The Oxford history of the laws of England, Vol. 1 9780198258971

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The Oxford History of the Laws of England

THE OXFORD HISTORY OF THE LAWS OF ENGLAND General Editor: Sir John Baker, Q.C., LL.D., EB.A., Downing Professor of the Laws of England, and Fellow of St Catharine’s College, Cambridge The Oxford History of the Laws of England will provide a detailed survey of the development of English law and its institutions from the earliest times until the twentieth century, drawing heavily upon recent research using unpublished materials.

Volume I: The Canon Law and Ecclesiastical

Jurisdiction from 597 to the 1640s Helmholz ISBN O—19—825897—6

Volume II: c. 900-1216 Hudson ISBN O—19—826030—X

Volume III: 1216-1307. Brand ISBN O—19—826866—6

Volume IV: 1307-1377. Donahue ISBN 0—19—926951-3

Volume V: 1399-1483 Biancalana ISBN 0—19—926599—2

Volume VI: 1483-1558 Baker ISBN O—19—825817—8

Volume VII: 1558-1625 Ibbetson ISBN O—19—825802—X

Volume VIII: 1625-1689 Brooks ISBN O—19—826031—8

Volume IX: 1689-1760 Horwitz ISBN O—19—826100—4

Volume X: 1760-1820 Oldham ISBN O—19—826494-1

Volume XI: 1820-1914 Institutions Cornish, Anderson, Cocks, Lobban, Polden, and Smith ISBN 0—19—925881—3

Volume XII: 1820-1914 Substantive Law and Procedure Cornish, Anderson, Cocks, Lobban, Polden, and Smith ISBN O—19—925882-1

(Two-volume set of Volumes XI and XII: isBN 0—19—925883-x)

The Oxford History of the Laws of England VOLUME I The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s R. H. Helmholz

OXFORD

UNIVERSITY PRESS

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PREFACE first undertook to explore the records of the English ecclesiastical courts durI ing the summer of 1967. Initial steps took me into the archives of Canterbury

Cathedral, then under the genial administration of William Urry, whose early death we still have cause to lament. I last undertook to check a reference or two in that same repository during the winter of 2002-3. In the thirty-five years or so that have intervened, the Canterbury archives have become busier and better organized. Much the same process has occurred elsewhere. Genuine improvement has taken place. At Taunton in Somerset, for example, the consistory court records were

then kept in the offices of the firm of solicitors employed by the bishops and diocese of Bath and Wells. The solicitors produced the boxes in which the court books were stored, and I rummaged through them. Today, the records are well preserved and well catalogued in the Somerset Record Office. More researchers may, and do, examine them. Over the same course of years, I have returned countless times to the archives at Canterbury and Taunton, and to many other record offices and libraries where the records of the English ecclesiastical courts are kept. I have both enjoyed the

experience and learned more about the subject. Four convictions about how I wished to approach the history of English ecclesiastical jurisdiction have been the result. Admittedly, they show the interests and prejudices of a lawyer. First, the

study of the implementation of the law of the church, as shown in the court records, is a worthwhile endeavour for any historian interested in the ius commune. Not that scholarship devoted to the academic canon law itself is to be disparaged— it is not. However, seeing the ‘law in action; in so far as one can in the court records,

adds something meaningful to the traditional approach. Second, the jurisdiction of the English ecclesiastical courts will be best understood by taking account of the Roman and canons laws, as explained and developed by the medieval jurists. Not that excellent work on the history of the courts becomes impossible without it—there are too many examples to the contrary for anyone to think study of the academic law is a requirement. However, the texts and commentaries can sometimes illuminate what one finds on the folios of the court books. Third, the history of the ecclesiastical law in England should be treated as a part of the history of the canon law in the Latin church as a whole. Not that the law of the English church cannot be treated in isolation from what happened across the Channel—I have sometimes done so myself. However, historians will understand the subject better if they look at what was occurring on the Continent,

vl PREFACE and this is true even after the Reformation cut the formal links between England and the papacy. Fourth, historians of ecclesiastical jurisdiction in England will profit from being conscious of possible links with the English common law. Not that the two systems must be treated as one—to suppose so would be as foolish as it would be presumptuous on my part. However, there was cooperation, competition, and imitation between them, and we will understand both systems better by recognizing the possible connections. I cannot pretend that I have adequately put these four convictions into practice in the pages that follow, but they have been my aspiration. This book is divided into two parts of roughly equal size. The first part (Chapters 1 to 4) deals with the history of the canon law, paying special attention to England’s place in that history. It covers the general fortunes of ecclesiastical jurisdiction in

England. The second part (Chapters 5 to 12) deals individually with the kinds of litigation that came before the spiritual tribunals once the consistory courts had been established in the thirteenth century. There is some inevitable overlap between the two halves, although I have tried to minimize it. The order of chapters in the second part follows that in which the subjects were placed in the basic source of the medieval canon law, the Gregorian Decretals. No order is perfect. This one is open to objection, but it seemed to me that it would be better to adopt the scheme of the canon law itself than to strike out on my own. Historians of the 1us commune writing in English face a minor dilemma of what terminology to use in describing the courts and the law. Many phrases used by the jurists have no good English equivalents. In this situation, I myself have compro-

mised. Sometimes the words have been left in Latin (e.g. litis contestatio). Sometimes, an equivalent from the common law has been adopted (e.g. plaintiff for actor; defendant for reus). Sometimes, a literal translation has been used (e.g. cause instead of case to follow the Latin causa). The hope is to make things as easy as possible for readers, without misleading them. The same reason underlies most excerpts from the records; the spelling has, for example, been modernized. Citation to causes taken from the records is given by the names of the parties, with the diocese or archdeaconry from which they came and the date in parentheses. This is followed by the modern record repository and the class mark of the document from which the cause was taken. It should probably be added that this practice is anachronistic; the causes themselves were without particular value as precedent, and they were rarely if ever cited by proctors and advocates. No one used the form of citation adopted in these pages. The records of litigation are, however, the basic source used in the preparation of this volume, and finding some convenient way of citing them is a matter of necessity. Over these thirty-five years, many people have helped me in publishing the results of my work in the archives. Here, I can thank only two of them who have

PREFACE Vil made a special contribution to this volume. The first is John Baker. He is editor of the series, guide to the common law, source of improvement, supplier of correction, and provider of support. The second is Gerald Bray. He kindly allowed me to draw upon his knowledge of the history of Convocation, helping me to provide a fairer and fuller account of the role it played in the evolution of ecclesiastical jurisdiction in England. R.H.H.

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SUMMARY CONTENTS

Courts 67

1. The Anglo-Saxon Church 1 2. From the Norman Conquest to the Establishment of Consistory

3. From the Thirteenth Century to the Accession of Elizabeth 147 4. From the Elizabethan Settlement to the Abolition of Episcopacy 237

5. Civil Procedure and the Law of Proof 311 6. Monetary Obligations and Economic Regulation 355

7. Testamentary Law and Probate Jurisdiction 387

8. Tithes and Spiritual Dues 433 9. Churches and the Clergy A75

10. Marriage and Divorce 521

u. Defamation 565 12. Crimes and Criminal Procedure 599

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CONTENTS

Abbreviations XV Table of Parliamentary Statutes XXill Table of Citations to lus Commune XXxVil

1. The Anglo-Saxon Church 1 The Mission of St Augustine 2 The Establishment of Christian Law u Canonical Sources and Learning 25

Substantive Law 40 Conclusion 62

Consistory Courts 67 Formation of the Classical Canon Law 68

2. From the Norman Conquest to the Establishment of

The English Church 106 Conclusion 143

3. From the Thirteenth Century to the Accession of Elizabeth 147

The Canon Law and Legislation 148

Legal Education and Canonical Scholarship 186

Conclusion 234

Ecclesiastical Jurisdiction 206

of Episcopacy 237 Fundamental Assumptions 239

4. From the Elizabethan Settlement to the Abolition

Legislation 263

Education and Scholarship 2.43

The Ecclesiastical Courts 282

The Final Days 307

Xu CONTENTS 5. Civil Procedure and the Law of Proof 311

Basic Characteristics 312 The Opening Stages 317 The Stage for Proof 327 The Final Stages 341 Definitive Sentences 343

6. Monetary Obligations and Economic Regulation 355

Breach of Faith (Laesio fidet) 358 Other Monetary Obligations 368

Economic Regulation 377 7. Testamentary Law and Probate Jurisdiction 387 The Canon Law of Last Wills and Testaments 389 Ecclesiastical Probate and Testamentary Litigation 396

English Practice and Formal Laws 426

8. Tithes and Spiritual Dues 433 The Canon Law of Tithes 435

Litigation over Tithes 440 Other Spiritual Dues 465

9. Churches and the Clergy 475

Benefices and the ius patronatus A77

Ecclesiastical Elections 491 Church Property AQA

The Clergy 505

10. Marriage and Divorce 521

Divorce 540 Changes and Continuities 563

Matrimonial Contracts 523

Ancillary Causes touching Marriage 556

11. Defamation 565 The ius commune and Defamation 566

The Scope of Actionable Defamation 574

Jactitation 596

Changes and Continuities in Law and Practice 590

CONTENTS X11 12. Crimes and Criminal Procedure 599 The Canon Law and Crime 600 Criminal Law Procedure Substantive of Crimes604 626

Select Bibliography 643 Index of Names and Places 669

Index of Subjects 675

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ABBREVIATIONS THE IUS COMMUNE Dist. 1c. 1 Decretum Gratiant, Distinctio 1, can. 1

C.1q.1¢.1 — Causa 1, quaestio 1, can. 1

De pen. — De penitencia De cons. — De consecratione 1(2) Comp. Compilatio prima (secunda etc.) X 1.1.1 Decretales Gregori IX, lib. 1, tit. 1, cap. 1 Sext 1.1.1 Liber Sextus, lib. 1, tit. 1, cap. 1 Clem. 1.1.1 Constitutiones Clementinae, book 1, tit. 1, cap. 1 Extrav. 1.1.1 Extravagantes (of Pope John XXII and Communes), lib. 1, tit. 1. cap. 1

gl. ord. glossa ordinaria (standard commentary on texts of the Corpus turis canonici and the Corpus turis civilis)

S.V. sub verbo (reference to glossa ordinaria or other commentary on a legal text)

Dig. 1.1.1 Digestum Justiniant, lib. 1, tit. 1, lex 1 Cod. 1.1.1 Codex. Justiniani, lib. 1, tit. 1, lex 1 Inst. 1.1.1 Institutiones Justiniant, lib. 1, tit. 1, lex 1 Nov. 1.1.1 Novellae Justiniant, lib. 1, tit. 1, lex 1 Cod. Th. 1.1.1 Codex Theodosianus, lib. 1, tit. 1, lex 1 For works written by commentators on the texts of the ius commune and other legal compilations, see the Bibliography at the end of the volume.

GENERAL ABBREVIATIONS

A. & C. Abbot and Convent

Abt Laws of Athelbert

Af Laws of Alfred

AJLH American Journal of Legal History Anglican Canons The Anglican Canons 1529-1947, ed. Gerald Bray (= 6 CERS; 1998)

APC Acts of the Privy Council of England, ed. J. R. Dasent (1890-1907)

Archdnry Archdeaconry of Archidiaconal Twelfth Century English Archidiaconal and Vice-Archidiaconal Acta,

Acta ed. B. R. Kemp (= 92 C. & Y. Soc.; 2001)

XV1 ABBREVIATIONS As Laws of Athelstan ASC Anglo-Saxon Chronicle ASE Anglo-Saxon England

Atr Laws of Athelred

Baker, J. H. Baker, An Introduction to English Legal History (4th edn, 2002) Introduction

Baker, Spelman J. H. Baker, Introduction, The Reports of Sir John Spelman, Introduction 11 (= 94 Selden Soc.; 1977) Becket Materials Materials for the History of Thomas Becket, Archbishop of Canterbury, ed. J. C. Robertson (= 67 RS; 1875-85)

Bede, HE Bede’s Ecclesiastical History of the English People, ed. Bertram Colgrave and R. A. B. Mynors (1969)

BERO Berkshire RO, Reading BI Borthwick Institute of Historical Research, York BIHR Bulletin of the Institute of Historical Research, London

BKRO Buckinghamshire RO, Aylesbury

BL British Library, London Bl. Comm. William Blackstone, Commentaries on the Laws of England, (1st edn, 1765-9)

BMCL Bulletin of Medieval Canon Law, n.s.

Bodl. Bodleian Library, Oxford Bracton Bracton de legibus et consuetudinibus Angliae (Bracton on the Laws and Customs of England), ed. George Woodbine and trans. S. E. Thorne (1968-77)

Britton Britton, ed. F. M. Nichols (1865, repr. 1983)

BRO Bristol RO, Bristol BRUC A. B. Emden, Biographical Register of the University of Cambridge to 1500 (1963)

BRUO A. B. Emden, Biographical Register of the University of Oxford to AD 1500 (1957-9)

Bull. JRUL Bulletin of the John Rylands (University) Library Canon Lawand — R.H. Helmholz, Canon Law and the Law of England (1987) the Law of England

Cardwell, Edward Cardwell, Synodalia: A Collection of Articles of Religion, Synodalia Canons, and Proceedings of Convocations (1842)

CBRO Cumbria RO, Carlisle CCAL Canterbury Cathedral Archives and Library

CERS Church of England Record Society

ABBREVIATIONS XV1 Church and Church and Government in the Middle Ages: Essays Presented to Government C. R. Cheney on his 70th Birthday, ed. C. N. L. Brooke et al. (1976)

Churchill, Irene Churchill, Canterbury Administration: The Administrative Canterbury Machinery of the Archbishopric of Canterbury Illustrated from Original Administration Records (1933) Clerke, Praxis Francis Clerke, Praxis in curtis ecclesiasticis (London, 1684)

CL] Cambridge Law Journal

Cn Laws of Cnut

Coing, Handbuch Handbuch der Quellen und Literatur der neueren europaischen Privatrechtsgeschichte, ed. Helmut Coing (1973-6)

Co. Inst. Edward Coke, First (Second etc.) Part of the Institutes of the Lawes of England (1628-)

Conset, Practice Henry Conset, The Practice of the Spiritual or Ecclesiastical Courts (London, 1685)

C. & SI Councils & Synods with other Documents relating to the English Church I, AD 871-1204, ed. D. Whitelock, M. Brett, and C. N. L. Brooke (1981)

C. & S. IT Councils & Synods with other Documents relating to the English Church II, AD 1205-1313, ed. FE. M. Powicke and C. R. Cheney (1964)

C. & Y. Soc. Canterbury and York Society Cosin, Apologie Richard Cosin, Apologie for Sundrie Proceedings by Jurisdiction eccles1astical (1st edn, 1591)

Cowell’s John Cowell, The Interpreter or Booke containing the Signification of Interpreter Words (1607, repr. 2002)

CP Court of Common Pleas CPL Calendar of Entries in the Papal Registers relating to Great Britain and Ireland, ed. W. H. Bliss et al. (1893-)

CQR Church Quarterly Review

CRO Cheshire RO, Chester CUL Cambridge University Library CWRO Cornwall RO, Truro

d. a. dictum ante d. p. dictum post

D.&C. Dean and Chapter DD Doctores (used to refer to common treatment by the jurists) DDC Dictionnaire de droit canonique, ed. R. Naz (1935-) Decrees, Tanner — Decrees of the Ecumenical Councils, 2 vols, ed. Norman P. Tanner et al. (1990)

DNB Dictionary of National Biography Doctor and Christopher St German, Doctor and Student, ed. T. F. T. Plucknett and

Student J. L. Barton (= 91 Selden Soc.; 1974)

XV111 ABBREVIATIONS DRO Devon RO, Exeter DUL University of Durham Library Ecclesiastical Report of the Commissioners...into the Constitutions and Working of Courts Comm. the Ecclesiastical Courts (1883)

Ecc. LJ Ecclesiastical Law Journal

EEA English Episcopal Acta

Eg Laws of Edgar

EGu Peace of Edward and Guthrum EHD English Historical Documents EHR English Historical Review Elvey, The Courts of the Archdeaconry of Buckingham 1483-1523, ed. E. M. Elvey Buckingham (=19 Buckinghamshire Record Society; 1975) Courts

Em Laws of Edmund English Lawsuits English Lawsuits from William I to Richard I, ed. R. C. Van Caenegem (= 106-7 Selden Soc.; 1990-1)

ERO Essex RO, Chelmsford Ew Laws of Edward the Elder Execs. Executors (of last wills and testaments) FNB Anthony Fitzherbert, New Natura Brevium (London, 1704) Flahiff, G. B. Flahiff, “The Writ of Prohibition to Court Christian in the ‘Prohibitions’ Thirteenth Century, pt. 1, (1944) 6 Mediaeval Studies 261-313; pt. 2, (1945) 7 Mediaeval Studies 229-90

Four Studies R. H. Helmholz, The tus commune in England: Four Studies (2001)

GCC Gonville and Caius College, Cambridge

GL Guildhall Library, London Glanvill The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, ed. G. D. G. Hall (1965)

GLRO Greater London RO, London GRO Gloucestershire RO, Gloucester Grundlagen Grundlagen des Rechts: Festschrift fiir Peter Landau zum 65. des Rechts Geburtstag, ed. Jorg Miiller et al. (2000) Haddon and Councils and Ecclesiastical Documents relating to Great Britain and Stubbs Ireland, ed. Arthur W. Haddan and William Stubbs (1869, repr. 1964) Hale, Proceedings William Hale, A Series of Precedents and Proceedings in Criminal Causes, 1475-1640 (1847, repr. 1973)

HEHL Huntington Library, San Marino, California Helmholz, R. H. Helmholz, Roman Canon Law in Reformation England (1990) Roman Canon Law

ABBREVIATIONS X1X HFCL Hereford Cathedral Library HFRO Herefordshire RO, Hereford Hinschius, Paul Hinschius, Das Kirchenrecht der Katholiken und Protestanten in Kirchenrecht Deutschland (1888, repr. 1959) Holdsworth, William Holdsworth, A History of English Law (1922-66) History

Houlbrooke, Ralph Houlbrooke, Church Courts and the People during the English Church Courts — Reformation 1520-1570 (1979)

HRO Hampshire RO, Winchester HTRO Hertfordshire RO, Hertford HUO The History of the University of Oxford, T. H. Aston (gen. ed.) (1984-)

Ingram, Martin Ingram, Church Courts, Sex and Marriage in England, Church Courts 1570-1640 (1987)

TJ The Irish Jurist (n.s.) IRMAE Ius Romanum Medii Aevi JEH Journal of Ecclesiastical History

JLH Journal of Legal History JMH Journal of Medieval History

Jnl Journal (or Journal of ) John Ayton, Constitutiones legatinae d. Othonis et d. Othoboni...cum... Constitutiones annotationibus Johannis de Athona (Oxford, 1679)

Jones, ‘Relations’ W. R. Jones, ‘Relations of the two Jurisdictions: Conflict and Cooperation in England during the Thirteenth and Fourteenth Centuries’ in Studies in Medieval and Renaissance History, ed. William Bowsky (1970), vii. 77-210.

JRL John Rylands (University) Library, Manchester KAO Centre for Kentish Studies (formerly Kent Archives Office), Maidstone

KB Court of King’s Bench LAO Lincolnshire Archives Office, Lincoln Laws, The Laws of the Earliest English Kings, ed. F. L. Attenborough (1922) Attenborough

Laws, Robertson The Laws of the Kings of England from Edmund to Henry I, ed. A. J. Robertson (1925)

Lefebvre-Teillard, Anne Lefebvre-Teillard, Les Officialités a la veille du Concile de Trente

Les Officialités (1973) Letters of The Letters of Lanfranc, Archbishop of Canterbury, ed. Helen Clover and

Lanfranc Margaret Gibson (1979)

LHR Law and History Review Liebermann, Felix Liebermann, Die Gesetze der Angelsachsen (1903-16) Gesetze

XX ABBREVIATIONS LJRO Lichfield Joint RO, Lichfield

LP Letters and Papers of Henry VII LPL Lambeth Palace Library, London

LOR Law Quarterly Review LRO Leicestershire RO, Leicester

LRS Lincoln Record Society Lyndwood, William Lyndwood, Provinciale (seu Constitutiones Angliae) (Oxford,

Provinciale 1679) Makower, Felix Makower, The Constitutional History and Constitution of the Constitutional Church of England (1895) History

Mansi, Concilia J. D. Mansi, Sacrorum conciliorum nova et amplissima collectio (1759-98, repr. 1960-1)

Marchant, Ronald Marchant, The Church under the Law: Justice, Administration Church under and Discipline in the Diocese of York 1560-1640 (1969) the Law

MGH Monumenta Germaniae historica Milsom, S. EC. Milsom, Historical Foundations of the Common Law (2nd edn,

Historical 1981) Foundations

MLD Marsh’s Library, Dublin NCCD Norwich Consistory Court Depositions, 1499-1512 and 1518-1530 (= 10 NRS; 1938)

NLW National Library of Wales, Aberystwyth NNRO Norwich and Norfolk RO, Norwich Northu. ‘Northumbrian Priests’ Law

NRO Northamptonshire RO, Northampton

NRS Norfolk Record Society NUL Nottingham University Library Odericus Vitalis | The Ecclesiastical History of Odericus Vitalis, ed. Marjorie Chibnall (1969-80)

ORO Oxfordshire RO, Oxford

P&C. Prior and Convent PCC Prerogative Court of Canterbury

PL Patrologia Latina Pollock and Frederick Pollock and FE. W. Maitland, The History of English Law before

Maitland the time of Edward I (2nd edn, 1898; reissued 1968) Poos, Lower Lower Ecclesiastical Jurisdiction in Late-Medieval England, ed. L. R. Poos

Courts (2001)

PRO Public RO, Kew, Surrey

ABBREVIATIONS XX] Proc. Proceedings of the RDC Revue de droit canonique Reg. The Register of (a bishop) Reg. Chichele The Register of Henry Chichele, Archbishop of Canterbury 1414-1443, ed. E. E Jacob (1938-47)

Reg. Hallum The Register of Robert Hallum, Bishop of Salisbury 1407-17, ed. Joyce Horn (= 72 C. & Y. Soc.; 1982) Reg. Hamo Hethe Registrum Hamonis Hethe, diocesis Roffensis, AD 1310-1352, ed. Charles Johnson (= 48-9 C. & Y. Soc.; 1948)

Reg. Trefnant Registrum Johannis Trefnant Episcopi Herefordensis 1389-1404, ed. William Capes (= 20 C. & Y. Soc.; 1916)

Reg. Waltham Register of John Waltham, Bishop of Salisbury 1388-1395, ed. T. C. B. Timmins (= 80 C. & Y. Soc.; 1994)

repr. reprinted (in) RHD Revue historique de droit francais et étranger RIDC Rivista internazionale di diritto comune Ridley’s View Thomas Ridley, A View of the Civile and Ecclesiastical Law (1st edn, 1607; 3rd edn, Oxford, 1662)

RO Record Office Roman Canon FW. Maitland, Roman Canon Law in the Church of England (1898) Law

RP Rotuli Parliamentorum (1767-83) RS Rolls Series (Chronicles and Memorials of Great Britain and Ireland during the Middle Ages)

SCH Studies in Church History Selden Soc. Selden Society Select Canterbury Select Cases from the Ecclesiastical Courts of the Province of Canterbury

Cases c.1200—1301, ed. Norma Adams and Charles Donahue, Jr. (= 95 Selden Soc.; 1981)

SG Studia Gratiana SKRO Suffolk Record Office, Bury St Edmunds Branch SR Statutes of the Realm (Record Commission) (1816-17)

SRO Somerset RO, Taunton Stubbs’ Select William Stubbs, Select Charters and other Illustrations of English Charters Constitutional History, ed. H. W. C. Davis (9th edn, 1913) Swanson, Church R.N. Swanson, Church and Society in Late Medieval England (1989) and Society

TCD Trinity College, Dublin (Long Library)

XX11 ABBREVIATIONS TRG Tijdschrift voor Rechtsgeschiedenis TRHS Transactions of the Royal Historical Society Tudor Church Tudor Church Reform: The Henrician Canons of 1535 and the Reform Reformatio legum ecclestasticarum, ed. Gerald Bray (= 8 CERS; 2000)

TUI Tractatus untvers1 1uris Van Hove, A. Van Hove, Prolegomena ad Codicem turis canonict (1945) Prolegomena

Visitation Visitation Articles and Injunctions of the Period of the Reformation, Articles, Frere ed. W. H. Frere (= 16 Alcuin Club Collections; 1910) Von Schulte, J. E von Schulte, Die Geschichte der Quellen und Literatur des canonischen

Geschichte Rechts (1875, repr. 1956) Wahrmund, Quellen zur Geschichte des roémisch-kanonischen Prozesses im

Quellen Mittelalter, ed. Ludwig Wahrmund (1905-28)

Wi Laws of Wihtrzed

Wilkins, Concilia David Wilkins, Concilia Magnae Britanniae et Hiberniae (1737)

Woodcock, Brian Woodcock, Medieval Ecclesiastical Courts in the Diocese of Medieval Courts Canterbury (1952)

WORO Worcestershire RO, Worcester WSRO West Sussex RO, Chichester

WTRO Wiltshire RO, Trowbridge Wunderli, Richard Wunderli, London Church Courts and Society on the Eve of the London Church Reformation (1981) Courts

YB Yearbook (Vulgate edn unless otherwise indicated)

YML York Minster Library, York ZRG, Kan. Zeitschrift der Savigny-Stiftung fiir Rechtsgeschichte, Kanonistische

(Germ. ) Abt. (Germanistische) Abteilung

TABLE OF PARLIAMENTARY STATUTES Magna Carta (1215) 2... eee eee eee eee eee eee ene + 553 144-5, 171, 179, 202, 392, 425

20 Hen. III (Stat. Merton), c. 5 (1236) (USUTY) «6... eee eee eee eee eee LZO 20 Hen. III (Stat. Merton), c. 9 (1236) (special bastardy) ........ 0... cee eee ee ee ee 558

3 Edw. I, c. 22 (1275) (Stat. West. I) (marriage of wards) ............. 000 eee eee ee 170

7 Edw. I (Stat. Mortmain) (1279) ... 0... ee ee ee cece eee ee eee eevee ee « 148 13 Edw. I (Stat. West. IT), c. 34 (1285) (forfeiture of dower) .............00000 0004+ 502

13 Edw. I (Stat. Winchester), c. 6 (1285) (churchyards) ...............20+424++170, 495 1 Edw. III, st. 2, c. 11 (1327) (defamation against indictors) ........... 02. - eee eee ee 594 15 Edw. III, st. 1c. 5 (4341) (jurisdiction Over USUTY) 2.6... . eee cece eee ee ee ee 379

25 Edw. III, st. 2 (1351) (Stat. of Labourers) ... 0.0... . ee ee ee ee 383 25 Edw. III, st. 4 (1351) (ProvisOrs) ... 1... eee eee eee ee eee e ence eee e 172; 178

27 Edw. III, st. 1 (1353) (PrOVISOLS) 2... eee eee teen ee en eeene ee IZ7Z 31 Edw. III, st. 1, c. 4 (1357) (probate fees) 2.0... .. cee cee ee eee ee ee eee es 168, 416 31 Edw. III, st. 1 c. 11 (1357) (administration of estates) ............ 0000 e eee ee eee IFO

37 Edw. III, c. 13 (1363) (apparel of clergy) .... 0... cece ccc eee teen eee 170 38 Edw. III, st. 2, c. 1 (1363-4) (PLOVISOLS) ... 1. cece cece eee eee eee AVY 45 Edw. III, c. 3 (1371) (tithe of great wood) ...............024-44+++ 170, 176, 281, 449 50 Edw. III, c. 5 (1376) (clerical privileges) 20... 0... cece cee ee eee eee ee AZS5 13 Ric. II, st. 2, c. 2 (1389-90) (PrOVISOLS) .. 0... eee ee cee eee teen eee e eee es 178 15 Ric. II, c. 6 (1391) (endowment of churches) ............. 0.00. eee eee eee eee ee 170 16 Ric. II, c. 5 (1392) (Praemunire) ............ 00.0.0 e eee eee ees 148, 156, 177, 232, 368

21 Ric. II, c. 15 (1397) (general pardon) ....... cece ce eee eee nee eens + 626 2 Hen. IV, c. 15 (1400) (de haeretico comburendo) .........0 0. cece eevee eee ee 175, 640

4 Hen. IV, c. 12 (1402) (appropriation of churches) ........... 0... c ee eee eee eee ee IFO

5 Hen. IV, c. 11 (1404) (payment of tithes)... 0... . eee ee eee eee eee 1 460 2 Hen. V, st. 1, c. 3 (1414) (procedure) 1.1... ... cece eee eee ee eee ees + 169-70, 232

2 Hen. V, st. 2, c. 2 (1414) (wages of clergy)... .. cece cece eee eee eee ee IVS 3 Edw. IV, cc. 1-5 (1463) (trade and sumptuary regulation) ....................2.4.. 382

3 Hen. VII, c. 5 (1487) (USULY) oo cece eee eee eee eee e enn 379 4 Hen. VIII, c. 2 (1512) (benefit of clergy) .. 0... cece cee eee eee eee eee LIZ 7 Hen. VIII, c. 11 (1515) (general pardon) ......... eee cee ee eee eee nee + 626 21 Hen. VIII, c. 5 (1529) (probate fees)... 0... ec cee eee eee eee es 281, 416

XXIV TABLE OF PARLIAMENTARY STATUTES 21 Hen. VIII, c. 6 (1529) (mortuary dues)... 0... . cece eee ee ee eee eee es 278, 468 21 Hen VIII, c. 13 (1529) (incompatible benefices) ........ 0.0... cee eee eee ee « 182, 483

23 Hen. VIII, c.1 (1532) (benefit of clergy) ... 0... . cee eee eee eee eee eee es LIZ, 496 23 Hen. VIII, c. 9 (1532) (citation within diocese) ......... 0.0.0 e eee ee ee « 182, 280, 353 24 Hen. VIII, c. 12 (1533) (restraint of appeals)... ..... 0... cee eee ee eee ee ee 182, 211

25 Hen. VIII, c. 6 (1534) (Sodomy) «1... ... cece eee eee eee erent eee e es O29 25 Hen. VIII, c. 14 (1534) (heresy)... .... cece eee cette eee teen ee ne ee + O40 25 Hen. VIII, c. 19 (1534) (submission of clergy) ................2.+.. 184, 211, 241, 350 25 Hen. VIII, c. 21 (1534) (abolition of papal jurisdiction) .................... 212, 466 26 Hen. VIII, c. 1 (1534) (royal supremacy) ........ cee cece ee eee eee « 181, 272 27 Hen. VII, c. 17 (1536) (benefit of clergy) .. 0... . cece eee eee eee eee eee LIZ 27 Hen. VIII, c. 20 (1536) (collection of tithes)... 0.0... 0... cece ee ee eee eee es 2775 460

27 Hen. VIII, c. 25 (1536) (poor relief) 2.0.0... ee eee eee eee es + 469-70 28 Hen. VIII, c. 10 (1536) (abolition of papal jurisdiction) .................... 148, 168 28 Hen. VIII, c. 15 (1536) (benefit of clergy) .. 0.0... cece cece ee eee eee eee LIZ 28 Hen. VIII, c. 16 (1536) (dispensations) ......... 0... c cece ee eee eee eee + 148, 181, 212

32 Hen. VIII, c.1 (1540) (Stat. of Wills) .. 0. ee ee ee eee eee eee ee « 400 32 Hen. VIII, c. 7 (1540) (payment of tithes) ....... 0.0... 0... eee eee eee es 2775 443, 462

32 Hen. VIII, c. 38 (1540) (prohibited degrees in marriage) ................... 212, 286

34 & 35 Hen. VIII, c. 4 (1543) (bankruptcy) ........ eee cece Al 34 & 35 Hen. VIII, c. 19 (1543) (pensions for monks) .......... 0... cee eee eee eee 372

37 Hen. VIII, c. 9 (1545) (USUTY) 2... eee eee eee eee eee en ne 3795 635

37 Hen. VIII, c. 12 (1545) (London tithes)... .. ee ee eee ee ee ee 452 37 Hen. VIII, c. 17 (1545) (laymen and ecclesiastical jurisdiction) .................. 182

1 Edw. VI, c. 12 (1547) (criminal law)... 0... ee eee eee eee eee es 181 2 & 3 Edw. VI, c. 13 (1549) (payment of tithes)............. 182, 184, 233, 277, 280, 442-3, 445, 451, 460, 472

2 & 3 Edw. VI, c. 21 (1549) (marriage of clergy) 20... .. cece eee eee eee ee ee 181 3 & 4 Edw. VI, c. 10 (1550) (destruction of images) ......... 0. cece eee eee ee ee ee es 181

5 & 6 Edw. VI, c. 4 (1552) (brawling in churchyards) ..................2..-.4.. 182, 280 5 & 6 Edw. VI, c. 11 (1552) (treason)... ee ee ec ee eee ee eee eee ee eee eee 311

2&3 Ph. & Mar., c. 8 (1555) (highways) 2... . 0. eee ee eee eee eee e eee 472 1 Eliz. I, c. 1 (1559) (Act of Supremacy) ....... 0... ce eee eee eee eee ee es 2H, 278, 286-7

1 Eliz. I, c. 2 (4559) (Act of Uniformity) ...... 0... 0c cece eee ee eee nes 2353 277

5 Eliz. I, c. 9 (1563) (perjury) 0... ec eee eee eee eee ence eee s 276, 297, 311

5 Eliz. I, c. 16 (1563) (witchcraft) 0... ee ce eee eee teen eee e es 276 5 Eliz. I, c.17 (1563) (Sodomy) «1.0... eee cece ee eee eee eee ence ences 276; 629

TABLE OF PARLIAMENTARY STATUTES XXV 5 Eliz. I, c. 23 (1563) (execution of writs of caption) ........ 0... 0c eee eee eee es 278, 639

8 Eliz. I, c. 1 (1566) (consecration of bishops)......... 0... cee cece eee eee eee ee 241

13 Eliz. I, c.1 (4571) (treason) 2.0... ee eee ee cee eee eee eee e een ee 6 276 13 Eliz. I, c. 5 (4571) (fraudulent conveyances) ....... ccc eee eee eee eee ee © 468 13 Eliz. I, c. 7 (1571) (bankrupts)... . 0... cece eee eee eee en nee 273, 276, 411-12 13 Eliz. I, c. 8 (1571) (USUTY) 21. eee ee ee ee tee eee eee s 276 379, 381, 635 13 Eliz. I, c. 10 (1571) (dilapidations) ....... 0.0... ccc cece ee eee eee teen es 241, 278, 498

13 Eliz. I, c. 12 (1571) (qualifications of clergy) ...... cece eee eee eee eens 274 13 Eliz. 1, c. 20 (1571) (lease of benefices) 20... cece eee ee eee ee eee eee es 309

14 Eliz. I, c. 5 (1572) (poor relief) 2.0... cc cece eee teen e eee n ns 276 14 Eliz. I, c. 11 (1572) (dilapidations) ... 0... 0... ce cc cee eee eee eee e nee 1 498 18 Eliz. I, c. 3 (1576) (relief of poor and illegitimates) .................... 276, 561, 635

18 Eliz. I, c. 7 (1576) (benefit of clergy)... cee eee eee ee ence eee s 273 23 Eliz. I, c. 1 (1581) (church attendance) ....... eee ee eee ee eee ee ee 273 29 Eliz. I, c.5 (1587) (mortuary dues) 1.0... . cece cece eee eee eee nee ne + 468 39 Eliz. I, c. 6 (1597-8) (lands given to charitable uses) .......... 0.2.0.0 eee eee ees 276

39 Eliz. I, c. 9 (1597-8) (benefit of clergy) 0... cee cee ee eee eee e eens 24] 39 Eliz. I, c. 28 (1597-8) (general pardon) ........... cee cece eee eee eee ees 281 43 Eliz. I, c. 4 (1601) (charitable uses)... 0... cee ee cc eee ce eee eee eee AI 43 Eliz. I, c. 8 (1601) (administration of estates) 2... 0 cee ee eee ee ee ee 278 1 Jac. I, c. 9 (1603) (alehouses) ..... 0... cee ee ce ee ee eee ce eee eee ee eee ee s 268

1 Jac. I, c. 11 (1603) (bigamy) 2... eee ee cee ee eee eee enn ees 2765 555 1 Jac. I, c. 25 (1603) (repeal and renewal of statutes) ...... 0... 0.0 cece eee ee eee es 273

3 Jac. I, c. 5 (1605) (recusancy) 2... cece cece cece ene cent eee e eee e es 281 3 Jac. I, c. 21 (1605) (blasphemy) ..... 0.0... cee eee eee eee tee teen nee es 276 4 Jac. I, c. 5 (1606) (drunkenness) ....... 0... ccc eee ec ee eee ee ee eee es 268, 276, 633 7 Jac. I, c.10 (1609) (alehouses) ... 2.0... eee ee ce ee ce eee eee ee eee ee ee « 268, 633 21 Jac. I, c. 7 (1624) (drunkenness) ..... 0... cee cc eee ce eee eee eee eee ee 6 268, 633

21 Jac. I, c. 20 (1624) (profane swearing) ........ cece eee eee eee eee ene es 276 21 Jac. I, c. 28 (1624) (abolition of sanctuary) ........, cece cee eee ee ee ee 273 1 Car. I, c. 1 (1625) (protection of Sundays) ........ cece cece eee eee tee eee s 273 7 & 8 Geo. IV, c. 28 (1827) (benefit of clergy abolished) ...................2002+--H7 20 & 21 Vict., c. 85 (1857) (ecclesiastical jurisdiction) ........... eee eee eee ee ee 6 560

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TABLE OF CITATIONS TO IUS COMMUNE ROMAN LAW

Dig.11.10.... 0.00. eee eee 85) DIS. 48.19.5 2. ee eee ee ee ee ss 600 Dig.1.3.32 ... ec eee eee eee ee eee eee ee ZI) = DIG. 48.19.18 2. eee eee eee ee + 603

Dig.1.4.1 .. ec eee eee eee eee eee ee ee 249 DIZ. 4911 2. eee eee eee ee e349 Dig. 2.1.10... . ee ee eee eee eee eee 86 = DIZ. 49.6.1 2... eee eee ee eee ee 350 Dig. 2.4.14 .... eee eee eee ee ee ee 591 DIZ. 50.16.30 2... ee eee ee ee ee 449 Dig. 2.14.7... 0... ee eee eee ee ee ee ee 361 = DI. 50.17.1211 2. eee eee es 252 Dig. 2.46.14 2... . eee eee eee eee ee / 591 = DIG. 50.17.300 «6. ee eee ee ee Fy 154

Dig.3.2.1 cece cece cece ee eee ee ee SJL COG ULL cece cece eee ee + 605

Dig. 4.2.6-7 2. cece eee eee 544-5 COG LULA coe ec eee eee ee B57 Dig. 4.4.27 . 2. cece cee eee ee 247 COG 125 coe eee ee eee ee eee eee ee SIG Dig.5.1.68 .. 0c. cece eee eee eee ee ee B18 COG 1214 Lecce eee eee ee ee BF Dig. 5.48.49 0... cece eee ee eee eee FOO CO 1319 ... cee eee eee ee eee eee « 606

Dig. 18.1.1-31 oe. eee eee eee 395 CO. 1.3.28 ... ee eee eee ee ee 390, 416 Dig. 22.3.1-29 .. cece eee ee ee 330 COG 13.45 0... cc eee cece eee eee ee Sly 417 Dig. 22.3.2 .. cece cece eee ee ee eee eee 328 COd. 212.10... eee eee ee eee eee ee es 247

Dig. 25.3.7 cece ccc cece eee eee eee 558 CO. 21315 cee eee e eee cece eee ene 374

Dig. 27.3.1... eee eee ee ee eee B77 COU 3113 Le eee eee eee eee ee ee ee 348 Dig. 28.1.4... cece eee eee eee ee 402 COd. 3114 reece ee eee eee ee ee 226 Dig. 28.11.19 2... cece e eee ee 394 COU 3115 oc cee ee eee ee eee eee ee 347 Dig. 30.1.57 2. cee eee eee eee eee 5ZO CO. 312.2 - eee eee ee eee eee ee 384 Dig. 321.79 . cece cece eee ee eee 452 COG 4LZ .o eee c eee ee ccc eee eee nee 335

Dig. 42.1.1 cece e cece ee ee ee 126 CO. 419.25 - occ cee eee eee + 605 DIG. 42.11.55 . ec cece eee ee eee eee ee 245 Cod. 4.21.20............226-44- 191, 401

Dig. 47.10.5 .. cece eee eee ee ee ee 586 CO. 5.4.26. eee cece eee en ee 553 Dig. 47.10.76. cece ee ee 576, 582 CO. 5.14.5 oo eee eee eee eee eee ee SOI Dig. 47.10.15... eee eee ee ee 584 CO. 5.35.5 - cece eee eee eee eee eee 570

Dig. 47.10.17 2. eee eee eee 58L CO. 5.35.8 . cee eee eee ee eee ee 570 Dig. 48.113 0... ccc cece eee eee ee LIZ COd 5.59.5 cee cece ec ee eee ene ee 4Q2 Dig. 48.2.8 00... eee eee eee eee 605 COd. 6.23.21... eee ee eee ee ee 399, 400 Dig. 48.211 .... eee eee eee eee 605 COd. 6.23.31... 0.00. e eee ee ee ee IDL, 399

Dig. 48.13.7 0... cece eee ee ee ee 637 COd. 6.37.10 Lecce cece eee ee 255

XXV1 TABLE OF CITATIONS TO IUS COMMUNE Cod. 6.42.32 ... cee cece eee eee eee 390) )©Dist. 626.3 .. ccc eee cee eee eee es 4Q2 Cod. 6.61.8 ........e ccc cee ee eee ee 560) )©Dist. 83.6.3 wo. ccc eee ee ee ee ee ee ee 196

Cod. 7.14.5... ee cc ee ee ee eee 537,591 Dist. 886.9 .o rc cee eee cee eee ee eo 355

Cod. 7.51.4... cece eee eee eee eee ee 347 DISE 90 C4 Lecce cee 59 Cod. 7.59.1 occ cece eee ee eee ee ee 329 CL1G.3 6.8 Lecce cece eee ee eee ee 221 Cod. 7.62.32 0. cee cece ccc eee ee ee GF CLG 66.3 cece cece cece ence ene « 196 Cod. 7.75.3 we ccc eee e cece ee eee eee 4I4 Co2Q.1CCL15,17 cee eee cee ee ee 125 Cod. 9.3.3 . cece cece cee cece eee eee BIB CL2 G3 CCL 2-5 Lecce eee eee eee ee 568 Cod. 9.35.5 . eee e cece cece ee ee eee ee 584 Ci2Q4CC1H-3 vee eee eee eee ee FB Cod. 9.36.1... 0c cece cece ee eee een 508 C25 CD cece eee eee eee eee es 608

Cod. 9.46.1-10 2... eee eee ee ee ee 69 = =C.2q.5¢.21(d.p.) ............140, 604 Inst. 1.2.9 ... ee cee eee eee ee ee eee ee IZL C2 G UC cee eee ee ee eee ee eee 2 196

Inst. 1.23.Pl oe eee eee ee ee eee ee 86 CL 3G. 4.12 cee eee ee ee ee es 128 Inst. 2.15 woe eee eee eee eee eee ee 42Q CZ GOL cece eee eee eee ee ee ee 182

Inst.2.18 22... eee eee ee eee ee ee 425 C13 G.66.16 ...........0 00 e ee s 128 Inst. 2.22 2... cece eee eee ee ee 425,430 Ci QQ. 7 C1 ccc eee eee cece cece eee e 221

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NOV. 89.15 2... ee eee eee ee eee eee 500 C5 G62 cece eee eee eee ee 5B C.6q.1CC. 2,16 ........-000- - 568, 571

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Dist.12 C.6 .... ccc eee ce ee ee eee eee ATI C10 G1 CU eee cece cece eee eee ee 337

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Dist.56C.10 .... cee ee ee eee eee ee ee 50 C13. 4.26.4 ceceeecececeeeseeeee + 392

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1

The Anglo-Saxon Church HE church has never been without laws, and in many respects the Anglo-Saxon

Tokorch was actually quite rich in them. Some laws the church either inherited

or imported. Others it produced for itself. Any student of this early era in the history of Christianity in England must be struck with how much of its written remains possess what looks to have been a legal character. Reading through the sources from the correspondence of St Augustine in the first years of the seventh century to the famous Sermo Lupi of Archbishop Wulfstan in the eleventh—and making a leisurely stop to peruse the Anglo-Saxon laws along the way—leaves an impression that is indelible.! The men who led the ecclesia Anglorum regarded laws as essential parts of the life of the church they governed. The existence of laws being recognized, it is no less apparent that the history of

the English church between the arrival of Augustine in 597 and the Norman Conquest in 1066 was not one in which law or legal learning played a leading part.

