Selected quad for the lemma: death_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
death_n	brother_n	earl_n	king_n	4,017	5	3.9683	3	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A61556	The grand question, concerning the Bishops right to vote in Parliament in cases capital stated and argued, from the Parliament-rolls, and the history of former times : with an enquiry into their peerage, and the three estates in Parliament.	Stillingfleet, Edward, 1635-1699.	1680 (1680)	Wing S5594; ESTC R19869	81,456	194

time of the Earl of Strafford's Trial a Book being printed about the Privilege of Peers wherein this Protestation was mention'd hold was presently taken of it by Men who thought they could not compass their ends without removing the Bishops out of the House and when the Bishops insisted on their Right and could not be heard but at last were willing to salve their Right by Proxies the Lords of the Cabal prevailed with their friends to declare they would use no Proxies themselves and so by that artifice shut the Bishops out of Doors 4. The practice hath been so contrary since the Reformation that I find no manner of regard hath been shewed to it For the Archbishop of Canterbury was the first nominated in the Commission for the Trial of the Queen of Scots as appears by the Commission it self in Camden which is directly contrary to the Canon-Law Some distinguish the Bishops acting by Commission from their being Iudges in Parlament For which there is no manner of Reason with respect to the Canon-Law which is rather more express against any kind of Commissions in Cases of Bloud as appears by the Council of Toledo the Synodal Constitution and the Pope's Decretals And there hath never been any scruple about Divines sitting on the Crown-side as Iustices of the Peace when Sentence of death is pronounced nor in the Ordinary's declaring Legit or Non legit when a man's life depends upon it But which is yet more to our present purpose in the Parlament 22. May 1626. upon the Impeachment of the Earl of Bristol of high Treason 10 Bishops 10 Earls 10 Barons were appointed to examine the Evidence and upon their Report he was sent to the Tower by the whole House All which shews that there hath been no regard had to the force of the Canon-Law in this matter since the Reformation That being a Spirit lay'd long since by the Principles of our Church and it would be strange if some mens zeal against Popery should raise it again CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered II. I Now come to examine the Precedents and shall proceed therein according to due Order of Time And so the first is taken from the Saxon times viz. from Brompton's Relation about Edward the Confessour's appealing to the Earls and Barons about Earl Godwin's murthering of his Brother Alfred Here we see saith the Authour of the Letter it was onely ad Comites Barones that he appealed and they were onely to judge of it and not Bishops or Prelates I have 2 things to answer to this Precedent 1. That we have great reason to suspect the truth of it 2. That if it were true we have no reason to suspect the Bishops to be excluded 1. For the truth of the Story That there is great reason to suspect it appears in that it is the single relation of Brompton against the consent of the other Historians and some of them much ancienter and nearer to that time who mention K. Edward's charging Earl Godwin with the Death of his Brother not in Parlament but as they were at Table together at Winchester upon the occasion of a saying of Earl Godwin's upon the King 's Cup-bearer's stumbling with one foot and recovering with another See saith he how one Brother helps another Upon which Matt. Westminster Knighton and others say that the King charged him about the Death of his Brother Alfred Whatever the occasion was our best Historians of that time Malmsbury and Ingulphus say it was at an Entertainment at Winchester and that Earl Godwin died upon the place being choaked as they say with a Morsel of Bread he took with a great Execration upon himself if he were not innocent Knighton saith he was question'd for the Death of his Brother by Hardecnute and that he cleared himself by saying he did nothing but by the King's command But suppose Edward to be never so weak a Prince is it likely this should be done by an Appeal in Parlament by the King himself and that afterwards by the Judgment of his Earls and Barons he and his Sons and 12 Kinsmen should make the King amends by as much Gold and Silver as they could carry between their Arms Besides Brompton saith this was done by Godwin when he returned to England after King Edward's coming to the Throne whereas Malmsbury shews that it was through Earl Godwin's interest that ever he came to it and so the marrying his Daughter would make any one believe 2. But suppose it true What reason is there to conclude the Bishops not present who were never absent through all the Saxon times after Ethelbert's Conversion in any publick Councils of the