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.
In these circumstances Henry was obliged to submit to be judged by the
Pope’s legates, who, at length, absolved him, on his swearing that he had
not willingly occasioned the murder, and that he felt great grief and
vexation on account of it; in which, no doubt, he was sincere. But before
he could obtain it, he was obliged to promise to be faithful to Alexander
and his successors, not to interrupt the free course of appeals to Rome
in ecclesiastical causes, and not to enforce the observance of evil
customs introduced since his accession to the throne; for so they stiled
the constitutions of Clarendon, though they were only declarations of the
old law. And thus ended this famous contest, in an absolute victory on
the side of the Pope[383].
LECTURE XXXVI.
_The rebellions of Henry’s sons—He is succeeded by Richard_
I.—_The steps taken at this period towards settling the
succession to the kingdom—The laws of Oleron—Accession of
John—His cruelty and oppressions._
Henry’s quarrel with the Pope, terminating in the manner it did,
necessarily weakened the weight and influence he ever before supported,
both in his own kingdom, and on the continent; nor could the unwearied
pains he afterwards took, in redressing grievances, and making salutary
laws, by the advice of his parliament, restore him to the consequence he
had lost. The rest of his life was spent in unfortunate wars with his
rebellious children, instigated thereto by the artful Philip of France.
And the pretence was grounded on a step that Henry had taken in favour
of his children, and I may add of his people, that of bringing the crown
to a regular course of succession, and by that means preventing contests
upon a vacancy. Hugh Capet, the first of the present race of French
kings, who came to the throne by election, in order to perpetuate it in
his family, invented that practice which his successors followed for near
three hundred years, of associating the eldest son, by causing him to be
crowned in the father’s lifetime.