to the Bishop to be Degraded before the Sentence of Law was executed upon them So it is in all Cases of High Treason for there being no room for Purgation the Judges are not at all obliged to deliver him but out of favour they were wont to do it to the end he might be Degraded and if that Custom were still observed there were no great harm in it yet in Trin. 24. H. 8. in Spilmans Reports we have a Case of one George Nobles a Priest who was Convicted at the Gaol delivery of Newgate of Clipping the Kings Coin and by the Resolution of all the Judges they passed Sentence of Death upon him before any Degradation and he was accordingly Executed in his Canonical Vestments In a Record upon the Parliament Roll 21 E. 1. Rot. 9. it is to be found that one Walter de Berton was Convicted of Counterfeiting the great Seal but the Record saith Qui convictus tradatur Episcopo Sarum qui eum petiit ut Clericum suum sed sub pena c. sub forma qua decet quia videtur Concilio quod in tali casu non admittenda est purgatio Here it appears a person Convicted was delivered to his Ordinary in case where there could be no Purgation and so no benefit of Clergy and therefore it is evident that it was to the end he should be Degraded and upon that the Delivery is with a Subpoena which can be understood no otherwise but that he should re-deliver him VI. As to the last point at what time they ought to be Degraded may be determined partly from what hath been said already for the end of Degradation is only to prevent that Scandal and Irreverence which would otherwise be thrown upon that honourable Profession which all sober and true Christians are very tender of And certainly there cannot regularly be any Deprivation or Degradation before Conviction for no Clerk can be Deprived or Degraded of any Benefice or Dignity except upon full Evidence he be found such and such a person as is uncapable of enjoying it And as a Bishop cannot refuse a Clerk presented except there be special cause for it as criminosus c. so neither can he deprive one that is already Inducted without special cause and in any Court of Record the Cause must be specially pleaded because it is Traversable Co. lib. 5. 2. part fol. 58. Specots Case Suppose then that any Ecclesiastical Person is Arrested for Treason the Ordinary cannot deprive him except he first pass Sentence upon him that he is criminosus but he cannot pass Sentence of Deprivation upon him while he is under the Custody of the Temporal Magistrate and before he is delivered to him for it is the greatest piece of Injustice in the World to Condemn a man before he be heard indeed our Law allows that in case of Outlawry but that is when he may appear and yet after Five solemn Proclamations will not but it is against the Law of Reason and the Laws of all Nations to Condemn a man that is absent when at the same time they know he cannot appear and therefore no Clerk can be deprived till he be delivered by the Temporal Judge and I have already proved that there can be no Delivery till after Conviction so that it doth necessarily follow that there can be no Deprivation till after Conviction and for further confirmation see Ridley ubi supra Bracton lib. 3. fol. 123. Clericus Ordinario traditus si in purgatione defecerit degradari debet Fleâ—â— lib. 6. c. 36. Degradare potest Episcopus criminum convictos Whereby it appears first That before Degradation they must be allowed the benefit of making their Purgation if they can and that they have not except they be present when they are Condemned 2ly That they must be Traditi or Convicti before Deprivation The Case of a Bishop seems parallel to the Case of any other Clerk for the King is Patron of all the Archbishopricks and Bishopricks of England they being all of his and his Progenitors Foundation They must either therefore be Donative or Eligible before King John's time they were Donative per traditionem Annuli Pastoralis baculi But he by his Charter 15. Jan. Anno Regni 17. granted that they should be Eligible and therefore were made to be in the nature of Advowsons presentable when therefore the King did nominate or present such a person to the Bishoprick that person could not be refused without some special cause of refusal but if it did appear that he was either Infamous Irreligious Schismatick Heretick Miscreant Infidel mere laicus c. I conceive he might well be refused or else to what purpose issued forth the Conge d'eslier What signified King John's making them Eligible And therefore there being the same Reason and Law of Degradation or Deprivation after actual Investiture that there is of refusal before I infer there can be no Deprivation of a Bishop without Cause and that Cause cannot be adjudged to be in him before he be heard and have the Justice to defend himself as well as he can allowed him and consequently no Deprivation till after delivery out of the hands of the Secular Power which is in no case till after Conviction These Particulars explained and proved will satisfie all those whose Sentiments are regulated according to the Standard of Reason that there is no strength in any of those Objections which some ignorant people do so much insist upon Having thus by the Rules of Law the Authority of the most Renowned Authors and Variety of Precedents proved That a Bishop is no Peer in respect to a Temporal Lord within the intent and meaning of the 29th of Magna Charta It doth naturally follow that he hath no Right to claim any Jurisdiction or Right of Judicature upon the Life and Death of a Temporal Lord for otherwise he might suffer Death or Banishment or Imprisonment by the Judgment of those who are not his Peers contrary to the Fundamental Laws of England and the Liberties of every Subject And thus I conclude the first Point The second Point that I offered to demonstrate is That the Bishops Votings in Capital Cases is contrary to the practice of all Ages untill this day In the first place Let us examine how it was before the Reign of Henry the Second It must not be expected that this should be proved from the Records and Journals upon the Parliament Rolls for their Antiquity will not reach so high as to do any considerable Service in this matter but I shall give the same proof for this that any man can give for Tryals by Juries before Magna Charta that is an Act of Parliament making Recognition of several ancient Customs practised beyond the Memory of those that then lived and that I hope will be sufficient Evidence The Statute that I mean was made at that Great Parliament which was held at Clarendon the 10 11 of H. 2. Anno
