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A30974
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Discourse of the peerage & jurisdiction of the Lords spirituall in Parliament proving from the fundamental laws of the land, the testimony of the most renowned authors, and the practice of all ages : that have no right in claiming any jurisdiction in capital matters.
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Barlow, Thomas, 1607-1691.
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1679
(1679)
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Wing B829; ESTC R4830
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45,447
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34
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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
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