John Selden, Of the judicature in parliaments a posthumous treatise, wherein the controveries and precedents belonging to that title are methodically handled.

§. 4. The Presence of the Lords Spiritual.* 1.1

In Cases of Misdemeanors,* 1.2 the Lords Spiritual have ever been present, but never in Offences Capital. This is so generally-received of all men, that it is not worth the Labour to prove it; yet I will vouch the Precedents: For it may

be, out of one or other of them some∣what may occur worthy the Observa∣tion.

In Misdemeanors.

In 1 R. 2. Alice Peirce was brought before the Prelates and Lords in Parlia∣ment, to Answer, and the Prelates and Lords did ordain.

42 E. 3. Numb. 20, &c. John at Lee was put to Reason before the Pre∣lates, Lords, Dukes, Earls, Barons, and some of the Commons.

7 R. 2. Jo. Cavendish accused the Lord Chancellor of Bribery, before the Pre∣lates and Lords in Parliament. The Chancellor Answered before the Pre∣lates and Lords.

In Offences Capital.* 1.3

In 4 E. 3. The Earl of Kent was brought before the Counts, Barons & autres Grandees and Nobles en mesme Parlement, &c. for Treason dors. Numb. 38.

Eodem Anno, The Articles of Treason being read against Mortimer, the King charged les Counts & Barons, les Peeres de son Realme, to give Judgment. And Judgment was given per les dits Counts,

Barons & Peeres come Judges del Parle∣ment.

Item, The King commanded les dits Counts & Barons Assembled in Parlia∣ment, to give Judgment on, &c. and so were four others tried in the same Par∣liament, all for Treason, and not one word of the Prelates, either when the Articles were read, or at the Judgment.

6 E. 3. Numb. 11, 12. Post Festum San∣cti Gregorii, The Parliament being com∣manded to consult of the keeping of the Peace, and Punishment for the breaking thereof, the Prelates departed, pur ceo que aviz fuit dits Prelates, que ne attinet pas a eux consuler de guard de la Pees ne de chastisament de tiel; yet afterwards, when they heard what was ordained touching those Malefactors, for the apprehension of them by Hue and Cry, &c. to bring them before certain Commissioners to be tried according to Law, the Prelates gave their Consents also to the Act, and added also Excommunication by the As∣sent of King, Lords and Commons.

Anno 10 R. 2. The Commons prayed That such as gave up Forts, puissent estre a respons cest Parlement. Et selon leur de∣sert puis per guard les Seigniors & Baronage.

And thereupon John Gomeniz & William Weston were brought before the Lords a∣foresaid in full Parliament, &c. It is to be understood before the Temporal Lords; for the Bishops are never com∣prized in the Word Baronage.

Anno 11 R. 2. Divers Lords and others being appealed of Treason, & other mis∣demeanors, the Prelates absented them∣selves, during the Tryal having first made Protestation saving their Right to be present in Parliament. Regni more so∣lito considerare,* 1.4 tractare, ordinare, statuere, definire & caetera excercere, cum caeteris Pa∣ribus &c. Verum quia in praesenti Parlia∣mento de nonnullis materiis agitur, in quibus non licet nobis juxta Canonum Sacrorum in∣stituta quomodo libet interesse, Eo propter pro nobis & nostrum quolibet Protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus, nec intenditur nec vult aliquis nostrum in Parliamento dum de hujusmodi rebus agitatur vel agitur, quomo∣do libet interesse, sed nos & nostrum quemli∣bet in ea parte penitus absentare: Jure Pari∣tatis nostrae, & cujuslibet nostrum interes∣send. in dicto Parliamento, quoad omnia & singula ibidem excercenda juris, & eorum quilibet statu & Ordine in omnibus semper

salvo. Ad haec insuper protestamur & no∣strum quilibet protestatur, quod propter hujus∣modi absentiam non intendimus nec volumus, nec nostrum aliquis intendit, nec vult, quod processus habiti, & habendi in praesenti Par∣liamento super materiis antedictis, in quibus nec possumus nec debemus ut praemittitur in∣teresse, quantum ad nos, & nostrum quem li∣bet attinet, futuris temporibus quomodo libet impugnentur, infirmentur, seu etiam rever∣tentur.