these Canons was here allowed and observed yet that observation was not out of respect to the Canons as such but as they did command such things as were judged rational and it had been the same case if the Custom had begun in England in imitation of other Countries as it is upon the account of the Canons For though the Bishops of Rome claiming an universal and absolute Power of Legislation in ordine ad Spiritualia over all Christendom took advantage of every Opportunity that offered it self for the obtaining of this Right which they pretended was Jure divino and in Right of their Vicarship due yet knowing that Princes would not so easily part with the Jewels of their Crowns in suffering their People to be in Subjection to the Laws and Constitutions of any foreign Prince in things which either directly or indirectly did affect their Temporal Possessions they thought it necessary to manage their Business with all imaginable artifice and cunning by bringing the Laity to the humour by degrees and accordingly did at first collect certain Rules and Directions for the Government of the Clergy onely which were called Decreta first published in England during King Stephens Reign as some do think though others reckon it was long before but never throughly observed in England Kellaway 7 H. 8. 184. But having got a small incouragement by the reception of these Rules in many Countries they thought they might venture a little further and then would have the Laity as well as the Clergy to give Obedience to their Edicts but that must be first in some inconsiderable indifferent things as Abstinence from Meats c. and did not style them with the Lordly Name of Leges but with a great deal of Meekness and Humility and the Complement of Servus servorum Dei did offer to their Consideration certain Rogationes whence the Abstinence-week before Whitesunday was called Rogation-week as Mâ—â—silius Pat. lib. Defensor pacis 2 part 23. observes Christians having out of Piety and Honour for his Holiness yielded Obedience to these same Rogations they made bold to proceed one step further that is They together with their Councils made certain Orders or Decretals about Temporal Matters but in ordine ad Spiritualia too when these came first into England See Matthew Paris 403. To these Decretals Obedience was required from Prince and People and all Contumacious and Obstinate Delinquents were most severely Anathematized The Decretals were such as these That any Clergy-man that was grieved by a Judgment or Sentence in the Court-Christian or any other Court Ecclesiastical within this Realm might be relieved by an Appeal from Rome That no Lay-man should have the Disposition of any Ecclesiastical Preferment nor the Presentation to a Church That he shall not Marry within such and such Degrees That Children born before Espousals be legitimate That the Clergy should be absolutely exempted from Secular Power c. Yet these Decretals met with very little respect in England France or any other part of Christendom except Peter's Patrimony in Demesne the Popes own Territories called by the Canonists Patria Obedientiae For in England to wave any discourse of the Laws and Customs of other Countries in stead of being received and observed according to Expectation they were stoutly opposed by the Judges and Magistrates as derogating from the Soveraignty and Prerogative of the King and tending to the detriment of the Rights and Properties of his Subjects And in Confirmation of this several Acts of Parliament were made to curb the Insolence of those usurping Popes and to punish the audacious Enterprises of those factious and disloyal Subjects who did presume to attempt to controll the Judgments that were given in the Kings Courts by Process from the Pope or to procure Provisions and Reservations of Benefices by Bulls or Breve's from Rome See 27 E. 3. c. 1. 48 E. 3. c. 1. 25 E. 3. c. 22. 16 R. 2. c. 5. whereby such Suers of Appeals and Procurers of Bulls and Process from Rome for the purposes aforesaid are made liable to the Penalties of a Praemunire whereby the Body of the Offendor is to be Imprisoned during the Kings Pleasure his Goods forfeited and his Lands seised into the Kings Hands so long as the Offendor liveth How far the Benefit of Clergy was allowed I have already shewn And as for the Matter of Legitimation you may see the Statute of Merton c. 9. Et rogaverunt omnes Episcopi Magnates ut consentirent quod nati ante matrimonium essent legitimi sicut illi qui nati sunt post matrimonium quantum ad successionem haereditariam quia Ecclesia tales habet pro legitimis Et omnes Comites Barones responderunt quod nolunt Angliae leges mutare quae hucusque usitatae approbatae sunt Vide 18 E. 4. 