of the Lands and Possessions of the Bishoprick then the Person of the Bishop as you may further see if you compare this Book with Plowd 117. Br. Tit. Tryal 142. and Fitz. Cor. 115. And I dare affirm there is not any one Lawyer or Antiquary of Note that disagrees from this But before I go from this I shall strengthen these Authorities by Precedents I shall begin with Adam de Orleton or Tarleton Bishop of Hereford who in the 17 of Ed. 2. was accused while he was sitting in Parliament of Conspiring with Roger Mortimer Earl of March and aiding him with Horse and Arms in open Rebellion whereupon he was ordered to the Barr of the House of Lords he made no Answer to those Crimes that were laid to his charge only that he was Suffragan to the Archbishop of Canterbury who was his direct Judge under the Pope and without his leave and the consent of his Fellow-Bishops he would not answer Now although the Statute of Articuli Cleri restraining the benefit of Clergy to Felony was made but eight years before this yet the rest of the Clergy in that disorderly time observe the Humility Obedience and Loyalty of our Spiritual Fathers in those days had the impudence in the presence of the King to pull him violently from the Barr and deliver him to the Archbishop The King was enraged at this Insolence and gave special Order to apprehend him again which was done and was arraigned upon an Indictment at the Kings-Bench-Bar and upon the Question How he will be tryed He said Quod ipse est Episcopus Herefordensis ad voluntatem Dei Sammi Pontificis quod materia praedict Articulor ' sibi imposiâ—… adeo ardua est quod ipse non debet in Curia hac super praedictis Articul ' imposii respondere nec inde respondere potest absque offensu Divino Sanctae Ecclesiae Hereupon Day is given over and after some Contiuances the Record goes on thus Et praeceptum est Vic' Comit ' Hereford quod venire faciat coram Domino Rege c. tot tales c. ad inquirendum prout mores est c. And a Common Jury is returned which find him Guilty and his Goods and Lands are seised into the Kings Hands and after Conviction he is delivered unto the Archbishop to the end I suppose that he should be Degraded for in this Case being High Treason there could be no Purgation See the Record of his Attainder Hill 17 E. 2. Coram Rege Rot. 87. Dors ' Coâ— 3. Inst. 30. Fuller's Ch. Hist. fol. 107. Tho. Walsingham fol. 199. It appears by the Record it self and all the Histories of those times what Artifices were used and with what Industry every Stone was turned by the Clergy to keep the Bishop from the Justice of the Nation and is it to be supposed that they would wave their Jus Paritatis if they had it We have a world of Complaints in Walsingham and other old Monks against the whole Proceeding but not one word of any Injury done to their Peerage The next Precedent is in Trin. 30. E. 3. Rot. 11. John de Isle Brother to Thomas Hen Bishop of Ely was Indicted in Huntington that he with divers others per assensum procurationem Episcopi praedict 28 E. 3. Diae Lunae post Testum Sancti Jacobi burnt the House of the Lady Wake at 〈…〉 by Sommersham in Comitat. praedict quod praedict Tho. Episcopus sciens praedict combustionem per praedict servientes suos esse factam dictos servientes apud Sommersham praedict postea receptavit c. And also it was found before the Justices and Coroners that 29 E. 3. the said Bishop was guilty de assensu of the Murder of one William Holme slain by Ralph Carelesse and Walter Ripton called little Watt upon Malice conceived against Holme because he followed the Suit of the Lady Wake the Principals were attainted by Owtlawry the Bishop was Arraigned and upon question how he would be tryed He answered Quod ipse est membrum Domini Papae quod ipse ab ordinario suo viz. venerabili Patre Domino Simone Archiepiscopo Cant. Angliae Primat respondere non potest super haec Dominus Archiepiscopus praesons hic in Curia petit quod dictus Episcopus Eliensis de feloniis praedictis sibi impositis hic coram Laico Judice non cogatur respondere ut sciatur inde rei veritas per inquisitionem Patriae praecept ' est Vicecom c. Ad quens diem c. Jurat ' trial c. dicunt super Sacramentum suum quod idem Episcopus est in nullo culpabilis sed dicunt quod idem Episcopus post feloniam factam ipsos servientes receptavit sciens ipsos feloniam fecisse c. Et super haec pâ—â—…ict ' Archiepiscopus praeseâ—s in Cur ' petit ipsum tanquam Membrum Ecclesiae sibi libâ—â—â—â—… ei liberatur custodiend ' prout decet Here is a Bishop Indicted Arraigned Tryed by a Common Jury and Convicted as accessory to several Felonies as burning of a House and killing a Man both before and