the force of a Law because it may be destroy'd by the Act of the Parties themselves If therefore the Bishops did afterwards act contrary to this Protestation they took away all the force of it 2. The particular nature of this Protestation is such as doth most evidently preserve their Right to be personally present on the account of their Peerage and Baronies and the great design of a Protestation is to preserve a Right notwithstanding some Act which seems to destroy it as thier absenting themselves on the account of the Canons might seem to doe But of this already 3. We are now to consider the third Point Whether on supposition that on the account of the Canon-Law the Bishops had always withdrawn in the time of Popery that had continued in force still since the Reformation I think not upon these Reasons 1. Because the Canon-Law was founded upon a Superstitious fancy viz. that if Clergy-men be present in Causes of Bloud they contract Irregularity ex defectu perfectae Lenitatis as the excellent Canonist Navarr saith because it argues a want of perfect Lenity But if we consider the cases they allow which do not incurre Irregularity and those they do not allow which do incurre it we shall find all this stir in the Canon-Law about this matter to be onely a Superstitious kind of Hypocrisy 1. If a man in Orders gives another man Weapons without which he could not defend himself and by those weapons he maims him that assaulted him this doth not make him irregular but if he kills him it doth and yet the Canons make the case of Dismembring and Death the same 2. It makes a man act against the Law or Nature to prevent Irregularity For they say if it be for the defence of Father or Mother or preventing the ruin of his Country although the Cause be never so just a Clergy-man that dismembers or takes away another's life is irregular 3. If a Clergy-man discovers Treason or accuses another for Treason without a Protestation that he doth not doe it with a design to have him punished he is irregular but if he makes that Protestation although death follows he is not 4. If a Clergy-man be in an Army and perswades the Souldiers to fight manfully and kill as many as they can this doth not make him irregular ny although he beats them if they will not fight but if he happens to kill an enemy himself then he is 5. If he gives a Souldier a Sword or a Gun by which he dispatches his enemies if he did it with a particular intention that he should slay or maim them he is irregular if onely with a general intention that he should overcome he is not This being somewhat a nice Case the Canonists take more then usual pains to prove it And from hence they defend their Priests and Iesuits in the Indies who carry the Cross before their Armies into the Field and encourage them to kill all they can and yet Navarr saith they are so far from being irregular that they are regularissimi as his word is 6. If a man to gain an Indulgence carries a faggot to burn an Heretick if it be with a design to take away his life he is irregular but if he be hanged first or dead before it be thrown into the fire then he is not 7. If a man in Orders helps a Chirurgeon in cutting off a man's Leg he is not irregular but if a man be justly condemned to have his Leg cut off if he then gives any assistence he is irregular because the one is moved out of Mercy and the other out of Justice 8. If the Bishops sit and condemn a man for Heresy and deliver him over to the Secular Power for Execution yet they free this from Irregularity or else the practice of the Inquisition were lost This seems a very difficult Case but the Canonists salve this by saying that the Inquisitours when they deliver them over to the Secular Power do pray that they may not be hurt either Wind or Lim as it appears by the Forms used in the Directorium Inquisitorum And if this be not the height of Hypocrisie let the World judge And therefore this part of the Canon-Law is not consistent with the Sincerity of the Reformation 2. This part of Canon-Law is inconsistent with the King's Power over Ecclesiastical Persons For it supposeth them liable to the penalty of a Law which he hath no cognisance of and derives no force or authority from him which tends to the diminution of the King's Prerogative Royal and therefore it is nulled by the Stat. 25 H. VIII c. 19. I do very much question whether this ever were any part of the Canon-Law of England notwithstanding the Pope's Decretals i. e. whether these Canons ever received confirmation by the Royal Authority either in Synodal Constitutions or elsewhere And it would be a very hard case if our Kings had not the same Privileges which are allow'd in Popish Countries viz. that nothing passes for Canon-Law within their Territories till it pass the examination of the King's Council and approbation by his Authority Thence in France nothing passes without the King's Pareatis nor in Spain or Flanders without the King of Spain's Placet no nor in the Kingdom of Naples without the Royal Exequatur It is well known that the 6. Book of Decretals was not allowed in France because of the quarrel between the King and Boniface VIII and that even the Council of Trent it self was not