30. a. All which Statutes are Declarative of the Common Law and therefore do prove that the People of England were never obliged to allow of any Decrees of Councils or Canons of the Church further than they judged it fit and convenient so to do which Arbitrary Reception together with a Transmission to Posterity did of it self make it one of the Laws of England which continues in force though the Councils or Convocations should afterward repeal their Decrees till they be altered by Act of Parliament Co. 5. Cawdries Case 9. Davies Reports 70 71. the case of Commendam And the Preamble to the Statute of Dispensations and Faculties made 25 Hen. 8. c. 21. which runs in this manner Whereas this his Majesties Realm recognising no Superiour under God but onely his Majesty hath been and is free from subjection to any mans Laws but onely such as have been devised made and ordained within this Realm for the wealth of the same or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty by their own consent to be used among them and have bound themselves by long Vse and Custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as to the customed and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Customs and none otherwise And so it is in Co. Rep. 5. â— part fol. 31. All Canons Constitutions Ordinances Synods Provincials c. are inforce that have been by general Consent and Custom within the Realm allowed and so may be general consent be corrected enlarged explained or abrogated Seeing therefore it is evident from what hath been already said that those Canons and Constitutions of the Church concerning Judicature in Matters of Blood have not onely been practised and allowed in this Nation successively for several Ages together beyond all time of Memory but also ratified and confirmed by Act of Parliament it follows that they have the force of Laws of England and are not alterable without an
A DISCOURSE OF THE Peerage Jurisdiction OF THE LORDS SPIRITUAL IN PARLIAMENT Proving from the Fundamental Laws of the Land the Testimony of the most Renowned Authors and the Practice of all Ages THAT They have no right in claiming any Jurisdiction IN Capital Matters Give unto Caesar the things which are Caesars and unto God the things which are Gods Matth. 22. ver 21. LONDON Printed in the Year MDCLXXIX TO THE READER IN this licentious Age and especially at this Juncture of Time when every impertinent Scribler and seditious Pamphleter hath free access to the Press it may be thought neither Prudent nor Honourable for a Man of Sober and Serious Thoughts to come into the Field and list himself among the Unlearned Multitude of Writers that are in these days That Popular Applause which is generally expected from this Method is a thing which I more ambitious of being publickly useful then publickly known never designed to purchase at that rate and therefore is not the Motive that induced me to this Undertaking I would have been glad if any other of greater Learning and Parts had done the World so much Favour as to have made a Perfect Disquisition into this Matter and to have discussed the Point according to the Merits of the Cause for then I doubt not but the Reasonableness of the House of Commons Dissention from the House of Lords would have appeared to all Impartial and Dis-interested Minds As for my own part I confess that partly through the Consciousness of my own Inability and partly through my Unwillingness to be concerned in a Thing of this Weight I should never have engaged my self in it if I judged it not necessary to vindicate those Persons that are abused with several undecent and unjust Calumnies in a late Book intituled The Honours of the Lords Spiritual asserted c. together with its Preface This together with a Desire of Informing the World in a Thing which is much talked of but little understood prevailed with me to omit nothing which might be Serviceable to my Country and Conducive to the Unity and Peace of this divided Kingdom especially when it is to be feared there are too many such as the Author of the above-mentioned Book who under the specious pretence of Loyalty and Affection to the Church do what in them lies to make the Gap wider and Distemper more Incurable That I may not seem to injure him you may consider the Design of his Discourse The Persons against whom he directs his Preface are those who withstood the Pretensions of the Bishops to Jurisdiction in Matters of Blood those are no other than that Honourable Assembly those Champions of the Protestant Religion and the Liberties of the People of England the House of Commons in the last Parliament To Revile the Representatives of the Commons of England and in them Virtually the Persons themselves that are Represented with such Scandalous Aspersions and Opprobrious Reflections Being Favourers of the Rebellious Commotions in Scotland Ill-natured Censorious Covetous Self-seekers and which is worse than all this as being of the same Principles with those that threw down Eplscopacy took up Arms against their Native Soveraign Plundred and Devested His Majesties most faithful Subjects of their Goods Estates and Lands and embrewed their Violent Wicked and Rebellious Hands in his most Sacred Blood c. I say such Scurrilcus and Satyrical Language thrown upon the very Face of Authority doth ill-become the Religion of a Christian and the Honesty of a true English-man It is a known Maxime among Men of bonest and sober Principles and Lovers of the English Nation That Nothing can make us Happy or Miserable but an Union or Division amongst our Selves If there be a good Understanding betwixt Prince and People nothing can make England miserable but if there be Jealousies and Divisions nothing can make it Happy Therefore whoever they are that by reciprocal Accusations and raising of mutual Jealousies of the One's good Will and Affection and the Others Loyalty especially in things that are false in themselves deserve to be lookt upon as inveterate Enemies to the Peace and Happiness of this Kingdom And yet you may observe that whosoever can give the Court the most Satyrical