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 House of Commons because Ipse saith the Record quam plures Antecessores sui Banneretri fuerint Nos animadvertentes quod hujusmodi Banneretti ante haec tempora in Milites Comitatus eligi minime consueverunt c. If this Camoys had been reputed a Baron the Country would never have chose him and if he had been really a Baron the King would never have discharged him because he was a Banneret but because he was a Baron Another Reason for this may be gathered out of the Patent of John Beauchamp of Holt the words of which are these Sciatis quod pro bonis gratuitis servitiis quae dilectus fidelis Miles noster Johannes de Beauchamp de Holt seneschallus hospitii nostri nobis impendit ac loco per ipsum tempore corenationis nostrae hucusque impensis quempro Nobis tenere poterit in futurum in nostris consiliis parliamentis nec non c. ipsum Johannem in unum Parium Baronum Regni nostri Angliae praesecimus volentes quod idem Johannes haeredes masculi de corpore suo exeuntes statum Baronis obtineant ac Domini de Beauchamp Barones de Kiderminster nuncupentur in cujus c. T. Rege apud Wodestock 10. Oct. It is probable that he was created Baron before he received this Patent because the Patent wants the words of Creation Ipsum Johannem praefecimus but it is not said per praesentes praeficimus and therefore the Patent running in the preterperfect tense could have no other operation but only to Record a thing which was past but he was not Created by Writ before the Patent because it is dated Oct. 10. and he received no Writ till the Decem. following Wherefore seeing that undoubtedly he was a Baron before he received either Patent or Writ for the Patent which is Matter of Record saith Ipsum praefecimus it follows that before this time a Baron hath been created without a Writ which could be no otherwise then by the performance of a Ceremony as Investiture of Robes c. and this Patent was only an entring of the Creation being a transitory thing upon Record 2. Admitting that Barons have been created by Writs yet Prelates are not created Barons by their Writs because there is a difference between a Writ sent to a person that hath no right ex debito justitiae to demand it and a Writ sent to one that was a Lord of Parliament before and ought de jure to have been summoned The former together with the persons obedience may perhaps make him a Baron but the latter I conceive doth not make any addition to or enlargement of their precedent Honour but only summons them to exercise their Jurisdiction and put that power which they have in execution and that is only reducere potentiam in actum otherwise every Lord would be newly created at every Parliament every one to whom the Honour is entailed would have a Fee-simple for a Writ will make a man a Peer in Fee without the word Heirs and every Lord Bishop L. Keeper L. Treasurer L. Privy Seal would be as such Inheritable Peers or at least for life which are both false for after Regradation their Peerage is ended Wherefore it being certain that all the Lords both Spiritual and Temporal ought to be summoned to every Parliament the Summons must of necessity have respect to that Right which doth entitle them to demand them The Inference which I draw from all this is That the Lords Spiritual having no Peerage upon the account of their Writs cannot claim any at all except it be Jure Episcopatus that is ratione terrarum quas tenent per Baroniam So that now I come to the next point viz. Whether such whose Peerage is ratione tenure and dies either with the determination of his Estate in the Land or the dissolution of the Tenure be a competent Judge of one whose blood is ennobled in case of life and death within the meaning and intent of Magna Charta which enacts that every one shall be tryed per legale judicium parium suorum The Negative I hope effectually to prove from these following Reasons 1. Every ones Peerage ought to be measured and proportioned according to the limits and extent of that ratione cujus he is a Peer he that is a Peer not only upon the account of his Possessions but also upon the account of the quality and nobility of his Blood hath a right of Judicature and Legislation both in those things that regulate Mens Estates and Properties and also in those things that concern Life and Death buthe that hath no Peerage but what is praedial or feudal and not personal a Peerage accruing by vertue of his Tenure and Possessions and not the Nobility of his Blood can have no Jurisdiction but such as is agreeable to the nature of his Peerage that is such as shall extend to matters of Property and Possession but not to matters of Blood for as to this he is no more a Peer i. e. Par to a Temporal Lord than any private Gentleman and therefore hath no more Jurisdiction for it is Parity that makes a man capable of Jurisdiction within the Statute This is confirmed by the Authority of that Learned Antiquary Mr. John Selden in the first Edition of his Titles of Honour a Volume in Quorto 347 which I the rather cite because it was Printed in King James his time and therefore not liable to exception his words are these