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
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
of an Instrument under their Hands and Seals will further appear to be a breach of the Canons if you consider the Letter of the Canon made Anno 1222. in the Reign of H. 3. which you may find among the Constitutiones Archiepiscopi Stephani in Linwood f. 146. Authoritate quoque Concilii districtius inhibemus ne quis Clericus beneficiatus aut in Sacris Ordinibus constitutus litteras pro poena sanguinis infligenda scribere vel dictare presumant vel ubi Judicium sanguinis tractatur vel exercetur intersit From this Canon I conclude That Clergy-men ought neither to be present themselves nor depute others per litteras to be present pro poena sanguinis infligenda We have likewise a very pertinent Observation upon this Matter in an ancient MS. Chronicl in libro Mailrosso which hath written very largely of this Parliament that was held 21 R. 2. wherein the Prelates are blamed for that Opinion which they gave generally about the Revocation of Pardons because the consequence thereof was the Death of those whose Pardons were Revoked Dederunt ergo locum saith the Book Prelati judicio sanguinis in hoc facto Ita quod debitatur a pluribus si non incurrerent irregularitatem pro negotio memorato unde contigit quod propter istud minus peccatum inciderent in aliud Majus peccatum consequenter ut laicam personam constituerint Procuratorem pro eisdem qui illorum vice consentiret adjudicium sanguinis dandum in dicto Parliamento si necessâ— foret occasio emersisset c. So that upon the whole Matter it is irrational to think that their departure from the House ever before this was meerly in respect of the Canons when we see that the first offer of the King and Parliament to admit them to the exercise of Jurisdiction for that time was by them kindly accepted with a Non obstante to the Canons of the Church It is true the giving Judgment of Death by Proxy was as great a violation of the Laws of England as of the Canons of the Church yet inasmuch as Consensus tollit errorem it was for that time well enough 2. This is further illustrated If you observe that in those Cases to which the Prohibition of the Law did not extend they made no scruple of Sitting and Voting although their Voting in those Cases was against the Canons of the Church This may be instanced in the Cases of Bills of Attainder for although the Canons do prohibit them from Voting in such Cases as much as any Case whatsoever inasmuch as in passing the Bill they Vote That the Person is Guilty and shall stand actually Attainted of High Treason and shall be deemed and adjudged a Traytor and shall suffer as in Cases of High Treason c. yet they do generally Vote because that the Prohibition of the Law doth not extend to Voting in Bills of Attainder seeing that is not Agitare judicium but onely Legis lationem what they do in that Case is not Judicially but onely the exercise of their Legislative Power otherwise the House of Commons would make themselves Judges and would challenge a Judicial Power in the Tryal of any Lord seeing in passing Bills of Attainder they do every whit as much as the Bishops for they Vote that he is Guilty c. and that he shall be adjudged a Traytor c. And the Act of Parliament runs Be it Enacted by the King the Lords Spiritual and Temporal and Commons in Parliament assembled For these two Reasons I think it very improbable that the Canons was the onely cause why the Prelates did depart the House when Capital Cases were Debated But that the weakness of their Objection may further appear I answer Thirdly Although we should admit that the Canons of the Church were the first occasion of the beginning of this Custom among us and that those Histories and Chronicles which inform us after this manner do say true yet this is no Argument against the validity of a standing Custom the Commencemant of which is not upon Record for Histories and Chronicles are not Matters of Record neither are they in Law such strong and undeniable proof of the beginning of any usage as to make it no Custom neither are the Canons of the Church Matters of Record and therefore cannot prove that there was no such Custom before the making of those Canons Seeing then it is without doubt that there was a Custom that the Prelates should not exercise Jurisdiction in Capital Cases and there is no Record that doth mention the time when it did begin nor any time when it could be said There never was such an Usage it must of necessity be supposed that it is as ancient as the Government it self and part of the Fundamental Contract of the Nation whereby their Jurisdiction was originally limited that it should not extend to such and such Cases So that I do not argue from the validity or invalidity of those Canons nor from any Construction that may be made upon the Letter of the Canons but insist upon it as part of the Common Law of England and do absolutely deny that it had its Original and Force from any Authority that the