Language expects to be reckoned the most Zealous Patriot c. And those forsooth who can with the greatest Scurrility and the most reproachful Epithets asperse the House of Commons would be thought the most Loyal Subjects But if Integrity and Religion it self be not quite banished from the Conversation of Mortals both these sorts of People will fail of their Expectation I have read of two great Favourites of Alexander the Great Hephestion and Craterus one of them saith my Author Alexandrum dilexit but the other dilexit Regem It may be a Question which of these was the better Subject I shall not undertake to determine it but shall leave it with an Observation of that Noble and truly Loyal Courtier Sir Thomas Coventry Lord Keeper of the Great Seal to His late Majesty in a Case of the like nature Some said he to the House of Lords would have the Kings Prerogative rather Tall than Great others e contra some do love the King rather than Charles Stuart others e contra but what his Sentiments were of those Matters you must gather from what he said a little after None can be truly Loyal but he that is a good Patriot and none can be a good Patriot but he that is truly Loyal The Interest of the King and People are so interwoven and linked together that none can be truly said to be a Lover of One but he must be a Lover of Both. But to return to our Author I Protest I have perused the whole Volume with the greatest Impartiality that can be and except his Sawciness and Ill-nature against the House of Commons and Gentlemen of the Long Robe I find nothing in the whole Book that deserves any Animadversion It is evident from his Method of Arguing and the Medium's he maketh use of to prove his Assertion that he is altogether a Stranger to the very State of the Controversie and that notwithstanding his Confidence in Asserting his Book discovers more Ignorance than his Preface doth Petulancy And it is no wonder for Ignorance and Impudence are generally Concomitant And this is all that I think fit to say in Answer to him The Reason why I subjoyn the following Discourse is because although I cannot perswade my self that he deserves a Refutation yet that Truth which he labours to darken with an Impertinent Harangue deserves to be cleared and demonstrated If any shall go about to Attacque this Discourse with Drollery or Satyrical Invectives I decleare before-hand I do not reckon my self obliged to Reply I do not think it a Reputation for Men of Sense to Combate at these Weapons But if Occasion be I shall send his Answer to the Dung-Carts or Oyster-Boats from whence I doubt not but he
the House of Commons because Ipse saith the Record quam plures Antecessores sui Banneretri fuerint Nos animadvertentes quod hujusmodi Banneretti ante haec tempora in Milites Comitatus eligi minime consueverunt c. If this Camoys had been reputed a Baron the Country would never have chose him and if he had been really a Baron the King would never have discharged him because he was a Banneret but because he was a Baron Another Reason for this may be gathered out of the Patent of John Beauchamp of Holt the words of which are these Sciatis quod pro bonis gratuitis servitiis quae dilectus fidelis Miles noster Johannes de Beauchamp de Holt seneschallus hospitii nostri nobis impendit ac loco per ipsum tempore corenationis nostrae hucusque impensis quempro Nobis tenere poterit in futurum in nostris consiliis parliamentis nec non c. ipsum Johannem in unum Parium Baronum Regni nostri Angliae praesecimus volentes quod idem Johannes haeredes masculi de corpore suo exeuntes statum Baronis obtineant ac Domini de Beauchamp Barones de Kiderminster nuncupentur in cujus c. T. Rege apud Wodestock 10. Oct. It is probable that he was created Baron before he received this Patent because the Patent wants the words of Creation Ipsum Johannem praefecimus but it is not said per praesentes praeficimus and therefore the Patent running in the preterperfect tense could have no other operation but only to Record a thing which was past but he was not Created by Writ before the Patent because it is dated Oct. 10. and he received no Writ till the Decem. following Wherefore seeing that undoubtedly he was a Baron before he received either Patent or Writ for the Patent which is Matter of Record saith Ipsum praefecimus it follows that before this time a Baron hath been created without a Writ which could be no otherwise then by the performance of a Ceremony as Investiture of Robes c. and this Patent was only an entring of the Creation being a transitory thing upon Record 2. Admitting that Barons have been created by Writs yet Prelates are not created Barons by their Writs because there is a difference between a Writ sent to a person that hath no right ex debito justitiae to demand it and a Writ sent to one that was a Lord of Parliament before and ought de jure to have been summoned The former together with the persons obedience may perhaps make him a Baron but the latter I conceive doth not make any addition to or enlargement of their precedent Honour but only summons them to exercise their Jurisdiction and put that power which they have in execution and that is only reducere potentiam in actum otherwise every Lord would be newly created at every Parliament every one to whom the Honour is entailed would have a Fee-simple for a Writ will make a man a Peer in Fee without the word Heirs and every Lord Bishop L. Keeper L. Treasurer L. Privy Seal would be as such Inheritable Peers or at least for life which are both false for after Regradation their Peerage is ended Wherefore it being certain that all the Lords both Spiritual and Temporal ought to be summoned to every Parliament the Summons must of necessity have respect to that Right which doth entitle them to demand them The Inference