Concerning the Bishops Right to Vote in Parliament in Capital Cases, Chapter 4

Concerning the Bishops Right to Vote in Parliament in Capital Cases · Chapter 4

p. 121CHAP. IV.

The Peerage of the Bishops cleared; how far they make a third Estate in Parlament. Objections against it answered.

THERE remain Two things to be considered, which are put in by way of Postscript by the Authour of the Letter: the one concerns the Peerage of the Bishops, the other their Being a Third Estate in Parlament.

1. Concerning their Peerage. To prove this two Statutes had been alledged, 25 Ed. III. c. 6. and 4 H. V. c. 6. and the opinion of Iudges and Lawyers out of the Year-Books. But although these had been very significant, if they had been against them; they have the hard fortune to signify nothing, when they are for them. A meer Protestation becomes good Law, very substantial Law, if it be supposed to make against the Bishops; and yet in that very Protestation the Right of Peerage is expresly challenged, (as well as it is asserted and taken for granted in the Statutes mention'd.) Is that part of p. 122the Protestation invalid? and must nothing pass for Law but what is against them? Is it credible that a Right of Peerage should be owned and received in Acts of Parlament, in Protestations, in Year-Books, time after time; and no opposition made against it by the Temporal Lords all that time, in case they believed the Bishops had challenged that which by no means did belong to them? Did not the Temporal Lords understand their own Privileges? or were they willing to suffer the Bishops to assume their Titles to themselves without the least check or contradiction, and let their Protestations be enter'd in the Rolls of Parlament without any contrary Protestation? I do not question but the Authour of the Letter did reade the Bishops Protestation at large in the Parlament-Rolls 11 R. II. And can any thing be plainer, then that therein they challenge a Right of Peerage to themselves, ut Pares Regni—cum caeteris Regni Paribus, &c.? And this Protestation, he saith, was enter'd by consent of the King, Lords Temporal, and Commons; as is expressed in the Rolls. Were the Temporal Lords awake? or were they mean and low-spirited men? No; they were never higher then at this p. 123time, when the King himself durst not withstand them. What could it be then, but meer conviction of their just Right of Peerage, which made them suffer such a Protestation as that to pass, after so solemn and unusual a manner, and to be enrolled par Commandment du Roy, & assent des Seigneurs Temporels & Communs; as it is in the Rolls? Was all this onelyonly a Complement to the Potent Clergy at that time? But who can imagine that King, Lords and Commons should complement at that rate, as to suffer the Bishops to challenge a Peerage to themselves in Parlament, if they had not an undoubted Right to it? This one argument is sufficient to convince any reasonable man. Especially when we consider, that in the same Parlament, before the Protestation was brought in, a motion was made n. 7. by all the Lords Spiritual and Temporal, which they claimed come leur libertez & franchise, as their Liberty and Privilege, that all weighty matters moved in this Parlament, or to be moved in any to come, touchant Pieres de la Terre, concerning the Peers of the Realm, should be determin'd, adjudged and discussed by the course of Parlament; and not by the Civil, nor by the Common p. 124Law of the Land, used in inferiour Courts of the Realm. The which Claim, Liberty and Franchise, the King most willingly allowed and granted in full Parlament. From whence it is evident, that the King and Parlament did allow the Right of Peerage in the Lords Spiritual; for it is said expresly in the Record, that all the Spiritual as well as Temporal Lords joyned in this Claim: which being allowed them in full Parlament, is an evidence beyond contradiction of their Right of Peerage.

But against this no less is pretended then Magna Charta, viz. that every man who is tried at the King's Suit must be tried by his Peers.Lett. pag. 85. Now if a Bishop be tried for any Capital offence, he is tried by the Commoners, and that is the Common Law of England; it hath ever been so, never otherwise: then must Commoners be his Peers, and he and Commoners must be Pares.

To this Argument, how strong soever it appears, these two things may be justly answer'd.

1. That the matter of Fact cannot be made out, that a Bishop hath always been tried by Commoners.

2. That if it could, it doth not overthrow their Peerage in Parlament.

p. 125(1.) That the matter of Fact cannot be made out, viz. that if a Bishop be tried for a Capital Offence, he is tried by the Commoners; that it hath ever been so, never otherwise. Antiq. Brit. pag. 223.For in 15 Ed. III. Iohn Stratford, Archbishop of Canterbury, was at the King's Suit accused of Capital Crimes, viz. of no less then Treason, and Conspiracy with the French King. He put himself upon his Trial in Parlament. A Parlament was called; and he at first refused admission into the House; which he challenged tanquam major Par Regni post Regem, & Uocem primam in Parlamento habere debens, as the First Peer of the Realm after the King, and having the first Uote in Parlament. Upon which, and the intercession of his Friends, he is admitted into the House; and there he put himself upon the Triall of his Peers. At which time a great Debate arose in the House, which continued a whole Week; and it was resolved, that the Peers should be tried onelyonly by Peers in Parlament. Whereupon the Archbishop had 12 Peers appointed to examine the Articles against him: 4 Bishops, viz. London, Hereford, Bath, and Exceter; 4 Earls, Arundel, Salisbury, Huntingdon, and Suffolk; and 4 Barons, p. 126Percy, Wake, Basset, and Nevil. Here we have all that can be desired in the case. Here is a Bishop tried at the King's Suit, and for a Capital Crime; and yet not tried by Commoners, but by his Peers, and that after long debate in the House concerning it. If it be said, that he was tried by the Lords as Iudges in Parlament, and not as his Peers; it is answer'd, 1. Then Bishops are Iudges in Parlament in Cases Capital: for so this was, and 4 Bishops appointed to examine it. 2. The Debate in the House was about Trial of Peers by their Peers; and upon that it was resolved, that the Archbishop should be tried by the House. For the King designed to have him tried in the Exchequer for the matters objected against him, and the Steward of the King's House and Lord Chamberlain would not suffer him to enter into the House of Lords, till he had put in his Answer in the Exchequer. Upon which the great Debate arose; and therefore the Resolution of the House is as full a Precedent in this Case as can be desired.

I do not deny, that the Rolls of Parlament of that year seem to represent the 12 Peers, as Birchington calls them, not as appointed to examine the particular p. 127Case of Stratford; but to draw up in form the desire of the Peers as to a Trial by their Peers, in Parlament: the which is extant in the Record 15 Ed. III. n. 7. However, this Argument doth not lose its force as to the Peerage of the Bishops; but it is rather confirmed by it. For there they pray the King, by the Assent of the Prelats, Counts and Barons, that the Peers of the Realm may not be judged but in Parlament, & per lour Piers, and by their Peers: and after it follows, that they may not lose their Temporalties, Lands, Goods and Chattels, &c. Who were capable of losing their Temporalties, but the Prelats? Therefore this Law must respect them as well as others. As farther appears not onelyonly by the Occasion, but by the Consequent of it. For it follows, n. 8. that the Archbishop of Canterbury was admitted into the King's Presence, and to answer for himself in Parlamentdevant les Piers, before his Peers: which the King granted. So that the Rolls of Parlament put this matter beyond contradiction.

In 21 R. II. Thomas Arundel, Archbishop of Canterbury, was impeached of High Treason before the King and Lords in Parlament. The King's answer was, That forasmuch as this Impeachment p. 128did concern so high a Person, & Pier de son Roialm, (it is in the Record, but left out in the Abridgment) and a Peer of the Realm, the King would be advised. But soon after he was condemned for Treason by the House, theProxie of the Bishops, Sir Tho. Percy, giving his Vote. The force of this doth not lie barely in his being impeached before the House of Peers in time of Parlament; but that the King called him in his Answer a Peer of the Realm.

And because two Laws were already passed, the one, that Peers were to try none but Peers, 4 Ed. III. n. 6. the other, that Peers were to be tried onelyonly by their Peers, 15 Ed. III. n. 7. the former of these,pag. 192. the Authour of the Iurisdiction of the House of Peers asserted (one well known to the Authour of the Letter) would have onelyonly looked on as a Temporary Order of the House. Coke 2. Inst. c. 29. p. 50. Sir J. M. Arg. concerning the Iurisdiction of the Peers, in Skinners Case.But our greatest Lawyers are of another opinion. And an eminent Lawyer still living urged this as an Act of Parlament, because it is said, that the King in full Parlament assented to it: and he added, that the words are both Affirmative and Negative; they shall not be bound, or charged to try any other then Peers, but be thereof discharged; and that p. 129therein they declare it to be against Law for them to exercise Iurisdiction on those who were not their Peers. From whence it follows, that since Stratford and Arundel, Archbishops of Canterbury, were allowed to be tried by the House of Peers, (without Impeachment from the Commons) they were looked on as Peers by the whole House.

The latter Act, the same Authour cannot deny to be a binding Law; but he hath a strange fetch to avoid the force of it;pag. 193. viz. that this Law was made with respect to the Case of Roger Mortimer 4 Ed. III. and not to the Case of Stratford then in Agitation: which is without all colour of Reason. For the Case then was of a different nature, viz. about the Peers trying those who were not Peers, as Sir Simon Bereford, &c: but here the case was, whether Peers should be tried by any others then their Peers; and the King granted they should not. Now upon this Stratford was allowed to be tried by his Peers in Parlament; and therefore this Trial upon these Acts is an invincible Argument of the Peerage of the Bishops.

