continue them great The contempt of the Bishops and Clergy the great cause of our evil State at present out of which we cannot recover but by an excellent Clergy and a high esteem of them with the people The Postscript ERRATA PAge 13. Line 18. read they p. 15. l. 15. r. Taxeotam Buleutam p. 19. l. 9. r. Blaesensis p. 23. l. 4. r. can p. 44. l. ult dele as p. 51. l. 22. to but add not l. ult to usage add other p. 57. l. 29. r. hucusque p. 130. dele in p. 165. l. 8. r. here p. 167. r. interpolatis p. 180. l. 3. dele them to r. send l. 29. to fit add to mention p. 206. l. 29. r. injurious p 240. l. ult dele near POSTSCRIPT P. 32. l. 1. r. he made his natural Sons first noble l. 7. r. Eufame p. 34. l. 1. r. is not subject p. 42. l. 25. r. decedents p. 45. l. 30. r. he p. 46. l. 8. r. more cruel p. 58. l. 18. r. futility p. 59. l 26. r. being What else is escaped the Reader is desired to correct by reason of the Authors absence from the Press The Argument CHAP. I. IN this question the Constitution of the Government is concerned and the Right of a most principal constituent part and that in a matter of the highest Trust which if truly a Right can be no more relinquished as the Nature of this Right is than a trust can be betrayed a duty and a Right denyed to be paid and performed or the Constitution of the Government changed For of such a Nature doth appear to be the Right in pretence and Controversy of the Lords the Bishops to have judgment in the House of Lords in Capital Causes For by their being made Barons they owed their judgments in such Causes as a service to the King at first by their Tenures in Baronage for though since they are become Barones Rescriptitii or Barons by Writ their duty is not abated And besides the Cognisance of such Causes become their own Right being a part of and belonging to the dignity and office of a Baron And it likewise became an appointment in the Government in which the whole Community have their Interest for that is principally provided for and procured in all Governments whose greatest concern it is to have Justice done against all Criminals and to have great and wise just and good men in the Administrations of Justice and other great offices of the Government The people of England did anciently understand the benefit of this Constitution when nothing but the Baronage of England the Lords Spiritual and Temporal could resist the Torrent of Arbitrary Government And it may be easily understood too that nothing but the Baronage of England is able to support the Throne For that Monarchy unless so supported is the weakest and most precarious and dependent Government in the World except it be supported with an Army and turned into a Tyranny That the Throne should be established by Natural and gentle provisions and the Government fixed is every mans greatest interest If the Lords Temporal have more under command and a larger Potestas jubendi yet the Lords Spiritual out-did them Authoritate suadendi and had more voluntary obedience The Lords Spiritual have several Advantages as they are Novi homines men chosen out of Thousands for an excellent Character and Spirit and need not want any accomplishments if duely chosen and preferred for the discharge of the greatest Provinces that are to be managed by wisdome and integrity and therefore they cannot be well wanted in any Ministries in the Government to which they are bespoken and have a legal designation Since this Authority by the very opening of the Cause doth appear probably belonging to the Bishops and if so that it cannot without breach of their duty that they owe to all the parts of the Government and the whole Community depart from it it may surely be insisted upon disputed and maintained by them without blame or imputation But so unhappily it falls out that the very disputing and contending of this Matter by reason of the unseasonableness of the dispute and the delays that were thereby given to the most important business of the Nation to the great hazard as some think of the summ of Affairs was very mischievous to the publick And now both parties are charging one another with all the mischiefs and the delays that this Controversy hath given to publick proceeding or can with any probability be thought to have occasioned And there are not men wanting on either side within doors and without that are forward enough to charge all those mischiefs as deserved by their oppoposite party which may eventually happen hereupon Who sees not how fatal this Controversy is like to prove to one or other of the Litigants and to the Government in consequence if this Cause cannot be duely heard and considered and be determined upon its own Merits without undue Censures and Reflections on either side Since at last the contenders themselves must be the Judges and give judgment in the Cause or it can never be quieted and have an end I am sure passion is no equal Judge and Arbiter and men angred and provoked have not the same sentiments of the same things as when calm and serene And because there is no common Judicature it ought to be considered by both parties with all equality of judgment and an exact pondering and weighing of the reasons offered on either side for that otherwise it can never be fairly decided but must for ever remain a Controversy to the immediate overthrow and destruction of the Government or over-ruled by the force and Power of a most dangerous consequence in the course of time to the Government and will be a laying of the Axe to the very root of the Tree and will put the Government it self into a State of War between the several constituent parts of it and given an occasion for one part to usurp upon another until the tone and frame of Goverment become changed and at last fall into ruine I am very well aware of the gravity of the Question and its importance the high honour and regard that is due to the House of Commons in Parliament what commendations are due to them in their persons for their zeal and endeavour by all means if it be possible to save the Nation Religion and Government And what a great Capacity that House in its very constitution in the first designation of the Government and by their mighty growth in power and interest in the Course of time have in procuring the publick good and that they cannot have any interest divided from the common Weal I must do them right and with the greatest clearness and satisfaction I determine with my self that their zeal for public Justice against unpardonable offences in their judgment and a prejudicate opinion they had conceived of the Spiritual Lords unindifferency how duely will appear by