Nation They had no Canon then to be afraid of for that of the Council of Toledo was brought in by Lanfranc And it was not against the practice of those Times For if we believe as true a Story as this of Brompton the Archbishop of Canterbury himself condemned King Edward's Mother Emma to a Trial by hot Irons which was present death without a Miracle and this it is said was done by the consent of the King and the Bishops which is as good a Precedent against Temporal Lords as the other is against the Bishops However this is certain that the Bishops then sate in the County-Court at all Iudgments And whereas the Authour of the Letter would avoid this by saying that no Capital Crimes were tried there the contrary is most certainly true For the Laws of King Edward as they were set forth by H. I. c. 31. mention the Capitalia Placita that were there held And the Authour of the MS. Life of S. Cuthbert saith that when one of Earl Godwin's Sons was Earl of Northumberland and one Hamel a very bad man was imprison'd by him his Friends interceded earnestly with him nè capite plecteretur that he should not lose his head By which it appears that Cases Capital were heard and determin'd in those Courts the Bishop and Earl sitting together in Iudgment And here the Point is plainly gain'd because the Authour of the Letter grants that the Bishops sate in all Iudgments in the County-Courts and then puts the matter upon this Issue whether Capital Crimes were there tried or not which I have clearly proved that they were But I shall make another advantage of this against the Authour of the Peerage c. for it plainly overthrows that confident Assertion of his That without doubt there was a Negative Custom that the Prelates should not exercise Iurisdiction in Capital Cases so ancient as to be part of the Fundamental Contract of the Nation It were a thousand pities that such well-sounding words so handsomely put together should signifie nothing I dare not be so positive as he is but am of opinion that if he could be perswaded to produce this Fundamental Contract of the Nation which I perceive he hath lying by him

this as a sufficient Precedent in a Case of great moment about Commitment upon a general Accusation But there is not any Irregularity expressed or intimated in the Bishops appearing and judging as other Lords did and the Judgment was not reversed because of their being there as we have shewed others have been for their being absent V. None of all his Precedents do prove that the Bishops were ever excluded from sitting by any Vote of the House of Lords or Commons That they might voluntarily withdraw we deny not or not be present at giving of Iudgment out of regard to the Canons which is all that is proved by the Precedent of Iohn Hall 1 H. IV. of the Earls of Kent Huntington c. 2 H. IV. of Sir Iohn Oldcastle 5 H. V. and of Sir Iohn Mortimer 2 H. VI. And this we have made appear was done by them out of regard to the Canon-Law the force of which being taken away by the Reformation the Bishops are thereby restored to their just Parlamentary Right Neither can any Disusage be a bar to that Right since the ground of that Disusage was something then supposed to be in force which is now removed by the Reformation And I fear if this kind of arguing be sufficient to overthrow the Bishops Right much stronger of the same kind may be used to overthrow the King's Supremacy in mattters of Religion So great care ought men to have lest under the colour of a mighty zeal against Popery they do overthrow the very Principles of our Reformation VI. There are Precedents upon Record in the Rolls of Parlament which are not mention'd by the Authour of the Letter which do prove that the Bishops were present at the Examination of Treason and Capital Offences in Parlament And that within the time wherein he pretends to give an account of all the Trials recorded in the Rolls Which shews how easily men pass by those things they have no mind to see I begin with 4 Ed. III. and I must doe him that right as to say that he doth not onely mention the Trial of Roger Mortimer but of Sir Simon Bereford and others who were accused and tried in Parlament But pretending that the Roll of that Parlament is so defaced that it cannot be read he runs to that of 28 Ed. III. and so gently passes over all the other Trials which are in the Record and are more plain and express as to this matter Among the Articles against Roger Mortimer Ed. l of March one is that after he knew certainly the death of Edw. II. he made use of Instruments to perswade Edward Earl of Kent that King's Brother that he was still living and so drew him into a design for his Rescue for which he was attainted at Winchester and there suffer'd death for it Among these Instruments the chief was one Mautravers who for that Reason was attainted this Parlament and the words of the Record are Trestouz les Pieres Counts Barons assemblez a cest Parlement a West si ont examine estraitement sur ce sont assentuz accordez que John