In 28 H. VI. when William de la Pole, Duke of Suffolk, waved being tried by his Peers, and submitted to the King's p. 130Mercy; pag. 47.the Record saith, (as the Authour of the Letter himself confesseth) that Viscount Beaumont, on the behalf of the LordsSpiritualand Temporal, and by their advice, assent and desire, moved the King, that a Protestation might be enter'd in the Parlament-Roll, that this should not be, nor turn in prejudice nor derogation of them, their Heirs, ne of their Successours in time coming; but that they may have and enjoy their Liberties and Freedoms as largely as ever their Ancestours and Predecessours had or enjoy'd them before this time. Which Sir R. Cotton more briefly expresseth, n. 52. that neither they nor their Heirs should by this example be barred of their Peerage. The Authour of the Letter more fully puts in Successours, as well as Heirs; for this Protestation was made in behalf of the Lords Spiritual as well as Temporal. But very unfairly leaves out the most material words in the Record, viz. [after Freedoms,] in case of their Peerage. And I appeal to the Authour himself, whether these words be not in the Record; and with what ingenuity they are left out, I cannot understand. I do not charge the Authour of the Letter himself with this; but whosoever searched the Records for him, hath dealt very p. 131unfaithfully with him. And I suppose, if he had seen this passage himself, he would never have so peremptorily denied the Peerage of the Bishops; nor asserted with so much assurance, that they are onelyonly to be tried by Commoners, and that it was always so, and never otherwise.

(2.) Suppose the Bishops have been tried by Commoners out of Parlament, this doth not take away their Right of Peerage in Parlament. For all our dispute is concerning the Right of their Peerage in Parlament; and if that be allowed, we are not to dispute concerning the difference that in some respects may arise by Custom, or practice of Common Law, between Peers by Descent, and Peers by Tenure in Right of their Baronies. And therefore the Authour of the Peerage of the Lords Spiritual might have spared all the needless pains he takes about this:pag. 3, 4, &c. for we do not contend that they have an Inheritable Peerage, but that they are Peers in Parlament, having a Right to sit and judge there by virtue of their Baronies.

But from hence he undertakes to prove, that by Magna Charta they cannot be Iudges of such who are ennobled in Bloud. This comes home to our present p. 132business, and therefore must be considered.

1. He saith,pag. 4. that he who hath onelyonly a Praedial or Feudal, and not Personal, Peerage, can have no Iurisdiction but such as is suitable to the nature of his Peerage; and therefore can onelyonly extend to matters of property and possession, and not to matters of Bloud. But that this is a very trifling and ill-consider'd argument appears by this, that he grants a Lord Keeper, Lord Privy Seal, Lord Treasurer, to be Peers by their Offices; for, as he speaks, after Regradation their Peerage is ended: and he will not deny that these may sit as Iudges in Capital Cases, although they be Peers onelyonly by their Offices. Those that are Peers in Parlament have Right to judge in all Cases that belong to the Iudicature of Parlament.

2. He saith, that the Reason of Magna Charta is,pag. 5. that the Iudges and Prisoner may be under the same Circumstances. But this kind of arguing as well excludes a Lord Keeper, who is no Baron, as a Bishop; and supposes that mens capacity for Judgment depends upon perfect equality of Circumstances: whereas Knowledge and Integrity go farther towards constituting p. 133one that is a Peer but in one respect, a just Judge, then bare Inheritance of Honour can do. But to give a full Answer to this Argument, on which that Authour lays so much weight, and challenges any Person, to give a rational account wherein the advantage of a man's being tried by his Peers doth consist; I shall (1) shew that this was not the Reason of Trial by Peers; (2) give a brief account of the true and original Reason of it.

[1.] That this was not the Reason.

1. Not in the Judgment of the Peers themselves, as that Authour hath himself sufficiently proved, when he takes so much pains to prove p. 3. that a Writ of Summons to Parlament doth not ennoble the Bloud; and consequently, doth not put persons into equality of Circumstances with those whose Bloud is ennobled: and yet he grants, that those who sate in the House of Peers by virtue of their Summons did judge as Peers; as is manifest from his own Precedents p. 15. from the 4 Edw. 3. From whence it follows, that this was not thought to be the Reason by the Peers themselves in Parlament.

2. That this was not the Reason in the Judgment of our greatest Lawyers; because they tell us, that where this Reason p. 134holds, yet it doth not make men Judges. As for instance, those who are ennobled by Bloud, if they be not Lords of Parlament, are not to be Judges in the case of one ennobled by Bloud. OnelyOnly a Lord of the Parlament of England, saith Coke, 2 Instit. p. 48.shall be tried by his Peers being Lords of Parlament; and neither Noblemen of any other Country, nor others that are called Lords, and are no Lords of Parlament, are accounted Pares Peers within this Statute. Therefore the Parity is not of Bloud, but of Privilege in Parlament.

3. The Practice it self shews that this was not the Reason. For this Reason would equally hold whether the Trial be at the King's Suit, or the Suit of the party: but in the latter case, as in an appeal for Murther, a man whose bloud is ennobled must be tried by those whose bloud is not ennobled;Coke 2 Instit. p. 49. Selden's Titles of Honour, 4to. pag. 347. even by an Ordinary Iury of 12 men. And I desire our Authour to consider what becomes of the inheritable quality of Bloud in this case, when Life and Fortune lies at the mercy of 12 substantial Free-holders? who, it is likely, do not set such a value upon Nobility as Noble-men themselves do: and yet our Law, which surely is not against p. 135Magna Charta, allows an Ordinary Iury at the Suit of the party to sit in Judgment upon the greatest Noble-men. Therefore this Reason can signifie nothing against the Bishops, who are Lords in Parlament, as I have already proved.

[2.] I shall give a brief account of the true and original Reason of this Trial by Peers; without which, that Authour it seems is resolved to conclude, that the Iurisdiction of the Bishops in Capital Cases is an abuse of Magna Charta, and a Violation offer'd to the Liberties of English Subjects.

As to the general Reason of the Trial by Peers, it is easie to conceive it to have risen from the care that was taken, to prevent any unfair proceedings in what did concern the Lives and Fortunes of men. From hence Tacitus observes of the old Germans, De Morib. Germ. c. 12.that their Princes, who were chosen in their great Councils to doe justice in the several Provinces, had some of the People joyned with them, both for Advice and Authority. These were Assessours to the Judges; that mens lives and fortunes might not depend on the pleasure of one man: and they were chosen out of the chief of the People, none but those who were born free being capable p. 136of this honour. In the latter times of the German State, before the subduing it by Charlemagn, H. Mei…om. de I…mensulâ. …. 4.some learned men say, their Iudges were chosen out of the Colleges of Priests, especially among the Saxons. After their being conquer'd by him, there were 2 Courts of Judicature established among them, as in other parts of the German Empire.

1. One ordinary and Popular, viz. by the Comites, or great Officers sent by the Emperour into the several Districts; and the Scabini, who were Assistants to the other, and were generally chosen by the People. The number of these at first was uncertain; but in the Capitulars they are required to be seven, who were always to assist the Comes in passing Judgments. But Ludovicus Pius, in his second Capitular, A. D. 819. c. 2. enlarged their number to 12. And if they did not come along with him, they were to be chosen out of the most substantial Free-holders of the County: for the words are, De melioribus illius Comitatûs suppleat numerum duodenarium. This I take to be the true Original of our Juries. For our Saxon Laws were taken very much from the Laws of the Christian Emperours of the Caroline Race, as I could at large p. 137prove, if it were not impertinent to our business; and thence discover a great mistake of our Lawyers, who make our ancient Laws and Customs peculiar to our selves. As in this very case of Trial by Peers, which was the common practice of these parts of the World. Therefore Otto Frisingensis takes notice of it as an unusual thing in Hungary; Otto Frising. de gestis Fred. l. 1. c. 31.Nulla sententia à Principe, sicut apud nos moris est, per pares suos exposcitur—sola sed Principis voluntas apud omnes pro ratione habetur: that they were not judged by their Peers, but by the Will of their Prince. Which shews, that this way of Trial was looked on as the practice of the Empire, and as preventing the inconveniences of arbitrary Government. And it was established in the Laws of the Lombards, Leg. Longobard. l. 3. tit. 8. § 4. Constit. Sicil. l. 1. tit. 44.and the Constitutions of Sicily. In the one it is said to be Iudicium Parium; in the other, proborum virorum. In the Saxon Laws of King Ethelred at Wanting, c. 4. 12 Freemen are appointed to be sworn to doe Iustice among their neighbours in every Hundred. Alfred. vit. l. 2. p. 72.Those in the Laws of Alfred are rather 12 Compurgators then Iudges; however some make him the Authour of the Trial by Peers in England. But by whomsoever it was brought into request here, p. 138it was no other way of Trial, then what was ordinary in other parts of Europe; and was a great instance of the moderation of the Government of the Northern Kingdoms.