after the Felonies committed And it is observable the Jurors were tryed as appears by this Record and that proves the Bishop had his Challenges to them at his Tryal And is it not very strange that they should proceed at this Rate against a Peer of the Realm over whom they had no Jurisdiction and a Bishop too at such a time when the Clergy were the onely men about Court as Simon Langham Archbishop of Canterbury Lord Chancellor William Wickham Archdeacon of Lincoln Keeper of the Privy Seal David Willer Parson of Somersham Master of the Rolls ten beneficed Priests Masters of the Chancery William Mulse Dean of S. Martins le grand Chief Chamberlain of the Exchequer Receiver and Keeper of the Kings Treasure and Jewels William Aksby Archdeacon of Northampton Chancellour of the Exchequer William Dighton Prebendary of S. Martins Clerk of the Privy Seal Richard Chesterfield Prebend of S. Stephens Treasurer of the Kings House Henry Snatch Parson of Oundell Master of the Kings Wardrobe John Newnham Parson of Fenny-stanton one of the Chamberlains of the Exchequer John Rowseby Parson of Harwich Surveyor and Controller of the Kings Works Thomas Brittingham Parson of Asby Treasurer to the King for the part of Guisnes and the Marches of Calice John Troys a Priest Treasurer of Ireland These I have specified here because when any Examples are put of Justice had against Ecclesiastical Malefactors there are a sort of people who presently cry out Their wings were clipt They were under contempt and hated by the Laity c. But what Credit is to be given to them may be gathered from what hath been said Thomas Merkes Bishop of Carlisle was in the 2 H. 4. Indicted of Conspiring with Holland Earl of Kent and the Dukes of Exceter and Surrey and the Duke of Aumerle Montacute Earl of Salisbury Spencer Earl
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.
Clergy never did exercise Jurisdiction in Cases of Blood then inasmuch as no Record maketh appear what time this Custom did begin we must of necessity presume that their not Voting in Capital Cases is as ancient as their Voting in any Case and consequently that those who first conferred upon them their Jurisdiction in Parliament gave it with this limitation that it should not extend to Capital Cases This being premised I shall proceed to prove that by the Common Law of England if not by an Act of Parliament the Lords Spiritual have no right to Vote in Capital Cases That will be done if I demonstrate these two things 1. That their Voting in Capital Cases is contrary to the intent and meaning of Magna Charta 2. That it is contrary to the known practice of all Ages until this day The first I shall prove from the Reason and Nature of the thing and from Precedents By the 29th of Magna Charta it is ordained that Nullus liber homo capiatur vel imprisonetur c. aut ut lagetur aut exuletur aut aliquo modo destruatur nec super cum ibimus nec super eum mittemus nisiper legale judicium parium suorum c. And accordingly the Precept of the Lord High Steward to a Serjeant at Arms is to summon Tot tales Dominos Magnates proceres hujus Regni Angliae praedicti R. Comitis pares c. Co. 3. Inst. 28. Whence it is evident that every Judge must be a Peer par to the Prisoner and I do think it a very easie matter to prove that no Spiritual Lord as such is Invested with that Parity which is requisite within the intent of Magha Charta to constitute him a sufficient Judge upon the life and death of a Temporal Lord Before I enter upon the proof of this it will be necessary to say something of the Nature of their Peerage Their Peerage doth accrue either by the Investitute of their Bishopricks ipso facto or by their Summons to Parliament it is agreed by all Authors of greatest Authority that they are Parliamentary Lords immediately by their Investiture and Induction into the Temporalities which are held of the King per Baroniam and are therefore Lords of Parliament only ratione tenurae so is Coke Stamford Selden and others But they are not intituled to any more Honour or Jurisdiction by their Writs for these two Reasons 1. Because a Summons to Parliament cannot of its self create a Baron for then all the Kings Judges Serieants and Councel had been ennobled in divers Parliaments in the time of Edw. 1. in all of Edw. 2. and most of Edw. 3. for they had then the self-same Writ that Earls and Barons had yea and the Kings two Escheators had the same Writ Annu 12. and 14 of Edw. 2. The first Summons extant upon Record is that of 49 H. 3. which is one joynt Summons to all the Lords and Judges and is the same in substance with the Writ of Summons at this day which is given to the