Laws with an ostensibly religious character abounded, but government of the church by law did not. No group of professional ecclesiastical lawyers served the church. No structure of spiritual courts existed. No regular education in the canon law was available. No tradition of notarial practice sank its roots in English soil. The institutional life of the church could not be securely tied to legal rule, no matter the aspirations of its bishops. As was largely true among their contemporaries in the lands that would become France and Spain and Germany, few men among the clergy of the Anglo-Saxon church devoted their careers to legal study. The short of it was that the laws so highly regarded by many of the church’s leaders did not add up to a regime of government by law. One reason for this discrepancy was that legal ways of thought did not lie at the centre of the era's intellectual life. Allegory and meditation, not a scholastic system of analysis, classification, and distinction, provided the key to opening up the meaning of difficult texts for the men who ventured into the world of the intellect. There is a measure of truth in the tenacious if oft criticized view, still associated 1 For the Sermo, see Dorothy Whitelock, Sermo Lupi ad Anglos (2nd edn. 1952) [EHD, i, no. 240]. The correspondence is discussed below, at nn. 10-23, and the Anglo-Saxon laws at various points in this chapter.

2 THE ANGLO-SAXON CHURCH with its presentation long ago by Rudolf Sohm, that prior to the twelfth century the church sought to govern itself less by a regime of law than by sacramental and theological norms.? For the clergy, this was a conscious choice. They did not put their primary trust in legal institutions. If many of the mandates that emanated

from their ranks look very like attempts at statutory regulation, the attempts may have been intended as much to show that the person who issued them was a lawgiver as they were to set rules he expected to be enforced in practice. The first millennium of the church’s existence differed in many ways from that which emerged from the Gregorian reformation of the church and the twelfth-century renaissance in European jurisprudence. The character and reach of the law of the church must be counted among them.

THE MISSION OF ST AUGUSTINE Pope Gregory the Great (d. 604) sent Augustine, then serving as prior of the monastery of St Andrew in Rome, together with a group of his monks, as missionaries to England. Their task was to convert the Anglo-Saxons. The mission was the fulfilment of a strongly held desire on Gregory's part, and it was also an event of importance for the history of the canon law in England.? To assert its legal significance is justified in more than the self-evident sense that there could have been no law of the church unless there were first a church. Christians were already present in England when Augustine reached that far ‘corner of the world; and they held to some settled practices. The mission also looked more successful in hindsight than it was at the time. The assertion is none the less justified in a meaningful sense, because the missionaries brought law with them in a stronger form than the Anglo-Saxons had recognized. It came as if in their baggage. It formed part of their Roman inheritance. For instance, English law would borrow the means of creating an unrestricted and perpetual donation of land from the Roman law that Augustine and his companions brought with them.* Likewise, the solemn charter employed by the Anglo-Saxons was first taken over from the private deeds used in late imperial Rome.> The very 2 See Rudolf Sohm (d. 1917), Das altkatholische Kirchenrecht und das Dekret Gratians, ed. Ulrich Stutz (1967), 3-36, and the mainly unsympathetic treatment of Sohm’s views: Stephan Kuttner, ‘Reflections on Gospel and Law in the History of the Church’ in Liber amicorum Monseigneur Onclin (1976), 199-209.

3 Various aspects of the mission are discussed and bibliographical scholarship provided in St Augustine and the Conversion of England, ed. Richard Gameson (1999) and R. A. Markus, Gregory the Great and his World (1997), 177-89. A balanced recent account is provided by F. Donald Logan, History of the Church in the Middle Ages (2002), 51-8. 4 Eric John, Land Tenure in Early England (2nd edn. 1964), 60-1. 5 W. H. Stevenson, “Trinoda Necessitas’ (1914) 29 EHR 689-703, at 702-3; Pierre Chaplais, “Who

Introduced Charters into England? The Case for Augustine’ in Prisca Munimenta: Studies in Archival e» Administrative History, ed. Felicity Ranger (1973), 88-107, at 99-107. See also the later examples involving leases discussed in Paul Vinogradoff, English Society in the Eleventh Century (1908), 229-32.

THE MISSION OF ST AUGUSTINE 3 desire to set down laws in written form, as King /thelbert of Kent did in 602 or 603, grew out of contact with Roman traditions.° In this process, there was no ‘reception’ of the Roman or canon law. That would have been beyond the realm of possibility in the seventh century. But the coming of Augustine and his followers made an immediate difference to the law of the English and to the church over which he and his successors presided. Drawing a connection between St Augustine’s arrival and the spread of Roman and canon law in Anglo-Saxon England is natural and correct, but it can also be slightly misleading if too much is read into it. The coming of Christianity did not result in the creation of a system of ecclesiastical justice, as was to come into being

in later centuries. Such court systems did not exist anywhere in the Western church at the time, and it was no part of Augustine’s mission to create one. The formulation of a relatively sophisticated body of canon law was also to begin much later. Giant steps forward had to await the twelfth and thirteenth centuries. None the less, both in aim and in result, Augustine’s mission unquestionably brought the Anglo-Saxons into closer touch with the wider world of Latin Christendom. It meant a closer relation with the church’s Roman and legal inheritance. That mattered. As Maitland wrote of the law in early Anglo-Saxon documents, “Whatever is Roman in them is ecclesiastical.” Among the consequences, the Roman inspiration that lay behind Augustine’s mission and the subsequent conversion of what had been a more largely pagan population created something like a ‘filial relationship’ between the English church and the

apostolic see. It was a relationship that led to frequent contacts. It encouraged the Anglo-Saxons to bring their spiritual laws and practices into greater conformity with those that prevailed at Rome. The Synod, or Council, of Whitby (664), which would be convoked to settle a difference of opinion about the proper way of calculating the date of Easter day, has long provided the most salient example of that move towards conformity. Bede’s account tells how the synod sought to bring English practice into line with that which was observed generally in the Western church and more particularly in Rome.’ Recourse to the papacy in important matters—to obtain a pallium for an archbishop, an exemption from episcopal jurisdiction for a monastic house, or settlement of a quarrel over diocesan boundaries—would also help keep this filial relationship intact. So did the pilgrimages to Rome that were undertaken by AngloSaxons of many ranks.° © Pollock and Maitland, i. 11. 7 Pollock and Maitland, i, p. cii. See also William Stubbs, Lectures on Early English History (1906), 250, making reference to: ‘Roman Christianity, speaking the Latin tongue and bringing in her hand the Roman law’; Margaret Deanesly, Sidelights on the Anglo-Saxon Church (1962), 137-44; Robert Rodes, Jr., Ecclesiastical Administration in Medieval England: The Anglo-Saxons to the Reformation (1977), 6-103

John L. Barton, Roman Law in England (= V 13a IRMAE; 1971), 4-6. 8 Bede, HE, bk. III, c. 25. 9 Veronica Ortenberg, The English Church and the Continent in the Tenth and Eleventh Centuries (1992), 148-54.

4 THE ANGLO-SAXON CHURCH St Augustine’s mission was also punctuated by a particular and famous testimonial to the place he and others desired for the law of the church in Anglo-Saxon society. The incident illustrates an importance the actors themselves ascribed to the canon law. In the course of his episcopate, Augustine put a number of questions touching the

law of the church to his papal sponsor, questions which he recounted as having arisen out of the unsettled conditions in a largely heathen land. Gregory answered them in what has come to be called the Libellus responsionum. Doubts have been raised about the authenticity and the form of the original answers, but as they have come down to us, in the main these Responsiones are today accepted as genuine.!° Moreover, as it turned out, the answers contain statements of problems, attitudes, and themes that would last, or at any rate recur, throughout the history of the canon law in England.}! Their primary significance may thus lie in stating the principles of canon law as

they were then understood by a great pope, or else in the example they furnish of a bishop’s turning to Rome for guidance with legal difficulties in a land that must have seemed very far removed from the centre of Christendom. However, the

answers given by this papal successor to Roman statesmen are also worthy of attention because of their contents. They dealt with significant and recurring problems. They embodied an attitude towards the law of the church that, in the best of times and circumstances, was to endure.!2

Offerings and Local Customs The first two queries posed by Augustine dealt with the place of local custom in the life of the church. He asked how the offerings of ordinary Christians were to be divided among the possible claimants within the church and, then, whether differ-

ent customs were permissible in establishing the rites and observances of the church. It appears he was uncertain whether the Roman source of his mission meant that his duty included seeking to recreate what he had known in the Roman church. Augustine had been met in England with some practices that diverged quite markedly from those with which he was familiar. On some things, the date of Easter being now the most obvious, it was clear that uniformity was required. 10 See Margaret Deanesly and Paul Grosjean, “The Canterbury Edition of the Answers of Pope Gregory I to St. Augustine’ (1959) 10 JEH, 1-49; Paul Meyvaert, “Bede’s Text of the Libellus Responsionum of Gregory the Great to Augustine of Canterbury’ in England before the Conquest. Studies in Primary Sources presented to Dorothy Whitelock, ed. Peter Clemoes and Kathleen Hughes (1971), 15-33; Henry Chadwick, “Gregory the Great and the Mission to the Anglo-Saxons’ in Gregorio Magno e il suo tempo (= 33 Studia Ephemeridis ‘Augustinianum’; 1991), 199-211, at 208-11. 11 They are found in Bede, HE, bk. I, c. 27. 12 See generally John McCulloh, “The Cult of Relics in Letters and Dialogues of Pope Gregory the Great’ (1976) 32 Traditio, 145-84.

THE MISSION OF ST AUGUSTINE 5 The same would be said about the definitions of the faith accepted by the great councils of the first centuries of the church's existence. But how far was the principle to be pushed? Augustine was aware that different customs than those he knew prevailed in other churches. He was in doubt about how far the principle of unity of the church extended. Or perhaps it would be better to say he was unsure exactly what the principle of unity within the church dictated in daily practice.

The papal response to this query left considerable leeway for the exercise of discretion on Augustine’s part. For example, Gregory’s answer stated that it would be quite permissible to deviate from the custom of the apostolic see in the division of ecclesiastical revenue. The Roman custom made a fourfold division—one for the bishop and his familia, one for the clergy, one for the poor, and one for the church fabric. Gregory replied that provision might lawfully be made for division into thirds instead, according to what was asserted to be existing monastic practice, and a special regime might even be established for married clergy in minor orders among the English. Need and local circumstance might dictate the manner of division of revenues that should be adopted, so long as the causes of piety and religion were respected. Similarly treated were the rites of the church. Gregory gave Augustine permission to select rites from among those of the churches of Rome or Gaul, or indeed any other church, in order that these usages might be ‘collected as in a bundle in the minds of the English [and] become a custom’ among them. That the Christian faith itself was a unity did not necessarily require a unity in rites and observances. The extent of permissible deviation in ecclesiastical usages appears to have been a contentious issue at the time.!3 For example, even while admitting that differences in usage had existed, Bede was quite doubtful about the wisdom of allowing variations in the clerical tonsure.!4 But at least according to Gregory, it was certain that some differences in local customs were entirely permissible within the church’s law. In answering Augustine’s query about whether Roman practice should be followed, he wrote that, “Things are not to be loved for the sake of places, but places for the sake of good things’15 That sentiment would ultimately find its way into Gratian’s Decretum (Dist. 12 c. 10), the first great textbook of the classical canon law.

In the course of time, this permissible diversity hardened into established local customs. Gregory envisioned this. But some of the openness to the acceptance of different and more desirable regimes also implicit in his response would be lost

in the hardening. The openness, however, would never disappear entirely. In England, there would be both variations from practice on the Continent and 13 Paul Meyvaert, Bede and Gregory the Great (1964), 17-18. 14 Bede, HE, bk. V, c. 21. 15 See generally Paul Meyvaert, “Diversity within Unity, A Gregorian Theme’ (1963) 4 Heythrop Jnl141-62.

6 THE ANGLO-SAXON CHURCH variations within the different regions of the kingdom itself. For example, some aspects of the law of tithes, including determination of the proper recipients and the manner of payment, came to be regulated chiefly by local custom. It would be the task of the canon law to bring a semblance of order to a regime in which custom dictated law. Limits would be set on how far individual customs could lawfully determine how much and to whom tithes should be paid. The system of

tithing that was later adopted in England and enforced in its spiritual courts would fit within—although it would also stretch—the bounds of the initial guidance Gregory had given to Augustine.

Theft from Churches and Penal Law In his third question, Augustine asked the pope: What should be done with a man who has stolen something belonging to a church? That there were churches in existence in England possessing enough property to be worth stealing may seem to be the most interesting conclusion to be drawn from this particular inquiry. Augustine

was entering a land where Christians, who built churches, already resided. It was not a place where only pagan, Celtic treasures would attract thieves. However, the assumption underlying this aspect of the correspondence is equally valuable. The implicit assertion was that the officers of the church might take a kind of jurisdiction over such offences. Augustine did not seek guidance from the king. He did not assume that the temporal law should dictate the outcome, or (apparently) even that it should punish the offender. For guidance about a practical question of the law of theft, he called upon the wisdom of the spiritual man who had sent him.

If the incidental information drawn from the part of the correspondence attracts our initial attention, it is the prudence and moderation of the pope’s reply that merits more prolonged admiration. The Anglo-Saxon laws would fix punishments, some of them of extreme severity, for offences like the theft of chattels

from churches.!© The laws of Athelbert, for example, required twelve-fold compensation to be made in such cases, and those of King Alfred called for the thief to lose his hand in addition to restoring the stolen goods and paying a fine.!7 Even these paled in comparison to the penal sanctions called for in Roman law. Pope Gregory himself took a milder approach. He first distinguished habitual thieves from those who had acted out of need. Different penalties were to be applied to each, according to the degree of their fault and the circumstances that 16 See Liebermann, Gesetze, li. 2, s.v. Kirchenraub. See also Hiroshi Hayashi, Essays in Anglo-Saxon Law (1990), 1. 76-80.

17 Abt 1; Af 6 in Liebermann, Gesetze, i. 3, 52-3 [ Laws, Attenborough, 4-5, 66-9]. The authenticity of the former is denied by H. G. Richardson and G. O. Sayles, Law and Legislation from A:thelberht to Magna Carta (1966), 3-4.

THE MISSION OF ST AUGUSTINE 7 had attended their acts. Intent also mattered. In all events, those who offended were to be corrected with charity; nothing was to be done ‘outside the rule of reason. Restitution must be made to the churches, but the churches and clergy themselves were to take nothing back beyond what they had lost. They were not to profit from the crime. In treating these questions, Gregory did not assert that the church alone had jurisdiction over such offences or even that cases should be settled by a fixed rule. His habitual caution and good sense prevailed, suggesting answers by example rather

than by command, and leaving questions of implementation to those involved directly. He did assert an important principle: that circumstance and intent mattered as much or more than punishment. In the later history of ecclesiastical jurisdiction, Gregory's irenic approach was often to be tested. Sometimes it would be set aside in the interest of goals thought to be more urgent. In cases of theft from churches, the earliest Anglo-Saxon laws would prefer much sterner penalties. So sometimes would the canons of the church. But the spirit that animated Gregory’s response would occasionally appear in later Anglo-Saxon laws,!8 and in the long history of the canon law, 1t would never be lost entirely from view.

Marriage and Divorce The next two questions put to the pope dealt with marriage. The church of the early Middle Ages did not possess a body of law regulating the formation of marriage. It endorsed the principle, found in Roman law, that consent of the man and woman involved were the basis for a valid marriage (Dig. 50.17.300). The church might appropriately provide a nuptial blessing for newly married couples. Much beyond that, however, the church did not go in setting the ceremonies necessary for entry

into a marriage. For the most part, ecclesiastical writers were content to follow Roman law or existing customs regulating marriage’s formation. It was the custom that prevailed among the people that should determine what made a marriage and what should accompany it.!9 This choice did not amount to ‘abdication’ of the church’s responsibility or

surrender of its rights. The church did endorse special prohibitions barring marriage between people who were too closely related by consanguinity or affinity, although these prohibitions were not always identical with those that would obtain later on.2° It did proclaim that marriages were indissoluble in principle. 18 e.g. VI Atr 52:1 in Liebermann, Gesetze, i. 258—9 [ Laws, Robertson, 106-7]. See generally Katherine O’Brien O’Keeffe, ‘Body and Law in late Anglo-Saxon England’ (1998) 27 ASE 209-32. 19 A. Esmein, Le Mariage en droit canonique (1891), 1. 97-108.

20 See e.g. Bede, HE, bk. III, c. 7, an endorsement by Bede of a marriage between a man and the daughter of his godson that later canon law would treat as unlawful.

8 THE ANGLO-SAXON CHURCH And it did announce the rule that the clergy in major orders were prohibited from taking wives. In other words, the church staked out its own territory in regulating marriage on some points, but it did not seek to establish a separate jurisdiction over matrimonial questions. As the canon law then stood, nothing required the creation of a separate canon law of marriage and divorce. Augustine’s most specific queries about marriage related to the question of the prohibited degrees, a subject that then was and long afterwards remained open to dispute and uncertainties. He asked, first, whether two brothers could lawfully marry two sisters if no other impediment existed to prevent the unions? Then he asked the more general question: To what generation did the prohibited degrees extend? Finally, he added a more specific question on the same subject: whether a man could lawfully marry his stepmother or his sister-in-law (i.e. someone not related by blood)? To these questions, Gregory gave answers that have seemed at variance with the canon law, and in assessing their content, some historians have concluded that changes must have been made in Gregory’s responses, probably by the recipients. These changes were, it is said, intended to make the answers more palatable to a Germanic society, in effect to ‘water down’ the church’s stance on the indissolubility of marriage and the reach of the prohibited degrees.?!

This view is plausible, although it rests on probability rather than direct evidence. But if we take them as they were recorded at Canterbury—and this is by

no means precluded by the evidence—they too would appear to be a good example of Gregory’s habitual prudence. It might be sensible to go forward slowly.

Nor were his responses wholly at variance with the practice of centuries that followed. Practice at the papal court would embrace the concept of limited dispensations. Some degrees of kinship were subject to dispensation; some were not. Putting the gist of his answers into later canonical parlance, one might have said that what they said would not have been regarded as contrary to divine law. Hence that it would have been within the powers held by occupants of the chair of St Peter to issue a dispensation. Gregory's answer to the first question was that marriages of two brothers with two sisters were lawful. No biblical injunction came into conflict with the exist-

ence of such unions and no other source of invalidity presented itself. To the second question, the pope began by citing what he called ‘a certain secular law in the Roman republic’. It permitted marriages between cousins. However, he added, ‘[E]xperience’ had taught the imprudence of such unions. They had turned out

to be incapable of producing offspring, although the assertion turns out to come from the Book of Leviticus rather than empirical research into patterns of childbirth (Lev. 20: 21). Therefore, marriages within the second generation of 21 See Heinrich Suso Brechter, Die Quellen zur Angelsachsenmission Gregors des Grossen (1941), 74-81.

THE MISSION OF ST AUGUSTINE 9 consanguinity should be treated as unlawful; the third or fourth generation must be reached before men and women related to each other could be safely joined together in wedlock. Biblical precedent taught the same lesson; a man might not marry his sister-in-law, because this would be to ‘uncover the nakedness’ of a woman (the stepmother), who had become ‘one flesh’ with his own father. However, Gregory added that Englishmen who had already contracted this second

kind of marriage in ignorance of its illegality were not to be deprived of the sacraments. The church “tolerates some things in clemency and feigns not to see some things. It was thought preferable to admit some imperfections in men’s conduct in order not to give rise to something worse. Over the course of time, some of these answers would be overturned by the development of a fuller canon law of

marriage, and some of them were probably inconsistent with contemporary Roman practice. But the attitude behind Gregory’s replies was not inconsistent with the canon law of his time, and it would never wholly disappear in later practice. It would be turned into a law regulating dispensations. The Role of Bishops The sixth and seventh of Augustine’s questions concerned relationships between bishops. Could he, as the bishop of the English, consecrate others to serve the episcopal office without the presence of other bishops? And what rules should govern his relationships with the bishops of Gaul and Britain? The pope’s reply amounted to a brief homily on several aspects of the episcopal office. Bishops must be strong in discipline and in the display of good works. They must encourage each other and their flocks by leading exemplary lives. On the legal points implicit in the question, Gregory answered that Augustine might consecrate other bishops—indeed it was likely that he would have to do so, since he might be the only bishop to be found among the English. However, as a normal matter it was far better to associate other bishops with him, just as at a wedding (Gregory said) it was natural that friends should be invited and join in the celebration. And as for

other bishops, those in England were entrusted to his care; over those outside England, by contrast, he was given no authority. His commission gave him no right to ‘put his scythe into another man’s harvest’. The tone and the substance in the answers to these questions seem slightly off

the mark, and it may be that the pope had not quite understood Augustine’s situation. The British Isles were a long distance from Rome, and Gregory could not have been well informed about conditions there despite his long-standing

interest in their inhabitants. Other bishops already served in England, and it seems likely that Augustine was asking about how he should deal with them, not about the consecration of new bishops. To this question, Gregory provided no

10 THE ANGLO-SAXON CHURCH precise and considered answer, and his silence illustrates incidentally what was to be a continuing problem for ecclesiastical jurisdiction in medieval England. The distance between Rome and England remained an obstacle to efficiency and

sometimes even to mutual comprehension throughout the medieval period. Various means for dealing with it were later to be tried—the regular exchange of

correspondence, of course, but also the creation of papal agents or legates in England, the appointment of papal judges delegate to deal with litigation, and the constitution of English proctors to act at the papal court in Rome. Nothing worked perfectly.

Questions of Ritual Purity The final two questions dealt with a series of questions that were important to the daily lives of many men and women to whom the Christian Scriptures were new.?2 Virtually all of them concerned sexual impurity, and most of them the peren-

nial difficulty in working out the relationship between the precepts of the Old Testament and the newer Christian dispensation. For example, how long should a woman wait before entering a church after she had given birth to a child? The Old Testament laid down that if the child was a boy, the delay should be thirty-three days; if a girl, sixty-six days (Lev. 12: 4-5). Gregory responded that this passage must be understood in a figurative sense. Read properly, it could not have been meant to control external behavior under the new, Christian Dispensation. His reason was that, in logic, a woman who entered a church for the purpose of giving thanks to God after childbirth could not be sinning.” To follow the Levitical rule exactly would contravene that obvious logic. He went on to add a condemnation of the custom of giving up infants to other women to be suckled, forbidding women to have sexual intercourse with their husbands until the ordinary time for their purification had passed. The supposition was that this desire lay behind a decision to put infants out to nurse. This addition seems to follow from a desire on Gregory's part to preserve the couple from sin—in this case a desire for the pleasure of sexual intercourse. There was thus nothing ‘free-wheeling’ about

these papal responses, but they departed from a literal reading of the Old Testament that might have repelled Christians new to the Scriptures. 22 See Rob Meens, ‘A Background to Augustine’s Mission to Anglo-Saxon England’ (1994) 23 ASE 5-17,

arguing that these questions dealt with matters of purity regarded as important by the British Christians upon the mission’s arrival. 23 This response was ultimately incorporated into the classical canon law: Dist. 5 cc. 1-4. On the later treatment of Gregory's responses, see Rob Meens, “Questioning Ritual Purity: The Influence of Gregory the Great’s Answers to Augustine’s Queries about Childbirth, Menstruation and Sexuality’ in St Augustine and the Conversion of England (above n. 3), 174-86; Becky Lee, “The Purification of Women after Childbirth’ (1995-6) 14 Florilegium 43-55, at 44-6.

THE ESTABLISHMENT OF CHRISTIAN LAW i Gregory's extended answers to the questions posed at the end of Augustine’s

letter also provided the pope with an occasion for developing distinctions between the nature of human acts. The distinctions were drawn mainly according to the intention with which the acts were done. The same act might be judged

differently, depending on the purpose or motive behind it. In this part of the correspondence, Gregory's responses sometimes seem more theological than legal. A judge in a public court cannot readily draw a distinction between sins according to whether the sinner takes ‘delight’ in the wrongful actions or regards them with shame, as Gregory suggested should be done. But no barrier divided law from theology in this period or for many years thereafter, and intent very often matters in courts of law. In assessing the penalty for violation of the church’s moral law, any judge may reasonably consider mitigation based on the violator’s probable intent. This was to be the standard accepted by the later canon law, and it was presaged in this correspondence.

For the historian of the canon law, perhaps the more important lesson to be taken from these responses lies in their effective and repeated rejection of a standard tied directly to the law of the Old Testament. The process occurred in the sphere of theology too, but its legal component deserves notice. The canon law

as it developed would not follow the pattern found in the Book of Leviticus. Scripture was to be important in the canon law, but not in the sense of dictating a set of exact rules about matters like sexual pollution. Most such regulation was to be left for the penitential forum and private confession, subject to sacerdotal discretion. When they came into being, ecclesiastical courts in England were to deal frequently with sexual matters, but normally not with the questions of ritual purity addressed by Gregory the Great at the end of the Libellus responsionum. Nor would they seek to ferret out private vices. Their attention would be confined

to public offences, or at any rate to those offences that had become matters of public fame.

THE ESTABLISHMENT OF CHRISTIAN LAW Pope Gregory’s Responsiones provided no code of law for the English church. They were not meant to, and it could scarcely have been otherwise. The Western church as a whole possessed nothing like a code of canon law at this early date. True, there

were collections of canons—indeed several of them—but none attempted to provide a comprehensive statement of the church’s law. The question for the historian must therefore be: What canonical resources were present in England during these centuries? How much law was there and how effective was it? Unfortunately, these questions are not easy to answer. There were many laws related to religion, but there was also regional variation and there was change over

12 THE ANGLO-SAXON CHURCH the course of the period. The relevant sources are also too often silent, and silent about the very matters historians most wish to know. The Danish invasions of the ninth century and the monastic revival of the tenth led to internal problems and change in legal practice, though most of it is invisible to us. The growing strength of Anglo-Saxon kings in the tenth and early eleventh century gave rise to fuller and better written laws, but it is difficult to know what impact they had on the ways the clergy dealt with disputes or discipline within their own sphere. Did records of litigation survive in detail, or even more accounts like the Libellus responsionum, we could be more confident in confronting these questions. As it is, we can only draw reasonable inferences from what has survived, always conscious

both that we may be seeing a single moment of light in a dark age, and also that the canon law of the Western church during the early Middle Ages was itself

but an indication of what it was to become during the twelfth and thirteenth centuries.

Continental Influence and Interchange Some things can be said. The great ecumenical councils of the first centuries of the church’s existence, which had enacted rules and principles meant to govern the clergy and the laity, formed part of the Anglo-Saxon inheritance. We know this because canons were also enacted in England, and when they were, the first reference in them was often to the dogmatic definitions of these early councils. The canons of the Council of Hertford (672), for example, repeated many decrees from the councils of the Western church.?4 A school at Canterbury established during the tenure of Archbishop Theodore of Tarsus (d. 690) took the canons of the early church councils as a subject for study and glossing.25 Decrees of the first six ecumenical councils were cited in a profession of obedience made by a bishop of Worcester to the archbishop of the southern province in 798.26 The Council of Chalcedon (451) was referred to in a decree of the English council of Chelsea (815),?7

and the faith of the Council of Nicaea was reiterated and affirmed at a legatine council held in England during 787.78

This kind of citation to the decrees of the early ecumenical councils was one fruit of the interchange of this early period between England and the Continent. 24 Bede, HE, bk. IV, c. 5; Haddon and Stubbs, iii. 119—21. 25 Michael Lapidge, “The Career of Archbishop Theodore’ in Archbishop Theodore: Commemorative Studies on his Life and Influence, ed. Michael Lapidge (1995), 27-8.

26 Haddon and Stubbs, iii. 525-6. 27 ¢. 8 in Haddon and Stubbs, iii. 582. 28 ¢, 1 in Haddon and Stubbs, iti. 448. See also Alfric’s Pastoral Letter (993 X c.995), no. 6 in C. & S. I, pt. 1, 197. See also Deed of Bishop Byrhthelm (957) in W. de Gray Birch, Cartularium Saxonicum (1885-99), ili. no. 997. See generally J. D. A. Ogilvy, Books Known to the English, 597-1066 (1967), 120-3.

THE ESTABLISHMENT OF CHRISTIAN LAW 13 There was traffic back and forth.29 From it grew a flow of ideas and a copying of forms. The Anglo-Saxons themselves were quite conscious of these ties. Bede thought it appropriate to describe King Athelbert of Kent (d. 616) as legislating tuxta exempla Romanorum.°*° It remains a matter of dispute to know just what Bede meant—substantive connections with the acts of Roman emperors are hard to uncover in this early legislation, and it has been plausibly suggested that he meant to invoke a parallel with the initiatives of the Frankish kings, whom he regarded as the successors to the Romans.3! But at a minimum, Bede’s description suggests the reality of interchange with developments on the other side of the English Channel. Of it, ample evidence has been preserved. Bishop Mellitus was present at a Roman synod in 610 and brought back its decrees to England.32 The struggle of Wilfrid (d. 709) to gain control of the diocese of York took him to Rome, where he learned ‘many rules of the law of the church’33 The regular correspondence between Alcuin (d. 804) at the court of Charlemagne and the bishops and abbots of the English church, or that between St Boniface (d. 755) and those he had left behind in England, demonstrate a movement of ideas in a particularly strong form. Many of the subjects raised in these letters concerned the law of the church.*4 One notable consequence of that interchange was to bring some learning in

Roman law to the nascent Anglo-Saxon church.35 The career of Archbishop Theodore provides the best-remembered example. Born in 602 in Tarsus in Cilicia and, as Bede put it, “well trained in secular and divine literature, both Greek and Latin, Theodore was living as a monk in Rome when he was plucked from that quieter station by Pope Vitalian to serve as archbishop of Canterbury. Together with Abbot Hadrian, he arrived in England in May 669, beginning a twenty-two-year tenure as leader of the English church and, again according to Bede, ushering in a particularly fruitful period in the English church’s history. Theodore’s biblical commentaries occasionally quote technical terms from the civil law,3® and with 29 Wilhelm Levison, England and the Continent in the Eighth Century (1946), 15-44; F. M. Stenton,

Anglo-Saxon England, (2nd edn, 1947), 458-60; Ortenberg, The English Church and the Continent (above n. 9). The subject is reviewed in Janet Nelson, ‘England and the Continent in the Ninth

Century: I, Ends and Beginnings’ (2002) 12 TRHS (6th ser.) 1-21. 30 Bede, HE, bk. II, c. 5. 31 Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century, i (1999), 29-30, 97.

32 Haddon and Stubbs, iii. 62. 33 Eddius Stephanus, The Life of Bishop Wilfrid, ed. Bertram Colgrave (1927), ch. 5: 10-13; he is said to have ‘studied the canons of the church”. See ch. 11: 22-5. 34 ibid. 376-83, 388-90, 470-8, 488-96, 498-505, 507-11.

35 See John Frederick Winkler, “Roman Law in Anglo-Saxon England’ (1992) 13 JLH 101-27; D. B. Walters, ‘Roman and Romano-Canonical Law and Procedure in Wales’ (1991) 15 Recueil de Mémoires

et Travaux (Faculté de droit et des sciences économiques de Montpellier) 67-102. The eclipse of Roman law prior to the coming of Augustine is described in Michael Jones, “The Legacy of Roman Law in Post-Roman Britain’ in Law, Society, and Authority in Late Antiquity, ed. Ralph Mathisen (2001), 52-67.

36 Bernhard Bischoff and Michael Lapidge, Biblical Commentaries from the Canterbury School of Theodore and Hadrian (1994), 61.

14 THE ANGLO-SAXON CHURCH Hadrian, he was able to establish a school at Canterbury in which, among other things, some instruction in Roman law took place.3” The spread of knowledge of canon law from Continental sources also figured in Theodore’s work in England. The archbishop convoked synods, notably one held in Hertford in 672, which issued ten canons described as having been taken from a liber canonum.3® We do not know exactly which earlier canonical collection was meant, and there has been abundant speculation about its identity. Probably more significant for its immediate impact upon legal practice in England, however, was a work attributed to Theodore himself. Drawn out of a series of his judgments about specific problems, it was then collected in a famous penitential, to be discussed below. In the present context, however, it is not Theodore’s specific learning that counts as much as it is the movement between England and the Continent that

his work and career illustrate. The great drive of evangelization in the Frankish kingdoms that sprang from Ireland and England is another notable example of the ‘international’ character of the medieval church. There was always traffic back and forth. It resulted in some, but perhaps not very deep, penetration of legal learning into the life of the Anglo-Saxon church. It was the kind of penetration that would allow a poet to imagine God sitting in judgment as a praetor, probably without quite knowing what the function of the Roman praetor had been.

English Synods and Councils In this era, the normal vehicle for dealing with matters of special importance in the church was the synod or a meeting attended by the clergy of a locality. When they spoke about the exercise of ecclesiastical jurisdiction, the Anglo-Saxons generally envisioned it as taking place either at a meeting of a diocesan or provincial synod or else at a tribunal specially convoked by the bishop or other official. It would not occur at a meeting of a consistory court. There was no such institution. For instance, after informal negotiations had failed, a dispute about monastic lands during the reign of Athelred was brought “before the holy synod of a priestly council’4° That was the norm.

By definition, synods were meetings of the clergy, at least the more important clergy, who were often joined by others, sometimes including laymen of substance. 37 So stated in 671 by Aldhelm, who had been a student there. Ep. 1 in Aldhelmi Opera, ed. Rudolf Ehwald (= 15:2 MGH, Auctores Antiquissimi; 1919), 476. See A. S. Cook, ‘Aldhelm’s Legal Studies’ (1924) 23 Jnl English and Germanic Philology 105-13, suggesting that the book being studied there was the Breviary of Alaric. See also Stenton, Anglo-Saxon England (above n. 29), 181; Michael Lapidge, ‘The School of Theodore and Hadrian’ in id., Anglo-Latin Literature, 600-899 (1996), 141-68. 38 Hadden & Stubbs, iii. 119. 39 “Ethelwulf, De abbatibus (803 X 821), il. 337-8, ed. A. Campbell (1967), 28-9. 40 See Henry Adams, Essays in Anglo-Saxon Law (1876), 309-10.

THE ESTABLISHMENT OF CHRISTIAN LAW 15 The meetings were convoked by a bishop for his diocese, by an archbishop for his province, or (at this time) by the king for his kingdom. The wide purposes of such

a coming together were to correct those in need of correction, to instruct the ignorant, to reconcile the antagonistic, to protect the material interests of the church, to enact canons where necessary, and to publicize the law of the church.*!

Synods might also undertake investigations, making use of the ancient institution of testes synodales, into the state of the church or particular parts of it, and they might hear whatever quarrels men chose to lay before them, though it is difficult to find records of these testes actually reporting in Anglo-Saxon times. Investigating and hearing complaints did clearly occur, however, and this led synods to consider private rights and to settle disputes.42 Most of the records of the efforts that have survived involved disputed claims to land. But not all. Synods exercised—if we may use an anachronistic terms—general juris-

diction over the life of both the clergy and laity, to be exercised within the rules established for the utility of church as a whole. They were vital institutions to the early medieval church, not restricted to hearing and deciding legal con-

troversies, as the later consistory courts would be, but not bypassing them either. The ancient rule of the church (Nicaea, c. 5) called for episcopal synods to be held twice a year, the first before Lent, the second in the autumn. In 1215, this requirement was to be narrowed to an annual meeting,*3 and the rule had never been observed

to the letter. When held, they may have been very brief.44 The idea that synods should meet and that they should come together at least annually had remained almost a constant, however. The Provincial Council of Hertford, convoked in 672 by Archbishop Theodore, was conscious of it. The Council decreed that, “for diverse

reasons annual meetings were to be held at a still unidentified place called ‘Clofeshoch’ or “Clovesho’ That would furnish the standard for the English church.*®

Were these planned synods actually held regularly in Anglo-Saxon England, and if they were, what did they accomplish? The state of the evidence makes it

impossible to speak with assurance about either question, although at the Norman Conquest it was assumed that the holding of synods had fallen out of use in the centuries immediately before the date.4° Not much evidence of diocesan 41 Benedict IV, De synodo diocesana, lib. IV, c.1§ 4. 42 See e.g. Regino of Priim, Libri duo de synodalibus causis, lib. I, cc. 2-4, ed. EF G. A. Wasserschleben

(1840, repr. 1964), 207-8. 43 Lateran IV, c. 6 in Decrees, Tanner, 1. 236-7. 44 See Le Pontifical Romano-Germanique du dixiéme siécle, ed. Cyrille Vogel and Reinhard Elze (1963), ii. 59, in which a meeting was to be squeezed into the activities of the crowded morning hours. 45 Haddon and Stubbs, i11. 120. It has been suggested that “Clofeshoch’ was probably an estate of the kings of Mercia and not far from London. See Margaret Deanesly, The Pre-Conquest Church in England (1961), 215. Attempts to identify the exact location have a long and not terribly successful history; see

Simon Keynes, The Councils of Clofesho (1994), 14-17. 46 Letters of Lanfranc, no. 11.

16 THE ANGLO-SAXON CHURCH (as opposed to provincial) synods has survived for any time, although there is enough to show the widespread belief that they should be held regularly. For example, a conciliar decree of 816 stated that all synodal judgments should be fully recorded.4” The decree has not guaranteed the preservation of the acta of anything like yearly synods, and one can therefore draw only a few cautious conclusions from what does survive. What does it show? Several things. First, ecclesiastical assemblies were convened, and they did

perform some of the functions assigned to them under the canon law. For example, the Anglo-Saxon Chronicle records a synod held at ‘Aclea’ (probably Oakley) in 782, a ‘contentious’ synod held at Chelsea in 787, one in Northumbria in 787, and another at ‘Aclea’ in 788; it lists none for the ten years before and after these terminal dates.4® But this is far from a complete list. Other sources show that synods were also held: a meeting at Brentford in 781, a legatine council at Chelsea in 787, and other meetings in 789, 793 (possibly), 794, and 796.49 Moreover, if one accepts doubtful charters as containing a basis in reality, however altered they may have been in parts, and if one also accepts the reasonable assumption that charters witnessed by large number of ecclesiastics were probably made in the course of synods, then the holding of synods begins to look almost like a regular occurrence.5° There was disruption of the practice during the years of Danish invasion. No synod from the second half of the ninth century has left a record of its proceedings. However, some did meet, and probably with increased frequency, after that date. For example, the “Canons of Edgar’ from early in the eleventh century assumed that synods would be held regularly.*! Uncertainty remains, and it would go far beyond the evidence to suppose that yearly synods were the rule. That they did meet at least sporadically is not open to doubt. Second, most of the ‘business’ recorded in the synods from which records have survived turns out to have involved large matters, not the routine litigation involving tithes, marriage, and debts that would come before the church’s courts in a later period. Marriage disputes, for instance, simply do not appear in the record. Most of what matrimonial disputes arose in practice must have been settled informally, perhaps at the initiative of the parties or their families and 47 cc. 6, 9 in Haddon and Stubbs, iii. 581, 583. 48 FHD), 1. 165-6. 49 Haddon and Stubbs, iii. 438, 447-61, 464-6, 478-80, 483-4, 505-6.

50 There is a list of councils and synods held between 600 and 845 in Handbook of British Chronology, ed. E. B. Fryde et al. (3rd edn., 1986), 583-9. See also Catherine Cubitt, Anglo-Saxon Church Councils c. 650—c. 850 (1995), 22-3; Keynes, The Councils of Clofesho (above n. 45); Hanna Vollrath, Die Synoden Englands bis 1066 (1985), 159-234.

51 See e.g. c. 6 (requiring priests to announce in synods what had gone wrong among their flocks). Wulfstan’s Canons of Edgar, ed. Roger Fowler (1972), 2-33 C. & S. I, pt. 1, 317. More evidence is collected in R. R. Darlington, “Ecclesiastical Reform in the Late Old English Period’ (1936) 51 EHR 385-422.

THE ESTABLISHMENT OF CHRISTIAN LAW 17 dealing with such individual bishops and priests as seemed right or necessary.5? The absence of ‘routine litigation’ should not, however, imply that no disputes were dealt with by the synods. Their settlement was an expected part of what a synod should do. However, it is worthy of note that in the surviving records it is the settlement of disputes involving great men and great causes that appears. These were what was thought worthy of recording for posterity.>3 For instance, in a synod of 810, a dispute about the inheritance under a will of Oswulf was raised, argued, and apparently settled, but Oswulf was described as dux atque princeps of East Kent, and doubtless it was on that account that the record was made and kept.>4 Lesser disputes have left no trace. However, the bishops did envision some less exalted litigation being heard in their

synods. A council of the bishops of the province of Canterbury convoked in 816 must have anticipated that quite ordinary accusations would be heard there, because it provided detailed instructions about how the accusations were to be evaluated and how the sentences were to be upheld.5> The line between legislation and litigation was never a fixed one, of course. The same council also enacted canons, and some of them look to have arisen out of particular disputes brought before it (e.g. c. 10, containing regulations for the obsequies of bishops and inheritance of their goods). Synods were meant to be occasions both for stating and for doing what justice required. That task could require formal sentences to end disputes, issuance of canons to provide for the future, or simple discussion to air discordant views. The participants did not have to think in terms of separate legal categories. Third, there was a considerable overlap between ecclesiastical synods and meetings of important laymen, in particular the meetings convoked by the kings. The same

men attended both. Indeed, one reason for doubting the regularity with which episcopal synods met is that they are often difficult to distinguish in the sources from secular gatherings to which bishops and other important clergy were also bidden. What a later age would regard as confusion between the temporal and spiritual spheres was a common feature of Anglo-Saxon church life. Bishops and temporal magnates presided jointly, and in apparent harmony, over the meetings of courts and assemblies.5® No strict line of demarcation between a bishop's exercise of temporal lordship and his spiritual responsibilities was drawn. A rise 52 This seems to have been the expectation of the Council of Clovesho (747), c. 8 in Haddon and Stubbs, iii. 364-5.

