A statute of 1341 recognized that it belonged to the church to prosecute lenders upon interest in their lifetime, to the state to confiscate their property after death. 183 This act, with others of the same parliament, was repealed the following year, and it seems that prosecution of lenders upon interest in their lifetime remained open both to state and church.

184

Penal proceedings during the life of the offender were expressly encouraged by an act of Henry VII's reign; in it reservation was made to the spiritual authorities of their lawful punishments.185

9. Perjury and breach of promise (perjurium and fides laesa).

In the first century after the Norman conquest civil prosecution for perjury is only mentioned in cases of violation (against which feudal law provided) of

vinceretur venisse, per annum et diem carcerali plecteretur penuria, regiae postmodum obnoxius misericordiae. Enumeration of the subjects with which the itinerant judges in 1194 should deal (Hoveden; Rer. Brit. Scr. No. 51; III, 264) c 15: Item de fveneratoribus, et eorum catallis,qui mortui sunt. In 1198 (l.c. IV, 62) c 12: De usuris Christianorum, et eorum catallis qui sunt mortui. Similarly, the instruction to the itinerant judges in Bracton (Rer. Brit. Ser. No. 70) II, 244. [Cf. Magna Carta v. 1215 c 10 (append. VII), 20 Hen. III (1235/6) Stat. Merton c 5 (append. VII, note 9).] Rot. Parl. 51 Hen. III (cited by Coke, Instit. III c 70), Petitiones Cleri: Ad 16 Artic. de usuris respondetur: Quod licet Episcopis pro peccato illo poenitentiam usurario injungere salutarem. Sed quia committendo usuram, usurarius furtum committit, et super hoc est convictus, catalla et tenementa usurarii, sicut catalla furis sunt regis, et si qui sequi voluerint contra hujusmodi usurarium, restituantur eis bona sua, quae ipsi usurarii per usuram extorserunt. Fleta, lib. II c 1 § 19: Item, atrox injuria est quae omnium mobilium amissionem confert, et Legem liberam aufert, et quae locum habet in Usurariis Christianis, et de perjurio convictis, lib. I c 20 De Capitulis Coronae et Itineris § 28: De Usurariis Christianis, qui fuerint; et si qui mortui fuerint, qui Catalla eorum habuerint, et quantum. Mirrour aux Justices c 1 s 16 De Viewes de Franck-pledge: Les articles sont ceux: De Christians usurers; et de touts lour biens.

183 15 Ed. III (1341) st. 1 c 5: Item accorde et assentuz est qe le Roi et ses heires eient la conisaunce des usereres mortz et qe les Ordinares de seinte esglise eient la conisaunce des usereres vifs, desicome a eux attient, faire compulsioun par censures de seint esglise pur le pecche, de faire restitucion des usures prises contre la lei de seinte esglise. Temporal penalties during lifetime against lenders upon interest are threatened by ordinance of Edward III, 7th March, 1364 and the proclamation, based thereon, of the town of London (Lib. Albus ; Rer. Brit. Ser. No. 12; I, 368 ff.).

18 15 Ed. III st. 1 was revoked by the king (15 Ed. III st. 2): volentes tamen quod articuli in dicto statuto contenti, qui per alia statuta nostra vel progenitorum nostrorum Regum Angliae sunt prius approbati, iuxta formam dictorum statutorum observentur.

185 3 Hen. VII (1487) c 6 fixes for loans upon interest disguised under form of sale, bargain etc. a penalty of £100, to be imposed by chancellor or justice of peace. reservant all Esglise, cest punissement nient contristeant (temporal punishment notwithstanding), la correccion de lour almes a les leies dicell accordant (cf. also c 7). 11 Hen. VII (1495) c 8 repeals the act, just mentioned, as obscure. In case of lending at interest, or selling goods to persons being in necessity and buying the same again within three months for less money, or lending money on receiving profit from lands etc., if complaint be made in the king's court, one half the sum lent shall be forfeited, whereof one half goes to the king, one half to the person suing, or if none sue, the whole to the king. Suit may be by information in any of the king's courts of record. The act ends: Reservyng alwey to the spirituall jurisdiccion their lawefull punysshmentis in every case of Usurie.

the feudal vow and of the oath which juratores 186 had to take. 187 Probably the ecclesiastical authorities also exercised the right of imposing penance whenever oath or promise was broken. In accordance with their general principles they, presumably, at the same time used their influence to bring about a fulfilment of the broken pledge. Civil jurisdiction in the cases here contemplated was forbidden to the church in the constitutions of Clarendon.188 But the distinction between civil action and penal prosecution-on which Glanvilla laid stress was not strictly observed either by state or church. On the one hand, the