2. There was an extraordinary or Royal Court of Iudicature: and that either by way of Appeal, which was allowed from inferiour Courts; or in the Causes of Great men, which were reserved to this Supreme Court. In which either the King himself was present, or the Comes Palatii, who was Lord High Steward; and all the Great persons were Assessours to him. In such a Court Brunichildis was condemned in France; Aimoin. l. 4. c. 1.and Tassilo Duke of Bavaria in the Empire; and Ernestus, and other Great men, Rhegin. l. 2.A. D. 861; and Erchingerus and Bartoldus under Conradus, the last of the French Race. And among the Causes expresly reserved for this Supreme Court, were those which concerned the Prelats as well as the Nobles. Capit. l. 3. c. 77.Vt Episcopi, Abbates, Comites, & potentiores quique, si causam inter se habuerint, ac se pacificare noluerint, ad nostram jubeantur venire praesentiam: neque illorum contentio aliubi judicetur. But in this Court they challenged that as their privilege to be tried by their Peers; who were p. 139called Pares Curiae. Sigism. Orat. A. D. 1434.So the Emperour Sigismund, in his Protestation before the States of the Empire; Cùm secundùm juris communis dispositionem, nec non usum, morem, stylum & consuetudinem sacri Romani Imperii, feudalis contentio per Dominum feudi, ac Pares Curiae terminanda sit, &c. And again, nisi Parium nostrae Curiae arbitrio. Tilius de rebus Gal…icis.So likewise in France, as Tilius saith, Haec judiciorum ratio, ut de causis feudalibus judicent Feudales Pares, Fulbert. ep. 96.in Gallia est perantiqua. So in Fulbertus one Count sends word to another, that their Cause should not be determin'd, nisi in Conventu Parium suorum. And many other examples might be produced: but these are sufficient to make us understand the true Original of this Right of Peerage; which was from the Feodal Laws; and all those who held of the same Lord, and by the same Tenure, were said to be Pares Peers. And therefore since the Bishops in England were Barons by Tenure ever since William I. by consequence they were Peers to other Barons; and had the same original Right of Trial by other Barons as their Peers, holding by the same Tenure, and sitting in the same Court. And thus I hope I have given (what that Authour so impatiently p. 140desired, viz.) a rational account of the Trial by Peers; and have thereby shewed, that this is so far from being any disadvantage to the Bishops Cause, that it adds very much to the Iustice of it.

And that this is so far from being a violation of Magna Charta, that it is within the intention and meaning of it, I thus prove. In the 14. ch. of Magna Charta we read, Comites & Barones non amercientur nisi per Pares suos: but by the Common Law the Amerciament of a Bishop is the same with that of a Lay-Baron; and therefore in the sense of the Law, they are looked on as Peers. And all the Parlamentary Barons, whether Bishops or Abbots, were amerced as Barons. Thence 15 Edw. 2. a Writ was directed to the Justices of the Common Pleas,Claus. 15 E. …. m. 12. that they should not amerce the Abbot of Crowland tanquam Baro, because he did not hold per Baroniam aut partem Baroniae. And it is confessed by the most learned Lawyers, that the Lords Spiritual do enjoy the same legal Privileges, Selden of Baron. p. 152.in other respects, which the Temporal Barons do; as in real Actions to have a Knight returned in their Iury; Titles of Hon. 4 to. p. 347.as to a day of Grace; hunting in the King's Forests; Scandalum Magnatum, &c. Now since the Law of England p. 141allows onelyonly a double Parity, viz. as to Lords of Parlament, and Commons, whether Knights, Esquires, Gentlemen, or Yeomen, without any consideration of the great inequality of circumstances among them; (Yeomen having as little sense of Gentility, as Commons can have of the privileges of Nobles;) it is apparent that this Trial by Peers was not founded upon equality of circumstances; and that in all reason, those who do enjoy the legal Privileges of Peers, are to be looked on as such by Magna Charta.

But the great Objection is, that the Lawyers are of another opinion, as to this Trial by Peers; and not onelyonly the common sort, who take all upon Trust which they find in the modern Law-Books, but those who have searched most into Antiquity, such as Mr. Selden and Sir Edw. Coke.

To this therefore I answer.

1. The Authour of the Peerage,pag. 6. &c. proves the Bishops are not Peers, because not to be tried by Peers.Privil. of Baronage, pag. 143. This consequence Mr. Selden utterly denies; for he saith, it is true and plain that the Bishops have been Peers. For which he quotes the Bishop of Winchester's Case, who was question'd in the King's Bench for leaving the Parlament at p. 142Salisbury in the beginning of Ed. III. and he pleaded to the declaration, quod ipse est unus e Paribus Regni, that he was one of the Peers of the Realm: which, he saith, was allowed in Court. And from other Book-cases and Parlament-Rolls he there evidently proves, that the Bishops were Peers: which he not onelyonly asserts in that confused Rhapsodie, which went abroad under his name; but in his elaborate Work of the last Edition of his Titles of Honour,Titles of Honour, Sec. Part. ch. 5. § 32. in Marg. in which he corrected and left out the false or doubtfull passages of his first Edition. And among the rest, that passage wherein this Authour triumphs, A Bishop shall not be tried by Peers in Capital Crimes. The same thing I confess is said in the Privileges of the Baronage; which he there calls a point of Common Law as it is distinguished from Acts of Parlament; i. e. the custom and practice hath been so. And the onelyonly evasion he hath for Magna Charta is this; pag. 153.that it is now to be interpreted according to the current practice, and not by the literal interpretation of the Words. Which is an admirable answer, if one well considers it, and justifies all violations of Magna Charta, if once they obtain and grow into Custom. For then, no matter for the express words of Magna p. 143Charta, if the contrary practice hath been received and allowed in legal proceedings. This is to doe by Magna Charta, as the Papists doe by the Scriptures, viz. make it a meer Nose of Wax, and say it is to be interpreted according to the Practice of the Church.

2. Some things are affirmed about this matter with as great assurance as this is, which have not been the constant practice.3. Instit. pag. 30. Coke is positive, that Bishops are not to be tried by their Peers; but so he is in the same page, that a Nobleman cannot wave his Trial by his Peers, and put himself upon the Trial of the Countrey: Whereas it is said in the Record 4 Ed. III. that Thomas Lord Berkely, ponit se super Patriam, put himself upon his Countrey, and was tried by a Jury of 12 Knights. And 28 H. VI. the Duke of Suffolk declined the Trial of his Peers, and submitted to the King's mercy. By which it appears, that this was a Privilege which was not to be denied them, if they challenged it; but, at least before 15 Ed. III. they might wave it if they pleased; and after that too, if they were tried out of Parlament. For this Trial by Peers was intended for a security against arbitrary Power in taking away mens Lives; and therefore it was p. 144allowed at the King's Suit, but not at the Suit of the Party. But if Bishops were tried out of Parlament, and did voluntarily decline the challenge of this Privilege, this is no argument at all against their Right of Peerage: and so I find some say it was in the Case of Fisher,Godwin. vit. Rich. Scroop Archiep. Eborac. Bishop of Rochester, in H. VIII'^s time; which is the great Precedent in the Law-Books.

3. The method of Proceeding as to the Trial of Bishops by Common Iuries, while the Pope's Power continued in England, is not so clear, that any forcible Argument can be drawn from thence. Because the Bishops then looked on themselves as having no Peers, out of Parlament, in point of Judgment, but Bishops. As in the famous Case of Adam Bishop of Hereford, under Edw. II. who was rescued from the King's Bench by his Brethren the Bishops, because they looked on his appearing there as a Violation of the Liberties of the Church. I do not go about to defend these Proceedings; but I am sure the Authour of the Peerage, &c. very much misrepresents this business: for he makes it as if the Bishop were legally convicted in Court by a common Iury, pag. 7.and that after conviction he was deliver'd to the Archbishop, to the intent, as he supposes, p. 145that he should be degraded. Whereas, in truth, the Bishops carried him out of the Court, without his giving any Answer to the Endictment; and when he was absent, the King commanded the Iury to bring in their Verdict; and without ever being heard to make any Defence for himself,Walsingh. pag. 119. they found him guilty in all the Articles laid to his Charge. That Authour very freely bestows the terms of Impudence on the Bishops of that time, and Ignorance on those who go about to defend them:pag. 7. 14. but I desire to know whether of these two makes a man thus misrepresent a matter of fact? For it was so far from being true, that upon Conviction he was deliver'd to the Archbishop to be degraded; that he never appeared in Court after, but continued under the Archbishop's care, till, after a while, he fully reconciled him to the King; notwithstanding the Jury found him guilty of Treason. I desire to be informed, whether we are to understand Magna Charta by such a Trial as this? Whether he were judged by his Peers, I know not; but I am sure he was not by the Law of the Land; Antiq. Cantuar. in Walt. Raynolds pag. 215. ed. Han.which I think is as good a part of Magna Charta as the other. And this, our Historians tell us, is the First Instance p. 146of any Trial of this kind, of any Bishop in England: which hath too much of force and violence in it, to be a good Interpreter of Magna Charta.

The Second Precedent is verbatim out of Mr. Selden concerning Iohn de Isle, and the Bishop of Ely his Brother; which concerns such matters, wherein himself confesses the Privilegium Clericale was allowed; and the Record saith, the Archbishop entering his plea, that he was to be deliver'd to him as a member of his Church, he was accordingly deliver'd, after the Jury had given in their Verdict. Which shews, indeed, the good will that was then used, to take away even the allowed Privileges of the Clergy by common Juries. And this is another stout Interpreter of Magna Charta; when Bracton, Briton, Fleta, Stat. West. 1. Articuli Cleri c. 15. are confessed,2. Instit. …. 633, &c. even by Sir Edw. Coke, to be so clear in the Clergie's behalf in these matters.

