and â—riors who gave their letters usually to Parsons Prebendaries Canonists and such like In that Parliament of Carlile under Edward the first the Bishop of Exeter sent to the Parliament Henry de Pynkney parson of Houghton as his Proxie The Bishop of Bath and Wells sent William of Charleton a Canon of his Church and in like for t other of the spiritualty of that time In the beginning of the 17th yeare of Richard the second the Bishop of Norwich made Richard Corqueanx being then Deane of the Arches Thomas Hederset Archdeacon of Sudbury and Iohn Thorpe parson of Epingham his Proxies by the name of Procuratores sive nuntij And in the same time the Bishop of Durhams proxies were Iohn of Burton Canon of Bewdley and Master of the Rolls and Iohn of Wendlingborough Canon of London and other like are of the same time By which also that of the Preamble of the Statute of Praemunire is understood where it is said that the advice of the Lords spirituall being present and of the procuratores of them that were absent was demanded The like under Henry the fourth and Henry the fift are found in the Rolls And under Henry the fift the Arch-Bishop of Yorke gives the proxie to the Bishop of Durham and to two other Clerkes of his Province And it is observable that in the making of proxies by the whole number of Bishops in case of Attainders upon Appeale their course was sometime to make a Gentleman beneath the degree of a Baron their Proxie as under Richard the second first they made their proxie for assenting in the Parliament but afterwards the Earle of Wiltshire had that place in the same Parliament But this of making others then Barons of Parliament proxies is carefully found in the cases of the Lords spirituall One speciall case of it is under Henry the fift in that of Thomas de la Ware who being a Clergie man had his Barony descended unto him and is stiled in the summons alwayes Magister Thomas de la Ware and not Dominus hee gave his Letters to John Franke and Richard Hulme Clerkes but the proxie Rolls for the Temporall Lords are for the most part lost The following Times especially ever since the first memorie extant of the Iournalls of the upper House which began the first of Henry the eight have kept a constant course of making parliamentory Barons onely proxies And it appeareth in those Iournalls that one two or three are joyned conjunctim divisim and most commonly Temporall Lords have given their proxies to temporall and spirituall men yet not without a Temporall Lords giving his letters of proxie to a Spirituall and Temporall Lord together And under Queen Mary Francis Earle of Shrewsbury made Anthony Viscount Mountague and Thomas Bishop of Ely his proxies And in the beginning of Queene Mary Stephen Gardiner Bishop of Winchester was joyned in letters of proxie sometimes with a Temporall Lord But the Lords spirituall have so much mistataken of late the Lawes of this Kingdome the Kings prerogative given by the Law and what and whence was the Originall of the Honours they themselves had obtained and have beene ready to inlarge the Dominions of Antichrist and to induce an arbitrary government by their writings and other apparent practises in so much as now they have lost both Priviledge and Vote in Parliament CHAP. II. Priviledges in Suites as well for their followes as for themselves during the Parliament IN a Bill exhibited under Henry the fourth is shewed that the Lords Knights c. and their men and servants c. should not be arrested or otherwise imprisoned by the custome of the Realme and it is prayed that if any be the parties offending may make fine and ransome and give dammages c. Hereunto the Answer is there is sufficient remedy in the case In the beginning of Queene Elizabeths reign Iohn Broxham being Plaintiffe in an Assise in the County of Lincolne against the Lord Willoughby it was ordained that an Injunction should goe out of the Chancery Subpaena 500. l. That the Plaintiffe should not proceed to Tryall To this head may bee referred that case of the Lord Cromwell cited in the Title of processe against them in English Courts in the Iournalls of Queen Elizabeth King James and our present Soveraigne the Testimonies of these priviledges for the servants of every Baron of Parliament are most frequent Hereunto may be added that of the first citation out of an Ecclesiasticall Court against the Earle of Cornewall which was served upon him in Westminster Hall as he was going to the Parliament at the Suite of Bago dâ— Clare and the Prior of Saint Trinity in London for the Earle sued them for the contempt and recovered 1000. Markes dammages And in the same Parliament the Master of the Temple petitioneth that he might distraine for rent in a house in London which it seemes the Bishop of Saint Davids held of him In qua non potest distringere in tempore Parliamenti But answer is non videtur honestum