left this Author neither reason or Argument We have stript the Cause of all the Precedents that pretend to favour it and have left it Rara Avis indeed but not nigro simillima Cygno as the learned Author in Octavo hath it with which he reproaches the Right of the Bishops as assisted only with a single Precedent But to a Bird of no colour at all the bird in the Fable I mean furtivis nudata coloribus to be exposed to laughter with its naked Rump CHAP. IV. BUt if these Precedents had been all such as they pretend to be and the Bishops not present in Judgment in any of those Cases which the Octavo and Folio have produced and if they had been all Capital Causes that came in Judgment in that House and all determined judicially and not by the Legislative power of Parliament and no reason was to be assigned for the Prelates absence from the Nature of the Cause If they had had no inducements to withdraw from any dissatisfaction they had in the prosecution and the pretended Right of the Church-men in those days much insisted upon to be exempted from the jurisdiction of secular Courts had not been the Cause of their absence which suppositions are not so in fact And tho' the Bishops had never used the Authority and power in question as they have yet if we can prove they had once a Right those Omissions of theirs can be no prejudice to the meer-Right Though then I confess we should labour a-the gainst invincible prejudice in the Opinions of most 1. For that no man can lose a Right by not using of it but where that right can be usurpt by another and is so And that usurpation having been for immemorable time when no body can tell when it was otherwise shall in a matter prescriptible be intended to be acquired by good Right and that with great reason in favour of possession and the quieting of them for that Estates and Rights can last longer than the Grants and Evidences or Records themselves that first created them But where the nature of the Right is such as this of the Bishops in pretence is which no body can use for them For the Temporal Lords sit in Judgment in their own Right which is a plenary and compleat right and cannot be made more or less Secondly for that no Franchise from the Power and Authority upward of a Court Leet which can be neither more nor less by usuage than the Law hath establisht can be prescribed to And a Quo Warranto will fore-close and extinguish an immemorial usuage of any irregular and illegal Franchise A Right that can never be prejudged and fore-closed by non user and such is every Right that grows from the constitution of the Government though it should be discontinued for a long tract of time may be at any time rightfully and legally continued The happiness of our Case is that we can point to the time when the Right of the Prelates to sit in Judgment in Capital Causes in Parliament was established And which is more imposed upon them and they put under a Compulsory and obliged by the Tenure of their Lands to serve the Crown in that capacity And that was in the beginning of the Reign of William the Conquerour Mr. Selden in his Titles of honour with great probability hath fixed it in the 4 year of his Reign when he made the Bishopricks and Abbies subject to Knight service in chief by creation of new Tenures upon them and so first turned their possessions into Baronies and thereby made them Barons of the Kingdom by Tenure This he saith is justified by Mat. Paris and Roger of Windover out of whom Mat. Paris took this Relation Anno 1070. so are their words Rex Willielmus pessimo usus consilio Episcopatus Abbatias omnes quae Baronias that is by Anticipation for the Lands made Baronies tenebant in purâ perpetuâ eatenus ab omni servitute seculari libertatem habuerunt sub servitute statuit militari c. This he makes further probable for that in a Manuscript Copy which he used in a very antient hand these words are noted in the upper Margin over the year 1070. hoc anno servitium baroniae imponitur Ramesiae It seems saith he the volumn belonged to the Abby of Ramsey And some Monk of the House noted that in the Margin touching his own Abby which equally concerned the rest of the Abbies that were mentioned in that Relation by their Lands being put under the Tenure by Barony and they made Barons they had a Right to sit with the rest of the Barons in Councellor Courts of Judgment For saith Mr. Selden tenere de Rege in capite habere possessiones sicut Baroniam and to be a Baron and to have Right to sit with the rest of the Barons in Council or Courts of Judgment according to the Laws of that time are Synonymies So that there were no distinctions of Barons as to power and Authority or Jurisdiction but the Right of a Baron was the same whether he was a Temporal or Spiritual Baron for the Tenure of both is one and the same and therefore the Services must be the same The office that is the result of this Tenure is the same in the House of Lords and indeed no office can be less than what the Law appoints it The King cannot make a Peer a Judge or a Bishop and put any Restraint upon the exercise of the powers and the jura ordinaria that belongs by the appointment of the Law to a Peer Bishop or Judge And that it is an office by Tenure can make no difference for the Law declares the Power and Authority So that the Powers of all Barons are and must be equal and what is allowed to one Baron cannot be denyed to another William the Conqueror made the Bishops Barons by putting them to hold as by Barony did not intend only the Bishops more honour but himself also more service and better assured He cannot be intended especially to abate them their service in punitive or vindictive Justice which a Conquerour of all other performances cannot want I do not doubt and if it were not unnecessary to this question likewise to shew that before the Conquest the Bishops or Spiritual Lords had a great share with the Thanes or Temporal Lords in the Government and were then one of the three States agreeable to all the Gothish Saxon for the Saxons were Goths which we must not here insist upon and Modern Governments that have been planted in Europe which we shall speak to more hereafter But we will resort no higher than this of their becoming Barons by Tenure in time of the Conquerour for the clearing of the Prelates Right now in question And therefore we are not concerned to say any thing to the Case of E. Godwin mentioned in the Octavo in Edward the Confessor's time For Brevity sake and because we will
