death and broke the Oath he had taken to observe them because by them among other things the Bishops were excluded from Iudicature in Cases of Bloud or for the quite contrary reason among others because this Service of the King in his Courts impos'd on them by virtue of their Baronies was look'd upon by him as a violation of the Privileges of the Church and a badge of Ecclesiastical Slavery which by all means he desir'd to cast off And if the latter be the true Reason I leave it to the impartial Reader and even to the Authour of the Letter himself upon second thoughts whether he have not widely mistaken both the Occasion and Meaning of this Law 2. Let us consider the plain Sense of the words according to the true reading of them The Authour of the Letter hath made use of the most imperfect Copy viz. that in Matt. Paris I cannot tell for what reason unless it be that in the last Clause in Iudicio is there left out which is put in in the Copy extant in Gervase and in the Vatican Copy and in several MSS. in all which it runs thus Et sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus usque perveniatur in judicio ad diminutionem membrorum vel ad mortem Now here are two things to be distinguished 1. Something expresly required of the Bishops as to their presence in the King's Courts viz. that they must attend as other Barons and sit together with them and therefore it is expressed twice Et sicut caeteri Barones in the beginning of that Clause and cum Baronibus again after and debent interesse in the middle And can any one soberly think that the meaning of all this is they must not be present in cases of Bloud No the Constitution saith they ought to be present as other Barons and sit with other Barons in the Trials of the King's Courts And yet the Authour of the Letter doth to speak mildly very unfairly represent this Constitution as if it did forbid the Prelats to be at all present in the Iudgments of the King's Courts in Cases of Bloud and that in express words For speaking of the Constitutions of Clarendon he hath this passage And one of these Constitutions was that the Prelats of the Church should not interesse Iudiciis Curie Regis be present at the Iudgments given in the Kings Courts Whereas this Constitution as he himself cites it afterwards runs thus debent interesse Iudiciis Curie Regis quousque c. they ought to be present in the Iudgments of the King's Courts till it come to loss of Members or Life So that this Law expresly says that they ought to be present in the Iudgments of the King's Courts till it come c. And when it comes to loss of Members or Life it doth not say as the Authour of the Letter affirms that they should not be present then nor do the words of the Constitution imply any such thing but only require as I shall evidently make appear their presence so far and when it should come to Sentence leaves them at liberty to withdraw in obedience to the Canons of the Church which they pretended themselves bound in Conscience to observe And this is the true Reason why among the 16 Constitutions of Clarendon whereof 10 were condemned 6 tolerated but none approv'd by Pope Alex. III. this 11. was one of the 6 which escaped with an Hoc toleravit this the Pope was content to tolerate because in the last Clause of it there was regard had to the Canons of the Church Of this misrepresentation of the Constitution under debate though it might have deserved a more severe animadversion I shall say no more because I have no design to provoke the Authour or any body else but onely to convince them 2. Something allowed to the Bishops as peculiar to themselves viz. That when the Court hath proceeded so far in judicio in a particular Trial for before it is Iudiciis in general that Sentence was to be given either as to dismembring or loss of life then they are at liberty but till then they are required As suppose Charles V. had required the Protestant Princes to attend him to Masse as other Princes did onely when the Mass-Bell tinckled they might withdraw would not any reasonable man understand by this that they were obliged to their Attendance till then So it is here the King commands their Attendance till it comes to such a point therefore before it comes thither their presence is plainly required by this Constitution And so in stead of there being a Statute-Law to exclude the Bishops at such Trials there is one to require their presence in judicio in the proceedings of such a Trial till it comes to Sentence All that can be said in this case is that the last Clause is not to be understood of the Sentence but of the Kind or quality of the Cause i. e. they are to be present in the King's Courts till they come to a Cause wherein a man's Life or Members are concerned But that this cannot be the meaning will appear 1. There is a great deal of difference between quousque perveniatur ad judicium mutilationis membrorum vel mortis that might have been understood of a Cause of Bloud and quousque perveniatur in judicio ad mutilationem membrorum vel ad mortem for this supposeth a Trial already begun and the Bishops present so far in it but when it comes to the point of mutilation or death then they have leave to withdraw So that this last Clause must either be understood of Execution which no one can think proper for the King's Courts or for the Sentence given by the Court which is most agreeable 2. The Sense is best understood by the Practice of that Age. For if the meaning of the Constitution had been they must not be present in any Cause of Bloud and the Bishops had all sworn to observe it can we imagine we should find them practising the contrary so soon after And for this I appeal to Petrus Blesensis whose words are so material to this purpose that I shall set them down Principes Sacerdotum Seniores Populi licèt non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis séque ideo immunes à culpa reputant quòd mortis aut truncationis membrorum judÃcium decernentes à pronuntiatione duntaxat executione poenalis sententiae se absentent Whereby it is evident that the Bishops were present at all Debates and gave Votes in Causes of Bloud but they absented themselves from the Sentence and the Execution of it It is true Pet. Blesensis finds fault with them for this But what is that to the Law or to the practice of that Age I do not question but Pet. Blesensis condemned the observation of the other Constitutions of Clarendon as well as this and in
time of the Earl of Strafford's Trial a Book being printed about the Privilege of Peers wherein this Protestation was mention'd hold was presently taken of it by Men who thought they could not compass their ends without removing the Bishops out of the House and when the Bishops insisted on their Right and could not be heard but at last were willing to salve their Right by Proxies the Lords of the Cabal prevailed with their friends to declare they would use no Proxies themselves and so by that artifice shut the Bishops out of Doors 4. The practice hath been so contrary since the Reformation that I find no manner of regard hath been shewed to it For the Archbishop of Canterbury was the first nominated in the Commission for the Trial of the Queen of Scots as appears by the Commission it self in Camden which is directly contrary to the Canon-Law Some distinguish the Bishops acting by Commission from their being Iudges in Parlament For which there is no manner of Reason with respect to the Canon-Law which is rather more express against any kind of Commissions in Cases of Bloud as appears by the Council of Toledo the Synodal Constitution and the Pope's Decretals And there hath never been any scruple about Divines sitting on the Crown-side as Iustices of the Peace when Sentence of death is pronounced nor in the Ordinary's declaring Legit or Non legit when a man's life depends upon it But which is yet more to our present purpose in the Parlament 22. May 1626. upon the Impeachment of the Earl of Bristol of high Treason 10 Bishops 10 Earls 10 Barons were appointed to examine the Evidence and upon their Report he was sent to the Tower by the whole House All which shews that there hath been no regard had to the force of the Canon-Law in this matter since the Reformation That being a Spirit lay'd long since by the Principles of our Church and it would be strange if some mens zeal against Popery should raise