AS the Royal Power and Sovereignty of the King of England is a repleat compacted Body, and impartible; even so the Attributes thereof are (as Jurists speak) so indivisible in themselves, so naturally and intrinsecally inherent in the Crown, that they cannot be made away, or in such manner commu­nicated to the Subject, as to divest himself of them, to the lessening Sovereign Majesty; yet by Trust, and De­legate Power, the Executive Part may be transferred to others, to ease him of a trouble some Burthen.

Now among those several Ministers, or Officers of Law, that are by His Most Excellent Majesty substituted to ease him of Labour, (but not to deprive him of Po­wer) the Lord High-Steward of England is one of the first Magnitude; the Nature of whose Office will the better be understood, by insisting upon, (in my way to a more direct Application to the substance of the Title, and Design in hand) the Heads or Particulars following, viz [Page 4]

• 1. The Etymology of the words, (Steward and Se­neschallns.)
• 2. His Lordships Stile, and the Antiquity of his Office,
• 3. How this great Office was formerly holden, and how at this time?
• 4. The Extent of his Jurisdiction and Power, and the Rules he ought to judge by.

For the derivation of the words Steward and Sene­schallus, Cok. Litt. 61. a. some say the first is derived of Stewe, i. e. a Place, and Ward which signifieth a Keeper Warden, or Governour.

Others say that it comes from Steda a Saxou word, which signifies a place also,Lib. 9. Le Coun­ter de Sa­lop's 48. b. and Ward, as it were the Keeper or Governour of that place: tis a word divers­ly used in this Kingdom; In the first acception, 'tis taken for the Lord High-Steward, out of which Magistracy, lower Officers have their rise; Senechal de l' Hostel de Roy, the Steward of the Kings most Honourable Houshold, Anno 24. H. 8. c. 13. whose Title was changed to that of Great Master, Plomd. Com. f. 152 Anno 32 H. 8. c. 39. but this Stat. was repealed by that of 1 Mar. 2 Parl. c. 4. and the Office of the Lord Steward revived.

There is also a Steward of the Marshalsea, Anno 33 H. 8. c. 12. and likewise a Steward of a Mannor, whom Fleta fully describes.Lib. 2. c. 71. To be short, this Word is of so great diversity, that there is no Corporation of any Ac­count, or House of any Honour, through the Realm, but it shall have an Officer belonging to it of this Name.

But I proceed to the Word Seneschallus. Minshae­us.

Seneschal is a French Word, the Italians call it Senis­calco, dict. a Schalk, i. e. Servus aut Officialis & gesind, i. e. familia; but here 'tis taken for the High-Steward of England.

Some derive it of Scin, a House or Place, and Schale an Officer; others say Sen is an ancient word for Ju­stice, so that most naturally it signifies Officiarius Justi­tia, and this agreeth well with his Authority and Du­ty, to proceed secundum Leges & consu [...]tudinis Angliae.

In the next place, I am to consider his Lordships Stile, which in Latin is Seneschallus Angliae, and his Court is Intituled, Placita Coronae coram Seneschallo Angliae; and when he sitteth by force of his Office, he sitteth under a Cloth of Estate, and such as direct themselves to him, say,Co. 4. Inst. 59. Please your Grace, my Lod High-Steward of Eng­land.

As to the Antiquity of the Office, 'tis very ancient, and was before the Conquest: For Sir Ed. Coke tells us, that he himself hath read an Authentical Manuscript, intituled, Authoritas Seneschalli Anglia; which putting an Example of his Authority, saith, Sicut accidit God­wino, Comiti Kanciae, tempore Regis Edwardi, Antecesso­ris Willielmi Ducis Normandiae, pro hujusmodi male ge­stis, & consiliis suis, per Seneschallum Angliae adjudicatus, & fortis fecit Comitivam suam. In the time of William the Conquerour, William Fitz-Eustace was Steward of England.

Next come we to consider, how this Great Office was formerly holden, and how at this time.

This Magistracy was formerly of Inheritance, and belonged to the Earldome of Leicester, as appeareth by a Record produced by Sir Ed. Coke; Seneschalcia Angliae pertinet ad Comitivam de Leicester, & pertinuit ab an­tiquo.

Other Records testifie, that it belong'd to the Barony of Hinckley; and my Lord Coke tells us; that in the Reign of William Rufus, and H. 1. Hagh Grant semenel, Baron of Hinckley, held that Barony by the said Office; [Page 6]so that there seems a diversity between these Records; but we shall reconcile it thus: Hinckley was parcel of the Possessions of the E. of Leicester; for Robert Bella­mont, E. of Leicester, in the Reign of H. 2. married with Petronil, Daughter and Heir of the said Hugh Grantsemenel, Baron of Hinckley, and Lord Steward of England; and so it continued, till by the forfeiture of Simon Montford it came to King H. 3. who in the fiftieth year of his Reign created Edmond his second Son Earl of Leicester, Baron of Hinckley, and High-Steward of England; which continued in his Line, until Henry of Bullingbrook, Son and Heir of John of Gaunt, Duke of Lancaster, who was the last that had any Estate of Inhe­ritance in the Office of the Steward of England.

Since the time of H. of Bullingbrook, this great Office was never granted to any Subject, but only hac Vice: and the reason was, for that the Power of this Officer is so transcendent, that it was not holden fit to be in a­ny Subjects hands: For a Record saith, Et sciendum est quod ej us Officium est supervidere & regnare sub Rege, & immediate post Regem totum Regnum Angliae, & omnes Ministros Legum infra idem Regnum, temporibus pacis & guerrarum, &c. and proceedeth particularly with di­vers high Powers and Authorities.

It is a Place of that Transcendency and Heighth,Ephori [...] Magistra­tus quidam Lacedemo­niorum op­positi Regi­bus, qui in­spiciebant ea quae ad Rempub. pertinebant. that it might in some sort march the Epheri among the La­cedemonians: The custom of our Commonwealth hath upon great consideration and policy brought it to pass, that this Officer is of no great duration, but only for the dispatch of some special business, as the Arraignment of some Noble-man, in case of Treason, &c. which once ended, his Commission expireth: so that we may describe him thus; Magistratus est Excelsus, qui pro uno die, a Rege ordinatur, cum-aliquis ex Proceribus Regni uno die, a Rege ordinatur, cum-aliquis ex Proceribus Regni in Judicium vocatur de noxa Capitali.

Now we are to take a Prospect of the Extent of his Lordships Jurisdiction and Power, and the Rules he ought to judge by.

