Magistrate
           ,
           and
           before
           he
           is
           delivered
           to
           him
           ;
           for
           it
           is
           the
           greatest
           piece
           of
           Injustice
           in
           the
           World
           ,
           to
           Condemn
           a
           man
           before
           he
           be
           heard
           :
           indeed
           our
           Law
           allows
           that
           in
           case
           of
           Outlawry
           ,
           but
           that
           is
           when
           he
           may
           appear
           ,
           and
           yet
           after
           Five
           solemn
           Proclamations
           ,
           will
           not
           ;
           but
           it
           is
           against
           the
           Law
           of
           Reason
           ,
           and
           the
           Laws
           of
           all
           Nations
           ,
           to
           Condemn
           a
           man
           that
           is
           absent
           ,
           when
           at
           the
           same
           time
           they
           know
           he
           cannot
           appear
           ;
           and
           therefore
           no
           Clerk
           can
           be
           deprived
           till
           he
           be
           delivered
           by
           the
           Temporal
           Judge
           :
           and
           I
           have
           already
           proved
           that
           there
           can
           be
           no
           Delivery
           till
           after
           Conviction
           ;
           so
           that
           it
           doth
           necessarily
           follow
           ,
           that
           there
           can
           be
           no
           Deprivation
           till
           after
           Conviction
           ;
           and
           for
           further
           confirmation
           ,
           see
           
             Ridley
             ,
             ubi
             supra
             ,
             Bracton
             .
             lib.
          
           3.
           fol.
           123.
           
           
             Clericus
             ,
             Ordinario
             traditus
             si
             in
             purgatione
             defecerit
             ,
             degradari
             debet
          
           ;
           
             Fle●●
             lib.
          
           6.
           c.
           36.
           
           
             Degradare
             potest
             Episcopus
             criminum
             convictos
          
           .
           Whereby
           it
           appears
           ,
           first
           ,
           That
           before
           Degradation
           ,
           they
           must
           be
           allowed
           the
           benefit
           of
           making
           their
           Purgation
           ,
           if
           they
           can
           ,
           and
           that
           they
           have
           not
           except
           they
           be
           present
           when
           they
           are
           Condemned
           .
           2ly
           ,
           That
           they
           must
           be
           Traditi
           or
           Convicti
           before
           Deprivation
           .
        
         
           The
           Case
           of
           a
           Bishop
           seems
           parallel
           to
           the
           Case
           of
           any
           other
           Clerk
           ;
           for
           the
           King
           is
           Patron
           of
           all
           the
           Archbishopricks
           and
           Bishopricks
           of
           England
           ,
           they
           being
           all
           of
           his
           and
           his
           Progenitors
           Foundation
           :
           They
           must
           either
           therefore
           be
           Donative
           or
           Eligible
           ;
           before
           King
           
           John's
           time
           they
           were
           Donative
           ;
           
             per
             traditionem
             Annuli
             &
             Pastoralis
             baculi
             :
          
           But
           he
           by
           his
           Charter
           15.
           
           
             Jan.
             Anno
             Regni
          
           17.
           granted
           that
           they
           should
           be
           Eligible
           ,
           and
           therefore
           were
           made
           to
           be
           in
           the
           nature
           of
           Advowsons
           presentable
           :
           when
           therefore
           the
           King
           did
           nominate
           or
           present
           such
           a
           person
           to
           the
           Bishoprick
           ,
           that
           person
           could
           not
           be
           refused
           without
           some
           special
           cause
           of
           refusal
           ;
           but
           if
           it
           did
           appear
           that
           he
           was
           either
           Infamous
           ,
           Irreligious
           ,
           Schismatick
           ,
           Heretick
           ,
           Miscreant
           ,
           Infidel
           ,
           
             mere
             laicus
          
           ,
           &c.
           
           I
           conceive
           he
           might
           well
           be
           refused
           ;
           or
           else
           to
           what
           purpose
           issued
           forth
           the
           
             Conge
             d'eslier
          
           ?
           What
           signified
           King
           
           John's
           making
           them
           Eligible
           ?
           And
           therefore
           there
           being
           the
           same
           Reason
           and
           Law
           of
           Degradation
           or
           Deprivation
           
           after
           actual
           Investiture
           ,
           that
           there
           is
           of
           refusal
           before
           :
           I
           infer
           there
           can
           be
           no
           Deprivation
           of
           a
           Bishop
           without
           Cause
           ,
           and
           that
           Cause
           cannot
           be
           adjudged
           to
           be
           in
           him
           before
           he
           be
           heard
           ,
           and
           have
           the
           Justice
           to
           defend
           himself
           as
           well
           as
           he
           can
           ,
           allowed
           him
           ;
           and
           consequently
           no
           Deprivation
           till
           after
           delivery
           out
           of
           the
           hands
           of
           the
           Secular
           Power
           ,
           which
           is
           in
           no
           case
           till
           after
           Conviction
           .
           These
           Particulars
           explained
           and
           proved
           ,
           will
           satisfie
           all
           those
           whose
           Sentiments
           are
           regulated
           according
           to
           the
           Standard
           of
           Reason
           ,
           that
           there
           is
           no
           strength
           in
           any
           of
           those
           Objections
           which
           some
           ignorant
           people
           do
           so
           much
           insist
           upon
           .
        
         
           Having
           thus
           by
           the
           Rules
           of
           Law
           ,
           the
           Authority
           of
           the
           most
           Renowned
           Authors
           ,
           and
           Variety
           of
           Precedents
           ,
           proved
           ,
           That
           a
           Bishop
           is
           no
           Peer
           ,
           in
           respect
           to
           a
           Temporal
           Lord
           ,
           within
           the
           intent
           and
           meaning
           of
           the
           29th
           of
           
             Magna
             Charta
          
           :
           It
           doth
           naturally
           follow
           ,
           that
           he
           hath
           no
           Right
           to
           claim
           any
           Jurisdiction
           or
           Right
           of
           Judicature
           upon
           the
           Life
           and
           Death
           of
           a
           Temporal
           Lord
           ;
           for
           otherwise
           he
           might
           suffer
           Death
           or
           Banishment
           ,
           or
           Imprisonment
           ,
           by
           the
           Judgment
           of
           those
           who
           are
           not
           his
           Peers
           ,
           contrary
           to
           the
           Fundamental
           Laws
           of
           England
           ,
           and
           the
           Liberties
           of
           every
           Subject
           .
           And
           thus
           I
           conclude
           the
           first
           Point
           .
        
         
           The
           second
           Point
           that
           I
           offered
           to
           demonstrate
           ,
           is
           ,
           That
           the
           Bishops
           Votings
           in
           Capital
           Cases
           ,
           is
           contrary
           to
           the
           practice
           of
           all
           Ages
           untill
           this
           day
           .
        
         
           In
           the
           first
           place
           ,
           Let
           us
           examine
           how
           it
           was
           before
           the
           Reign
           of
           Henry
           the
           Second
           :
           It
           must
           not
           be
           expected
           that
           this
           should
           be
           proved
           from
           the
           Records
           and
           Journals
           upon
           the
           Parliament
           Rolls
           ,
           for
           their
           Antiquity
           will
           not
           reach
           so
           high
           as
           to
           do
           any
           considerable
           Service
           in
           this
           matter
           ;
           but
           I
           shall
           give
           the
           same
           proof
           for
           this
           ,
           that
           any
           man
           can
           give
           for
           Tryals
           by
           Juries
           before
           
             Magna
             Charta
          
           ;
           that
           is
           ,
           an
           Act
           of
           Parliament
           making
           Recognition
           of
           several
           ancient
           Customs
           practised
           beyond
           the
           Memory
           of
           those
           that
           then
           lived
           ;
           and
           that
           I
           hope
           will
           be
           sufficient
           Evidence
           :
           The
           Statute
           that
           I
           mean
           ,
           was
           made
           at
           that
           Great
           Parliament
           which
           was
           held
           at
           Clarendon
           ,
           the
           10
           ,
           &
           11
           of
           H.
           2.
           
           
             Anno
             Dom.
          
           1164.
           
           In
           the
           Preamble
           it
           is
           ,
           
             Recognizantur
             Advice
             consuetudines
          
           ,
           which
           proves
           it
           is
           declarative
           of
           the
           Common
           Law.
           The
           Eleventh
           Article
           runs
           in
           this
           manner
           ,
           
             Archiepiscopi
             ,
             Episcopi
             ,
             &
             universa
             persona
          
           (
           holding
           any
           Ecclesiastical
           Dignity
           )
           
             qui
             de
             Rege
             tenent
             in
             Capite
             ,
             habeant
             possessiones
             suas
             de
             Rege
             sicut
             Baroniam
             ,
             &
             inde
             respondeant
             Justiciariis
             &
             Ministris
             Regis
             ,
             &
             sequantur
             &
             faciant
             omnes
             consuetudines
             Regias
             ,
             &
             sicut
             caeteri
             Barones
             debeant
             interesse
             judiciis
             curiae
             Regis
             cum
             Baronibus
             quousque
             perveniatur
             ad
             diminutionem
             membrorum
             vel
             ad
             mortem
             .
          
           Here
           is
           their
           Jurisdiction
           expresly
           limited
           ,
           that
           it
           shall
           not
           extend
           
             ad
             diminutionem
             membrorum
             vel
             ad
             mortem
             .
          
           And
           this
           Act
           of
           Parliament
           is
           declarative
           of
           the
           Common
           Law
           ,
           as
           appears
           by
           the
           Preamble
           ,
           and
           the
           construction
           of
           most
           Authors
           that
           mention
           it
           .
           
             In
             this
          
           (
           saith
           Doderidge
           )
           
             certain
             Recapitulations
             are
             made
             of
             the
             Kings
             Prerogative
             and
             his
             Peoples
             Right
             ,
             then
             sought
             to
             be
             infringed
             by
             the
             Pope
             and
             his
             Clergy
             .
          
           So
           saith
           my
           Lord
           Cook
           ,
           2.
           
           Inst.
           631.
           and
           
             Selden
             ,
             Titles
             of
             Honour
          
           ,
           582.
           
           Seeing
           therefore
           there
           can
           be
           no
           time
           assigned
           when
           this
           ancient
           Custom
           which
           is
           here
           recapitulated
           ,
           was
           not
           ,
           consequently
           this
           limitation
           must
           be
           supposed
           ▪
           to
           be
           as
           ancient
           as
           their
           sitting
           in
           the
           House
           of
           Lords
           :
           But
           to
           prove
           that
           this
           Constitution
           of
           Clarendon
           (
           as
           some
           call
           it
           )
           is
           an
           Act
           of
           Parliament
           ;
           
             Matthew
             Paris
          
           saith
           ,
           
             Praesentibus
             etiam
             Archiepiscopis
             ,
             Episcopis
             ,
             Abbatibus
             ,
             Prioribus
             ,
             Comitibus
             ,
             Baronibus
             &
             Proceribus
             Regni
             .
             Roger
          
           of
           Hoveden
           saith
           expresly
           ,
           that
           
             Clerus
             &
             Populus
             Regni
          
           were
           then
           assembled
           ,
           and
           so
           mentions
           it
           as
           a
           full
           Parliament
           .
           
             Goldastus
             Constit
             .
             Imper.
             Tom.
          
           3.
           347.
           saith
           ,
           There
           were
           added
           to
           the
           Clergy
           ,
           
             Nobiliores
             &
             Antiquiores
             Regni
             .
             Fitz
             Stephens
          
           calls
           it
           ,
           
             Generale
             Concilium
          
           .
           And
           lastly
           ,
           our
           Common
           Lawyers
           do
           take
           it
           for
           granted
           and
           undisputable
           .
           My
           Lord
           
             Cook
             in
          
           2.
           
           Inst.
           631
           ,
           and
           638.
           calls
           it
           ,
           
             The
             great
             Parliament
             that
             was
             held
             at
          
           Clarendon
           :
           So
           Bracton
           ,
           lib.
           3.
           f.
           136.
           
           And
           this
           very
           Article
           above-mentioned
           is
           in
           all
           the
           said
           Authors
           ;
           and
           likewise
           in
           Roger
           of
           Wendover
           :
           but
           that
           which
           is
           most
           considerable
           ,
           is
           ,
           that
           we
           have
           
             Gervasius
             Doroberniensis
          
           ,
           an
           Author
           that
           lived
           in
           that
           Age
           ,
           and
           a
           Person
           within
           Holy
           Orders
           too
           ,
           reckoning
           this
           very
           Article
           among
           the
           Laws
           that
           were
           made
           at
           that
           Parliament
           ,
           in
           the
           68.
           
           Page
           of
           his
           Book
           .
           But
           admitting
           it
           were
           no
           Parliament
           ,
           but
           only
           a
           great
           Councel
           of
           Peers
           ;
           yet
           that
           is
           as
           well
           for
           my
           purpose
           ,
           because
           that
           the
           
           Proceedings
           of
           such
           a
           Council
           are
           Matters
           of
           Record
           ,
           and
           therefore
           a
           Recognition
           or
           Declaration
           of
           ancient
           Customs
           ,
           and
           of
           the
           Common
           Law
           made
           in
           such
           a
           Council
           ,
           is
           as
           undeniable
           proof
           ,
           as
           if
           it
           were
           a
           Declaratory
           Act
           of
           Parliament
           ;
           for
           the
           force
           of
           such
           an
           Act
           is
           only
           in
           point
           of
           Evidence
           ,
           and
           doth
           not
           Enact
           or
           Constitute
           any
           new
           Law.
           But
           as
           there
           is
           no
           question
           but
           that
           it
           is
           an
           Act
           of
           Parliament
           ,
           the
           Assembly
           being
           
             a
             Generale
          
           ,
           or
           
             Commune
             Concilium
          
           ,
           which
           is
           always
           understood
           of
           
             the
             Parliament
          
           ,
           
             Co.
             Inst.
          
           110.
           a.
           So
           except
           it
           can
           be
           proved
           this
           Statute
           was
           repealed
           ,
           I
           have
           made
           good
           my
           Assertion
           ,
           without
           saying
           any
           more
           ;
           for
           admitting
           that
           it
           had
           not
           been
           so
           frequently
           practised
           ,
           as
           I
           in
           his
           proper
           place
           shall
           make
           appear
           it
           was
           ;
           yet
           still
           it
           is
           valid
           and
           a
           standing
           Law
           :
           for
           no
           Statute
           loseth
           its
           force
           by
           
             Non-user
             ,
             Co.
          
           1.
           
           Inst.
           114.
           although
           Common
           Law
           ,
           or
           particular
           Customs
           ,
           may
           .
        
         
           But
           this
           Statute
           we
           find
           was
           afterward
           confirmed
           :
           for
           saith
           
             Roger
             de
             Hoveden
          
           a
           Monk
           ,
           p.
           30.
           
           It
           was
           Ordained
           in
           a
           Councel
           at
           Westm.
           That
           no
           Clergy-man
           should
           
             Agitare
             Judicium
          
           ,
           &c.
           and
           he
           that
           did
           ,
           was
           to
           be
           deprived
           of
           his
           Dignity
           and
           Orders
           .
        
         
           That
           these
           Constitutions
           were
           punctually
           observed
           in
           after
           Ages
           ,
           is
           the
           next
           thing
           to
           be
           proved
           :
           And
           the
           first
           that
           I
           shall
           mention
           ,
           is
           the
           Judgment
           against
           the
           Spencers
           ,
           15
           E.
           2.
           
