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
of an Instrument under their Hands and Seals will further appear to be a breach of the Canons if you consider the Letter of the Canon made Anno 1222. in the Reign of H. 3. which you may find among the Constitutiones Archiepiscopi Stephani in Linwood f. 146. Authoritate quoque Concilii districtius inhibemus ne quis Clericus beneficiatus aut in Sacris Ordinibus constitutus litteras pro poena sanguinis infligenda scribere vel dictare presumant vel ubi Judicium sanguinis tractatur vel exercetur intersit From this Canon I conclude That Clergy-men ought neither to be present themselves nor depute others per litteras to be present pro poena sanguinis infligenda We have likewise a very pertinent Observation upon this Matter in an ancient MS. Chronicl in libro Mailrosso which hath written very largely of this Parliament that was held 21 R. 2. wherein the Prelates are blamed for that Opinion which they gave generally about the Revocation of Pardons because the consequence thereof was the Death of those whose Pardons were Revoked Dederunt ergo locum saith the Book Prelati judicio sanguinis in hoc facto Ita quod debitatur a pluribus si non incurrerent irregularitatem pro negotio memorato unde contigit quod propter istud minus peccatum inciderent in aliud Majus peccatum consequenter ut laicam personam constituerint Procuratorem pro eisdem qui illorum vice consentiret adjudicium sanguinis dandum in dicto Parliamento si necessâ— foret occasio emersisset c. So that upon the whole Matter it is irrational to think that their departure from the House ever before this was meerly in respect of the Canons when we see that the first offer of the King and Parliament to admit them to the exercise of Jurisdiction for that time was by them kindly accepted with a Non obstante to the Canons of the Church It is true the giving Judgment of Death by Proxy was as great a violation of the Laws of England as of the Canons of the Church yet inasmuch as Consensus tollit errorem it was for that time well enough 2. This is further illustrated If you observe that in those Cases to which the Prohibition of the Law did not extend they made no scruple of Sitting and Voting although their Voting in those Cases was against the Canons of the Church This may be instanced in the Cases of Bills of Attainder for although the Canons do prohibit them from Voting in such Cases as much as any Case whatsoever inasmuch as in passing the Bill they Vote That the Person is Guilty and shall stand actually Attainted of High Treason and shall be deemed and adjudged a Traytor and shall suffer as in Cases of High Treason c. yet they do generally Vote because that the Prohibition of the Law doth not extend to Voting in Bills of Attainder seeing that is not Agitare judicium but onely Legis lationem what they do in that Case is not Judicially but onely the exercise of their Legislative Power otherwise the House of Commons would make themselves Judges and would challenge a Judicial Power in the Tryal of any Lord seeing in passing Bills of Attainder they do every whit as much as the Bishops for they Vote that he is Guilty c. and that he shall be adjudged a Traytor c. And the Act of Parliament runs Be it Enacted by the King the Lords Spiritual and Temporal and Commons in Parliament assembled For these two Reasons I think it very improbable that the Canons was the onely cause why the Prelates did depart the House when Capital Cases were Debated But that the weakness of their Objection may further appear I answer Thirdly Although we should admit that the Canons of the Church were the first occasion of the beginning of this Custom among us and that those Histories and Chronicles which inform us after this manner do say true yet this is no Argument against the validity of a standing Custom the Commencemant of which is not upon Record for Histories and Chronicles are not Matters of Record neither are they in Law such strong and undeniable proof of the beginning of any usage as to make it no Custom neither are the Canons of the Church Matters of Record and therefore cannot prove that there was no such Custom before the making of those Canons Seeing then it is without doubt that there was a Custom that the Prelates should not exercise Jurisdiction in Capital Cases and there is no Record that doth mention the time when it did begin nor any time when it could be said There never was such an Usage it must of necessity be supposed that it is as ancient as the Government it self and part of the Fundamental Contract of the Nation whereby their Jurisdiction was originally limited that it should not extend to such and such Cases So that I do not argue from the validity or invalidity of those Canons nor from any Construction that may be made upon the Letter of the Canons but insist upon it as part of the Common Law of England and do absolutely deny that it had its Original and Force from any Authority that the Pope of Rome with or without his Council or a Convocation of the Clergy in England had to impose Laws upon us but affirm that its force and obligatory