Kingdom hath and in all times ever had by the Common Law Jurisdiction over every Subject in the same Degree of Nobility that was resident within the Verge and local extent of his Jurisdiction This Power and Authority of his being Universal he was never bound to take notice of the Priviledges and Immunities of any particular Orders and Societies of Men if they themselves would not take advantage of it so that this same Previlegium Clericale was no absolute exemption from Secular Authority so as to make all Proceedings before a Secular Judge to be Coram non Judice but the end and design of it was that when any Clergy-man was Arraigned as a Malefactor before a Secular Judge then in some Cases before he suffered the punishment that was due by Law he was delivered to his Ordinary to make his Purgation if he could then his Ordinary discharged him but if he could not then he was Degraded and sent back to the Temporal Magistrate to suffer punishment according to his Demerits That the Proceedings of a Secular Judge upon one within Holy Orders are not Coram non Judice might be proved both out of Civilians and Canonists but that would not be much to the purpose if I should and therefore I shall forbear only shall take notice of a Passage in Dr. Ridley's View of the Civil and Ecclesiastical Law pag. 86. If a Clerk says he be first Arrested by his Spiritual Judge and found guilty he shall be Degraded and delivered over to the Temporal power but if he be first Arrested by the Secular Magistrate and Tryed and found Guilty he shall be delivered to the Bishop to be deprived and then delivered back to punishment The same in effect he saith p. 158. whereby he doth allow that according to the Ecclesiastical Law the Temporal Judges were allowed to have Jurisdiction over men within Holy Orders But let him or any of the Civilians or Canonists say what they will it 's no great matter we must consider what the Law of England saith in this case for the Canons never were in force in England any further than they were voluntarily received and so transmitted as a common Usage or Custom to Posterity by Tradition and so became part of the Common Law or else were confirmed by Act of Parliament and so became part of our Statute-Law of which more hereafter And that by the Law of England the Proceedings against Ecclesiastical Persons before a Secular Judge are not coram non Judice I prove by these Cases An Appeal of Robbery was brought against a Monk who was tryed and acquitted upon this the Abbot and the Monk brought a Writ of Conspiracy against divers who procured and abetted the said Appeal whereupon the Defendants appear and go to Tryal but the Abbot and Monk get a Verdict and Judgment to recover 1000 Marks damages Co. 2. Inst. 638. But it is certain that a Writ of Conspiracy cannot lye except the Plaintiff had been Legitimo modo acquietatus and that he could not be if the whole Proceedings upon the Appeal had been Coram non Judice So if at the Common Law a Clergy-man had been Indicted of Felony and had confessed the Fact in Court he could not have had the benefit of his Clergy because the end of granting it was that he might make his Purgation before the Spiritual Judge but that he could not after he had confessed the Fact in Court Co. ubi supra Stamford 124. And yet no Confession coram non Judice is conclusive All which doth evidently prove That the allowance of those Canons which gave the first birth to this Immunity did not trench to the prejudice of Temporal Judges so as to bar them of that Jurisdiction which they have over every Subject by the Common Law And the Nature of it will further appear if we take into consideration the Third Particular which is this III. In what Cases the benefit of Clergy was allowable and in what not This Immunity was allowed in England long before any Statute was made for its confirmation it was allowed onely in such cases as were judged reasonable but never in full satisfaction to the demands of the Clergy Kellaway 7 H. 8. 181. b. But the Clergy as their Custom then was were willing to improve any Concession to their best advantage according to the common Proverb When they had got an Inch they would take an Ell. And to that end did with a great deal of fervency and zeal no doubt insist upon their Priviledge as an absolute Exemption from all Temporal Jurisdiction to all intents and purposes extending to all Crimes and Offences whatsoever and thundring out Excommunications and such like Maledictions forced some people for quietness sake to comply with them as appears by Bracton lib. fol. 123. to the great incouragement of all sorts of Villanies and Outrages and consequently to the grievous oppression and vexation of the Subject for this assurance or at least hopes of Impunity let loose the Reigns of Rapine and Violence and was the most effectual course that could be taken for the dissolution of any Government and the utter desolation and ruine of any Country whatsoever To give