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A26252
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An Authentical account of the formalities and judicial proceedings upon arraigning at Westminster, a peer of the realm before a Lord high-steward
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1680
(1680)
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Wing A4264; ESTC R25898
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19,733
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37
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AN Authentical Account OF THE FORMALITIES AND Judicial Proceedings Upon ARRAIGNING at WESTMINSTER A Peer of the Realm Before A Lord High-Steward Funesta Securis Regni Securitas London Printed for Y. H. THE FORMALITIES AND Judicial Proceedings Upon Arraigning a Peer for Treason c. AS the Royal Power and Sovereignty of the King of England is a repleat compacted Body and impartible even so the Attributes thereof are as Jurists speak so indivisible in themselves so naturally and intrinsecally inherent in the Crown that they cannot be made away or in such manner communicated to the Subject as to divest himself of them to the lessening Sovereign Majesty yet by Trust and Delegate Power the Executive Part may be transferred to others to ease him of a trouble some 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 understood by insisting upon in my way to a more direct Application to the substance of the Title and Design in hand the Heads or Particulars following viz 1. The Etymology of the words Steward and Seneschallns 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 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 Saxou word which signifies a place also Lib. 9. Le Counter de Salop 's 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 Senechal 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 Mannor whom Fleta fully describes Lib. 2. c. 71. 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 Minshaeus Seneschal is a French Word 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 Scin a House or Place and Schale an Officer others say Sen is an ancient word for Justice so that most naturally it signifies Officiarius Justitia and this agreeth well with his Authority and Duty to proceed secundum Leges consuâ—tudinis 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 Co. 4. Inst 59. Please your Grace my Lod High-Steward of England 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 Anglia which putting an Example of his Authority saith Sicut accidit Godwino Comiti Kanciae tempore Regis Edwardi Antecessoris Willielmi Ducis Normandiae pro hujusmodi male gestis consiliis suis per Seneschallum Angliae adjudicatus fortis 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. Hagh 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 parcel 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 Grantsemenel 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 sciendum est quod ej us Officium est supervidere regnare sub Rege immediate post Regem 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 march the Epheri among the Lacedemonians 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. which once ended his Commission expireth so that we may describe him thus Magistratus est Excelsus qui pro uno die a Rege ordinatur cum-aliquis ex Proceribus Regni uno die a Rege ordinatur cum-aliquis ex Proceribus Regni in Judicium vocatur de noxa Capitali Now we are to take a
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 here 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 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 or 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 Co. L. 7. Calvin's Case Spain 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 partker 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 tht 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 Witnesles 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 can challenge his Peers SOL. If the party arraigned 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 Faith 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 to be challenged for that in Law they be Judges to that purpose and Judges cannot be challenged and that 's the reason why Noblemen cannot be challenged for Mag. Charta saith Per Judicium Parium suorum Cap. 29. and not Veredictum