The Third Precedent, which is likewise out of the same Authour, is of Thomas Merks, Bishop of Carlisle; who, for his fidelity to R. II. and the true Heirs of the Crown, against the Usurpation of H. IV. was found guilty of Treason by a common Iury. But Mr. Selden p. 147is so ingenuous as to take notice, that the Writ directed to the Justices had in it a Non obstante to a Statute lately made at Westminster; Licèt in Stat. apud Westm. nuper edito inter caetera continetur, quòd nullus Archiep. nec Episcopus coram Iusticiariis nostris occasione alicujus criminis impetatur, absque speciali praecepto nostro, quousque, &c. Which was read in Court: but the Judges urging, that the Liberties of the Church did not extend to high Treason, then it is said, he did ponere se super Patriam; just as Thomas Lord Berkely did 4 Ed. III. This is the onelyonly Precedent that proves that a Bishop, before the time of H. VIII. did put himself upon a common Iury: and yet we find as good a Precedent of this sort, concerning an allowed Peer of the Realm. And whether this single Precedent be sufficient to interpret Magna Charta, against the plain sense of the words, and to make a constant practice, I leave any rational man to judge.

But if this were yielded in Cases of high Treason, wherein the Privilege of Clergy holds not; (especially since the Statutes 25 Ed. III. c. 4. and 4 H. IV. c. 2, 3.) Mr. Selden tells them, that there is no consequence from hence, because p. 148they are not to be tried by Peers, therefore they are not Peers: since the Common Law may limit this Privilege of Peers in one particular case, which may hold in all others. As it is no diminution to the Peerage of the Temporal Lords, to be tried by a common Iury at the Suit of the Party. I conclude the Answer to this Argument,Camden. Brit. pag. 123. as Mr. Camden doth his Discourse about this subject; who having proved that the Bishops do enjoy all other Privileges of Peers, except this of being tried by them, (which he seems to attribute to a kind of Revenge upon them, for pleading such exemptions by the Canon-Law) after all, he leaves it to the Lawyers to determine, whether this be juris explorati. The meaning of which I am sure is not, as the Authour of the Letter expresseth it, that it was always so, and never otherwise.

But the great difficulty to some is, that a Praedial or Feudal Barony doth not ennoble the Bloud; and therefore can give no Right of Peerage. Whereas it is well known, that all the Baronies of England were such from the Conquerour's time, till after the Barons Wars, when, for Reason of State, it was thought necessary to make the Nobility more dependant on p. 149the Crown. And all that were Barons were Pares, i. e. Peers. So du Fresn quotes an old Poem of the Common Laws of England,

Barons nous appellons les Piers del Realm.Glossar. v. Pares.

In France, from whence our Baronies first came, Ecclesiastical Persons with praedial Baronies are thought as capable of Peerage as any. For, there at first all the Barones Regni (who both in France and England were the same with the Barones Regis, however some of late have distinguished them) sate in the great Council, and all publick Affairs passed through them; and they were judged by their own Order: and these were called Pares Regni, among whom the Bishops were comprehended. At last Lewis VII. A. D. 1179. (as most Authours agree) chose Twelve out of the great number of the Peers of France; of which half the number were Bishops who held feudal Baronies of the King; and the Archbishop of Rheims is the First of the whole Number. And because these enjoy'd greater Privileges then other Peers, their number was increased by particular Favour; but the ancient Right of Peerage remained to all the Barons of the Realm. In Scotland, p. 150when they appointed Twelve Peers for the King's Council, Walsingh. ad A. D. 1296. Mat. Westm. A. 1295.they were 4 Bishops, 4 Earls, 4 Barons. So that in the neighbour Nations Feodal Baronies were never thought inconsistent with Peerage: and we have as little Reason to think them so with us; since to this day, the Bishops do enjoy not onelyonly the great Right of Peerage, of sitting and voting in the House of Peers, but have some personal Privileges of Peers allowed them by the Common Law, as is already shewed.

II. The last thing to be considered is, the Capacity in which they sit in the House, whether as a Third Estate or not? The Authour of the Letter not onelyonly denies it, but opposes it with great vehehemency, and offers many Authorities and Reasons against it. All which must be weighed with the same calmness and impartiality, which hath been hitherto used in this Discourse. And there are Three things to be distinctly handled for the clearing of this Matter: 1. His Foundation; 2. His Authorities; 3. His Reasons.

(1.) His Foundation whereupon he builds;pag. 93. which is, that the Bishops sit in the House onelyonly in the capacity of Temporal Barons; William the Conquerour having p. 151brought the Temporalties of Bishops under the condition of Baronies. That they do sit there in the Right of their Baronies, was yielded at first; but whether they sit there onelyonly in that capacity, is the thing in Question.

And here I crave leave to make use of this Authour's distinction, and to apply it to this purpose; viz. of the Bishops sitting in the House in a Iudicial way, and in the Legislative way. When they sit in the Iudicial way, as Members of the Supreme Court of Iudicature, I grant that they sit onelyonly in the capacity of Temporal Barons; as appears by the Constitution of Clarendon, where the King requires their attendance in Iudicature as his Barons: But that in the Legislative way they have a farther Capacity, as representing a Third Estate in Parlament, I prove by these Arguments.

[1.] During the Vacancy of Bishopricks, Writs were sent to the Guardians of the Spiritualties, to attend the Parlament. Which Mr. Selden, Titles of Honour, p. 2. ch. 5. n. 17. 23.who cannot be suspected for partiality in this matter, saith, is obvious in the Rolls of Parlament; and which he cannot deny to be an evidence of the Bishops sitting in Parlament as Bishops, and as Spiritual onelyonly, as they did in p. 152the Saxon times, in the Wittena gemot. So likewise, the Vicars-general had Writs when the Bishops were beyond Sea. But neither of these could sit in Parlament as Temporal Barons.

But because so much depends on the proof of this, and no man hath yet undertaken it, I shall bring clear Testimonies of the constant practice of it, from the Records of the Tower.

24 Edw. I. Writs were directed Custodi Archiepiscopatûs Eborum, sede vacante; & Electo Menevensi, vel ejus vices gerenti, ipso agente in partibus transmarinis.

27 Ed. I. Custodibus Episcop. Lincoln. sede vacante; & Capitulo Eccles. B. P. Eborum, Custodibus Spiritual. ejusdem Dioces. sede vacante.

5 Ed. II. Vicario generali Archiep. Eborum, ipso Archiepiescopo in remotis agente.

6. Ed. II. Custodi Archiepiscopatûs Cantuar. sede vacante.

7 Ed. II. To the same, & Custodi Episcop. London. sede vacante.

1 Ed. III. Custodi Spiritualitatis Archiep. Cantuar. sede vacante: and twice the same 2 Ed. III.

7 Ed. III. Rex dilecto sibi in Christo p. 153Priori Eccles. Christi Cantuar. Custodi Spiritualit. Archiep. Cantuar. sede vacante.

10 Ed. III. Custodi Spirit. Episcop. Norwic. sede vacante.

11 Ed. III. Custodi Spirit. Episcop. Cicestr. sede vacante; & H. Episcopo Lincoln. vel ejus Vicario generali, ipso Episcopo in remotis agente.

12 Ed. III. A more general Writ to the Archbish. &c. vel Vicariis vestris generalibus, vobis in partibus transmarinis agentibus.

14 Ed. III. T. Episcop. Hereford. vel ejus Vicario generali, ipso Episcopo in remotis agente.

20 Ed. III. Custodi Spiritualit. Episcop. Assaphensis, &c.

The like we find 20 E. (3.) 34. 36. 38. 44. 5 R. (2.) 6. 7. 9. 10. 12. 13. 18. 20. 7 H. (4.) 8. 2 H. (5.) 3. 4. 5. 7. 8. 9. 2 H. (6.) 4. 5. 9. 10. 11. 15. 18. 20. 25. 29. 12 Edw. 4. In all these years, there are Writs directed, either to the Guardians of the Spiritualties in the Vacancies of the Sees, or to the Vicars-general or Chancellours in their absence beyond the Seas. Which are sufficient to prove this to have been the constant practice of Parlaments in those times.

[2.] Some Church-men were summon'd to p. 154Parlament who could have no pretence to sit there as Temporal Barons. For 49 H. III. the Deans of York, Exceter, Wells, Salisbury and Lincoln were summon'd with the like Writ as the rest. And Mr. Selden observes,Ib. n. 22. that in the times of Edw. I. Edw. II. Edw. III. where the Clause Praemunientes is omitted in the Writ to the Bishops, there particular and several Writs were sent to some Deans and Priors of Cathedral Churches, to appear in Parlament.

But to prove more fully the interest the Clergy had then in Parlaments, it is worth our observing, that in the ancient Records there are 4 several sorts of Writs wherein the Clergy were concerned.

