Chapter XV: Front Matter (15)

The temporal judges, on the other hand, with a firmness highly to be commended, have successfully not only resisted these encroachments, but, by way of reprizals, have, in these latter days, made considerable inroads into the antiently allowed territories of those courts; not to the detriment of the subject, I must confess; for the method of trial by the common law, is certainly preferable to theirs. But the common law courts have not satisfied themselves with extending their jurisdiction, in derogation of those courts, which they justly looked on, in those days, as enemies to them, and to the laws and constitution of the kingdom, but they have made invasions into each others territories, and, by what they call _fictions of law_, have made almost all causes, except criminal ones, cognizable in any court; contrary to the very intention of dividing the courts; which was, that each should have their separate business, and that the judges and practitioners, by being confined in a narrower track, should be more expert in their different provinces[364].

In treating of these courts, I began with the _King’s Bench_, which, as long as the office of _Justiciarius Angliæ_ subsisted, was the superior; but since Edward the First discontinued that office, on account of its too great power, and the business of that officer hath been shared between several judges, the rank of this court hath declined, and the _Chancery_ hath obtained the first place. To this court, then, I shall now proceed. And as in it there are, at present, and have been for some ages, two distinct courts, one _ordinary_, proceeding by common law, and the other _extraordinary_, according to the maxims of equity, where common law could give no relief; I shall, for the present, confine myself to the former, and defer treating of the latter, until I come to that period when the _Equity jurisdiction_ arose.

In the antient times, before the division of the courts, the chancellor was a very considerable officer of the _curia regis_. It was his business to write and seal with the great _seal_ the _diplomata_, or _chartæ regis_, what we now call _letters patents_; to issue all writs, either for founding the jurisdiction of the _curia regis_, and the bringing causes into that court, that by the antient law belonged to the courts in the country; or those to the nobles, to summon them to attend the _commune concilium_, or parliament. Afterwards, when the House of Commons was formed, he issued writs to the proper places, for the election of the members thereof. Hence, when the courts were divided, the making out letters patents, the keeping the inrolments thereof, and issuing of _original writs_, as they are called, that is, those that found the jurisdiction of courts, and other writs of like nature, continued to belong to him; and, as these records remained with him, there arose to him a jurisdiction concerning them; except as to such writs as were intended to found the jurisdiction of another court, which, though issued from Chancery, were returnable into the proper court, and the cause determined there[365].

The first branch of the jurisdiction of this court, then, was the repeal of letters patents, that had issued improvidently, to the detriment of either of the king or the subject; and this properly fell to the lot of the chancellor, as he made out the patents, and kept the enrolments of them. The method of repealing those was by a writ called _scire facias_ notified to the party claiming under the patent, and calling him in to shew cause why it should not be revoked. This _scire facias_ issued in three cases: the first, at the suit of a subject; where two patents were granted to two persons of the same thing, the first patentee brought a _scire facias_ against the second, to repeal his grant; the other two were at the suit of the king, where the king was deceived, either by false suggestions of merit, or as to the value of the thing granted; or, in the second place, if the king had, by his patent, granted what by law he could not have granted. Here, if the case was clear in law, and there was no controverted matter of fact necessary to be settled, to ascertain the right, the chancellor was judge; and if his judgment was against the patent, it was his duty to _cancel_ the inrolment thereof; from which part of his office he had his name. I say if the case was clear in law, and there was no controverted matter of fact; for, if this latter was the case, he could not try it, he being antiently but an officer of the _curia regis_, and not a judge; and therefore unqualified to summon a jury. The rule continued the same after the separation of the courts, and his becoming a judge; principally, as I conceive, for the preservation of the common law, and the birthright of Englishmen, the trial by jury. For, as the chancellor was almost always, in those days, an ecclesiastic, and consequently supposed more attached to the _civil_ and _canon law_, there might be danger, if he was suffered to try matter of fact himself, he might introduce a new method of trial. When, therefore, the cause was heard upon a _demurrer_, that is, the facts admitted of both sides, and only the law in dispute, he gave judgment; but if they came to issue on a fact, he must carry the record over to the King’s Bench, who summoned the jury, and gave judgment on the verdict[366].

Another branch of his jurisdiction was with relation to the inquisitions of office. There are many officers whose duty it is to take care of the profits and revenues of the king, and to that purpose they are sworn in the Exchequer; such as _escheators_, _sheriffs_, and others, whose duty it is to make enquiry what the king is entitled to in their respective limits, whether lands or chattels, or by what title. For this purpose they are to summon juries, and to return the verdicts found to the court of the revenue of the Exchequer, in order that that court may take care of the king’s rights. These were called _inquisitions_, or _enquiries_, _of office_, as proceeding from the duty of an officer that made them. But these officers being negligent in the performance of this their duty, it became sometimes necessary, and afterwards customary to quicken them, by issuing writs for this purpose; and these writs issued out of Chancery, the _Officina Brevium_; and then, that it might be seen they were properly obeyed, the return of the inquisition was made into the court that issued the writ, and thus, the Chancery gained a jurisdiction in this point, and became an assistant to the Exchequer in the matters of the king’s revenue; not indeed in the administration thereof, but in bringing it into the king’s possession[367].