Mautravers si est culpable de la mort Esmon Count de Kent c. All the Peers Counts and Barons assembled in this present Parlament upon strict examination do assent and agree that John Mautravers is guilty of the death of Edmund Earl of Kent Here we have the strict Examination of a Capital Case in Parlament and all the Peers are said to be present at it It is used as an argument by the Authour of the Letter that in the case of Roger Mortimer the Bishops could not be comprized under the general name of Peers since the Barons are first in rank But here the Peers are mentioned before Counts and Barons and it will be impossible for him to assign any other Peers at that time that were named before them but the Prelats who frequently are so put in the Records of that time as in the same Parlament n. 12. Prelatz Countes Barons n. 13. Et per assent des ditz Prelatz Countes Barons so again n. 14. 15. 17. 24. 25. But the Authour of the Letter saith they cannot pretend to be Peers of the Realm Let him name then other Peers of the Realm at that time who were neither Counts nor Barons and were before them But if we are to judge who are Peers of the Realm by the Records of Parlament I do not question but I shall make it evident that the Bishops were so esteemed and that some persons who pretend to great skill in Records either have not searched so diligently or have not observed so carefully about this matter as they might have done But of this afterwards In the same Parlament Judgment was passed upon Boges de Boyons Iohn Deveril Thomas Gurnay William Ocle but being by way of Attainder and not upon particular examination which is mentioned in the case of Mautravers I pass them over In the Pleas of the Crown held before the King in this Parlament we find another Case which relates to our present debate viz. of Thomas Lord Berkely and Knight who was arraigned for the death of King Ed. II. who came before the King in pleno Parlamento in full Parlament and there pleaded Not guilty and declared he was ready to clear himself as the King's Court should advise Then they proceeded to particular examination of him how he could acquitt himself being Lord of the Castle where the King was murthered he being committed to his Custody and John Matravers He pleaded for himself that he was then sick at Bradley and knew nothing of it They charged him that the Keepers of the Castle were of his own appointing and therefore he was bound to answer for them He answer'd that they with Matravers having receiv'd the King into their custody he was not to be blamed for what they did and for this he put himself upon his Country At the day appointed for his Trial he appears again coram Domino Rege in pleno Parlamento and the Iury returned him Not guilty But because he appointed Gurney and Ocle to keep his Castle of Berkely by whom the King was murthered the King appoints him a day the next Parlament to hear his Sentence and in the mean time he was committed to the custody of Ralph Nevil Steward of the King's House In the next Parlament 5 Edw. III. n. 18. The Prelats Earls and Barons petition the King that he might be discharged of his mainprisors the which was granted and a farther day given him to appear next Parlament But we reade no more of him till the Summons he had 14 Ed. III. as one of the Lords in Parlament The great force of this Precedent lies in understanding what is meant by appearing before the King in full Parlament If under this the Bishops be comprehended then this will be an uncontroulable Precedent of the presence of the Bishops in

death and broke the Oath he had taken to observe them because by them among other things the Bishops were excluded from Iudicature in Cases of Bloud or for the quite contrary reason among others because this Service of the King in his Courts impos'd on them by virtue of their Baronies was look'd upon by him as a violation of the Privileges of the Church and a badge of Ecclesiastical Slavery which by all means he desir'd to cast off And if the latter be the true Reason I leave it to the impartial Reader and even to the Authour of the Letter himself upon second thoughts whether he have not widely mistaken both the Occasion and Meaning of this Law 2. Let us consider the plain Sense of the words according to the true reading of them The Authour of the Letter hath made use of the most imperfect Copy viz. that in Matt. Paris I cannot tell for what reason unless it be that in the last Clause in Iudicio is there left out which is put in in the Copy extant in Gervase and in the Vatican Copy and in several MSS. in all which it runs thus Et sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus usque perveniatur in judicio ad diminutionem membrorum vel ad mortem Now here are two things to be distinguished 1. Something expresly required of the Bishops as to their presence in the King's Courts viz. that they must attend as other Barons and sit together with them and therefore it is expressed twice Et sicut caeteri Barones in the