1. In the common Writs of Summons to Parlament sent to the Archbishops and Bishops, with the Clause of Praemunientes, which runs thus; Premunientes Priorem & Capitulum, or Decan. & Capit. Ecclesie vestre, Archidiaconos, totumque Clerum vestre Dioces. facientes, quod iidem Prior & Archidiaconi in propriis personis suis, ac dictum Capitulum per unum, idem que Cierus per duos Procuratores idoneos, plenam & sufficientem potestatem ab ipsis Capitulo & Clero habentes, predictis die & loco intersint, ad p. 155consentiendum hiis que tunc ibidem de communi consilio ipsius Regni nostri, divina favente Clementia, contigerint ordinari. Titles of Honour, p. 595.So Mr. Selden represents it from the 50 Ed. III. membr. 6. And with him Sir Edw. 4 Instit. p. 4.Coke agrees; who saith, by this Clause in the Writ of Summons to the Bishops, they are required to summon these persons to appear personally at the Parlalament: but he proves they had no Voices there, because they are required onelyonly ad consentiendum, &c. Which is a very weak argument. For, (1.) His own great Authority, Modus tenendi Parlamentum, saith expresly, they were called ad tractand. & deliberand. and that their names were called over in the beginning of Parlament; and that they had a Voice there, and did make up part of the Commons of England. Not that the Procuratores Cleri did sit together with them, after they had a Speaker of their own▪ of which I find no Precedent: but they sate by themselves, having a Prolocutor of their own: which is the very same name used in the Rolls for the Speaker of the House of Commons. (2.) These words do not exclude them from being part of the commune Concilium Regni, but onelyonly shew, that their Consent was required, according to the p. 156Custom of that time. And 23 Ed. I. the Clause is more full, ad tract and. ordinand. & faciend. the like 24 Ed. I. But in 27 Ed. I. the words are, ad faciend. & consentiend. (3.) The same argument would exclude the Commons from any Voices: for in 23 Ed. I. the Writ for chusing Knights and Burgesses ran after the same manner; ita quod dicti milites plenam & sufficientem potestatem pro se & Commun' Comit' predict' & dicti Cives & Burgenses pro se & Communit Civit' & Burg' tunc ibidem habeant, ad faciend' tunc quod de communi Consilio ordinabitur in premissis. Would any man be so unreasonable to infer from hence, that the House of Commons have no Votes? The same form is used 26 Ed. I.—30 of the same. In 5 Ed. II. it is, ad consentiendum, &c. 6 Ed. II. it is, ad faciend. quod de communi Consilio contigerit ordinari. 7 Ed. II. ad faciendum & consentiend. and so it continued to the 26 Ed. III. when first came in, ad tract and. consulend. faciend. but 44 Ed. I. it was onelyonly, ad consulend. & consentiend. 46 Ed. III. it was, ad faciendum & consentiendum his quae tunc de communi Concilio Regni contigerit ordinari: so 47 Edw. III. Which hath been the general form, ever since p. 157observed, and would exclude the House of Commons from any Votes in Parlament, as well as the Clergy.

2. There were other Writs of Summons to Parlament wherein the Clause Praemunientes was left out; and then particular Writs were sent to such Deans and dignified Clergy-men as the King thought fit. So it was not onelyonly 49 H. III. but there were two Summons 23 Ed. I. and in one of them the Clause Praemunientes was inserted, in the other not. It was left out 25 Ed. I. and in one 27 Ed. I. and put in another, and left out again 28. and 30. of Ed. I. Inserted 1 Ed. II. in one Writ, and omitted in others; and so in the 3 following years: but afterwards generally inserted, except 6 Ed. II. 13. 16. 18. In 5 Ed. III. it was omitted, and so in 6. and some few years afterwards: but then it generally obtained, that the Clause Praemunientes was put into the Writs of the Bishops Summons to the Parlament.

3. There were Writs of Summons to great Councils, which were no Assemblies of the Estates; and then onelyonly some great Bishops and Lords, or other Great men were summon'd, without any Writs to others, or any notice taken of them. In such a p. 158Summons 2 Ed. II. onelyonly 4 Bishops are named; 18 Ed. II. onelyonly 6; 19 onelyonly 5; 2 Ed. III. onelyonly 2. and the Guardian of the Spiritualties of the See of Canterbury: and so 4 Ed. III. and in another the same year, 3 besides the Archbishop of Canterbury. 5 Ed. III. Summons were sent to the Archbishop of York, and 19 Bishops more. 11 Ed. III. the Writ was directed to the Archbishop of York, and such Bishops, Earls, and Great men as were of the King's Council: and two more were summon'd the same year. The form of the Writ differs little from that to the Parlament, onelyonly the Clause Praemunientes is always left out, and onelyonly some particular Bishops and Nobles are called, and no Writs for elections of Knights or Burgesses. In the 16 Ed. III. the Writ is sent to the Archbishop and 7 Bishops more; but none to Abbots, Priors, Sheriffs, &c. Which shews that this was Magnum Concilium, as it is sometimes called, but no Parlament.

4. There were Writs to summon a Convocation distinct from the Writ of Summons to the Parlament with the Clause Praemunientes. This will appear by the first Writ of Summons to a Convocation, which I have seen; which bears p. 159date at Lincoln 17. Feb. 9 Ed. II. but the Parlament was summon'd 16. of October before, to meet at Lincoln in quindenâ S. Hilarii; with the Clause Praemunientes in the Writ to the Bishops. In which Summons to Convocation it is expressed, that those Bishops and others of the Clergy, who were summon'd to Parlament, did, as far as they were concerned, unanimously yield to a Subsidy; but so, that others of the Clergy who were not summon'd to Parlament should meet in Convocation, and consent thereto. Therefore the King sends his Writ to the Archbishop to summon all the Prelats, whether Religious or others, and others of the Clergy of his Province, to meet at London post 15. Pasch. ad tractand. & consentiend. &c. Here we have the plain difference between the Writs to Parlament, and to Convocation. The Writs to the Parlament were sent to the Archbishops and all the Bishops, with the clause Praemunientes, &c. summoning those of the Clergy who were then thought necessary to the Assembly of the Three Estates in Parlament: but when a Convocation was called, then the Writs were onelyonly directed to the Two Archbishops, who were to summon the rest of the Clergy, and not onelyonly those who held by Baronies, p. 160but others of the dignified Clergy, tam exemptos quàm non exemptos, with the Proctors of the Chapters and Clergy of the Diocese, ad tractand' & consulend' super premissis una vobiscum & aliis per Nos tunc mittendis. So it is expressed in the Writ for Convocation 11 Ed. III. 29 Ed. III. 31 Ed. III. 7 R. II. 28 H. VI. 23 Ed. IV. onelyonly these two last have this difference, ad tractand', consentiend', conclud' super premissis, & aliis que sibi clarius exponentur tunc ibidem ex parte nostra.

These things I have laid together, not barely to clear this intricate matter, (as it hath been made) of the interest the Clergy then had in Parlaments as well as Convocations; but chiefly to prove from hence, that all the interest they had in Parlaments was not meerly on the account of the Temporal Baronies which the Bishops and many of the Abbots then had. Which is the great, but common mistake of the Authour of the Letter.

[3.] After the Bishopricks were made Baronies, the distinction even in Parlament is kept up between the several Estates of the Clergy and Laiety. For although Baronagium doth often take in all; yet sometimes they are so remarkably distinguished, that we may see they p. 161were looked on as two distinct Estates in Parlament. So Eadmerus, (speaking of what passed in the Parlament 3 H. I) saith, it was done utriusque Ordinis concordi curâ & solicitudine, Eadmer. l. pag. 67.by the consent of both Estates. So Matt. Paris, speaking of the Summons to appear in the beginning of H. I. comprehends all under those 2 Estates,Matt. Paris pag. 55. Clerus Angliae, & Pop. universus: and again, Respondente Clero, & Magnatibus cunctis. Speaking of a Parlament under H. II. he saith,pag. 143. Convocato Clero Regni, ac Populo. In 39 H. III. describing a Parlament, he calls those assembled Nobiles Angliae, tam viri Ecclesiastici quàm Seculares. And in the Writs of Summons the distinction hath been always preserved between the Praelati and the Magnates: for in those to the Bishops it is, cum caeteris Praelatis, Magnatibus, &c. in those to the Temporal Lords, cum Praelatis, Magnatibus, &c. In those to the Bishops they were commanded, in Fide & Dilectione quibus nobis tenemini: in those to the Temporal Lords, in Fide & Homagio; or, since Ed. III. in Fide & Ligeancia. Which shews that they were not summon'd meerly as Temporal Barons.

[4.] The Authour of the Letter confesseth p. 162the Clergy to be one of the three Estates of the Kingdom; pag. 86.but denies them to be one of the three Estates in Parlament. From whence I argue thus. Either the Clergy must be represented in Parlament, or one of the Estates of the Kingdom is not at all represented there. And if one of the Estates of the Kingdom be not there represented, how can it be a perfect Representative? So that this distinction of the Three Estates of the Kingdom, and the Three Estates in Parlament, unavoidably overthrows the Parlament's being a compleat Representative. But in 23 H. VIII. n. 33. as Mr. Petyt observes, there is this passage in the Parlament-Rolls. It is considered and declared by the whole Body of this Realm, The ancient Right of the Commons, pag. 61.now represented by all the Estates of the same assembled in this present Parlament. Therefore all the Estates of the Kingdom must be represented in Parlament. And 1 Eliz. c. 3. The Lords Spiritual and Temporal and the Commons are said to represent in Parlament the Three Estates of the Realm. From whence it follows, that, according to the sense of the Parlament, if the Clergy be an Estate of the Kingdom, as he saith they are, they must be represented in Parlament, p. 163or the whole Body of the Realm cannot be there represented.