It is a maxim in the English law, that nothing can pass from the king to a subject but by _matter of record_, which maxim was not only advantageous to the royal estate, as preventive of persons getting grants by surprise, but also advantageous to the subject in the firmness of his title, when once he had obtained it. And, on the contrary, the regular and equal way of restoring possessions to the crown was by record also, that is, by inquisitions finding the king’s title returned, as I have mentioned. But as the verdicts taken in these inquisitions may be erroneous, and detrimental to another person, by finding what was really his property, to have been the property of another, and to have accrued to the king by forfeiture or escheat; and as, regularly, by another maxim of law, there is no averring against or contesting a record, it was necessary that the bare return of inquisition into Chancery should not be final and conclusive, but that time should be given to any that thought himself affected to claim his right. Hence a month’s time is given by statute, after the return of the inquisition, in which any person may come in and _traverse the office_, that is, contest the validity of it. And here the chancellor is judge, in the same manner as in the repeal of letters patents, that is, if the subject of the controversy depends merely upon matter of law; but if the parties come to an issue on matter of fact, he cannot try it, for the reason above given, but it must go to the King’s Bench[368].

Another branch of the judicial business is the hearing of petitions to the king for justice in his own causes. No man, by the feudal principles of our law, can bring an action against the king. For the charging him with wrong doing would be a breach of fealty. The king cannot, by our law, do wrong; but yet, from the multiplicity of his occupations, or from his being misinformed, the subject may sometimes suffer wrong from him. The remedy thereof, in this case, is by humble petition to the king, that he would enquire into the cause, and do justice to the party, which, though conceived in an humbler strain, is as effectual as an action, and must be tried in this court, the proper channel to convey his majesty’s graces, and the king, by his chancellor, dispenses justice to the party.

Another branch of the judicial business of this court was the proceeding in certain cases against persons privileged, that is, the officers of the court, who being supposed to be constantly attendant, were to be sued here, as the officers of other courts, were in their respective courts.

Lastly, this court had jurisdiction with respect to proceeding upon _recognizances_, or acknowledgments of obligations taken in this court, which being here recorded, and not to be removed, were properly here triable[369].

There are some other causes, proper for the jurisdiction of Chancery, which would carry me too far at present. I shall, therefore, conclude here with mentioning one striking difference between this and the other courts, that they sit only in the times of the four terms, whereas it is open all the year. The confining the others to the terms arose from the religion of the times, and the inquisitions of canon law, which forbad courts to be held during the seasons of the three great festivals, and of harvest. In obedience to this law, I may say (for the papal power was then very high in England) was our Michaelmas vacation set apart for the solemnization of Christmas, the Hillary vacation for Easter, the Easter vacation for Whitsuntide, and the Trinity or long vacation, for the uses of husbandry. But great would be the evils, if that court which is the _Officina Justiciæ_, the Shop of Justice, were to be ever shut. Writs, therefore, issued hence at all times, and all such causes as, for the public good, cannot brook delay till the ordinary times of sitting of other courts, are here handled in the vacations, such as to mention a few, _habeas corpus’s_ and _homine replegiando’s_, to restore persons imprisoned to liberty, prohibitions to keep inferior courts within their proper limits; and _replevins_, to restore the possession of goods distrained.

But the great business of this court, as a court of common law, was, that it was the _Officina Brevium_, the shop where original writs were purchased by suitors, in order to commence their actions. An _original writ_, in the most common form, is an order to the sheriff to summon the party complained of to do justice to, or else to answer to the complainant in the proper court; containing a short description of the complainant’s title, and the wrong done to him, from whence, in Latin, it is called _Breve_, and answers to the original citation in the Roman and ecclesiastical laws. This, and the making out patents, was the principal business of the chancellor in the _curia regis_, and therefore naturally continued with him after the division of the courts. The reasons assigned by Gilbert for having one of these superior courts a public shop for justice, are three; first, that it might appear that all power of judicature flowed from the crown; secondly, that the crown might not be defrauded of the fines due to it for suffering persons to desert the inferior courts, and to sue for justice immediately from the king; and lastly, to preserve an uniformity in the law; for these writs being made out in one constant form contributed greatly thereto, being both a direction to the judge, and a limitation of his authority.

Originally, the chancellor heard the complaints of the person injured, and formed a writ according to the nature of the case, but as, among a rude military people, little versed in commerce, and the variety of transactions that attend it, the complaints of the people were confined in a narrow compass, it but seldom happened, after some time, that there was occasion for making a new writ, in a form different from what had been used before. These forms, therefore, were collected into a book of our law, called the _Register_, the antientest book of our law; and the making them out, being now matter of course, nothing more than copying out the old terms, inserting the proper names of persons, and places, and the chancellor’s business encreasing, became devolved upon the chancellor’s clerks, the _Clerici_, as they were antiently, or the _Masters_, as they are now called, of Chancery; and they were restrained from making out any of a different form from those in the Register. However, as, in process of time, cases would happen which none of the forms in that book would suit, and it was looked on as the corner-stone of the law, the chancellor could not of himself venture to make out new and unusual writs, but referred the complainants, in such cases, to petition the parliament for remedy[370].