A Bishop shall not be tried by Peers in Capital Crimes because these are personal and his being a Baron is Ratione Tenurae and not of personal Nobility So it is in Br. Abr. Tit. Enquest 99. Although in an Action for Land c. a Bishop shall have Knights in his Jury as other Lords yet when he is tryed for his life it 's said he shall not have Knights in his Jury By Which Book it is evident that a Bishop is a Peer not in respect of his Person but of his Possessions 2. The whole Statute of Magna Charta is a Grant or rather a Confirmation of the Priviledges and Liberties of the Subjects of England and it is to be supposed that the enjoyment of every of those Priviledges that are there granted is a great advantage and happiness to the Subject but wherein the advantage of a mans being tryed per Pares doth lie is a Point worth the Consideration I conceive it to be this When those are to be Judges who may be under the same Circumstances with the Prisoner and when by their Judgment the Prisoner can lose nothing but what his Judges if they be under his Circumstances may lose also he may expect that they will not give Judgment but upon Mature Deliberation and that the Consideration that it may be their own case will deter them from giving a rash judgment against a man that is innocent or not apparently guilty Whereas if a mans Life
of Death upon men within Holy Orders and claim their Priviledge absolutely and generally in Articles several which they presented to the King in Parliament To this they receive Answer by the Statute commonly called Articuli Cleri in these words Clericus ad Ecclesiam confugiens pro Felonia pro Immunitate Ecclesiastica obtinenda c. gaudebit Libertate Ecclesiastica juxta laudabilem consuetudinem Regni hactenus usitatam This being an Answer much like the former did not sufficiently answer their Desires expressing only Felony nor on the other side did it hinder the Temporal Judges from proceeding against them as against Lay-men in Cases of High Treason as they had done always before Wherefore they do afterwards viz. in the 25th of E. 3. make a grievous Complaint that the Kings Judges had given Judgment of High Treason against Houby and Cibthorp Priests and several other Religious Persons whereby they were Hanged Drawn and Quartered to the great Dishononr of the Church c. To this they have a direct Answer by the Statutes of 25 E. 3. c. 4 5. Whereby reciting their Complaint it is Enacted and Declared that all Clergy-men Convicted for Treason or Felony against any other Person than the Kings Majesty shall enjoy the Liberties of the Holy Church c. and from henceforward but never before the benefit of Clergy was allowed in Petit Treason till by 23 25 32 H. 8. it was taken away but High Treason is excepted out of that Statute of E. 3. and therefore was ever since punished without the allowance of Clergy as it was before And accordingly the Abbot of Missenden was Condemned to be Hanged Drawn and Quartered Pro contra factione resectione legalis monetae Angliae Mich. coram Rege 31 E. 3. Rot. 55. And it is taken for a General Rule Trin. 21 E. 3. coram Rege Rot. 173. Quod privilegium Clericale non competit seditioso equitanti cum Armis c. Thus I have shewn that in the Cases of Orleton Merkes Fisher and Cranmer the benefit of Clergy could not be allowed by the Law of England they being Cases of High Treason But in Cases of Felony the benefit of Clergy was always allowed till it was taken away in Cases of Murder ex malitia praecegitata Poysoning Burglary Robbery c. by the 1 6 Edw. 6. cap. 12. cap. 10. This is sufficient for this Point IV. The Fourth Question At what time the benefit of Clergy ought to be pleaded or demanded comes to be examined I conceive that the common practice both before and after the Statute of Westm. 1. was to deliver them to the Ordinary after Conviction and therefore they would not suffer them to demand it before My Reason is because the Statute of Westm. saith thus Si Clearke soit prise pur rette de felony si il soit per l' Ordinarie demand il luy soit livere solonque la priviledge de Saint Eccl ' c. solonque le custom avant ses lieures use This Statute grants no new Priviledge but confirms only that which they had before And as for the time of allowing the Priviledge the words of the Statute are so ambiguous that it is very hard to determine the Question from thence only the Statute refers it to the Custom of the former Ages for the Priviledge of the Holy Church is to be allowed solonque le custom c. Now all the Judges of England did after this Statute determine that they would not deliver any Prisoner to the Ordinary till he was first Indicted and also thereupon Arraigned and till it was Inquired by an Inquest upon his Arraignment whether he were Guilty or not Guilty if not Guilty then he was discharged without any more ado but if Guilty his Goods and Chattels Lands and Tenements were forfeited and his Body delivered to the Ordinary So saith Britton cap. 4. f. 11. Si Clearke encoupe de felony allegga Clergie soit per l' Ordinarie demand donque serra enquise comment il est miscrue i. culpable sil est trovenient miscrue donque il aleraquite