quod Rex concedat quod ille de consilio suo distringatur per Ostia fenestras prout Moris est CHAP. III. No Peere of the upper House to be called to answer in the lower House only THomas Philips complained of the Bishop of London upon divers Articles in the lower House and at first by Order of the House whence it was referred by reason of the slight nature of the offence c. whereupon the Bishop remembring the upper House of their Priviledges Ejus verbis auditis prâ—ceres omnes unâ voce dicebant quòd non consentantum fuit aliquem procerum praedictorum alicui in eo loco responsurum So where the Bishop of Bristoll had written the Booke of Vnion which was conceived to be derogatory to the honour of both Houses yet hee was complained of onely in the upper House and that so he might bee and not before the lower House alone it was acknowledged in the message delivered from the lower House touching him The like is the priviledge of the Bishops complained of in this present Parliament 1641. CHAP. IV. The Iurisdiction of the Lords of Parliament in matters of offences aswell capitall as not capitall and in errors out of the Kings bench THe power of Iudicature belonging to the Lords of Parliament is chiefly seene in their Iurisdiction upon Writs of error and their Iudgements of Offences as well capitall as not capitall which they give to any publicke mischiefe in State Of these Iudgements of such Offences many examples are of former times in the Records of Parliament and out of them are here selected some such as most of all conduce to the opening of the course of Accusation the forme of the Defendants answering the usuall wayes of Triall and other Incidents in their various kindes of Iudgements which are found arbitrary in cases not capitall so that they extend not to the life
expeditionem negotiorum Parliamenti praedicti cum omni diligentia procedâ—rent Iudgements upon Writs of error in PARLIAMENT IF erroneous Iudgements bee given in the Kings Bench or in the Exchequer Chamber upon the Statute of 27. Eliz. cap. 18. the party may have his Writ of â—râ—oâ— retureable in Parliament but not upon judgement given in the Common Pleas untill the same bee â—everâ—ed or affirmed in the Kings Bench as it was answered in Parliament under â—dward the third in the case of the Bishop of Norwich Vpon the Writ of Erâ—or the Lord chiefe Iustice of the Kings Bench is to bring in the Record and a â—raâ—script of it into the Parliament and theâ—e leaveth the Transcript â—ut carâ—â—eâ—h the Record bâ—ck and thereâ—pâ—n the Erâ—ouâ—s beiâ—g assigned or as some Examples are befoâ—e the Assignamus of the Errors order is to bee given that a Scire facias be awarded against the Defendant upon whose appeaâ—anc examination of the Errors by the Lords the Iudgement is either affirmed or reversed AFter the Record thus brought in Clericus Parlïamenti habet inde Custoaiam per duos tantum non per Communitatem assignabitur Senescallus qui cum Dominis spiritualibus ac temporalibus per conâ—ilium Justiciariorum procedat ad errâ—rem corrigendum In which words it is observed that the Lords have power to make a Delegation of their Iurisdiction to a person chosen out of themselves as a Steward to judge for them as also they did in their proceedings against Gomemz and Weston under Richard the second when they apâ—ointed the Lord Scroope for Steward of the Parliament to arraigâ—e the Offenders but this rests at their pleasâ—re whether they will judge themselves together or so appoint a Steward MEmorandum quod Christopherus Wray miles capital Iusticiarius de Banco Regis seâ—u adduxiâ— in â—ar in camera parl inter duos bre de errore billa de regina indors ac rotulat In quibus continebantur placita processus in quibus supponâ—batureâ—ror ib. reliquit transcript totius recordi ciâ— Cler. Parl. super hoc venit Richardus Herbert Ioh. Awbrâ—y Willielmus filiam â—imon Browâ—e in propriis personis suis in Parliamento statim dixerunt quod in recordo processu praedict. in redditione Iudicâ—i praedict. manifestè est erratum in hoc quoâ— postquam Iudicium praedict. in loquela praedict versus praefat. Thom. Gomiel redit fuit antequam praedict. Iohannes Hunt prosecutus fuit impetravit praedict. primum breve descire facias versus praefat. Thom. Ric. Herbert caeteros praedicto manucaptores praedict. Thom. Gomiel nullum breve de capias ad satisfaciendum pro debito damnis praedict. per praefat. Iohannem Hunt in Parliamento praedict. prosequendo Et reternat fuit versus praefat. Thom Gomiel ubi per consuetudinem Curiae dictae Dominae Reginae coram ipsa Regina à tempore contrarii memoria hominum non existit in eadem usitat approbat brev. de Cap. ad satisfaciendum versus eundem Thom. Gomiel pro debito damnis praedict. Parl. praedict. prosequi retornari debet antequam aliquid brev. de sci fac versus manucaptores prâ—dâ—ct in loquela illa impetrâ—nt seu prosequi debe