Although the Power and Authority of the Lord High-Steward hath been since the Reign of King H. 4. but hac vice, yet is the hac Vice limited and appointed; as when a lord of Parliament is Indicted of Treason or Felony, then the Grant of this Office under the Great Seal of England, is to a Lord of Parliament, reciting the Indictment: Nos considerantes quod Justitia est vir­tus Excellens, & Altissimo complacens, eaque prae omnibus uti volentes, ac pro eo quod Officium Seneschalli Angliae, cujus praesentia pro administratione Justitiae, & Executione ejusdem in hac parte faciend. Requiritur, ut accepimus jam valeat: de fidelitate Strenuitate, provida Circum­spectione & Industria Vestris plurimum confidentes, Odi­navimus & Constituimus Vos ex hac causa & causis Sene­schallum Nostrum Angliae ad Officium illud cum omnibus eidem Officio in hac parte debitis & pertinentibus hac vice gerend. accipiend. & exercend. Dantes & concedentes vo­bis te nore praesentium plenam & sufficientem Potestatem & Authoritatem ac Mandatum speciale Indictamentum praedict. &c. So that this Great Officer is wholly re­strained to proceed only upon the recited Indict­ment.

At every Coronation he hath a Commission under the Great Seal, hac Vice, Cok's Litt. 79. a. b. 4 Inst. 59. to hear and determine the Claims for Grand Serjeanties, and other Honourable Services, to be done at the Coronation, for the solem­nizing thereof; for which purpose he holds his Court some convenient time before the Coronation.

The first Person that was created hac Vice for solem­nizing the Coronation of H. 4. was Thomas his second Son; and upon th eArraignment of Thomas Holland, [Page 8]Earl of Huntingdon: the first that was created Steward of England, hac Vice, was Edward Earl of Devon.

Lastly, The Order and manner of Arraigning a Peer of the Realm before this Creat Officer is to be consi­der'd.

As the Peers of the Realm, who are Tryers, are not sworn, so the Lord High-Steward, being Judge, is not sworn likewise; yet ought he to proceed according to his Letters-Patents, Secundum Legem & consuetuainem Angliae; Co. Litt. 142. a. 4 Inst. f. 60. for all Commissions and Charters for Executi­on of Justice, are facturi quod ad Justitiam pertinet, se­cundum Legem & consuctudinem Angliae.

But admit the Commission should be, Secundum sanas Discretiones vestras: How then?

I answer, Discretio est discernere per Legem quid sit Justum; that is, to discern by the right Line or Law, and not the warpt measure of private Opinion: Si a Ju­re discedas, vagus eris, & erunt omnia incerta: 'Tis cer­tain he that out-runs the Law, hastens to his own de­struction. Commissions then that Authorise proceed­ing secundum sanas discretiones, &c. in sense are secun­dum Legem, &c.

The Earl of Hantingdon was Indicted of High-Trea­son in London, 1 H. 4. f. 1. a. by a Commission before the Mayor and Justices; for that he, with other persons, agreed to go a Mumming (which the French call Ma querade) on the Night of Epiphany, in which they intended to kill the King, then at Windser: And after the King granted a Commission to the Earl of Derby, reciting, That where­as George, E of H. was Indicted of High-Treason, and that he would that right should be done; and because the Office of the Steward of England is now void, he grants it to the said E. of Derby, to do Justice to the said E. of Huntingdon, commanding by the same Commis­sion [Page 9]all the Lords to be attendant upon him; and Pre­cept was likewise given by the same to the Constable of the Tower, to be attendant on him, and to bring the Pri­soner (viz.) the E. of H. before the said E. of D. on the day appointed: whereupon the E. of D. the same day sat in Westminster-Hall under a Cloth of Estate by him­self, and the E. of Westmerland, and other Earls and Barons, sat at a considerable distance, and all the Justi­ces and Barons of the Exchequer sat round a Table, and after three O Yes's made, and the Commission read, the Justices deliver'd the Indictment to the Lord Steward, which was deliver'd to the Clerk of the Crown, who read it to the said E. of H. which he confessed; where­upon Hill the King's Serjeant prayed Judgment, which the Lord Steward (after he had rehearsed the whole matter) pronounced in this manner; That the E. of H. should be taken back to the Tower of London, and from thence be drawn to the Gallows, and there hanged; and being yet alive, cut down, and his Entrails drawn out of his body, and burnt; and that he should be behead­ed, and quartered, Et sic Deus propitiatur Animae suae.

The Justices then said, that if the E. of H. had de­ny'd the Treason, the Lord Steward should have de­manded of every Lord in open Court, what they thought in their Consciences, beginning with the Pu­lisny Lord; and if the greater number said Guilty, then the Judgment to be given as above.

I refer your Lordships to Cambden's Annals of Q. E­liz. for the manner of the Tryal of Tho. Howard, Duke of Norfolk, before George Talbot, E. of Shrewsbury, Lord High-Steward upon that occasion.

Sir Ed. Coke describes the manner how a Peer is to be tryed, in case of Treason, &c. before the Lord High-Seward of England.

He Must be Indicted before Commissioners of Oyer and Terminer, or in the King's Bench, if the Treason or misprision, Felony or misprision of Felony, be com­mitted in that County where the King's-Bench sit; when he is Indicted, then the King, by his Commission under the Great Seal of England, constitutes some Peer of the Realm to be, hac Vice, Steward of England, who is Judg in this case. The Commission recites the Judgment ge­nerally as 'tis found, and Power given to the Lord Steward to receive the Indictment, &c. and to proceed secundum Legem & consuetudinem Angliae. A Command­ment is also given by the same to the Peers of the Realm to be attendant and obedient unto him; as also to the Lieutenant of the Tower, to bring the Prisoner before his Lordship.

Then a Certiorari is awarded out of Chancery, to re­move the Indictment it self before the Lord Steward; which may either bear date the same day of the Stewards Commission, or any day after. The Lord Steward di­rects his Precept under his Seal to the Commissioners, to certifie the Indictment such a day and place. He also makes two other Precepts, one to the Constable or Lieutenant of the Tower, to bring the Body of the Pri­soner before him, at such a day and place; as also to a Serjeant at Arms to summon, Tot & tales Dominos, Mag­nates & Proceres hujus Regni Angliae praedicti R. Comitis E. Pares, per quos rei veritas melius sciri poterit, quod ipsi personaliter compare ant coram praedict. Seneschallo a­pud Westm. tali die & hora ad faciend. ea quae ex parte Domini Regis forent facienda, &c.

In this Summons four things are observable.

• 1. That all these Precepts, most commonly, bear date in one day.
• [Page 9]2. That no number of Peers are named in the Pre­cept, and yet there must be twelve, or above.
• 3. That the Precept is awarded for the return of the Peers, before any Arraignment or Plea pleaded by the Prisoner.
• 4. that the Lords are not de Vicineto; and therefore the sitting and Tryal may be in any County of Eng­land.

