it to the Son and his Descendents and to the Family he should derive from himself and when this was alienated in Fee the descent of it was directed agreeably to the manner and direction of the first Collation If the Father gave the Son the Estate there was a Tenure created of the Father as there was in all Feofments of the Feoffer before the Statute of Quia emptores terrarum and it is a Rule in Law that a man cannot be haeres dominus Stamford's Exposition of the Prerogative chap. 5. fol. 23. B. If before the Statute of Quia emptores the eldest Son had enfeoffed the middlemost to hold of him and had taken his Homage the middlemost dieth without Issue the youngest should have had the Land and not the eldest Howbeit if there were no youngest Son or any other Heir than the Feoffor might claim the Land again by Escheat and not otherwise Another is this for a reason in our Law why the Children of several venters shall not inherit each others Lands it is told us it is so because they are but of the half blood to one another and therefore the Brother of the first venter shall not succeed to the State of the Brother by a second venter which dies without Issue But the Land must descend to the Uncle But this Uncle can be but of the half blood to the Nephew and the very reason that is given for the Law makes the Law unreasonable But the true reason why the Brothers of different venters cannot inherit each other is a disallowance that our Ancestors the Saxons had of second Marriages they as most of the Germane Nations esteeming them as concubinat and at best but as permitted Fornication So Tacitus tells us in his Book de moribus Germanorum that they did not allow of Second Marriages Ne non maritum sed matrimonium ament non nuptam sed nuptias and agreable to this Opinion are descents governed in several Countries in Germany at this day This tho' it is apt to excite all Gentlemen of the Robe never to acquiesce in any reason of the Law that is not sence which if they do they will forfeit their Reason and Judgment I should not have been so impertinent as to have mentioned in this Discourse but that this dealing in Causes without the exercise of clear reason about them hath brought it to pass that much of our Law will not sort to Natural Reason and Justice and this gave one great occasion to the Rise and Growth of the Court of Chancery Since it came in my way to shew the Original of the other Courts and the Reader may wonder that there is nothing in Antiquity that gives Authority to so celebrated and so busie a Court as this is at this day I will here offer an account of the Rise and Growth of it which will prepare the way for taking of it down which is no less a Reproach than it is a Grievance to the Nation There is nothing so great a Reproach to a Nation than to have Laws that are confessedly not good and equal to continue them and yet to allow of an Authority to reproach them with Iniquity that our Courts of Law should be under Rules and Obligations to pronounce Judgments which a single Gentleman shall authoritatively controul and condemn as unrighteous that Law and Equity should be Opposites That a Judgment must be made up and formd in a Case and what is equal just and fit therein must not be considered though it can be and will in another Court have a judicial Consideration Our Judges at Law take themselves bound not to hear or regard the Allegations of the Defendants against the Plaintiffs pretence which ought in good reason to bar them therein or at least qualifie the Judgments when the same matter shall be heard in Chancery and prevail either wholly to set aside or to qualifie the same Judgments This is not only to be complain'd of as derogatory to the Reputation of the Wisdom of the Nation but is insufferably oppressive to the Subject by the multiplicity of Suits tedious and vexatious Delays Nay by this ill Contrivance the Expences sometimes equal sometimes exceed the Value of the Right which is litigated and which is worse the Event of the Suit is very uncertain and fortuitous But this is not all our Law it seems is not a Rule that extends it self to all Causes and we have Rights confessedly such and which can be judicially remedied to which the Common Law extends no Relief For a thousand Causes in a year are for that reason heard in the Court of Chancery Two such Reproaches no Nation but ours hath ever yet incurr'd or suffer'd For Law and Equity is no where else opposed and every Right hath his Remedy by the Law of the Country but ours The first great occasion to the rise of the Chancery was Feoffments made upon Trust to uses in the time of our Warring about the Title of the Crown to avoid Forfeitures The Judges in tenderness to the Condition and necessity of those times did judge that an Use was no Right though most certainly it is For it is jus ad rem that nothing might be forfeited when it depended upon chance whether a man should be a good Subject or a Traitor And the same