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england_n	john_n	thomas_n	william_n	7,902	5	8.3467	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A62230	Summus angliæ seneschallus, or, A survey of the Lord High-Steward of England his office, dignity, and jurisdiction, particularly the manner of arraigning a peer indicted of treason, or felony : in a letter to the Lords in the Tower ...	Saunders, Edmund, Sir, d. 1683.	1680 (1680)	Wing S745; ESTC R9936	19,870	38

to be challenged for that in Law they be Judges to that purpose and Judges cannot be challenged and that is the reason why Noblemen cannot be challenged for Mag. Charta saith Per Judicium Parium suorum Cap. 29. and not Veredictum When the Peers that were to be Tryers at the Arraignment of the Ealls of Essex and Southampton were called by name Camb. Eliz. A. 1601. the Earl of Essex demanded whether it were not lawful for them as the use is to private men to except against some of their Peers The Judges answer'd that such was the Credit and Estimation of the Peers of England that they are neither compelled to an Oath in Arraignments nor subjected to Exceptions QUERY IV. Whether the Lord High-Steward can collect the Evidence against the Prisoner or conser with the Lords touching the same in the Prisoners absence SOL. To this I answer negatively for after the King 's Learned Counsel have produc'd all their Evidence the Prisoner ought to be present at all Conferences touching the same and therefore it shall be necessary for all Prisoners after Evidence given against them before departure from the Bar to require Justice of the Lord High-Steward and of the other Lords and that no Question be demanded or conference had by any with the Lords but in open Court in their own hearing otherwise such Prisoners shall take no advantage thereof after Verdict and Judgment given QUERY VII If the Lords be equally divided between guilty and not guilty whether the party tryed shall be acquitted or condemned SOL. In an Information in the Court of Star-Chamber by the Attorney against Sir Stephen Proctor and others for conspiracy against and scandal of the Earl of Northampton Co. 4. Inst f. 64. and Edward Lord Wootten two of his Majesties most Honourable Privy Council at the hearing of which Cause there sat eight in Court whereof four condemned the Defendants and the other four viz. the Lord Chancellour two Bishops and the Chancellour of the Exchequer acquitted them the Question was according as your Lordships have propos'd it Whether the Defendants should be condemned or not And here it was moved by the King 's Learned Counsel that when the Voices are equal that in that case of which part the Lord Chancellour was on that side it should be determin'd without regard either to Plaintiff or Defendant And it was resolved that regularly and de communi Jure in respect of the equality of Voices that no sentence could be given as it holdeth in the High Court of Parliament and all other Courts according to the old rule Paribus sententiis Reus absolvitur And sentence was never given against Sir Stephen Proctor agreeable to the general rule in other Courts In this point the Civil Law concurs with the Common Inter Pares Numero Judices si dissonae sententiae proferantur in liberalibus quidem causis secundum quod a Divo Pio constitutum est pro libertate statutum obtinet in alits autem causis pro Ree quod in Judiciis publicis obtinere oportet Vid. Grot. lib. 2. c. 5. uu 18. de Jure Belli c. Reus sententiis paribus absolvitur semper quicquid dubium est humanit as milinat in melius Alter Judex damnat alter absolvit inter dispares sententias milior viniat I shall here take leave to make a little digression from the Query and consider if a person that is forth-coming can by Parliament be attainted of High-Treason and never call'd to answer This seems as much worth the inquiry as other your Lordships Queries and though omitted by you I shall not let it pass without some notice By the 2. of H. 6. we find a great Peer condemned without Arraignment or Answer Co. 4. Inst f. 37 38. the like in 32 H. 8. one Attainted though living and forth-coming of High-Treason without ever being called to Judgment The legality whereof was scrupled and demanded of the Judges whether the Act were void or not with some pause they adjudged it perillous and of bad example to the Inferiour Courts but 't was agreed if condemned by Parliament to be indisputable though Cap. 29. 5 E. 3. c. 9. 