to be challenged for that in Law they be Judges to that purpose and Judges cannot be challenged and that is the reason why Noblemen cannot be challenged for Mag. Charta saith Per Judicium Parium suorum Cap. 29. and not Veredictum When the Peers that were to be Tryers at the Arraignment of the Ealls of Essex and Southampton were called by name Camb. Eliz. A. 1601. the Earl of Essex demanded whether it were not lawful for them as the use is to private men to except against some of their Peers The Judges answer'd that such was the Credit and Estimation of the Peers of England that they are neither compelled to an Oath in Arraignments nor subjected to Exceptions QUERY IV. Whether the Lord High-Steward can collect the Evidence against the Prisoner or conser with the Lords touching the same in the Prisoners absence SOL. To this I answer negatively for after the King 's Learned Counsel have produc'd all their Evidence the Prisoner ought to be present at all Conferences touching the same and therefore it shall be necessary for all Prisoners after Evidence given against them before departure from the Bar to require Justice of the Lord High-Steward and of the other Lords and that no Question be demanded or conference had by any with the Lords but in open Court in their own hearing otherwise such Prisoners shall take no advantage thereof after Verdict and Judgment given QUERY VII If the Lords be equally divided between guilty and not guilty whether the party tryed shall be acquitted or condemned SOL. In an Information in the Court of Star-Chamber by the Attorney against Sir Stephen Proctor and others for conspiracy against and scandal of the Earl of Northampton Co. 4. Inst f. 64. and Edward Lord Wootten two of his Majesties most Honourable Privy Council at the hearing of which Cause there sat eight in Court whereof four condemned the Defendants and the other four viz. the Lord Chancellour two Bishops and the Chancellour of the Exchequer acquitted them the Question was according as your Lordships have propos'd it Whether the Defendants should be condemned or not And here it was moved by the King 's Learned Counsel that when the Voices are equal that in that case of which part the Lord Chancellour was on that side it should be determin'd without regard either to Plaintiff or Defendant And it was resolved that regularly and de communi Jure in respect of the equality of Voices that no sentence could be given as it holdeth in the High Court of Parliament and all other Courts according to the old rule Paribus sententiis Reus absolvitur And sentence was never given against Sir Stephen Proctor agreeable to the general rule in other Courts In this point the Civil Law concurs with the Common Inter Pares Numero Judices si dissonae sententiae proferantur in liberalibus quidem causis secundum quod a Divo Pio constitutum est pro libertate statutum obtinet in alits autem causis pro Ree quod in Judiciis publicis obtinere oportet Vid. Grot. lib. 2. c. 5. uu 18. de Jure Belli c. Reus sententiis paribus absolvitur semper quicquid dubium est humanit as milinat in melius Alter Judex damnat alter absolvit inter dispares sententias milior viniat I shall here take leave to make a little digression from the Query and consider if a person that is forth-coming can by Parliament be attainted of High-Treason and never call'd to answer This seems as much worth the inquiry as other your Lordships Queries and though omitted by you I shall not let it pass without some notice By the 2. of H. 6. we find a great Peer condemned without Arraignment or Answer Co. 4. Inst f. 37 38. the like in 32 H. 8. one Attainted though living and forth-coming of High-Treason without ever being called to Judgment The legality whereof was scrupled and demanded of the Judges whether the Act were void or not with some pause they adjudged it perillous and of bad example to the Inferiour Courts but 't was agreed if condemned by Parliament to be indisputable though Cap. 29. 5 E. 3. c. 9. 28 E. 3. c. 5. of Mag. Char. affirms that no man ought to be condemned without Answer without a Quid fecisti and all due proceedings at Law Senec. in Loco Qui statuit aliquid parte inaudita altera licet aequum statuerit hand aequus sucrit With the Municipal Laws agree those of the Romans Divi Severi Antonini Magni rescriptum est D. 48.17 ne quis absens primatur hoc jure utimur ne Absentes damnentur neque enim inaudita causa quemquam damnari aequitatis ratio patitur Acts 25. v. 16. It is not the manner of the Romans to deliver any man to death before the accused have his accusers face to face and license to answer for himself QUERY VIII Whether the King and one of the Houses alone or both without the King can declare a Treason within the Stat. of 25 E. 3. cap. 2 SOL. John Duke of Groyen and Lancaster Steward of England and Thomas Duke of Glocester Constable of England the King's Uncles complained to the King that Thomas Talbot Knight with others his Adherents conspired the death of the said Dukes as the same was confessed and well known and prayed that the Parliament might judge of the fault which Petition was just and according to the Branch of the Stat. of 25 E. 3. but the Record saith further that the King and Lords in Parliament adjudged the same fact to be High-Treason which Judgment wanting the assent of the Commons was no Declaration within the said Stat. which is attended with this restriction That if any other case supposed to be Treason should happen before any Justices the Justices should tarry without going to judment of the Treason till the Case be shewed before the King and his Parliament consisting of Lords Spiritual and Temporal and the Commons whether it ought to be adjudged Treason or Felony QUERY IX Whether the Subjects of another Prince Confederate with the King of England can be held for the King's Enemies SOL. It was objected against the Duke of Norfolk concerning his relieving of the Scots the Queens Enemies which was proved by Letters and Banister's confession c. whereupon the Duke asked the Judges Whether the Subjects of another Prince Camb. Eliz. A. 1572. Confederate with the Queen of England were to be holden for the Queens Enemies Calelin Chief Justice answer'd that they were and that the Queen of England might make War with any Duke of France and yet in the interim keep peace with the French King And here 't is to be noted that the Judges ought not to deliver their Opinions before-hand in any criminal case that may come before them judicially In the Case of Humphrey Stafford that Arch Traytor Hussey Chief Justice besought King H. 7.
