Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	judge_n	king_n	law_n	5,155	5	5.2571	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A44187	A letter of a gentleman to his friend, shewing that the bishops are not to be judges in Parliament in cases capital	Holles, Denzil Holles, Baron, 1599-1680.	1679 (1679)	Wing H2461; ESTC R204379	41,325	145

it was lawful for him sometimes to reprove the other and to reduce him bring him into order if he went astray He leaves out what the Bishops work was he omits that clause Episcopus ut jus Divinum diceret for this was not to try Capital Crimes But Sir Henry Spelman tells us further that that Court had cognisance but of petty matters De causis Magnatum Potentiorum non cognovit Comes nam he ad Aulam Regiam deferende Pauperum tantum minus potentum judicabat Hinc Legibus nostris hodie prohibetur debili aut injuriarum actiones in Comitatu intendere si rei litigate valor non sit minor 40 solidis The Earl hath not cognisance of great mens business for such matters are to be brought into the Kings Courts he only judges poor mens Causes Hence it is that by our Law Actions for Debt and Trespasses are not to be commenced in the County Court if it be for above the value of 40 Shillings Judge now I pray you what all this makes to prove that Bishops have right to judge of Treason Felony and those transcendent Crimes which deserve death He then quotes Mr. Selden and makes him say in his Introduction to his Treatise of the Priviledges of the Barons of England that Omnes Praelati Magnates had this Priviledge till the Prelates lost it by the Parliament of 17 Car. 1. I find no such thing there he saith That the Prelacy had heretofore the first place in the Summons but that they had then lost it And this I observe further that Mr. Selden makes the whole upper House to be but one Estate whether the Bishops be there or No It was one Estate formerly when the Bishops had the Priviledge of sitting there and when they had the first place in the Summons and it was one Estate then in Mr. Seldens time when they had lost that Priviledge but our Assertor in the Printed Paper would take no notice of this Now I come to his Precedents he first begins with their Proxies and cites many Parliaments where Bishops gave Proxies which no man denies and they do it still only they give their Proxies now only to Bishops like themselves who are Members of the House not to such as are no Members as it seems they did then But giving Proxies to represent the whole Bench of Bishops or any one Bishop in any Judgment of death except in that one Parliament of 21 R. 2. I utterly deny Indeed he tells us of the 2. H. 4. and 2 H. 5. that they did it it there in those Parliaments but I dare say he cannot find it there I am sure I cannot and I do verily believe he never looked there but that he takes it upon trust out of the Margin of pag. 125. of Mr. Seldens Book of the Priviledges of the Baronage where indeed there is such a quotation but misplaced by the Printer having reference to what is said at the end of the Paragraph of Thomas Earl of Salisbury 2 H. 5. endeavouring to reverse the Attainder of his Father Iohn Earl of Salisbury who was attainted 2 H. 4. and not at all concerning what is said of Proxies in the first part of the Paragraph as our Assertor would here apply it Then he cites a Precedent or two to make out that Bishops were personally present at the giving of some Judgments of Death which if they be truly related he saith something but I believe they will be found to be of as little weight as all he said before His first is among the Pleas of the Crown 21 R. 2. of the Impeachment as he calls it of the Earl of Arundel and others by the Lords Appellants the Earls of Rutland Kent Huntington and others He saith the Earl of Arundel being brought to the Bar by the Lord Nevil Constable of the Tower that the Articles exhibited against him by the Lords Appellants were read to which he only pleaded two Pardons which Pardons not allowed the Lords Appellants demanded Judgment against him Whereupon the Lord Steward by the Assent of the King Bishops and Lords adjudged the said Earl guilty and Convict of all the Articles and thereby a Traitor to the King and Realm and that he should be therefore Hanged Drawn and Quartered This our Assertor saith who quotes Sir Robert Cottons Collections for it and there indeed it is so but methinks one should not venture to quote a Record upon any mans Allegation without consulting the Record it self and that I am sure he hath not done for it saith expresly that it was only the Lords Temporal and Sir Thomas Percy Proctor for the Prelats that gave that Judgment The words of the Record are Sur quoy le dit Duc de Lancaster per commandement du Roy toutz les Srs. Temporels Mr. Thomas Percy aiant poair sufficiant des Prelatz Clergie du Roialme d'Engleterre come piert de Record en le dit Parlement per assent du Roy agarderent le dit Counte d' Arundel coupable convict de toutz les pointz dount il est appellez per taunt luy ajuggerent Traitour au Roy au Roialme quil soit treinez penduz decollez quarterez Whereupon the said Duke of Lancaster by the Kings Command and all the Lords Temporal and Sir Thomas Percy being sufficiently empowered by the Bishops and Clergy of the Kingdom of England as appears