At the day, the Lord High-Steward, with six Ser­jeants at Arms before him, takes his place under a Cloth of Estate, and then the Clerk of the Crown delivers to him his Commission, who re-delivers it. After three O Yes's by a Serjeant at Arms, and Commandment given in the Name of the Lord High-Steward of England to keep silence, the Commission is read; then the Usher delivers to the Steward a white Rod, who re-delivers the same, which he holds before the Lord High-Steward. It was deliver'd, upon the like occasion, to the Earl of Shrews bury, by Garter King at Arms.

O Yes being again made, Commandment is given in the Name of the H. Steward to all Justices and Com­missioners, to certifie all Indictments and Records; which being deliver'd into Court, the Clerk of the Crown reads the Return, and the Serjeant at Arms is commanded to return his Precept, with the names of the E. and Barons by him summoned, and the Return of that is also read; then are the Peers summoned to an­swer to their Names, which are recorded.

When they have taken their places, and the Prisoner set to the Bar, then the Lord High-Steward delcares un­to them the cause of their Assembly, and perswades the Prisoner to Answer without fear, assuring him, that he shall be heard with patience, and that Justice shall be done to him.

After this, the Clerk of the Crown reads the Indict­ment, and proceeds to the Arraignment of the Prisoner; and if he plead Not Guilty, the Entry is, Et de hoc de bo­no & malo ponit se super Pares suos, &c. After which the Lord High-Steward gives a Charge to the Peers, ex­horting them to try the Prisoner indifferently, according to their Evidence, which is opened by the King's Learned Counsel, who produce their Proofs for the King against the Prisoner. Soe, or all of the Judges, are ever attendant upon the Lord High-Seward, and take their places at the feet of the Peers.

After the Evidence is given for the King, and the Prisoners Defence made, he is withdrawn from the Bar, under the custody of the Lieutenant, whilst the Tryers go to some place to consider of their Evidence; upon debate of which, if they doubt of any matter, they cannot send to the High-Steward to ask the Judges any Questions of Law, but in the hearing of the Pri­soner, that he may know whether the case be rightly put, for de facto jus Oritur; neither can they send for the Judges to know their Opinion, but the H. Steward ought to demand it in Court, in the presence of the Prisoner.

When the Lords are agreed, they return into Court, and the Lord H. S. publickly in open Court, beginning with the Puisny Lod, says unto him, My Lord A. is W. v. S. guilty of the Treasons whereof he hath been iNdicted and Arraigned, or any of them? And the Lord standing up says, Guilty, or Not Guilty; and so upward of the rest serialim.

The Peers having given their Verdict in the absence of the Prisoner, the Prisoner is brought to the Bar, whom the Lord High-Steward acquaints with the Verdict of his Peers, and gives Judgment accordingly, either of Condemnation, or Acquittal.

After the Service is performed, and O Yes made for dissolving the Commission, the white Rod is taken by the Lord High-Steward in both his hands, and broken in pieces.

Thus have I presented to your Lordships a Scheme of that solemn order and manner, how a Peer of the Realm is Arraigned before the Lord High Steward of England. I might amass several Presidents of like nature, wherein the Axe of Death is born before the Prisoner, with the Edge from him; and after being found Guilty, with the Edge to him. I wish your Lordships may never know more of this Point by a fatal experience.

Now it remains that I give Solutions to those Queries your Lordships were pleas'd to put concerning Tryals, Treasons, &c. by which I wish you may arrive at some reasonable satisfaction.

QUERY I.

How Antient this Tryal by Peers may be?

SOL.

Without doubt 'tis Coetaneous with the Office of the Lord High-Steward, and how old that is, hath been already shewn: however, I shall present one Authori­ty, which proves, that Tryal by the Peerage was in use in the Reign of William the Conquerour, who in the be­ginning of his Reign created William Fitz Osborne (Earl of Betrevil in Normandy) Earl of Hereford. His Son Roger succeeded him, and was E. of Hereford, who un­der colour of his Sisters Marriage, near New-Market in Camb. Shire, where many of the Nobility were assem­bled, conspir'd with them to receive the Danes into England, and depose William the Conquerour (who was then in Normandy) from his Kingdom of England; to effect which, he with others rose. This Treason was re­veal'd by Walter, E. of Huntingdon, who was one of [Page 14]the Conspirators, and Son to the Great Syward, Earl of Northumberland; for which Treason, Roger E. of Here­ford was apprehended by Urse Tiptof, then Sheriff of Worcestershire, A. 8. W. 1. and after tryed by his Peers, and found guilty of the Treason, per Judicium Parium suorum. But he ended his days in Prison.

QUERY II.

Whether a Peer can wave his Tryal by Peers?

SOL.

He cannot wave his Peers, and put himself upon the Tryal of Twelve Free-holders; for the Stat. of Mao. Shart. is,26 H. 8. that he must be ryed by his Peers; and so it was resolved in the Lord Dacre's Case.

QUERY III.

What Lords shall be tryed by Peers, in cases of Trea­son, &c?

SOL.

Every Lord of Parliament that hath Voice therein, and called thereto by the King's Writ, shall not be tryed by Peers, but only such as sit Patrone Nobilitatis; as Dukes, Marquesses, Earls, Viscounts, and Barons, and not such as are Lords of Parliament, by reason of their Baronies which they hold in right of the Church, as Arch-Bishops, and Bishops of this Realm; for though they be Lords of Parliament, yet upon an Impeach­ment either of Treason or Felony, they shall not be try­ed by the Peers of the Realm, but by a Jury of Knights, and other substantial persons pon their Oaths; and one reason alledged by some (how truly let others judge) is, forasmuch as Archbishops and Bishops cannot pass in like cases upon the tryal of any other of the Peers, their Lordships being prohibited by the Common and Ecclesi­astical Laws to be Judges of Life and Death; and this Tryal ought to be Mutual, since the performance of it is upon their Honours, without any Oath taken.

And here, by the way, your Lordships may take no­tice, how great regard the Law hath to the word of a Peer, when spoken upon his Honour. I need say no more upon this Topick, since your Lordships in that Ex­cellent Poem, A PARADOX against Liberty, have exprest your thoughts so extremely well.