it again CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered II. I Now come to examine the Precedents and shall proceed therein according to due Order of Time And so the first is taken from the Saxon times viz. from Brompton's Relation about Edward the Confessour's appealing to the Earls and Barons about Earl Godwin's murthering of his Brother Alfred Here we see saith the Authour of the Letter it was onely ad Comites Barones that he appealed and they were onely to judge of it and not Bishops or Prelates I have 2 things to answer to this Precedent 1. That we have great reason to suspect the truth of it 2. That if it were true we have no reason to suspect the Bishops to be excluded 1. For the truth of the Story That there is great reason to suspect it appears in that it is the single relation of Brompton against the consent of the other Historians and some of them much ancienter and nearer to that time who mention K. Edward's charging Earl Godwin with the Death of his Brother not in Parlament but as they were at Table together at Winchester upon the occasion of a saying of Earl Godwin's upon the King 's Cup-bearer's stumbling with one foot and recovering with another See saith he how one Brother helps another Upon which Matt. Westminster Knighton and others say that the King charged him about the Death of his Brother Alfred Whatever the occasion was our best Historians of that time Malmsbury and Ingulphus say it was at an Entertainment at Winchester and that Earl Godwin died upon the place being choaked as they say with a Morsel of Bread he took with a great Execration upon himself if he were not innocent Knighton saith he was question'd for the Death of his Brother by Hardecnute and that he cleared himself by saying he did nothing but by the King's command But suppose Edward to be never so weak a Prince is it likely this should be done by an Appeal in Parlament by the King himself and that afterwards by the Judgment of his Earls and Barons he and his Sons and 12 Kinsmen should make the King amends by as much Gold and Silver as they could carry between their Arms Besides Brompton saith this was done by Godwin when he returned to England after King Edward's coming to the Throne whereas Malmsbury shews that it was through Earl Godwin's interest that ever he came to it and so the marrying his Daughter would make any one believe 2. But suppose it true What reason is there to conclude the Bishops not present who were never absent through all the Saxon times after Ethelbert's Conversion in any publick Councils of the Nation They had no Canon then to be afraid of for that of the Council of Toledo was brought in by Lanfranc And it was not against the practice of those Times For if we believe as true a Story as this of Brompton the Archbishop of Canterbury himself condemned King Edward's Mother Emma to a Trial by hot Irons which was present death without a Miracle and this it is said was done by the consent of the King and the Bishops which is as good a Precedent against Temporal Lords as the other is against the Bishops However this is certain that the Bishops then sate in the County-Court at all Iudgments And whereas the Authour of the Letter would avoid this by saying that no Capital Crimes were tried there the contrary is most certainly true For the Laws of King Edward as they were set forth by H. I. c. 31. mention the Capitalia Placita that were there held And the Authour of the MS. Life of S. Cuthbert saith that when one of Earl Godwin's Sons was Earl of Northumberland and one Hamel a very bad man was imprison'd by him his Friends interceded earnestly with him nè capite plecteretur that he should not lose his head By which it appears that Cases Capital were heard and determin'd in those Courts the Bishop and Earl sitting together in Iudgment And here the Point is plainly gain'd because the Authour of the Letter grants that the Bishops sate in all Iudgments in the county-County-Courts and then puts the matter upon this Issue whether Capital Crimes were there tried or not which I have clearly proved that they were But I shall make another advantage of this against the Authour of the Peerage c. for it plainly overthrows that confident Assertion of his That without doubt there was a Negative Custom that the Prelates should not exercise Iurisdiction in Capital Cases so ancient as to be part of the Fundamental Contract of the Nation It were a thousand pities that such well-sounding words so handsomely put together should signifie nothing I dare not be so positive as he is but am of opinion that if he could be perswaded to produce this Fundamental Contract of the Nation which I perceive he hath lying by him
THE GRAND QUESTION Concerning the Bishops Right To VOTE in PARLAMENT In Cases Capital STATED and ARGUED FROM The Parlament-Rolls and the History of former Times WITH An Enquiry into their Peerage and the Three Estates in Parlament LONDON Printed for M. P. and sold by Richard Rumball Book-binder at the Ball and Coffin in the Old Change 1680. THE CONTENTS CHAP. I. THE Question stated and general Prejudices removed CHAP. II. The Right in point of Law debated Concerning the Constitution of Clarendon and the Protestation 11. R. 2. CHAP. III. The Precedents on both sides laid down those against the Bishops examined and answered CHAP. IV. The Peerage of the Bishops cleared how far they make a third Estate in Parlament Objections against it answered CHAP. 1. The Question stated and general Prejudices removed THE Question in debate as it is stated by the Authour of the Letter is Whether the Bishops may be present and Vote Iudicially in Capital Cases which come to be judged in Parlament either in giving the Iudgment it self or in resolving and determining any circumstance preparatory and leading to that Iudgment For our better proceeding towards a Resolution of this Question it will be necessary to take notice of some things granted on both sides which may prevent needless disputes and be of great use in the following Debate 1. It is granted That the Bishops do sit in Parlament by virtue of their Baronies and are bound to serve the King there And one part of the Service due to the King there is to sit in Iudgment for the Authour of the Book entitled The Iurisdiction of the House of Peers asserted proves at large that the Right of Iudicature belongs to the Barons in Parlament and that the Lords Spiritual have a considerable share therein appears by this passage in the Title-page of that Book translated into English The Iudgment of the Lords Spiritual and Temporal is according to the Vse and Custom of Parlament The Vse and Custom of Parlament is the Law of Parlament The Law of Parlament is the Law of England The Law of England is the Law of the Land The Law of the Land is according to Magna Charta Therefore the Iudgment of the Lords Spiritual and Temporal is according to Magna Charta Some Right then of Iudicature in Parlament the Bishops have by Magna Charta which whatever it be is as much theirs by that Charter as any Right of Temporal Persons and cannot be invaded or taken from them without breach of that Charter any more then the Rights of the Lords Temporal or of any other Persons whatsoever But how far that Right doth extend is now the thing in Question 2. It is not denied that the Bishops do sit in Parlament by the same kind of Writs that other Barons do They are summon'd to advise and debate about the great and difficult Affairs of the Kingdom cum Praelatis Magnatibus Proceribus dicti Regni nostri Angliae colloquium habere tractatum i. e. to joyn therein with the Bishops and other Lords of the Kingdom So that by the King 's Writ of Summons they are impower'd and requir'd to confer and treat of all the weighty Affairs that shall be brought before them And no Instance is so much as offer'd to be produced of any Writ wherein the King doth limit and restrain the Bishops any more then any other Lords of Parlament as to any matter of Consultation or Point of Judicature belonging to that House They have then by their Writ of Summons as good right to sit in all Cases as in any and since the other Lords by their Writs are summoned to advise with the Prelates in all matters that shall come before them without limitation it is not to be conceived how this can be done if the Bishops in some of the most important Debates be excluded 3. It