Power did solely arise from the voluntary reception approbation and usage allowed by the People of England which being by them transmitted to Posterity is a thing reputed to have been used and practised time out of mind and is thereupon ranked among the Common Laws of this Kingdom which are no more but general Usages or Customs of general Concernment to the whole Nation in things of Temporal Conisance first upon reasonable Considerations by consent allowed and then transmitted as a Tradition to Posterity by whom they are supposed to have been in ure ever since it was a Nation But this matter of Judicature in Capital Cases is a point of Temporal Jurisdiction in a Temporal Court viz. The High Court of Parliament and therefore of Temporal Conisance the departure of the Clergy when such Cases came to be Debated hath also been an interrupted practice for many Ages together yea and most strictly observed in the first Ages whose Transactions are Recorded as hath been already proved and it is impossible by Record to trace it to its first Original Therefore it agreeing with every part of the definition of Common Law is part of the Common Law it self and doth consequently bind all subjects to its Observation as a standing Law not alterable any way but the same way it at first took its force that is by general consent according to the Maxime laid down by my Lord Cook in his 1. Inst. 115. b. Whatsoever was at the Common Law and is not ousted or taken away by any Statute remaineth still And although this Practice that was enjoyned by
the two Cases as to this Matter for their Power and Jurisdiction in Legislation is every whit as ample as their Power of Judicature and therefore their Concurrence is equally necessary in both Cases But it is a thing of dangerous Consequence to Assert that an Act of Parliament cannot be made without the Consent of the Clergy for it will make some of the best Laws that ever were made in England before the Reformation and which have ever been to this day accounted firm and established Laws of no force at all Most of the Statutes of Mortmain were made against the will of the Clergy and their Dissent is recorded The Statute De Aâ—â—…rtatis Religiosorum is Enacted by the King De Concilio Comitum Baronum Magnatum Procerum Regni sui Constatuum in Parliamentâ—… c. and yet proved by my Lord Cook in his Exposition of this Statute to be a good Law from the Testimony of many Records and Acts of Parliament that recite this Statute The Statute of 3 Rich. 2. c. 3. was made against the Clergy for the ill disposition of Dignities Offices Canonries Prebends and Parsonages and other Ecclesiastical Preferments upon lewd and licencious persons to the Scandal of Religion and the neglect of Divine Service c. The Clergy being somewhat displeased that any should undertake to reform them at the first reading of the Bill departed but notwithstanding the Bill past and is said to be Enacted by the King Nobles of the Land and the Commons leaving out the Clergy And yet this hath been allowed for an established Law by all the Judges See Roll 3 R. 2. n. 38. 40. The Statute of 7 R. 2. c. 12. was made to impower Justices of Peace to enquire of several grievous Extortions committed by the Bishops and their Officers to the great grievance and oppression of the Kings Liege People c. The bringing in of this Bill offended the Clergy more than the former insomuch that they left the House in a great Huff Protesting against the Bill as injurious to the Franchises and Jurisdiction of the Church yet notwithstanding it passed into a Law The Clergy were absent all the Parliament that was held 11 R. 2. and yet divers good and profitable Laws were made that Parliament never questioned for their Validity but always put in use as 11 R. 2. c. 7. about Merchants c. 8. concerning the granting of Annuities c. 9. concerning new Impositions c. 11. of Assizes and several others made in the absence of the Clergy I might for this enumerate all the Statutes of Provisors and the Statutes of Premunire for Suers of Appeals and other Process from Rome as 25 E. 3. c. 1. and 22. where the Names of the Clergy are left out and 13 Rich. 2. c. 2. and c. 3. where they were so far from Assenting that they entred Protestations against them because they abridged the Popes Authority as is before observed And the 16 R. 2. c. 5. passed against the will of the whole Clergy And so the Statute that was made in the same year about the Queens Marriage without the Kings Consent was made without the Concurrence of the Clergy for their Assent to it was special in this manner So far as it is agreeable to the Law of God and the Holy Church Which being conditional and under a Restraint was according to the Course of Parliaments accounted as no Assent at all and so it was specially Entred and yet none did ever question the Strength and Force of this Act. These Statutes being allowed by the Judges of England as Good and Authentick Laws although they were not agreed to by the Lords Spiritual do prove that the Concurrence of the Lords Spiritual is no more necessary to the Essence and Perfection of an