Concerning the Bishops Right to Vote in Parliament in Capital Cases, Chapter 3

Concerning the Bishops Right to Vote in Parliament in Capital Cases · Chapter 3

p. 71CHAP. III.

The Precedents on both sides laid down: those against the Bishops examined and answered.

II. I Now come to examine the Precedents, and shall proceed therein according to due Order of Time.

And so the first is taken from the Saxon times;Lett. p. 57. viz. from Brompton's Relation about Edward the Confessour's appealing to the Earls and Barons about Earl Godwin's murthering of his Brother Alfred. pag. 59.Here we see, saith the Authour of the Letter, it was onelyonly ad Comites & Barones that he appealed, and they were onelyonly p. 72to judge of it, and not Bishops or Prelates.

I have 2 things to answer to this Precedent. 1. That we have great reason to suspect the truth of it. 2. That if it were true, we have no reason to suspect the Bishops to be excluded.

1. For the truth of the Story. That there is great reason to suspect it, appears, in that it is the single relation of Brompton, against the consent of the other Historians, (and some of them much ancienter, and nearer to that time,) who mention K. Edward's charging Earl Godwin with the Death of his Brother, not in Parlament, but as they were at Table together at Winchester, upon the occasion of a saying of Earl Godwin's, upon the King's Cup-bearer's stumbling with one foot, and recovering with another; See, saith he, how one Brother helps another. Upon which Matt. Westminster, Knighton, and others say, that the King charged him about the Death of his Brother Alfred. Whatever the occasion was, our best Historians of that time, Malmsbury and Ingulphus, say, it was at an Entertainment at Winchester, and that Earl Godwin died upon the place; being choaked, as they say, with a Morsel of Bread he took with p. 73a great Execration upon himself if he were not innocent. Knighton saith, he was question'd for the Death of his Brother by Hardecnute, and that he cleared himself, by saying he did nothing but by the King's command. But suppose Edward to be never so weak a Prince, is it likely this should be done by an Appeal in Parlament by the King himself; and that afterwards, by the Judgment of his Earls and Barons, he and his Sons and 12 Kinsmen should make the King amends, by as much Gold and Silver as they could carry between their Arms? Besides, Brompton saith, this was done by Godwin when he returned to England, after King Edward's coming to the Throne; whereas Malmsbury shews, that it was through Earl Godwin's interest, that ever he came to it; and so the marrying his Daughter would make any one believe.

2. But suppose it true. What reason is there to conclude the Bishops not present, who were never absent through all the Saxon times, after Ethelbert's Conversion, in any publick Councils of the Nation? They had no Canon then to be afraid of; for that of the Council of Toledo was brought in by Lanfranc. And it was not against the practice of those p. 74Times. For if we believe as true a Story as this of Brompton, the Archbishop of Canterbury himself condemned King Edward's Mother Emma to a Trial by hot Irons, which was present death without a Miracle: and this it is said was done by the consent of the King and the Bishops; which is as good a Precedent against Temporal Lords, as the other is against the Bishops. However, this is certain, that the Bishops then sate in the County-Court at all Iudgments. And whereas the Authour of the Letter would avoid this, by saying that no Capital Crimes were tried there;Lett. p. 110. the contrary is most certainly true. For the Laws of King Edward, as they were set forth by H. I. c. 31. mention the Capitalia Placita that were there held. And the Authour of the MS. Life of S. Cuthbert saith, that when one of Earl Godwin's Sons was Earl of Northumberland, and one Hamel, a very bad man, was imprison'd by him, his Friends interceded earnestly with him, nè capite plecteretur, that he should not lose his head. By which it appears, that Cases Capital were heard and determin'd in those Courts, the Bishop and Earl sitting together in Iudgment. And here the Point is plainly gain'd, because the Authour of the Letter p. 75grants that the Bishops sate in all Iudgments in the County-Courts, and then puts the matter upon this Issue, whether Capital Crimes were there tried or not; which I have clearly proved that they were. But I shall make another advantage of this against the Authour of the Peerage, &c. for it plainly overthrows that confident Assertion of his,Lett. p. 21. That without doubt there was a Negative Custom, that the Prelates should not exercise Iurisdiction in Capital Cases, so ancient as to be part of the Fundamental Contract of the Nation. It were a thousand pities that such well-sounding words, so handsomely put together, should signifie nothing. I dare not be so positive as he is, but am of opinion, that if he could be perswaded to produce this Fundamental Contract of the Nation, which I perceive he hath lying by him, it would not amount to so much as a blind Manuscript. If it be said, that Brompton onelyonly mentions Earls and Barons, and Bishops were not then made Barons; I answer, that Baronies were brought into England by the Conquerour, and therefore Brompton must speak improperly, and consequently, taking it onelyonly for a Title of Honour, he means no more then those who were the Great men of that time, p. 76and so may take in the Bishops too: of which more afterwards. But there is one thing more in the Laws of H. I. (which were onelyonly a restoring K. Edward's Laws) that implies that Bishops had then a Power of Judging in Cases Capital; which is c. 58. Qui occiderit Episcopum sit in arbitrio Principis & Episcoporum, He that killed a Bishop was to be left to the Will of the King and the Bishops. Which shews that they were to hear and examine the whole Evidence, and to give Judgment according to it.