which I draw from all this is That the Lords Spiritual having no Peerage upon the account of their Writs cannot claim any at all except it be Jure Episcopatus that is ratione terrarum quas tenent per Baroniam So that now I come to the next point viz. Whether such whose Peerage is ratione tenure and dies either with the determination of his Estate in the Land or the dissolution of the Tenure be a competent Judge of one whose blood is ennobled in case of life and death within the meaning and intent of Magna Charta which enacts that every one shall be tryed per legale judicium parium suorum The Negative I hope effectually to prove from these following Reasons 1. Every ones Peerage ought to be measured and proportioned according to the limits and extent of that ratione cujus he is a Peer he that is a Peer not only upon the account of his Possessions but also upon the account of the quality and nobility of his Blood hath a right of Judicature and Legislation both in those things that regulate Mens Estates and Properties and also in those things that concern Life and Death buthe that hath no Peerage but what is praedial or feudal and not personal a Peerage accruing by vertue of his Tenure and Possessions and not the Nobility of his Blood can have no Jurisdiction but such as is agreeable to the nature of his Peerage that is such as shall extend to matters of Property and Possession but not to matters of Blood for as to this he is no more a Peer i. e. Par to a Temporal Lord than any private Gentleman and therefore hath no more Jurisdiction for it is Parity that makes a man capable of Jurisdiction within the Statute This is confirmed by the Authority of that Learned Antiquary Mr. John Selden in the first Edition of his Titles of Honour a Volume in Quorto 347 which I the rather cite because it was Printed in King James his time and therefore not liable to exception his words are these A Bishop shall not be tried by Peers in Capital Crimes because these are personal and his being a Baron is Ratione Tenurae and not of personal Nobility So it is in Br. Abr. Tit. Enquest 99. Although in an Action for Land c. a Bishop shall have Knights in his Jury as other Lords yet when he is tryed for his life it 's said he shall not have Knights in his Jury By Which Book it is evident that a Bishop is a Peer not in respect of his Person but of his Possessions 2. The whole Statute of Magna Charta is a Grant or rather a Confirmation of the Priviledges and Liberties of the Subjects of England and it is to be supposed that the enjoyment of every of those Priviledges that are there granted is a great advantage and happiness to the Subject but wherein the advantage of a mans being tryed per Pares doth lie is a Point worth the Consideration I conceive it to be this When those are to be Judges who may be under the same Circumstances with the Prisoner and when by their Judgment the Prisoner can lose nothing but what his Judges if they be under his Circumstances may lose also he may expect that they will not give Judgment but upon Mature Deliberation and that the Consideration that it may be their own case will deter them from giving a rash judgment against a man that is innocent or not apparently guilty Whereas if a mans Life
and Fortune his Honour the Inheritable Quality of his Blood his Name and Reputation and whatsoever may be comfortable in this World were disposable at the will and pleasure of inferiour persons who have not every of these themselves and consequently know not the true value and worth of them nor the importance of the matter that is judicially before them it may be presumed that they will not be so careful and concerned in the Cause and it is to be feared they will be too ready to give an inconsiderate and rash judgment This I take to be the onely benefit of a mans being tryed by his Peers which is very significantly expressed in the Statute De Proditoribus 25 Ed. 3. cap. 2. in these words Et de ceo soit provablement attaint deâ—overt fait per gents de lour condition c. But to apply this to our present design let us consider what a Temporal Lord loseth by an Attainder In the first place he loseth his Life his Estate real and personal If that were all a Gentleman might be his Peer but there is something more he forefeits his Nobility which is irrecoverable being quite extinguished the inheritable quality of his Blood is thereby corrupted the House of Lords themselves suffer with him for they lose a Member for ever But a Bishop forfeits nothing but what he hath in his Natural Capacity and if he be considered as such he is no Peer if he be considered as a Bishop i. e. As holding Lands of such a Value in the Right of his Bishoprick of the King he is a Peer but his Peerage is in no danger through his Attainder the succession which he is supposed to be as tender of as a Natural person is of his Posterity is not thereby tainted for his Peerage together with all his Posterity and Land Ratione cujus he is a Peer go to the Successor without any restauration see Stamford 187. 