189

186 Juratores had an intermediate position between witnesses and jurymen in the modern sense.

187 Laws of William I (preface p. ci to Hoveden, Rer. Brit. Scr. No. 51, vol. II) c 6: Anglus si Francigena appellaverit Anglum de perjurio se defendat per quod melius voluerit, aut judicio ferri, aut duello. An instance of proceedings before a civil court against perjured juratores will be found in Bigelow, Placita Anglo-Normannica. London, 1879, p. 34. Cf. also Odericus Vitalis (Ed. of Le Prevost) IV, 239: Anno ab Incarnatione Domini 1107 Henricus rex proceres suos convocavit, et Rodbertum de Monteforti placitis de violata fide propulsavit. Unde idem, quia reum se sensit, licentiam eundi Jerusalem accepit, totamque terram suam regi reliquit.

Leges Henrici I (law-book; probably 1110-18). c 53 § 4: Si dominus de felonia vel fide mentita compellat (= brings before the court) hominem suum, Assisa de Essoniatoribus (preface p. cv to Hoveden, l.c. vol. II): si essoniatores voluerint invenire vadium et plegium quod ad diem habebunt warantum suum, et si non habuerint, deinde capiantur ut perjuri.

According to Glanvilla (circ. 1180-90) Book II c 19 there were civil penalties for perjury of juratores in the assisa. For full particulars of procedure and penalties in such cases see Bracton, Book IV, tract. 5 cc 4, 5 (IV, 388 ff.); Fleta, Book V c 16; Britton, Book IV c 9. Cf. also Fleta, Book II c 1 § 19: Item, atrox injuria est quae omnium mobilium amissionem confert, et Legem liberam aufert, et quae locum habet in Usurariis Christianis, et de perjurio convictis. According to Fleta, Book V c 16 § 4 and Britton, Book IV c 9 § 3 only the violation of an assertory (having reference to the past or the present) cath, not that of a promissory, is penal. The oath of a juryman belongs thus to the former class. In the Mirrour aux Justices c 1 s 4 and c 4 s 19 the idea of perjury is extraordinarily wide; in it is included every violation of an oath of fealty or breach of official duty; cf. e.g. (Ed. Honard IV, 497): En perjury chéent vers le Roy touts ceux subjects le Roy qui le maudissent ou escomengent.

198 c 15: Placita de debitis, quae fide interposita debentur, vel absque interpositione fidei, sint in justitia regis. Becket and Alexander III seem to have assumed that in the constitutions of Clarendon the exercise of the corresponding penal jurisdiction was also forbidden; it is not apparent that they could have had in view any other provision than that quoted. Becket at Vezelay condemned (1166) as contained in the constitutions, among other things, the rule: Quod non liceat episcopo coercere aliquem de perjurio vel fide laesa. (Report of Becket to Alexander III, Materials for History Becket; Rer. Brit. Ser. No. 67; V, 387.) Alexander III writes 1165-6 to Henry II: negotia ecclesiastica, et praesertim criminalia, quae de laesione fidei vel juramenti emergunt, causas quoque super rebus et possessionibus ecclesiarum, personis ecclesiasticis tractanda relinquere non adeo serenitatem

tuam deceret quam etiam expediret. (Materials, l.c. VI, 554.)

189 Glanvilla, Book X c 12: Die autem statuta debitore apparente in Curia, creditor ipse si non habeat inde vadium neque plegios neque aliam diracionationem nisi solam fidem, nulla est haec probatio in Curia domini Regis. Veruntamen de fidei lesione vel transgressione inde agi poterit in Curia Christianitatis. Sed Judex ipse ecclesiasticus, licet super crimine tali possit cognoscere et convicto penitentiam vel satisfactionem injungere, placita tamen de debitis laicorum vel de tenementis in Curia Christianitatis per Assisam regni, ratione fidei interpositae, tractare vel terminare non potest.

ecclesiastical courts continued for some time longer to make a general claim without closer distinction to actions de perjurio et fide laesa; on the other hand, Henry III, and at first perhaps Edward I also, prohibited them from dealing with all such matters.190 Whether the Circumspecte Agatis contained a provision upon the question is doubtful.191 At any rate towards the end of the thirteenth century it seems to have been acknowledged that the ecclesiastical courts, if they confined themselves to the imposition of admissible penances, could punish in all cases of perjury or breach of faith. This was upheld by rulings of the courts in the reigns of Edward III192 and Henry VI.193 Side by side therewith examples are found of judgments of the period from Henry IV to Edward IV in which the older confusion recurs, the secular courts forbidding to the ecclesiastical all action in respect of perjury or breach of faith in case the suit touching the obligation confirmed by the oath was one within the cognizance of a secular court. 194 From the end of the reign of Edward IV the opinion prevailed among the secular judges that the church courts could indeed punish for perjury or breach of faith, if the main issue belonged to the competence of the secular court, but only ex officio, not at the instance of the party concerned. 19 195 The underlying idea probably was that the party, as a rule, would only prosecute if by so doing the fulfilment of the contract could be compelled. 196 Thus by a circuitous process a return had been made to the old distinction, that if it was only a question of imposing a penance, the ecclesiastical court was competent in all cases of perjury or breach of faith.

