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ALL Oaths being either promis∣sory or assentatory,* 1.1 and the first being, that which binds to a future performance of Trust. The second, that which is taken for discovery of a past or present truth.
The first kind, they as occasion requir'd used in taking the oath of all the Barons for the maintenance of the great Charter,* 1.2 and the like was under King John and H. 3 as also swearing of the Lords in Parliamēt in the time of H. the 6. that they should not take parts in the great Controversie be∣tween the Earle Marshall, and the Earle of Warwick, and the oaths of divers Lords appointed for the keeping of the Parlia∣ment in 8 & 11 H. 4, where yet the Prince was not sworn, being one of those appoin∣ted for the keeping of the ordinances. Be∣cause of the highnesse and excellency of his honorable person; As the words are in the Roll,* 1.3 so under H. the 7. the Lords Spiritu∣all and Temporal swoare in the Parliament to the Article of taking care for the preser∣ving of the peace, and under H the 8. to the Bill of Succession; but under Richard the second, the Arch-bishop of Canterbury challenged, that neither he nor his prede∣cessors were compellable to any oath,* 1.4 but to the K. and this kind of Oath is frequent∣ly taken by such Barons as undertake the great Offices of the Kingdome, and they are all liable to the like by their tenures, by fealty and by Statutes of the Oath of Al∣legeance, but of these kinds of Oaths for the Supremacy they are discharged by the
first Statute that gives it;* 1.5 and in the case of Essoynes wherein by the ancient Law, the Essoiner was to sweare that the party Essoined should appeare at a certain day, all Barons and B••ronesses were excepted from the Oath, and instead of the Oath they put in surety, Ratio vero diversitatis (saith Bracton) talis esse poterit ut videtur quod ita nobiles & dignae personae in warranti∣zatione Essonii non per se jurabant sed per pro∣curatores (scilicet) plegios suos.* 1.6
Assentary Oaths are in Cases of tryall by 12 or 24 witnesses defendants,* 1.7 which pro∣ceed by Bill and Answer.
Plaintiff••s examined in actions of debt brought upon arrerages of accompt in cases of tryall by 12 they are discharged of the Oath that is in cases of tryall of their Peeres,* 1.8 in which they answer guilty or not guilty, only upon honour for in other tryals they have no part, but are exemp∣ted from being impanelled in Juries, Nisi eorum Sacramentum adeo sit neces∣sarium quod sine illis veritas inquiri non possit, and thence was it that some Barons under Edward th•• first of the Marches of
Wales refused to swear•• before the Iustices of Oyer and Terminer upon an Enquiry to be made by them,* 1.9 and others of certaine outrages committed by Cilbert of Clare, Earle of Gloucester, against Humphrey of Bohun Earle of Hereford and Sussex; those Barons were Jo••n de Hastings, John Fitz Raynold, Roger de Mortimer, Theobald of Weldon, John Troger, and ••efferey of Cam∣vill, to whom dictum est (as the Ro•• saith) ex parte Regis quod pro statu & ••ure Regis, & pro conservatione dignitatis Coron•• & pa∣cis sua apponit manum ad librum, ad facien∣dum id quod eis ex parte injungetur qui omnes unanimiter responderent, quod ipsi vel eorum antecessores hactenus in hujusmodi casu, ad praestandum Sacramentum aliquid coacti fu∣erunt.
And afterwards the Oath being offered them, they answered every one by them∣selves, quod nihil inde facerent sine conside∣ratione parium suorum.
IN the Courts of the Delegates in the 3 of E. 6,* 1.10 in the proceedings against Gardiner Bishop of Winchester, upon a spe∣ciall Commission from the King, the then L. Chancellor, and Marquesse of Northum. and the Earle of Wiltsh. and Bedfora, are ex∣amined only upon their honor or somtime upon alleageance or fidelity to God & the K. and this was upon the speciall priviledg of such persons, for both by the Civill Laws and Common, no testimony is taken regularly but upon Oath.
In Chancery in a Case between Jeffery and Jeffery,* 1.11 and in another between Bligh∣ton and Dantrey, Thomas Lord Buckehurst, under Queen Elizabeth; delivers his testi∣mony only upon honour.
In the Court of Chivalery under Rich. the 2,* 1.12 in the great Case between Sir Rich. Scroope appellant, and Sir Robert Gravenor defendant, touching matter of Armes, the Attestations taken by Commission from
John of Gaunt, the Earle of Darby, the E. of Northumberland, the Duke of Yorke, and the Earle of Arundell, are for ought ap∣peares without oath; for whereas others are sworne the Entry of their deposition is: (Pray and requests according to the right of Armes by the procurator of Ma∣ster Rich. Scroope, to testifie and say, &c.)
And amongst others the Earle of De∣vonshire was examined by Commission, by Iohn Kentwood, who in the returne of his Commission and the depositions certifies the Court, that hee had swore all the witnesses there being none of the Nobility but only the Earle in his returne, who was not sworne, but spake in the loyalty of his Chivalery.
But in the multitude of witnesses of this cause, divers Barons are sworn as the Lord Poynings, the Lord Scales, the Lord Gray, the Lord Ruthen, the Lord Basset. To e∣very of which names in the attestations is added (Sworn and Examined) And agreeable hereunto is the examination in the Case of Alice Pierce,* 1.13 in the beginning of Rich. the 2.
