Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	defendant_n	judgement_n	plaintiff_n	1,984	5	10.5099	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A45188	An argument for the bishops right in judging capital causes in parliament for their right unalterable to that place in the government that they now enjoy : with several observations upon the change of our English government since the Conquest : to which is added a postscript, being a letter to a friend, for vindicating the clergy and rectifying some mistakes that are mischievous and dangerous to our government and religion / by Tho. Hunt ...	Hunt, Thomas, 1627?-1688.	1682 (1682)	Wing H3749; ESTC R31657	178,256	388

ought to set aside and supersede the consideration of Decency CHAP. XII BUT to complete our Evidence I will add the consideration of what remains unquestionably the Right of the Lords Spiritual which seems to me to be in parity of Reason with the Right now in Pretense and that is their Right to be authoritatively present and assisting at passing Bills of Attainder which the Bishops always exercised as the Folio saith though he will not think it allowable from thence to infer that they have rightful Authority when that House doth proceed judicially to Condemnation But I desire to be informed what difference there is between condemning a man by Act of Parliament and by Judgment in Parliament If the death of the man be onely considered it is as much against the Canon to condemn the man one way or the other It 's causa judicium sanguinis and death follows Nay to condemn a man by Bill of Attainder is more against the reason of the Canon than the condemning a man judicially for the condemning a man judicially is ex officio Judicis but a Bill of Attainder is an extraordinary use of the Legislative Power to a purpose which was not designed in the Institution Such an Act is not ex officio Legislatoris but the using of the Absolute Power of the Sovereignty upon Reasons of State Here one would think if the Canon had any consideration any obligation it should restrain the Bishops from meddling in such Legislations Privilegia ne irrogunto was one of the Laws of the twelve Tables But if I do rightly understand the reason why Bishops did more frequently and without pretence of scruple or objecting the Canon assist in the Bills of Attainder was for this reason That the weightiness of the Affair the high nature of the Proceeding the extraordinary use of the Legislative Power which can be warranted onely by extraordinary Reasons required their Presence and put that little pretence of the Canon out of countenance it could not with any faith to the Government be then so much as mentioned for an Excuse by the Bishops And this I will say that the Canon hath no more right of restraining the Bishops in Judicial Proceedings than in the Proceedings upon Bill of Attainder That it hath not done so is confessed in this and therefore it did not de jure do so in the other The Folio Author hath found out a very extraordinary Reason why Bishops are necessary to Acts of Attainder but this he saith must not be drawn into an Argument for the Bishops Right of Judging and that is because Rights Titles and Interests are made forfeit by Acts of Attainder which were not forfeitable at Common Law and for the doing of this it i● necessary there should be a concurrence of the three Estates to bind all Rights This Argument supposeth that private Acts of Attainder did not always conform themselves in the matter of Forfeitures to the severity of the Common Law or general Statute Law which is a mistake for before the Statutes of 26 H. 8. c. 13. 33 H. 8. c. 20. private Acts of Attainder made no Forfeitures but what the Common Law made and since the Statutes of 26 H. 8. c. 13. 33 H. 8. c. 20. the private Attainders by Parliament have not exceeded those appointed by that Statute but have often times gone less And therefore the Bishops were not present for the reason of making Forfeitures larger and of more things than the Law at the time being made forfeitable but of common duty especially in all these matters of an extraordinary nature or difficulty to assist as Judges and Councellours in that House And to this that I now say all the Acts of Parliament of private Attainders that I have seen and they are not a few are agreeable I believe what he hath said in this matter is not grounded upon any observation but he was willing to find out a Reason for what he had undertaken to prove and to offer it without trying of its truth Besides whatever can be a Law can be a Law without them and if they are absent CHAP. XIII BUT I must take notice that we have proved beyond what is necessary to maintain the Lords Spiritual their pretence of Right to judge of the Earl of Danby's Pardon which is the present case and gives the occasion of this Dispute And here I desire the Reader to remember and observe what was heretofore done by the Bishops in case of Heresie The Bishop in his Consistory convicted a Heretick and did never imagine he incurr'd the Canon pretended though the delivery over to the Secular Arm and burning of the Convict if he did not recant was intended assuredly to follow because he did not award the Execution and give the final killing Sentence How then can the Canon if it was a Law as it is not nor obligeth any man but he that will be obliged lay any restraint upon the Bishops in judging of the Earl of Danby's Pardon For if they dislallow his Pardon and reject his Plea he is not to be therefore condemned though perhaps his Condemnation may follow as burning doth the Conviction of a Heretick but he is not ipso facto and merely by rejecting his Plea of Pardon condemned For observe I pray no man is condemned or cast in any Suit because he doth not make a good Defence but upon the sufficiency of the matter whereupon he is charged Besides that it is not without Precedent that a man hath been tried after a Pardon pleaded and disallowed This every Lawyer knows to be so that if a Plea is pleaded to any Declaration upon which the Plaintiff demurs if the Plea be ruled a bad Plea the Defendent hath liberty to take exception to the insufficiency of the Declaration So that Judgment is finally and truly given upon the Declaration and Charge because there is a good cause of Action and not because the Defendent hath made a bad Plea So that the Bishops may judge in their own persons of the validity of Pardons without being contravenient to the Reason of the Canon so much talked of is evident for that the Judgment upon the Pardon is not the final and killing Judgment The Folio hath furnished us with an Authority for the same out of an ancient Manuscript Chronicle in libro Mailrosso he calls it wherein he saith the Prelates are said to have given their Opinion in 21 R. 2. for the revocation of certain Pardons of the Duke of Gloucester Earls of Arundel and Warwick which were granted in 11 R. 2. and in the Parliament of 21 R. 2. repealed And though the Chronicle said some blamed the Bishops and thought that they had incurred thereby Irregularity That doth not at all prejudice our Right nor abate the force of the Testimony that this matter of fact gives to it We reserved it to this place to add that as the intention of the Assize of Clarendon was to set bounds