           The
           Lords
           Spiritual
           did
           withdraw
           ,
           as
           in
           right
           they
           ought
           .
           These
           Spencers
           were
           men
           that
           were
           great
           Favourites
           of
           that
           King
           ;
           for
           they
           had
           succeeded
           
             Peter
             Gaveston
          
           both
           in
           the
           Kings
           Favour
           ,
           and
           in
           Places
           of
           Profit
           and
           Trust
           about
           Court
           :
           and
           although
           the
           Lords
           had
           then
           prevailed
           with
           the
           King
           to
           consent
           to
           an
           Act
           of
           Parliament
           for
           their
           Banishment
           ,
           yet
           afterward
           the
           Tide
           turned
           ,
           the
           Spencers
           were
           called
           again
           to
           Court
           ,
           and
           their
           Enemies
           severally
           prosecuted
           ;
           whereupon
           the
           greatest
           part
           of
           them
           departed
           from
           Court
           ,
           and
           through
           the
           Interests
           which
           the
           Spencers
           had
           with
           the
           remaining
           Lords
           ,
           the
           Judgment
           which
           stood
           upon
           Record
           against
           them
           was
           reversed
           for
           several
           Errors
           ;
           one
           of
           which
           was
           ,
           
             The
             absence
             of
             the
             Prelates
          
           :
           but
           notwithstanding
           this
           ,
           the
           Judgment
           is
           afterward
           Affirmed
           by
           an
           Act
           of
           Parliament
           ,
           in
           the
           first
           year
           of
           the
           succeeding
           King
           :
           Vide
           1
           E.
           3.
           c.
           1
           ,
           &
           2.
           
        
         
           And
           that
           the
           Absence
           of
           the
           Prelates
           is
           no
           cause
           of
           Reversing
           a
           Judgment
           ,
           see
           the
           Case
           of
           the
           Earl
           of
           Salisbury
           ;
           who
           in
           the
           2
           of
           H.
           5.
           petitioned
           the
           House
           of
           Lords
           to
           Reverse
           a
           Judgment
           that
           was
           given
           against
           the
           Earl
           his
           Father
           ,
           An.
           2.
           
           H.
           4.
           and
           Assigns
           for
           Error
           ,
           That
           the
           Lords
           Spiritual
           were
           absent
           :
           The
           Case
           was
           very
           much
           Debated
           ,
           and
           at
           last
           it
           was
           adjudged
           no
           Error
           ;
           and
           accordingly
           the
           Judgment
           was
           Affirmed
           .
           But
           of
           this
           I
           shall
           have
           occasion
           to
           treat
           more
           at
           large
           by
           and
           by
           :
           See
           Cotton
           ,
           539.
           
        
         
           Anno
           4
           E.
           3.
           
           In
           the
           Parliament
           at
           
             Winchester
             ,
             Die
             Lunepost
             Festum
             Sancti
          
           Gregorii
           ,
           The
           Earl
           of
           Kent
           was
           brought
           before
           the
           
             Counts
             ,
             Barons
             &
             autres
             Grandees
             &
             Nobles
             ,
             in
             mesme
             le
             Parliament
             ,
          
           &c.
           for
           Treason
           ,
           
             ders
             .
             claus
             .
             n.
          
           38.
           
        
         
           
             Anno
             eodem
          
           ,
           in
           the
           Parliament
           at
           
             Westm.
             post
             Festum
             Sanctae
             Katherinae
          
           ;
           The
           Articles
           of
           Treason
           being
           read
           against
           Montimer
           Earl
           of
           March
           ,
           That
           he
           had
           procured
           the
           Death
           of
           the
           late
           King
           ,
           and
           had
           under-hand-dealing
           with
           the
           Scots
           at
           
             Stanhope
             Park
          
           ,
           and
           had
           been
           too
           familiar
           with
           the
           Queen-Mother
           ,
           by
           whom
           she
           was
           thought
           to
           have
           been
           with
           Child
           ,
           &c.
           
           The
           King
           charged
           
             Les
             Counts
             ,
             &
             Barons
             ,
             les
             Peers
             de
             son
             Royaume
             ,
          
           to
           give
           Judgment
           :
           And
           then
           it
           follows
           ,
           that
           Judgment
           was
           given
           
             Per
             les
             dits
             Counts
             &
             Barons
             les
             Peers
             de
             Royaume
             ,
             come
             Judges
             du
             Parliament
             .
          
        
         
           Ibid.
           The
           King
           commanded
           
             Les
             dits
             Counts
             &
             Barons
             ,
             Peers
             ,
          
           &c.
           to
           give
           Judgment
           on
           
             Simon
             de
             Bereford
          
           .
        
         
           Ibid.
           The
           King
           commanded
           the
           same
           against
           several
           others
           ,
           and
           accordingly
           
             John
             Matravers
          
           was
           judged
           
             Per
             les
             Peers
             ,
             Counts
             ,
             &
             Barons
             ,
             assembles
             in
             Parliament
             .
          
           And
           so
           were
           Four
           others
           in
           the
           same
           Parliament
           ,
           all
           for
           Treason
           ;
           and
           not
           one
           word
           of
           the
           Prelates
           ,
           either
           when
           the
           Articles
           were
           read
           ,
           or
           when
           Judgment
           was
           given
           :
           For
           it
           is
           certain
           ,
           they
           are
           never
           spoken
           of
           in
           any
           Record
           ,
           but
           either
           by
           the
           Name
           of
           
             Archiepiscopi
             ,
             Episcopi
          
           ,
           &c.
           or
           Prelati
           ,
           or
           some
           such
           Name
           which
           doth
           distinguish
           them
           from
           the
           Laity
           ;
           and
           if
           they
           be
           spoken
           of
           ,
           they
           are
           always
           first
           named
           and
           put
           before
           
             Les
             Counts
             &
             Barons
          
           ;
           as
           at
           this
           day
           ,
           the
           Records
           are
           Entred
           by
           the
           
             Lords
             Spiritual
             and
             Temporal
          
           ,
           &c.
           
           And
           for
           these
           two
           Reasons
           they
           could
           not
           be
           comprehended
           
           under
           the
           General
           words
           ,
           
             Et
             autres
             Grandees
             &
             Nobles
          
           .
        
         
           Anno
           6
           E.
           3.
           
           
             Post
             Festum
             Sancti
             Gregorii
          
           ;
           The
           Parliament
           were
           commanded
           to
           consult
           of
           the
           keeping
           of
           the
           Peace
           ,
           and
           punishments
           for
           the
           Breakers
           thereof
           ;
           and
           the
           Prelates
           departed
           
             Pur
             ceo
             que
             il
             ne
             attinet
             pass
             a
             eux
             Consailer
             du
             gard
             de
             la
             Paix
             ne
             de
             chastement
             de
             tiels
             Malefactors
             :
          
           Yet
           afterward
           they
           came
           and
           gave
           their
           Assent
           to
           an
           Act
           of
           Parliament
           for
           this
           purpose
           :
           The
           reason
           of
           which
           shall
           be
           considered
           in
           another
           place
           ,
           where
           we
           shall
           discourse
           of
           their
           Voting
           in
           Bills
           of
           Attainder
           .
           By
           this
           Record
           it
           is
           evident
           ,
           That
           the
           Prelates
           have
           no
           Judicial
           Power
           over
           any
           Personal
           Crimes
           ,
           which
           are
           not
           Parliamentary
           ;
           which
           doth
           very
           much
           Fortifie
           the
           Foundation
           and
           Ground
           of
           my
           whole
           Discourse
           .
        
         
           Anno
           1
           R.
           2.
           
           The
           Commons
           prayed
           that
           such
           as
           gave
           up
           Forth
           ,
           &c.
           
             puissent
             estre
             a
             respondre
             a
             cest
             Parliament
             &
             solonque
             lour
             desert
             fortment
             punis
             per
             agard
             des
             Seigniors
             &
             Barons
             .
          
           And
           thereupon
           several
           were
           brought
           before
           the
           Lords
           in
           Parliament
           ,
           which
           must
           be
           understood
           of
           the
           Temporal
           Lords
           onely
           ,
           because
           the
           Spiritual
           Lords
           are
           never
           intended
           in
           any
           Case
           to
           be
           mentioned
           ,
           except
           they
           be
           specially
           named
           .
        
         
           Anno
           11
           R.
           2.
           
           Divers
           Matters
           of
           Treason
           were
           to
           be
           Treated
           of
           ,
           and
           several
           Lords
           to
           be
           Tryed
           ;
           and
           therefore
           the
           Spirituality
           did
           absent
           themselves
           from
           the
           whole
           Parliament
           :
           but
           before
           their
           departure
           ,
           the
           Archbishop
           of
           Canterbury
           ,
           in
           the
           Name
           of
           Himself
           ,
           and
           all
           the
           Clergy
           of
           his
           Province
           ,
           made
           this
           following
           Protestation
           :
        
         
           
             Quod
             Archiepiscopum
             Cantuariensem
             qui
             pro
             tempore
             fuit
             ,
             nec
             non
             caeteros
             suos
             Suffraganeos
             Confratres
             ,
             Co-episcopos
             ,
             Abbates
             &
             Priores
             aliosque
             Prelatos
             quoscunque
             Baronium
             de
             Domino
             Rege
             tenentes
             ,
             in
             Parliamento
             Regis
             ut
             Pares
             personaliter
             interesse
             pertinet
             ,
             ibidemque
             de
             Regni
             negotiis
             &
             aliis
             ibi
             tractari
             consuetis
             cum
             caeteris
             dicti
             Regni
             Paribus
             &
             aliis
             consulere
             ,
             ordinare
             ,
             statuere
             ,
             definire
             ac
             caetera
             facere
             ,
             quae
             Parliamenti
             tempore
             ibid.
             intenditur
             facien
             '
             .
             Quia
             in
             praesenti
             Parliamento
             agitur
             de
             nonnullis
             materiis
             in
             quibus
             non
             licet
             nobis
             juxta
             Sacrorum
             Canonum
             instituta
             quomodolibet
             interesse
             :
             Non
             intendimus
             nec
             volumus
             ,
             sicuti
             de
             jure
             non
             possumus
             nec
             debemus
             :
             Ad
             haec
             insuper
             protestamur
             &
             nostrum
             quilibet
             protestatur
             ,
             quod
             propter
             hujusmodi
             absentiam
             non
             intendimus
             nec
             volumus
             ,
             nec
             nostrum
             aliquis
             intendit
             nec
             vult
             quod
             processus
             habiti
             &
             habendi
             in
             praedict
             '
             Parliamento
             super
             materiis
             aut
             edictis
             in
             quibus
             non
             possumus
             ,
             nec
             debemus
             (
             ut
             praemittitur
             )
             interesse
             quantum
             ad
             nos
             &
             nostrum
             quemlibet
             attinet
             futuris
             temporibus
             quomodolibet
             impagnentur
             ,
             infirmentur
             ,
             seu
             etiam
             renoventur
             .
          
           This
           was
           read
           in
           full
           Parliament
           ,
           and
           inrolled
           at
           the
           Request
           of
           the
           Prelates
           :
           And
           the
           like
           was
           made
           by
           the
           Bishops
           of
           Durham
           and
           Carlisle
           :
           Cotton
           322.
           
           Co.
           2.
           
           Inst.
           586.
           
        
         
           From
           this
           Record
           you
           may
           observe
           :
           
             
               1.
               
               That
               the
               Lords
               Spiritual
               do
               acknowledge
               that
               they
               have
               no
               Right
               to
               be
               present
               in
               Cases
               of
               Blood
               ,
               
                 Nec
                 possumus
                 ,
                 nec
                 de
                 jure
                 debemus
                 .
              
            
             
               2.
               
               You
               may
               observe
               that
               they
               did
               accordingly
               absent
               themselves
               ,
               and
               did
               thereby
               yield
               Obedience
               to
               the
               Parliament
               at
               Clarendon
               ,
               and
               the
               Constitution
               at
               Westm.
               mentioned
               in
               
                 Roger
                 Hoveden
                 ,
                 H.
              
               2.
               
               That
               Clergy-men
               should
               not
               
                 Agitare
                 judicium
                 Sanguinis
              
               ;
               though
               they
               pretended
               it
               was
               in
               Obedience
               to
               the
               Canons
               of
               the
               Church
               .
            
             
               3.
               
               You
               may
               observe
               that
               they
               did
               not
               stay
               in
               the
               House
               till
               they
               came
               to
               the
               final
               Question
               Guilty
               or
               
                 Not
                 guilty
              
               ,
               but
               departed
               at
               the
               first
               beginning
               of
               the
               Business
               ,
               
                 Quia
                 agitur
                 de
                 quibusdam
                 rebus
                 in
                 quibus
                 non
                 licet
                 nobis
                 interesse
                 .
              
               These
               short
               Remarks
               I
               leave
               upon
               it
               at
               present
               ,
               but
               shall
               take
               it
               more
               narrowly
               into
               consideration
               ,
               when
               I
               come
               to
               answer
               their
               Objections
               ,
               and
               shall
               go
               on
               with
               Precedents
               .
            
          
        
         
           In
           the
           Reign
           of
           H.
           4.
           
           The
           Earl
           of
           Northumberland
           was
           suspected
           to
           have
           been
           privy
           to
           the
           Rebellion
           of
           his
           Son
           Hotspur
           ,
           who
           joyned
           with
           Mortimer
           Earl
           of
           March
           ,
           and
           
             Owen
             Glendour
          
           of
           Wales
           ,
           in
           open
           Rebellion
           .
           In
           the
           5
           of
           H.
           4.
           he
           came
           and
           presented
           himself
           to
           the
           King
           and
           Parliament
           ,
           and
           Protested
           his
           Innocency
           ,
           and
           challenged
           his
           
             Jus
             Parietatis
          
           ,
           and
           Right
           of
           Tryal
           by
           his
           Peers
           :
           Whereupon
           the
           Lords
           (
           saith
           the
           Record
           )
           made
           Protestation
           ,
           that
           the
           Judgment
           belonged
           unto
           them
           onely
           ,
           &c.
           
           The
           Petition
           being
           read
           before
           the
           King
           and
           the
           said
           Lords
           ,
           as
           Peers
           of
           Parliament
           ,
           unto
           whom
           such
           Judgments
           do
           of
           Right
           belong
           ,
           considering
           ,
           &c.
           
           Adjudged
           
           that
           it
           was
           neither
           Treason
           ,
           nor
           Felony
           ,
           &c.
           
           This
           was
           the
           first
           Process
           that
           was
           made
           against
           the
           Earl
           ;
           but
           it
           doth
           not
           evidently
           appear
           whether
           they
           were
           present
           or
           absent
           ,
           the
           Roll
           being
           Lords
           indefinitely
           ;
           yet
           it
           is
           most
           probable
           that
           it
           is
           meant
           Temporal
           Lords
           onely
           .
           1.
           
           If
           the
           Spiritual
           Lords
           had
           been
           present
           ,
           they
           would
           have
           been
           named
           by
           a
           special
           Name
           ,
           as
           they
           are
           in
           all
           other
           Rolls
           .
           2.
           
           We
           find
           the
           Lords
           Temporal
           in
           other
           Cases
           of
           Life
           ▪
           and
           Death
           ,
           claiming
           the
           same
           Jurisdiction
           as
           belonging
           to
           them
           onely
           exclusively
           of
           the
           Clergy
           .
           Anno
           4
           E.
           3.
           
           Judgment
           was
           given
           
             Per
             les
             Countes
             &
             Barons
             ,
             les
             Peers
             de
             la
             Royaume
             ,
             come
             Judges
             du
             Parliament
             .
          
        
         
           But
           I
           shall
           leave
           this
           ,
           and
           come
           to
           the
           Process
           which
           Issued
           forth
           against
           him
           afterward
           ,
           for
           the
           Earl
           being
           acquitted
           ,
           returns
           home
           ,
           and
           within
           a
           very
           little
           time
           hath
           a
           considerable
           Army
           in
           the
           Field
           ,
           together
           with
           the
           Archbishop
           of
           York
           ,
           Lord
           Bardolfe
           ,
           and
           others
           ;
           but
           their
           Army
           soon
           Disbanding
           ,
           the
           Earl
           of
           Westmerland
           comes
           with
           a
           considerable
           Strength
           for
           the
           King
           ,
           and
           takes
           all
           the
           Lords
           Prisoners
           ,
           except
           Northumberland
           and
           Bardolfe
           ,
           who
           fled
           into
           Scotland
           :
           Whereupon
           7
           Hen.
           4.
           