Pope of Rome with or without his Council or a Convocation of the Clergy in England had to impose Laws upon us but affirm that its force and obligatory Power did solely arise from the voluntary reception approbation and usage allowed by the People of England which being by them transmitted to Posterity is a thing reputed to have been used and practised time out of mind and is thereupon ranked among the Common Laws of this Kingdom which are no more but general Usages or Customs of general Concernment to the whole Nation in things of Temporal Conisance first upon reasonable Considerations by consent allowed and then transmitted as a Tradition to Posterity by whom they are supposed to have been in ure ever since it was a Nation But this matter of Judicature in Capital Cases is a point of Temporal Jurisdiction in a Temporal Court viz. The High Court of Parliament and therefore of Temporal Conisance the departure of the Clergy when such Cases came to be Debated hath also been an interrupted practice for many Ages together yea and most strictly observed in the first Ages whose Transactions are Recorded as hath been already proved and it is impossible by Record to trace it to its first Original Therefore it agreeing with every part of the definition of Common Law is part of the Common Law it self and doth consequently bind all subjects to its Observation as a standing Law not alterable any way but the same way it at first took its force that is by general consent according to the Maxime laid down by my Lord Cook in his 1. Inst. 115. b. Whatsoever was at the Common Law and is not ousted or taken away by any Statute remaineth still And although this Practice that was enjoyned by
these Canons was here allowed and observed yet that observation was not out of respect to the Canons as such but as they did command such things as were judged rational and it had been the same case if the Custom had begun in England in imitation of other Countries as it is upon the account of the Canons For though the Bishops of Rome claiming an universal and absolute Power of Legislation in ordine ad Spiritualia over all Christendom took advantage of every Opportunity that offered it self for the obtaining of this Right which they pretended was Jure divino and in Right of their Vicarship due yet knowing that Princes would not so easily part with the Jewels of their Crowns in suffering their People to be in Subjection to the Laws and Constitutions of any foreign Prince in things which either directly or indirectly did affect their Temporal Possessions they thought it necessary to manage their Business with all imaginable artifice and cunning by bringing the Laity to the humour by degrees and accordingly did at first collect certain Rules and Directions for the Government of the Clergy onely which were called Decreta first published in England during King Stephens Reign as some do think though others reckon it was long before but never throughly observed in England Kellaway 7 H. 8. 184. But having got a small incouragement by the reception of these Rules in many Countries they thought they might venture a little further and then would have the Laity as well as the Clergy to give Obedience to their Edicts but that must be first in some inconsiderable indifferent things as Abstinence from Meats c. and did not style them with the Lordly Name of Leges but with a great deal of Meekness and Humility and the Complement of Servus servorum Dei did offer to their Consideration certain Rogationes whence the Abstinence-week before Whitesunday was called Rogation-week as Mâ—â—silius Pat. lib. Defensor pacis 2 part 23. observes Christians having out of Piety and Honour for his Holiness yielded Obedience to these same Rogations they made bold to proceed one step further that is They together with their Councils made certain Orders or Decretals about Temporal Matters but in ordine ad Spiritualia too when these came first into England See Matthew Paris 403. To these Decretals Obedience was required from Prince and People and all Contumacious and Obstinate Delinquents were most severely Anathematized The Decretals were such as these That any Clergy-man that was grieved by a Judgment or Sentence in the Court-Christian or any other Court Ecclesiastical within this Realm might be relieved by an Appeal from Rome That no Lay-man should have the Disposition of any Ecclesiastical Preferment nor the Presentation to a Church That he shall not Marry within such and such Degrees That Children born before Espousals be legitimate That the Clergy should be absolutely exempted from Secular Power c. Yet these Decretals met with very little respect in England France or any other part of Christendom except Peter's Patrimony in Demesne the Popes own Territories called by the Canonists Patria Obedientiae For in England to wave any discourse of the Laws and Customs of other Countries in stead of being received and observed according to Expectation they were stoutly opposed by the Judges and Magistrates as derogating from the Soveraignty and Prerogative of the King and tending to the detriment of the Rights and Properties of his Subjects And in Confirmation of this several Acts of Parliament were made to curb the Insolence of those usurping Popes and to punish the audacious Enterprises of those factious and disloyal Subjects who did presume to attempt to controll the Judgments that were given in the Kings Courts by Process from the Pope or to procure Provisions and Reservations of Benefices by Bulls or Breve's from Rome See 27 E. 3. c. 1. 