a check to this exorbitant Licentiousness strict care is taken by the Judges and Magistrates that Justice be duly executed and Offenders legally punished and therefore the Privilegium Clericale not to be allowed in any Case otherwise then according to the ancient Custom Hence were the seeds of Envy and of a very lasting Discord between Church and State sown nothing but Animosities Rancour Revenge and Hatred is the Subject of the History of those times especially the time of Thomas Beckett Bulls Citations Excommunications on the one side and seising of Temporalities Imprisonment and Banishment on the other side were the Complements that people were entertained with in those days These Differences grew to such a height that although through a formal Reconciliation both Parties seemed to be pacified yet the Root of the Matter remaining untouched the Fewds break forth and the Matter must be decided by Act of Parliament And so I shall by the construction of these old Statutes and other Precedents give a direct Answer to the Question 1. It is undeniable that Privilegium Clericale was never allowed to any that were Guilty of Crimen laesae Majestatis The first Statute that we find among the Printed Statutes which doth directly speak of it is Westm. 1. c. 2. which is declarative of the Common Law by the express words of the Statute Solonque le Custom avant ces heures use but faith not one word of Treason only allows the Priviledge in Cases of Felony Si Clearke soit prise pur rette de Felony Wherefore this Statute being in the Affirmative determines nothing concerning Treason but leaves that as it was before at the Common Law Not long after the Clergy renewed their Complaints and among the rest complain that Secular Judges have passed Judgment
the King and by their Authority in Paâ—â—â—â—â—â— Awarded the said Earl of Northumbeland and the Lord Bardolfe not appearing upon their Summons to stand Convicted of High Treason c. Here we see all was done by the Temporal Lords from the first beginning of the Process until the Judgment and yet it is said to be Awarded by the Peers in Parliament although the Spiritual Lords are not so much as once mentioned and consequently were not present at any time whilst that Matter of Treason was handling To Enumerate all the Instances of this Nature and to Transcribe all the Records of Attainders in Parliament where the Names of the Lords Spiritual are left out which infers of necessity that they were absent would swell out this Treatise into a greater Bulk than either I intend or then is in its self convenient These are sufficient to prove that Obedience was yielded to those Laws and Constitutions of this Land which were made for this purpose I will mention one Precedent more and that is the Earl of Strafford's Case 16 Caroli The Bishops declined their Suffrages on the Tryal of the Earl of Strafford according to the provision of the Canon Law and the constant practice to this day says Baker 478 and therefore withdrew But they desired a Protestation that their Absence should not prejudice them of that nor of any other Priviledge competent to them as the Lords Spiritual in Parliament might be entred which was done accordingly It may be objected That this is not to be made use of as a Precedent That I answer is true as to the Matter of the Charge and the Nature of the Crime that he was Impeached for no man must by colour of that Act be Adjudged a Traytor that doth those things which the Earl of Strafford did but as to the course of Proceedings and all other Circumstances of the Method it is well enough for nothing was done in that but what was warranted by Precedents and constant practice in Parliament And this Difference doth appear from the Proviso in the Bill of Attainder for that is no more but this That no Judge or Judges shall hereafter interpret any Act or Acts to be Treason in any other manner than he or they should or ought to have done before the making of this Act and any thing contained in this Act to the contrary notwithstanding So that the Proviso extends only to the Crimes but not at all to their manner of proceeding From the consideration of these things That Allegation which is made by some that they were wont to sit till the final Question Guilty or Not-guilty were put will plainly appear to be altogether groundless Because First If they have not Parity sufficient to Entitle them to any Jurisdiction in Cases of Life and Death as I have endeavoured to shew that they have not in the former part of my Discourse then it is evident that they cannot exercise any Judicial Power at all neither in things praeliminary to the Judgment the Judgment it self nor in things subsequent to the Judgment all which do fall within the Conusance of Judicial Power and do belong to the Office Power and Jurisdiction of a Judge For so saith Magna Charta Nemo imprisonetur c. Nisi per legale judicium parium suorum and yet Imprisonment is a thing praeliminary to Judgment The