These petitions afterwards growing too frequent, and interrupting the public business, it was found necessary to enlarge the power of the Masters of Chancery, and to give them a qualified power of forming new writs. This was done by the statute of Westminster the second, cap. 24, in Edward the First’s reign; it runs thus: _Quotiescunque de cætero evenerit me cancellaria, quod in uno casu reperitur breve, & in consimili casu cadente sub eodem jure, & simili indigente remedio, non reperitur, concordent clerici de cancellaria in breve faciendo, vel atterminent querentes in proximum parliamentum, & scribantur casus, in quibus concordare non possunt, & referant eos ad proximum parliamentum, & de consensu jurisperitorum fiat breve ne contingat de cætero, quod curia domini regis deficiat conquerentibus in justitia perquirenda_; which last words, _ne contingat_, &c. gave a handle, as I shall shew hereafter, to this court to erect their equitable jurisdiction[371].

We see how this power given to the Masters was limited: it must be exercised only in cases parallel to such as there was a remedy already provided for; all the Masters must agree in the form of the new writ; and the remedy must be the same as was in the similar case in the Register. To illustrate this by the example of the first writ formed by the Masters upon this statute, and which therefore, by way of eminence, is called a _writ, in consimili casu_. The statute of Glocester ordered the Chancery to form a writ for the relief of the person in reversion, where a tenant in power had aliened her dower. The writ was accordingly framed, and inserted in the Register. Now, by virtue of this statute of Westminster, the Masters framed the writ _in casu consimili_, in favour of the person in reversion, where a tenant by the courtesy, or tenant for life, had aliened, he being equally damaged as the former case. But though this was particularly called _a writ, in casu consimili_, there were many others formed by virtue of this statute, such as for various kinds of trespasses unknown in former ages, and actions upon the case, so frequent in these our days, and so called, because the writ is formed according to the circumstances of the case, and not upon the old forms continued in the Register.

This new employment of Masters in Chancery, and the business of the court encreasing, created a necessity of erecting new officers, to make out the _brevia de cursu_, namely, those in the Register, who were therefore called _Curritors_. The chief of the Masters is _Keeper of the Rolls_ of this court, which was formerly a part of the chancellor’s business; and he is therefore called _Master of the Rolls_. For ages past, since the Equity business multiplied in England, this officer has been there, in matters of equity, an assistant judge to the chancellor, but his decrees are liable to a rehearing, and to be reversed by the chancellor. But in this kingdom, the office hath not had any judicial authority annexed to it.

LECTURE XXXIV.

_The court of Common Bench or Common Pleas—The jurisdiction
of this court—Actions real, personal, or mixt—The court of
Exchequer—The jurisdiction of this court—Exchequer chamber—The
judicature of Parliament._

The next of the superior courts, is the _Common Bench_, or _Common Pleas_, as it is more commonly called, being the proper court for the determining suits between subjects, wherein the king is not concerned; and upon the multiplication of business in the _curia regis_, it was separated from it, for the more speedy and easy dispatching the affairs of the people. As in the very old times the king often sat in person in the _curia regis_, and that he might have an opportunity of so doing when he pleased, that court always followed the king wherever he went within the kingdom of England; and in those days it was customary for the kings to take progresses; and reside in the different seasons of the year in different parts of the kingdom, as we see, by the variety of places where the parliaments were held in old times. The same practice of the courts and the records following the person of the king continued in France longer than in England. For when king John was taken by the black prince at the battle of Poictiers, the antient records of that kingdom were lost, and there are scarce any now remaining there, of what had passed previous to that time, except enrolments made since, of the antient charters that were in the hands of the subjects.

But in England the constant removal of the courts was found very burdensome to the people, who had suits much earlier. For their ease, therefore, it was enacted in _Magna Charta_, that _communia placita non sequantur curiam nostram, sed teneantur in aliquo certo loco_; that the Court of Common Pleas should no longer be ambulatory, but held in one certain place. Westminster was the place fixed upon, and there, if we except some occasional removals, on account of epidemical sicknesses, hath it been held ever since. And in long space of time after, the other courts became, though not in pursuance of any positive law, fixed there also. By their becoming settled in a certain place, one great inconvenience, besides the hardships on the suitors, was avoided, namely, the loss and imbezzlement of the records by these frequent removals. For it is very remarkable, that there is not a record remaining of the times previous to the fixing of the courts, not even the enrolments of the acts of parliament themselves, except a few, and a very few, of the courts of Exchequer, which, concerning the king’s revenue, were more carefully preserved[372].

