AN Authentical Account OF THE FORMALITIES AND Judicial Proceedings Upon ARRAIGNING at WESTMINSTER A Peer of the Realm Before A Lord High-Steward Funesta Securis Regni Securitas London Printed for Y. H. THE FORMALITIES AND Judicial Proceedings Upon Arraigning a Peer for Treason c. AS the Royal Power and Sovereignty of the King of England is a repleat compacted Body and impartible even so the Attributes thereof are as Jurists speak so indivisible in themselves so naturally and intrinsecally inherent in the Crown that they cannot be made away or in such manner communicated to the Subject as to divest himself of them to the lessening Sovereign Majesty yet by Trust and Delegate Power the Executive Part may be transferred to others to ease him of a trouble some Burthen Now among those several Ministers or Officers of Law that are by His Most Excellent Majesty substituted to ease him of Labour but not to deprive him of Power the Lord High-Steward of England is one of the first Magnitude the Nature of whose Office will the better be understood by insisting upon in my way to a more direct Application to the substance of the Title and Design in hand the Heads or Particulars following viz 1. The Etymology of the words Steward and Seneschallns 2. His Lordships Stile and the Antiquity of his Office 3. How this great Office was formerly holden and how at this time 4. The Extent of his Jurisdiction and Power and the Rules he ought to judge by For the derivation of the words Steward and Seneschallus Cok. Litt. 61. a. some say the first is derived of Stewe i. e. a Place and Ward which signifieth a Keeper Warden or Governour Others say that it comes from Steda a Saxou word which signifies a place also Lib. 9. Le Counter de Salop 's 48. b. and Ward as it were the Keeper or Governour of that place t is a word diversly used in this Kingdom In the first acception 't is taken for the Lord High-Steward out of which Magistracy lower Officers have their rise Senechal de l' Hostel de Roy the Steward of the Kings most Honourable Houshold Anno 24. H. 8. c. 13. whose Title was changed to that of Great Master Plomd Com. f. 152 Anno 32 H. 8. c. 39. but this Stat. was repealed by that of 1 Mar. 2 Parl. c. 4. and the Office of the Lord Steward revived There is also a Steward of the Marshalsea Anno 33 H. 8. c. 12. and likewise a Steward of a Mannor whom Fleta fully describes Lib. 2. c. 71. To be short this Word is of so great diversity that there is no Corporation of any Account or House of any Honour through the Realm but it shall have an Officer belonging to it of this Name But I proceed to the Word Seneschallus Minshaeus Seneschal is a French Word the Italians call it Seniscalco dict a Schalk i. e. Servus aut Officialis gesind i. e. familia but here 't is taken for the High-Steward of England Some derive it of Scin a House or Place and Schale an Officer others say Sen is an ancient word for Justice so that most naturally it signifies Officiarius Justitia and this agreeth well with his Authority and Duty to proceed secundum Leges consuâ—tudinis Angliae In the next place I am to consider his Lordships Stile which in Latin is Seneschallus Angliae and his Court is Intituled Placita Coronae coram Seneschallo Angliae and when he sitteth by force of his Office he sitteth under a Cloth of Estate and such as direct themselves to him say Co. 4. Inst 59. Please your Grace my Lod High-Steward of England As to the Antiquity of the Office 't is very ancient and was before the Conquest For Sir Ed. Coke tells us that he himself hath read an Authentical Manuscript intituled Authoritas Seneschalli Anglia which putting an Example of his Authority saith Sicut accidit Godwino Comiti Kanciae tempore Regis Edwardi Antecessoris Willielmi Ducis Normandiae pro hujusmodi male gestis consiliis suis per Seneschallum Angliae adjudicatus fortis fecit Comitivam suam In the time of William the Conquerour William Fitz-Eustace was Steward of England Next come we to consider how this Great Office was formerly holden and how at this time This Magistracy was formerly of Inheritance and belonged to the Earldome of Leicester as appeareth by a Record produced by Sir Ed. Coke Seneschalcia Angliae pertinet ad Comitivam de Leicester pertinuit ab antiquo Other Records testifie that it belong'd to the Barony of Hinckley and my Lord Coke tells