which once ended his Commission expireth so that we may describe him thus Magistratus est Excelsus qui pro uno die a Rego ordinatur cum aliquis ex Proceribus Regni in Judicium vocatur de noxa Capitali Now we are to take a Prospect of the Extent of his Lordships Jurisdiction and Power and the Rules he ought to judge by Although the Power and Authority of the Lord High-Steward hath been since the Reign of King H. 4. but hac Vice yet is the hac Vice limited and appointed as when a Lord of Parliament is Indicted of Treason or Felony then the Grant of this Office under the Great Seal of England is to a Lord of Parliament reciting the Indictment Nos considerantes quod Justitia est virtus Excellens Altissimo complacens eaque prae omnibus uti volentes ac pro co quod Officium Seneschalli Angliae cujus prasentia pro administratione Justitiae Executione ejusdem in hac parte faciend Requiritur ut accepimus jam valeat de fidelitate Strenuitate provida Circumspectione Industria Vestric plurimum confidentes Ordinavimus Constituimus Vos ex hac causa causis Seneschallum Nostrum Angliae ad Officium illud cum omnibus eidem Officie in hac parte debitis pertinentibus hac vice gerend accipiend exercend Dante 's concedentes vobis tenore praesentium plenam sufficientem Rotestatem Authoritatem ac Mandatum speciale Indictamentum praedict c. So that this Great Officer is wholly restrained to proceed only upon the recited Indictment At every Coronation he hath a Commission under the Great Seal hac Vice Cok's Litt. 79. a. b. 4 Inst 59. to hear and determine the Claims for Grand Serjeanties and other Honourable Services to be done at the Coronation for the solemnizing thereof for which purpose he holds his Court some convenient time before the Coronation The first Person that was created hac Vice for sulemnizing the Coronation of H. 4. was Thomas his second Son and upon the Arraignment of Thomas Holland Earl of Huntingdon the first that was created Steward of England hac Vice was Edward Earl of Devon Lastly The Order and manner of Arraigning a Peer of the Realm before this Great Officer is to be consider'd As the Peers of the Realm who are Tryers are not sworn so the Lord High-Steward being Judge is not sworn likewise yet ought he to proceed according to his Letters-Patents Secundum Legem consuetudinem Angliae Co. Litt. 142. a. 4 Inst f. 60. for all Commissions and Charters for Execution of Justice are facturi quod ad Justitiam pertinet secundum Legem consuetudinem Angliae But admit the Commission should be Secundum sanas Discretiones vestras How then I answer Discretio est discernere per Legem quid sit Justum that is to discern by the right Line of Law and not the warpt measure of private Opinion Si a Jure discedas vagus cris erunt omnia incerta 'T is certain he that out-runs the Law hastens to his own destruction Commissions then that Authorise proceeding secundum sanas discretiones c. in sense are secundum Legem c. The Earl of Huntingdon was Indicted of High-Treason in London 1 H. 4. f. 1. a. by a Commission before the Mayor and Justices for that he with other persons agreed to go a Mumming which the French call Masquerade on the Night of Epiphany in which they intended to kill the King then at Windsor And after the King granted a Commission to the Earl of Derby reciting That whereas George E of H. was Indicted of High-Treason and that he would that right should be done and because the Office of the Steward of England is now void he grants it to the said E. of Derby to do Justice to the said E. of Huntingdon commanding by the same Commission all the Lords to be attendant upon him and Precept was likewise given by the same to the Constable of the Tower to be attendant on him and to bring the Prisoner viz. the E. of H. before the said E. of D. on the day appointed whereupon the E. of D. the same day sat in Westminster-Hall under a Cloth of Estate by himself and the E. of Westmerland and other Earls and Barons sat at a considerable distance and all the Justices and Barons of the Exchequer sat round a Table and after three O Yes's made and the Commission read the Justices deliver'd the Indictment to the Lord Steward which was deliver'd to the Clerk of the Crown who read it to the said E. of H. which he confessed whereupon Hill the King's Serjeant prayed Judgment which the Lord Steward after he had rehearsed the whole matter pronounced in this manner That the E. of H. should be taken back to the Tower of London and from thence be drawn to the Gallows and there hanged and being yet alive cut down and his Entrails drawn out of his body and burnt and that he should be beheaded and quartered Et sic Deus propitiatur Animae suae The Justices then said that if the E. of H. had deny'd the Treason the Lord Steward should have demanded of every Lord in open Court what they thought in their Consciences beginning with the Puisny Lord and if the greater number said Guilty then the Judgment to be given as above I refer your Lordships to Cambden's Annals of Q. Eliz for the manner of the Tryal of Tho. Howard Duke of Norfolk before George Talbot E. of Shrewabury Lord High-Steward upon that occasion Sir Ed. Coke describes the manner how a Peer is to be tryed in case of Treason c. before the Lord High-Steward of England He must be Indicted before Commissioners of Oyer and Terminer or in the King's Bench if the Treason or misprision Felony or misprision of Felony be committed in that County where the King 's Bench sit when he is Indicted then the King by his Commission under the Great Seal of England constitutes some Peer of the Realm to be hac Vice Steward of England who is Judg in this case The Commission recites the Judgment generally as 't is found and Power given to the Lord Steward to receive the Indictment c. and to proceed secundum Legem consuetudinem Angliae A Commandment is also given by the same to the Peers of the Realm to be attendant and obedient unto him as also to the Lieutenant of the Tower to bring the Prisoner before his Lordship Then a Certiorari is awarded out of Chancery to remove the Indictment it self before the Lord Steward which may either bear date the same day of the Stewards Commission or any day after The Lord Steward directs his Precept under his Seal to the Commissioners to certifie the Indictment such a day and place He also makes two other Precepts one to the Constable or Lieutenant of the Tower to bring the Body of the Prisoner before him at