53 ibid. 462-4, 465-6. See also A. G. Kennedy, “Disputes about Bocland: The Forum for their Adjudication, (1985) 14 ASE 175-95.

54 Haddon and Stubbs, ii. 567-8. See also the examples in Patrick Sims-Williams, Religion and Literature in Western England 600-800 (1990), 131-4, 138-9, 157, 237-9.

55 Council of 816, cc. 6, 9 in Haddon and Stubbs, ili. 579-83. 56 See, e.g., Ealdorman #thelwine and Bishop Ascwig presiding over a court held at Whittlesford in Liber Eliensis, lib. II, c. 34, ed. E. O. Blake (= 92 Camden Soc. (3rd ser.); 1962), 109-10.

18 THE ANGLO-SAXON CHURCH in regularity and organization of the shire courts in the late tenth century may have decreased the urgency for holding separate meetings for the clergy.5” The power of the kings in ecclesiastical matters extended to calling together his bishops and dealing with their concerns. Anglo-Saxon rulers did not hesitate to

legislate in ways that would affect the church. On that account, no special synod convoked by a bishop would have been needed. The king was the church’s protector. He was thought to be a representative of Christ among Christian people, and it was his duty to ‘avenge to the uttermost offences against God*>8 It was he who had the final say in the selection of bishops. Because any good ruler normally acted with the advice of his councillors and great men, however, it was natural for him to act in concert with leaders among the clergy. It is therefore inevitable that modern editors of legal texts from this period are obliged to describe some meetings as ‘synod or witenagemot, or else as a concilium mixtum. It is not wholly clear whether a particular meeting was one of ecclesiastics with some laymen present or one of laymen with some ecclesiastics present.59? Common participation in lay

assemblies would continue into Norman England and beyond, only gradually giving way to more fixed rules in connection with clerical participation in medieval parliaments. And of course, cooperation was never wholly banished from England. Even at the moments of the greatest disagreement between church and king, the bishops continued to take part in the great councils of the realm. The habit of mind which found it appropriate to join laymen and clergy—one that was widely shared among the lawmakers of the time—now makes for uncer-

tainty in attributing particular councils to one side or the other of an imaginary boundary line between the spheres of church and state. But certainly some of the meetings can none the less be classed as synods by any standard. One held in 804, for example, recorded that a decision was reached ‘/Ethelheard the archbishop presiding and judging, with the witness of King Cenwulf’.°° The records themselves regularly stated that disputes were being heard ‘at synodal councils, and matters

were recorded as having being dealt with ‘by synodal judgments.*! It does not outrun the evidence to conclude that, however far from the canonical ideal practice 57 For the former, see Patrick Wormald, ‘Giving God and King their Due: Conflict and its Regulation in the early English State’ in La giustizia nell’'alto medioevo (Secoli IX—XI) (= 44 Settimane di Studio del Centro Italiano di studi sull’alto medioevo; 1997), 548-81, at 569-70. 58 VIII Atr 2:1; I] Cn 40:2, in Liebermann, Gesetze, i. 263, 340-1 [| Laws, Robertson, 118-19, 196-7]. See

generally William A. Chaney, The Cult of Kingship in Anglo-Saxon England (1970), 174-220; Ann Williams, Kingship and Government in Pre-Conquest England c.500-1066 (1999), 56-64. 59 Haddon and Stubbs, iii. 558 (805), recording a grant of lands by the King of Kent to Archbishop Wulfred. See Frank Barlow, The English Church 1000-1066: A Constitutional History (1963), 137-53. 60 Essays in Anglo-Saxon Law (above n. 40), 322.

61 Haddon and Stubbs, iil. 555 (805): “[J]usto et synodali judicio restituere huic sanctae familiae curavimus’; ibid. 567-8 (810): “[U]trique partes ad synodale concilium advocari et invitari jubebantur..

THE ESTABLISHMENT OF CHRISTIAN LAW 19 may have been, and however imprecise the notion of an exclusive ecclesiastical jurisdiction was, by 800 at the latest, synodal government in the church had established itself as a legitimate way of doing justice in England. The episcopal synod was to remain a scene of ecclesiastical litigation for more than four centuries after that date. It was to retain its legal significance as a source of legislation even longer,

and something like the same ‘confusion’ between different forms of assembly would be replayed in the history of the separation of Convocation from Parliament during the later Middle Ages.

The Creation of Dioceses

Parishes and dioceses are the basic units of the church and of ecclesiastical jurisdiction. The exercise of episcopal authority depends on the bishop acting within his diocese, and it was entirely appropriate to the traditions the AngloSaxons inherited that its clerical meetings were organized by diocese. The parish church also lies at the heart of administration of the church’s law. It was within a parish that most disputes arose. It was in a parish church that correction and reconciliation of the laity were carried out, although Christian tradition assigned

the primary role in fixing penance in some matters to the bishop himself. Given their centrality in the canon law, it is surprising how long the creation of these institutions took in England. The institutions that actually existed during the early centuries could scarcely have been less promising of the stable parochial and diocesan structures we associate with the exercise of ecclesiastical jurisdiction. None the less, the impetus towards order was there from the start. A letter of 601 from Gregory the Great to St Augustine called for the establishment of two provinces, one in London and one in York, each with twelve suffragans.® In the event, these instructions proved impossible to fulfil. Augustine was given Canterbury rather than London as his principal see by King Athelbert, and little could be done at York until the efforts of Bishop Paulinus succeeded in persuading Edwin, king of the Northumbrians, to embrace Christianity in 627. Augustine had little or no success in persuading the existing Celtic bishops in England to submit to his authority or to conform their conduct to that of the Roman church. He and his successors did consecrate new suffragan bishops, as Gregory had envisioned, but the number and the sites of their sees fluctuated, depending on the perceived need and the welcome given to them by the rulers of the Anglo-Saxon kingdoms. Theodore found seven bishoprics when he arrived in 669, but most of them were either vacant or filled with bishops of uncertain status. At one time or 62 Bede, HE, bk. I, c. 29.

20 THE ANGLO-SAXON CHURCH another during the century after the arrival of St Augustine, fifteen dioceses can be counted in England. But in the southern province, only seven of them—Canterbury

(597), Hereford (669), Lichfield (664), London (601 X 604), Rochester (604), Winchester (662), and Worcester (680)—can claim an uninterrupted succession through to the Conquest and beyond.® Nothing like the twelve bishoprics envisioned in Gregory's letter were created for the northern province. This was a misslonary enterprise in many senses, more concerned with ensuring its own continued viability and eradicating heathen practices than with establishing an institutional or legal order. Moreover, the tradition of episcopacy that existed in Ireland and that Augustine

found established in parts of Britain was antithetical to the structure that governed Latin Christendom. The British church was not organized into dioceses with distinct territories allocated to each bishop. Instead, religious communities, normally under the control of abbots and within which bishops also lived, provided the basic organization of the church. There was variety in the character of these establishments called minsters; not all would fit the Benedictine model. But they were not dioceses.°* Under whatever exact organizational form they took, they controlled large areas of land. From them, missionary work was undertaken. Around them, the clergy, including the bishops among them, were grouped.

This made some sense in a rural society, and it lasted much longer in Ireland itself.°> However, it also made the creation of diocesan organization more difficult, and it soon came under attack in England. It is probably a tribute to the strength of this older tradition that many of the medieval English cathedrals turned out also to be monastic. And yet a diocesan structure did come to be established, roughly speaking along the lines of the institution as it existed on the Continent. The creation of dioceses subject to two archbishops was known to be part of Augustine’s original mission, and that precedent stood for something. The (briefly successful) attempt to estab-

lish a new archbishopric at Lichfield in the last quarter of the eighth century, undertaken by King Offa of the Mercians with the blessing of Pope Hadrian, came

to naught, in large part because of ‘the reverence of individual bishops for the 63 Taken from Handbook of British Chronology (above n. 50). The other, transitory sees, were Cornwall, Crediton Dorchester, Dunwich and East Anglia, Elmham, Hexham, Leicester, Lindisfarne, Lindsey, Ramsbury, Ripon, Selsey, Sherborne, and a see of the South Saxons. Dorchester was transferred to Lincoln in 1072; Elmham to Thetford and thence to Norwich in the eleventh century; Lindisfarne to Chester-le-Street and thence to Durham in the tenth century. The other dioceses either disappeared, were transferred to other cities, or were suppressed. See the map: P. H. Blair, Introduction to Anglo-Saxon England, (2nd edn, 1977), 145. 64 John Blair, ‘Debate: Ecclesiastical Organization and Pastoral Care in Anglo-Saxon England’ (1995) 4 Early Medieval Europe 193-211. 65 See G. O. Sayles, “Ecclesiastical Process and the Parsonage of Stabonnon in 1351’ (1952) 56 Proc. Royal Irish Academy 1-23.

THE ESTABLISHMENT OF CHRISTIAN LAW 21 traditions of Augustine’s church.®® Professions of canonical obedience, made by

suffragan bishops to the archbishops of Canterbury, exist from the end of the eighth century.®” The provincial Council convoked in 816 by Archbishop Wulfred of Canterbury enacted canons stating the exclusive right of bishops to consecrate churches within their dioceses, attempting to secure the recognition of episcopal

judgments, and protecting diocesan bishops from improper interference from without.®* Laws designed to establish episcopal oversight of wandering clerics and even wandering bishops were regular features of Anglo-Saxon synodal decrees. Most of the Anglo-Saxon bishops were effectively chosen by the king, and they were expected to take part as judges and litigants in both traditional and exceptional assemblies, taking part together with the laity. If this system of cooperative governance would later be called into question as contrary to the law of the church, in a

contemporary setting the bishops probably gained in status and independence because of their connections with the laity. The territorial diocese, governed by a bishop, came to be recognized by the kings and his nobles as an integral part of church government. It enjoyed the prestige associated with Augustine and the Roman see. The Danish invasions of the ninth century upset the organization of the English church, and the reformation of the tenth century was to be led primarily by monks rather than secular bishops. But neither upset the principle that the diocese was the basic unit of ecclesiastical organization. Of course, many of the later trappings of dioceses were not yet in place. The system of prebends in cathedrals, for example, which served to divide up the revenue of a cathedral among the clergy attached to it, is not visible at all until the very end of the old English period. The division of dioceses into separate, territorial archdeaconries had to wait until more than a century after the Norman Conquest.® But the basic institution of the diocese was firmly in place long before then.

The Establishment of Parishes Establishment of the parochial system and the institutions associated with it like the parochial tithe occurred even later and more haltingly than that of the English dioceses. It has also left fewer traces in the records. Attention of ecclesiastical writers of the time was fixed upon the heroic life of monks, not on the creation of parochial institutions or the lives of ordinary men and women. They left this 66 Stenton, Anglo-Saxon England (above n. 29), 227. See also C. J. Godfrey, “The Archbishopric of Lichfield’ in 1 SCH (1964); 145-59; Nicholas Brooks, The Early History of the Church of Canterbury (1984),

111-27. 67 See Canterbury Professions, ed. Michael Richter (= 67 C. & Y. Soc.; 1973), nos. 1-5. 68 cc, 2, 6, 11, in Haddon and Stubbs, iii 580, 581, 584.

69 Archdeacons existed, however. They aided the bishop in the supervision of his diocese; see e.g. Letters of Lanfranc, no. 30, where it was alleged that archdeacons were abusing their office by demanding money from the clergy. The evidence is surveyed in Deanesly, Sidelights (above n. 7), 145-70.

22 THE ANGLO-SAXON CHURCH development largely unrecorded, and it is upon physical evidence that historians have often been forced to rely to piece together what can be known. In reality, the growth of a parochial system was surprisingly slow to occur. The division of each diocese into separate parishes, each served by its own priest, was ‘a remote ideal’ in these early centuries.7° The centre of Christianity was instead the minster church, served by a group of clergy living a communal life. Out from it went the bishop or a priest and other clergy to teach and minister to the needs of the people. To it they

returned. Bede’s Life of St Cuthbert (d. c.687) described it as ‘the custom of the times’ for a priest or cleric to go out to visit small villages, preaching to the people who gathered to hear him and moving them to cleanse their lives by confession and penitence.7! No church or parochial incumbent awaited him, although by the early years of the eighth century an oratory of some kind might have been built even in small villages.72

A division was made between the great minsters, or the cathedrals, and the ordinary minsters, themselves usually of royal or episcopal foundation. The latter were the ancestors of the ‘mother churches’ or the “baptismal churches’ of the

later Middle Ages.73 They ordinarily had chapels in outlying locations that were dependent upon them, following in general terms a form also found on the Continent.”4 However, large numbers of these minsters did not come into being during the first centuries after the conversion of the English. One estimate has put the number of minsters in the diocese of Canterbury at six or seven prior to the Danish invasions, estimating also that on average each of them would be served by three priests, two deacons, and six clerics in minor orders.79 In the course of time, the numbers grew, and the status of the ancient minsters became the source of disputes about the division of revenues with the parochial churches that were carved out of their original jurisdiction.7° The canon law would be forced to formulate tests to determine whether a church was entitled to the status of matrix ecclesia. Mostly, however, this was a matter for the future. 70 Stenton, Anglo-Saxon England (above n. 29), 147; N. J. G. Pounds, A History of the English Parish (2000), 17-40; see also the sceptical view of Eric Cambridge and David Rollason, “Debate: The pastoral

Organization of the Anglo-Saxon Church: A Review of the “Minster Hypothesis”’ (1995) 4 Early

Medieval Europe 87-104. 71 Lives of the Saints, trans. J. F. Webb (1965) ch. 9, 84. 72 Alan Thacker, “Monks, Preaching and Pastoral Care in Early Anglo-Saxon England’ in Pastoral Care before the Parish, ed. John Blair and Richard Sharpe (1992), 137-70, at 147. 73 John Blair, ‘Clerical Communities and Parochial Space’ in The Church in the Medieval Town, ed.

T. R. Slater and Gervase Rosser (1998), 272-94; and see the several studies in Minsters and Parish Churches: The Local Church in Transition 950-1200, ed. John Blair (1988). 74 G. W. O. Addleshaw, The Development of the Parochial System from Charlemagne (768-814) to Urban II (1088-1099) (1954). 75 G, W. O. Addleshaw, The Early Parochial System and the Divine Office (1957), 7-9. 76 e.g. St Sampson, Southill (Exeter, 1438) in Reg. Edmund Lacy, ed. G. R. Dunstan (= 61 C. & Y. Soc.; 1966), 90—2.

THE ESTABLISHMENT OF CHRISTIAN LAW 23 An early recognition of the problem arose in attempts to solve the question of who was to receive parochial tithes and to assign the responsibilities held by villagers for the maintenance of their local church during the second half of the tenth century. Both were dealt with in the laws of King Eadgar (d. 975) and King #thelred (d.1016).7”

Before this, the principal immediate need had been the building of churches themselves in the countryside. There was more urgency about their construction than there was foresight about the problems to which they would give rise. Bede himself had recognized early inconveniences, but not those that arose later on. To him, relying heavily on ministrations emanating from central minster churches, particularly the greater minsters, was bound to create pastoral ‘shortfalls. They could only become more acute with the progress of conversion. Bishops were given more territory than they could effectively traverse; in his view teachers and priests should be created for individual villages.78 Movement in that direction, however, was slow. The word parochia continued to refer to a diocese and a bishop’s sphere of authority,

rather than to a parish church. It was used that way even in Gratian’s Decretum (C. 16 q.1¢. 9). This meant that for some centuries after the arrival of Augustine on English shores, many estates and villages were without churches of their own.79 The creation of lesser churches to serve the needs of these smaller areas seems

to have depended for the most part upon the initiative of a prominent layman— commonly the lord of a manor, if one may use an anachronistic term. Surely there was variation, but in many instances a layman erected a church to serve his needs, together with those of his people. Many were simple oratories, without a resident priest. Even when they were more, the lord who had built a church regarded himself as in some sense its owner. He named the priest who served there. He took its income, or a part of it, after making allowance for the needs of his clergy. This was the origin of the system of lay patronage that was to figure so largely in parochial law of later ages and that has not yet wholly disappeared from the law of the English church. It was something like the same phenomenon that produced the Figenkirche, or proprietary church, in German speaking lands.®° Only gradually was a balanced and regular system worked out. Taking account of the aspirations and needs of the church as well as those of the successors to 77 II Eg in Liebermann, Gesetze, i. 195-200 [Laws, Robertson, 20-3]; VII Atr 4:1 in Liebermann, Gesetze, 1. 261 [Laws, Robertson, 112-13].

78 Letter to Egbert, archbishop of York (734), in EHD, i, no. 170 (p. 737).

79 The evidence is reviewed in Stenton, Anglo-Saxon England (above n. 29), 150; Deanesly, Pre-Conquest Church (above n. 45), 191-210; H. R. Mayr-Harting, The Coming of Christianity to AngloSaxon England (3rd edn, 1991), 240-8; Eric Klingelhéfer, Manor, Vill, and Hundred: The Development of Rural Institutions in Early Medieval Hampshire (1992) 58-75. 80 The fundamental work is H. Boehmer, “Das Eigenkirchentum in England’ in Texte und Forschungen zur englischen Kulturgeschichte: Festgabe ftir Felix Liebermann (1921), 301-53; see also Peter Smith, “The Advowson: The History and Development of a Most Peculiar Property’ in (2000) 5 Ecc LJ 320-39.

24 THE ANGLO-SAXON CHURCH the builders of these churches required more time and organizational skill than

this age had. The transformation was not accomplished in Anglo-Saxon England.®! The bishop’s right to take part in the introduction of priests into these lesser churches had been asserted already by the Council of Clovesho (747), and the right of clerics not to be dismissed at the will of the layman whose church they served was stated in the Anglo-Saxon laws.82 However, no laws approaching the system of presentation, admission, and induction were spelled out in the canons, and none appears to have existed.

The erection of parish churches on a wide scale appears to have gathered momentum only in the tenth and eleventh centuries, and a systematized way of filling them with resident clergy lay far in the future even then.83 In human terms, however, progress was being made. By the time of Domesday Book (1086), for example, well over half of the places named in Suffolk contained churches, and a similar situation seems to have held for most of England.* It is from this time

that the earliest legislation intended to secure burial within parish bounds survives.85 The most common conclusion among scholars of the period is that the network of parish churches, which was to serve as a bedrock of ecclesiastical justice in England, can be traced to this part of the Anglo-Saxon period. However, the network had not yet taken on the trappings of a legal system even then. There are possible connections to later legal practice. For example, it is common to trace

the parochial churchwardens to the testes synodales that are mentioned in the sources of the time.8© Churchwardens did come to perform some of the same functions as these testes over the course of the later Middle Ages, and the parallel

is not inapt.87 However, no sign has yet been detected of the appointment of 81 See Peter Landau, Jus patronatus: Studien zur Entwicklung des Patronats im Dekretalenrecht und der Kanonistik des 12. und 13. Jahrhunderts (1975). 82 e.g, VI Atr 15:1 in Liebermann, Gesetze, i. 250-1 [ Laws, Robertson, 96-7]. 83 Stenton, Anglo-Saxon England (above n. 29), 436; C. N. L. Brooke, “Rural Ecclesiastical Institutions

in England: The Search for their Origins’ in Cristianizzazione ed organizzazione ecclesiastica delle campagne nell’alto medioevo: Espansione e Resistenze (1982), ii. 685-711, esp. 699, where the decay of the

system of minster churches is described as ‘a desperately obscure process. 84 H. C. Darby, Domesday Book (1977), 346; John Blair, ‘Local Churches in Domesday Book and Before’ in Domesday Studies, ed J. C. Holt. (1987), 265-78; James Campbell, The Anglo-Saxon State (2000), 125, where the creation of a system of parishes is described as ‘the crowning achievement of the English church in the tenth and eleventh centuries’. 85 V Atr 12 in Liebermann, Gesetze, i. 240-1 [Laws, Robertson, 82-3]. See generally D. M. Hadley, ‘Burial Practices in the Northern Danelaw, c.650—-1100’ (2000), 36 Northern History 199-216; Donald Bullough, “Burial, Community and Belief in the Early Medieval West’, in Ideal and Reality in Frankish and Anglo-Saxon Society, ed. Patrick Wormald (1983), 177-201.

86 e.g, Richard Burn, Ecclesiastical Law (5th edn, 1788), s.v. Churchwardens, no. 1. See generally Charles Drew, Early Parochial Organisation in England: The Origins of the Office of Churchwarden (1954).

87 Churchwardens were occasionally later so called; e.g. Thomas Stichewood and William Evans, described as ‘testes sinodales’ (1470), HFRO, Act book O/9, p. 82.

CANONICAL SOURCES AND LEARNING 25 churchwardens to act as legal representatives of the parishes that existed during these years. No presentments of offenders made before episcopal visitations have survived. This parochial office presents, therefore, another example of a persisting pattern. Some of the necessary foundations for the creation of an independent ecclesiastical jurisdiction were undoubtedly laid in the Anglo-Saxon church, including its parochial aspects. But a legal institution scarcely existed.

CANONICAL SOURCES AND LEARNING Canon law does not depend on the existence of an organized system of courts. It may be put into practice in different ways. The wider history of Christianity shows this unmistakably. In the first thousand years or so of the church’s existence, no system of ecclesiastical tribunals existed. Today, many churches get along without courts. However, the absence of a court system does not mean that no canon law exists, then or now. In fact, the reverse is true. Canons may be enacted in abundance.

Collections may be made of these canons and themselves circulated throughout the church. In other words, there may be a canon law even though no system of ecclesiastical courts sits to enforce it.

This characteristic of religious law invites us to examine more closely the books containing canon law that were produced and used by the Anglo-Saxon church. A division into three classes of canonical material can usefully be made, although it is undeniable that overlap between them existed. They were: collections of older canons, penitential books, and synodal legislation. A fourth, the laws of the AngloSaxon kings, ought also to be kept in mind, at least by way of background. Royal legislation was meant to play a significant role in the life of the church.

Canonical Collections The tradition of gathering the canons of church councils together into collections established itself early in the history of Christianity.88 The collections brought together statements of the norms by which the church should be governed and under which a Christian people should live. Some were arranged by time; some by subject. Some contained other statements of law (e.g. papal letters, biblical passages); some did not. They were ‘reference tools’ in the most basic sense, and some of them circulated throughout the Western church. 88 There are many general works on this subject: Friedrich Maassen, Geschichte der Quellen und der Literatur des canonischen Rechts im Abendlande (1870, repr. 1956), i; Lotte Kéry, Canonical Collections of the Early Middle Ages (ca.400-1140) (1999); Paul Fournier and Gabriel Le Bras, Histoire des collections canoniques en occident deputs les Fausses Décrétales jusqu’au Décret de Gratien (1931, repr. 1972).

26 THE ANGLO-SAXON CHURCH CONTINENTAL COLLECTIONS

At the time St Augustine came to England, the most famous collection of canons in the church as a whole was that associated with a monk named Dionysius Exiguus (d. c.526). His work, compiled in two recensions, embraced both conciliar decrees and papal decretals, and had been valued from the outset for its accuracy, clarity, and organization. An enlarged version of the text, known as the Collectio Dionysio-

Hadriana, was compiled at the request of Charlemagne towards the end of the eighth century, and it circulated widely within his domains. The textual tradition of the various formulations of the Collectio Dionysiana is tangled, but the number of surviving manuscripts leaves no doubt about its perceived utility, and it has long been thought that a version of this text must have been brought into England. Other examples of collections compiled on the Continent could be given for this period, although the penetration of many of them into the Anglo-Saxon kingdoms is a more difficult question.8? Most of them never achieved more than local circulation or reputation. Indeed, it is difficult to be sure what practical use was made of most of them. But the collecting continued, and by the eleventh century some of the collections that were being made achieved a much greater completeness and also a wider circulation than the earlier collections had. It was only the quality of Gratian’s Decretum (1140) that caused them to be swept aside. For the two centuries immediately following Augustine’s arrival in England, probably the most important collections were three: the Vetus Gallica: apparently compiled at Lyons at some time between 585 and 627, it was much used in later systematic collections; the Hispana:

first put together and then added to over the course of the seventh century, it remained the basic collection for the Spanish church up to the eleventh century; and the Hibernensis: compiled in Ireland some time around 700, it integrated the writings of the fathers, traditional Irish rules of law, and conciliar decrees.%! In long-term influence, the most significant of the early collections was that which once was known as the False Decretals and now is more generally called Pseudo-Isidore.°? Understanding how it was composed is full of puzzles, but it is 89 For useful summaries of this abundant literature in its contemporary setting, see Jean Gaudemet, Les Sources du droit de Véglise en occident du IVe au VIle siécle (1985), 129-61; Roger E. Reynolds, “Law,

Canon: To Gratian’ in Dictionary of the Middle Ages, ed. Joseph Strayer (1986), 399-407; Brian Edwin Ferme, Introduzione alla storia delle fonti del diritto canonico I: Il diritto antico fino al Decretum di Graziano (1998), 77-105, 119-25.

90 The fundamental work is Hubert Mordek, Kirchenrecht und Reform im Frankenreich: Die Collectio vetus gallica (1975).

91 Maassen, Geschichte (above n. 88), 667-716; G. Martinez Diez, La coleccién canénica Hispana (1966-92); Maurice Sheehy, “Influences of Ancient Irish Law on the Collectio canonum Hibernensis Proc. Third International Congress of Medieval Canon Law, ed. Stephan Kuttner (1971), 31-42; Kathleen Hughes, The Church in Early Irish Society (1966), 123-33.

92 The text is available, in a much criticized edition: Decretales Pseudo-Isidorianae et capitula

Angilramni, ed. Paul Hinschius (1893). See Horst Fuhrmann, Einfluf’ und Verbreitung der

CANONICAL SOURCES AND LEARNING 27 certain that it was one of a series of collections compiled around the middle of the ninth century in the wake of the break-up of Charles the Great’s imperial government. Its most immediate goal seems to have been to protect the Frankish bishops against the powers of their metropolitans and the incursions of great laymen. To that end the collection put together texts—some of them forged or partly falsified by being given an earlier date—making it difficult to bring accusations against the higher clergy and exalting the power of the papacy, as the court where such accusations must be heard. By such means the bishops would be protected. It also contained much other material, however, dealing inter alia with marriage, trial procedure, the sacraments, heresy and the penal law of the church. Its later influence was considerable. Gratian would use it, and it was to be the source of Archbishop Lanfranc’s canonical collection that was introduced into England after the Norman Conquest. ENGLAND AND THE COLLECTIONS

None of these collections claimed an English origin. It cannot be said that Anglo-Saxon England was a centre of canonistic activity of even the modest level of production attained elsewhere. By comparison, there was much more activity in the Gallic or Spanish churches.93 However, paucity in production does not preclude widespread use of the collections in any country, and for a history of the canon law in England, probably that is the more important question. Many of the

collections circulated widely, and it is undeniable that some of them reached English shores. Archbishop Theodore brought and used a Liber canonum when he came to England, although it remains uncertain exactly what that Liber was.9* The laws of King Athelred (1014) refer to instructions for the clergy found in books of canons, without telling us what books these were.9> Bishop Leofric (d. 1072) left a book of canons to the church at Exeter.9° Again, we do not know exactly what it contained.

It is a legitimate question, then, to ask how much can be known about the actual use and circulation in England of the various collections. The unfortunate answer is that very little is known. Anglo-Saxon sources more often tell us of the existence of a particular place as a centre of learning than they do about the pseudoisidorischen Falschungen von ihrem Auftauchen bis in die neuere Zeit (24:1-3 MGH, Schriften; 1972-4); Fuhrmann, “The Pseudo-Isidorian Forgeries’ in Papal Letters in the Early Middle Ages, ed. Detlev Jasper and Fuhrmann (2001), 137-95. 93 Fournier and le Bras, Histoire des collections canoniques (above n. 88), i. 44-6. 94 On the question of the canonical sources available to Theodore, see Paul Finsterwalder, Die Canones Theodori Cantuariensis und ihre Uberlieferungsformen (1929), 203-5, and Martin Brett, ‘Theodore and the Latin Canon Law’ in Archbishop Theodore. Commemorative Studies (above n. 25), 120—40. 95 ¢,28in C. & S. I, pt. 1, 397. 96 Grant (c.1070), in Anglo-Saxon Charters, ed. A. J. Robertson (1956), 228-9.

28 THE ANGLO-SAXON CHURCH nature of the learning that took place there. Modern discussions are often litanies of the difficulties encountered in exploring the subject. In part, this is attributable to questions about the survival and attribution of manuscripts. Medieval catalogues rarely give the date of a volume’s arrival in a library, and they frequently record only the existence of an otherwise unidentified Decreta pontificum. In part, it is attributable to the Anglo-Saxon attitude to legal sources. Early writers were

accustomed to arguing about a canonical rule without citing any specific text from which it was derived.

There are shards of evidence, however. Some do no more than give rise to reasonable inferences that canonical sources were being consulted. Contacts between England and the Continent were frequent. They could easily have been the means of bringing canonical collections to England. English clergy were, for example, present at a council of Frankfurt in 794.97 Alcuin (d. 804), whose responsibilities at the court of Charlemagne included the promotion of reform of the church, wrote frequently with canonical advice to his friends across the Channel.98 English clerics and kings made many trips to the see of St Peter, and the presence of papal legates and papal privileges for English monasteries show that there was also traffic the other way.%? It is natural to think that these contacts must have had substantive effect, and one of the most natural effects would have been a penetration of canon law collections into England.1©° A part of the evidence on the subject is more direct. An early eighth-century Collectio canonum, now in Cologne, was written in a Northumbrian scriptorium.!°! An English collection of glosses, including canonical material presumably taken from a Continental collection known as the Sanblasiana, was known at Canterbury about 800.102 #lfric’s Pastoral Letters (c.995) contain material taken from canonical collections, and the questions used for the examination of candidates for ordination from the early eleventh century included one asking pointedly whether the ordinands ‘knew the canons to any extent.!©3 A collection of canons made in England, once attributed to Archbishop Ecgbert of York (d. 766), but now associated with 97 Haddon and Stubbs, ii. 481—2. 98 Levison, England and the Continent (above n. 29), 158-66. 99 The evidence is presented by Margaret Deanesly, “The Anglo-Saxon Church and the Papacy’ in The English Church and the Papacy in the Middle Ages, ed. C. H. Lawrence (1965), 31-62. 100 See generally Deanesly, Pre-Conquest Church (above n. 45), 291-2; Michael Lapidge, “Schools,

Learning and Literature in Tenth-Century England’ in Lapidge, Anglo-Latin Literature, 900-1066 (1993), 1-48, esp. 29.

101 The Making of England: Anglo-Saxon Art and Culture, AD 600-900, ed. Leslie Webster and Janet Backhouse (1991), no. 126.

102 Lapidge, Anglo-Latin Literature 600-899 (above n. 37), 150-61; Bischoff and Lapidge, Biblical Commentaries (above n. 36), 153—4.

103 Bernhard Fehr, Die Hirtenbriefe Alfrics in altenglischer und lateinischer Fassung (1914, repr. 1966), pp. xc-cxvul, and c.13 in C. & S. J, pt. 1, 425.

CANONICAL SOURCES AND LEARNING 29 Archbishop Wulfstan (d. 1023), made similar use of several canonical collections, probably including the Dionysio-Hadriana, the Hispana, and the Hibernensis.1°4 Quantitatively, these references to the canon law do not amount to a great deal. Comparatively few in number, they suggest only modest penetration by ecclesiastical law, even considering the likelihood that much evidence has been lost over the centuries. Moreover, indications that the important Pseudo-Isidorian collection was used in England are problematical at best.!°5 A modern listing of almost a thousand manuscripts known to have been in England before 1100 contains very

few canonical collections—fewer, for example, than it does copies of Bede’s Historia ecclesiastica.°° The evidence of the circulation of canonical collections also pales by comparison with the evidence about the presence of penitentials in England. Perhaps the very popularity of the latter explains in part why the former have not left more of a mark. Penitentials were used in their place. Our knowledge here is imperfect, and there is every reason for caution. Scholars with the greatest knowledge of the subject have taken it as a lively possibility that more remains to be discovered.19”

One other, and more certain, finding about the canonical collections should be mentioned. It is a negative one, at least from the perspective of a lawyer. It is their relative—it would not be right to say complete—absence from arguments about disputed points of ecclesiastical discipline.1°’ Under accepted principles, a collec-

tion would not itself have counted as an authority, apart from the canons in it. However, ecclesiastical disputes would have been a convenient vehicle for making the canons known, and even when they would have been relevant, collections and the canons in them were seldom mentioned at all in the sources of the time. Bede’s

account of the Council of Whitby, for example, barely mentioned the Council of Nicaea’s decrees on the subject in the dispute over the correct date of Easter, and he

recorded nothing about an appeal being made to an authoritative collection of canons. This argument at Whitby depended upon the Bible, reason, and invocation of the custom observed in the church as a whole, not on canonical collections. 1°

The result looks much the same in looking at the briefer document from the mid-eighth century called “The Dialogue of Egbert, Archbishop of York. When 104 Wulfstan’s Canon Law Collection, ed. J. E. Cross and Andrew Hamer (1999), 29-37; Karl Jost, ‘Einige Wulfstantexte und ihre Quellen’ (1932) 56 Anglia 265-315. 105 See Fuhrmann, EFinfluf und Verbreitung (above n. 92), i. 229-32. 106 Helmut Gneuss, ‘A Preliminary List of Manuscripts Written or Owned in England up to 1100°

(1981) 9 ASE 1-60. 107 Stenton, Anglo-Saxon England (above n. 29), 462. 108 There are exceptions, e.g. ‘Aelfric’s Pastoral Letter for Wulfsige IIT (993 x c.995), in C. & S. J, pt.

1, 196-226 (biblical arguments and conciliar sanctions mixed together in about equal portions for defining proper clerical conduct). 109 Bede, HE, bk. III, c. 25. Richard Abels, “The Council of Whitby: A Study in early Anglo-Saxon Politics’ (1983) 23 Jnl British Studies 1-25.

30 THE ANGLO-SAXON CHURCH answering the question of whether it could ever be lawful for one spouse to remarry after a divorce, the archbishop replied negatively and strongly, but his authority came only from biblical example, not from the citation of the authority of a canonical collection or even from that of any council, ancient or more recent.!!° Similarly, in arguing that the clergy should never carry arms, Archbishop A lfric (d. 1005) cited none of the conciliar decrees he might have used to good effect; instead he stuck with biblical analysis, depending instead on the precedent in which Jesus had rebuked Peter for threatening to use the sword he was carrying.!!! For controversial questions, the canonical collections often seem to have been most remarkable by their absence. Perhaps utility in disagreements was not their function.1!2

Libri Penitentiales Strictly speaking, a penitential book was meant for use by a priest or bishop in hearing confessions and assigning penance. The principal importance of these books in wider church history concerns their place in the evolution of confession. They played a pivotal role in the displacement by private penance of ancient forms of public penance.!43 In a volume devoted to ecclesiastical law, their role in articulating the law of the English church must be the principal focus, though the two cannot be entirely separated. NATURE OF THE PENITENTIAL BOOKS

The origins of the libri penitentiales have been a subject of scholarly dispute, but there is general agreement today that as a force in the church they grew out of

Irish monastic culture, then moved outwards to be used more generally on the Continent. The Irish missionaries, who travelled to the Continent during the seventh to ninth centuries, took penitential books with them. Many of them were copied at their destinations. Indeed, most of the manuscripts of the penitentials that have survived seem to have come from Continental libraries. The most characteristic feature of the libri penitentiales is their long lists of sins, coupled with statements of the penances appropriate for each of them.!!4 110 Interrog. XIII in Haddon and Stubbs, iii. 409. 111 First Old English Pastoral Letter for Wulfstan, nos. 190-5, in C. & S. J, pt. 1, 297-8. 112 See Peter Cramer, “Ernulf of Rochester and Early Anglo-Norman Canon Law’ (1989) 40 JEH 483-510, at 496, where their purposeful use is described as akin to ‘an extension of a prayer. 113 This process has been the subject of much scholarship, some of it quite controversial; see Rob Meens, “The Frequency and Nature of Early Medieval Penance’ in Handling Sin: Confession in the Middle Ages, ed. Peter Biller and A. J. Minnis (1998), 35-61. 114 Commentary on the penitential books is abundant. For what follows, see principally Cyrille Vogel, Les ‘Libri paenitentiales (= 27 Typologie des sources du moyen age occidental; 1978); Allen J. Frantzen,

CANONICAL SOURCES AND LEARNING 31 Sexual sins occupied a large share of most of these lists, but they also dealt with homicide and wounding, sorcery, drunkenness, sacrilege, and many of the other crimes and weaknesses common to the human condition. To each was added a penance. In other words, there was a ‘ready-made penance’ for each offence. Room

was left for a measure of discretion on the part of the cleric administering penance, but not too much. One thing that made the books attractive in the first place was their ease of use. They made possible, and indeed relatively simple, the removal of the taint of sin. Detractors would say this amounted to no more than ‘a mechanical prescription of so much penance for so much sin’!!5 So it seems. For instance, we read in a small part of a penitential once attributed to Bede and now known as Pseudo-Bede: If a cleric not in monastic vows shall commit fornication, [let him do penance] for one year; if frequently, two years. If he gives birth to a child by her, let him do greater penance, that is four or five years. Others say seven years or [else] he shall be exiled. If a priest... with

a girl let him do penance of three or four years...

The same book prescribed penances for those who have committed secular, public crimes, as for example: If a cleric commits homicide and kills his neighbour out of hatred, let him be an exile for seven years. If a layman commits homicide out of hatred and in anger, let him do penance of four or five or seven years. He who acts in a brawl, seven years; and if he shall kill a man unwittingly, let him do penance of one year.!16

The system does seem mechanical. That appears almost to have been its aim. But the characteristic can also be put more positively.!!” The system aspired to match the penance to the crime. Like cases would be treated alike. A salutary goal of proportionality ran through the early penitential literature.

The early penances were usually stated in terms of fasts—as in assigning a number days or years on bread and water for each sin. From an early date, however,

penances could also be redeemed by, or commuted into, other acts of piety— genuflections, recitations of psalms, pilgrimages, and in Ireland even spending The Literature of Penance in Anglo-Saxon England (1983); John Thomas McNeill, The Celtic Penitentials and their Influence on Continental Christianity (1923); Ferme, Introduzione (above n. 89), 105-12, 125-73 FW. H. Wasserschleben, Die BufSordnungen der abendlandischen Kirche (1851, repr. 1958), 1-98. Several of

them are translated into English in Medieval Handbooks of Penance, ed. and trans. John McNeill and Helena Gamer (1938). 115 McNeill, Celtic Penitentials (above n. 114), 38. 116 Wasserschleben, Die Bufsordnungen (above n. 114), 259, 265. See M. L. W. Laistner, “Was Bede the

Author of a Penitential?’ (1938) 31 Harvard Theological Review 263-74.

117 PJ. Payer, “The Humanism of the Penitentials and the Continuity of the Penitential Tradition’ (1984) 46 Mediaeval Studies 340-54.

32 THE ANGLO-SAXON CHURCH a period of mortification inside the tomb of a saint. It was recognized that some penitents might not be able to perform the fasts, whether because of age, illness, or perhaps even disinclination. For them, substitutes had to be found. Money payments became an option—alms given to the poor, provisions made for Masses, or gifts to the church. Commutation of this sort came to be perceived to be a source of abuse, and criticism was heard even at the time.!48 It seemed to allow rich men to buy their way out of the performance of public penance. This criticism had the ring of truth to it, and although it would also find a place in later canon law, commutation of penances was a controversial subject from its earliest days. Echoes of the criticism were heard in England during the seventeenth century. It is both traditional and sensible to deal with the penitential books as belonging to a different species than the canonical collections. There were important differences, and contemporaries recognized them, not least by criticizing the former while extolling the virtues of the latter. Still, many surviving manuscripts contain both. Men who put together the penitential books did not always see the incongruity of including conciliar decrees. For example, the penitential attributed to Theodore, to be discussed below, drew upon the Canones Hibernenses.119 Those who compiled

books of canons sometimes drew upon the penitentials. For instance, Regino of Prim (d. 915), compiler of the Libri duo de synodalibus causis, included several.12° The purpose of both, they may have thought, was much the same: to provide a guide to right conduct and to make possible the reconciliation of sinners. The confessor

was meant to use the book not only to assign appropriate penances, but also to educate the penitents committed to his charge in what the law of the church required. He was to use it to lead them back thereby into communion with the church and their neighbours. This was also a function of the canonical collections. THE PENITENTIAL BOOKS AND ENGLAND

The currency and even popularity of libri penitentiales in the Anglo-Saxon church is well attested, although it is unlikely that they always worked entirely as they were intended. We know this, for example, because laymen occasionally boasted that they could ‘beat’ the system. Under the rule of vicarious penance, it became possible to have others do penance in one’s stead. A rich man was said to have claimed the accumulation of 300 years of penitential ‘credit’ by this means to atone for the wrongs he had committed and might commit in the future.!?! The bishops rebuked this ‘banking’ as an abuse, and such possibilities would figure

among the reasons later given for eliminating the Celtic system of prescribed 118 Thomas Oakley, ‘Commutations and Redemptions of Penance in the Penitentials’ (1932) 18

Catholic Historical Review 341-51. 119 McNeill, Celtic Penitentials (above n. 114), 61. 120 De synodalibus causis (above n. 42), lib. II, cc. 247-56. 121 Council of Clovesho (747), c. 27 in Haddon and Stubbs, ii. 372-4.

CANONICAL SOURCES AND LEARNING 33 penances for specific sins. In its contemporary context, however, an objection like this one is itself evidence of the appeal these books had in early English society. Of the penitential books immediately connected with the English church, easily the most impressive in scope and organization is the Penitentiale Theodori compiled at the end of the seventh century.!22 The compiler was not Archbishop Theodore himself, but a disciple and a scribe who recorded the archbishop’s judgments in specific matters that had come before him and gathered them together. Some would say that on this account it was not a penitential book at all. However, it did adopt the method of the penitentials. Beginning with sections for drunkenness, fornication, theft, homicide, and then moving through other offences, the compilation listed the penances the archbishop had assigned as appropriate for each case. Five different forms of perjury were listed, for example, with penances ranging from eleven years to one. The compilation did more, however, particularly in its second book. It contained many rules for the proper governance of the church. These also may have been judgments of Theodore from specific cases, but they did not involve penance or crimes. So we read: A bishop might administer confirmation in a field, if necessary; bishops should not require abbots to attend the meeting of a synod without reasonable cause; priests should not themselves be obliged to pay tithes. The Penitentiale is far from a code of law for the church; it was not comprehensive in scope and it dealt with some matters later writers would regard as unsuited for the canon law’s attention. Still, it remains an important statement of the law as understood by the Anglo-Saxon church. We shall look back to it when dealing with specific areas of substantive and procedural law. Quite apart from their utility as statements of canon law, penitential books like Theodore’s must have been attractive to the Anglo-Saxons because their contents were in harmony with the early Anglo-Saxon laws. Their method was virtually identical. The long lists of offences in the royal laws, coupled with statements of

the amount to be paid as compensation for each of them, was very like the approach to wrongdoing found in the church’s penitential books. For cutting off a finger, so much was to be paid in compensation; for a hand, so much; for an arm up to the elbow, so much. The tariff systems were also the same in essence; only the nature of the penalty varied— spiritual penalties in one, money penalties in the other. Indeed, it is possible to think that commutation of penance for money, an arrangement that was largely adopted by the church, was itself suggested by the wergeld system of compensation for victims of temporal wrongs.!23 The overlap 122 Poenitentiale Theodor, lib. 1, tit. 14, c. 4 in Haddon and Stubbs, iii. 188, suggesting that the public

penance characteristic of the early church was not in use in his province. See Mayr-Harting, The Coming of Christianity (above n. 79), 257-61. 123 Thomas P. Oakley, English Penitential Discipline and Anglo-Saxon Law in their Joint Influence (1923), 53.