us that in the Reign of William Rufus and H. 1. Hagh Grant semenel Baron of Hinckley held that Barony by the said Office so that there seems a diversity between these Records but we shall reconcile it thus Hinckley was parcel of the Possessions of the E. of Leicester for Robert Bellamont E. of Leicester in the Reign of H. 2. married with Petronil Daughter and Heir of the said Hugh Grantsemenel Baron of Hinckley and Lord Steward of England and so it continued till by the forfeiture of Simon Montford it came to King H. 3. who in the fiftieth year of his Reign created Edmond his second Son Earl of Leicester Baron of Hinckley and high-High-Steward of England which continued in his Line until Henry of Bullingbrook Son and Heir of John of Gaunt Duke of Lancaster who was the last that had any Estate of Inheritance in the Office of the Steward of England Since the time of H. of Bullingbrook this great Office was never granted to any Subject but only hac Vice and the reason was for that the Power of this Officer is so transcendent that it was not holden fit to be in any Subjects hands For a Record saith Et sciendum est quod ej us Officium est supervidere regnare sub Rege immediate post Regem totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus pacis guerrarum c. and proceedeth particularly with divers high Powers and Authorities It is a Place of that Transcendency and Heighth Ephori 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Magistratus quidam Lacedemoniorum oppositi Regibus qui inspiciebant ea quae ad Rempub. pertinebant that it might in some sort march the Epheri among the Lacedemonians The custom of our Commonwealth hath upon great consideration and policy brought it to pass that this Officer is of no great duration but only for the dispatch of some special business as the Arraignment of some Noble-man in case of Treason c. which once ended his Commission expireth so that we may describe him thus Magistratus est Excelsus qui pro uno die a Rege ordinatur cum-aliquis ex Proceribus Regni uno die a Rege ordinatur cum-aliquis ex Proceribus Regni in Judicium vocatur de noxa Capitali Now we are to take a
Prospect of the Extent of his Lordships Jurisdiction and Power and the Rules he ought to judge by Although the Power and Authority of the Lord High-Steward hath been since the Reign of King H. 4. but hac vice yet is the hac Vice limited and appointed as when a lord of Parliament is Indicted of Treason or Felony then the Grant of this Office under the Great Seal of England is to a Lord of Parliament reciting the Indictment Nos considerantes quod Justitia est virtus Excellens Altissimo complacens eaque prae omnibus uti volentes ac pro eo quod Officium Seneschalli Angliae cujus praesentia pro administratione Justitiae Executione ejusdem in hac parte faciend Requiritur ut accepimus jam valeat de fidelitate Strenuitate provida Circumspectione Industria Vestris plurimum confidentes Odinavimus Constituimus Vos ex hac causa causis Seneschallum Nostrum Angliae ad Officium illud cum omnibus eidem Officio in hac parte debitis pertinentibus hac vice gerend accipiend exercend Dante 's concedentes vobis te nore praesentium plenam sufficientem Potestatem Authoritatem ac Mandatum speciale Indictamentum praedict c. So that this Great Officer is wholly restrained to proceed only upon the recited Indictment At every Coronation he hath a Commission under the Great Seal hac Vice Cok's Litt. 79. a. b. 4 Inst 59. to hear and determine the Claims for Grand Serjeanties and other Honourable Services to be done at the Coronation for the solemnizing thereof for which purpose he holds his Court some convenient time before the Coronation The first Person that was created hac Vice for solemnizing the Coronation of H. 4. was Thomas his second Son and upon th eArraignment of Thomas Holland Earl of Huntingdon the first that was created Steward of England hac Vice was Edward Earl of Devon Lastly The Order and manner of Arraigning a Peer of the Realm before this Creat Officer is to be consider'd As the Peers of the Realm who are Tryers are not sworn so the Lord high-High-Steward being Judge is not sworn likewise yet ought he to proceed according to his Letters-Patents Secundum Legem consuetuainem Angliae Co. Litt. 142. a. 4 Inst f. 60. for all Commissions and Charters for Execution of Justice are