Et sil soit trove miscrue ses Chateux serroient taxes ses terres prises in maine le Roy sen corps deliver al Ordinarie The same you will find in the Mirr c. 3. Co. 2. Inst. 164. in his Exposition upon that Statute and Stamford 131. And this we must suppose to have been the practice before the Statute because the Statute appoints the ancient Custom to be observed and there were none that knew the ancient Custom so well as the Judges of those times and therefore this determination of the Judges was either according to the Custom avant ses heures use as the Statute speaks or else it was not according to Law but that is absurd especially seeing it was not only one resolution but the constant practice ever since for in the Record of all Indictments of Clergy-men if they refused to answer but pleaded their Privilegium Clericale and were demanded by their Ordinary the Record is entred Sed ut sciatur qualis ei liberari deberat i. whether Guilty or not Guilty inquiratur inde rei veritas per patriam And in the Year-Books we have multitudes of Cases that do prove it as you may see in the Margent the same is proved by the fore-mentioned Record of the Bishop of Ely 30 E. 3. And there is a like Case 40 E. 3. Fitz. Tit. Cor. 91. And the Statute of 25 E. 3. c. 4. saith expresly That all Clergy-men Convict of Treason and Felony c. Which intimates that Clergy was not to be allowed till after Conviction And so I have answered what ever they can object against the above-cited Authorities and Precedents from the benefit of Clergy and therefore shall now briefly consider the two last Particulars V. In the fifth place I am to consider Upon what account it was that Clergy-men were delivered to their Ordinaries in those Cases where the benefit of Clergy was not allowed The delivering of a Clerk Convict to his Ordinary could be only for these ends either that he might make his Purgation before his Spiritual Judge or that the Ordinary might Degrade him and then deliver him over to the Secular Power to be punished according to Law as a Lay-man lest Scandal and Indignity should be put upon the Church The former is onely in Cases where Clergy is allowed for where there is no Clergy there can be no Purgation The latter is where no Clergy can be allowed The former is de Jure and cannot be denied I do not mean Jure Canonico but is a Custom which hath been allowed time out of mind and confirmed by several Acts of Parliament and for that reason only I say it is de Jure The latter is de Gratia and Arbitrary for our Judges have had such an Honour and Esteem for the Dignity of a Priest that they usually did deliver them
Dom. 1164. In the Preamble it is Recognizantur Advice consuetudines which proves it is declarative of the Common Law The Eleventh Article runs in this manner Archiepiscopi Episcopi universa persona holding any Ecclesiastical Dignity qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam inde respondeant Justiciariis Ministris Regis sequantur faciant omnes consuetudines Regias sicut caeteri Barones debeant interesse judiciis curiae Regis cum Baronibus quousque perveniatur ad diminutionem membrorum vel ad mortem Here is their Jurisdiction expresly limited that it shall not extend ad diminutionem membrorum vel ad mortem And this Act of Parliament is declarative of the Common Law as appears by the Preamble and the construction of most Authors that mention it In this saith Doderidge certain Recapitulations are made of the Kings Prerogative and his Peoples Right then sought to be infringed by the Pope and his Clergy So saith my Lord Cook 2. Inst. 631. and Selden Titles of Honour 582. Seeing therefore there can be no time assigned when this ancient Custom which is here recapitulated was not consequently this limitation must be supposed to be as ancient as their sitting in the House of Lords But to prove that this Constitution of Clarendon as some call it is an Act of Parliament Matthew Paris saith Praesentibus etiam Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Proceribus Regni Roger of Hoveden saith expresly that Clerus Populus Regni were then assembled and so mentions it as a full Parliament Goldastus Constit Imper. Tom. 3. 347. saith There were added to the Clergy Nobiliores Antiquiores Regni Fitz Stephens calls it Generale Concilium And lastly our Common Lawyers do take it for granted and undisputable My Lord Cook in 2. Inst. 631 and 638. calls it The great Parliament that was held at Clarendon So Bracton lib. 3. f. 136. And this very Article above-mentioned is in all the said Authors and likewise in Roger of Wendover but that which is most considerable is that we have Gervasius Doroberniensis an Author that lived in that Age and a Person within Holy Orders too reckoning this very Article among the Laws that were made at that Parliament in the 68. Page of his Book But admitting it were no Parliament but only a great Councel of Peers yet that is as well for my purpose because that the Proceedings of such a Council are Matters of Record and therefore a Recognition or Declaration of ancient Customs and of the Common Law made in such a Council is as undeniable proof as if it were a