After the Saxon times,Lett. p. 55. the first Precedent produced is of the 33 Edw. I. concerning Nicolas Segrave, who was summon'd to appear in Parlament, and after his Offences were open'd, the King advises onelyonly with the Temporal Lords, who declared, such a man deserved to lose his Life. But is he sure the Bishops were not present? No: he saith, that doth not appear by the Record; but it appears clearly they were not to meddle with it. How so? The King declares, that he would have the Advice Comitum, Baronum, Magnatum, & aliorum de Consilio suo. But is he sure they are not comprehended under Magnates, and that there were no Clergy-men at that time of the King's Counsel? What thinks p. 77he is William de Hamilton, Dean of York▪ who was made Lord Chancellour Ian. 16. 33 Edw. I. and this Parlament was held the next Sunday after S. Matthias, which was the latter end of February? And in the 35. year, Ralph de Baldock, Bishop of London, was made Lord Chancellour: and scarce any other but Church-men had that Office all his days. The Bishop of Bath and Wells was Chancellour near twenty years of his Reign; after him the Bishop of Ely; after him the Dean of Chichester; and then comes the Dean of York. And among the Lords Treasurers of his time; were the Archdeacon of Dorset, the Abbot of Westminster, two Bishops of Bath and Wells, whereof one was Treasurer at this time. These two, I hope, we may suppose to be of the King's Counsel in this business; who we are certain were both Church-men. And if they adjudged Nic. de Segrave worthy of death, who so likely to deliver that Judgment as the Chancellour? But suppose these were not there, whom doth he mean by the Magnates then distinct from Earls and Barons, who were of the House of Peers? Mr. Selden will inform him, if he needs it, that there were no Dukes till the II. of Edw. III. nor the Title of p. 78Marquess till R. II. nor of Vicount till H. VI. And yet here were Magnates in Parlament, who were neither Earls nor Barons: and therefore we must in all reason understand the great Church-men, who were not so nice of meddling with Criminal Causes in Parlament of the highest nature in the time of Edw. I. As appears by the great Cause so much agitated in Parlament 20 Edw. I. concerning the Earls of Hereford and Gloucester; where this latter is charged with raising Arms without Commission, and committing Murthers and horrible Devastations in the Lands belonging to the other; and the King in Parlament appoints the Bishop of Ely with others to be a Committee for examination of this matter. And when they had both submitted to the King's Pleasure, we have these remarkable words in the Placita Parlamentaria. Per Consilium Archiepiscoporum, Episcoporum, Comitum, Baronum, ceterorumque de Consilio suo existentium, facere volens in premissis, & ut voluntas sua justa sit & rationabilis, prout decet, eorumque assensum in premissis petiit, & Consilium. Propter quod, habito tractatu diligenti coram ipso Domino Rege & Consilio suo super predictis, tam ipsi Domino p. 79Regi quam ceteris Prelatis & Magnatibus, & singulis de Consilio suo, videtur quoad Comit. Gloucestr. and then follows the Sentence; which I confess did not extend to Life, but to a Forfeiture of his Estate to the King. However, we see hereby that the Bishops were present at all the praeliminary Debates, and the King asked their Advice; so that they had their Votes in the Sentence, whether it should extend to Life or not.

In the Reign of Edw. II. we meet with a remarkable Precedent in behalf of the Bishops Right, which is of a Iudgment reversed made by the Lords without the Prelats, viz. the Iudgment against the two Spencers 15 E. II. which Iudgment is said to be passed at Oxford that year, but in the Parlament at York, Claus. 15 Ed. 2. n. 23, 24. & dors. 13. 32.the same year, it was nulled and made void before the King, Lords and Commons; and one of the Reasons given for it is, because the Lords Spiritual, who were Peers, assented not to it. This Precedent had been cited and allowed by Mr. Pryn, in his Plea for the Lords; Plea for the Lords, p. 193.and therefore it is to be wonder'd the Authour of the Letter takes no notice of it. But the later Authour of the Discourse about the Bishops Peerage and Iurisdiction, Discourse of the Bishops Peerage, pag. 20.owns the truth p. 80of the thing, saying, that the two Iudgments aganst the two Spencers were reversed 15 Edw. II. for this Cause, through the great favour and interest they then had at Court. But then he thinks he hath taken off the force of this Precedent, by saying that 1 Edw. III. c. 1. this Iudgment is declared good, and therefore the said Reversal null and void; and the two Spencers upon this affirmance of the Iudgment were executed. This last Assertion every one knows to be a grievous mistake, that hath but looked into our History: for the Spencers were executed before Edw. III. came to the Crown; the elder in October 19 Edw. II. the other the latter end of November 20 Edw. II. And whereas he insists upon the Affirmance of the Iudgment 1 Edw. III. he had done well to have look'd a little farther, and then he would have found that Act also repealed 21 R. II. So that if the Act of 1 Ed. III. which affirms the first Judgment, may seem to take off the force of this Precedent, the repealing of that Act in the 21 R. II. restores it again, and leaves it in its full force. Especially if it be considered, that the Act of 1 Ed. III. was not barely repealed, but declar'd in Parlament to be unlawfull, because Ed. II. p. 81was living, Rot. 64. 21 R. 2.and true King, and imprison'd by his Subjects at the time of that very Parlament of 1 Ed. III.

Thus far this Precedent is good. But I will conceal nothing that may with any colour be objected against it. And I cannot deny but what the Authour of the Letter objects, against the Bishops constituting a Proctor to represent them in Capital Causes, seems to be of equal force against this Precedent, viz. That this Parlament of the 21 R. II. and all that was done in it, was repeal'd in the 1 H. IV. And if that be so, (and those Acts of State which then passed had not again been repealed 1 Ed. IV.) then the Repealing of that of 1. Ed. III. signifies nothing, and consequently the Affirmance of the first Iudgment against the two Spencers is good notwithstanding that Repeal. And therefore that we may examine this matter to the bottom, I shall set down the very words of the Authour of the Letter concerning it. Speaking of the Declaration made by the Lawyers in the 10 Ed. IV. concerning the Bishops making a Procurator in Capital Causes, he hath these words:pag. 79. It is true, here is mention made of their making a Proctor, which was Error temporis, the Errour of those times, grounded p. 82upon what was so lately done, (as they looked upon it) though irregularly done, in the last Parlament of R. II. whom they consider'd as their lawfull King; and in truth he was so, the three Henry's that came between being but Vsurpers. And again, speaking of the same business of a Proctor in the 21 R. II. he hath this remarkable passage:pag. 115. I have already shewed, that this whole Parlament was repeal'd for the extravagant things that were done in it, of which this was one. And therefore nothing that was then done can signifie any thing to a leading case any ways to be followed; and this as little as any: except it could be made appear, which I am confident it cannot, that some Iudgment had been reversed upon that account, because the Prelats were not present, and had not given their assent to it.

Now if I can make out these two things, 1. That the Parlament of R. II. was not legally repeal'd; 2. That the Iudgment against the two Spencers was revers'd, and that the Repeal of that Reversal in 1 Ed. III. was revok'd in 21 R. II. upon this very account, because the Prelats were not present, and had not given their assent to it; I hope the Authour of the Letter will be satisfy'd, that p. 83both this Precedent, and the Case of a Proctor, are very significant in this Cause; and that there is a great difference between being confident, and certain of any thing.

1. That the Parlament of 21 R. II. was not legally repeal'd. And for this I take the Authour's own acknowledgment, that R. II. was in truth lawfull King, and that H. IV. was but an Vsurper: Nay, I add farther, that R. II. was alive and in prison when H. IV. repeal'd the Parlament of 21 R. II. For so it is said in the very Act of Repeal, that R. II. late King of England was pursued, taken, put in ward, and yet remaineth in ward. And now I leave it to the Authour of the Letter, whether a Parlament call'd by a lawfull King, and the Acts of it, ought to be deem'd legally repeal'd by a Parlament that was call'd by an Usurper, and held whilst the lawfull King was alive, and detain'd in prison.