to the Encroachment of the Papal Power and in this matter to declare how far the Bishops might if they pleased observe the Canon Law or rather themselves and what was thought then decent to their Order So according to the Print in Gervasius and therein he differs from Matth. Paris it is Quousque judicio perveniatur ad mutilationem membrorum vel mortem which further clears the meaning of that Law to be that the Bishops were thereby excused not altogether from Capital Causes but onely when it was proceeded so far in such like Cause that Judgment was to be pronounced which when the Bishops had nothing to gainsay they might depart and leave Sentence to be pronounced by the House But we cannot after all this allow the Author of the Folio to have so little sense as with a good conscience to say that he who cannot perhaps by reason of his circumstance and some consideration of Indecency execute a thing in his own person therefore cannot do it by another no more than he can authorise one man to murther another Thus he saith fol. 20. when surely this Gentleman cannot think it as fit for a Judge to be a Hang-man as to sign a Kalendar for the Execution of the Condemned Prisoners But the Octavo is somewhat surprizing in this matter For he doth affirm That it is not lawful for Bishops to vote in any Question preliminary and preparatory to the Sentence of Condemnation when such Sentence follows and the matter preliminary is necessary to the Process This he proves by a Logick Rule Causa Causae est Causa Causati one of Sthalius his Axioms hath turn'd round the Head of this Gentleman I find few men can bear Axioms Maxims and Sentences There are none speak so much unnatural Non-sence as they that use them most May not several men I pray do several parts of an affair and yet he that doth the first part is no ways the Cause of what another man doth in the second and third place Is the acting the first part of the Play the cause of acting the last Or is the laying the Foundation the Cause that lays on the Roof Is the Jury the Cause of any more than their Verdict And doth not the Court give Judgment by their own Authority and Causality If men would speak by Nature and according to first Notions and were not so full of second Notions and Universals we should not have so many Errors Mistakes and Confounding Opinions in the Work But this we complain of as too severe in the Octavo that when he had confounded us with his Causa Causae Causati he would render us ridiculous with a Story of a Friar out of Chaucer That would of a Capon the Liver of a Pig the Head But would that nothing for him should be dead This indeed was a fine piece of Wit in the Poet but translated hither by our Author is an insipid piece of Malice His Design sure in this was to enter the Bishops amongst Chaucer's Friars and then the Learned Readers of Chaucer would be very conceited upon them and apply all his pleasant Satyrs against the Friars to the Bishops But for the farther Evidence of the Bishops Baronage and their Jus paritatis it would not be impertinent here to add That the Names of Barons Peers Seniors Grants have been attributed to the Lords Spiritual in all times in Authentick Histories and Records Forasmuch as a Nominal Argument is not a very inartificial Topick in such a Cause as this Besides that this will destroy the very strength of our Adversaries which lies in this that they will not allow Prelates to be comprehended in the Name of Peers Grants and Barons And that where the Records doth not expresly mention Prelates they will conclude they were not meant or intended to be present But the Collection which was made for this purpose shall not trouble the Reader because in two Books since Printed in Defence of the Bishops Right in question this is abundantly performed Besides that it is a very precarious Conclusion that our Adversaries make and without argument For they ground themselves herein upon a most unreasonable Postulatum viz. That Titles do not belong to persons for whom they were made and to whose Character they agree and that Words do not design the things which they were made and imposed to signifie CHAP. XIV NOw we shall proceed to perform a necessary piece of Justice to the Prelates as well as a Right to the Government to recover its true Constitution from the Prejudice of Modern Ignorance to declare and manifest that our Gvernment doth consist of three States the Lords Spiritual and Temporal and Commons of England These do make the Great Council of the Kingdom and minister to the King Council and Auxiliaries over which the King doth preside as the Great Superintendent and mover of this mighty Machin The consequence of which is that the Bishops cannot be detruded from that place they bear in the Constitution of the Government for that no Government can be legally or by any lawful power changed but must remain for ever once established And it cannot be no less than Treason of State to attempt a change no Authority in the world is competent to make any alteration The Princes of Christendom after they took to themselves the Election of Bishops which is a natural right of the Sovereign Power become Christian they soon observed the advantage that they might make by advancing them to the greatest Secular Dignities Governments and Trusts and did accordingly advance them to an equality if not to a superiority to the highest of the Secular Nobility gave them Dutchies Marquisates Baronies and rich Endowments and erected that Order into a successive Nobility Another sort of Nobility from that of the Lay Princes concluding that they should be better served by men of their own choice and approved worthiness who had also other advantages over the People than those that the Temporal Princes and Lords had by that Reverence they paid to their Bishops and the Authority and Power that they had over them in the virtue of Religion than by the Hereditary Princes and Nobility who did not always answer to the virtue of the original Ancestors and the first stock Besides that Religious Kings and Sovereign Princes did by advancing Bishops intend to do great advantages and honour to Religion but withall they did not divide the Bishops thus advanced from the Secular Princes and Noblemen in Councils for then they had lost their design The Bishops could not have had any direct influence upon the Councils of the Nobles and Secular Princes nor have tempered their Debates with an excellent Charity and firm Loyalty and other Vertues which belong to their Character It would have made trouble distraction and impediment in the Affairs of Princes and emulation and strife and faction between the Ecclesiastical and Secular Orders and several mischiefs and great inconveniencies would have