et licet consueâ—udo forum captionum râ—cognitionum in curia praedict. usi fuerunt in forma praedict. viz. si contigerit eundem Thomam Gomiel in Parliamento praedict. convinci tunc iisdem manucaptores concesserunt quilibet eorum per se concessit tam praedict debitum quam omnia damna castag c. praefat. Ioh. Hunt in ea parte adjudicentur de Terris catallis eorum cuislibet fieri ad opus praedict. Iohannis Hunt levari si contigerit praedict. Thom. Gomiel debitum damnae illa praefat. Iohannis Hunt minime solvere aut se prisonae Marescall Dominae Reginae coram ipsa Regina ea occasione non reddere c. Et petiere iidem Rich. Herbert alii praedict. quod Iudicium praedict. processus super bre de scire fac prosecut in curia Dominae Reginae coram ipsa Regina revocetur adnulletur peniâ—us pro nullo habeatur Et super hoc Domini per consensum Iustitiariorum post longam maturam deliberationem cum consensu adjudicaverunt quod judicium praedict. processus super bre de scire fac prosecut in Curia dict. domin Reginae coram ipsa Domina Regina revocetur adnulletur penitus pro nullo habeatur CHAP. V. Bills passed and Judgements given without assent of the Lords Spirituall VNder Edward the third a Petition of the Commons was thus ITem wee are not willing to suffer that payment be made to Cardinalls for their juornying into France for to treat out of the Realme of England THe answer is as to the dispences of Cardinalls it seemeth â—o all the Baronage and other sages of the Kings Councell that the Commons demanded reason and for that they are agreed that it shall be so The like is there in the two Petitions of the Commons against the Clergy carrying money to Rome and Cardinall having benifices here divers Ordinances against the Church of Rome are agreed by the K. the Lay Peers Commons but all the Prelates made Protestation of not assenting or doing what may be or turne in prejudice of their Estate or Dignity The power and direction for Iustices of the peace is ordained at the complaint of the Commons by the King by the assent of the Lords Temporall And so also divers times without mention of the Lords Spirituall who indeed under Edward the 3 protested that they had not to do with matters of keeping the peace THe Commons exhibite a Petition against Procurations from Rome benefices obtained by Letters thence c. It is ordained established by the K. by the advise and assâ—nt of the Lords Temporall that no Benefice is to be had here but by guilt from the Kings Subjects c. and if that any do contrary to this Act he should incurre the danger of a praemunire given by the Statute of 27 E. 3. A Petition in these words Item that the Appeales persâ—ites accusations Iudgements had and rendered c. should be good notwithstanding the Lords Spirituall and the procuratoâ—s of the Lords Spirituall absenteâ— themselvs out of Parliament in time of the said Iudgements rendered for salvation of their eâ—tate As it is contained in a Protestation by which the Lorâ—s Spirituall and Procurators were in this present Parliament c. The King granteth it And the Protestation of the Clergy is entered as followeth For as much as certaine matters were moved in this present Parliament touching openly the crime of the Arch-Bishop of Canterbury and the other Prelates of his Province who made Protestation in the forme and words which followes IN
Dei Nomine Amen Cum de Jure consuetudine regni Angl. ad Archiep. Canterbur qui pro tempore fuerit nec non caeteros suos suffragandes Confratres Coeptis Abbates Priores aliosque Prelatos quoscunque per Baroniam de domino Rege tenentes pertinet in Parlimentum Regis quibuscunque ut pares regni praedicti personaliter interesse ibidemque de regni negotiis aliis ibi tractare consuetis cum caeteris dicti regni paribus aliis consulere ordinare statuere definire ac caetera facere quae Parliamenti Tempore ibid. incendet faciend in quibus omnibus singulis nos Willielmus Cant. Archiepiscopus totius Angl. Primas Angl. Sedis Legatus pro nobis nostrisque Suffraganeis Coep confratribus nec non Abbatibus Prioribus Prelatis omnibus supradictis potestat eorum quilibet potestatur qui per se vel procuratorem si fuerit modo presens publicè expresse quod intendimus intendi volumus ac vult eorum quilibet in hoc presenti Parliamento aliis ut pares regni praedicti more solito interesse considerare tractare ordinare statuere definire ac caetera exercere cum caeteris jus interessendi habentibus eisdem statu ordine Juris eorum cuilibet in omnibus semper salvum verum quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis alicui eorum juxta sacrorum Canonum instituta quomodo libet personaliter interesse eo propter pro nobis eorum quolibet protestamus eorum quilibet hic presens etiam protestatur quod non intendimus nec volumus sicuti de Jure non possumus nec debemus intendi nec vult aliquis eorundem in praesenti Parliamento dum de