and Fortune his Honour the Inheritable Quality of his Blood his Name and Reputation and whatsoever may be comfortable in this World were disposable at the will and pleasure of inferiour persons who have not every of these themselves and consequently know not the true value and worth of them nor the importance of the matter that is judicially before them it may be presumed that they will not be so careful and concerned in the Cause and it is to be feared they will be too ready to give an inconsiderate and rash judgment This I take to be the onely benefit of a mans being tryed by his Peers which is very significantly expressed in the Statute De Proditoribus 25 Ed. 3. cap. 2. in these words Et de ceo soit provablement attaint deâ—overt fait per gents de lour condition c. But to apply this to our present design let us consider what a Temporal Lord loseth by an Attainder In the first place he loseth his Life his Estate real and personal If that were all a Gentleman might be his Peer but there is something more he forefeits his Nobility which is irrecoverable being quite extinguished the inheritable quality of his Blood is thereby corrupted the House of Lords themselves suffer with him for they lose a Member for ever But a Bishop forfeits nothing but what he hath in his Natural Capacity and if he be considered as such he is no Peer if he be considered as a Bishop i. e. As holding Lands of such a Value in the Right of his Bishoprick of the King he is a Peer but his Peerage is in no danger through his Attainder the succession which he is supposed to be as tender of as a Natural person is of his Posterity is not thereby tainted for his Peerage together with all his Posterity and Land Ratione cujus he is a Peer go to the Successor without any restauration see Stamford 187. 6. and so the House of Lords lose never a Member How then can Bishops having no Nobility which they can lose and consequently not being Gents de lour condition be fit Judges upon the Life and Death of Noble men And upon what grounds can more Justice be expected from such than from honest substantial Freeholders If this do not please let any of the most violent Maintainers of this pretended Temporally-spiritual Jurisdiction give a rational account wherein the advantage of a mans being tryed by his Peers doth consist and let him make appear that the Lords Temporal are any Sharers of this Priviledge when they are tryed by Bishops and I am satisfied but till then he must give me leave to conclude that this Jurisdiction which is pretended to is an abuse of the Satute of Magna Charta and therefore a violence offered to the Liberties of the Subjects of England 3. The Bishops are not Peers in that sense the Question is above stated in because they shall not themselves be tryed by Peers in Parliament If their Parity be not sufficient to Entitle them to demand a Tryal by Temporal Lords then they cannot be Peers so as to be Judges upon the Tryal of Temporal Lords but if they be really Peers to all intents and purposes then we charge all our Ancestors with a gross Violation of the Subjects Priviledges granted by Magna Charta for every Bishop is Liber homo a Subject of this Realm and ought of Right to have the benefit of a Subjects Priviledge of being tryed by his Peers But seeing by the constant practise in former Ages even in those times when the Tyranny of ambitious Prelates and the Insolence of Popish Usurpers did swell to so great a height when the poor credulous affrightned Laity were glad for fear of being delivered Prisoners In manus custodiam Diaboli and secluded from the Society and Conversation of Mankind to truckle at the Feet of the domineering Clergy and condescend to almost all their Demands however unreasonable or unjust they were insomuch that Innovations in favour of them were easily allowed and new acquisitions of Honour and Power easily obtained I say if in those times the Honour of being Tryed by Peers hath been denied to them it may well be inferred that they had no Right for if it were a thing which they had any colour of pretension to is it reasonable to suppose that they quietly without reluctancy would resign it when we have Records and Histories full of their Clamours for breach of Magna Charta of their Contentions with their Liege Lord and Sovereign in things that were against the known and established Laws of the Kingdom