Declaratory Act of Parliament for the force of such an Act is only in point of Evidence and doth not Enact or Constitute any new Law But as there is no question but that it is an Act of Parliament the Assembly being a Generale or Commune Concilium which is always understood of the Parliament Co. Inst. 110. a. So except it can be proved this Statute was repealed I have made good my Assertion without saying any more for admitting that it had not been so frequently practised as I in his proper place shall make appear it was yet still it is valid and a standing Law for no Statute loseth its force by Non-user Co. 1. Inst. 114. although Common Law or particular Customs may But this Statute we find was afterward confirmed for saith Roger de Hoveden a Monk p. 30. It was Ordained in a Councel at Westm. That no Clergy-man should Agitare Judicium c. and he that did was to be deprived of his Dignity and Orders That these Constitutions were punctually observed in after Ages is the next thing to be proved And the first that I shall mention is the Judgment against the Spencers 15 E. 2. The Lords Spiritual did withdraw as in right they ought These Spencers were men that were great Favourites of that King for they had succeeded Peter Gaveston both in the Kings Favour and in Places of Profit and Trust about Court and although the Lords had then prevailed with the King to consent to an Act of Parliament for their Banishment yet afterward the Tide turned the Spencers were called again to Court and their Enemies severally prosecuted whereupon the greatest part of them departed from Court and through the Interests which the Spencers had with the remaining Lords the Judgment which stood upon Record against them was reversed for several Errors one of which was The absence of the Prelates but notwithstanding this the Judgment is afterward Affirmed by an Act of Parliament in the first year of the succeeding King Vide 1 E. 3. c. 1 2. And that the Absence of the Prelates is no cause of Reversing a Judgment see the Case of the Earl of Salisbury who in the 2 of H. 5. petitioned the House of Lords to Reverse a Judgment that was given against the Earl his Father An. 2. H. 4. and Assigns for Error That the Lords Spiritual were absent The Case was very much Debated and at last it was adjudged no Error and accordingly the Judgment was Affirmed But of this I shall have occasion to treat more at large by and by See Cotton 539. Anno 4 E. 3. In the Parliament at Winchester Die Lunepost Festum Sancti Gregorii The Earl of Kent was brought before the Counts Barons autres Grandees Nobles in mesme le Parliament c. for Treason ders claus n. 38. Anno eodem in the Parliament at Westm. post Festum Sanctae Katherinae The Articles of Treason being read against Montimer Earl of March That he had procured the Death of the late King and had under-hand-dealing with the Scots at Stanhope Park and had been too familiar with the Queen-Mother by whom she was thought to have been with Child c. The King charged Les Counts Barons les Peers de son Royaume to give Judgment And then it follows that Judgment was given Per les dits Counts Barons les Peers de Royaume come Judges du Parliament Ibid. The King commanded Les dits Counts Barons Peers c. to give Judgment on Simon de Bereford Ibid. The King commanded the same against several others and accordingly John Matravers was judged Per les Peers Counts Barons assembles in Parliament And so were Four others in the same Parliament all for Treason and not one word of the Prelates either when the Articles were read or when Judgment was given For it is certain they are never spoken of in any Record but either by the Name of Archiepiscopi Episcopi c. or Prelati or some such Name which doth distinguish them from the Laity and if they be spoken of they are always first named and put before Les Counts Barons as at this day the Records are Entred by the Lords Spiritual and Temporal c. And for these two Reasons they could not be
comprehended under the General words Et autres Grandees Nobles Anno 6 E. 3. Post Festum Sancti Gregorii The Parliament were commanded to consult of the keeping of the Peace and punishments for the Breakers thereof and the Prelates departed Pur ceo que il ne attinet pass a eux Consailer du gard de la Paix ne de chastement de tiels Malefactors Yet afterward they came and gave their Assent to an Act of Parliament for this purpose The reason of which shall be considered in another place where we shall discourse of their Voting in Bills of Attainder By this Record it is evident That the Prelates have no Judicial Power over any Personal Crimes which are not Parliamentary which doth very much Fortifie the Foundation and Ground of my whole Discourse Anno 1 R. 2. The Commons prayed that such as gave up Forth c. puissent estre a respondre a cest Parliament solonque lour desert fortment punis per agard des Seigniors Barons And thereupon several were brought before the Lords in Parliament which must be understood of the Temporal Lords onely because the Spiritual Lords are never intended in any Case to be mentioned except they be specially named Anno 11 R. 2. Divers Matters of