Lords and differs onely in matter of Form Anno 23. Edw. 1. Jan. 23. The Writs are several the only difference is in the Style and the words following viz. Super ar duis negotiis quibusdam nos Regnum nostrum vos caterosque de eodem Regno tangentibus c. To the Bishops and other Clergy To the Temporal Lords after the style the Writ runs Nos c. vos caeterosqâ—◠〈◊〉 magnates c. taugentibus c. To the Judges it was Vos caterosque de consilio nostros c. tangentibus But in all these the Mandamus which is the most essential part of the Writ is the very same viz. Vobis Mandamis ut c. personaliter inter sitis super dictis negotiis cum Rege caeteris magnatibus proceribus c. trataturi vestrumque consilium impensuri c. The same is the 27 of Ed. 1. and almost in all the time of Edw. 2. and from the 20th to the 49th year of Edw. 3. That which I infer from this is that either a Writ of its self without the performance of other Ceremonies as Investiture of Robes c. cannot make a man Noble or else the Judges in those Four Kings Reigns having the same Mandamus in their Writs which the Earls and Barons had verbatim and the same in substance with the Mandamus to Peers at this day were all ennobled And further There doth frequently occur in ancient Records and Writings a difference between Barones majores and Barones minores the first are called sometimes Barons and the other Barons Peers That they both received their Writs and sate in Parliament is undeniable The Nobility of the first was without doubt inheritable but so was not the last but were called Barons Peers because of the parity of their Reyenue Thus saith the Modus tenendi Parliamentum always allowed for Authentick before Mr. Prynne summoneri venire debent omnes singuli Comites Barones corum pares scilicet illi qui habent terras ad valentiam â—â—…ius Comitatus integri viz. Vigâ—…ti feoda c. vel ad valentiam unius Baroniae c. nulli minores Laici summoneri debent sed si eorum praesentia necessaria velutilis fuerit Rex solebit talibus brevia mitteâ—… So that these Baronum pares or Barones minores because of the Parity of their Revenue were called or omitted ad libitum though the majores ought to be summoned de jure which proves a Writ of Summons to Parliament doth not ennoble the Party otherwise this Difference must fall to the ground The Roll of 18 Ed. 3. N. 35. Is that the Cause of Summons was declared in the presence of the King and divers Lords there named autres Barones Bannerettes Chevaliers de Comites Citizens Burgeiis c. So 46 of Ed. 3. N 7. the Roll is Dukes Earls Barons and Bannerets And in many of the Parliament Rolls of Ed. 3. it occurs by the Prelates Earls Barons and other Grandees by which it is evident that anciently there sate in the House of Lords sometimes some that were under the Degree of a Baron and they could not be Lords by Inheritance because a Barony is the lowest Degree of Inheritable Nobility but they could not be there present without their Writs It doth therefore follow that a Writ together with an Appearance in obedience to it doth not Ennoble the Party Note That anciently the King by his Letters could have discharged any Banneret from serving in the Lower House because if he pleased he might upon occasions have summoned him to serve in the House of Lords and that is apparent from a Record in the 7th of Rich. 2. R. 42. dorso Sir Tho. Camoys was chosen one of the Knights of the Shire for Surrey and his Father and Grandfather had been summoned to several Parliaments before the King discharged this Gentleman from serving in
the House of Commons because Ipse saith the Record quam plures Antecessores sui Banneretri fuerint Nos animadvertentes quod hujusmodi Banneretti ante haec tempora in Milites Comitatus eligi minime consueverunt c. If this Camoys had been reputed a Baron the Country would never have chose him and if he had been really a Baron the King would never have discharged him because he was a Banneret but because he was a Baron Another Reason for this may be gathered out of the Patent of John Beauchamp of Holt the words of which are these Sciatis quod pro bonis gratuitis servitiis quae dilectus fidelis Miles noster Johannes de Beauchamp de Holt seneschallus hospitii nostri nobis impendit ac loco per ipsum tempore corenationis nostrae hucusque impensis quempro Nobis tenere poterit in futurum in nostris consiliis parliamentis nec non c. ipsum Johannem in unum Parium Baronum Regni nostri Angliae praesecimus volentes quod idem Johannes haeredes masculi de corpore suo exeuntes statum Baronis obtineant ac Domini de Beauchamp Barones de Kiderminster nuncupentur in cujus c. T. Rege apud Wodestock 10. Oct. It