facturi quod ad Justitiam pertinet secundum Legem consuctudinem Angliae But admit the Commission should be Secundum sanas Discretiones vestras How then I answer Discretio est discernere per Legem quid sit Justum that is to discern by the right Line or Law and not the warpt measure of private Opinion Si a Jure discedas vagus eris erunt omnia incerta 'T is certain he that out-runs the Law hastens to his own destruction Commissions then that Authorise proceeding secundum sanas discretiones c. in sense are secundum Legem c. The Earl of Hantingdon was Indicted of High-Treason in London 1 H. 4. f. 1. a. by a Commission before the Mayor and Justices for that he with other persons agreed to go a Mumming which the French call Ma querade on the Night of Epiphany in which they intended to kill the King then at Windser And after the King granted a Commission to the Earl of Derby reciting That whereas George E of H. was Indicted of High-Treason and that he would that right should be done and because the Office of the Steward of England is now void he grants it to the said E. of Derby to do Justice to the said E. of Huntingdon commanding by the same Commission all the Lords to be attendant upon him and Precept was likewise given by the same to the Constable of the Tower to be attendant on him and to bring the Prisoner viz. the E. of H. before the said E. of D. on the day appointed whereupon the E. of D. the same day sat in Westminster-Hall under a Cloth of Estate by himself and the E. of Westmerland and other Earls and Barons sat at a considerable distance and all the Justices and Barons of the Exchequer sat round a Table and after three O Yes's made and the Commission read the Justices deliver'd the Indictment to the Lord Steward which was deliver'd to the Clerk of the Crown who read it to the said E. of H. which he confessed whereupon Hill the King's Serjeant prayed Judgment which the Lord Steward after he had rehearsed the whole matter pronounced in this manner That the E. of H. should be taken back to the Tower of London and from thence be drawn to the Gallows and there hanged and being yet alive cut down and his Entrails drawn out of his body and burnt and that he should be beheaded and quartered Et sic Deus propitiatur Animae suae The Justices then said that if the E. of H. had deny'd the Treason the Lord Steward should have demanded of every Lord in open Court what they thought in their Consciences beginning with the Pulisny Lord and if the greater number said Guilty then the Judgment to be given as above I refer your Lordships to Cambden's Annals of Q. Eliz for the manner of the Tryal of Tho. Howard Duke of Norfolk before George Talbot E. of Shrewsbury Lord High-Steward upon that occasion Sir Ed. Coke describes the manner how a Peer is to be tryed in case of Treason c. before the Lord High-Seward of England He Must be Indicted before Commissioners of Oyer and Terminer or in the King's Bench if the Treason or misprision Felony or misprision of Felony be committed in that County where the King 's Bench sit when he is Indicted then the King by his Commission under the Great Seal of England constitutes some Peer of the Realm to be hac Vice Steward of England who is Judg in this case The Commission recites the Judgment generally as 't is found and Power given to the Lord Steward to receive the Indictment c. and to proceed secundum Legem consuetudinem Angliae A Commandment is also given by the same to the Peers of the Realm to be attendant and obedient unto him as also to the Lieutenant of the Tower to bring the Prisoner before his Lordship Then a Certiorari is awarded out of Chancery to remove the Indictment it self before the Lord Steward which may either bear date the same day of the Stewards Commission or any day after The Lord Steward directs his Precept under his Seal to the Commissioners to certifie the Indictment such a day and place He also makes two other Precepts one to the Constable or Lieutenant of the Tower to bring the Body of the Prisoner before him at such a day and place as also to a Serjeant at Arms to summon Tot tales Dominos Magnates Proceres hujus Regni Angliae praedicti R. Comitis E. Pares per quos rei veritas melius sciri poterit quod ipsi