is yielded That if the House proceeds in a Legislative way by passing Bills of Attainder the Bishops have a Right to sit and Vote therein as well as other Lords at these it is said that the Bishops are or should be all present at the passing of them for then they act as Members of the House of Lords in their Legislative capacity But men do as certainly die that are condemned in the Legislative as in the Iudicial Way Is not this then really as much a Case of Bloud as the other If the Bishops should give their Votes in the Legislative way to condemn a Person for Treason and yet think they had not Voted in a Case of Bloud they would then indeed be like Chaucer's Frier mention'd by the Authour of the Letter that would have of a Capon the Liver and of a Pig the Head yet would that nothing for him should be dead Doth a Bill of Attainder cut of a man's Head without making it a Case of Bloud There can be then no objection now made against the Bishops Right from any Canons of the Church for those allow no such distinction of proceeding in the Legislative or Iudicial Way And the late Authour of the Peerage and Iurisdiction of the Lords Spiritual doth grant that the Canons do prohibit the Bishops voting in Bills of Attainder as much as in any Case whatsoever But we are not to suppose a Person of such abilities as the Authour of the Letter would go about to exclude the Bishops from their Right of Voting in a Iudicial way in Cases Capital unless there were some great appearance of Law on his side because he professes so great a Desire that Right may prevail and that his design in writing was to satisfy himself and others where that Right is The discovery whereof is our present business Yet before the Authour of the Letter comes to a close debate of the matter of Right he lets fall some general Insinuations to create a prejudice in the Reader 's mind as to the Bishops meddling at all in Secular Affairs as though it were inconsistent with their Function and with some passages in the Imperial Law And because men may sometimes doe more harm by what they tell us they will not say then by what they do say it will be fit to prevent the danger of such Insinuations before we come to consider his Arguments 1. The first is that meddling at all in Secular Affairs seems to be the doing that which the Apostles declared they would not doe viz. leave the Word of God and serve Tables But are all Persons of Estates now bound to part with them as the Christians then did The serving of Tables was a full employment and they who attended that Office were the Treasurers of the Church to distribute to every one as they judged fit out of the common Stock Is it no Service to God to doe Justice and to shew Mercy to attend upon the publick Affairs of the Kingdom when they are called to it by their Sovereign Or are all Bishops now
11 R. II. when matters grew so high between R. II. and the powerfull Lords and so many Favourites were to be impeached and among them Alexander Archbishop of York then it was a time to quote the Canons and to enter a Protestation and to withdraw If the Times were calmer and more settled or some great Reason moved them then they could stick to their Right of Peerage and make use of it either in Person or by Proxy as they thought convenient Nor was it so easy a matter to resolve what was Canon-Law in England but they might with some colour make use of either of these Pleas. For in this very Parlament 11 R. II. the Commons desire that those may be reputed Traitours who brought in the Pope's Bulls of Volumus Imponimus which shews that they did not think all Canon-Law that passed for such at Rome And 15 R. II. Sir Will. Brian was sent to the Tower for bringing a Bull from Rome which was judged prejudicial to the King and derogatory to his Laws And in 16 R. II. Will. Courtney Archbishop of Canterbury the same who enter'd the Protestation before mentioned makes another of a different kind owning the Rights of the Crown in opposition to the Pope's Encroachments Now by the same Reason no Canon made at Rome no Legatine or Synodal Constitutions could have any force against the King's Authority But the King himself being under a force at that time as he alwaies declared afterwards and that being as Knighton saith it was called Parlamentum sine Misericordia the King having tied himself up not to pardon any without consent of the Lords he might be willing to let the Bishops excuse themselves because that might give some colour to call in question the Proceedings then as it did 21 R. II. when all the Acts of this Parlament were nulled and the Lords and Commons might be very willing to let the Bishops withdraw that their business might proceed with less difficulty against all the King's Ministers So that here was a concurrence of many circumstances which made the Bishops think fit not to appear in the House this Parlament and the King Lords and Commons to be willing to receive their Protestation But in the Anti-Parlament to this that I mean 21 R. II. the Commons pray the King that since divers Iudgments were undone heretofore for that the Clergy were not present they might appoint some Common Proctor with sufficient Authority to that purpose This is a Passage which deserves consideration and tends very much to clear the whole matter For the House of Commons declare that divers Iudgments had been undone for want of the Presence of the Clergy Therefore their Concurrence in the judgment of the House of Commons was thought necessary to make a Iudgment valid A very late Authour finds himself so perplexed with this that he knows not how to get off from it He cannot deny this to be in the Rolls of Parlament and to be the first Petition of the Commons but then he blames them for rashness and errour and want of due Examination of Precedents As though it were possible for any man now to understand the Law and Practice better then the whole House of Commons then did He saith they were mistaken palpably de facto in saying that divers Iudgments have been heretofore undone and yet presently confesseth that the two Iudgments against the two Spencers were reversed for this Cause but he saith there are no more to be found Where doth he mean in his Study or not now extant in the Parlament-Rolls But have we all the Rolls of Parlament that were then in being or must men so boldly charge the House of Commons with Ignorance Errour breaking the Laws because they speak against their fancies But this Gentleman very peremptorily concludes the House of Commons then guilty of a very strange and unaccountable Oversight It is great pity a certain Gentleman had not been there to have searched Records for them and to have informed them better But we think a Iudgment of the whole House of Commons in such a Case declared in so solemn a manner without the least contradiction from the King or the Lords might deserve a little more respect and it had certainly had it if it had made for the other side But we see the House of Commons it self is reverenced or not as the Judgment of it serves mens purposes And yet this was more then the bare Iudgment of the House of Commons for a Petition was made upon it and that Petition granted and consequently a Common Proctor appointed and that Proctor allowed by King Lords and Commons So that this was a Judgment ratified by consent of the King and the whole Parlament For if a Petition were made on a false ground what had been more proper then for the Lords to have open'd this to the Commons and to have told them how unadvised and false their Iudgment was whereas the Lords consented and the Proctor was admitted and gave his Vote in the name of the Clergy But there is something more to confirm this Iudgment of the Commons and that is the Parlament 11 R. II. making Petition to the King that all Iudgments then given might be approved affirmed and stablished as a thing duely made for the Weal and Profit of the King our Sovereign Lord notwithstanding that the Lords Spiritual and their Procurators were absent at the time of the said Iudgments given What means this Petition if there had been no doubt at that time that these Judgments might be reversed as not duely made by reason of the absence of the Prelats The onely answer in my mind is that it was Error Temporis they were of that mind then but some are resolved to be of another now But from hence we plainly see that even in R. II ' s time the Concurrence of the Bishops was thought so necessary that one Parlament declared Iudgments had been reversed for want of it and that very Parlament wherein they absented themselves got a Clause inserted on purpose to prevent the nulling of those Iudgments which signified nothing to the Parlament 21 R. II. which reversed them all There is something more considerable to our purpose in this Parlament viz. that the same Authour produceth the Testimony of a MS. Chronicle which largely handles the Affairs of that Parlament wherein it is confessed that the Bishops by concurring with the Lords in the Revocation of the Earl of Arundel's Pardon did give Vote in a Case Capital for so the words are there cited Dederunt ergo locum Praelati judicio Sanguinis in hoc facto Which shews that the Bishops did then give their Votes about the validity of the Pardon which the Authour of that Chronicle indeed condemns them for and tells us some thought they incurred Irregularity by it From whence it follows that all the Penalty supposed to be incurred was onely Canonical but he never charges