28 E. 3. c. 5. of Mag. Char. affirms that no man ought to be condemned without Answer without a Quid fecisti and all due proceedings at Law Senec. in Loco Qui statuit aliquid parte inaudita altera licet aequum statuerit hand aequus sucrit With the Municipal Laws agree those of the Romans Divi Severi Antonini Magni rescriptum est D. 48.17 ne quis absens primatur hoc jure utimur ne Absentes damnentur neque enim inaudita causa quemquam damnari aequitatis ratio patitur Acts 25. v. 16. It is not the manner of the Romans to deliver any man to death before the accused have his accusers face to face and license to answer for himself QUERY VIII Whether the King and one of the Houses alone or both without the King can declare a Treason within the Stat. of 25 E. 3. cap. 2 SOL. John Duke of Groyen and Lancaster Steward of England and Thomas Duke of Glocester Constable of England the King's Uncles complained to the King that Thomas Talbot Knight with others his Adherents conspired the death of the said Dukes as the same was confessed and well known and prayed that the Parliament might judge of the fault which Petition was just and according to the Branch of the Stat. of 25 E. 3. but the Record saith further that the King and Lords in Parliament adjudged the same fact to be High-Treason which Judgment wanting the assent of the Commons was no Declaration within the said Stat. which is attended with this restriction That if any other case supposed to be Treason should happen before any Justices the Justices should tarry without going to judment of the Treason till the Case be shewed before the King and his Parliament consisting of Lords Spiritual and Temporal and the Commons whether it ought to be adjudged Treason or Felony QUERY IX Whether the Subjects of another Prince Confederate with the King of England can be held for the King's Enemies SOL. It was objected against the Duke of Norfolk concerning his relieving of the Scots the Queens Enemies which was proved by Letters and Banister's confession c. whereupon the Duke asked the Judges Whether the Subjects of another Prince Camb. Eliz. A. 1572. Confederate with the Queen of England were to be holden for the Queens Enemies Calelin Chief Justice answer'd that they were and that the Queen of England might make War with any Duke of France and yet in the interim keep peace with the French King And here 't is to be noted that the Judges ought not to deliver their Opinions before-hand in any criminal case that may come before them judicially In the Case of Humphrey Stafford that Arch Traytor Hussey Chief Justice besought King H. 7.

Summus Angliae Seneschallus OR A SURVEY OF THE Lord High-steward OF ENGLAND HIS Office Dignity and Jurisdiction Particularly the manner of Arraigning a Peer INDICTED OF TREASON or FELONY In a Letter to the LORDS in the TOWER with Resolutions to certain QUERIES made by their Lordships relating to Trayterous and Seditious Practices Written at their Lordships Request Funesta Securis Regni Securitas London Printed in the Year 1680. THE NATURE of the OFFICE OF A L. HIGH-STEWARD c. My Lords I Shall not entertain your Lordships with any Preliminary Discourse but presently let you into the main Building As the Royal Power and Soveraignty of the King of England is a repleat compacted Body and impartible even so the Attributes thereof are as Jurists speaks so indivisible in themselves naturally and intrinsecally inherent in the Crown that they cannot be made away or so communicated to the Subject as to divest himself of them to the lessening Soveraign Majesty yet by Trust and Delegate Power the Execution may be transferred to others to ease him of a troublesome burthen Now among those several Ministers or Officers of Law that are by his Most Excellent Majesty substituted to ease him of labour but not to deprive him of Power the Lord High-Steward of England is one of the first Magnitude the Nature of whose Office will the better be comprehended by your Lordships if you vouchsafe to consider the particulars following 1. The Etymology of the words Steward and Seneschallus 2. His Lordships Stile and the Antiquity of his Office 3. How this great Office was formerly holden and how at this time 4. The Extent of his Jurisdiction and Power and the Rules he ought to judge by 5. The Order and manner of Arraigning a Peer of the Realm before this Great Officer For the derivation of the words Steward and Seneschallus Cok. Litt. 61. a. some say the first is derived of Stewe i. e. a Place and Ward which signifieth a Keeper Warden or Governour Others say that it comes from Steda a Saxon word