Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	baron_n	chief_a	knight_n	3,637	5	8.5333	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26172	Jani Anglorum facies nova, or, Several monuments of antiquity touching the great councils of the kingdom and the court of the kings immediate tenants and officers from the first of William the First, to the forty ninth of Henry the third, reviv'd and clear'd : wherein the sense of the common-council of the kingdom mentioned in King John's charter, and of the laws ecclesiastical, or civil, concerning clergy-men's voting in capital cases is submitted to the judgement of the learned.	Atwood, William, d. 1705?	1680 (1680)	Wing A4174; ESTC R37043	81,835	173

venire omnes illos qui terras tenent de dominico victu Ecclesiae de Heli et volo ut Ecclesia eas habeat sicut habuit die qua Edwardus Rex fuit vivus et mortuus et si aliquis dixerit quod inde de meo dono aliquid habeat Mandate in magnitudinem terrae et quomodo eam reclamat et ego secundum quod audiero aut ei inde escambitionem reddam aut aliud faciam facite etiam ut Abbas Symeon habeat omnes confuetudines quae ad Abbatiam de Heli pertinent sicut eas habebat Antecessor ejus tempore Regis Edwardi Preterea facite ut Abbas seisitus sit de illis Theinlandis quae ad Abbatiam pertinebant die quo Rex Edwardus fuit mortuus si illi qui eas habent secum concordare noluerint et ad istud placitum summonete Willielmum de Guaregnna et Richardum filium Gisleberti et Hugonem de Monteforti et Goffridum de Manna Villâ et Radulfum de Belfo et Herveum Bituricensem et Hardewinum de Escalers et alios quos Abbas vobis nominabit Upon these Writs many useful things might be observed but I will confine my self as nigh as I can to my purpose From them as interpreted by equal authority of History it appears that Wil. the first us'd to commissionate several of his Barons I will not oppose their being his great Tenants in Chief these were to preside in the Tryals of matters within ordinary Justice which were to be try'd in the several Counties where the question arose sometimes in one County sometimes in several together as the men of the several Counties that is the several Counties were united Sometimes these great Men sometimes the Sheriffs were to Summon the Parties and to take care that an Inquest of the County or Counties concern'd be impannell'd in the Counties that is by the choice of the Freeholders The Kings Commissioners were to pronounce the Judgment in the Kings Name or stead So the Bishop of Constance did right to Lanfranc 't was Judicio Baronum Regis qui placitum tenuerunt and yet ex communi omnium astipulatione judicio The Inquest upon their Oaths found the matter of Fact the Judges stated it to the people and delivered their Judgment to which the Primores probi homines assented for 't was ex communi omnium astipulatione this agrees with what Bracton says of the Laws pass'd in the Great Council of the Nation De Concilio Consensu Magnatum Reipublicae communi sponsione But it may be objected that the Kings Writ is to the Great Men to do Justice to which the Books give an answer that the Kings Writ does not change the Nature or Jurisdiction of a Court and therefore though a Writ of Right or a Justities be directed to the Sheriff yet the Suitors in the County Court are Judges And what their Jurisdiction was in the time of Wil. the first is to be gathered from what continued to the Freeholders or Suitors of the County Court of Chester even till the time of Edward the First Upon a Writ of Error to remove a Judgment out of the County Palatine of Chester into the King's Bench in a Plea of Land The Chief Justice of Chester certifies that the Judicatores et Sectatores the Suitors at the County Court clamant habere talem libertatem quod in tali casu debent omnes Barones eorum Seneschal ac Judicatores ejusdem Comitatus summoniri audituri hujusmodi processum Recordum illa antiquam sigilla sua apponant si fuerit infra tertium Comitatum per seipsos emendare Et hujusmodi libertates a tempore quo non exstat memoria usi sunt et gavisi And the Chief Justice farther certifies quòd fecit summoniri omnes Barones et Judicatores accordingly The Parties Assembled at the Council of Pinnedene were the Primores et probi viri of the Counties concern'd which answer to the Proceres et fideles Regni in the union of all the Counties in Parliament as in the 42 of Henry 3. which in another Record of the same Parliament are branch'd out into hanz hommes e prodes hommes there are the Primores et probi viri e du commun de nostre Realme that is as the Statute of the Staple has it the Prelates Dukes Earles Barons the Great Men of the Counties Grands des County's as the French and the Commons of the Cities and Borroughs The Testimony of Eadmerus concerning the Parties to the Judgment at Pinnedene confirms me in my opinion that the Summons to a Great Council as I take it in this Kings Reign mentioned by Simon of Durham and Florentius Wygorniensis which was to all the Bishops Abbots Earles Barons Sheriffs with their Knights was not to them and those only who held of them by Knights Service for more than such were Judges even for matters of ordinary Justice within the Counties but that it was to them and the Sheriffs Knights the