Barons answering to Bils as Defendants.
For Barons answering in Chancery as Defendants, are divers presidents of such their answers in the times of H. the 7, and
Henry the eight: but there are none of that time that cleeres it whether they were sworne or no; for the answers of that time, as also of the time following, till about the middle of Elizabeth or later, are fre∣quently filed without any Jurat. to them.
BVt under Queene Mary,* 1.14 in a suit by William Armer against Thomas Lord Wentworth, touching the Inheritance of Copy-holders in Stepney, the defendant presents in his answer with Master Sack∣fords hand to it, who was his Councell. (And on the upper part of his answer wher Iurat. is sometimes but rarely in that Age witten) These words are found, this an∣swer is made by councell and the Defen∣dant not sworne by order of Court.
Then in Queene Elizabeths time the Lord Dacres being Plaintiffe against the Lord Buckhurst, and Parker, and Manwood, these two defendants are sworne, but not the Lord Buckhurst.
And afterwards the Lord Buckhursts an∣swer is inscribed per traditionem Comitissae super honorem suum.* 1.15 So the Countesse of Northumberland: In virtute honoris sui ag∣novit responsionem suam esse veram: as the entry is upon her answer at that time.
* 1.16And in the Countesse of Rutlands case where she with Sir George Shaworth were Defendants about the later end of Queene Elizabeth, The Dedimus potestatem was to answer upon his Oath super Evangelia, as also a Dedimus towards the end of Queene Elizabeth,* 1.17 was directed to Roger Bromeley, and Richard upon the bill of com∣plaint of one Brooke against George Earle of Huntington to take his Oath super honorem,* 1.18 &c. About which time also the Lord Eure put in his answer super honorem only to the bill of John Barnes and Robert Talbois.
In other Courts as the Starr-chamber, and Court of Wards, it was questioned in Queene Elizabeths time whether Barons being Defendants, should put in their an∣swers upon Oath, and in the Court of Wards an Order was made in the Lord Mountagues case, that they should and that so the course should be henceforth constant.* 1.19 The like course hath beene held of late in the Starre-chamber, as also in the Eccl••sia∣sticall proceedings, and about the end of Queen Elizabeths time in Chancery, also the Lord Wharton by a compulsory order answered there upon Oath.* 1.20 And within these few dayes the Earle of Shrewsbury was ordered to answer upon Oath to one Revell being plaintife there, and divers
Noble men have beene sworne to their an∣swers in Chancery since the beginning of the King, and some in Queene Elizabeths time also,* 1.21 neither is the time of Queene Mary and Edward the sixt wholy without example, but the summe of all seemes this that according to the clayme of the Barons in 20. E. 1. they were not anciently till about the end of Queene Elizabeth, or the time of King James, and of our pre∣sent Soveraigne compellable to sweare to their answers, for the first compulsory or∣der falls in the 33. of Eliz. in the Court of Wards, but that some of them taking no advantage of their priviledges in this case, voluntarily tooke the Oath, and others standing upon their ancient right, put it in onely upon honour, as also we see in that case of Gravenor and Scroope, and Alice Pierce under Richard the first, for it were not a speciall Priviledge it will fall out, that in all the Examples where they were not sworne, the Iudges committed great Injustice in receiving their answers, and depositions without oath, if they had not beene subject by compulsion to an o••th, no otherwise then if a Iudge of the Common Law should admit evidence given to a Iu∣ry, or take a verdict without Oath which were not excusable. And a few examples
of giving in their answer without Oath, upon this reason are of great weight a∣gainst many that shewed that they were voluntary sworne, and these orders which were compulsory, are of so late time, and of so weak power, that they cannot at all take any right from the Baronage which was before setled in them.
BY the Statute of 5. Henry 4. cap. 8. In actions of debt upon Arrerages of ac∣counts,* 1.22 the Iudges have power to examine the Attourney of the Plaintife, or whom they please, & this examination was meant, and hath beene practised upon Oath, yet in action brought by the Lady of Abergaven∣ny, being a Baronesse against another in the time of Henry the sixt: when the Coun∣sell of the Defendant desired that the plain∣tife might be examined, Cockanie the Iu∣stice said that they should not doe well to make her being a Baronesse, come to be ex∣amined. And how ever the Statute were
generall for high as well as low (as the words of the bookes are) yet hee saith the Law will bee otherwise, and different be∣tweene another common person.
IN the forme of swearing the promissory Oath,* 1.23 a difference hath been amongst the Barons of Parliament, the Temporall Ba∣rons under Henry the 7. sweare with their hand upon the Booke, the Spirituall with their hand upon their breast, first the one tactis the other vis••s Evangeliis: Anciently this Oath was taken by the Lords in the house upon the Arch-Bishops crosse. To this day the Spirituall Lords have chal∣lenged it,* 1.24 & sometimes have used to sweare visis onely as a thing to be done by the pri∣viledge of the Church. But there is the Testimony that shewes, that all the Bi∣shops in a provinciall Synode did sweare here their Iuramentum corporale which is tactis & howsoever if it be a priviledge of Nobility in some other States or of Gentry to depose by writing without a corporall oath, as in Bohemia, Austria Bavier &c. yet there
is no sufficient certainty, with us for a•• establisht difference of forme in swearing.