2. That the Iudgment against the two Spencers was revers'd, and the Repeal of the Reversal of it in 1 Ed. III. revok'd in 21 R. II. and that upon this very account, because the Prelats were not present, and had not given their assent to it; which the Authour of the Letter is p. 84confident cannot be made appear. pag. 115.That this Iudgment was reversed for this Reason I have already shewn, viz. in the Parlament at York 15 Ed. II. And I shall now shew, that the Repeal of that Reversal in 1 Edw. III. was revok'd in 21 R. II. and that upon the account mentioned. For in this Parlament Tho. le Despenser, Earl of Gloucester, exhibited two Bills, in which he prayeth that the Revocation of the Exile of the two Spencers in 15 Ed. II. might be brought before the King and confirmed, and that the Repeal of the same made in the 1 Ed. III. might be revoked. Of which Act of Repeal these Errours are assigned, among others:Kot. 55, 56. 21 R. 2. because the Prelats, who are Peers of the Realm, did not assent to the Iudgment; and because it was made onelyonly by the Earls and Barons, Peers of the Realm, &c. and because it was made against the form of the Great Charter of England, in which it is contain'd, that no man shall be exil'd, or otherwise destroyed, but by the lawfull Iudgment of his Peers, or by the Law of the Land. So that it seems it was look'd upon as a breach of the Great Charter, for the Temporal Lords to condemn a Peer without the Assent of the Bishops, and that such a Iudgment was p. 85not esteem'd a lawfull Iudgment by his Peers. And those Errours of the first Iudgment assign'd in the Revocation of it in 15 Ed. II. are allowed in this Parlament of 21 R. II. and that Revocation confirm'd, and the Repeal of it in 1 Ed. III. revok'd upon the same account. I shall onelyonly observe,R. 2. 21. that in this Parlament (as before in 15 Ed. II.) the Bishops are declared to be Peers; Peers of the Realm, Rot. 55. Peers in Parlament, Rot. 56. & 61; but most fully and distinctly in the Roll last cited, Peers of the Realm in Parlament. Of which farther use may be made in the last Chapter concerning the Peerage of the Bishops.

And now to sum up the force of this Precedent for the Iurisdiction of the Bishops in Cases of Treason. Here is a Reversal of a Iudgment, because made without the Assent of the Prelats, by the Parlament at York in 15 Ed. II. And whereas it is said this Reversal was repeal'd, and the first Iudgment affirm'd in 1 Ed. III. I have shew'd, that this was no legal Repeal, because Ed. II. was alive, and lawfull King, (or else Ed. III. could never have been so) in the time of that first Parlament of Ed. III. and consequently Ed. III. at that time was an Usurper, and the p. 86Proceedings of that Parlament null and void. So that the Reversal in 15 Ed. II. stands good, notwithstanding the Repeal in 1 Ed. III. Besides that this Repeal (whatever it was) is solemnly revok'd in 21 R. II. And H. IV. who revers'd all the Proceedings of the Parlament of 21 R. II. during the life of R. II. is acknowledg'd by the Authour of the Letter to have been an Vsurper, and R. II. to have been a lawfull King. And now I think that this Precedent hath all the advantage that can be, and that the Iurisdiction of the Bishops in Cases of Treason could not have been asserted in a higher manner, then to have a Iudgment in Case of Treason solemnly revers'd in two Parlaments for this very cause, because the Bishops, who are Peers, assented not to it: And this Precedent own'd by the House of Commons, in their Petition to have a Common Proctor appointed by the Clergy, in this very Parlament of 21 R. II. as is acknowledg'd by the Authour of the Letter.pag. 115.

To conclude this matter; whether the Acts of Parlament which contain this declaration of the Peerage of Bishops, and their Iurisdiction in Cases of Treason, were sufficiently repeal'd or not; this solemn p. 87Assertion of it in two several Parlaments, together with the Petition of the Commons mentioned before, are a most clear evidence, that in the general Opinion of the King, Lords, and Commons, this Iurisdiction did of right belong to the Bishops. And I am sure they are a Demonstration against the Authour of the Peerage his Assertion, of a Negative Custome, ancient as the Constitution of the Nation, that Prelats should not exercise Iurisdiction in Capital Cases. For had this been a clear and undoubted Custom from the first original of this Nation, it is morally impossible it could have entred into the minds of two Parlaments, solemnly to have raised this doubt, whether a Judgment given in a case of Treason by the Temporal Lords without the Assent of the Bishops were valid, and to have determin'd that it was not; when yet there was no manner of reason to imagine that the Bishops ever had any Jurisdiction in such Cases, nay, when there was an immemorial Custome and Usage to the contrary, namely, that the Temporal Lords had in all times exercised this Jurisdiction alone, and the Bishops had been excluded from any share in it.

p. 88And in the Apology of Adam D'Orleton, Bishop of Hereford, and after of Winchester, for his imprisoning R. de Baldock, a great Confident of Hugh Despencer's, he declares, that the reason why he was carried to Newgate was through the violence of the People; although, saith he, the Parlament then sitting, there was no cause of fear but Justice would be done. His words are, Domino Rege, Praelatis, Comitibus, ac aliis terrae Optimatibus Lundoniae tunc congregatis & praesentibus, pro Iustitia ibidem in Parlamento convocatis omnibus exhibenda. Which shews that the Prelats then did sit in matters of Justice in the House of Lords, and in Cases Capital; for this R. de Baldock was arraigned at Hereford for the same Crimes that Hugh Despencer was.

But the main strength of the Cause is supposed to lie in the Precedents produced out of the Rolls of Parlament from the 4 Edw. III. to the 38 H. VI. The force of these Precedents will be better understood, if we consider these things.

I. That many of them are meer Negative Testimonies. So 4 Edw. III. at the Trial of Roger Mortimer,Lett. p. 6. it is said, the Earls, Barons and Peers of the Realm were present, therefore the Bishops were not▪ p. 895 Edw. III. onelyonly the Great ones returned,pag. 8, 9. therefore the Bishops did not. So in the Case of Sir Iohn Grey. From whence he inferrs, that the Bishops were not to Iudge so much as of a Battery.pag. 10. 25 Edw. III. in Sir William Thorp's Case, the Grantz de Parlament were asked their advice, therefore not the Bishops.pag. 13. 1 R. II. in the Case of Weston and Gomenitz, the Bishops not mention'd; but other Lords, Barons and Bannerets.pag. 16. Sir Ralph de Ferrer's Case 4 R. II. the Bishops not present, because not comprised under les Seigneurs de Parlament. The like in Sir Iohn Oldcastle's Case 5 H. V.pag. 37. The Question, he saith, is, whether Bishops be comprehended under les Seigneurs de cest present Parlament. In the Earl of Devonshire's Case 31 H. VI. the strength lies in this, pag. 51.that the Peers are onelyonly mention'd; and he supposes no man will say, the Bishops were his Peers or Lords of the Realm. So that here are Eight Precedents, that are no more then Negative Testimonies: concerning which in general, Jurisdiction of the House of Peers asserted, p. 91.the Authour of the Iurisdiction of the House of Peers asserted hath a good observation; viz. That one, or two, or twenty Precedents in the Negative, nay, I say more, were the number equal as many in the Negative as in the Affirmative, yet p. 90it could not disprove their Iurisdiction: it would onelyonly shew, their Lordships were free Agents, to doe it, or not to doe it, as they saw Cause; but their Iurisdiction remained entire still, to doe it whensoever they would. So I say here; supposing that the Spiritual Lords were not present in these Cases, it onelyonly shews, that they were free Agents, and might withdraw at some times, and be present at others: which cannot overthrow their Right, for these Reasons.