hujusmodi materiis agitur vel agetur quomodo libet interesse sed nos eorum quemlibet in ea parte penitus absentare in re paritatis nostrae cujuslibet eorum interessend in dicto Parliamento quoad omnia singula ibidem exercenda juris eorum quilibet Statu ordine in omnibus semper salvo Ad hoc insuper protestamur eorum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit nec vult quod habet processus habend in praesenti Parliamento super materiis antedictis In quibus nec possumus nec debemus permittitur interesse quantum ad nos quemlâ—bet eorum attinet futuris temporibus quomodo libet impugnentur infirmentur seu etiam revocentur Which Protestation read in full Parliament by the commandement of the King and Assent of the Lords Temporall and Commons In like manner make Protestation the Bishop of Duresme and Carlisle mutatis mutandis This was upon the occâ—sion of the appeale of Treason in the same Parliament commenced by Thomas Duke of Glâ—ucester and others against Alexander Arch-Bishop of Yorke Robert de Vere Duke of Ireland and others But although they thus absented themselves they made no proxy at this time to assent in their room as afterwards they agreed to do in cases of Iudgement of death But the first use of such proxies is in the 21 oâ—Rich the 2. neither at all are such proxies or assent of the Bishops For under H. 5. the Earle of Salisbury by Petition in the nature of a Writ of Error shewed that the Attaiâ—der of John the late Earle father to the Pâ—titioner in the second of H. the 4 might now be reversed and amongst the errors assigned one was that he had been adjudged sans assent in Parliament but it was in Parliament now adjudged that it was no error The Arch-bishops of Cant. and Yorke for themselvs their Clergy make Protestation not to consent to any Statute made in this Parliament Quatenus ea in restrictione potestatis Apostolicae aut in eversione Ecclesiae dignitatis tendere dignoscuntur which at their request was inrolled in Parliament yet an Act passed at that Time and is publique against the Popes giving of Benefices by way of provision in England In the beginning of Queene Elizabeths raigne when divers Acts passed touching matters of the Church as Service and Sacraments and Church-possessions c. the Bils passed Dissentientibus All the Bishops as it is especially entered in the Iournals with particular enumeration of all their names Whereunto may be added that assertion of the Iudges in that deliberation had under Henry the eight touching the power Royall in the Church as the words were reported That our Lord the King may well enough hold the Parliament by himselfe and all his temporall Lords without the spirituall Lords c CHAP. VI Their appointing Judges out of themselves for examination of Judgements and delayes of other Courts THis is given them by a Statute of Edward the third in these words Likewise for that many mischiefes are come c. That divers places as well in the Chancery as the Kings Bench Common pleas the Exchequer the Iustices assigned and other Iustices to heare and determine the Iudgements wherein have been delayes sometimes by difficulty somtimes by divers opinions of the Iudges and sometimes by other occasions it is assented established and agreed that of the Commons before said in every Parliament there be one Prelate two Earles and two Barons that shall have Commission and power of the King Which priviledge is now taken away from the Prelacy by Act of Parliament Anno 17. Car. to heare by Petition to them delivered the plaints of all those which complaine of such delayes or grievances done to them and that they have power to cause to come before them at Westminster or in any other places where the parliament shall be holden and the Courts of records and processes of such Iudgements as are delayed and shall cause to come before them the same Iustices who shall be there present to heare the cause and their reason also heard by good advice of them the Chancellor three Iustices of one Bench and of the other and others of the Kings Councell And in the same Parliament accordingly the Arch-Bishop of Canterbury the Earles of Arundell and Huntington and the Lord Woake and the Lord Basset were assigned to the same purpose and although the Iustices Chancellor Treasurer Privy Seale and others had before taken Oath c. Yet it was ordained that those of the Baronage assigned shall give them a new Oath and increase and diminish the Ministers of Iustice as they shall see Cause CHAP. VII Their Tenants of ancient tenancies being discharged of paying the charges of Knights of the shire THe Commons exhibite a Petition that whereas the Tennants of the Lords that did hold by Barony and summons to the Parliament might not be discharged of paying towards the expences of Knights c.