This was read in full Parliament and enrolled at the Request of the Commons, I mean the Prelates by the Kings Com∣mand and assent of the Lords Temporal and Commons. Here the Protestation saith (de jure, interesse non debemus) but I think it intends that they could not be present by reason of the Common-Law, and by reason of an Ordinance made at the Councell at Westminster, in 21. H. 2. By which all Clergy-men were forbidden, agitare Judicium sanguinis, upon pain to be deprived both of Dignities and Orders. For surely as I think, they might other∣wise have been present both by the Com∣mon-Law and by the Law of God. But by such their long constant absence, even from our first Parliaments upon Record. The Lords Temporal have only heard and

determined all matters concerning Capi∣tal offences, which hath continued in them so long that it is become their Right, &c.

So that now it will be a wrong unto them the Lords Temporal, if the Bishops do any way meddle with such Judica∣tures, either touching the Answers, the Replyes, the Proofs, or the Judgement. For where they may not adjudg, they may not do any thing as a Judge that doth conduce to judgment. And there∣fore as heretofore they would be absent, Now they cannot be present whilst the Matter is in hand, but are to be absent al∣together dum de hujusmodi materiis agita∣tur: For some or other matter may hap∣pen to be Voted in their presence con∣cerning the Answer, Replication, &c. or concerning the Form of Judicature herein: And by the Voices of the Spiri∣tual Lords that Vote may pass against the major part of the Temporal Lords, who should sustain wrong therein.

Can they be present, and not Vote?

I know that at all Assizes and Sessions divers of the Clergy are present till Judg∣ment be given in such Cases; but their

Presence cannot prejudice the Judge at the Assizes by Vote, as in Parliament. And at Sessions the Lay and Clergy are equally in Authority to hear and deter∣mine.

Eodem Anno 11 R. 2. A Special Act passed at the Request of the Commons, to make good those Appeals and Judg∣ments, notwithstanding that the Spiri∣tual Lords pur benefit & salvatioun de lour Estate, Cap. 3. & in Parl. Roll, N. 28.

This Act, I conceive, was occasioned by the Clause in the said Protes〈…〉〈…〉 of the Prelates; Ad haec insuper Protest〈…〉〈…〉 &c. quod processus habiti & habendi in prae∣senti Parliamento super Materiis praedictis, in quibus nec possumus, nec debemus interesse, ut praemittitur, quantum ad nos attinet futu∣ris temporibus non impugnentur, &c. For there is no such Act to make good any former Judgment notwithstanding their Absence.

And 2 H. 5. Upon the Petition of the E. of Salisbury, the King & Lords Tempo∣ral adjudged the Judgment against his Father in Parliament, 2 H. 4. to be good, notwithstanding that it was rendred without the consent of the Lords Spiri∣tual, which yet the said Earl alledged as Error in his Petition; so that by the

Judgment of the whole House, neither the Presence nor Absence of the Spiritu∣al Lords in necessary in such Judgments.

In 21. R. 2. The first Petition that the Commons offered was, That before this time many Judgments and Ordinances made in the time of the Kings Ancestors in Parliament, have been repealed be∣cause the Clergy was not present in Par∣liament at the making of the Judgments; and therefore they desired that the Cler∣gy might make a Proctor with a suffici∣〈…〉〈…〉 to consent in their wants, 〈…〉〈…〉 Things and Ordinances to be done in this Parliament, Numb. 9.

Whereupon the Prelates and Clergy being severally examined, deputed for them all Tho. de Piercy.

But in ancient times (in libro Maili∣cess) Numb. 9. which hath written somewhat largely of this Parliament; It is said, The Pardons granted to the Earls of Arundel, were first repealed by the Assent of the Prelates; for which he blames them much, saying, Dederunt ergo locum Praelati Judicio Sanguinis in hoc facto, ita quod dubitatur à pluribus, si in∣currunt irregularitatem pro negotio memora∣to, unde contigit quod propter istud minus peccatum consequentur, nam exactum est ab

iis, vellent, nollent, ut Laicam Personam constituerent, ad Judicium Sanguinis dan∣dum in dicto Parliamento, si necesse foret, & occasio emersisset.

