LECTURE XXIX.

The alterations introduced by William, as to the administration of justice—The Judges of the Curia Regis are appointed from among the Normans—The county courts decline—The introduction of the Norman language—The distinction between courts of record, and not of record—The separation of the spiritual and temporal courts—The consequences of this measure.

William, by altering the nature of land estates, and the conditions upon which they were held, had proceeded a good way in his second capital design, the introduction of the Norman, and the abolishing of the Saxon law. And farther than that, it was not proper nor consistent with his honour, who had sworn to Edward’s laws, to proceed openly. However he formed a promising scheme for sapping and undermining the Saxon law by degrees. First, he appointed all the judges of the curia regis, from among the Normans, persons fond of their own law, ignorant of the English, and therefore incapable, even if they had a mind, to judge according to it.

Before his time this court only meddled with the causes of the great lords, or others that were of great difficulty, but now it was thought proper to discourage the county courts, and to introduce most causes originally into the superior court; and for this there was a reasonable pretence, from the divisions and factions between the two nations and the partialities that must ever flow from such a situation of affairs. The ancient laws of England had been written, some in the Saxon, some in the Latin tongue, and the laws of William, and of many of his successors, were penned in the latter language. But in the curia regis all the pleadings henceforward were entered in the Norman tongue, the common language of his court, as were also, all the proceedings therein, until the time of Edward the Third. This introduced the technical law terms and with those came in the maxims and rules of administering justice belonging to that people, which gradually, wherever they differed from, superseded the English. Hence proceeded the great affinity I may say, identity, between the antient law of Normandy, as set forth in the coutumier of that country, and the law of England, as it stood soon after the conquest.

The analogy, however, did not arise from this alone. Though England borrowed most from Normandy, yet, on the other hand, Normandy borrowed much from England. William, for the ease of his people, who had occasion to frequent his court, or had suits in the curia regis, established schools for instructing persons in this language, and obliged parents of substance to send their children thither, which had the consequence of abolishing the old Saxon tongue, and forming a new language, from the mixture of both[336].

This introduction of a new language, together with the exaltation of the curia regis and the consequent depression of the county courts, introduced, as I apprehend, the distinction between the courts of record, and not of record, and made the county courts considered of the latter kind. Courts of record are such whose proceedings are duly entered, which, at that time, was to have been done in the Norman tongue, and which proceedings are of such weight, as, unless reversed, for ever appearing from the record, can never be gainsaid or controverted. Now, to allow such a privilege to the proceedings of the inferior courts, the county ones, where the suitors were judges, and where, besides, the proceedings were in the English language, would have been contrary to the policy of that time, and would have tended, rather to the confirmation than depression of the old law. The spiritual courts, also, are not allowed to be courts of record, and that, I presume, because they were antiently a part of the county courts, and separated from them, as I shall shew presently in this reign, and therefore could have no greater privilege than the court from which they were derived. However some inferior courts, such as the tourn, and the leet, were allowed to be courts of record, and that, I conceive, both for the benefit of the realm, and the profit of the king; for these were criminal courts, where public offences were punished, and therefore should have all weight given them, and where the king’s forfeitures and fines for crimes were found.

I have observed before, that the courts, in the Saxon times, were mixed assemblies, where the bishop and sheriff presided, and mutually assisted each other, and where the bishop, I may add, had a share in the amerciaments and fines. But in this reign the spiritual and temporal courts were separated by William, a thing which afterwards was of bad consequence to many of his successors, but was, at the time, very serviceable to the views he then had. This was certainly done partly to oblige the pope, who had espoused his title, and at this time was setting up for the universal lord of churchmen, though, in after times, they carried their pretensions much higher[337].

One great engine the popes set on foot to attain the power they aimed at, was to make a distinction between clergy and laity, to have the matters relating to the former, as well the merely spiritual as the temporal rights they had acquired, cognizable only in their own jurisdictions; and, to preserve the distinction stronger, to forbid their interfering in the temporal courts, upon pretence of their time being taken up in spiritual exercises, and particularly, that it suited not the piety and charity of a clergyman, even by his presence, to countenance the proceeding to sentence of death, or the mutilation of limbs. Many were the laws they made for this purpose, upon motives of pretended piety; and the circumstances and practices of the times contributed greatly to their success. The emperors, kings, and great lords, had the nomination to bishoprics, and other benefices, as their ancestors had been the founders, and their lands were held from them. But shameful was the abuse they made of this power. Upon pretence of the clergy being their beneficiary tenants, according to the principles of the feudal law, they exacted reliefs, and arbitrary ones from them before investiture, or, to speak in plain terms, they sold them on Simoniacal contracts to the highest bidder, as the Conqueror’s son William did afterwards in England; so that the profligate and vicious were advanced to the highest dignities, while the conscientious clergy remained in obscurity; nay, if they could get no clergyman to come up to their price, they made gifts of the title and temporalities to laymen, nay, to children; it was a matter of little concern that there was no one to do the spiritual office.