(1.) Several of his Negative Precedents, if they prove any thing, prove the Bishops were not there, when he confesses they might have been there. As,

1. In Cases of Misdemeanours. At the Trial of Sir Iohn de Lee, Lett. pag. 11.42 Ed. III. being charged with several Misdemeanours, the Record saith, the Prelats were present. 50 Edw. III. p. 12.Several persons were accused by the Commons for Misdemeanours, and the Bishops he confesseth were present; as Rich, Lions, Iohn Lord Latimer, William Ellis, Iohn Peecher, Lord Iohn Nevil: at all these Trials the Bishops, saith he, were present; and no body says but they might. So in the Case of Alice Perrers, pag. 14.50 Edw. III. the Record saith, the Prelats were present, and gave p. 91Iudgment as to Banishment, and Forfeiture of her Estate.pag. 18. 10 R. II. Mich. de la Pool, Lord Chancellour, was accused by the Commons for several Misdemeanours before the King, Prelats, and the Lords. Here he yields the Prelats were Iudges of Misdemeanours together with other Lords. And yet if several of his Negative Precedents do prove any thing, they prove too much, viz. that the Bishops ought not to be present at the Trial of Misdemeanours: For, he saith, the Bishops were not present at the Trial of Weston and Gomenitz, 1 R. II. nor at the Trial of the Bishop of Norwich 7 R. II. nor at such Iudgments as that of Sir William de Thorp 25 Edw. III. Lett. p. 10.who was condemned for Bribery: and yet he yields they were at the Trial of Mich. de la Pool 10 R. II. But if they ought not to be present at those of 25 Ed. III. and 1 R. II. and 7 R. II. neither ought they to have been present at the Trial of Mich. de la Pool. Either therefore his argument doth not prove they were not present at the former, being onelyonly from general words; or they ought not to have been present at the latter, which he confesses they were. This will best appear by comparing the Cases together. 1 R. II. the Commons p. 92deliver in a Schedule to the Lords of their Demands, before they would proceed to a Subsidy; among which one was, That all such who without cause had lost or given up any Castle, or Town, or Fortress, to the dishonour of the King, or dammage of the People, may be put to their Answer before the Lords and Commons that Parlament. Here was no particular Impeachment of these Persons; but upon this the Lords sent for these two Persons who were Prisoners in the Tower upon this account; and the Charge against them was, delivering two Towns in Flanders without Commission. Weston made a long and plausible Defence, to which no Answer was given; yet both were condemned to die.pag. 17. The Bishop of Norwich was charged with several Miscarriages and Misdemeanours, saith he: why might not the Bishops be present at this Trial? To that he saith, he was charged with one Capital Crime, viz. betraying Graveling to the French: but he confesseth, he cleared himself of this, before they came to Iudgment: and yet he would have the Bishops excluded at this Iudgment; and that of Sir William Elmham, Sir Thomas Trivet, and others; but confesses they were present at the Trial and Iudgment of Mich. p. 93de la Pool. Let us then see, what kind of Trial this was. He was impeached in the name of the Commons of England, and 6 Articles were exhibited against him. The main were, concerning defrauding the King, and misimploying the Aids granted to the King last Parlament, whereby much mischief happen'd to the Kingdom: as may appear by the Rolls, and the Articles printed in Knighton. Knighton de Event. p. 2684.Upon these Articles, the Record saith that the Commons prayed that Iudgment of Death might pass upon him, as it did upon Sir William de Thorp for receiving 20 li. by way of Bribery. And yet this Iudgment of Sir William de Thorp is one of the Precedents against the Bishops being present; when he allows that they were present at the whole Trial of this Mich. de la Pool, when a great Minister of State was so hotly charged by the Commons, for offences of so great a nature, and which in their Judgment deserved no less then Death. From whence it follows, by his own confession, that the Bishops may be present, when the Ministers of State are impeached by the Commons of such Crimes which in their Iudgment deserve no less then Death.

p. 942. In Acts of Attainder, when the Houses proceed in a Legislative way, he grants the Bishops may be present; and yet if some of his Precedents signifie any thing, they prove they ought not to be present at the passing of them. As,

1. In the Case of Roger Mortimer and others accused and tried in Parlament 4 Ed. III. He confesseth the Roll cannot be read,Lett. pag. 6. and therefore referrs to 28 Ed. III. where Roger of Wigmore desires that the Attainder may be examin'd: which was reversed by Act of Parlament, and therefore we may justly suppose the Iudgment given against him was ratified in Parlament. Cestrens. l. 7. c. 44. Knighton, p. 2558.And some of our Historians say, he was condemned judicio Parlamenti. And in the Petition of Roger Wigmore, he prays that the said Statute and Iudgment may be reversed and annulled. If therefore the Prelats could not be present here, then they are not to be present in the Legislative way: If they were present in Acts of Attainder, then this general Negative way of arguing proves nothing; for then the Bishops were comprehended under the name of Peers: which, without any Reason, he saith, the Bishops cannot pretend to be; when it is notorious that they challenged it in Parlament p. 9511 R. II. and it was then allowed, as well as their Protestation.

2. In the case of the Murther of Iohn Imperial,pag. 15. 3 R. II. an Act of Parlament passed to make it Treason: and he proves the Bishops had no Vote in it, nor were present at the preparing it. And yet he confesses, pag. 3. 118.that the Bishops have a right to sit in all Acts of Attainder, because they sit then in their Legislative capacity. Therefore these Negative Precedents prove nothing.

(2.) The insufficiency of these Negative Precedents appears by this, that we can make it appear by good Testimonies, that the Bishops have been often comprehended under the general Titles of Grantz, Peers, and Lords of Parlament, without any express mention made of them.