them with going against the Law or Custom of Parlament therein But the Authour of the Letter saith Whatever was done this Parlament signifies nothing because the whole Parlament stands repealed by 1 H. IV. and all done in it delcared null and void Yet to our comfort the same Authour tells us the three Henry's were Usurpers and therefore I desire to be satisfied whether an Vsurper by a Parlament of his calling can null and repeal what was done by a King and his Parlament If he may then the King lost his Title to the Crown by the late Vsurpers if not then the Parlament 21 R. II. could not be repealed by that 1 H. IV. If the Authour of the Letter had considered this he is a Person of too great Judgment and Loyalty to have mention'd more then once the Repeal of that Parlament by the subsequent Parlament 1 H. IV. From all this we see that by the Judgment of the whole Parlament both 11 R. II. and 21 R II. the Bishops had a right to sit so far that Iudgments were reversed where they were not present and therefore all the pretence they could have for withdrawing must be from the Canon-Law which although not sufficient to bind them if the matter had been contested yet it served them for a very colourable pretence of absenting themselves in such dangerous times as those of 11 R. II. Here the Authour of the Peerage and Iurisdiction of the Lords Spiritual thinks he brings seasonable relief to the Cause when he undertakes to prove that the Bishops withdrawing was not meerly on the account of the Canon-Law This I confess is home to the business If he can make it out 1. He saith there was an Act of Parlament before that did expresly prohibit them to excercise Iurisdiction in those Cases This we utterly deny And the Constitution of Clarendon to which he refers proves the contrary 2. The Bishops made bold with the Canons when they thought fit as 21 R. II. But how could they doe that unless they had a Parlamentary Right to be present He saith the Constituting a Proxy was as great a violation of the Canons as being personally present and what then therefore the Parlament would not have suffered them to doe that if there had been a Law to exclude them How doth this prove that the Bishops did not withdraw on the account of the Canons II R. II. because they made a Proxie 21 R. II But why did they not appear personally if they had no regard to the Canons when the receiving their Proxie shewed they had a legal Right to appear But he grievously mistakes the meaning of the Canon of Stephen Langton in Lyndwood when he interprets Literas pro poena sanquinis instigenda scribere vel dictare against making of Proxies which is onely meant of giving or writing the Sentence for Execution 3. He saith they were excluded by ancient Custom which by a very subtle way of reasoning he proves to have been part of the Fundamental Contract of the Nation as he speaks Seeing then saith he it is without doubt that there was such a Custom that the Prelats should not exercise Iurisdiction in Capital Cases not so altogether without doubt unless it were better proved then we have yet seen it and there is no Record that doth mention when it did begin nor any time when it could be said there never was such an Vsage yes before the Council of Toledo being published in Spain and receiv'd here 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 Which looks so like a Iesuitical Argument that one would have thought he had been proving Transubstantiation by it For just thus the Argument runs at this day among that Party There was a time when it was reciev'd and no time can be instanced in wherein it was not therefore it was a part of the Fundamental Religion of Iesus Christ. the plain Answer in both cases is the same If we can produce unquestionable Authority to which a Doctrine or Practice is repugnant we are not obliged to assign any punctual time in which it must first come in But in this case we do assign the very time and occasion of the Bishops absenting themselves in Capital Iudgments and that was from the receiving the Canon of the Council of Toledo here For no such practice can ever be proved before And therefore this can never be proved to be any part of the ancient Common Law of England And that this came in by way of imitation of other Countries appears by the citing the Council of Toledo both by Lanfranc and Richard in the Council of Winchester 4. He saith the Practice is ancienter then any of the Canons of the Church But how doth that appear The eldest Canon he can find is that of Stephen Langton in Lyndwood which was made above 50 years after the Parlament at Clarendon But we have made it evident there was a Canon receiv'd here in Lanfranc's time long before the Constitution of Clarendon And so a full Answer is given to these Objections But we are told by the Authour of the Letter that the Bishops Protestation being receiv'd and enter'd in the Roll or Iournal-Book makes it to pass for a Law it being agreed to by the King and two Houses so as whatever was the Law before if it were onely the Canon-Law it is now come to be the Law and Rule of Parlament and the Law of the Land 2. This is therefore the second Point to be examined Whether the receiving this Protestation amounts to a Law of Exclusion which it can by no means do for these two Reasons 1. from the nature of Protestations in general 2. from the particular nature of this Protestation 1. From the nature of Protestations in general For a Protestation is onely a Declaration of their minds that make it and not of theirs who receive it or suffer it to be enter'd in the Acts or Records of the Court unless it be receiv'd in such a manner as implies their consent For the very next Parlament after this 13 R. II. the two Archbishops in the name of the whole Clergy enter a Protestation That they gave no assent to any Law or Statute made in restraint of the Pope's Authority and it is said in the Rolls of Parlament that at their requests these Protestations were enrolled Will any man hence inferre that these Protestations were made Acts of Parlament If the Cause would have born any better a Person of so much skill in proceedings of Parlament would never have used such an Argument as this Besides it is a Rule in Protestations Si Protestatio in Iudicio fiat semper per contrarium actum tollitur saith Hostiensis A Protestation although allowed in Court is taken off by a subsequent Act contrary to it Which shews that a Protestation can never have