48 E. 3. c. 1. 25 E. 3. c. 22. 16 R. 2. c. 5. whereby such Suers of Appeals and Procurers of Bulls and Process from Rome for the purposes aforesaid are made liable to the Penalties of a Praemunire whereby the Body of the Offendor is to be Imprisoned during the Kings Pleasure his Goods forfeited and his Lands seised into the Kings Hands so long as the Offendor liveth How far the Benefit of Clergy was allowed I have already shewn And as for the Matter of Legitimation you may see the Statute of Merton c. 9. Et rogaverunt omnes Episcopi Magnates ut consentirent quod nati ante matrimonium essent legitimi sicut illi qui nati sunt post matrimonium quantum ad successionem haereditariam quia Ecclesia tales habet pro legitimis Et omnes Comites Barones responderunt quod nolunt Angliae leges mutare quae hucusque usitatae approbatae sunt Vide 18 E. 4. 30. a. All which Statutes are Declarative of the Common Law and therefore do prove that the People of England were never obliged to allow of any Decrees of Councils or Canons of the Church further than they judged it fit and convenient so to do which Arbitrary Reception together with a Transmission to Posterity did of it self make it one of the Laws of England which continues in force though the Councils or Convocations should afterward repeal their Decrees till they be altered by Act of Parliament Co. 5. Cawdries Case 9. Davies Reports 70 71. the case of Commendam And the Preamble to the Statute of Dispensations and Faculties made 25 Hen. 8. c. 21. which runs in this manner Whereas this his Majesties Realm recognising no Superiour under God but onely his Majesty hath been and is free from subjection to any mans Laws but onely such as have been devised made and ordained within this Realm for the wealth of the same or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty by their own consent to be used among them and have bound themselves by long Vse and Custom to the observance of the same not as to the observance of the Laws of any foreign Prince Potentate or Prelate but as to the customed and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consents and Customs and none otherwise And so it is in Co. Rep. 5. â— part fol. 31. All Canons Constitutions Ordinances Synods Provincials c. are inforce that have been by general Consent and Custom within the Realm allowed and so may be general consent be corrected enlarged explained or abrogated Seeing therefore it is evident from what hath been already said that those Canons and Constitutions of the Church concerning Judicature in Matters of Blood have not onely been practised and allowed in this Nation successively for several Ages together beyond all time of Memory but also ratified and confirmed by Act of Parliament it follows that they have the force of Laws of England and are not alterable without an
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.
of Glocester and others to kill the King he was thereupon Arraigned before Thomas Earl of Warwick and other Justices of Oyer and Terminer in Middlesex and Tryed by a Common Jury and found Guilty afterward the Record was removed to the Kings Bench and the Bishop put into the Marshalsea and afterward he is brought to the Bar and being asked if he had any thing to shew why Judgment should not be given on him he pleads his Pardon and it is allowed See the Record of his Attainder Hill 2. H. 4. Coram Rege Rot. 6. Co. 2. Inst. 636. 3. Inst. 30. But to come somewhat nearer our times Fisher Bishop of Rochester is Indicted Arraigned and Tryed by a Common Jury for speaking Treasonable Words against an Act of Parliament made the 26 of H. 8. making the King Head of the Church and abolishing the Authority of the Pope of Rome and was Condemned at the Kings Bench and Executed Br. Tit. Tryal 142. Inquest 99. 