Laity is meant by seniores populi but if the Lay Barons had been guilty of that which he there complains of as well as the Bishops he would instead of this complaint declaim'd against the folly and madness of the Age for want of justice Licet non dictent judicia sanguinis eadem tamen tractant disputando disceptando de illis seque ideo immunes à culpà reputant quod mortis aut truncationis membrorum judicium decernentes à pronuntiatione duntaxat executione poenalis sententiae se absentent And it is most observable that the Bishops did never excuse themselves from Session in Criminal Causes by virtue of the Assise of Clarendon but from the inhibition of the Canon and the use of the Liberty will best declare the Nature of it CHAP. V. IT 's most remarkable for the understanding aright the true meaning of this Law that the Bishops were admitted Judges in Parliament without exception of the Temporal Lords in the Case of Thomas Becket accused of Treason though the King and Temporal Barons had reason to believe that the Bishops would not do right to the Crown against that unruly and rebellious Prelate and when the Bishops themselves would have been glad of that pretence to have withdrawn themselves And this was about eight Months after the making the Statutes of Clarendon And in a short time after the swearing the observance of them by all the Grants of the Kingdom But the Law was then so well understood however the Letter of the Statute makes matter of dispute now that it was by no body in the least pretended that it was to be understood to such a sence as it is now drawn to viz. to exclude the Bishops the Spiritual Barons from judging in capital Causes in Parliament In those times they had only such an understanding as we have here before offer'd We shall therefore now proceed to give you an account how in the course of time the Right of the Prelates hath been used and recognized We will begin with the Case of Becket Arch-Bishop of Canterbury at a Parliament held in October in the 11 H. 2. Anno Domini 1165 at the Castle of Northampton To this Parliament Arch-Bishop Becket was cited as a Criminal and had not his Summons as Arch-Bishop so that that Parliament seem'd to be conven'd for doing him Justice the offence must therefore be very great so Stephanides tells us as he is cited by Mr. Selden 707. Though he was wont of custome to have the first Summons by the Kings Writ Nec tunc enim saith he nec diu ante ei scribere voluerat qui eum salutare nolebat Nec aliam per literas sibi directas solennem ac primam ut antiquis moris erat habuerat Archiepiscopus ad Concilium citationem Becket was there accused of Treason laesae majestatis coronae saith Fitz-Stephen a Monk of Canterbury that attended Thomas Becket the Arch-Bishop in his troubles Bishop Godwin in his Book de Praesulibus tells us that Arch-Bishop Becket Omnia sibi cernens infesta Naviculâ apud Rumenegam conscensâ in Galliam profugere conatus ventis adversantibus in littus repertus ac deprehensus ad Regem Conventus Northamptoniae agentem adductus est Ibi repentundarum peculiatûs perjurii proditionis falsi nescio quot aliorum Criminum cum à caeteris proceribus tum Episcopis ipsis suffraganeis reus factus This Court is called a Parliament by Mr. Selden and magnum Concilium by Roger of Hoveden and by others as Mr. Selden saith But that it was a Parliament and not the Curia Regis which we shall speak about hereafter doth appear by this certain diagnostick viz. that the Bishops were Summoned hereto by personal Writ of Summons to them directed immediately at that time which appears by what is before cited out of Fitz-Stephen and what is after taken out of Gervasius But to the Curia Regis they were Summoned by the Sheriff by a general Writ to him for that purpose directed which is a distinctive Note and Character of a Parliament as will hereafter appear But Fitz-Stephen saith as Mr. Selden quotes him Titles of honour Fol. 705. that secunda die consulentibus Episcopis Baronibus Angliae omnibus Nay he is so exact in his observation that he tells us who was not there of the Bishops viz. Roffensis Episcopus quidam alias nondum venenat Hoveden tells us how Becket had before behaved himself towards the King that notwithstanding great endeavours used on the Kings part to reconcile Becket to himself He would not be reconciled to the King Post multum tempus saith Hoveden Ernulphus Lexoviensis Episcopus venit in Angliam sollicite laboravit die ac nocte ut pax fieret inter Regem Archiepiscopum sed ad plenum fieri non potuit Deinde per consilium Lexoviensis Episcopi Rex separavit Rogerum Archiepiscopum Eboracensem Robertum de Welun Episcopum Herefordiensem Robertum Lincolniensem Episcopum alios quosdam Ecclesiae Praelatos à Consortio Consilio Cantuariensis Archiepiscopi ut per illos praefatum Cantuariensem Archiepiscopum in suos Conatus facilius alliceret Deinde venit in Angliam quidam vir Religiosus dictus Philippus de Eleemosyna missus à latere Alexandri Summi Pontificis Cardinalium omnium ad pacem faciendam inter Regem Archiepiscopum Cantuariensem Per quem summus Pontifex omnes Cardinales mandaverunt Cantuariensi Episcopo ut ipse pacem cum domino suo Rege Angliae faceret Leges suas sine aliquâ exceptione custodiendas promitteret his igitur aliis magnorum virorum Consiliis acquiescens Thomas Cantuariensis venit ad Regem apud Woodstock ibi promisit Regi concessit se bonâ fide sine malo ingenio leges suas servanturum Et paulo post congregato Clero populo Regni apud Clarendon poenituit Archiepiscopum quod ipse Concessionem illam fecerat Regi volens resilire à pacto dixit se in illa Concessione graviter peccasse quod in hoc amplius non peccaret Rex plurimum in irâ adversus eum commotus minatus est ei suis Exitum Mortem Venerunt ergo ad Archiepiscopum Salisburiensis Norwicensis Episcopi Robertus Leicestriae Reginaldus Cornubiae Comites lachrymantes provoluti ad pedes Archiepiscopi petebant ut saltem propter honorem Regis veniret ad eum coram populo diceret se Leges suas recepisse Precibus igitur tantorum virorum Archiepiscopus vectus venit ad Regem â—oram Clero populo dixit se Leges illas quas Rex avitas vocabat suscepisse concessit ut Episcopi Leges illas susciperent ut illas custodire promitterent Tunc praecepit Rex universis Comitibus Baronibus Regni ut irent foras recordarentur Legum Henrici Regis Avi sui eas in scripto
