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	law_n	lord_n	7,276	5	3.9306	3	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A14091	The iust and necessary apologie of Henrie Airay the late reuerend prouost of Queenes Colledge in Oxford touching his suite in law for the rectorie of Charleton.	Airay, Henry, 1560?-1616.; Potter, Christopher, 1591-1646.; Wilson, Thomas, 1563-1622. For the farther clearing and inlarging of some passages in the preceeding apologetique, a worthy and judicious friend (for testimonie to the truth, and of his love to the memory of the deceased,) hath beene pleased to annex an attestation.	1621 (1621)	STC 244; ESTC S117983	17,011	66

what difference there is betweene Aula scholarium Reginae de Oxon. and Aula Reginae de Oxon. the like difference there is betweene the name of the Colledge and the name in the Lease and confirmation that is a substantiall difference Againe in conscience I hold the Lease to be naught for these causes first it is a Lease of a Benefice presentatiue and with the cure of foules where are three villages and much people which kinde of Leases was by a whole Parliament thought vnconscionable and vnreasonable and a law made against all such Leases in future times about three yeares after the dimising of this Lease viz. Ann. 13. Elizabethae Secondly it is a Lease whereupon so small allowance is reserued vnto the Incumbent as that the maintenance is not sufficient to maintaine any fit Minister for the instruction of that great people whereof what conscience ought to be made euery man knoweth Thirdly the terme of yeares in the Lease is so long that the Benefice being presentatiue for 81. yeares that great people is in great hazard to be too much neglected if the Lease shall continue so long without euiction at Law or reliefe in Chancerie against it Fourthly the Lease is so preiudiciall vnto the Glebe land of that Benefice as that thereby much of it is alienated and exchanged with other men vpon inclosures and alreadie growne almost out of knowledge Fiftly the Lease hath bene noted from chiefe seates of Iudgement to be so vnreasonable and vnconscionable as that it was pitie the Leasour had not bene hanged before the dimise to be such as I was bound in conscience to ouerthrow if by the Law I could and to be no whit or verie little better then sacriledge depriuing them which waite at the altar of the things due to them which there waite Sixtly whence was it that when the matter was referred vpon the motion of the Barons of the Exchequer vnto Sir Iulius Caesar Sir Thomas Parrie the then Lord chiefe Iustice and Iustice VValmesley M. Alcock refused to be bound to stand to their order that when vpon request from the Lord Chancellor vnto those great persons of their paines againe for an order in the matter an order was set downe by them and the same made an order in the Chancerie M. Alcock would not obey the order but stood out in contempt thereof vnto a writ of rebellion and the sending of a Serieant at Armes for him and that alwayes he refused to submit vnto a finall end by the Lord Chancellor or the Maister of the Rowles without further suite but that his owne conscience told him that his Lease was naught in conscience But a valuable consideration was giuen for the Lease It is said that M. Izod payd for it 280. pounds whereof 80. pounds came to the Colledge and that M. W. Alcock payd for the Assignement 400. pounds But it doth not appeare vpon the accounts of the Colledge where if any such thing were it should appeare that any penie came to it either by the Lease or by the Assignement Howbeit if it were so that M. Izod payed for the Lease 280. pounds he may seeme to be well satisfied by the commoditie of the Rectory for ten yeares before and by 400 pounds payed to him for the Assignement And if it were so that M. VVilliam Alcock payed for the Assignement 400. pounds he and his heire may seeme to be well satisfied by the commoditie of the Rectorie for thirtie yeares and vpwards and by 500. pounds which M. Iohn Alcock is said to haue had of M. VVhite vpon the morgage of the Lease But an hundred Markes were payed to my Lord of Carlile then Prouost to the vse of the Colledge for the securing of the Lease as his note 〈◊〉 Whatsouer colour there be of such a note yet by two Letters written from his Lordship vpon my desire to be satisfied in that point and still to be shewed it may appeare that the Colledge being in much debt at his comming to this Headship that sum of 100 Markes was borrowed of M. Izod vpon fiue seuerall bonds for the repaying thereof in fiue seuerall yeares and was accordingly repayed in the fiue yeares next following and the seuerall bonds vpon the seuerall paiments redeliuered and was not otherwise for any vse of the Colledge Which being the tenour of two Letters vnder his Lordships hand and seale is in reason more to be esteemed then an odde peece of paper of an hand breadth But M. William Alcock purchased the Lease from M. Izod as good He knew the Lease to be disabled in M. Izods time so well that he would not meddle with it till M. Izod