the offence such he ought not to be Attainted by general words by Authority of Parliament as sometime hath been used but the Treason ought to be specially expressed seeing that the Court of Parliament is the Highest and most Honourable Court of Justice and ought to give Example to the Inferiour Magis Exemplis quam praeceptis ducimur QUERY XIV Whether a Subject of one Kingdom guilty of Treason flying into another Kingdom ought to be remitted to his own Soveraign SOL. It is holden and so it hath been resolved that divided Kingdoms under several Kings in League one with another are Sanctuaries for Servants or Subjects flying for safety and upon demand are not by the Laws and Liberties of Kingdoms to be delivered And this Opinion seems grounded upon the Law in Dout. c. 23. v. 15. Thou shalt not deliver unto his Master the Servant which is escaped from his Master unto thee When the Lord Paget and Arundel came into France Sir Edward Stafford Camb. El. 1584. Queen Eliz. Ambassadour there diligently observed them yet could by no means discover what they attempted he desir'd nevertheless of the French King that they with Morgan and other English who were practising against their Prince and Country might be removed out of France To which he received this answer That if they attempted any thing in France the King would punish them according to Law That all Kingdoms were free for Fugitives and that it was the great concernment of Kings to maintain every one the Priviledges of his own Kingdom That Queen Eliz had not long since received into her Kingdom Montgomery the Prince of Conde and others of the French Nation and that Sagury the King of Navarr's Embassadour was in England at this very time practising to move new troubles against the French King King H. 8. in the 28th year of his Reign being in League with the French King and in Enmity with the Pope who was in League likewise with France and had sent Cardinal Poole Embassadour to the French King of whom K. H. 8. demanded the said Cardinal being his Subject and Attainted of Treason and to that end caused a Treatise to be publisht that it ought to be done Jure Gentium sed non praevaluit Ferdinando King of Spain upon request made by H. 7. to have Edmond de la Poole Earl of Suffolk Attainted of High-Treason by Parliament A. 19. H. 7. at first intending to observe the Priviledge and Liberty of Kings in protecting such as came to him for succour and protection delivered him not yet in the end upon the earnest request of the King and his promise not to put him to death he caused the said Earl to be delivered up to the King who kept him in Prison and construing his promise to be but personal commanded his Son Henry after his death to execute him which he caused to be done in the fifth year of his Reign I shall add one more Example of a Remission out of Zouch Treat de Judicio inter Gentes Cum quidam Seywardus Scotus qui Mariam Scotorum Reginam veneno tollere conatus est in Anglia deprehenderetur Ed. Sextus Rex Angliae eum in manus Regis Galliae tradidit ut debito supplicio Remitteretur quod Nonnullis displicuit quia etsi ratio suadeat ut qui in Patria deliquit in Patria Puniatur aliter tamen de consuetudine quod Remissionem usurpatum est Having now run thorough the several Query's which your Lordships have thought fit to propose I Shall venture to set one step further and start Another of my Own with some Offers toward the Solution of which I will make an end Viz. QUERY XV. Whether in any Case it be Lawful for Subjects to Oppose their Prince SOL. It must be resolv'd in the Negative And that in any Case or upon any Pretence whatsoever it is utterly unlawful for Subjects joyntly or singly collectively or representatively to make any violent Opposition against their Soveraign or to Resist him either in an Offensive or a desensive way This Assertion you will find to be a Truth that is Consonant to Holy Writ Reverend Antiquity Sound Reason and to the Municipal Laws of the Land all the Sophistries and Argumentations that Seditious and corrupted men are able to produce to the contrary notwithstanding I. To begin with Holy Scripture It is clear from Deut. o. 17. v. 12. which commands the Israelites to put away evil from amongst them by bringing to Publique Justice all such Mutinous and Presumptious persons as refus'd to Obey the High Priest and the Judge that God imposed an Obligation even upon his own People not to Resist the Supreme Magistrate And v. 13. makes the Reason of this Severity to be to preserve the People from being Poyson'd in then Allegiance by the Malignity of such Examples That all the People under what Notion or Qualification soever may Hear and fear and do no more presumptuously The same express Warrant of the Word and to the self-same purpose there is in Joshua C. 1. v. 18. Whosoever he be says the Almighty speaking to him that doth rebel against thy Commandment and will not harken to thy words in all that thou commandest him he shall be put to death Saul is generally condemned for persecuting David and attempting upon his Life And yet though David had him twice at his mercy he was not to be prevail'd upon to do him any Harm 1 Sam c. 24. v. 6. and C. 26. v. 11. For who says he can lay his hand upon who can touch who can stretch forth his hand against the Lords Anointed and be Guilvless Now the Signification of the Scripture phrase Touch or stretch forth the hand against the Lords Anointed is of a Large Extent And the Guilt of this Horrid Crime may be incurr'd either by lifting up our heels in scorn against our King Psal 41. v 9. By taking up Arms in our own defence for whosoever Resisteth the Power Resisteth the Ordinance of God Rom. 13. By not bringing to light such Traiterous Conspiracies as we know to be forming against him Lev. 5. By not endeavouring to defend him when we see him in danger for Qui non vetat peccare cum possit jubet By striking at his Crown usurping upon his Prerogative or depriving him of his Revenue Jer. 18. v. 18 By Speaking or even Thinking evil of him for as the Tongue can strike without a Hand so the Heart can curse without a Tongue Or in a Word by any sort of indignity or out-rage offer'd either to his Authority or Person But to proceed Doth not Saint Paul enjoyn that every Soul be Subject to the Higher Powers for there is no Power but of God and they that Resist shall receive to themselves Damnation Nay and doth not Saint Peter also inculcate a Patient Toleration of injuries 1 Pet. 2. v. 19.20 21 22. and recommend unto our imitation the Example of