which signifies a place also Lib. 9. Le Counter de Salop 's Case 48. b. and Ward as it were the Keeper or Governour of that place 't is a word diversly used in this Kingdom in the first acception 't is taken for the Lord High-Steward out of which Magistracy lower Officers have their rise as Seneschal de l' Hostel de Roy the Steward of the Kings most Honourable Houshold Anno 24. H. 8. c. 13. whose Title was changed to that of Great Master Plomd Com. f. 152. Anno 32. H. 8. c. 39. but this Stat. was repealed by that of 1 Mar. 2 Parl. c. 4. and the Office of the Lord Steward revived There is also a Steward of the Marshalsea Anno 33. H. 8. c. 12. and likewise a Steward of a Mannour Lib. 2. c. 71. whom Fleta fully describes To be short this word is of so great diversity that there is no Corporation of any Account or House of any Honour through the Realm but it shall have an Officer belonging to it of this Name But I proceed to the word Seneschallus Seneschal is a French word Minshaeus the Italians call it Seniscalco dict a Schalk i. e. Servus aut Officialis gesind i. e. familia but here 't is taken for the High-Steward of England Some derive it of Sein a House or Place and Schale an Officer others say Sen is an ancient word for Justice so that most naturally it signifies Officiarius Justitiae and this agreeth well with his Authority and Duty to proceed secundum Leges consuetudinis Angliae In the next place I am to consider his Lordships Stile which in Latin is Seneschallus Angliae and his Court is Intituled Placita Coronae coram Seneschallo Angliae and when he sitteth by force of his Office he sitteth under a Cloth of Estate and such as direct themselves to him say Please your Grace my Lord High-Steward of England Co. 4. Inst 59. As to the Antiquity of the Office 't is very ancient and was before the Conquest For Sir Ed. Coke tells us that he himself hath read an Authentical Manuscript intituled Authoritas Seneschalli Angliae which putting an Example of his Authority saith Sicut accidit Godwino Comiti Kanciae tempore Regis Edwardi Antecessoris Willielmi Ducis Normandiae pro bujusmodi male gestis consiliis suis per Seneschallum Angliae adjudicatus foris fecit Comitivam suam In the time of William the Conquerour William Fitz-Eustace was Steward of England Next come we to consider how this Great Office was formerly holden and how at this time This Magistracy was formerly of Inheritance and belonged to the Earldome of Leicester as appeareth by a Record produced by Sir Ed. Coke Seneschalcia Angliae pertinet ad Comitivam de Leicester pertinuit ab antiquo Other Records testifie that it belong'd to the Barony of Hinckley and my Lord Coke tells us that in the Reign of William Rufus and H. 1. Hugh Grant semenel Baron of Hinckley held that Barony by the said Office so that there seems a diversity between these Records but we shall reconcile it thus Hinckley was parsel of the Possessions of the E. of Leicester for Robert Bellamont E. of Leicester in the Reign of H. 2. married with Petronil Daughter and Heir of the said Hugh Grant semenel Baron of Hinckley and Lord Steward of England and so it continued till by the forfeiture of Simon Montford it came to King H. 3. who in the fiftieth year of his Reign created Edmond his second Son Earl of Leicester Baron of Hinckley and High-Steward of England which continued in his Line until Henry of Bullingbrook Son and Heir of John of Gaunt Duke of Lancaster who was the last that had any Estate of Inheritance in the Office of the Steward of England Since the time of H. of Bullingbrook this great Office was never granted to any Subject but only hac Vice and the reason was for that the Power of this Officer is so transcendent that it was not holden fit to be in any Subjects hands For a Record saith Et setendum est quod ejus Officium est supervidere regnare sub Rege immediate post Regom totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus pacis guerrarum c. and proceedeth particularly with divers high Powers and Authorities It is a Place of that Transcendency and Heighth Ephori 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Magistratus quidam Lacedemoniorum oppositi Regibus qui inspiciebant ea quae ad Rempub. pertinebant that it might in some sort match the Ephori among the Latedemonians The custom of our Commonwealth hath upon great consideration and policy brought it to pass that this Officer is of no great duration but only for the dispatch of some special business as the Arraignment of some Noble-man in case of Treason c.

