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
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
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