Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	chief_a	king_n	sergeant_n	3,954	5	11.1102	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A12533	De republica Anglorum The maner of gouernement or policie of the realme of England, compiled by the honorable man Thomas Smyth, Doctor of the ciuil lawes, knight, and principall secretarie vnto the two most worthie princes, King Edwarde the sixt, and Queene Elizabeth. Seene and allowed.; Common-wealth of England	Smith, Thomas, Sir, 1513-1577.	1583 (1583)	STC 22857; ESTC S117628	79,409	124

pleading place in Rome might be couered ouer with canuas as their theaters were to the intent that the plaintifes and defendauntes that were there might plead their matters more at ease and not be in so much danger of their health by the heate of the sunne striking full and open vpon their heades which was no smal griefe and disease specially at Rome Nay saith Cato for my part I had rather with that all the waies to the place of pleading were cast ouer with galthrops that the féete of such as loue so well pleading should féele so much paine of those prickes in going thither as their heades doe of the sunne in tarrying there he ment that they were but idle whot heades busie bodies and troublesome men in the common wealth that did so nourish pleading good labourers and quiet men could bee content to ende their matters at home by iudgement of their neighbours and kinsfolke without spending so their money vpon procurers and aduocates whom we call attornies counsellers Sergeants and generallie men of lawe Those be accounted profitable citizens who attende their honest labour and businesse at home and not stande waiting and gaping vppon their rolles and processe in the lawe as for the other by his iudgement it was no matter what mischiefe they suffered To the other question of the chancerie this I answere That our lawe which is called of vs the common lawe as ye would say Ius ciuile is and standeth vpon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is Ius summum and their maximees be taken so straitlie that they may not depart from the tenour of the wordes euen as the olde ciuill lawe was And therefore as that lacked the helpe of a Praetor which might moderari illud ius summum give actions where none was mitigate the exactnesse and rigour of the lawe written give exceptions as metus doli mali minoris aetatis c. for remedies and maintaine alwaies aequum bonum the same order and rancke holdeth our chauncerie and the chauncellor hath the verie authoritie héerein as had the Praeter in the olde ciuill law before the time of the Emperours So he that putteth vp his bill in the chauncerie after that he hath declared the mischiefe wherein he is hath reléefe as in the solemne forum And for so much as in this case hee is without remedie in the common lawe therefore he requireth the chauncellor according to equitie and reason to prouide for him and to take such order as to good conscience shall appertaine And the court of the chauncerie is called of the common people the court of conscience because that the chauncellor is not strained by rigour or forme of wordes of lawe to iudge but ex aequo and bono and according to conscience as I haue saide And in this court the vsuall and proper forme of pleading of Englande is not vsed but the forme of pleading by writing which is vsed in other countries according to the ciuill lawe and the tryall is not by xij men but by the examination of witnesse as in other courtes of the ciuill lawe Of Iudges in the common lawe of England and the manner of tryall and pleading there CHAP. 12. THe Prince out of the numbers of those who haue béene Counsellers or Sergeants at the law which be those who in latin are called causidici or aduocati chooseth two of the most approoued for learning age discretion and exercise of whom the one is called chiefe Iustice of the Kings bench or simply chiefe Iustice the other chiefe Iustice of the common place and others to the number of sixe or more which haue each an ordinarie fée or stipend of the Prince These doe sit at such daies as be terme which may be called Dies legitimi iuridici or fasti in their distinct places as I haue said before There they heare the pleading of all matters which doe come before them and in ciuill matters where the pleading is for money or land or possession part by writing and part by declaration and altercation of the aduocates the one with thother it doth so procéede before them till it doe come to the issue which the latines doe call statum causae I doe not meane contestationem litis but as the Rhetoritians do call statum we doe most properly call it the issue for there is the place where the debate and strife remaineth as a water held in a close and darke vessel issueth out is voided and emptied and no where else that stroke well striken is the departing of all the quarrelles Issues or status in our lawe bee ordinarily two facti and iuris Of the two manner of issues CHAP. 13. IF the question be of the lawe that is if both the parties doe agrée vpon the fact and each doe claime that by lawe he ought to haue it and will still in that sort maintaine their right then it is called a demurrer in lawe where if in the lawe the case séeme to the Iudges that sitte doubtfull it is called a checkerchamber case and all the Iudges will méete together and what they shall pronounce to be the lawe that is helde for right and the other partie looseth