No Temporal Lord, but only Lords of Parliament, shall have this kind of Tryal; and therefore the Eldest Son, and Heir Apparent of a Duke, in the life of his Father, though he be called an Earl, is excluded: And this was the Case of Henry Howard, Earl of Surrey, Son and Heir Apparent of Thomas Duke of Suffolk, in the 38. of H. 8. Likewise the Son and Heir Apparent of an Earl, though he be called Lord, or Baron; and all the younger Sons of Kings are Earls by Birth, though they have no other Creation, yet shall they not be partakers of this, or other Priviledges, incident to the Lords of Parliament.

Those that are Barons of Ireland, or Scotland, Cok. Litt. 16. b. 3 Inst. f. 30. 2 Inst. f. 48. com­mitting Treason, &c. in England, shall not have their Tryal by Peers, though they were born in England, for they receive their Dignity from a King of their Na­tions.

If a Duke, or other Noble-man of France, Co. L. 7. Calvin's Case. Spain, &c. comes into England by the King's safe Conduct, in which the King stiles him Duke, according to his Crea­tion, nevertheless in all proceedings in the King's Courts he shall not be stiled by his Name of Dignity, much less a partker of the Priviledge of this Tryal by Peers.

But if the King of England at this day create one of his Subjects of Scotland to be Viscount within Eng­land, or by ordinary Summons under his Great Seal call him to the Upper House of Parliament, and assign him [Page 16]a Place, and to Vote there in his Great Council, he shall be thereby a Peer of this Realm, and enjoy all their Pri­viledges.

QUERY IV.

What Witnesses are required in Indictments and Tryals of Treason, or misprision of Treason?

SOL.

By the Ancient Common Law, one Witness or Ac­cuser was not sufficient to Convict any person of High-Treason, for, in that case, it was to be tryed before the Constable and Marshal by Combat; but they have no Jurisdiction to hold Plea of any thing which may be de­termined by Common Law: And that two Witnesses are requisite, appears by the Books of Law; and the Common Law herein is grounded upon the Law of God,Mirr. cap. 3. Ordin. de Attaint. Brad. L. 5. f. 354. 48 Ed. 3.30. 35 H. 6.46. Fortescue c. 32. expressed both in the old and New Testament, Deut. 17. v. 6. Numb. 35. v. 30. Deut. 19. v. 15. Matth. 18. v. 16. 2 Cor. 13. v. 1. and this seemeth more clear in the Tryal by Peers, because they come not de aliquo Vicineto, whereby they may take notice of the Fact, in respect of Vicinity, as other Jurors may do. By the Stat. of 1 E. 6. c. 12. none shall be Indicted, Arraigned, Condemned, or Convicted for any Treason, &c. for which the Offender shall suffer pains of Death, Impri­sonment, loss or forfeiture of his Goods, Chattels, Lands or Tenements, unless he be accused by two sufficient and lawful Witnesses, or shall willingly without vio­lence confess the Fact. The same provision is made by 5 E. 6. wherein I must observe to your Lordships, that two lawful Accusers, in this Act, are taken for two law­ful Witnesses; for by two lawful Accusers, and accused by two lawful Witnesses (as 'tis in 1 E. 6.) are Identi­cal; which word (Accusers) was used, because two Wit­nesses ought directly to accuse, that is, charge the Pri­soner, [Page 17]for the Common Law respects none else; and therefore lawful Accusers must be such as are allowed by Laws.

And thus 'twas resolved by the Justices in the Case of the Lord Lumley; Hill. 14. El. for if they should not be taken ac­cording to the meaning aforesaid, then there must be two Accusers, by 5 E. 6. and two Witnesses,Dyer f. 99. W. Tho­mas his Case. by 1 E. 6. and the strange conceipt in 2 Mar. that one may be an Accuser by Hear-say, was utterly denied in the Lord Lumley's Case.

And here, since your Lordships did not make it a Query, I shall not so strictly consider it, whether the Te­stimony of a Forreigner may be admitted, in case of Treason. The Duke of Norfolk at his Arraignment said, that nothing which was yet produced was of any moment against him, save only the Bishop of Ross his Testimony; and that (by Opinion of Bracton) was not to be admitted, because he was a Forreigner; to which Callin, Lord Chief Justice answer'd, that in such Cau­ses as this, the Testimony of Forreigners is of force, and it lies in the Peers to attribute to,Camb. El. A. 1572. or derogate from such Testimony as they shall think fit.

Where Bract. saith, tht an Alien born cannot be a Witness, it is to be understood of an Alien Infidel; for the Bishop of Ross being a Scot born, was admitted to be a Witness, and sworn 14 El. by Opinion of all the Ju­stices Assistants.

If a person be accused by one Witness touching one fact, and by another concerning another fact, the one committed in Middlesex, the other in Surrey, he that swears the fact done in London, joyned to the other Wit­ness that swears to the fact done in Surrey, shall be e­steemed two sufficient Witnesses, in case of Treason; and so was it ruled by the Judges at the Old-Baily, up­on [Page 18]the Tryal of the Five Jesuits (Whitebread, Harcourt, Turner, Fenwick, and Gaven) according to the Resolu­tion in Sir H. Vane's Case, at the King's-B. Bar, where one Witness prov'd the levying War in one County, and the other prov'd the levying War in another County; and so though they were but single Witnesles of single facts, yet both coming up to the Indictment, they were adjudged two sufficient Witnesses to maintain it.

QUERY V.

Whether a Noble-man being Arraigned, can challenge his Peers?

SOL.

If the party arraigned (says Coke) be a Lord of Parlia­ment, and a Peer of the Realm, and is to be tryed by his Peers, he shall not challenge any of them, for they are not sworn as other Jurors be, but find the party guilty, or not guilty, upon their Faith or Allegiance to the King;Cok's Litt. 156. b. and they are Judges of the fact, and every of them doth separately give his judgment, beginning at the lowest.

Again,Cok's Litt. 294. a. he tells us, that the four Knights, Electors of the Grand Assize, are not to be challenged, for that in Law they be Judges to that purpose, and Judges can­not be challenged; and that's the reason why Noble­men cannot be challenged, for Mag. Charta saith, Per Judicium Parium suorum, Cap. 29. and not Veredictum.

When the Peers (that were to be Tryers at the Ar­raignment of the Earl of Essex and Southampton) were called by name,Camb. Eliz. A. 1601. the Earl of Essex demanded whether it were not lawful for them (as the use is to private men) to except against some of their Peers? The Judges an­swer'd, that such was the Credit and Estimation of the Peers of England, that they are neither compelled to an Oath in Arraignments, nor subjected to Exceptions.

QUERY IV.

Whether the Lord High-Steward can collect the Evi­dence against the Prisoner, or confer with the Lords, touch­ing the same, in the Prisoners absence?

SOL.