beginning of that Clause and cum Baronibus again after and debent interesse in the middle And can any one soberly think that the meaning of all this is they must not be present in cases of Bloud No the Constitution saith they ought to be present as other Barons and sit with other Barons in the Trials of the King's Courts And yet the Authour of the Letter doth to speak mildly very unfairly represent this Constitution as if it did forbid the Prelats to be at all present in the Iudgments of the King's Courts in Cases of Bloud and that in express words For speaking of the Constitutions of Clarendon he hath this passage And one of these Constitutions was that the Prelats of the Church should not interesse Iudiciis Curie Regis be present at the Iudgments given in the Kings Courts Whereas this Constitution as he himself cites it afterwards runs thus debent interesse Iudiciis Curie Regis quousque c. they ought to be present in the Iudgments of the King's Courts till it come to loss of Members or Life So that this Law expresly says that they ought to be present in the Iudgments of the King's Courts till it come c. And when it comes to loss of Members or Life it doth not say as the Authour of the Letter affirms that they should not be present then nor do the words of the Constitution imply any such thing but only require as I shall evidently make appear their presence so far and when it should come to Sentence leaves them at liberty to withdraw in obedience to the Canons of the Church which they pretended themselves bound in Conscience to observe And this is the true Reason why among the 16 Constitutions of Clarendon whereof 10 were condemned 6 tolerated but none approv'd by Pope Alex. III. this 11. was one of the 6 which escaped with an Hoc toleravit this the Pope was content to tolerate because in the last Clause of it there was regard had to the Canons of the Church Of this misrepresentation of the Constitution under debate though it might have deserved a more severe animadversion I shall say no more because I have no design to provoke the Authour or any body else but onely to convince them 2. Something allowed to the Bishops as peculiar to themselves viz. That when the Court hath proceeded so far in judicio in a particular Trial for before it is Iudiciis in general that Sentence was to be given either as to dismembring or loss of life then they are at liberty but till then they are required As suppose Charles V. had required the Protestant Princes to attend him to Masse as other Princes did onely when the Mass-Bell tinckled they might withdraw would not any reasonable man understand by this that they were obliged to their Attendance till then So it is here the King commands their Attendance till it comes to such a point therefore before it comes thither their presence is plainly required by this Constitution And so in stead of there being a Statute-Law to exclude the Bishops at such Trials there is one to require their presence in judicio in the proceedings of such a Trial till it comes to Sentence All that can be said in this case is that the last Clause is not to be understood of the Sentence but of the Kind or quality of the Cause i. e. they are to be present in the King's Courts till they come to a Cause wherein a man's Life or Members are concerned But that this cannot be the meaning will appear 1. There is a great deal of difference between quousque perveniatur ad judicium mutilationis membrorum vel mortis that might have been understood of a Cause of Bloud and quousque perveniatur in judicio ad mutilationem membrorum vel ad mortem for this supposeth a Trial already begun and the Bishops present so far in it but when it comes to the point of mutilation or death then they have leave to withdraw So that this last Clause must either be understood of Execution which no one can think proper for the King's Courts or for the Sentence given by the Court which is most agreeable 2. The Sense is best understood by the Practice of that Age. For if the meaning of the Constitution had been they must not be present in any Cause of Bloud and the Bishops had all sworn to observe it can we imagine we should find them practising the contrary so soon after And for this I appeal to Petrus Blesensis whose words are so material to this purpose that I shall set them down Principes Sacerdotum Seniores Populi licèt non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis séque ideo immunes à culpa reputant quòd mortis aut truncationis membrorum judícium decernentes à pronuntiatione duntaxat executione poenalis sententiae se absentent Whereby it is evident that the Bishops were present at all Debates and gave Votes in Causes of Bloud but they absented themselves from the Sentence and the Execution of it It is true Pet. Blesensis finds fault with them for this But what is that to the Law or to the practice of that Age I do not question but Pet. Blesensis condemned the observation of the other Constitutions of Clarendon as well as this and in