Thursday, 26 December 2013

Historical Notes of Clause 15: Breach of Faith - King's Justice or Ecclesiastical Court?

Cap. XV. Placita de debitis quae fide interposita debentur, vel absque interpositione fidei, sint in justitia regis.

Clause 15. Pleas concerning debts, which are owed on the basis of an oath or in connection with which no oath has been taken, are in the king's justice.

or

Let those pleas of debts, which are due with or without the interposition of a trust, be in the king's jurisdiction.

As early as the reign of king Stephen the Church had attempted to turn the ecclesiastical courts into ones dealing with matters of equity. For example, the Church claimed that suits involving pro laesione fidei [for injury to faith] belonged to its courts, as the matter concerned the harm and damages done by breach of faith or promise, and the Church considered these to be spiritual offences against the conscience. Thus the Church regarded that any case concerning the non-payment of debt or any breach of contract to be its business. Clause 15 of the Constitutions of Clarendon was instituted to put a stop to this practice, by stating pleas of debt belonged to the king's justice, thereby seeking to abolish the Church's right to hear such suits. The pope condemned this clause.

The Bible is peppered with the language of debt. Sin, forgiveness, reckoning, redemption - all of these words actually derive from the language of religion.  Debt is sin: Forgive us our debt.

Debt was very common amongst the lower classes. Cash, that is silver pennies, or physical money was largely used only for paying taxes to the king. Commonly if one wanted to "buy" a cow on credit one generally borrowed it from the creditor; one obtained the cow on loan for a pledge: in essence one had leased the cow. If the debt fell foul for any reason, a plea of debt was raised by the lender with the court. The claimant if the case were proved would be entitled to the promised pledge. Usury was strictly again Canon Law for Christians.

One problem this procedure was likely to generate was physical proof that a contract had been made, such as a tally-stick.

References

Wilfred Lewis Warren (1973). Henry II. University of California Press. pp. 546–8. ISBN 978-0-520-02282-9.

Sir William Blackstone (1775). Commentaries on the Laws of England: In Four Books. Clarendon Press, printed for W. Strahan. pp. 52–.


George Lyttelton (1767). The History Of The Life of King Henry the Second,  Notes to the Second and Third Books.  Sandby and Dodsley. pp. 142-3.


R. H. Helmholz (January 2004). The Oxford History of the Laws of England: The Canon law and Ecclesiastical jurisdiction from 597 to the 1640s. Oxford University Press. pp. 358–. ISBN 978-0-19-825897-1.

Thomas Atkins Street (1999). The History and Theory of English Contract Law. Pledge of Good Faith in Contract Law: Beard Books. pp. 11–. ISBN 978-1-893122-24-6.

Thomas Atkins Street (1999). The History and Theory of English Contract Law. Jurisdiction of the Ecclesiastical Courts: Beard Books. pp. 13–. ISBN 978-1-893122-24-6.

Thomas Atkins Street (1999). The History and Theory of English Contract Law. Jurisdiction of Ecclesiastical Courts: Beard Books. pp. 11–. ISBN 978-1-893122-24-6.

Ranulphus de GLANVILLA; John Rayner; John Eardley WILMOT (1780). Tractatus de legibus et consuetudinibus Regni Anglie.

David Hoüard; Ranulf de Glanville; Andrew Horne (1776). Préface. Dissertation préliminaire sur les variations de la législation françoise et angloise, depuis l'entrée des Saxons dans les Gaules jusqu'au onzième siècle. Extraits du Domesday. Loix d'Henry I. Traités sur les coutumes angloises, par Glanville. Saillant, Nyon & Valade. pp. 532–.

David J. Ibbetson (2001). A Historical Introduction to the Law of Obligations. Glanvill and the Law of Debt: Oxford University Press. pp. 17–. ISBN 978-0-19-876411-3.




Richard Firth Green (2002). A Crisis of Truth: Literature and Law in Ricardian England. Chapter 4: The King's Law: University of Pennsylvania Press. pp. 121–. ISBN 0-8122-1809-4.

Vermeersch, A. (1912). Usury. In The Catholic Encyclopedia
http://www.newadvent.org/cathen/15235c.htm


R. H. Helmholz; John Hamilton Baker (2003). The Oxford History of the Laws of England: The Canon law and Ecclesiastical jurisdiction from 597 to the 1640s. Oxford University Press. pp. 378–. ISBN 978-0-19-825897-1.

R. H.Tawney (1998). Religion and the Rise of Capitalism. Transaction Publishers. pp. 299–. ISBN 978-1-4128-3294-6.


Contracts in Early English Law
Frederick Pollock
Harvard Law Review
Vol. 6, No. 8 (Mar. 15, 1893), pp. 389-404
Article DOI: 10.2307/1321304

Alfred William Brian Simpson (1987). A History of the Common Law of Contract: The Rise of the Action of Assumpsit. Clarendon Press. pp. 7–. ISBN 978-0-19-825573-4.

Alfred William Brian Simpson (1987). A History of the Common Law of Contract: The Rise of the Action of Assumpsit. II The Writ of Debt: Clarendon Press. pp. 53–. ISBN 978-0-19-825573-4.

Alfred William Brian Simpson (1987). A History of the Common Law of Contract: The Rise of the Action of Assumpsit. Clarendon Press. pp. 144–. ISBN 978-0-19-825573-4.

Thomas A. Street (1999). The Theory and Development of Common-Law Actions. The Action of Detinue: Beard Books. pp. 144–. ISBN 978-1-893122-25-3.