Treason were to be Treated of and several Lords to be Tryed and therefore the Spirituality did absent themselves from the whole Parliament but before their departure the Archbishop of Canterbury in the Name of Himself and all the Clergy of his Province made this following Protestation Quod Archiepiscopum Cantuariensem qui pro tempore fuit nec non caeteros suos Suffraganeos Confratres Co-episcopos Abbates Priores aliosque Prelatos quoscunque Baronium de Domino Rege tenentes in Parliamento Regis ut Pares personaliter interesse pertinet ibidemque de Regni negotiis aliis ibi tractari consuetis cum caeteris dicti Regni Paribus aliis consulere ordinare statuere definire ac caetera facere quae Parliamenti tempore ibid. intenditur facien ' Quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis juxta Sacrorum Canonum instituta quomodolibet interesse Non intendimus nec volumus sicuti de jure non possumus nec debemus Ad haec insuper protestamur nostrum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec nostrum aliquis intendit nec vult quod processus habiti habendi in praedict ' Parliamento super materiis aut edictis in quibus non possumus nec debemus ut praemittitur interesse quantum ad nos nostrum quemlibet attinet futuris temporibus quomodolibet impagnentur infirmentur seu etiam renoventur This was read in full Parliament and inrolled at the Request of the Prelates And the like was made by the Bishops of Durham and Carlisle Cotton 322. Co. 2. Inst. 586. From this Record you may observe 1. That the Lords Spiritual do acknowledge that they have no Right to be present in Cases of Blood Nec possumus nec de jure debemus 2. You may observe that they did accordingly absent themselves and did thereby yield Obedience to the Parliament at Clarendon and the Constitution at Westm. mentioned in Roger Hoveden H. 2. That Clergy-men should not Agitare judicium Sanguinis though they pretended it was in Obedience to the Canons of the Church 3. You may observe that they did not stay in the House till they came to the final Question Guilty or Not guilty but departed at the first beginning of the Business Quia agitur de quibusdam rebus in quibus non licet nobis interesse These short Remarks I leave upon it at present but shall take it more narrowly into consideration when I come to answer their Objections and shall go on with Precedents In the Reign of H. 4. The Earl of Northumberland was suspected to have been privy to the Rebellion of his Son Hotspur who joyned with Mortimer Earl of March and Owen Glendour of Wales in open Rebellion In the 5 of H. 4. he came and presented himself to the King and Parliament and Protested his Innocency and challenged his Jus Parietatis and Right of Tryal by his Peers Whereupon the Lords saith the Record made Protestation that the Judgment belonged unto them onely c. The Petition being read before the King and the said Lords as Peers of Parliament unto whom such Judgments do of Right belong considering c. Adjudged that it was neither Treason nor Felony c. This was the first Process that was made against the Earl but it doth not evidently appear whether they were present or absent the Roll being Lords indefinitely yet it is most probable that it is meant Temporal Lords onely 1. If the Spiritual Lords had been present they would have been named by a special Name as they are in all other Rolls 2. We find the Lords Temporal in other Cases of Life and Death claiming the same Jurisdiction as belonging to them onely exclusively of the Clergy Anno 4 E. 3. Judgment was given Per les Countes Barons les Peers de la Royaume come Judges du Parliament But I shall leave this and come to the Process which Issued forth against him afterward for the Earl being acquitted returns home and within a very little time hath a considerable Army in the Field together with the Archbishop of York Lord Bardolfe and others but their Army soon Disbanding the Earl of Westmerland comes with a considerable Strength for the King and takes all the Lords Prisoners except Northumberland and Bardolfe who fled into Scotland Whereupon 7 Hen. 4. Rot. Processus coram Domino Rege in Parliamento c. The King commanded the Lords Temporal Peers of his Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and the Lord Bardosse and then the Record goes on thus And then the said Lords Advised thereon and Reported their Opinion to the King The said Lords Peers of the Realm by the Assent of the King Ordained that Proclamations should be made for the said Earl of Northumberland and Lord Bardolfe to appear or else to stand Convicted of High Treason by the Award of the Peers in Parliament The King did further demand the Opinion of the said Lords Temporal touching the Archbishop of York Vnto which the Lords Temporal said c. By Advice of the said Lords Temporal the Returns of the former Proclamations were made at the Parliament-Door for the said Earl and Lord to appear By Advice of the said Lords Temporal with Assent of the King the former Proclamations were examined The said Lords Temporal considered of the Errors therein c. By the said Lords Temporal with Assent of the King by their Authority new Proclamations were granted Whereupon the said Lords Temporal then being in the same Parliament by Advice and Consent of our Lord