34 THE ANGLO-SAXON CHURCH in coverage—both dealt with crimes and wrongs that seemed to invade the other’s jurisdictional domain—makes the parallel seem even more exact.

Duplication in subject-matter deserves special emphasis because it reveals a supposition that ran throughout the legal history of the Anglo-Saxon church and that, in somewhat altered form, remained important throughout the entire period covered by this volume. The laws and sanctions of church and king should be complementary. The laws of Athelred, for example, stated that violators of the laws of God or man should make amends under both the ecclesiastical and the secular law.!24 Excommunication could be regarded as a kind of spiritual outlawry,!25 and the penitential called “Pseudo-Bede’ stated that compensation had to be paid to the

victim in a fight, this being in addition to the performance of penance by the wrongdoer.!2° The ‘Dialogue’ of Archbishop Egbert of York stated that laymen who killed monks or clerics were to pay compensation to the church, but they were also to be turned over to the king for punishment, ‘lest they imagine they can sin with

impunity.!2” The kings did not hesitate to call upon their bishops for support in temporal government, and the kings were willing that their own laws be used to support the church's penitential system. The Anglo-Saxon church recognized no canonical principle requiring that royal and ecclesiastical law be kept separate. In the wake of the Carolingian efforts to reform the church and clergy, the libri penitentiales fell into disfavour on the Continent. The effects of growing disfavour were ultimately felt in England. The libri were criticized for incoherence, internal contradiction, lack of authoritative character, and even for encouraging wrongful conduct. They seemed to permit too easy redemption of sins. Energetic mortification of the flesh would allow a hundred years of penance to be completed in six days.!28 A synod held at Paris in 829 ordered bishops to “diligently search out these erroneous booklets in his diocese and to give [them] over to the flames’!29 The attitude of that synod is not dead today. Some modern historians of the early canonical collections have written in much the same way about the penitential books. They are treated as having been a source of ‘contagion’.13° They interrupted the orderly development of the canon law and they turned God’s forgiveness of the sins of men and women into a market transaction. 124 VT Atr 50 in Liebermann, Gesetze, i. 258-9 [| Laws, Robertson, 104-5]. 125 Pollock and Maitland, i. 478. 126 Lib. II, c. 9 in Wasserschleben, Bufsordnungnen (above n. 114), 225. See generally E. M. Treharne,

‘A Unique Old English Formula for Excommunication from Cambridge, Corpus Christi College 303’

(1995) 24 ASE 185-211, esp. 194-7. 127 Interrog. XII in Haddon and Stubbs, iii. 408-9. 128 The Letters of Peter Damian, trans. Owen Blum (1990), no. 44, c. 19. 129 ¢, 32 in Mansi, Concilia, xiv, col. 559, quoted in McNeill, Celtic Penitentials (above n. 114), 163-4. 130 Fournier and Le Bras, Histoire des collections canoniques (above n. 88), Vogel, Les ‘Libri paenitentiales’ (above n. 114), 111-12. But see L. Bieler, “The Irish Penitentials: Their Religious and Social Background’ (1966)

8:2 Studia Patristica 329-39, esp. 332, where their advantages over the ancient system of penance are listed.

CANONICAL SOURCES AND LEARNING 35 However, this is too one-sided a criticism. Eradication of the penitential books met with resistance at the time. Their utility in administering the church’s penitential system made them hard to do without completely, or at least immediately, and they would live on to be included in some of the later canonical collections.13! The mechanical tariffs of penance they contained did disappear, but the confessor’s manuals that succeeded them incorporated their lists of sins. The manuals had a longer and more promising future. The penitential books were, in other words, capable of being improved. Without losing their identity entirely, they were turned from tariffs of penalties into guides for reconciling penitents. They were made more comprehensive and orderly, but the long lists of offences against the church’s law contained in them were not eliminated. Only the wergeld-like tariffs were.

Ecclesiastical Legislation

The third form of canon law in Anglo-Saxon England was legislation. Like the penitentials, the ecclesiastical laws of the time cannot be treated wholly apart from secular forms of statute making. The line between legislation and decision in individual cases was often indistinct in early medieval Europe, as was that between spiritual and secular. Distinctions were always recognized at some level, but much was common. CHARACTERISTICS OF ECCLESIASTICAL LEGISLATION

Secular and ecclesiastical statutes shared several features. First, promulgating laws in Anglo-Saxon England did not normally imply innovation. This was as true of the laws of the church as it is of those of the kings. What today is assumed to be the primary goal of legislation— to provide new laws for emerging problems, laws that are to be enforced in public courts— was not the normal assumption of the time. Laws were normally drawn from ancient sources, and they were promulgated as

much for the sake of making traditional rules better known as for the sake of creating new ones. Their purpose was to restore what once had been, and for this reason many of them do not fit easily into modern canons of statutory construction. Indeed much of the material they contain would be quite unintelligible if they were treated as modern legislation./32 It may even be that the act of legislating was as important as the contents of the legislation. Not that there was never room for innovation. The laws of Alfred, for example, began with a statement that he had made changes in the law he had received from the past.!33 As a general matter, 131 e.g, Burchard of Worms, Decretorum Libri XX (c.1023), lib. XIX (1548, repr. 1992), 187-218,

contains many such provisions. 132, Wormald, Making of English Law (above n. 31), 416. 133 Af Einl. 49:9 in Liebermann, Gesetze, 1. 46-7 | Laws, Attenborough, 62-3]. On Alfred’s Codes, see Richard Abels, Alfred the Great: War, Kingship and Culture in Anglo-Saxon England (1998), 34-7, 275-7.

36 THE ANGLO-SAXON CHURCH however, in deciding what to put into legislation, it was safer to look to the enactments of the past and to choose those that fit current problems. Second, Anglo-Saxon legislation, both spiritual and secular in origin, made much less distinction between the spiritual and secular sides of life than would later be made. A shared sense of purpose makes it difficult to distinguish between the domains of ecclesiastical and secular law, although contemporaries certainly distinguished between the two for some purposes. It is more than a problem of deciding in which box particular legislation should be placed. Laymen and clerics attended the same meetings./34 The church's legislation supported the secular order. Its priests played an essential part in the administration of the ordeals that

were used in rendering secular judgments. Moreover, as was true on the Continent,!35 decrees which purported to bind the church and clergy were issued in the name of the kings. For example, the seventh-century laws of Ine presumed

to direct the manner in which church dues were to be paid.!3° King Alfred’s laws from the late ninth century directed bishops to deal with priests guilty of homicide by deposing them from their orders.!37 The ‘Code’ of King Edmund from the middle years of the tenth century required bishops to repair the churches in their control and ordered those who committed perjury or practised sorcery to be cast out from the church.!38 The assumption that underlay these provisions, as with many secular laws, was that the law would and should promote the interests of both church and kingdom. Third, some of the bishops were willing to go further to assure observance of God’s law. In this they began a process that was never wholly overtaken by later attempts to draw stricter boundaries between the spiritual and the temporal sides of life. These bishops sought to infuse the laws of the kings with principles and even exact rules drawn from the law of the church. The earliest of the AngloSaxon laws, those of Athelbert of Kent (d. 616), although written in the vernacular, were probably compiled under the influence of the church. The laws were intended in part to establish the legitimacy of accepting compensation for injuries instead of avenging them through feud and reprisal, one of the goals of the church at the time.139 Many of the laws of the later kings, seemingly also compiled under 134 For background, see Jakob Speigl, ‘Zum Problem der Teilnahme von Laien an den Konzilien im kirchlichen Altertum’ (1978) 10 Annuarium historiae conciliorum 241-8.

135 See e.g. Decrees of Henry II, c. 283, included in The Collectio canonum Casinensis duodecimi seculi, ed. Roger E. Reynolds (2001), 89. 136 Ine 61 in Liebermann, Gesetze, i. 116-17 [ Laws, Attenborough, 56-7]. 137 Af 21 in Liebermann, Gesetze, i. 62-3 [ Laws, Attenborough, 74-5]. 138 | Em 5-6 in Liebermann, Gesetze, 1. 188—9 [ Laws, Robertson, 6-7]. See generally Barlow, English Church 1000-1066 (above n. 59), 138-44. 139 A, W. B. Simpson, “The Laws of Ethelbert’ in On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. Morris S. Arnold et al. (1981), 3-17; W. W. Lehman, “The First English Law’ (1985) 6 JLH 1-23; Lisi Oliver, The Beginnings of English Law (2002), 52-116.

CANONICAL SOURCES AND LEARNING 37 the influence of the bishops, served ecclesiastical objectives even more directly. For instance, one law stated that the word of a bishop was to be ‘incontrovertible’ and treated like the word of a king; another that every church consecrated by a bishop was to possess the right of sanctuary; a third that the ecclesiastical tax called ‘church-scot’ was to be paid under penalty of draconian fines to be imposed by the king.!4° Provisions like these were characteristic features of the AngloSaxon laws. They served ecclesiastical objectives. Indeed considerable parts of the Laws of Cnut (d. 1035) were apparently written by Archbishop Wulfstan.!#1 It has been often noted that in the last century or so of Anglo-Saxon rule, royal legislation grew both in numbers and purpose. The amount of ecclesiastical legislation declined correspondingly. Recognizing some significance in this change, one does well to remember that the bishops had a hand in both. Unity of purpose and combination of function in legislation never implied that there was not a separate sphere for the canon law or that the church was simply an arm of royal government. God’s law bound rulers and clerics alike. It was the

responsibility of the church to proclaim that law and to attempt to secure its observance. Moreover, although laymen might be present at a ‘mixed’ council, it is probable that where purely ecclesiastical matters were discussed and decided the laymen present took little or no part.!42 The actors were aware of a distinction between different forms of legislation. The synodal decrees were compiled in Latin, not the vernacular of the king’s laws, and this itself marked them out from their secular counterparts. Even so, it is the lack of friction between church and royal government that stands out most prominently in the legislation of the time. EXTENT OF ECCLESIASTICAL LAWMAKING IN ENGLAND

Our knowledge of what happened in the ecclesiastical councils and synods that issued canons is limited, indeed sometimes non-existent, and it is quite possible that there was more activity (and more friction) than we can know. Only five of those councils convoked before 900 produced canons that have survived: Hertford in 672, Hatfield in 679, Clovesho in 747, the legatine synod of 786, and Chelsea in 816, and for many of the others we know of the existence of the council only because of the

survival of a charter that recorded a grant or a decision made during its sessions. We are ignorant about what happened in other councils. It must be said that in amplitude and in ambition, the laws of the Anglo-Saxon ecclesiastical councils we 140 Wi 16 in Liebermann, Gesetze, i. 12-13 [Laws, Attenborough, 26-7]; Af 5 in ibid. 50-1 [ Laws, Attenborough, 66-7]; Ine 4 in ibid. 90-1 [ Laws, Attenborough, 36-7]. 141 Dorothy Whitelock, “Wulfstan and the Laws of Cnut’ (1948) 63 EHR 433-52; Stenton, Anglo-

Saxon England (above n. 29), 453-4; Wormald, Making of English Law (above n. 31), 131-33 M. K. Lawson, ‘Archbishop Wulfstan and the Homiletic Element in the Laws of Athelred II and Cnut’ in The Reign of Cnut: King of England, Denmark, and Norway, ed. Alexander Rumble (1994), 141-64. 142 This is the conclusion of Cubitt, Anglo-Saxon Church Councils (above n. 59), 54-5.

38 THE ANGLO-SAXON CHURCH do have cut a poor figure when compared with the output of meetings held in Frankish Gaul and Spain.!43 There were fewer of them, they were more derivative

in inspiration, and their primary focus was placed upon internal problems of clerical discipline. The fragmented and disordered state of many aspects of early Anglo-Saxon political life is mirrored in the ecclesiastical laws. The Council of Hertford of 672, the first to be held for which specific provisions have been preserved, enacted ten canons. All were drawn in substance from the legislation of the first centuries of the church’s history, and almost all of them

dealt with the problems of disorder. Bishops were to be content in their own dioceses and not to invade those of other bishops; clergy were not to leave their own dioceses without episcopal permission, monks were not to wander unless their abbot had permitted them to leave the cloister. The council also stated that there should be an increase in the number of sees as the number of Christians rose, but immediate objections (probably the unwillingness of existing bishops to

give up any portion of their sees) required that the council be silent for the moment. The first canon endorsed the decision of the synod of Whitby about the date of Easter day; the last canon forbade incest and affirmed the indissolubility of legitimate marriages. No doubt these were the immediate problems as the bishops saw them, but it would be idle to speak of these ten canons as an achievement worthy of Archbishop Theodore who had convoked the Council. The laws of later Anglo-Saxon councils did improve on this record. The canons from Hatfield (679) were the product of a desire to gather support in the West to combat the Monothelite heresy. It scarcely dealt with local problems. However, the Council of Clovesho did. Convoked by Archbishop Cuthbert in 747, it enacted thirty canons. They attempted to secure a diligent and instructed clergy, regulate the times and contents of Christian worship, distinguish between the proper roles of clergy and laity, and improve the system of penitential discipline. The experience and correspondence of St Boniface, the great Anglo-Saxon missionary to the

Continent, stood behind these canons, but in the judgment of experts on the subject, they also reflected local concerns and needs.!44 That was also true of a legatine council held in 787. Mostly traditional in character, its canons went beyond those of the earlier councils. For example, they prohibited usury and required just weights and measures. They restricted inheritance by illegitimate children and ordered the just collection of tithes. Pagan practices were condemned.

Whether the canons of this (or any other synod) were effective in the round of daily life is hard to say. Little or no evidence of their enforcement has survived, 143 Walter Ullmann, ‘Public Welfare and Social Legislation in the Early Medieval Councils’ in Councils and Assemblies, ed. G. J. Cuming and Derek Baker (= 7 SCH; 1971), 2. 144 See Cubitt, Anglo-Saxon Church Councils (above n. 50), 104-22; Vollrath, Die Synoden (above n. 50), 149-58.

CANONICAL SOURCES AND LEARNING 39 and the range of activities they sought to regulate was restricted. Tithes, for example, are not treated as an obligatory payment in the Anglo-Saxon laws until almost two centuries later in the mid-tenth century.!45 The canons of the Council of Chelsea (816) were something like a ‘throw-back’ to the early Council of Hertford. Only eleven canons were enacted, and several of them either reiterated the old prohibitions against wandering by the clergy or restated traditional rules designed to secure order in the church. “No one of the race of the Irish’

(de genere Scottorum) was to be accepted to perform the sacraments, one canon stated, this prohibition being thought necessary because of ‘the uncertainty’ surrounding their ordination. Ecclesiastical property was not to be sold off or otherwise alienated. Priests and bishops were not to ‘invade’ parishes that did not belong to them. These canons were but variations upon old themes. The problems

must have seemed intractable and the principles in need of reiteration. The purpose of canons in the medieval church was as often to secure publicity for accepted legal rules as it was to introduce new ones. Except for the provision against the Irish clergy, this council did the former. Even that exception was a sign of a centuries-old sore that had not yet been completely healed.14¢ The Danish raids on England that followed shortly after the Council of Chelsea caused a measure of disruption in the English church. They led to a diminution in

the number of synods and councils that could be held, or at least in those that produced canons.!47 The bishops would certainly have had the opportunity for consultation at meetings of the Witenagemot all through the tenth and early eleventh centuries, and we must not imagine them as isolated and idle. This was not a time of inactivity in ecclesiastical affairs. The building of parish churches increased wherever it was feasible, and the vigour of movement for monastic reform led by St Dunstan and others is beyond doubting. The stirrings of a movement against

simony, clerical concubinage, and secular control of ecclesiastical affairs that occurred on the Continent were not without their counterparts in England. The ‘Constitutions of Archbishop Oda, from the 940s, for example, ordered the king and great men to ‘obey with all humility their archbishops and other bishops.!48 The warning was a reminder that the church might lead through its law. These stirrings left a mark even on the laws of the Anglo-Saxon kings, which were

produced in greater numbers than were synodal decrees between the early ninth century and the Conquest. The laws of Edgar, which appeared only twenty years later than Oda’s decrees, contained a provision very like that noted from the earlier 145 TT Eg 1:1 in Liebermann, Gesetze, i. 196-7 | Laws, Robertson, 16-17].

146 A case for continuing warm relations between the Irish and English churches is made by Kathleen Hughes, ‘Evidence for Contacts between the Churches of the Irish and English’ in England

before the Conquest (above n. 10), 49-67. 147 Vollrath, Die Synoden (above n. 50), 370-3. 148 C, & S. I, pt.1, 70: ‘cum magna humilitate suis archiepiscopis omnibusque altis episcopis obediant.

40 THE ANGLO-SAXON CHURCH collection: bishops were to be obeyed in those things which they commanded in God’s name.!49 The production of greater numbers of canonical collections was a marked feature of the life of the church on the Continent during the tenth and eleventh centuries, and that development may have had an impact in England. That question remains to be explored. For the moment, it is more sensible to turn briefly to the details of the laws of the Anglo-Saxon church. Several of them turned out to have a long-range impact on the development of the canon law in England.

SUBSTANTIVE LAW An age without courts that kept regular records is a difficult one for which to generalize about the enforcement of substantive law. The available sources give no more than occasional glimpses of the routine settlement of disputes, and descriptions of attempts to put law into effect are disappointingly thin on the ground. Of the church’s law it may be assumed, as has been assumed of the law of the Anglo-Saxon kings, that there was a ‘gulf dividing its exalted aspirations from its spasmodic impact’.15° This may be true, but it should not be left at that. In areas of law either repeated enactment or actual events show that men were thinking about what the canon law was understood to require. The evidence is

good enough to demonstrate that attempts to implement it were being made. A good case can be made that, already during the Anglo-Saxon period, certain elements that turned out to be crucial in the later development of ecclesiastical jurisdiction in England were either in place or being set on their future course.15! Tithes and Ecclesiastical Dues It was the achievement of Anglo-Saxon law to establish the principle that tithes and certain other customary offerings were owed as of right to the church and clergy. In this, the English church and kingdom followed the path of Continental law, even though the steps along it were not always identical. From a lawyer’s perspective, it was a limited achievement. What is missing from the story is any real development of law, or even any real thought, about the subject. The canon law of tithes developed over the course of the later Middle Ages was complex and impressive. Divisions between predial, personal, and mixed tithes; interpretive tools for evaluating and regulating tithing customs; a system of immunities and exceptions to the obligation; standards to clarify who the recipients of tithes were to be; distinctions between 149 TV Eg 1:8 in Liebermann, Gesetze, 1. 208-9 | Laws, Robertson, 32-3]: “quibus incessanter in cunctis

iustificationibus obedientes esse debemus’. 150 Wormald, Making of English Law (above n. 31), 300. 151 See e.g. Barbara Yorke, Wessex in the Early Middle Ages (1995), 238-9.

SUBSTANTIVE LAW Al ‘great’ and ‘small’ tithes; and rules about the collection and sale of tithes all stand out

in the sophisticated canonical literature that eventually emerged. None of this appears in the Anglo-Saxon record. The same can be said of the customary oblations that were made to the church by the laity. Questions about whether they were owed and to whom they were owed were dominated by local custom. A legal basis for making tithes compulsory was a part of the Anglo-Saxon church’s patrimony. Tithing was mentioned with approval in the Bible. Jacob promised to devote a tenth of what he received to God and God’s house (Gen. 28: 22), and the

Book of Leviticus spoke of a tenth of the fruits of land and flock as owed to the Lord (Lev. 27: 30-3). Church fathers, notably Ambrose, Augustine and Jerome, had encouraged their flocks to devote a tenth of their gains to what we would call religious uses.!52 A homily of Pope Gregory the Great spoke of the tithe as an obligation arising under the law, and Caesarius of Arles (d. 542) had said that a Christian’s

first duties included the giving of a tenth of the fruits of his assets to the poor and the clergy.!53

So far as one can tell, however, the payment of tithes remained a matter of free will during most of the early Middle Ages. If it was a duty, it was a moral duty. None of the ancient general councils of the church mentioned the tithe at all; taking legislative notice of it had to await the First Lateran Council (1123), and even that Council’s canon about tithes was drawn up only in the context of establishing episcopal supervision over receipt of tithes by the clergy.154 In the view of most students of the subject, the initiative which first made payment of tithes a matter of compulsion came from secular legislation, not from the law of the church. It was the Carolingian monarchy that first ordered its payment to the clergy. Before that (and even afterwards) the tithe was a pious and widespread custom, but no more.15° It could not be described as a mandatory tax, still less the land tax it was to become. Theodore’s Penitential contains the earliest English notice of tithing, unless one counts Gregory’s answer to Augustine’s question about how to share ‘the oblations of the faithful’ The Penitential’s judgments concern only to whom the tithes should be paid, however, making it impossible to say what the exact status of the tithe obligation was thought to be.15° Theodore’s lack of clarity about the payment of tithes as a legal obligation was not at all exceptional. A few other sources from the early years also suggest the regularity of tithing in the life of the church, but without providing any indication that it was thought of as an enforceable obligation.!57 152 See John Selden, A History of Tithes, ch. 5, no. 4,in The Works of John Selden, iii, pt. 2 (1726), cols.

1105-7. 153 Giles Constable, Monastic Tithes from their Origins to the Twelfth Century (1964), 18. 154 Decrees, Tanner, 1. 194.

155 The standard account is Paul Viard, Histoire de la dime ecclésiastique, principalement en France,

jusqu au décret de Gratien (1909). 156 Lib. II, tits. 2,14 in Haddon and Stubbs, iii. 191, 202-3. 157 John Godfrey, The Church in Anglo-Saxon England (1962), 326-7.

42 THE ANGLO-SAXON CHURCH However, a legatine synod from the second half of the eighth century went a little further than Theodore had. It ordered that ‘all men shall take care to give tithes from all they own’.158 Subsequently, the laws of Athelstan (d. 936) ordered that tithes be paid, although again in quite general terms, and those of Edmund (d. 946) purported to punish with excommunication any Christian who neglected to pay his tithes.159 The laws of King Edgar issued at Andover in 970 ordered the faithful payment of tithes, threatening the recalcitrant with the forcible taking of the amount owed. The taking would be done by the king’s and bishops’ reeve, acting together with the parson of the church involved.!© By the

tenth century, therefore, the tithe was being treated as an obligatory payment under Anglo-Saxon law. If one can safely conclude that the tithe became a legal obligation in the course

of the ninth and tenth centuries, it is much harder to say just exactly what the contents of the obligation were. It was a tenth, but a tenth of what? And to what exact purposes was it to be devoted? The ‘ancient rule’ of the church called for the

church’s revenue to be divided into fourths, equal parts being shared among the bishop, the parochial clergy, the poor, and the fabric of the church. Known as

quadripartition, this division would be included and apparently endorsed in Gratian’s Decretum (C. 12 q. 2 c. 28). The main alternative to it, omitting the share for the poor, was called tripartition. It was, for example, then the usage current in

Spain. The laws of Athelred (1014) appear to have endorsed tripartition,!® but these are virtually the only surviving description of the subject in England. No authoritative pronouncement has survived. What actually happened within English dioceses and parishes is impossible to reconstruct. It deserves recalling, however, that it was on the point of division of revenues that the letter of Pope Gregory to Augustine had left a decision open to reasoned choice

and local need. In Gregory’s view, there was no mandatory law on the subject beyond the principle that tithes should be collected and used for the sustenance of the clerical order. There might be change over time in how that duty was fulfilled, and there could also be local variations at any one time. The needs of particular churches and the abilities of particular places might easily vary, and it made sense not to attempt to force a rigid system on them. This fluid description fits the English evidence tolerably well. The Life of Wilfrid spoke of the bishop’s share of tithes as if it was then a reality.!® It may have been 158 ¢, 17 in Haddon and Stubbs, iii. 456-7: ‘[P]raecipimus, ut omnes studeant de omnibus quae possident decimas dare’.

159 T As 2-33 I Em 2 in Liebermann, Gesetze, i. 147, 185 [Laws, Attenborough, 122-3; Laws, Robertson, 6-7]. 160 TV Eg 1:3 in ibid. 206-7 [ Laws, Robertson, 30-1]. See generally H. R. Loyn, Anglo-Saxon England and

the Norman Conquest (2nd edn, 1991), 263-6. 161 VIII Atr 6 in ibid. 264 [Laws, Robertson, 120-1]. 162 Eddius Stephanus, Life of Wilfrid (above n. 33), ch. 65.

SUBSTANTIVE LAW 43 true when the Life was compiled, but at some point, reserving a share for the bishop passed out of general use. The assumption came to be that the tithe was owed to the rector of each parish, to be treated as an ordinary source of revenue and used for purposes consistent with his interest in the benefice. That is what the

tithe eventually became in England, although the gradual steps by which that process must have occurred cannot now be traced. There is no sense attempting to fill in the blanks. The persistent, if not the only, theme of Anglo-Saxon legisla-

tion, both temporal and spiritual, was simply that the tithe must be paid. According to the reasoning of King Edgar’s legislation of the mid-tenth century, widespread failure to pay tithes had caused the land to be visited with plague.!® Hence came his order. Other church dues were of a piece with tithes in this respect. The laws and injunctions issuing from king and church required their payment, but said very little more about either the justification for them or the details of their collection. Obviously they were customary in nature—some of them perhaps a relic of the pagan past—and it was (and is) hard to generalize about them. They were subject to local variation and perhaps even to sporadic collection. Several are mentioned in the Anglo-Saxon laws: ‘plough alms’ or a penny paid on the farmer’s plough at Easter; ‘soul-scot’ or a fee taken by the clergy for burials; “church-scot’ or a fee payable from every agricultural holding in the fall; “Rome-scot’ or “‘Peter’s pence’ payable to the apostolic see.!& The origins of all these customary oblations are obscure, and their status under the classical canon law questionable. The ‘soul-scot’ that became the mortuary in later English practice came very close to the thin line that separated simony from lawful custom involving the payment of money to the clergy. The ‘church-scot’ and the tithe apparently overlapped, if they did not in fact duplicate each other. Could both be required? Or did payment of one discharge the other. It was hard to say. One searches in vain for answers, or even discussion, of these subjects in the sources of the time. That would come in due time. But a principle was none the less being established. That was plain enough. The clergy had a right to payments from the laity that were based upon immemorial custom. When a system of spiritual courts came into being, the courts would entertain suits called causae subtractionis 1uris ecclesie to collect customary payments due to the clergy. Had they been so minded, defenders of the system of ecclesiastical justice could easily have cited Anglo-Saxon precedent in support. 163 TV Eg1in Liebermann, Gesetze, 1. 206—7 | Laws, Robertson, 28-9].

164 On the status of Peter’s Pence during the Anglo-Saxon period, see William E. Lunt, Financial Relations of the Papacy with England to 1327 (1939), 3-30; H. R. Loyn, “Peter’s Pence, Annual Report, Friends of Lambeth Palace Library (1984), 10-29. See generally William Chaney, ‘Anglo-Saxon Church Dues: A Study in Historical Continuity’ (1963) 32 Church History 268-77.

44 THE ANGLO-SAXON CHURCH Marriage and Divorce Like the law of tithes, the classical canon law turned out to contain a complex body of rules regulating entry into and exit from marriage. Provisions about the interpretation of the words used to contract marriage, distinctions between void and voidable marriages, and even attempts to balance the rights and responsibilities of husbands and wives within existing marriages would occupy the attention of councils and canonists. The law of the Anglo-Saxon church knew little or nothing of this. The earliest laws treated marriage, at least in form, as a kind of sale.1® And a “Tract on Betrothals’ composed early in the eleventh century was entirely silent about the rules of interpretation that would later be the central concern of the classical canon law of marriage.!©© What the church did have to come to grips with, however, were the problems raised by the coming together of a Germanic society and four points of principle the church had espoused, admittedly with some hesitation, almost from its inception: the indissolubility of Christian marriage, the desirability of clerical regulation of

marriages, the establishment of a measure of individual freedom for men and women in entering marriages, and the prohibition of marriage between men and women closely related to each other by ties of blood or marriage. These principles coincided poorly with the mores of the heathen Anglo-Saxons. They also differed from the permissiveness and essentially private nature of the Roman law of marriage. In consequence, there were difficulties and hesitations at first, and they did not quickly go away. But like the position of women before the law,!©” some forward movement occurred. INDISSOLUBILITY AND FREEDOM IN MARRIAGE

The principles of freedom of choice in marriage and that of the indissolubility of marriage were regarded as subject to compromise in the first centuries of the Anglo-Saxon church's existence.!°8 At least so the decisions look if one assumes the bishops themselves would have preferred the rigorist position at which the canon law ultimately arrived. The same is true of the church’s desire to promote clerical participation in the formation and regulation of marriages. Pressure was intermittent and success far from complete. Moreover, this was not an area where the clergy alone spoke, or even where they spoke with one voice. As in several 165 Abt 31, 77 in Liebermann, Gesetze, i. 5, 7 [Laws, Attenborough, 8-9, 14-15]. 166 CL & S. I, pt. 1, 427-31.

167 See Anne Klinck, ‘Anglo-Saxon Women and the Law’ (1982) 8 JMH 107-21. 168 For guides to the subject, see Liebermann, Gesetze, 11. 2, s.v. Eheschliessung, H. D. Hazeltine, “Zur Geschichte der Eheschliessung nach angelsachsischem Recht’ in Festgabe fiir Dr Bernhard Hiibler zum 70. Geburtstage (1905), 249-84; Margaret C. Ross, “Concubinage in Anglo-Saxon England’ (1985) 108 Past e& Present 3-34.

SUBSTANTIVE LAW AS areas of Anglo-Saxon law, both royal and ecclesiastical authorities purported to state rules for marriage. The church’s exclusive competence over the law of marriage and divorce, which would later be admitted on all sides, would emerge only gradually. The Responsiones of Pope Gregory to Augustine provided the starting-point. They contained what a modern writer called “curious inconsistencies and halting

assertion of principle. By this he meant that they did not state the full canon law.!69 Conversion of the Anglo-Saxons came first; fuller implementation of the church’s law second. This pattern was continued. The laws of Athelbert envisioned the ‘sale’ of a maiden in marriage, at least ‘if there [was] no dishonesty in the bargain’!”° Theodore’s Penitentiale imposed penance upon the husband who dismissed his wife and took another, but the second marriage was not treated as invalid.!71 A man whose wife had committed adultery was free to marry again; even the guilty woman could do so after five years penance.!72 Desertion for five years by a wife who ‘despised’ her husband furnished just cause for divorce and remarriage ‘with the consent of the bishop, and divorce by mutual consent was also admitted.173 Theodore’s law of marriage, if that is not too strong a term, possessed the hallmarks of pastoral care, with some of the compromises inevitably

entailed. It contained a statement of the freedom to marry that women should enjoy under the law of the church, but it added that before they reached the age of 16 or 17, they remained within the power of their parents.!”4 Whether this choice was a product of good sense or a reluctant compromise with reality, it was not what the canon law would come to hold. Marriage played a lesser role in enactments of Anglo-Saxon councils, both secular and spiritual, than it would in either the later canon law or the records of litigation of the English church. It is not easy to know what actually happened. The treatment of marriage in the “Dialogue of Egbert’ from the second half of the eighth century combined a strong statement of principle with a prudent tempering in practice. In doubtful matters, it stated, no sentence was to be given to compel recognition of the principle of indissolubility. This was a cause for lament, but it often happened that evil times compelled some bending of the ancient law.175 A letter from Pope John VIII to Archbishop Athelred (c.878) stated the prohibition against divorce and remarriage in terms emphatic enough to make one suppose that practice in England had not recognized it, much less fully enforced it.17° The Constitutions of Archbishop Oda and the laws of King Edgar from the tenth 169 'T. A. Lacey, Marriage in Church and State (1947), 114. 170 Abt 77 in Liebermann, Gesetze, i. 7 | Laws, Attenborough, 14-15]. The Sermo Lupi ad Anglos from

the early eleventh century suggests that the purchase of women had not entirely died out even then.

See EHD, i, no. 240 (p. 857). 171 Lib. I, tit. 14, c. 8 in Haddon and Stubbs, iii. 188. 172 Lib. II, tit. 12, c. 5 in ibid. 199. 173 Lib. I, tit. 12, cc. 19, 7 in ibid. 200, 199. 174 Lib. II, tit. 12, c. 36 in ibid. 201-2. 175 Interrog. XIII in ibid. 409. 176 C. & S. FE, pt.1, 5.

46 THE ANGLO-SAXON CHURCH century, though much concerned with the law of the church, both remained silent on this subject, except for a prohibition in the former against marrying nuns, kin, and ‘other unlawful persons.!77 Arrival of the eleventh century witnessed some hardening of attitude among the authorities, and perhaps even some improvement in the customs prevailing among the Anglo-Saxons. For example, the laws of Cnut stated that no woman should be compelled to marry a man she disliked or sold for money and also that no Christian man should ever ‘have more wives than one’.!78 The collection of canons made by Archbishop Wulfstan stated both the rule of freedom in con-

tracting marriages and the prohibition against dissolving legitimate unions, although it seems to have recognized the possibility of divorce by mutual consent and to have hesitated about the difficult problem of what to do when one spouse

was taken captive and the other did not wish to wait forever before finding another spouse.!79 The ‘Northumbrian Priests’ Law’ (1008 X 1023) flatly forbade

men to marry more than once during the lifetime of their legitimate wives, although it also left some room open for men ‘to atone for’ violation of the church’s law if they did.18° Archbishop Wulfstan’s Sermo Lup1 (c.1014) used the

harshest terms to describe the habitual neglect of proper matrimonial practice that prevailed among the English.!8! Thus it is difficult to assign a date for general

acceptance of the church’s law of marriage forbidding consensual divorce and remarriage. Under one lens, any date chosen will be too soon. Its observance was said to be a matter of uncertainty at York after the Conquest, and it would be possible to put the date much later.182 Probably the most that one can honestly say about the situation during this era is that clear statements were being made that a Christian marriage should be entered into without constraint, and also that once entered, it could not be undone at will. THE PROHIBITED DEGREES

If one had to judge by the quantity of remaining evidence alone, one might say that the leaders of the Anglo-Saxon church cared more about the prohibited degrees

of affinity and consanguinity than they did about the principle of marriage as a lifelong union. Bede blamed Eadbald, son of Athelbert, as much for following Germanic custom in marrying his stepmother as for not embracing Christianity, 177 C. & S. I, pt. 1, 72: ‘cum aliis inlicitis personis. 178 TT Cn 74; I Cn 7:3 in Liebermann, Gesetze, 1. 360—1, 290-1 [ Laws, Robertson, 212-13, 162-3]. 179 ec, 125-35 in Wulfstan’s Canon Law Collection (above n. 104), 135-52. See also Dorothy Whitelock, The Beginnings of English Society (1952), 149-52.

180 Northu., cc. 61.2, 64, 66 in Liebermann, Gesetze, i. 384—5 [ EHD, i. 438-9]. 181 FHD, i. 854-9. 182 Letters of Lanfranc, no. 23, answering the question from the archbishop of York with an emphatic statement of the illegality, but hesitating about the case in which the man denied the existence of the first marriage.

SUBSTANTIVE LAW 47 and when Eadbald changed his mind, Bede treated his dismissal of his ‘unlawful wife’ as a matter only to be expected from so depraved a man.!83 The Laws of Whitred (693 X 731) prohibited ‘living in unlawful intercourse, and the legatine synods later in the eighth century prohibited all ‘unlawful and incestuous unions,

although the exact definition of the unlawful degrees of kinship was assumed rather than stated explicitly.184 However, the ‘Northumbrian Priests’ Law’ stated the prohibition in the terms that would later be the norm: spiritual affinity and a relationship closer than the fourth degree. It denied “Christian burial and God’s mercy to those who violated the prohibition; apparently the concept of nullity of marriage had not been fully assimilated.185 Most historians who have looked at the question have concluded that compliance with this aspect of the law of the church was slow to come. Strong evidence supports that view. In part, the slowness was the fruit of ignorance. St Boniface expressed surprise when he learned that ‘spiritual kinship’ was created by lifting a child from the baptismal font and was being treated as an impediment to marriage among the Franks.18° But it was the law. Slowness also came from attachment to old ways. Letters from the archbishop of Reims to King Alfred (c.890) reproached him for

permitting the continuation of pagan habits in contracting marriages between kin.187 Change in such habits was difficult to effect. The laws of King #thelred issued in 1014 and drawn up by Archbishop Wulfstan, bemoaned the existence of so many breaches of the marriage law in England.188 Of course, the church itself had not always been entirely of one mind on the prohibited degrees. Some of the rules against marriage between those related by blood or marriage were stated in quite vague terms. Archbishop Oda’s ‘Constitutions, as already mentioned, forbade marrying ‘cognates or other unlawful persons’.!89 Papal letters exhorted their English recipients not to marry ‘within their own kindred’!%° They said nothing about how near the kinship had to be or how unlawfulness was to be defined.

Precision would have been hard to reach. A different method of reckoning degrees of affinity and consanguinity prevailed among Germanic peoples than that which obtained in Rome, and it is not always clear in the Anglo-Saxon sources which of the two was intended. Even Theodore’s Penitential set them out uncertainly. Among the Greeks, it stated, it was lawful to be joined in the third degree, among the Romans in the fifth.!9! The laws of 4Athelred, by contrast, 183 Bede, HE, bk. II, cc. 5-6. 184 ¢, 3 (Whitred), and c. 15 (legatine) in Haddon and Stubbs, iii. 234, 455. 185 Northu., cc. 61-2 in Liebermann, Gesetze, i. 384 [ EHD, 1. 438]. 186 Dye Briefe des heiligen Bonifatius und Lullus, ed. Michael Tangl (MGH, Ep. Select. 1, 1916), no. 32, trans. in part in EHD, i. 751-6; see Bernhard Jussen, Spiritual Kinship as Social Practice (2000), 15-17.

187 FHD, 1, no. 223. 188 c.24in C. & S. I, pt. 1, 356. 189 C. & S. I, pt. 1, 72: ‘cognatis vel cum aliis inlicitis personis’. 190 Letter of Pope Leo IV (853) and Pope John VIII (877/78) in EHD, i, nos. 219, 222 (pp. 810-13).

48 THE ANGLO-SAXON CHURCH stated that ‘six degrees of relationship [meant] within the fourth knee’.!9? But the easily used and detailed Arbores consanguinitatis and Arbores affinitiatis that permitted accurate and easy computation of the prohibited degrees would only appear once the law of the church was stabilized in the thirteenth century. One other part of the law prohibiting unlawful marriages requires brief mention: the attempt to enforce celibacy among the higher clergy. The notion that men and women devoted to the service of God should keep themselves free from all sexual entanglements went back to the early days of the history of the church. The Council of Nicaea (325), for example, had forbidden bishops, priests, and deacons from introducing into their houses any woman except a mother, sister, aunt, or other person beyond suspicion.!93 Married clergy were required to put aside their wives, or at least to refrain from sexual relations with them, before proceeding to major orders. Celibacy was the goal. In the eyes of the strict, concubinage among the clergy did not change its spots by calling it marriage. The rule was repeated with a regularity it would be tiresome to explore. 4lfric’s Pastoral Letters repeated the Nicaean canon virtually word for word,!%4 and the legislation of the Anglo-Saxon kings called for due observance of the old rule. The ordinances of King Edmund (946), for instance, required the clergy to observe the rule of celibacy as “befitting their estate, threatening violators with the consequences ‘ordained in the canon’! The true problem lay in securing some level of enforcement of the prohibition. It was long customary in Anglo-Saxon England, as was true elsewhere on the Continent, for the clergy to take wives, and the practice was not quickly or easily

dislodged. Benefices passed from father to son. The hereditary ecclesiastical benefice outlasted the Norman Conquest. The defenders of this matrimonial regime were not themselves without arguments. For one thing, custom exercised a force of its own under the law, and custom was on their side. The canon law itself would admit some customs even though they were contrary to one or another of its texts. Why draw the line here? The burden, they said, rightly rested with the moralists. There was more. St Peter, chief among the apostles, was a married man. The Anglo-Saxon clergy might be said to be following his example. Although it was replied that Peter had put aside his wife when he devoted himself to the Gospel, hard evidence to show the dismissal had taken place was not easy to come by. Moreover, St Paul himself had said it was better to marry than burn (1 Cor. 7: 9), and the clerics found themselves in exactly that dilemma. They had (they said) simply followed Paul’s advice.

191 Lib. II, tit. 12, c. 25 in Haddon and Stubbs, iii. 200-1. 192 VJ Atr 12 in Liebermann, Gesetze, i. 250-1 [Laws, Robertson, 94-5]. 193 ¢, 4 in Decrees, Tanner, 1. 7. 194 Letter 2, no. 86, in Die Hirtenbriefe Alfrics (above n. 103), 45. 195 T Em 1in Liebermann, Gesetze, i. 184—5 [ Laws, Robertson, 6-7].

SUBSTANTIVE LAW AQ We do not know how widespread clerical marriage was in any statistical sense, and the extravagant language used by the reformers in denouncing this practice can easily create the impression that clerical families were more common than they may have been in reality. Even so, that impression cannot be wholly false. When the reformers of the tenth century sought to enforce a monastic rule upon the old minster churches, they did find a married clergy serving there. We know this because the reformers gave the incumbents the choice between their wives or their places in the church. Most chose their wives. Progress was slow. A will of the early eleventh century made an unabashed devise of property to a priest ‘and to his issue, so long as they are in holy orders’.!9° The ‘Northumbrian Priests’ Law’ assumed that a priest would live with a woman, penalizing him if he deserted her

and took another.!9”? Even a bishop serving at the Conquest (Leofwine of Lichfield) lived openly with his wife and children.198 It was with difficulty he was induced to resign. When Archbishop Lanfranc addressed the problem of clerical celibacy more generally, he prudently ordered only that priests should be prohibited from taking wives in the future. The priests who were already married would

not be required to dismiss their wives,!99 and it would take strenuous efforts during the twelfth century before the ancient norm of priestly celibacy came to prevail in fact.?° SEXUAL AND MATRIMONIAL OFFENCES

Attempts to ferret out and correct sexual offences committed by men and women were to play a large part in the juridical life of the English church. On that account, if no other, it is sensible to mention what evidence there is about the subject in the Anglo-Saxon period. There turns out to be quite a bit of evidence, although like canon law more generally during Anglo-Saxon times, little of it relates to actual enforcement of prohibitions in the form of court proceedings. It is enough to say

that a later defender of this aspect of the English church’s jurisdiction—and similar jurisdiction did not exist everywhere in the medieval church—could have pointed to an Anglo-Saxon past as its legitimate foundation. The church’s interest in the subject was announced from an early date. An eighth-century letter from the great missionary St Boniface to King #thelbald of Mercia decried the sexual lasciviousness that was (he said) characteristic of the English race. He demanded amendment. The letter would become famous enough that the relevant part was 196 Will of Siflaed in Anglo-Saxon Wills, ed. Dorothy Whitelock (1930), no. 37. 197 Northu., c. 35 in Liebermann, Gesetze, i. 382 [ EHD, 1. 437]. 198 Leofwine, bishop from 1053-70, either gave up his see or was deposed, apparently upon demand of the papal legates at the Council at Winchester. See Letters of Lanfranc, no. 2; C. & S. I, pt. 2, 565. 199 Council of Winchester (1076), c.1 in C. & S. F, pt. 2, 619.