The Priviledges OF THE BARONAGE OF ENGLAND When they sit in Parliament Collected and of late revised by John Selden of the Inner Temple Esquire out of the Parliament Rolles and Journalls Patent and close Rolls the Crowne Rolls the proceedings of the English Courts at Westminster the Register of the Arch-bishop of Canterbury and the Delegates yeare-Bookes of the Common Law Statutes other good Authorities and in such sort that frequently the words of the chiefest Testimonies are transcribed least the freedome of the Readers Iudgement might be other wayes prevented by short Collections The recitalls of the French Records in the 4th Chap. also newly translated into English for the benefit of others as well as the Students of the Lawes of England Quo communius eo magis bonum quod est justum LONDON Printed by T. Badger for Matthew Wallbanck and are to be sold at his shop at Grase-Inne Gate 1642. The Introduction by way of Table or Index to the Chapters following contained in this Treatise PRiviledges are speciall Rights belonging to the Baronage of England In which name are comâ—rehended all those who as Magnati proceres regni by common right are summoned to every Parliament wherein also they have place and voyce as incident to their Dignities and what things doe concerne them eâ—ther as they are one Estate together in the upper House or as every one of them is privately a single Baron As for the prelacy who had heretofore the first place in the summons viz. Praelati magnates c. they have now lost all their Priviledges oâ— sitting in Parliament and of bearing of any secular Offices in the Kingdome they are disabled by act of this present Parliament 17. Car. 1641. For Priviledges of the first kinde CHAP. TEstimonies are hereby collected touching CHAP. 1. Their proxies and making of proxies 1 CHAP. 2. Their proceedings in Suits as well for followers as for themselves during the Parliament 7. CHAP. 3. That none of them bee subject to bee questioned before the lower House onely 9. CHAP. 4. Their Jurisdiâ—â—ion in matters of offences as well capital as not capitall Errors out of the Kings Bench 10 CHAP. 5. Their passing of Bills and giving of Iudgements heretofore without any assent of spirituall Lords 120 CHAP. 6. Their appointing of Iudges out of themselves for examination of delaies of Iudgements in other Courts 127 CHAP. 7. Their Tennants of ancient Tennancies bring discharged of paying the charges of Knights of the shiere 129 For Priviledges of the second kinde of which also some are communicated to Baronesses The heads of the Collections are CHAP. 1. FIrst touching Oathes and Protestationt upon Honour 131 CHAP. 2 Tryall by Peeres 142 CHAP. 3 Scandala magnatum 155 CHAP. 4. Processe against them in English Courts Proceedings by Bill and Answere id CHAP. 5. Their number of Chaplaines is qualified 158 CHAP. 6. Their retayning of strangers 159 CHAP. 7. Clergy without reading id CHAP. 8. Their libertie of hunting in the Kings Forrests 161 CHAP. 9. Amerciaments of them id CHAP. 10. No Processe in a civill account to bee awarded against the body of a Baron 163 CHAP. 11. A Knight to bee returned upon every pannell where a Baron is party 16 CHAP. 12. No day of grace against a Baroâ— of Parliament ib. CHAP. 13. Making Deputies of places of Trust committed to them without words of the special power 167 BEsides these they have some Rights which are so commonly knowne that there needs no particular mention of them as their interest in making or repealing of Lawes or the like and divers others may perhaps be found which have not been oblivious in the late search made for them but of these particulars before mentioned according to the order in which they are described such store as are here collected doe follow First of the speciall RIGHTS WHICH Concerne them as they are one estate in the upper House of Parliament CHAP. I. Of Proxies of the Lords of Parliament VPON the summons of the Parliament licence of absence being obtained and the same licence as usually it being provided that a proxie bee made the Baron so licensed may appeare onely by that proxie to whom his voyce is so committed although his Writ bee Quod personaliter interâ—it and so also without licence upon sicknesse or such inevitable cause of absence The first mention of Proxies that occurres in the memories of our Parliaments is of Carlile under Edward the first where the words are Quia omnes Praelati Milites alij de communitate Regni tunc plenariè non venerunt receptis quibusdam procurationibus Praelatorum qui venire non poterant adjornantur omnâ—s qui summoniti sunt ad Parliamentum usqué ad diem Mercurij proximum sequentem ad horam primam And in a Parliament held at Westminster under Edwaâ—d the second the Biâ—hops of of Durham and Carlile remaining upon the defence of the marches of Scotland were severally commanded to stay there And in the Writ this clause was ordered to both of them Sed procuratorem vestrum sufficientèr instructum ad