I have perused all Judgments and Or∣dinances in Parliament,* 1.5 and do not yet find one, whereto any Exceptions were taken for the Absence of the Prelates and Clergy.

I find an Exception to the Judgment of the Exile, in 15 E. 2. for that it was made without the Assent of the Prelates, who were present, and protested in wri∣ting against it. And one of the Errors whereupon it was repealed, is, for that it was made without the Assent of them, who were Peers of the Realm in Parlia∣ment.

But this Repeal was per duress & force, &c. prout 1 E. 3. c. 2. So as this cannot be alledged for a Legal Precedent.

5 H. 4. The Earl of Northumberland came before the King, the Lords and Commons in Parliament. The Lords made Protestation that the Judgment belonged to them only, &c.

The Petition being read before the King and the said Lords, as Peers of the

Parliament (unto whom such Judg∣ments do of Right belong) consider∣ing, &c. adjudged that it was neither Treason nor Felony, &c.

Note, That all this Parliament,* 1.6 the Bishop of—was Chancellor, and he as Chancellor, delivered the Opinion of the Lords when they had acquitted the said Earl of Treason. Whereby it seems that He and the other Bishops were pre∣sent at the Trial of Life and Death; wherefore though the Record doth here say the Lords indefinitely, we must un∣derstand the Lords Temporal only; espe∣cially since they claimed the said Judg∣ment to belong to them.

In 4 E. 3. Judgment was given by the Earls, Barons and Peers, as Judges in Parliament, in point of Treason, where the Prelates are not named; and there∣fore understood of the Temporal Lords only. This will be explained by the next of 7 H. 4. Rot. Process coram Domino Rege, &c.

The King commanded the Lords Tem∣poral, Peers of this Realm, to advise what Process to make, and what Judg∣ment to render against the Earl of Nor∣thumberland and the Lord Bardolph. The Lords advised thereupon, and reported

their Opinions to the King. The said Lords, Peers of the Realm, by Assent of the King, Ordain, That Proclamati∣on should be made for the said Earl and Lord Bardolph to appear, or else to be Convicted by Award of the Peers in Parliament.

The King did farther demand the O∣pinion of the said Lords Temporal touch∣ing the Archbishop of York; unto whom the said Lords Temporal said, &c.

The Commons prayed the King that they might have Cognizance, &c. Where∣upon, by Advice of the Lords Tempo∣ral, the Returns of the former Procla∣mations were made at the Parliament-door for the said Earl and Lord to ap∣pear.

By Advice of the said Lords Tempo∣ral, the Returns of the former Procla∣mations were examined, the said Lords Temporal considered of the Errors therein.

By the said Lords Temporal, with the Assent of the King, by their Autho∣rity, New Proclamation is granted, the Return whereof is read in full Parlia∣ment before the King and the said Lords Temporal.

Whereupon, the said Lords Tempo∣ral

then being in the said Parliament, by Advice and Assent of our Lord the King, by their Authority in Parliament, A∣warded the said, &c. Convict of Trea∣son.

Here all was done by the Lords Tem∣poral from the first beginning of the Trial until the Judgment, and yet the Judgment is said to be in Full Parlia∣ment, notwithstanding the Spiritual Lords are not once mentioned, nor in∣tended to be present at any time whilst the Matter of Treason was handled.

Notes

• * 1.1

  The Lords Spiritual.
• * 1.2

  In Cases of Misdeme∣nor they may be present.
• * 1.3

  In Cases Capital may not be present,
• * 1.4

  The Prote∣station of the Bishops forever.
• * 1.5

  Observ. No exce∣ptions ta∣ken for the Ab∣sence of the Pre∣lates.
• * 1.6

  Note espe∣cial.