200 The classic account is C. N. L. Brooke, “Gregorian Reform in Action: Clerical Marriage in England, 1050-1200’ (1956) 12 Cambridge Historical Jnl 1-21.

50 THE ANGLO-SAXON CHURCH incorporated into Gratian’s Decretum (Dist. 56 c. 10).2°! Incest was also declared a crime, and bishops were given a say in fixing the proper form of its punishment.2© Letters written by prominent ecclesiastics to secular rulers asserted an implicit claim to judge sexual transgressions of the laity.2° However, some of the surviving evidence points, at best, to a jurisdiction fit only for application in the penitential forum. Indeed, it requires an effort of will on the part of a modern reader to think that some of the conduct proscribed could have been made the effective subject of legal regulation of any sort. Theodore’s Penitential required men who had slept with their wives to wash before entering a church and it prohibited them from seeing their wives naked.2°4 Other provisions described extensive periods during which no sexual intercourse was permitted in marriage, and rules penalizing various forms of sexual ‘pollution’ were not uncommon.?°° Just as would be true later, however, most of the attention of the Anglo-Saxon church in this area of human life was devoted to offences against the church’s rules about monogamy and chastity. It is a telling point that it was in the ‘barbarian laws’ that spiritual grounds for prohibitions against incest were first articulated, and the situation in England made no exception. Adultery became a crime. There was at least one difference. By contrast with later practice, simple fornication does not figure among offences dealt with in the legislation. With this exception, the substance matched closely the jurisdiction that would come to be closely associated with the church’s ex officio jurisdiction right up to the abolition of episcopacy in the 1640s. Like much of the ecclesiastical law of the Anglo-Saxons, the subject was shared between spiritual and temporal law. With adultery at least, it was never entirely clear whether it was a secular or spiritual wrong. Perhaps it was both. The earliest Anglo-Saxon laws, those of Athelbert of Kent, set the penalty for adultery with the wife of a freeman at payment of the wergeld, requiring also that he find another wife for the wronged husband.?° King Alfred’s legislation required

a ‘betrothed maiden who commits fornication’ to pay compensation for her offence.2°8 The later laws of Cnut contained a prohibition of adultery and provided a list of penalties to be imposed upon men and women who committed it, though 201 Die Briefe (above n. 186), no. 32. 202 e.g. ‘Laws of Edward and Guthrum; c. 4 (1002 X 1008) in C. & S. J, pt. 1, 307. 203 See Ross, ‘Concubinage’ (above n. 168), 25-6. 204 Lib. II, tit. 12, cc. 29-30 in Haddon and Stubbs, iii. 201. 205 e.g, Egbert’s Penitential, tit. 7 in Wasserschleben, Bufsordnungen (above n. 114), 238-9. 206 Elizabeth Archibald, Incest and the Medieval Imagination (2001), 31-2. 207 Abt 31 in Liebermann, Gesetze, 1.5 | Laws, Attenborough, 8-9]. This has been a problematic text;

see e.g. Theodore John Rivers, ‘A Reevaluation of /Athelberht 31 (1976) 93 ZRG, Germ. Abt. 315-18; Rivers, ‘Adultery in Early Anglo-Saxon Society’ (1991) 20 ASE 19-25.

208 Af 18:1-3 in Liebermann, Gesetze, 1. 58-61 [Laws, Attenborough, 72-3]. See generally Marc A. Meyer, “Early Anglo-Saxon Penitentials and the Position of Womer’ (1990) 2 Haskins Soc. Jnl 47-61.

SUBSTANTIVE LAW 51 they did leave some room for the exercise of the bishop’s judgment about the severity of the penalties.2°

Testaments The law of succession came to be the most lucrative, and perhaps also the most socially significant, aspect of ecclesiastical jurisdiction in England. It was also a subject of natural interest to the men like Augustine and Theodore when they came from the Continent to lead the Anglo-Saxon church. Testaments and ancillary matters were a centrepiece of the Corpus iuris civilis. Encouraging the giving of alms at a Christian’s death also had an obvious and immediate importance to the clergy. They would have looked with expectation upon the imperial law that granted a special commission to bishops to see to it that pious legacies and gifts were carried into effect (Cod. 1.3(6).45(44) ). The provision was to be echoed in the classical canon law (X 3.26.4). If the Anglo-Saxon landboc, which permitted perpetual gifts of land to be made to churches, was a product of the initiative of the church, as one expects, it would be natural to see at least in the Anglo-Saxon record a seed from which the English church’s probate jurisdiction might grow. That is indeed what one does see. But it was a small seed, very far from a ‘probate system’ or a serious attempt to replicate the Roman law of testamentary succession. Alfred’s laws, for example, assumed that men of substance would die testate, unless they were negligent or taken suddenly from life.2!° However, the means by which their testaments would be treated were different in material ways from the system of succession that prevailed at Rome or indeed from that which came to prevail in later medieval England. Two of the most characteristic features of later English law were no part of Anglo-Saxon law. First, no separate testamentary jurisdiction was placed in the hands of the church. Disputes about dispositions of property made at a man’s

death occurred; some of them would be discussed in ecclesiastical synods.?14 However, the leading student of the subject discovered only an ‘ecclesiastical orientation’ to the assemblies where these “will contests’ were held, and he found also that this ‘orientation’ itself decreased markedly as the eleventh century approached.?!2

Second, the law of this early period gave only the barest indications of the fundamental division between lands and chattels that would be made later and would become the dividing line between the jurisdiction of courts of church and state. The Anglo-Saxons of course recognized the difference between these two 209 TI Cn 53-4 in Liebermann, Gesetze, i. 348-9 | Laws, Robertson, 202-3]. In Kent, the penalties for

the commission of adultery at the time of Domesday book were shared equally by the king and the archbishop. See Loyn, Anglo-Saxon England (above n. 160), 269. 210 TI Cn 70 in Liebermann, Gesetze, i. 356-7 [ Laws, Robertson, 208-9]. 211 Will of Oswulf (810) in Haddon and Stubbs, iti. 567-8. 212 Michael M. Sheehan, The Will in Medieval England (1963), 63-4.

52 THE ANGLO-SAXON CHURCH types of property,?!> and the wills that remain from the time do more often deal with personal property than with land. However, no firm jurisdictional divide between church and state existed, and death-bed dispositions of property sometimes embraced both lands and chattels.2!4 The relative prominence of chattels over land in surviving Anglo-Saxon wills may be better explained by the greater importance of land as family property than by the existence of a jurisdictional division. Personal goods were ‘most completely’ the decedent’s own and hence more easily susceptible of bequest. Bequeathing them was widely expected. Bequests of chattels may have shaded into the giving of alms in preparation for death. Land, being ‘family property’ in a strong sense, naturally came more slowly and uncertainly to be made subject to testamentary disposition. However, Anglo-Saxon law did not forbid devises of land. The interest of the church in securing land and the revenues that came from land was great. Men sometimes desired to allow land to pass outside the control of the family, and its devise became possible under some circumstances before the Conquest. Indeed, in 1066 Harold’s representatives are said to have told Duke William that this had been the custom among the English from the time of St Augustine.2/5 Later removal of the power of devise was resented by the clergy.2!¢ It is not hard to see why. The well-being of the church depended on the income from land that had

come to it by testament. Virtually all the recorded devises of land that have survived have some connection with a church. Usually it was a church that benefited from the terms of a will. Possibly this reflects only the greater ‘survival rate’ of ecclesiastical archives. Devises to laymen may simply have perished over the centuries. But the ecclesiastical character of the surviving gifts at death remains certain. It is suggestive of a spiritual connection natural for a man totting up his faults and settling his obligations as he faced death. Whether classical lawyers would have regarded most of the deathbed dispositions of the Anglo-Saxons as having been made as gifts inter vivos, gifts causa mortis, or as

nuncupative testaments is not an easy question to answer. It may be an idle one, seeking precision in thought where there was none at the time. Something like the same imprecision in the language used by the Anglo-Saxons themselves has haunted

attempts to come to terms with the character of dispositions available under the early law of wills. Historians have none the less made a threefold distinction. There was the post obit gift, the transaction settling what would happen to property that 213 See T. M. Charles-Edwards, “The Distinction between Land and Moveable Wealth in Anglo-Saxon England’ in Medieval Settlement: Continuity and Change, ed. P. H. Sawyer (1976), 180-7. 214 See Sheehan, The Will (above n. 212), 83-106.

215 The Gesta Guillelmi of William of Poitiers, ed. R. H. C. David and Marjorie Chibnall (1998), 118-19.

ns See, e.g. The Book of the Foundation of Walden Monastery, ed. Diana Greenway and Leslie Watkiss

(1999), 144-5; the monastic author described the restriction as contrary to the law of God.

SUBSTANTIVE LAW 53 was as much a contract as a testament. There was the deathbed gift uttered by the verba novissima which were near to the final utterance of a decedent. And there was the cwide, the more solemn disposition of most if not all of a man’s property after his death, usually made in the presence of the king or other important persons.?!” Every study of the subject has, however, perforce admitted a large degree of overlap between these categories when they have examined the wills that have survived. It is not always easy to classify them today; we have no assurance that there was a regular system of classification in place at the time. Much succession law was in any event a part of Anglo-Saxon England’s Germanic inheritance and therefore, at least when considered according to established norms of German scholarship, belonging to a different strand of legal history than the canon law and the testament. One sees the importance of this separation from civilian ways of thought in many details. For example, the ambulatory character of a Roman testament appears not to have played a role in the Anglo-Saxon law of wills, as it would once the ius commune had laid its hand on English testamentary law and practice. Even the revocability characteristic of a civilian testament is not certain to have been any part of Anglo-Saxon practice. Some wills were expressly made subject to revocation, but exactly what did such a provision mean??!8 That they were of a special character? Or that the rule of revocability had simply been put into words? Similarly, mention of the executor who was to play such a large role in later testamentary law of England is conspicuously absent from Anglo-Saxon wills.?!9 Perhaps the witnesses to the cwide were meant to help secure enforcement of the decedent’s last wishes. Occasionally, a will lays a special responsibility on one man or two to secure its implementation. That must have been a realistic thing to do. Most wills, however, simply invoked God’s wrath on those who might seek to vary the last wishes they expressed: ‘He who detracts from this disposition, may God deprive him of the kingdom of Heaven’. Language like this was a common testamentary malediction.22° Was it a concession that no effective earthly sanction existed? So it now seems. In one clear respect, however, there is a connection to be made with later practice in the English ecclesiastical courts. That is the importance accorded to the verba novissima. What had been said by the dying man is what counted. No writing was required. No notaries were present. It was enough that there be witnesses who could testify to what his final words had been. The eighth century “Dialogue of Egbert’ directed the clergy to take two or three witnesses to the bed of a dying man so that 217 Sheehan, The Will (above n. 212), 24-47. 218 See H. D. Haseltine in Whitelock, Anglo-Saxon Wills (above n. 196), pp. x—xill; Kathryn A. Lowe, ‘The Nature and Effect of the Anglo-Saxon Vernacular Will’ (1998) 19 JLH 23-61, esp. 36-41. 219 R.J. R. Goffin, The Testamentary Executor in England and Elsewhere (1901), 35-7. 220 Will of Thurkil and #thelgyth (c.1050), in Whitelock, Anglo-Saxon Wills (above n. 196), no. 36.

54 THE ANGLO-SAXON CHURCH his last words could be heard and later reliably established.22! Written wills among the Anglo-Saxons were regarded as evidence of what a testator had intended, not as the dispositive act itself, and this view would long prevail in English law.222 Hence

the centrality of what the witnesses had heard. The church lent its support to continuation of this Germanic practice: a man’s last wishes consisted of the words spoken by the testator at the end of his life. This would lead to the acceptance of rules that would have seemed strange to a Roman lawyer. It would allow an oral

declaration to revoke a written testament. What would matter to the English ecclesiastical courts was what the testator had truly intended, not necessarily what his testament contained. Two additional points connect Anglo-Saxon law with later practice. Both are problematic but full of interest. First, Bede’s account includes a story of a division of a man’s estate into thirds: one reserved for his wife, one reserved for his issue,

and one subject to disposition by will.223 This was a customary division that prevailed long afterwards, particularly in the north of England. It was made and enforced in the courts of the church. Bede’s account is almost the only such piece of evidence remaining from the Anglo-Saxon period, and it may be no more than a story of the choice of one man. But the coincidence between its division into thirds and later practice has long been tantalizing enough to raise the possibility of a link between Anglo-Saxon times and later testamentary practice.??4 Second, there is the married woman’s will. Many have survived from this early

period. It may be right to assume that English law’s prohibition—no married woman could bequeath property without her husband’s consent—was the product of a later time.225 It cannot be more than supposition, however. A sliver of evidence also suggests the antiquity of the later prohibition. Wives frequently made wills jointly with their husbands, and express permission by the husband was mentioned in one early will made by a married woman alone.??¢ In all, the numbers are too small and the meaning of many early wills too uncertain to inspire confidence that a definite rule on the subject had come into being.??”? The absence of specific Anglo-Saxon legislation on the subject only compounds the uncertainty. 221 Interr. II, in Haddon and Stubbs, iii. 404. 222 This is the theme of the “General Preface’ by H. D. Hazeltine in Whitelock, Anglo-Saxon Wills (above n. 196), pp. vii—xl.

223 Bede, HE, bk. V, c. 12. In the will of 4lfeh (late tenth century), a division into thirds was mentioned, but two of them went to churches, the other to his widow. See Essays in Anglo-Saxon Law

(above n. 40), 350—4. 224 Pollock and Maitland, ii. 314. Sheehan, The Will (above n. 212), 14. 225 Essays in Anglo-Saxon Law (above n. 40), 108.

226 Will of Thurgunt, as quoted in Sheehan, The Will (above n. 212), 71 (taken from Chronicon abbatiae Ramenseiensis (= 83 RS; 1886), 175.

227 Julia Crick, “Women, Posthumous Benefaction, and Family Strategy in Pre-Conquest England’ (1999) 38 Jnl British Studies 399-422; Victoria Thompson, ‘Women, Power and Protection in Tenth- and Eleventh-Century England’ in Medieval Women and the Law, ed. N. J. Menuge (2000), 1-19, at 9-16.

SUBSTANTIVE LAW 55 Church and Clergy That Anglo-Saxon law recognized no deep divide between law for the clergy and law for the laity never meant that it recognized no distinction at all. Indeed, clear statements about the differences between the status and rights of the two orders surface frequently in the remaining evidence.?28 They coexisted alongside a more

general assumption that both groups were subject to the authority of both the temporal and the spiritual laws. No fixed line was drawn in fact. With that caveat, it can be said that most of the sentiments that would later become a full-fledged programme of clerical liberty can also be found expressed here or there among the Anglo-Saxon sources. Four sentiments can be discerned. First, the church itself should be free. By this was meant some kind of freedom from secular obligations. Second, in their persons the clergy should enjoy a special legal status, including a certain degree of exemption from temporal jurisdiction. Third, some kind of division in legal jurisdiction should be made between the secular and temporal spheres. There should be an area of the church’s life where lay assemblies could not intrude. Fourth, spiritual men should not be required to assume any lay office—serving as a judge of the king for example. Indeed, they should not be permitted to do so at all. These four aspects can be taken up in order. Magna Carta (1215) was not the first proclamation by an English king that the ecclesia anglicana would be guaranteed its freedom. ‘Ecclesiastical liberty’ or some close variant of the term appears repeatedly in royal grants and in the laws themselves.?29 But what did ‘liberty’ entail in AngloSaxon law? It might mean something like a right in the clergy not to be dismissed from a benefice without the consent of their bishop.23° Or it might mean that the right of sanctuary in churches should be respected.23! The idea, in other words, could be more than a platitude. But to ascribe a fixed meaning to it would be to say too much. In the context of Magna Carta, the freedom guaranteed to the church stated a general principle: the church should be able to regulate its own affairs without permission or control of the king’s ministers, and the principle was related most specifically to episcopal elections. The electors, usually consisting of a cathedral chapter, should be able to choose their bishops without direction or interference by the king. Occasionally, this same linkage of ecclesiastical liberty to free choice 228 See H. R. Loyn, “Church and State in England in the Tenth and Eleventh Centuries’ in TenthCentury Studies, ed. David Parsons (1975), 94-102; Dorothy Loomis, “Regnum and sacerdotium in the Early Eleventh Century’ in England before the Conquest (above n. 10), 129-45. 229 e.g, Grant of Offa (787) in Haddon and Stubbs, iii. 462-3: ‘ad libertatem zecclesiasticam’; Wi 1 in Liebermann, Gesetze, i. 12 [Laws, Attenborough, 24-5]. 230 V Atr 10:2, in Liebermann, Gesetze, 1. 240-1 [Laws, Robertson, 82-3]. 231 VIII Atr 1:1 in Liebermann, Gesetze, i. 263 | Laws, Robertson, 116-17].

56 THE ANGLO-SAXON CHURCH of bishops was also made among the Anglo-Saxons. The ancient rule was that elections should be made per clerum et populum, not by the fiat of lay rulers, and this could be understood as excluding royal dictation. Though often ignored, the idea was in circulation.?52

In most cases, the Anglo-Saxon kings did ignore it. They kept control over the choice of bishops.233 The contemporary European pattern was identical. Liberty of the church allowed in royal grants was taken to mean liberties in the sense of immunities from specific obligations, most commonly taxation. But it could not imply entire independence from intervention by the king or the laity.234 Thus, the privilege of sanctuary was placed under the same rubric. Several enactments of the Anglo-Saxon kings mentioned it. It was an immunity recognized by the temporal authorities. Its grant by the king would have been seen as one fruit of his promise of ecclesiastical freedom. Sanctuary was not, however, regarded as a sign of the church’s independence from all temporal law. It was a grant. It was a recognition of the special role of churches in society—one aspect of the law where no cleavage between the two authorities existed. The second aspect of the church’s status in law was the claim to special privileges for the clergy. The claim was based on status. That priests and bishops should enjoy a place of honour in society and be protected from attacks upon their person was recognized in Anglo-Saxon law.235 At the level of generality, it would not have been controversial, and it would have accorded in principle with the classical canon law’s attempt to guarantee the clergy against violence (C. 17. q. 4c. 29). Settling on actual jurisdictional rules was more complicated. The Anglo-Saxon evidence is equivocal. Statements that clerics should rightly be subject to the judgments of their bishops were made.23© But did such statements mean their bishops and to no one else? Perhaps they did; some statements indicated that disputes among clerics should not be submitted to the judgment of laymen, and that priests could not be judged by secular men.?3”? On the other hand, most of the Anglo-Saxon laws, even the specifically ecclesiastical laws, were silent on the jurisdictional issue, and evidence 232 See Letter of Alcuin regarding election of a new archbishop of York (796) in Haddon and Stubbs, lll. 499-500. 233 Stenton, Anglo-Saxon England (above n. 29), 538; Mary Frances Smith, “The Preferment of Royal Clerks in the Reign of Edward the Confessor’ (2001 for 1997) 9 Haskins Soc. Jnl 159-73.

234 e.g, Grant from Ethelbald, King of Mercia (749) in Haddon and Stubbs, iii. 386-7; Grant of Ethelwulf (855), ASC, s.d. 855; ‘Constitutions of Archbishop Oda} c. 1 (c.946) in C. & S. I, pt. 1, 69. 235 See e.g. ‘A Compilation on Status; c. 8 (1002 X 1023), EHD, i, no. 52 (pp. 431-2).

236 'Theodore’s Penitential, lib. I, tit. 9, c. 1 in Haddon and Stubbs, iii. 184. Similar is Af 21 in Liebermann, Gesetze, 1. 62-3 [ Laws, Attenborough, 74-5]. An example of a cleric’s being brought before the bishop in a case of theft is found in the Liber Eliensts, lib. II, c. 32 (above n. 56), 105-6. 237 “Canons of Edgar’, c. 7 (1005 X 1008) in Wulfstan’s Canons of Edgar (above n. 51); C. & S. J, pt. 1,

317. This provision was, however, probably taken from the Council of Chalcedon, c. 9; see Legatine Synods, c. 11 (766 X 791) in Haddon and Stubbs, iti. 452-3.

SUBSTANTIVE LAW 57 of actual practice involving laymen and clerics shows the truth of Liebermann’s dictum that an attempt to secure clerical immunity from all temporal justice would have been quite ‘impracticable’ at the time.?38 In an age without regular spiritual courts, perhaps the later canonical position in which the clergy enjoyed a jurisdictional immunity in all cases was simply not a realistic prospect. The third sentiment was that there should be areas of life left to the judgment of the church. It was to be a fixed principle of the classical canon law. In England, it led eventually to the creation of a system of courts, one that lasted for many centuries. According to this view, jurisdiction should be shared by the courts of church and state, but divided according to the subject-matter involved. Marriage for the church, land for the king, to take only the most common example from later times. For the Anglo-Saxon period, one sees the possibility of a separation of jurisdictions along something like these lines, but not much more than that. More

common were the courts where both laymen and clergy were present and in which no sharp distinctions by subject-matter were made. The other idea was present, however. The stricter among the bishops were always uneasy about mixing the two so easily, and even about their own participation in secular disputes.239 Theodore’s Penitential suggested that poor men’s causes involving more than 50s. should be dealt with by the bishop, whereas those of more than that amount should be heard by the king.24° The laws of Cnut envisioned bishops exercising a special responsibility in some marriage disputes.241 The “Northumbrian Priests’ Law’ laid down a penalty for priests who referred to a layman any dispute that should have gone to a spiritual man for decision.?42 Even some of the legislation of the kings was consciously assigned to one side or the other. That is, men saw

at the time that certain measures ought to be assigned either to the spiritual or to the secular sphere, and indeed that they must be.243 What is not so clear is the way they made the decision. Beyond recognizing that the division existed in the minds of the Anglo-Saxons, it may be wiser to remain silent. Finally, there is the question of the practical separation of clergy and laity in the ordinary affairs of daily life. No canonical principle has a longer pedigree than

this: the clergy should not become entangled in temporal affairs. It claimed dominical authority, had been planted firmly in the early days of the church’s 238 Liebermann, Gesetze, ll. 439, no. 18.

239 e.g, Letter of Wealdhere, bishop of London (704-5) to the archbishop of Canterbury in EHD, i, no. 164. See Pierre Chaplais, “The Letter from Bishop Wealdhere of London to Archbishop Brihtwold of Canterbury: The Earliest Original “Letter Close” extant in the West’ in Medieval Scribes, Manuscripts e Libraries: Essays presented to N. R. Ker, ed. M. B. Parkes and Andrew Watson (1978), 3-23. 240 Lib. II, tit. 2, c. 4 in Haddon and Stubbs, iii. 191. 241 TI Cn 54:1 in Liebermann, Gesetze, 1. 348—9 [ Laws, Robertson, 202-3]. 242 Northu., c. 5 in Liebermann, Gesetze, i. 380 [ EHD, 1. 435]. 243 TT Eg dealt with ecclesiastical matters; III Eg with temporal. See Liebermann, Geset?ze, ili. 133-7.

58 THE ANGLO-SAXON CHURCH history,244 and was oft repeated within the Anglo-Saxon church itself. On one level,

it was regarded as a consequence of the division of society into three separate orders: oratores, laboratores, et bellatores.24° On another, some effective separation was thought necessary for the well-being of the church. The Council of Clovesho in 747 sought to prevent monks and clerics from living ‘in secular houses,?4° and Wulfstan’s Canon Law collection contained a similar prohibition against clerical ‘mixing in secular business’.?47 These decrees may have been regarded as counsels of perfection. They did not

carry the day, even in the sphere of legislation. The laws of Edgar required that

both the bishop and the ealdorman be present at meetings of the hundred courts,248 and in the 940s Archbishop Oda dropped a prohibition against the clergy’s taking part in secular councils when deciding what to take from the canons of the legatine synod of 786.249 When William the Conqueror later sought to end the hearing of both temporal and spiritual pleas in hundred courts, he was

re-enacting a principle that had been stated before. The decision none the less made for a change in practice and in customary ways of thought. Precedent for separating the domain of the clergy and that of laity can be found in the AngloSaxon sources, but the separation was not stated systematically, and more often than not it was no more than a statement of the ideal. The Truce and the Peace of God

The law of a church established by a mission from Rome and nourished by frequent contacts with the Frankish kingdoms naturally shared most of the legal institutions that prevailed across the Channel. However, a significant aspect of the law whose rise coincided with the last century of Anglo-Saxon rule scarcely penetrated into England. This was the ascendancy of the peace movements led by the clergy and known as the Peace of God and the Truce of God. They made a mark in Normandy and elsewhere across the Channel, one that continued into the years after the Norman Conquest. Church councils, beginning with that of Charroux in 989, repeatedly called for the protection of churches and the clergy. They also called for the creation of institutions that would protect other vulnerable people from social and political disorder.25° Certain times of year were set aside during which no warfare at all was to be allowed. The calls were widely 244 e.g, Council of Chalcedon, c. 3 in Decrees, Tanner, i. 88. 245 ‘Timothy E. Powell, “The “Three Orders” of Society in Anglo-Saxon England’ (1994) 23 ASE 103-32.

246 ¢, 29 in Haddon and Stubbs, iii. 374. 247 c, 30 in Wulfstan’s Collection (above n. 104), 78. 248 TIT Eg 5:2 in: Liebermann, Gesetze, i. 200-1 | Laws, Robertson, 26-7]. 249 See C. & S. I, pt. 1, 67-8. 250 See Hartmut Hoffmann, Gottesfriede und Treuga Dei (= 20 MGH, Schriften; 1964); H. E. J. Cowdrey, ‘The Peace and the Truce of God in the Eleventh Century’ (1970) 46 Past & Present 42-67.

SUBSTANTIVE LAW 59 supported, it appears, by the Frankish nobility itself.25! Eventually they found their way into the Corpus iuris canonici (X 1.34.1-2). This inclusion allowed jurists

to debate at length how it could be that the truce apparently endorsed by the canon could ever have been warranted. It presented a puzzle. All wars were by def-

inition either just or unjust.252 If a war was just, why should it be delayed by a truce? If it was unjust, why should it be allowed at all? This kind of academic conundrum would, however, have seemed quite out of place in the years around the turn of the millennium. The Peace movements spread. It did not, however, spread to England. But a faint echo of these calls for qualified societal peace was heard. It is true that certain of the laws of Athelred and Cnut did both proclaim the need for peace to be maintained in churches.?53 Others laws marked out special seasons at which peace was to be maintained as a matter of special urgency.?54 Archbishop Wulfstan urged that bishops must be eager to ‘settle disputes and make peace’.25> Statements like these resembled some of the provisions enacted by church councils on the Continent. But there are comparatively so few of them in England, and so little specific mention of the Peace or Truce of God appears in other sources of the time that it is impossible to describe

anything like a ‘movement’ in the Frankish sense.?5° Calls for peace were quite standard fare in the canons of ecclesiastical assemblies in many eras,257 and these bits of Anglo-Saxon law appear to have been no more. No easy explanation for the absence suggests itself. The close connections

between England and the Continent, particularly during this period with the duchy of Normandy where the movement was at its strongest, make it natural to suppose that the English church would have followed suit. It would once have been said in response that the Peace of God was established in reaction to ‘feudal anarchy —a fate from which the character of the people and the strong hand of the Anglo-Saxon monarchs preserved England. Today, quite apart from unease about the characterization of a naturally peaceable English, the aims and circumstances of the Peace movement seem less clear.258 One can no longer suppose the 251 Hans-Werner Goetz, “Protection of the Church, Defense of the Law, and Reform: On the Purposes and Character of the Peace of God, 989-1038’ in Thomas Head and Richard Landes, The Peace of God: Social Violence and Religious Response around the Year 1000 (1992), 259-79. 252 GI. ord. ad X 1.34.1, s.v. frangere.

253 V Atr 1:2 (1008) and I Cn 2 (1020 X 1022) in Liebermann, Gesetze, 1. 238-9, 280-1 | Laws, Robertson, 78-9, 154-5]. 254 V Atr19 (1008); 1 Cn 17:2 (1020 X 1022) in Liebermann, Gesetze, 1. 242-3, 298—9 [ Laws, Robertson,

84-5, 168-9]. 255 “The Bishop’s Duties’ c. 4 (early eleventh century) in C. & S. I, pt.1, 419. 256 Hoffmann, Gottesfriede (above n. 250), 254-6; Pollock and Maitland, i. 175; Frank Barlow, The English Church, 1066-1154 (1979), 123; Alan Harding, Medieval Law and the Foundations of the State (2002),

79-81. 257 e.g, Dist. 90 c. 4; Statutes of Archbishop Reynolds (1314), Wilkins, Concilia, 11. 450. 258 Frederick Paxton, ‘History, Historians and the Peace of God’ in Head and Landes, Peace of God (above n. 251), 21-40.

60 THE ANGLO-SAXON CHURCH movement depended upon clerical reaction to a “feudal anarchy, and it is therefore more difficult to think that England maintained a superiority in manners over its

Continental neighbours. We can only be sure that although there were close connections between what happened within the churches on the Continent and what happened in England, in this particular there was disparity. Perhaps routine invocation of the king’s peace made recourse to the Peace of God unnecessary.?5? For the historian of the canon law, it stands as a warning: from a quite early date, the concerns behind the canon law would be much the same in all parts of the Western church, but that the ways in which the concerns worked themselves out in practice would sometimes depend on local needs and customs.

Other Areas Once one leaves these relatively straightforward areas of law aside, it is natural to ask whether any of the other areas that had come to rest within ecclesiastical jurisdiction by the thirteenth century could claim Anglo-Saxon roots. There are certainly areas where parallels existed. The problem lies in knowing whether there is anything more—whether it is sensible to assert a causal connection and actual continuity. It is hard to do so with certainty. In some basic matters of the Christian religion, some continuity is only to be expected. For instance, Anglo-Saxon laws required the prompt baptism of infants, adding monetary penalties for ignoring the rule.2°° They penalized monastic apostates who abandoned their religious vows. The church courts would later seek to enforce these same rules.?°! The same may be said, in a general sense, of rules protecting churches; ‘pollution’ of a church or churchyard by the shedding of blood there would long call for special sanctions. These principles were old. They were common to Christianity, and it is only to be expected that they would appear in the historical record from both sides of the Norman Conquest. In some more particular matters, however, making a connection with later practice is more problematical. For example, one of the laws of Alfred provides for the punishment of public slanderers.262 The English church would exercise jurisdiction over slander from at least the thirteenth century. Was there a link? By itself, Alfred’s law is a slender reed to support an assertion that the church’s later 259 This is the view of Raoul Van Caenegem, “La Paix publique dans les Iles Britanniques du Xie au XVIlle siecle’ in La Paix (=15 Recueils de la Société Jean Bodin; 1984), 5-25, at 12; also it seems of Cowdrey, “The Peace and the Truce of God’ (above n. 250), 58-61.

260 Ine 2 in Lieberman, Gesetze, i. 90-1 [Laws, Attenborough, 36-7]; see also Northu., c. 10 in Liebermann, Gesetze, i. 380 [EHD, i. 435]. The extent of compliance with the rule is discussed in Sally Crawford, Childhood in Anglo-Saxon England (1999), 85-7. 261 VIII Atr 41, II Cn 4:1 in Libermann, Gesetze, i. 268, 310-11 [ Laws, Robertson, 128-9, 176-7]. 262 Af 32 in Liebermann, Gesetze, i. 66—7 [ Laws, Attenborough, 76-7].

SUBSTANTIVE LAW 61 jurisdiction should be traced back to Anglo-Saxon roots. There is little else. Probably there must be more in the way of direct evidence, as there is, for example in the area of matrimonial offences, before the connection can be regarded as established.

This might be said of perjury. Of legislation against false swearing, found as often in spiritual sources as in secular, there was plenty. A great deal depended upon the reliability of men’s oaths in Anglo-Saxon law, and the church punished perjury for that reason, if for no other. No doubt the Anglo-Saxon clergy’s participation in formal oath-takings and ordeals encouraged men to think of perjury as

having a connection with the church.” It is just possible that this connection with the church was remembered when more systematic thought about jurisdictional questions became a possibility in the twelfth century. Practices that had a long history sometimes made a difference in the assignment of jurisdiction to one side of the line or another. In any event, it turned out that the English church assumed a jurisdiction over oaths and their breach during the twelfth century.?% The canon law itself would assert a special status for promises made with an oath,

and the courts acted on it. There is no proof of a direct connection with the Anglo-Saxon past; there is coincidence and possibility.

In one respect, however, we may be slightly more confident in making a connection. That is in the continuity between Anglo-Saxon law and the ex officio jurisdiction characteristic of the ecclesiastical courts established after the Conquest. More than a general sort of connection in the practice of episcopal visitations is visible.2°5 There were elements of substantive continuity, not restricted to the prohibition and prosecution of sexual practices that violated Christian norms. The church asserted a duty to correct offenders against its rules about sexual conduct. Prohibition of what the church considered to be superstitious practices provides another example. It is certainly true that the church of the Anglo-Saxons welcomed

much that would later be condemned,? but not every bit of ‘popular religion’ went unrebuked. Making ‘an offering to devils’ was to be cause for forfeiture of a man’s goods according to the early eighth-century laws of Wihtreed.2° ‘False divinations’ were condemned and those who did the divining were subjected to penance by Egbert’s Penitential.2°§ The “Canons of Edgar, compiled early in the eleventh century, called upon all priests zealously to ‘forbid worship of wells, and necromancy and auguries and incantations, and worship of trees and worship of 263 Kevin Uhalde, “Proof and Reproof: The Judicial Component of Episcopal Confrontation’ (1999) 8 Early Medieval Europe 1-11. 264 e,.9, Af 33 in Liebermann, Gesetze, 1. 66—7 [ Laws, Attenborough, 78-9].

265 See e.g. The Vita Wulfstani of William of Malmesbury, ed. Reginald Darlington (= 40 Camden Soc. (3rd ser.); 1928), 51-2.

266 See the valuable evidence in Karen Louise Jolly, Popular Religion in late Saxon England: Elf Charms in Context (1996). 267 Wi 12 in Liebermann, Gesetze, 1. 13 | Laws, Attenborough, 26-7]. 268 Lib. I, tit. 8, c.1 in Haddon and Stubbs, iii. 42.4.

62 THE ANGLO-SAXON CHURCH stones. These canons condemned ‘nonsense that is performed on New Year’s Day in various kinds of sorcery, and in heathen sanctuaries and elder-trees, and in many various delusions in which men carry on much that they should not’2% In the tenth century more than half of England was controlled by Scandinavian settlers, many of whom were but recently or half converted to Christianity. The need for taking active measures to combat pagan practices would have been no distant memory in 1066. Not all the items on the Anglo-Saxon list of such measures were to be found in the ex officio act books of later years, but by the same token, many of them were. The attempt to eradicate popular superstitions by using ecclesiastical sanctions was to have a very long and varied history, one never quite crowned by success.?7°

CONCLUSION Canons were known, enacted, and admired among the Anglo-Saxons. They must have been studied too. Although some of the substantive provisions in these laws now seem worse than merely unsophisticated, and although much of the church’s effort was mixed in with secular law in a way that would come to seem objectionable to the clergy, ecclesiastical law could claim a place in the legal life of the land. True, the Anglo-Saxon church lacked much that would later seem essential— consistory courts and trained lawyers for example. But law had established a place in the English church that it would not lose. Before leaving this era for the Normans and their successors, a word ought also to be said about the ecclesiastical law that did not exist. Some of the negative side of the subject has already been discussed, as for example in suggesting the absence of a substantive law of tithes or a law regulating the formation of marriage. To the extent that there was any legal regulation over these things, it must have been supplied by customary practice. But there are several other areas, not yet discussed, where little evidence of effective law remains. The most notable of the absences must be a law of civil and criminal procedure. By comparison with what would be a well-filled catalogue of later medieval writings

about the canon law of procedure, a page reserved for it prior to the twelfth century would be virtually blank. The coincidence in subject-matter jurisdiction between temporal and spiritual assemblies would be one reason for the blankness of the page. The procedure used in synods, although only sketchily described in the sources, seems not to have differed markedly from that used in the lay assemblies, although the sanction of excommunication and the possibility of assigning 269 ¢.16 in Wulfstan’s Canons of Edgar (above n. 51), 4-5; C. & S. I, pt. 1, 319-20. 270 See Goetz, “Protection of the Church (above n. 251).

CONCLUSION 63 an ecclesiastical sort of penance may have marked synodal decisions off from those of hundred and shire courts. In any event, there was procedural overlap at many points. For example, making proof in both synods and meetings of the lay courts was heavily dependent upon the use of compurgatory oaths. The decision to assign the oath-taking to one party or the other was the responsibility of those who presided over the courts, at least if efforts at mediation failed.27! It could determine the outcome, and to outward appearances reliance on oaths was a feature shared by both temporal and spiritual assemblies. It is too much to say, however, that the procedure in either forum was wholly ‘Germanic’ in character. The outcome of disputes was not dependent upon

ordeals in routine practice. It depended more frequently on oaths and oath helpers, but not automatically so when the truth could be established in a more reliable fashion. Still less can the procedure of the time be written off as ‘primitive’ and backwards, something to be discarded as quickly as greater system in law became possible. A notion of correct order in legal proceedings existed.?72 Sophistication in legal forms was not entirely absent either. The use of a formal

summons to court hearings is well attested, witnesses and charters were frequently introduced to prove facts, and rules about prescriptive title, apparently drawn from Roman law, were known and used.?273 The concept of a legal pre-

sumption and the notion of a burden of proof were not beyond the ken of the Anglo-Saxons,?74 and mention was made of the existence of fideicommissum in at least one tenth-century document.?’5 Assigning an advantage to the party who could produce a charter and therefore stood ‘closer to the oath, as was some-

times done in practice, was a procedural rule derived from rational ways of thinking.?”© Archaic and incomplete it undoubtedly was in many respects, both 271 This was, for example, the outcome in the contest over the inheritance of Oswulf (844) in Haddon and Stubbs, iii. 628-30; P. H. Sawyer, Anglo-Saxon Charters (1968), no. 1439. 272 Wendy Davies, “Local Participation and Legal Ritual in Early Medieval Law Courts’ in The Moral World of the Law, ed. Peter Coss (2000), 48-61. 273 e.g, Liber Eliensis, lib. II, c. 24 (above n. 56), 97. See Essays in Anglo-Saxon Law (above n. 40), 183-305, and specific examples at 331-3, 314-15, 316, 320-1; Patrick Wormald, “Charters, Law and the

Settlement of Disputes in Anglo-Saxon England’ in The Settlement of Disputes in Early Medieval Europe, ed. W. Davies and P. Fouracre (1995), 114-36; Susan Reynolds, Communities and Kingdoms in Western Europe, 900-1300 (1984), 25 n. 44. The situation in many parts of the Continent was similar; see Jean Gaudemet, ‘Le Droit romain dans la pratique et chez les docteurs aux XIe et XIIe siécles’ (1965) 8 Cahiers de civilisation médiévale 365-80, at 368—71.

274 Essays in Anglo-Saxon Law (above n. 40), 215, 238. See also Rebecca Colman, “Reason and Unreason in Early Medieval Law’ (1973) 4 Jnl Interdisciplinary History 571-91. 275 Cited in Winkler, “Roman Law (above n. 35), 106. 276 See Alan Kennedy, ‘Law and Litigation in the Libellus Athelwoldi episcopi’ (1995) 24 ASE 131-83, at 169-73, and Simon Keynes, “The Fonthill Letter’ in Words, Texts and Manuscripts: Studies in AngloSaxon Culture Presented to Helmut Gneuss, ed. Michael Korhammer (1992), 53-97, esp. 71-3; Mechthild Gretsch, “The Language of the Fonthill Letter’ (1994) 23 ASE 57-102, esp. 98-101.

64 THE ANGLO-SAXON CHURCH in its ecclesiastical and temporal settings, but the procedure used in Anglo-Saxon courts also contained features that would be integrated into the more sophisticated ordines iudiciarii that were compiled in such abundance once the revival

of jurisprudence in the West had begun. The later works were not written on a wholly blank slate. Although these portents of things to come are significant, it remains undeniable that this was not an age of lawyers. There is little that can be called systematic about the procedure described in the collections of the laws made for the Anglo-Saxon church. Some of what does appear in them is very far from what would be appropriate in a coherent and functioning legal system. In addition, much of what one might expect to find in any legal system is missing. For example, questions about the proper venue for a trial—a matter about which lawyers think reflexively but

about which no one else much cares—are nowhere to be found in the many records of Anglo-Saxon litigation. Jurisdictional problems likewise seem to have caused few quarrels; they have left little mark in the historical record. Indeed, they seem scarcely to have been raised in practice among the Anglo-Saxons. Questions about where to settle disputes and what official body should do the settling seem to have been dealt with more by convenience or accident than by formal rule.?77

This was not to be true in the classical canon law of later date. Jurisdictional questions would be constant companions of the canonists. They would be hotly disputed in litigation. Their virtual absence from the pre-1066 records is remarkable by contrast. Within the sphere of the church’s institutional life, one incident that occurred towards the end of the period sums up the modest place the canon law occupied in the life and minds of most Anglo-Saxon churchmen. That event was the displacement from English cathedrals and minsters of the married clerks who had occupied them for so long and, according to the monastic party, so unworthily. These ‘canons’ had treated their clerical stalls as hereditary sources of income. Sons succeeded fathers in accepted if uncanonical order, and at least in the eyes

of their enemies, standards of liturgical observance among them were lax in the extreme. Objections arose, and as the monastic revival began in the tenth century, strenuous efforts were made to replace these secular clerks with monks. Their replacement duly occurred. It was effected by a combination of persuasion, threats, patience, and forcible expulsion.278 Milder inducements were tried first, but if the secular clerks could not be brought to agreement, there was an end to it. They were ‘cast forth. They were “driven out’ from their positions. Then they 277 Kennedy, “Law and Litigation’ (above n. 276), 142-5 and 183: “[O]ne looks in vain to the Libellus

for much sense of a legal order defined by principles and rules.

278 For some of the hesitations and exceptions, see Antonia Gransden, “Traditionalism and Continuity during the Last Century of Anglo-Saxon Monasticism” (1989) 40 JEH 159-207.