is probable that he was created Baron before he received this Patent because the Patent wants the words of Creation Ipsum Johannem praefecimus but it is not said per praesentes praeficimus and therefore the Patent running in the preterperfect tense could have no other operation but only to Record a thing which was past but he was not Created by Writ before the Patent because it is dated Oct. 10. and he received no Writ till the Decem. following Wherefore seeing that undoubtedly he was a Baron before he received either Patent or Writ for the Patent which is Matter of Record saith Ipsum praefecimus it follows that before this time a Baron hath been created without a Writ which could be no otherwise then by the performance of a Ceremony as Investiture of Robes c. and this Patent was only an entring of the Creation being a transitory thing upon Record 2. Admitting that Barons have been created by Writs yet Prelates are not created Barons by their Writs because there is a difference between a Writ sent to a person that hath no right ex debito justitiae to demand it and a Writ sent to one that was a Lord of Parliament before and ought de jure to have been summoned The former together with the persons obedience may perhaps make him a Baron but the latter I conceive doth not make any addition to or enlargement of their precedent Honour but only summons them to exercise their Jurisdiction and put that power which they have in execution and that is only reducere potentiam in actum otherwise every Lord would be newly created at every Parliament every one to whom the Honour is entailed would have a Fee-simple for a Writ will make a man a Peer in Fee without the word Heirs and every Lord Bishop L. Keeper L. Treasurer L. Privy Seal would be as such Inheritable Peers or at least for life which are both false for after Regradation their Peerage is ended Wherefore it being certain that all the Lords both Spiritual and Temporal ought to be summoned to every Parliament the Summons must of necessity have respect to that Right which doth entitle them to demand them The Inference which I draw from all this is That the Lords Spiritual having no Peerage upon the account of their Writs cannot claim any at all except it be Jure Episcopatus that is ratione terrarum quas tenent per Baroniam So that now I come to the next point viz. Whether such whose Peerage is ratione tenure and dies either with the determination of his Estate in the Land or the dissolution of the Tenure be a competent Judge of one whose blood is ennobled in case of life and death within the meaning and intent of Magna Charta which enacts that every one shall be tryed per legale judicium parium suorum The Negative I hope effectually to prove from these following Reasons 1. Every ones Peerage ought to be measured and proportioned according to the limits and extent of that ratione cujus he is a Peer he that is a Peer not only upon the account of his Possessions but also upon the account of the quality and nobility of his Blood hath a right of Judicature and Legislation both in those things that regulate Mens Estates and Properties and also in those things that concern Life and Death buthe that hath no Peerage but what is praedial or feudal and not personal a Peerage accruing by vertue of his Tenure and Possessions and not the Nobility of his Blood can have no Jurisdiction but such as is agreeable to the nature of his Peerage that is such as shall extend to matters of Property and Possession but not to matters of Blood for as to this he is no more a Peer i. e. Par to a Temporal Lord than any private Gentleman and therefore hath no more Jurisdiction for it is Parity that makes a man capable of Jurisdiction within the Statute This is confirmed by the Authority of that Learned Antiquary Mr. John Selden in the first Edition of his Titles of Honour a Volume in Quorto 347 which I the rather cite because it was Printed in King James his time and therefore not liable to exception his words are these A Bishop shall not be tried by Peers in Capital Crimes because these are personal and his being a Baron is Ratione Tenurae and not of personal Nobility So it is in Br. Abr. Tit. Enquest 99. Although in an Action for Land c. a Bishop shall have Knights in his Jury as other Lords yet when he is tryed for his life it 's said he shall not have Knights in his Jury By Which Book it is evident that a Bishop is a Peer not in respect of his Person but of his Possessions 2. The whole Statute of Magna Charta is a Grant or rather a Confirmation of the Priviledges and Liberties of the Subjects of England and it is to be supposed that the enjoyment of every of those Priviledges that are there granted is a great advantage and happiness to the Subject but wherein the advantage of a mans being tryed per Pares doth lie is a Point worth the Consideration I conceive it to be this When those are to be Judges who may be under the same Circumstances with the Prisoner and when by their Judgment the Prisoner can lose nothing but what his Judges if they be under his Circumstances may lose also he may expect that they will not give Judgment but upon Mature Deliberation and that the Consideration that it may be their own case will deter them from giving a rash judgment against a man that is innocent or not apparently guilty Whereas if a mans Life