           
             Rot.
             Processus
             coram
             Domino
             Rege
             in
             Parliamento
             ,
          
           &c.
           
           The
           King
           commanded
           the
           Lords
           Temporal
           Peers
           of
           his
           Realm
           to
           advise
           what
           Process
           to
           make
           ,
           and
           what
           Judgment
           to
           render
           against
           the
           Earl
           of
           Northumberland
           ,
           and
           the
           Lord
           Bardosse
           ;
           and
           then
           the
           Record
           goes
           on
           thus
           :
           
             And
             then
             the
             said
             Lords
             Advised
             thereon
             ,
             and
             Reported
             their
             Opinion
             to
             the
             King.
             —
             The
             said
             Lords
             Peers
             of
             the
             Realm
             ,
             by
             the
             Assent
             of
             the
             King
             ,
             Ordained
             that
             Proclamations
             should
             be
             made
             for
             the
             said
             Earl
             of
          
           Northumberland
           ,
           
             and
             Lord
          
           Bardolfe
           
             to
             appear
             ,
             or
             else
             to
             stand
             Convicted
             of
             High
             Treason
             by
             the
             Award
             of
             the
             Peers
             in
             Parliament
             .
          
        
         
           
             The
             King
             did
             further
             demand
             the
             Opinion
             of
             the
             said
             Lords
             Temporal
             ,
             touching
             the
             Archbishop
             of
          
           York
           .
           
             —
             Vnto
             which
             the
             Lords
             Temporal
             said
             ,
          
           &c.
           
        
         
           
             By
             Advice
             of
             the
             said
             Lords
             Temporal
             ,
             the
             Returns
             of
             the
             former
          
           Proclamations
           
             were
             made
             at
             the
             Parliament-Door
             ,
             for
             the
             said
             Earl
             and
             Lord
             to
             appear
             .
          
        
         
           
             By
             Advice
             of
             the
             said
             Lords
             Temporal
             ,
             with
             Assent
             of
             the
             King
             ,
             the
             former
             Proclamations
             were
             examined
             .
             —
             The
             said
             Lords
             Temporal
             considered
             of
             the
             Errors
             therein
             ,
          
           &c.
           
        
         
           
             By
             the
             said
             Lords
             Temporal
             ,
             with
             Assent
             of
             the
             King
             ,
             by
             their
             Authority
             new
             Proclamations
             were
             granted
             .
             —
             Whereupon
             the
             said
             Lords
             Temporal
             then
             being
             in
             the
             same
             Parliament
             ,
             by
             Advice
             and
             Consent
             of
             our
             Lord
             the
             King
             ,
             and
             by
             their
             Authority
             in
             Pa●●●●●●
             ▪
             Awarded
             the
             said
             Earl
             of
          
           Northumbeland
           
             ,
             and
             the
             Lord
          
           Bardolfe
           
             ,
             not
             appearing
             upon
             their
             Summons
             ,
             to
             stand
             Convicted
             of
             High
             Treason
             ,
          
           &c.
           
        
         
           Here
           we
           see
           all
           was
           done
           by
           the
           Temporal
           Lords
           ,
           from
           the
           first
           beginning
           of
           the
           Process
           until
           the
           Judgment
           ,
           and
           yet
           it
           is
           said
           to
           be
           Awarded
           by
           the
           Peers
           in
           Parliament
           ,
           although
           the
           Spiritual
           Lords
           are
           not
           so
           much
           as
           once
           mentioned
           ,
           and
           consequently
           were
           not
           present
           ,
           at
           any
           time
           whilst
           that
           Matter
           of
           Treason
           was
           handling
           .
        
         
           To
           Enumerate
           all
           the
           Instances
           of
           this
           Nature
           ,
           and
           to
           Transcribe
           all
           the
           Records
           of
           Attainders
           in
           Parliament
           ,
           where
           the
           Names
           of
           the
           Lords
           Spiritual
           are
           left
           out
           ,
           which
           infers
           of
           necessity
           that
           they
           were
           absent
           ;
           would
           swell
           out
           this
           Treatise
           into
           a
           greater
           Bulk
           than
           either
           I
           intend
           ,
           or
           then
           is
           in
           its
           self
           convenient
           .
           These
           are
           sufficient
           to
           prove
           that
           Obedience
           was
           yielded
           to
           those
           Laws
           and
           Constitutions
           of
           this
           Land
           ,
           which
           were
           made
           for
           this
           purpose
           .
           I
           will
           mention
           one
           Precedent
           more
           ,
           and
           that
           is
           the
           Earl
           of
           
           Strafford's
           Case
           ,
           16
           
             Caroli
             :
             The
             Bishops
             declined
             their
             Suffrages
             on
             the
             Tryal
             of
             the
             Earl
             of
          
           Strafford
           ,
           
             according
             to
             the
             provision
             of
             the
             Canon
             Law
             ,
             and
             the
             constant
             practice
             to
             this
             day
             :
          
           (
           says
           Baker
           ,
           478
           )
           and
           therefore
           withdrew
           :
           But
           they
           desired
           a
           Protestation
           that
           their
           Absence
           should
           not
           prejudice
           them
           of
           that
           ,
           nor
           of
           any
           other
           Priviledge
           competent
           to
           them
           ,
           as
           the
           Lords
           Spiritual
           in
           Parliament
           ,
           might
           be
           entred
           ;
           which
           was
           done
           accordingly
           .
        
         
           It
           may
           be
           objected
           ,
           That
           this
           is
           not
           to
           be
           made
           use
           of
           as
           a
           Precedent
           :
           That
           (
           I
           answer
           )
           is
           true
           as
           to
           the
           Matter
           of
           the
           Charge
           ,
           and
           the
           Nature
           of
           the
           Crime
           that
           he
           was
           Impeached
           for
           ;
           no
           man
           must
           by
           colour
           of
           that
           Act
           be
           Adjudged
           a
           Traytor
           ,
           that
           doth
           those
           things
           which
           the
           Earl
           of
           Strafford
           did
           :
           but
           as
           to
           the
           course
           of
           Proceedings
           ,
           and
           all
           other
           Circumstances
           of
           the
           Method
           ,
           it
           is
           well
           enough
           ;
           for
           nothing
           was
           done
           in
           that
           but
           what
           was
           warranted
           by
           Precedents
           and
           constant
           practice
           in
           Parliament
           :
           
           And
           this
           Difference
           doth
           appear
           from
           the
           Proviso
           in
           the
           Bill
           of
           Attainder
           ,
           for
           that
           is
           no
           more
           but
           this
           :
           
             That
             no
             Judge
             or
             Judges
             shall
             hereafter
             interpret
             any
             Act
             or
             Acts
             to
             be
             Treason
             ,
             in
             any
             other
             manner
             ,
             than
             he
             or
             they
             should
             or
             ought
             to
             have
             done
             before
             the
             making
             of
             this
             Act
             ;
             and
             any
             thing
             contained
             in
             this
             Act
             to
             the
             contrary
             notwithstanding
             .
          
           So
           that
           the
           Proviso
           extends
           only
           to
           the
           Crimes
           ,
           but
           not
           at
           all
           to
           their
           manner
           of
           proceeding
           .
        
         
           From
           the
           consideration
           of
           these
           things
           ,
           That
           Allegation
           which
           is
           made
           by
           some
           ,
           that
           they
           were
           wont
           to
           sit
           till
           the
           final
           Question
           ,
           Guilty
           or
           Not-guilty
           ;
           were
           put
           ,
           will
           plainly
           appear
           to
           be
           altogether
           groundless
           :
           Because
        
         
           First
           ,
           If
           they
           have
           not
           Parity
           sufficient
           to
           Entitle
           them
           to
           any
           Jurisdiction
           in
           Cases
           of
           Life
           and
           Death
           ,
           as
           I
           have
           endeavoured
           to
           shew
           that
           they
           have
           not
           ,
           in
           the
           former
           part
           of
           my
           Discourse
           ;
           then
           it
           is
           evident
           ,
           that
           they
           cannot
           exercise
           any
           Judicial
           Power
           at
           all
           ,
           neither
           in
           things
           praeliminary
           to
           the
           Judgment
           ,
           the
           Judgment
           it self
           ,
           nor
           in
           things
           subsequent
           to
           the
           Judgment
           :
           all
           which
           do
           fall
           within
           the
           Conusance
           of
           Judicial
           Power
           ,
           and
           do
           belong
           to
           the
           Office
           ,
           Power
           ,
           and
           Jurisdiction
           of
           a
           Judge
           .
           For
           so
           saith
           
             Magna
             Charta
             ,
             Nemo
             imprisonetur
          
           ,
           &c.
           
           
             Nisi
             per
             legale
             judicium
             parium
             suorum
             ,
          
           and
           yet
           Imprisonment
           is
           a
           thing
           praeliminary
           to
           Judgment
           :
           The
           Office
           of
           a
           Judge
           is
           to
           hear
           first
           ,
           and
           then
           determine
           ,
           Oyer
           and
           Terminer
           ;
           but
           if
           any
           man
           be
           not
           duly
           qualified
           to
           be
           a
           Judge
           ,
           then
           he
           hath
           as
           little
           power
           to
           hear
           the
           Cause
           ,
           or
           Act
           any
           thing
           in
           it
           ,
           as
           to
           determine
           it
           .
        
         
           Secondly
           ,
           The
           Constitution
           of
           Clarendon
           ,
           saith
           ,
           
             Debent
             interesse
             Judiciis
             Curiae
             Domini
             Regis
             quousque
             perveniatur
             ad
             diminutionem
             Membrorum
             vel
             ad
             mortem
             .
          
           This
           must
           either
           be
           understood
           to
           comprehend
           all
           precedent
           and
           praeliminary
           things
           ,
           which
           do
           relate
           or
           tend
           
             ad
             diminutionem
             Membrorum
          
           ,
           &c.
           
           Or
           else
           if
           we
           take
           the
           words
           strictly
           and
           literally
           ,
           we
           must
           understand
           the
           meaning
           of
           that
           great
           Assembly
           to
           be
           onely
           for
           the
           Exemption
           of
           Prelates
           from
           doing
           the
           Office
           of
           Executioners
           ;
           which
           is
           Non-sense
           :
           By
           Diminutio
           ,
           &c.
           therefore
           ,
           or
           Mors
           ,
           we
           must
           understand
           things
           conducing
           and
           tending
           
             ad
             diminutionem
          
           ,
           &c.
           or
           
             ad
             mortem
          
           .
           The
           Constitution
           at
           Westminster
           is
           much
           plainer
           ,
           
             Non
             debent
             agitare
             judicium
             sanguinis
          
           ;
           the
           meaning
           is
           plainly
           this
           ,
           That
           they
           ought
           not
           to
           exercise
           any
           Judicial
           Power
           in
           Cases
           of
           Blood
           :
           But
           a
           man
           may
           exercise
           Judicial
           Power
           
             agitare
             Judicium
          
           ;
           or
           do
           the
           Office
           of
           a
           Judge
           in
           a
           great
           many
           things
           that
           are
           both
           precedent
           and
           subsequent
           to
           the
           Judgment
           ;
           as
           Awarding
           of
           Process
           ,
           receiving
           the
           Charge
           ,
           &c.
           
           Therefore
           the
           Bishops
           ought
           not
           to
           have
           any
           praeliminary
           Vote
           which
           hath
           any
           tendency
           or
           relation
           to
           a
           Judgment
           of
           Death
           .
        
         
           Thirdly
           ,
           When
           ever
           the
           Clergy
           ,
           in
           Obedience
           to
           these
           Constitutions
           ,
           did
           withdraw
           ,
           they
           left
           the
           whole
           Management
           of
           the
           Business
           from
           the
           beginning
           to
           the
           end
           to
           the
           Lords
           Temporal
           ,
           as
           appears
           from
           the
           Entry
           of
           the
           Records
           :
           so
           it
           is
           4
           E.
           3.
           in
           the
           Earl
           of
           Kents
           Case
           ;
           he
           was
           brought
           before
           the
           Counts
           and
           Barons
           ,
           &c.
           for
           Treason
           :
           In
           the
           same
           year
           the
           Articles
           were
           read
           against
           Mortimer
           ,
           and
           the
           King
           charged
           
             Les
             Counts
             &
             Barons
          
           ,
           to
           give
           Judgment
           upon
           the
           said
           Articles
           .
           The
           same
           was
           in
           the
           Case
           of
           Simon
           de
           
             Bereford
             ,
             Matravers
          
           ,
           and
           others
           in
           that
           year
           :
           11
           R.
           2.
           the
           Prelates
           departed
           from
           the
           House
           at
           the
           first
           Motion
           about
           the
           Appeals
           ,
           and
           did
           not
           stay
           so
           much
           as
           till
           the
           Articles
           were
           read
           .
           In
           the
           Earl
           of
           Northumberlands
           Case
           ,
           it
           appears
           ,
           they
           had
           not
           so
           much
           as
           one
           Vote
           from
           the
           beginning
           to
           the
           end
           of
           the
           whole
           Proceedings
           ,
           and
           the
           sole
           Management
           of
           the
           Case
           was
           by
           the
           Award
           and
           Judgment
           of
           the
           Lords
           Temporal
           .
           In
           the
           21
           of
           R.
           2.
           the
           Prelates
           gave
           their
           Opinions
           generally
           ,
           that
           Pardons
           were
           revocable
           ,
           but
           after
           they
           had
           done
           ,
           they
           departed
           the
           House
           ,
           and
           would
           not
           consent
           so
           far
           to
           the
           Death
           of
           a
           man
           ,
           as
           to
           give
           a
           particular
           Vote
           ,
           when
           the
           Question
           was
           put
           ,
           Whether
           the
           Pardons
           of
           the
           Duke
           of
           Gloucester
           ,
           and
           the
           Earls
           of
           Arundel
           and
           Warwick
           were
           revokable
           :
           Baker
           161.
           
        
         
           And
           indeed
           if
           they
           should
           have
           been
           permitted
           to
           Vote
           about
           their
           Answers
           ,
           &c.
           it
           would
           quite
           frustrate
           and
           elude
           the
           Design
           of
           the
           Prohibition
           ;
           for
           somewhat
           or
           other
           might
           happen
           to
           be
           put
           to
           the
           Vote
           in
           their
           presence
           ,
           concerning
           the
           Answer
           ,
           Replication
           ,
           &c.
           or
           concerning
           the
           Form
           and
           Method
           of
           Judicature
           ,
           upon
           which
           the
           whole
           Business
           would
           depend
           ;
           and
           by
           the
           Voices
           of
           the
           Spiritual
           Lords
           that
           Vote
           it
           ,
           
           might
           pass
           against
           the
           major
           part
           of
           the
           Temporal
           Lords
           ,
           and
           so
           the
           whole
           Business
           lost
           ,
           and
           the
           Expectation
           of
           Justice
           frustrated
           ;
           so
           that
           it
           is
           highly
           reasonable
           ,
           that
           if
           they
           be
           absent
           at
           all
           ,
           they
           should
           be
           absent
           ,
           
             Dum
             de
             hujusmodi
             materiis
             agitur
          
           .
        
         
           Having
           thus
           by
           Reason
           and
           Authority
           established
           the
           Truth
           of
           those
           Propositions
           which
           I
           at
           first
           laid
           down
           ,
           I
           shall
           now
           examine
           the
           Strength
           of
           those
           Arguments
           ,
           whereby
           my
           Adversaries
           do
           support
           themselves
           ,
           and
           maintain
           the
           Jurisdiction
           of
           the
           Lords
           Spiritual
           in
           Capital
           Cases
           .
        