his action or lande for euer If the Sergeantes or counsellors doe stande vpon anie point in the law which is not so doubtful the Iudges who be taken for most expert biddes him go forwarde and if he hath no other to say but standeth vppon that point of the lawe that bidding goe forwarde is taken that he looseth his action and the defendant is licensed to depart without a day and this is where the issue or question is of the lawe or Iuris So is that case where the lawe is not doubtfull according to the matter contayned in the declaration answere replication reioinder or triplication the Iudge out of hande decideth it And it is the manner that each partie must agrée to the other stil in y e fact which he cannot denie For if he once come to denie any déede as not doone not his writing that the man by whome the aduersarie claimeth was not the aduersaries auncestor or the euidence which his aduersarie bringeth is not true or that his gift was former or any such like exception which is vaileable to abate the action or barre the partie and the other ioyneth in the affirmatiue and will auerre and proue the same this is called the issue and immediatly all question of the lawe ceaseth as agréed by both the parties that there is no question in the lawe Then as that issue facti is founde by the xij men of whom wee shall speake heareafter so the one partie or other looseth his cause and action so that contrarie to the maner of the ciuill lawe where first the fact is examined by witnesses indices tormentes and such like probations to finde out the truth thereof and that doone the aduocats doe dispute of the law to make of it what they can saying ex

a certaine proportiō betwéene the scarcity and plentie of other thinges with gold and siluer as I haue declared more at large in my booke of monie For all other measures and weightes aswell of drie thinges as of wet they haue accustomed to be established or altered by the Parliament and not by the princes proclamation only The prince vseth also to dispence with lawes made whereas equitie requireth a moderation to be had and with paynes for transgression of lawes where the payne of the lawe is applyed onely to the prince But where the forfaite as in popular actions it chaunceth many times is part to the prince the other part to the declarator detector or informer there the prince doth dispence for his owne part onely Where the criminall action is intended by inquisition that maner is called with vs at the princes suite the prince giueeth absolution or pardon yet with a clause modo stet rectus in curia that is to say that no man obiect against the offendor Whereby notwithstanding that he hath the princes pardon if the person offended will take vppon him the accusation which in our language is called the appeale in cases where it lieth the princes pardon doth not serue the offendor The prince giueth all the chiefe and highest offices or magistracies of the realme be it of iudgement or dignitie temporall or spirituall and hath the tenthes and first fruites of all Ecclesiasticall promotions except in the Uniuersities and certaine Colledges which be exempt All writtes executions and commaundementes be done in the princes name We doe say in England the life and member of the kinges subiectes are the kinges onely that is to say no man hath hault nor moyenne iustice but the king nor can hold plea thereof And therefore all those pleas which touche the life or the mutilation of man be called pleas of the crowne nor can be dooke in the name of any inferior person than he or shée that holdeth the crowne of Englande And likewise no man can giue pardon thereof but the prince onely Although in times past there were certaine countie Palatines as Chester Durham Clie which were hault iusticers and writtes went in their name and also some Lorde marchers of Wales which claymed like priuiledge All these are now worne away The supreme iustice is done in the kinges name and by his authoritie onely The Prince hath the wardshippe and first mariage of all those that hold landes of him in chiefe And also the gouernement of all fooles natural or such as be made by aduenture of sicknes and so continue if they be landed This being once graunted by act of Parliament although some inconuenience hath béene thought to grow thereof sith that time it hath béene thought verie vnreasonable yet once annexed to the crowne who ought to go about to take the clubbe out of Hercules hand And being gouerned iustly rightly I see not so much inconuenience in it as some men would make of it diuerse other rights and preeminences the prince hath which be called prerogatiues royalles or the prerogatiue of the king which be declared particularly in the bookes of the common lawes of England To be short the prince is the life the head and the authoritie of all thinges that be doone in the realme of England And to no prince is doone more honor and reuerence than to the King and Queene of Englande no man speaketh to the prince nor serueth at the table but in adoration and kneeling all persons of the realme be bareheaded before him insomuch that in the chamber of presence where the cloath of estate is set no man dare walke yea though the prince be not there no man dare tarrie there but bareheadded This is vnderstood of the subiectes of the realme For all strangers be suffered there and in all places to vse the manner of their countrie such is the ciuilitie of our nation The chiefe