Such practices, (and they were too common) gave just and universal offence to all sober persons, so that the popes were generally applauded for their aiming at the reformation of the evils, and for the endeavouring, by their decrees, to reform the morals of the corrupt clergy, and to restore an elective manner of conferring benefices, though their real design was first to become the protectors of the clergy, next, their lords and masters, and then, by their means, to tyrannize over the laity; a plan which they carried into execution with too much success. This plan was in the height of its operation in William’s reign. The foundation of it had been laid before, as I observed, in the many distinctions made between clergy and laity, and the prohibiting the first, except some great ones, from meddling with secular affairs, or tribunals. This reparation, however, had not yet taken place in England, and it is not a wonder that William, who had peculiar views of his own in it, as I shall observe, thought it reasonable to oblige his benefactor the pope, and to conform the constitution of this church and nation to that of France, where the clergy were a separate body.

The private views of the king were twofold, the first arose merely from his personal character, his avarice. By the bishop’s ceasing to be a judge in the temporal courts, he lost his share of the mulcts or fines imposed therein, and in consequence the king’s two-thirds of them were encreased. But his other view lay deeper. To comprehend this, we must remember how great was the ignorance of those ages. Scarce a man, except a clergyman, could read or write, insomuch that being able to read was looked upon as a proof of being in orders. Many even of the greatest lords could not write their names, but signed marks; and from this ignorance it was that proceeded the great weight our law gives to sealing above signing any instrument, and that sealing is what makes it a man’s deed. It followed from hence that the laity must be grossly ignorant in point of the laws. Their knowledge could extend no farther than as they remembered a few particular cases, that fell under their own observation; whereas the clergy had the benefit of reading the written laws, and consulting the proceedings thereon, in the rolls of the courts of justice, and they were the only lawyers of the times; insomuch that it became a proverb, nullus clericus nisi causidicus.

What method then could so effectually answer the king’s end of making the Saxon law fall into oblivion, which he could not openly abolish, after having solemnly sworn to observe it, as the removing from the courts of justice those persons who only knew it, and could oppose any innovation his Norman ministers should attempt to introduce. This policy, however, as artfully as it was laid, had not its full effect; for many of the clergy, unwilling to lose so gainful a trade, appeared still in these courts in disguise, as laymen, and at this time it is very probably conjectured that that ornament of the serjeant at law’s dress, the coiff, was introduced, and for this very purpose of hiding the tonsure, which would have shewn them to be clerks. This their attendance, in some degree, frustrated the scheme, and many of the Saxon laws, such especially as were repeated in William’s, kept their ground, but many more were forgotten.

I mentioned that one motive of William’s to separate the jurisdictions, was to oblige the pope, to whose favour he owed much, yet it ought to be observed to his honour, that he maintained the independency of his kingdom with a royal firmness. Pope Gregory, commonly called Hildebrand, who was the first that ventured so far as to excommunicate sovereign princes, as he did the emperor no less than four different times, conceiving William could not sit securely on his throne without the aid of his see, demanded of him homage for the kingdom of England, and the arrears of Peter’s pence; grounding his claim of superiority on his predecessor’s consecrated banner, and that Peter-pence was the service by which the kingdom was held from the holy see. But he found he had a man of spirit to deal with. William allowed the justice of the demand of Peter-pence, and promised to have it collected and paid, not as a tribute, but as a charitable foundation, as in truth it was, to support a college of English students at Rome, for the benefit of the English church. As to homage, he absolutely refused it, and declared he held his crown from God alone, and would maintain its independence; and to convince the pope he was in earnest, he issued an edict forbidding, on their allegiance, his subjects to acknowledge any person for sovereign pontiff, until he had first acknowledged him. So bold a step convinced Gregory, who was already sufficiently embroiled with the emperor, that this was no fit time to push things; and so he dropped his project, but without retracting it; for the court of Rome never did in any case formally recede from a pretension it had once advanced.