our Blessed Saviour who when he was reviled reviled not again when he suffered he threaten'd not but referr'd the Vengeance to him that judgeth Righteously If ever man had just Cause to Resist then had he yet would he not do it but check'd Saint Peters forwardness that way with a Whoso taketh up the Sword Mat. 26. v. 52. shall perish by the Sword We find in the Creed that Pontius Pilate is Recorded by the Holy Ghost which influenced the Church in the composing of it this now was certainly done for our Edification and to insinuate that as we tender our Salvation by our Faith in Christ we must be careful of paying a Chearful Obedience to the Lawful Commands of the Magistrate and to submit humbly and Suffering to those that are otherwise And this Obligation continues even though the Prince should be a Heathen and the Cause we smart for Christ and his Church II. As to Reverend Antiquity Saint Ambrose upon the Point of Non-Resistance discourses to this effect I have not so learn'd Christ says he as to seek by force to oppose Authority I can mourn and Lament but for Other Resistance I neither will nor ought to make any Saint Cyprian speaks to the same purpose It is out of a Principle of Conscience says he that none of us make any Opposition when we are unjustly Seiz'd upon or study a Revenge upon our Tormentors for the Numerousness of our Party were otherwise sufficient to bear us out in such a Design And so does Tertullian We are not says he despoyl'd of our Goods they are only Sequestred for our benefit and entrusted in safe hands God keeps them for our use and will return them with ample Encrease If you abstain from Fighting he will Espouse your Quarrel and question not but your Enemies will have the worst on 't for your Wounds will Save you and if you fall Martyrs you will rise Saints What cannot our sufferings bring about They make even God himself our Debtor he Owes us Heaven for our selves and he owes Hell for our Enemies But yet we breath our Souls in prayer that he may be entreated not to pay This. What Example now can there be more Glorious or more Instructive then that of the Theban Legion recorded in Ecclesiastical Story The Emperour Maximinian commanding his Army to offer Sacrifice to False Gods this Band consisting of about 7000 men remov'd their Quarters to the end that they might avoid giving offence but yet he presses them to bear a part in this Diabolical service and upon their humble refusal puts them forthwith to a Decimation which they chearsthy submit unto praying fut their Murtherers The Tyrant would not yet be sotisfied but renew'd his Commands to the Remainder of them and finding them still to continue Resolute rather to die than to disobey God he butcher'd them all without the least Resistance on their part This was truly to Confess him that was led as a sheep to the Slaughter Nay so very Fruitful are the Antient Fathers in Instances of this quality that it would be but Superfluous to recount any more of them the General Practice of the Primitive Christians being so evident in this point that the greatest Sticklers for that sin of Witchcraft Rebellion have not the Confidence to deny it III. That a Liberty to Resist those in whom the Law has plac'd the Power of the Sword is Repugnant to Sound Reason I shall endeavour to make out by the following Arguments 1. Such a License to Subjects against their Rulers is destructive of the very Nature of Government and of Humane Society for it dissolves the sinews of the State and splits it into as many Factions as it has Enemies And it is impossible to conceive Two Equal Supremacies of Power in the Nation and yet the Kingdome to remaine One. For this it is that distinguishes England France Spain and all other Independent Kingdomes one from another But then it is Childish to Fancy the Policy of any Monarchy much less of our own to be so grosly defective as to be the Author of its own ruine by dividing the State Legally against it self So that to take up Arms without or against Authority is down right Rebellion and the Consequence Murther and Rapine 2. It is both Reasonable and necessary that all Governments should have a Supereminent Coercive Power over Particular Persons for otherwise a City would immediately be hurry'd into an Anarchy and that which ought to be One Entire Body become so many Independnet men 3. That which to One Private Person is due as a Man the same is also due to Another and if I may assume to my self a power of judging when to Resist my Prince every private man may do so too Now what Peace what Society can there be hop'd for where every one is at freedom to discharge himself from the Obligation of all Humane Laws and to oppose them at pleasure Or what Obedience can consist with such Resistance Nor will such Libertines know where to stop for it is usual for them to fall foul upon all such as have a deeper sense of Honesty and Allegiance than themselves And what Law of God or Man was ever heard of that approv'd of my Murthering a Loyal man because I my self am a Rebel Beside that this Lewd Opinion Equally wounds the very Assertors of it for any body may be allow'd to do That to Them which they have done to their Rightful Prince and his Faithful Subjects 4. Now Touching the Muncipal Laws of the Land that this Resistance is against Them Lib. 5. c. 8. I shall make it Evident Bracton says Si ab eo scil Rege Petatur cum Breve non Currat contra Ipsum locus erit supplicationi quod factum suum Corrigat Emendat quod quidem si non fecerit satis sufficit ei ad paenam quod Dominum Expectet â—ltorem Nemo quidem de factis suis presumat disputare Multo fortius contra factum suum venire If a Subject find himself agriev'd by the King he is put to his Petition because no Writ can lie against him for Redress which if he will not vouchsafe it is a sufficient Penalty that he is to expect Punishment from the Almighty No man may presume to question what He does much less to Oppose him Fleta concurs with Bracton in this point Vid. Lib. 1. C. 17. And Lombard writes thus Nemo Dominum says he judicet vel judicium proferat super eum cujus Ligius sit So likewise the Statute of 25. Ed. 3. c. 2. de proditionibus makes it Treason to compass the Death of the King And to what end should these or any other Provisions against Treason have been establish'd if Resistance were in Any Case Lawful Or what does the Oath of Allegiance signify if the people may take up Arms against their Prince at pleasure The Form of it runs thus You shall swear that from this day forward you shall be True and Faithful unto our Soveraign Lord King Charles and Truth and Faith shall bear of Lise and Member and Terrene Honour and you shall neither know nor hear of any Ill or Dammage intended unto him that you shall not defend c. My Lord Coke comments upon it that the Subject and Effect of this Oath is due by the Law of Nature the Form and Addition is ex provisione Hominis To Conclude the Famous Bishop Merks is Positive That a King by Lineal succession being Lawfully invested cannot upon Imputation either of Negligence or Tyranny be Opposed or Deposed by his own Subjects Thus having given your Lordships a description of the Lord High-Stewards Office and the manner how a Peer is to be Arraigned before him with such Solutions to your several Queries as I have collected out of the Books of Law and History I shall conclude all with this Advertisement That the surest way to escape both the Guilt and Punishment of High-Treason is to Fear God and Honour the King Eccles 13. v. 28. The Counsel given us by the wisest of Kings is worthy to be adverted to Think not evil of the King in thy Heart neither utter it with thy lips lest a Bird of the Air carry the voice and that which hath wings discover the matter Let us detest the Principles believ'd and practis'd by those Audacious Violators of Royal Majesty the Spawn of Loyola and keep fast to the Doctrine of our own Church which positively Asserts That the sacred Bond of Subjects in Obedience to their Soveraign is inviolable and cannot be dissolved either upon the account of supposed crimes in the person of the Prince as Tyranny Infidelity Heresie c. Or by any Acts of the Bishops of Rome as Dispensations Excommunications c. It was once said in Valonger's Gass that he that is throughly Popish may easily be warpt from his Loyalty My Lords I am Your Lordships In all Justice Ed. S. From my Chamber in the Temple Jan. 17. 1680. FINIS