pointes wherein one common wealth doth differ from an other CHAP. 4. NOw that we haue spoken of the parliament which is the whole vniuersall and generall consent and authoritie aswell of the prince as of the nobilitie and commons that is to say of the whole head and bodie of the realme of England and also of the prince which is the head life and gouernor of this common wealth there remaineth to shewe how this head doth distribute his authoritie and power to the rest of the members for the gouernment of this realme and the commō wealth of the politique bodie of England And whereas as all common wealthes and gouernmentes be most occupyed and be most diuerse in the fashion of fiue thinges in making of lawes and ordinaunces for their owne gouerment in making of battel peace of truce with forraine nations in prouiding of mony for the maintenance of themselues within thēselues defence of themselues against their enemies in choosing and election of the chiefe officers and magistrates and fiftly in the administration of iustice The first and thirde we haue shewed is doone by the prince in parliament The seconde and fourth by the prince himselfe The fift remaineth to be declared Of the three maners and formes of trialles or iudgementes in England CHAP. 5. By order and vsage of Englande there is three wayes and maners whereby absolute and definite iudgement is giuen by parliament which is the highest and most absolute by battle and by the great assise Triall or iudgement by parliament CHAP. 6. THe matter of giuing iudgement by parliament betweene priuate and priuate man or betweene the prince and any priuate man be it in matters criminall or ciuill for land or for heritage doth not differ frō thorder which I haue prescribed but it proceedeth by bill thrise read in ech house and assented to as I haue saide before and at the last day confirmed and allowed by the prince Howbeit such bils be seeldome receaued because that great counsell being enough occupyed with the publique affaires of the realme will not gladly intermedle it selfe with priuate quarels questions Triall of iudgement by battle CHAP. 7. THis is at this present not much vsed partly because of long time the Pope and the cleargie to whom in times past we were much subiect alwayes cryed against it as a thing damnable and vnlawful and partly because in all common wealthes as to the tongue so to the maners fashions habites yea and kindes of trials and iudgmentes and to all other thinges that is therein vsed time and space of yeares bringeth a chaunge But I could not yet learne that it was euer abrogated So that it remaineth in force whensoeuer it be demanded The maner of it is described in Briton The triall by affise or xij men first of the three partes which be necessary in iudgement CHAP. 8. THe two first iugdementes be absolute supreme and without appeale and so is also the iudgement by the great affise And because our manner of iudgementes in England is in

facto ius oritur héere the Sergeantes or counsellers before the Iudges doe in passing forewarde with their pleading determine and agrée vpon the lawe and for the most part and in manner all actions as well criminiall as ciuill come to the issue state of some fact which is denied of the one partie and auerred of the other which fact being tried by the xij men as they find so the action is wonne or lost And if a man haue many peremptorie exceptions peremptorie exceptions I call onely those which can make the state and issue because the xij men be commonly rude and ignorant the partie shalbe compelled to choose one exception whereupon to founde his issue which chosen if he faile in that by the verdite of xij men he looseth his action and cause and the rest can serue him for nothing Having séene both in France and other places many deuices edictes and ordinaunces howe to abridge proces and to finde howe that long suites in law might be made shorter I haue not perceiued nor reade as yet so wise so iust and so well deuised a meane found out as this by any man among vs in Europe Trueth it is that where this fashion hath not béene vsed and to them to whom it is newe it will not be so easily vnderstood and therfore they may peraduenture be of contrarie iudgement but the more they doe weigh and consider it the more reasonable they shall finde it Howe the issue question or status iuris is decided I haue tolde now I will shewe howe it is tryed when it doth come to the question state or issue of the déede or fact And first I must speake more largely of the manner of procéeding in the processe and of such persons as be necessary for the execution thereof Of the sherife of the shire and of the court of exchequer CHAP. 14. THe Romans had to execute the commaundementes of the magistrates Lictores viatores accensos The ciuill lawe sith that time hath other names termes and officers The execution of the commaundementes of the magistrates in England is ordinarily doone by the sherifes The sherife which is as much to say as the Réeue or Bayly of the shire is properly word for word Questor prouinciae it is he which gathereth vppe and accompteth for the profittes of the shire that come to the exchequer The exchequer which is fiscus principis or aerarium publicum and I cannot tell in what language it is called Scaccarium some thinks that it was first called statarium because that there was the stable place to account for the reuenues of the crowne aswell that which came of