Sunday, 29 December 2013

Lyttleton Comments: Constitutions Clause 11

George Lyttelton (1767). The History Of The Life of King Henry the Second,   Sandby and Dodsley. pp. 152–.

Archbishops, bishops, and all dignified clergymen who hold of the king in chief, have their possessions from the king as a barony, and answer thereupon to the king's justices and officers, and follow and perform all royal customs and rights, and, like other barons, ought to be present at the trials of the king's court with the barons, till the judgement proceeds to loss of members or death.

The evident intention of this constitution, or statute, was, to enforce on the prelates the obligations and duties arising from their baronies, as settled by the legistature under William the First, against the immunities they now claimed, and particularly the service of attending the judicature of the curia regis in all trials there. The exception to cases of blood seems to have been grounded on that part of the canon law, which had been received in this kingdom. For in the council of London held under Lanfranc, archbishop of Canterbury, in the ninth year of William the First, some canons made in Spain were admitted and confirmed, by which no bishop, or abbot, or ecclesiastical person, was allowed to judge in cases extending to life or limb, or to assist in such judgements. [Concilia Magnæ Brit. edit. Wilkins p. 363], "Ex Concilis Eliberetano et Toletano undecimo, ut nullus epiicopus, vel abbas, seu quilibet ex clero, hominem occidendum vel membris truncandum judicet, vel judicantibus suæ auctoritatis favorem commodet." Concerning this point there is a remarkable passage in the works of Peter de Blois. He says, in his treatise De Iustitutione Episcopi ,

"Illud cælestera exasperatiram, et plerisque discrimen æternæ damnationis accumulati quod quidam principes, sacerdotes, et seniores populi, licet non diclent judicia sanguinis, eadem tamen traclent disputando, et disceptando de Hits, seque ideo immunes a culpl reputant, quad mortis aut truncatione membrorum judicium decernentes, a pronuntiatione duntaxat aut executions panalis sententia se absentant."

This proves undeniably, that in Henry the Second's time, the prelates only withdrew from the pronouncing of the sentence in cases of blood, but not from the trial or from any debates thereupon.

Richard Burn (1781). Ecclesiastical Law: In Four Volumes. For T. Cadell, in the Strand. pp. 18–.

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