of Glocester and others to kill the King he was thereupon Arraigned before Thomas Earl of Warwick and other Justices of Oyer and Terminer in Middlesex and Tryed by a Common Jury and found Guilty afterward the Record was removed to the Kings Bench and the Bishop put into the Marshalsea and afterward he is brought to the Bar and being asked if he had any thing to shew why Judgment should not be given on him he pleads his Pardon and it is allowed See the Record of his Attainder Hill 2. H. 4. Coram Rege Rot. 6. Co. 2. Inst. 636. 3. Inst. 30. But to come somewhat nearer our times Fisher Bishop of Rochester is Indicted Arraigned and Tryed by a Common Jury for speaking Treasonable Words against an Act of Parliament made the 26 of H. 8. making the King Head of the Church and abolishing the Authority of the Pope of Rome and was Condemned at the Kings Bench and Executed Br. Tit. Tryal 142. Inquest 99. 27 H. 8. The last that I shall name is that Holy and Renowned Martyr Archbishop Cranmer who was Tryed with Lady Jane Gray and her Husband Lord Guilford and two younger Sons of the Duke of Northumberland Ambrose and Henry at Guild-Hall before the Lord Mayor and Judges the Third Day of Nov. in the First Year of Queen Mary's Reign 1553. Where they were all found Guilty and Condemed of High Treason None of these were Executed upon this Judgment except Lady Jane Gray and her Husband who upon a Second Miscarriage of her Father the Duke of Suffolk in joyning with Sir Thomas Wyat to oppose King Philip's Landing were Executed in the Tower the 12th of Febr. following On the 20th of April following Cranmer Ridley and Latimer were adjudged Hereticks at Oxford and Degraded by Commission from the Pope and a little after Cardinal Poole succeded Cranmer who was burnt as a Heretick 14th of Febr. 1556. All this is known to those that are acquainted with the Transactions of those times and therefore it is evident both from the Authority of Learned Men and the Practice of all Ages in all times that Bishops have been Tryed by Common Juries And sure it was not without ground that so Grave and Judicious an Author as Camden should say That the Spiritual Lords enjoy all the Priviledges that Temporal Lords do saving only the business of Tryal by Peers Having thus proved what I before asserted concerning the Tryal of Lords Spiritual I shall in the next place consider the Answers that are generally made to these Arguments and Authorities Those I observe to be principally two 1. They will very well agree with those Authors that say Bishops are not to be Tryed by Peers but then say they it was not for want of Peerage but because they would not be put to answer for any Capital Crime before Lay-Judges 2. They say that if it happened that at any time a Bishop was Tryed by Lay-men and by Common Juries then they were first Degraded If there were no more to be said for this the very reading of the fore-mentioned Precedents would easily make appear the weakness of these Objections for it appears by the very Records that their Priviledge of Clergy was insisted upon and that with a great deal of Zeal and Fervency insomuch that the Passage of the Bishop of Hereford is a thing taken notice of in a special manner by all the most Famous Historians of this Nation and it is generally agreed that about Fourteen Bishops came with their Crosses erected to the place of Judgment threatning all people with Excommunication that offered to oppose them in that which they intended and yet we find that he was not delivered till after he was found Guilty And it 's manifest from all the other Precedents that they were found Guilty and most of them Condemned to die upon the Verdict of Twelve Lay-men But as to the business of Deprivation you may observe that throughout the whole Records they are named Bishops as Episcopus Herefordensis Eliensis and Roffensis which could not be if they were Degraded for then these Titles were not rightful additions in Law And although it being evident that so it was de facto is a sufficient Answer to the Objections yet for more abundant satisfaction I shall be somewhat more large in this and shall shew that so it ought to be de jure In handling this Point I shall consider these following Particulars 1. To whom this Privilegium Clericale or Exemption from Temporal Jurisdiction ought to have been allowed 2. I shall consider somewhat of the Nature of this Exemption and Immunity and how far they were exempted from Secular Power 3. I shall examine in what Cases it was allowed and in what not 4. At what time 5. Upon what account it was that Clergy-men were delivered to their Ordinaries in those Cases where the benefit of Clergy was not allowed And lastly I shall shew at what time regularly they were Degraded I. As for the first It was generally allowed to all within Holy Orders whether Secular or Regular and in an equal Degree to all such not respecting Superiority or Inferiority The poor Country-Parson had as good and as large a Right to it as my