such a day and place as also to a Serjeant at Arms to summon Tot tales Dominos Magnates Proceres hujus Regni Angliae praedicti R. Comitis E. Pares per quos rei veritas melius sciri poterit quod ipsi personaliter compareant coram praedict Seneschallo apud Westm tali die hora ad faciend ea quae ex parte Domini Regis forent facienda c. In this Summons four things are observable 1. That all these Precepts most commonly bear date in one day 2. That no number of Peers are named in the Precept and yet there must be twelve or above 3. That the Precept is awarded for the return of the Peers before any Arraignment or Plea pleaded by the Prisoner 4. That the Lords are not de Vicineto and therefore the sitting and Tryal may be in any County of England At the day the Lord High Steward with six Serjeants at Arms before him takes his place under a Cloth of Estate and then the Clerk of the Crown delivers to him his Commission who re-delivers it After three O Yes's by a Serjeant at Arms and Commandment given in the Name of the Lord High-Steward of England to keep silence the Commission is read then the Usher delivers to the Steward a white Rod who re-delivers the same which he holds before the Lord High-Steward It was deliver'd upon the like occasion to the Earl of Shrewsbury by Garter King at Arms. O Yes being again made Commandment is given in the Name of the H. Steward to all Justices and Commissioners to certifie all Indictments and Records which being deliver'd into Court the Clerk of the Crown reads the Return and the Serjeant at Arms is commanded to return his Precept with the names of the E. and Barons by him summoned and the Return of that is also read then are the Peers summoned to answer to their Names which are recorded When they have taken their places and the Prisoner set to the Bar then the Lord High-Steward declares unto them the cause of their Assembly and perswades the Prisoner to Answer without fear assuring him that he shall be heard with patience and that Justice shall be done to him After this the Clerk of the Crown reads the Indictment and proceeds to the Arraignment of the Prisoner and if he plead Not Guilty the Entry is Et de hoc de bono malo ponit se super Pares sues c. After which the Lord High-Steward gives a Charge to the Peers exhorting them to try the Prisoner indifferently according to their Evidence which is opened by the King 's Learned Counsel who produce their Proofs for the King against the Prisoner Some or all of the Judges are ever attendant upon the Lord High-Steward and take their places at the feet of the Peers After the Evidence is given for the King and the Prisoners Defence made he is withdrawn from the Bar under the custody of the Lieutenant whilst the Tryers go to some place to consider of their Evidence upon debate of which if they doubt of any matter they cannot send to the High-Steward to ask the Judges any Questions of Law but in the hearing of the Prisoner that he may know whether the case be rightly put for de facto jus Oritur neither can they send for the Judges to know their Opinion but the H. Steward ought to demand it in Court in the presence of the Prisoner When the Lords are agreed they return into Court and the Lord H. S. publickly in open Court beginning with the Puisny Lord says unto him My Lord A. is W. V. S. guilty of the Treasons whereof he hath been Indicted and Arraigned or any of them And the Lord standing up says Guilty or Not Guilty and so upward of the rest serialim The Peers having given their Verdict in the absence of the Prisoner the Prisoner is brought to the Bar whom the Lord High-Steward acquaints with the Verdict of his Peers and gives Judgment accordingly either of Condemnation or Acquittal After the Service is performed and O Yes made for dissolving the Commission the white Rod is taken by the Lord High-Steward in both his hands and broken in pieces Thus have I presented to your Lordships a Scheme of that solemn order and manner how a Peer of the Realm is Arraigned before the Lord High-Steward of England I might amass several Presidents of like nature wherein the Axe of Death is born before the Prisoner with the Edge from him and after being found Guilty with the Edge to him I wish your Lordships may never know more of this Point by a fatal experience Now it remains that I give Solutions to