it not be with as much fairness concluded that the Bishops were present because the addition of Temporal is not made to Seigniors and Grants in the said Cases of Sir Ralph Ferrers and Sir Wil. Thorp as it can be that they were absent in the hearing of the said Cases because the word Prelate or Bishop is not in those Entries expressed If he will be just and change the Tables He must yield us the Argument for he knows that there is no establishment in the Modus tenendi Parliamentum directing the Forms of Entries or any solemnes formulae whose import and value is ascertained and made indisputable but are to be expounded by an easy interpretation such as we use when we make fair constructions in common speech But to give this another Answer The Arguer is herein guilty of that fallacy which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or non causa pro causa And his Witness doth not speak ad idem The Bishop was an Ecclesiastical person and though the Bishops might try a Temporal Lord for the same offence yet they would not consent to try a Bishop and forgo that great priviledge of the Clergy with so much earnestness defended in that Age to be exempt from secular Judicatures They would not be present to try because of the person of the Defendant which cannot be drawn into Argument to prove that they had no cognizance of the Cause with any fairness But further the Octavo doth afterwards produce a Testimony that doth contradict this last Testimony in the point for which he produc'd it It is the Case of Thomas Arundel Arch-Bishop of Canterbury 21 R. 2. The Bishops pronounced Judgment against him in Treason by their Proxy They can it seems upon great Reasons wave that priviledge and submit a great Malefactor of their own Order to Justice as they did in the Case of Becket heretofore So that you see here they used a Jurisdiction in a Cause of Treason in the Case of Thomas Arundel which the Bishops could not have used without a Right And the Case of the Bishop of Norwich is only an omission consistent with a Right The Case of Sir William Rikehill is next in order who was sent by R. 2. to Calais to take the Confession of the Duke of Glocester who soon after was Murdered The Judge was arrested and brought into Parliament before the King Lords Spiritual and Temporal and Commons the whole matter was examined and the Judge was examined Here is likewise a clear Case for the Bishops an Instance wherein they did take cognizance of a Capital Cause in Parliament But the Octavo hath a Shift for us and says that there was no impeachment or charge against the Judge and so the Bishops might be present at his Examination Let the Reader here observe the sleights wriglings and prevarications of this Octavo Author Whatever the World thinks of this Author I am much dissatisfyed about him and cannot believe him a man indifferent and impartial in this Enquiry In his observations of the Parliament of the 15 E. 3. the Bishops he saith vanished like lightning they went away immediately at the opening That matters of the Peace in general were to be treated of wherein Blood and Member might not at all be concerned for all that appears They went away and as he would have it they returned no more and they must not hear so much as a Commission of the Peace read But here in this Case of Rikehill they may examine a Murder He will say I am sure that though the Bishops did examine it they could make no judgment of the matter But who will believe him In the Case of de la Zouch and Gray he observes that Bishops could not be present so much as at a Battery though there was no Battery in the Case and yet he allows them to judge of all misdemeanors in the same little Book I observe but these things of many more of like nature which the Reader may observe of himself in that little Octavo that the World may judge how unjustly he deals in this Cause with what iniquity and prevarication he manages a noble question of Right concerning the Government of the Kingdom With what petulancy spight and inveterate displeasure he useth the Bishops That he is grinning at them whetting his teeth and squinting upon them perpetually with an evil Eye He oppugns their Right with Cavillations upon the Clerks Entries with what is in the Record and what is not and what he is pleased to add of his own upon them and with Precedents that reprove one another Had it not been more fair for him to have stated the Right upon a probable result of all the Records considered together than to make their Right sometimes more sometimes less sometimes to affirm sometimes to deny their Right in the same little Octavo He cannot sure think that every Judgment that hath been given upon deliberation in the greatest Judicature can uncontroulably make the Law much less a Fact much less an Omission a Negative that can operate nothing If nothing be Law but what hath always and constantly been done in the same manner and form and all circumstances the same as this Author it seems would have it and nothing true Theology according to Vincentius Lirinensis his Rule but what hath been received ab omnibus ubique semper We can have no Law nor no Theology Vain and idle opinions must be discharged such as can have no consideration with wise men and the Law must be declared by the Nature of Government reason and the general order of things But we have made too long an Excursion We must return to a further consideration of Rikehil his Case And now I submit it to any impartial man whether the Judge could be arrested and brought under an Arrest into the Parliament and be examined and not accused The very next Case he recites is that of John Hall in which we find nothing but an Examination and confessal upon which he was condemned as a Traytor And so would it have fared with Sir William Rikehil without doubt if he had been guilty and had confessed Neither the Octavo nor Sir Robert Cotton mentions any formality more against the one than the other The House of Lords are not tyed to Formalities in their proceedings like other inferior Judicatures and the more inferior any Court is the more regular forms are exacted and that with great reason which we will not hear treat of Besides in the Case of the Earl of Northumberland recited in the Octavo Book Fol. 34. in 5 H. 4. a Judgment was given against him for an offence upon a petition which he exhibited for a pardon of the same offence But in the Case of the Earl of Northumberland I pray observe what the Octavo saith in reference to our question After he hath recited part of the Record in these words The petition being read and understood the Lords as Peers of Parliament