Law was publickly professed in England before the end of the 12th Century for Mat. Paris tells us of a Monk of Evesham Anno Dom. 1196. that suo tempore eorum quos Decretistas Legistas appellant peritissimus habebatur earum etiam facultatum auditores quamplurimos instituerat and from that time the study of the Caesarean and Pontificial Law did flourish amongst us until the beginning of E. 3. But in all that time saith Mr. Selden in his Fleta gens ipsa Anglicana ac qui in judiciis praeerant morum patriorum viz. Juris Communis Angliae per intervallum illud tenacissimi fuere A remarkable instance we have of this Nations steady aversion from admitting here either the Civil or Canon Law in the Parliament of Merton which rejected a Bill for Legitimation of Children born before marriage in Concubinate in these Terms Nolumus leges Angliae mutari meaning that they would not make Laws conformable to the Civil or Canon Law The great Policy that the Popes used to effect their Ambitious design of making themselves Monarchs of the Christian World were The assuming to themselves the entire rule and Government of Religion and endeavouring to make every where the Bishops and the whole Clergy together with the Regulars dependant upon them by pretending them to be exempt from all Civil Authority and Jurisdiction and by interdicting to them the exercise of any Civil Authority and shutting them out from all intromissions into the Civil Government and from any interest or dependance thereupon So far as he prevailed in these designs he acquired an Imperium in Imperio and if besides these he could have fixt a Spiritual handle to the Temporal Sword and have got the Government of secular affairs in ordine ad spiritualia his design had been compleated and he had arrived to a more absolute and extensive Empire than that of the Roman Caesars To these purposes the Canon Law provided that the Ecclesiasticks were neither to exercise nor be subject to any Civil Authority But this policy of the Pope had no success in England the endeavours of the Papalins herein met with constant opposition and at last they were made desperate by the Assise of Clarendon where it was declared and enacted accordingly agreeable to the Avitae Consuetudines Regni that the Bishops should be retained and continue to be a part of the Government and exercise Jurisdiction in all Causes in the Kings Court as other Barons as is before observed and that the Clergy should stand submitted to the Jurisdiction of the Kings Courts For this purpose it was also in that Parliament enacted as followeth Si controversia emerserit inter Laicos vel Laicos Clericos in Curia Domini Regis tractetur determinetur and also quod clerici rectati accusati de quacunque re summoniti à Justitia Regis venient in Curiam Domini Regis responsuri ibidem c. And so far were the Bishops and Clergy from observing that part of the Canon Law that was to detrude them from all secular Authority and Jurisdiction that they were from time to time Chancellors Treasurers Keepers of the Privy Seal and Judges and while that Ancient Office continued of Capitalis Justiciarius Angliae to whom was committed the Justice of the Kingdom who were called Custodes Regni Vice-Domini Angliae and sometimes the abstract Justitia He did preside in the Curia Regis which Office was afterwards divided for there were Justitiarii Angliae Boreales Justitiarii Angliae Australes this Office was often executed by Bishops as you may see in Sir Hen. Spelmans Glossary in the word Justitiarius Bishops and Church-men administred the greatest Offices of State and Justice this was matter of Envy to the Temporal Lords and they complain'd in Parliament 45 E. 3. as is before observed That the Government of the Kingdom had been a long time in the hand of the Clergy Mr. Selden in his Fleta tells us that in the times before and after the Assise of Clarendon Mos fuit Judices Regios ex genere hieratico veluti Episcopis Abbatibus Decanis id genus aliis constituendi And it is provided by 28 E. 1. Cap. 3. That if a Clergy-man was a Judge of Assise another should be joyned in Commission with him to deliver the Goals which was to the end that the Ecclesiastical Judge might use that liberty which was indulged to him by the Assise of Clarendon of not pronouncing the Sentence for it must be observed that by that Statute a Clergy-man might be a Judge in a Goal-delivery for that a Laick was by the provision of that Statute to be join'd to him in Commission and Pleas of the Crown are to be found purporting them to be held before two Judges whereof one a Clerk after this Law which could not possibly have been if the Clerk had not been in Commission Besides for after Ages it is well known that all the great Officers and Ministers of State and Justice have been always intrusted with the conservancy of the peace are in Commissions of the peace and Commissioners of Oyer and Terminer for judging capital Causes so that the constant practice in all times as well as the express declaration of the Assise of Clarendon doth assure us that the Canon Law that prohibits Clergy-men being Judges in capital Causes was never received here or became the common Law of England Besides what regard our Clergy had of the Canon Law what opinion they had of the Right in question and how far the Laws did intend to prohibit the exercise of it And that such right was used and exercised will appear by the Canon of Toledo Concil Toletan 11. Cap. 6. fo 553. and the Canon of Lanfrank Spelmans Concil 2 vol. fol. 11. these were made before the Assise of Clarendon That of Toledo is this His à quibus Domini Sacramenta tractanda sunt judicium sanguinis agitare non licet ideo magnopere talium excessibus prohibendum est ne qui praesumptionis motibus agitati aut quod morte plectendum est sententia propria judicandi mant aut truncationes quaslibet membrorum quibuslibet personis aut per se inferant aut inferendas precipiant This being a Foreign Council this Canon carries not with it the Authority of a Canon with us only we may observe whatever the Opinion of that Council was that it was not convenient for licet can have no ocher sence here for Clergy-men agitare judicium Sanguinis Yet this Canon prohibits only the pronouncing the Sentence by themselves or others I am sure that by a positive Law as this Canon must be so far as it participates of the nature of a Law nothing becomes unlawful but what is forbidden whatever the reason be of that Prohibition That of Lanfrank follows thus Vt nullus Episcopus vel Abbas seu quilibet ex Clero hominem occidendum vel membris truncandam judicet vel judicantibus suae authoritatis favorem