Act of Parliament than the Concurrence of as many Temporal Lords Upon the whole Matter it appears to have been a very strange and unaccountable over-sight in the House of Commons at that time that they should be the first Introducers of an Innovation upon so false a Ground as theirs was But however this Practice being built upon so sandy a Foundation it seems had no long continuance for there doth not occur in any Author nor in the Abridgments of the Records any mention of more than Two Proxies the first was Sir Thomas de la Percie the second was Sir William de la Scroope who immediately succeeded him in this his New Office But seeing it is rash to Assert a Negative in a Matter of Fact it will be very satisfactory if any will inform us of any more and that may easily be done if there were any because none can act as a Proxy except his Procuratorship be Entred upon the Roll. Most of those Records that are Cited in the behalf of the Spiritual Lords are either such as were in those times when the Clergy put in Proxies as all those that are upon or after the 21 Rich. 2. and about the beginning of Hen. 4. Such is the Case of the Earl of Arundel for it appears by the Record that the Constitution of the Proxy was in N. 9. and the Arraignment of the Earl was not till N. 15 or 16. and therefore after the Proxy so that there was reason that the Records should be Entred by the King Bishops and Lords seeing the Bishops Deputy was present but it is no Argument of their personal presence Or else they are Cases of Bills of Attainder and that is not much to our purpose for those will as well prove that the House of Commons have sate Judicially upon Matters of Life and Death A Bill of Attainder is reckoned the strongest way because there is a Concurrence of all the Three Estates of both the Judicial and Legislative Power and that is necessary for making a Forfeiture of all manner of Rights Titles and Interests which otherwise are not Forfeitable And if at any time there was an opportunity for the Clergy to transgress the Laws both Ecclesiastical and Civil I mean the Statutes and Customs of this Realm which was connived at by the rest of the Lords and Commons I hope that will not be accounted a Precedent to overthrow a Custom of so Ancient a Date and so agreeable to the Fundamental Constitution of the Government and the Grounds and Reasons of the Common Law and also Confirmed by an Act of Parliament So by degrees the whole Method and Course of Parliamentary Proceedings may be altered and the very Being and Foundation of Parliaments shaken So we should have had the Lords refusal to Sequester the Earl of Danby from Parliament a Precedent if they had not afterward acknowledged it to have been an Errour We may find in many Cases the Lords Dispensing with Magna Charta 4 E. 3. n. 6. They passed Judgment of Death upon several Commoners 15 E. 3. We find several Particulars enumerated wherein the Commons complained of Breaches of Magna Charta and we are not sure that all these particular Cases were remedied and therefore must these stand all for Precedents At this Rate there are few Points of Law perhaps that will escape Doubt and Controversie for we shall have some of the Lords pretend they can transfer their Honours and so are able to make the Kings Enemies his Councellors because in Daincourts Case 4. Inst. 126. one Branch of the Family sate in the House by vertue of a Grant from the other Branch of the Family from the Raign of E. 2. to H. 6. And the Earldom of Chester was first granted 17 H. 3. and transferred 39 H. 3. And upon these Precedents there was an Attempt in the Lord Fitz-Walter's Case to make a Baron by Translation of interest Admitting therefore that Once or Twice or such a matter the Bishops have Voted in Capital Cases yet they cannot Controul an Antient and well established Custom though I am not apt to believe there are many such Cases However it was a very pleasant humour of a Gentleman that wrote lately of this matter and cited a Precedent in the Raign of R. 2. Of the Earl of Arundel and Wardor whereas there was no such Lord as Arundel and Wardor Created till King James his time Vide pa. ult so p. 30. He cites the Case of the Earl of Salisbury who in his Petition says the Prelates are Peers in Parliament and assigns for Error that they were Absent when Judgment was given against his Father and this is a good Precedent to prove the Prelates right to Vote in Capital Cases as Peers in Parliament Whereas the Petition was disallowed and the Judgment affirmed by the resolution of the whole House Such a way of arguing deserves some special animadversion But I shall supersede any further Consideration of the matter and shall conclude that without an Act of Parliament the Bishops can have no right to Vote in Capital Cases which if this present Parliament shall think fit to make it behoves all true Subjects to agree thereto FINIS Baker 124. Co. 2. Inst. 654. Baker 141. Vide Parliam held at Clarendon 11. H. 2. Fitz. Tit. Cor. pl. 417. 8 E. 2. 17 E. 2. 386. 19 E. 2. 233. Vide Co. â— Inst. 636.
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