Office of a Judge is to hear first and then determine Oyer and Terminer but if any man be not duly qualified to be a Judge then he hath as little power to hear the Cause or Act any thing in it as to determine it Secondly The Constitution of Clarendon saith Debent interesse Judiciis Curiae Domini Regis quousque perveniatur ad diminutionem Membrorum vel ad mortem This must either be understood to comprehend all precedent and praeliminary things which do relate or tend ad diminutionem Membrorum c. Or else if we take the words strictly and literally we must understand the meaning of that great Assembly to be onely for the Exemption of Prelates from doing the Office of Executioners which is Non-sense By Diminutio c. therefore or Mors we must understand things conducing and tending ad diminutionem c. or ad mortem The Constitution at Westminster is much plainer Non debent agitare judicium sanguinis the meaning is plainly this That they ought not to exercise any Judicial Power in Cases of Blood But a man may exercise Judicial Power agitare Judicium or do the Office of a Judge in a great many things that are both precedent and subsequent to the Judgment as Awarding of Process receiving the Charge c. Therefore the Bishops ought not to have any praeliminary Vote which hath any tendency or relation to a Judgment of Death Thirdly When ever the Clergy in Obedience to these Constitutions did withdraw they left the whole Management of the Business from the beginning to the end to the Lords Temporal as appears from the Entry of the Records so it is 4 E. 3. in the Earl of Kents Case he was brought before the Counts and Barons c. for Treason In the same year the Articles were read against Mortimer and the King charged Les Counts Barons to give Judgment upon the said Articles The same was in the Case of Simon de Bereford Matravers and others in that year 11 R. 2. the Prelates departed from the House at the first Motion about the Appeals and did not stay so much as till the Articles were read In the Earl of Northumberlands Case it appears they had not so much as one Vote from the beginning to the end of the whole Proceedings and the sole Management of the Case was by the Award and Judgment of the Lords Temporal In the 21 of R. 2. the Prelates gave their Opinions generally that Pardons were revocable but after they had done they departed the House and would not consent so far to the Death of a man as to give a particular Vote when the Question was put Whether the Pardons of the Duke of Gloucester and the Earls of Arundel and Warwick were revokable Baker 161. And indeed if they should have been permitted to Vote about their Answers c. it would quite frustrate and elude the Design of the Prohibition for somewhat or other might happen to be put to the Vote in their presence concerning the Answer Replication c. or concerning the Form and Method of Judicature upon which the whole Business would depend and by the Voices of the Spiritual Lords that Vote it might pass against the major part of the Temporal Lords and so the whole Business lost and the Expectation of Justice frustrated so that it is highly reasonable that if they be absent at all they should be absent Dum de hujusmodi materiis agitur Having thus by Reason and Authority established the Truth of those Propositions which I at first laid down I shall now examine the Strength of those
of Glocester and others to kill the King he was thereupon Arraigned before Thomas Earl of Warwick and other Justices of Oyer and Terminer in Middlesex and Tryed by a Common Jury and found Guilty afterward the Record was removed to the Kings Bench and the Bishop put into the Marshalsea and afterward he is brought to the Bar and being asked if he had any thing to shew why Judgment should not be given on him he pleads his Pardon and it is allowed See the Record of his Attainder Hill 2. H. 4. Coram Rege Rot. 6. Co. 2. Inst. 636. 3. Inst. 30. But to come somewhat nearer our times Fisher Bishop of Rochester is Indicted Arraigned and Tryed by a Common Jury for speaking Treasonable Words against an Act of Parliament made the 26 of H. 8. making the King Head of the Church and abolishing the Authority of the Pope of Rome and was Condemned at the Kings Bench and Executed Br. Tit. Tryal 142. Inquest 99. 