Causa Fidei Laesionis in the English Ecclesiastical Courts and Its Influence on the Court of Chancery
Remus Valsan
Abstract
The presentation will analyze the relation between the ecclesiastical action of fidei laesio and the early jurisdiction of the Court of Chancery. In 1908 Vinogradoff argued that breach of confidence, one of the original heads of jurisdiction of the Court of Chancery, “clearly goes back to the Fidei laesio which ecclesiastical tribunals had claimed as their province.” More recent studies have uncovered possible paths of influence of the ecclesiastical action over the common law and Chancery courts.
The Roman Catholic Church claimed jurisdiction over violations of fides since ancient times. Possibly under the influence of the Roman cult of Fides, the canonists regarded the breach of a promise accompanied by an oath or by the pledge of faith as a mortal sin that needed to be punished with penance or even excommunication. The promissor who offered his fides as pledge effectively pawned his Christianity, put his hopes for salvation in the hands of the promissee. Hence, a broken promise legitimated the Church courts to intervene and correct the sinner for his soul’s health. The courts of the Roman Catholic Church redressed breach of faith under the action of causa fidei laesionis seu perjurii (in short fidei laesio).
The main focus of fidei laesio was the enforcement a broken promise and not of the underlying transaction, which, in most instances, remained the prerogative of the temporal forum. The ecclesiastical cause had a strong disciplinary side. The defendant was commonly said to have acted “to the grave dangers of his soul and the pernicious example of many others.” Emphasis was placed on the removal of the spiritual dangers that plagued the defendant’s soul rather than on redressing the wrong suffered by the plaintiff.
The nature of the promise enforceable under breach of faith was controversial. Although the canonists agreed that even the breach of a simple promise was a sin (inter simplicem loquelam et iuramentum non facit Deus differentiam – God does not distinguish between an oath and a promise without an oath), not all broken promises were equally enforceable in the spiritual forum. In the English ecclesiastical courts, the great majority of fidei laesio cases concerned promises clothed by an oath. Nevertheless, asserting that the English church courts never enforced simple promises would go beyond the available evidence.
Glanvill provided one of the earliest references to fidei laesio actions in England. We learn that, while the royal courts of the twelfth century offered no enforcement of promises backed solely by fides, fidei laesio vel transgressio was a proper subject of cognizance in the English courts Christian. The spiritual courts freely claimed and exercised jurisdiction in a variety of cases where fidei laesio was involved. The surviving records show that a great majority of cases brought under this action concerned sworn promises to pay small amounts of money in return for goods and services. Other actions included promises to convey land, to do construction works, to give marriage portions, etc. The vast outreach of Church courts brought them into conflict with royal courts. Notwithstanding the jurisdictional limits imposed by the Constitutions of Clarendon of 1164 and by subsequent writs of prohibition, the English ecclesiastical courts routinely intervened in cases where breach of faith was alleged, regardless of whether or not a remedy was available in the secular courts. The Church’s jurisdiction over fidei laesio cases was in decline by the second decade of the 16th century and disappeared altogether from records by the 1560s.
Building on ideas put forth by Pollock, Maitland and Milsom, DeVine and Helmholz linked the decrease and disappearance of fidei laesio cases in ecclesiastical courts with the rise of the enforcement of uses in the Court of Chancery in the mid-14th century and, respectively, of the action of assumpsit in the common law courts in the mid 15th century. According to DeVine, the widespread desire to make devises of freehold land and the impossibility to enforce simple promises in ecclesiastical courts determined the inception of petitions to the Chancellor requesting enforcement of feoffees’ promises and constituted the reason why the bulk of the Chancellor’s equitable caseload by the end of the 15th century concerned the protection of cestuis under nudum pactum uses.
The dual identity of early Chancellors bridged the sacred-secular jurisdictional divide. Until the Reformation of the English church in the middle of the 16th century, almost all chancellors were high ecclesiastical figures (in most cases archbishops of Canterbury), who had previously been involved in the ecclesiastical jurisdiction. The ecclesiastical Chancellors would have been well aware of the jurisdictional shortcomings of the ecclesiastical courts in enforcing simple promises made by feoffees. Consequently, they might have deemed opportune to intervene and end the canon law dispute over the enforceability of promises not supported by oath. This transfer of jurisdiction was accelerated by the fact that litigants increasingly preferred the Chancery in disputes regarding uses arising from simple promises. One of the reasons for this was the fact that in the action of fidei laesio the plaintiff had to prove an express promise. In contrast, the chancellor required no such proof and was willing to imply an agreement or a promise from the conduct of the feoffor and the feoffee.
Given the scarcity of early ecclesiastical court records, the actual influence of fidei laesio on the Chancellor’s jurisdiction over uses cannot be determined with precision. It remains one possible argument for the thesis that the rise of the Chancellor’s jurisdiction over feoffees to uses is a story of a continuing enforcement in a new setting, rather than the story of the creation of an entirely novel legal remedy.