(2.) We now come to consider the weight of Authority in this matter. For which I shall premise two things.

1. That the whole Parlament assembled are the best Judges, which are the Three Estates in Parlament; and their Authority is more to be valued, then that of any particular Persons, whether Lawyers, or others.

2. That no Parlaments can give better Testimony in this matter, then those which have assumed most to themselves. For if there be Three Estates in Parlament, and the Bishops be none, then the King must be one of the Three; as the Authour of the Letter insinuates, throughout this discourse: and the natural consequence from hence seems to be a coordination; or that two joyning together may over-rule the third. Therefore in all Reason, if any Parlaments would have made the King one of the Three Estates, it would have been either the Parlament 1 H. IV. which deposed one King, and set up another; or that 1 R. III. which disinherited the Children of Ed. IV. and set up their Uncle.

I shall therefore first from the Rolls of p. 164these two Parlaments shew, which are the Three Estates in Parlament; and from them, evidently prove that the King is none, but the Bishops are the Third Estate.

I begin with the Parlament 1 H. IV. By the Rolls it appears, (1.) That R. II. appointed two Procurators to declare his Resignation of the Crown, coram omnibus Statibus Regni, before all the States of the Kingdom. From whence it unavoidably follows, 1. that the King was none of them; 2. that the Estates of the Kingdom and the Estates in Parlament are the same thing. (2.) Among the Articles against R. II. one is concerning the Impeachment of Tho. Archbishop of Canterbury coram Rege & omnibus Statibus Regni, before the King and all the Estates of the Realm. The King then was none of the Estates. (3.) The Commissioners for the sentence of Deposition are said to be appointed per Pares & Proceres Regni Anglie Spirituales & Temporales, & ejusdem Regni Communitates, omnes Status ejusdem Regni representantes; by the Peers and Lords Spiritual and Temporal, and the Commons of the Kingdom, representing all the States of the Kingdom. Where observe, p. 1651. The Bishops are called Peers, as well as the Temporal Lords. 2. The Estates of the Parlament are to represent all the Estates of the Kingdom. 3. The Three Estates in Parlament are the Lords Spiritual, the Lords Temporal, and the Commons of the Realm; and Fabian expresly calls them the Three Estates of this present Parlament, Fabian. 7. par. R. 2. s…l. 158.representing the whole Body of the Realm.

In the Rolls of Parlament 1 R. III. it is recorded, that before his Coronation, certain Articles were deliver'd unto him in the name of the Three Estates of the Realm of England, that is to say, of the Lords Spiritual and Temporal and of the Commons by name, &c. Now forasmuch as neither the said Three Estates, neither the said Persons which in their name presented and deliver'd (as it is afore said) the said Roll unto our said Sovereign Lord the King, were assembled in form of Parlament, divers Doubts have been moved, &c. Now by the said Three Estates assembled in this present Parlament, and by Authority of the same, be ratified, and enrolled, &c. Upon which Mr. Pryn himself makes this Marginal Note, Abridgment of Records, pa. 710. 714.The Three Estates must concurr to make a Parlament; no one or two of them being a full or real Parlament, but all conjoyned.

p. 166But lest I should seem to take advantage onelyonly of these two Parlaments, I shall now shew this to have been the constant sense of the Parlaments; as will appear by these following Records.

In 1 H. VI. n. 12. All the Estates of the Realm are said to be assembled in Parlament. 3 H. VI. n. 19. the Three Estates assembled in this present Parlament.

6 H. VI. n. 24. the Duke of Gloucester desired an explanation of his Power as Protector: in the Answer, drawn up by the Lords appointed for that purpose, it is alledged that H. V. could not by his last Will, nor otherwise, alter, change, or abroge, without the Assent of the Three Estates; nor commit or grant, to any Person, Governance or Rule of this Land, longer then he lived. Nevertheless they adde, It was advised and appointed by the Authority of the King, assenting the Three Estates of this Realm. Which shews how far the King was from being thought one of the Three Estates in Parlament at that time.

10 H. VI. n. 17. Ralph Lord Cromwell put in a Petition to the Parlament, that he was discharged the Office of King's Chamberlain in a way contrary to the Articles for the Council sworn 8 H. VI. coram p. 167tribus Regni Statibus, before the Three Estates of the Realm, as they were assembled in Parlament: which appears by the Record 8 H. VI. n. 27.

11 H. VI. n. 10. The Duke of Bedford appeared in Parlament, and declared the Reasons of his coming coram Domino Rege & tribus Regni Statibus, before the King and the Three Estates of the Realm; as it is in the Record, but not mention'd in the Abridgment.

n. 11. Domino Rege & tribus Regni Statibus in presenti Parlamento existentibus, the King and the Three Estates of the Realm being present in Parlament. Nothing can be plainer, then that the King is none; and that the Three Estates of the Kingdom are the Three Estates in Parlament.

11 H. VI. n. 24. Lord Cromwell Treasurer exhibits a Petition in Parlament, wherein he saith, the estate and necessity of the King and of the Realm have been notified to the Three Estates of the Land assembled in Parlament.

In an Appendix annexed to the Rolls of Parlament that year, the Duke of Bedford saith, in his Petition to the King, how that in your last Parlament yit liked your Highness, by yadvis of Three p. 168Estates of his Land, to will me, &c.

23 H. VI. n. 11. Presente Domino Rege, & tribus Regni Statibvs in presenti Parlamento existentibus, &c.

28 H. VI. n. 9. Domino Rege & tribus Regni Statibus in pleno Parlamento comparentibus, &c.

After these I shall insist upon the Precedents cited by the Authour of the Letter himself;pag. 86. viz. the Ratification of the Peace with France by the Thrée Estates 9 H. V. and 11 H. VII. which he alledges as an extraordinary thing, that the Three Estates joyned in these Transactions: whereas in truth it was nothing but a Ratification of the Peace in Parlament; and consequently, those Three Estates of the Kingdom, are the Three Estates of Parlament. Bacon H. 7. pag. 144.For the Parlament was then sitting at both these Ratifications; and no other Assembly of the Thrée Estates was ever known in England. Hist. Angl. pag. 404.Walsingham saith, that H. V. called aParlament, which was sitting at that time: for the King kept S. George's Feast at Windsor that year, from thence he went to the Parlament at London, which ended within a Month; and the Ratification of the Peace bears date May 2. Judge then, whether these were not the Three Estates in Parlament? But p. 169to prove this more fully. It seems by 23 H. VI. n. 24. that a Statute was made in the time of H. V. that no Peace should be made with France without the consent of the Three Estates of both Realms; which was then repealed. But whom they meant by the Thrée Estates here in the time of H. VI. appears by 28 H. VI. n. 9. when the Chancellour, in the presence of the King, gave thanks to the Three Estates, and prorogued the Parlament: where it is plain, the Three Estates in Parlament were meant, and that the King could be none of them. In 38 H. VI. n. 38.. the Chancellour again, in the presence of the King and of the Three Estates, having given thanks to all the Estates, dissolved the Parlament. But that which puts this matter out of doubt is, that in the Parlament 1 H. VI. the Queen Dowager in her Petition mentions the Ratification made in Parlament 9 H. V. and saith, it was not onelyonly sworn by the King, but by the Thrée Estates of the Kingdom of England: Cest assavoir, les Prelatz, Nobles, & Grands, & per les Comuns de mesm le Roialm Dengleterre;that is to say, by the Prelats, Nobles, and other Grandees, and by the Commons of the Realm of England: as appears more fully, p. 170saith that Petition, by the Records and Acts of the said Parlament. And the King there declares in four several Instruments, that the said Articles of Peace were approved and ratified by Authority of Parlament, in these words; Qui quidem Pax, Tractatus, conclusio & concordia, omnes que Articuli contenti in eisdem, in Parlamento dicti Patris nostri apud Westm. 2⁰ die Maii A. R. 9. tento, Auctoritate ejusdem Parlamenti approbati, laudati, auctorizati & acceptati. Nothing can be plainer from hence, then that the Three Estates of the Kingdom were no other then the Three Estates in Parlament. And the same appears by another Petition of the same Queen, 2 H. VI. n. 19.

For latter Times I shall instance onelyonly in the Parlament 1 Eliz. c. 3. wherein the Lords Spiritual and Temporal and Commons declare, that they do represent in Parlament the Thrée Estates of the Realm. From whence it follows, 1. That the Three Estates of the Kingdom must be represented in Parlament. 2. That the Lords Spiritual and Temporal and the Commons do represent those Three Estates of the Kingdom, and therefore are the Three Estates in Parlament. 3. That the p. 171King can be none of the Estates in Parlament, because he doth not represent any of the Estates of the Kingdom.