yeelded to secure the peaceable possessiō for ten yeares though M. Izod had moued him often through feare of trouble by occasion of it to buy it And how can they denie the Lease to haue bene doubted of by M. William Alcock who say that 100. markes were giuen for the securing of it to my Lord of Carlile who was not Prouost for some yeares after the Assignement But it is hard for a Colledge to seeke the auoidance of its owne act It is an act of M. Scot as Incumbent of the Rectory of Charleton and whereinto being Prouost he drew by meanes so many of the Colledge as serued his turne to haue a hand in the confirmation thereof as also the same yeare he did to the leasing of an Impropriation for 500. yeares and had done the yeare before to the making away of some Land belonging to the Colledge in Dorcetshire for euer which I laboured to ouerthrow by legall courses and not any Lease either dimised by the Colledge or duely confirmed by the Colledge But it is hard to disturbe possession after thirtie or fortie yeares It is harder to be wrongfully kept out of possession so long And that possession was in that time disturbed appeareth inasmuch as vpon speeches against the Lease it was made ouer to M. William Alcock and after the Assignement suite was commenced by M. Shepheard for the euicting of it howsoeuer he was not able to prosecute the suite vnto a triall through want of meanes necessary in such case But it is hard to take aduantage vpon a misnomer Is it not harder to auoide a cleare case in Law which requireth confirmation by the Patron by a refuge of vsurpation Or is it hard in my case which is vsuall in many cases of Colledges and Cathedrall Churches as is well knowne by Merton Colledge which auoided a Lease vpon the verie like misnomer as in my case there the name of the Colledge being Custos scholares Collegij scholarium de Merton and in the Lease being Custos scholares Collegij de Merton as in my case the name of the Colledge is Praepositus scholares Aulae scholarium Reginae de Oxon. and in the Lease the name is Praepositus scholares Aulae Reginae de Oxon. and many other like cases Or rather is not an aduantage of

misnomer in this case well taken where a right is onely claimed by title of vsurpation against the good of the Church But to auoide the Lease is to ouerthrow the state of a poore Gentleman and his family which is hard How much his estate is decayed through his continuall wranglings I know not but how much the state of soules is more to be commiserated then the state of bodies and the states of many more then of few so much more is the state of that people which feeding with their corporall things cannot be fed with spirituall things while that Lease lasteth to be commiserated then the state of M. Alcock and his family And if further it shall be considered that before any suite I made this offer to M. Alcock in the presence of some witnesses that if vpon sight of his Lease and due consideration of the validitie thereof by foure Iudges or other indifferently chosen betweene vs and informed by our learned Counsell his Lease should be deemed good in Law I would neuer further molest him and if it should be deemed naught in Law yet whatsoeuer they thought meet for me to do out of any conscionable respect towards him his I would very willingly do it and withall that the beginning of the suite was from him I hope I shall not be censured to haue bene vncharitable but he rather to haue bene wilfull But this suite was much against the liking of many of the Fellowes of the Colledge Vpon this false report and suggestion they all testified vnder their hands which is yet to be seene that out of an aduised consideration of the vnconscionablenesse that Lease dimised to the great preiudice of that Church and of our Colledge and out of a long setled purpose to put that Lease in suite when they should haue opportunitie the suite was at the first commenced and stil continued not onely with their liking but with their great desire that the Lease might be auoided and that they were so farre from auouching any thing to the contrarie as that they professed it was alwayes their purpose vpon the first auoidance of the Benefice to conferre it vpon such a one as would trie the Lease with M. Alcock But some of my owne degree haue said that for many Benefices they would not haue entred into such a businesse Nor would I if regard of my oath and dutie to this Colledge and that Church had not pressed me thereunto Which men of my owne degree might rather deeme and conceiue of me then seeme to censure my courses the grounds whereof they either know not or consider not But why then did not my Lord of Carlile question the Lease M. Shepheard was presented vnto the Benefice long before my Lord of Carlile was Prouost and continued in it all his time and long after my coming to be Prouost and durig his incumbencie none but he could question the Lease to bring it to a trial in Law But in the Exchequer Iudgement passed long since for M. Alcock No Iudgement passed there at all in the cause but after some arguing of the case by Baron