allowed by Philip II. till it had been strictly examined by the King's Council that nothing might be allowed which tended to the diminution of his Prerogative How then will men justifie the making that a part of the Canon-Law of England which was repugnant to the Rights of the Crown and deprives the King of the Power of taking advice of those of his Subjects whom he hath summon'd for that end 3. The Sanction of this Law is ceased which was Irregularity And some of our most Learned Iudges have declared that is taken away by the Reformation But in case any be of another opinion I shall urge them with this inconveniency viz. that the great Instrument of discovering the Plot falls under Irregularity by it For it is most certain by the Canon-Law that a man in Orders accusing others of Treason without making his due Protestation in Court is Irregular But if this be now thought unreasonable as it is in the person of an Accuser why should it not be so in the case of Iudges And if the Irregularity be taken away then the Sanction is gone and if the Sanction be taken off in a meer positive Law the force of the Law is gone too And therefore this Canon-Law which forbids Clergy-men being present in Capital Cases and giving Votes therein is wholly taken away by the Reformation And we do not find any mention of it for 80 years and more after the Reformation till about the
this as a sufficient Precedent in a Case of great moment about Commitment upon a general Accusation But there is not any Irregularity expressed or intimated in the Bishops appearing and judging as other Lords did and the Judgment was not reversed because of their being there as we have shewed others have been for their being absent V. None of all his Precedents do prove that the Bishops were ever excluded from sitting by any Vote of the House of Lords or Commons That they might voluntarily withdraw we deny not or not be present at giving of Iudgment out of regard to the Canons which is all that is proved by the Precedent of Iohn Hall 1 H. IV. of the Earls of Kent Huntington c. 2 H. IV. of Sir Iohn Oldcastle 5 H. V. and of Sir Iohn Mortimer 2 H. VI. And this we have made appear was done by them out of regard to the Canon-Law the force of which being taken away by the Reformation the Bishops are thereby restored to their just Parlamentary Right Neither can any Disusage be a bar to that Right since the ground of that Disusage was something then supposed to be in force which is now removed by the Reformation And I fear if this kind of arguing be sufficient to overthrow the Bishops Right much stronger of the same kind may be used to overthrow the King's Supremacy in mattters of Religion So great care ought men to have lest under the colour of a mighty zeal against Popery they do overthrow the very Principles of our Reformation VI. There are Precedents upon Record in the Rolls of Parlament which are not mention'd by the Authour of the Letter which do prove that the Bishops were present at the Examination of Treason and Capital Offences in Parlament And that within the time wherein he pretends to give an account of all the Trials recorded in the Rolls Which shews how easily men pass by those things they have no mind to see I begin with 4 Ed. III. and I must doe him that right as to say that he doth not onely mention the Trial of Roger Mortimer but of Sir Simon Bereford and others who were accused and tried in Parlament But pretending that the Roll of that Parlament is so defaced that it cannot be read he runs to that of 28 Ed. III. and so gently passes over all the other Trials which are in the Record and are more plain and express as to this matter Among the Articles against Roger Mortimer Ed. l of March one is that after he knew certainly the death of Edw. II. he made use of Instruments to perswade Edward Earl of Kent that King's Brother that he was still living and so drew him into a design for his Rescue for which he was attainted at Winchester and there suffer'd death for it Among these Instruments the chief was one Mautravers who for that Reason was attainted this Parlament and the words of the Record are Trestouz les Pieres Counts Barons assemblez a cest Parlement a West si ont examine estraitement sur ce sont assentuz accordez que John Mautravers si est culpable de la mort Esmon Count de Kent c. All the Peers Counts and Barons assembled in this present Parlament upon strict examination do assent and agree that John Mautravers is guilty of the death of Edmund Earl of Kent Here we have the strict Examination of a Capital Case in Parlament and all the Peers are said to be present at it It is used as an argument by the Authour of the Letter that in the case of Roger Mortimer the Bishops could not be comprized under the general name of Peers since the Barons are first in rank But here the Peers are mentioned before Counts and Barons and it will be impossible for him to assign any other Peers at that time that were named before them but the Prelats who frequently are so put in the Records of that time as in the same Parlament n. 12. Prelatz Countes Barons n. 13. Et per assent des ditz Prelatz Countes Barons so again n. 14. 15. 17. 24. 