And it is a wonder to me, that any man, who considers the Constitution of the Government of Europe, and how agreeable it was in all the Kingdoms of it, as to the Assemblies of the Three Estates, could ever take the King to be one of the Three Estates in Parlament. For the Question would seem ridiculous to persons of any other Nation, if we should ask them whether the King was reckon'd among the tres Ordines Regni? For by the Three Estates they all mean the Three Ranks of men, the Clergy, Nobility, and Commonalty. pag. 88.But the Authour of the Letter could not deny that these were the Three Estates of the Kingdom; but he saith, the Three Estates of Parlament are clean another thing: which I may reasonably suppose, is sufficiently disproved by the foregoing Discourse.

But he quotes several Authorities for what he saith, which must now be examined, and will appear to be of no weight, if compared with the evidence already given on the other side.

The first Authority is of King Iames,pag. 98. in his Speech at the Prorogation of the Parlament p. 1721605. wherein he saith, the Parlament consists of a Head, and a Body; the King is the Head, the Body are the Members of the Parlament. This Body is subdivided into two parts, the Vpper, and the Lower House. The Vpper consists of the Nobility and the Bishops; the Lower of Knights and Burgesses. The force of the Argument lies in King Iames his making the Bishops but a Part of the Vpper House: but that this doth not exclude their being a Third Fstate, I prove by a Parallel Instance. In 5 H. IV. the Bishop of London, being Chancellour, compared the Parlament to a Body, as King Iames did; but he made the Chùrch the Right Hand, the Temporal Lords the Left Hand, and the Commonaltie the other Members; yet presently after, he calls these, the several Estates which the King had called to Parlament. But that the Bishops sitting in the same House with the Temporal Lords doth not hinder their being a distinct Estate, will appear, when we come to answer his Reasons. And for King Iames his sense as to this matter, we may fully understand it by this passage in his Advice to his Son.Basilic. Dor. l. 2. p. 159. of his Works. As the whole Subjects of our Countrey (by the ancient and fundamental Policy of our Kingdom) are divided into p. 173Three Estates, &c. These words are spoken of the Kingdom of Scotland; but the ancient and fundamental Policy of that is the same with England; and he that believed the Subjects made the Three Estates there, could never believe the King to be one of them here.

The next Authority is of King Charles I. pag. 100.in his Answer to the 19 Propositions Iune 2. 1642. wherein he tells the two Houses, that neither one Estate should transact what is proper for two, nor two what is proper for three. To which I answer, that the Penner of that Answer was so intent upon the main business, viz. that the two Houses could doe nothing without the King, that he did not go about to dispute this matter with them, whether the King were one of the Three Estates or not; but taking their supposition for granted, he shews that they could have no Authority to act without the King's concurrence. But the unwary Concessions in that Answer were found of dangerous consequence afterwards, when the King's enemies framed the Political Catechism out of them; which is lately reprinted, no doubt, for the good of the People.

In 2 H. IV. n. 32.pag. 101. he makes the House of Commons to declare to the King and p. 174Lords, that the Three Estates of the Parlament are the King, the Lords Spiritual, and Temporal. Whereas the truth of that matter is this: A difference had happen'd in the House of Lords, between the Earl of Rutland and Lord Fitz-Walter; whereupon the House of Commons go up to the King and the Lords, and having, it seems, an Eloquent Speaker, who ventured upon dangerous Metaphors, he makes bold with the Similitude of the Trinity; because that would help him to perswade them to Vnity: but if he had left the King out, he might have been suspected to have set up an Independent Power in the Three Estates: therefore lest he should lose his Similitude, (which goes a great way with an eloquent man) he strains another point, and draws the King into his Trinity. And is such an expression to be mention'd in comparison with the express Declaration but the year before, 1 H. IV. of both Houses concerning the Three Estates in Parlament?

Next to this Similitude, that of Stephen Gardiner ought to be mention'd; who compared Faith, Hope, and Charity, concurring to Iustification, to the concurrence of the Three Estates in Parlament, i.e. the King and two Houses, to the making of p. 175Laws. But I wonder the Authour of the Letter, who expresseth so much dislike of his Divinity, would take his Iudgment in Politicks. But this notion of making the King one of the Three Estates, how valuable soever it be to some men, is, it seems, onelyonly to be met with in some grave ancient Similitudes. But of what Authority these are, against the constant sense of Parlaments so fully declared, I leave any man of understanding to judge.

For the judgment of eminent Lawyers, pag. 103.he quotes but one in King Iames his time, viz. Finch in his Book of Law, l. 2. ch. 1. who doth indeed, in the words quoted by him, make the King, Lords and Commons to be the Three Estates. But I can hardly imagine how a learned Lawyer could fall into such a gross mistake, unless the Modus tenendi Parlamentum should give the occasion to it; which was accounted no blind MS. in those days, but a very great Treasure, as appears by Sir E. Coke, who cites it on all occasions. And very few Lawyers had the judgment in Antiquity which Mr. Selden had, who first discovered the just Age and Value of that MS. This Authour indeed, towards the conclusion of his Treatise, makes the King the first of the Estates: but then he p. 176makes Six Estates in Parlament, or Degrees, as he calls them; and delivers this for good doctrine at the very end of his Treatise, that if any one of all these be summon'd, and do not appear, yet, with him, it is notwithstanding a full Parlament: nay, he expresly saith, the King may hold a Parlament without a House of Lords. But there are so many other such Positions discover'd by others in that Treatise, that I need to say no more of it. And as to this point of the King's being one of the Estates in Parlament, Sir Ed. Coke, who otherwise too much admired that Treatise, declares against it, in the very beginning of his Treatise of the Parlament. This Court, saith he, consisteth of the King's Majesty, sitting there as in his Royal Politick capacity; and of the Three Estates of the Realm; viz. of the Lords Spiritual, Archbishops and Bishops, the Lords Temporal, and the Commons of the Realm. And however the Authour of the Letter may slight Mr. Selden's Judgment in this matter;pag. 86. yet these two may be sufficient to weigh down the Scales against any one Lawyer's Authority to the contrary; especially, since they were never suspected, I dare say, for any partiality towards the Clergy.

p. 177(3.) But the Authour of the Letter thinks to carry this point by meer strength of Reason. We must therefore diligently consider the force of his Arguments.

1. If Bishops were one of the Estates in Parlament, pag. 89.Reason would they should vote by themselves separately from other Lords, which would make another Estate: But they do not onelyonly not vote apart by themselves, the whole Body of them together; but that Body is divided and separated within it self, one part from another. If both Houses ever sate together, as some imagine, (and as they do in a neighbour Kingdom,) this way of Reasoning will make but one Estate in Parlament all that time. But to give a clear answer to this objection; I distinguish two things in the Bishops, their Spiritual Capacity, by which they represent; and their Civil Capacity as Barons, in which they vote, according to the Rules of the House. For, the manner of giving their Votes is a thing under the Regulation of the House, and depends upon Custom; but their Spiritual Capacity as Bishops, in which they represent, doth not. And the Reason of their sitting together with other Lords, is upon the account of their Writs of Summons; which, as Mr. Selden confesseth, p. 178ever since the latter end of Edw. III. hath been, for the Bishops cum ceteris Prelatis, Magnatibus & Proceribus, colloquium habere & tractatum: and therefore they are bound to sit together in the same place with the Temporal Lords, or else they cannot advise and confer together. And I leave the Authour of the Letter to consider, whether his Reason, or the King's Writ, ought to take place.

2. If the Bishops were a Third Estate, pag. 89.they must have a Negative voice to all that passeth there: But the Bishops are intermingled with the Temporal Lords in making up the Majority, as a part of it. Since I have evidently proved the Clergy to be one of the Three Estates in Parlament, if he be sure that every Estate ought to have a Negative voice, then I am sure that this Objection lies more upon him to answer, then upon the Bishops. But to prevent any new disputes, I shall return this Answer to it. Since it is agreed on both sides, that the Bishops do sit in the House as Temporal Barons, and in that respect do make up the Majority of Votes in the House of Lords; it could not but seem unreasonable, that they who voted as Barons in the House should have a Negative voice in another capacity: and by p. 179this means they lost their distinct Negative voice, because by the King's Writs they were to sit and vote with the Temporal Lords. Just as it is in the Diets of Germany: Since the distribution of that Assembly of the Estates of the Empire into the several Chambers, the Prelates vote according to their Ranks: the Three Electors in the Electoral College; the other Bishops, that are Princes of the Empire, in the Chamber of Princes; and those who are not Princes, with the Counts and Barons. So that here the Votes of the Bishops are mingled with the rest, without a distinct Negative voice; and yet no one questions but the Bishops do represent a distinct Estate of the Empire.

3. This is a disparagement to the House of Lords, pag. 90.that another Estate must be joyned with them to make up their Negative. No more, then to the Princes of the Empire, to have the Bishops joyned with them, when the Imperial Cities vote by themselves. But what disparagement is this, for those to make up the Majority of the Votes of the Baronage, who sit there as Barons by Tenure, by a Right as ancient as Will. the Conquerour, by the Authour's own confession?

4. If the Bishops make a Third Estate,pag. 91. p. 180then a Parlament could not be held without them: But a Parlament hath sate excluso Clero, as that of Ed. I; and that it may do so in point of Law, appears by the Resolution of the Iudges in Keilway's Reports, because the Bishops sit in Parlament by reason of their Baronies. This is the great Objection, to which I shall give a full Answer.