Freeholders of the Countys who were by St. Edwards Laws oblig'd to find Arms and became Knights Milites as soon as by publick Authority they took Arms the antient form of Manumission proves this sufficiently Siquis velit servum suum liberum facere tradet eum Vicecomiti per manum dextram in pleno Comitatu et quietum illum clamare debet a jugo servitutis suae per manumissionem et ostendat ei liberas portas et vivias et tradat illi libera Arma viz. Lanceam et Gladium et deinde liber homo efficitur Thus he becomes a freeman and the Sheriffs Knights at the same time That all Freeholders had the appellation of Milites is evident by many Records and even a Statute that for the choice of Coroners which was but declaratory of the common Law as appears by several Records before that time I will instance in one Because one that had been chosen Coroner was neither a Knight or Freeman as that interprets it self nor yet discreet therefore a new choice is directed Miles non est et in servitio alieno et juvenis et insufficiens et minus discretus Here in Servitio alieno a servant is put in contradistinction to Miles that is to a Freeholder or Liber tenens Et here has the like import with Sed unless a man might have been a Knight and yet no Freeman The Freeholders of the County of Cornwall Fine to the King for leave to chuse their Sheriff 't is said in the Record Milites de Com. Cornubiae finem fecerunt Rot. fin 5º H. 3. pars 1 a. M 9. And these which are here called by the general denomination of Knights are in another Record of the same specified under these names Episcopus Comites Bar. Milites libere tenentes et omnes alii de Com. so that all the people of the

Rex Magnates regni Mat. West Anglicani regni praesules Proceres Gervasius Episcopi proceres Radulphus de Diceto Praelati proceres Populus regni as another Clerus populus regni Hoveden The whole Kingdom as Dr. Stillingfleet shews us out of the Quadripartite History The body of the Realm as Sr. Roger Twisden terms it Yet I conceive that the clause so much tost to and fro without any right settlement referrs to the ordinary Curia Regis to which the Kings Tenants were bound by their tenure to come and where ordinary justice or jurisdiction in all or most causes was exercised and this gives some account why the Bishops who have been from the Normans acquisition downwards tenants in chief because of their temporalties and during vacancies the Guardians of those temporalties upon that very account have been particularly summon'd why I say they should be allowed to vote in a legislative capacity which they have as Proprietors though no tenants of the King when they proceed by way of bill of attainder and yet tenure only qualifying them for Judges in Parliament as before in the Kings ordinary Curia interesse judiciis Curiae or at least they succeeding to the jurisdiction of the Tenants in the Curia according to the constitution of Clarend that jurisdiction which they have as tenants or as succedaneous to such extends not to matters of blood It will not be proved that the coming to the Great Council where the extraordinary power justice or legislature was exercis'd was meerly because of tenure and that no body had right to be of the great Council but they that held in capite or were members of the ordinary Curia indeed when that was taken away or disus'd they that before were to do suit and service at the Curia were to perform it at the Great Court the Parliament for there was no other Court where they could and therefore in the 8th of Ed. 2. the Inhabitants of St. Albans plead that they held in Capite And as other Burroughs were to come to Parliament pro omni servitio But that the coming to the Judgements of the ordinary Curia was meerly because of tenure appears from the words of the constitution Arch. Ep. c. universi personae regni qui de Rege tenent in capite habent possessiones suas de Domino Rege sicut Baroniam c. sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus c. That is except as is there excepted these ecclesiastical tenants or Barons were to be present or interested in the Judgements together with the Kings Justices and Officers as the other Barons that is Lay-tenants in Capite It seems both Ecclesiasticks and Lay-tenants in Capite held per Baroniam yet I think caeteri Barones ought to be confin'd to them that held of the King in Chief by Knights service for many held in feodo firmâ by the payment of a certain rent or petty Serjeanty the payment of a gilt spur or the like pro omni servitio of which the Records are full who were not ordinarily to give their attendance at the Curia But tenure per Baroniam was I take it in those times no more than tenure by Knights Service in Capite This perhaps I could prove by many records I shall instance in one to the honour of a Noble Peer of this Realm now Earl late Baron of Berkley as his Ancestors have been ever since the time of Hen. 2. One of his Ancestors had the grant of the Mannor of Berkley Harness from Hen. 2. Tenendum in feodo haereditate sibi haeredibus suis per servitium Quinque Militum An office is found in Edw. the third's time upon the death of Maurice Berkley and there 't is that he held per Baroniam faciendo inde servitium Trium Militum pro omni servitio Two Knights