upon Record in the said Parliament did by the Kings assent declare the said Earl of Arundel guilty and convict of all the points of which he was accused and therefore did adjudge him a Traitor to the King and Realm and that he should be drawn hanged his head cut off and body quartered You see the Bishops were none of them present but theit Procurator was to which in my Letter I have largely spoken and need not repeat it here He urges also a Precedent in this same Parliament of the Commons by the mouth of their Speaker Sir Iohn Bussy praying the King That for that divers Iudgments were heretofore undone for that the Clergy were not present that the Clergy would appoint some to be their Common Proctor with sufficient authority thereunto I have already shewed that this whole Parliament was repealed for the extravagant things that were done in it of which this was one And therefore nothing that was then done can signifie any thing to be a leading Case any ways to be followed And this as little as any except it could be made appear which I am confident it cannot that some Judgment had been reversed upon that account because the Prelates were not present and had not given their Assent to it Indeed 2 H. 5. Thomas Montacute Earl of Salisbury attempted it brought his Writ of Error to reverse the Judgment given 2 H. 4 against his Father Iohn Earl of Salisbury and did assign that for an Error as the Record saith Item Error de ceo que le dit John susdit Count dust forfaire terres tenements sans assent des Prelates qui sont Piers en Parlement les queux ne furent mye faits parties as Declaration Iuggementz avandits Item An Error in this that the foresaid Earl John should forfeit Lands and Tenements the Prelates not assenting who are Peers of Parliament yet were not at all made parties to the abovesaid Declaration and Iudgments But this was adjudged to be no Error and the Condemnation of his Father to have been just and Legal And I am very confident that this is the only Precedent of such an Attempt and yet it makes a stronger argument against it that it was endeavoured and rejected for now it is a Judged Case And besides as I have already observed this desire of the Commons of their making a Proctor shews what the opinion of those times was that the Bishops could not be personally present at such Judgments which is all that is now in question between us His next Precedent is 3 H. 5. when Rich. Earl of Cambridge and others were tried for Treason for levying War against the King the Bishops then personally sitting in Parliament as he saith and he bids us see the Record in the Tower which I dare say he had not done himself for then he would have found it contrary to what he asserts that Richard Earl of Cambridge and Henry Lord Scroope with him were not Tried nor condemned in Parliament as he saith they were but by a special Commission directed to the Duke of Clarence and other their Peers Earls and Barons at Southampton and were there condemned and executed but the whole Proceedings against them were afterwards brought into Parliament at the desire of the Commons and were there at their desire likewise ratified and confirmed and the Bishops then were and might be present for I look upon it as an Act of Parliament yet not attainting them but confirming their Attainder for they were Convicted Condemned and Attainted before at Southampton His last Chapter of Precedents from H. 8. to the 29 Eliz. is only of Bills of Attainder and so acknowledged by him and therefore Nothing to the purpose As I have said before those Bills are Laws though Private Laws whereto every Freeman of England doth consent either in Person or Represented and Bishops are or should be all present at the passing of them for then they act as Members of the House of Lords in their Legislative capacity But for their being Judges in any Trial of Life and Death or part of a Trial when the House proceeds in a Judicial way I see no reason by all that hath been said on the other side to change my opinion That they ought not Sir you see what is said on both sides be you Judge who is in the right FINIS

that the Archbishop was then charged with Treason Gervasius Dorobernensis saith he was charged with two things one not doing Justice in his Ecclesiastical Court to one Iohn who was Iohn the Mareschal that complained of the Archbishops detaining some Land from him the other that being sent for by the King upon occasion of Mareschals complaint he came not The first he excused laying the fault upon Mareschal himself for abusing the Court bringing veterum cantuum codicillum and old Song-Book to swear upon and refusing to swear super Evangelium ut moris est upon the Evangelists as the Custom is whereby he said he did Curiam suam infamare Defame his Court. The other he answered proving by two sufficient Witnesses Per duos legales viros that it was sickness hindred him and not any contempt This is the account which Gervasius gives and saith not a word of any Treason neither doth Matthew Paris nor Roger Hoveden who both of them give a relation of that proceeding at Northampton against the Archbishop And to say the truth it would be a strange High Treason only not to come being sent for by the King though there had been no sickness in the case at most it could have been but a High