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
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
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
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