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
all probability this passage of his was levelled at those Bishops who did observe this 11. Constitution 3. We have a plain way to understand the meaning of this Constitution by what happen'd soon after in the Parlament at Northampton which was summon'd upon Becket's Obstinacy and Contempt of the King's Authority where Fitz-stephen saith he was accused of Treason and the Bishops sate together with other Barons and because it did not come to a sentence of Death after great debate between the other Lords and the Bishops about pronouncing the Sentence the Bishop of Winchester did it Wherein we have as plain evidence as can be desired that the Bishops did sit with the other Barons and vote with them in a case of Treason To this Precedent the Authour of the Letter answers several things 1. That none of the ancient Historians of those Times say any thing of his being accused of Treason and therefore he thinks one may modestly affirm that it was a mistake in Fitz-stephen to say so But what if H. II. and Becket himself both confess that he was charged with Treason H. II. in his Letter to Reginaldus saith that by consent of his Barons and Clergy he had sent Ambassadours to Pope Alexander with this Charge that if he did not free him from that Traitour Becket he and his Kingdom would renounce all Obedience to him And Becket did not think this a bare term of reproach for in one of his Letters he saith that defending the Liberties of the Church laesae Majestatis reatus sub persecutore nostro est was looked on as Treason by the King And even Gervase himself to whom the Authour of the Letter appeals saith some of his friends came to him at Northampton and told him if he did not submit to the King he would be proceeded against as a Traitour for breaking the Allegeance he had promised to the King when he did swear to observe the ancient Customs at Clarendon And Fitz-stephen saith the King's Council at Clarendon said it was Treason or taking the King's Crown from his head to deny him the Rights of his Ancestours 2. That it was a strange kind of Treason Becket was charged with at Northampton viz. for not coming when the King sent for him which at the most was onely a high Contempt and Fitz-stephen who was a Creature of the Archbishop's might represent it so to draw an odium on the King And therefore he looks on this as a weak precedent for the Bishops to lay any weight upon being at best out of a blind MS. of an Authour justly suspected of partiality against the tenour of all the ancient Writers that give an account of the same business What truth there is in this last suggestion appears in part already and will do more by what follows Must all the unprinted Records be answered with saying they are blind MSS I cannot but take notice how unreasonable a way of answering this is It is like turning of that pressing Instance of the Bishops making a Proctor in Capital Cases by saying it was Error temporis which because it will answer all Instances whatsoever as well as that is therefore an answer to none Just so it is equally an answer to all MSS to say they are blind and to all printed Books too because they were once MSS and for any thing that appears to the contrary as blind as Fitz-stephen's For surely no authority is added to a Book by its being printed unless in the opinion of the common people who are said to take all for true that is in Print I do not go about to parallel Fitz-stephen with Parlament-Rolls but I say his Authority is very good being present upon the place and the best we have of all the proceedings in the Parlament at Northampton And if the Authour of the Letter had taken the pains to peruse him he would not have contemned the Precedent drawn from thence which being so near the Parlament at Clarendon that as himself confesseth the one was in February the other in October following it gives the best Light into this matter of any thing in that Age and being not yet fully printed it will be worth our while to set it down Mr. Selden hath indeed printed very exactly the Proceedings of the first Iudgment upon Becket about the Cause of Contempt for not coming upon the King's Summons at the complaint of Iohn the Marshall wherein the Bishops did certainly sit in Iudgment upon him with the other Barons but there is a farther strength in this Precedent not yet taken notice of Which is that after this Iudgment passed Becket behaved himself with so great insolency towards the King and the Bishops upon the King's calling him to farther account for many other things laid to his Charge as diverting the King's Treasure and applying it to his own use and great Accounts to the King while he was Chancellour c. that the King required him to stand to the Iudgment of his Court Becket gave a dilatory Answer the King summons the Bishops and Earls and Barons to give Iudgment against him the Bishops tell the King Becket had appealed to the Pope and prohibited them to give any farther Judgment upon any Secular Complaint against him Whereupon the King sent some Earls and Barons to him to expostulate the matter since he was the King's Subject and had so lately sworn to the Constitutions at Clarendon and to know whether he would give Security to the King about making up his Accounts and stand to the Judgment of his Court Becket refuseth to give answer to any thing but the Cause of Iohn the Marshall for which he was summoned to appear slights his Oath as contrary to the Rights of the Church and confirms his Appeal to the Pope And such an owning of the Pope's Power in derogation to the Rights of the Crown Sir Edward Cook saith was Treason by the ancient Common Law before any Statutes were made However the King charges the Bishops by virtue of their Allegeance that together with the Barons they would give Iudgment upon the Archbishop They excused themselves on the account of the Archbishop's Prohibition The King replied That had no force against the Constitution of Clarendon so lately made and acknowledged by them The words of Fitz-stephen are these Rex responso Archiepiscopi accepto instat Episcopis praecipiens obtestans per homagium fidelitatem sibi debitam juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam Illi se excusare coeperunt per interpositam Archiepiscopi Prohibitionem Rex non acquievit asserens quòd non teneat haec ejus simplex Prohibitio contra hoc quod Clarendonae factum initum fuerat So that H. II. in the Parlament at Northampton declared that Bishops were bound by virtue of the Constitution of Clarendon to be present and to give their Votes in cases of Treason