Contempt and punishable by Fine and Imprisonment or the like and probable it is that Fitz-Stephen who was a Creature of the Archbishops might represent it so only to draw more Odium upon the King for his severity against the Bishop even to an injustice when in truth there was no such thing However we may look upon it as but a weak President for the Bishops to lay any weight upon to prove their right to sit and vote and judge in a Capital cause Causa sanguinis being at the best but out of a blind Manuscript of an Author justly suspected of great partiality against the tenour of all the ancient Writers that give an account of the same business But we must go a step further to clear this matter in question for it seems some of the Bishops do say that though they will have no part in the Condemnation and pronouncing Judgment upon a Criminal person as to loss of Life or Member yet they may and will vote and Judge in such things as are but Preliminary and Preparatory to that condemnation and yet think they have no hand in bloud though they have a hand in doing that which will infallibly cause the taking away of of a mans Life and shedding of his Blood so they would divide two things which in truth have so near a relation and dependency the one upon the other as they are only separated by a little time coming between one thing to be done first and that being done the other must necessarily follow and be done presently after And they doing the former may be well said to do the latter and if any Law prohibit them from having to do with the latter the same Law doth and must prohibit them medling with the former It is a rule in Logick Causa causae est causa causati If the Judgments of the Bishops determine one thing which is the necessary cause of any other thing their Judgment may be said and really it doth determine the other thing As take for example the particular case upon which this Question hath been moved the Earl of Danbyes Pardon of the validity or invalidity whereof they will be Judges It is hoped they will be just Judges and incline neither way but according to the merits of the Cause before them so what their Judgment will be till they have heard all themselves cannot tell Now if by their Judgment the Pardon be determined to be invalid and illegal and that carry with it a conviction of the Crime of which he stands impeached as some will have it to do saying that the taking of a Pardon implies a guilt and is in Law a confession of the Crime pardoned and so his condemnation must necessarily follow even for Treason the impeachment being so doth not their Judgment subject him to that condemnation How then can they say we will have no part in condemning him Is not this something like the Frier in Chaucer that would have of a Capon the Liver of a Pig the Head yet would that nothing for him should be dead So they forsooth will take upon them to Judge his Pardon to be no Pardon which brings on infallibly his condemnation and yet say with that Frier God forbid he should die for us That we should have any hand in his bloud But certainly this will not pass for currant either in Foro Iudicii or Foro Conscientiae to excuse them from being Actors in his Condemnation To evade this some say the Bishops may be present and hear what will be said Pro and Con concerning this Pardon and those only shall deliver their opinions and judgments of it who are satisfied of the Validity and Legality of it but those amongst them who are of another mind shall withdraw and give no vote and then it cannot be said that any of them have a hand in condemning him But how this will sute with the Office of a Judge let any man judge whose duty it is to condemn the Guilty as well as to acquit the Innocent and who ought to do the one or the other in every business that comes before him as he finds ground for it upon hearing the Allegations and Proofs And besides it is most Unparliamentary for in Parliament all who are at the debate of a business ought to give their vote to the Question one way or other according to their sense of it and as they in their consciences think it just But to break thorough all at once they will have it That it is only by the Canon Law that this restraint is upon them and that the forbearance of their Predecessors being Papists and so subject to that Law was only in that respect which Law being of no force at present and taken away by Act of Parliament they are now at Liberty though in modesty they think sit sometimes to withdraw but have a right to continue sitting if they please To which in answer I shall say that I will not deny but that the Canon Law might give the first rise and a beginning to such an usage and no Law could be of greater force to introduce and establish such a thing as being that to which only the Clergy of those times would be subject conceiving themselves to be above and not bound by any other But it is most clear that it came afterwards to receive a Civil Sanction and to have not only the stamp of the Authority of Parliament set upon it by the continual practice there and we know that Consuetudo Parliamenti est Lex Parliamenti The Custom of Parliament is the Law of Parliament But that two several times there have been particular and express Confirmations and Ratifications of it in Parliament which makes it