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
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
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
Arguments whereby my Adversaries do support themselves and maintain the Jurisdiction of the Lords Spiritual in Capital Cases And 1. Their Grand Objection is That they never absented themselves when Capital Cases were Debated upon any other account then because they were prohibited by the Laws of the Holy Church to consent to the Death of any man And accordingly they made their Protestation 11 R. 2. when they departed the House Juxta Sacrorum Canonum instituta non licet nobis interesse c. And such a voluntary Departure for Conscience-sake say they lest they should concern themselves in the Effusion of Innocent Blood could neither conclude themselves nor their Successors from claiming their Right to be present by the Fundamental Law of the Land as Peers of Parliament Here lies their Strength and therefore a solid Refutation of this will remove all manner of Scruple and discover the vanity of their pretensions to any Jurisdiction of this kind Therefore in answer to this I shall offer these following Considerations 1. What-ever was the Reason that induced them to absent themselves when such Matters came to be Debated yet it is manifest from what hath been said that there was an Act of Parliament to which they were obliged to give Obedience as well as the Canons of the Church that did expresly prohibit them to exercise Jurisdiction in those Cases and although they did say that their Departure was in Obedience to the Canons of the Church yet without doubt we ought to construe their Departure to be also in Obedience to the Laws of the Land For the Case at the most favourable Representation is no more than this The same thing is both prohibited by the Law of God and the Law of Man those who forbear from the thing prohibited do say they do it because they are so commanded by the Law of God and say no more In this Case we cannot construe that either the Law of Man doth lose its force and obligatory Power or that those persons who said they forbore from the thing prohibited in Obedience to the Law of God did either not obey or disobey the Law of Man I mean In foro hum ano If then the Prelates in former times did give Obedience to the Laws and Constitutions of this Nation in this particular much more ought their Successors whose Principle is strict Obedience to the Government of the Kingdom and perfect submission to the Higher Powers The truth is it was a happy thing that in the days of their Predecessors the Law of the Church and the Law of the Land did so well agree in this particular and if you would consider the Humors and Principles of the Men you would not wonder so much at their Non-acknowledgment of the Laws of the Nation when they could secure themselves against the Compulsion of them and Punishment inflicted by them without making any such acknowledgment It is not strange that those men whose Zeal for Religion was seen most in their Contentions and Wranglings with the Civil Power and who thought that Obstinacy and Disobedience to Regal Authority and the Laws and Constitution of the Government where they thwarted the Ambition and Grandeur of the Pope and his Clergy was the most certain way to merit Canonization and that Beckett and Stratford and the rest of that Rebellious and Disobedient Tribe were the mightiest Saints that ever lived upon Earth It is not strange that those Men that would trample all Humane Laws under their Feet if dissonant to the Canons of the Church should pretend that when the Canons of the Church did agree with the Laws of the Land they yielded Obedience to the Canons of the Church without taking notice of the Laws of the Land And indeed it was an extraordinary Specimen of Candor and Modesty that they did with so fair a pretence save themselves from the inconvenience of acknowledging the Temporal Power in the limitation of their Honour and Jurisdiction which they were never known to be very forward to do But God be thanked the times are turned we have reason to expect more Humility and Loyalty from our now Spiritual Fathers whose Principles do not allow them in the least Opposition to lawful Authority and who it is to be hoped will never insist upon any thing except they think that by the Law of the Land it is their Right Secondly Although they pretended that their departure from the House during the Debates of Capital Matters was in Obedience to the Canons of the Church yet it is more than probable that the consideration of the Law of England by which they were compellable to depart whether there had been any such Canons in force or not was the strongest Reason why they did with-draw and that for these two Reasons 1. Because it is observable That if those in whose power it was to dispense with their Disobedience to the Laws of the Land did at any time give way to their Presence or Consent that they should exercise Judicial Power in those Cases then the Lords Spiritual used generally to make bold with the Canons of the Church at least 〈◊〉 vice How then can it be supposed that at other times when there was no such Licence or Dispensation their Departure was onely because of the Canons of the Church That Record of 21. R. 2. where they did consent to Constitute a Proxy who should in their Name agree or disagree to any Judgments of Death that should be given in that Parliament is very considerable for this Point for in that Case they gave Authroity to another to do a thing which was unlawfull for them to do themselves and it was done because the King and Parliament being the Fountain of Law and having power unica vice or more to dispense with any Law at least such as come not within the Conusance of any other Court beside themselves did give them leave so to do whereas without doubt the passing Sentence of Death upon a man by Proxy was as great a Violation of the Canons of the Church as if they had been personally present and had passed Judgment themselves For can any man rationally suppose that the Clergy were so tender Conscienced that they should not agree to the Effusion of any mans Blood themselves and yet that their Consciences would allow them to Authorize another in their Name and Place and by their Authority to consent to it As if it were not the same thing in point of Conscience for me to kill a man as it is to procure another to do it And so in point of Law that which I am prohibited to do my self I am also prohibited to impower another to do because that which a mans Servant Procurator or Attorney doth by the Command and by vertue of the Authority of the Master is in Judgment of Law and Conscience interpretatively the Act of the Master himself And the Constituting a Proxy in their Names to give Judgment of Death by vertue