Lord Bishop This is proved first From the Canons that gave this Immunity the first I think were made by Pope Gaius and those run Clericus coram Judice Seculari Judicari non debet nec aliquid contra ipsum fieri per quod ad periculum mortis vel ad mutilationem membrorum valeat perveniri c. See Linwood Tit. de foro compet c. contingit Polichro lib. 4. c. 24. of Pope Gaius and Onuphrius in his Comment upon Platina in the life of that Pope Therefore seeing he cannot take any advantage of these Canons except as Clericus and must claim it by the same Name that inferiour Priests do he must have it in the same Degree But that which is a great deal stronger than the Construction of Canons is the Confirmation that is made by our Acts of Parliament this Priviledge is granted to all that are Clerici or Clerks in French and Clergy-men in English and to all such indefinitely without distinction or respect of the several Ranks and Degrees of men within Holy Orders So you will find it in Marlebridge c. 28. West 1. c. 2. Art Cler. c. 15. 25 E. 3. c. 4 5. 4 H. 4. c. 3. and the rest So that without all question a Bishop can pretend to no more Priviledge than any other Clerk causa qua supra This I thought fit to observe first because that every Authority and Precedent that I shall bring of an inferiour Priest is as strong for my purpose as if it were of a Bishop II. As for the second Point I shall not need to be very large upon it but shall observe one thing which will be serviceable to my present purpose and that is this That every Temporal Magistrate and Judge of this
shall receive due Correction for his Folly and Impudence but if he Assault it with Reason and Sobriety he shall find a Defence agreeable I must confess I am heartily sorry at the Occasion of this Dispute it hath unhappily fallen out at that Moment of Time when above all things it was necessary for the Church and State to Confederate and joyn Hand in Hand to the Ruine and Confusion of the Common Enemy and the Extirpation of that Poysonous Plant whose growth will quickly become fatal to both but however as it is hard on the one side that any should be compelled to lay down that which they suppose is their Right so on the other side it is a thing unreasonable and of dangerous Consequence to admit of any Innovation though it were in a Matter of far less Moment than this is so that there is great Reason for both sides to insist upon it If this Enterprise of mine be so successful as to convince those that are in the mistake then I compass my End and am Satisfied which that it may do I refer you to the Consideration of the following Discourse Farewell A DISCOURSE OF THE Peerage and Jurisdiction of the Lords Spiritual AS the granting of large Immunities Priviledges and Possessions to the Church doth well become the Piety and Religion of a Christian Prince or any other Supream Power And as the robbing of the Church of any of its Just Rights lawfully granted is Sacriledge of the Highest Nature So it is the Duty of all the Sons of the Church upon all Occasions thankfully to acknowledge the Bounty and Munificence of their Pious Benefactors and to forbear all unjust Claims and ambitious Pretensions to things which were never granted A failure in this is almost as great an Immorality considering the Quality and Profession of the Offenders as the former And it is doubtless not onely lawful but commendable for the persons whose Right and Property is invaded in either case to defend themselves with all their power against the Invaders otherwise we must condemn our Ancestors who defended the Kings Prerogative and the Subjects Right when it was encroached upon by Procurers of Citations and Process of Provisions and Reservations of Benefices Dispensations for Pluralities c. from the Court of Rome and withstood those unreasonable Demands of Absolute Exemption from Secular Power made by the Clergy and several other things about Marriages Legitimation c. which they claimed by vertue of several Decretals of their Popes and Councils I confess if there were either Statute-Law or Common-Law for the Bishops Voting in Capital Cases I would be very far from arguing against it for that were to call in question their undoubted Right But if there be any reason to make me believe they have no Right at all in that case I hope it will be excusable in me to make an Impartial Enquiry into the Thing If the Spiritual Lords have any right of Judicature in Capital Cases it must be either Jure Divino or Jure Humano if the former it must be proved out of the New Testament for there is no consequence from the Authority and Jurisdiction of the High Priest under the Law to the Authority of Bishops under the Gospel and that is the most generally received Opinion among the Protestant Divines those at least who have lifted themselves under the Banner of the Protèstant Religion in its defence against the exorbitant power and usurpation of the Bishop of Rome who makes use of the same Argument for the Authority of