27 H. 8. The last that I shall name is that Holy and Renowned Martyr Archbishop Cranmer who was Tryed with Lady Jane Gray and her Husband Lord Guilford and two younger Sons of the Duke of Northumberland Ambrose and Henry at Guild-Hall before the Lord Mayor and Judges the Third Day of Nov. in the First Year of Queen Mary's Reign 1553. Where they were all found Guilty and Condemed of High Treason None of these were Executed upon this Judgment except Lady Jane Gray and her Husband who upon a Second Miscarriage of her Father the Duke of Suffolk in joyning with Sir Thomas Wyat to oppose King Philip's Landing were Executed in the Tower the 12th of Febr. following On the 20th of April following Cranmer Ridley and Latimer were adjudged Hereticks at Oxford and Degraded by Commission from the Pope and a little after Cardinal Poole succeded Cranmer who was burnt as a Heretick 14th of Febr. 1556. All this is known to those that are acquainted with the Transactions of those times and therefore it is evident both from the Authority of Learned Men and the Practice of all Ages in all times that Bishops have been Tryed by Common Juries And sure it was not without ground that so Grave and Judicious an Author as Camden should say That the Spiritual Lords enjoy all the Priviledges that Temporal Lords do saving only the business of Tryal by Peers Having thus proved what I before asserted concerning the Tryal of Lords Spiritual I shall in the next place consider the Answers that are generally made to these Arguments and Authorities Those I observe to be principally two 1. They will very well agree with those Authors that say Bishops are not to be Tryed by Peers but then say they it was not for want of Peerage but because they would not be put to answer for any Capital Crime before Lay-Judges 2. They say that if it happened that at any time a Bishop was Tryed by Lay-men and by Common Juries then they were first Degraded If there were no more to be said for this the very reading of the fore-mentioned Precedents would easily make appear the weakness of these Objections for it appears by the very Records that their Priviledge of Clergy was insisted upon and that with a great deal of Zeal and Fervency insomuch that the Passage of the Bishop of Hereford is a thing taken notice of in a special manner by all the most Famous Historians of this Nation and it is generally agreed that about Fourteen Bishops came with their Crosses erected to the place of Judgment threatning all people with Excommunication that offered to oppose them in that which they intended and yet we find that he was not delivered till after he was found Guilty And it 's manifest from all the other Precedents that they were found Guilty and most of them Condemned to die upon the Verdict of Twelve Lay-men But as to the business of Deprivation you may observe that throughout the whole Records they are named Bishops as Episcopus Herefordensis Eliensis and Roffensis which could not be if they were Degraded for then these Titles were not rightful additions in Law And although it being evident that so it was de facto is a sufficient Answer to the Objections yet for more abundant satisfaction I shall be somewhat more large in this and shall shew that so it ought to be de jure In handling this Point I shall consider these following Particulars 1. To whom this Privilegium Clericale or Exemption from Temporal Jurisdiction ought to have been allowed 2. I shall consider somewhat of the Nature of this Exemption and Immunity and how far they were exempted from Secular Power 3. I shall examine in what Cases it was allowed and in what not 4. At what time 5. Upon what account it was that Clergy-men were delivered to their Ordinaries in those Cases where the benefit of Clergy was not allowed And lastly I shall shew at what time regularly they were Degraded I. As for the first It was generally allowed to all within Holy Orders whether Secular or Regular and in an equal Degree to all such not respecting Superiority or Inferiority The poor Country-Parson had as good and as large a Right to it as my Lord Bishop This is proved first From the Canons that gave this Immunity the first I think were made by Pope Gaius and those run Clericus coram Judice Seculari Judicari non debet nec aliquid contra ipsum fieri per quod ad periculum mortis vel ad mutilationem membrorum valeat perveniri c. See Linwood Tit. de foro compet c. contingit Polichro lib. 4. c. 24. of Pope Gaius and Onuphrius in his Comment upon Platina in the life of that Pope Therefore seeing he cannot take any advantage of these Canons except as Clericus and must claim it by the same Name that inferiour Priests do he must have it in the same Degree But that which is a great deal stronger than the Construction of Canons is the Confirmation that is made by our Acts of Parliament this Priviledge is granted to all that are Clerici or Clerks in French and Clergy-men in English and to all such indefinitely without distinction or respect of the several Ranks and Degrees of men within Holy Orders So you will find it in Marlebridge c. 28. West 1. c. 2. Art Cler. c. 15. 25 E. 3. c. 4 5. 4 H. 4. c. 3. and the rest So that without all question a Bishop can pretend to no more Priviledge than any other Clerk causa qua supra This I thought fit to observe first because that every Authority and Precedent that I shall bring of an inferiour Priest is as strong for my purpose as if it were of a Bishop II. As for the second Point I shall not need to be very large upon it but shall observe one thing which will be serviceable to my present purpose and that is this That every Temporal Magistrate and Judge of this