Bracton: Thorne Edition: English. Volume 4, Page 375

Harvard Law School Library

Bracton Online -- English

Volume 4, Page 375

Next

Go to Volume: Page:

[001] day he did not cause him to come, so that the sheriff was ordered to summon him to
[002] appear on that day and have there the aforesaid B. to answer etc. And similarly to
[003] cause the bishop to appear to show why he did not cause him to come on the other
[004] day as he was ordered. The bishop did not come nor did he have the said B. Therefore
[005] let him be distrained by his barony to appear on such a day and have there the aforesaid
[006] B. to answer etc. And let the bishop appear to hear his judgment as to why he did
[007] not have the aforesaid B. etc.’ The form of the writ is this.

Writ to distrain the bishop if the bishop or other ordinary does not have the clerk on the first day.

[009] ‘The king to the sheriff, greeting. We order you to distrain F. bishop of London,¹ by
[010] the lands which he holds in barony in your county, to appear before the justices etc.
[011] on such a day and to have there such a clerk to answer to such a one with respect to
[012] such a plea etc. and also to hear his judgment because he did not have the aforesaid
[013] clerk on such a day as he was ordered. And have etc.’ If neither the bishop nor the
[014] clerk comes on that day, let action be taken against the bishop for contempt, by
[015] counsel of the court, and lest misdeeds remain unpunished, let the king, on the
[016] bishop's default, apply his hand, by virtue of his jurisdiction, that the clerk be
[017] arrested and held until the bishop claims him, that he either be delivered to him
[018] or remain arrested, nor will the sheriff or his bailiffs incur any penalty on that account,
[019] since execution of the law involves no wrong.² For even a bishop and those higher
[020] still may be arrested for injuriae and crimes. A bishop could expel with impunity a
[021] thief who had fled to a church and not be guilty of irregularity, if the thief refused to
[022] come out and stand to the judgment of the king and the kingdom.³ For sword ought
[023] to aid sword,⁴ and thus there are two swords, the spiritual and the temporal. And
[024] though the clerk does not come on his day, the bishop may come or send and make
[025] his excuse for not having the clerk. For he may say that the clerk has no benefice in
[026] his diocese by which he may be distrained, and if he has a benefice, that he is a scholar,
[027] wandering⁵ in the schools at Paris beyond seas, and that he did what he could, for he
[028] sequestered his prebend and other benefices and knew not what more he could do. In
[029] that case action must be postponed, as is evident, until the clerk returns

Notes

1. Fulk Basset: cons. bp. Oct. 1244

2. D. 47. 10.13.1

3. Supra ii, 383

4. Supra 327

5. ‘vagans’