For Bishops making of Procurators in Causes of Blood.
IT doth not appear that Bishops ever made Protestations, or withdrew in Cases of this Nature, before the 11th, nor after the 21st of Rich. the 2d.
And yet the Attainders in the 11th year, are afterwards ratified by the Consent of the Lords Spiritual, 11 Rich. 2. as you see by their Act of consent, Rott. 11 Rich. 2. no. 38. And the Printed Statutes.
And in his twenty first year they made Procurators, first, Thomas Percy in Writing, 21 Rich. 2. no. 9. where you have his Proxie set down in Latine; and then Scrop Earl of Worcester, by word of mouth. As the Roll is 21 Rich. 2. no. 50. where Scrop gives Sentence in the like Cau∣ses by vertue of that Procuration as the Roll saith.
And that this Proxie of the Prelates was not left with a Lay-man, for the dispatch of other Civil Causes only, but for Judgments of Blood also, it is appealed to all Histories and Law-Books, that have been Written from that time to this present day.
Thomas of Walsingham Lived under Henry the 6th, and he saith, that it was exacted of the Prelates (for it was not their own seeking,) as you may see upon the Rolls, that because they could not be present in Judgments of Blood, their Procurator (upon the like occasion) might assent unto such a Business, Walsing. in Rich. 2. pag. 354. So likewise in his Hypodigma Neu∣stria, pag. 550.
Page 12Littleton Lived under Edward the 4th, and he pronounceth for himself, and all his fellow Judges; That the Lords Spiritual who cannot consent to the Death of a man, shall make a Procurator in the Parliament, before the Steward is to proceed to gather Votes, &c. The Year-Book, 10 Ed. the 4th, no. 17.
Stamford Lived under Henry the 8th, Edward the 6th, Queen Mary. And he saith clearly, That when a Peer is Indicted of Treason, or Felonie in Parliament, the Lords Spiritual shall make a Procurator for them. Stam. Pleas of the Crown, lib. 3. pag. 153.
Mr. John Selden Lives still, than whom (peradventure) there Lived not an abler Lawyer in both the Laws, from the 21st of Richard the 2d, to this day. And he saith that the Clergy by reason of the Canon Laws (not the Common Laws) absented themselves sometimes from such Judgments, and committed their whole Interest for the time to a Lay-Proxie. Tit. of Honour 2d part pag. 704.
Lastly, for the Canon-Law in this point, it is not only dispensed withal by the Kings Summons to his Prelates, but by the Lords themselves in this very Cause of the Earl of Strafford; by their examining of the two Arch-Bishops, and a Bishop for Witnesses in the said Cause; which is no less forbidden in the Canon Law, than to Judge in Causes of Blood, Lynd∣wood. Fol. 146. pag. 2.
When the effect of this Paper was opened, and the Records, and all the Books produced by the Bishop of Lincoln, who had been in the Tower to search the said Records, the Lords declared and ordered, that they would use no Proxies of their own in this Tryal; with a Salvo of their Right against any other time. And thereupon the said Bishop (finding the Inclination of the House, and Timidity of his Brethren) offered the like Declaration, with the like Salvo, in point of Right, for the Lords the Bishops, which was accepted of, and entered into the Book, the Bishop of Lincoln dictating the same.