But the greatest advantage that attended this change was the improvement of the law, and, what was a consequence thereof, the preservation of the liberty of the subject. For now it became much more convenient for persons to apply to that study, when they were no longer under a necessity of removing. And we therefore, soon after, find the practitioners of the law settled together, something in a collegiate manner; and after the dissolution of the order of Knights Templars, the habitation of these latter, called the _Temple_, was granted to them for their residence and improvement. Here, they continued to confer the degrees of _Apprentices, or Barristers at law_, and _Sergeants at law_, which they had began before, in imitation of the bachelors and doctors degrees in universities.

The preservation of the liberty of the subject was, as I said before, another happy consequence that resulted from the fixing the courts, and the uniting the professors of the law into one body. For as, about this time the study of the civil and canon laws was eagerly pursued by the clergy in the universities, and the English customs as much depreciated by them as possible, and as those two laws were founded on maxims of despotism, and, as such, encouraged and supported to the utmost by the popes, and all kings that aimed at arbitrary power, the common lawyers were necessitated, for the support of their profession, to take the popular side of the question, and to stickle for the old Saxon freedom, and limited form of government.

Hence the steady opposition they made, even in those early times, to the king’s dispensing. Nay, they carried their zeal for liberty so far, as (since they could not directly, in those days, oppose the weight of the civil law) to quote the very passages of it that were in favour of absolute power, and by their glosses make it speak the language of liberty. Thus Bracton quotes that text: _Quod principi placet, legis habet vigorem_; that is, in its true meaning, the monarch is sole legislator: but Bracton’s comment is, _id est, non quicquid de voluntate regis temere presumptum fuerit, sed quod concilio magistratuum suorum, rege auctoritatem præstante, habita super hoc deliberatione & tractatu, recte fuerit definitum_; that is, the king is not sole legislator; directly contrary to the sense of the very text he quotes. And it must be allowed, to the honour of the common lawyers, that, with the exception of a few venal time-serving individuals, they have, for a succession of ages, proved themselves true friends to a rational civil liberty in the subject, and to reasonable power and prerogative in the king[373].

To come to the jurisdiction of this court. Its proper business, as appears from its name, is to take cognizance of all _common pleas_, that is, all pleas that are not pleas of the crown, or at the suit of the king. With these it cannot meddle; for all actions at the suit of the king for criminal matters, belong to the King’s Bench, as those for his revenue do properly to the Exchequer. But it hath jurisdiction, and that universally, throughout England, in all civil causes, whether _real_, _personal_, or _mixt_; the distinction of which it will not be amiss just to point out.

Real _actions_ are those that are brought to recover land itself, where the claimant has a right to an estate in it for life at least; and these, until within these two hundred and fifty years, were the only ones used for that purpose; but, since that time, they are gone almost entirely out of use, on account of their nicety, their delays, their being conclusive; and their place is supplied by mixed actions, which are easier, shorter, and may be tried again. However, if any one was inclined, at this day, to bring such an action, this is the court to bring it in; and therefore all _common recoveries_, which antiently were, and still carry the form of, real actions, are suffered in this court.

Personal _actions_ are those that are brought for the recovery either of some duty, or demand in particular, or of damages for the non-performance of some promise or contract, entered into, or lastly such as are brought by a man to recover a compensation in damages for some injury sustained in his person—or property. To give but one or two instances of these last: If my ground is trespassed on, if my person is assaulted, my reputation injured, the remedy is by the personal actions of _trespass_, _assault & battery_, or _slander_. All actions for breach of covenants are likewise personal actions; for, by the common law, damages only are recoverable thereon, and the party is not obliged to perform the covenant. Wherefore, if a man chuses rather to have his covenant performed than receive a satisfaction in damages, he must go into a Court of Equity, which will oblige a man to perform in specie, what he hath specifically engaged to perform, if the performance is possible. This court, therefore, being the proper court for personal actions, fines of lands are levied here; for they are fictitious actions, founded on a fictitious breach of covenant.

Mixed actions are designed for the recovery of a specific thing, and also damages, and consequently partake of the nature both of real and personal actions. For instance: If a tenant for life, or years, or at will, commits waste, he forfeits to the owner of the inheritance the place wherein the waste was done, and treble damages. The _action of waste_, therefore being brought to recover both, is a mixed action. The action of _ejectment_ also, which was originally proper to recover damages for being put out of a lease for years, but is now the common remedy, substituted in the lieu of real actions, is now of the same nature; because both the land itself, and damages for the wrong are recovered[374].

These three kinds of actions are properly the business of this court, though, as to the two last, actions personal and mixed, the courts of King’s Bench and Exchequer have, by fictions, gained a concurrent jurisdiction with this court; the King’s Bench, by supposing the defendant to be in the custody of the marshal thereof; and the Exchequer, by supposing the plaintiff to be a debtor to the king.

The proper way of founding the jurisdiction of this writ, is by a writ out of Chancery, returnable hither, either to begin a cause originally here, or to remove one depending in an inferior court not of record; but, in some cases, they proceed without any writ from Chancery, as in causes brought by or against an officer of the court, and likewise, in granting prohibitions to other courts that attempt to enlarge their jurisdictions.