Fortunes to their Children but what they themselves could deserve viz. Hate and Infamy All Usurpation and Encroachment of Power is to be opposed where it can be lawfully as the greatest Mischief and the Ministers to the Designs hated and detested as the most pernicious and loathsome Vermine CHHP. XV. BUt to return agreable to this Policy of Sovereign Princes who had the Donation of Bishopricks of advancing Bishops to the highest secular Dignities and Trust William the Conqueror did create Bishops into Barons and exacted the Services and Counsells of Barons in the Great Council of the Kingdom by putting their Lands under Tenure by Barony he gave them no new Endowments but as a Conqueror he confirmed their Ancient Possessions under a new reserv'd Tenure and annex'd to their Order a Secular Honor a successive Baronage Since the Conquerour the title of Baron took the place of that of Thane which was likewise a Feudal Honour in the Saxons time By William the Conquerour Baronies were feudal and in congruity to the State of the Lay Nobles he made the Bishops feudal Barons for there was no other than feudal Nobility at that time It will not be amiss nor time mispent here to give a short account of the Government in the Conquerours time of the Baronage by him introduced and the policy thereof and of the change made in the Baronage of England in after time Because from thence we must derive the Bishops Right now in question which is included and virtually contained in their Right of Baronage Hereby it will appear that the Bishops were of the Barones majores and of the Barones majores the first in Dignity that they became feudal Barons in the Conquerour's time and when the reason of our Baronage changed and no man continued a Baron ratione tenurae it cannot with reason be said that the Bishops are Barons onely for the sake of their Lands which our Adversaries do insist upon for that they think it is an abatement to the Honour of Peerage and a prejudice to their Right in question but because it has been said before by men of Authority in the Law and grown up to be a vulgar error we will now discharge the mistake by affixing here the History and Reason of the change It was the policy of the first William for some are so critical they will not call him Conquerour to create new Tenures upon all the great Possessions of the Realm and impose upon the principal men to hold their Lands of him in capite under such Services that were necessary in peace and war for State and Justice and by putting all the considerable men of the Realm under Oaths of Fealty incident to those Tenures besides the Oaths of Allegeance he provided for the establishment of his Conquest or his possession of the Crown without title The principal men of the Realm both Ecclesiastical and Lay hereby were not onely obliged to support but to become part of the Government and were obliged to be Ministers of Justice and also Members of the great Council of the Kingdom or Parliament which was now to be made up principally of his Dependents by which he changed the constitution of the great Council in the Saxons times in the balance of that equal sort of Government the consequent mischiefs whereof this Kingdom laboured under untill we recovered it again by an equal representative of the Commons in Parliament in the time of King Henry the Third The power of the Baronage proved equally oppressive to the people and came in that time to be reduced irreverent to the Crown By this policy the Conquerour intended to establish his Conquest to secure to himself and his posterity the Imperial Crown of England imagining that otherwise he should have been but a precarious King He had now turn'd the Kingdom upon the matter into one great Mannor and kept his Courts called the Curia Regis in the nature of a Sovereign Court Baron now become more frequented and solemn than that Court was before the Conquest thrice in every Year at stated Times and Places viz. at Easter at Winchester at Whitsuntide at Westminster and at Christmas at Gloucester at these times and places all his Tenants which were all the considerable Free-holders of England attended of course and upon a General Summons at any other time or place appointed by the King as his Affairs did require they were bound likewise to attend In these Courts the Suitors swore Fealty did renew and confirm their Obligations to the Crown and the King became more assured of their Allegiance by their Personal Attendance and by his Royal Entertainments of them at such times In these Courts they recognized their own Services and the Rights of the King their Lord and assessed Aids and Estuage Prestations due to the Crown by their Tenures upon themselves to which in general they were obliged by their Tenures In these Conventions the Right of the Suitors the King's Tenants were adjudged as Private Lords had Judgment of the Right of Lands in pretence held of them in Fee in their several Manors as they have to this day But if Right was not done by the Lord the Cause was to be removed to this Curia Regis the King being Lord Paramount of whom all Estates mediately or immediately were held Which appears by the Form of the Writ of Right now in use which we will transcribe N. B. precipimus tibi quod sine dilatione plenum Rectum teneas A. de B. de uno Messuagio L. in I quae clamat tenere de te per liberum Servitium unius denarii per annum pro omni servitio quod W. de T. ei deforciat nisi feceris Vicecomes faciatne amplius inde Clamorem audiamus pro defectu Recti The Common Pleas was not then a Court and at this time the Appeal and resort to the King was in this Court if Justice was not done by the Lord or Sheriff So that the greatest part of the Justice of the Nation was administred in those Assemblies But it must not be understood that this vast Convention was a Court of Judicature for every Cause neither that it was formally a Parliament without some farther Act of the King for erecting that Convention into the great Council of the Nation But in this Curia Regis they were obliged to answer the King's Writs of Summons Writs of Commission and obey his Appointments in the Ordinary Administration of Justice in which the Capitalis Justiciarius or Justitia was to preside That this was not a Judicature the vast numbers of those that made it the inequality of the Persons considered under the Common Reason of being Tenants in Capite and Barons whereby they became indifferently members of the Curia Regis besides the neglect that must necessarily be presumed in the greatest part of such a Body to the business of Jurisdiction and judging of Rights without particular Designation thereto do sufficiently argue and evince But