his Holiness in Cathedra Because whatsoever is alledged out of the Old Testament is either part of the Mosaical method of administring Justice proper onely to the Judaical Oeconomy or else belonging to the Temporal Constitution of the Kingdom of Israel and Judah which are no more binding to us than those Laws of theirs whereby each man recovered his right and property or than the Laws of the Syrians or any other Nation were binding to the Jews Those Instances that are given of so great trust reposed in and Honours conferred upon Spiritual persons by Christian Princes after the first three Centuries can prove no more but that so was the Constitution of the Government of those Kingdoms and it doth not follow that therefore it must be so in all other Kingdoms for which cause it is evident that the first Four Chapters of the Gentlemans Book are altogether impertinent If the Spiritual Lords ground not their Claim upon Divine Right then if they have any at all it must be by Humane Institution My business is not to examine whether such an Institution were good and reasonable or not That I leave to the Consideration of the Parliament in whose Determination every true Subject ought heartily to acquiess but all that I have to do is to examine whether or no there be such an Institution and that is the point Which I intend to insist upon No Humane institution can do their Lordships any kindness in this except the Laws of England and those are of two sorts either Statute-Law or Common-Law The former is not pretended to the onely question is about the latter for that same Law which gives them power to sit in the House of Lords in any case gives them power also to sit in Capital Cases if they have any such power and that they have no such power by the Common Law of England is the Probindum Those in whose power Originally it was at the first reduction of this Nation under Rules of Government to Invest Religious Persons with Honours Jurisdictions and Priviledges might by the same power have made them greater or lesser than they did and consequently might at the first Institution have limited the same Jurisdiction c. to such and such matters as they themselves thought fit to intrust them with and not to others If those persons that first conferred upon some of our Clergy-men that Jurisdiction which they now enjoy of Voting in the High Court of Pariament had given it indefinitely in all Matters and over all Causes and they had exercised their Jurisdiction accordingly from time to time then their right had been indubitable but if this limitation had been made that their Jurisdiction shall extend to all Causes except such as are Capital and they never exercised any Jurisdiction in such then there cannot be any colour or ground of Claim Now the Common Law is a general Custom or Usage in this Realm in all Ages practised and allowed beyond the memory of man and because there is no Record nor any other undeniable Evidence of its commencement it is therefore presumed to have been a Law ever since there hath been any Government in this Nation Seeing therefore that the Jurisdiction of the Bishops in Parliament is supposed to be as ancient as the Government it self If it can be proved that by the Common Law i. e. the continued practice of all Ages the Transactions whereof are Recorded the
Arguments whereby my Adversaries do support themselves and maintain the Jurisdiction of the Lords Spiritual in Capital Cases And 1. Their Grand Objection is That they never absented themselves when Capital Cases were Debated upon any other account then because they were prohibited by the Laws of the Holy Church to consent to the Death of any man And accordingly they made their Protestation 11 R. 2. when they departed the House Juxta Sacrorum Canonum instituta non licet nobis interesse c. And such a voluntary Departure for Conscience-sake say they lest they should concern themselves in the Effusion of Innocent Blood could neither conclude themselves nor their Successors from claiming their Right to be present by the Fundamental Law of the Land as Peers of Parliament Here lies their Strength and therefore a solid Refutation of this will remove all manner of Scruple and discover the vanity of their pretensions to any Jurisdiction of this kind Therefore in answer to this I shall offer these following Considerations 1. What-ever was the Reason that induced them to absent themselves when such Matters came to be Debated yet it is manifest from what hath been said that there was an Act of Parliament to which they were obliged to give Obedience as well as the Canons of the Church that did expresly prohibit them to exercise Jurisdiction in those Cases and although they did say that their Departure was in Obedience to the Canons of the Church yet without doubt we ought to construe their Departure to be also in Obedience to the Laws of the Land For the Case at the most favourable Representation is no more than this The same thing is both prohibited by the Law