25. But the Authour of the Letter saith they cannot pretend to be Peers of the Realm Let him name then other Peers of the Realm at that time who were neither Counts nor Barons and were before them But if we are to judge who are Peers of the Realm by the Records of Parlament I do not question but I shall make it evident that the Bishops were so esteemed and that some persons who pretend to great skill in Records either have not searched so diligently or have not observed so carefully about this matter as they might have done But of this afterwards In the same Parlament Judgment was passed upon Boges de Boyons Iohn Deveril Thomas Gurnay William Ocle but being by way of Attainder and not upon particular examination which is mentioned in the case of Mautravers I pass them over In the Pleas of the Crown held before the King in this Parlament we find another Case which relates to our present debate viz. of Thomas Lord Berkely and Knight who was arraigned for the death of King Ed. II. who came before the King in pleno Parlamento in full Parlament and there pleaded Not guilty and declared he was ready to clear himself as the King's Court should advise Then they proceeded to particular examination of him how he could acquitt himself being Lord of the Castle where the King was murthered he being committed to his Custody and John Matravers He pleaded for himself that he was then sick at Bradley and knew nothing of it They charged him that the Keepers of the Castle were of his own appointing and therefore he was bound to answer for them He answer'd that they with Matravers having receiv'd the King into their custody he was not to be blamed for what they did and for this he put himself upon his Country At the day appointed for his Trial he appears again coram Domino Rege in pleno Parlamento and the Iury returned him Not guilty But because he appointed Gurney and Ocle to keep his Castle of Berkely by whom the King was murthered the King appoints him a day the next Parlament to hear his Sentence and in the mean time he was committed to the custody of Ralph Nevil Steward of the King's House In the next Parlament 5 Edw. III. n. 18. The Prelats Earls and Barons petition the King that he might be discharged of his mainprisors the which was granted and a farther day given him to appear next Parlament But we reade no more of him till the Summons he had 14 Ed. III. as one of the Lords in Parlament The great force of this Precedent lies in understanding what is meant by appearing before the King in full Parlament If under this the Bishops be comprehended then this will be an uncontroulable Precedent of the presence of the Bishops in
them with going against the Law or Custom of Parlament therein But the Authour of the Letter saith Whatever was done this Parlament signifies nothing because the whole Parlament stands repealed by 1 H. IV. and all done in it delcared null and void Yet to our comfort the same Authour tells us the three Henry's were Usurpers and therefore I desire to be satisfied whether an Vsurper by a Parlament of his calling can null and repeal what was done by a King and his Parlament If he may then the King lost his Title to the Crown by the late Vsurpers if not then the Parlament 21 R. II. could not be repealed by that 1 H. IV. If the Authour of the Letter had considered this he is a Person of too great Judgment and Loyalty to have mention'd more then once the Repeal of that Parlament by the subsequent Parlament 1 H. IV. From all this we see that by the Judgment of the whole Parlament both 11 R. II. and 21 R II. the Bishops had a right to sit so far that Iudgments were reversed where they were not present and therefore all the pretence they could have for withdrawing must be from the Canon-Law which although not sufficient to bind them if the matter had been contested yet it served them for a very colourable pretence of absenting themselves in such dangerous times as those of 11 R. II. Here the Authour of the Peerage and Iurisdiction of the Lords Spiritual thinks he brings seasonable relief to the Cause when he undertakes to prove that the Bishops withdrawing was not meerly on the account of the Canon-Law This I confess is home to the business If he can make it out 1. He saith there was an Act of Parlament before that did expresly prohibit them to excercise Iurisdiction in those Cases This we utterly deny And the Constitution of Clarendon to which he refers proves the contrary 2. The Bishops made bold with the Canons when they thought fit as 21 R. II. But how could they doe that unless they had a Parlamentary Right to be present He saith the Constituting a Proxy was as great a violation of the Canons as being personally present and what then therefore the Parlament would not have suffered them to doe that if there had been a Law to exclude them How doth this prove that the Bishops did not withdraw on the account of the Canons II R. II. because they made a Proxie 21 R. II But why did they not appear personally if they had no regard to the Canons when the receiving their Proxie shewed they had a legal Right to appear But he grievously mistakes the meaning of the Canon of Stephen Langton in Lyndwood when he interprets Literas pro poena