And because the great force of many of his Testimonies lies wholly in this, that the Bishops are not comprehended under the names of Grantz, Seigneurs, and Peers, I shall endeavour to make it clear beyond exception, that if the Precedents must be determined by the general words, all the advantage lies on the Bishops side.

It is certain that in elder times the p. 96Baronagium Anglie did take in all the Lords of Parlament, both Spiritual and Temporal. But I betake my self to the expressions used in the Records; and because the matter of the debate is confined within the times of Ed. II. and IV. I shall take notice of the language of Parlament within that time; reserving that of their Peerage to the proper place for it.

I begin, as the Authour of the Letter doth, with 4 Edw. III. and in that year n. 6. the Record runs thus; Et est assentu & accorde per nostre Seigneur le Roi, & tout le Grantz en plcyn Parlement: where a Law was passed concerning Trial by Peers; and in the passing of a Law our Authour allows the Bishops to be present. But it is more plain n. 12. Accorde per nostre Seigneur le Roi, & les Grantz de mesinme le Parlement; It is agreed by the King, and the Great ones in Parlament. But that the Bishops are comprehended under theseGrantzis evident; for it is there said, that the Petitions of Edmund Earl of Kent and Margaret Countess of Kent, to which that Agreement referrs, were read before the King, the Prelats, the Counts, the Barons, and other Grantz of the Parlament. In the same year, n. 14. we meet with les Preres des Prielatz & p. 97autres Grantz, the Petition of the Bishops and other Great men: and then it follows, Nostre Seigneur le Roi en pleyn Parlement, per assent, accord, prieres & conseal des ditz Prelatz & autres Grantz; Our Lord the King in full Parlament, by the assent, accord, petition and advice of the said Prelats and other Grantz. Which shews that they are some of the Grantz of Parlament.

5 Ed. III. n. 3. Touz les Prelatz & autres Grantz: n. 13. Grantz in general is used in the Debate between the Abbot of Crowland and Sir Thomas Wake: and n. 15. le Roi & as autres Grantz en pleyn Parlement: n. 16. Item fu accorde per le Roi & touz le Grantz en mesme le Parlement, auxibien per Prelatz come per autres;It was agreed by the King and the Great men of the Parlament, as well by the Prelats as others. Nothing can be plainer then that here the Bishops are called Grantz, as well as the other Lords of Parlament.

6 Ed. III. n. 1. Devant nostre Seigneur le Roi, & touz le Prelatz, & autres Grantz: The Articles were read before the King, the Prelats, and other Great men. If the Bishops had not been comprehended under Grantz, the Record would p. 98have onelyonly used Grantz, and not autres Grantz. But the same expression is again used n. 5. In the second part of the Rolls of that year, n. 1. we find three several ways of expressing the Persons then present: the first, les Prelatz, Countes, Baronns, & autres Grantz du Parlement; the next is, queux Prelatz, & autres Grantz; the third is, touz le Grantz en mesme le Parlement: and all these are used to express the same Persons. And again n. 3. touz les Grantz du dit Parlement; which are there opposed to Chivalers des Countez; and are more distinctly mention'd before in these words, les ditz Prelatz, Countes, Barouns, & autres Grantz, & les Chivalers des Countes, & tote la Conumune. Sometimes the Grantz are taken in general, for all of the House of Peers; and the Commons for the Lower House. So 21 Ed. III. n. 63. il assentuz per lui, les Grantz, & la dit Comunalte a son Parlement: and again, ditz Grantz & de tote la Com̄e susditz: and, le Roi per assent des Grantz commanda a la ditz Com̄e. From these examples, and many more which might, if it were needfull, be produced, it evidently appears that the Bishops were Grantz in Parlament, p. 99according to the language of that Time: and therefore the Precedents produced wherein onelyonly the Grantz are mention'd, are of no force at all against the Presence of the Bishops. And that Assertion of the Authour of the Peerage, pag. 15▪&c. appears to be without any ground, viz. that the Bishops are never spoken of in any Record but by the name of Bishops or Prelats, or some such name, to distinguish them from the Laiety. These general Negatives are very bold and dangerous things; and one Affirmative overthrows them. But I have produced many Instances to the contrary, and might do many more. Such men who dare venture upon such bold Sayings, must be presumed to have read over all the Records themselves; and must presume that none else ever so much as looked into them. But that Authour discovers too much his Second-hand Learning in these matters; and we might have wanted several of his Precedents, had it not been for Mr. Selden's Baronage.

As to the Title of Seigneurs du Parlament, Rights of the Bishops, p. 56, 57, &c.being common to the Bishops, I am prevented by another hand.

I shall onelyonly adde two Precedents more, not taken notice of by others. The one 7 R. II. The Answer of Mich. de la p. 100Pole is said to becoram Magnatibus & Communitate in Parlamento;where the Authour of the Letter confesseth the Bishops were present, and therefore comprehended under theMagnates. The other 15 H. VI. One Philipps complained against the Bishop of London to the House of Commons: they sent the Complaint up to the Lords: the Bishop asks the Advice of the House; who gave this Answer, Non consentancum fuit aliquem Procerum alicui in eo loco responsurum. Which had signified nothing, if the Bishops had not been allowed to be Proceres Regni. So much for his Negative Precedents.

II. Some of his Precedents were condemned in Parlament to be irregular and erroneous in other respects; and therefore it is no wonder if they should be so in this.

1. The Iudgment upon Roger Mortimer, Earl of March, 4 Ed. III. was reversed in Parlament 28 Ed. III as defective and erroneous in all points; being without any Proof or Witnesses, or bringing the Person to answer for himself. And therefore it was an Honour for the Bishops not to be present.

2. The Iudgment upon Haxey,Lett. p. 24. 20 R. II. is confessed by the Authour to be p. 101most unjust, and would not onelyonly have shaken, but wholly destroyed the very foundation of Parlament; and reversed 1 H. IV. as against Right and Course of Parlaments. And he confesseth the Bishops were present at condemning it, but not at passing it. Which also makes much for their Honour.

III. Some of his Precedents prove that when the Bishops did withdraw, they did it voluntarily, and took care to preserve their Right, either by Protestation, or appointing a Proxy.

[1.] That they withdrew voluntarily. So 5 Ed. III. it is said, Lett. p. 8.that the Bishops did withdraw at that time, being of opinion that it did not properly belong to them to give Counsel about keeping the Peace, and punishing of Malefactours: and so, saith he, they went away by themselves, and returned no more. But although this proves nothing but a voluntary Act of the Bishops in withdrawing; yet the representation made of this matter is so partial, and different from the Record, that I cannot but take a little more notice of it.