* 1.25IN all cases of Treason or felony, or mis∣prision of either of these offences, a Tem∣porall Lord of Parliament is to bee tryed only by his Peeres, if arraigned by indite∣ment per Judicium parium suorum, or of 12. or more Temporall Barons of Parliament. This holds as well in all cases made Trea∣son or Felony by Statute,* 1.26 as received anci∣ently to be so by the Common Law, as Iu∣stice Stamford expressely affirmeth, although usually in Statutes which make Treason or Felony a speciall clause bee inserted for Peeres to be tryed by their Peeres, as also to the now tryall where perhaps more need was of such a clause,* 1.27 upon the Statute of remainder made for tryall of offences committed by the English in Scotland; It is added that if the Offender bee a Peere of the Realme, then his tryall shall bee by his Peeres; And this is cleere for all Tempo∣rall
Barons and their Ladies; but it hath beene doubted whether the same Law bee in case of tryall of spirituall Barons or no, and without doubt one speciall Argument among others hath beene made from the name of Peeres some concluding thus: Spirituall Barons are no Peeres:* 1.28 therefore not to be tryed by their Peeres, others for the other part thus, Spirituall Barons are Peers therefore to be tryed by their Peeres, but of these two Arguments, the first is false in matter, the second in forme.
For the first it is true and plaine, that Spirituall Lords have beene Peeres, and of the antecedent false: the Testimonies ju∣stifying them to have beene, so are very fre∣quent in the Bish: of Winchesters case, who departed from the Parliament at Salisbury, about the beginning of Edward the third: and was questioned for it afterwards in the Kings Bench, hee pleaded to the Declaration: Quod ipse est unus ê paribus Regni & Praelatus &c. and in that short di∣sputation of the case which is lest in the the yeare bookes,* 1.29 hee is supposed cleerely both by the Court and Councell to bee a Peere. So afterwards under the same King, in a Writ of Wards brought against the Bi∣shop of London, he pleaded to issue and the Defendant could not have day of grace, for
he said as the words of the booke are) that a Bishop is a Peere of the Land.* 1.30 Et haec erat causa &c. And in a like case upon an Acti∣on of trespasse against the Abbot of Abyn∣don who was one of the Lords Spirituall,* 1.31 day of Grace was denyed against him, be∣cause he was Peere de la terre. So expresse∣ly upon the Question of having a Knight returned into a Jury where a Bishop was Defendant in a quare impedit,* 1.32 the rule of the Court was that it ought to bee so, be∣cause the Bishop was a Peere of the Realme. So the Iudgement given against the Bishop of Norwich in the time of Richard the second, hee is in the roll ex∣pressely allowed to bee a Peere, for hee had tooke eeceptions that some things had passed against him without assent or knowledge of his Peeres of the Realme. To which exception the answer was, It behooves you not at all to touch your Prelate of onely certaine misprisi∣sions, which you as a Souldier of the King, &c. have done and committed, &c. Here is to be avoided that challenge of Stafford, Arch-Bishop of Canterbury un∣der Edward the third, when upon his being excluded the Parliament, he thus challeng∣ed his place. Ego tanquam major par Regni post Regem vocem habeus Jure Ecclesiae mea
tantum vendico & ideo ingressum in Parlia∣mento peto, the same is justified by the Clergy touching their Ius paritatis before recited at large and entered in the Parlia∣ment roll. And in the Assignement of the Errours under Henry the fifth, for the reversall of the Attayndor of the Earle of Salisbury, one errour is assigned that Iudgement was given without assents of the Prelates which were Peeres in Par∣liament, and that although that were ad∣judged to bee no errour, yet it hath been allowed cleerely in the roll, and the Pe∣tition that they were Peeres.* 1.33 So in an Act of Parliament under the same King, the Bishops and Arch-Bishops, and Arch-Bishops of Ireland, are called Peers of that Kingdome, and divers other pas∣sages occurre touching this name of Pre∣late, neither could any scruple bee further made of it, untill the passing of an Act of this Parliament. 17. Car. 1641.
But as this is cleere that they were Peeres, so also it is cleere that they were not by the lay to bee tryed, as Temporall Barons by their Peeres, and the conclusion of the contrary drawn (as before) out of that that they have been Peers, is wholy without consequence, this having been a point of the common
Law, as it is distinguished from Acts of Parliament, which falls out generally to bee onely the knowne and received cu∣stome within the Kingdome, if the pra∣ctise and custome within the King∣dome be therein observed, the point of Law may bee soone resolved. In the practises and customes divers Bishops are found to have beene arraigned, and legally tryed upon Capitall offences, yet all that have beene so, have had their Triall onely by common Iuries, and whether by Statute any alteration bee of this common Law shall presently be ex∣amined, there being many Bishops now to be tryed.