Judgments good without an Original upon a Verdict If the Causes that are properly now of the cognisance of that Court of Common Pleas had been allotted to that Court Originally when the distribution of Administration of Justice was made in the Constitution of the Government that Court by its proper Authority and its own Process would have done Justice to all its Suitors without first expecting a Writ out of Chancery to bring the Cause before them or leaving any right without remedy to complain in Chancery of the defects of Justice in that Court But that Law of Magna Charta cap. 11. before-mentioned which erected the Court of Common Pleas fix'd the Judges and appropriated civil Causes to their Judicature no longer now ambulatory was the first step that was made to reduce the Court of Barons called Curia Domini Regis in which the Capitalis Justiciarius did preside Yet still this Court continued a Court of Pleas of the Crown and Appeals and for those that had the Priviledge of that Court as Officers Dependents Suitors as appears by Bracton l. 3. cap. 7. Rex habet unam propriam Curiam sicut Aulam Regiam Justitiarios Capitales qui proprias causas Regias terminant aliorum omnium per querelam i. e. Appeal vel per privilegium seu libertatem This Sir Edward Coke imagines is meant of the Kings Bench but that must be a mistake for sicut Aula Regia is not competent to that Court as now the Capitales Justitiarii were not the Chief Justices we now have For the Office of the Capitalis Justitiarius did yet continue But then that which follows in Bracton the description of the Justices of the Court he before spake of puts the matter out of doubt Item saith he Justitiariorum quidam sunt capitales generales perpetui majores à latere Regis residentes which terms are agreeable to none but the Barons But this sort of Judicature was not fit for continuance and the Barons were to be reduced they were dismist of this Jurisdiction about the time that change was made in reference to them in the Parliament for as long as they continued in their numbers and power so great as they were both Courts and Parliaments were troubled with tumultuous heaps of people brought thither by the Barons to countenance their pretences of which who will may see enough in Eadmerus And this reducement was I doubt not about the end of the Reign of H. 3. when the first Writs were issued to chuse Knights of the Shire Philip Basset was the last of these Capitales Justitiarii Sir Henry Spelmans Glossary p. 415. And then the Court of Kings Bench came to have such Judges as at this day ad obitum H. 3. 1272. Summorum Angliae Justitiariorum authoritas cessarit postea Capitales Justitiarii ad placita coram Rege tenenda appellati sunt saith an ancient Anonymous Author quoted by Sir Hen. Spelman Glossary 406. That ancient Style of Capitalis Justitiarius Angliae is now allowed to the Chief Justice of the Kings Bench though his legal Style is Capitalis Justitiarius ad placita coram Rege tenenda 2 E. 1. Radulphus Hengham was made the first Chief Justice of the Kings Bench as Sir Henry Spelmans Glossary 416. But the Chief Justices of the Common Pleas were first made about the time of King John's Magna Charta when that Court was fixed as is before remembered Sir Henry Spelman out of Florilegus tells us Martin Peteshus was Chief Justice of the Common Pleas 1 H. 3. Neither did E. 1. trust the Barons with the Government of his Revenue as it was before the Capitalis Justic and the power of the Barons was reduced but he made Adam de Stratton a Clerk Chief Baron but in what time of his Reign doth not appear But they continued after they were reduced from the business of the Kings Bench and from that of the Court of Common Pleas to have the Government of the Revenue and making a Court of Exchequer And they still continued the Exercise of their ancient ordinary Right and judged Common Pleas in the Exchequer until the 28 E. 1. And then in the Statute called Articuli super Cartas cap. 4. it was enacted That no Common Pleas shall be henceforth held in the Exchequer contrary to the form of the Great Charter Their exercising their power lastly in that Court may be the reason why the Judges of that Court are called Barons Sir Henry Spelman saith he hath an uninterrupted Succession of the Barons of the Exchequer from the sixth year of Edward the Second by which it appears that the present Constitution was established after the Kings Bench and Common Pleas were made such as they now are But there was one Power and Authority that was inseparable from the Baronage and that is the Tryal of Peers the ancient Curia Regis continues to this day to that purpose as it must no other provision being ever since made therein This is the ancient Court of Peers the Curia Regis when revived The Power and Authority of the ancient Capitalis Justitiarius is as often revived as that Court is erected for Tryal for Offices at Common Law can be no more nor less than the Law appointed That he is called High Steward is no Objection to us for so was the Capitalis Justitiarius called and Justitiarius and Seneschallus are used one for another in the Language of those times Sir Henry Spelmans Glossary 403. And this is the true reason I humbly conceive of that Tradition that the High Steward by the Kings constituting him such hath such mighty powers that are fit to be trusted with him no longer than while he is busie about that piece of Justice for which he is appointed and he is not to receive his Commission but just at his entry upon the business of the Court and not before The power of this Capitalis Justitiarius was the same with that of the Mair of the Palace in France from whence the Conquerour brought this Office which was the same or greater with the Authority of the Praefectus Praetorio amongst the Romans It is a thing to be wished that Gentlemen that apply themselves to the study of Antiquities that relate to our Laws and Government would design to adorn and cultivate the present Laws and to make out their reasonableness rather than to innovate upon us by bringing back what is obsolete rejected and antiquated and that they would contribute what they can to refine it from many absurd reasons that dishonour our Faculty which are the best our Books afford even for some of the Regulae juris I shall instance onely in one or two of them Why the Father cannot inherit the Lands of the Son it is told us for a reason in our Books that Terra est quid ponderosum and will not ascend in the right line whereas the true reason is this the Lord that first granted the Fee neglected the Father gave