         
           And
           1.
           
           Their
           Grand
           Objection
           is
           ,
           That
           they
           never
           absented
           themselves
           when
           Capital
           Cases
           were
           Debated
           ,
           upon
           any
           other
           account
           ,
           then
           because
           they
           were
           prohibited
           by
           the
           Laws
           of
           the
           Holy
           Church
           ,
           to
           consent
           to
           the
           Death
           of
           any
           man
           :
           And
           accordingly
           they
           made
           their
           Protestation
           ,
           11
           R.
           2.
           when
           they
           departed
           the
           House
           ,
           
             Juxta
             Sacrorum
             Canonum
             instituta
             non
             licet
             nobis
             interesse
             ,
          
           &c.
           
           And
           such
           a
           voluntary
           Departure
           for
           Conscience-sake
           (
           say
           they
           )
           lest
           they
           should
           concern
           themselves
           in
           the
           Effusion
           of
           Innocent
           Blood
           ,
           could
           neither
           conclude
           themselves
           nor
           their
           Successors
           from
           claiming
           their
           Right
           to
           be
           present
           by
           the
           Fundamental
           Law
           of
           the
           Land
           ,
           as
           Peers
           of
           Parliament
           .
           Here
           lies
           their
           Strength
           ,
           and
           therefore
           a
           solid
           Refutation
           of
           this
           will
           remove
           all
           manner
           of
           Scruple
           ,
           and
           discover
           the
           vanity
           of
           their
           pretensions
           to
           any
           Jurisdiction
           of
           this
           kind
           :
           Therefore
           in
           answer
           to
           this
           ,
           I
           shall
           offer
           these
           following
           Considerations
           :
        
         
           1.
           
           What-ever
           was
           the
           Reason
           that
           induced
           them
           to
           absent
           themselves
           when
           such
           Matters
           came
           to
           be
           Debated
           ;
           yet
           it
           is
           manifest
           from
           what
           hath
           been
           said
           ,
           that
           there
           was
           an
           Act
           of
           Parliament
           (
           to
           which
           they
           were
           obliged
           to
           give
           Obedience
           ,
           as
           well
           as
           the
           Canons
           of
           the
           Church
           )
           that
           did
           expresly
           prohibit
           them
           to
           exercise
           Jurisdiction
           in
           those
           Cases
           :
           and
           although
           they
           did
           say
           that
           their
           Departure
           was
           in
           Obedience
           to
           the
           Canons
           of
           the
           Church
           ,
           yet
           without
           doubt
           we
           ought
           to
           construe
           their
           Departure
           to
           be
           also
           in
           Obedience
           to
           the
           Laws
           of
           the
           Land
           :
           For
           the
           Case
           at
           the
           most
           favourable
           Representation
           ,
           is
           no
           more
           than
           this
           ;
           The
           same
           thing
           is
           both
           prohibited
           by
           the
           Law
           of
           God
           ,
           and
           the
           Law
           of
           Man
           ;
           those
           who
           forbear
           from
           the
           thing
           prohibited
           ,
           do
           say
           they
           do
           it
           ,
           because
           they
           are
           so
           commanded
           by
           the
           Law
           of
           God
           ,
           and
           say
           no
           more
           :
           In
           this
           Case
           we
           cannot
           construe
           ,
           that
           either
           the
           Law
           of
           Man
           doth
           lose
           its
           force
           and
           obligatory
           Power
           ,
           or
           that
           those
           persons
           who
           said
           they
           forbore
           from
           the
           thing
           prohibited
           in
           Obedience
           to
           the
           Law
           of
           God
           ,
           did
           either
           not
           obey
           ,
           or
           disobey
           the
           Law
           of
           Man
           ;
           I
           mean
           ,
           
             In
             foro
             hum
             ano
          
           .
           If
           then
           the
           Prelates
           in
           former
           times
           did
           give
           Obedience
           to
           the
           Laws
           and
           Constitutions
           of
           this
           Nation
           in
           this
           particular
           ;
           much
           more
           ought
           their
           Successors
           ,
           whose
           Principle
           is
           strict
           Obedience
           to
           the
           Government
           of
           the
           Kingdom
           and
           perfect
           submission
           to
           the
           Higher
           Powers
           .
           The
           truth
           is
           ,
           it
           was
           a
           happy
           thing
           that
           in
           the
           days
           of
           their
           Predecessors
           ,
           the
           Law
           of
           the
           Church
           ,
           and
           the
           Law
           of
           the
           Land
           did
           so
           well
           agree
           in
           this
           particular
           ▪
           and
           if
           you
           would
           consider
           the
           Humors
           and
           Principles
           of
           the
           Men
           ,
           you
           would
           not
           wonder
           so
           much
           at
           their
           Non-acknowledgment
           of
           the
           Laws
           of
           the
           Nation
           ,
           when
           they
           could
           secure
           themselves
           against
           the
           Compulsion
           of
           them
           and
           Punishment
           inflicted
           by
           them
           ,
           without
           making
           any
           such
           acknowledgment
           .
           It
           is
           not
           strange
           that
           those
           men
           ,
           whose
           Zeal
           for
           Religion
           was
           seen
           most
           in
           their
           Contentions
           and
           Wranglings
           with
           the
           Civil
           Power
           ;
           and
           who
           thought
           that
           Obstinacy
           and
           Disobedience
           to
           Regal
           Authority
           ,
           and
           the
           Laws
           and
           Constitution
           of
           the
           Government
           ,
           where
           they
           thwarted
           the
           Ambition
           and
           Grandeur
           of
           the
           Pope
           and
           his
           Clergy
           ,
           was
           the
           most
           certain
           way
           to
           merit
           Canonization
           ;
           and
           that
           Beckett
           and
           Stratford
           ,
           and
           the
           rest
           of
           that
           Rebellious
           and
           Disobedient
           Tribe
           ,
           were
           the
           mightiest
           Saints
           that
           ever
           lived
           upon
           Earth
           .
           It
           is
           not
           strange
           that
           those
           Men
           that
           would
           trample
           all
           Humane
           Laws
           under
           their
           Feet
           ,
           if
           dissonant
           to
           the
           Canons
           of
           the
           Church
           ,
           should
           pretend
           ,
           that
           when
           the
           Canons
           of
           the
           Church
           did
           agree
           with
           the
           Laws
           of
           the
           Land
           ,
           they
           yielded
           Obedience
           to
           the
           Canons
           of
           the
           Church
           ,
           without
           taking
           notice
           of
           the
           Laws
           of
           the
           Land.
           And
           indeed
           it
           was
           an
           extraordinary
           Specimen
           of
           Candor
           and
           Modesty
           ,
           that
           they
           did
           with
           so
           fair
           a
           pretence
           save
           themselves
           from
           the
           inconvenience
           of
           acknowledging
           the
           Temporal
           Power
           in
           the
           limitation
           of
           their
           Honour
           and
           Jurisdiction
           ,
           which
           they
           were
           never
           known
           to
           be
           very
           forward
           to
           do
           :
           But
           God
           be
           thanked
           the
           times
           are
           turned
           ,
           we
           have
           reason
           to
           expect
           
           more
           Humility
           and
           Loyalty
           from
           our
           now
           Spiritual
           Fathers
           ,
           whose
           Principles
           do
           not
           allow
           them
           in
           the
           least
           Opposition
           to
           lawful
           Authority
           ,
           and
           who
           it
           is
           to
           be
           hoped
           will
           never
           insist
           upon
           any
           thing
           ,
           except
           they
           think
           that
           by
           the
           Law
           of
           the
           Land
           it
           is
           their
           Right
           .
        
         
           Secondly
           ,
           Although
           they
           pretended
           that
           their
           departure
           from
           the
           House
           during
           the
           Debates
           of
           Capital
           Matters
           ,
           was
           in
           Obedience
           to
           the
           Canons
           of
           the
           Church
           ;
           yet
           it
           is
           more
           than
           probable
           ,
           that
           the
           consideration
           of
           the
           Law
           of
           England
           by
           which
           they
           were
           compellable
           to
           depart
           ,
           whether
           there
           had
           been
           any
           such
           Canons
           in
           force
           ,
           or
           not
           ,
           was
           the
           strongest
           Reason
           why
           they
           did
           with-draw
           ,
           and
           that
           for
           these
           two
           Reasons
           :
        
         
           1.
           
           Because
           it
           is
           observable
           ,
           That
           if
           those
           in
           whose
           power
           it
           was
           to
           dispense
           with
           their
           Disobedience
           to
           the
           Laws
           of
           the
           Land
           ,
           did
           at
           any
           time
           give
           way
           to
           their
           Presence
           or
           Consent
           ,
           that
           they
           should
           exercise
           Judicial
           Power
           in
           those
           Cases
           ,
           then
           the
           Lords
           Spiritual
           used
           generally
           to
           make
           bold
           with
           the
           Canons
           of
           the
           Church
           ,
           at
           least
           
             〈◊〉
             vice
          
           :
           How
           then
           can
           it
           be
           supposed
           ,
           that
           at
           other
           times
           when
           there
           was
           no
           such
           Licence
           or
           Dispensation
           ,
           their
           Departure
           was
           onely
           because
           of
           the
           Canons
           of
           the
           Church
           ?
           That
           Record
           of
           21.
           
           R.
           2.
           where
           they
           did
           consent
           to
           Constitute
           a
           Proxy
           ,
           who
           should
           in
           their
           Name
           agree
           ,
           or
           disagree
           to
           any
           Judgments
           of
           Death
           that
           should
           be
           given
           in
           that
           Parliament
           ,
           is
           very
           considerable
           for
           this
           Point
           ;
           for
           in
           that
           Case
           they
           gave
           Authroity
           to
           another
           to
           do
           a
           thing
           which
           was
           unlawfull
           for
           them
           to
           do
           themselves
           ,
           and
           it
           was
           done
           ,
           because
           the
           King
           and
           Parliament
           being
           the
           Fountain
           of
           Law
           ,
           and
           having
           power
           
             unica
             vice
          
           ,
           or
           more
           ,
           to
           dispense
           with
           any
           Law
           ,
           at
           least
           such
           as
           come
           not
           within
           the
           Conusance
           of
           any
           other
           Court
           beside
           themselves
           ,
           did
           give
           them
           leave
           so
           to
           do
           :
           whereas
           without
           doubt
           ,
           the
           passing
           Sentence
           of
           Death
           upon
           a
           man
           by
           Proxy
           ,
           was
           as
           great
           a
           Violation
           of
           the
           Canons
           of
           the
           Church
           ,
           as
           if
           they
           had
           been
           personally
           present
           ,
           and
           had
           passed
           Judgment
           themselves
           :
           For
           can
           any
           man
           rationally
           suppose
           ,
           that
           the
           Clergy
           were
           so
           tender
           Conscienced
           ,
           that
           they
           should
           not
           agree
           to
           the
           Effusion
           of
           any
           mans
           Blood
           themselves
           ,
           and
           yet
           that
           their
           Consciences
           would
           allow
           them
           to
           Authorize
           another
           in
           their
           Name
           and
           Place
           ,
           and
           by
           their
           Authority
           to
           consent
           to
           it
           ?
           As
           if
           it
           were
           not
           the
           same
           thing
           in
           point
           of
           Conscience
           for
           me
           to
           kill
           a
           man
           ,
           as
           it
           is
           to
           procure
           another
           to
           do
           it
           :
           And
           so
           in
           point
           of
           Law
           ,
           that
           which
           I
           am
           prohibited
           to
           do
           my self
           ,
           I
           am
           also
           prohibited
           to
           impower
           another
           to
           do
           ;
           because
           that
           which
           a
           mans
           Servant
           ,
           Procurator
           ,
           or
           Attorney
           ,
           doth
           by
           the
           Command
           ,
           and
           by
           vertue
           of
           the
           Authority
           of
           the
           Master
           ,
           is
           in
           Judgment
           of
           Law
           and
           Conscience
           interpretatively
           the
           Act
           of
           the
           Master
           himself
           :
           And
           the
           Constituting
           a
           Proxy
           in
           their
           Names
           to
           give
           Judgment
           of
           Death
           by
           vertue
           of
           an
           Instrument
           under
           their
           Hands
           and
           Seals
           ,
           will
           further
           appear
           to
           be
           a
           breach
           of
           the
           Canons
           ,
           if
           you
           consider
           the
           Letter
           of
           the
           Canon
           made
           ,
           Anno
           1222.
           in
           the
           Reign
           of
           H.
           3.
           which
           you
           may
           find
           among
           the
           
             Constitutiones
             Archiepiscopi
          
           Stephani
           in
           
             Linwood
             ,
             f.
          
           146.
           —
           
             Authoritate
             quoque
             Concilii
             districtius
             inhibemus
             ne
             quis
             Clericus
             beneficiatus
             aut
             in
             Sacris
             Ordinibus
             constitutus
             litteras
             pro
             poena
             sanguinis
             infligenda
             scribere
             vel
             dictare
             presumant
             ,
             vel
             ubi
             Judicium
             sanguinis
             tractatur
             ,
             vel
             exercetur
             intersit
             .
          
           From
           this
           Canon
           I
           conclude
           ,
           That
           Clergy-men
           ought
           neither
           to
           be
           present
           themselves
           ,
           nor
           depute
           others
           
             per
             litteras
          
           ,
           to
           be
           present
           
             pro
             poena
             sanguinis
             infligenda
          
           .
           We
           have
           likewise
           a
           very
           pertinent
           Observation
           upon
           this
           Matter
           in
           an
           ancient
           MS.
           Chronicl
           .
           
             in
             libro
             Mailrosso
          
           ,
           which
           hath
           written
           very
           largely
           of
           this
           Parliament
           that
           was
           held
           21
           R.
           2.
           wherein
           the
           Prelates
           are
           blamed
           for
           that
           Opinion
           which
           they
           gave
           generally
           about
           the
           Revocation
           of
           Pardons
           ,
           because
           the
           consequence
           thereof
           was
           the
           Death
           of
           those
           whose
           Pardons
           were
           Revoked
           :
           
             Dederunt
             ergo
             locum
          
           (
           saith
           the
           Book
           )
           
             Prelati
             judicio
             sanguinis
             in
             hoc
             facto
             .
             Ita
             quod
             debitatur
             a
             pluribus
             si
             non
             incurrerent
             irregularitatem
             pro
             negotio
             memorato
             ,
             unde
             contigit
             quod
             propter
             istud
             minus
             peccatum
             inciderent
             in
             aliud
             Majus
             peccatum
             consequenter
             ,
             ut
             laicam
             personam
             constituerint
             Procuratorem
             pro
             eisdem
             ,
             qui
             illorum
             vice
             consentiret
             adjudicium
             sanguinis
             dandum
             in
             dicto
             Parliamento
             si
             necess●
             foret
             &
             occasio
             emersisset
             ,
          
           &c.
           
           So
           that
           upon
           the
           whole
           Matter
           ,
           it
           is
           irrational
           to
           think
           that
           their
           departure
           from
           the
           House
           ever
           before
           this
           ,
           was
           meerly
           in
           respect
           of
           the
           Canons
           ▪
           when
           we
           see
           that
           the
           first
           offer
           of
           the
           King
           and
           
           Parliament
           to
           admit
           them
           to
           the
           exercise
           of
           Jurisdiction
           for
           that
           time
           ,
           was
           by
           them
           kindly
           accepted
           with
           a
           
             Non
             obstante
          
           to
           the
           Canons
           of
           the
           Church
           .
           It
           is
           true
           ,
           the
           giving
           Judgment
           of
           Death
           by
           Proxy
           ,
           was
           as
           great
           a
           violation
           of
           the
           Laws
           of
           England
           ,
           as
           of
           the
           Canons
           of
           the
           Church
           :
           yet
           inasmuch
           as
           
             Consensus
             tollit
             errorem
          
           ,
           it
           was
           for
           that
           time
           well
           enough
           .
        