Before I conclude, I must observe, that this court, though one of the four high courts derived out of the _curia regis_, is not, however, supreme, but subordinate to the King’s Bench. For judgments given therein are reversible in the King’s Bench, by a writ of error issuing from the Chancery, suggesting the king’s being informed that manifest error has interveened, and commanding the record to be transmitted into the King’s Bench; the judges belonging to which, upon the face of it, and nothing else, are to affirm or reverse the judgment; for the error must be manifest; and no error in point of fact, but error only in point of law, can be averred against a record.

The lowest in rank of the four great courts, though from antient times one of the greatest importance, is the court of _Exchequer_, whose business was to collect in the several debts, fines, amerciaments, or other duties or properties belonging or accruing to the king, and likewise, to issue money by his orders; and this court being originally solely erected for the king’s profit, is the reason, I presume, why it is held in rank the lowest; it being more honourable to the crown to give precedence of rank to those courts that were intended for the administration of justice to the subject, above that which was intended merely for the king’s temporal advantage. Besides, this court was, in its original, distinct from the _curia regis_, the treasurer being the judge in this, as the _justiciarius Angliæ_ was in the other; and therefore, it was regular, that the Chancery, and Common Pleas, as having been once part of the supreme court, should take place before this. Its having been originally a distinct court, accounts for its independency on the King’s Bench; for, no writ of error lies from it to the King’s Bench, as doth from the Common Pleas, but its errors are rectified in another manner[375].

This court, as well as the Chancery, hath, properly speaking, two courts: one, ordinary, proceeding according to the strict rules of the common law; the other, by equity; for, as it is the king’s duty to render justice with mercy, so, in this court, the rights of the king are not always exacted with rigour; but, on circumstances of reason and equity, may be mitigated or discharged. The court of common law in this court had antiently much more business than of late. Originally, whilst the royal demesnes were unalienated, they had the setting of them for years; but, afterwards, people chusing rather the authority of the great seal, took them in Chancery. That court, as I mentioned when treating of it, had likewise gained the returns of inquisitions of office, and had also gained by act of parliament, the composition of forfeitures, for the king’s tenants _in capite_ aliening their lands without license; which, otherwise, would have belonged to this court. The erection of the _Court of Wards_, also, by Henry the Eighth, took off that branch of its jurisdiction; and the abolishing of the military tenures by Charles the Second took away the business of calling in their fruits. The erecting the office of _the Treasury_, as distinct, for the issuing of money, had the same effect; but, above all, the erecting new jurisdictions, and appointing new judges to try causes relative to the new taxes, as the Commissioners of the Customs and Excise, and Commissioners of Appeal, diminished the peculiar business of the court[376].

It will be now proper to consider the nature and extent of their present jurisdiction. Here then are sworn the sheriffs, and other officers concerned in the king’s revenue and duties; and here they are to return, and make up their accounts. Here, likewise, the king sues his debtors, or even the debtor of his debtor (for so far his prerogative extends); and here also, for enabling his debtors to pay him, they are priviledged to sue their debtors; an allowance that hath grown up by degrees to extend the jurisdiction of this court, and to make it concurrent with the Common Pleas. For it is only alledging, (and this they will not allow to be traversed or denied) that the plaintiff is the king’s debtor, and the business is done. The court acquires an immediate jurisdiction. The same allegation is likewise necessary, when a suit of equity is commenced in this court; for otherwise, the suit would, on the face of it, appear to belong to Chancery. I need scarce observe, that the officers of this court are to sue and be sued here; for that is a privilege common to the officers of all the courts, arising from their personal attendance. Here, likewise, the king’s attorney-general exhibits informations for concealment of customs and seizures, informations upon penal statutes, where there is a fine due to the king, forfeitures and breach of covenant to the king; likewise all informations for intrusions, wastes, spoils or encroachments on the king’s lands; in general, where the crown suffers in its profits.

In this court of common law, the _Barons of Exchequer_ only are judges, and are called _Barons_, because antiently none were judges there under that degree. In the Court of Equity, the chancellor of the Exchequer is joined with them, though it must be owned this officer hath seldom, of late years, acted either in England or Ireland, in his judicial capacity, and it hath been considered little more than as a great lucrative place. Errors in this court are not, as I observed before, redressed in the King’s Bench, as those of the Common Pleas are, but in another court, called the Exchequer Chamber, consisting of the lord chancellor, lord treasurer, and chief judges.

There is another court of _Exchequer Chamber_ in England, tho’ we have none such in this kingdom, erected 27th Eliz. and composed of the judges of the Common Pleas and barons of the Exchequer, in which lies a writ of error from the King’s Bench, to reverse judgments in certain suits commenced there originally. Into this court are frequently removed, or adjourned from any of the other courts, causes that are of a new impression, and attended with difficulty, or even such concerning which the judges, perhaps, entertain no great doubts, but are new, and attended with extensive consequences; and this, for the more solemn determination, that all the judges of all the courts might be consulted about establishing a new precedent. Antiently such causes were adjourned into parliament, but the legislative business of that high court increasing, this court was substituted for the above purpose of consultation[377].

