House of Lords Journal Volume 4: 28 October 1641

DIE Jovis, videlicet, 28 die Octobris.

PRAYERS.

The Lord Keeper of the Great Seal sat Speaker again.

The Lord Privy Seal reported the Effect of the Conference Yesterday with the House of Commons, touching the Bishops: videlicet,

Report of the Conference about depriving the impeached Bishops of their Votes.

"Mr. Pym delivered from the House of Commons, That there is nothing of greater Importance to the Safety and Good of the Kingdom, than that this High Court of Parliament, which is the Fountain of Justice and Government, should be kept pure and uncorrupted, pure from Corruption, free from Partiality and By-respects. This will not only add Lustre and Reputation, but Strength and Authority, to all our Actions: Herein (he said) your Lordships are specially interested, as you are a Third Estate by Inheritance and Birth-right. So the Commons are publicly interested, by Representation of the whole Body of the Commons of the Kingdom, whose Lives, Fortunes, and Liberties, are deposited under the Custody and Trust of the Parliament. He said, The Commons had commanded him and his Colleague Mr. Solicitor General to present to your Lordships Two Propositions, which they thought very necessary to be observed and put in Execution at this Time.

"1. First, That the Thirteen Bishops which stand accused before your Lordships, for making the late pretended Canons and Constitutions, may be excluded from their Votes in Parliament.

"2. The Second, That all the Bishops may be suspended from their Votes upon that Bill which is intituled, "To disable all Persons in Holy Orders to exercise any Jurisdiction or Authority Temporal."

"The First of these is committed to his Charge, and he said he was commanded to support it with Three Reasons:

Reasons of the Commons for it.

"1. That the Thirteen Bishops have broken that Trust to which every Member of Parliament is obliged; which Trust is, to maintain, 1. The Prerogative of the King. 2. The Privilege of Parliament. 3. The Propriety of the Subject. 4. The Peace of the Kingdom.

"And this Trust they have broken, not by one transient Act, but by setting up Canons in Nature of Laws to bind the Kingdom for ever.

"That the Canons are of this Nature, appears by the Votes of both Houses. And that they were all Parties to the making thereof, appears by the Acts of that Synod: The Book itself the Commons cannot tender to your Lordships, because they sent for it, but he that hath the Book in Custody was out of Town, but a Member of their own House, upon View of it, is ready to depose, that their Names were entered amongst those that did subscribe to it.

"1. Wherefore the House of Commons desire your Lordships, in the First Place, to consider whether they that took to themselves a Legislative Power destructive to Parliaments, be fit to exercise that Power of making Laws which only belongs to Parliament.

"2. Secondly, Whether it can be safe for the Commonwealth, that they should be trusted with making Laws, who, as much as in them lay, have endeavoured to deprive the Subject of these good Laws which are already made.

"3. A Third Reason is this, That they stand accused of Crimes very heinous; that is, Of Sedition. 2. Of Subversion of the Laws of the Kingdom. This will easily appear, in the Nature of the Canons themselves, as also by the Votes to which your Lordships and the Commons have already agreed.

"And here were read the Votes both of the Lords and Commons, which are entered in both Houses.

For barring all the Bishops from having Votes on the Bill for disabling Persons in Holy Orders from exercising Temporal Jurisdiction.

"For the Second Proposition, he said, that should be handled by one that will do it with more Advantage of Reason and Learning than he could do; therefore he would leave it to him."

"Mr. Solicitor General was the Man he left it to, who informed their Lordships, that the excluding of the Bishops from Votes in Parliament was not of so general Consequence as that by it the whole Clergy of England was excluded.

Reasons of the Commons for it.

"His First Reason offered was this, 1. That the Bishops did not vote for the whole Clergy; for that, if it should be so, then the Clergy of England should be Twice represented and Twice voted for in Parliament.

"This appears by all the ancient Writs of Summons, which till of late were to this Effect: A Writ of Summons went to the Bishop, commanding him summonere all the Clergy of his Diocese to appear, by Proxies of their own choosing. What to do? Ad consentiendum iis quæ de communi Concilio Regni ordinari contigerint; so that, if the Bishops do represent the Clergy, then the Clergy are Twice represented, both by the Proctors, and again by the Bishops.

"Now, although the former of those Writs be altered, yet the Reason holds, and still remains.

"2. Secondly, if they vote for their Clergy, then they are to be elected by the Clergy, as the Members of the Commons House now are. But your Lordships, voting only for yourselves, need no Election.

"3. Thirdly, if they voted for the Clergy as a Third Estate, then would follow, that no Act of Parliament could be good where they did dissent, but many Acts of Parliament are passed where all the Clergy dissented; and the last (he said) that to his Memory is the Statute of 1°Eliz. establishing the Book of Common Prayer, to which all the Bishops did disassent. The Entry in the Roll is, dissentientibus Episcopis; and yet the Statute holden for a good Law to this Day. This was offered to shew that it might not be conceived that the denying the Bishops to have Votes in this Bill now before your Lordships, was of that such general Influence as to take from the whole Clergy any Interest or Privileges that formerly belonged to them.

"2. In the Second Place, he said, he was to present the Sense of the whole House of Commons to your Lordships, that the Prelates have not so absolute a Right of Peerage for voting in Parliament as the Temporal Lords have out of Parliament: This appears by that of highest Consequence, that they are not triable by their Peers for their Lives, but by an ordinary Jury. In Parliament, they have no Vote in Judgement of Blood, Life, or Member; but, if their Peerage were so inherent in them as it is in the Temporal Peers, no Ecclesiastical Canons could take it from them. Besides, in Point of Right, it hath been Resolved by all the Judges of England, 7 H. VIII. in Kellawaye's Reports, That the King may hold His Parliament by the Lords Temporal and Commons without calling of the Bishops; and that, upon several Occasions specially concerning the Pope or themselves, the Bishops have been excluded, and their Votes not admitted herein. He said, he was commanded to offer some Precedents to your Lordships upon the sudden.