and Fortune his Honour the Inheritable Quality of his Blood his Name and Reputation and whatsoever may be comfortable in this World were disposable at the will and pleasure of inferiour persons who have not every of these themselves and consequently know not the true value and worth of them nor the importance of the matter that is judicially before them it may be presumed that they will not be so careful and concerned in the Cause and it is to be feared they will be too ready to give an inconsiderate and rash judgment This I take to be the onely benefit of a mans being tryed by his Peers which is very significantly expressed in the Statute De Proditoribus 25 Ed. 3. cap. 2. in these words Et de ceo soit provablement attaint deâ—overt fait per gents de lour condition c. But to apply this to our present design let us consider what a Temporal Lord loseth by an Attainder In the first place he loseth his Life his Estate real and personal If that were all a Gentleman might be his Peer but there is something more he forefeits his Nobility which is irrecoverable being quite extinguished the inheritable quality of his Blood is thereby corrupted the House of Lords themselves suffer with him for they lose a Member for ever But a Bishop forfeits nothing but what he hath in his Natural Capacity and if he be considered as such he is no Peer if he be considered as a Bishop i. e. As holding Lands of such a Value in the Right of his Bishoprick of the King he is a Peer but his Peerage is in no danger through his Attainder the succession which he is supposed to be as tender of as a Natural person is of his Posterity is not thereby tainted for his Peerage together with all his Posterity and Land Ratione cujus he is a Peer go to the Successor without any restauration see Stamford 187. 6. and so the House of Lords lose never a Member How then can Bishops having no Nobility which they can lose and consequently not being Gents de lour condition be fit Judges upon the Life and Death of Noble men And upon what grounds can more Justice be expected from such than from honest substantial Freeholders If this do not please let any of the most violent Maintainers of this pretended Temporally-spiritual Jurisdiction give a rational account wherein the advantage of a mans being tryed by his Peers doth consist and let him make appear that the Lords Temporal are any Sharers of this Priviledge when they are tryed by Bishops and I am satisfied but till then he must give me leave to conclude that this Jurisdiction which is pretended to is an abuse of the Satute of Magna Charta and therefore a violence offered to the Liberties of the Subjects of England 3. The Bishops are not Peers in that sense the Question is above stated in because they shall not themselves be tryed by Peers in Parliament If their Parity be not sufficient to Entitle them to demand a Tryal by Temporal Lords then they cannot be Peers so as to be Judges upon the Tryal of Temporal Lords but if they be really Peers to all intents and purposes then we charge all our Ancestors with a gross Violation of the Subjects Priviledges granted by Magna Charta for every Bishop is Liber homo a Subject of this Realm and ought of Right to have the benefit of a Subjects Priviledge of being tryed by his Peers But seeing by the constant practise in former Ages even in those times when the Tyranny of ambitious Prelates and the Insolence of Popish Usurpers did swell to so great a height when the poor credulous affrightned Laity were glad for fear of being delivered Prisoners In manus custodiam Diaboli and secluded from the Society and Conversation of Mankind to truckle at the Feet of the domineering Clergy and condescend to almost all their Demands however unreasonable or unjust they were insomuch that Innovations in favour of them were easily allowed and new acquisitions of Honour and Power easily obtained I say if in those times the Honour of being Tryed by Peers hath been denied