The consequences of the separation of the ecclesiastical from the temporal jurisdiction were many. It naturally occasioned controversies concerning the respective limits, and these gave rise to the curia regis interposing in these matters, and, by prohibitions, preventing one from encroaching upon the other. The great contest was concerning suits for benefices, or church livings, which the clergy contended were of spiritual, and the king’s courts, of temporal cognizance. And this, indeed, was the great question that, in those days, divided the Christian world abroad. However in England, the clergy were, at length, foiled in this point. But a much greater evil arose from this separation. It is a maxim of all laws, that no man should be twice punished for the same crime, and this just maxim the clergy, in favour of the members of their own body, perverted in a shocking manner. If a clerk committed murder, rape, or robbery, the bishop tried and condemned him to penance; and this sentence was made a pretence of not delivering him to the temporal courts, to be tried for his life. This was one of the great disputes concerning the constitutions of Clarendon, in Henry the Second’s time, between him and archbishop Becket[338].

At length, about Henry the Third’s reign, the limits between the several jurisdictions were pretty well settled, and by subsequent statutes, and judicial resolutions, are confined to the respective limits they are now under. Indeed, since the Reformation, as the credit of the canon law has declined, on account of the dilatory proceedings, and the use of excommunication upon every trifling contempt, the reputation of the ecclesiastical courts has greatly fallen, and prohibitions are now issued, in many cases, where they could not have been granted in former times. Yet, if we examine accurately, we shall find that these great complaints, which, it must be owned, are in the general just, namely, of dilatoriness and excommunications, proceeded from the separation of the two courts by William. Before, when the courts sat together, the sheriff assisted the bishop, and by his temporal power compelled the parties to appear, and submit to the sentence, if they were contumacious against excommunication. But when they were separated, the bishop was left to his spiritual arms, merely, excommunication; and as the consequences of such a sentence were, in the superstitious times, looked on as very dreadful, and are really severe in law, several intermediate processes and notices were necessary before they proceeded to that extremity; and this gave opportunity to litigious persons to disobey every order the court made in a cause, until they came to the brink of excommunication, and that way, by repeated contumacies, to spin out causes to an unconscionable length. And the want of other arms compelled these courts, on very trifling contempts, to enforce their orders by excommunication, which, it must be owned, according to its primitive and right use, should be reserved only for flagitious immoralities[339].

Another evil consequence that flowed from this separation of these courts, was, that the pope cunningly got his, the canon law, introduced into the ecclesiastical courts, which made him the head of the church, introduced appeals to him, and in effect, robbed the king of so many subjects in ecclesiastical affairs, whereas, before, though there might be references in cases of difficulty for advice to Rome, there were no appeals thither. The curia regis was to reform ecclesiastical judgments, and the ecclesiastical, as well as temporal jurisdiction, was the king’s.

Another evil consequence, and it is the last I shall mention, of this alteration, was the setting up two legislatures, if I may say so, in the kingdom. In the antient time all laws were made in the same assembly, but now, the clergy being separated from the laity, when a parliament was called, the business became divided; ecclesiastical matters, and the taxes on the clergy, were handled in the convocation, as temporal matters, and the taxes on the laity, were in parliament. This contributed to the further clashing of jurisdictions. For it must be owned the convocation exceeded their powers, and made canons about things merely temporal; which, however, they contended to be spiritual; and sometimes contrary to the express law of the land, nevertheless they by the superstitious and ignorant, who knew not the distinction between such things, were generally obeyed, and hence from such submission it is, that, by custom, in several places, tythes are payable of things that are not tythable at common law.

The right of the convocation’s canons binding the laity in spiritual matters was never doubted in the times of popery, nay till Charles the First’s time, if they had the approbation of the king, who was the head of the church, it was the general opinion, except among the Puritans. But since that time their jurisdiction is settled on a reasonable footing. Their canons bind no man, spiritual or lay, in temporal matters. They bind no layman in spiritual matters; but they bind the clergy in spiritual matters, provided that no right of the laity is thereby infringed. As for instance, there is a canon forbidding clergymen to celebrate marriage out of canonical hours. This doth not bind even a clergyman, for if it did, it would strip the laity of their right of being married at any hour. However it is to be considered whether a canon of the convocation is a new ordinance, or only a repetition of the old ecclesiastical law. If the latter, it binds all men, spiritual and lay, not as a canon, but as the law of the land.