THat practise and Custome appeareth in particular examples found from the time of Edward the second to the age next before us thus collected;* 1.34 Adam Bishop of Hereford under Edward the second, was indicted of divers Felonies, and of joyning with Roger Mortimer, hee is ar∣raigned in the Kings Bench: and upon question how hee will be tryed, he saith: Quòd ipse est Episcopus Heref. ad volun∣tatem Dei, & summi Pontificis, & quòd materia praedicta Articulorum sibi imposit. adeò ardua est quod ipse non debet in Curia sic super praedictis sibi impositis respondere,
nec inde responders potest absque offensu divino & sanctae Ecclesiae: Hereupon day is given over, and then the Inditement is brought into the Parliament, where∣upon his arraignment, hee give•• the like answer, and Walter Arch-Bishop of Canterbury petit eum, & ei liberatur, and this is commanded that hee have him ready at a certaine day in the Kings Bench. Et praeceptum est vicecomiti He∣reford. quòd venire faciat coram Domino Rege tot & tales &c. ad inquirend. prout moris est &c. And a common Iury is re∣turned which finds the Bishop guilty, whereupon hee is committed to the Arch-Bishop and convict, and his Lands and goods are seised into the KINGS hands.
Here was the Bishop tryed by a com∣mon Iury, although it appear••s both in the Record, and in the History of that time, that the whole Clergy earnestly indeavou••ed to have kept him from con∣viction,* 1.35 but no pretence of any right of Tryall by Peeres is once mentioned in this behalfe, though other complaints are full enough expressed against the whol•• proceedings.
* 1.36VNder Edward the third Iohn de Isle brother to Thomas Hen, Bishop of Ely, was indi••ed in Huntingtonshire; that he with divers others per assensum, & procurationem Episcop. 28. E. 3. die Lunae post festam Sancti Iacobi, burnt the house of the Lady Wake at Colne, by Sommer∣sham, & quòd praedictus Thomas Episco∣pus sciens praedictam combustionem per prae∣dict. servientes suos esse factam dictos ser∣vientes apud Somersham postea receptavit, &c. And also it was found before the Sheriffe and Coroner that 29 Edward the third, ••he Bishop was guilty de assensu of the murther of one William Holme, slaine by Ralph Carelesse and Walter Rip∣ton called little Watt, upon malice con∣ceived against Holme, because hee fol∣lowed the suit of the Lady Wake, the principalls were attainted by Outlary, the Bishop was arraigned, and upon question how hee would bee tried dice∣bat quòd ille est membrum Dom. Papae, & quòd ipse ab ordinario suo viz. venerabili patre Domino Simono Archiepiscopo Can∣terburi. Angli•• primat. respondere non po∣test. Et super hoc idem Archiepiscopus pra∣sens hic in Curia petit, quòd dictus Episcopus Eliensis de feloniis pr••dict. sibi impositis hic
coram laico Iudice, non cogatur respondere, & ut sciatur inde rei veritas per inquisitionem pa∣triae &c. praecept est vicecomiti Huntingdon, quòd venire faciat coram Dom rege in Octab: sancti Mich. &c. ubicun{que} &c. 24, de Iust. de Somersham & idem dies datus est Episc, &c. Ad quem diem coram Domino rege venit prae∣dict. Episc in propria persona & similitèr Iu∣rat. veniunt qui elect••, tricati, jurati & onera∣ti, si idem Episc de assensu pr••dictorum Rand. & Walter. & de recept. eorundem sit culpabi∣lis, nec non dicunt super sacramentum suum quod idem Episc est in nullo culpabilis, sed di∣cunt quod idem Episc. post feloniam receptavit ip••os apud Somersham, sciens ipsos feloniam fe∣cisse. Ideo inquiratur de bonis, catallis, Terris & tenementis &c. Et super hoc praedictus Ar∣chiepisc. presens in curia petit ipsum tanquam membrum Ecclesiae sibi liberari, & ei liberatur oustodiend. prout decet, and Writs were sent out to the Sherifes of all Shires where hee had goods or Lands to certifie them for the Kings benefit, and in this Record it is observable that the Iurors were tried, which proves, that the Bishop had his challenges to them at his tryall.
About the beginning of Henry the fourth, Thomas Merke Bishop of Car∣lisle was indited of Treason before Tho∣mas Earle of Warwick, and other Iustices
of Oyer and Terminer in Middlesex, the Bishop standing before committed to the Tower for the same offence. Et hoc Justi∣ciar. praedict. recognit. mandatum est con∣stabulario Turris praedict. vel ejus locum te∣nenti quod corpus ejusdem Episcop. habeant, vel alter eorum habeat coram praefatis Iu∣sticiariis apud Turrim praedictam die Mer∣curii ex tunc proximo sequente ad re∣spondendum Domino Regi de proditioni∣bus &c. And the precept est vicecomiti Lon∣don, quod tunc venire faciat coram prae∣fat. Iusticiar. apud Turrim praedict. tam Aldermannos & cives quam alios probos homines de vicineto Warder. praedict. 1. Baynards Castle & Dougate qui praefat. Episc. nulla affinitate attingunt ad facien∣dam tunc ibidem deliberationem de dicto Episcopo prout moris est secundum legem Regni Angliae ad quem diem & locum, the Bishop is brought before them, and a Writ comes from the King to the said Iustices reciting that licet in statuto apud Westminsterium nuper edito inter caetera continetur quòd nullus Archiepiscopus, nec Episcopus coram Iusticiar. nostris oc∣casione alicujus criminis impetatur absque speciali praecepto nostro quousque aliud re∣medium inde foret ordinatum de advisamen∣te tamen consilii nostri vobis mandamus
quòd si aliqui Archiepiscopi, vel Episcop. coram vobis impetiti vel judicati existunt, tunc ad deliberationem ipsorum procedatis prout de Jure & secundum legem Regni no∣stri Angliae fore videritis faciendum, sta∣tuto praedicto non obstante, I este me ipso apud Westminsterium 28. die Januar. Anno Reg∣ni nostri primo.