them in Capital Causes seems to be of equal force against this Precedent viz. That this Parlament of the 21 R. II. and all that was done in it was repeal'd in the 1 H. IV. And if that be so and those Acts of State which then passed had not again been repealed 1 Ed. IV. then the Repealing of that of 1. Ed. III. signifies nothing and consequently the Affirmance of the first Iudgment against the two Spencers is good notwithstanding that Repeal And therefore that we may examine this matter to the bottom I shall set down the very words of the Authour of the Letter concerning it Speaking of the Declaration made by the Lawyers in the 10 Ed. IV. concerning the Bishops making a Procurator in Capital Causes he hath these words It is true here is mention made of their making a Proctor which was Error temporis the Errour of those times grounded upon what was so lately done as they looked upon it though irregularly done in the last Parlament of R. II. whom they consider'd as their lawfull King and in truth he was so the three Henry's that came between being but Vsurpers And again speaking of the same business of a Proctor in the 21 R. II. he hath this remarkable passage I have already shewed that this whole Parlament was repeal'd for the extravagant things that were done in it of which this was one And therefore nothing that was then done can signifie any thing to a leading case any ways to be followed and this as little as any except it could be made appear which I am confident it cannot that some Iudgment had been reversed upon that account because the Prelats were not present and had not given their assent to it Now if I can make out these two things 1. That the Parlament of R. II. was not legally repeal'd 2. That the Iudgment against the two Spencers was revers'd and that the Repeal of that Reversal in 1 Ed. III. was revok'd in 21 R. II. upon this very account because the Prelats were not present and had not given their assent to it I hope the Authour of the Letter will be satisfy'd that both this Precedent and the Case of a Proctor are very significant in this Cause and that there is a great difference between being confident and certain of any thing 1. That the Parlament of 21 R. II. was not legally repeal'd And for this I take the Authour 's own acknowledgment that R. II. was in truth lawfull King and that H. IV. was but an Vsurper Nay I add farther that R. II. was alive and in prison when H. IV. repeal'd the Parlament of 21 R. II. For so it is said in the very Act of Repeal that R. II. late King of England was pursued taken put in ward and yet remaineth in ward And now I leave it to the Authour of the Letter whether a Parlament call'd by a lawfull King and the Acts of it ought to be deem'd legally repeal'd by a Parlament that was call'd by an Usurper and held whilst the lawfull King was alive and detain'd in prison 2. That the Iudgment against the two Spencers was revers'd and the Repeal of the Reversal of it in 1 Ed. III. revok'd in 21 R. II. and that upon this very account because the Prelats were not present and had not given their assent to it which the Authour of the Letter is confident cannot be made appear That this Iudgment was reversed for this Reason I have already shewn viz. in the Parlament at York 15 Ed. II. And I shall now shew that the Repeal of that Reversal in 1 Edw. III. was revok'd in 21 R. II. and that upon the account mentioned For in this Parlament Tho. le Despenser Earl of Gloucester exhibited two Bills in which he prayeth that the Revocation of the Exile of the two Spencers in 15 Ed. II. might be brought before the King and confirmed and that the Repeal of the same made in the 1 Ed. III. might be revoked Of which Act of Repeal these Errours are assigned among others because the Prelats who are Peers of the Realm did not assent to the Iudgment and because it was made onely by the Earls and Barons Peers of the Realm c. and because it was made against the form of the Great Charter of England in which it is contain'd that no man shall be exil'd or otherwise destroyed but by the lawfull Iudgment of his Peers or by the Law of the Land So that it seems it was look'd upon as a breach of the Great Charter for the Temporal Lords to condemn a Peer without the Assent of the Bishops and that such a Iudgment was not esteem'd a lawfull Iudgment by his Peers And those Errours of the first Iudgment assign'd in the Revocation of it in 15 Ed. II. are allowed in this Parlament of 21 R. II. and that Revocation confirm'd and the Repeal of it in 1 Ed. III. revok'd upon the same account I shall onely observe that in this Parlament as before in 15 Ed. II. the Bishops are declared to be Peers Peers of the Realm Rot. 55. Peers in Parlament Rot. 56. 61 but most fully and distinctly in the Roll last cited Peers of the Realm in Parlament Of which farther use may be made in the last Chapter concerning the Peerage of the Bishops And now to sum up the force of this Precedent for the Iurisdiction of the Bishops in Cases of Treason Here is a Reversal of a Iudgment because made without the Assent of the Prelats by the Parlament at York in 15 Ed. II. And whereas it is said this Reversal was repeal'd and the first Iudgment affirm'd in 1 Ed. III. I have shew'd that this was no legal Repeal because Ed. II. was alive and lawfull King or else Ed. III. could never have been so in the time of that first Parlament of Ed. III. and consequently Ed. III. at that time was an Usurper and the Proceedings of that Parlament null and void So that the Reversal in 15 Ed. II. stands good notwithstanding the Repeal in 1 Ed. III. Besides that this Repeal whatever it was is solemnly revok'd in 21 R. II. And H. IV. who revers'd all the Proceedings of the Parlament of 21 R. II. during the life of R. II. is acknowledg'd by the Authour of the Letter to have been an Vsurper and R. II. to have been a lawfull King And now I think that this Precedent hath all the advantage that can be and that the Iurisdiction of the Bishops in Cases of Treason could not have been asserted in a higher manner then to have a Iudgment in Case of Treason solemnly revers'd in two Parlaments for this very cause because the Bishops who are Peers assented not to it And this Precedent own'd by the House of Commons in their Petition to have a Common Proctor appointed by the Clergy in this very Parlament of 21 R. II. as is acknowledg'd by the Authour of the Letter
To conclude this matter whether the Acts of Parlament which contain this declaration of the Peerage of Bishops and their Iurisdiction in Cases of Treason were sufficiently repeal'd or not this solemn Assertion of it in two several Parlaments together with the Petition of the Commons mentioned before are a most clear evidence that in the general Opinion of the King Lords and Commons this Iurisdiction did of right belong to the Bishops And I am sure they are a Demonstration against the Authour of the Peerage his Assertion of a Negative Custome ancient as the Constitution of the Nation that Prelats should not exercise Iurisdiction in Capital Cases For had this been a clear and undoubted Custom from the first original of this Nation it is morally impossible it could have entred into the minds of two Parlaments solemnly to have raised this doubt whether a Judgment given in a case of Treason by the Temporal Lords without the Assent of the Bishops were valid and to have determin'd that it was not when yet there was no manner of reason to imagine that the Bishops ever had any Jurisdiction in such Cases nay when there was an immemorial Custome and Usage to the contrary namely that the Temporal Lords had in all times exercised this Jurisdiction alone and the Bishops had been excluded from any share in it And in the Apology of Adam D'Orleton Bishop of Hereford and after of Winchester for his imprisoning R. de Baldock a great Confident of Hugh Despencer's he declares that the reason why he was carried to Newgate was through the violence of the People although saith he the Parlament then sitting there was no cause of fear but Justice would be done His words are Domino Rege Praelatis Comitibus ac aliis terrae Optimatibus Lundoniae tunc congregatis praesentibus pro Iustitia ibidem in Parlamento convocatis omnibus exhibenda Which shews that the Prelats then did sit in matters of Justice in the House of Lords and in Cases Capital for this R. de Baldock was arraigned at Hereford for the same Crimes that Hugh Despencer was But the main strength of the Cause is supposed to lie in the Precedents produced out of the Rolls of Parlament from the 4 Edw. III. to the 38 H. VI. The force of these Precedents will be better understood if we consider these things I. That many of them are meer Negative Testimonies So 4 Edw. III. at the Trial of Roger Mortimer it is said the Earls Barons and Peers of the Realm were present therefore the Bishops were not 5 Edw. III. onely the Great ones returned therefore the Bishops did not So in the Case of Sir Iohn Grey From whence he inferrs that the Bishops were not to Iudge so much as of a Battery 25 Edw. III. in Sir William Thorp's Case the Grantz de Parlament were asked their advice therefore not the Bishops 