Act of Parliament as the twelve Tables of Athens did really become and were properly called Jus civile Romanum after they were voluntarily received and allowed at Rome And as the same may be instanced in some parallel Cases among our selves as the Priviledge of Clergy Pluralities and Dispensations c. which were parts of the Common Law of England although they became such no otherwise then by the Nations reception and observation of the Canons of the Church Lastly I am not apt to believe that this Custom was taken up upon the account of the Canons of the Church but rather because it was a thing agreeable to the Constitution of the Government the Reason and Rules of the Common Law and the Nature of their Jurisdiction and Honour being meerly praedial or feudal and that because upon a strict search it will be found of ancienter date than any of the Canons of the Church for the first Canon that I find in Linwood is that which was made An. 1222. and is among the rest of the Constitutions of Archbishop Stephen in these words Presenti decreto statuimus ne Clerici beneficiati aut in Sacru Ordinibus constituti villarum Procuratores admittantur videlicet ut sint Seneschalli aut Ballive talium administrationum occasione quarum laicis in reddendis ratiociniis obligentur nec Jurisdictiones exerceant seculares praesertim illas quibus Judicium Sanguinis est annexum Authoritate quoque Concilii districtius inhibemus ne quis Clericus beneficiatus vel in Sacris Ordinibus constitutus litteras pro poena Sanguinis infligenda scribere vel dictare presumat vel ubi Judicium Sanguinis exercetur intersit Linwood 146. Which Constitution was made above fifty years after the Parliament at Clarendon which confirms this Custom and calls it one of the Avitae consuetudines These Particulars well considered will give a very satisfactory Answer to their Objection and therefore I need not say any more But it is further objected That the Clergy in their Protestation which they made 11 R. 2. do declare Quod ipsos personaliter interesse pertinet and so they did in some Protestations which were made afterward and after all they do insert this Clause Non volumus nec intendimus quod processus habiti habendi c. futuris temporibus quomodolibet impugnentur infirmentur seu renoventur From this they argue otherwise all the Proceedings of the House of Lords in the absence of the Clergy are invalid and reversable or else to what purpose is this Clause And the Lords Temporal giving leave that this Protestation should be entred upon Record did implicitely assent to what the Clergy alledged therein To this I answer That a Protestation in its self is no argument of any Right neither doth the permission and allowance of any Protestation yield that right which the Protester is desirous to save but only saves the right which the party had before if he had any and if none then the making that Salvo could give him none for the outmost that a Protestation can do is to anticipate a Conclusion or Estoppel i. e. to provide that the doing of any such Act as is Contained in the Protestation shall not be constructed to the Prejudice of the Party so as to Barr or Conclude him from Clayming afterward that which in rei veritate is his right So that this Protestation of the Clergy is no Argument of their Right to be present and to Vote in Capital Matters and that chiefly for these two Reasons 1. By the Roll we find that the Clergy did not only depart when Capital Cases were to be debated but also in all other Cases that were done that Session because there were many Matters of Treason to be handled therefore they absented from the Parliament altogether so it is in Sir Rob. Cotton's Abr. 322. So that this Protestation may very well be supposed to have been made with respect to those other Matters which were not Capital where they had an undoubted Right to be present and therefore such a Protestation might be very Proper and not to have any respect to those Cases which were Capital especially seeing they did alwaies in such Cases Absent themselves in former times without making any Protestation 2. Admitting that the Clergy did intend that Capital Cases as well as others which were not Capital should be within the Salvo of their Protestation yet nothing can be inferred from thence but that they themselves said they had Right to be present and what then Must it of necessity follow that they had Right because they Claimed it If that Consequence had been allowed to be good I am afraid the Crown of England had been Incorporated long ago into the Triple Crown As for that Clause of the Protestation for the Validity of all such Transactions as should happen to pass in their Absence I must confess I do not think it was to very much purpose 1. Because that without any Proviso the Proceedings of the House of Lords in their Absence had certainly been valid enough as I shall prove anon 2. If they had not been good this Clause could not have helped them because wherever the Assent and agreement of any person or persons is Requisite for the perfection of a thing it is necessary that that thing to which the Assent is Requisite be in esse at the time of the Assent made for otherwise it is an Assent to nothing and that is as much as no Assent at all If therefore the Assent of the Prelates be indispensably necessary to the perfection of every Judgment and Bill that passeth the House of Lords Such a precedent Assent to all that shall Pass during their Absence in General which is an Assent to they do not know what themselves will not amount to a sufficient agreement The Reason is because the Law of England doth presume that in all private Transactions between Party and Party and much more in things of Publick concernment and of so great moment as Making of Laws and Giving Judgment of Death uppon Peers of the Realm whatsoever a Man doth is upon Rational Inducements and that the Conveniency and Advantage which he expects will Accrue thereby is the Motive that prevails with him to agreeâ—â—… the thing and therefore all such Agreements as are made at aventure when the party agreeing knows not what it is he agreed to as when a man agreeth to a thing before it be in esse are rejected in Law as Irrational and 〈◊〉 So if a Tenant comes and say to his Lord I agree to all Grants which you shall hereafter make of the Manor or any part of it Surely this without a Subsequent Agreement to every particular Grant will not 〈…〉 Attornement And at the Common Law Licences for Alienation granted to Tenants were alwaies special and a general Licence to 〈…〉 which the Tenant should afterward make was void And if such an agreement of the Lords Spiritual as is before
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