CONCLUSION 65 were ‘dispersed’ throughout the realm. Neither kings nor bishops saw anything reprehensible in what had taken place.2”9 Indeed, they appear to have regarded dispersal of the secular clerics as something akin to a heroic act. No “due process’ touched the proceedings. No one appears to have thought any was needed. Forms of legality—even such modest forms of legality as attended the reversal of this tenth-century reform by the reform of the sixteenth century—figured not at all in this change of regime. 279 e.g, Wulfstan of Winchester, Life of St A:thelwold, cc. 16, 18, 20, ed. Michael Lapidge and Michael Winterbottom (1991), 30-3, 36-7; Stenton, Anglo-Saxon England (above n. 29), 444-5; The Peterborough Chronicle of Hugh Candidus, ed. W. T. Mellows (1966), 24. But see Julia Barrows, “English Cathedral

Communities and Reform in the Late Tenth and the Eleventh Centuries’ in Anglo-Norman Durham, 1093-1193, ed. David Rollason, Margaret Harvey, and Michael Prestwich (1994), 25-39, arguing that the process was slower and less ‘monastic’ in spirit than has been generally portrayed.

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2

From the Norman Conquest to the Establishment of Consistory Courts HE history of the canon law and ecclesiastical jurisdiction in England during

The two centuries that followed the Norman Conquest divides itself into two parts of roughly equal size. Both are filled with activity and advance. The first deals with a topic that is international in scope and largely academic in character— the growth of European legal science in general and the formation of the classical canon law in particular. Although not quite all of this development occurred on

the Continent, the great majority of it did. It took place within the European schools and the emerging universities; the papal chancery also played a leading role. Its effects, however, were felt naturally and without long delay within the English church. The second part of the history is more local and practical in orientation. It deals with three separate developments: first, the English clergy’s effort to separate the spiritual from the temporal in law and legal practice; second, the spread of canonical learning in England; and third, the settling of administrative and judicial practice into a more or less fixed shape. The three culminated in the acceptance and widespread implementation of the canon law in England. They led to the establishment of regular ecclesiastical courts, and they brought to a close—indeed they reversed—many of the working assumptions about the law of the church that had prevailed during the Anglo-Saxon era. An evident connection links these two parts of the story. It would be no gross exaggeration to say the second was a consequence of the first, although perhaps it was not an altogether inevitable consequence. The history of the Western canon law long admitted of significant variations in practice. The letter of the canon law could not be applied whole in any part of the Latin church. Compromises and concessions to the exigencies of daily life and the demands of temporal rulers were inevitable, and some of what happened ran directly counter to the texts of the canon law. The canonical system possessed a unity overall, but there are still good reasons for treating the academic law separately from English developments. Doing so shows in a measure what was peculiar to England and what England

68 ESTABLISHMENT OF CONSISTORY COURTS shared with the Continent. It fosters a truer appreciation for the mechanics by which the classical canon law become an effective source of law and legal practice in England. The second part of the history of the canon law’s place in the English church

contains elements of both stability and change from what had occurred earlier. Parts of Anglo-Saxon law continued into later times. Those instances will be explored from time to time throughout this volume. The continuities in law deserve recognition, probably in a greater measure than has normally been allowed. But much was new. This followed in outline the history of ecclesiastical jurisdiction on the Continent. England was not isolated in this aspect of its legal history. At the same time, the force of customary law was not eliminated, even after the rise of the ius novum within the church and the creation of the tus commune. In assessing the nature of changes in thought and learning and in portraying ecclesiastical jurisdiction as it emerged, we must make a balance between old and new and also between the English and the European. In both the academic and the practical aspects of the history of the canon law, the signal event of these years was the creation of a system of law and ecclesiastical justice that stood apart from temporal government. This is a story of change

from the previous period. It is a history of beginnings. No such move towards effective ecclesiastical independence in the legal sphere had been made in AngloSaxon England, and what look to have been impressive gains in the church's law were made during this period. This is not an illusion. The change was a success, at least from the point of view of the men who wished to see the church and its law play a strong and independent role in governing the clergy and in ordering a Christian society. It is entirely natural that historians interested in the canon law should have paid more attention to it than to the periods either before or after. Ambitious goals were set for the church’s law. Judicial institutions were created. Professional lawyers emerged to serve the church. New laws were enacted and promulgated. System was brought to the existing canons. Relations between temporal and ecclesiastical law were clarified, and strong claims for the jurisdiction of the church were made. The law’s intrinsic worth, as, for example, in its relation to theology, was treated as a matter of fact. One can speak of the organization and

effectiveness of the church’s law in a way that was quite impossible before the twelfth century.

FORMATION OF THE CLASSICAL CANON LAW From a lawyer’s perspective, the greatest product of this period was what would be known as the Corpus iuris canonici, the collection of authoritative texts that would articulate, both in principle and in detail, the classical law of the church.

FORMATION OF THE CLASSICAL CANON LAW 69 Along with the Corpus itself went the creation of what would become a huge body of commentaries on the canonical texts. More general political theory should not be neglected in studying the rise of the canon law, but it is well to remember from the outset that the medieval jurists always concentrated their attention on the texts in the Corpus iuris canonici. It was around these texts that the law of the church developed. Even those authors who moved quickly beyond them to the glosses and commentaries that were central to medieval legal instruction always looked to the texts themselves for authority. Both the forces which led to the creation of the Corpus iuris canonici and the character of the result must be examined in enough detail to make their methods and common assumptions apparent.! Three forces were fundamental to creation of the classical canon law. The first was an expansion of systematic collection of canons from the church’s past. It culminated in Gratian’s Decretum, a work that also opened up new possibilities for legal method within the church’s law. The second was the beginning of scientific legal study. It grew out of the recovery and examination of the ancient texts

of Roman law. It spread from Bologna throughout Europe, fostering a more analytical approach to law and leading to the creation of law faculties in the new universities. The third was the rise of the papacy and the movement for reform in church and society in which the papacy took a leading role. A rise in papal government went hand in glove with articulation and expansion of the institutions of the canon law.

Canonical Collections Assembling canons of church councils, decretal letters of the popes, writings by the church fathers, biblical passages, and scraps of Roman law, and then placing them into larger collections had a long history by the time the new millennium arrived. Canonical collections had been, for example, an important feature of

the Carolingian age. The influence of the collections compiled at that time had made itself felt in Anglo-Saxon England. However, things did not remain as they were. Around the turn of the eleventh century, there came a quickening 1 For fuller introductions to the general subject of the canon law, there are several good recent works, written in many languages: James A. Brundage, Medieval Canon Law (1995); Péter Erd6, Introductio in historiam scientiae canonicae (1990); Luciano Musselli, Storia del diritto canonico (1992);

Jean Gaudemet, Eglise et Cité: Histoire du droit canonique (1994); Georg May and Anna Egler, Einftihrung in die kirchenrechtliche Methode (1986); E. J. H. Schrage and H. Dondorp, Utrumque tus, eine Einftihrung in das Studium der Quellen des mittelalterlichen gelehrten Rechts (1992); Antonio Martinez Blanco, Introduccion al derecho canonico (1991). They contain fuller references to older and

more specialized scholarly work. For treatment of the canon and Roman laws in the context of the times, see Manlio Bellomo, The Common Legal Past of Europe 1000-1800 (1995).

70 ESTABLISHMENT OF CONSISTORY COURTS in pace, a widening in scope, and an improvement in presentation in putting these ancient sources of law together. The end results were more comprehensive and purposeful than their predecessors had been. Improvements in method were also matched, to some extent at least, by progress in their implementation. Bringing the ancient canons into better collections became a medium by which

a reform movement, aimed at eliminating perceived abuses in the church and in society at large, found its most natural expression. To root out simony from the church, for example, was thought to require both authoritative statement of its

illegality and concrete direction for its eradication. Nothing concerned the reformers more, and it is a measure of the importance being accorded to law in the life of the church that, by the eleventh century, they felt it necessary to place their convictions and proposals about simony upon a solid basis in the law. For them, this meant that the best texts about simony should be placed within a new canonical collection. These collections made a mark in England. Not only by their

appearance; one was compiled in England at an early date within the circle of Archbishop Lanfranc. The desire to bring together and make available definitive legal rulings cannot be ignored in assessing the state of the church’s law from the time of the Norman Conquest forwards. PRE-GRATIAN COLLECTIONS

The quickening in pace of canonical collections had a broad purpose. A desire for improvement in the life and morals of the clergy and for establishment of appropriate governance of church and society stood behind most of the products of this period, even that of Gratian. Among the many collections that preceded Gratian, one of those that stood out was the Decretum of Burchard of Worms. Born to a noble family, Burchard was given the bishopric of Worms in 1000 by the Emperor Otto III. He retained the see until his death in 1025, proving to be an energetic and effective diocesan bishop. Greatest among his achievements, however, was compilation of a canonical collection. The number of surviving manuscript copies and abridgements made of his Decretum is impressive, even astounding if one takes into account the purely historical importance it assumed after the appearance of Gratian’s later work.” It was printed more than once in the sixteenth century.? Its wide dispersal throughout Europe is an important fact, one worth considering for a moment. The width of its appeal and the use made of it in many parts of Europe 2 See the list in Lotte Kéry, Canonical Collections of the Early Middle Ages (ca.400-1140) (1999), 134-48. See also Otto Meyer, “‘Uberlieferung und Verbreitung des Dekrets des Bischofs Burchard von Worms’ (1935) 24 ZRG, Kan. Abt. 141-83; Peter Landau, ‘Burchard de Worms et Gratien: a propos des sources immédiates de Gratien’ (1998) 48 RDC 233-45.

3 The editio princeps, published at Cologne in 1548, has been republished in a modern reprint: Burchard von Worms, Decretorum libri XX (1992).

FORMATION OF THE CLASSICAL CANON LAW 71 had not been common features of earlier canonical collections. They signalled a developing cohesion and also a desire for greater order and clearer law in the church. In compiling his collection, Burchard followed the normal method used by the earlier canonists. That is, he relied upon prior collections, notably that of Regino of Priim and the Collectio Anselmo dedicata, for the canons he needed. In some ways, the temper of his work harks back to the Carolingian age. Burchard was no revolutionary. He asserted the rights of the church and of the episcopal order firmly, but without tendentiousness. Burchard recognized and endorsed the papal primacy, but he did not envision regular papal intervention in the running of his diocese. The apostolic see’s primary function was exercised in judging ‘major causes. Only the church’s first see could bring an effective end to disputes of consequence.* Burchard was equally cautious about the rights of archbishops within their provinces, and when he could not endorse a particular practice, such as papal grants to religious houses of immunity from episcopal jurisdiction, he simply kept silent about the subject. It is probably fair to say that his was the kind of reticence that can shade into dissimulation. It was an attitude that long held a place within the law of the church.°$

The principal characteristics that made Burchard’s collection worthy of attention among his contemporaries were its scope, organization, and relative completeness. He assembled almost 1800 canons or chapters, using only those he considered good authorities. He placed them in twenty separate books. The first of these (inevitably) dealt with the power of bishops, this fundamental aspect of church government being asserted in expansive terms. However, the work also contained separate books devoted to other subjects: holy orders, baptism, excommunication, religious houses, superstitious practices, perjury, procedure, and sexual offences, among others. Burchard’s Decretum contained a section devoted exclusively to penitential practice, not far removed in spirit or substance from the libri penitentiales used by the Anglo-Saxons, and also an ordo for use in episcopal synods. It was a book meant to be both studied and used. Its organization facilitated both. Even more closely allied with the movement for reform in the church comes a second influential canonist of the eleventh century, Ivo of Chartres (d. 1115). Like Burchard, Ivo was a diocesan bishop, and his canonical collections shared many features with that of the bishop of Worms. They mixed what we would call theology with legal subjects, and they drew upon older collections of patristic and conciliar texts, in particular those of Burchard himself and the collection known as 4 See Decretorum libri (prior note), lib. 1c. 2. 5 Giuseppe Olivero, Dissimulatio e tolerantia nell’ordinamento canonico (1953).

72 ESTABLISHMENT OF CONSISTORY COURTS Pseudo-Isidore. Ivo’s work was also systematic in the sense of organizing the texts into separate books, divided according to subject. However, he seems to have been

a somewhat more thoughtful man than Burchard. This is evident in the more extensive reworking of the material at his disposal. He also compiled more than one collection: first was his Decretum. When it proved too long to be workable, he

turned his hand to the more compact volume called the Panormia.® In the Panormia he both abridged his Decretum and added to it. The contrast between the approaches of Burchard and Ivo is quite evident in their prefaces.” In stating his reasons for compiling a collection, Burchard contented himself with traditional laments about neglect of the canons and disorder among the existing rules. It was to remedy a lack of knowledge among his con-

temporaries and to bring greater order to existing law that he was putting his collection together. Ivo too lamented the confusion and contradiction present in the canons. However, he sought to provide a better way out of the dilemma, one to

be used with his new collection. Among other things, he called for distinctions to be made between the purposes for which the various canons had been enacted. Some rules were subject to dispensation; some were not. Some precepts were meant for rigorous enforcement; some for merciful application. As an example, he cited Gregory the Great’s concessions to Augustine in the law of marriage among the English.8 In applying the law, the law’s purpose, not simply its exact words, must be held foremost in the judge’s mind. In other words, Ivo was seeking work-

able remedies for the discord in the canons. He did not employ the dialectical method of the schools. That would come in good time. But he did identify the problem with which Gratian also began: apparent conflict between the texts. He advocated a partial remedy for it: judicial consideration of the underlying goals of the canon law. This was a signpost towards what would be a defining characteristic of the canon law, consideration of the law’s purposes. It marked out a road towards treating it as an intellectual discipline. At any rate, Ivo’s work was a success. The number of surviving manuscripts suggests that of the three works identified with him, the most successful was the Panormia. It is a measure both of its influence at the time and of the progress that has been made on the study of Ivo in our own day that when Z. N. Brooke looked in the late 1920s, he was able to identify nine manuscript copies of the Panormia in English libraries.9 By contrast, a more recent survey made in the late 1990s © See Martin Brett, “Creeping up on the Panormia’ in Grundlagen des Rechts, 205-70. There is also a

Collectio tripartita, for which the ascription to Ivo is controversial. See Horst Fuhrmann, Einfluf und Verbreitung der pseudoisidorischen Fdlschungen (1972-4), 1. 378-9, Nn. 62. 7 See Robert Somerville and Bruce C. Brasington, Prefaces to Canon Law Books in Latin Christianity:

Selected Translations, 500-1245 (1998), 99-104, 132-58. 8 ibid. 156. 9 Z. N. Brooke, The English Church and the Papacy (1952, repr. 1968), 244-5.

FORMATION OF THE CLASSICAL CANON LAW 73 found twenty.!° The date on which these copies entered English libraries is not easy to establish, and it should not be assumed that their arrival in England took place within the lifetime of the author. None the less, their contemporary utility in England seems very likely. Apparently the volume’s very compactness was one of its attractions.

If we must treat that particular question with reserve, the English ‘entry among pre-Gratian canonical collections that can claim the most immediate success is that associated with the Conqueror’s archbishop, Lanfranc. In a European context,

this was a less significant collection,!! but it was important for the spread of knowledge of the canon law in England. Whether Lanfranc was the actual compiler is not certain, but the attribution is not implausible. A connection between the future archbishop and the influence of Burchard of Worms is even possible. Robert of Torigny’s chronicle from the twelfth century described the canonist as having been a student of the future archbishop while the latter was prior of Bec,!2 and Burchard’s Decretum appears in an early twelfth-century catalogue of the library of Bec.13 The likelihood that Lanfranc, born of a Pavian family with experience in the law, himself received training in the Roman or Lombard law while young is also not without evidence to support it, although none of it has proved entirely conclusive.!4 Whoever the actual compiler was, the Collectio Lanfranci was undoubtedly one means of bringing a more authoritative version of the law of the church to English dioceses. Like several such works, it was an abridgement of earlier collections; much of the Collectio was taken from Pseudo-Isidore, the mid-ninth-century

collection of conciliar canons (mostly genuine) and papal decretals (partly forged), that had been put together in France and had also served as the source of many Continental collections during the same period. Lanfranc (or whoever its compiler was) pruned much that was otiose or repetitious from this source, but 10 Kéry, Canonical Collections (above n. 2), 254-8; Lynn Barker, ‘Ivo of Chartres and the AngloNorman Cultural Tradition’ (1990) 13 Anglo-Norman Studies 15-33. 11 Gabriel le Bras, “Les Collections canoniques en Angleterre aprés la Conquéte Normande’ (1932)

11 RHD (4th ser.) 144-60, describing the Collectio Lanfranci, at 150, as ‘incomplete, archaique et

chronologique. 12 Chronique de Robert de Torigni, ed. Léopold Delisle (1872-3), i. 153. 13 Brooke, English Church and the Papacy (above n. 9), 57-8.

14 See Nino Tamassia, “Lanfranco arcivescovo di Canterbury in H. H. Fitting, Mélanges Fitting (1907), 11. 189-201, showing the use of legal terminology in Lanfranc’s works. See also J. H. Wigmore,

‘Lanfranc, the Prime Minister of William the Conqueror: Was he once an Italian Professor of Law?’ (1942) 58 LOR 61-81; but cf. R. W. Southern, ‘Lanfranc of Bec and Berengard of Tours’ in Studies in Medieval History presented to F. M. Powicke, ed. R. W. Hunt, W. A. Pantin, and R. W. Southern (1948),

27-48, at 28-30, holding insufficient the evidence to show his learning in the law. The evidence is reviewed in Margaret Gibson, Lanfranc of Bec (1978), 4-11, and H. E. J. Cowdrey, Lanfranc: Scholar, Monk, and Archbishop (2003), 6-8.

74 ESTABLISHMENT OF CONSISTORY COURTS without changing the essential meaning of the texts in that earlier collection.15 This effort was a quick success in England, despite its failure to place the texts according to their subject-matter. The number of copies of the manuscript suggests it was used. Z. N. Brooke concluded that its text was widely copied and was found ‘probably in every cathedral library and in some monastic libraries as well’ by the end of the eleventh century.!© When one looks for the law of the English church before the mid-twelfth century, it must be this collection to which one turns first. Other sources of advance helped too—for example, the work of Ernulf, bishop of Rochester under Henry I, who carried forward Lanfranc’s goals.!” But even if one can say no more than this with confidence, at least the diffusion of the Collectio Lanfranci is evidence of a growing need for a more secure knowledge of the church’s law. GRATIAN S$ DECRETUM

Much more could be said about the pre-1140 collections of canonical material on the Continent, and in the next section of this chapter a little more will be said about those collections designed to advance the claims of the papacy. However,

in seeking to understand the history of the canon law in England, it makes better sense to move to Gratian. His collection became the Decretum, normally so called in preference to its ‘official’ title, Concordia discordantium canonum, a title which better captures its purpose of bringing harmony from the discord-

ant canons inherited from the past, but does less to indicate its fundamental nature in the history of the law of the church. The Decretum opened up a fresh and lasting era in the canon law. It dwarfs in impact and ultimate importance all the work of earlier canonists, Lanfranc included, marking a divide between

the ius antiquum of the church and the tus novum. The earlier law became obsolete except as it was preserved (and it was preserved to a considerable extent) in the Decretum. 15 Mark Philpott, “Lanfranc’s Canonical Collection and “the Law of the Church”’ in Lanfranco di Pavia e Europa del secolo XI (= 51 Italia Sacra: Studi e documenti di storia ecclesiastica; 1993), 131-47.

16 See The English Church and the Papacy (above n. 9), 82; Robert Somerville, “Lanfranc’s Canonical Collection and Exeter’ (1972) 45 BIHR 303-6; Paul Fournier, “Note sur les anciennes collections canoniques conservées en Angleterre’ (1933) 12 RHD (4th ser.) 129-34; Fuhrmann, Einflufs und Verbreitung (above n. 6), ii. 420 n. 31; Michael Gullick, “The English-Owned Manuscripts of the Collectio Lanfranci (s.xi/xii)’ in The Legacy of M. R. James, ed. Lynda Dennison (2001), 99-117. See also Richard Gameson, The Manuscripts of Early Norman England (c.1066—1130) (1999), nos. 57, 116, 162, 266, 293, 295, 308, 310, 317, 341, 372, 538, 539, 593, 698, 845; Schafer Williams, Codices PseudoIsidoriani (1971), 78-83. 17 Peter Cramer, “Ernulf of Rochester and Early Anglo-Norman Canon Law (1989) 40 JEH 483-510;

see also Martin Brett, “The Collectio Lanfranci and its Competitors’ in Intellectual Life in the Middle Ages: Essays Presented to Margaret Gibson, ed. Lesley Smith and Benedicta Ward (1992), 157-71; Cowdrey, Lanfranc (above n. 14), 138-43.

FORMATION OF THE CLASSICAL CANON LAW 75 Unfortunately, little is actually known about the life or person of the father of the canon law.!8 Tradition has it that Gratian was a Camaldolese monk who taught at Bologna during the twelfth century. The contents and method of the

Decretum Gratiani make it natural to assume that it was meant for teaching purposes. It was certainly not an ‘official’ collection, any more than its predeces-

sors had been. It won its way by its merits. The traditional date given for its appearance is 1140. Although there is no real evidence to support that precise date, it cannot be seriously wrong. However, substantial uncertainties do surround the text of the Decretum as it first left Gratian’s hands.!9 It has long been known that

new texts were added to those Gratian had chosen, and they were part of the Decretum used throughout the Middle Ages and beyond. For example, the citations to Roman law seem mostly to have been additions to the earliest copies. There were other additions.2° Most of the material on the sacraments, for instance, was probably not in the first version. However, the changes were made soon enough in the twelfth century that it has been difficult to disentangle Gratian’s own selections from the others. However, serious attacks on this state of scholarly ignorance have recently been made. Work with the manuscripts has altered the situation, and it seems for the better. Although controversy has not been stilled, the discoveries have now made

it likely that we can identify the text of the Decretum as it left its compiler’s hands.?! It was a much thinner version even than prior scholarship had thought, and the date of its first composition slightly more doubtful. It was then subjected to addition and revision, both by the compiler and his successors, until it achieved something close to the full complement of texts that became the standard canonical point of reference. Whatever its internal development, the sources that made up the final version of the Decretum were very like its predecessors. Excerpts from conciliar decrees, papal 18 John T. Noonan, Jr.,“Gratian Slept Here: The Changing Identity of the Father of Systematic Study of the Canon Law’ (1979) 35 Traditio 145-72. For questions surrounding the man and his work, a con-

venient and reliable guide to the abundant literature is provided by Jean Gaudemet, Les Sources du droit canonique, VIIIe—XXe siécle (1993), 103-19.

19 See Gabriel le Bras, Histoire du droit et des institutions de L’Eglise en Occident: Tome VII, L’Age classique, 1140-1378 (1965), 49-129. 20 See Adam Vetulani, “Gratien et le droit romain (1946-7) 24-5 RHD (4th ser.) 11-48; Stephan Kuttner,

‘New Studies on the Roman Law in Gratian’s Decretum’ (1953) 11 Seminar 12-50; J. M. Viejo-Ximénez

‘Concordia y Decretum del maestro Graciano’ (1999) 39 Ius canonicum 333-57, and id., “El Derecho Romano “nuevo” en el Decreto de Graciano’ (2002) 88 ZRG, Kan. Abt. 1-19, the last two showing that Gratian must have been familiar with at least some parts of the Roman law. It is Winroth’s view that Gratian himself added Roman texts between the first and second redactions of the Decretum; see Anders Winroth, “Les deux Gratien et le droit romain’ (1998) 48 RDC 285-99. 21 See e.g. Anders Winroth, The Making of Gratian’s Decretum (2000); Carlos Larrainzar, “El Decreto de Graciano del Cédice Fd’ (1998) 10 Ius Ecclesiae 421-89; id., “El Borrador de la “Concordia” de Graciano: Sankt Gallen, Stiftsbibliothek MS 673’ (1999) 11 Ius Ecclesiae 593-666.

76 ESTABLISHMENT OF CONSISTORY COURTS decretals, church fathers, the Bible, and even royal legislation furnished the raw material from which Gratian began, as had prior collectors. All of them were taken from earlier collections, as was the normal course, rather than from ‘original’ sources.?2 In other words, the canons in the Decretum derived from St Augustine would have been taken immediately from Pseudo-Isidore, not from a copy of Augustine’s own writings. Of his more than 3,500 canons, it has been calculated that he took some 375 from among those found in Pseudo-Isidore. The same would have been true (with varied proportions) of other previous collections. In other ways, however, Gratian’s work was quite different from its predecessors. In some ways, it was not as good. Its texts were neither well or rigorously divided into distinct subjects, as were, for example, the texts in the collections of Burchard or Ivo. Nor were they arranged chronologically, as they were in the Collectio Lanfranci and in several of the earlier collections. On this account the Decretum would have been harder to use outside a classroom than the best of the prior collections, at least until the user had gained a ready familiarity with its contents. That comes with practice, but a complete index remains an indispensable guide for most of its students. What really marked Gratian’s work off as belonging to a different order, however, and what provided its immediate attraction in the twelfth century was his approach to the texts and in his way of handling them. The Decretum was not simply a compilation of texts, even an organized one. Instead, Gratian sought actively to derive a single meaning from the conjunction of older canons. He attempted to solve the contradictions in them. This was no easy task. An example or two may help to show the originality and the character of Gratian’s work. The first part of the Decretum contains 101 Distinctiones. They were devoted to a broad range of

topics, most of which involved the clerical order in one way or another. In Distinctio 50, Gratian asked whether the authorities he had previously cited forbidding the ordination of criminals had been meant to disqualify men who had done penance for their crimes. He began with twelve texts affirming that such men could not assume or continue in ecclesiastical office. A man guilty of murder should not be a part of the clerical army, which should be entirely free from the taint of bloodshed (Dist. 50 c. 5). After these authorities, in dicta (comments) of his own, Gratian changed course. He selected examples from the Bible (Aaron, Peter, Paul) to show that, once having done penance for their crimes, men could lawfully retain their orders and even be promoted in the clerical army. He then added twelve more canons to support this seemingly contrary position. But what about the first twelve? Gratian dealt with 22 Peter Landau, “Neue Forschungen zu vorgratianischen Kanonessammlungen und den Quellen des gratianischen Dekret’ (1984) 11 Ius commune 1-29; John H. Erickson, “The Collection in Three Books and Gratian’s Decretum’ (1972) 2 BMCL 67-75.

FORMATION OF THE CLASSICAL CANON LAW 77 them by suggesting (d.p. Dist. 50 c. 24) that the earlier canons could be reduced to

concord with those that followed because some of the clerics in the former involved had done penance only out of fear of the loss of their office, not out of mortification or distress at their own criminal act. It was this first group whom the canons had forbidden to continue in their ministry. By contrast, the latter class— the men whose penance was untainted by self-interest—might lawfully retain their orders and benefices. They might even accept promotion to the episcopate. Eight more canons followed, allowing Gratian to suggest refinements and other distinctions capable of reducing the canons to a still greater semblance of harmony. Some of the canons, he thought, might only be examples of rigor iustitiae, whereas others might be considered examples of relaxation through the application of mercy. All law must admit that one or the other of these two attitudes will apply in some circumstances. Since circumstances do differ, no fair observer can expect complete harmony in the formal results. Alternatively, it might be that there was a distinction to be drawn between crimes that were manifest among the people and those that were publicly unknown (d.p. Dist. 50 c. 32). If so, only in the first of these situations would the needs of the church have required a permanent ban on ordination. The goal of preventing ‘scandal’ among the people would be the law’s paramount goal. This distinction too might explain some of the contradictions that seemed so apparent in the texts. Later in the same Distinctio, in the course of providing yet more canons (there were sixty-nine in all), Gratian suggested still more possible ways of dealing with the texts and regulating the governance of the clergy. One was a ban on promotion to higher office, but not on retention of holy orders, in cases where clerics had done suitable penance for their crimes. Another was to differentiate between crimes according to their seriousness. The more heinous, the more likely it would be that the guilty cleric would be ousted from the clerical army. Thus, heresy might be a permanent disqualification, whereas impulsive killing would not. All these were possibilities. Indeed they were more than that. In the course of the later development of the canon law, it came to be held that even conviction of the most serious of ecclesiastical crimes could be ‘relaxed’ in the interests of “piety, necessity, or utility.23 The later canon law followed a path Gratian had laid out. A second, equally illustrative, example of Gratian’s method comes from the second part of the Decretum, in which Gratian put thirty-six causae or hypothetical statements of facts. It dealt with the law of proof. Causa 2 involved an accusation against a bishop that he had committed a ‘lapse of the flesh. One of the questions raised by the case was the number of witnesses necessary to prove the accusation’s 23 e.g, Die Summa des Paucapalea tiber das Decretum Gratiani ad C.1 q. 7, ed. J. F. von Schulte (1890, repr. 1965), 56-57.

78 ESTABLISHMENT OF CONSISTORY COURTS truth (C. 2 q. 4 cc. 1-3). Gratian began with three biblical references and one conciliar decree stating that the testimony of two or three reliable witnesses was sufficient to prove any fact. Then he provided two statements by popes apparently

requiring more. The latter stated that seventy-two suitable witnesses were required before an accusation against a bishop could succeed. Faced with this apparent inconsistency (and with a quite impossible standard of proof), Gratian explained these last two texts as having been made either by a ‘special privilege’ for clerics belonging to the Roman see or as having been made only because of the lack of probity among the particular accusers who had been noted in the papal letter requiring the higher number (d.p. C. 2 q. 4. c. 3). In the absence of such special circumstances, he concluded, the ordinary rule could prevail. Two unexceptional witnesses sufficed to support an accusation against this bishop. It is easy to criticize these efforts. The example involving accusation of a bishop

involved a summary dismissal of texts that had emanated from the supreme authority in the church. Gratian gave a perfunctory explanation for their dismissal. The texts themselves barely suggested the answers at which he arrived. His only apparent warrant was that he was himself ‘a learned exponent of legal doctrine’?4 His first effort, at Distinctio 50, cannot be called an obvious success either, at least in terms of compatibility with a functioning legal system. It could never have been easy for a judge in a public forum to apply the distinction between good

and bad purposes in assessing a clerical confession, as the first test under the Distinctio required. This might be done in the penitential forum, and a bishop might of course make a decision about the likely intent of a cleric involved in the exercise of his ministry. That would be a pastoral matter. But putting the distinction into practice in the public forum of an ecclesiastical court would have been hard to do within the rules of evidence that prevailed in the tus commune. These two examples are not unrepresentative of Gratian’s work.?5 For subtlety

one often searches in vain. There was little patient explication in many of his attempts to reconcile the texts. Still less was there any historical research. If his efforts are to be appreciated justly, however, they must be considered in light of the state of the canon law at the time. The two examples show him struggling with quite confused and contradictory authorities. They show him working out different ways of understanding them. They show the relevance of theological concerns

and biblical norms to his analysis. And above all, they show his strengths as a teacher in the schools. In that venue, he was the master. If he went beyond the wording of his texts, that is what it meant to teach more magistrali. Moreover, we need to remind ourselves that Gratian’s attention was not directed primarily 24 Paul Vinogradoff, Roman Law in Medieval Europe (1929, repr. 1968), 46, speaking of the anonymous author of the earlier Exceptiones Petri. 25 John Baldwin, The Scholastic Culture of the Middle Ages, 1000-1300 (1971), 74.

FORMATION OF THE CLASSICAL CANON LAW 79 towards courts of law. What distinguished him from Ivo of Chartres or Burchard of Worms was not a concern for litigation, but rather a studied effort to extract intellectual standards from contradictory texts. The standards did not come from a skilful arrangement of the texts. They came from Gratian’s attempt to discern what the purpose behind the texts might have been, or at least what it should have been. One recognizes the law professor in him. The impact of Gratian’s method and of the Decretum itself were decisive in the

event. The work was disseminated throughout Western Europe, including England, within a very few years after its appearance. In England, for example, John of Salisbury had it in hand when he was dealing with legal problems for Archbishop Theobald in the late 1150s.2 Bartholomew, bishop of Exeter from 1161,

used the Decretum Gratiani extensively in the preparation of his own ‘Penitential’.?” The controversy over the trial of clerics who had committed crimes, the legal issue that divided Archbishop Thomas Becket from Henry II during that decade, was discussed and debated using Gratian’s work.?8 It would of course be a mistake to assume from what well-educated men knew that familiarity with the Decretum, or even with the canon law more generally, was widespread

in twelfth-century England. Evidence to be surveyed in the second half of this chapter will show the contrary. There was a considerable level of ignorance. However, the Decretum was used to remedy some of the problems ignorance caused. In the process, the classical law of the church established a presence in England before the twelfth century was out. THE BEGINNINGS OF A LEARNED LITERATURE IN THE CANON LAW

Compilation and circulation of the Decretum was not the end of the story of the formation of the classical canon law. Indeed, it was only the start. Almost at once, glossing of Gratian’s texts began, and, as noted above, Gratian’s own texts were added to by others. A teacher named Paucapalea put together a collection of comments on the Decretum before the 1150s.22 Many others would follow. Commonly their authors would be called ‘decretists; in homage to the name commonly given to Gratian’s work: Rufinus of Bologna (d. 1192), Stephan of Tournai (d. 1203), Joannes Faventinus (d. 1190), and Simon of Bisignano (fl. 1175) 26 The Letters of John of Salisbury, Volume One: The Early Letters (1153-1161), ed. W. J. Millor and

H. E. Butler with revisions by C. N. L. Brooke (1955), 153. The most commonly held view is that the Decretum was being circulated in England ‘at the latest by the late 1150s’ and probably a little earlier. See C. & S. I, pt. 2, 780 n. 5.

27 An edition of the work can be found in Adrian Morey, Bartholomew of Exeter: Bishop and Canonist (1937), 175-300. 28 See Charles Duggan, “The Reception of Canon Law in England in the Later-Twelfth Century’ in Proc. Second International Congress of Medieval Canon Law, ed. Stephan Kuttner and J. J. Ryan (1965), 378-82.

29 Paucapalea, Summa (above n. 23).

80 ESTABLISHMENT OF CONSISTORY COURTS are some of the great names. Eclipsing their works in practical value, even while incorporating the best of their own comments, however, stood the glossa ordinaria. This contained explanatory notes and cross-reference to other texts of the canon

and Roman laws, and it quickly became the authoritative commentary on the Decretum. The gloss was put together by Joannes Teutonicus (d. 1245), revised by Bartholomeus Brixiensis (d. 1258), and made widely available during the thirteenth century. The contemporary tag, Quicquid non agnoscit glossa non agnoscit curia, sufficiently indicates its importance. The greatest of the decretists was probably Huguccio of Pisa (d. 1210), author of an influential Summa on the Decretum. Enough is known about that work to be sure its author brought energy and power of mind to the task of commenting on Gratian’s work. Huguccio had the ability ‘to transform a complex and disputed issue into coherent and clear-cut doctrine.3° His work made use of Roman law, and he took an irenic view of the relationship between regnum and sacerdotium without sacrificing the interests of the church to the secular power where it mattered. Unfortunately, his ability and industry have not yet been matched by an initiative of a later printer or any modern historian of the canon law. His great work remains in manuscript.

Together with works related directly to the Decretum, what might be called ‘ancillary’ literature soon began to be written. Some of it was the natural product of the schools: Distinctiones, Quaestiones, Repetitiones, and the like. But some of it was more directly tied to legal practice, most notably the procedural literature that appeared in quite considerable quantity during the second half of the twelfth century. Compiled in England and France as well as Italy, the earliest examples were based upon the Roman texts, but canonical sources soon began working their way into them after the appearance of the Decretum.3! They dealt with questions like

permissible procedural delays, the proper contents of a complaint, the role of proctors and advocates, and the use of oaths in court. The most famous and influential early example is the Ordo tudiciarius compiled by Tancred of Bologna in the second decade of the thirteenth century.?? It was eclipsed in popularity only by the

appearance of the larger Speculum tudiciale of William Durantis compiled in the second half of the thirteenth century. From this remove, it is difficult to judge these ordines iudiciarii aright. No one doubts the need for procedural works of some sort. The subject had been insufficiently covered by the Roman jurists.33 That the ordines made an advance by 30 Wolfgang Miiller, Huguccio: The Life, Works, and Thought of a Twelfth-Century Jurist (1994), 136.

31 See Knut Wolfgang Norr, “Die Literatur zum gemeinen Zivilprozess’ in Coing, Handbuch, 1. 383-97; Linda Fowler-Magerl, Ordo iudiciorum vel ordo tudiciarius: Begriff und Literaturgattung (1984). 32 Printed as Pillius, Tancredus, Gratia, Libri de tudiciorum ordine, ed. F. C. Bergmann (1842, repr. 1965), 87-316.

33 Hermann Kantorowicz, Studies in the Glossators of the Roman Law (1938), 70-2.

FORMATION OF THE CLASSICAL CANON LAW 81 promoting written, as opposed to oral, pleading is also widely (but not universally) agreed. However, some of the new works now seem almost absurdly simple, like those seemingly dedicated mainly to showing that three parties are necessary for a lawsuit: actor, reus, and iudex.54 What real use would they have been to a practising lawyer? Others among them seem to be just the reverse. They are pon-

derous, technical, and open to abuse, like the procedural Summa of William of Drogheda (d. c.1245), whose advice to lawyers Maitland accurately described as ‘none too honest’.35 They might have done more harm than good. Of the first kind, the simpler, it might be said on the positive side that they contain and stress the rudiments of due process of law, and that learning the necessity of observing those rudiments was a worthwhile and quite necessary task in the conditions of twelfth-century law. Ex parte decision by officials was at once a tradition and a threat. For all their simplicity, these newer works dealt with that problem. Of the second, the more complicated, it might be said that technicality

is the price of any developed system of procedure, and that some of William’s advice simply informed lawyers about how to avoid restrictive and palpably unfair rules of the English king’s courts. They too may have played a positive role in legal development. In linking them with the appearance of Gratian’s Decretum, however, it is common ground among historians that the ordines tudiciorum carried

forward the analytical methods of the father of the canon law. The movement, shared by both, led towards the creation of a functioning legal system.° If the appearance of the Decretum marked a decisive step forward in the creation of the canon law, the most important subsequent development came from the increasingly regular issuance of papal decretals. They too should be considered in assessing the growth of a learned legal tradition within ecclesiastical circles that emerged over the course of the twelfth century. Making self-conscious use of the

model of Roman imperial rescripts, decretals were letters written in the papal chancery in response to inquiries. Many were issued in response to appeals to the papacy brought from all over Europe; some grew out of questions about law put to the popes from bishops and others who were in need of authoritative guidance. It was an old process known to the church—within an English context, one need

only hearken back to the questions St Augustine had put to Pope Gregory the Great. But as the twelfth century progressed, the frequency of the practice accelerated. More appeals were made. More decretals were issued. They were put into

collections in turn. Innumerable commentaries and glosses would be written 34 For an example, see Fowler-Magerl, Ordo iudiciorum (above n. 31), 297-300. 35 FW. Maitland, “William of Drogheda and the Universal Ordinary in Roman Canon Law, 110. The work itself is printed as Die Summa Aurea des Wilhelmus de Drokeda in Wahrmund, Quellen, vol. 2:2. 36 E. J. H. Schrage, “Le Droit savant avant Accurse’ in L’Assistance dans la résolution des conflits (= 64:3 Recueils de la Société Jean Bodin; 1997) 7—31.

82 ESTABLISHMENT OF CONSISTORY COURTS upon them. They were used to discover what the law of the church was. With the literature of the schools, they would enlarge the scope and change the character of the canon law.

Roman Law and the Rise of Systematic Study of Law The story of the recovery of the Roman law Digest, the rise of the law school and the University of Bologna, and the beginnings of a more rigorous study of legal questions—all important parts of the Renaissance of the Twelfth Century—has been told so often and so well that it may be foolhardy to repeat it.3” Yet something must be said. Gratian’s Decretum was itself a product of that Renaissance. Many parts of the Roman law influenced the development of the canon law, and the course of the church’s law and its jurisdiction in England cannot be understood in isolation from it. Organized study of the Roman law actually occurred in England a hundred years and more before the establishment of permanent eccle-

siastical courts. To omit any consideration of the impact of that study would therefore leave a large gap in the history of the law of the English church. BEGINNINGS OF THE STUDY OF ROMAN LAW

The great compilation of Roman law, upon which virtually all our knowledge of the classical law depends, was undertaken by the Emperor Justinian and his minister Tribonian in the first half of the sixth century. What came to be called the Corpus iuris civilis, the fruit of their plans and labour, consisted of four books: the Digest, an extensive and rich collection of extracts from the classical jurists; the Codex, a gathering into twelve books of imperial constitutions; the Institutes, a basic manual of instruction for students beginning their study of the law; and (slightly later) the Novels, or imperial constitutions issued after the appearance of the other three books in the 530s. Of the four, the Digest was unquestionably the most important. Its books contained examples of legal reasoning at its most specific and at its best. The Digest, together with the other three books, was to exert a profound influence on the history of Western law, including the canon law, for centuries. They have not entirely lost their power even today. That influence was, however, a delayed one. Its language (Latin) was not understood by most of the Greek-speaking people of the Byzantine empire over which Justianian ruled, although abridged and amended translations were made for their benefit. In the West, the collapse of many imperial institutions at about the 37 See Peter Stein, Roman Law in European History (1999), 38-70; Stephan Kuttner, “The Revival of Jurisprudence’ in Renaissance and Renewal in the Twelfth Century, ed. Robert L. Benson and Giles Constable (1982), 299-323; Peter Weimar, “Die legistische Literatur der Glossatorenzeit’ in Coing, Handbuch, 1. 129-260.

FORMATION OF THE CLASSICAL CANON LAW 83 same time it was issued meant that the immediate impact of the Corpus turis civilis was less than Justinian must have hoped. During the early middle ages, no serious

study or development of the Justinianic compilation was undertaken. What impact it had—and this was not zero—was mediated through digests designed for

smaller groups and Germanic laws that incorporated extracts and phrases of Roman law without fully incorporating its substance. Charlemagne, for example, may have sought to rule and legislate on a Roman model. But he did not recreate

the legal system of the Romans. Roman law was used to interpret and teach Lombard law at a school at Pavia during the eleventh century.38 But in aspiration and in fact, it was a limited use, not the study of Roman law itself. Certainly this was the situation in England. There had long been some knowledge of the civil law, though it seems to have been of a minimal and crude sort. Roman law had been introduced under the guidance of the clergy and made itself at home even within Anglo-Saxon institutions. A determined study of the Roman law terms found in Anglo-Saxon sources has produced a surprisingly long list.39 What is lacking in the historical record, however, is a sign of any serious attempt to study the civil law or to apply it in a regular fashion. Maitland once described the use of Roman law terms in the Anglo-Saxon sources as ‘beggarly definitions which were regarded as a part of grammar.*° The ‘keen and exact legal argument’ that is the glory of Justinian’s Digest was absent, so far as he could see. This conclusion holds true as well for church and clergy as it does for the meetings of the traditional Anglo-Saxon courts.