to them it may well be inferred that they had no Right for if it were a thing which they had any colour of pretension to is it reasonable to suppose that they quietly without reluctancy would resign it when we have Records and Histories full of their Clamours for breach of Magna Charta of their Contentions with their Liege Lord and Sovereign in things that were against the known and established Laws of the Kingdom tending to the diminution of the Kings Prerogative the hindring of the Execution of Justice upon Malefactors and the dispossessing and injurious Expulsion of the Subject from his just and hereditary Right where they had no reason in the world for it onely that they were inflamed with indignation that the Native Courage and inbred Generosity of Mind that was in our Ancestors not induring themselves to be trod upon nor their Necks to be laid under a Yoke of Tyranny and Usurpation did obstruct the unsufferable growth of that Power and Dominion which their own Pride and Ambition together with the example and success of their Brethren in other Countries had spurr'd them on to These things are well enough known to all people whose Eyes are opened and therefore I shall not insist upon them but shall prove that Bishops ought not to be tryed by Temporal Lords and for that I have the Suffrage of all Learned men My Lord Coke in the Third Institutes Fol. 30. is express in the Point Spiritual Lords shall not be tryed by Peers Stamford in his Pleas of the Crown Lib. 3. cap. 1. De Trial per les Peers saith That the Statute of Magna Charta and 20 H. 6. cap. 9. Which gives Dutchesses Countesses and Baronnesses the same Priviledge that their Husbands have Nad este mise in 〈◊〉 dextender a un Evesque on Abbe coment que ils injoient le nosme des Seignior de Parlement car ils nont cel nosme d' Evesque ou Abbe ratione Nobilitatis sed ratione 〈◊〉 ne ont lieu in Parlement in respect de lour Nobilitie ejus in respect de lour possession Sc. l'auncient Baronies annexes a lour Dignities accordant a ceo il â—ad divers Presidents dont l'un fuit in temps le Roy H. 8. c. Of the same Opinion and for the same Reason is Selden ubi supra We find the same agreed by Justice Dodderidge pag. 59 112. and Elsynge in his ancient Method of holding Parliaments pag. 41. And the Book which I above cited Br. Tit. Enquest 99. 27 H. 8. in the Bishop of Rochester's Case it is resolved That when a Bishop is to be tryed for Treason it is not necessary that he have Knights in his Jury although he shall have that Priviledge in a Tryal for his Land which proves that his Peerage is more for the Priviledge
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
to the Bishop to be Degraded before the Sentence of Law was executed upon them So it is in all Cases of High Treason for there being no room for Purgation the Judges are not at all obliged to deliver him but out of favour they were wont to do it to the end he might be Degraded and if that Custom were still observed there were no great harm in it yet in Trin. 24. H. 8. in Spilmans Reports we have a Case of one George Nobles a Priest who was Convicted at the Gaol delivery of Newgate of Clipping the Kings Coin and by the Resolution of all the Judges they passed Sentence of Death upon him before any Degradation and he was accordingly Executed in his Canonical Vestments In a Record upon the Parliament Roll 21 E. 1. Rot. 9. it is to be found that one Walter de Berton was Convicted of Counterfeiting the great Seal but the Record saith Qui convictus tradatur Episcopo Sarum qui eum petiit ut Clericum suum sed sub pena c. sub forma qua decet quia videtur Concilio quod in tali casu non admittenda est purgatio Here it appears a person Convicted was delivered to his Ordinary in case where there could be no Purgation and so no benefit of Clergy and therefore it is evident that it was to the end he should be Degraded and upon that the Delivery is with a Subpoena which can be understood no otherwise but that he should re-deliver him VI. As to the last point at what time they ought to be Degraded may be determined partly from what hath been said already for the end of Degradation is only to prevent that Scandal and Irreverence which would otherwise be thrown upon that honourable Profession which all sober and true Christians are very tender of And certainly there cannot regularly be any Deprivation or Degradation before Conviction for no Clerk can be Deprived or Degraded of any Benefice or Dignity except upon full Evidence he be found such and such a person as is uncapable of enjoying it And as a Bishop cannot refuse a Clerk presented except there be special cause for it as criminosus c. so neither can he deprive one that is already Inducted without special cause and in any Court of Record the Cause must be specially pleaded because it is Traversable Co. lib. 5. 