of God and the Law of Man those who forbear from the thing prohibited do say they do it because they are so commanded by the Law of God and say no more In this Case we cannot construe that either the Law of Man doth lose its force and obligatory Power or that those persons who said they forbore from the thing prohibited in Obedience to the Law of God did either not obey or disobey the Law of Man I mean In foro hum ano If then the Prelates in former times did give Obedience to the Laws and Constitutions of this Nation in this particular much more ought their Successors whose Principle is strict Obedience to the Government of the Kingdom and perfect submission to the Higher Powers The truth is it was a happy thing that in the days of their Predecessors the Law of the Church and the Law of the Land did so well agree in this particular and if you would consider the Humors and Principles of the Men you would not wonder so much at their Non-acknowledgment of the Laws of the Nation when they could secure themselves against the Compulsion of them and Punishment inflicted by them without making any such acknowledgment It is not strange that those men whose Zeal for Religion was seen most in their Contentions and Wranglings with the Civil Power and who thought that Obstinacy and Disobedience to Regal Authority and the Laws and Constitution of the Government where they thwarted the Ambition and Grandeur of the Pope and his Clergy was the most certain way to merit Canonization and that Beckett and Stratford and the rest of that Rebellious and Disobedient Tribe were the mightiest Saints that ever lived upon Earth It is not strange that those Men that would trample all Humane Laws under their Feet if dissonant to the Canons of the Church should pretend that when the Canons of the Church did agree with the Laws of the Land they yielded Obedience to the Canons of the Church without taking notice of the Laws of the Land And indeed it was an extraordinary Specimen of Candor and Modesty that they did with so fair a pretence save themselves from the inconvenience of acknowledging the Temporal Power in the limitation of their Honour and Jurisdiction which they were never known to be very forward to do But God be thanked the times are turned we have reason to expect more Humility and Loyalty from our now Spiritual Fathers whose Principles do not allow them in the least Opposition to lawful Authority and who it is to be hoped will never insist upon any thing except they think that by the Law of the Land it is their Right Secondly Although they pretended that their departure from the House during the Debates of Capital Matters was in Obedience to the Canons of the Church yet it is more than probable that the consideration of the Law of England by which they were compellable to depart whether there had been any such Canons in force or not was the strongest Reason why they did with-draw and that for these two Reasons 1. Because it is observable That if those in whose power it was to dispense with their Disobedience to the Laws of the Land did at any time give way to their Presence or Consent that they should exercise Judicial Power in those Cases then the Lords Spiritual used generally to make bold with the Canons of the Church at least 〈◊〉 vice How then can it be supposed that at other times when there was no such Licence or Dispensation their Departure was onely because of the Canons of the Church That Record of 21. R. 2. where they did consent to Constitute a Proxy who should in their Name agree or disagree to any Judgments of Death that should be given in that Parliament is very considerable for this Point for in that Case they gave Authroity to another to do a thing which was unlawfull for them to do themselves and it was done because the King and Parliament being the Fountain of Law and having power unica vice or more to dispense with any Law at least such as come not within the Conusance of any other Court beside themselves did give them leave so to do whereas without doubt the passing Sentence of Death upon a man by Proxy was as great a Violation of the Canons of the Church as if they had been personally present and had passed Judgment themselves For can any man rationally suppose that the Clergy were so tender Conscienced that they should not agree to the Effusion of any mans Blood themselves and yet that their Consciences would allow them to Authorize another in their Name and Place and by their Authority to consent to it As if it were not the same thing in point of Conscience for me to kill a man as it is to procure another to do it And so in point of Law that which I am prohibited to do my self I am also prohibited to impower another to do because that which a mans Servant Procurator or Attorney doth by the Command and by vertue of the Authority of the Master is in Judgment of Law and Conscience interpretatively the Act of the Master himself And the Constituting a Proxy in their Names to give Judgment of Death by vertue