Precedents to support the Request of the Commons.

"In the Parliament Roll, 25 E. I. The Bishops refusing to join with the Lords and Commons in granting of Subsidies for the Good of the Kingdom, this was holden at Bury, and, excluso Clero, many Acts were then made, never since questioned. 35 E. I. the Statute of Carlile, divers Petitions there exhibited by the Commons concerning the Prelates and Lord, Abbots, for oppressing the poor Clergy, several Acts were then made for their Relief; but by whom? by the King, Earls, Barons, and other Nobles, and the Commons only; now, in respect the several Ranks of the Nobility are named, and the Bishops not mentioned, it shews they did not consent, because that, in all other Acts where they do consent, they are particularly named. And if it be objected, that they might be there and vote, and might give a Negative, and therefore were not named amongst them that did consent, it appears that, babito Tractatu cum Comitibus, Baronibus, et cæteris Communitatibus, the King did enact those Things, and never called the Bishops to the Debate. This appears in the Parliament Book.

"20 E. III. Parliament Roll, No. 33. The Commons petition, That no Allowance be made to the Cardinals that had been in France for treating of Peace. In the Roll it is thus entered: Assented unto as reasonable by the Dukes, Earls, Barons, and other the Lay Gents; without ever naming the Bishops; now the Word other Lay Gents shews the Bishops were none of the Number that voted in that Law.

"Secondly, it was voted, That, in Acts where the particular Ranks are set down, none of the Temporal Ranks have ever been omitted.

"And, if the Spiritualty had voted, they should have been named, though in Vote they had dissented.

"Eodem Anno, N° 35. ad N° 38. there being Two other several Acts made upon Petitions of the Commons, the one made against Provisions for some Cardinals, and the other to restrain the carrying of Money to Rome, the Answer is made as before, by the Dukes, Earls, Barons, and Commonalty, never mentioning the Lords Spiritual.

"3 R. II. Cap. 3. and 7 R. II. Cap. 3. These are in Print, Acts made by the King and Lords Temporal only, without the Lords Spiritual.

"The Statute of 7 R. II. reciting the former Statute of 3 R. II. which says, Our Lord the King, by the Advice and Common Assent of all the Lords Temporal and Commons being in this Parliament assembled, hath ordained, ut sequitur, in the Act.

"And these Acts, made by the King, the Lords Temporal, and Commons only, were upon the clamorous Complaints of the Commons about the giving of the Benefices of England to others, and others who never were Residents upon the Benefices."

This Report being ended, the House took the same into Consideration; and, for the better Debate of the Propositions, the House was adjourned into a Committee during Pleasure; and the Question was, whether those Thirteen Bishops, that are impeached of those Crimes from the House of Commons, shall be suspended from their Votes in this House untill they stand recte in Curia.

Consideration of these Propositions, and the Bill to disable Persons in Holy Orders from exercising Temporal Jurisdiction deferred.

After a long Debate herein, the House was resumed; and it is Ordered, That the further Consideration of the Propositions which came from the House of Commons, and the Bill, intituled, "An Act for disabling all Persons in Holy Orders to exercise any Temporal Jurisdiction," shall be both deferred untill the Tenth Day of November next.

Message from the H. C. about a Witness in the Cause of the Impeachment against the Bishops;

A Message was brought from the House of Commons, by Arthur Goodwin, Esquire; to let their Lordships know, "That whereas, at a Conference Yesterday, touching the Bishops which are impeached for making of Canons, the House of Commons did tell their Lordships that they had a Witness, a Member of their House, Mr. Wheeler, to prove that the said Bishops did subscribe to those Canons, he having seen the Register Book with their Names written with their own Hands, all which he is now ready upon Oath to prove, if their Lordships shall rest therein satisfied, the Register Book being in a House which is visited with the Plague.

and to determine the Business concerning the Soldiers.

"And further the House of Commons desires, That the Three Points concerning the Soldiers, brought up lately to their Lordships from the House of Commons, may be speedily determined."

The Answer hereunto returned is:

Answer.

That their Lordships will return an Answer, by Messengers of their own, in convenient Time.

Sir Wm. Killegrew's Witnesses to be examined.

Ordered, That any Three of the Lords Committees may examine Sir William Killegrewe's Witnesses which are now in Town.

E. of Bolingbroke's Privilege.

Cockayne released.

Ordered, etc. That Nicholas Cockaine, Servant to the Right Honourable the Earl of Bollingbrooke, being now in the Gaol at Bedford, who was arrested contrary to the Privilege of Parliament, shall (by virtue of this Order) be freed of and from his present Restraint and Imprisonment; and this shall be a sufficient Warrant in that Behalf.

"To the Keeper of the Gaol at
Bedford, his Deputy or Deputies."

Gamble, Under-sheriff, sent for.

Ordered, etc. That the Gentleman Usher attending this House, his Deputy or Deputies, shall attach, or cause to be attached, and brought forthwith before their Lordships, the Body of George Gamble, Undersheriff of the County of Bedford, for arresting and imprisoning the Body of Nicholas Cockaine, a Servant of the Right Honourable the Earl of Bollingbrook's, contrary to the Privilege of Parliament; and this shall be your sufficient Warrant.

"To the Gentleman Usher, &c."

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem Veneris, videlicet, 29^m diem instantis Octobris, hora nona Aurora, Dominis sic decernentibus.