dictos diem locum mittatis ad consentiendum quod tunc ibidem per dictos praelatos proceres contigerit ordinari And the like Testimonies are afterwards under the same King for allowance and making of proxies by the name of procuratores sufficientes And in succeeding times the Testimonies of them downe to this day are most frequent But two things are most especially observable touching them 1. THat although the generall proxies were admitted yet when the nature of the Parliamentory businesse required more speedie and full advice a clause was inserted into the summons to premonish the Baron summoned that his proxie should not bee admitted unlesse he were compelled to absent himselfe by most inevitable necessity So was it in the Writs of summons under Edward the third to the Parliament held for advice touching the voyage of the King of France into the holy Land every Baron having these words in his Writ Scientes pro certo quod nisi evidens manifestus id exposcat non intendimus procuratores seu excusatores pro vobis admittere ea vice propter arduitatem negotiorum praedictorum And likewise under Richard the second the summons to the Arch-Bishop of Canterbury and the rest had these words Et 〈◊〉 nullatonus amittatis â—ne quid absit per vestram absentiam quà m necessitate infirmitate tunc â—etenti fueritis quòd aliqualiter illuc laborare non poteritis nullo modo excusatum habere volumus ista vice expeditio ne potior nostrâ—rum praedictorum retardetur seu aliqualâ—ter deferatur And divers other Examâ—lâ—s are for personall appearance and excâ—uding Proxies 2. That the course of the elder time was not that Barons onely were made Proxies in the upper House as at this day but other men also of low condition and this hath beene very frequently in the case of Bishops and Parliamentory Abbots
the Bishop was arraigned and upon question how hee would bee tried dicebat quòd ille est membrum Dom. Papae quòd ipse ab ordinario suo viz. venerabili patre Domino Simono Archiepiscopo Canterburi Angliâ— primat respondere non potest Et super hoc idem Archiepiscopus prasens hic in Curia petit quòd dictus Episcopus Eliensis de feloniis prâ—dict sibi impositis hic coram laico Iudice non cogatur respondere ut sciatur inde rei veritas per inquisitionem patriae c. praecept est vicecomiti Huntingdon quòd venire faciat coram Dom rege in Octab sancti Mich. c. ubicunque c. 24 de Iust. de Somersham idem dies datus est Episc c. Ad quem diem coram Domino rege venit praedict. Episc in propria persona similitèr Iurat veniunt qui electâ— tricati jurati onerati si idem Episc de assensu prâ—dictorum Rand. Walter de recept. eorundem sit culpabilis nec non dicunt super sacramentum suum quod idem Episc est in nullo culpabilis sed dicunt quod idem Episc. post feloniam receptavit ipâ—os apud Somersham sciens ipsos feloniam fecisse Ideo inquiratur de bonis catallis Terris tenementis c. Et super hoc praedictus Archiepisc presens in curia petit ipsum tanquam membrum Ecclesiae sibi liberari ei liberatur oustodiend prout decet and Writs were sent out to the Sherifes of all Shires where hee had goods or Lands to certifie them for the Kings benefit and in this Record it is observable that the Iurors were tried which proves that the Bishop had his challenges to them at his tryall About the beginning of Henry the fourth Thomas Merke Bishop of Carlisle was indited of Treason before Thomas Earle of Warwick and other Iustices of Oyer and Terminer in Middlesex the Bishop standing before committed to the Tower for the same offence Et hoc Justiciar praedict. recognit mandatum est constabulario Turris praedict. vel ejus locum tenenti quod corpus ejusdem Episcop habeant vel alter eorum habeat coram praefatis Iusticiariis apud Turrim praedictam die Mercurii ex tunc proximo sequente ad respondendum Domino Regi de proditionibus c. And the precept est vicecomiti London quod tunc venire faciat coram praefat. Iusticiar apud Turrim praedict. tam Aldermannos cives quam alios probos homines de vicineto Warder praedict. 1. Baynards Castle Dougate qui praefat. Episc. nulla affinitate attingunt ad faciendam tunc ibidem deliberationem de dicto Episcopo prout moris est secundum legem Regni Angliae ad quem diem locum the Bishop is brought before them and a Writ comes from the King to the said Iustices reciting that licet in statuto apud Westminsterium nuper edito inter caetera continetur quòd nullus Archiepiscopus nec Episcopus coram Iusticiar nostris occasione alicujus criminis impetatur absque speciali praecepto nostro quousque aliud remedium inde foret ordinatum de advisamente tamen consilii nostri vobis mandamus quòd si aliqui Archiepiscopi vel Episcop coram vobis impetiti vel judicati existunt tunc ad deliberationem ipsorum procedatis prout de Jure secundum legem Regni nostri Angliae fore videritis faciendum statuto praedicto non obstante I este me ipso apud