Summus Angliae Seneschallus OR A SURVEY OF THE Lord High-steward OF ENGLAND HIS Office Dignity and Jurisdiction Particularly the manner of Arraigning a Peer INDICTED OF TREASON or FELONY In a Letter to the LORDS in the TOWER with Resolutions to certain QUERIES made by their Lordships relating to Trayterous and Seditious Practices Written at their Lordships Request Funesta Securis Regni Securitas London Printed in the Year 1680. THE NATURE of the OFFICE OF A L. HIGH-STEWARD c. My Lords I Shall not entertain your Lordships with any Preliminary Discourse but presently let you into the main Building As the Royal Power and Soveraignty of the King of England is a repleat compacted Body and impartible even so the Attributes thereof are as Jurists speaks so indivisible in themselves naturally and intrinsecally inherent in the Crown that they cannot be made away or so communicated to the Subject as to divest himself of them to the lessening Soveraign Majesty yet by Trust and Delegate Power the Execution may be transferred to others to ease him of a troublesome burthen Now among those several Ministers or Officers of Law that are by his Most Excellent Majesty substituted to ease him of labour but not to deprive him of Power the Lord High-Steward of England is one of the first Magnitude the Nature of whose Office will the better be comprehended by your Lordships if you vouchsafe to consider the particulars following 1. The Etymology of the words Steward and Seneschallus 2. His Lordships Stile and the Antiquity of his Office 3. How this great Office was formerly holden and how at this time 4. The Extent of his Jurisdiction and Power and the Rules he ought to judge by 5. The Order and manner of Arraigning a Peer of the Realm before this Great Officer For the derivation of the words Steward and Seneschallus Cok. Litt. 61. a. some say the first is derived of Stewe i. e. a Place and Ward which signifieth a Keeper Warden or Governour Others say that it comes from Steda a Saxon word which signifies a place also Lib. 9. Le Counter de Salop 's Case 48. b. and Ward as it were the Keeper or Governour of that place 't is a word diversly used in this Kingdom in the first acception 't is taken for the Lord High-Steward out of which Magistracy lower Officers have their rise as Seneschal de l' Hostel de Roy the Steward of the Kings most Honourable Houshold Anno 24. H. 8. c. 13. whose Title was changed to that of Great Master Plomd Com. f. 152. Anno 32. H. 8. c. 39. but this Stat. was repealed by that of 1 Mar. 2 Parl. c. 4. and the Office of the Lord Steward revived There is also a Steward of the Marshalsea Anno 33. H. 8. c. 12. and likewise a Steward of a Mannour Lib. 2. c. 71. whom Fleta fully describes To be short this word is of so great diversity that there is no Corporation of any Account or House of any Honour through the Realm but it shall have an Officer belonging to it of this Name But I proceed to the word Seneschallus Seneschal is a French word Minshaeus the Italians call it Seniscalco dict a Schalk i. e. Servus aut Officialis gesind i. e. familia but here 't is taken for the High-Steward of England Some derive it of Sein a House or Place and Schale an Officer others say Sen is an ancient word for Justice so that most naturally it signifies Officiarius Justitiae and this agreeth well with his Authority and Duty to proceed secundum Leges consuetudinis Angliae In the next place I am to consider his Lordships Stile which in Latin is Seneschallus Angliae and his Court is Intituled Placita Coronae coram Seneschallo Angliae and when he sitteth by force of his Office he sitteth under a Cloth of Estate and such as direct themselves to him say Please your Grace my Lord High-Steward of England Co. 4. Inst 59. As to the Antiquity of the Office 't is very ancient and was before the Conquest For Sir Ed. Coke tells us that he himself hath read an Authentical Manuscript intituled Authoritas Seneschalli Angliae which putting an Example of his Authority saith Sicut accidit Godwino Comiti Kanciae tempore Regis Edwardi Antecessoris Willielmi Ducis Normandiae pro bujusmodi male gestis consiliis suis per Seneschallum Angliae adjudicatus foris fecit Comitivam suam In the time of William the Conquerour William Fitz-Eustace was Steward of England Next come we to consider how this Great Office was formerly holden and how at this time This Magistracy was formerly of Inheritance and belonged to the Earldome of Leicester as appeareth by a Record produced by Sir Ed. Coke Seneschalcia Angliae pertinet ad Comitivam de Leicester pertinuit ab antiquo Other Records testifie that it belong'd to the Barony of Hinckley and my Lord Coke tells us that in the Reign of William Rufus and H. 1. Hugh Grant semenel Baron of Hinckley held that Barony by the said Office so that there seems a diversity between these Records but we shall reconcile it thus Hinckley was parsel of the Possessions of the E. of Leicester for Robert Bellamont E. of Leicester in the Reign of H. 2. married with Petronil Daughter and Heir of the said Hugh Grant semenel Baron of Hinckley and Lord Steward of England and so it continued till by the forfeiture of Simon Montford it came to King H. 3. who in the fiftieth year of his Reign created Edmond his second Son Earl of Leicester Baron of Hinckley and High-Steward of England which continued in his Line until Henry of Bullingbrook Son and Heir of John of Gaunt Duke of Lancaster who was the last that had any Estate of Inheritance in the Office of the Steward of England Since the time of H. of Bullingbrook this great Office was never granted to any Subject but only hac Vice and the reason was for that the Power of this Officer is so transcendent that it was not holden fit to be in any Subjects hands For a Record saith Et setendum est quod ejus Officium est supervidere regnare sub Rege immediate post Regom totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus pacis guerrarum c. and proceedeth particularly with divers high Powers and Authorities It is a Place of that Transcendency and Heighth Ephori 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Magistratus quidam Lacedemoniorum oppositi Regibus qui inspiciebant ea quae ad Rempub. pertinebant that it might in some sort match the Ephori among the Latedemonians The custom of our Commonwealth hath upon great consideration and policy brought it to pass that this Officer is of no great duration but only for the dispatch of some special business as the Arraignment of some Noble-man in case of Treason c.