the patrimony which we cal the demeasnes as that which commeth of other incident acquisitions be they rentes customes tenthes quinziesmes taxes subsidies wheresoeuer the Prince or his court be according to the time and occasion was a place stable continual and appointed for to recken and account The hearers of the account who in latin may be called tribuni aerarij haue auditors vnder them which the Latines doe call Rationales but they are the chiefe for the accounts of the Prince and may be called Iuridicirationales in English we cal them Barons of the exchequer whereof is one who is called the chiefe Baron as Tribunus or Iuridicus rationalis primus or princeps The chiefe of all is called high treasurer of Englande as you would say in latin Supremus aerarij anglici quaestor or Tribunus aerarius maximus In this court be heard Quadruplatores which we call promoters which be those that in popular and penall action be delatores hauing thereby part of the profit by the lawe assigned In this court if anie question be it is determined after the order of the common lawe of Englande by the xij men as I haue saide and all customers which were in latin called publicarij in gréeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 do account in this office The Sherife of the shire is called in our common latin vicecomes as one would say vicarius comitis or procomes doing that seruice to attende vpon the execution of the commaundementes of the Tribunalles or Iudges which the Earle or countie should doe which Earle or Countey for the most part was attending vppon the Prince in the warres or otherwise about the Prince as the worde beareth Comes principis whereby it may appeare that the chiefe office of the Countie or Earle was to sée the kinges Justice to haue course and to bee well executed in the shire or Countie and the Princes reuenues well answered and brought in aerarium principis which is called of vs the treasurie If any fines or amerciaments which in latin be called mulctae beleuied in any of the saide courtes vpon any man or any arrerages of accountes by the latins called reliqua of such thinges as is of customes taxes subsidies or any other such occasions the same y e sherife of the shire doth gather and is respondent therefore in the exchequer As for other ordinarie rentes of patrimoniall landes and most commonly for the taxes customes and subsidies there be particular receiuers and collectors which doe answere it into the exchequer The sherife hath vnder him an vnder sherife at his charge and appointment learned somewhat in the law especially if he be not learned himselfe diuers bailifes which he called errantes whom he maketh at his pleasure who can knowe ech lande and person in the shire and their abilitie to goe vppon enquestes either to distreine or to summon him to appeare whom the sherife shal appoint and for this cause to the sherifes as to the minister most proper of the lawe the writtes be directed When any thing commeth to an issue of the déede or fact there is a writ or writing directed to the sherife of the shire where the lande is whereupon the controuersie is or where the man dwelleth of whom the money is demaunded which writ is called venire facias Then after the same effect an alias pluries or distringas according to the nature of the action to the returne of the sherife And if for any disobedience of not comming and appearing there be a fine which the latins doe call Mulcta set vpon any iurors head the sherife is charged with it and taketh the distresses which in latin be called Pignora and answereth therefore to the exchequer The sherife also is readie by himselfe or by his vndersherife to serue aswell the Iustices of peace in their quarter sessions as y e Iustices called Itinerantes in their great assises when they come into the shire which is twise in the yeare to dispatch and voide actions criminall and ciuil depending at the common law and which be come nowe to the issue He hath also the charge of all the prisoners cōmitted to y e prison which we call the gaole and when any is condemned to die it is his charge to sée the sentence executed To be short he is as it were the generall minister

paying the rent accustomed shal owe to the Lord a certaine faith duetie trust obedience and as we terme it certaine seruice as libertus or cliens patrono which because it doeth not consist in the persons for the respect in them doeth not make them bond but in the lande and occupation thereof it is more properly expressed in calling the one tenaunt the other Lord of the fée than either libertus or cliens can doe the one or patronus the other for these wordes touche rather the persons and the office and duetie betwéene them than the possessions But in our case leauing the possession and lande all the obligation of seruitude and seruice is gone An other kinde of seruitude or bondage is vsed in Englande for the necessitie thereof which is called apprenticehoode But this is onely by couenaunt and for a time during the time it is vera seruitus For whatsoeuer the apprentice getteth of his owne labour or of his masters occupation or stocke he getteth to him whose apprentice he is he must not lie foorth of his masters doores he must not occupie any stocke of his owne nor mary without his masters licence and he must doe all seruile offices about the house and be obedient to all his masters commaundementes and shall suffer such correction as his master shall