tending to the diminution of the Kings Prerogative the hindring of the Execution of Justice upon Malefactors and the dispossessing and injurious Expulsion of the Subject from his just and hereditary Right where they had no reason in the world for it onely that they were inflamed with indignation that the Native Courage and inbred Generosity of Mind that was in our Ancestors not induring themselves to be trod upon nor their Necks to be laid under a Yoke of Tyranny and Usurpation did obstruct the unsufferable growth of that Power and Dominion which their own Pride and Ambition together with the example and success of their Brethren in other Countries had spurr'd them on to These things are well enough known to all people whose Eyes are opened and therefore I shall not insist upon them but shall prove that Bishops ought not to be tryed by Temporal Lords and for that I have the Suffrage of all Learned men My Lord Coke in the Third Institutes Fol. 30. is express in the Point Spiritual Lords shall not be tryed by Peers Stamford in his Pleas of the Crown Lib. 3. cap. 1. De Trial per les Peers saith That the Statute of Magna Charta and 20 H. 6. cap. 9. Which gives Dutchesses Countesses and Baronnesses the same Priviledge that their Husbands have Nad este mise in 〈◊〉 dextender a un Evesque on Abbe coment que ils injoient le nosme des Seignior de Parlement car ils nont cel nosme d' Evesque ou Abbe ratione Nobilitatis sed ratione 〈◊〉 ne ont lieu in Parlement in respect de lour Nobilitie ejus in respect de lour possession Sc. l'auncient Baronies annexes a lour Dignities accordant a ceo il â—ad divers Presidents dont l'un fuit in temps le Roy H. 8. c. Of the same Opinion and for the same Reason is Selden ubi supra We find the same agreed by Justice Dodderidge pag. 59 112. and Elsynge in his ancient Method of holding Parliaments pag. 41. And the Book which I above cited Br. Tit. Enquest 99. 27 H. 8. in the Bishop of Rochester's Case it is resolved That when a Bishop is to be tryed for Treason it is not necessary that he have Knights in his Jury although he shall have that Priviledge in a Tryal for his Land which proves that his Peerage is more for the Priviledge
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 the Lands and Possessions of the Bishoprick then the Person of the Bishop as you may further see if you compare this Book with Plowd 117. Br. Tit. Tryal 142. and Fitz. Cor. 115. And I dare affirm there is not any one Lawyer or Antiquary of Note that disagrees from this But before I go from this I shall strengthen these Authorities by Precedents I shall begin with Adam de Orleton or Tarleton Bishop of Hereford who in the 17 of Ed. 2. was accused while he was sitting in Parliament of Conspiring with Roger Mortimer Earl of March and aiding him with Horse and Arms in open Rebellion whereupon he was ordered to the Barr of the House of Lords he made no Answer to those Crimes that were laid to his charge only that he was Suffragan to the Archbishop of Canterbury who was his direct Judge under the Pope and without his leave and the consent of his Fellow-Bishops he would not answer Now although the Statute of Articuli Cleri restraining the benefit of Clergy to Felony was made but eight years before this yet the rest of the Clergy in that disorderly time observe the Humility Obedience and Loyalty of our Spiritual Fathers in those days had the impudence in the presence of the King to pull him violently from the Barr and deliver him to the Archbishop The King was enraged at this Insolence and gave special Order to apprehend him again which was done and was arraigned upon an Indictment at the Kings-Bench-Bar and upon the Question How he will be tryed He said Quod ipse est Episcopus Herefordensis ad voluntatem Dei Sammi Pontificis quod materia praedict Articulor ' sibi imposiâ—… adeo ardua est quod ipse non debet in Curia hac super praedictis Articul ' imposii respondere nec inde respondere potest absque offensu Divino Sanctae Ecclesiae Hereupon Day is given over and after some Contiuances the Record goes on thus Et praeceptum est Vic' Comit ' Hereford quod venire faciat coram Domino Rege c. tot tales c. ad inquirendum prout mores est c. And a Common Jury is returned which find him Guilty and his Goods and Lands are seised into the Kings Hands and after Conviction he is delivered unto the Archbishop to the