THis Writ being read in the Court, the Bishop was demanded how he would be ••ried, Hee first stands upon the pri∣viledge of the Church, to whom the Iu∣stices reply that the offence was so high, that hee must answer them with prote∣station of saving the Liberties of the Church, hee pleads not guilty. Et inde de bono & malo ponit se super patriam, in∣de fiat inde Iurat, hoc instante die &c. The Iury findes him guilty, but the Iu∣stices being not advised of their Iudge∣ment, returne him to prison, the Record was afterward removed in the Kings Bench, and the Bishop renders him∣selfe to the prison of the Marshallsea; and then being asked if hee had any thing to shew, why Iudgement should not bee given on him hee pleades his pardon, and it is allowed him.
To these presidents a Learned Iudge
in Queene Maries Time saith di∣vers were agreeable.* 1.37 Among which are specially to bee accounted those of the Bi∣shop of Rochester in the time of Henry the eight, and of Cramner Arch-Bishop of Canterbury under Queene Mary both tryed by common Iuries:* 1.38 neither is there any example extant from the first memory of a legall tryall of Bishops which is under Edward the second, that testifi∣eth any Tryall by Peeres belonging to a Bishop, and accordingly hitherto it was taken cleerely by that learned Iudge of Queene Marie's time,* 1.39 that no ancient Statute speaking of tryall by Peeres, hath beene put in ure to extend to a Bishop, or Abbot, although they enjoy the name of Lords of the Parliament, for they have (as the words are) this name of Bi∣shop or Abbot ratione Officii being not chosen in Parliament in respect of their Nobility, but in respect of their possessi∣ons the ancient Baronies annexed to their Dignities according to which there are divers Presidents, whereof one was in the time of H. the 8. where also it is as judici∣ously & modestly affirmed by a most lear∣ned man of this Kingdom that the spiritu∣all Lords enjoy all legall priviledges, as the temporall Barons do saving only this try∣all by Peeres.* 1.40
That which may be here objected out of the Statute of the grand Charter wher∣in every man ought to be tried by his Peeres, id est, Juditium Parium suorum, or out of the Statute of 25. E. 3. by which all treasons are to bee tried by men of the same condition, of which the offender is, may easily be answered; for both these an∣ceint Statutes are now to be interpreted, as it is clerely taken in continuall practise, and in the books according to the known use of the legall proceedings, and not by li∣terall interpretation of the words, as it is plainly seene in both of them: For all Gentlemen, Esquires, Knights, Batchellors and Bannerets, and at this day Bannerets are accounted Peeres,* 1.41 not only amongst themselves, but also to all other men of the lowest condition which yet cannot be out of the force of the word, only the like ap∣peareth in that non amercientur Comites, vel Barones, nisi per pares suos. And it is shewed in the title of Amerciaments, wherein that which the Statute referres to Peeres is done so by Iudges. And this of Bishops referreth to those Statutes is only to be adjudged according to use and pra∣ctise, which is the best interpreter of the Statutes and not by the meere Interpreta∣tion of the word Peeres.
* 1.42And it is most likely that if any such right had anciently belonged to them, not only they themselves, but the temporall Baronage under H. 6. protesteth by the mouth of Viscount Beaumont for their tri∣all by Peeres, when William de la Poole put himselfe upon the King and not on his Peeres, in such sort as those Bishops put themselves on the Pope, and not upon any legall Triall.
But one particular case is here to be ad∣ded touching this right singled by it selfe,* 1.43 that is, Triall by Peeres upon the third of∣fence against the Statute of Service and Sa∣craments, under Queen Elizabeth, for the known triall by Peeres, is in cases of trea∣sons or misprisions, or one of them. And triall by Peeres saved to the Baronage in the Statute of new treason of felony hath reference only to the known use of such triall, so that in those new treasons, or fe∣lonies, such as for other offences, which were before treason or felony, were to be tried by their Peeres, are likewise (and none else) to be tried by their Peeres for new treasons or felonies, and therein the Spirituall Lords are equally excluded. But this of the third offence, against that Sta∣tute, is neither treason, felony nor mispri∣sion, but a Trespasse, punished only by for∣feiture
of goods, and perpetuall imprison∣ment. In which Case this act saith with∣out reference to the use of triall by Peeres, as it is usually expressed in other Statutes, that all and singular Lords of the Parlia∣ment for the third offence shall be tried by their Peeres.
IF any person shall divulg false Tales of any of the Lords of Parliament, by which dissention may bee betwixt the Commons and them, the offender is to be imprisoned untill hee bring forth the Au∣thor, but this also is communicated to the grea••er Officers of the Kingdom.
THe course of the Chancery is, and of the late Starcham. was that the Chan∣cellor
writes to the Lords of Parliament, and sends out Subpoena's and usually his letters are prayed in the Bils that are exhi∣bited against them.