such a day and place as also to a Serjeant at Arms to summon Tot tales Dominos Magnates Proceres hujus Regni Angliae praedicti R. Comitis E. Pares per quos rei veritas melius sciri poterit quod ipsi personaliter compareant coram praedict Seneschallo apud Westm tali die hora ad faciend ea quae ex parte Domini Regis forent facienda c. In this Summons four things are observable 1. That all these Precepts most commonly bear date in one day 2. That no number of Peers are named in the Precept and yet there must be twelve or above 3. That the Precept is awarded for the return of the Peers before any Arraignment or Plea pleaded by the Prisoner 4. That the Lords are not de Vicineto and therefore the sitting and Tryal may be in any County of England At the day the Lord High Steward with six Serjeants at Arms before him takes his place under a Cloth of Estate and then the Clerk of the Crown delivers to him his Commission who re-delivers it After three O Yes's by a Serjeant at Arms and Commandment given in the Name of the Lord High-Steward of England to keep silence the Commission is read then the Usher delivers to the Steward a white Rod who re-delivers the same which he holds before the Lord High-Steward It was deliver'd upon the like occasion to the Earl of Shrewsbury by Garter King at Arms. O Yes being again made Commandment is given in the Name of the H. Steward to all Justices and Commissioners to certifie all Indictments and Records which being deliver'd into Court the Clerk of the Crown reads the Return and the Serjeant at Arms is commanded to return his Precept with the names of the E. and Barons by him summoned and the Return of that is also read then are the Peers summoned to answer to their Names which are recorded When they have taken their places and the Prisoner set to the Bar then the Lord High-Steward declares unto them the cause of their Assembly and perswades the Prisoner to Answer without fear assuring him that he shall be heard with patience and that Justice shall be done to him After this the Clerk of the Crown reads the Indictment and proceeds to the Arraignment of the Prisoner and if he plead Not Guilty the Entry is Et de hoc de bono malo ponit se super Pares sues c. After which the Lord High-Steward gives a Charge to the Peers exhorting them to try the Prisoner indifferently according to their Evidence which is opened by the King 's Learned Counsel who produce their Proofs for the King against the Prisoner Some or all of the Judges are ever attendant upon the Lord High-Steward and take their places at the feet of the Peers After the Evidence is given for the King and the Prisoners Defence made he is withdrawn from the Bar under the custody of the Lieutenant whilst the Tryers go to some place to consider of their Evidence upon debate of which if they doubt of any matter they cannot send to the High-Steward to ask the Judges any Questions of Law but in the hearing of the Prisoner that he may know whether the case be rightly put for de facto jus Oritur neither can they send for the Judges to know their Opinion but the H. Steward ought to demand it in Court in the presence of the Prisoner When the Lords are agreed they return into Court and the Lord H. S. publickly in open Court beginning with the Puisny Lord says unto him My Lord A. is W. V. S. guilty of the Treasons whereof he hath been Indicted and Arraigned or any of them And the Lord standing up says Guilty or Not Guilty and so upward of the rest serialim The Peers having given their Verdict in the absence of the Prisoner the Prisoner is brought to the Bar whom the Lord High-Steward acquaints with the Verdict of his Peers and gives Judgment accordingly either of Condemnation or Acquittal After the Service is performed and O Yes made for dissolving the Commission the white Rod is taken by the Lord High-Steward in both his hands and broken in pieces Thus have I presented to your Lordships a Scheme of that solemn order and manner how a Peer of the Realm is Arraigned before the Lord High-Steward of England I might amass several Presidents of like nature wherein the Axe of Death is born before the Prisoner with the Edge from him and after being found Guilty with the Edge to him I wish your Lordships may never know more of this Point by a fatal experience Now it remains that I give Solutions to those Queries your Lordships were pleas'd to put concerning Tryals Treasons c. by which I wish you may arrive at some reasonable satisfaction QUERY I. How Antient this Tryal by Peers may be SOL. Without doubt 't is Coetaneous with the Office of the Lord High-Steward and how old that is hath been already shewn However I shall present one Authority which proves that Tryal by the Peerage was in use in the Reign of William the Conquerour who in the beginning of his Reign created William Fitz Osborne Earl of Betrevil in Normandy Earl of Hereford His Son Roger succeeded him and was E. of Hereford who under colour of his Sisters Marriage near New-Market in Camb. Shire where many of the Nobility were assembled conspir'd with them to receive the Danes into England and depose William the Conquerour who was then in Normandy from his Kingdom of England to effect which he with others rose This Treason was reveal'd by Walter E. of Huntingdon who was one of the Conspirators and Son to the Great Syward Earl of Northumberland for which Treason Roger E. of Hereford was apprehended by Urse Tiptof than Sheriff of Worcestershire A. 8. W. 1. and after tryed by his Peers and found guilty of the Treason per Judicium Parium suorum But he ended his days in Prison QUERY II. Whether a Peer can wave his Tryal by Peers SOL. He cannot wave his Peers and put himself upon the Tryal of Twelve Freeholders for the Stat. of Mâ—â— Shart is that he must be tryed by his Peers and so it was resolved in the Lord Daere's Case 26 H. 8. QUERY III. What Lords shall be tryed by Bears in cases of Treason c SOL. Every Lord of Parliament that hath Voice therein and called thereto by the King 's Writ shall not be tryed by Peers but only such as sit Patrone Nobilitatis as Dukes Marquesses Earls Viscounts and Barons and not such as are Lords of Parliament by reason of their Baronies which they hold in right of the Church as arch-Arch-Bishops and Bishops of this Realm for though they be Lords of Parliament yet upon an Impeachment either of Treason or Felony they shall not be tryed by the Peers of the Realm but by a Jury of Knights and other substantial persons upon their Oaths and one