sanquinis instigenda scribere vel dictare against making of Proxies which is onely meant of giving or writing the Sentence for Execution 3. He saith they were excluded by ancient Custom which by a very subtle way of reasoning he proves to have been part of the Fundamental Contract of the Nation as he speaks Seeing then saith he it is without doubt that there was such a Custom that the Prelats should not exercise Iurisdiction in Capital Cases not so altogether without doubt unless it were better proved then we have yet seen it and there is no Record that doth mention when it did begin nor any time when it could be said there never was such an Vsage yes before the Council of Toledo being published in Spain and receiv'd here 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 Which looks so like a Iesuitical Argument that one would have thought he had been proving Transubstantiation by it For just thus the Argument runs at this day among that Party There was a time when it was reciev'd and no time can be instanced in wherein it was not therefore it was a part of the Fundamental Religion of Iesus Christ. the plain Answer in both cases is the same If we can produce unquestionable Authority to which a Doctrine or Practice is repugnant we are not obliged to assign any punctual time in which it must first come in But in this case we do assign the very time and occasion of the Bishops absenting themselves in Capital Iudgments and that was from the receiving the Canon of the Council of Toledo here For no such practice can ever be proved before And therefore this can never be proved to be any part of the ancient Common Law of England And that this came in by way of imitation of other Countries appears by the citing the Council of Toledo both by Lanfranc and Richard in the Council of Winchester 4. He saith the Practice is ancienter then any of the Canons of the Church But how doth that appear The eldest Canon he can find is that of Stephen Langton in Lyndwood which was made above 50 years after the Parlament at Clarendon But we have made it evident there was a Canon receiv'd here in Lanfranc's time long before the Constitution of Clarendon And so a full Answer is given to these Objections But we are told by the Authour of the Letter that the Bishops Protestation being receiv'd and enter'd in the Roll or Iournal-Book makes it to pass for a Law it being agreed to by the King and two Houses so as whatever was the Law before if it were onely the Canon-Law it is now come to be the Law and Rule of Parlament and the Law of the Land 2. This is therefore the second Point to be examined Whether the receiving this Protestation amounts to a Law of Exclusion which it can by no means do for these two Reasons 1. from the nature of Protestations in general 2. from the particular nature of this Protestation 1. From the nature of Protestations in general For a Protestation is onely a Declaration of their minds that make it and not of theirs who receive it or suffer it to be enter'd in the Acts or Records of the Court unless it be receiv'd in such a manner as implies their consent For the very next Parlament after this 13 R. II. the two Archbishops in the name of the whole Clergy enter a Protestation That they gave no assent to any Law or Statute made in restraint of the Pope's Authority and it is said in the Rolls of Parlament that at their requests these Protestations were enrolled Will any man hence inferre that these Protestations were made Acts of Parlament If the Cause would have born any better a Person of so much skill in proceedings of Parlament would never have used such an Argument as this Besides it is a Rule in Protestations Si Protestatio in Iudicio fiat semper per contrarium actum tollitur saith Hostiensis A Protestation although allowed in Court is taken off by a subsequent Act contrary to it Which shews that a Protestation can never have
Judge then bare Inheritance of Honour can do But to give a full Answer to this Argument on which that Authour lays so much weight and challenges any Person to give a rational account wherein the advantage of a man's being tried by his Peers doth consist I shall 1 shew that this was not the Reason of Trial by Peers 2 give a brief account of the true and original Reason of it 1. That this was not the Reason 1. Not in the Judgment of the Peers themselves as that Authour hath himself sufficiently proved when he takes so much pains to prove p. 3. that a Writ of Summons to Parlament doth not ennoble the Bloud and consequently doth not put persons into equality of Circumstances with those whose Bloud is ennobled and yet he grants that those who sate in the House of Peers by virtue of their Summons did judge as Peers as is manifest from his own Precedents p. 15. from the 4 Edw. 3. From whence it follows that this was not thought to be the Reason by the Peers themselves in Parlament 2. That this was not the Reason in the Judgment of our greatest Lawyers because they tell us that where this Reason holds yet it doth not make men Judges As for instance those who are ennobled by Bloud if they be not Lords of Parlament are not to be Judges in the case of one ennobled by Bloud Onely a Lord of the Parlament