1 R. II. in the Case of Weston and Gomenitz the Bishops not mention'd but other Lords Barons and Bannerets Sir Ralph de Ferrer's Case 4 R. II. the Bishops not present because not comprised under les Seigneurs de Parlament The like in Sir Iohn Oldcastle ' s Case 5 H. V. The Question he saith is whether Bishops be comprehended under les Seigneurs de cest present Parlament In the Earl of Devonshire ' s Case 31 H. VI. the strength lies in this that the Peers are onely mention'd and he supposes no man will say the Bishops were his Peers or Lords of the Realm So that here are Eight Precedents that are no more then Negative Testimonies concerning which in general the Authour of the Iurisdiction of the House of Peers asserted hath a good observation viz. That one or two or twenty Precedents in the Negative nay I say more were the number equal as many in the Negative as in the Affirmative yet it could not disprove their Iurisdiction it would onely shew their Lordships were free Agents to doe it or not to doe it as they saw Cause but their Iurisdiction remained entire still to doe it whensoever they would So I say here supposing that the Spiritual Lords were not present in these Cases it onely shews that they were free Agents and might withdraw at some times and be present at others which cannot overthrow their Right for these Reasons 1. Several of his Negative Precedents if they prove any thing prove the Bishops were not there when he confesses they might have been there As 1. In Cases of Misdemeanours At the Trial of Sir Iohn de Lee 42 Ed. III. being charged with several Misdemeanours the Record saith the Prelats were present 50 Edw. III. Several persons were accused by the Commons for Misdemeanours and the Bishops he confesseth were present as Rich Lions Iohn Lord Latimer William Ellis Iohn Peecher Lord Iohn Nevil at all these Trials the Bishops saith he were present and no body says but they might So in the Case of Alice Perrers 50 Edw. III. the Record saith the Prelats were present and gave Iudgment as to Banishment and Forfeiture of her Estate 10 R. II. Mich. de la Pool Lord Chancellour was accused by the Commons for several Misdemeanours before the King Prelats and the Lords Here he yields the Prelats were Iudges of Misdemeanours together with other Lords And yet if several of his Negative Precedents do prove any thing they prove too much viz. that the Bishops ought not to be present at the Trial of Misdemeanours For he saith the Bishops were not present at the Trial of Weston and Gomenitz 1 R. II. nor at the Trial of the Bishop of Norwich 7 R. II. nor at such Iudgments as that of Sir William de Thorp 25 Edw. III. who was condemned for Bribery and yet he yields they were at the Trial of Mich. de la Pool 10 R. II. But if they ought not to be present at those of 25 Ed. III. and 1 R. II. and 7 R. II. neither ought they to have been present at the Trial of Mich. de la Pool Either therefore his argument doth not prove they were not present at the former being onely from general words or they ought not to have been present at the latter which he confesses they were This will best appear by comparing the Cases together 1 R. II. the Commons deliver in a Schedule to the Lords of their Demands before they would proceed to a Subsidy among which one was That all such who without cause had lost or given up any Castle or Town or Fortress to the dishonour of the King or dammage of the People may be put to their Answer before the Lords and Commons that Parlament Here was no particular Impeachment of these Persons but upon this the Lords sent for these two Persons who were Prisoners in the Tower upon this account and the Charge against them was delivering two Towns in Flanders without Commission Weston made a long and plausible Defence to which no
this as a sufficient Precedent in a Case of great moment about Commitment upon a general Accusation But there is not any Irregularity expressed or intimated in the Bishops appearing and judging as other Lords did and the Judgment was not reversed because of their being there as we have shewed others have been for their being absent V. None of all his Precedents do prove that the Bishops were ever excluded from sitting by any Vote of the House of Lords or Commons That they might voluntarily withdraw we deny not or not be present at giving of Iudgment out of regard to the Canons which is all that is proved by the Precedent of Iohn Hall 1 H. IV. of the Earls of Kent Huntington c. 2 H. IV. of Sir Iohn Oldcastle 5 H. V. and of Sir Iohn Mortimer 2 H. VI. And this we have made appear was done by them out of regard to the Canon-Law the force of which being taken away by the Reformation the Bishops are thereby restored to their just Parlamentary Right Neither can any Disusage be a bar to that Right since the ground of that Disusage was something then supposed to be in force which is now removed by the Reformation And I fear if this kind of arguing be sufficient to overthrow the Bishops Right much stronger of the same kind may be used to overthrow the King's Supremacy in mattters of Religion So great care ought men to have lest under the colour of a mighty zeal against Popery they do overthrow the very Principles of our Reformation VI. There are Precedents upon Record in the Rolls of Parlament which are not mention'd by the Authour of the Letter which do prove that the Bishops were present at the Examination of Treason and Capital Offences in Parlament And that within the time wherein he pretends to give an account of all the Trials recorded in the Rolls Which shews how easily men pass by those things they have no mind to see I begin with 4 Ed. III. and I must doe him that right as to say that he doth not onely mention the Trial of Roger Mortimer but of Sir Simon Bereford and others who were accused and tried in Parlament But pretending that the Roll of that Parlament is so defaced that it cannot be read he runs to that of 28 Ed. III. and so gently passes over all the other Trials which are in the Record and are more plain and express as to this matter Among the Articles against Roger Mortimer Ed. l of March one is that after he knew certainly the death of Edw. II. he made use of Instruments to perswade Edward Earl of Kent that King's Brother that he was still living and so drew him into a design for his Rescue for which he was attainted at Winchester and there suffer'd death for it Among these Instruments the chief was one Mautravers who for that Reason was attainted this Parlament and the words of the Record are Trestouz les Pieres Counts Barons assemblez a cest Parlement a West si ont examine estraitement sur ce sont assentuz accordez que John Mautravers si est culpable de la mort Esmon Count de Kent c. All the Peers Counts and Barons assembled in this present Parlament upon strict examination do assent and agree that John Mautravers is guilty of the death of Edmund Earl of Kent Here we have the strict Examination of a Capital Case in Parlament and all the Peers are said to be present at it It is used as an argument by the Authour of the Letter that in the case of Roger Mortimer the Bishops could not be comprized under the general name of Peers since the Barons are first in rank But here the Peers are mentioned before Counts and Barons and it will be impossible for him to assign any other Peers at that time that were named before them but the Prelats who frequently are so put in the Records of that time as in the same Parlament n. 12. Prelatz Countes Barons n. 13. Et per assent des ditz Prelatz Countes Barons so again n. 14. 15. 17. 24. 