2. part fol. 58. Specots Case Suppose then that any Ecclesiastical Person is Arrested for Treason the Ordinary cannot deprive him except he first pass Sentence upon him that he is criminosus but he cannot pass Sentence of Deprivation upon him while he is under the Custody of the Temporal Magistrate and before he is delivered to him for it is the greatest piece of Injustice in the World to Condemn a man before he be heard indeed our Law allows that in case of Outlawry but that is when he may appear and yet after Five solemn Proclamations will not but it is against the Law of Reason and the Laws of all Nations to Condemn a man that is absent when at the same time they know he cannot appear and therefore no Clerk can be deprived till he be delivered by the Temporal Judge and I have already proved that there can be no Delivery till after Conviction so that it doth necessarily follow that there can be no Deprivation till after Conviction and for further confirmation see Ridley ubi supra Bracton lib. 3. fol. 123. Clericus Ordinario traditus si in purgatione defecerit degradari debet Fleâ—â— lib. 6. c. 36. Degradare potest Episcopus criminum convictos Whereby it appears first That before Degradation they must be allowed the benefit of making their Purgation if they can and that they have not except they be present when they are Condemned 2ly That they must be Traditi or Convicti before Deprivation The Case of a Bishop seems parallel to the Case of any other Clerk for the King is Patron of all the Archbishopricks and Bishopricks of England they being all of his and his Progenitors Foundation They must either therefore be Donative or Eligible before King John's time they were Donative per traditionem Annuli Pastoralis baculi But he by his Charter 15. Jan. Anno Regni 17. granted that they should be Eligible and therefore were made to be in the nature of Advowsons presentable when therefore the King did nominate or present such a person to the Bishoprick that person could not be refused without some special cause of refusal but if it did appear that he was either Infamous Irreligious Schismatick Heretick Miscreant Infidel mere laicus c. I conceive he might well be refused or else to what purpose issued forth the Conge d'eslier What signified King John's making them Eligible And therefore there being the same Reason and Law of Degradation or Deprivation after actual Investiture that there is of refusal before I infer there can be no Deprivation of a Bishop without Cause and that Cause cannot be adjudged to be in him before he be heard and have the Justice to defend himself as well as he can allowed him and consequently no Deprivation till after delivery out of the hands of the Secular Power which is in no case till after Conviction These Particulars explained and proved will satisfie all those whose Sentiments are regulated according to the Standard of Reason that there is no strength in any of those Objections which some ignorant people do so much insist upon Having thus by the Rules of Law the Authority of the most Renowned Authors and Variety of Precedents proved That a Bishop is no Peer in respect to a Temporal Lord within the intent and meaning of the 29th of Magna Charta It doth naturally follow that he hath no Right to claim any Jurisdiction or Right of Judicature upon the Life and Death of a Temporal Lord for otherwise he might suffer Death or Banishment or Imprisonment by the Judgment of those who are not his Peers contrary to the Fundamental Laws of England and the Liberties of every Subject And thus I conclude the first Point The second Point that I offered to demonstrate is That the Bishops Votings in Capital Cases is contrary to the practice of all Ages untill this day In the first place Let us examine how it was before the Reign of Henry the Second It must not be expected that this should be proved from the Records and Journals upon the Parliament Rolls for their Antiquity will not reach so high as to do any considerable Service in this matter but I shall give the same proof for this that any man can give for Tryals by Juries before Magna Charta that is an Act of Parliament making Recognition of several ancient Customs practised beyond the Memory of those that then lived and that I hope will be sufficient Evidence The Statute that I mean was made at that Great Parliament which was held at Clarendon the 10 11 of H. 2. Anno
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