To this I answer negatively, for after the King's Learned Counsel have produc'd all their Evidence, the Prisoner ought to be present at all Conferences touching the same; and therefore it shall be necessary for all Pri­soners, after Evidence given against them, before depar­ture from the Bar, to require Justice of the Lord High-Steward, and of the other Lords; and that no Questi­on be demanded, or conference had by any with the Lords, but in open Court in their own hearing, other­wise such Prisoners shall take no advantage thereof after Verdict and Judgment given.

QUERY VII.

If the Lords be equally divided, between guilty and not guilty, whether the party tryed shall be acquitted or con­demned?

SOL.

In an Information in the Court of Star-Chamber, by the Attorney against Sir Stephen Proctor, and others, for conspiracy against, and scandal of the Earl of Nor­thampton, Co. 4. Inst. f. 64. and Edward Lord Wootten, two of his Maje­sties most Honourable Privy Council; at the hearing of which Cause there sat eight in Court, whereof four condemned the Defendants, and the other four (viz.) the Lord Chancellour, two Bishops, and the Chancel­lour of the Exchequer, acquitted them; the Question was, according as your Lordships have propos'd it, Whether the Defendants should be condemned or not: And here it was moved by the King's Learned Counsel, that when the Voices are equal, that in that case of [Page 20]which part the Lord Chancellour was, on that side it should be determin'd, without regard either to Plaintiff or Defendant: And it was resolved, that regularly and de communi Jure, in respect of the equality of Voices, that no sentence could be given as it holdeth in the High Court of Parliament, and all other Courts, accord­ing to the old rule, Paribus sententiis Reus absolvitur: And sentence was never given against Sir Stephen Pro­ctor, agreeable to the general rule in other Courts. In this point the Civil Law concurs with the Common. Inter Pares Numero Judices si dissonae sententiae profe­rantur, in liberalibus quidem causis (secundum quod a Di­vo Pio constitutum est) pro libertate statutum obtinet, in aliis autem causis pro Reo, quod & in Judiciis publicis, obti­nere oportet. Vid. Grot. lib. 2. c. 5. uu. 18. de Jure Belli, &c.

Reus sententiis paribus absolvitur, & semper quicquid dubium est, humanitas milinat in melius.

Alter Judex damnat, alter absolvit, & inter dispares sententias milior viniat.

I shall here take leave to make a little digression from the Query, and consider if a person that is forth-coming, can by Parliament be attainted of High-Treason, and ne­ver call'd to answer? This seems as much worth the in­quiry, as other your Lordships Queries; and though o­mitted by you, I shall not let it pass without some no­tice.

By the 2. of H. 6. we find a great Peer condemned without Arraignment or Answer;Co. 4. Inst. f. 37, 38. the like in 32 H. 8. one Attainted (though living and forth-coming) of High-Treason, without ever being called to Judgment: The legality whereof was scrupled, and demanded of the Judges whether the Act were void or not: with some pause, they adjudged it perillous, and of bad exam­ple to the Inferiour Courts; but 'twas agreed, if con­demned [Page 21]by Parliament, to be indisputable, though Cap. 29. 5 E. 3. c. 9. 28 E. 3. c. 5. of Mag. Char. affirms, that no man ought to be condemned without Answer, with­out a Quid fecisti? and all due proceedings at Law.Senec. in Loco. Qui statuit aliquid parte inaudita altera, licet aequum statuerit haud aequus fuerit.

With the Municipal Laws agree those of the Ro­mans.

Divi severi & Antonini Magni rescriptum est, D. 48.17. ne quis absens primatur, & hoc jure utimur, ne Absentes damnen­tur, neque enim inaudita causa quemquam damnari aequi­tatis ratio patitur. Acts 25. v. 16. It is not the manner of the Romans to deliver any man to death, before the accused have his accusers face to face, and license to answer for him­self.

QUERY VIII.

Whether the King, and one of the Houses alone, or both without the King, can declare a Treason within the Stat. of 25 E. 3. cap. 2?

SOL.

John Duke of Groyen and Lancaster, Steward of Eng­land, and Thomas Duke of Glocester, Constable of Eng­land, the King's Uncles, complained to the King, that Thomas Talbot Knight, with others his Adherents, con­spired the death of the said Dukes, as the same was con­fessed, and well known, and prayed that the Parliament might judge of the fault, (which Petition was just, and according to the Branch of the Stat. of 25 E. 3.) but the Record saith further, that the King and Lords in Parliament adjudged the same fact to be High-Treason, which Judgment wanting the assent of the Commons, was no Declaration within the said Stat. which is attend­ed with this restriction.

That if any other case, supposed to be Treason, should [Page 22]happen before any Justices, the Justices should tarry with­out going to judgment of the Treason, till the Case be shewed before the King, and his Parliament (consisting of Lords Spiritual and Temporal, and the Commons) whether it ought to be adjudged Treason or Felony.

QUERY IX. Whether the Subjects of another Prince, Confederate with the King of England, can be held for the King's E­nemies?

SOL.

It was objected against the Duke of Norfolk, con­cerning his relieving of the Scots, the Queens Ene­mies, which was proved by Letters, and Banister's con­fession, &c. whereupon the Duke asked the Judges, Whether the Subjects of another Prince, Camb. Eliz. A. 1572. Confederate with the Queen of England, were to be holden for the Queens Enemies? Calelin Chief Justice answer'd, that they were; and that the Queen of England might make War with any Duke of France, and yet in the interim keep peace with the French King. And here 'tis to be noted, that the Judges ought not to deliver their Opi­nions before-hand, in any criminal case that may come before them judicially. In the Case of Humphrey Staf­ford, that Arch-Traytor Hussey, Chief Justice, besought King H. 7. that he would not desire to know their Opi­nions before-hand for him, for they thought it should come before them in the King's-Bench judicially, and then they would do that which of right they ought, which the King approv'd of. Besides the nature of their Oath requires it, who are sworn that they shall well and lawfully serve our Soveraign Lord the King, and his People, in the Office of a Justice; and that they shall do equal Law and execution of Right to all his Sub­jects.

QUERY X.

Whether an Attainder of Treason may be falsified by the Plea of the Party?

SOL.

A. 1. Mar. A Commission of Oyer and Terminer in London was directed to Sir Tho. White, Lord Mayor, and to divers others, reciting, that where Sir Robert Dudley, Knight, 9 Jan. 1. Mar. was Indicted of High-Treason before Thomas Due of Norfolk, and fourteen other Commissioners in the County of Norfolk, (where in truth the Commission was directed to so many, but the Indictment was taken before Eight of them only) grant­ing to them, or any four of them, Authority to receive the Indictment taken before fifteen Commissioners, and to proceed thereupon as Special Justices of Oyer and Terminer; by pretext whereof they proceeded, and up­on confession of the said Sir Rob, Dudley, gave Judgment against him.