25. But the Authour of the Letter saith they cannot pretend to be Peers of the Realm Let him name then other Peers of the Realm at that time who were neither Counts nor Barons and were before them But if we are to judge who are Peers of the Realm by the Records of Parlament I do not question but I shall make it evident that the Bishops were so esteemed and that some persons who pretend to great skill in Records either have not searched so diligently or have not observed so carefully about this matter as they might have done But of this afterwards In the same Parlament Judgment was passed upon Boges de Boyons Iohn Deveril Thomas Gurnay William Ocle but being by way of Attainder and not upon particular examination which is mentioned in the case of Mautravers I pass them over In the Pleas of the Crown held before the King in this Parlament we find another Case which relates to our present debate viz. of Thomas Lord Berkely and Knight who was arraigned for the death of King Ed. II. who came before the King in pleno Parlamento in full Parlament and there pleaded Not guilty and declared he was ready to clear himself as the King's Court should advise Then they proceeded to particular examination of him how he could acquitt himself being Lord of the Castle where the King was murthered he being committed to his Custody and John Matravers He pleaded for himself that he was then sick at Bradley and knew nothing of it They charged him that the Keepers of the Castle were of his own appointing and therefore he was bound to answer for them He answer'd that they with Matravers having receiv'd the King into their custody he was not to be blamed for what they did and for this he put himself upon his Country At the day appointed for his Trial he appears again coram Domino Rege in pleno Parlamento and the Iury returned him Not guilty But because he appointed Gurney and Ocle to keep his Castle of Berkely by whom the King was murthered the King appoints him a day the next Parlament to hear his Sentence and in the mean time he was committed to the custody of Ralph Nevil Steward of the King's House In the next Parlament 5 Edw. III. n. 18. The Prelats Earls and Barons petition the King that he might be discharged of his mainprisors the which was granted and a farther day given him to appear next Parlament But we reade no more of him till the Summons he had 14 Ed. III. as one of the Lords in Parlament The great force of this Precedent lies in understanding what is meant by appearing before the King in full Parlament If under this the Bishops be comprehended then this will be an uncontroulable Precedent of the presence of the Bishops in
the Examination of a Case Capital What the importance of this phrase of full Parlament is will best appear by the use of it in the Records of that time 4 Ed. III. n. 6. Et est assentu accorde per nostre Seigneur le Roi touz les Grantz en pleyn Parlement Where it was agreed that the procedings at that time by the Lords against those who were not Peers should not be drawn into consequence and that the Peers should be charged onely to try Peers Which hath all the formality of an Act of Parlament and therefore all the Estates were present n. 8. Accorde est per nostre Seigneur le Roi son Conseil en pleyn Parlement Which was an Act of Pardon concerning those who followed the Earl of Lancaster 5 Ed. III. n. 10. we have the particular mention of the Bishops as some of those who do make a full Parlament Accorde est per nostre Seigneur le Roi Prelatz Countes Barons autres Grantz du Roialm en pleyn Parlement and n. 17. En pleyn Parlement si prierent les Prelatz Countes Barons autres Grantz de mesme le Parlement a nostre Seigneur le Roi c. 6 Ed. III. n. 5. the Archbishop of Canterbury made his Oration en pleyn Parlement which is explained by en la presence nostre Seigneur le Roi de touz les Prelatz autres Grantz n. 9. Si est accorde assentu per touz en pleyn Parlement who those were we are told before in the same number viz. les Prelatz Countes Baronns touz les autres somons a mesme le Parlement Which is the clearest explication of full Parlament in the presence of all those who were summon'd to Parlament From whence it follows that where a full Parlament was mention'd at that time the Bishops were certainly present and consequently did assist at the Trial of Thomas Lord Berkely who appeared before the King in full Parlament as Nich. de Segrave did 33 Ed. I. and there the Bishops are expresly mention'd as present as appears by what hath been said before concerning his Case 5 H. IV. Henry Hotspur Son to the Earl of Northumberland was declared a Traitour by the King and Lords in full Parlament and the same day the Father was upon examination acquitted of Treason by the Peers It is not said that this was done in full Parlament as the other was but there are several circumstances which make it very probable the Bishops were then present 1. When the Earl of Northumberland took his Oath of Fidelity to the King he did it saith the Record upon the Cross of the Archbishop which was to be carried before him if he went out of the House 2. The Archbishop of Canterbury pray'd the King that forasmuch as himself and other Bishops were suspected to be in Piercie's Conspiracy that the Earl might upon his Oath declare the truth who thereupon did clear them all Which shews that the Archbishop was then present in the House And for the same reason that he was present we may justly suppose the other Bishops to have been so too 3. The Earl of Northumberland beseeched the Lords and Earls and Commoners that if he brake this Oath they would intercede no more with the King for him Now the better to understand this we are to consider that H. IV. takes notice in his declaration upon the Rebellion of Sir Henry Piercy that the Earl of Northumberland and his Son gave out that they could have no access to the King but by the Mediation of the Bishops and Earls and therefore did beseech them to intercede with the King for them It is not then probable that those should be now left out when the words are large enough to comprehend them and no one circumstance is brought to exclude them For that general one of their not being Peers will be fully refuted afterwards But that which puts this out of dispute is 4. that the Record saith n. 17. the Commons not onely gave the King thanks for the pardon of the Earl of Northumberland but the Lords Spiritual and Temporal in these remarkable words Et auâ—i mesmes les CoÌ„es remercierment les Seigneurs Espirituelx Temporelx de lour bon droiturell judgment quils avoient fait come Piers du Parlement And likewise the Commons gave thanks to the Lords Spiritual and Temporal for the good and right Iudgment which they had given in this case as Peers of Parlament Which is a clear Precedent of the Bishops judging in a Capital Case and that as Peers 2 H. VI. n. 9. Iohn Lord Talbott had accused Iames Boteler Earl of Ormond of sundry Treasons before the King and his great Council and after before Iohn Duke of Bedford Constable of England The King takes advice of his Parlament about it and then it is expresly said in the Record De avisamento assensit Dominorum Spiritualium Temporalium ac Communitatis Regni Anglie in eodem Parlamento existent ' facta fuit quedam abolitio delationis nuntiationis detectionis predict c. Here the King adviseth with the Lords Spiritual in an accusation of Treason and therefore they must be present in the debates concerning it I leave now any considerate person to judge impartially on which side the Right lies For on the one side 1. There is the Constitution of Clarendon interpreted by H. II. and the Bishops at Northampton 2. A Protestation of their Right enter'd and allowed by King Lords and Commons 11 R. II. 3. A Reversing of Iudgments owned by Parlament for want of their presence 21 R. II. 4. A Preserving of their Right by Proxie when they thought their Personal attendance contrary to the Canons 5. A Bar to a total discontinuance of their personal Right by an allowed Precedent 28 H. VI. 6. A Restoring them to their former Right by removing of the force of the Canon-Law upon the Reformation 7. No one Law or Precedent produced for excluding them even in those Times when they thought the Canons did forbid their presence 8. Several Precedents upon Record wherein they were present at Examinations and Debates about Cases Capital On the other side 1. The Precedents are General and Negative 2. Or relating to such Cases wherein they are allowed to be present 3. Or of Iudgments condemned as erroneous by Parlament 4. Or of voluntary Withdrawing with Protestation of their Right and making of Proxies 5. Or of not being present at the passing of Iudgment out of regard to the Canon-Law And now on which side the Right lies let the Authour of the Letter himself judge CHAP. IV. The Peerage of the Bishops cleared how far they make a third Estate in Parlament Objections against it answered THERE remain Two things to be considered which are put in by way of Postscript by the Authour of the Letter the one concerns the Peerage of the Bishops the other their Being a Third Estate in Parlament 1.