But whether upon a Barons not appea∣ring on a Subpoena, an attachement may be awarded hath been a question, neither do I find it cleerely resolved otherwise than that in later times, the practise is, that it may: but in the time of Queen Elizabeth, in a suit between Tavernor and the Lord Cromwell the defendant disobeying an In∣junction in the Chancery, it was questio∣ned what course should bee taken against him,* 1.44 and upon good and deliberate advice taken by the Court, having the opinion of some of the Iudges herein, an attach∣ment was awarded to the Sheriffe of Nor∣folke and returned so and the Sheriffe had his costs for bringing him. This attach∣ment was awarded in Michaelmas Terme and in Hillary Terme he was returned so, but afterwards there being a Parliament began in May, and ended in June; the Lord Chancellor complained of it, and it was pretended that it was gotten in Court, in the absence of the Lord Chancel∣lor, and advice was had with Councell, and Iudges, and it appeares not (as the words of the Iournall booke are) that by
the Common Law or by any presidents of the said Court of Chancery,* 1.45 it was war∣ranted that the person of any Lord having place and voyce in parliament (in the like case) in the said Court of Chancery before this time had been attached, and therfore they took it to be against the priviledges of the Lords of this Kingdom, and he was discharged.
But for that of attachment upon Sub∣poenas,* 1.46 and in the course of proceeding a∣gainst noble men by such Writs or Bils as are used in the Exchequer, Chancery or elsewhere, it is not likely that any certain, Course of ancient Common Law, or pro∣ceeding in equity can be found to justifie it at all either against them or any other persons beyond the time of R. 2. under whom John Waltham, Bishop of Salisbury, and Chancellor of England brought in the Writs of Subpoena, & caeteris de causis, in the Chancery and the Exchequer, by ex∣ample whereof other Courts have used them, against which the Commons passed a Bill in Parliament under Henry the fift, but the King would not give assent to it. The like is found under Henry the sixt, and Henry the fourth.
BY the Statute of Pluralities, every Arch-bishop may have eight Chap∣laines that may take dispensations for a plurality, but for the plenty of Schollers of good ability in Arts and Learning, it is like the Law in these points will be alte∣red, that they all have and none want con∣venient benefice.
A Baron of the Parliament may keepe six strangers borne out of the Kings obeysance at one time, whereas another man may retaine not above foure.
VNder Edw. the sixt, a priviledge was given to the Nobility, that in all cases where a common person, as a Clerke con∣vict shall and may have benefit of his Cler∣gy, and in all cases where priviledge of Clergy is restrained, or taken away by that Statute except in willfull murder, that is, Burglary, Robbery, by or neere the high∣way, stealing of Horses, and Sacriledge; a Lord of the Parliament and Peere of the Realme should at the first offence, only of common grace without prayer have bene∣fit
of the Clergy, and stand as a Clerke convict to make purgation, although hee cannot read.
* 1.47But as Stamford notes in all other cases, in which Clergy is taken away since that Act. A Baron of the Parliament is in the same case as any other common person is; And by Acts made since, it was taken away generally.
1 For stealing of Horses, 1. E. 6. cap. 33.
2 Robbing in dwelling houses, &c. in or neere the high way, 5. E 6. c. 9.
3 Burning of Houses or Barnes, pety treason, 5 Phil & Mar. c. 4.
4 Stealing of 5 s. in any dwelling house or any place adjoyning, 39. Eliz. cap. 15.
5 Stealing of 12 d. or more without the knowledge of the person, &c. 8. Eliz. cap. 4.
6 Burglary and Rape, 16. Eliz, cap. 7.
7 Killing one that hath no weapon drawn, 1 Jac. cap. 9.
QVicun{que} Archiepiscopus Comes vel Ba∣ro veniens ad nos, per mandatum nostrū transiret per forestam nostram liceat ei capere unam bestiam vel duas, per visum Forestarii si presens fuerit, sin autem faciat cornare, ne videatur hoc furtim facere, hoc liceat eis re∣deundo facere sicut praedict est: and this hath been interpreted to the comming of a Lord by summons to the Parl. by proces out of the Chancery, Kings bench or otherwise, where the returne is Coram Rege.
IN case of Amerciaments of Barons of Parliament upon nonsuits, or other Iudgments, ending in misericordia, there is a speciall course, both for the summe and the way of assertaining of it, which differs
from the Amerciaments of cōmon persons.
* 1.48For the summe, the Amerciaments of an Earle, or Spirituall, or Temporall Baron is equall, that is, 5 l. of a Duke, 10 l. and the sessing of this is by the Kings Iustices, be∣fore whom the action dependeth. The Iu∣stices in this place supplying the roome of Peeres, by which according to th•• grand Charter they are to be amercied, as expr••s∣sly it is affirmed in the Iudgement under H. 6. against the Earle of Northumberland, where the words of the Iustices are, Inso∣much as an Earle is a Peere of the Re••lme,* 1.49 he shall be amercied by his Peeres, accord∣ing to the Statute▪ and therefore we put not the Amerciament i•• ce••taine.