Hearn and somewhat by Baron Altham vpon some fault in the speciall verdict a new Uenire facias was willed to be sued out or else an arbitrable course to be agreed vpon for the ending of the matter Which was done but without effect because M. Alcock would not be bound to abide the order of such honorable Arbitrators as after much ado we had agreed vpō But now Iudgement is passed for him and against me in the Kings Bench. It appeareth by the order of the Arbitrators which was made an order in the Chancerie that the Lord chiefe Iustice Flemming and Iustice Walmesley were of opinion that the Lease was naught in law And M. Iustice Dodderidge who had bene alwayes of counsell against me and professed from the Bench that he had very seriously studied the case for his owne full satisfaction therein clearely deliuered his opinion to be that the Lease was naught in Law But it is true that the swaying sentence was for the Lease vpō two points first because Nihil facit error nominis quando constat de corpore secondly because there is no substantiall difference betweene the name of the Colledge and the name in the Lease but onely a transpositiō of words which makes no materiall error Touching the first of which points I desire to know whether it be a receiued rule in the Common Law that nihil facit error nominis quando constat de corpore and if it be how then so many Leases haue bene auoided so many Graunts haue bene frustrated so many Writs haue bene miscaried vpon misnomers For although many instances may be giuen wherein men haue not preuailed in suites vpon misnomer when the error was not materiall yet certaine it is also by many instances that men haue often preuailed in suites vpon misnomer when the errour hath beene materiall Touching the latter point also I desire to know whether the difference betweene Aula scholarium Reginae de Oxon. the name by which the Colledge was licensed to be founded and Aula Reginae de Oxon. which our Founder vsed and by which the Lease was dimised be not a substantiall difference I see the license of Edw. 3. to be this De gratia nostra speciali concessimus licentiam dedimus pro nobis haeredibus nostris quantum in nobis est etdem Roberto de Eglesfield quòd ips in quodam Messuagio suo cum pertinentijs in Oxon. in parochiae S. Petri in Oriente situato quandam Aulam Collegialem de scholaribus capellanis alijs perpetuis temporibus duraturam sub nomine Aulae scholarium Reginae de Oxon. quae per vnum Praeprositū de dictis scholaribus iuxta ordinationem praefati Roberti inde faciendum gubernabitur construere de nouo fundare ac Messuagium illud cum pertinentijs praefat Praeposito scholaribus dare possit assignare And I see the words of our Founder to be these Eandem Aulam Aulam Reginae in Oxon. aeternaliter institui nominandam Wherein whether our worthy Founder hath not vnawares vsed a name substantially differing from the name whereby he was licensed to found the Colledge I desire to know as also whether a Founder may swerue at all from the name whereby he is licensed to found and whether whatsouer is put sub nomine be not to be counted sacrum nulla ex parte mutandum And further for the name attended with the persons I desire to know what is the name of the Colledge licensed by the former words to be founded whether this Praepositus scholares Aulae scholarium Reginae de Oxon. or this Praepositus scholares Aulae Reginae de Oxon. and whether out of the name Aula scholarium Reginae de Oxon. the word Scholares can be transferred vnto the persons Praepositus et scholares and so the name to remaine as in the foundation Aula

villages within the parish was offered to be sold to M r Temple then of Water Eaton now S r Thomas Temple who wanting provision of Come to his house as it seemed was willing to haue bought it lying not far from him But vpon inquiry finding the validity of it to bee vnder question refused to deale therewith M r Alcocke finding it not currant in the Countrey after gat money vpon it in London viz of one M r White the sume of 500 pounds vt dicitur and this was as I take it immediatly vpon Shepheard his Death or in his last sicknes After the Death of Shepheard M r Doctor Airay being instituted and inducted into the said Church before any suite by him cōmenced for auoyding the said Lease The said Alcocke exhibited his Bill against Doct. Airay as knowing the time was come for bringing the validity of the saide lease into question according to the intention and purpose of the said Colledge long before published discouered Therefore he now sought reliefe in equity as doubting himselfe his strength in law Doctor Airay on the other side aduised in my presēce both touching the point in lawe and touching equity with two ordinarily comming that Circuit and others men of as great note for learning and Iudgement in the lawe as any of their tyme. Their Iudgement was both that the Lease was voyd in law and that it being of a Benefice with Cure of soules Chauncery nor equity would neuer vphold it Suite was therefore hereupon commenced at the common lawe and vpon reference before it came