reason alledged by some how truly let others judge is forasmuch as Archbishops and Bishops cannot pass in like cases upon the tryal of any other of the Peers their Lordships being prohibited by the Common and Ecclesiastical Laws to be Judges of Life and Death and this Tryal ought to be Mutual since the performance of it is upon their Honours without any Oath taken And hone by the way your Lordships may take notice how great regard the Law hath to the word of a Peer when spoken upon his Honour I need say no more upon this Topick I since your Lordships in that Excellent Poem A PARADOX against Liberty have exprest your thoughts so extremely well No Temporal Lord but only Lords of Parliament shall have this kind of Tryal and therefore the Eldest Son and Heir Apparent of a Duke in the life of his Father though he be called an Earl is excluded And this was the Case of Henry Howard Earl of Surrey Son and Heir Apparent of Thomas Duke of Suffolk in the 38. of H. 8. Likewise the Son and Heir Apparent of an Earl though he be called Lord or Baron and all the younger Sons of Kings are Earls by Birth though they have no other Creation yet shall they not be partakers of this or other Priviledges incident to the Lords of Parliament Those that are Barons of Ireland of Scotland Cok. Litt. 16. b. 3 Inst f. 30. 2 Inst f. 48. committing Treason c. in England shall not have their Tryal by Peers though they were born in England for they receive their Dignity from a King of their Nations If a Duke or other Noble man of France Spain Co. L. 7. Calvin's Case c. comes into England by the King 's safe Conduct in which the King stiles him Duke according to his Creation nevertheless in all proceedings in the King's Courts he shall not be stiled by his Name of Dignity much less a partaker of the Priviledge of this Tryal by Peers But if the King of England at this day create one of his Subjects of Scotland to be Viscount within England or by ordinary Summons under his Great Seal call him to the Upper House of Parliament and assign him a Place and to Vote there in his Great Council he shall be thereby a Peer of this Realm and enjoy all their Priviledges QUERY IV. What Witnesses are required in Indictments and Tryals of Treason or misprision of Treason SOL. By the Ancient Common Law one Witness or Accuser was not sufficient to Convict any person of High-Treason for in that case it was to be tryed before the Constable and Marshal by Combat but they have no Jurisdiction to hold Plea of any thing which may be determined by Common Law And that two Witnesses are requisite appears by the Books of Law and the Common Law herein is grounded upon the Law of God Mirr cap. 3. Ordin de Attaint Brad. L. 5. f. 354. 48 Ed. 3.30 35 H. 6.46 Fortescue c. 32. expressed both in the Old and New Testament Deut. 17. v. 6. Numb 35. v. 30. Deut. 19. v. 15. Matth. 18. v. 16. 2 Cor. 13. v. 1. and this seemeth more clear in the Tryal by Peers because they come not de aliquo Vicineto whereby they may take notice of the Fact in respect of Vicinity as other Jurors may do By the Stat. of 1 E. 6. c. 12. none shall be Indicted Arraigned Condemned or Convicted for any Treason c. for which the Offender shall suffer pains of Death Imprisonment loss or forfeiture of his Goods Chattels Lands or Tenements unless he be accused by two sufficient and lawful Witnesses or shall willingly without violence confess the Fact The same provision is made by 5 E. 6. wherein I must observe to your Lordships that two lawful Accusers in this Act are taken for two lawful Witnesses for by two lawful Accusers and accused by two lawful Witnesses as 't is in 1 E. 6. are Identical which word Accusers was used because two Witnesses ought directly to accuse that is charge the Prisoner for the Common Law respects none else and therefore lawful Accusers must be such as are allowed by Laws And thus 't was resolved by the Justices in the Case of the Lord Lumley Hill 14. El. for if they should not be taken according to the meaning aforesaid then there must be two Accusers by 5 E. 6. and two Witnesses Dyer f. 99. W. Thomas his Case by 1 E. 6. and the strange conceipt in 2 Mar. that one may be an Accuser by Hear-say was utterly denied in the Lord Lumley's Case And here since your Lordships did not make it a Query I shall not so strictly consider it whether the Testimony of a Forreigner may be admitted in case of Treason The Duke of Norfolk at his Arraignment said that nothing which was yet produced was of any moment against him save only the Bishop of Ross his Testimony and that by Opinion of Bracton was not to be admitted because he was a Forreigner to which Callin Lord Chief Justice answer'd that in such Causes as this the Testimony of Forreigners is of force and it lies in the Peers to attribute to Camb. El. A. 1572. or derogate from such Testimony as they shall think fit Where Bract. saith that an Alien born cannot be a Witness it is to be understood of an Alien Infidel for the Bishop of Ross being a Scot born was admitted to be a Witness and sworn 14 El. by Opinion of all the Justices Assistants If a person be accused by one Witness touching one fact and by another concerning another fact the one committed in Middlesex the other in Surrey he that swears the fact done in London joyned to the other Witness that swears to the fact done in Surrey shall be esteemed two sufficient Witnesses in case of Treason and so was it ruled by the Judges at the Old-Baily upon the Tryal of the Five Jesuits whitebread Harcourt Turner Fenwick and Gaven according to the Resolution in Sir H. Vane's Case at the King's-B Bar where one Witness prov'd the levying War in one County and the other prov'd the levying War in another County and so though they were but single Witnesses of single facts yet both coming up to the Indictment they were adjudged two sufficient Witnesses to maintain it QUERY V. Whether a Noble-man being Arraigned own challenge his Peers SOL. If the party an aigned says Coke be a Lord of Parliament and a Peer of the Realm and is to be tryed by his Peers he shall not challenge any of them for they are not sworn as other Jurors be but find the party guilty or not guilty upon their Paith or Allegiance to the King Cok 's Litt. 156. b. and they are Judges of the fact and every of them doth separately give his judgment beginning at the lowest Again Cok 's Litt. 294. a. he tells us that the four Knights Electors of the Grand Assize are not