In this Case it was adjudged, that Sir Rob. Dudley, then Earl of Leicester, might falsifie the said Attainder by Plea, because it was void, and coram non Judice; for that the latter Commissioners had not power to proceed upon an Indictment taken before Eight, but before Fif­teen, and so void. The Party is not driven to his Writ of Errour, but may falsifie the Attainder by Plea, shew­ing the special matter, which proveth it void ut supra. In which case the party forfeiteth neither Lands nor Goods.

'Tis holden by some, that if a person be attainted of High-Treason by the Common Law, that no Writ of Errour should be brought for the reversal of that Attain­der, by reason of these words in the Stat. 33 H. 8. cap. 20. And if any person or persons shall be attainted of High-Treason by the course of the Common Law, &c. [Page 24]that every such Attainder by the Common Law, shall be of as good strength, value, force and effect, as if it had been done by Authority of Parliament. But the contrary here­of was resolved at a Parliament holden A. 25. Eliz. that a Writ of Errour should be maintained for the re­versal of Erroneous Attainders of High-Treason by the Common Law; for that former Stat. is to be intended of lawful Attainders, and not where there is any Er­rour in the same: for by that of the Queen 'tis provi­ded, That no Record of Attainder of any person or persons, of or for any High-Treason, where the party so Attainted is or hath been executed for the same, shall be, &c. in any wise hereafter reversed, undone, avoided, or Impeached by any Plea, or for any Errour whatsoever.

QUERY XI.

Whether torture, in case of Treason or Felony, may be u­sed by our Law?

SOL.

Sir John Fortescue, Chief Justice of England, who wrote in commendation of our Common Laws, prefer­reth the same for Government before the Civil Law; and particularly, that all tortures were against the Com­mon Law expresly; and he proceeds to shew the incon­veniencies and mischiefs thereof, by fearful examples; to which Learned Author I refer your Lordships.Cap. 22.

It is against Mag. Charta, Cap. 29. which says, Nullus liber ho­mo capiatur, vel Imprisonetur, &c. aut aliquo modo de­struatur, nec super eum ibimus nec super eum mittemus nisi per legale Judicium Parium suorum vel per Legem Terrae. And accordingly all the Ancient Authors are against the inflicting pains and tortures upon Prisoners, before or af­ter Attainder,Co. 3. Inst. f. 35. but such as answer the Judgment.

John Holland, Earl of Huntingdon, was by King H. 6. created Duke of Exeter, and A. 26. H. 6. the King [Page 25]granted to him the Office of the Constableship of the Tower of London. He and William de la Poole, Duke of Suffolk, with some others, intended to have brought in the Civil Laws; and for a beginning of the same, the Duke of Exeter first brought into the Tower the Rack, or Brake, allowed in many cases by the Civil Law; and for that reason it was called the Duke of Exeter's Daughter.

QUERY XII.

Whether the King, under the Great Seal, may command all Process in Criminal Causes to cease?

SOL.

We find (says Coke) a Discharge of further proceed­ing, directed to the Judges of the Court, &c. (not by way of pardoning the offence) but by the King's ac­knowledgment, under the Great Seal, of the Parties Innocence, with Commandment to the Judges, that in the former proceedings they shall altogether surcease; whereupon the Court will award, that the Party shall go sine Die, and that there shall be no further proceed­ings against him. William de Melton, Archbishop of York, was accused in the King's-Bench, coram Rege & Concilio suo in Anno 3. Ed. 3. for adherency to Edmond Earl of Kent in his Treasons; whereunto the Arch-Bi­shop pleaded Not Guilty; and after two Writs of Ve­nire Facias awarded, the King directed his Writ under the Great Seal to the Judges of the King's-Bench, to this effect.

Licet Venerabilis Pater Willielmus Archiepiscopus E­bor. [Page 26]Stephanus London Episcopus per Diversa Brevia No­stra coram Nobis ad sectam Nostram Implacitentur de eo, quod ipsi Edmundo Comiti Cantiae adhasisse debuerant, quia tamen praedict. Archiepiscopus & Episcopus de adhae­sione praedicta omnino Immunes reputamus, Vobis Manda­mus quod placitis praedictis coram Nobis ulterius tenend. omnino supersedeatis Teste meipso, &c. The Award of the Court hereupon is very observable: Viz. Cujus Bre­vis praetextu, consideratum est, quod praedictus Archiepis­copus eat inde sine die, &c. & ulterius non procedatur versus eum.

Stephen Gravesend, Pasch. 4. E. 3. Rol. 5.3. Bishop of London, was charged with the same offence in Parliament, A. 3. E. 3. whence, by Order of parliament, he was referred to the King's-Bench to be tryed, where he pleaded Not Guilty, and af­ter was discharg'd, as the Arch-Bishop. It may be thought, that accepting the Pardon, might be an impli­cation of their fault, and therefore it run in a new strain; but no man that is well advis'd, says the great Oracle of the Law, will refuse God's or the King's Pardon; for in the King's displeasure there is death, says the Holy Writ; and who knows how often he offends, and consequently stands in need of it. But how far this Branch of the Prerogative may be extended, and what qualifications it may admit, belongs not to a private man to determine.

QUERY XIII.

Whether a Person can be Attainted of High-Treason by general words?

SOL.

Where by due course of Law a man cannot be At­tainted of High-Treason, unless the Law fore-judge the offence such, he ought not to be Attainted by general words, by Authority of Parliament, (as sometime hath been used) but the Treason ought to be specially ex­pressed, seeing that the Court of Parliament is the Highest and most Honourable Court of Justice, and ought to give Example to the Inferiour, Magis Exemplis quam praeceptis ducimur.

QUERY XIV.

Whether a Subject of one Kingdom guilty of Treason, flying into another Kingdom, ought to be remitted to his own Soveraign?

SOL.

It is holden, and so it hath been resolved, that divi­ded Kingdoms, under several Kings in League one with another, are Sanctuaries for Servants or Subjects flying for safety; and upon demand, are not by the Laws and Liberties of Kingdoms to be delivered: And this Opi­nion seems grounded upon the Law in Deut. c. 23. v. 15. Thou shalt not deliver unto his Master the Servant which is escaped from his Master unto thee.