         
           2.
           
           This
           is
           further
           illustrated
           ,
           If
           you
           observe
           that
           in
           those
           Cases
           to
           which
           the
           Prohibition
           of
           the
           Law
           did
           not
           extend
           ,
           they
           made
           no
           scruple
           of
           Sitting
           and
           Voting
           ,
           although
           their
           Voting
           in
           those
           Cases
           was
           against
           the
           Canons
           of
           the
           Church
           .
           This
           may
           be
           instanced
           in
           the
           Cases
           of
           Bills
           of
           Attainder
           :
           for
           although
           the
           Canons
           do
           prohibit
           them
           from
           Voting
           in
           such
           Cases
           ,
           as
           much
           as
           any
           Case
           whatsoever
           ;
           inasmuch
           as
           in
           passing
           the
           Bill
           ,
           they
           Vote
           ,
           That
           the
           Person
           is
           Guilty
           ,
           and
           shall
           stand
           actually
           Attainted
           of
           High
           Treason
           ,
           and
           shall
           be
           deemed
           and
           adjudged
           a
           Traytor
           ,
           and
           shall
           suffer
           as
           in
           Cases
           of
           High
           Treason
           ,
           &c.
           yet
           they
           do
           generally
           Vote
           ,
           because
           that
           the
           Prohibition
           of
           the
           Law
           doth
           not
           extend
           to
           Voting
           in
           Bills
           of
           Attainder
           ,
           seeing
           that
           is
           not
           
             Agitare
             judicium
          
           ,
           but
           onely
           
             Legis
             lationem
          
           ,
           what
           they
           do
           in
           that
           Case
           is
           not
           Judicially
           ,
           but
           onely
           the
           exercise
           of
           their
           Legislative
           Power
           ;
           otherwise
           the
           House
           of
           Commons
           would
           make
           themselves
           Judges
           ,
           and
           would
           challenge
           a
           Judicial
           Power
           in
           the
           Tryal
           of
           any
           Lord
           ,
           seeing
           in
           passing
           Bills
           of
           Attainder
           they
           do
           every
           whit
           as
           much
           as
           the
           Bishops
           ;
           for
           they
           Vote
           that
           he
           is
           Guilty
           ,
           &c.
           and
           that
           he
           shall
           be
           adjudged
           a
           Traytor
           ,
           &c.
           
           And
           the
           Act
           of
           Parliament
           runs
           ,
           
             Be
             it
             Enacted
             by
             the
             King
             ,
             the
             Lords
             Spiritual
             and
             Temporal
             ,
             and
             Commons
             in
             Parliament
             assembled
             .
          
           For
           these
           two
           Reasons
           I
           think
           it
           very
           improbable
           ,
           that
           the
           Canons
           was
           the
           onely
           cause
           why
           the
           Prelates
           did
           depart
           the
           House
           when
           Capital
           Cases
           were
           Debated
           :
           But
           that
           the
           weakness
           of
           their
           Objection
           may
           further
           appear
           ;
           I
           answer
           ,
        
         
           Thirdly
           ,
           Although
           we
           should
           admit
           that
           the
           Canons
           of
           the
           Church
           were
           the
           first
           occasion
           of
           the
           beginning
           of
           this
           Custom
           among
           us
           ,
           and
           that
           those
           Histories
           and
           Chronicles
           which
           inform
           us
           after
           this
           manner
           ,
           do
           say
           true
           ,
           yet
           this
           is
           no
           Argument
           against
           the
           validity
           of
           a
           standing
           Custom
           ,
           the
           Commencemant
           of
           which
           is
           not
           upon
           Record
           :
           for
           Histories
           and
           Chronicles
           are
           not
           Matters
           of
           Record
           ,
           neither
           are
           they
           in
           Law
           such
           strong
           and
           undeniable
           proof
           of
           the
           beginning
           of
           any
           usage
           ,
           as
           to
           make
           it
           no
           Custom
           ;
           neither
           are
           the
           Canons
           of
           the
           Church
           Matters
           of
           Record
           ;
           and
           therefore
           cannot
           prove
           that
           there
           was
           no
           such
           Custom
           before
           the
           making
           of
           those
           Canons
           .
           Seeing
           then
           it
           is
           without
           doubt
           that
           there
           was
           a
           Custom
           that
           the
           Prelates
           should
           not
           exercise
           Jurisdiction
           in
           Capital
           Cases
           ,
           and
           there
           is
           no
           Record
           that
           doth
           mention
           the
           time
           when
           it
           did
           begin
           ,
           nor
           any
           time
           when
           it
           could
           be
           said
           ,
           There
           never
           was
           such
           an
           Usage
           ;
           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
           ,
           whereby
           their
           Jurisdiction
           was
           originally
           limited
           that
           it
           should
           not
           extend
           to
           such
           and
           such
           Cases
           .
           So
           that
           I
           do
           not
           argue
           from
           the
           validity
           or
           invalidity
           of
           those
           Canons
           ,
           nor
           from
           any
           Construction
           that
           may
           be
           made
           upon
           the
           Letter
           of
           the
           Canons
           ,
           but
           insist
           upon
           it
           as
           part
           of
           the
           Common
           Law
           of
           England
           ,
           and
           do
           absolutely
           deny
           that
           it
           had
           its
           Original
           and
           Force
           from
           any
           Authority
           that
           the
           Pope
           of
           Rome
           with
           or
           without
           his
           Council
           ,
           or
           a
           Convocation
           of
           the
           Clergy
           in
           England
           had
           ,
           to
           impose
           Laws
           upon
           us
           ;
           but
           affirm
           ,
           that
           its
           force
           and
           obligatory
           Power
           did
           solely
           arise
           from
           the
           voluntary
           reception
           ,
           approbation
           ,
           and
           usage
           allowed
           by
           the
           People
           of
           England
           ,
           which
           being
           by
           them
           transmitted
           to
           Posterity
           ,
           is
           a
           thing
           reputed
           to
           have
           been
           used
           and
           practised
           time
           out
           of
           mind
           ,
           and
           is
           thereupon
           ranked
           among
           the
           Common
           Laws
           of
           this
           Kingdom
           ;
           which
           are
           no
           more
           but
           general
           Usages
           or
           Customs
           of
           general
           Concernment
           to
           the
           whole
           Nation
           in
           things
           of
           Temporal
           Conisance
           ,
           first
           upon
           reasonable
           Considerations
           by
           consent
           allowed
           ,
           and
           then
           transmitted
           as
           a
           Tradition
           to
           Posterity
           ,
           by
           whom
           they
           are
           supposed
           to
           have
           been
           in
           ure
           ever
           since
           it
           was
           a
           Nation
           :
           But
           this
           matter
           of
           Judicature
           in
           Capital
           Cases
           is
           a
           point
           of
           Temporal
           Jurisdiction
           in
           a
           Temporal
           Court
           ;
           viz.
           The
           High
           Court
           of
           Parliament
           ,
           and
           therefore
           of
           Temporal
           Conisance
           :
           the
           departure
           of
           the
           Clergy
           when
           such
           Cases
           came
           to
           be
           Debated
           ,
           hath
           also
           been
           an
           interrupted
           practice
           for
           many
           Ages
           together
           ;
           yea
           and
           most
           strictly
           observed
           in
           the
           first
           Ages
           ,
           whose
           Transactions
           are
           Recorded
           (
           as
           hath
           been
           already
           proved
           )
           and
           it
           is
           impossible
           by
           Record
           
           to
           trace
           it
           to
           its
           first
           Original
           :
           Therefore
           it
           agreeing
           with
           every
           part
           of
           the
           definition
           of
           Common
           Law
           ,
           is
           part
           of
           the
           Common
           Law
           it self
           ,
           and
           doth
           consequently
           bind
           all
           subjects
           to
           its
           Observation
           as
           a
           standing
           Law
           ,
           not
           alterable
           any
           way
           ,
           but
           the
           same
           way
           it
           at
           first
           took
           its
           force
           ,
           that
           is
           ,
           by
           general
           consent
           ,
           according
           to
           the
           Maxime
           laid
           down
           by
           my
           Lord
           Cook
           ,
           in
           his
           1.
           
           Inst.
           115.
           
             b.
             Whatsoever
             was
             at
             the
             Common
             Law
             ,
             and
             is
             not
             ousted
             or
             taken
             away
             by
             any
             Statute
             ,
             remaineth
             still
             .
          
        
         
           And
           although
           this
           Practice
           that
           was
           enjoyned
           by
           these
           Canons
           ,
           was
           here
           allowed
           and
           observed
           ,
           yet
           that
           observation
           was
           not
           out
           of
           respect
           to
           the
           Canons
           as
           such
           ;
           but
           as
           they
           did
           command
           such
           things
           as
           were
           judged
           rational
           :
           and
           it
           had
           been
           the
           same
           case
           if
           the
           Custom
           had
           begun
           in
           England
           in
           imitation
           of
           other
           Countries
           ,
           as
           it
           is
           upon
           the
           account
           of
           the
           Canons
           :
           For
           though
           the
           Bishops
           of
           Rome
           claiming
           an
           universal
           and
           absolute
           Power
           of
           Legislation
           ,
           
             in
             ordine
             ad
             Spiritualia
          
           ,
           over
           all
           Christendom
           ,
           took
           advantage
           of
           every
           Opportunity
           that
           offered
           it self
           for
           the
           obtaining
           of
           this
           Right
           ,
           which
           they
           pretended
           was
           
             Jure
             divino
          
           ,
           and
           in
           Right
           of
           their
           Vicarship
           due
           ;
           yet
           knowing
           that
           Princes
           would
           not
           so
           easily
           part
           with
           the
           Jewels
           of
           their
           Crowns
           ,
           in
           suffering
           their
           People
           to
           be
           in
           Subjection
           to
           the
           Laws
           and
           Constitutions
           of
           any
           foreign
           Prince
           ,
           in
           things
           which
           either
           directly
           or
           indirectly
           did
           affect
           their
           Temporal
           Possessions
           ,
           they
           thought
           it
           necessary
           to
           manage
           their
           Business
           with
           all
           imaginable
           artifice
           and
           cunning
           ,
           by
           bringing
           the
           Laity
           to
           the
           humour
           by
           degrees
           ;
           and
           accordingly
           did
           at
           first
           collect
           certain
           Rules
           and
           Directions
           for
           the
           Government
           of
           the
           Clergy
           onely
           ,
           which
           were
           called
           Decreta
           ,
           first
           published
           in
           England
           during
           King
           Stephens
           Reign
           (
           as
           some
           do
           think
           ,
           though
           others
           reckon
           it
           was
           long
           before
           )
           but
           never
           throughly
           observed
           in
           
             England
             ,
             Kellaway
          
           .
           7
           H.
           8.
           184.
           
           But
           having
           got
           a
           small
           incouragement
           by
           the
           reception
           of
           these
           Rules
           in
           many
           Countries
           ,
           they
           thought
           they
           might
           venture
           a
           little
           further
           ,
           and
           then
           would
           have
           the
           Laity
           as
           well
           as
           the
           Clergy
           ,
           to
           give
           Obedience
           to
           their
           Edicts
           :
           but
           that
           must
           be
           first
           in
           some
           inconsiderable
           indifferent
           things
           ;
           as
           Abstinence
           from
           Meats
           ,
           &c.
           and
           did
           not
           style
           them
           with
           the
           Lordly
           Name
           of
           Leges
           ,
           but
           with
           a
           great
           deal
           of
           Meekness
           and
           Humility
           ,
           and
           the
           Complement
           of
           
             Servus
             servorum
             Dei
          
           ,
           did
           offer
           to
           their
           Consideration
           certain
           Rogationes
           ;
           whence
           the
           Abstinence-week
           before
           Whitesunday
           was
           called
           Rogation-week
           ,
           as
           
             M●●silius
             Pat.
             lib.
             Defensor
             .
             pacis
             ,
          
           2
           part
           .
           23.
           observes
           ;
           Christians
           having
           out
           of
           Piety
           and
           Honour
           for
           his
           Holiness
           ,
           yielded
           Obedience
           to
           these
           same
           Rogations
           ,
           they
           made
           bold
           to
           proceed
           one
           step
           further
           ;
           that
           is
           ,
           They
           together
           with
           their
           Councils
           made
           certain
           Orders
           or
           Decretals
           about
           Temporal
           Matters
           ,
           (
           but
           
             in
             ordine
             ad
             Spiritualia
          
           too
           )
           when
           these
           came
           first
           into
           England
           :
           See
           
             Matthew
             Paris
          
           ,
           403.
           
           To
           these
           Decretals
           Obedience
           was
           required
           from
           Prince
           and
           People
           ,
           and
           all
           Contumacious
           and
           Obstinate
           Delinquents
           were
           most
           severely
           Anathematized
           :
           The
           Decretals
           were
           such
           as
           these
           ,
           That
           any
           Clergy-man
           that
           was
           grieved
           by
           a
           Judgment
           or
           Sentence
           in
           the
           Court-Christian
           ,
           or
           any
           other
           Court
           Ecclesiastical
           within
           this
           Realm
           ,
           might
           be
           relieved
           by
           an
           Appeal
           from
           Rome
           ;
           That
           no
           Lay-man
           should
           have
           the
           Disposition
           of
           any
           Ecclesiastical
           Preferment
           ,
           nor
           the
           Presentation
           to
           a
           Church
           ;
           That
           he
           shall
           not
           Marry
           within
           such
           and
           such
           Degrees
           ;
           That
           Children
           born
           before
           Espousals
           ▪
           be
           legitimate
           ;
           That
           the
           Clergy
           should
           be
           absolutely
           exempted
           from
           Secular
           Power
           ,
           &c.
           
           Yet
           these
           Decretals
           met
           with
           very
           little
           respect
           in
           
             England
             ,
             France
          
           ,
           or
           any
           other
           part
           of
           Christendom
           ,
           except
           
           Peter's
           Patrimony
           in
           Demesne
           ,
           the
           Popes
           own
           Territories
           ,
           called
           by
           the
           Canonists
           
             Patria
             Obedientiae
          
           .
           For
           in
           England
           (
           to
           wave
           any
           discourse
           of
           the
           Laws
           and
           Customs
           of
           other
           Countries
           )
           in
           stead
           of
           being
           received
           and
           observed
           according
           to
           Expectation
           ,
           they
           were
           stoutly
           opposed
           by
           the
           Judges
           and
           Magistrates
           ,
           as
           derogating
           from
           the
           Soveraignty
           and
           Prerogative
           of
           the
           King
           ,
           and
           tending
           to
           the
           detriment
           of
           the
           Rights
           and
           Properties
           of
           his
           Subjects
           :
           And
           in
           Confirmation
           of
           this
           ,
           several
           Acts
           of
           Parliament
           were
           made
           to
           curb
           the
           Insolence
           of
           those
           usurping
           Popes
           ,
           and
           to
           punish
           the
           audacious
           Enterprises
           of
           those
           factious
           and
           disloyal
           Subjects
           ,
           who
           did
           presume
           to
           attempt
           to
           controll
           the
           Judgments
           that
           were
           given
           in
           the
           Kings
           Courts
           by
           Process
           from
           the
           Pope
           ;
           or
           to
           procure
           Provisions
           and
           Reservations
           of
           Benefices
           by
           Bulls
           or
           Breve's
           from
           Rome
           :
           See
           27
           E.
           3.
           c.
           1.
           48
           
           E.
           3.
           c.
           1.
           25
           
           E.
           3.
           c.
           22.
           16
           
           R.
           2.
           c.
           5.
           whereby
           such
           Suers
           of
           Appeals
           ,
           and
           Procurers
           of
           Bulls
           
           and
           Process
           from
           Rome
           ,
           for
           the
           purposes
           aforesaid
           ,
           are
           made
           liable
           to
           the
           Penalties
           of
           a
           Praemunire
           ,
           whereby
           the
           Body
           of
           the
           Offendor
           is
           to
           be
           Imprisoned
           during
           the
           Kings
           Pleasure
           ,
           his
           Goods
           forfeited
           ,
           and
           his
           Lands
           seised
           into
           the
           Kings
           Hands
           ,
           so
           long
           as
           the
           Offendor
           liveth
           .
           How
           far
           the
           Benefit
           of
           Clergy
           was
           allowed
           ,
           I
           have
           already
           shewn
           ;
           And
           as
           for
           the
           Matter
           of
           Legitimation
           ,
           you
           may
           see
           the
           Statute
           of
           
             Merton
             ,
             c.
          