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
described be sufficient 〈…〉 Judgment or Bill which shall pass the House of Lords then they may 〈◊〉 say that the whole House of Lords may depart from Parliament and agree before hand in the same manner to every Bill which shall 〈…〉 House of Commons and these with the Royal Assent shall be good Laws especially if it be as they say that the Clergy is one of the Three Estates of Parliament But then you will demand Why should the House of Lords suffer these things to be entred upon the Roll if they did not think that their Claims were legal c. To this it may be answered 〈…〉 is only a Register or Narrative of all the Matters of Fact that passed in the House of Lords and although the entring of a Passage upon the Roll makes is so Authentick that the Matter of Fact viz. that there was certainly such a passage 〈◊〉 undeniable yet it doth not follow that every thing that is entred upon the Roll is good Authority for Matter of Law except it appear by the Roll that it was taken for Law by the Vote and Resolution of the House and therefore although the House of Lords did suffer this Protestation to be entred upon the Roll yet it doth not follow that they did allow that every thing that the 〈◊〉 said was 〈◊〉 but only allowed it to be true that the Protestors did say so And besides the â—â—tring of a Protestation is a thing which is always reckoned the best Expedient for reconciling of Differences when begun or preventing of them before they are begun or at least for diverting them till a more seasonable time when the putting of the Matter to a Tryal would either prove dangerous or expensive of more time than the urgency of other more important Affairs then to be managed would allow and therefore the Request of Entring their Protestation is never upon any account whatsoever denied to those who have not a mind to be concluded by the then Proceedings and if there be any thing contained in the Protestation that is of an ill Complexion in the Judgment of the House either as tending to the Diminution of the Kings Prerogative the Authority of Parliament or otherwise â—â—â—â—…ying the Constitution of the Government the Prâ—â—â—â—â—â— ion is allowed to be Entred first and the Protestors punished for it when they have alone We find in the Reign of Rich. 2 two Bills passed the House of Commons the one against Provisors the other against Procurers of Process from the Court of Rome these Bills were violently opposed by the Clergy in the House of Lords but notwithstanding the Bills passed the House the Clergy in a great Rage depart the House and Protest against the Bills as abridging the Authority and Priviledges of the Holy Church which the Lords suffered to be entred and yet did not agree to those Allegations of the Clergy for the Royal Assent was given and they were always accounted good and firm Laws 13 R. 2. c. 2 and c. 3. We find also that in the time of his late Majesty Twelve Bishops departed the House and Protected against 〈◊〉 Orders 〈…〉 c. that should be made in their Absence which Protestatiâ—â—… at their Request was entred upon the Journal and 〈◊〉 was so far against the Sense of the House that they Voted it prejudicial to the Government and destructive of the very Being of Parliaments for which some of them were put into the Tâ—â—…er This I mention to shew that although the Matter of Protestation do 〈…〉 thwart the Genius and Disposition of the whole House yet the Request of having â—…ntred is never denied In the next place I shall consider the Roll of 21 Rich. 2. where the first Petition that the Commons made that Parliament to the King was For that divers Judgments were heretofore undone for that the Clergy were not present the Commons prayed the King that the Clergy would appoint some to be their Common Proctor with sufficient Authority thereunto The Prelates therefore being severally examined appointed Sir Thomas de la Percie their Proctor to Assent as by their Instrument appeareth Thus was the Practice of Constituting Proxies begun It is apparent to all men of Common Sense That if the Clergy were forbidden to give Judgment of Death by any Law or Rules whatsoever that Law was violated by their Constituting a Proxy as much as if they had been personally present Whether or no their Personal Presence was prohibited by the Law of England at this time I leave to the Judicious Reader to determine from what hath been said before If they were prohibited then certainly this Petition of the Commons was unwarrantable and contrary to Law It is not impossible that the House of Commons being but fallible men spurred on by too precipitant a Zeal and Eagerness for the accomplishment of a Business should be endeavouring to make sure work fall inconsiderately into another extream and through the want of due Examination of Precedents become guilty of a mistake I shall not trouble my self much in discoursing about the possibility of the thing for I shall make appear that it was actually so in our Case For 1. That which was the ground