that he would not desire to know their Opinions before-hand for him for they thought it should come before them in the King's-Bench judicially and then they would do that which of right they ought which the King approv'd of Besides the nature of their Oath requires it who are sworn that they shall well and lawfully serve our Soveraign Lord the King and his People in the Office of a Justice and that they shall do equal Law and execution of Right to all his Subjects QUERY X. Whether an Attainder of Treason way be falsified by the Plea of the Party SOL. A. 1. Mar. A Commission of Oyer and Terminer in London was directed to Sir Tho White Lord Mayor and to divers others reciting that where Sir Robert Dudley Knight 9 Jan. 1. Mar. was Indicted of High Treason before Thomas Duke of Nonfolk and fourteen other Commissioners in the County of Norfolk where in truth the Commission was directed to so many but the Indictment was taken before Eight of them only granting to them or any four of them Authority to receive the Indictment taken before fifteen Commissioners and to proceed thereupon as Special Justices of Oyer and Terminer by pretext whereof they proceeded and upon confession of the said Sir Rob. Dudley gave Judgment against him In this Case it was adjudged that Sir Rob. Dudley then Earl of Leicester might falsifie the said Attainder by Plea because it was void and conam non Judice for that the latter Commissioners had not power to proceed upon an Indictment taken before Eight but before Fifteen and so void The Party is not driven to his Writ of Errour but may falsifie the Attainder by Plea shewing the special matter which proveth it void ut supra In which case the party forfeiteth neither Lands nor Goods 'T is holden by some that if a person be attainted of High-Treason by the Common Law that no Writ of Errour should be brought for the reversal of that Attainder by reason of these words in the Stat. 33 H. 8. cap. 20. And if any person or persons shall be attainted of High-Treason by the course of the Common Law c. that every such Attainder by the Common Law shall be of as good strength value force and effect as if it had been done by Authority of Parliament But the contrary hereof was resolved at a Parliament holden A. 25. Eliz. that a Writ of Errour should be maintained for the reversal of Erroneous Attainders of High-Treason by the Common Law for that former Stat. is to be intended of lawful Attainders and not where there is any Errour in the same for by that of the Queen 't is provided That no Record of Attainder of any person or persons of or for any High-Treason where the party so Attainted is or hath been executed for the same shall be c. in any wise hereafter reversed undone avoided or Impeached by any Plea or for any Errour whatsoever QUERY XI Whether torture in case of Treason or Felony may be used by our Law SOL. Sir John Fortescue Chief Justice of England who wrote in commendation of our Common Laws preferreth the same for Government before the Civil Law and particularly that all tortures were against the Common Law expresly and he proceeds to shew the inconveniencies and mischiefs thereof by fearful examples to which Learned Author I refer your Lordships Cap. 22. It is against Mag. Charta Cap. 29. which says Nullus liber homo capiatur vel Imprisonetur c. aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus nisi per legale Judicium Parium suorum vel per Legem Terrae And accordingly all the Ancient Authors are against the inflicting pains and tortures upon Prisoners before or after Attainder Co. 3. Inst f. 35. but such as answer the Judgment John Holland Earl of Huntingdon was by King H. 6. created Duke of Exeter and A. 26. H. 6. the King granted to him the Office of the Constableship of the Tower of London He and William de la Poole Duke of Suffolk with some others intended to have brought in the Civil Laws and for a beginning of the same the Duke of Exeter first brought into the Tower the Rack or Brake allowed in many cases by the Civil Law and for that reason it was called the Duke of Exeter's Daughter QUERY XII Whether the King under the Great Seal may command all Process in Criminal Causes to cease SOL. We find says Coke a Discharge of further proceeding directed to the Judges of the Court c. not by way of pardoning the offence but by the King's acknowledgment under the Great Seal of the Parties Innocence with Commandment to the Judges that in the former proceedings they shall altogether surcease whereupon the Court will award that the Party shall go sine Die and that there shall be no further proceedings against him William de Melton Archbishop of York was accused in the King 's Bench coram Rege Concilio suo in Anno 3. Ed. 3. for adherency to Edmond Earl of Kent in his Treasons whereunto the Arch-Bishop pleaded Not Guilty and after two Writs of Venire Facias awarded the King directed his Writ under the Great Seal to the Judges of the King 's Bench to this effect Licet Venerabilis Pater Willielmus Archiepiscopus Ebor Stephanus London Episcopus per Diversa Brevia Nostra coram Nobis ad sect am Nastram Implacitentur de eo quod ipsi Edmundo Comiti Cantiae adhasisse debuerant quia tamen praedict Archiepiscopus Episcopus de adhaesione praedicta omnino Immunes reputamus Vobis Mandamus quod Platitis praedict is coram Nobis ulterius tenend omnino superfedeatis Teste meipso c. The Award of the Court hereupon is very observable Viz. Cujus Brevis praetextu consideratum est quod praedictus Archiepiscopus eat inde sine die c. ulterius non procedatur versus eum Stephen Gravesend Pasch 4. E. 3. Rol. 5.3 Bishop of London was charged with the same offence in Parliament A. 3. E. 3. whence by Order of Parliament he was referred to the King 's Bench to be tryed where he pleaded Not Guilty and after was discharg'd as the Arch-Bishop It may be thought that accepting the Pardon might be an implication of their sault and therefore it run in a new strain but no man that is well advis'd says the great Oracle of the Law will refuse God's or the King's Pardon for in the King's displeasure there is death says the Holy Writ and who knows how often he offends and consequently stands in need of it But how far this Branch of the Prerogative may be extended and what qualifications it may admit belongs not to a private man to determine QUERY XIII Whether a Person can be Attainted of High-Treason by general words SOL. Where by due course of Law a man cannot be Attainted of High-Treason unless the Law fore-judge