To finish this account concerning the superior courts at once, it will be proper to say something of the supreme judicature of all, that of parliament. Antiently, as I have frequently observed, all causes but such as concerned the king or peers, or those that were of great difficulty, or such as justice could not be expected in by law, were dispatched in the county courts, the rest by petition to the king in parliament, or, in the intervals thereof, in the _curia regis_, which originally was but a committee thereof, appointed by the king. Hence matters determined there, were subject to a review in parliament; writs of error from the King’s Bench returned there; and when the Equity courts grew up, appeals from the Chancery and Exchequer in matters of equity. This power of judicature is peculiar to the lords (for the parliament consisted at first only of them, and when the commons were introduced, they sat in a distinct house) and the parliament hears at present only matters that come from other courts by appeal, or by writ of error, which is in the nature of an appeal, and no causes originally. It is true, that, for a long time after the division of the courts, many causes by petition were brought into parliament in the first instance; but these being generally referred to the courts below, the practice ceased, and would not now be allowed. For a long time accusations against peers were originally admitted, but at present, and for this long time, indictments found below are required before a peer can be tried; nor can the trial of peers by impeachment in parliament be considered as an original trial, for the commons are considered as the grand inquest or grand jury of the whole nation, and therefore an impeachment by them is not only equivalent to, but has and ought to have greater weight than any indictment by any private grand jury.

In this judicature of the lords, an impeachment there, is one singularity, an exception to the grand rule, that every man is to be tried by his peers, and that is, that a commoner impeached by the commons shall be tried by the lords. The reason of this procedure seems to be, that all the commons of England are supposed parties to the accusation, when their representatives have accused him, and it might be dangerous to trust his life with a common jury; but the lords are strangers to the charge, and it is their interest to controul the commons, if they proceed with too great violence[378].

LECTURE XXXV.

_Henry II.’s dispute with Becket—The constitutions of
Clarendon—The murder of Becket._

Having, in a general manner, run through the jurisdictions of the several great courts of the kingdom, which were divided from each other about the time I am now treating of, though the division was not compleated, nor the several limits exactly adjusted till some time after; I shall proceed, in a summary way, with the few remaining observations I have to make, with respect to the state of the law during the reign of Henry the Second. And the greatest and most remarkable of these was his dispute with Becket, archbishop of Canterbury; a contest attended with the most fatal effects, and which makes up a considerable part of the civil history of that reign. The particular circumstances that attended it, and the many turns it took, I shall not dwell on; but, as it arose from the clashing of contrary laws, I shall briefly lay open its source, and give an account of the events.

From the year of Christ one thousand, the popes had every day been encreasing their power, and extending their pretensions. They set themselves up, at first, as protectors of the clergy, who really had been oppressed by the temporal princes, and in order to attach them more firmly to their interests, they made canons in councils, and published decretal epistles, by their own sole authority; which, in those days of superstition, were too readily received as laws; all tending to depress the civil power, to raise the ecclesiastical on its ruins, and, in short, to pave the way for making the pope supreme monarch of the world, in matters temporal as well as spiritual. The emperors, however, stickled hard, on the other hand, to support their rights, and particularly to maintain to themselves the nomination of the popes, as well as of other bishops, which the popes had transferred to the people of Rome first, and afterwards to the clergy alone; so that, for a good part of this time, there was a schism in the church, and two popes in being, the one named by the emperor, and the other elected; and I observed before, William Rufus kept himself independent by acknowledging neither, and was absolute master of the church. However, the popes that were elected, generally gained ground. They had the majority of the clergy on their side, and indeed most of the sovereign princes of Europe, who were jealous lest the emperor, under pretence of being successor to the Romans, might arrogate a superiority over them.

It is surprizing, yet very true, that, in these contested times, the papal power was pushed very near its greatest height. The materials, indeed, were formed and collected some time before. A multitude of fictitious decretal epistles had been forged in the names of the antient popes, so early as from the year 800, all tending to exalt the bishop of Rome, as head over the church universal; but these were not as yet generally known and received as laws, the church being hitherto governed by collections of canons made by private persons, out of the canons of the general or provincial councils and sayings of the fathers. But in the reign of our Stephen, the mighty fabrick began to be reared, and to take a regular form. Gratian, a Roman courtier, undertook to make a new compilation of ecclesiastical laws, and published it under the name of _Decretum_, which is now the first volume of the canon law. This is a motely composition, digested under distinct heads or titles, of rules and decisions, collected from the sayings of the fathers, canons of the councils, and, above all, from the decretal epistles of the popes, (the modern ones real, the ancient ones forged), and was put together principally for the two great purposes, of aggrandising the See of Rome, and exempting the clergy from lay-jurisdiction. And, for that purpose, not only forged epistles and canons have been inserted in it, but the real canons and writings of the fathers have been, in many places, falsified by adding or omitting words as best served the purpose proposed; and that this is the case of Gratian’s work, the learned Papists themselves confess, in many instances. However, in that ignorant age, it passed easily all for genuine. But the popes, wisely considering, that, if it was canvassed, it would not bear a strict scrutiny, never chose to give it an authentic testimony of their authority, but contented themselves with authorising it to be read in universities. In the interval I have mentioned, the popes began to turn their spiritual arms of excommunication or interdict, that is, forbidding the administration of divine offices, except in _articulo mortis_, in a country or district, to temporal purposes, and the support of their grandeur[379].