fees having been alien'd inde upon the account of the Barony or rather the land was the Knights Service and the Knights service made the Barony as appears there being no particular words creating any honourable tenure but what resulted from serving the King with men upon his own charges the number I take it made nothing towards the nature of the tenure These tenants by Knights service the Kings Barons were obliged to be at the Kings Courts de more if at the Great Court when he should call them the chief ground was upon their ordinary attendance amongst the rest of the tenants That what relates to the Curia Regis within the Const of Clarendon was meant of the ordinary justice of the Kings Court and consequently the ordinary Court old _____ of Glocester is express Yuf a man of holi-Church hath ein lay fee Parson otherwhat he be he shall do therevore King's Service that there valth that is right ne be vorlore In plaiding and in Assize be and in judgement also But this farther appears by the summons to and proceedings at Northampton the very next year This Hoveden calls Curia Regis and Mr. Selden informs us out of an antient Author that the summons thither was only to the members of the ordinary Curia Omnes qui de Rege tenebant in Capite mandari fecit upon the Bishops withdrawing from the judging of Becket the ground of which I shall soon examin Quidam Vicecomites Barones secundae dignitatis were added 't was quidam Vicecomites some Sheriffs it could not be all because several were Majores Barones having the countys in fee but this restraint seems not to reach to the Barones secundae dignitatis suppose that it does and so comes only to the uppermost of them the Vavasores perhaps that is inferior or Mesne Lords holding Mannors of others not the King still here were more than tenants in Chief and to be sure these being said to be added were more than the members of the ordinary Curia and this Court to which they were added was only the ordinary Court of Justice If we can shew when this ordinary Court of Justice determin'd and who succeeded into the places of the ordinary members of it we may go farther to clear the matter in question than perhaps has yet been done If the Lords the great men succeeded the Court of Tenants and were let into that jurisdiction which they exercised and there is no colour of proof that Clergy-men in the Curia Regis ever voted in Capital causes but if on the other side the prohibitions running against judicia sanguinis and the constitution of Clarendon referring to the Curia Regis where the ordinary judicia sanguinis were agitated and pronounced justly they took themselves to be excluded the Curia quando de illis materiis agitur It will I think be evident that the Bishops as a part of the house of Lords answering to the Court of the Kings tenants never had any right to

to the Judgement But of this the great Council at Westminster in the year 1175. is the best Interpreter And if the Clergy-men neither before the constitution of Clarendon nor by it were excluded from medling in these causes they are by the last in full Parliament the testimony of which is transmitted by us by no less an Author than Gervase of Dover who liv'd in the very time and whose credit this learned Person supports by following him rather than Matthew Paris In hoc concilio he tells us ad emendationem Anglicanae Ecclesiae assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula amongst which the third is this Hiis qui in sacris ordinibus constituti sunt Judicium Sanguinis agitare non licet unde prohibemus ne aut per se membrorum truncationes faciant aut inferendas judicent c. this is almost the same in words with that of Toledo and by the concession of the Learned Author of the Gr. Question that of Toledo was then produced by Richard Arch-bishop of Canterbury the same we find in Hoveden said in the Margent to be ex concilio Toletano Judicium sanguinis agitare non licet surely comes up to the preliminaries and I cannot understand the coherence of saying to this effect It is a received Maxime that Clergy-men ought not so much as to vote in preliminarys relating to capital cases and therefore to give the final Judgement is only unlawful by the Canon which declares that to vote even in preliminarys is unlawful In Richard the second 's time the Bishops understood not this nice reasoning and therefore they enter their formal Protestation on Record Agitur de nonnullis Materiis that is Capital causes in quibus non licet nobis aut alicui eorum juxta Sacrorum canonum Instituta quomodolibet personaliter interesse 'T was not so much because 't was in Parliament as because matter of Blood was in question And indeed the Canons mentioning Judicia Sanguinis that is Ordinary Judgements such as were agitated in the Kings Ordinary Court of Justice and the constitution of Clarendon referring only to that Court it appears that these Constitutions were received in Parliament in the Reign of Edw. the first When the King ty'd up his hands from giving Clergy-men Power even so much as by his special Commissions to sit upon the tryals of such causes We for the Utility of our Realm and for the more assured conservation of our peace have provided and ordained that Justices assigned to take Assizes in every