[1.] It is dangerous arguing from extraordinary Cases to the excluding any one of the Estates of the Kingdom from being represented in Parlament: because no one can tell where this way of arguing will stop. If a Parlament may be good without one Estate, why not without another? And we have seen an House of Lords excluded as unnecessary, upon such kind of arguments; because they sit in their own Persons, and represent none but themselves. If we once depart from the ancient and legal Constitution of Parlaments, there will be no end of Alterations. Every new Modeller of Government hath something to offer that looks like Reason, at least to those whose interest it is to carry it on. And if no Precedents can be found, then they appeal to a certain invisible thing called the Fundamental Contract of the Nation: which being a thing no where to be found, may p. 181signify what any one pleaseth. Suppose one extraordinary case happens through the disorder of Times, that the Clergy have been left out in a Parlament; what doth this signify towards altering the legal Constitution and constant Course of Parlaments, which from the beginning of Parlaments in this Nation, have had the Estate of the Clergy represented in them? as sufficiently appears by Mr. Petyt's learned Preface to his late Discourse of the ancient Right of the Commons. pag. 7, &c.The first after King Ethelbert's Conversion was, Commune Concilium tam Cleri quàm Populi. That under Ina was, omnium Episcoporum, & Principum, Procerum Comitum, & omnium Sapientum Seniorum & Populorum totius Regni. That under Edmund the Elder was, Concilium magnum Episcoporum, Abbatum, Fidelium Procerum & Populorum. I might adde many more: as that at Becanceld under King Withred A. D. 694.Concil. Brit. p. 182. 189. 318. 327. 336. 340. 344. 428. 534. Episcopis, &c. Ducibus & Satrapis in unum glomeratis. At Clovesho under Kenulphus of Mercia; at Calecyth, at London, at Kingston. Nay, not one can be found by me in the Saxon times, wherein the Bishops are not expresly mention'd. So that if there be such a thing to be found as the Fundamental Contract p. 182of the Nation about the Constitution of Parlaments, I do not question but they have their share in it. Insomuch that Sir H. Spelman makes it his description of the Wittena-Gemot, that in it, as Mr. Petyt observes, Convenêre Regni Principes, tam Episcopi quàm Magistratus, liberique homines; i.e. it was an Assembly of the Three Estates. So that before there were any such things as Baronies, they were an essential part of the English Parlament. And must all this clear and undoubted evidence from the first mention of Parlaments be rejected, because once upon a time, a certain King called a certain Parlament, wherein, upon some Distast between the King and the Clergy, the other Estates continued sitting without them?

[2.] This single Instance about the Parlament under Ed. I. is much misunderstood, as will appear by these considerations.

1. That the Clergy excluded themselves, and were not shut out by the Act of the King and the other Estates. For upon the Bull of Pope Boniface VIII. forbidding the Clergy giving any more Subsidies, (which was procured by Archbishop Winchelsee, as our Historians relate) a Parlament being called by Ed. I. at Saint Edmondsbury on purpose for Subsidies, the p. 183Clergy refuse, upon the Pope's prohibition, till they had consulted the Court of Rome; and go away every one to their own homes: notwithstanding which, the King proceeds with the other two Estates, and gets Subsidies from the Laiety. So that the exclusion of the Clergy came from their own voluntary Act; when the King desired no such thing, nor the other two Estates, but were all extremely provoked at this withdrawing of the Clergy. That this Parlament was called purposely for the Subsidy, appears by the Writ still upon Record; wherein the Archbishop is summon'd to appear,Claus. 24 Ed. 1. M. 7. dorso. ad ordinandum de quantitate & modo subsidii memorati.

2. Whereas it is insinuated, that great matters were done, and good Laws passed, when the Clergy were excluded; I find no such thing. It is true, the confirmation of Magna Charta by Ed. I. (which was a great thing indeed) is said, in the Statute-Books, to be done the same year, viz. 25 Ed. I. But that it could not be done in that Parlament, I thus prove. That Parlament was called crast. Walsingh. pag. 18. Thorn. ad A. 1296. Knighton, p. 2491. Matt. West. pag. 428.Animarum; the King appoints another at London crast. Hilarii: where the difference still continuing, he appoints a new Parlament on the day of S. Peter ad Vincula, or Lammasday, p. 184wherein he was reconciled to the Archbishop and Clergy. Then Fealty is sworn to his Son, before his going into Flanders; and the King excused himself as to the great Taxes and Subsidies, on the account of his Wars. While he was about Winchelsea, a Remonstrance is sent to him of the Grievances of the Nation, in the name of the Archbishops, Bishops, Earls, Barons, and the whole Commons of England, wherein they complain of illegal Taxes, and the breach of Magna Charta. The King gives a dilatory answer, and passes over into Flanders. In his absence the People refuse to pay the Taxes, and the Lords combine together, and all things tend to an open Rebellion. His Son Ed. II. calls a Parlament at London, and promises a Confirmation of the Charter, and that no Taxes should hereafter be raised, either on Clergy or Laiety, without their consent. Which being sent over, Edw. I. confirmed it with his own Seal: which was all done within the compass of this year. But he again ratified it in the Parlament 27 Ed. I. So that nothing was done in that Parlament at S. Edmondsbury, but granting a 12^th of the Laiety to the King. And when the great Laws were passed, the King and p. 185Clergy were reconciled, and they sate in Parlament. And the Archbishop of Canterbury fell into the King's displeasure afterwards, for being so active a promoter of them. The summe then of this mighty argument is, that the Lords and Commons once granted their own Subsidies, without the concurrence of the Clergy; therefore the Clergy are no essential part of the parlament.

3. The Reason assigned in Keilway's Reports, why the King may hold a Parlament without the Bishops, is very insufficient:pag. 92. viz. because they have no place in Parlament by reason of their Spiritualty, but by reason of their Temporal possessions. The insufficiency of which Reason will appear by two things.

1. That it is not true: as appears by this, that the Clergy are one of the Estates of the Kingdom; and all the Estates of the Kingdom must be represented in Parlament.

2. Were it true, it is no good Reason. For why may they be excluded because they sit on the account of their Baronies? Where lies the force of this Reason? Is it because there will be Number enough without them? That was the Rump's Argument against the Secluded Members. p. 186And I hope the Authour of the Letter will not justify their Cause. Or is it because they hold their Baronies by Tenure? So did all the ancient Barons of England: and why may the King hold his Parlament with the other Barons, without the Bishops; and not as well with the Bishops, without the other Barons? Which I do not see how it can be answer'd upon those grounds. Suppose the Question had been thus put, Since all the ancient Lords of Parlament were Barons by Tenure, and Parlaments were held for many Ages without any Barons by Patent or by Writ, why may not the King hold his Parlament after the ancient way, onelyonly with Barons by Tenure? I do not see, but as good a Reason may be given for this, as that in Keilway's Reports. All that I plead for is, that our good ancient and legal Constitution of Parlament may not be changed for the sake of any single Precedents, and rare Cases, and obscure Reports built upon weak and insufficient Reasons.pag. 68. For, as the Authour of the Letter very well saith, Consuetudo Parlamenti est Lex Parlamenti, The constant Practice of Parlaments (and not one single Instance) is the Law of Parlaments. And suppose that Precedent of 25 Ed. I. p. 187as full as could be wished in this case; yet I return the answer of the Authour of the Letter in a like case,pag. 49. This is but one single Precedent, (of a Parlament without Bishops,) against multitudes wherein they were present: it was once so, and never but once. And can that be thought sufficient to alter and change the constant course and practice of Parlaments, which hath been otherwise?

Nothing now remains, but a severe reflexion on the Popish Bishops for opposing the Statute of Provisors, pag. 96.and the several good Acts for the Reformation. But what this makes against the Votes of Protestant Bishops is hard to understand. If he thinks those could not make a good Third Estate in Parlament, who took Oaths to the Pope contrary to their Allegeance, and the interest of the Nation, so do we. If he have a great zeal for the Reformation, so have all true Members of the Church of England, who, we doubt not, will heartily maintain the Cause of our Church against the Vsurpations of Rome, though the heat of others should abate. For did not our Protestant Bishops seal the Reformation with their Bloud, and defend it by their admirable Writings? What Champions hath the Protestant Religion p. 188ever had to be compared in all respects with our Cranmer, …idley, Iewel, Bilson, Morton, Hall, Davenant, and many other Bishops of the Church of England? And notwithstanding the hard fortune Archbishop Laud had in other respects, not to be well understood in the Age he lived in; yet his enemies cannot deny his Book to be written with as much strength and judgment against the Church of Rome, as any other whatsoever. I shall conclude with saying, that the Clergy of the Church of England have done incomparably more Service against Popery, from the Reformatition to this day, then all the other Parties among us put together: And that the Papists at this time wish for nothing more, then to see men, under a pretence of Zeal against Popery, to destroy our Church; and while they cry up Magna Charta, to invade the legal Rights thereof, and thereby break the first Chapter of it; and from disputing the Bishops presence in Cases Capital, to proceed to others; and so by degrees to alter the ancient Constitution of our Parlaments, which will unavoidably bring Anarchy and Confusion upon us: from which, as well as Popery, Good Lord, deliver us.

THE END.

End of the text · Edward Stillingfleet, Concerning the Bishops Right to Vote in Parliament in Capital Cases (1680)