           9.
           
           
             Et
             rogaverunt
             omnes
             Episcopi
             Magnates
             ut
             consentirent
             ,
             quod
             nati
             ante
             matrimonium
             essent
             legitimi
             ,
             sicut
             illi
             qui
             nati
             sunt
             post
             matrimonium
             quantum
             ad
             successionem
             haereditariam
             ,
             quia
             Ecclesia
             tales
             habet
             pro
             legitimis
             .
             Et
             omnes
             Comites
             &
             Barones
             responderunt
             quod
             nolunt
          
           Angliae
           
             leges
             mutare
             ,
             quae
             hucusque
             usitatae
             &
             approbatae
             sunt
             :
          
           Vide
           18
           E.
           4.
           30.
           a.
           All
           which
           Statutes
           are
           Declarative
           of
           the
           Common
           Law
           ,
           and
           therefore
           do
           prove
           that
           the
           People
           of
           England
           were
           never
           obliged
           to
           allow
           of
           any
           Decrees
           of
           Councils
           or
           Canons
           of
           the
           Church
           ,
           further
           than
           they
           judged
           it
           fit
           and
           convenient
           so
           to
           do
           ;
           which
           Arbitrary
           Reception
           ,
           together
           with
           a
           Transmission
           to
           Posterity
           ,
           did
           of
           it self
           make
           it
           one
           of
           the
           Laws
           of
           England
           ,
           which
           continues
           in
           force
           (
           though
           the
           Councils
           or
           Convocations
           should
           afterward
           repeal
           their
           Decrees
           )
           till
           they
           be
           altered
           by
           Act
           of
           Parliament
           ,
           Co.
           5.
           
           
             Cawdries
             Case
          
           9.
           
           
             Davies
             Reports
          
           70
           ,
           71.
           
             the
             case
             of
             Commendam
          
           :
           And
           the
           Preamble
           to
           the
           Statute
           of
           Dispensations
           and
           Faculties
           ,
           made
           25
           Hen.
           8.
           c.
           21.
           which
           runs
           in
           this
           manner
           :
           
             Whereas
             this
             his
             Majesties
             Realm
             ,
             recognising
             no
             Superiour
             under
             God
             ,
             but
             onely
             his
             Majesty
             ,
             hath
             been
             and
             is
             free
             from
             subjection
             to
             any
             mans
             Laws
             ,
             but
             onely
             such
             as
             have
             been
             devised
             ,
             made
             ,
             and
             ordained
             within
             this
             Realm
             ,
             for
             the
             wealth
             of
             the
             same
             ,
             or
             to
             such
             other
             as
             by
             sufferance
             of
             the
             King
             and
             his
             Progenitors
             ,
             the
             People
             of
             this
             Realm
             have
             taken
             at
             their
             free
             liberty
             by
             their
             own
             consent
             to
             be
             used
             among
             them
             ,
             and
             have
             bound
             themselves
             by
             long
             Vse
             and
             Custom
             to
             the
             observance
             of
             the
             same
             ,
             not
             as
             to
             the
             observance
             of
             the
             Laws
             of
             any
             foreign
             Prince
             ,
             Potentate
             ,
             or
             Prelate
             ,
             but
             as
             to
             the
             customed
             and
             ancient
             Laws
             of
             this
             Realm
             ,
             originally
             established
             as
             Laws
             of
             the
             same
             ,
             by
             the
             said
             Sufferance
             ,
             Consents
             and
             Customs
             ,
             and
             none
             otherwise
             .
          
           And
           so
           it
           is
           in
           
             Co.
             Rep.
          
           5.
           
           ●
           .
           
             part
             .
             fol.
          
           31.
           
           
             All
             Canons
             ,
             Constitutions
             ,
             Ordinances
             ,
             Synods
             ,
             Provincials
             ,
          
           &c.
           
             are
             inforce
             that
             have
             been
             by
             general
             Consent
             and
             Custom
             within
             the
             Realm
             allowed
             ,
             and
             so
             may
             be
             general
             consent
             be
             corrected
             ,
             enlarged
             ,
             explained
             or
             abrogated
             .
          
           Seeing
           therefore
           it
           is
           evident
           from
           what
           hath
           been
           already
           said
           ,
           that
           those
           Canons
           and
           Constitutions
           of
           the
           Church
           concerning
           Judicature
           in
           Matters
           of
           Blood
           ,
           have
           not
           onely
           been
           practised
           and
           allowed
           in
           this
           Nation
           successively
           for
           several
           Ages
           together
           ,
           beyond
           all
           time
           of
           Memory
           ,
           but
           also
           ratified
           and
           confirmed
           by
           Act
           of
           Parliament
           ;
           it
           follows
           ,
           that
           they
           have
           the
           force
           of
           Laws
           of
           England
           ,
           and
           are
           not
           alterable
           without
           an
           Act
           of
           Parliament
           ;
           as
           the
           twelve
           Tables
           of
           Athens
           did
           really
           become
           ,
           and
           were
           properly
           called
           
             Jus
             civile
             Romanum
          
           ,
           after
           they
           were
           voluntarily
           received
           and
           allowed
           at
           Rome
           :
           And
           as
           the
           same
           may
           be
           instanced
           in
           some
           parallel
           Cases
           among
           our selves
           ,
           as
           the
           Priviledge
           of
           Clergy
           ,
           Pluralities
           ,
           and
           Dispensations
           ,
           &c.
           which
           were
           parts
           of
           the
           Common
           Law
           of
           England
           ,
           although
           they
           became
           such
           no
           otherwise
           then
           by
           the
           Nations
           reception
           and
           observation
           of
           the
           Canons
           of
           the
           Church
           .
        
         
           Lastly
           ,
           I
           am
           not
           apt
           to
           believe
           that
           this
           Custom
           was
           taken
           up
           upon
           the
           account
           of
           the
           Canons
           of
           the
           Church
           ,
           but
           rather
           because
           it
           was
           a
           thing
           agreeable
           to
           the
           Constitution
           of
           the
           Government
           ,
           the
           Reason
           and
           Rules
           of
           the
           Common
           Law
           ,
           and
           the
           Nature
           of
           their
           Jurisdiction
           and
           Honour
           ,
           being
           meerly
           praedial
           or
           feudal
           ;
           and
           that
           because
           upon
           a
           strict
           search
           it
           will
           be
           found
           of
           ancienter
           date
           than
           any
           of
           the
           Canons
           of
           the
           Church
           ;
           for
           the
           first
           Canon
           that
           I
           find
           in
           Linwood
           is
           that
           which
           was
           made
           An.
           1222.
           and
           is
           among
           the
           rest
           of
           the
           Constitutions
           of
           Archbishop
           Stephen
           in
           these
           words
           ;
           
             Presenti
             decreto
             statuimus
             ne
             Clerici
             beneficiati
             aut
             in
             Sacru
             Ordinibus
             constituti
             villarum
             Procuratores
             admittantur
             ,
             videlicet
             ut
             sint
             Seneschalli
             ,
             aut
             Ballive
             talium
             administrationum
             ,
             occasione
             quarum
             laicis
             in
             reddendis
             ratiociniis
             obligentur
             ,
             nec
             Jurisdictiones
             exerceant
             seculares
             praesertim
             illas
             quibus
          
           Judicium
           Sanguinis
           
             est
             annexum
             Authoritate
             quoque
             Concilii
             districtius
             inhibemus
             ne
             quis
             Clericus
             beneficiatus
             vel
             in
             Sacris
             Ordinibus
             constitutus
             litteras
             pro
             poena
          
           Sanguinis
           
             infligenda
             scribere
             vel
             dictare
             presumat
             ,
             vel
             ubi
          
           Judicium
           Sanguinis
           
             exercetur
             intersit
             :
             Linwood
          
           ,
           
           146.
           
           Which
           Constitution
           was
           made
           above
           fifty
           years
           after
           the
           Parliament
           at
           Clarendon
           ,
           which
           confirms
           this
           Custom
           ,
           and
           calls
           it
           one
           of
           the
           
             Avitae
             consuetudines
          
           .
           These
           Particulars
           well
           considered
           ,
           will
           give
           a
           very
           satisfactory
           Answer
           to
           their
           Objection
           ,
           and
           therefore
           I
           need
           not
           say
           any
           more
           .
        
         
           But
           it
           is
           further
           objected
           ,
           That
           the
           Clergy
           in
           their
           Protestation
           which
           they
           made
           11
           R.
           2.
           do
           declare
           ,
           
             Quod
             ipsos
             personaliter
             interesse
             pertinet
          
           ,
           (
           and
           so
           they
           did
           in
           some
           Protestations
           which
           were
           made
           afterward
           )
           and
           after
           all
           they
           do
           insert
           this
           Clause
           ,
           
             Non
             volumus
             nec
             intendimus
             quod
             processus
             habiti
             &
             habendi
             ,
          
           &c.
           
             futuris
             temporibus
             quomodolibet
             impugnentur
             ,
             infirmentur
             ,
             seu
             renoventur
             .
          
           From
           this
           they
           argue
           ,
           otherwise
           all
           the
           Proceedings
           of
           the
           House
           of
           Lords
           in
           the
           absence
           of
           the
           Clergy
           ,
           are
           invalid
           and
           reversable
           ,
           or
           else
           to
           what
           purpose
           is
           this
           Clause
           :
           And
           the
           Lords
           Temporal
           giving
           leave
           that
           this
           Protestation
           should
           be
           entred
           upon
           Record
           ,
           did
           implicitely
           assent
           to
           what
           the
           Clergy
           alledged
           therein
           .
        
         
           To
           this
           I
           answer
           ,
           That
           a
           Protestation
           in
           its
           self
           is
           no
           argument
           of
           any
           Right
           neither
           doth
           the
           permission
           and
           allowance
           of
           any
           Protestation
           ,
           yield
           that
           right
           which
           the
           Protester
           is
           desirous
           to
           save
           ,
           but
           only
           saves
           the
           right
           which
           the
           party
           had
           before
           ,
           if
           he
           had
           any
           ;
           and
           if
           none
           ,
           then
           the
           making
           that
           Salvo
           could
           give
           him
           none
           ;
           for
           the
           outmost
           that
           a
           Protestation
           can
           do
           ,
           is
           to
           anticipate
           a
           Conclusion
           ,
           or
           Estoppel
           ;
           
             i.
             e.
          
           to
           provide
           that
           the
           doing
           of
           any
           such
           Act
           as
           is
           Contained
           in
           the
           Protestation
           ,
           shall
           not
           be
           constructed
           to
           the
           Prejudice
           of
           the
           Party
           ;
           so
           as
           to
           Barr
           or
           Conclude
           him
           from
           Clayming
           afterward
           that
           which
           
             in
             rei
             veritate
          
           is
           his
           right
           .
           So
           that
           this
           Protestation
           of
           the
           Clergy
           is
           no
           Argument
           of
           their
           Right
           to
           be
           present
           and
           to
           Vote
           in
           Capital
           Matters
           ;
           and
           that
           chiefly
           for
           these
           two
           Reasons
           :
           1.
           
           By
           the
           Roll
           we
           find
           that
           the
           Clergy
           did
           not
           only
           depart
           when
           Capital
           Cases
           were
           to
           be
           debated
           ,
           but
           also
           in
           all
           other
           Cases
           that
           were
           done
           that
           Session
           ;
           because
           there
           were
           many
           Matters
           of
           Treason
           to
           be
           handled
           ,
           therefore
           they
           absented
           from
           the
           Parliament
           altogether
           :
           so
           it
           is
           in
           Sir.
           
             Rob.
             Cotton's
             Abr.
          
           322.
           
           So
           that
           this
           Protestation
           may
           very
           well
           be
           supposed
           to
           have
           been
           made
           with
           respect
           to
           those
           other
           Matters
           which
           were
           not
           Capital
           ,
           where
           they
           had
           an
           undoubted
           Right
           to
           be
           present
           ,
           and
           therefore
           such
           a
           Protestation
           might
           be
           very
           Proper
           ;
           and
           not
           to
           have
           any
           respect
           to
           those
           Cases
           which
           were
           Capital
           ,
           especially
           seeing
           they
           did
           alwaies
           in
           such
           Cases
           Absent
           themselves
           in
           former
           times
           without
           making
           any
           Protestation
           .
           2.
           
           Admitting
           that
           the
           Clergy
           did
           intend
           that
           Capital
           Cases
           ,
           as
           well
           as
           others
           which
           were
           not
           Capital
           ,
           should
           be
           within
           the
           Salvo
           of
           their
           Protestation
           ;
           yet
           nothing
           can
           be
           inferred
           from
           thence
           ,
           but
           that
           they
           themselves
           said
           they
           had
           Right
           to
           be
           present
           ,
           and
           what
           then
           ?
           Must
           it
           of
           necessity
           follow
           that
           they
           had
           Right
           because
           they
           Claimed
           it
           ?
           If
           that
           Consequence
           had
           been
           allowed
           to
           be
           good
           ,
           I
           am
           afraid
           the
           Crown
           of
           England
           had
           been
           Incorporated
           long
           ago
           into
           the
           Triple
           Crown
           .
        
         
           As
           for
           that
           Clause
           of
           the
           Protestation
           for
           the
           Validity
           of
           all
           such
           Transactions
           as
           should
           happen
           to
           pass
           in
           their
           Absence
           ,
           I
           must
           confess
           I
           do
           not
           think
           it
           was
           to
           very
           much
           purpose
           .
           1.
           
           Because
           that
           without
           any
           Proviso
           the
           Proceedings
           of
           the
           House
           of
           Lords
           in
           their
           Absence
           ,
           had
           certainly
           been
           valid
           enough
           ,
           as
           I
           shall
           prove
           anon
           .
           2.
           