Westminsterium 28. die Januar. Anno Regni nostri primo THis Writ being read in the Court the Bishop was demanded how he would be â—ried Hee first stands upon the priviledge of the Church to whom the Iustices reply that the offence was so high that hee must answer them with protestation of saving the Liberties of the Church hee pleads not guilty Et inde de bono malo ponit se super patriam inde fiat inde Iurat hoc instante die c. The Iury findes him guilty but the Iustices being not advised of their Iudgement returne him to prison the Record was afterward removed in the Kings Bench and the Bishop renders himselfe to the prison of the Marshallsea and then being asked if hee had any thing to shew why Iudgement should not bee given on him hee pleades his pardon and it is allowed him To these presidents a Learned Iudge in Queene Maries Time saith divers were agreeable Among which are specially to bee accounted those of the Bishop of Rochester in the time of Henry the eight and of Cramner Arch-Bishop of Canterbury under Queene Mary both tryed by common Iuries neither is there any example extant from the first memory of a legall tryall of Bishops which is under Edward the second that testifieth any Tryall by Peeres belonging to a Bishop and accordingly hitherto it was taken cleerely by that learned Iudge of Queene Marie's time that no ancient Statute speaking of tryall by Peeres hath beene put in ure to extend to a Bishop or Abbot although they enjoy the name of Lords of the Parliament for they have as the words are this name of Bishop or Abbot ratione Officii being not chosen in Parliament in respect of their Nobility but in respect of their possessions the ancient Baronies annexed to their Dignities according to which there are divers Presidents whereof one was in the time of H. the 8. where also it is as judiciously modestly affirmed by a most learned man of this Kingdom that the spirituall Lords enjoy all legall priviledges as the temporall Barons do saving only this tryall by Peeres That which may be here objected out of the Statute of the grand Charter wherin every man ought to be tried by his Peeres id est Juditium Parium suorum or out of the Statute of 25. E. 3. by which all treasons are to bee tried by men of the same condition of which the offender is may easily be answered for both these anceint Statutes are now to be interpreted as it is clerely taken in continuall practise and in the books according to the known use of the legall proceedings and not by literall interpretation of the words as it is plainly seene in both of them For all Gentlemen Esquires Knights Batchellors and Bannerets and at this day Bannerets are accounted Peeres not only amongst themselves but also to all other men of the lowest condition which yet cannot be out of the force of the word only the like appeareth in that non amercientur Comites vel Barones nisi per pares suos And it is shewed in the title of Amerciaments wherein that which the Statute referres to Peeres is done so by Iudges And this of Bishops referreth to those Statutes is only to be adjudged according to use and practise which is the best interpreter of the Statutes and not by the meere Interpretation of the word Peeres And it is most likely that
proces out of the Chancery Kings bench or otherwise where the returne is Coram Rege CHAP. IX Amerciaments IN case of Amerciaments of Barons of Parliament upon nonsuits or other Iudgments ending in misericordia there is a speciall course both for the summe and the way of assertaining of it which differs from the Amerciaments of coÌ„mon persons For the summe the Amerciaments of an Earle or Spirituall or Temporall Baron is equall that is 5 l. of a Duke 10 l. and the sessing of this is by the Kings Iustices before whom the action dependeth The Iustices in this place supplying the roome of Peeres by which according to the grand Charter they are to be amercied as exprâ—ssly it is affirmed in the Iudgement under H. 6. against the Earle of Northumberland where the words of the Iustices are Insomuch as an Earle is a Peere of the Reâ—lme he shall be amercied by his Peeres according to the Statute and therefore we put not the Amerciament iâ— ceâ—taine And thence and thus is the grand Charter to bee understood that saith Câ—mites Barones non amerâ—ientur nisi per Pares suos but continuall usage hath thus as before is shewed interpreted that priviledg and so hath the practise been and thence was it under E. 2. a writ was directed to the Iustices of the Common pleas that they should not amerce the Abbâ—t of Crowland tanquam Baro because he did not hold per Baroniam aut partem Baroniae For this of Amerciament while there were no other Titles of greater Nobility but Earle and Baron which was in the time of E. 3. who created the first Duke in England as Rich. the 2. the first Marquesse and H. 6. the first Viscount And the