Sir William Jones; John Balmanno; Robert Raymond Baron Raymond (1804). An Essay on the Law of Bailments. London, printed, Philadelphia, re-printed, for P. Byrne. pp. 9–.


Equity, also the forms of action at common law - Lecture IV The Modern Trust

Sir William Blackstone; St. George Tucker; Edward Christian (1803). Blackstone's Commentaries  William Young Birch, and Abraham Small, no. 17, South Second-street, Robert Carr, printer. pp. 52–.

John Winter JONES; John Frederick ARCHBOLD; Edward Christian; John WILLIAMS (1823). A translation of all the Greek, Latin, Italian, and French quotations ... in Blackstone's Commentaries .



Philip Augustus and the Norman Church
by John W. Baldwin
French Historical Studies,Vol. 6, No. 1 (Spring, 1969), pp. 1-30
Published by: Duke University Press
...
In twelfth century Normandy as throughout
Western Europe many contracts involving landed property and moveables
contained a pledge of faith (fides) in support of the obligations
of the contract. By this means contracting parties pledged their
Christianity to fulfill the terms of the agreement. Parallel to this pledge,
they might also swear an oath (sacramentum, juramentum) to guarantee
the contract. Since both the pledge of faith and the oath were
religious acts, contracts containing them were considered by the churchmen
to come under ecclesiastical jurisdiction.
...
In the Constitutions of Clarendon King Henry II decreed that pleas of debts,
whether involving the pledge of faith or not, belonged to the king.
His meaning is not entirely clear, but Archbishop Thomas Becket's
party understood him to deprive the ecclesiastical courts of all competence
over breach of faith and perjury. Pope Alexander III condemned
this proposition, and after Becket's murder Henry retracted his innovation.

4 comments:

  1. If King Stephen divided royal courts from ecclesiastical ones, why then did he forbid Vacarius to teach roman law? Could you help me with this question and give me some references? Thank you!

    ReplyDelete
    Replies
    1. The reign of King Stephen is not my speciality. But I will try to help you to find some answers. The question "why?" is always a much more difficult question to answer in history than "what?". There may well be more than one answer.

      First of all it was not King Stephen who separated the royal courts from ecclesiastical ones. That was a decision of King William, many years earlier, maybe at the instigation of Archbishop Lanfranc

      See posting in this blog
      Ordinance Establishing Spiritual Courts in England in 1072

      Here is a list of references to Vacarius which may, in turn, lead you to further references.

      Vacarius (Roman law scholar) -- Encyclopedia Britannica
      http://www.britannica.com/EBchecked/topic/621261/Vacarius

      Vacarius - Wikipedia
      http://en.wikipedia.org/wiki/Vacarius

      Magister Vacarius
      F. Liebermann
      The English Historical Review
      Vol. 11, No. 42 (Apr., 1896), pp. 305-314
      http://www.jstor.org/stable/547748
      https://archive.org/stream/englishhistorica11londuoft#page/305/mode/1up

      This paper would seem to suggest an answer your to question [see pages 310-312]. It was not from personal hatred but rather Stephen's act seems to be due more to the political instinct of the English government of the time; the lay baronage seemed to prefer the Teutonic laws of the Anglo-Saxons and Normans rather than the decrees of the pope and Roman emperors: patriotism if you want one word to describe it. Perhaps Vacarius was introducing strange and dangerous new and foreign ideas, new ways of thinking, disloyal teaching. Certainly the Civil Law in England was a matter for the King's prerogative.

      Ralph Turner (1994). JUDGES, ADMINISTRATORS & COMMON LAW. Continuum. pp. 50–. ISBN 978-1-85285-104-0.
      This book suggests that Vacarius' teachings were strengthening Archbishop Theobald's hand at a time of conflict between Church and State and refers to : Henry Alfred Cronne (1970). The reign of Stephen, 1135-54: anarchy in England. Weidenfeld & Nicholson, which I do not have a copy of.


      Paper by G.W. Hastings
      A MS of Vacarius
      The Law Magazine and Law Review 1870.
      pp 125-
      https://archive.org/stream/lawmagazineandl08compgoog#page/n146/mode/2up

      George Lord Lyttelton (1769). The History of the life of King Henry The Second and of the age in which he lived. pp. 472–.
      http://books.google.com/books?id=ZTsIAAAAQAAJ&pg=PA472
      This work suggests that 1151 was the year when Gratian's Decretum was sent over to England, forming part of Vacarius' teachings. This work may well have alarmed the English government.

      Others:

      Theobald of Bec - Wikipedia,

      Peerage - Exhibit on King Stephen
      http://books.google.com/books?id=ZTsIAAAAQAAJ&pg=PA472

      Avrom Saltman (1956). Theobald, Archbishop of Canterbury. Greenwood Press.
      This book may have detailed information on Vacarius.

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    2. More

      The Ecclesiastical Jurisdiction in England
      Edwin Maxey
      Michigan Law Review
      Vol. 3, No. 5, Mar., 1905
      Pp.360-364
      http://www.jstor.org/stable/1273037?seq=3

      The Romanization of English Law
      Charles P. Sherman
      The Yale Law Journal , Vol. 23, No. 4 (Feb., 1914) , pp. 318-329
      http://www.jstor.org/stable/785012?seq=5

      The Origin of the University of Oxford
      T. E. Holland
      The English Historical Review
      Vol. 6, No. 22 (Apr., 1891), pp. 238-249
      https://archive.org/stream/englishhistorica06londuoft#page/244/mode/2up

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  2. You've have been so exhaustive...thank you!

    ReplyDelete