personaliter compare ant coram praedict Seneschallo apud Westm tali die hora ad faciend ea quae ex parte Domini Regis forent facienda c. In this Summons four things are observable 1. That all these Precepts most commonly bear date in one day 2. That no number of Peers are named in the Precept and yet there must be twelve or above 3. That the Precept is awarded for the return of the Peers before any Arraignment or Plea pleaded by the Prisoner 4. that the Lords are not de Vicineto and therefore the sitting and Tryal may be in any County of England At the day the Lord high-High-Steward with six Serjeants at Arms before him takes his place under a Cloth of Estate and then the Clerk of the Crown delivers to him his Commission who re-delivers it After three O Yes's by a Serjeant at Arms and Commandment given in the Name of the Lord High-Steward of England to keep silence the Commission is read then the Usher delivers to the Steward a white Rod who re-delivers the same which he holds before the Lord high-High-Steward It was deliver'd upon the like occasion to the Earl of Shrews bury by Garter King at Arms. O Yes being again made Commandment is given in the Name of the H. Steward to all Justices and Commissioners to certifie all Indictments and Records which being deliver'd into Court the Clerk of the Crown reads the Return and the Serjeant at Arms is commanded to return his Precept with the names of the E. and Barons by him summoned and the Return of that is also read then are the Peers summoned to answer to their Names which are recorded When they have taken their places and the Prisoner set to the Bar then the Lord High-Steward delcares unto them the cause of their Assembly and perswades the Prisoner to Answer without fear assuring him that he shall be heard with patience and that Justice shall be done to him After this the Clerk of the Crown reads the Indictment and proceeds to the Arraignment of the Prisoner and if he plead Not Guilty the Entry is Et de hoc de bono malo ponit se super Pares suos c. After which the Lord High-Steward gives a Charge to the Peers exhorting them to try the Prisoner indifferently according to their Evidence which is opened by the King 's Learned Counsel who produce their Proofs for the King against the Prisoner Soe or all of the Judges are ever attendant upon the Lord High-Seward and take their places at the feet of the Peers After the Evidence is given for the King and the Prisoners Defence made he is withdrawn from the Bar under the custody of the Lieutenant whilst the Tryers go to some place to consider of their Evidence upon debate of which if they doubt of any matter they cannot send to the High-Steward to ask the Judges any Questions of Law but in the hearing of the Prisoner that he may know whether the case be rightly put for de facto jus Oritur neither can they send for the Judges to know their Opinion but the H. Steward ought to demand it in Court in the presence of the Prisoner When the Lords are agreed they return into Court and the Lord H. S. publickly in open Court beginning with the Puisny Lod says unto him My Lord A. is W. v. S. guilty of the Treasons whereof he hath been iNdicted and Arraigned or any of them And the Lord standing up says Guilty or Not Guilty and so upward of the rest serialim The Peers having given their Verdict in the absence of the Prisoner the Prisoner is brought to the Bar whom the Lord High-Steward acquaints with the Verdict of his Peers and gives Judgment accordingly either of Condemnation or Acquittal After the Service is performed and O Yes made for dissolving the Commission the white Rod is taken by the Lord High-Steward in both his hands and broken in pieces Thus have I presented to your Lordships a Scheme of that solemn order and manner how a Peer of the Realm is Arraigned before the Lord High Steward of England I might amass several Presidents of like nature wherein the Axe of Death is born before the Prisoner with the Edge from him and after being found Guilty with the Edge to him I wish your Lordships may never know more of this Point by a fatal experience Now it remains that I give Solutions to those Queries your Lordships were pleas'd to put concerning Tryals Treasons c. by which I wish you may arrive at some reasonable satisfaction QUERY I. How Antient this Tryal by Peers may be SOL. Without doubt 't is Coetaneous with the Office of the Lord High-Steward and how old that is hath been already shewn however I shall