On this state of affairs happened the quarrel between the archbishop and Henry, which embroiled him with the pope, embittered his life, and was attended with consequences that brought him to the grave with sorrow. At this time there were two popes, Victor, confirmed by the emperor, and Alexander, the most enterprising pope the world had yet seen, supported by the king of France. Had Henry followed the example of William, and acknowledged neither, he might have kept both in awe, and vindicated the rights of his crown with success. But he was prevailed upon by Lewis of France to recognize Alexander, who was afterwards made an instrument of humbling Henry, of whose power that monarch was jealous. For his extreme partiality and severity is, in part, to be ascribed to the influence of his protector, as well as to his zeal for ecclesiastical immunities. These immunities had grown to an excessive height, and, under the pretence that no man should be twice punished for one offence, the bishops took care to inflict penance on ecclesiastical offenders, and then refused to suffer them to be tried by the laws of the land; so that the most profligate ruffians crowded into the lower order, and committed with impunity (except penance, or rather, a pecuniary commutation for it) what murders, rapes, and robberies, they thought fit. Henry was sensible of those enormities, and, in hopes of curing them, by the assistance of one highly obliged to him, got Becket, who was lord chancellor, his favourite, and indebted to him for his grandeur, promoted to the See of Canterbury. But he soon found how much he was mistaken in his man. Becket had been bred in his youth in the study of the ecclesiastical laws, and, though he had in all things hitherto complied with the king for his advancement, was, at the bottom, strictly attached to his order and its privileges, and resolved, at whatever price, rather to extend than diminish them.

To dazzle the people, he threw aside the pomp and expensive life of a courtier, and assumed the character of mortification and sanctity. He began by reclaiming the estates belonging formerly to his see, though they had been aliened by his predecessors, with the consent of their chapters, and upon valuable consideration; and this under pretence of a canon, made a year or two before by Pope Alexander, in a packed council at Troyes in France; which was plainly saying, that an ecclesiastical canon might repeal the laws of any country, and subvert its constitution. He made an attempt likewise on the patronages of laymen, and appointed a parson to a church, which belonged to one of his own tenants, and afterwards excommunicated the tenant for turning this person out, altho’ he was the king’s tenant _in capite_; and such, by a law of the conqueror, were forbid to be excommunicated without the king’s leave, under the penalties of treason. This was a very necessary law; as otherwise a bishop might, by his sentence, deprive the king of his service, and that of as many of his military tenants as he pleased. However, in this point, when he found he was in danger of being prosecuted on the law, he relented, and absolved the gentleman[380].

His screening of criminals was excercised also in the most shameful manner. A lewd clerk had debauched a young lady, and afterwards publickly murdered her father, and this criminal was refused to be given up to be tried. Another was guilty of sacrilege, in stealing a silver chalice out of a church, and _Becket_ would not suffer him to be tried by the laws of the land. However, as the offence concerned the church, and was therefore of a very heinous nature, he tried him himself; and having found him guilty, branded him with a hot iron, in defiance both of the English and canon laws, neither of which allow such punishments to an ecclesiastical judge. But he knew he was too faithful a servant to the Pope, to be called to an account even for making free with his own law.

Henry, finding it necessary to stop the prelate’s career, summoned an assembly of the bishops, and demanded of them that they should degrade all ecclesiastical murderers, and deliver them over to the secular arm. At first the majority seemed to think this a reasonable proposal, as they must, in the first place, find them guilty before they were to be given up. But _Becket_ brought them over, by representing, that, by the canon law, they were not to be concerned in matters of blood, and that their delivering over any criminal to capital punishment would be infringing thereof. They therefore refused the king. He then demanded whether they would observe the laws and customs of the kingdom. Their answer was, in all things that did not interfere with the rights of their order. The king left the assembly in wrath, and at length, Becket was, by the intreaties of the other bishops, and even of the Pope’s legate, who knew his master, being embroiled with the antipope, was not able, at this time, to support him, prevailed with to wait on the king, and promise to observe the laws of the land without any reservation[381].

Henry, sensible that such a general promise, when particular facts arose, might be explained and evaded, was resolved that the limits of the ecclesiastical jurisdiction should be ascertained in such a manner as would leave no room for subterfuges; and to that end called a parliament at Clarendon, wherein Becket and the bishops swore to observe the laws there made, called _constitutions_, as new laws, but declared to be the old laws of the realm. These constitutions were in number sixteen. I shall mention a few of the principal, in order to give a notion of the points of jurisdiction then contested between the spiritual and lay courts. First, then, it was declared, that suits about presentations to livings belong to the king’s courts; that clergymen should be tried for temporal crimes in the temporal courts; and that, if they pleaded guilty, or were convicted, they should lose the ecclesiastical privilege; that no clergyman should quit the realm without the king’s licence, nor attain it, without giving security to attempt nothing to the prejudice of the king or kingdom; that no immediate tenant, or officer of the crown, should be excommunicated without the king’s licence; that appeals in ecclesiastical causes should be made from the arch-deacon to the bishop, from the bishop to the archbishop, from the archbishop to the king.