Under Henry VII statutory measures were issued to direct civil proceedings against persons (especially jurymen) who had broken the oath they had taken in a civil court.' 197

190 Cf. above, note 79. See also complaint of the clergy at the provincial council of London, 1257 (Wilkins, Concilia I, 726) c 27: ..; si inter laicos in contractibus interveniat fidei datio, vel infringat jusjurandum quis juramentum vel fidem, et judex (sc. ecclesiasticus) velit cognoscere de tali peccato mortali (saltem ad poenitentiam injungendam) porrigitur regia prohibitio; et salus animarum impeditur in damnationem plurimorum, ea occasione, quod ratione catallorum praestitum fuerat jusjurandum.

191 In some MSS. the words et similiter de filci laesione are wanting; and so in the text adopted in Statutes of the Realm. Cf. St. of R. I, 101, note 9. If the words stood in the ordinance, they laid down that the ecclesiastical courts might try such causes dummodo non petatur pecunia, sed agatur ad correccionem peccati. With this would agree the royal answer, printed above,

note 162.

192 22 Ass. 70; Fitz. Prohib. 2, cited in Reeves, Hist. of Engl. Law, Ed. 1869, III, 104.

193 34 Hen. VI, 70 cited in Reeves, l.c.

194 Reeves l.c. cites the following instances: (1) 2 Hen. IV, 15. Bro. Praem, 16; (2) 11 Hen. IV, 83 (88?); (3) 38 Hen. VI, 29; (4) 20 Ed. IV, 10; 22 Ed. IV, 20. -Cf. complaint of the clergy at the provincial council of London, 1399 (Wilkins, Concilia III, 240) c 48: Item in causis perjurii et defamationis quum in foro ecclesiastico agitur duntaxat ad poenam canonicam imponendam si generalis prohibitio regia judici porrigitur, quamvis judex ille constare faciat sub sigillo suo in cancellaria regis de hujusmodi causa, et quod procedatur tantummodo ad poenam canonicam ea occasione infligendam, consultatio regia (cf. § 27, note 10, sub finem) denegatur. Unde perjurium incurrentibus et defamantibus grave imminet periculum morum, cum perjurium et defamatio hujusmodi sic perpetuo maneant impunita. Quare supplicant ut rex dignetur gratiose concedere, quod in hiis casibus

poterit consultatio emanare.

195 According to Reeves, l.c. this view was first expressed towards the end of the reign of Edward IV by judges Brian and Littleton, and afterwards approved in the judgment 12 Hen. VII, 22.

196 Reeves, l.c.

197 11 Hen. VII (1495) c 21 An Act agaynst Perjurye. Relates to proceedings

§ 61.

c. From the reformation to the present day.

1. PARTICIPATION OF ECCLESIASTICAL PERSONS IN TEMPORAL COURTS.

Hence

During the previous period the popular courts or folk-moots had been, with but few traces left, displaced by the royal courts. the participation of the clergy as such in the temporal court, a participation due to the old constitution of the folk-moot, ceased. On the other hand, the clergy were not as such excluded from participation in the royal court. Thus, for example, many instances occur of clerks filling the position of justices of the peace.

In some acts of the reformation period, for certain cases of offence against a prescribed doctrine the possibility of constituting mixed courts was contemplated.' But such provisions did not obtain permanent significance.

against jurymen in the city of London, who violating their oaths give a wrong verdict. c 24 An Act for Writtes of Attaynt to be brought agaynst Jurors for untrue Verdictes. As the preceding, but without limitation to London. Valid until the next parliament. c 25 An Act agaynst Perjury unlawfull mayntenaunce and corrupcion in officers. ss 2 ff. relate to perjury on occasion of inquest before a justice of peace; s 6 concerns the case, if perjury bee commytted by proves in the Kinges Courte of the Chauncery or before the Kinges honorable Councell or els where. Valid until the next parliament.

In these three acts ecclesiastical jurisdiction is not mentioned.