present one Authority which proves that Tryal by the Peerage was in use in the Reign of William the Conquerour who in the beginning of his Reign created William Fitz Osborne Earl of Betrevil in Normandy Earl of Hereford His Son Roger succeeded him and was E. of Hereford who under colour of his Sisters Marriage near New-Market in Camb. Shire where many of the Nobility were assembled conspir'd with them to receive the Danes into England and depose William the Conquerour who was then in Normandy from his Kingdom of England to effect which he with others rose This Treason was reveal'd by Walter E. of Huntingdon who was one of the Conspirators and Son to the Great Syward Earl of Northumberland for which Treason Roger E. of Hereford was apprehended by Urse Tiptof then Sheriff of Worcestershire A. 8. W. 1. and after tryed by his Peers and found guilty of the Treason per Judicium Parium suorum But he ended his days in Prison QUERY II. Whether a Peer can wave his Tryal by Peers SOL. He cannot wave his Peers and put himself upon the Tryal of Twelve Free-holders for the Stat. of Mao Shart is 26 H. 8. that he must be ryed by his Peers and so it was resolved in the Lord Dacre's Case QUERY III. What Lords shall be tryed by Peers in cases of Treason c SOL. Every Lord of Parliament that hath Voice therein and called thereto by the King 's Writ shall not be tryed by Peers but only such as sit Patrone Nobilitatis as Dukes Marquesses Earls Viscounts and Barons and not such as are Lords of Parliament by reason of their Baronies which they hold in right of the Church as Arch-Bishops and Bishops of this Realm for though they be Lords of Parliament yet upon an Impeachment either of Treason or Felony they shall not be tryed by the Peers of the Realm but by a Jury of Knights and other substantial persons pon their Oaths and one reason alledged by some how truly let others judge is forasmuch as Archbishops and Bishops cannot pass in like cases upon the tryal of any other of the Peers their Lordships being prohibited by the Common and Ecclesiastical Laws to be Judges
When the Peers that were to be Tryers at the Arraignment of the Earl of Essex and Southampton were called by name Camb. Eliz. A. 1601. the Earl of Essex demanded whether it were not lawful for them as the use is to private men to except against some of their Peers The Judges answer'd that such was the Credit and Estimation of the Peers of England that they are neither compelled to an Oath in Arraignments nor subjected to Exceptions QUERY IV. Whether the Lord high-High-Steward can collect the Evidence against the Prisoner or confer with the Lords touching the same in the Prisoners absence SOL. To this I answer negatively for after the King 's Learned Counsel have produc'd all their Evidence the Prisoner ought to be present at all Conferences touching the same and therefore it shall be necessary for all Prisoners after Evidence given against them before departure from the Bar to require Justice of the Lord High-Steward and of the other Lords and that no Question be demanded or conference had by any with the Lords but in open Court in their own hearing otherwise such Prisoners shall take no advantage thereof after Verdict and Judgment given QUERY VII If the Lords be equally divided between guilty and not guilty whether the party tryed shall be acquitted or condemned SOL. In an Information in the Court of Star-Chamber by the Attorney against Sir Stephen Proctor and others for conspiracy against and scandal of the Earl of Northampton Co. 4. Inst f. 64. and Edward Lord Wootten two of his Majesties most Honourable Privy Council at the hearing of which Cause there sat eight in Court whereof four condemned the Defendants and the other four viz. the Lord Chancellour two Bishops and the Chancellour of the Exchequer acquitted them the Question was according as your Lordships have propos'd it Whether the Defendants should be condemned or not And here it was moved by the King 's Learned Counsel that when the Voices are equal that in that case of which part the Lord Chancellour was on that side it should be determin'd without regard either to Plaintiff or Defendant And it was resolved that regularly and de communi Jure in respect of the equality of Voices that no sentence could be given as it holdeth in the High Court of Parliament and all