of the Petition of the Commons viz. That divers Judgments have been heretofore undone c. was a palpable mistake de facto It is true the two Judgments that were given against the two Spencers 15 E. 2. were reversed for this cause through the great favour and interest that they then had at Court And there is no question but these two Judgments were the ground of the Commons Petition made 21 R. 2. for there are no other Judgements to be found that were ever reversed for this cause but how well their Petition was grounded you may learn from 〈◊〉 E. 3. c. 1. Where this same Judgment is declared in Parliament to be good and that the aforesaid reversal was null and void and the two Spencers upon this Affirmance of the Judgment were Executed I suppose if the forwardness and Zeal of the Commons had given them time to search the Records with so much diligence that they might have found this they had not said For that divers Judgments have been heretofore undone c. 2. That in point of Law the absence of the Prelates makes not a Judgment erronious besides the Authority of that Record 1 E. 3. is further proved 1. From the Earl of Salisbury's Case 2. H. 5. who petitioned that the Judgment that was given against his Father might be Reversed and Assigns for Errour that it was not with the Assent of the Lords Spiritual who are Peers of the Realm the House of Lords upon Debate resolved that it was not Errour and therefore the Judgment was good 2ly If the Consent of the Clergy be absolutely necessary to every Judgment that passeth the House of Lords then consequently it must be necessary to every Act of Parliament There can no manner of Difference be Assigned between
the two Cases as to this Matter for their Power and Jurisdiction in Legislation is every whit as ample as their Power of Judicature and therefore their Concurrence is equally necessary in both Cases But it is a thing of dangerous Consequence to Assert that an Act of Parliament cannot be made without the Consent of the Clergy for it will make some of the best Laws that ever were made in England before the Reformation and which have ever been to this day accounted firm and established Laws of no force at all Most of the Statutes of Mortmain were made against the will of the Clergy and their Dissent is recorded The Statute De Aâ—â—…rtatis Religiosorum is Enacted by the King De Concilio Comitum Baronum Magnatum Procerum Regni sui Constatuum in Parliamentâ—… c. and yet proved by my Lord Cook in his Exposition of this Statute to be a good Law from the Testimony of many Records and Acts of Parliament that recite this Statute The Statute of 3 Rich. 2. c. 3. was made against the Clergy for the ill disposition of Dignities Offices Canonries Prebends and Parsonages and other Ecclesiastical Preferments upon lewd and licencious persons to the Scandal of Religion and the neglect of Divine Service c. The Clergy being somewhat displeased that any should undertake to reform them at the first reading of the Bill departed but notwithstanding the Bill past and is said to be Enacted by the King Nobles of the Land and the Commons leaving out the Clergy And yet this hath been allowed for an established Law by all the Judges See Roll 3 R. 2. n. 38. 40. The Statute of 7 R. 2. c. 12. was made to impower Justices of Peace to enquire of several grievous Extortions committed by the Bishops and their Officers to the great grievance and oppression of the Kings Liege People c. The bringing in of this Bill offended the Clergy more than the former insomuch that they left the House in a great Huff Protesting against the Bill as injurious to the Franchises and Jurisdiction of the Church yet notwithstanding it passed into a Law The Clergy were absent all the Parliament that was held 11 R. 2. and yet divers good and profitable Laws were made that Parliament never questioned for their Validity but always put in use as 11 R. 2. c. 7. about Merchants c. 8. concerning the granting of Annuities c. 9. concerning new Impositions c. 11. of Assizes and several others made in the absence of the Clergy I might for this enumerate all the Statutes of Provisors and the Statutes of Premunire for Suers of Appeals and other Process from Rome as 25 E. 3. c. 1. and 22. where the Names of the Clergy are left out and 13 Rich. 2. c. 2. and c. 3. where they were so far from Assenting that they entred Protestations against them because they abridged the Popes Authority as is before observed And the 16 R. 2. c. 5. passed against the will of the whole Clergy And so the Statute that was made in the same year about the Queens Marriage without the Kings Consent was made without the Concurrence of the Clergy for their Assent to it was special in this manner So far as it is agreeable to the Law of God and the Holy Church Which being conditional and under a Restraint was according to the Course of Parliaments accounted as no Assent at all and so it was specially Entred and yet none did ever question the Strength and Force of this Act. These Statutes being allowed by the Judges of England as Good and Authentick Laws although they were not agreed to by the Lords Spiritual do prove that the