and ought to give Example to the Inferiour Magis Exemplis quam praeceptis ducimur QUERY XIV Whether a Subject of one Kingdom guilty of Treason flying into another Kingdom ought to be remitted to his own Soveraign SOL. It is holden and so it hath been resolved that divided Kingdoms under several Kings in League one with another are Sanctuaries for Servants or Subjects flying for safety and upon demand are not by the Laws and Liberties of Kingdoms to be delivered And this Opinion seems grounded upon the Law in Deut. c. 23. v. 15. Thou shalt not deliver unto his Master the Servant which is escaped from his Master unto thee When the Lord Paget and Arundel came into France Sir Edward Stafford Queen Eliz. Ambassadour there Camb. El. 1584. diligently observed them yet could by no means discover what they attempted he desir'd nevertheless of the French King that they with Morgan and other English who were practising against their Prince and Country might be removed out of France To which he received this answer That if they attempted any thing in Frence the King would punish them according to Law That all Kingdoms were free for Fugitives and that it was the great concernment of Kings to maintain every one the Priviledges of his own Kingdom That Queen Eliz had not long since received into her Kingdom Montgomery the Prince of Conde and others of the French Nation and that Sagury the King of Navarr's Embassadour was in England at this very time practising to move new troubles against the French King King H. 8. in the 28th year of his Reign being in League with the French King and in Enmity with the Pope who was in League likewise with France and had sent Cardinal Poole Embassadour to the French King of whom K. H. 8. demanded the said Cardinal being his Subject and Attainted of Treason and to that end caused a Treatise to be publisht that it ought to be done Jure Gentium sed non praevaluit Ferdinando King of Spain upon request made by H. 7. to have Edmond de la Poole Earl of Suffolk Attainted of High-Treason by Parliament A. 19. H. 7. at first intending to observe the Priviledge and Liberty of Kings in protecting such as came to him for succour and protection delivered him not yet in the end upon the earnest request of the King and his promise not to put him to death he caused the said Earl to be delivered up to the King who kept him in Prison and construing his promise to be but personal commanded his Son Henry after his death to execute him which he caused to be done in the fifth year of his Reign I shall add one more Example of a Remission out of Zouch Cum quidam Stywardus Scotus Treat de Judicio inter Gentes qui Mariam Scotorum Reginam vneno tollere conatus est in Anglia deprehenderetur Ed. Sextus Rex Angliae eum in manus Regis Galliae tradidit ut debito supplicio Remitteretur quod Nonnullis displicuit quia etsi ratio suadeat ut qui in Patria deliquit in Patria Puniatur aliter tamen de consuetudine quod Remissionem usurpatum est Having now run thorough the several Query's which your Lordships have thought fit to propose I Shall venture to set one step further and start Another of my Own with some Offers toward the Solution of which I will make an end Viz. QUERY XV. Whether in any Case it be Lawful for Subjects to Oppose their Prince SOL. It must be resolv'd in the Negative And that in any Case or upon any Pretence whatsoever it is utterly unlawful for Subjects joyntly or singly collectively or representatively to make any violent Opposition against their Soveraign or to Resist him either in an Offensive or a defensive way This Assertion you will find to be a Truth that is Consonant to Holy Writ Reverend Antiquity Sound Reason and to the Municipal Laws of the Land all the Sophistries and Argumentations that Seditious and corrupted men are able to produce to the contrary notwithstanding I. To begin with Holy Scripture It is clear from Deut. c. 17. v. 12. which commands the Israelites to put away evil from amongst them by bringing to Publique Justice all such Mutinous and Presumptious persons as refus'd to Obey the High Priest and the Judge that God imposed an Obligation even upon his own People not to Resist the Supreme Magistrate And v. 13. makes the Reason of this Severity to be to preserve the People from being Poyson'd in their Allegiance by the Malignity of such Examples That all the People under what Notion or Qualification soever may hear and fear and do no more presumptuously The same express Warrant of the Word and to the self-same purpose there is in Joshua C. 1. v. 18. Whosoever he be says the Almighty speaking to him that doth rebel against thy Commandment and will not harken to thy words in all that thou commandest him he shall be put to death Saul is generally condemned for persecuting David and attempting upon his Life And yet though David had him twice at his mercy he was not to be prevail'd upon to do him any Harm 1 Sam c. 24. v. 6. and C. 26. v. 11. For who says he can lay his hand upon who can touch who can stretch forth his hand against the Lords Anointed and be Guiltless Now the Signification of the Scripture-phrase Touch or stretch forth the hand against the Lords Anointed is of a Large Extent And the Guilt of this Horrid Crime may be incurr'd either by lifting up our heels in scorn against our King Psal 41. v 9. By taking up Arms in our own defence for whosoever Resisteth the Power Resisteth the Ordinance of God Rom. 13. By not bringing to light such Traiterous Conspiracies as we know to be forming against him Lev. 5. By not endeavouring to defend him when we see him in danger for Qui non vetat peccare cum possit jubet By striking at his Crown usurping upon his Prerogative or depriving him of his Revenue Jer. 18. v. 18 By Speaking or even Thinking evil of him for as the Tongue can strike without a Hand so the Heart can curse without a Tongue Or in a Word by any sort of indignity or out-rage offer'd either to his Authority or Person But to proceed Doth not Saint Paul enjoyn that every Soul be Subject to the Higher Powers for there is no Power but of God and they that Resist shall receive to themselves Damnation Nay and doth not Saint Peter also inculcate a Patient Toleration of injuries and recommend unto our imitation the Example of our Blessed Saviour who when he was reviled reviled not again 1 Pet. 2. v. 19.20 21 22. when he suffered he threaten'd not but referr'd the Vengeance to him that judgeth Righteously If ever man had just Cause to Resist then had he yet would he not do it but check'd Saint
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-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
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-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-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