It was the revival of scientific legal study in Italy that brought change. The revival did not have a single cause—it owed something to the needs for publicity

in the Investiture Contest, for example*!—and it is true that legal culture had not disappeared from Italy to the same extent that it had from northern Europe. A notarial culture and schools where law was taught kept the flame of Roman law alive in the south. It was, however, the gradual recovery of the Digest and the sub-

jection of its texts to careful examination and analysis within the schools that made possible a decisive move forwards. Beginning about 1070 and extending over the course of the twelfth century, this move marked a decisive break with the limited usages earlier made of the Roman law texts. The Digest is not an easy work to assimilate. Its texts all but demand explication. That it was assimilated and that it did attract commentators speaks to a readiness among its readers to move towards a more sophisticated law than the early Middle Ages had known. 38 See Charles Radding, The Origins of Medieval Jurisprudence: Pavia and Bologna 850-1150 (1988),

claiming a more expansive role for Pavia than the traditional account allows. 39 John Frederick Winkler, “Roman Law in Anglo-Saxon England’ (1992) 13 JLH 101-27. 40 Letter to Hastings Rashdall (1892), published in The Letters of Frederic William Maitland, Volume IT, ed. P.N. R. Zutshi (= 11 Selden Soc. (supp. ser.) 1995), 51. 41 J. S. Robinson, Authority and Resistance in the Investiture Contest (1978), 79-83.

84 ESTABLISHMENT OF CONSISTORY COURTS Although it occurred in several places, the launch of scientific legal study has long been associated with the University of Bologna and the jurists who taught there.42 Among the earliest of these men was Pepo, whom the Englishman Ralph

Niger later described as having taught from the texts of the Code and the Institutes during the last years of the eleventh century.43 More significant was Irnerius (d. c.1125), whose work with the texts of the Digest gives him some claim to be regarded as the first of the glossators. He was followed by the Four Doctors,

of whom the two most famous were Bulgarus and Martinus. Then came Azo (d. 1230), whose Summa on the Codex (c.1210) summed up the common learning

of the Schools. The work remained important for interpreting the law well into the sixteenth century. Even more important in this regard was Accursius (d. 1263), the compiler of the glossa ordinaria to the Corpus turis civilis that has provided the ‘way in’ to its meaning and its place in the law for jurists over the centuries. These pioneers had many successors, and the literature that sprang from their

pens was varied, vast, and influential.44 One has only to think of the immense works on the Roman law written by Baldus de Ubaldis (d. 1400) or Bartolus de Saxoferrato (d. 1357) during the fourteenth century. Or one may profitably take heed of the Summae, the Lecturae, the Brocardica, the Dissensiones dominorum, the Ordines tudiciorum, the Consilia, and all the small and large treatises on indi-

vidual subjects produced by medieval jurists and printed in multiple editions during the sixteenth and seventeenth centuries. Today, one expects a lawbook to last a generation or so at best. By contrast, theirs shaped legal argument in European courts for centuries. The treatises of the commentators, worthy as they are of investigation, cannot claim more than a brief nod in a book devoted to the canon law and its place in English history, except of course when they illuminate practice in the ecclesiastical courts. Only three more general points should be made about them to show their importance for the study of the canon law in England. First, they grew up in the same intellectual climate that produced Gratian and the canonists who followed him. This cannot have been accident. Second, they were used in the ecclesiastical courts in England throughout the period covered by this book. They were relevant, more relevant than the canon law itself, to some parts of the English church’s jurisdiction. Third, the Roman law was mixed together with the canon 42 Pierre Racine, ‘Bologne au temps de Gratien’ (1998) 48 RDC 263-84; Wolfgang Miller, “The Recovery of Justinian’s Digest in the Middle Ages’ (1990) 20 BMCL 1-30.

43 See Hermann Kantorowicz and Beryl Smalley, ‘An English Theologian’s View of Roman Law: Pepo, Irnerius, Ralph Niger’ (1941-3) 1 Mediaeval and Renaissance Studies 237-52, at 250; Ludwig Schmugge, “Codicis Iustiniani et Institutionum batulus—Eine neue Quelle zu Magister Pepo von Bologna (1977) 6 Ius commune 1-9. 44 Among useful works: Hermann Lange, Rémisches Recht im Mittelalter, Band I: Die Glossatoren (1997); Pierre Legendre, “Recherches sur les commentaires pré-accursiens’ (1965) 33 TRG 353-429.

FORMATION OF THE CLASSICAL CANON LAW 85 law in what is now generally called the European ius commune. There were always disagreements in principle and in detail between the two laws. The two were normally taught in separate faculties in the universities. And virtually all European

lands separated spiritual from temporal courts along the same lines (roughly speaking) as did the two learned laws. But there was a certain unity between them none the less. Texts from both the Corpus turis civilis and the Corpus turis canonict were cited as authorities with frequency by both the canonists and the civilians. Sometimes, particularly in the procedural literature, it becomes hard to discern any definite line between the two laws. ROMAN LAW AND THE CANON LAW

Blending of the two laws into a ius commune did not mean that no distinctions were drawn between them or that disagreements did not exist among the jurists within the two disciplines, although (characteristically) some jurists turned the problem to their own advantage by developing a special literature devoted to exploring the differences between the two laws.45 There was jealousy and opposi-

tion, particularly in the early days. And of course there would long be rivalry separating the courts of church and state in their claims to spheres of jurisdiction. So it would be in England, as in the rest of Europe, with many ups and downs throughout the Middle Ages and beyond. From the perspective of the comparative study of the two laws, at first the upper

hand belonged to the civilians. Revival of the study of Roman law within the schools occurred before the development of the classical canon law. The Roman law itself was older than were the canons of the church, and it was also vastly more sophisticated from a lawyer’s point of view. By comparison, the existing canonical collections cut a poor figure. Venerability, quality, and something like a head-start in organization thus gave an initial advantage to the civilians over the canonists.

The civilians held to the view that the Justinianic compilation was sufficient in itself to solve all legal problems.*® Many of them affected to disdain the efforts of

Gratian and his immediate successors.47 And who really can blame them? Although Gratian has been the subject of praise throughout later centuries, many 45 See the works, normally called “De differenttis legum et canonum or a close equivalent, listed in Van Hove, Prolegomena, 508-9, and Martin Lipenius, Bibliotheca realis turidica (1757), ii. 94. See also

Heinz Mohnhaupt, “Die Differentienliteratur als Ausdruck eines methodischen Prinzips friiher Rechtsvergleichung’ in Excerptiones iuris: Studies in Honor of André Gouron, ed. Bernard Durand and Laurent Mayali (2000), 439-58. 46 Dig. 1.1.10, s.v. negotia: ‘nam omnia in corpore iuris inveniuntur, given as a reason for not consulting theologians.

47 Bruno Paradisi, ‘Diritto canonico e tendenze di scuola nei glossatori da Irnerio ad Accursio’ (1965) 6 Studi medievali (3rd ser.) 155-287. Evidence of a more positive attitude towards the canon law is presented in Annalisa Belloni, ‘Azzone e il diritto canonico’ (1997) 83 ZRG, Kan. Abt. 249-71.

86 ESTABLISHMENT OF CONSISTORY COURTS of his efforts do seem ham-fisted when compared with those of the civilians at Bologna. Of course, the confusion in the sources with which he had to work restricted his choices and diminished his final product. Only when the depth of the problem is recognized does the scope of his achievement become apparent. The early civilians were not ready to make that concession. The early canon law, by contrast, could scarcely have ignored the Roman law. There was a certain hesitation about admitting worldly law among the canonists, and it may be that Gratian sought purposefully to exclude its wide influence. But the fact is that the Roman law texts were added to the Decretum, and Gratian himself endorsed use of the Roman law when it did not contradict the canons.48 It was predictable that teachers of the law of the church should have looked for authority to law that claimed a Roman heritage. The church itself had laid claim to be governed by the Roman law during the early medieval period. As a class, the clergy preferred it to local customary law. It was a firm opinion among the jurists

that the Roman law embodied in a special way principles of immutable reason and justice.49 Looking to Roman law was an ingrained or inevitable response. By the final decades of the twelfth century, citation of the Corpus turis civilis had

become almost instinctive on the part of the canonists themselves, although they had staked out the independence of their own law.>° To see this, one need only pick up a copy of the Decretum, select almost any page, and have a look at the glossa ordinaria. Citations to the civil law jostle together with those to the canon law. Reference to the laws of Rome was most natural and frequent in areas where

the canons were themselves silent. For instance, in deciding whether or not a minor's testamentary guardian (tutor) was required to deposit a bond to guarantee faithful administration of his duties, the canon law looked to (and found) a text in Justinian’s Institutes for an answer.>! However, use of civilian texts did not stop there. Parallels were regularly found between then current problems and

material found in the civilian texts. In defining the ability of a bishop to issue a sentence of excommunication against someone from outside his diocese, for example, a text from the Digest dealing with the powers of provincial magistrates could reasonably be regarded as relevant authority.>2 It supplemented the canons 48 dip.C.15 q.3¢. 4. 49 W. Senior, ‘Roman Law in England before Vacarius’ (1930) 46 LOR 191-206, at 193; see Stephan Kuttner, ‘The Revival of Jurisprudence’ in Renaissance and Renewal (above n. 37), 303-4. 50 The classic work is Pierre Legendre, La Pénétration du droit romain dans le droit canonique classique de Gratien a Innocent IV (1140-1254) (1964). See also Chris Coppens, “The Teaching of Law in the University of Paris in the first quarter of the 13th Century (1999) 10 RIDC 139-69, esp. 142-5; Brendan

J. McManus, “The Ecclesiology of Laurentius Hispanus (c.1180-1248) and his Contribution to the Romanization of Canon Law Jurisprudence’ (Syracuse University Ph.D. diss., 1991), 50-74. 51 Gl. ord. ad C. 9 q. 2 ¢. 7, s.v. et testimonio, citing Inst. 1.23.pr. 52 Gl. ord. ad C. 9 q. 2 ¢. 7, s.v. ordinandum, citing Dig. 2.1.10.

FORMATION OF THE CLASSICAL CANON LAW 87 on the subject. The parallel in reasoning that linked them was obvious. For the canonists, use of the Roman law appeared natural. Moreover, the Codex and the Novels contained the legislation of Christian emperors, and a substantial part of this legislation regulated church and clergy. These Roman law texts were regularly cited by the canonists, as for example in defining the status of an oeconomus, the officer who would come to be known to the English as the churchwarden. The canonists did not accept that the texts implied the legitimacy of imperial claims to legislate for church and clergy.>3 They viewed the existence of Roman law’s legislation for the church as impliedly recognizing the legitimacy, or rather the superiority, of spiritual government. The rules merely supplemented and clarified the canons.

There were limits, of course, to the utility of the Roman law. The canon law dealt with some subjects not covered by the Roman law. Titles on baptism, penitence, and canonical purgation—all found in the Decretals—had no counterparts in Justinian’s compilation. The canon law penetrated further into the details of family and religious life than had its temporal partner. There was also contradiction. A Roman law that permitted consensual divorce could not be taken into the law of a church that proclaimed the sanctity and indissolubility of the matrimonial bond. The canonists could not endorse texts exalting the powers of the Roman emperor, illustrated on so many pages of the Corpus turis civilis, except perhaps for purposes of drawing legal analogies. The civilian texts could not therefore be automatically accepted as statements of living law. Where they could not be harmonized with the canons, they were normally rejected. All things considered, however, contradictions were the exception, not the rule. The skill of the canonists in interpreting the ancient texts in the service of the church’s law, together with the timeless quality of many of the provisions in the Roman law, combined to produce a more comprehensive and useful law than had the canon law sought to find its own way unaided. The end-product was the ius commune. From the civilian side, it soon became impossible to continue the early disdain for the 1us canonicum. Not only were the civilians themselves subject to the canon law in their own lives, the rapid development of the canon law soon rendered that attitude intellectually indefensible. Papal decretals and the decrees of the Lateran

councils issued rulings to meet contemporary problems in a way established Roman law could not. Judges from the church’s side would put those rulings into effect in courts that stood side by side with those of the temporal authorities.

Just as important was the academic side. The canon law found a home in the European universities. The methods of analysis and the proliferation of learned 53 GI. ord. ad C. 9 q. 3 c. 3, $.V. oeconomum, citing Cod. 1.2.14. For a partial list, see Adolphe Tardif, Histoire des sources du droit canonique (1887, repr. 1974), 261-6.

88 ESTABLISHMENT OF CONSISTORY COURTS literature the civilians had developed also quickly became common coin among the canonists who taught in the university faculties. It did not take long before the civilians were themselves adding references to canonical sources in their own glosses.54 There is even some evidence to suggest that English jurists took a lead in the process, but it happened in many places.°> The political assumptions of the day—the creation of an expansive system of thought that envisioned leadership and control of the institutions of government by the papacy—also made it impossible, or at least unwise, for civilians to sneer at the law of the church. Before many years had gone by, the canon law would proclaim that, although it was committed in principle to the Gelasian principle of respecting the jurisdiction of temporal courts in temporal affairs, the church might nevertheless intervene in such cases ratione peccati. This prospect was formidable. It could mean that whenever sin threatened to upset the order of society or the achievement of justice, the clergy had the duty to intervene (X 2.1.13). In the face of such self-aggrandizing claims made on behalf of an institution that looked, at least for a time during the thirteenth century, to have the means of making those claims into realities, the civilians could not ignore the canon law, even in interpreting their own law. For many, the best course came to be to secure at least some training in both laws. Ambitious and learned men became doctores utriusque turis if they could. The effects of these changes were felt in legal systems throughout Western Europe, including England. They were welcomed by large segments of the literate

population, for they seemed to bring closer the possibility of true Christian governance. It would of course be an exaggeration to say they were welcomed by all. St Bernard of Clairvaux (d. 1153) spoke for more than himself when he complained that the laws of Justinian were crowding out the word of God.°*¢ It will

not do to dismiss his voice as hopeless nostalgia. His sentiments were widely shared, and they had real consequences—one of them was to delay creation of a permanent system of courts in the church. Nor would the sentiment disappear. Similar voices would be raised throughout the following centuries. What St Bernard feared occurred all the same. The changes would accord a more prominent place to law and legal institutions in the life of the church than would once have been regarded as welcome. They would lead to the creation of law faculties in the universities. Both the Roman and canon laws would then be taught as equals. These faculties would attract bright and ambitious young men. 54 Pierre Legendre, “Miscellanea Britannica’ (1959) 15 Traditio 491-7. 55 Legendre, ‘Recherches’ (above n. 44), 369-70.

56 De consideratione, lib. 1 c. 4 in Bernard of Clairvaux, Opera, ed. J. Leclercq and H. M Rochais (1963), ili. 399. See generally Amelia J. Uelmen, ‘A View of the Legal Profession from the Mid-twelfthcentury Monastery’ (2003) 71 Fordham Law Rev. 1517-41.

FORMATION OF THE CLASSICAL CANON LAW 89 And they would take their part in a profession of ecclesiastical lawyers, men who would make their living from the faults and the quarrels of the world.

The Papacy The chronological period covered by this chapter took place against the backdrop of a great movement for reform of the church. With that movement of thought

came also the emergence of active papal government, reaching down into the smallest corners of the household of the church.5”? The movement itself was not without ideological preparation. Virtually all the texts in the Decretum asserting papal primacy were taken from canonical collections of the first millennium. They stated old ideas. Even the appointment of papal legates, which figured so largely in the implementation of papal power, was new only in its regularity and extent.58 However, in working out of the practical implication of old rules, a change so dramatic occurred that it has been described as a “Papal Revolution in government.5? It was a fundamental change in the church’s role in society. There has been controversy about the term. Some other historians have preferred the term “Gregorian reform’ in order to assert the continuity of papal government over long centuries and in tribute to the imposing figure of Pope Gregory VII (1073-85), whose Dictatus papae (1075) has long stood as the most unequivocal assertion of papal authority made during the period. Still others have retained the title “Investiture Contest’ in recognition of the era’s most sensational clash between old and new ideas. In terms of public controversy, this older term well describes the dispute. Under whatever label one chooses, memorable and dramatic events occurred: the efforts to free the papacy both from the influences of the Roman crowd and the directions of the German emperors, the actions designed to root out simony and clerical marriage throughout the church, the definitive break in relations between the churches of East and West, the struggles against lay investiture of bishops and lay participation in episcopal elections, the dramatic humiliation of the Emperor Henry IV at Canossa. All these are familiar events. Here they must be set to one side, except

in so far as they had an effect on the development of the law of the church in England. Self-denial does not require that they be wholly ignored, however, for like the other two subjects just treated, it turns out that there were many connections between events in Rome and the growth of ecclesiastical jurisdiction in England. 57 Colin Morris, The Papal Monarchy. The Western Church from 1050 to 1250 (1989). 58 The standard work is Helene Tillmann, Die papstlichen Legaten in England bis zur Beendigung der Legation Gualas (1218) (1926). 59 Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983). 60 For a study of its meaning and sources upon which it was based, see Karl Hofmann, Der ‘Dictatus

Papae’ Gregors VII: Eine rechtsgeschichtliche Erkladrung (1933); Brigitte Szabé-Bechstein, Libertas Ecclesiae: Ein Schliisselbegriff des Investiturstreits und seine Vorgeschichte (1985), 138-92.

90 ESTABLISHMENT OF CONSISTORY COURTS That the bishop of Rome occupied the first see in the church was a venerable tradition in the Western church during the twelfth century. The necessity for papal approval of conciliar decisions and the pope’s right to act as the final judge of causae maiores were also long accepted, if somewhat more controversial, principles of the church’s law. In 1071, for example, Archbishop Lanfranc consulted Pope Alexander II about the conditions under which two prelates who fell under his jurisdiction might undo the ‘spiritual marriage’ that linked a bishop and his church. Could they do so by resignation or translation to another see?®! In consulting the pope, the archbishop’s action was in accord with norms of canonical authority. The Dictatus papae (cc. 3, 13) reserved the power to depose bishops or to move them from one see to another to the Roman pontiff.

What was new in the twelfth century was the possibility that the papacy would take a direct hand in the everyday running of distant churches and even enter into the regulation of the lives of ordinary men and women throughout

Western Europe. The causae maiores did not include routine disputes over inheritance rights or everyday quarrels between husbands and wives. Nor did they encompass the regular supervision of the behaviour of individual clergy or the fabric of particular churches. These things had been left to local authorities.

Intervention from higher up was, to be sure, a logical deduction from documents like the Dictatus papae and several canonical collections. They asserted that the papacy had a responsibility and the power to secure justice for all, at least all those who sought its aid. But practice had been slow to follow logic on the point, and the papacy was a conservative institution in many respects. It had no bureaucracy to hand in any event. Indeed, it is true that, outside the great

issues of the day like simony or clerical marriage, the primary impetus for change came from the pressure of those who sought to use the papacy’s power for their own ends. Previously, this had occurred most often when representa-

tives from monastic houses came to Rome to seek papal privileges in their favour. In the twelfth century, ordinary men and women began to do the same. The reasons for seeking papal intervention in ordinary cases were many and

varied. A desire to have recourse to the papacy depended on the particular desires and needs of individual litigants. However, if the motivations were disparate, they worked in the same direction. They had the effect of expanding the canon law’s reach. They were a primary means by which active papal government moved closer to becoming the fact.®? In seeking to trace the history of the canon law in England, this aspect of ecclesiastical history deserves pride of place. There was a huge difference, even a gulf, between the legal world 61 See Letters of Lanfranc, no. 2.

62 See e.g. the discussion in J. T. Gilchrist, “Canon Law Aspects of the Eleventh Century Gregorian Reform Programme’ (1962) 13 JEH 21-38.

FORMATION OF THE CLASSICAL CANON LAW 91 depicted in the Collectio Lanfranci and that of the glossed Corpus turis canonict.

Developments centred around the papal court were vital in bringing that difference into being. CANONICAL COLLECTIONS

The character of the principal canonical collections of the eleventh and twelfth centuries was sketched above, and the quickening pace of their production was asserted. Little has been said, however, about the collections that were used to

assert the primacy and the power of the papacy in securing reform of the church. Something should be. However mistaken they were, the reformers believed they were doing nothing more daring than to restore the ancient law of the church. Restoration required better canonical collections. Existing collections were found wanting in several respects. Indeed, some of them were tainted by their strong similarity to the old libri penitentiales. For instance, in a diatribe against the ‘cancer of sodomy’ then said to be spreading with “shameless

abandon’ among the clergy, Peter Damian complained about the ‘faulty and sacrilegious deceits’ found mixed in with genuine canons in the material of the available collections.®3 He thought that it was possible to do better. Indeed, it was Imperative. Out of this desire, many new collections came into existence. At least four were begun or finished during Peter Damian’s time. Their fate varied. Some of these new collections became important up to the time of Gratian. Some of them languished in the obscurity of single manuscripts. One of the best examples of the former is the Collection in Seventy-Four Titles, composed in Rome, probably during the pontificate of Leo [IX (1049-53), by an unknown author.® By pruning prior collections of unnecessary or erroneous canons, searching out more suitable papal

decretals, both genuine and fabricated, and organizing them more carefully, its author put together a manual of canon law that was fully compatible with the contemporary movement of reform. It is true that a good deal of its content was not directly related to the papacy, or even to reform of the church properly speaking, but that was true of virtually all canonical collections. It did none the less assert papal rights clearly. It stated canonical rules important in the reform movement in uncompromising tones. The decisions of the popes were to be final. They should be carried out without dissent. The Collection stated these as rules of law, and it was widely used from the 1070s until Gratian’s Decretum appeared in the middle of the next century. 63 Die Briefe des Petrus Damiani, no. 31, ed. Kurt Reindel (= MGH, Epistola, 1983), i. 300.

64 See Diversorum patrum sententie sive Collectio in LXXIV titulos digesta, ed. John T. Gilchrist (1973), trans. by the same scholar, as The Collection in Seventy-Four titles: A Canon Law Manual of Gregorian Reform (1980).

92 ESTABLISHMENT OF CONSISTORY COURTS Among those users was the author of a second illustrative and important collection of the time, the Collectio canonum by Anselm of Lucca (d. 1083).® His work went beyond the Collection in Seventy-Four Titles in the range of sources

he used, and at least in the judgment of its most recent student, Anselm’s work transmitted to his readers the most important precepts of the Dictatus papae. No synod was authoritative without the pope’s consent; only the pope had the right to make use of the imperial insignia; the Roman church was founded by God alone; it had never erred; the popes had the power to absolve subjects from oaths of fidelity. Ideas like those found in the Dictatus papae were not without precedent. Nor were they simply papalist propaganda. They were meant to be observed. They were the product of a belief that a single figure whose considered decisions were beyond challenge would be able ‘to discipline, order, and reform’ the church and clergy. He must be able to do so without the interference and insistent talk about customary rights on the part of the laity. God had provided just such a figure in the successor to St Peter.6”? The canon law was thus to be a means for advancing God’s government on earth. PAPAL DECRETALS

Papal decretals provided one of the chief ways the program of reform in the church was advanced, and they became the chief way the canon law took the shape it would retain for centuries. In the most general terms, papal decretals are defined simply as the formal answers to questions that had come before a pope. Borrowed originally from imperial practice, a decretal letter was a rescript, a written answer to a query from an official or private person. It was not therefore ‘legislative’ in a modern sense. It might, for example, have been meant only for one particular situation.°8 However, papal decretals might also contain an authoritative statement of the law, just as the imperial rescripts had. Some of them were issued in

response to appeals from disputes being heard throughout the Western church. 65 The standard edition is: Anselmi episcopi lucensis Collectio canonum una cum collectione minore,

ed. Friedrich Thaner (1906-15, repr. 1965). See also Renato Montanari, La ‘Collectio canonum di S. Anselmo di Lucca e la riforma gregoriana (1941); Szabolcs Szuromi, “Some Observations regarding the Sources of “Collectio Anselmi Lucensis”’ (1999) 10 RIDC 335-40. 66 See Kathleen G. Cushing, Papacy and Law in the Gregorian Revolution: The Canonistic Work of Anselm of Lucca (1998), 106-10. It has been shown that few of Gregory VII’s statements worked their

way into the canon law. John Gilchrist, “The Reception of Pope Gregory VII into the Canon Law (1073-1141) (1973) 59 ZRG, Kan. Abt. 35-82, and pt. 2 in ibid. 66 (1980), 192-229. Cushing shows, however, that the main ideas contained in the Dictatus Papae were incorporated, without necessarily being

taken directly from that source. 67 Cushing, Papacy and Law (above n. 66), 120-21. 68 For example, in 1325 a question was raised about a constitution of Pope Boniface VII: whether it

had been meant as ius speciale et locale, or instead had been of more general import. See Literae Cantuarienses, ed. J. B. Sheppard (= 85:1 RS; 1887-9), no. 166.

FORMATION OF THE CLASSICAL CANON LAW 93 Others were responses to bishops, uncertain about a point of law or an administrative problem, who consulted the Roman pontiff. In either case, they might have been intended as statements of the general law of the church. The pontificate of Pope Alexander III (1159-81) saw a numerical expansion of both kinds. In a few instances—not so much in the twelfth century, but with greater frequency in the thirteenth—papal decretals could take the form of unsolicited rulings establishing a particular point of law. Papal decretals never entirely replaced the canons enacted by councils of the church as a way of enacting and affirming the law of the church rules. The introduction of councils embracing the entire Western church, convoked under the presidency of the papacy, marked out one of the most significant parts of the church’s programme. Taking action in a council was of course the traditional form of clarifying old and enacting new law, and one has only to think of the decrees of the four Lateran Councils held during these years (1123, 1139, 1179, and 1215) to recall the idea’s continuing vitality.°° The Councils of Lyons that followed

in the thirteenth century demonstrated that the holding of councils was not incompatible with papal monarchy. They were useful on many levels. Papal legates, sometimes the pope himself, also presided over many more regional councils during these years. Diocesan and provincial meetings also expanded the scope and frequency of ecclesiastical legislation. At the same time, papal decretals did assume a regularity of place in the life of the church that they had not had before. One test of the validity of a synodal statute would be its compatibility with the decretals—testimony to the juridical force they took on. And like Gregory the Great’s answers to Augustine, papal decretals were

often kept even after the matter to which they related had come to an end. The recipients retained them. Others sought them out. By the twelfth century they were also being collected by those who were interested primarily in the rules they contained. No other source furnished a more up-to-date statement of the law, and they might be useful for the next dispute or for solving an unexpected problem. Collecting papal decretals in a usable form was a demanding process. It seemed never ending, so great was the output flowing from the papal chancery during the

second half of the twelfth century.7° But it seems to have been done eagerly. English canonists were among the most assiduous of the collectors, and the most assiduous of modern students on the subject has described them as having played ‘the formative role’ in the eventual codification of these decretals.”! Rather like the Libri penitentiales of earlier times, the earliest collections were taken from the 69 See Raymonde Foreville, Latran I, I, III et Latran IV (1965), 96-158, 287-306. 70 See Gaudemet, Eglise et Cité (above n. 1), 380. 71 Duggan, “The Reception (above n. 28), at 366.

94 ESTABLISHMENT OF CONSISTORY COURTS British Isles to the Continent, where they were improved and expanded.”2 Nor was this all. Some of these collections were themselves glossed by the jurists. The new collections established a place for themselves in the schools, and the popes themselves took an interest in their authenticity and utility.”3 By the early thirteenth century, five of these collections, now known collectively as the Quinque compilationes antiquae, had emerged as the most widely accepted and reliable.”4 However, much as happened to the older canonical collections with the advent of Gratian’s Decretum, these five collections, and of course all the others, were rendered obsolete by the work of one man, Raymond of Pefiafort. His efforts were

contained in a book called the Liber extra, or as it is more commonly known today, simply ‘the Decretals. Pope Gregory IX commissioned him in 1230 to bring

the essential law stated in the Decretals together into a single work. The multiplicity and inconsistency of the existing private collections made such a definitive, official collection highly desirable. Gregory IX also gave his editor a relatively free hand in carrying out his work. Raymond made good use of his freedom. He fol-

lowed the general model of the prior Compilationes, editing the Decretals so that they would more clearly state the church’s law. But he did not stop there.’5 He removed superfluous information from the texts, eliminated doubts and contradictions in them, altered phrases and words in the interest of coherence, and divided individual decretals into separate parts, parcelling them out among different titles according to the subjects they contained. The result is not a code in the sense we use the term today. It did not pretend to state all the church’s law. It admitted—aindeed it required—additions and commentary. The Gregorian Decretals were, however, a far more orderly and complete statement of the canon law than could be found in Gratian’s Decretum or in any of the prior decretal collections. The first book in the new Decretals dealt with the constitution and organization of the church; the second with jurisdictional and procedural rules, the third with regulation of the clergy, the sacraments, and ecclesiastical obligations; the fourth with marriage, divorce, and domestic relations; and the fifth with the criminal law of the church. It built upon the Decretum, not diverging from it on most points, but also including the changes in the church’s law (as in the law of marriage) that had intervened between 1140 and 1234. With a small amount of practice, this new book was not too difficult to use, although 72 Charles Duggan, Twelfth-Century Decretal Collections and their Importance in English History (1963), 124-5.

73 See e.g. Kenneth Pennington, “The Making of a Decretal Collection: The Genesis of Compilatio tertia in Proc. Fifth International Congress of Medieval Canon Law, ed. Antonio Garcia y Garcia (1980),

67-82. 74 It was edited and published under that title in 1882 by Aemilius Friedberg. 75 Stephan Kuttner, “Raymond of Pefafort as Editor: The “decretales” and “constitutiones” of Gregory IX’ (1982) 12 BMCL 65-80.

FORMATION OF THE CLASSICAL CANON LAW 95 almost from the start, aids to using it were compiled. They must have met a need. The alphabetical arrangement found in some of these aids gives evidence that the problems modern historians often have in locating the texts of the tus commune were shared in some measure by the canonists and civilians of the time.7° Raymond had completed his efforts in response to the papal command by 1234. He presented it to its patron, a scene memorialized by many illuminations still found in manuscripts and early copies of the Corpus iuris canonici, and it was given a more ‘official’ status when the pope sent it to the University of Bologna to

be incorporated into the ordinary teaching of the canon law. That Gregory IX chose this method of promulgation, rather than a more general pronouncement to the bishops or officials of the church as a whole is testimony, among other things, to the importance of the university faculties and the academic lawyers in the overall development of the canon law. The glossa ordinaria to the Gregorian Decretals, which were undertaken by Bernard of Parma, became available within ten years of their publication, though its compiler continued to revise the gloss until his death in 1266. It too was an effort of the academy. Lawmaking in the medieval church did not cease with the compilation of the Liber Extra. Councils met and issued canons. Popes decided cases and issued decretals. These sources of law were in turn placed into collections. The next such collection to find a place in the Corpus iuris canonici was Boniface VIII's Liber sextus (1298), and a few more followed during the next century.

It was upon the contents of these books that the canonists focused their Summae, Lecturae, and Commentaria. The most famous among them—Hostiensis (d. 1271), Innocent IV (d. 1254), Joannes Andreae (d. 1348), and Panormitanus (d. 1445 or 1453), along with a host of lesser lights—thereby communicated the

ius novum to practising advocates and proctors, as well as to students in the Schools out of which they came and in which many of them taught. By the end of the thirteenth century, one can speak of the classical canon law as an accepted part of the European legal world. It had reached a certain maturity. Although perhaps not everyone would have said so, the canon law had also reached a place where one can speak of its rough equality with the Roman law. At least this was true of the level of attention devoted to it in the universities, and certainly with respect to the practical impact it had on the lives of men and women throughout Europe. PAPAL JUDGES DELEGATE

A text placed in Gratian’s Decretum (C. 9 q. 3 c. 17) proclaimed that the pope had

the power to judge all men. This became one of the cardinal principles of the movement of Gregorian reform and a basic assumption of the classical canon law. 76 See Weimar, “Die legistische Literatur’ (above n. 37), 1. 258-60.

96 ESTABLISHMENT OF CONSISTORY COURTS The pope held the authority, and perhaps even the duty, to secure justice to all who appeared before him. He himself could be judged by no one. His decisions were final. The pope was not required to act within a synod, and it was open to all Christians to call upon him, either in the first instance or to remedy an injustice against them by another official. Papal jurisdiction was bounded primarily by prudence and divine law. This was the claim, made famous for historians of English law by FE. W. Maitland, that the pope was a ‘universal ordinary for all Christians.”” One might say that the Roman church was itself regarded as the very embodiment of tustitia.78

Following the course of the canon law in England will require further reference to this subject. For purposes of coming to grips with the system of delegated papal jurisdiction, however, it is more immediately important to see how it was implemented in the church at large. Stating the prerogatives of the apostolic see was one thing. Putting them into effective execution was another, particularly when matters of no great moment began to come before the Roman court in greater numbers, as they did over the course of the twelfth century.79 The institutions that existed at the court around the turn of the twelfth century were quite unprepared for an influx of litigation. The papal chancery was a venerable institution. Papal notaries were grouped into a college under the leadership of a primicerius already by the pontificate of Gregory the Great. They produced some impressive documents.®° But there were no permanent judges, no Rota Romana, no cadre of proctors and advocates. They were not ready to deal with a flood of appeals and complaints to the see of St Peter. At the time when Pope Gregory VI occupied the papal chair and William the Conqueror crossed the Channel to establish his claim to the English throne, none of these institutions had yet come into being. Just how they did come into existence has never been worked out in full detail, and it is doubtful that it now can be. The most important institutions for legal purposes, the Audientia publica and the Audientia litterarum contradic-

tarum, are not visible in the sources before the pontificate of Innocent III (1199-1216), but they must have been in the process of development already in the last half of the twelfth century. The number of papal letters issued in contested cases and the growth in standardization of the forms used to appoint the 77 Maitland, ‘William of Drogheda and the Universal Ordinary’ (above n. 35), 100-31. 78 See Walter Ullmann, The Growth of Papal Government in the Middle Ages (2nd edn, 1962), 274-6. 79 It was said close to the time that appeals to the apostolic see first came into regular use in England during the legation of Henry, bishop of Winchester (1139-43); see Henry, Archdeacon of Huntingdon, Historia Anglorum: The History of the English People, ed. and trans. Diana Greenway (1996), 756-7. 80 For their importance in English documents, see Jane Sayers, “The Influence of Papal Documents on English Documents before 1305’ in Papsturkunde und europdisches Urkundenwesen, ed. Peter Herde and Hermann Jakobs (1999), 161-99.

FORMATION OF THE CLASSICAL CANON LAW 97 judges testify to increasing specialization and sophistication in legal matters.*! The long pontificate of Alexander III (1159-81) was especially important in this movement towards standardization, although surely it had begun already a dozen or so years before. What is readily apparent in the sources is that, for the ordinary run of causes brought before the Roman court, judges other than the pope or his most immediate subordinates had to bear the burden. Others were regularly appointed to hear, and usually also to determine, the outcome. In causes brought from far away, it made sense to have the judges selected from the location where the dispute had arisen in the first place. That is also where the witnesses would have been. The terms of the letters under which the cause would be heard in practice were settled beforehand in the Audientia litterarum contradictarum. The way for this system had been prepared. Like most developments in papal government, this one built on established precedent. Delegated jurisdiction was a feature of the Roman law (Cod. 7.62.32),82 and this pedigree surely encouraged adoption of the procedure in the canon law. The appointment of papal legates, too, was an established practice, and it made familiar the idea that the powers of the apostolic see could be delegated to others. In practice, this meant that although an appeal from the decision of a diocesan bishop or a complaint lodged in the first instance before the papal court might be determined in Rome, more often this is not what happened. Only

the most important cases were retained. Ordinary cases were delegated by a process that became a routine. The outcome was rational. The witnesses and at least one of the parties would

normally not have been present at the Roman court, and it would have been inconvenient for a crowd to have made the trip. Where the stakes were not high, it was only prudent to depute a bishop of the local church, or even (as happened increasingly in the thirteenth century) another local dignitary with legal knowledge or a prestigious office to deal with the case. The parties themselves were normally permitted to suggest the names of suitable judges for appointment in the rescript of delegation, and means were worked out for dealing with the inevitable problems of self-interest this procedure entailed. Standards of status, capacity, and impartiality were imposed. Recusal of suspect judges became possible. Limited forms of delegation were provided and put into use. Thus evolved the institution 81 Peter Herde, Audientia Litterarum Contradictarum: Untersuchungen tiber die pdpstlichen Justizbriefe und die papstliche Delegationsgerichtsbarkeit vom 13. bis zum Beginn des 16. Jahrhunderts

(1970), 1. 20-5; Jane Sayers, “The Court of “Audientia Litterarum Contradictarum” revisited’ in Forschungen zur Reichs-, Papst- und Landesgeschichte. Peter Herde zum 65. Geburtstag, ed. Karl Borchardt and Enno Biinz (1998), i. 411-27.

82 See generally Hermann Conrad, Die turisdictio delegata im rémischen und kanonischen Recht (1930).

98 ESTABLISHMENT OF CONSISTORY COURTS of papal judges delegate that left such a mark on the records of the English church during the late twelfth and early thirteenth centuries.8? The process by which the institution was shaped and refined is plainly visible in the title of the Gregorian Decretals called De officio et potestate iudicis delegati. It also gives evidence of the scars incurred during the process; the title occupied the relatively large number of forty-three chapters of book I. The decretals in it covered many of the problems likely to arise from attempting to mesh local and papal institutions. A representative example was deciding what should be done when one or more of the judges appointed in Rome could not take part in the litigation. Given the high status of most judges delegate, this was bound to occur with some frequency. Should the absent judge be allowed to delegate his own authority by naming a new judge, or should a sentence given by the other two stand as valid despite his absence? The answer turned out not to be entirely straightforward.* It depended on the wording of the individual rescript and other circumstances. In most instances subdelegation was permitted (X 1.29.6), if there was a good reason for it, although whether the process of subdelegation could validly be done only for part of the litigation remained open to doubt. For the other question, the com-

mon practice developed of adding a clause, called Quod si non omnes, to the rescript, permitting two of the judges appointed to act in the absence of the third (X 1.29.21-2), but enough exceptions to this rule were added, and no one claimed the underlying problems had been solved. The system was natural and had advantages, but its deficiencies are all too obvious. It was time consuming. It was expensive. It gave rise to fraud and forgery of papal documents.®> It invited appeals and then further appeals to the papal court,

seemingly in quite trivial matters, matters that might better have been settled closer to home. In most respects, the efforts made at the papal court to stem frivolous appeals were unavailing.8° The English case of Richard of Anstey, involving questions of marriage and succession to land and also proceedings before papal judges delegate, has become almost a symbol of a legal system gone wrong right from the start.8” The litigation consumed huge amounts of money—Richard kept 83 See Jane Sayers, Papal Judges Delegate in the Province of Canterbury 1198-1254 (1971); Introduction, Papal Decretals relating to the Diocese of Lincoln in the Twelfth Century, ed. Walter Holtzmann and Eric Kemp (= 47 LRS; 1954); George Pavloff, Papal Judge Delegates at the Time of the Corpus iuris canonici (1963).

84 e.g. X 1.29.3, permitting subdelegation unless the matter was of such gravity that without the presence of the particular judge it could not be easily settled. 85 C.R. Cheney, Pope Innocent III and England (1976), 104-16, esp. 110-12. 86 See C. R. Cheney, From Becket to Langton: English Church Government 1170-1213 (1956), 54-863 Morris, Papal Monarchy (above n. 57), 573-7. 87 Patricia Barnes, “The Anstey Case’ in A Medieval Miscellany for Doris Mary Stenton (= 36 Pipe Roll Soc. (n.s.); 1962), 1-24; Paul Brand, “New Light on the Anstey Case’ (1983) in Essex Archaeology and History 68-83. The vices shown by the case were fully matched by those of the royal courts.

FORMATION OF THE CLASSICAL CANON LAW 99 a record of his expenses—and it occupied more than five years for the cause to come to a close. Although it might have appeared to some litigants that the statement routinely added to rescripts forbidding further appeals should have prevented abuses, and although a judgment made by a representative of the apostolic see should have been unassailable compared to that of a mere bishop, all too often nothing of the sort occurred. Decisions by papal judges delegate did not prove immune to attack. The system proved unwieldy. Can anything be said to balance this evident, and evidently quite justified, criticism? Yes. At least three things can and should be added to the balance. They may not outweigh the defects of the system, but they do add something in the way of substance in weighing up the merits of the system. First, the regular institution of papal judges delegate was an important means by which the papal monarchy became effective in practice. Establishing a more uniform government for the church as a whole was one of the avowed goals of the Gregorian reformers. In their eyes, this had to be done by the papacy, for the Roman church was the guarantor both of the church’s unity and its fidelity to God’s law. In the conditions of the time, there was little alternative to something like the system of delegated jurisdiction, if that larger goal was actually to be achieved. Standards of communication would not have admitted anything else. It seemed that only men armed with the authority of the papal office could carry forward the church’s mission. In a sense, creation of the system of papal judges delegate was inevitable. Second, the system was the mechanism by which the canon law itself was clarified and advanced. Papal rescripts of delegation stated the law that was to be applied in the case. ‘If the facts are so and so, then such and such a result should follow, they proclaimed. It was for this reason that jurists in England, as elsewhere, found the rescripts particularly worthy of collection after a particular case had come to a close. Given the uncertainties in so many areas of the law of the church—marriage and divorce, the tithe obligation, and the law of procedure all furnishing apt examples—this system had beneficial consequences. Perhaps they were only incidental consequences, and certainly making new law was not the expressed purpose of the system. None the less, that is what happened. New and needed substantive law was put into place.

Third, no adequate alternative existed at the time. It has sometimes been assumed that appeals to papal judges delegate were made in lieu of following the normal course of appearing before a local ecclesiastical court. This is true in a sense. It did mean going beyond the resources available locally. However, at least in England, no system of consistory courts came into existence before the midthirteenth century. Waiting for an opportune synod or seeking intervention by a bishop or archdeacon would have been the only real alternative for many people with legal complaints which they desired to have heard in a formal setting. That

100 ESTABLISHMENT OF CONSISTORY COURTS sort of intervention was not always easy to arrange, even though the canonical duty to do justice to their subjects would probably have counted for something with most bishops or their deputies. It is notable that once permanent diocesan courts had been established in England, signs of the activities of papal judges delegate become scarcer. By that time, the canon law in general and its study in particular had reached a stage of maturity where local decision, subject always to the possibility of appeal, might occur without threat to the principles upon which the church’s law was established.

The Achievement of the Canonists Bringing a measure of harmony to the discordant laws of the early Middle Ages is widely regarded as the greatest achievement of Gratian and the tus novum of the church. So it may be. The methods used by Gratian and his successors in the schools to work out the law of the church were the foundation of the classical law. They were used repeatedly and fruitfully. Coming to terms with Roman law has always, and rightly, been regarded as another step forwards. It led to the creation of the ius commune that remained a potent force in European law for centuries. Separation of the realm of law from that of theology may also be regarded as a positive attainment of the canonists. The growth of prestige for the canon law that followed was impressive enough, and important enough in its conclusions, to attract the resentment of many theologians.8® However, before turning to the situation in England, a short backward glance at the general subject is worthwhile. The canonists sought, and largely accomplished, three goals that are not fully captured by a study of either the methods Gratian used or an examination of the status of the revived Roman law. FRAMING A WORKABLE LAW

The first of these achievements was to bring a more regular order to matters that had previously been left unregulated and were therefore open to local custom or individual choice. It is not too much to say that it was this effort that ultimately

permitted the church’s law to be put into practice. More often than not, the change occurred by creation of a more exact mechanism of government. That mechanism was placed into the hands of a bishop or some other ecclesiastical official, and it allowed the official to enforce the new law.

