354 Constitutional History. [chap.
Cooperation
of the two
judicatures.
Christian to be decided there, and the interlacing, so to speak,
of the two jurisdictions was the occasion of many disputes both
on general principle and in particular causes. These disputes,
notwithstanding the legislative activity of the kings and the
general good understanding which subsisted between them and
the prelates, were not during the middle ages authoritatively
and finally decided. It is enough for our present purpose to
state generally the tendency to draw all causes which in any
way concerned landed property into the royal courts, and to
prevent all attempts at a rival jurisdiction.
Personal
actions be-
tween clerk
and lay.
Claims of
the clergy
not allowed.
The same interlacing of judicatures, similar disputes, and a
like tendency, are found in the treatment of personal actions
between laymen and clergymen ; the fifteenth Constitution of
Clarendon1, which insists that the cognisance of debts, in which
the faith of the debtor has been pledged, belongs to the king’s
jurisdiction, was contravened by the canon of archbishop Boni-
face, who, in 1261, attempted to draw all such pleas in which
clerks were concerned into the ecclesiastical courts 2 ; but there
is no reason to suppose that such a canon was observed, still
less that it was incorporated into the received jurisprudence of
the realm. A still larger claim was made in 1237, when the
clergy demanded that a clerk should never be summoned before
the secular judge in a personal action in which real property
is untouched3 ; but this, with many other gravamina presented
on the same occasion, could never find ⅛ favourable hearing,
notwithstanding the high authority of Grosseteste, who main-
tained them ; and after the reign of Edward I they are heard
of no more except as theoretical grievances.
Criminal
suits.
In criminal suits the position of the clergy was more defen-
sible. The secular courts were bound to assist the spiritual
courts in obtaining redress and vindication for clergymen who
were injured by laymen ; in cases in which the clerk himself
l Select Charters, p. 140 : of. the Ordonnance of Philip II ; Ord. ɪ. pp.
39sq.
2 Johnson, Canons, ii. 196. '
3 Ann. Burton, p. 254 : ‘item petunt quod clerici non Conveniantur in
actione personal! quae non sit super re imɪnobili coram judice Saeculari,
sed coram judice ecclesiastico, et quod prohibit™ régis non currat quo
minus hoc fieɪ i non possit.’
XIX.]
Ecclesiastical Judicature.
355
was accused, the clerical immunity from trial by the secular
judge was freely recognised. If the ordinary claimed the incri-
minated clerk, the secular court surrendered him for eccle-
siastical trial : the accused might claim the benefit of clergy Benefit of
either before trial or after conviction in the lay court ; and it
was not until the fifteenth century that any very definite regu-
lation of this dangerous immunity was arrived at ɪ. ΛVe have Jurisdiction
. . . . , .. -1 over crimin-
seen the importance which the jurisdiction over criminous clerks ous clerks,
assumed in the first quarrel between Becket and Henry II. It
was with the utmost reluctance that the clergy admitted the
decision of the legate Hugo Pierleoni, that the king might arrest
and punish clerical offenders against the forest law 2. The ordi-
nary, moved by a sense of justice, or by a natural dislike to
acknowledge the clerical character of a criminal, would not
probably, except in times of political excitement, interfere to
save the convicted clerk; and in many cases the process of
retributive justice was too rapid to allow of his interposition.
It is not a little curious, however, to find that Henry IV, at the Prelates
time of his closest alliance with Arundel, did not hesitate to with the
threaten archbishops and bishops with condign punishment for
treason3 ; that on one famous occasion he carried the threat
into execution4 ; and that the hanging of the mendicant friars,
who spread treason in the earlier years of his reign, was a
summary proceeding which would have endangered the throne
of a weak king even in less tumultuous times. Into the legal influence of
. 1 , Classimmu-
mmutiæ oɪ these poιnt⅜ we are not called on to enter : as to nities.
their social and constitutional bearing, it is enough to remark
that although, in times when class jealousies are strong, clerical
1 Blackstone, Comm. iv. 365 sq.
2 R. Diceto, i. 410. In a letter addressed to the pope Henry states the
concessions which he has made to the legate ; ‘ videlicet quod clericus de
cetero non trahatur ante judicem saecularem in persona sua de aliquo
Criminali neque de aliquo forisfacto except© forisfacto forestae meae, et
excepto Iaico feodo unde mihi vel alii domino saeculari debetur Servitium ;’
he will not retain vacant sees or abbeys in hand for more than a year ;
the murderers of clerks are subjected to perpetual forfeiture besides the
customary lay punishment ; and clerks are exempted from trial by battle.
On the later phases of this dispute see Ann. Burton, pp. 425 sq., where is
a tract by Robert de Marisco on the privileges of the clergy. Cf. Robert-
son’s Becket, 82, 83, 209, 210.
3 Rymer, viii. 123. Above, pp. 52, 53.