And thence and thus is the grand Char∣ter to bee understood that saith,* 1.50 C••mites & Barones non amer••ientur, nisi per Pares suos, but continuall usage hath thus (as be∣fore is shewed) interpreted that priviledg and so hath the practise been, and thence was it under E. 2. a writ was directed to the Iustices of the Common pleas that they should not amerce the Abb••t of Crowland, tanquam Baro,* 1.51 because he did not hold per Baroniam, aut partem Baroniae.
For this of Amerciament while there were no other Titles of greater Nobility but Earle and Baron, which was in the
time of E. 3. who created the first Duke in England, as Rich. the 2. the first Marquesse; and H. 6. the first Viscount. And the Amer∣ciaments of the Lords of the Parl. were all at 5 l. whence also is generally so affirmed in the Statutes of Ireland under H. the sixt, that every Lord that is called L. of Parl. in all places aswell personall as reall, in which amerciaments do ly, shall be amercied at 100 s. But when other dignities were made, and it seemes according to the pro∣portion of the releifes, paied by those new dignities, for a Duke is to be amercied at double the summe of an Earle that is 10 l. as his reliefe is double, which is 20.
NO baron of the Parliament or Ba∣ronesse is to be arrested by Capias up∣on action of debt, account,* 1.52 trespasse or the like, but they are to be distrained only and pay issues, retorned for an apparance. The reason of this was anciently, because the
Capias in such Cases, goes out only upon nihil habet, retorned by the Sheriffe which could not be for a Baron who was ever to be supposed to be seised of his Barony, by which he might be distrained and lose issues. Although the reason failes now in those that have not more than the names alone of their Baronies, yet the same Law still remaines, but this limited to actions between party and party, and party for in cases of rescues, felonies, or the like, where the offence is immediatly to the King, A Capias lies against a Baron of the Parl.
And it is as other priviledges which are legal in England, limited also to the Barons of the Parl. of England, for it appeares un∣der R. 2. that in an action of debt, a Capias was awarded against the Countesse of Or∣mond, being one Irish Baronesse, and parti∣cipating of her husbands dignities as our Ladies in Eng. neither can a Baron of Ire∣land be tried here by the Peeres of Eng. for they are not his Peers, no more than the L. Zanchar might being a Baron of Scotland, who was indicted and arraigned only by the name of Rob. Creighton Esquier and up∣on this reason, that he was no Baron of Parl. tried by a common Iury. Thence it is also that an Earle, Baron, or Duke of France comming into Engl. by the Kings
safe conduct shall not in any legall procee∣dings be stiled so, as appeares in the time of Edw. the 1. in the case of the E. of Rich∣mond, being then Duke of Brittaine, and in the case of Sir John Douglasse under Edw. the 4. And the reason why S. Gilbert Hum∣fravill,* 1.53 in the time of Edw. the 3. was legal∣ly to have his title in writs of Earle of An∣guish, was because that in that age the E. of Anguish by that name was L. of the Parl. as it is expresly noted in our year-books.
And this difference it seemes hath beene here between Temporall dignities, and Spirituall, that in regard the temporall State of England was ever held as severed and distant from other States, not at all communicating with them in civill go∣vernment. Therefore forraigne dignities which are of the Civill part of States, had no respect given them as appeares in the examples already brought.
But on the other side in dignities Spiri∣tuall, because there was anciently through Christendome supposed an unity in the Church. So that England with forraigne Nations, and they with England (as mem∣be••s of one body had a mutuall reference to each others Countrey) was legally va∣lued, as Bishops in England,* 1.54 as may be seen in that case of the Bishop of V••recht (for
this is the right Name, though it be prin∣ted Vrston) under E. the 3. where being made Bishop of Vtretcht makes a Prebend of England So the Title of Cardinall was usually given in legall proceedings to such as had that dignity in England, whence al∣so the Archbishop of Raguse being parson of a Benefice in the Bishoprick of Carliste,* 1.55 under King John was (it seemes) to have been accounted here also an Archbishop for dignity, though not for Iurisdiction.
IN every Iury impannelled between any Baron of Parl. and other person what∣soever, one Knight at the least is to be re∣turned, which failing the array may bee quashed by challenge: A testimony hereof aswell for spirituall as temporall Barons is frequent.
* 1.57IF a Baron of the Parl. be plaintif or de∣fendant in any action, and the plaintife
or defendant pray a day of grace, he shall not have it against him, and this is expres∣ly affirmed in the books.
O•• late years it was agreed in the case of Gilbert Earle of Shrewsbury that whereas the office of Steward-ship was granted to the Earle of Rutland,* 1.58 without givi••g power to make a deputy (and this by Q. Eli••abeth) that ••et he might exercise the same Office by Deputy, by reason of the n••c••ssity that is supposed in the lawe to be of the Ea••l••s attendanc•• upon the King and the Gov••rnment of the King∣dome, the same reason is it seemes for all Barons.
17 Johan. reg p. 35 41 H. 1. Idem pag 1395. & 1315.3. H. Ro. Parl.
Rot. Parl. 7 ••t 8. H. 4. M 4. art. 66: & H. 4. rot. Parl. 39. ••tat. 21. R. ••. c. 3. & 4.
Rot. Parl 1 M. 7. Parl. 1 an. 14 art. •• 5.
Dyer, 15. H ••. Parl. Stat. Jac. 14. & 7. ••ap. 6.
Stat. 15. E∣liz. c. 4. vel. 1
Lib 5. c. de Essoniis, c. 2. & 3. &c 9 fo. 281.