6. and so the House of Lords lose never a Member How then can Bishops having no Nobility which they can lose and consequently not being Gents de lour condition be fit Judges upon the Life and Death of Noble men And upon what grounds can more Justice be expected from such than from honest substantial Freeholders If this do not please let any of the most violent Maintainers of this pretended Temporally-spiritual Jurisdiction give a rational account wherein the advantage of a mans being tryed by his Peers doth consist and let him make appear that the Lords Temporal are any Sharers of this Priviledge when they are tryed by Bishops and I am satisfied but till then he must give me leave to conclude that this Jurisdiction which is pretended to is an abuse of the Satute of Magna Charta and therefore a violence offered to the Liberties of the Subjects of England 3. The Bishops are not Peers in that sense the Question is above stated in because they shall not themselves be tryed by Peers in Parliament If their Parity be not sufficient to Entitle them to demand a Tryal by Temporal Lords then they cannot be Peers so as to be Judges upon the Tryal of Temporal Lords but if they be really Peers to all intents and purposes then we charge all our Ancestors with a gross Violation of the Subjects Priviledges granted by Magna Charta for every Bishop is Liber homo a Subject of this Realm and ought of Right to have the benefit of a Subjects Priviledge of being tryed by his Peers But seeing by the constant practise in former Ages even in those times when the Tyranny of ambitious Prelates and the Insolence of Popish Usurpers did swell to so great a height when the poor credulous affrightned Laity were glad for fear of being delivered Prisoners In manus custodiam Diaboli and secluded from the Society and Conversation of Mankind to truckle at the Feet of the domineering Clergy and condescend to almost all their Demands however unreasonable or unjust they were insomuch that Innovations in favour of them were easily allowed and new acquisitions of Honour and Power easily obtained I say if in those times the Honour of being Tryed by Peers hath been denied to them it may well be inferred that they had no Right for if it were a thing which they had any colour of pretension to is it reasonable to suppose that they quietly without reluctancy would resign it when we have Records and Histories full of their Clamours for breach of Magna Charta of their Contentions with their Liege Lord and Sovereign in things that were against the known and established Laws of the Kingdom tending to the diminution of the Kings Prerogative the hindring of the Execution of Justice upon Malefactors and the dispossessing and injurious Expulsion of the Subject from his just and hereditary Right where they had no reason in the world for it onely that they were inflamed with indignation that the Native Courage and inbred Generosity of Mind that was in our Ancestors not induring themselves to be trod upon nor their Necks to be laid under a Yoke of Tyranny and Usurpation did obstruct the unsufferable growth of that Power and Dominion which their own Pride and Ambition together with the example and success of their Brethren in other Countries had spurr'd them on to These things are well enough known to all people whose Eyes are opened and therefore I shall not insist upon them but shall prove that Bishops ought not to be tryed by Temporal Lords and for that I have the Suffrage of all Learned men My Lord Coke in the Third Institutes Fol. 30. is express in the Point Spiritual Lords shall not be tryed by Peers Stamford in his Pleas of the Crown Lib. 3. cap. 1. De Trial per les Peers saith That the Statute of Magna Charta and 20 H. 6. cap. 9. Which gives Dutchesses Countesses and Baronnesses the same Priviledge that their Husbands have Nad este mise in 〈◊〉 dextender a un Evesque on Abbe coment que ils injoient le nosme des Seignior de Parlement car ils nont cel nosme d' Evesque ou Abbe ratione Nobilitatis sed ratione 〈◊〉 ne ont lieu in Parlement in respect de lour Nobilitie ejus in respect de lour possession Sc. l'auncient Baronies annexes a lour Dignities accordant a ceo il â—ad divers Presidents dont l'un fuit in temps le Roy H. 8. c. Of the same Opinion and for the same Reason is Selden ubi supra We find the same agreed by Justice Dodderidge pag. 59 112. and Elsynge in his ancient Method of holding Parliaments pag. 41. And the Book which I above cited Br. Tit. Enquest 99. 27 H. 8. in the Bishop of Rochester's Case it is resolved That when a Bishop is to be tryed for Treason it is not necessary that he have Knights in his Jury although he shall have that Priviledge in a Tryal for his Land which proves that his Peerage is more for the Priviledge
Kingdom hath and in all times ever had by the Common Law Jurisdiction over every Subject in the same Degree of Nobility that was resident within the Verge and local extent of his Jurisdiction This Power and Authority of his being Universal he was never bound to take notice of the Priviledges and Immunities of any particular Orders and Societies of Men if they themselves would not take advantage of it so that this same Previlegium Clericale was no absolute exemption from Secular Authority so as to make all Proceedings before a Secular Judge to be Coram non Judice but the end and design of it was that when any Clergy-man was Arraigned as a Malefactor before a Secular Judge then in some Cases before he suffered the punishment that was due by Law he was delivered to his Ordinary to make his Purgation if he could then his Ordinary discharged him but if he could not then he was Degraded and sent back to the Temporal Magistrate to suffer punishment according to his Demerits That the Proceedings of a Secular Judge upon one within Holy Orders are not Coram non Judice might be proved both out of Civilians and Canonists but that would not be much to the purpose if I should and therefore I shall forbear only shall take notice of a Passage in Dr. Ridley's View of the Civil and Ecclesiastical Law pag. 86. If a Clerk says he be first Arrested by his Spiritual Judge and found guilty he shall be Degraded and delivered over to the Temporal power but if he be first Arrested by the Secular Magistrate and Tryed and found Guilty he shall be delivered to the Bishop to be deprived and then delivered back to punishment The same in effect he saith p. 158. whereby he doth allow that according to the Ecclesiastical Law the Temporal Judges were allowed to have Jurisdiction over men within Holy