Judge then bare Inheritance of Honour can do But to give a full Answer to this Argument on which that Authour lays so much weight and challenges any Person to give a rational account wherein the advantage of a man's being tried by his Peers doth consist I shall 1 shew that this was not the Reason of Trial by Peers 2 give a brief account of the true and original Reason of it 1. That this was not the Reason 1. Not in the Judgment of the Peers themselves as that Authour hath himself sufficiently proved when he takes so much pains to prove p. 3. that a Writ of Summons to Parlament doth not ennoble the Bloud and consequently doth not put persons into equality of Circumstances with those whose Bloud is ennobled and yet he grants that those who sate in the House of Peers by virtue of their Summons did judge as Peers as is manifest from his own Precedents p. 15. from the 4 Edw. 3. From whence it follows that this was not thought to be the Reason by the Peers themselves in Parlament 2. That this was not the Reason in the Judgment of our greatest Lawyers because they tell us that where this Reason holds yet it doth not make men Judges As for instance those who are ennobled by Bloud if they be not Lords of Parlament are not to be Judges in the case of one ennobled by Bloud Onely a Lord of the Parlament of England saith Coke shall be tried by his Peers being Lords of Parlament and neither Noblemen of any other Country nor others that are called Lords and are no Lords of Parlament are accounted Pares Peers within this Statute Therefore the Parity is not of Bloud but of Privilege in Parlament 3. The Practice it self shews that this was not the Reason For this Reason would equally hold whether the Trial be at the King's Suit or the Suit of the party but in the latter case as in an appeal for Murther a man whose bloud is ennobled must be tried by those whose bloud is not ennobled even by an Ordinary Iury of 12 men And I desire our Authour to consider what becomes of the inheritable quality of Bloud in this case when Life and Fortune lies at the mercy of 12 substantial Free-holders who it is likely do not set such a value upon Nobility as Noble-men themselves do and yet our Law which surely is not against Magna Charta allows an Ordinary Iury at the Suit of the party to sit in Judgment upon the greatest Noble-men Therefore this Reason can signifie nothing against the Bishops who are Lords in Parlament as I have already proved 2. I shall give a brief account of the true and original Reason of this Trial by Peers without which that Authour it seems is resolved to conclude that the Iurisdiction of the Bishops in Capital Cases is an abuse of Magna Charta and a Violation offer'd to the Liberties of English Subjects As to the general Reason of the Trial by Peers it is easie to conceive it to have risen from the care that was taken to prevent any unfair proceedings in what did concern the Lives and Fortunes of men From hence Tacitus observes of the old Germans that their Princes who were chosen in their great Councils to doe justice in the several Provinces had some of the People joyned with them both for Advice and Authority These were Assessours to the Judges that mens lives and fortunes might not depend on the pleasure of one man and they were chosen out of the chief of the People none but those who were born free being capable of this honour In the latter times of the German State before the subduing it by Charlemagn some learned men say their Iudges were chosen out of the Colleges of Priests especially among the Saxons After their being conquer'd by him there were 2 Courts of Judicature established among them as in other parts of the German Empire 1. One ordinary and Popular viz. by the Comites or great Officers sent by the Emperour into the several Districts and the Scabini who were Assistants to the other and were generally chosen by the People The number of these at first was uncertain but in the Capitulars they are required to be seven who were always to assist the Comes in passing Judgments But Ludovicus Pius in his second Capitular A. D. 819. c. 2. enlarged their number to 12. And if they did not come along with him they were to be chosen out of the most substantial Free-holders of the County for the words are De melioribus illius Comitatûs suppleat numerum duodenarium This I take to be the true Original of our Juries For our Saxon Laws were taken very much from the Laws of the Christian Emperours of the Caroline Race as I could at large prove if it were not impertinent to our business and thence discover a great mistake of our Lawyers who make our ancient Laws and Customs peculiar to our selves As in this very case of Trial by Peers which was the common practice of these parts of the World Therefore Otto Frisingensis takes notice of it as an unusual thing in Hungary Nulla sententia à Principe sicut apud nos moris est per pares suos exposcitur sola sed Principis voluntas apud omnes pro ratione habetur that they were not judged by their Peers but by the Will of their Prince Which shews that this way of Trial was looked on as the practice of the Empire and as preventing the inconveniences of arbitrary Government And it was established in the Laws of the Lombards and the Constitutions of Sicily In the one it is said to be Iudicium Parium in the other proborum virorum In the Saxon Laws of King Ethelred at Wanting c. 4. 12 Freemen are appointed to be sworn to doe Iustice among their neighbours in every Hundred Those in the Laws of Alfred are rather 12 Compurgators then Iudges however some make him the Authour of the Trial by Peers in England But by whomsoever it was brought into request here it was no other way of Trial then what was ordinary in other parts of Europe and was a great instance of the moderation of the Government of the Northern Kingdoms 2. There was an extraordinary or Royal Court of Iudicature and that either by way of Appeal which was allowed from inferiour Courts or in the Causes of Great men which were reserved to this Supreme Court. In which either the King himself was present or the Comes Palatii who was Lord High Steward and all the Great persons were Assessours to him In such a Court Brunichildis was condemned in France and Tassilo Duke of Bavaria in the Empire and Ernestus and other Great men A. D. 861 and Erchingerus and Bartoldus under Conradus the last of the French Race And among the Causes expresly reserved for this Supreme Court were those which concerned the Prelats as well as the