1 Henry 4. fol. 1. a 10. E 4 fo. 6. H. 8. fol. 12. a Stamford, lib. 3. Cap. 1. Cooke, Liber 3. fol. 30.6.
48. E. 3. fo. 30.16. lib. Ass. 35. H. 6.46. a. 22. E 3 fo. 18. a 27. H. 8. fo. 22. Cook ••ib. 6 fo. 53.
Regist. orig f. 179. b. Fitz. Nat. bre. f. 165. eodem Parl. in arce London 20. E. 1 Coram Rege, Ret re••ep. Scac∣carii.
Art. in f••ro deleg. 1550
Mich. 12: Eliz in ar Cur. apud Examinar.
Ro. pro. 10 R. 2. & 10. in ar. Lond
Ro••. Parl. •• R. 2. art. 41:
2••. R 3. & M. & fasce in Sacello••.
18. Iunii Mich. 31. & 32. Eliz.
32. Eliz.
44. Eliz.
7 Sept. Mr. 42. & 4••. Eliz.
40 El••z apud Tot∣hill.
O••do 10. lib. 10. Ja••. in Chanc.
Mic. 4. Iac. Mic. Winton 5. Com.
Pemb. Pas. 6. Com.
sinc. Hill. 7. Com Dor∣set. & Do∣minus Rus∣sel Pas. 5. Jac. Hough••on 1. Eliz.
Butter vers Dom. mordant M. 13. & 13 Eliz.
Campz. v. Com. Bed∣fo••d-Mich. 21.22. Eliz. ibidem But∣vers Dom. Rich. Hill. 4. Viscount. Mountag: &c. H. 3. & 4.
3. H. 6. fol. 43. & 44.
Rot. parl. 1 H. 7. part. 1. M. 14. M. 15. parl. 15. E. 3. N. 43 Circa E. ••. de Templo in Anonimi Chron.
Gal. observ. prac. 100. fol. 22.
Not in Appeales 10. Eliz. 4. b. lib. in tract tit. appeale de mort. 7. Stamf. &c.
1 H 4.1. an. 10.4.6.13 E. 4.12. an. Stamf. lib. 3 cap. 1. Cooke lib. 9 fol. 30. b.
stat. 4. Iac. cap. 1.
stat. 20. H. 6 cap. 9. Cook. lib. 6. fo. 52. b.
Pas. 3. E. 3 c••ram rege Rot. 9. Rep.
3 E. 3 fo. 186 p••: 28.
13. E. 3. tit. Enquest. 43 tit. chal∣lenge.
Plowden Com pl. 117 & ve. Hill. 8. E. 3. Ro••. 23. coram Rege.
Stat. 4. H. 5 ca 6.33. H. 8. Try∣al 141.
Hill 17. E. 2. Rot. 87. Dorse coram Rege & Rot. Rom. m. 6.
Thomas Walsingha•• fol. 199. Transert.
T••i. 30. E. 3. Rot. 11. Rep.
••tamf. lib. ••. fol. 133.
••empore ••. 8. pro Triall 142.
••tamf. lib. ••. pag. 135.
••ambd. in ••••rdi Angl.
1 Mar. Dyer fo. 986. Hol∣lenshead Cron. fo. 1749. Sur∣pleis. case. Coo. fo 40.5
Parl. 28. H. 6.
Stat. 1. E∣liz. c. 1.
Laurence Iennius li. 2 a Cromp. Iuris••. f. 33.
Dyer, Par••. Iun 14. Eli. & Dyer fo. 314. & 315
Rot. Parl. 3. H. ••. parl. 1. M. 2. N. 46. Rot. Parl. 15. H. 6. N. 25. & Parl. 2 H. 2 art: 69.
Parl. Cor. lib. 2. fo. 130. a.
38 E. 3 fol. 3••. a. 24. ••. ••. f. ••1 b. 1. H 6.7a 9. H 6 f. 2 b 19. E. •• f 9 a. 21. E. 4. f. 77 b.
C. 4: li. 3. De Cor c. 1. fol. 116. b.
Claul. 15. E. 2. m. 12.
11. H. 14. a. Cooke lib. 6. fol. 52. b. 27 H. 8 f. 7. a. 14. a. 22. b. 29. Ass. Pl. 33 14. Eliz. Dyer. fol. 315. Trin. 1•• Hen. 4. Rot. 8. Coram Rege Cromw. libr. Introt & tit. Error. utiary 20.13. R. 2. tit. retorn del. vîc. 74.10. H. 4. tit. process. 44.198.1. H. 5. fol. 22. b. v. Ass. 21. ••. 3 fol. 59. b.
39. Eli. f. 35. b & Claus. 39. E. 3. m. 2
19. E. 3. tit. Trial 57▪
Extra. tit. derenuntia. cap. 9. ad Supplicatio∣nem.
13. E, 3. tit. challeng. 115 & tit. En∣quest. 43. Ploud. Com. l. 117. & 1 & 2 Phil. & Mar. Dyer f. 107 63. & 4. •• l. idem f. 208 ••. 27. H. 8.••••. b.
12. E. 3. f. 9. ••. 27. E. 3. f. ••8. b. 27. H ••. f. 22. b.
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