           If
           they
           had
           not
           been
           good
           ,
           this
           Clause
           could
           not
           have
           helped
           them
           ;
           because
           wherever
           the
           Assent
           and
           agreement
           of
           any
           person
           or
           persons
           is
           Requisite
           for
           the
           perfection
           of
           a
           thing
           ,
           it
           is
           necessary
           that
           that
           thing
           to
           which
           the
           Assent
           is
           Requisite
           ,
           be
           
             in
             esse
          
           at
           the
           time
           of
           the
           Assent
           made
           ;
           for
           otherwise
           it
           is
           an
           Assent
           to
           nothing
           ,
           and
           that
           is
           as
           much
           as
           no
           Assent
           at
           all
           :
           If
           therefore
           the
           Assent
           of
           the
           Prelates
           be
           indispensably
           necessary
           to
           the
           perfection
           of
           every
           Judgment
           and
           Bill
           that
           passeth
           the
           House
           of
           Lords
           ;
           Such
           a
           precedent
           Assent
           to
           all
           that
           shall
           Pass
           ,
           during
           their
           Absence
           in
           General
           ,
           which
           is
           an
           Assent
           to
           they
           do
           not
           know
           what
           themselves
           ,
           will
           not
           amount
           to
           a
           sufficient
           agreement
           ;
           The
           Reason
           is
           ,
           because
           the
           Law
           of
           England
           doth
           presume
           that
           in
           all
           private
           Transactions
           between
           Party
           and
           Party
           ,
           and
           much
           more
           in
           things
           of
           Publick
           concernment
           and
           of
           so
           great
           moment
           ,
           as
           Making
           of
           Laws
           and
           Giving
           Judgment
           of
           Death
           uppon
           Peers
           of
           the
           Realm
           ,
           whatsoever
           a
           Man
           doth
           is
           upon
           Rational
           Inducements
           ,
           and
           that
           the
           Conveniency
           and
           Advantage
           which
           he
           expects
           
           will
           Accrue
           thereby
           ,
           is
           the
           Motive
           that
           prevails
           with
           him
           to
           agree●●…
           the
           thing
           ;
           and
           therefore
           all
           such
           Agreements
           as
           are
           made
           at
           aventure
           ,
           when
           the
           party
           agreeing
           knows
           not
           what
           it
           is
           he
           agreed
           to
           ,
           (
           as
           when
           a
           man
           agreeth
           to
           a
           thing
           before
           it
           be
           in
           esse
           )
           are
           rejected
           in
           Law
           as
           Irrational
           and
           〈◊〉
           :
           So
           if
           a
           Tenant
           comes
           and
           say
           to
           his
           Lord
           ,
           
             I
             agree
             to
             all
             Grants
             which
             you
             shall
             hereafter
             make
             of
             the
             Manor
             ,
             or
             any
             part
             of
             it
          
           ;
           Surely
           this
           without
           a
           Subsequent
           Agreement
           to
           every
           particular
           Grant
           ,
           will
           not
           〈…〉
           Attornement
           .
           And
           at
           the
           Common
           Law
           ,
           Licences
           for
           Alienation
           ,
           granted
           to
           Tenants
           ,
           were
           alwaies
           special
           ;
           and
           a
           general
           Licence
           to
           〈…〉
           which
           the
           Tenant
           should
           afterward
           make
           ,
           was
           void
           .
           And
           if
           such
           an
           agreement
           of
           the
           Lords
           Spiritual
           ,
           as
           is
           before
           described
           ,
           be
           sufficient
           〈…〉
           Judgment
           or
           Bill
           which
           shall
           pass
           the
           House
           of
           Lords
           ;
           then
           they
           may
           〈◊〉
           say
           that
           the
           whole
           House
           of
           Lords
           may
           depart
           from
           Parliament
           ,
           and
           agree
           before
           hand
           in
           the
           same
           manner
           to
           every
           Bill
           which
           shall
           〈…〉
           House
           of
           Commons
           ,
           and
           these
           with
           the
           Royal
           Assent
           shall
           be
           good
           Laws
           ;
           especially
           if
           it
           be
           ,
           as
           they
           say
           ,
           that
           the
           Clergy
           is
           one
           of
           the
           Three
           Estates
           of
           Parliament
           .
        
         
           But
           then
           you
           will
           demand
           ,
           Why
           should
           the
           House
           of
           Lords
           ▪
           suffer
           these
           things
           to
           be
           entred
           upon
           the
           Roll
           ,
           if
           they
           did
           not
           think
           that
           their
           Claims
           were
           legal
           ?
           &c.
           To
           this
           it
           may
           be
           answered
           :
           〈…〉
           is
           only
           a
           Register
           or
           Narrative
           of
           all
           the
           Matters
           of
           Fact
           that
           passed
           in
           the
           House
           of
           Lords
           ,
           and
           although
           the
           entring
           of
           a
           Passage
           upon
           the
           Roll
           makes
           is
           so
           Authentick
           ,
           that
           the
           Matter
           of
           Fact
           (
           viz.
           that
           there
           was
           certainly
           such
           ,
           a
           passage
           )
           〈◊〉
           undeniable
           ;
           yet
           it
           doth
           not
           follow
           that
           every
           thing
           that
           is
           entred
           upon
           the
           Roll
           ,
           is
           good
           Authority
           for
           Matter
           of
           Law
           ,
           except
           it
           appear
           by
           the
           Roll
           that
           it
           was
           taken
           for
           Law
           by
           the
           Vote
           and
           Resolution
           of
           the
           House
           ;
           and
           therefore
           although
           the
           House
           of
           Lords
           did
           suffer
           this
           Protestation
           to
           be
           entred
           upon
           the
           Roll
           ,
           yet
           it
           doth
           not
           follow
           that
           they
           did
           allow
           that
           every
           thing
           that
           the
           〈◊〉
           said
           was
           〈◊〉
           but
           only
           allowed
           it
           to
           be
           true
           ,
           that
           the
           Protestors
           did
           say
           so
           .
           And
           besides
           the
           ●●tring
           of
           a
           Protestation
           is
           a
           thing
           which
           is
           always
           reckoned
           the
           best
           Expedient
           for
           reconciling
           of
           Differences
           when
           begun
           ,
           or
           preventing
           of
           them
           before
           they
           are
           begun
           ▪
           or
           at
           least
           for
           diverting
           them
           till
           a
           more
           seasonable
           time
           ,
           when
           the
           putting
           of
           the
           Matter
           to
           a
           Tryal
           ,
           would
           either
           prove
           dangerous
           ,
           or
           expensive
           of
           more
           time
           ,
           than
           the
           urgency
           of
           other
           more
           important
           Affairs
           ,
           then
           to
           be
           managed
           would
           allow
           and
           therefore
           the
           Request
           of
           Entring
           their
           Protestation
           ,
           is
           never
           upon
           any
           account
           whatsoever
           ,
           denied
           to
           those
           who
           have
           not
           a
           mind
           to
           be
           concluded
           by
           the
           then
           Proceedings
           ;
           and
           if
           there
           be
           any
           thing
           contained
           in
           the
           Protestation
           that
           is
           of
           an
           ill
           Complexion
           in
           the
           Judgment
           of
           the
           House
           ,
           either
           as
           tending
           to
           the
           Diminution
           of
           the
           Kings
           Prerogative
           ,
           the
           Authority
           of
           Parliament
           ,
           or
           otherwise
           ●●●●…ying
           the
           Constitution
           of
           the
           Government
           ;
           the
           Pr●●●●●●
           ion
           is
           allowed
           to
           be
           Entred
           first
           ,
           and
           the
           Protestors
           punished
           for
           it
           when
           they
           have
           alone
           .
           We
           find
           in
           the
           Reign
           of
           Rich.
           2
           ;
           two
           Bills
           passed
           the
           House
           of
           Commons
           ,
           the
           one
           against
           Provisors
           ,
           the
           other
           against
           Procurers
           of
           Process
           from
           the
           Court
           of
           Rome
           ;
           these
           Bills
           were
           violently
           opposed
           by
           the
           Clergy
           in
           the
           House
           of
           Lords
           ,
           but
           notwithstanding
           the
           Bills
           passed
           the
           House
           ,
           the
           Clergy
           in
           a
           great
           Rage
           depart
           the
           House
           ,
           and
           Protest
           against
           the
           Bills
           ,
           as
           abridging
           the
           Authority
           and
           Priviledges
           of
           the
           Holy
           Church
           ;
           which
           the
           Lords
           suffered
           to
           be
           entred
           ,
           and
           yet
           did
           not
           agree
           to
           those
           Allegations
           of
           the
           Clergy
           ;
           for
           the
           Royal
           Assent
           was
           given
           ,
           and
           they
           were
           always
           accounted
           good
           and
           firm
           Laws
           ,
           13
           R.
           2.
           c.
           2
           ,
           and
           c.
           3.
           
           We
           find
           also
           that
           in
           the
           time
           of
           his
           late
           Majesty
           ,
           Twelve
           Bishops
           departed
           the
           House
           ,
           and
           Protected
           against
           〈◊〉
           Orders
           ,
           〈…〉
           &c.
           that
           should
           be
           made
           in
           their
           Absence
           ,
           which
           Protestati●●…
           at
           their
           Request
           was
           entred
           upon
           the
           Journal
           ,
           and
           〈◊〉
           was
           so
           far
           against
           the
           Sense
           of
           the
           House
           ,
           that
           they
           Voted
           it
           prejudicial
           to
           the
           Government
           ,
           and
           destructive
           of
           the
           very
           Being
           of
           Parliaments
           ;
           for
           which
           some
           of
           them
           were
           put
           into
           the
           T●●…er
           :
           This
           I
           mention
           ,
           to
           shew
           that
           although
           the
           Matter
           of
           Protestation
           do
           〈…〉
           thwart
           the
           Genius
           and
           Disposition
           of
           the
           whole
           House
           ,
           yet
           the
           Request
           of
           having
           ●…ntred
           ,
           is
           never
           denied
           .
        
         
         
           In
           the
           next
           ,
           place
           ,
           I
           shall
           consider
           the
           Roll
           of
           21
           Rich.
           2.
           where
           the
           first
           Petition
           that
           the
           Commons
           made
           that
           Parliament
           to
           the
           King
           ,
           was
           ;
           
             For
             that
             divers
             Judgments
             were
             heretofore
             undone
             ,
             for
             that
             the
             Clergy
             were
             not
             present
             ,
             the
             Commons
             prayed
             the
             King
             ,
             that
             the
             Clergy
             would
             appoint
             some
             to
             be
             their
             Common
             Proctor
             ,
             with
             sufficient
             Authority
             thereunto
             .
             —
             The
             Prelates
             therefore
             being
             severally
             examined
             ,
             appointed
             Sir
          
           Thomas
           de
           la
           Percie
           
             their
             Proctor
             to
             Assent
             ,
             as
             by
             their
             Instrument
             appeareth
             .
          
           Thus
           was
           the
           Practice
           of
           Constituting
           Proxies
           begun
           .
        
         
           It
           is
           apparent
           to
           all
           men
           of
           Common
           Sense
           ,
           That
           if
           the
           Clergy
           were
           forbidden
           to
           give
           Judgment
           of
           Death
           by
           any
           Law
           or
           Rules
           whatsoever
           ,
           that
           Law
           was
           violated
           by
           their
           Constituting
           a
           Proxy
           ,
           as
           much
           as
           if
           they
           had
           been
           personally
           present
           :
           Whether
           or
           no
           their
           Personal
           Presence
           was
           prohibited
           by
           the
           Law
           of
           England
           at
           this
           time
           ,
           I
           leave
           to
           the
           Judicious
           Reader
           to
           determine
           from
           what
           hath
           been
           said
           before
           :
           If
           they
           were
           prohibited
           ,
           then
           certainly
           this
           Petition
           of
           the
           Commons
           was
           unwarrantable
           ,
           and
           contrary
           to
           Law.
           It
           is
           not
           impossible
           that
           the
           House
           of
           Commons
           being
           but
           fallible
           ,
           men
           spurred
           on
           by
           too
           precipitant
           a
           Zeal
           and
           Eagerness
           for
           the
           accomplishment
           of
           a
           Business
           ,
           should
           be
           endeavouring
           to
           make
           sure
           work
           ,
           fall
           inconsiderately
           into
           another
           extream
           ,
           and
           through
           the
           want
           of
           due
           Examination
           of
           Precedents
           ,
           become
           guilty
           of
           a
           mistake
           .
           I
           shall
           not
           trouble
           my self
           much
           in
           discoursing
           about
           the
           possibility
           of
           the
           thing
           ,
           for
           I
           shall
           make
           appear
           ,
           that
           it
           was
           actually
           so
           in
           our
           Case
           :
           For
           ,
           1.
           
           That
           which
           was
           the
           ground
           of
           the
           Petition
           of
           the
           Commons
           ;
           
             viz.
             That
             divers
             Judgments
             have
             been
             heretofore
             undone
             ,
          
           &c.
           was
           a
           palpable
           mistake
           
             de
             facto
          
           :
           It
           is
           true
           ,
           the
           two
           Judgments
           that
           were
           given
           against
           the
           two
           Spencers
           ,
           15
           E.
           2.
           were
           reversed
           for
           this
           cause
           ,
           through
           the
           great
           favour
           and
           interest
           that
           they
           then
           had
           at
           Court
           :
           And
           there
           is
           no
           question
           ,
           but
           these
           two
           Judgments
           were
           the
           ground
           of
           the
           Commons
           Petition
           made
           .
           21
           R.
           2.
           for
           there
           are
           no
           other
           Judgements
           to
           be
           found
           that
           were
           ever
           reversed
           for
           this
           cause
           ;
           but
           how
           well
           their
           Petition
           was
           grounded
           you
           may
           learn
           from
           〈◊〉
           E.
           3.
           c.
           1.
           
           Where
           this
           same
           Judgment
           is
           declared
           in
           Parliament
           to
           be
           good
           ,
           and
           that
           the
           aforesaid
           reversal
           was
           null
           and
           void
           ;
           and
           the
           two
           Spencers
           upon
           this
           Affirmance
           of
           the
           Judgment
           were
           Executed
           .
           I
           suppose
           if
           the
           forwardness
           and
           Zeal
           of
           the
           Commons
           had
           given
           them
           time
           to
           search
           the
           Records
           with
           so
           much
           diligence
           that
           they
           might
           have
           found
           this
           ,
           they
           had
           not
           said
           ;
           
             For
             that
             divers
             Judgments
             have
             been
             heretofore
             undone
             ,
          
           &c.
           2.
           
           That
           in
           point
           of
           Law
           the
           absence
           of
           the
           Prelates
           makes
           not
           a
           Judgment
           erronious
           ,
           besides
           the
           Authority
           of
           that
           Record
           ,
           1
           E.
           3.
           is
           further
           proved
           :
           1.
           
           From
           the
           Earl
           of
           
           Salisbury's
           Case
           ,
           2.
           
           H.
           5.
           who
           petitioned
           that
           the
           Judgment
           that
           was
           given
           against
           his
           Father
           might
           be
           Reversed
           ,
           and
           Assigns
           for
           Errour
           ,
           that
           it
           was
           not
           with
           the
           Assent
           of
           the
           Lords
           Spiritual
           ,
           who
           are
           Peers
           of
           the
           Realm
           :
           the
           House
           of
           Lords
           upon
           Debate
           resolved
           ,
           that
           it
           was
           not
           Errour
           ,
           and
           therefore
           the
           Judgment
           was
           good
           .
           2ly
           ,
           If
           the
           Consent
           of
           the
           Clergy
           be
           absolutely
           necessary
           to
           every
           Judgment
           that
           passeth
           the
           House
           of
           Lords
           ,
           then
           consequently
           it
           must
           be
           necessary
           to
           every
           Act
           of
           Parliament
           :
           There
           can
           no
           manner
           of
           Difference
           be
           Assigned
           between
           the
           two
           Cases
           as
           to
           this
           Matter
           ,
           for
           their
           Power
           and
           Jurisdiction
           in
           Legislation
           ,
           is
           every
           whit
           as
           ample
           as
           their
           Power
           of
           Judicature
           ;
           and
           therefore
           their
           Concurrence
           is
           equally
           necessary
           in
           both
           Cases
           .
           But
           it
           is
           a
           thing
           of
           dangerous
           Consequence
           to
           Assert
           ,
           that
           an
           Act
           of
           Parliament
           cannot
           be
           made
           without
           the
           Consent
           of
           the
           Clergy
           ,
           for
           it
           will
           make
           some
           of
           the
           best
           Laws
           that
           ever
           were
           made
           in
           England
           before
           the
           Reformation
           ,
           and
           which
           have
           ever
           been
           to
           this
           day
           accounted
           firm
           and
           established
           Laws
           ,
           of
           no
           force
           at
           all
           .
           Most
           of
           the
           Statutes
           of
           Mortmain
           were
           made
           against
           the
           will
           of
           the
           Clergy
           ,
           and
           their
           Dissent
           is
           recorded
           .
           The
           Statute
           
             De
             A●●…rtatis
             Religiosorum
          
           ,
           is
           Enacted
           by
           the
           King
           ,
           
             De
             Concilio
             ,
             Comitum
             ,
             Baronum
             ,
             Magnatum
             ,
             Procerum
             ,
             &
             Regni
             sui
             Constatuum
             in
             Parliament●…
             ,
          
           &c.
           and
           yet
           proved
           by
           my
           Lord
           Cook
           in
           his
           Exposition
           of
           this
           Statute
           to
           be
           a
           good
           Law
           ,
           from
           the
           Testimony
           of
           many
           Records
           and
           Acts
           of
           Parliament
           that
           recite
           this
           Statute
           .
           The
           Statute
           of
           3
           Rich.
           2.
           c.
           3.
           was
           made
           against
           the
           Clergy
           ,
           for
           the
           ill
           disposition
           of
           Dignities
           ,
           Offices
           ,
           Canonries
           ,
           Prebends
           ,
           and
           Parsonages
           ,
           and
           other
           Ecclesiastical
           Preferments
           ,
           upon
           lewd
           and
           licencious
           
           persons
           ,
           to
           the
           Scandal
           of
           Religion
           ,
           and
           the
           neglect
           of
           Divine
           Service
           ,
           &c.
           