consideration easily admitted of any Authority that would interpose to relieve against those who would abuse or deny such Trusts and no body brought into question that authority by which a piece of justice so necessary to the Nation was administred Another great reason of the business of the Court of Chancery is that which we before-mentioned that we have not improv'd the Statute of Westm 2 C. 24. And a third is the ill conducting of our Laws our Ancient Judges were infected with the Monkery of that time men of no Learning and of a vain Subtilty The Theology of those times was insipid and most trifling and the Administration of Justice agreably turned into a vain art of disputing the apices juris and a subtilty was used too fine for business and to govern the affairs of Men that governed themselves by none of those Superfineries They argued without Discourse or discoursed from positive Rules or Presidents which were almost the same with them as Rules of Law and not from the true Merits of the Cause and its own particular reasons of Right And the Common Law which is Lex non scripta i. e. that which a wise Judicature should declare upon the consideration of the present Case was by the Proceedings of our Courts turn'd into a Lex scripta positive and inflexible and the Rule of Justice could not accomodate it self to every Case according to the Exigency of Right and Justice But if it were consider'd that there can be no Prescription against Justice that no Presidents where a Right hath not been relieved can be pretended why it should not be assisted hereafter And if a matter
the great convulsions of State and the simultates amongst the Great men and extravagant excesses of injustice to the glory and honour of the Bishops it must ever be remembred that they did preserve themselves from being ingaged in such violences as were committed against the last mentioned Lords But that the Author of the Octavo should produce the Case of Sir John Mortimer against us who was condemned upon a bare Indictment without Arraignment or due Tryal a good reason why the Bishops were not there when he immediately after produceth the Case of the Duke of Suffolk wherein the Bishops were present and will have it stand for nothing because in that it was irregularly proceeded is monstrous partiality and iniquity But in what I pray was the irregularity in the Case of the Duke of Suffolk Why because the Commons desired he might be committed upon a general Accusation But he was not And the second irregularity was that some Prelates and some Lords should be sent down to the House of Commons which is often done But it is not the Prelates that he is thus concerned for but that the Lords lessened their Estate This to excuse him might make him very angry with that Case and quarrelsome And yet after all there is a fallacy in the Case of Sir John Mortimer which he would put upon us for Sir John Mortimer was condemned by Act of Parliament and therefore the Bishops might have been there if they had pleased and that with his leave For it was by the Duke of Glocester who in the Kings absence was commissionated to call and hold that Parliament by the Advice of the Lords Temporal at the prayer of the whole Commonalty in this present Parliament and by the Authority thereof ordered and decreed that he should be led to the Tower and from thence drawn to Tyburn I cannot therefore but observe how by the pretence of the Canon a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sometimes and by other prudent Arts and Recesses from tumultuations the Bishops kept themselves often from being engaged in the Animosities of Great men against one another A matter remarkable for the commendation of their Exemplary Wisdom and Justice and a Recommendation of the men of that Order to be continued in the greatest trusts that the Government hath committed to them But now shortly and summarily to review what we have offered in the matter of Precedents and together to consider what true value and weight they are of in the Cases of Roger Mortimer and Haxey and of Sir John Mortimer 2 H. 6. every body may see a reason why the Bishops should not act if they had Authority and therefore without wilfulness it cannot be concluded they had none Who sees not that these Cases are Precedents for us for that the Bishops judged in the Reversal of the sentence against Haxey which if they had reason for it they ought to have affirmed And the Bishops might have been present rightfully at the undoing the Attainder of Roger Mortimer by the Confessions of these Authors The Proceedings in the Parliament of 15 E. 3. is a true argument of the Bishops modesty But it proves more than he is willing to prove if true viz. that the Bishops cannot joyn in making Laws to punish publick Crimes and therefore logically concludes nothing besides that the matter is false in fact as it is alledged The Cases of Sir William Thorpe and Sir Ralph Ferrers taken at best for him