those Queries your Lordships were pleas'd to put concerning Tryals Treasons c. by which I wish you may arrive at some reasonable satisfaction QUERY I. How Antient this Tryal by Peers may be SOL. Without doubt 't is Coetaneous with the Office of the Lord High-Steward and how old that is hath been already shewn However I shall present one Authority which proves that Tryal by the Peerage was in use in the Reign of William the Conquerour who in the beginning of his Reign created William Fitz Osborne Earl of Betrevil in Normandy Earl of Hereford His Son Roger succeeded him and was E. of Hereford who under colour of his Sisters Marriage near New-Market in Camb. Shire where many of the Nobility were assembled conspir'd with them to receive the Danes into England and depose William the Conquerour who was then in Normandy from his Kingdom of England to effect which he with others rose This Treason was reveal'd by Walter E. of Huntingdon who was one of the Conspirators and Son to the Great Syward Earl of Northumberland for which Treason Roger E. of Hereford was apprehended by Urse Tiptof than Sheriff of Worcestershire A. 8. W. 1. and after tryed by his Peers and found guilty of the Treason per Judicium Parium suorum But he ended his days in Prison QUERY II. Whether a Peer can wave his Tryal by Peers SOL. He cannot wave his Peers and put himself upon the Tryal of Twelve Freeholders for the Stat. of M●● Shart is that he must be tryed by his Peers and so it was resolved in the Lord Daere's Case 26 H. 8. QUERY III. What Lords shall be tryed by Bears in cases of Treason c SOL. Every Lord of Parliament that hath Voice therein and called thereto by the King 's Writ shall not be tryed by Peers but only such as sit Patrone Nobilitatis as Dukes Marquesses Earls Viscounts and Barons and not such as are Lords of Parliament by reason of their Baronies which they hold in right of the Church as Arch-Bishops and Bishops of this Realm for though they be Lords of Parliament yet upon an Impeachment either of Treason or Felony they shall not be tryed by the Peers of the Realm but by a Jury of Knights and other substantial persons upon their Oaths and one

that he would not desire to know their Opinions before-hand for him for they thought it should come before them in the King's-Bench judicially and then they would do that which of right they ought which the King approv'd of Besides the nature of their Oath requires it who are sworn that they shall well and lawfully serve our Soveraign Lord the King and his People in the Office of a Justice and that they shall do equal Law and execution of Right to all his Subjects QUERY X. Whether an Attainder of Treason way be falsified by the Plea of the Party SOL. A. 1. Mar. A Commission of Oyer and Terminer in London was directed to Sir Tho White Lord Mayor and to divers others reciting that where Sir Robert Dudley Knight 9 Jan. 1. Mar. was Indicted of High Treason before Thomas Duke of Nonfolk and fourteen other Commissioners in the County of Norfolk where in truth the Commission was directed to so many but the Indictment was taken before Eight of them only granting to them or any four of them Authority to receive the Indictment taken before fifteen Commissioners and to proceed thereupon as Special Justices of Oyer and Terminer by pretext whereof they proceeded and upon confession of the said Sir Rob. Dudley gave Judgment against him In this Case it was adjudged that Sir Rob. Dudley then Earl of Leicester might falsifie the said Attainder by Plea because it was void and conam non Judice for that the latter Commissioners had not power to proceed upon an Indictment taken before Eight but before Fifteen and so void The Party is not driven to his Writ of Errour but may falsifie the Attainder by Plea shewing the special matter which proveth it void ut supra In which case the party forfeiteth neither Lands nor Goods 'T is holden by some that if a person be attainted of High-Treason by the Common Law that no Writ of Errour should be brought for the reversal of that Attainder by reason of these words in the Stat. 33 H. 8. cap. 20. And if any person or persons shall be attainted of High-Treason by the course of the Common Law c. that every such Attainder by the Common Law shall be of as good strength value force and effect as if it had been done by Authority