           The
           Clergy
           being
           somewhat
           displeased
           that
           any
           should
           undertake
           to
           reform
           them
           ,
           at
           the
           first
           reading
           of
           the
           Bill
           departed
           ,
           but
           notwithstanding
           the
           Bill
           past
           ,
           and
           is
           said
           to
           be
           Enacted
           by
           the
           King
           ,
           Nobles
           of
           the
           Land
           ,
           and
           the
           Commons
           ,
           leaving
           out
           the
           Clergy
           :
           And
           yet
           this
           hath
           been
           allowed
           for
           an
           established
           Law
           by
           all
           the
           Judges
           .
           See
           Roll
           3
           R.
           2.
           n.
           38.
           —
           40.
           
           The
           Statute
           of
           7
           R.
           2.
           c.
           12.
           was
           made
           to
           impower
           Justices
           of
           Peace
           to
           enquire
           of
           several
           grievous
           Extortions
           committed
           by
           the
           Bishops
           and
           their
           Officers
           ,
           to
           the
           great
           grievance
           and
           oppression
           of
           the
           Kings
           Liege
           People
           ,
           &c.
           
           The
           bringing
           in
           of
           this
           Bill
           offended
           the
           Clergy
           more
           than
           the
           former
           ,
           insomuch
           that
           they
           left
           the
           House
           in
           a
           great
           Huff
           ,
           Protesting
           against
           the
           Bill
           as
           injurious
           to
           the
           Franchises
           and
           Jurisdiction
           of
           the
           Church
           ,
           yet
           notwithstanding
           it
           passed
           into
           a
           Law.
           
        
         
           The
           Clergy
           were
           absent
           all
           the
           Parliament
           that
           was
           held
           11
           R.
           2.
           and
           yet
           divers
           good
           and
           profitable
           Laws
           were
           made
           that
           Parliament
           never
           questioned
           for
           their
           Validity
           ,
           but
           always
           put
           in
           use
           ,
           as
           11
           R.
           2.
           c.
           7.
           about
           Merchants
           ,
           c.
           8.
           concerning
           the
           granting
           of
           Annuities
           ,
           c.
           9.
           concerning
           new
           Impositions
           ,
           c.
           11.
           of
           Assizes
           ;
           and
           several
           others
           made
           in
           the
           absence
           of
           the
           Clergy
           .
           I
           might
           for
           this
           enumerate
           all
           the
           Statutes
           of
           Provisors
           and
           the
           Statutes
           of
           Premunire
           ,
           for
           Suers
           of
           Appeals
           ,
           and
           other
           Process
           from
           Rome
           ,
           as
           25
           E.
           3.
           c.
           1.
           and
           22.
           where
           the
           Names
           of
           the
           Clergy
           are
           left
           out
           :
           and
           13
           Rich.
           2.
           c.
           2.
           and
           c.
           3.
           where
           they
           were
           so
           far
           from
           Assenting
           ,
           that
           they
           entred
           Protestations
           against
           them
           ,
           because
           they
           abridged
           the
           Popes
           Authority
           ,
           as
           is
           before
           observed
           :
           And
           the
           16
           R.
           2.
           c.
           5.
           passed
           against
           the
           will
           of
           the
           whole
           Clergy
           .
           And
           so
           the
           Statute
           that
           was
           made
           in
           the
           same
           year
           about
           the
           Queens
           Marriage
           ,
           without
           the
           Kings
           Consent
           ,
           was
           made
           without
           the
           Concurrence
           of
           the
           Clergy
           ;
           for
           their
           Assent
           to
           it
           was
           special
           in
           this
           manner
           :
           
             So
             far
             as
             it
             is
             agreeable
             to
             the
             Law
             of
             God
             and
             the
             Holy
             Church
             .
          
           Which
           being
           conditional
           and
           under
           a
           Restraint
           ,
           was
           according
           to
           the
           Course
           of
           Parliaments
           accounted
           as
           no
           Assent
           at
           all
           ,
           and
           so
           it
           was
           specially
           Entred
           ;
           and
           yet
           none
           did
           ever
           question
           the
           Strength
           and
           Force
           of
           this
           Act.
           
        
         
           These
           Statutes
           being
           allowed
           by
           the
           Judges
           of
           England
           as
           Good
           and
           Authentick
           Laws
           ,
           although
           they
           were
           not
           agreed
           to
           by
           the
           Lords
           Spiritual
           ,
           do
           prove
           that
           the
           Concurrence
           of
           the
           Lords
           Spiritual
           is
           no
           more
           necessary
           to
           the
           Essence
           and
           Perfection
           of
           an
           Act
           of
           Parliament
           ,
           than
           the
           Concurrence
           of
           as
           many
           Temporal
           Lords
           .
        
         
           Upon
           the
           whole
           Matter
           ,
           it
           appears
           to
           have
           been
           a
           very
           strange
           and
           unaccountable
           over-sight
           in
           the
           House
           of
           Commons
           at
           that
           time
           ,
           that
           they
           should
           be
           the
           first
           Introducers
           of
           an
           Innovation
           upon
           so
           false
           a
           Ground
           as
           theirs
           was
           .
           But
           however
           this
           Practice
           being
           built
           upon
           so
           sandy
           a
           Foundation
           ,
           it
           seems
           had
           ,
           no
           long
           continuance
           ;
           for
           there
           doth
           not
           occur
           in
           any
           Author
           ,
           nor
           in
           the
           Abridgments
           of
           the
           Records
           ,
           any
           mention
           of
           more
           than
           Two
           Proxies
           ;
           the
           first
           was
           Sir
           Thomas
           de
           la
           Percie
           ,
           the
           second
           was
           Sir
           William
           de
           la
           Scroope
           ,
           who
           immediately
           succeeded
           him
           in
           this
           his
           New
           Office
           :
           But
           seeing
           it
           is
           rash
           to
           Assert
           a
           Negative
           in
           a
           Matter
           of
           Fact
           ,
           it
           will
           be
           very
           satisfactory
           if
           any
           will
           inform
           us
           of
           any
           more
           ,
           and
           that
           may
           easily
           be
           done
           ,
           if
           there
           were
           any
           ;
           because
           none
           can
           act
           as
           a
           Proxy
           ,
           except
           his
           Procuratorship
           be
           Entred
           upon
           the
           Roll.
           
        
         
           Most
           of
           those
           Records
           that
           are
           Cited
           in
           the
           behalf
           of
           the
           Spiritual
           Lords
           ,
           are
           either
           such
           as
           were
           in
           those
           times
           when
           the
           Clergy
           put
           in
           Proxies
           ,
           as
           all
           those
           that
           are
           upon
           or
           after
           the
           21
           Rich.
           2.
           and
           about
           the
           beginning
           of
           Hen.
           4.
           
           Such
           is
           the
           Case
           of
           the
           Earl
           of
           Arundel
           ;
           for
           it
           appears
           by
           the
           Record
           ,
           that
           the
           Constitution
           of
           the
           Proxy
           was
           in
           N.
           9.
           and
           the
           Arraignment
           of
           the
           Earl
           was
           not
           till
           N.
           15
           ,
           or
           16.
           and
           therefore
           after
           the
           Proxy
           ;
           so
           that
           there
           was
           reason
           that
           the
           Records
           should
           be
           Entred
           
             by
             the
             King
             ,
             Bishops
             ,
             and
             Lords
             ,
          
           seeing
           the
           Bishops
           Deputy
           was
           present
           ;
           but
           it
           is
           no
           Argument
           of
           their
           personal
           presence
           :
           Or
           else
           they
           are
           Cases
           of
           Bills
           of
           Attainder
           ,
           and
           that
           is
           not
           much
           to
           our
           purpose
           ;
           for
           those
           will
           as
           well
           prove
           that
           the
           House
           of
           Commons
           have
           sate
           Judicially
           upon
           Matters
           of
           Life
           and
           Death
           .
           A
           Bill
           
           of
           Attainder
           is
           reckoned
           the
           strongest
           way
           ,
           because
           there
           is
           a
           Concurrence
           of
           all
           the
           Three
           Estates
           ,
           of
           both
           the
           Judicial
           and
           Legislative
           Power
           ;
           and
           that
           is
           necessary
           for
           making
           a
           Forfeiture
           of
           all
           manner
           of
           Rights
           ,
           Titles
           ,
           and
           Interests
           ,
           which
           otherwise
           are
           not
           Forfeitable
           :
           And
           if
           at
           any
           time
           there
           was
           an
           opportunity
           for
           the
           Clergy
           to
           transgress
           the
           Laws
           both
           Ecclesiastical
           and
           Civil
           .
           (
           I
           mean
           the
           Statutes
           and
           Customs
           of
           this
           Realm
           )
           which
           was
           connived
           at
           by
           the
           rest
           of
           the
           Lords
           and
           Commons
           ,
           I
           hope
           that
           will
           not
           be
           accounted
           a
           Precedent
           to
           overthrow
           a
           Custom
           of
           so
           Ancient
           a
           Date
           ,
           and
           so
           agreeable
           to
           the
           Fundamental
           Constitution
           of
           the
           Government
           ,
           and
           the
           Grounds
           and
           Reasons
           of
           the
           Common
           Law
           ,
           and
           also
           Confirmed
           by
           an
           Act
           of
           Parliament
           :
           So
           by
           degrees
           the
           whole
           Method
           and
           Course
           of
           Parliamentary
           Proceedings
           may
           be
           altered
           ,
           and
           the
           very
           Being
           and
           Foundation
           of
           Parliaments
           shaken
           .
           So
           we
           should
           have
           had
           the
           Lords
           refusal
           to
           Sequester
           the
           Earl
           of
           Danby
           from
           Parliament
           ,
           a
           Precedent
           ;
           if
           they
           had
           not
           afterward
           acknowledged
           it
           to
           have
           been
           an
           Errour
           .
           We
           may
           find
           in
           many
           Cases
           the
           Lords
           Dispensing
           with
           
             Magna
             Charta
          
           :
           4
           E.
           3.
           n.
           6.
           
           They
           passed
           Judgment
           of
           Death
           upon
           several
           Commoners
           :
           15
           E.
           3.
           
           We
           find
           several
           Particulars
           enumerated
           ,
           wherein
           the
           Commons
           complained
           of
           Breaches
           of
           
             Magna
             Charta
          
           ,
           and
           we
           are
           not
           sure
           that
           all
           these
           particular
           Cases
           were
           remedied
           ,
           and
           therefore
           must
           these
           stand
           all
           for
           Precedents
           ?
           At
           this
           Rate
           there
           are
           few
           Points
           of
           Law
           perhaps
           that
           will
           escape
           Doubt
           and
           Controversie
           :
           for
           we
           shall
           have
           some
           of
           the
           Lords
           pretend
           they
           can
           transfer
           their
           Honours
           ,
           and
           so
           are
           able
           to
           make
           the
           Kings
           Enemies
           his
           Councellors
           ,
           because
           in
           Daincourts
           Case
           ,
           4.
           
           Inst.
           126.
           one
           Branch
           of
           the
           Family
           sate
           in
           the
           House
           by
           vertue
           of
           a
           Grant
           from
           the
           other
           Branch
           of
           the
           Family
           ,
           from
           the
           Raign
           of
           E.
           2.
           to
           H.
           6.
           
           And
           the
           Earldom
           of
           Chester
           was
           first
           granted
           17
           H.
           3.
           and
           transferred
           39
           H.
           3.
           
           And
           upon
           these
           Precedents
           there
           was
           an
           Attempt
           in
           the
           Lord
           Fitz-Walter's
           Case
           to
           make
           a
           Baron
           by
           Translation
           of
           interest
           .
           Admitting
           therefore
           that
           Once
           or
           Twice
           ,
           or
           such
           a
           matter
           ,
           the
           Bishops
           have
           Voted
           in
           Capital
           Cases
           ,
           yet
           they
           cannot
           Controul
           an
           Antient
           and
           well
           established
           Custom
           ,
           though
           I
           am
           not
           apt
           to
           believe
           there
           are
           many
           such
           Cases
           :
           However
           it
           was
           a
           very
           pleasant
           humour
           of
           a
           Gentleman
           that
           wrote
           lately
           of
           this
           matter
           and
           cited
           a
           Precedent
           in
           the
           Raign
           of
           R.
           2.
           
           Of
           the
           Earl
           of
           Arundel
           and
           Wardor
           ,
           whereas
           there
           was
           no
           such
           Lord
           as
           Arundel
           and
           Wardor
           Created
           till
           King
           James
           his
           time
           ,
           
             Vide
             pa.
             ult
          
           .
           so
           p.
           30.
           
           He
           cites
           the
           Case
           of
           the
           Earl
           of
           Salisbury
           ,
           who
           in
           his
           Petition
           says
           the
           Prelates
           are
           Peers
           in
           Parliament
           ,
           and
           assigns
           for
           Error
           that
           they
           were
           Absent
           when
           Judgment
           was
           given
           against
           his
           Father
           ;
           and
           this
           is
           a
           good
           Precedent
           to
           prove
           the
           Prelates
           right
           to
           Vote
           in
           Capital
           Cases
           as
           Peers
           in
           Parliament
           :
           Whereas
           the
           Petition
           was
           disallowed
           ,
           and
           the
           Judgment
           affirmed
           by
           the
           resolution
           of
           the
           whole
           House
           .
           Such
           a
           way
           of
           arguing
           deserves
           some
           special
           animadversion
           .
           But
           I
           shall
           supersede
           any
           further
           Consideration
           of
           the
           matter
           ,
           and
           shall
           conclude
           that
           without
           an
           Act
           of
           Parliament
           the
           Bishops
           can
           have
           no
           right
           to
           Vote
           in
           Capital
           Cases
           ,
           which
           if
           this
           present
           Parliament
           shall
           think
           fit
           to
           make
           ,
           it
           behoves
           all
           true
           Subjects
           to
           agree
           thereto
           .
        
         
           FINIS
           .
        
      
    
     
       
         Notes, typically marginal, from the original text
         
           Notes for div A30974-e1790
           
             Baker
             124.
             
             Co.
             2.
             
             Inst.
             654.
             
          
           
             Baker
             141.
             
          
           
             Vide
             Parliam
             .
             held
             at
             Clarendon
             .
             11.
             
             H.
             2.
             
          
           
             
               Fitz.
               Tit.
               Cor.
               pl.
            
             417.
             8
             
             E.
             2.
             17
             
             E.
             2.
             386.
             19
             
             E.
             2.
             233.
             
          
           
             
               Vide
               Co.
            
             ●
             .
             Inst.
             636.