of England saith Coke shall be tried by his Peers being Lords of Parlament and neither Noblemen of any other Country nor others that are called Lords and are no Lords of Parlament are accounted Pares Peers within this Statute Therefore the Parity is not of Bloud but of Privilege in Parlament 3. The Practice it self shews that this was not the Reason For this Reason would equally hold whether the Trial be at the King's Suit or the Suit of the party but in the latter case as in an appeal for Murther a man whose bloud is ennobled must be tried by those whose bloud is not ennobled even by an Ordinary Iury of 12 men And I desire our Authour to consider what becomes of the inheritable quality of Bloud in this case when Life and Fortune lies at the mercy of 12 substantial Free-holders who it is likely do not set such a value upon Nobility as Noble-men themselves do and yet our Law which surely is not against Magna Charta allows an Ordinary Iury at the Suit of the party to sit in Judgment upon the greatest Noble-men Therefore this Reason can signifie nothing against the Bishops who are Lords in Parlament as I have already proved 2. I shall give a brief account of the true and original Reason of this Trial by Peers without which that Authour it seems is resolved to conclude that the Iurisdiction of the Bishops in Capital Cases is an abuse of Magna Charta and a Violation offer'd to the Liberties of English Subjects As to the general Reason of the Trial by Peers it is easie to conceive it to have risen from the care that was taken to prevent any unfair proceedings in what did concern the Lives and Fortunes of men From hence Tacitus observes of the old Germans that their Princes who were chosen in their great Councils to doe justice in the several Provinces had some of the People joyned with them both for Advice and Authority These were Assessours to the Judges that mens lives and fortunes might not depend on the pleasure of one man and they were chosen out of the chief of the People none but those who were born free being capable of this honour In the latter times of the German State before the subduing it by Charlemagn some learned men say their Iudges were chosen out of the Colleges of Priests especially among the Saxons After their being conquer'd by him there were 2 Courts of Judicature established among them as in other parts of the German Empire 1. One ordinary and Popular viz. by the Comites or great Officers sent by the Emperour into the several Districts and the Scabini who were Assistants to the other and were generally chosen by the People The number of these at first was uncertain but in the Capitulars they are required to be seven who were always to assist the Comes in passing Judgments But Ludovicus Pius in his second Capitular A. D. 819. c. 2. enlarged their number to 12. And if they did not come along with him they were to be chosen out of the most substantial Free-holders of the County for the words are De melioribus illius Comitatûs suppleat numerum duodenarium This I take to be the true Original of our Juries For our Saxon Laws were taken very much from the Laws of the Christian Emperours of the Caroline Race as I could at large prove if it were not impertinent to our business and thence discover a great mistake of our Lawyers who make our ancient Laws and Customs peculiar to our selves As in this very case of Trial by Peers which was the common practice of these parts of the World Therefore Otto Frisingensis takes notice of it as an unusual thing in Hungary Nulla sententia à Principe sicut apud nos moris est per pares suos exposcitur sola sed Principis voluntas apud omnes pro ratione habetur that they were not judged by their Peers but by the Will of their Prince Which shews that this way of Trial was looked on as the practice of the Empire and as preventing the inconveniences of arbitrary Government And it was established in the Laws of the Lombards and the Constitutions of Sicily In the one it is said to be Iudicium Parium in the other proborum virorum In the Saxon Laws of King Ethelred at Wanting c. 4. 12 Freemen are appointed to be sworn to doe Iustice among their neighbours in every Hundred Those in the Laws of Alfred are rather 12 Compurgators then Iudges however some make him the Authour of the Trial by Peers in England But by whomsoever it was brought into request here it was no other way of Trial then what was ordinary in other parts of Europe and was a great instance of the moderation of the Government of the Northern Kingdoms 2. There was an extraordinary or Royal Court of Iudicature and that either by way of Appeal which was allowed from inferiour Courts or in the Causes of Great men which were reserved to this Supreme Court. In which either the King himself was present or the Comes Palatii who was Lord High Steward and all the Great persons were Assessours to him In such a Court Brunichildis was condemned in France and Tassilo Duke of Bavaria in the Empire and Ernestus and other Great men A. D. 861 and Erchingerus and Bartoldus under Conradus the last of the French Race And among the Causes expresly reserved for this Supreme Court were those which concerned the Prelats as well as the