27 H. 8. The last that I shall name is that Holy and Renowned Martyr Archbishop Cranmer who was Tryed with Lady Jane Gray and her Husband Lord Guilford and two younger Sons of the Duke of Northumberland Ambrose and Henry at Guild-Hall before the Lord Mayor and Judges the Third Day of Nov. in the First Year of Queen Mary's Reign 1553. Where they were all found Guilty and Condemed of High Treason None of these were Executed upon this Judgment except Lady Jane Gray and her Husband who upon a Second Miscarriage of her Father the Duke of Suffolk in joyning with Sir Thomas Wyat to oppose King Philip's Landing were Executed in the Tower the 12th of Febr. following On the 20th of April following Cranmer Ridley and Latimer were adjudged Hereticks at Oxford and Degraded by Commission from the Pope and a little after Cardinal Poole succeded Cranmer who was burnt as a Heretick 14th of Febr. 1556. All this is known to those that are acquainted with the Transactions of those times and therefore it is evident both from the Authority of Learned Men and the Practice of all Ages in all times that Bishops have been Tryed by Common Juries And sure it was not without ground that so Grave and Judicious an Author as Camden should say That the Spiritual Lords enjoy all the Priviledges that Temporal Lords do saving only the business of Tryal by Peers Having thus proved what I before asserted concerning the Tryal of Lords Spiritual I shall in the next place consider the Answers that are generally made to these Arguments and Authorities Those I observe to be principally two 1. They will very well agree with those Authors that say Bishops are not to be Tryed by Peers but then say they it was not for want of Peerage but because they would not be put to answer for any Capital Crime before Lay-Judges 2. They say that if it happened that at any time a Bishop was Tryed by Lay-men and by Common Juries then they were first Degraded If there were no more to be said for this the very reading of the fore-mentioned Precedents would easily make appear the weakness of these Objections for it appears by the very Records that their Priviledge of Clergy was insisted upon and that with a great deal of Zeal and Fervency insomuch that the Passage of the Bishop of Hereford is a thing taken notice of in a special manner by all the most Famous Historians of this Nation and it is generally agreed that about Fourteen Bishops came with their Crosses erected to the place of Judgment threatning all people with Excommunication that offered to oppose them in that which they intended and yet we find that he was not delivered till after he was found Guilty And it 's manifest from all the other Precedents that they were found Guilty and most of them Condemned to die upon the Verdict of Twelve Lay-men But as to the business of Deprivation you may observe that throughout the whole Records they are named Bishops as Episcopus Herefordensis Eliensis and Roffensis which could not be if they were Degraded for then these Titles were not rightful additions in Law And although it being evident that so it was de facto is a sufficient Answer to the Objections yet for more abundant satisfaction I shall be somewhat more large in this and shall shew that so it ought to be de jure In handling this Point I shall consider these following Particulars 1. To whom this Privilegium Clericale or Exemption from Temporal Jurisdiction ought to have been allowed 2. I shall consider somewhat of the Nature of this Exemption and Immunity and how far they were exempted from Secular Power 3. I shall examine in what Cases it was allowed and in what not 4. At what time 5. Upon what account it was that Clergy-men were delivered to their Ordinaries in those Cases where the benefit of Clergy was not allowed And lastly I shall shew at what time regularly they were Degraded I. As for the first It was generally allowed to all within Holy Orders whether Secular or Regular and in an equal Degree to all such not respecting Superiority or Inferiority The poor Country-Parson had as good and as large a Right to it as my Lord Bishop This is proved first From the Canons that gave this Immunity the first I think were made by Pope Gaius and those run Clericus coram Judice Seculari Judicari non debet nec aliquid contra ipsum fieri per quod ad periculum mortis vel ad mutilationem membrorum valeat perveniri c. See Linwood Tit. de foro compet c. contingit Polichro lib. 4. c. 24. of Pope Gaius and Onuphrius in his Comment upon Platina in the life of that Pope Therefore seeing he cannot take any advantage of these Canons except as Clericus and must claim it by the same Name that inferiour Priests do he must have it in the same Degree But that which is a great deal stronger than the Construction of Canons is the Confirmation that is made by our Acts of Parliament this Priviledge is granted to all that are Clerici or Clerks in French and Clergy-men in English and to all such indefinitely without distinction or respect of the several Ranks and Degrees of men within Holy Orders So you will find it in Marlebridge c. 28. West 1. c. 2. Art Cler. c. 15. 25 E. 3. c. 4 5. 4 H. 4. c. 3. and the rest So that without all question a Bishop can pretend to no more Priviledge than any other Clerk causa qua supra This I thought fit to observe first because that every Authority and Precedent that I shall bring of an inferiour Priest is as strong for my purpose as if it were of a Bishop II. As for the second Point I shall not need to be very large upon it but shall observe one thing which will be serviceable to my present purpose and that is this That every Temporal Magistrate and Judge of this
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