Monday, 25 May 2015

Historical Notes on Clause 11: On the Estate of the Clergy and their Non-Participation in Capital Cases

Archiepiscopi, episcopi, et universae personae regni, qui de rege tenent in capite, et habent possessiones suas de domino rege sicut baroniam, et inde respondent justitiis et ministris regis, et sequuntur et faciunt omnes rectitudines regias et consuetudines, et sicut barones ceteri, debent interesse judiciis curiae domini regis cum baronibus, usque perveniatur in judicio ad diminutionem membrorum vel mortem.

Archbishops, bishops, and all important prelates of the kingdom [mitred abbots?] who are tenants-in-chief of the king, shall have their lands from the king as a barony, and answer for the same before the king's justices and ministers, and follow and observe all royal rights and customs [concerning these]; and just like the other barons, they ought to take part in the judicial courts of the lord king along with those barons, until a judgement concerning mutilation of limbs or death was involved.

In 1070 King William I exchanged many of the church lands in England which were held by the bishops and abbots in Frankalmoign [land in Free Alms] under the Anglo-Saxon kings into Tenure by Barony [tenens per baroniam]. This was a sea-change. Land which was once held as allodial property, land spiritually owned exclusively by the Church, free of all interference from the king, land exempt from feudal duties, all at once became feudal property directly owned by the king and liable to a form of taxation. The Bishops and Abbots thus became barons. Most of these baronies had the requirement of the baron, to provide Knights' Service to the king in times of war, so-many knights based on the size of the holding. The baronage became their Regalia and income.

By this clause of the Constitutions of Clarendon it was declared that Bishops hold their lands as baronies, and were required to attend the king's court and Great Councils when summoned. But the bishops already had this right before in Anglo-Saxon times by virtue of their spiritual seniority, their episcopal dignity. The king's court, at this time, was both a judicial court as well as a governmental one. 

Canon law forbade bishops from sentencing anyone to death or from pronouncing a judgement involving the shedding of blood,

On the Role of Bishops as Barons

William Stubbs. The Constitutional History of England, in Its Origin and DevelopmentThe Estate of the Clergy. Cambridge University Press. pp. 169–. ISBN 978-1-108-03630-6.

Thomas Erskine May (1868). A Treatise on the Law, Privileges, Proceedings, and Usage of Parliament. The Lords Spiritual and Temporal: Butterworths. pp. 6–.

John Selden. Titles of Honor. Second Part: Chapter V - Sections XIX and XX: The Lawbook Exchange, Ltd. pp. 577–. ISBN 978-1-58477-410-5.
John Selden; David Wilkins (1726). Joannis Seldeni jurisconsulti Opera omnia, tam edita quam inedita. Typis Guil. Bowyer, impensis J. Walthoe. pp. 274–.

The Ecclesiastical Tenants-in-Chief and Writs of Military Summons
Helena M. Chew
The English Historical Review
Vol. 41, No. 162 (Apr., 1926), pp. 161-169
Published by: Oxford University Press

Barony and Thanage
R. R. Reid
The English Historical Review
Vol. 35, No. 138 (Apr., 1920), pp. 161-199
Published by: Oxford University Press

'Barons' and 'Peers'
J. H. Round
The English Historical Review
Vol. 33, No. 132 (Oct., 1918), pp. 453-471
Published by: Oxford University Press

The Evolution Of Parliament p. 197- Pollard

On The Non-Participation by Bishops in Capital Cases

Willis, J. (1911). Capital Punishment. In the Catholic Encyclopedia.

Sir Robert John Wilmot Horton (2nd bart.) (1828). Protestant securities suggested, in an appeal to the clerical members of the University of Oxford. Proceedings 2nd May 1679. pp. 122–32.

The Lord  Chancellor, in the name of the Clergy, in open Parliament,  made an oration, shewing, that they [Bishops etc.] could not by any means be present at proceedings where any censure of death is to be passed.  ...  The ecclesiastical canon, by which it  was ordained,

 “That no Bishop, Abbot, or Clergyman, should  judge any person to the loss of life or limb ; or give his vote  or countenance to any other for that purpose,” was decreed in a. National Council, held at London in 1075, in the reign of William I.—Carte’s Hist. Eng; Vol. i.' p. 430.

Thomas Carte (1747). A general history of England. author. pp. 430–.

Canon 9 : That by the Councils of Elvira and Toledo XI no bishop or abbot or any of the clergy should judge a man to be put to death or to mutilation, nor favour with his authority those who so judge.

Concilium Toletanum undecimum
Canon VI.
Non debere sacerdotibus qualibet in eclesia familiis truncationes membrorum facere, nec aliquid quod morte plectendum est iudicare.

Tommaso Stancati (2010). Julian of Toledo Prognosticum Futuri Saeculi  The Newman Press. pp. 27–. ISBN 978-0-8091-0568-7.

Ralph Turner (1994). JUDGES, ADMINISTRATORS & COMMON LAW. Chapter 9: Clerical Judges in Secular Courts: A&C Black. pp. 159–. ISBN 978-1-85285-104-0.

Uta-Renate Blumenthal (2010). The Investiture Controversy: Church and Monarchy from the Ninth to the Twelfth Century. University of Pennsylvania Press. . ISBN 0-8122-0016-0.

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