of Parliament But the contrary hereof was resolved at a Parliament holden A. 25. Eliz. that a Writ of Errour should be maintained for the reversal of Erroneous Attainders of High-Treason by the Common Law for that former Stat. is to be intended of lawful Attainders and not where there is any Errour in the same for by that of the Queen 't is provided That no Record of Attainder of any person or persons of or for any High-Treason where the party so Attainted is or hath been executed for the same shall be c. in any wise hereafter reversed undone avoided or Impeached by any Plea or for any Errour whatsoever QUERY XI Whether torture in case of Treason or Felony may be used by our Law SOL. Sir John Fortescue Chief Justice of England who wrote in commendation of our Common Laws preferreth the same for Government before the Civil Law and particularly that all tortures were against the Common Law expresly and he proceeds to shew the inconveniencies and mischiefs thereof by fearful examples to which Learned Author I refer your Lordships Cap. 22. It is against Mag. Charta Cap. 29. which says Nullus liber homo capiatur vel Imprisonetur c. aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus nisi per legale Judicium Parium suorum vel per Legem Terrae And accordingly all the Ancient Authors are against the inflicting pains and tortures upon Prisoners before or after Attainder Co. 3. Inst f. 35. but such as answer the Judgment John Holland Earl of Huntingdon was by King H. 6. created Duke of Exeter and A. 26. H. 6. the King granted to him the Office of the Constableship of the Tower of London He and William de la Poole Duke of Suffolk with some others intended to have brought in the Civil Laws and for a beginning of the same the Duke of Exeter first brought into the Tower the Rack or Brake allowed in many cases by the Civil Law and for that reason it was called the Duke of Exeter's Daughter QUERY XII Whether the King under the Great Seal may command all Process in Criminal Causes to cease SOL. We find says Coke a Discharge of further proceeding directed to the Judges of the Court c. not by way of pardoning the offence but by the King's acknowledgment under the Great Seal of the Parties Innocence with Commandment to the Judges that in the former proceedings they shall altogether surcease whereupon the Court will award that the Party shall go sine Die and that there shall be no further proceedings against him William de Melton Archbishop of York was accused in the King 's Bench coram Rege Concilio suo in Anno 3. Ed. 3. for adherency to Edmond Earl of Kent in his Treasons whereunto the Arch-Bishop pleaded Not Guilty and after two Writs of Venire Facias awarded the King directed his Writ under the Great Seal to the Judges of the King 's Bench to this effect Licet Venerabilis Pater Willielmus Archiepiscopus Ebor Stephanus London Episcopus per Diversa Brevia Nostra coram Nobis ad sect am Nastram Implacitentur de eo quod ipsi Edmundo Comiti Cantiae adhasisse debuerant quia tamen praedict Archiepiscopus Episcopus de adhaesione praedicta omnino Immunes reputamus Vobis Mandamus quod Platitis praedict is coram Nobis ulterius tenend omnino superfedeatis Teste meipso c. The Award of the Court hereupon is very observable Viz. Cujus Brevis praetextu consideratum est quod praedictus Archiepiscopus eat inde sine die c. ulterius non procedatur versus eum Stephen Gravesend Pasch 4. E. 3. Rol. 5.3 Bishop of London was charged with the same offence in Parliament A. 3. E. 3. whence by Order of Parliament he was referred to the King 's Bench to be tryed where he pleaded Not Guilty and after was discharg'd as the Arch-Bishop It may be thought that accepting the Pardon might be an implication of their sault and therefore it run in a new strain but no man that is well advis'd says the great Oracle of the Law will refuse God's or the King's Pardon for in the King's displeasure there is death says the Holy Writ and who knows how often he offends and consequently stands in need of it But how far this Branch of the Prerogative may be extended and what qualifications it may admit belongs not to a private man to determine QUERY XIII Whether a Person can be Attainted of High-Treason by general words SOL. Where by due course of Law a man cannot be Attainted of High-Treason unless the Law fore-judge