1. He saith, that the Prelats being of opinion that it belonged not properly to them to give Counsel about keeping the Peace, or punishing such evils, they went away by p. 102themselves, and returned no more. Thereby insinuating, that they looked on this matter as wholly unfit for them to meddle in, and thereupon left the House. Whereas the words of the Record are, Si alerent mesmes les Prelatz & les Procurators de la Clergie per eux mesmes a conseiler de choses susdites, & les ditz Countes, Barons & autres Grantz per eux mesmes: So the Prelats and Proctors of the Clergy went by themselves toconsult about the aforesaid matters, and the Earls, Barons and other Great men by themselves. So that this withdrawing was but into several Committees, as was usual at that time, by which the sense of the 3 Estates was best understood; and then they met together, and agreed upon what was fit to be made a Law. This appears by 6 Edw. III A quen jour de Ioedi eu ont trete & deliberation, cest assavoir les ditz Prelats per eux mesmes, & les ditz Countes, Barons, & autres Grantz, per eux mesmes; & auxint les Chivalers des Countes per eux mesmes: Upon which Thursday they enter'd upon debate, (concerning the News from Scotland) the Prelats by themselves, the Lords and other Great men by themselves; and so the p. 103Knights of Counties by themselves. The Houses being then not wholly separate, nor always together; but dividing into Committees, and not into Houses, as occasion required; and then joyning together to express their common Sense. So 40 Ed. III. when the occasion of their meeting was deliver'd, which was an extraordinary message from Rome, the Pope sending for Tribute and Homage, it is said, the Bishops went by themselves, and the other Lords by themselves, and the Commons by themselves; and then met together, and declared their unanimous resolution to oppose to the uttermost any such Demand. Such a withdrawing of the Bishops it was in this case. For they and the Proctors of the Clergy (whether by them we understand the Procuratores Cleri, who, according to the Modus tenendi Parlamentum, made a part of the Parlament; or the Proxies of the absent Bishops, who were allowed to supply their places, as appears by 35 Ed. I. and the Case of the Bishops of Durham and Carlile in the Parlament at Westminster Ed. II. and 17 R. II. and many other instances afterwards) thought fit to consider in this matter what was most proper for them. And accordingly we find p. 104Ecclesiastical Censures added to the Civil Sanctions, and brought in by the Prelats at that time, which are still extant in the Record.

2. Whereas he saith, the Bishops returned no more, the Record saith the contrary. For it expresly saith, that the Orders for keeping of the Peace agreed on by the Committee of Lords were read before the King, the Bishops, the Knights of Counties, and the Commons, and did please them all; & per nostre Seigneur le Roi, Prelatz, Countes, Baronns, & autres Grantz, & auxint per les Chivalers de Countez & gentz de Commun, furent pleynment assentuz & accordez. And the same is immediately said of the Censures brought in by the Bishops. Which made me extremely wonder at his saying that the Bishops returned no more; whereas it is very plain, they did not onelyonly return, but the Orders were read before them, and they did give their assent to the Passing of them.

In the Parlament 11 R. II. that it was onelyonly a voluntary withdrawing, I prove from the concessions of the Authour of the Letter; viz. that they might be present in all Acts of Attainder. For it is evident from the printed Statutes, that they p. 105proceeded by way of Attainder against the Ministers of State; and therefore they might have been present, if they pleased, upon the Authour's own grounds. How is it then possible for him to understand de Iure non possumus, in their Protestation 11 R. II. of the Law of the Land, when he grants that in all Acts of Attainder, they may de jure be present and give their Votes?

[2.] When they did solemnly withdraw, they took care to preserve their Right two ways; (1.) by Protestation, (2.) by Proxie.

1. By Protestation, saving their Right; which was receiv'd by the House, and enter'd:pag. 24. of which before. The late Authour of the Peerage and Iurisdiction of the Lords Spiritual will not allow the Protestation to be an argument of any Right; neither, saith he, doth the permission or allowance of any Protestation yield the Right which the Protester is desirous to save, but onelyonly saves the Right which he had before, if he had any. Whereas the Authour of the Letter makes it as good as a Law, Lett. p. 23.being entred in the Iournal-Book, that such a thing was agreed by the King and the two Houses. I will not deny that the former Authour speaks p. 106more reasonably in this matter, when he saith, that the utmost a Protestation can doe is, to anticipate a Conclusion, or Estoppell; i.e. to provide that the doing of any such Act as is contained in the Protestation, shall not be construed to the prejudice of the Party, so as to bar or conclude him from claiming afterwards that which in truth is his Right. It is true, this Protestation passed with greater solemnity then usually; for it was with the consent of the King and both Houses: but however it retained the nature of a Protestation. And there was no distinction at that time between a Iournal-Book and the Rolls of Parlament. For a good Authour assures us,Selden's Bar. pag. 6. the Iournals of the Vpper House began 1 H. VIII. and therefore the Authour of the Peerage, Rights of the Bishops, pag. 76.&c. deserved no such severe reproof on that account. But this is all I plead for, viz. that this Protestation was a Salvo to their Right; which meeting with no contest or opposition in the Houses, but passing with unanimous consent, is a certain argument the Houses did not think there was any Law to exclude them. And therefore the Authour of the Iudicature very well saith, That had it not been for the Canon-Law, (for which he referrs to the Synodal Constitutions at Westminster p. 10721 H. II. which is onelyonly reviving the Council of Toledo's Canon,) they might have been present both by Common Law, and by the Law of God.

2. By Proxie, or one common Procurator to appear in Parlament for them, and to vote in the name of the whole Body. This was receiv'd and allow'd 21 R. II. upon the Petition of the House of Commons, because Iudgments had been reversed without their concurrence. Against this the Authour of the Letter objects many things which are easily answer'd.

1. That hence it appears they could not be personally present. Lett. p. 28.On the contrary, from hence it follows they had a Parlamentary Right to be present; although they said by Canon-Law they could not.

2. That it was never practised but in this one Parlament. That is strange, when himself confesseth, that it passed for good Law 10 Ed. IV. Term. Pasch. n. 35. and the same is cited by Stamford Placit. Cor. l. 3. f. 153.pag. 78. To which judgment of the Lawyers, and the greatest of their time, (for Littleton was then Judge 10 Ed. IV.) we have a very extraordinary Answer called Error Temporis; pag. 79.which will equally make void the Law or Iudgment of any Age. But is it possible, that should pass p. 108for Law 10 Ed. IV. which was never practised but once 21 R. II. and the contrary practice had been onelyonly allowed all the intermediate times? Thus a short answer may be given to the Constitution of Clarendon, it was Error Temporis; to the allowing the Protestation 11 R. II. it was Error Temporis; and so on to the end of the Chapter. If there were any Error Temporis in this matter, it lay in this, that they took this Precedent 21 R. II. for a sufficient Ground, that the Bishops should onelyonly appear by Proxy in such Cases; whereas the Canon-Law being taken away since the Reformation as to these matters, their Right of Personal appearing doth return to them of course.