other Courts according to the old rule Paribus sententiis Reus absolvitur And sentence was never given against Sir Stephen Proctor agreeable to the general rule in other Courts In this point the Civil Law concurs with the Common Inter Pares Numero Judices si dissonae sententiae proferantur in liberalibus quidem causis secundum quod a Divo Pio constitutum est pro libertate statutum obtinet in aliis autem causis pro Reo quod in Judiciis publicis obtinere oportet Vid. Grot. lib. 2. c. 5. uu 18. de Jure Belli c. Reus sententiis paribus absolvitur semper quicquid dubium est humanitas milinat in melius Alter Judex damnat alter absolvit inter dispares sententias milior viniat I shall here take leave to make a little digression from the Query and consider if a person that is forth-coming can by Parliament be attainted of High-Treason and never call'd to answer This seems as much worth the inquiry as other your Lordships Queries and though omitted by you I shall not let it pass without some notice By the 2. of H. 6. we find a great Peer condemned without Arraignment or Answer Co. 4. Inst f. 37 38. the like in 32 H. 8. one Attainted though living and forth-coming of High-Treason without ever being called to Judgment The legality whereof was scrupled and demanded of the Judges whether the Act were void or not with some pause they adjudged it perillous and of bad example to the Inferiour Courts but 't was agreed if condemned by Parliament to be indisputable though Cap. 29. 5 E. 3. c. 9. 28 E. 3. c. 5. of Mag. Char. affirms that no man ought to be condemned without Answer without a Quid fecisti and all due proceedings at Law Senec. in Loco Qui statuit aliquid parte inaudita altera licet aequum statuerit haud aequus fuerit With the Municipal Laws agree those of the Romans Divi severi Antonini Magni rescriptum est D. 48.17 ne quis absens primatur hoc jure utimur ne Absentes damnentur neque enim inaudita causa quemquam damnari aequitatis ratio patitur Acts 25. v. 16. It is not the manner of the Romans to deliver any man to death before the accused have his accusers face to face and license to answer for himself QUERY VIII Whether the King and one of the Houses alone or both without the King can declare a Treason within the Stat. of 25 E. 3. cap. 2 SOL. John Duke of Groyen and Lancaster Steward of England and Thomas Duke of Glocester Constable of England the King's Uncles complained to the King that Thomas Talbot Knight with others his Adherents conspired the death of the said Dukes as the same was confessed and well known and prayed that the Parliament might judge of the fault which Petition was just and according to the Branch of the Stat. of 25 E. 3. but the Record saith further that the King and Lords in Parliament adjudged the same fact to be High-Treason which Judgment wanting the assent of the Commons was no Declaration within the said Stat. which is attended with this restriction That if any other case supposed to be Treason should happen before any Justices the Justices should tarry without going to judgment of the Treason till the Case be shewed before the King and his Parliament consisting of Lords Spiritual and Temporal and the Commons whether it ought to be adjudged Treason or Felony QUERY IX Whether the Subjects of another Prince Confederate with the King of England can be held for the King's Enemies SOL. It was objected against the Duke of Norfolk concerning his relieving of the Scots the Queens Enemies which was proved by Letters and Banister's confession c. whereupon the Duke asked the Judges Whether the Subjects of another Prince Camb. Eliz. A. 1572. Confederate with the Queen of England were to be holden for the Queens Enemies Calelin Chief Justice answer'd that they were and that the Queen of England might make War with any Duke of France and yet in the interim keep peace with the French King And here 't is to be noted that the Judges ought not to deliver their Opinions before-hand in any criminal case that may come before them judicially In the Case of Humphrey Stafford that Arch-Traytor Hussey Chief Justice besought King H. 7. that he would not desire to know their Opinions before-hand for him for they thought it should come before them in the King's-Bench judicially and then they would do that which of right they ought which the King approv'd of Besides the nature