When the Lord Paget and Arundel came into France Sir Edward Stafford, Queen Eliz. Ambassadour there,Camb. El. 1584. di­ligently observed them, yet could by no means discover [Page 28]what they attempted; he desir'd nevertheless of the French King, that they, with Morgan, and other English, who were practising against their Prince and Country, might be removed out of France: To which he recei­ved this answer, That if they attempted any thing in Frence, the King would punish them according to Law, That all Kingdoms were free for Fugitives; and that it was the great concernment of Kings to maintain every one the Priviledges of his own Kingdom: That Queen E­liz. had not long since received into her Kingdom Montgo­mery, the Prince of Conde, and others of the French Na­tion; and that Sagury, the King of Navarr's Embassa­dour, was in England at this very time, practising to move new troubles against the French King.

King H. 8. in the 28th year of his Reign, being in League with the French King, and in Enmity with the Pope, who was in League likewise with France, and had sent Cardinal Poole Embassadour to the French King, of whom K. H. 8. demanded the said Cardinal, being his Subject, and Attainted of Treason; and to that end cau­sed a Treatise to be publisht, that it ought to be done Jure Gentium, sed non praevaluit.

Ferdinando, King of Spain, upon request made by H. 7. to have Edmond de la Poole, Earl of Suffolk, At­tainted of High-Treason by Parliament, A. 19. H. 7. at first intending to observe the Priviledge and Liberty of Kings, in protecting such as came to him for succour and protection, delivered him not; yet in the end, up­on the earnest request of the King, and his promise not to put him to death, he caused the said Earl to be de­livered up to the King, who kept him in Prison, and [Page 29]construing his promise to be but personal, commanded his Son Henry after his death to execute him; which he caused to be done in the fifth year of his Reign.

I shall add one more Example of a Remission out of Zouch. Cum quidam Stywardus Scotus, Treat. de Judicio in­ter Gentes. qui Mariam Scotorum Reginam vneno tollere conatus est, in Anglia deprehenderetur, Ed. Sextus Rex Angliae eum in manus Regis Galliae tradidit, ut debito supplicio Remitteretur, quod Nonnullis displicuit, quia etsi ratio suadeat, ut qui in Patria deliquit, in Patria Puniatur, aliter tamen de con­suetudine, quod Remissionem usurpatum est.

Having now run thorough the several Query's, which your Lordships have thought fit to propose; I Shall venture to set one step further, and start A­nother of my Own; with some Offers toward the Solution of which, I will make an end, Viz.

QUERY XV.

Whether in any Case it be Lawful for Subjects to Oppose their Prince?

SOL.

It must be resolv'd in the Negative: And that in any Case, or upon any Pretence whatsoever, it is ut­terly unlawful for Subjects, joyntly or singly; col­lectively, or representatively, to make any violent Op­position against their Soveraign; or to Resist him ei­ther in an Offensive or a defensive way. This As­sertion you will find to be a Truth, that is Consonant to Holy Writ, Reverend Antiquity, Sound Reason, and [Page 30]to the Municipal Laws of the Land; all the Sophistries and Argumentations, that Seditious and corrupted men are able to produce to the contrary notwith­standing.

I. To begin with Holy Scripture. It is clear from Deut. c. 17. v. 12. which commands the Israelites to put away evil from amongst them, by bringing to Publique Justice all such Mutinous and Presumpti­ous persons, as refus'd to Obey the High Priest and the Judge; that God imposed an Obligation, even upon his own People, not to Resist the Supreme Ma­gistrate. And v. 13. makes the Reason of this Se­verity to be, to preserve the People from being Poy­son'd in their Allegiance by the Malignity of such Examples: That all the People (under what Notion or Qualification soever), may hear and fear, and do no more presumptuously. The same express Warrant of the Word, (and to the self-same purpose) there is in Joshua, C. 1. v. 18. Whosoever he be (says the Al­mighty speaking to him) that doth rebel against thy Commandment, and will not harken to thy words, in all that thou commandest him, he shall be put to death. Saul is generally condemned for persecuting David, and attempting upon his Life: And yet though Da­vid had him twice at his mercy, he was not to be prevail'd upon to do him any Harm:1 Sam c. 24. v. 6. and C. 26. v. 11. For who (says he) can lay his hand upon (who can touch, who can stretch forth his hand against) the Lords Anointed, and be Guiltless? Now the Signification of the Scrip­ture-phrase [Touch, or stretch forth the hand against the Lords Anointed] is of a Large Extent: And the Guilt of this Horrid Crime may be incurr'd either by lifting up our heels in scorn against our King; Psal. 41. v 9. By ta­king [Page 31]up Arms in our own defence, for whosoever Re­sisteth the Power, Resisteth the Ordinance of God; Rom. 13. By not bringing to light such Traiterous Conspira­cies as we know to be forming against him;Lev. 5. By not endeavouring to defend him, when we see him in danger, for Qui non vetat peccare, cum possit, jubet; By striking at his Crown, usurping upon his Prero­gative, or depriving him of his Revenue;Jer. 18. v. 18 By Speak­ing or even Thinking evil of him; for as the Tongue can strike without a Hand, so the Heart can curse without a Tongue: Or (in a Word) by any sort of indignity or out-rage offer'd either to his Autho­rity, or Person. But to proceed.

Doth not Saint Paul enjoyn that every Soul be Sub­ject to the Higher Powers; for there is no Power but of God; and they that Resist shall receive to them­selves Damnation? Nay, and doth not Saint Peter also inculcate a Patient Toleration of injuries, and recom­mend unto our imitation the Example of our Blessed Saviour, who when he was reviled, reviled not again, 1 Pet. 2. v. 19.20, 21, 22. when he suffered he threaten'd not; but referr'd the Vengeance to him that judgeth Righteously. If ever man had just Cause to Resist, then had he; yet would he not do it, but check'd Saint Peters forwardness that way with a, Whoso taketh up the Sword, Mat. 26. v. 52. shall perish by the Sword. We find in the Creed that Pon­tius Pilate is Recorded by the Holy Ghost (which in­fluenced the Church in the composing of it) this now was certainly done for our Edification, and to insinu­ate, that as we tender our Salvation by our Faith in Christ, we must be careful of paying a Chearful Obedience to the Lawful Commands of the Ma­gistrate, and to submit humbly, and Suffering, to [Page 32]those that are otherwise. And this Obligation con­tinues, even though the Prinoe should be a Heathen, and the Cause we smart for, Christ and his Church.