3. That this Parlament was repealed 1 H. IV.Lett. p. 79. But this I have answer'd already from his own words, wherein he acknowledges him to be an Vsurper, and consequently the Repeal not made by a legal Parlament. And this Repeal was again taken off 1 Ed. IV.

4. That it is not at all Parlamentary, for one or two men to represent a whole Body. The consequence then is, that they ought to enjoy their own Personal Right. All that we urge from hence is, that the Bishops kept up their Right still by their Proxies, when they thought the Canons p. 109would not allow voting in their own Persons.

IV. Some of his Precedents do prove, that after the Protestations and Proxies, they did assert their own Personal Right, and were present both at Examinations, and at the whole Proceedings.

1. At Examinations. As in the Case of Sir William Rickill 1 H. IV. who was brought to Parlament before the King and the two Houses,Lett. p. 31. the Lords Spiritual and Temporal and the Commons then assembled together. And he grants the Bishops were present at his Examination.

2. At the whole Proceedings, pag. 41. to pag. 48.28 H. VI. where he confesseth the Bishops were not onelyonly personally present, but did act and bear a principal part in aIudicialproceeding in Parlament, in a Case that was in it self Capital, viz. of William de la Pole, Duke of Suffolk. Which is very fully related by the Authour, and needs no repetition. All that he hath to say to this, is, that the whole Proceedings were irregular, and not to be drawn into Precedent. Whereas a great Lawyer in his time, Sir E. C. made use of this as a sufficient Precedent in a Case of great moment, about Commitment upon a general Accusation. But there is not any Irregularity expressed or intimated p. 110in the Bishops appearing, and judging as other Lords did; and the Judgment was not reversed because of their being there, as we have shewed others have been for their being absent.

V. None of all his Precedents do prove that the Bishops were ever excluded from sitting, by any Vote of the House of Lords or Commons. That they might voluntarily withdraw, we deny not; or not be present at giving of Iudgment out of regard to the Canons: which is all that is proved by the Precedent of Iohn Hall 1 H. IV. of the Earls of Kent, pag. 32.Huntington, pag. 34.&c. 2 H. IV. of Sir Iohn Oldcastle 5 H. V. and of Sir Iohn Mortimer 2 H. VI. pag. 37.And this we have made appear was done by them out of regard to the Canon-Law; pag. 39.the force of which being taken away by the Reformation, the Bishops are thereby restored to their just Parlamentary Right. Neither can any Disusage be a bar to that Right, since the ground of that Disusage was something then supposed to be in force, which is now removed by the Reformation. And I fear, if this kind of arguing be sufficient to overthrow the Bishops Right, much stronger of the same kind may be used to overthrow the King's Supremacy in mattters of Religion. p. 111So great care ought men to have, lest under the colour of a mighty zeal against Popery, they do overthrow the very Principles of our Reformation.

VI. There are Precedents upon Record in the Rolls of Parlament, which are not mention'd by the Authour of the Letter, which do prove that the Bishops were present at the Examination of Treason and Capital Offences in Parlament. And that within the time,pag. 5. 51. wherein he pretends to give an account of all the Trials recorded in the Rolls. Which shews how easily men pass by those things they have no mind to see.

I begin with 4 Ed. III. and I must doe him that right, as to say, that he doth not onelyonly mention the Trial of Roger Mortimer, pag. 6.but of Sir Simon Bereford and others who were accused and tried in Parlament. But pretending, that the Roll of that Parlament is so defaced that it cannot be read, he runs to that of 28 Ed. III. and so gently passes over all the other Trials which are in the Record, and are more plain and express as to this matter. Among the Articles against Roger Mortimer, Ed. l of March, one is, that after he knew certainly the death of Edw. II. he made use of Instruments to perswade Edward Earl of Kent, that King's Brother, that he was p. 112still living, and so drew him into a design for his Rescue; for which he was attainted at Winchester, and there suffer'd death for it. Among these Instruments the chief was one Mautravers, who for that Reason was attainted this Parlament: and the words of the Record are,Rot. Parl. 4 Ed. 3. n. 3. Trestouz les Pieres, Counts & Barons assemblez a cest Parlement a West. si ont examine estraitement, & sur ce sont assentuz & accordez, que John Mautravers si est culpable de la mort Esmon Count de Kent, &c. All the Peers, Counts and Barons assembled in this present Parlament, upon strict examination do assent and agree, that John Mautravers is guilty of the death of Edmund Earl of Kent. Here we have the strict Examination of a Capital Case in Parlament, and all the Peers are said to be present at it. It is used as an argument by the Authour of the Letter, that in the case of Roger Mortimer,pag. 7. the Bishops could not be comprized under the general name of Peers, since the Barons are first in rank. But here the Peers are mentioned before Counts and Barons; and it will be impossible for him to assign any other Peers at that time, that were named before them, but the Prelats; who frequently are so put in the Records of p. 113that time: as in the same Parlament n. 12. Prelatz, Countes, Barons;n. 13. Et per assent des ditz Prelatz, Countes, Barons; so again n. 14. 15. 17. 24. 25. But the Authour of the Letter saith,pag. 7. they cannot pretend to be Peers of the Realm. Let him name then other Peers of the Realm at that time, who were neither Counts nor Barons, and were before them. But if we are to judge who are Peers of the Realm by the Records of Parlament, I do not question but I shall make it evident, that the Bishops were so esteemed; and that some persons, who pretend to great skill in Records, either have not searched so diligently, or have not observed so carefully about this matter as they might have done. But of this afterwards.

In the same Parlament Judgment was passed upon Boges de Boyons, Iohn Deveril, Thomas Gurnay, William Ocle; but being by way of Attainder, and not upon particular examination, which is mentioned in the case of Mautravers, I pass them over.