into the King● Bench S r Thomas Flemming either when he was Lo. chiefe Baron or chiefe Iustice of the Kings Bench and M r Iustice Wal●iester certified vnder their hands the same opinion in Lawe touching the invalidity of the Lease In the Kings Bench M r Iustice Dotheridge who had bin of Alcocks Councell in the Exchequer and there argued for him yet as a Iudge in the Kings Bench gaue his opinion against the lease viz that it was of no validity Adding that it was as like to Merton Colledge case wherein the Lease though not as this of a Benefice was adiudged voyd as one egge to another These things thus being can any blame Do Airay for thinking the Lease not good in law How and where should he attayne to greater knowledge of the law then these Counsellors of great reputation nay then these three Iudges but it will be said and indeed must be by those that will censure him as faulty here about that although the lease were or at least were iustly to be thought voyd in law yet it was against conscience to seeke toavoyd or ouerthrow it Vpon this I must demur For this then wil be the Case A leafe is at this day made by a Parson confirmed by Patron ordinary which yet by the law is not of force nor validity But whether the Successor of this Parson be not tyed by Conscience to admit this to hold as a good lease though in law not good must be the Question A straunge question such as would make paper blush to beare as a question were it capable of blushing For since the voyce of Conscience is lowde and playne against the making of such leases is it possible she should dissemble and whisper in corners for the vpholding and supporting of them Certainly this voyce if any such bee is but of fals● nominata Conscientia as S t Paul speaks of Scientia And to find out whether it so be or not let vs consider of the institution of Benefices the end of the endowment of Churches with Liuings and this is declared by the statute 3. R. 2. Cap. 3. to be That the Benefices thus endowed should be giuen to honest and convenient persons for the seruing and honouring of God diligently the keeping of hospitality the informing and teaching of the people and the doing of other noble things pertayning to the care of soules This is the Iudgement of the wisedome of the Land viz of the King the Lords spirituall and temporall and the Commons And can then Conscience speake beyond law for the Diuersion and alienation of these liuings from those publique and pious vses yea from their originall Institution to supply a priuate Kitchin Let vs in this also heate the voyce and Iudgement of the whole Realme and turpis est pars quae cum suo toto non conuenit In the raigne of K. H. the 8. A o 32. Cap 28. A lawe was made to make good and firme all Leases for reasonable Terme viz not aboue xxj yeares or three liues of lands vsually letten made by any seised in their owne rights though in Tayle or in the right of their wiues or of their Churches so as the old accustomed rent were reserued And what then for Leases by Parsons and Vicars who are seised in right of there Churches The whole Realme thought fit these should be excepted and not bee made good though thus for a reasonable terme as by the Statute appeares But it may be said that yet a Parson with Assent or Confirmation of Patron and Ordinary might make a lease for any long terme True by the permission of the Common lawe the whole trust being reposed in these three to preserue the Churches rights and possessions and so also might the whole inheritance be aliened if they three all concurred But this was neuer approved by Parliament but contrariwise as knowledge and piety more increased so was it more restrayned and suppressed Therefore A o 13 Elizab. which was shortly after the Date of Scots lease were two Actes made the one against long Leases by Colledges and all having spirituall liuings branding them with this note first that they were vnreasonable 2. that they were the Cause of Dilapidations 3. That they were the Decay of spirituall liuings and Hospitals 4. That they were the vtter impouerishing of all Successors Incumbents of the same And therefore it was enacted Cap. 10. That no lease of such or like liuings other then for xxj yeares or three liues howsoeuer or by how many soeuer confirmed should be good or of force And least yet Parsons and Vicars might with Confirmation of Patrons and Ordinaries preiudice the Church so long as 〈…〉 xxj yeares It was enacted Cap. 〈…〉 Lease by such should be good or of force longer then the Lessor should continue resident without absence aboue 80 dayes So as by Death of Lessor if not sooner it must fall to ground no hurt being that each for his owne tyme of life and residence might by lease for the better applying of his study free himselfe from husbandring his Gleeb or collecting his Tithes And this Law in the preface expresseth this Cause of that Provision viz that the Liuings appointed for ecclesiasticall Ministers may not by corrupt and indirect dealings be transferred to other vses So that this making of Leases is termed and iudged a Transferring from the