II. As to Reverend Antiquity Saint Ambrose upon the Point of Non-Resistance, discourses to this effect; I have not so learn'd Christ, (says he) as to seek by force to oppose Authority; I can mourn and Lament; but for Other Resistance I neither will nor ought to make any. Saint Cyprian speaks to the same purpose; It is out of a Principle of Conscience (says he) that none of us make any Opposition, when we are unjustly Seiz'd upon, or study a Revenge upon our Tormentors; for the Numerousness of our Party were otherwise sufficient to bear us out in such a Design. And so does Tertul­lian. ‘We are not (says he) despoyl'd of our Goods, they are only Sequestred for our benefit, and en­trusted in safe hands; God keeps them for our use, and will return them with ample Encrease. If you abstain from Fighting, he will Espouse your Quarrel; and question not but your Enemies will have the worst on't, for your Wounds will Save you, and if you fall Martyrs you will rise Saints. What cannot our sufferings bring about? They make even God himself our Debtor; he owes us Heaven for our selves, and he owes Hell for our Enemies: But yet we breath our Souls in prayer that he may be entreated not to pay This.’

What Example now can there be more Glorious or more Instructive, then that of the Theban Legion, recorded in Ecclesiastical Story? The Emperour Maxi­minian commanding his army to offer Sacrifice to False Gods, this Band (consisting of about 7000 men) [Page 33]remov'd their Quarters, to the end that they might avoid giving offence; but yet he presses them to bear a part in this Diabolical service, and upon their humble refusal puts them forthwith to a Decima­tion, which they chearfully submit unto, praying fur their Murtherers: The Tyrant would not yet be so­tisfied, but renew'd his Commands to the Remainder of them, and finding them still to continue Resolute rather to die than to disobey God, he butcher'd them all, without the least Resistance on their part. This was truly to Confess him that was led as a sheep to the Slaughter! Nay so very Fruitful are the Antient Fathers in Instances of this quality, that it would be but Superfluous to recount any more of them; the Ge­neral Practice of the Primitive Christians being so e­vident in this point, that the greatest Sticklers for that sin of Witchcraft, Rebellion, have not the Con­fidence to deny it.

III. That a Liberty to Resist those in whom the Law has plac'd the Power of the Sword is Repugnant to Sound Reason, I shall endeavour to make out by the following Arguments.

1. Such a License to Subjects against their Rulers, is destructive of the very Nature of Government, and of Humane Society; for it dissolves the sinews of the State, and splits it into as many. Factions as it has Enemies. And it is impossible to conceive Two E­qual Supremacies of Power in the Nation, and yet the Kingdome to remaine One. For this it is that distin­guishes England, France, Spain, and all other Indepen­dent Kingdomes one from another. But then it is Childish to Fancy the Policy of any Monarchy (much [Page 34]less of our own) to be so grosly defective, as to be the Author of its own ruine, by dividing the State Legally against it self. So that to take up Arms without or against Authority, is down right Rebel­lion, and the Consequence Murther and Rapine.

2. It is both Reasonable, and necessary, that all Governments should have a Supereminent, Coercive Power over Particular Persons; for otherwise a City would immediately be hurry'd into an Anarchy, and that which ought to be One Entire Body, become so many Independnet men.

3. That which to One Private Person is due, as a Man, the same is also due to Another; and if I may assume to my self a power of judging when to Re­sist my Prince, every private man may do so too. Now what Peace, what Society can there be hop'd for, where every one is at freedom to discharge himself from the Obligation of all Humane Laws, and to oppose them at pleasure? Or what Obedience can consist with such Resistance? Nor will such Li­bertines know where to stop; for it is usual for them to fall foul upon all such as have a deeper sense of Honesty and Allegiance than themselves. And what Law of God or Man was ever heard of, that ap­prov'd of my Murthering, a Loyal man becuase I my self am a Rebel? Beside that this Lewd Opinion Equally wounds the very Assertors of it; for any body may be allow'd to do That to Them, which they have done to their Rightful Prince and his Faithful Sub­jects.

4. Now Touching the Muncipal Laws of the Land; [Page 35]that this Resistance is against Them, I shall make it E­vident. Bracton says, Si ab eo (scil. Rege) Petatur; cum Breve non Currat contra Ipsum, locus erit suppli­cationi, Lib. 5. c. 8. quod factum suum Corrigat & Emendat; quod quidem si non fecerit, satis suffieit ei ad paenam, quod Do­minum Expectet Ʋltorem: Nemo quidem de factis suis presumat desputare, Multo fortius contra factum suum ve­nire. If a Subject find himself agriev'd by the King, he is put to his Petition (because no Writ can lie against him) for Redress; which if he will not vouchsafe, it is a sufficient Penalty, that he is to expect Punishment from the Almighty. No man may presume to question what He does, much less to Oppose him. Fleta concurs with Bracton in this point; Vid. Lib. 1. c. 17. And Lombard writes thus, Nemo Dominum (says he) judicet, vel judi­cium proferat super eum cujus Ligius sit. So likewise the Statute of 25. Ed. 3. c. 2. de proditionibus, makes it Treason to compass the Death of the King. And to what end should these, or any other Provisions against Treason have been establish'd, if Resistance were in Any Case Lawful? Or what does the Oath of Aliegiance sig­nifie, if the people may take up Arms against their Prince at pleasure? The Form of it runs thus; You shall swear that from this day sorward you shall be True and Faithful unto our Soveraign Lord King Charles, and Truth and faith shall bear of Life and Member, and Terrene Honour; and you shall neither know nor hear of any ill or Dammage intended unto him that you shall not defend &c. My Lord Coke comments upon it, that the Subject and Effect, of this Oath is due by the Law of Nature, the Form and Addition is, ex provisione Hominis. To Con­clude, the Famous Bishop Marks is Positive, That a King by Lineal Succession, being Lawfully invested, cannot upon Imputation either of Negligence or Tyranny be Op­posed, or Deposed by his own Subjects.

Thus having given a dsecription of the Lord High-Stewards Office, and the manner how a Peer is to be Arraigned before him, with such Solutions to several Queries, as I have collected out of the Books of Law and History, I shall conclude all with this Advertisement;

That the surest way to escape both the Guilt and Pu­nishment of High-Treason, is to Fear God, and Honour the King. Eccles. 13. v. 28. The Counsel given us by the wisest of Kings is worthy to be adverted to. Think not evil of the King in thy Heart, neither utter it with thy lips, least a Bird of the Air carry the voice, and that which hath wings discover the matter. Let us detest the Principles be­liev'd and practis'd by those Audacious Violators of Royal Majesty, the Spawn of Loyola, and keep fast to the Doctrine of our own Church, which positively Asserts, That the sacred Bond of Subjects, in Obedience to their soveraign, is inviolable, and cannot be dissolved, either upon the account of supposed Crimes in the per­son of the Prince, as Tyranny, Insidelity, Heresie, &c. Or by any Acts of the Bishops of Rome, as Dispensa­tions, Excommunications, &c.

It was once said in Vnlonger's Case, that he that is throughly Popish, may easily be wrapt from his Loy­alty.