Orders But let him or any of the Civilians or Canonists say what they will it 's no great matter we must consider what the Law of England saith in this case for the Canons never were in force in England any further than they were voluntarily received and so transmitted as a common Usage or Custom to Posterity by Tradition and so became part of the Common Law or else were confirmed by Act of Parliament and so became part of our Statute-Law of which more hereafter And that by the Law of England the Proceedings against Ecclesiastical Persons before a Secular Judge are not coram non Judice I prove by these Cases An Appeal of Robbery was brought against a Monk who was tryed and acquitted upon this the Abbot and the Monk brought a Writ of Conspiracy against divers who procured and abetted the said Appeal whereupon the Defendants appear and go to Tryal but the Abbot and Monk get a Verdict and Judgment to recover 1000 Marks damages Co. 2. Inst. 638. But it is certain that a Writ of Conspiracy cannot lye except the Plaintiff had been Legitimo modo acquietatus and that he could not be if the whole Proceedings upon the Appeal had been Coram non Judice So if at the Common Law a Clergy-man had been Indicted of Felony and had confessed the Fact in Court he could not have had the benefit of his Clergy because the end of granting it was that he might make his Purgation before the Spiritual Judge but that he could not after he had confessed the Fact in Court Co. ubi supra Stamford 124. And yet no Confession coram non Judice is conclusive All which doth evidently prove That the allowance of those Canons which gave the first birth to this Immunity did not trench to the prejudice of Temporal Judges so as to bar them of that Jurisdiction which they have over every Subject by the Common Law And the Nature of it will further appear if we take into consideration the Third Particular which is this III. In what Cases the benefit of Clergy was allowable and in what not This Immunity was allowed in England long before any Statute was made for its confirmation it was allowed onely in such cases as were judged reasonable but never in full satisfaction to the demands of the Clergy Kellaway 7 H. 8. 181. b. But the Clergy as their Custom then was were willing to improve any Concession to their best advantage according to the common Proverb When they had got an Inch they would take an Ell. And to that end did with a great deal of fervency and zeal no doubt insist upon their Priviledge as an absolute Exemption from all Temporal Jurisdiction to all intents and purposes extending to all Crimes and Offences whatsoever and thundring out Excommunications and such like Maledictions forced some people for quietness sake to comply with them as appears by Bracton lib. fol. 123. to the great incouragement of all sorts of Villanies and Outrages and consequently to the grievous oppression and vexation of the Subject for this assurance or at least hopes of Impunity let loose the Reigns of Rapine and Violence and was the most effectual course that could be taken for the dissolution of any Government and the utter desolation and ruine of any Country whatsoever To give a check to this exorbitant Licentiousness strict care is taken by the Judges and Magistrates that Justice be duly executed and Offenders legally punished and therefore the Privilegium Clericale not to be allowed in any Case otherwise then according to the ancient Custom Hence were the seeds of Envy and of a very lasting Discord between Church and State sown nothing but Animosities Rancour Revenge and Hatred is the Subject of the History of those times especially the time of Thomas Beckett Bulls Citations Excommunications on the one side and seising of Temporalities Imprisonment and Banishment on the other side were the Complements that people were entertained with in those days These Differences grew to such a height that although through a formal Reconciliation both Parties seemed to be pacified yet the Root of the Matter remaining untouched the Fewds break forth and the Matter must be decided by Act of Parliament And so I shall by the construction of these old Statutes and other Precedents give a direct Answer to the Question 1. It is undeniable that Privilegium Clericale was never allowed to any that were Guilty of Crimen laesae Majestatis The first Statute that we find among the Printed Statutes which doth directly speak of it is Westm. 1. c. 2. which is declarative of the Common Law by the express words of the Statute Solonque le Custom avant ces heures use but faith not one word of Treason only allows the Priviledge in Cases of Felony Si Clearke soit prise pur rette de Felony Wherefore this Statute being in the Affirmative determines nothing concerning Treason but leaves that as it was before at the Common Law Not long after the Clergy renewed their Complaints and among the rest complain that Secular Judges have passed Judgment