County where they do take as they be appointed Assizes incontinent after the Assizes taken in the Shires shall remain both together if they be Lay. And if one of them be a Clerk then one of the most discreet Knights of the Shire being Associate to him that is a Lay-man by our Writ shall deliver the Gaoles of the Shires Hereby it appears that if one of the Judges were a Clergy-man he was not so much as to sit with the other upon the delivery of the Gaol that is the tryal of capital Causes but another Lay-man should be commission'd for that purpose And agreeable to this we find in the Records of the Tower that when two have been Commissioned as Judges for the same Circuit whereof one has been a Clergy-man the other Lay the Clergy-man has had only Common-Pleas in his Commission the other both Common-Pleas and Pleas of the Crown nor is it material that some Rolls may be found out purporting as if Pleas had been held before two whereof one hapned to be a Clerk for it is to be taken reddendo singula singulis 2. This were enough to settle the 2d point viz. of what force such prohibition as I have shewn is at this day but I take leave to offer farther what as I conceive may give yet clearer satisfaction which is that the difference of an Ecclesiastical Synod from a Temporal Great Council was not taken from the persons present in either but the matters of which they treated and the parties which managed there according to the different matters if Ecclesiastical Affairs 't was a Synod if temporal it had some other name as Commune Concilium Regni Angliae or the like to distinguish it by The great Jewel hath long since given Authority to this Assertion about Ecclesiastical Synods which he calls concilia Episcopalia Ab Episcopis nomen concilia invenisse fateor eoque dicta fuisse Episcopalia quod Episcoporum judicio prudentiâ omnia constituerentur Sed tune idcirco concilia haec nihil ad principem attinuisse colliges As the Ecclesiastical Laws were supposed to lay a more immediate Obligation upon the conscience and were for the most part enforc't by Ecclesiastical censures they were call'd Canons or Rules not having that outward coertion and penalties annext which others had but yet they were no less Laws The Statute of Henry the 8th which provides That no Canons Constitutions or Ordinance shall be made or put in Execution within this Realme by Authority of the Convocation of the Clergy does not in the least Abrogate or Condemn those which were made by the Authority of the King the Clergy and the Laity As I will not say all Ecclesiastical constitutions were from the time of William 1. to the above-mentioned Synod at Westminster it is enough if that alone were so And then if that be not repugnant to some Law since made I conceive it is still in force having had full Legal sanction For the clearing this 't will be necessary to shew something of the nature of the Ecclesiastical Councils according to the Modus establisht anciently in Engl. I must confess that several Historians when they mention concilium totius Angliae speaking of an Ecclesiastical Council add frequently Episcoporum viz. Abbatum nec non multarum religiosi ordinis personarum or to that effect But Bishop Jewel has well Interpreted such Expressions and therefore we need not wonder when we find another say Lanfrancus Cant. Arch. totius Angliae Primas diversa in diversis locis Angliae celebravit concilia Though to be sure the King were sometimes jubens praesens as at the Council at Winchester But it appears even by their own modus tenendi synodos in Angliâ primaevis temporibus which I take it was the same that was agreed on in Lanfranc's time of whom Malmsbury sayes quaesivit à senioribus Episcopis qui esset ordo sedendi in concilio Antiquo more statutus c. By their antient Modus I say it appears that the Laity were to be present in their Ecclesiastical Councils for when it mentions the Clergy in order it adds Exinde introducantur Laici bonae conversationis that is probi homines vel qui electione conjugali interesse meruerint every Lay-man of good conversation probus homo or

a general Council of the Nation appears by the Statute of Provisors which declares that the Popes assuming the jus patronatus was an incroachment that is usurpation or unlawful act which it would not have been if the Comites Barones and turba multa nimis that unanimously agreed to those shameful terms which King John yielded had been enough to constitute a full representative of the Nation If they had been call'd to Council not to fight then indeed upon knowledge that matters of general obligation were to be settled though but few had come they would have concluded the rest The Army as it was computed were about 60000 but that being made up of Servants Villains and all manner of people 't is not to be supposed that there were there nigh the half of the proprietors which must have been present to make any thing of general obligation without notice of its being so intended Of the same nature with this was that shameful resignation of the Crown before mentioned near Dover whereas the first agrreement was at Dover The same year his Tenants who were to maintain themselves in his Court and Army at their own charge complain that he had kept them out so long that they