unexceptionable Judge but renders them most fit and desirable For besides their Wisdom and Justice common with that of the Temporal Lords they are intended of the greatest tenderness and compassion and must be so if they comport themselves with agreeableness to their Character and Function They are not ordinarily engaged in the Factions of the Temporal Grandees and Religion being their business they are more under the powers of it that being their glory and their first greatness that which promoted them to their Secular Honour and Dignity and that which must support it Their Interest is Religion and therefore they are the more obliged in all their outward acts to comport with it They out of an universal charity understand that it is mercy and compassion to the innocent to punish the nocent person and yet they can in the administration of punitive Justice attemper the severities of Laws with the mercies of Religion and use Compassion to the Criminal when they do not depart from the unrelenting Rules of Law out of regard to the publick peace and by such demeanour they may reconcile the Office of a Judge with that of a Priest which some have thought incompatible 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Synes But they are no more inconsistent than Power and Authority which united makes a most venerable Magistrate and gives him the greatest advantage of serving the Community Peragit tranquilla potestas Quod violenta nequit mandataque fortiùs urget Imperiosa quies CHHP. XVIII AND such a Judge would I chuse but we we must take such a Judge as the Law appoints Magna Charta is objected against the Bishops right in the question which saith that Nullus liber homo capiatur c. nec super eum ibimus nec super eum mittemus nisi per judicium parium suorum The Objector omitted to add or consider what follows viz. Aut per legem terrae But the Statute of Magna Charta is no Literal Law as every body knows but intending to confirm the Common Law it is upon the matter Lex non scripta it alters nothing that was the Common Law before but that being found out declares what Magna Charta establisheth And therefore Peers shall be tried by Commoners in Appeals notwithstanding the Letter of Magna Charta for otherwise Peers could not be tried at all nor no Justice done in Appeals which is the Suit of the Party and not of the King Privilege must be always set aside rather than a faileur of Justice shall be allowed So that the Law before Magna Charta and since whatsoever it was must determine this matter The Provisions that the Law hath made that the Nobles and the Commonalty shall not intermeddle to judge any persons not of their Order is a most prudent Establishment without which neither Order Justice or Peace could be preserved The Envy of the Commons would render them unfit Judges of the Peers and the Animosities of the Peers would render them unapt to sit in Judgment upon a despised Commoner Besides that otherwise the Dignity of the Order of Peers would suffer for the Superiour can no more be judged with any congruity than blessed by the Inferiour This is a reason big and wise enough to be assigned and worthy of a wise Government and Polity And to this reason the words of the Statute of 25 E. 3. cap. 2. de Proditoribus do point De ceo soit probablement attaint de overt fait per gens de lour condition And therefore it seems to me that according to the Reason and Design of the Law which declares the Law in particular Cases that Bishops being Barons and of the Peerage of England and of that Rank and Order they ought to be tryed by those of their own Condition And the denial to them of this Priviledge which is annex'd to and is a resultance from the Dignity of their Order is a departure from Magna Charta and not agreable to the Provision of the 25 E. 3. c. 2. But it was never an allowable Exception to a Judge that the Judge hath not so good an Estate or other Advantages of Fortune equal to the man he Judges to forfeit in case the Judge be a Capital Offender upon which reason the Folio Gentleman grounds his Reasonings against the Bishops being Tryers of Peers He argues the Bishops incompetent to try a temporal Baron upon this reason because the Bishop hath only a Peerage for his Life to forfeit But who can be satisfied with such fine and slender Reasoning or entertain an Opinion that is not bettern grounded I would not be thought to argue or maintain that Prelates are so fit to be appointeed by the King's Commission to try a Temporal Peer in the Court of a Lord High Steward out of Parliament when a select Number of Peers are to be appointed for Tryal it is most convenient that those of the same Species of the Baronage should be chosen for that purpose for many reasons but for a Tryal of a Temporal Peer in Parliament which is the Establishment and Appointment of the Governmnt and not of the King 's special Designation notwithstanding the reason of the Folio for Reasons herein alleadged a Bishop is a most fit legal and competent Judge But I have taken too much notice already of the Errors and Mistakes of the Folio and his false Reasonings I am weary of such Animadversions I shall proceed now to the end of my Discourse without making any more Reflections It is already cleared that the Bishops are compleat Barons that they are of the State of the Baronage and it can have no Consideration how they came by it nor how they held it for the Modus tenendi doth not alter or diversifie the Honor. And for my part I cannot find reason to believe but that the Bishops had or might have had originally their Tryals by Peers and that it was their Right in Consequence of their being placed in that Order and State besides that they have a Precedency to the Temporal Baronage to be tried by the Baronage because the Law for the reason afore-mentioned appoints Tryals per Pares But the contrary practice is the Strength of our Adversaries in opposing the Peerage of Bishops which we shall therefore now consider of It is certain that in all Tryals wherein Bishops are concerned whether Plaintiffs or Defendants in Actions real as well as personal whether the Lands of the Church are concerned or not a Knight is to be returned upon the Jury that is to try the Issue I will not trouble the Reader with Law Cases any Gentleman that pleaseth may examine the Truth of what I say This priviledge therefore cannot be in respect of the Lands of the Bishoprick as the Folio would have it but of the persons of the Bishops a respect to the Order and Peerage of the Bishops It is the same Priviledge and as large as the Temporal Peers enjoy in this matter which is that the worthiest and best