are but militant and have as much to say for as against the Bishops being there present But to be true to the cause of the Bishops We have this advantage against him that the Bishops were always in the possession of their Right because never fore-judged and it was once theirs as we shall prove by and by And this makes a presumption that they always used it when there is nothing to the contrary The Bishops were not present in the Bishop of Norwich's Case but the Bishops may be at any time absent upon a sontica Causa The defendant was a Bishop which was a very allowable one in those times But this must be considered with the Case of Thomas Arundel Bishop of Canterbury in whose judgment they were present virtually by their Proxy and therefore had a Right to be there The Case of John de Gomets and William de Weston is unduely and against the faith of the Record produced against us for upon the truth of the Record the Bishops were present notwithstanding any thing that can be from thence deduced to the contrary The Case of Sir William Rikehil 1 H. 4. is for us so is the Case of the Earl of Northumberland 5 H. 4. The Case of John Hall who murdered the Duke of Glocester and of the two Merchants that killed John Imperial the Genoua Ambassadour 3 R. 2. are foreign to this question and so is the Case of Sir John Mortimer except Judicial Authority and Legislative Authority in Blood are of the same consideration as I think they are and shall hereafter make out to be probable and then those Cases are for our Right They confess that the Bishops might have been present if they pleased and their absence at the passing of those Bills doth not conclude against their Right themselves being Judges The Writ de haeretico comburendo is of another consideration and doth not fall in with the present question There was no Judgment given or to be given in the Cases of the Earl of Huntingdon Kent Salisbury Lord Le Despencer Sir Ralph Lumley the Earl of Northumberland and Lord Bardolph All these Precedents such as they are happened in no long Tract of time but very tumultuous Not one of them pretends to be an exclusion of the Bishops upon Judgment or positive declaration of State They pretend to be only instances of Omission or non user which may well consist with a Right And yet contrary to the true import of these Precedents and the true Nature of them being only of Omission and absence of the Prelates which as they are can make no induction or establish any proposition whereupon to frame an Argument or conclude a prescription Besides that a prescription is not possible in a meer negative and to and of nothing And where no body can use or possess that Authority in pretence in the defailance of the party to use it whose Right it was Besides that it is not a prescriptible matter which we shall further explain hereafter it being in a matter of the Government and a Right arising from its constitution Contrary I say to the whole nature of the matter He makes this Argument à saepe facto ad jus valet argumentum His Argument should have been if agreeable at all to the matter this That where a Right is sometimes not used there can be no Right But if this had been said in English every body would have condemned his reasoning and disallowed if not laughed at the Argument So that we have
ought to set aside and supersede the consideration of Decency CHAP. XII BUT to complete our Evidence I will add the consideration of what remains unquestionably the Right of the Lords Spiritual which seems to me to be in parity of Reason with the Right now in Pretense and that is their Right to be authoritatively present and assisting at passing Bills of Attainder which the Bishops always exercised as the Folio saith though he will not think it allowable from thence to infer that they have rightful Authority when that House doth proceed judicially to Condemnation But I desire to be informed what difference there is between condemning a man by Act of Parliament and by Judgment in Parliament If the death of the man be onely considered it is as much against the Canon to condemn the man one way or the other It 's causa judicium sanguinis and death follows Nay to condemn a man by Bill of Attainder is more against the reason of the Canon than the condemning a man judicially for the condemning a man judicially is ex officio Judicis but a Bill of Attainder is an extraordinary use of the Legislative Power to a purpose which was not designed in the Institution Such an Act is not ex officio Legislatoris but the using of the Absolute Power of the Sovereignty upon Reasons of State Here one would think if the Canon had any consideration any obligation it should restrain the Bishops from meddling in such Legislations Privilegia ne irrogunto was one of the Laws of the twelve Tables But if I do rightly understand the reason why Bishops did more frequently and without pretence of scruple or objecting the Canon assist in the Bills of Attainder