had spent all their money and could follow him no longer unless he supply'd them out of the Exchequer This year there was a Great Council at St. Albans where were all the Magnates regni and there was a confirmation of the laws of Hen. the first whereas we find nothing of that nature at any Curia of the Kings tenants and Officers only The same year he held his Court on Christmas at Windsor but a Great Council was held at Oxford the Summons to which Mr. Selden produces but sayes the Record of it for ought he had seen is without Example Rex Vicecomiti Oxon salutem praecipimus tibi quod omnes Milites Ballivae tuae qui summoniti fuerunt ad nos à die Omnium Sanctorum in quind dies Venire facias cum armis suis Upon this part 't is observable that there had been a general notice or Proclamation of the time when he would have those that ow'd him Military Service to attend with their Armes but the place was not named for they were to follow him whereever he would have his Court and therefore herein was an apparent Grievance in some measure redress'd by his Charter Two years after in ascertaining the place of Meeting to Consult of Aids and Escuage but besides these Tenants there were others Corpora vero Baronum sine Armis singulariter quatuor discretos Milites de comitatu tuo venire facias ad nos ad eundem terminum ad loquendum nobiscum de Negotiis regni Nostri Teste meipso apud Witten 11 die Nov. Eodem modo scribitur omnibus Vicecomitibus Thus much I take to be clear from it that here was an union of the Ordinary Curia Regis the Court of the King 's Military Tenants who were to attend with their Armes and of peaceable Senators in a great Council If the Barones of whom the Sheriff was to take special care were only such as were Barons by tenure 't is not supposable that contrary to the Obligation of their tenure they should be ordered to come unarmed whil'st only their Tenants or at least Inferiour Tenants to the King had their Swords in their hands wherefore Barones here must be taken in the most large and comprehensive sense But this is farther observable that where the Summons was General to all the Arch-Bishops Bishops Abbots Priors Earles Barons Knights and Free-holders yet there has been a special Inquest summoned or taken out of the Generality as in the Summons to attend the Justices in Eyre Summoneas per bonos Summ. Omnes Arch. Ep. Abb. Pri. Comit. Baron Milites liberè tenentes de Balliva tua de qualibet villâ quatuor legales homines praepositum de quolibet Burgo Duodecim Legales Burgenses c. And even agreeably to this Record of the 18 of King John we find that in the 42 of Henry the third it was agreed that there should be quatuor Milites Inquisitores four Inquisitors in every County who were to be sworn in the County Court to enquire faithfully into the business of every County in order to represent it at Parliament which has no semblance of their being the representatives of the Counties only the presenters and methodizers of that business to which the Great Council gave their Assent or Dissent From this time to the Great Assembly at Rumny Mead I find neither a Great Council nor Curia mentioned that to be sure was of more than the King's Tenants as I have already shewn I shall only observe farther that it consisted of that Army which was got together on both sides On the peoples side was a very great Army Comitum Baronum Militum Servientium Peditum Equitum cum Communibus Villarum Civitatum and after this they had a great accession by gaining the whole City of London and all that were neutral before and even most of those that had kept along with the King upon this the King condescends to treat the place is agreed upon and accordingly convenerunt ad colloquium Rex Magnates who these were the Record tells us and the Assembly was as General as the Concession on the King's side Concessimus omnibus liberis hominibus nostris Regni Angliae pro nobis haeredibus nostris in perpetuum omnes libertates subscriptas habendas tenendas eis haeredibus suis de nobis haeredibus nostris Even this was a Curia Regis in a large sense but not the ordinary Curia and though 't were the Common Council of the Kingdom as 't was the Assembly of the whole Community yet not the ordinary Common Council for that might be and I need not scruple to say that it was of the King's Tenants and Officers which in that sense and to the purposes for which of course it met was the Commune concilium regni yet like the Kings ordinary Privy Council or his Courts of Justice long since settled at Westminster-Hall they could exercise no act of legislation If it be said that the charging Tenants with more than was due of custom were such an Act by the same reason the power of making By-laws would argue a legislative power and there would be a little Parliament in every Village Without re-examining particular instances I conceive 't is obvious that admit the ordinary Curia Regis at any time exercised a power peculiar to the Great Council of which I dare boldly say there are very rare if any instances such that it can be affirm'd with certainty this was an ordinary Curia without a more solemn convention or Summons yet in irregular times many of them would not make one legal President especially against so many declarations