This indeed was striking at the root of the Pope’s supremacy, and of his profits too. It was in truth declaring the king supreme head of the church as to jurisdiction; next, that all that held ecclesiastical dignities by the tenure of baronies, should do the duty of barons, and among the rest sit in judgment as barons; however with this favourable allowance to them, in consideration of their being bound by the canon law, that they might retire when the question was to be put about loss of life or limb; likewise that no bishop, or abbot, should be elected without the king’s consent; nor, when elected, be consecrated till they had first done homage and fealty; that the spiritual courts should not hold plea of debts due upon oath; and lastly, that the spiritual and temporal courts should mutually aid each other in carrying their sentences into execution[382].

Such were the most material of the famous constitutions of Clarendon drawn from the antient practice, and law of the kingdom, which the Pope afterwards declared null and void, as contrary to the rights of the holy church; which was plainly assuming the supreme legislature in every thing that had the most distant relation to a church, or a churchman. But Becket, who had sworn to obey the old laws only, for fear of personal danger at that time, did not wait for the Pope’s condemnation of them, but instantly shewed he was resolved to disobey, by enjoining himself penance, and abstaining from officiating till he could obtain the Pope’s absolution. Henry, provoked to the uttermost, was now resolved to crush him. He called him to an account in parliament for all the king’s moneys that had passed through his hands while he was chancellor, and for one thousand marks he had lent him; demands that the king had never intended to have made, but for his refractoriness; and which he well knew he was not able to pay, having embezzled them in high living.

The archbishop resolved to stand out to extremity: he offered a most wonderful plea in a cause merely civil, that of debt, _viz._ that his being made archbishop of Canterbury had discharged him of all former accounts and debts, and appealed, even in this purely civil cause, to the Pope. When reproached with contravening the constitutions of Clarendon, contrary to his oath, he broached another curious maxim, That, in every oath a clergyman could take, there was a _tacit salvo_ for the rights of his order; he forbid the bishop to sit in judgment upon him, under pain of excommunication. He would not hear his sentence, but told the peers that he was their father, and they his children, and that children had no right to sit in judgment on their father. He then departed, in contempt of the court, and went over to France, where he was kindly received by that king; and the Pope avowed and encouraged him in all the extravagances he had advanced, received his appeal, and annulled all sentences against him.

However, as the schism was not yet ended, he kept him in for some time from proceeding to extremities; but as soon as the danger was over, the Pope suffered him to thunder out his excommunications against all the ministers of the king, and all that observed the constitutions of Clarendon. The king himself, indeed, was spared, and the kingdom was not, on this occasion, laid under an interdict; a circumstance then much apprehended. The king, on the other hand, enacted, that no appeals should be made to the archbishop, or Pope; that the lands belonging to Becket should be confiscated; that the clergy who resided abroad should return in three months, or forfeit their benefices; and that no letter of interdict should be brought into England, the penalty of which last was afterwards made the same of treason.

The king was not a little uneasy at the apprehensions of personal excommunication, or of an interdict’s issuing, as he observed the censures already passed had but too much influence on the weakness of many of his subjects. He therefore, to ward the blow, had recourse to negotiation, which the Pope readily admitted, who feared, on the other hand, from the popularity of Henry’s and the unpopularity of Becket’s conduct, that his ecclesiastical thunders might be slighted in England. He contrived, however, in the interim, to embroil him with the king of France, and other powers on the continent. Matters continued on this footing for some years, in a train of negotiation; in the course of which the moderation of the king and the insolence of the archbishop were equally remarkable, till, at length, the former, finding the Pope had trod down all opposition, and that his own interest was on the decline, was obliged, I may say, to submit; for he was reconciled to Becket; engaged to restore his and his adherent’s effects, and to suffer him to return to England, which he did with the additional quality of legate of the Pope; and no mention was made of either side, of the subject of the dispute.

But Becket was resolved to shew the world he had conquered. He began the exercise of his legatine power, by suspending and degrading the clergy, and excommunicating the laity that adhered to the laws of the kingdom. Nay, he excommunicated two of the king’s tenants for cutting off the tail of his sumpter mule; so sacred was the beast become.

Soon after he was murdered at the high altar, in consequence of a rash speech of the king’s, in a barbarous manner, as all, any way acquainted with the history of England, must know; and now was Henry compleatly at the Pope’s mercy. For Becket, dead, served the See of Rome more effectually than he ever could have done living. The bloodiness of the fact, the sacredness of the place where it was committed, and the resolution with which he died, filled not only all England, but all Europe, with religious horror. Miracles in abundance he immediately wrought, and he who by many was looked upon as a traitor, was now universally esteemed a saint and a martyr; and so he was to the interest of the See of Rome.