was for this reason That the weightiness of the Affair the high nature of the Proceeding the extraordinary use of the Legislative Power which can be warranted onely by extraordinary Reasons required their Presence and put that little pretence of the Canon out of countenance it could not with any faith to the Government be then so much as mentioned for an Excuse by the Bishops And this I will say that the Canon hath no more right of restraining the Bishops in Judicial Proceedings than in the Proceedings upon Bill of Attainder That it hath not done so is confessed in this and therefore it did not de jure do so in the other The Folio Author hath found out a very extraordinary Reason why Bishops are necessary to Acts of Attainder but this he saith must not be drawn into an Argument for the Bishops Right of Judging and that is because Rights Titles and Interests are made forfeit by Acts of Attainder which were not forfeitable at Common Law and for the doing of this it iâ— necessary there should be a concurrence of the three Estates to bind all Rights This Argument supposeth that private Acts of Attainder did not always conform themselves in the matter of Forfeitures to the severity of the Common Law or general Statute Law which is a mistake for before the Statutes of 26 H. 8. c. 13. 33 H. 8. c. 20. private Acts of Attainder made no Forfeitures but what the Common Law made and since the Statutes of 26 H. 8. c. 13. 33 H. 8. c. 20. the private Attainders by Parliament have not exceeded those appointed by that Statute but have often times gone less And therefore the Bishops were not present for the reason of making Forfeitures larger and of more things than the Law at the time being made forfeitable but of common duty especially in all these matters of an extraordinary nature or difficulty to assist as Judges and Councellours in that House And to this that I now say all the Acts of Parliament of private Attainders that I have seen and they are not a few are agreeable I believe what he hath said in this matter is not grounded upon any observation but he was willing to find out a Reason for what he had undertaken to prove and to offer it without trying of its truth Besides whatever can be a Law can be a Law without them and if they are absent CHAP. XIII BUT I must take notice that we have proved beyond what is necessary to maintain the Lords Spiritual their pretence of Right to judge of the Earl of Danby's Pardon which is the present case and gives the occasion of this Dispute And here I desire the Reader to remember and observe what was heretofore done by the Bishops in case of Heresie The Bishop in his Consistory convicted a Heretick and did never imagine he incurr'd the Canon pretended though the delivery over to the Secular Arm and burning of the Convict if he did not recant was intended assuredly to follow because he did not award the Execution and give the final killing Sentence How then can the Canon if it was a Law as it is not nor obligeth any man but he that will be obliged lay any restraint upon the Bishops in judging of the Earl of Danby's Pardon For if they dislallow his Pardon and reject his Plea he is not to be therefore condemned though perhaps his Condemnation may follow as burning doth the Conviction of a Heretick but he is not ipso facto and merely by rejecting his Plea of Pardon condemned For observe I pray no man is condemned or cast in any Suit because he doth not make a good Defence but upon the sufficiency of the matter whereupon he is charged Besides that it is not without Precedent that a man hath been tried after a Pardon pleaded and disallowed This every Lawyer knows to be so that if a Plea is pleaded to any Declaration upon which the Plaintiff demurs if the Plea be ruled a bad Plea the Defendent hath liberty to take exception to the insufficiency of the Declaration So that Judgment is finally and truly given upon the Declaration and Charge because there is a good cause of Action and not because the Defendent hath made a bad Plea So that the Bishops may judge in their own persons of the validity of Pardons without being contravenient to the Reason of the Canon so much talked of is evident for that the Judgment upon the Pardon is not the final and killing Judgment The Folio hath furnished us with an Authority for the same out of an ancient Manuscript Chronicle in libro Mailrosso he calls it wherein he saith the Prelates are said to have given their Opinion in 21 R. 2. for the revocation of certain Pardons of the Duke of Gloucester Earls of Arundel and Warwick which were granted in 11 R. 2. and in the Parliament of 21 R. 2. repealed And though the Chronicle said some blamed the Bishops and thought that they had incurred thereby Irregularity That doth not at all prejudice our Right nor abate the force of the Testimony that this matter of fact gives to it We reserved it to this place to add that as the intention of the Assize of Clarendon was to set bounds