thinke méete and is at his masters cloathing and nourishing his master being bounde onely to this which I haue saide and to teache him his occupation and for that he serueth some for vij or viij yeres some ix or x. yeres as the masters and the friends of the young man shall thinke méete or can agrée altogether as Polidore hath noted quasi pro emptitio seruo neuerthelesse that neither was the cause of the name apprentice neither yet doeth the worde betoken that which Polydore supposeth but it is a Frenche worde and betokeneth a learner or scholer Apprendre in French is to learne and apprentise is as much to say in Frenche of which tongue we borowed this worde and many more other as discipulus in Latine likewise he to whom he is bound is not called his Lorde but his master as ye would say his teacher And the pactions agréed vpon be put in writing signed and sealed by the parties and registred for more assurance without being such an apprentice in London and seruing out such a seruitude in the same Citie for the number of yéeres agréed vpon by order of the Citie amongest them no man being neuer so much borne in London and of parentes londoners is admitted to be a Citizen or frée man of London the like is vsed in other great Cities of Englande Besides apprentises others be hired for wages and be called seruaunts or seruing men and women throughout the whole Realme which be not in such bondage as apprentises but serue for the time for daily ministrie as serui and ancillae did in the time of gentilitie and be for other matters in libertie as full frée men and women But all seruaunts labourers and others not maryed must serue by the yere and if he be in couenaunt he may not depart out of his seruice without his masters licence and he must give his master warning that he will depart one quarter of a yere before the terme of the yere expireth or else he shalbe compelled to serue out an other yere And if any young man vnmaried be without seruice he shalbe compelled to get him a master whom he must serue for that yere or else he shalbe punished with stockes and whipping as an idlè vagabond And if any man maried or vnmaried not hauing rent or liuing sufficient to maintaine himselfe doe liue so idely he is enquired of and sometime sent to the gaole sometime otherwise punished as a sturdie vagabond so much our policie doth abborre idlenesse This is one of the chiefe charges of the Iustices of peace in euerie Shire It is taken for vngentlenesse and dishonour and a shewe of enmitie if any gentleman doe take an other gentlemans seruaunt although his master hath put him away without some certificate from his master eyther by word or writing that he hath discharged him of his seruice That which is spoken of men seruaunts the same is also spoken of women seruaunts So that all youth that hath not sufficient reuenues to maintaine it selfe must néeds with vs serue and that after an order as I haue written Thus necessitie want of bondmen hath made men to vse fréemen as bondmen to all seruile seruices but yet more liberally and fréely and with a more equalitie and moderation than in time of gentilitie slaues and bondemen were woont to be vsed as I haue saide before This first and latter fashion of temporall seruitude and vpon paction is vsed in such countryes as haue left off the old accustomed maner of seruaunts slaues bondemen and bondwomen which was in vse before they had receiued the Christian faith Some after one ●ort and some either more or lesse rigorouslie according as the nature of the people is enclined or hath deuised amongest themselues for the necessitie of seruice Of the Court which is Spirituall or Ecclesiasticall and in the booke of Law Court Christian or Curia Christianitatis CHAP. 9. THe Archebishops and Bishops haue a certaine peculiar iurisdiction vnto them especially in foure maner of causes Testamentes and legations Tythes and mortuaries mariage and adulterie or fornication and also of such things as appertaine to orders amongest themselues and matters concerning religion For as it doeth appeare our auncestors hauing the common wealth before ordeined set in frame when they did agree to receiue the true and Christian religion that which was established before and concerned externe policie which their Apostles Doctors and Preachers did allowe they helde and kept still with that which they brought in of newe And those things in kéeping whereof they made conscience they committed to them to be ordered and gouerned as such things as of which they had no skill as to men in whom for the holinesse of their life and good conscience they had a great and sure confidence So those matters be ordered in their Courts and after the fashion and maner of the lawe ciuil or rather common by citation libel contestationem litis examination of witnesses priuilie by exceptions replications apart and in writing allegations matters by sentences giuen in writing by appellations from one to an other as well a grauamine as a sententia definitiua and so they haue other names as Proctor Aduocates Assessors Ordinaries and Commissaries c. farre from the manner of our order in the common lawe of Englande and from that fashion which I haue shewed you before Wherefore if I say the testament is false and forged I must sue in the spirituall lawe so also if I demaunde a legacie but if I sue the executor or administrator which is he in our lawe who is in the ciuill lawe baeres or bonorū mobilium