1 34 & 35 Hen. VIII (1542/3) c 1 ss 2 and 17: Any person who maintains etc. what is contrary to the doctrine set forth since 1540 shall be condemned by the bishop and two justices of the peace, or by two members of the king's council, or by commissioners appointed by the king. By 1 Ed. VI (1547) c 1 the spiritual representative is only called upon for advice; ss 1, 2: actions for speaking irreverently of the sacrament of the altar are to be heard before justices of the peace; s 5: the justices shall direct to the bishop the following writ: Rex Episcopo L. salutem. Praecipimus tibi quod tu Cancellarius tuus vel alius deputatus tuus sufficienter eruditus sitis cum Justiciariis nostris ad pacem in Comitatu nostro B. conservandam assignatis apud D. tali die ad sessionem nostram ad tunc et ibidem tenendam ad dandum consilium et advisamentum eisdem Justiciariis nostris ad pacem super arranamentum et deliberacionem offendencium contra formam statuti concernentis sacrosanctum Sacramentum Altaris. 2 & 3 Ed. VI (1548) c 1 Act of Uniformity; s 4: offences against this act are to be investigated and determined by the Justices of Oyer and Determyner or the Justices of Assise; s 5: provided that everye Archebisshopp or Bisshopp shall or maye joyne and associate him selfe ..to the said Justices 1 Eliz. (1558/9) c 2 Act of Uniformity; s 4: The archbishops and bishops are to compel the observance of this act by ecclesiastical pains; s5: The Justices of Oyer and Determiner and the Justices of Assise shall likewise take measures to prevent transgression; s 6:

all and every Archebishope and Bishope shall or maie at all time and times at his libertie and pleasure, joyne and associate himself by vertue of this Acte to the said Justices of Oier and Determiner, or to the said Justices of Assise at every the said open and generall Sessions to be holden in any place within his Diocese for and to thinquirie hearing and determining of the offences aforesaid. Čf. also 14 Eliz. (1572) c 5 s 32: The bishops (or their chancellors) shall visit the hospitals whose founders are dead and for which special visitors have not been fixed; in case accounts of the receipts of the hospital are refused or the proper application of those receipts is not shown

, every

2

2. ECCLESIASTICAL COURTS.

The reformation as such made no change in the competence of the ecclesiastical courts. But slowly, even during the time when the reform was developing, that gradual limitation progressed which was beginning as early as Henry VII. At the opening of the first revolution the church was deprived of the right to inflict fines or imprisonment; but at the restoration recovered its former punitive powers. Yet the diminution little by little of the sphere of competence of the ecclesiastical courts still continued; nor was the process arrested until the middle of the nineteenth century, when it came to a temporary standstill.

a. Competence in respect of persons.

The legislation of the reformation period in this respect was connected with the restrictions on the ecclesiastical courts partly already permanently introduced under Henry VII, partly tentatively laid down in the first years of Henry VIII by the act-limited as to the time of its validity-4 Hen. VIII (1512) c 2.4

23 Hen. VIII (1531/2) c 1, at first likewise only in force for a few years, deprived clerks under the degree of subdeacon of benefit of clergy even in a first case of petty treason, murder or of robbery or arson under aggravated circumstances. Clerks in higher orders were to be delivered up to the bishop, but might be by him degraded and surrendered to the secular court for judgment. 28 Hen. VIII (1536) c 1 prolonged the validity of this last act and extended the effect of its provisions as to clerks in minor orders to clerks of all higher degrees. By 32 Hen. VIII (1540) c 3 the two preceding

shall forfayte and lose suche summe

of Money

suche person as to the said Bysshoppe or Chauncelour and two Justices of the Peace shalbe thought meete and convenient, Similarly, according to s 37, in the case of other charitable foundations. 21 Ed. VI (1547) c 2 ss 3-7 (see § 6, note 42) laid down that the ecclesiastical courts in contentious civil or criminal causes should thenceforward give judgment in the king's name, whilst other (specified) faculties etc. of ecclesiastical authorities should run as before in the names of the bishops. This act was repealed by 1 Mar. st. 2 (1553) c 2 s 1. Cf. also 1 & 2 Phil. & Mar. (1554 & 1554/5) c 8 s 24.-1 Mar. st. 2 c 2 was repealed by 1 Jac. I (1603/4) c 12 s 8. When under Charles I doubts were raised whether the provisions of 1 Ed. VI c 2 were thus revived, the star chamber took the judges' opinion. That opinion was given (1637) to the effect that the statute was not in force and that process might issue out of the ecclesiastical courts in the names of the bishops. The opinion is printed Cardwell, Doc. Ann. II, 212.

3 Cf. § 7, notes 36 and 39.

On these earlier acts see § 60, notes 69-71.-The attitude of Henry VIII towards this question is shown by his letter (1533) to bishop Tunstall of Durham (Wilkins, Concilia I, 762): And as for the living of the clergy, some notable offences we reserve to our correction, some we remit by our sufferance to the judges of the clergy; as murther, felony, and treason, and such like enormities we reserve to our examination; other crimes we leave to be ordered by the clergy, not because we may not intermeddle with them, for there is no doubt but as well might we punish adultery and insolence in priests, as emperors have done, and other princes at this day do,