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-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-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
it would not amount to so much as a blind Manuscript If it be said that Brompton onely mentions Earls and Barons and Bishops were not then made Barons I answer that Baronies were brought into England by the Conquerour and therefore Brompton must speak improperly and consequently taking it onely for a Title of Honour he means no more then those who were the Great men of that time and so may take in the Bishops too of which more afterwards But there is one thing more in the Laws of H. I. which were onely a restoring K. Edward's Laws that implies that Bishops had then a Power of Judging in Cases Capital which is c. 58. Qui occiderit Episcopum sit in arbitrio Principis Episcoporum He that killed a Bishop was to be left to the Will of the King and the Bishops Which shews that they were to hear and examine the whole Evidence and to give Judgment according to it After the Saxon times the first Precedent produced is of the 33 Edw. I. concerning Nicolas Segrave who was summon'd to appear in Parlament and after his Offences were open'd the King advises onely with the Temporal Lords who declared such a man deserved to lose his Life But is he sure the Bishops were not present No he saith that doth not appear by the Record but it appears clearly they were not to meddle with it How so The King declares that he would have the Advice Comitum Baronum Magnatum aliorum de Consilio suo But is he sure they are not comprehended under Magnates and that there were no Clergy-men at that time of the King's Counsel What thinks he is William de Hamilton Dean of York who was made Lord Chancellour Ian. 16. 33 Edw. I. and this Parlament was held the next Sunday after S. Matthias which was the latter end of February And in the 35. year Ralph de Baldock Bishop of London was made Lord Chancellour and scarce any other but Church-men had that Office all his days The Bishop of Bath and Wells was Chancellour near twenty years of his Reign after him the Bishop of Ely after him the Dean of Chichester and then comes the Dean of York And among the Lords Treasurers of his time were the Archdeacon of Dorset the Abbot of Westminster two Bishops of Bath and Wells whereof one was Treasurer at this time These two I hope we may suppose to be of the King's Counsel in this business who we are certain were both Church-men And if they adjudged Nic. de Segrave worthy of death who so likely to deliver that Judgment as the Chancellour But suppose these were not there whom doth he mean by the Magnates then distinct from Earls and Barons who were of the House of Peers Mr. Selden will inform him if he needs it that there were no Dukes till the II. of Edw. III. nor the Title of Marquess till R. II. nor of Vicount till H. VI. And yet here were Magnates in Parlament who were neither Earls nor Barons and therefore we must in all reason understand the great Church-men who were not so nice of meddling with Criminal Causes in Parlament of the highest nature in the time of Edw. I. As appears by the great Cause so much agitated in Parlament 20 Edw. I. concerning the Earls of Hereford and Gloucester where this latter is charged with raising Arms without Commission and committing Murthers and horrible Devastations in the Lands belonging to the other and the King in Parlament appoints the Bishop of Ely with others to be a Committee for examination of this matter And when they had both submitted to the King's Pleasure we have these remarkable words in the Placita Parlamentaria Per Consilium Archiepiscoporum Episcoporum Comitum Baronum ceterorumque de Consilio suo existentium facere volens in premissis ut voluntas sua justa sit rationabilis prout decet eorumque assensum in premissis petiit Consilium Propter quod habito tractatu diligenti coram ipso Domino Rege Consilio suo super predictis tam ipsi Domino Regi quam ceteris Prelatis Magnatibus singulis de Consilio suo videtur quoad Comit. Gloucestr and then follows the Sentence which I confess did not extend to Life but to a Forfeiture of his Estate to the King However we see hereby that the Bishops were present at all the praeliminary Debates and the King asked their Advice so that they had their Votes in the Sentence whether it should extend to Life or not In the Reign of Edw. II. we meet with a remarkable Precedent in behalf of the Bishops Right which is of a Iudgment reversed made by the Lords without the Prelats viz. the Iudgment against the two Spencers 15 E. II. which Iudgment is said to be passed at Oxford that year but in the Parlament at York the same year it was nulled and made void before the King Lords and Commons and one of the Reasons given for it is because the Lords Spiritual who were Peers assented not to it This Precedent had been cited and allowed by Mr. Pryn in his Plea for the Lords and therefore it is to be wonder'd the Authour of the Letter takes no notice of it But the later Authour of the Discourse about the Bishops Peerage and Iurisdiction owns the truth of the thing saying that the two Iudgments aganst the two Spencers were reversed 15 Edw. II. for this Cause through the great favour and interest they then had at Court But then he thinks he hath taken off the force of this Precedent by saying that 1 Edw. III. c. 1. this Iudgment is declared good and therefore the said Reversal null and void and the two Spencers upon this affirmance of the Iudgment were executed This last Assertion every one knows to be a grievous mistake that hath but looked into our History for the Spencers were executed before Edw. III. came to the Crown the elder in October 19 Edw. II. the other the latter end of November 20 Edw. II. And whereas he insists upon the Affirmance of the Iudgment 1 Edw. III. he had done well to have look'd a little farther and then he would have found that Act also repealed 21 R. II. So that if the Act of 1 Ed. III. which affirms the first Judgment may seem to take off the force of this Precedent the repealing of that Act in the 21 R. II. restores it again and leaves it in its full force Especially if it be considered that the Act of 1 Ed. III. was not barely repealed but declar'd in Parlament to be unlawfull because Ed. II. was living and true King and imprison'd by his Subjects at the time of that very Parlament of 1 Ed. III. Thus far this Precedent is good But I will conceal nothing that may with any colour be objected against it And I cannot deny but what the Authour of the Letter objects against the Bishops constituting a Proctor to represent
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