In the Pleas of the Crown held before the King in this Parlament, we find another Case which relates to our present debate; viz. of Thomas Lord Berkely and Knight, who was arraigned for the death of King Ed. II. who came before the King p. 114in pleno Parlamento, in full Parlament, and there pleaded Not guilty; and declared he was ready to clear himself as the King's Court should advise. Then they proceeded to particular examination of him, how he could acquitt himself, being Lord of the Castle where the King was murthered, he being committed to his Custody and John Matravers. He pleaded for himself, that he was then sick at Bradley, and knew nothing of it. They charged him, that the Keepers of the Castle were of his own appointing; and therefore he was bound to answer for them. He answer'd, that they with Matravers having receiv'd the King into their custody, he was not to be blamed for what they did: and for this he put himself upon his Country. At the day appointed for his Trial, he appears again coram Domino Rege in pleno Parlamento; and the Iury returned him Not guilty. But because he appointed Gurney and Ocle to keep his Castle of Berkely, by whom the King was murthered, the King appoints him a day the next Parlament to hear his Sentence; and in the mean time he was committed to the custody of Ralph Nevil Steward of the King's House. In the next Parlament 5 Edw. III. n. 18. The Prelats, Earls and Barons petition the p. 115King, that he might be discharged of his mainprisors: the which was granted, and a farther day given him to appear next Parlament. But we reade no more of him, till the Summons he had 14 Ed. III. as one of the Lords in Parlament. The great force of this Precedent lies in understanding what is meant by appearing before the King in full Parlament. If under this the Bishops be comprehended, then this will be an uncontroulable Precedent of the presence of the Bishops in the Examination of a Case Capital.

What the importance of this phrase of full Parlament is, will best appear by the use of it in the Records of that time. 4 Ed. III. n. 6. Et est assentu & accorde per nostre Seigneur le Roi, & touz les Grantz en pleyn Parlement. Where it was agreed, that the procedings at that time by the Lords against those who were not Peers should not be drawn into consequence; and that the Peers should be charged onelyonly to try Peers. Which hath all the formality of an Act of Parlament: and therefore all the Estates were present, n. 8. Accorde est per nostre Seigneur le Roi & son Conseil en pleyn Parlement. Which was an Act of Pardon concerning those who followed the Earl of Lancaster.

p. 1165 Ed. III. n. 10. we have the particular mention of the Bishops, as some of those who do make a full Parlament. Accorde est per nostre Seigneur le Roi, Prelatz, Countes, Barons, & autres Grantz du Roialm en pleyn Parlement: and n. 17. En pleyn Parlement si prierent les Prelatz, Countes, Barons, & autres Grantz de mesme le Parlement, a nostre Seigneur le Roi, &c.

6 Ed. III. n. 5. the Archbishop of Canterbury made his Oration en pleyn Parlement, which is explained by en la presence nostre Seigneur le Roi, & de touz les Prelatz, & autres Grantz. n. 9. Si est accorde & assentu per touz en pleyn Parlement: who those were, we are told before in the same number, viz. les Prelatz, Countes, Baronns, & touz les autres somons a mesme le Parlement. Which is the clearest explication of full Parlament, in the presence of all those who were summon'd to Parlament. From whence it follows, that where a full Parlament was mention'd at that time, the Bishops were certainly present; and consequently did assist at the Trial of Thomas Lord Berkely, who appeared before the King in full Parlament: as Nich. de Segrave did 33 Ed. I. and there p. 117the Bishops are expresly mention'd as present; as appears by what hath been said before concerning his Case.

5 H. IV. Henry Hotspur, Son to the Earl of Northumberland, was declared a Traitour by the King and Lords in full Parlament; and the same day, the Father was, upon examination, acquitted of Treason by the Peers. It is not said that this was done in full Parlament, as the other was: but there are several circumstances which make it very probable the Bishops were then present. (1.) When the Earl of Northumberland took his Oath of Fidelity to the King, he did it, saith the Record, upon the Cross of the Archbishop; which was to be carried before him, if he went out of the House. (2.) The Archbishop of Canterbury pray'd the King, that forasmuch as himself and other Bishops were suspected to be in Piercie's Conspiracy, that the Earl might upon his Oath declare the truth: who thereupon did clear them all. Which shews that the Archbishop was then present in the House. And for the same reason that he was present, we may justly suppose the other Bishops to have been so too. (3.) The Earl of Northumberland beseeched the Lords and Earls and Commoners, p. 118that if he brake this Oath, they would intercede no more with the King for him. Now the better to understand this, we are to consider, that H. IV. takes notice in his declaration upon the Rebellion of Sir Henry Piercy, Walsingh▪ hist. Angl. pag. 366.that the Earl of Northumberland and his Son gave out, that they could have no access to the King, but by the Mediation of the Bishops and Earls, and therefore did beseech them to intercede with the King for them. It is not then probable, that those should be now left out, when the words are large enough to comprehend them, and no one circumstance is brought to exclude them. For that general one, of their not being Peers, will be fully refuted afterwards.

But that which puts this out of dispute is, (4.) that the Record saith, n. 17. the Commons not onelyonly gave the King thanks for the pardon of the Earl of Northumberland, but the Lords Spiritual and Temporal, in these remarkable words; Et au…i mesmes les Cōes remercierment les Seigneurs Espirituelx & Temporelx de lour bon & droiturell judgment quils avoient fait come Piers du Parlement: And likewise the Commons gave thanks to the Lords Spiritual and Temporal for the good and right Iudgment which they had given p. 119in this case as Peers of Parlament. Which is a clear Precedent of the Bishops judging in a Capital Case, and that as Peers.

2 H. VI. n. 9. Iohn Lord Talbott had accused Iames Boteler, Earl of Ormond, of sundry Treasons before the King and his great Council; and after, before Iohn Duke of Bedford, Constable of England. The King takes advice of his Parlament about it; and then it is expresly said in the Record, De avisamento & assensit Dominorum Spiritualium & Temporalium ac Communitatis Regni Anglie, in eodem Parlamento existent', facta fuit quedam abolitio delationis, nuntiationis, & detectionis predict, &c. Here the King adviseth with the Lords Spiritual in an accusation of Treason; and therefore they must be present in the debates concerning it.

I leave now any considerate person to judge impartially on which side the Right lies. For on the one side,

1. There is the Constitution of Clarendon interpreted by H. II. and the Bishops at Northampton.

2. A Protestation of their Right enter'd, and allowed by King, Lords and Commons, 11 R. II.

3. A Reversing of Iudgments owned by Parlament for want of their presence, 21 R. II.

p. 1204. A Preserving of their Right by Proxie, when they thought their Personal attendance contrary to the Canons.

5. A Bar to a total discontinuance of their personal Right, by an allowed Precedent 28 H. VI.

6. A Restoring them to their former Right, by removing of the force of the Canon-Law upon the Reformation.

7. No one Law or Precedent produced for excluding them, even in those Times, when they thought the Canons did forbid their presence.

8. Several Precedents upon Record, wherein they were present at Examinations and Debates about Cases Capital.

On the other side,

1. The Precedents are General, and Negative.

2. Or relating to such Cases wherein they are allowed to be present.

3. Or of Iudgments condemned as erroneous by Parlament.

4. Or of voluntary Withdrawing, with Protestation of their Right, and making of Proxies.

5. Or of not being present at the passing of Iudgment out of regard to the Canon-Law.

And now on which side the Right lies, let the Authour of the Letter himself judge.