Amerciaments of the Lords of the Parl. were all at 5 l. whence also is generally so affirmed in the Statutes of Ireland under H. the sixt that every Lord that is called L. of Parl. in all places aswell personall as reall in which amerciaments do ly shall be amercied at 100 s. But when other dignities were made and it seemes according to the proportion of the releifes paied by those new dignities for a Duke is to be amercied at double the summe of an Earle that is 10 l. as his reliefe is double which is 20. CHAP. X. No processe in civill actions to bee awarded against the body of a Baron NO baron of the Parliament or Baronesse is to be arrested by Capias upon action of debt account trespasse or the like but they are to be distrained only and pay issues retorned for an apparance The reason of this was anciently because the Capias in such Cases goes out only upon nihil habet retorned by the Sheriffe which could not be for a Baron who was ever to be supposed to be seised of his Barony by which he might be distrained and lose issues Although the reason failes now in those that have not more than the names alone of their Baronies yet the same Law still remaines but this limited to actions between party and party and party for in cases of rescues felonies or the like where the offence is immediatly to the King A Capias lies against a Baron of the Parl. And it is as other priviledges which are legal in England limited also to the Barons of the Parl. of England for it appeares under R. 2. that in an action of debt a Capias was awarded against the Countesse of Ormond being one Irish Baronesse and participating of her husbands dignities as our Ladies in Eng. neither can a Baron of Ireland be tried here by the Peeres of Eng. for they are not his Peers no more than the L. Zanchar might being a Baron of Scotland who was indicted and arraigned only by the name of Rob. Creighton Esquier and upon this reason that he was no Baron of Parl. tried by a common Iury Thence it is also that an Earle Baron or Duke of France comming into Engl. by the Kings safe conduct shall not in any legall proceedings be stiled so as appeares in the time of Edw. the 1. in the case of the E. of Richmond being then Duke of Brittaine and in the case of Sir John Douglasse under Edw. the 4. And the reason why S. Gilbert Humfravill in the time of Edw. the 3. was legally to have his title in writs of Earle of Anguish was because that in that age the E. of Anguish by that name was L. of the Parl. as it is expresly noted in our year-books And this difference it seemes hath beene here between Temporall dignities and Spirituall that in regard the temporall State of England was ever held as severed and distant from other States not at all communicating with them in civill government Therefore forraigne dignities which are of the Civill part of States had no respect given them as appeares in the examples already brought But on the other side in dignities Spirituall because there was anciently through Christendome supposed an unity in the Church So that England with forraigne Nations and they with England as membeâ—s of one body had a mutuall reference to each others Countrey was legally valued as Bishops in England as may be seen in that case of the Bishop of Vâ—recht for this is the right Name though it be printed Vrston under E. the 3. where being made Bishop of Vtretcht makes a Prebend of England So the Title of Cardinall was usually given in legall proceedings to such as had that dignity in England whence also the Archbishop of Raguse being parson of a Benefice in the Bishoprick of Carliste under King John was it seemes to have been accounted here also an Archbishop for dignity though not for Iurisdiction CHAP. XI A Knight to be retorned upon every pannel where a Baron is party IN every Iury impannelled between any Baron of Parl. and other person whatsoever one Knight at the least is to be returned which failing the array may bee quashed by challenge A testimony hereof aswell for spirituall as temporall Barons is frequent CHAP. XII No day of grace against a Baron IF a Baron of the Parl. be plaintif or defendant in any action and the plaintife or defendant pray a day of grace he shall not have it against him and this is expresly affirmed in the books CHAP. XIII Making deputies of places of trust committed to them Oâ— late years it was agreed in the case of Gilbert Earle of Shrewsbury that whereas the office of Steward-ship was granted to the Earle of Rutland without giviâ—g power to make a deputy and this by Q. Eliâ—abeth that â—et he might exercise the same Office by Deputy by reason of the nâ—câ—ssity that is supposed in the lawe to be of the Eaâ—lâ—s attendancâ— upon the King and the Govâ—rnment of the Kingdome the same reason is it seemes for all Barons FINIS U. 8 Dyer Parl. 14 Eliz. Dyer par â—9 43. Eliz. l. â—ac c. Rot. Parl. 18.