Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

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the maxims and rules of administering justice belonging to that people, which gradually, wherever they differed from, superseded the English.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.