Act of Parliament as the twelve Tables of Athens did really become and were properly called Jus civile Romanum after they were voluntarily received and allowed at Rome And as the same may be instanced in some parallel Cases among our selves as the Priviledge of Clergy Pluralities and Dispensations c. which were parts of the Common Law of England although they became such no otherwise then by the Nations reception and observation of the Canons of the Church Lastly I am not apt to believe that this Custom was taken up upon the account of the Canons of the Church but rather because it was a thing agreeable to the Constitution of the Government the Reason and Rules of the Common Law and the Nature of their Jurisdiction and Honour being meerly praedial or feudal and that because upon a strict search it will be found of ancienter date than any of the Canons of the Church for the first Canon that I find in Linwood is that which was made An. 1222. and is among the rest of the Constitutions of Archbishop Stephen in these words Presenti decreto statuimus ne Clerici beneficiati aut in Sacru Ordinibus constituti villarum Procuratores admittantur videlicet ut sint Seneschalli aut Ballive talium administrationum occasione quarum laicis in reddendis ratiociniis obligentur nec Jurisdictiones exerceant seculares praesertim illas quibus Judicium Sanguinis est annexum Authoritate quoque Concilii districtius inhibemus ne quis Clericus beneficiatus vel in Sacris Ordinibus constitutus litteras pro poena Sanguinis infligenda scribere vel dictare presumat vel ubi Judicium Sanguinis exercetur intersit Linwood 146. Which Constitution was made above fifty years after the Parliament at Clarendon which confirms this Custom and calls it one of the Avitae consuetudines These Particulars well considered will give a very satisfactory Answer to their Objection and therefore I need not say any more But it is further objected That the Clergy in their Protestation which they made 11 R. 2. do declare Quod ipsos personaliter interesse pertinet and so they did in some Protestations which were made afterward and after all they do insert this Clause Non volumus nec intendimus quod processus habiti habendi c. futuris temporibus quomodolibet impugnentur infirmentur seu renoventur From this they argue otherwise all the Proceedings of the House of Lords in the absence of the Clergy are invalid and reversable or else to what purpose is this Clause And the Lords Temporal giving leave that this Protestation should be entred upon Record did implicitely assent to what the Clergy alledged therein To this I answer That a Protestation in its self is no argument of any Right neither doth the permission and allowance of any Protestation yield that right which the Protester is desirous to save but only saves the right which the party had before if he had any and if none then the making that Salvo could give him none for the outmost that a Protestation can do is to anticipate a Conclusion or Estoppel i. e. to provide that the doing of any such Act as is Contained in the Protestation shall not be constructed to the Prejudice of the Party so as to Barr or Conclude him from Clayming afterward that which in rei veritate is his right So that this Protestation of the Clergy is no Argument of their Right to be present and to Vote in Capital Matters and that chiefly for these two Reasons 1. By the Roll we find that the Clergy did not only depart when Capital Cases were to be debated but also in all other Cases that were done that Session because there were many Matters of Treason to be handled therefore they absented from the Parliament altogether so it is in Sir Rob. Cotton's Abr. 322. So that this Protestation may very well be supposed to have been made with respect to those other Matters which were not Capital where they had an undoubted Right to be present and therefore such a Protestation might be very Proper and not to have any respect to those Cases which were Capital especially seeing they did alwaies in such Cases Absent themselves in former times without making any Protestation 2. Admitting that the Clergy did intend that Capital Cases as well as others which were not Capital should be within the Salvo of their Protestation yet nothing can be inferred from thence but that they themselves said they had Right to be present and what then Must it of necessity follow that they had Right because they Claimed it If that Consequence had been allowed to be good I am afraid the Crown of England had been Incorporated long ago into the Triple Crown As for that Clause of the Protestation for the Validity of all such Transactions as should happen to pass in their Absence I must confess I do not think it was to very much purpose 1. Because that without any Proviso the Proceedings of the House of Lords in their Absence had certainly been valid enough as I shall prove anon 2. If they had not been good this Clause could not have helped them because wherever the Assent and agreement of any person or persons is Requisite for the perfection of a thing it is necessary that that thing to which the Assent is Requisite be in esse at the time of the Assent made for otherwise it is an Assent to nothing and that is as much as no Assent at all If therefore the Assent of the Prelates be indispensably necessary to the perfection of every Judgment and Bill that passeth the House of Lords Such a precedent Assent to all that shall Pass during their Absence in General which is an Assent to they do not know what themselves will not amount to a sufficient agreement The Reason is because the Law of England doth presume that in all private Transactions between Party and Party and much more in things of Publick concernment and of so great moment as Making of Laws and Giving Judgment of Death uppon Peers of the Realm whatsoever a Man doth is upon Rational Inducements and that the Conveniency and Advantage which he expects will Accrue thereby is the Motive that prevails with him to agreeâ—â—… the thing and therefore all such Agreements as are made at aventure when the party agreeing knows not what it is he agreed to as when a man agreeth to a thing before it be in esse are rejected in Law as Irrational and 〈◊〉 So if a Tenant comes and say to his Lord I agree to all Grants which you shall hereafter make of the Manor or any part of it Surely this without a Subsequent Agreement to every particular Grant will not 〈…〉 Attornement And at the Common Law Licences for Alienation granted to Tenants were alwaies special and a general Licence to 〈…〉 which the Tenant should afterward make was void And if such an agreement of the Lords Spiritual as is before