Concurrence of the Lords Spiritual is no more necessary to the Essence and Perfection of an Act of Parliament than the Concurrence of as many Temporal Lords Upon the whole Matter it appears to have been a very strange and unaccountable over-sight in the House of Commons at that time that they should be the first Introducers of an Innovation upon so false a Ground as theirs was But however this Practice being built upon so sandy a Foundation it seems had no long continuance for there doth not occur in any Author nor in the Abridgments of the Records any mention of more than Two Proxies the first was Sir Thomas de la Percie the second was Sir William de la Scroope who immediately succeeded him in this his New Office But seeing it is rash to Assert a Negative in a Matter of Fact it will be very satisfactory if any will inform us of any more and that may easily be done if there were any because none can act as a Proxy except his Procuratorship be Entred upon the Roll. Most of those Records that are Cited in the behalf of the Spiritual Lords are either such as were in those times when the Clergy put in Proxies as all those that are upon or after the 21 Rich. 2. and about the beginning of Hen. 4. Such is the Case of the Earl of Arundel for it appears by the Record that the Constitution of the Proxy was in N. 9. and the Arraignment of the Earl was not till N. 15 or 16. and therefore after the Proxy so that there was reason that the Records should be Entred by the King Bishops and Lords seeing the Bishops Deputy was present but it is no Argument of their personal presence Or else they are Cases of Bills of Attainder and that is not much to our purpose for those will as well prove that the House of Commons have sate Judicially upon Matters of Life and Death A Bill of Attainder is reckoned the strongest way because there is a Concurrence of all the Three Estates of both the Judicial and Legislative Power and that is necessary for making a Forfeiture of all manner of Rights Titles and Interests which otherwise are not Forfeitable And if at any time there was an opportunity for the Clergy to transgress the Laws both Ecclesiastical and Civil I mean the Statutes and Customs of this Realm which was connived at by the rest of the Lords and Commons I hope that will not be accounted a Precedent to overthrow a Custom of so Ancient a Date and so agreeable to the Fundamental Constitution of the Government and the Grounds and Reasons of the Common Law and also Confirmed by an Act of Parliament So by degrees the whole Method and Course of Parliamentary Proceedings may be altered and the very Being and Foundation of Parliaments shaken So we should have had the Lords refusal to Sequester the Earl of Danby from Parliament a Precedent if they had not afterward acknowledged it to have been an Errour We may find in many Cases the Lords Dispensing with Magna Charta 4 E. 3. n. 6. They passed Judgment of Death upon several Commoners 15 E. 3. We find several Particulars enumerated wherein the Commons complained of Breaches of Magna Charta and we are not sure that all these particular Cases were remedied and therefore must these stand all for Precedents At this Rate there are few Points of Law perhaps that will escape Doubt and Controversie for we shall have some of the Lords pretend they can transfer their Honours and so are able to make the Kings Enemies his Councellors because in Daincourts Case 4. Inst. 126. one Branch of the Family sate in the House by vertue of a Grant from the other Branch of the Family from the Raign of E. 2. to H. 6. And the Earldom of Chester was first granted 17 H. 3. and transferred 39 H. 3. And upon these Precedents there was an Attempt in the Lord Fitz-Walter's Case to make a Baron by Translation of interest Admitting therefore that Once or Twice or such a matter the Bishops have Voted in Capital Cases yet they cannot Controul an Antient and well established Custom though I am not apt to believe there are many such Cases However it was a very pleasant humour of a Gentleman that wrote lately of this matter and cited a Precedent in the Raign of R. 2. Of the Earl of Arundel and Wardor whereas there was no such Lord as Arundel and Wardor Created till King James his time Vide pa. ult so p. 30. He cites the Case of the Earl of Salisbury who in his Petition says the Prelates are Peers in Parliament and assigns for Error that they were Absent when Judgment was given against his Father and this is a good Precedent to prove the Prelates right to Vote in Capital Cases as Peers in Parliament Whereas the Petition was disallowed and the Judgment affirmed by the resolution of the whole House Such a way of arguing deserves some special animadversion But I shall supersede any further Consideration of the matter and shall conclude that without an Act of Parliament the Bishops can have no right to Vote in Capital Cases which if this present Parliament shall think fit to make it behoves all true Subjects to agree thereto FINIS Baker 124. Co. 2. Inst. 654. Baker 141. Vide Parliam held at Clarendon 11. H. 2. Fitz. Tit. Cor. pl. 417. 8 E. 2. 17 E. 2. 386. 19 E. 2. 233. Vide Co. â— Inst. 636.