Bracton: Thorne Edition: English. Volume 4, Page 250

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Volume 4, Page 250

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The judge ought to decide whether he has jurisdiction.

[002] Since there are different jurisdictions and different judges and different actions, every
[003] judge ought first to decide whether the jurisdiction is his,¹ lest he seem to put his
[004] sickle into another's harvest.² For a clerk is not to be brought before a secular judge
[005] in any matter which belongs to the ecclesiastical forum, as in spiritual causes or those
[006] annexed to a spirituality,³ as where penance is to be enjoined for a sin or trespass. As
[007] to such the ecclesiastical judge has cognisance, because it is not for the king or the
[008] secular judge to enjoin penances; nor do they have cognisance of things annexed to
[009] spiritualities, as tithes and other profits of the church, nor of chattels testamentary or
[010] matrimonial, nor of money promised because of marriage, which is, so to speak, an
[011] accessory to the marriage, as was said above, and the like, because in all these the
[012] ecclesiastical judge has the jus revocandi domum,⁴ though in all other actions or pleas
[013] belonging to the secular forum it is evident that a clerk ought to follow the secular
[014] forum, and there sue and answer by reason of the thing or the contract, [whether]⁵ he
[015] is sued in a real action or a personal, as in an actio injuriarum or a criminal action,
[016] provided it is sued civilly,⁶ as may be seen every day, because⁷ if a clerk to be sued,
[017] who⁸ has no lay fee, refuses to accept the summons or find pledges, the bishop or
[018] ordinary of the place will be ordered to cause him to appear before the king or his
[019] justices to answer⁹ to the intentio of the demandant or plaintiff,¹⁰ no matter what the
[020] plea, though there are some who say that he is not bound to answer to any plea before
[021] a secular judge, neither by reason of a thing, a contract, or a delict. [But] with all due
[022] respect to them, it seems that he is in all actions and pleas, civil and criminal, except
[023] with respect to the execution of judgment in a criminal case, where a layman would
[024] be condemned to the loss of life or members.¹¹ In that case, though the secular judge
[025] has cognisance, so that he may deal with the crime, he does not have the power to
[026] execute his judgment, as in civil cases, for he can no more degrade a clerk than he can
[027] promote him to orders.¹² Therefore, because of this inability, the ordinary has execution
[028] of the judgment, though the rule is otherwise observed, so that in a criminal case,
[029] where capital punishment is to be inflicted, the ordinary has both, namely cognisance
[030] and execution of judgment.¹³

Notes

1. D. 5.1.5; infra 281

2. Decretum: C. 6, qu. 3, ca. 1

3. Tancred, 128

4. ‘domum’: D. 5.1.2.3.-5

5. ‘vel’

6. Infra 265, 278, 373; cf. 283

7. ‘quia’

8. ‘qui’

9. Om: ‘et satisfaciendum’

10. Infra 373

11. Infra 265-6

12. Supra ii, 349, infra 278

13. Infra 278, 283, 373