end I suppose that he should be Degraded for in this Case being High Treason there could be no Purgation See the Record of his Attainder Hill 17 E. 2. Coram Rege Rot. 87. Dors ' Coâ— 3. Inst. 30. Fuller's Ch. Hist. fol. 107. Tho. Walsingham fol. 199. It appears by the Record it self and all the Histories of those times what Artifices were used and with what Industry every Stone was turned by the Clergy to keep the Bishop from the Justice of the Nation and is it to be supposed that they would wave their Jus Paritatis if they had it We have a world of Complaints in Walsingham and other old Monks against the whole Proceeding but not one word of any Injury done to their Peerage The next Precedent is in Trin. 30. E. 3. Rot. 11. John de Isle Brother to Thomas Hen Bishop of Ely was Indicted in Huntington that he with divers others per assensum procurationem Episcopi praedict 28 E. 3. Diae Lunae post Testum Sancti Jacobi burnt the House of the Lady Wake at 〈…〉 by Sommersham in Comitat. praedict quod praedict Tho. Episcopus sciens praedict combustionem per praedict servientes suos esse factam dictos servientes apud Sommersham praedict postea receptavit c. And also it was found before the Justices and Coroners that 29 E. 3. the said Bishop was guilty de assensu of the Murder of one William Holme slain by Ralph Carelesse and Walter Ripton called little Watt upon Malice conceived against Holme because he followed the Suit of the Lady Wake the Principals were attainted by Owtlawry the Bishop was Arraigned and upon question how he would be tryed He answered Quod ipse est membrum Domini Papae quod ipse ab ordinario suo viz. venerabili Patre Domino Simone Archiepiscopo Cant. Angliae Primat respondere non potest super haec Dominus Archiepiscopus praesons hic in Curia petit quod dictus Episcopus Eliensis de feloniis praedictis sibi impositis hic coram Laico Judice non cogatur respondere ut sciatur inde rei veritas per inquisitionem Patriae praecept ' est Vicecom c. Ad quens diem c. Jurat ' trial c. dicunt super Sacramentum suum quod idem Episcopus est in nullo culpabilis sed dicunt quod idem Episcopus post feloniam factam ipsos servientes receptavit sciens ipsos feloniam fecisse c. Et super haec pâ—â—…ict ' Archiepiscopus praeseâ—s in Cur ' petit ipsum tanquam Membrum Ecclesiae sibi libâ—â—â—â—… ei liberatur custodiend ' prout decet Here is a Bishop Indicted Arraigned Tryed by a Common Jury and Convicted as accessory to several Felonies as burning of a House and killing a Man both before and after the Felonies committed And it is observable the Jurors were tryed as appears by this Record and that proves the Bishop had his Challenges to them at his Tryal And is it not very strange that they should proceed at this Rate against a Peer of the Realm over whom they had no Jurisdiction and a Bishop too at such a time when the Clergy were the onely men about Court as Simon Langham Archbishop of Canterbury Lord Chancellor William Wickham Archdeacon of Lincoln Keeper of the Privy Seal David Willer Parson of Somersham Master of the Rolls ten beneficed Priests Masters of the Chancery William Mulse Dean of S. Martins le grand Chief Chamberlain of the Exchequer Receiver and Keeper of the Kings Treasure and Jewels William Aksby Archdeacon of Northampton Chancellour of the Exchequer William Dighton Prebendary of S. Martins Clerk of the Privy Seal Richard Chesterfield Prebend of S. Stephens Treasurer of the Kings House Henry Snatch Parson of Oundell Master of the Kings Wardrobe John Newnham Parson of Fenny-stanton one of the Chamberlains of the Exchequer John Rowseby Parson of Harwich Surveyor and Controller of the Kings Works Thomas Brittingham Parson of Asby Treasurer to the King for the part of Guisnes and the Marches of Calice John Troys a Priest Treasurer of Ireland These I have specified here because when any Examples are put of Justice had against Ecclesiastical Malefactors there are a sort of people who presently cry out Their wings were clipt They were under contempt and hated by the Laity c. But what Credit is to be given to them may be gathered from what hath been said Thomas Merkes Bishop of Carlisle was in the 2 H. 4. Indicted of Conspiring with Holland Earl of Kent and the Dukes of Exceter and Surrey and the Duke of Aumerle Montacute Earl of Salisbury Spencer Earl
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