The process by which lay control over local churches became the system of presentment, in England called the law of advowsons and on the Continent the 88 See G. H. M. Postumus Meyjes, “Exponents of Sovereignty: Canonists as seen by Theologians in the Late Middle Ages’ in The Church and Sovereignty c.590-1918, ed. Diana Wood (= 9 SCH, Subsidia;

1991), 299-312; R. James Long, “Utrum iurista vel theologus plus proficiat ad regimen ecclesie: A Quaestio Disputata of Francis Caraccioli’ (1968) 30 Mediaeval Studies 134-62.

FORMATION OF THE CLASSICAL CANON LAW 101 ius patronatus, is probably the best example of this process. Although not without precedent (e.g. C. 16 q. 7 c. 38), the canon law nevertheless subjected lay control of parish churches to restrictions that were new in effect. Elimination of all lay control over churches seemed desirable to the more adventurous of the high church party. They desired to end, or at least greatly to diminish, the laity’s influence within the church. Allowing laymen to choose their own chief pastors frustrated that desire, and it undoubtedly lent itself to serious abuse. The same principle applied to the choice of parsons in parish churches.

This aim could not be easily realized, however, in dealing with parochial government. A parochial system had emerged very slowly in the Anglo-Saxon church, and long traditions and the entrenched claims of the successors of the founders and builders of the churches stood in the way of episcopal control. A fuller assertion of clerical control of smaller churches might actually have been unwise. Many of them needed protection and financial support. Only powerful laymen or great religious houses could adequately meet those immediate needs.®9

What was put into place in consequence was a system whereby lay patrons retained the right to name the incumbents, but their choice was hemmed in by new restrictions. They presented a cleric of their own choosing to the bishop whenever a church fell vacant. The bishop would proceed to verify the existence of a vacancy and examine the cleric’s qualifications. If he were found suitable and if no simony had intervened, the man presented would become the parson of the parish by action of the bishop or his official (X 3.7.3). The process was called

admission, institution, and induction in English practice. Whereas most early parochial appointments made by laymen had taken the same basic form as a feudal grant of land, by the thirteenth century, they had begun to follow a canonical form.%° We shall have cause to examine this in more detail in the second half of this book. The essential point here, however, is that the system of lay control over local churches was in a measure ‘tamed’ by being made subject to legal regulation. No doubt the reality was always messier than the plan, but churches were subjected to episcopal oversight and required to conform to a regular pattern of procedure to an extent not possible before. Although this movement towards regularity and control usefully took place in areas of church government where there was conflict between clergy and laity, it was not isolated to such areas. The law of vows provides an example where the needs of a functioning system of law required its clarification. In a superstitious

age, men and women were sometimes moved to make promises to God that 89 For the role of monastic houses and the problems caused thereby, see Ulrich Rasche, “The Early Phase of Appropriation of Parish Churches in Medieval England’ (2000) 26 JMH 213-37.

90 B. R. Kemp, “Towards Admission and Institution: English Episcopal Formulae for the Appointment of Parochial Incumbents in the Twelfth Century’ (1994) 16 Anglo-Norman Studies 155-76.

102 ESTABLISHMENT OF CONSISTORY COURTS seemed nobler at a moment of crisis than they did once the moment had passed. Moved by piety and fear, a man might promise that he would enter a religious order, go on a crusade, live a life of chastity, or create an endowment for the health of his soul. At a time when he was in danger of shipwreck, King Henry I himself vowed to remit Danegeld for seven years, go on pilgrimage, and rule more justly.®!

The law of the church could not treat these vows as inconsequential. They were made before God, some were meritorious, and many directly benefited the material interests of the clergy. But neither could the canon law have forced every person to uphold every vow. Nor did the church wish to have it thought that all vows should be treated alike. Some of the vows men made worked to the detriment of the clergy, and some even threatened the sinews of peaceful society. The canonists therefore devoted their attention to problems arising out of such promises. The result was a patchwork of mitigation and complexity. A three-day period for repentance was given to some to allow them to avoid taking irrevocable and rash steps (X 3.31.8). A distinction was drawn between solemn and ordinary VOWS, permitting mitigation of some of the harsher consequences that would have followed from their enforcement (Sext 3.15.1). Commutation of vows with episcopal approval was allowed for cause (X 3.34.1). From the work of the classical

canonists also emerged a law of vows that distinguished between licit and illicit vows, voluntary and coerced vows, and possible and impossible vows. It was not without its absurdities, but it had the effect of preserving the obligatory character

of the vow, while also mitigating the most deleterious consequences of that preservation.

This is not to say that order was brought to every area of the church’s law. A number of what now look to have been gaps would cause particular and longlasting problems for the ecclesiastical law as it would be put into practice in England. Three examples must suffice. First, entry into marriage was left pretty much as it was. It remained a matter of private contract. Men and women were urged to marry in facie ecclesie, but they were not required to do so. The penalty

of invalidity was not invoked, and this caused uncertainty and inroads on the principle of indissolubility. Second, the canon law of last wills and testaments remained seriously incomplete. It was impossible to fashion a full and workable system from the Decretals’ restricted rules about the clergy’s power of testation and general statements that the last wishes of decedents should be respected (X 3.26.10). Roman law and judicial ingenuity had to fill in the blanks. Third, the relationship between custom and positive law was left ambiguous. That customs were to be scrutinized carefully before being admitted as good law was stated as 91 On Henry I and the church, see M. Brett, The English Church under Henry I (1975), esp. 1-7. 92 See R. H. Helmholz, The Spirit of Classical Canon Law (1996), 145-73.

FORMATION OF THE CLASSICAL CANON LAW 103 a rule. The criteria by which that scrutiny were to be conducted left ample room for argument in particular cases. Whether these were faults attributable to the canonists is not easy to say. We cannot see things exactly as they did, and custom would have been impossible to eliminate as a source of law in any event. STATING PRINCIPLES OF SPIRITUAL SOVEREIGNTY

The eleventh and twelfth centuries witnessed a marked new assertion of power on the part of the clergy. To them the legislation of the Anglo-Saxon kings, which

purported to regulate the rights of the church and clergy, seemed inconsistent with the right order of society, just as it did to Pope Gregory VII and his successors. The church must lead. The clergy must therefore be accorded a special status in the world, and they must be kept apart from entanglements with secular obli-

gations. Moreover, the clergy must not follow the opinions nor submit to the commands of the laity. In other words, an important change in the attitude of the clergy towards their role in society occurred. Elements of older ideas about the legitimate interests of the laity did live on, even in the law of the church, as of course they did in the opinions of ordinary men and women. But their role was limited by the canonists. If laymen were admitted to a meeting of the clergy, as they long had been, now it would be ‘in order that they might hear, not that they might sit in judgment’? One of the achievements of the canon law was to state these principles firmly and to work out what they would mean in practical terms. The rule of spiritual sovereignty had antecedents in early church history, but these had been balanced by respect for temporal authority and had been enforced sporadically at best. Now they came to the fore, designed to set the clergy apart

from the society around them. Some were actually disabilities, prohibitions against activity unsuitable for the clergy. For example, the clergy were forbidden to hunt, especially if they did so with dogs and birds of prey (X 5.24.2). They were forbidden to act as judges in secular tribunals, especially tribunals in which blood judgments would be pronounced (X 3.5.5). They were forbidden to alienate the church’s property, which they held in trust for their successors (X 3.13.6). Other canons put privileges into the clergy’s hands. They were accorded spe-

cial protection against physical attacks (C. 17 q. 4 c. 29). Their churches were granted immunity against incursions from without (X 3.49.5). They enjoyed an exemption from the burden of secular taxation (Sext 3.23.3). And perhaps most fundamentally, the canon law formulated a rule that, with few exceptions, the clergy should not be subject to the jurisdiction of lay courts (X 2.2.18). The privilege could not be abridged by custom or waiver by the cleric involved. It was 93 Hostiensis, Lectura ad X 3.10.10: ‘[I]n publicatione statutorum ipsis tangentium ut ipsam audiant

non ut iudicent.

104 ESTABLISHMENT OF CONSISTORY COURTS meant as much for the protection and honour of the church as it was for the benefit of individual clerics.

The danger of this aspect of the canon law was not, as it was with the prior category, that it was incomplete. There were always a few uncertainties around the edges, but in most respects the scope of the law was well worked out in the writing of the canonists. The danger was the reverse: that the law was too definite and too strident. It claimed too much. Perhaps exempting the clergy from secular taxation might have freed them from temporal anxieties. Conceivably, it could even have hastened the coming of God’s kingdom. However, in the meantime, such a privilege would cause serious problems for the larger needs of many kingdoms. To laymen, the asserted canonical immunity from taxation also seemed at odds with the considerable wealth of the clerical order. Ways around the prohibition would have to be found, if indeed it were not ignored altogether. And to many

secular officials, allowing the clergy a freedom from secular judicial process seemed to encourage criminal behaviour. Ways to vindicate the claims of public order would have to be sought. Some of the claims of the canon law went very far—much too far to have been acceptable to those laymen it purported to bind. Among the most extreme was the assertion of a supervisory power over temporal rulers. The canonists interpreted a statement in the Book of Jeremiah (Jer. 1: 10), “I have set thee over nations, as a reference to the clergy, and particularly to the pope. The text recognized a spir-

itual right to excommunicate and ultimately even to depose kings (X 2.1.13). It appeared to give to the clergy a plenary power to keep rulers up to the mark. In canonical theory, all that stood in the way of a real theocracy was the modesty which the founder of the Christian religion had enjoined upon his followers, and that modesty might give way where a secular law or practice became an occasion for sin. In other words, the canon law contained a principle that was subversive of

temporal government: that the clergy stood over the princes of the world as arbiters of the justice of their government. EXTENDING THE CANON LAW'S SCOPE

Quite apart from its claims to power in society, the amplitude of subjects covered by the classical canon law remains one of its most imposing features. That extent remains surprising to many observers today. Today one thinks of the law of the church as dealing properly with internal affairs of the church—the sacraments, clerical misbehaviour, care of church buildings and the like. Students of medieval history would quickly add heresy to the list. Looking further, one quickly sees that the classical canon law did indeed concern itself with these matters, but it was far from being limited to them. Its more expansive scope was of particular importance for English legal history, since the English church entered into legal regulation of

FORMATION OF THE CLASSICAL CANON LAW 105 several areas of human life outside what we—and indeed they—regarded as spiritual in nature. Defamation and probate jurisdiction were not treated as spiritual matters in the ius commune, for example. Yet they became mainstays of ecclesiastical juris-

diction in England. The academic canon law did not prohibit such extensions to the scope of ecclesiastical jurisdiction. It contained rules that could be applied to them, and by recognizing the force of custom in defining legal jurisdiction, the canons actually made them respectable.

If one leafs through the Corpus iuris canonici, glancing even quickly at the various titles brings an extraordinary variety of subjects to the surface. Criminal

procedure occupied a considerable part of the fifth book of the Gregorian Decretals, and so indeed did substantive criminal law. Titles in it dealt with infanticide, homicide, tournaments, duels, adultery and rape, arson, theft, counterfeiting, and divination. The same can be said of many purely civil subjects. Rules about conflict of laws, judicial oaths, delays in litigation, appeals, the distinction between proprietary and possessory actions, restitution, orders pending trial and interlocutory decrees, res judicata, and much more filled the second book of the Decretals. Along with many titles of interest to the clergy alone, the third book contained titles devoted to elections, sale of goods, suretyship, gifts, last wills and

testaments, burial, and taxation. It is true that the treatment of some subjects found in the Decretals was incomplete. A few titles simply augmented Roman law or else staked out a relatively narrow claim or two, usually made on behalf of the church’s interests. In their totality, however, the texts of the Corpus iuris canonici marked the classical canon law out as much more than an organizational manual for the clergy.

The amplitude in its scope turned out to be all the greater because of the medieval habit of reasoning by analogy. It facilitated transfer of canonical ideas to a wider intellectual world of constitutional principle. For example, the power of the popes to dispense from particular laws in the overall interests of the church or for the public good was one of the subjects given full development by the canon-

ists. It was important for the running of the church, but it also had implications for the powers of temporal rulers. They might fasten upon some of the same principles for their own purposes.94 Standards worked out by the canonists might equally be applied in the temporal sphere. This turned out to be of particular importance in England, when the dispensing powers of the pope were extinguished in the sixteenth century, for the same powers could be exercised by English officials. The same principle proved apt for other, and probably ultimately more significant, analogies drawn from the resources of the ius commune. The law 94 See Gaines Post, “Ratio publicae utilitatis, ratio status, and Reason of State, 1100-1300’ in id., Studies in Medieval Legal Thought (1964), 488-502, esp. 264-9. And see generally Brian Tierney, “Some Recent Works on the Political Theories of the Medieval Canonists’ (1954) 10 Traditio 594-625.

106 ESTABLISHMENT OF CONSISTORY COURTS of elections, the principle of inalienability of sovereignty, and the requirement of consent to taxation, for example, all drew selectively from the law of the church.%

THE ENGLISH CHURCH The establishment of a working system of ecclesiastical jurisdiction in England can be viewed from three different perspectives. The first fixes upon the canon law’s recognition by the English kings and by the temporal law. A part of the recognition entailed attempts to control the course of the church’s jurisdiction by the crown, but much of it was simply the acknowledgement of its separate and legitimate place within the legal life of the kingdom. The second vantage-point concentrates upon the spread of learning in canon and Roman law in England. It looks to the growth of individuals trained in law, or at least working towards mastery of it, and ultimately to the growth of law faculties in the universities. The third fixes upon the creation of regular courts exercising ecclesiastical juris-

diction. It requires consideration of the creation and ‘professionalization’ of a group of men whose primary occupation was with the church’s law, as well as the emergence of regular ecclesiastical courts.

Royal and Ecclesiastical Government When he crossed from Normandy into England in late September of 1066, Duke

William could scarcely have anticipated the direction the law of the church would take in the next two centuries. Nor was he obliged to do so. Some signs were there to be read, but it would have required extraordinary prescience to predict the results. William exercised the decisive voice in choosing the English bish-

ops, as had most of the Anglo-Saxon kings. He curtly rejected Pope Gregory VII's request that he do fealty to the successors of St Peter, reminding him that this would have been contrary to the practices of his predecessors.9” He threatened with excommunication those who contravened one of his gifts to a monastic house,98 and he took the customary part of an English monarch in church 95 See generally Brian Tierney, Religion, Law, and the Growth of Constitutional Thought, 1150-1650 1982).

: 6 ‘The death-bed speech put into his mouth claimed only that he had made careful inquiry into the conduct and doctrine of the men he entrusted with government of the church. See Odericus Vitalis, iv.

90-1. See also Mary Frances Smith, “The Preferment of Royal Clerks in the Reign of Edward the Confessor’ (2001 for 1997) 9 Haskins Soc. Jnl 159-73. 97 Letter of William I, c.1080 in EHD, ii, no. 101.

98 See Odericus Vitalis, ii. 38-9. Such a threat by laymen was not limited to kings; see e.g. the action of William fitz Ansculf, recorded in Domesday book and noted in Robin Fleming, Domesday Book and the Law (1998), no. 1680.

THE ENGLISH CHURCH 107 councils held in his realms.99 No one man can be fully the master of a group as large and fractious as the clergy. It is also unlikely that anyone, even a king as mighty as the Conqueror, can lord it over a group of men who claim allegiance to a higher authority than an earthly ruler. But of the many men who have sought to exercise such lordship, William held his own. He was fortunate in his choice of primate. Lanfranc of Bec, whom William persuaded to accept the see of Canterbury, had grown up in a legal household in Pavia, and he knew more about the law of the church than most of the clerical army.!®° He was an administrator as well as a monk. His habits of mind had

been formed before the rise to prominence of the more assertive twelfthcentury papacy, and the canonical collection compiled by him or in his name after coming to England was very like those of past centuries. To him it must have seemed perfectly natural, or at any rate inevitable, that the king should have a say in the government of the church in his dominions. Lanfranc cooperated fully in the trial of Odo of Bayeux, bishop of Bayeux, even supplying the justification for the trial—Odo was being tried as an earl, not as a bishop—in

order to overcome clerical scruples about the procedure.!®! Cooperation between monarch and archbishop was thus one of the notable features of this reign, as it had been under the Anglo-Saxon kings whose mantle the Conqueror claimed to wear. It also helped promote harmony that William was a partisan for most of the concrete reforms proposed by the church of his day. He lent his support to efforts to root out simony and to discourage the taking of clerical wives. He favoured the interests of the monks, and he encouraged the holding of councils to carry out the bishops’ plans.!°2 Even Gregory VII, although finding the English king less than ideal in his attitude towards the church, was of the

opinion that William was better than most of his contemporaries among European monarchs. If William I kept to most of the paths laid out by his predecessors, stirrings for change in the balance between temporal and spiritual power were not absent from his reign. Even during these years, old assumptions were coming under challenge. It was necessary, for example, to find a special justification for trying Bishop Odo, and a similar case brought in 1082 against William of St Calais, bishop of Durham, 99 Legatine Council at Winchester (1070) in EHD, ii, no. 86: “Concilium magnum in octavis Pasce celebratum est, iubente et presente rege Willelmo. See generally Frank Barlow, The English Church 1066-1154 (1979), 268-85; H. R. Loyn, The English Church, 940-1154 (2000), 67-86; Raymonde Foreville,

‘The Synod of the Province of Rouen in the Eleventh and Twelfth Centuries’ in Church and Government, 19-39. 100 See Gibson, Lanfranc (above n. 14) and Cowdrey, Lanfranc (above n. 14). 101 Odericus Vitalis, iv. 42-3. 102 e.g, the Council of 1074-5 in William of Malmesbury, The Deeds of the Bishops of England, trans.

David Preest (2002), 44-6; C. & S. I, pt. 2, 607-16.

108 ESTABLISHMENT OF CONSISTORY COURTS ended more ambiguously.!°3 The challenges became louder and more insistent during the reigns of his immediate successors. Prodding by the papacy and the leaders among the English clergy, more systematic thought about the right order of government, and the growth of the canon law itself—all these led to attempts to draw a cleaner and more satisfactory line between the spheres of church and state. If William I could not have foreseen the creation of the system of ecclesiastical jurisdiction that came into existence two centuries after his death in 1089, he

might none the less have understood it as growing out of developments that occurred in his own time. Here it must be enough to trace the most important of the external developments of the Norman and Angevin periods. The quieter tides of change to be surveyed in the last parts of this chapter were ultimately more important to the spread of the canon law, but famous events also played a part. WILLIAM I'S ORDINANCE ON JURISDICTION

Of the signs of the future, the most precocious and revealing was a royal ordinance,

preserved as a royal writ in two forms, the one from London, the other from Lincoln. Probably issued during the 1070s, it ordered a separation of spiritual from temporal justice.1°4 Here it is in its relevant parts: Be it known to you and to all my liegemen who are in England that by the common council and counsel of the archbishops, bishops, abbots, and of all the magnates of my kingdom, I have ordained that the episcopal laws shall be amended, because before my time these were not properly administered in England according to the precepts of the holy canons. Wherefore I order, and by my royal authority I command, that no bishop or archdeacon shall henceforth hold pleas relating to the episcopal laws in the hundred court; nor shall they bring to the judgment of secular men any matter which concerns the rule of souls; but anyone cited under the episcopal laws in respect of any plea of crime shall come to the place which the bishop shall choose and name, and there he shall plead his case, or answer for his crime. He shall not be tried according to the law of the hundred court, but he shall submit to the justice of God and his bishop in accordance with the canons and the episcopal laws. Moreover, if anyone, puffed up with pride, shall refuse to come to the bishop’s court, he shall be summoned three times, and if, after this, he shall still fail to appear, he shall be excommunicated; and if the strength and justice of the king and his sheriff shall be needed to carry this into effect, this support will be forthcoming. Anyone failing to appear at the bishop’s court after one summons shall pay the appropriate penalty according to episcopal law. By virtue of my authority I also forbid any sheriff or reeve or official of the king or any 103 The case is portrayed in: “De iniusta vexatione Willelmi episcopi primi’ in Camden Miscellany

XXXIV (=10 Camden Soc. (5th ser.); 1997), 73-101, and Simeon of Durham, Historical Works, ed. Thomas Arnold (= 75:1 RS; 1882), 171-94. Its authenticity has been questioned. See H. S. Offler, “The Tractate De iniusta vexacione Willelmi episcopi primi (1951) 66 EHR 321-41, but the weight of scholarly

opinion still stands in favour of its substantial accuracy. 104 C. & S. II, pt. 2, 620-4 | EHD, 1i, no. 79].

THE ENGLISH CHURCH 109 layman to interfere with the laws which pertain to the bishop; nor in these cases shall any layman bring another man to justice until the judgement of the bishop has been given. Judgement shall not be given except at the seat of the bishop or in some place that the bishop shall appoint for this purpose...

At one time, it was thought that this writ itself established the consistory courts in

England. That view has proved untenable.!°° The consistory courts were not established until the thirteenth century. Moreover, it has been shown that the temporal courts continued to hear matters that pertained to the church’s law despite the peremptory warnings of this writ. The Conqueror’s ordinance remains a significant document all the same. It contained a recognition of principles that were vital to the Gregorian programme of government, and it included features that were to be decisive in the future shape of English ecclesiastical jurisdiction. The ordinance itself began on an old fashioned note. It was the monarch, acting with the advice of his great men, who legislated for the church. No sign of ecclesiastical independence here. Nothing connects the ordinance more closely with the Anglo-Saxon past than this assertion of royal authority in ecclesiastical matters, or as the Conqueror himself might have preferred, of the essential unity between the aims of king and church. In most other respects, however, this new

ordinance fitted tolerably well with the reform programme of the Gregorian papacy. It asserted the decadence of recent times, the need for reform, and the desirability of restoration of ‘the precepts of the holy canons. These precepts, as men had come to see, required that a more exact separation be made between spiritual and temporal matters. Specifically, the ‘episcopal laws’ were not to be the subject of litigation in the hundred courts, and causes relating to the ‘rule of souls’ were not to come before secular authorities. Spiritual men should determine the law of the church and the king’s officials should respect their decisions. The ordinance was not perfectly drafted. It said nothing, for example, about the competence of shire courts as opposed to those of the hundreds. A strict reading might leave the wide competence of these tribunals intact. Nor was it altogether clear what was meant by the ‘episcopal laws’. The phrase was not in common usage in the canon law, and the most sophisticated investigation of the subject has concluded that it probably was intended to cover offences against the church’s moral law

and the fines exacted for its violation.!°° In all likelihood, the phrase meant the same thing as did the term ‘episcopal customs’ in some Anglo-Saxon sources. Alternatively, it may have been equivalent to the same phrase used in the nearly contemporary Norman Council of Lillebonne (1080).!°7 The exercise of ecclesiastical 105 See Colin Morris, ‘William I and the Church Courts’ (1967) 82 EHR 449-63. 106 ibid. 451, 454.

107 See Odericus Vitalis, 111. 24-35, and his parallel statement in v. 22-3: “Nullus laicus habeat consuetudines episcopales, vel iusticiam quae pertinet ad curam animarum.

110 ESTABLISHMENT OF CONSISTORY COURTS jurisdiction based upon a similar division was mentioned, for example, in the early eleventh-century “Northumbrian Priests’ Law;!®8 and it may be this jurisdiction that was to be restored to the hands of the bishops or their agents. But the details were not the essential points. Separation of spiritual and temporal jurisdictions was what mattered. It was a step towards what would be the canonical position. The division was taken for granted by the Leges Henrici Primi and by Glanvill,!°9 and it took con-

crete shape in cases transferred from one jurisdiction to another.!!° There was backsliding, disagreement, and overlap, of course. At Easter in 1136 King Stephen promised to respect the rights of the church, but his promise could not prevent what looks very much like ‘forum shopping’ on the part of litigants.!4 Two smaller aspects of the ordinance call for brief mention. One was the way in

which the jurisdictional division was to be made. The determination did not depend on dividing clergy and laity, assigning a separate forum to each. Rather, it was made according to the matter in dispute. If “episcopal laws’ were involved in a dispute, the bishop should exercise jurisdiction. If the ‘rule of souls’ were the subject of a plea, that too rendered the case fit for a spiritual forum. By implication, pleas concerning other matters would go to the traditional lay assemblies. At any

rate, the jurisdictional choice depended upon what the litigation was about. Under the Conqueror’s ordinance, the status of the parties was not what determined the proper forum. The classical canon law would take the opposite view. It held that clerics could not

ordinarily be summoned before a secular court, and that laymen should not be summoned before a spiritual court. Status was the normal determinant of jurisdictional competence. Which of these views would prevail became the subject of conflict in England during the next century. In criminal cases, Thomas Becket’s martyrdom would win a form of the church’s position in criminal matters. In civil cases, however, separation based upon the nature of the litigation—the principle underlying the Conqueror’s ordinance—remained the English rule. Efforts were made to implement the privilegium fori in civil cases during the twelfth century and after.112 The bishops complained that the canonical position should be respected. Despite this, the king’s courts never recognized the canonical jurisdiction ratione personae. In this respect, the history of ecclesiastical jurisdiction in England diverged from what took place across the Channel, and this pattern was set at an early date. 108 Northu. 1-67 in Liebermann, Gesetze, i. 380—5 [EHD, i, no. 53]. 109 Leges Henrici Primi, c. 5:4, ed. L. J. Downer (1972), 86-7; Glanvill, lib. VII, c. 8. 110 e.g, Richard, Abbot of St Mary’s c. Roger of Cockington (Exeter 1161 x 1184), in EEA 11, Exeter 1046-1184, ed. Frank Barlow (1996), no. 126.

111 Compare Gesta Stephani, c. 13, ed. and trans. K. R. Potter (1955), 16-18, with the evidence in David Crouch, The Reign of King Stephen, 1135-1154 (2000), 306-8. 112 See e.g. the letter of 1164 in Correspondence of Thomas Becket Archbishop of Canterbury 1162-1170,

ed. Anne Duggan (2000), i, no. 34.

THE ENGLISH CHURCH 11 The other point concerns the support offered by the king and his officials if episcopal jurisdiction proved inadequate to its task. The duty to provide this support was to become a part of the canon law, if on slightly different terms than those used in the ordinance. In principle, however, both canon law and English law endorsed the use of temporal power to enforce ecclesiastical judgments from an early date. The church was not, in principle, opposed to all use of force to secure obedience to the law.!!3 Nor, obviously, was the king. The canon law took the position that where excommunication proved insufficient to secure obedience to its law, sterner measures that were otherwise unavailable to the spiritual courts, could be invoked. The “secular arm’ would be at the church’s service. Not every European nation took this step.!!4 Most, it seems, did not. England did. In the course of the thirteenth century, this general promise of secular aid was worked into a system. A bishop was accorded the right to notify the king’s chancery—'letter of signification’ being the technical term used—that a man or woman had stood excommunicate for forty days and longer. Upon receipt of the bishop’s letter, the chancery ordered the sheriff to imprison the person ‘signified’ until he or she submitted to ecclesiastical jurisdiction.115 This system was one of those special features of governance in England that gave particular force to the decrees of its spiritual tribunals. Another example was the writ De v1 laica removenda, directing the sheriff to permit a bishop to exercise spiritual control over an ecclesiastical benefice without lay interference.!!¢ It was also a part of the cooperation between the two swords. In practice, therefore, royal assistance meant

that sentences of excommunication would carry more than moral or spiritual suasion. Neither were they dependent upon support of the community or residual fear of the church’s anathemas. Excommunication was backed by threat of imprisonment. This became a matter of routine. The king’s clerks would not investigate the merits of the underlying claim before issuing the writ. This cooperative regime between regnum and sacerdotium would last a very long time—into the nineteenth century. It would long be a source of strength, but in the end also a source of embarrassment, to the English church. 113, Richard Kaeuper, Chivalry and Violence in Medieval Europe (1999), 81-4. 114 Maurice Morel, L’Excommunication et le pouvoir civil en France (1926), 65-113.

115 The fundamental work is F. Donald Logan, Excommunication and the Secular Arm in Medieval England (1968). At 17-21, the author traces the connection between the more fully developed practice and the Norman ordinance. A change in the way records were kept in Chancery, probably consequent upon enactment of 5 Eliz. I, c. 23 (1563), misled him (at 156-7) into thinking the system had ceased to be

used by the late sixteenth century. It remained in force, although two nineteenth-century statutes diminished the scope of the sanction, 53 Geo. III, c. 127 (1818) and 3 & 4 Vict., c. 93 (1840). It is an inter-

esting, but surely also a purely academic, question whether some form of the procedure still exists. 116 FNB 121 (*54). No study of this writ has yet been made. Another was the writ De apostata capiendo, used principally to secure return of monks to their houses and vows; see FNB 519 (*233-4), on which see F. D. Logan, Runaway Religious in Medieval England, c.1240-1540 (1996), 97-120.

112 ESTABLISHMENT OF CONSISTORY COURTS THE INVESTITURE CONTROVERSY

By contrast to this institutional longevity, the harmonious personal relationship

between king and primate did not outlast the Conqueror. William Rufus left the chief archiepiscopal see vacant from Lanfranc’s death in May 1089, and only the remorse caused by a serious illness in March 1093 caused him to call upon the famous theologian, Anselm, abbot of Bec, to fill it.1!”7 The king’s hand fell upon a contemplative man and no lawyer, but Anselm was also determined to do what he

regarded as his duty to God. He rightly regarded himself as ill matched with William Rufus, and several sores soon opened up in the relationship between the two men. The most significant point of contention was the same question that was agitating and embittering relations between pope and emperor on the Continent: investiture of bishops and abbots by lay rulers. Practice, it is true, had never been entirely uniform. On at least one occasion William I had felt sufficient scruples to separate spiritual from secular, allowing a bishop to bestow the staff of office upon a newly elected abbot.118 However, normal practice called for the king to deliver the ring and pastoral staff to a newly chosen prelate and to receive homage from him. Anselm himself had received his office in this way. He had raised no objection against the form; his objection had been to the burdens accompanying the office itself.

However, the reform party did raise a strong objection to this form of entry into spiritual office. The practice of investiture had already been declared unlawful in Rome. A Vatican Council of 1099 had forcefully condemned both lay investiture and doing homage to a secular man. To the assembled churchmen, receipt of a sacred office from hands that would commonly have been polluted by the unjust shedding of blood seemed an abomination.!!9 It was, moreover, to treat a spiritual

office as if it were no more than a fief. That seemed to pervert the right order of society. It made churches into feudal dependencies of the Crown. Monarchs would be condemned as little better than tyrants for seeking to control who would succeed to the important bishoprics and abbeys in their kingdoms.!?° This, however, was the problem. Bishops and abbots did control large amounts of land by virtue of their positions. They did hold the allegiance of many men. Kings depended upon their loyalty, just as they did with their other great vassals. On that account alone, kings were loath to abandon a practice that could also claim the sanction of immemorial usage. Rufus himself went further. He insisted 117 Fadmer, The Life of St Anselm, bk. II, c. 2, ed. and trans. R. W. Southern (1962), 64-5. 118 QOdericus Vitalis, ii. 144-7. See generally Olivier Guillot, ‘A Reform of Investiture before the Investiture Struggle in Anjou, Normandy, and England’ (1991) 3 Haskins Soc. Jnl 81-100. 119 Eadmer, Historia Novorum in Anglia, ed. Martin Rule (= 81 RS; 1884), 112-14.

120 See e.g. the evidence in G. A. Loud, “Royal Control of the Church in the Twelfth-Century Kingdom of Sicily’ (= 18 SCH; 1982), 147-59.

THE ENGLISH CHURCH 113 on taking the revenues of vacant bishoprics, as if they were fiefs, thereby earning the calumny of clerical commentators.!2! Almost as important for him as the revenue, rights over the income of churches stood as a symbol of his place as king and of the obligations of the clergy to him. To Anselm, however, the issue became one of obedience to the law of the church and in particular to the legitimate commands of the papacy. It was a matter of principle. Herein lies the importance of this brief controversy for the growth of the canon law in England. Anselm was present at the 1099 Council in Rome. He heard the decree condemning lay investiture. For him, that event put the old practice into a new light. It began to seem that the choice boiled down to obedience to God or obedience to man. This decree of a papal council defined the canon law, and the decree was to be obeyed. That the step had overturned past practices was no bar. Those practices were condemned as illegitimate. To Anselm, to take part in them would be ‘to ignore his submission and obedience to the apostolic see’!22 This he was unwilling to do. Of course, this was neither the first time nor the last in English history when a clergyman was put in a position of having to choose between conflicting loyalties,

but the circumstances here were such that the actors faced an open and direct clash between canon law and customary law. Frontal conflict had been rare in Anglo-Saxon England and during the reign of the Conqueror. It was now more often to recur. It encouraged a more sceptical view of custom wherever a larger principle could be discerned, and it favoured a more aggressive role for the law of the church in ordinary affairs than most of the canonical collections of the early Middle Ages had envisioned. In the event, the matter was compromised and the controversy died down.!23 A measure of harmony was restored. By 1106, after the death of William Rufus,

King Henry I had agreed to give up lay investiture, and the clergy had agreed to continue the practice of doing homage to the king after being invested with office. The latter had been condemned as roundly as the former by the papal councils, but it seemed prudent to wait until the king’s heart should soften before attempting to carry it into effect. This too would be a characteristic reaction to legal conflict on the part of the clergy. Patience might achieve what argument and

precipitate action could not. In actual fact, clerical hopes on that score were largely disappointed. The compromise of 1106 defined the way in which bishops and abbots would continue to receive their places. 121 See e.g. Odericus Vitalis, iv. 174-5, attributing the change to Ranulf Flambard. The contemporary evidence on this question is surveyed in Margaret Howell, Regalian Right in Medieval England (1962), 5-19. 122 Eadmer, Life of St Anselm, bk. II, c. 52 (above n. 117), 130. 123 Uta-Renate Blumenthal, The Investiture Controversy: Church and Monarchy from the Ninth to the Twelfth Century (1988), 142-59; R. W. Southern, St Anselm and his Biographer (1963), 163-80; Brooke, The English Church and the Papacy (above n. 9), 147-63.

114 ESTABLISHMENT OF CONSISTORY COURTS THE CONSTITUTIONS OF CLARENDON

Whatever harmony marked the occasion of the 1106 compromise did not last for long. Disagreement festered even in Stephen’s reign,!24 and the same underlying issue was again at stake in the controversy between Archbishop Thomas Becket and King Henry I that took centre stage less than fifty years after the dispute over lay investiture came to a close. The precise question at the latter date was how cler-

ics who had committed temporal crimes should be tried—by the judgment of church or state? This question raised an identical conflict between the claims of the canon law and English custom. The dramatis personae were similar too: a strong-willed king, an intransigent archbishop, a host of noisy partisans on the king’s side, a relatively temperate or vacillating bench of bishops, and a strong pope with problems of his own. From a legal perspective, however, the differences in the way in which the dispute was conducted are more notable than the similarities. The issue itself, the arguments advanced, and the sources relied upon were all more complicated and more sophisticated. The controversial literature was much more extensive. The observer feels the era of professional lawyers inching closer. Of course, this is what he should expect. Between the two controversies had come a flowering of study in Roman law and the publication of Gratian’s Decretum. These European events had an impact in England. On no point was that impact more keenly felt than in this famous dispute sparked by disagreement about the punishment of criminous clerks. The dispute gave rise to the formulation of more fully articulated positions on both sides. King Henry presented his version of the relevant law at a royal council held

at Clarendon in 1164.!25 He demanded not only that the bishops agree to his position. They were also to put their seals to a written statement of sixteen chapters containing what he said were the customs of his ancestors. These “Constitutions”

purported to state the jurisdictional law regulating church and state. They went well beyond the issue of criminous clerks that was the immediate occasion for the

dispute. The bishops hesitated when they saw the customs put into writing, although most ultimately agreed to the king’s demand. However, the Constitutions were subsequently submitted to the pope for confirmation. He assented to a few by way of toleration, but condemned most of them as contrary to the canons and the liberty of the church. As matters of contention and deliberation, the Constitutions marked a significant moment in the evolution of canonical jurisdiction in England. They were not platitudes or mere statements of time-honoured principle. They were

124 Stephen Marritt, “King Stephen and the Bishops’ (2001) 24 Anglo-Norman Studies 129-44. 125 See Stubbs’ Select Charters, 161-7 | EHD, i, no. 126].

THE ENGLISH CHURCH 115 the product of planning and thought. They were meant to be implemented. Their formulation set a pattern that would be many times repeated. The Constitutions had three basic objectives. The first was to define jurisdictional competence. Where the Ordinance of the 1070s had left matters vague—saying no more than that ‘episcopal laws’ were to be kept apart from temporal matters—the 1164 Constitutions took up the subject seriatim and in greater detail. Thus, disputes

over advowsons, the canonical ius patronatus, were reserved for the king’s court (c. 1); disputes involving land held in free alms should go to the church, but only after the land’s status had been determined by the lay tribunal (c. 9); and pleas involving debts should belong to the king even where the debts had been accompanied by a pledge of faith (c. 15).126 In other words, there were to be definite rules to

demarcate the boundaries of each jurisdiction. This was also to be the approach taken by the canon law, although its own conclusions would be quite different and would guarantee the privilegium fori where clerical litigants were involved. The pope condemned each of these three constitutions. Under the canon law, the ius patronatus belonged to the spiritual forum as a ‘cause annexed to the spiritual’ (X 2.1.3); a lay court had no power to usurp the power to decide where a plea should

be heard (X 2.2.15), and the giving of a pledge of faith itself changed the proper forum from temporal to ecclesiastical (C. 22 q.1¢. 17). Disagreement ensued. Neither side surrendered its claim. For the moment it is important to notice the change these Constitutions and the ecclesiastical response to them made to the situation that had existed at the end of the prior century. Where there had once been vagueness and generality, now there was clarity of thought and firmness of conclusion. The second objective was to set limits to the procedures used in the ecclesiast-

ical forum. The effort hearkened back to Anglo-Saxon traditions, but it was new in the sense that now the jurisdiction of the church was regarded as a thing apart from that of the secular courts. It had a procedural law of its own. That change required a more considered and detailed set of rules. It was also to give rise to the royal writ of prohibition to courts Christian in order to prevent the church from encroaching on temporal interests. The Constitutions therefore restricted the pledges that could be exacted from those placed under a sentence of excommunication (c. 5); required either ‘certain and lawful accusers’ or “twelve lawful men of the vicinage’ before any man could be prosecuted for crime in the spiritual forum (c. 6); and limited the course of appeals from archdeacon up to the pope (c. 8).12”

Of these, only the second passed muster with Alexander HI. Probably the requirement it contained was close enough to the canon law’s own standard to

seem unobjectionable to him. The first, however, unlawfully restricted the 126 Chapter 13 was also of this type. It dealt with cases of denial of justice. The pope tolerated it. 127 Chapter 10 was also of this type. It regulated the process by which offenders against the ecclesiastical law were brought to obey the decrees of spiritual judges. The pope condemned it.

116 ESTABLISHMENT OF CONSISTORY COURTS discretion inherent in the judicial office. The third denied by implication the pope’s status as ‘universal ordinary and also violated the canonical rule that the church must have the power to define its own jurisdiction.

The third objective of the Constitutions was to assert and preserve royal prerogatives, particularly feudal prerogatives. Drawing a satisfactory boundary line between feudal and ecclesiastical duties was a difficult task at best. Here the effort was to draw it to the consistent advantage of the king. Thus, bishops could not leave the realm without the king’s licence (c. 4); no person who held in chief of the king or royal minister could be excommunicated before the king’s court had had a chance to ‘review’ the matter (c. 7); and the rights of the king in episcopal and abbatial elections were to be preserved (c. 12).128 The pope condemned all these. They encroached obviously and directly upon the freedom of the church.

This he would not admit. He would have known only as much about English customs as he had been informed, but that scarcely mattered. To the church’s freedom, he thought feudal custom must give way.

Some of the rules in the Constitutions of Clarendon would quickly be forgotten. Some would remain bones of contention for centuries. For the broader question of the relationship between church and state, however, they are important for three reasons: first, because they were the product of relatively careful legal analysis of specific problems; second, because they were forward looking

in the sense that they did not simply state principles in general terms, but rather went into the kind of detail that is necessary for meeting immediate problems; and third, because the form they took set the precedent for the future. To place effective limits on ecclesiastical jurisdiction in England would involve something like negotiation between the two sides: definition by the crown, and reaction by the church. Both sides would claim support from reason and ancient custom, as was encouraged by their own lawbooks. This sort of appeal to English

custom was the first step in establishing that pattern. It would always cause contention.

Apart from restraining appeals to the papacy (c. 8), a clause that Henry renounced, the ‘Compromise of Avranches’ (1172) left much unsettled.129 The extent of royal involvement in the election of bishops was not defined. King John’s refusal to accept an archbishop led to another test of strength and to a papal interdict’s being imposed upon the kingdom. Innocent III, of the medieval popes 128 Chapters 2, 11, and 16 were of this type. The first restricted grants of churches (and the revenue that attached to them) in perpetuity; the second affirmed the feudal obligations of ecclesiastical magnates; the third stated the rule that men of servile status could not be ordained without the consent of the lords of the lands to which they were attached. The pope tolerated all three; the canon law itself would recognize an exception to its jurisdiction for feudal questions (X 2.2.6). 129 CL & S. I, pt. 2, 942-56.

THE ENGLISH CHURCH 117 one of the most determined to exalt the powers of his office, laid the sentence upon England in March of 1208. This interdict, which suspended all church services except baptism of infants and reconciliation of the dying (X 5.38.11), was

widely observed despite John’s initial defiance, and the controversy ended in victory for the church.13° But once again, no agreed-upon solution to the issue which had sparked the quarrel was reached. On an ideological level, the disagreement would continue. On a practical level, it would admit of inconsistency and compromise.

As for the immediate issue in controversy between Henry II and Thomas Becket—the trial of ‘criminous clerks-—the archbishop’s murder in his own cathedral doomed c. 3 of the Constitutions of Clarendon. The king was forced to give way, and the institution known as ‘benefit of clergy’ by English lawyers came into being. The church would ‘claim’ all clerks accused or convicted of a crime

before the king’s justices; they would then be tried and punished in their own forum. That much was established by the events surrounding Becket’s death, though the later history of benefit of clergy turned out to be more tangled than its inception predicted.!3! The system was not static. The royal justices developed means of mitigating the effects of this concession to the church, and they also made it available to all men who could read, or at least get through the so-called ‘neck verse’ from the Psalter. Before surrendering a cleric, they tested the guilt or innocence of the cleric delivered by taking a preliminary inquest. If the inquest told them the cleric was not guilty of the felony imputed to him, he was released. If guilty, he was delivered to the ordinary for trial. The extent of the concession was gradually restricted; most notably in 1512 by attempting to exclude murder or robbery committed in a church or dwelling-house or on the highway (4 Hen. VII, c. 2), and in the 1530s by more effectively excluding these crimes, together with arson, buggery, piracy, and certain kinds of embezzlement.!3? It lasted in some form until 1827 (7 & 8 Geo. IV, c. 28), though it had been limited and secularized long before then. Less is known about the ecclesiastical side of the subject, that is the treatment

meted out to the clerics who were handed over to the church, than about the common law side. It is clear that the church exercised its right to make a decision 130 See C. & S. IT, pt. 1, 11-12; Interdict Documents, ed. P. M. Barnes and W. R. Powell (= 34 Pipe Roll Soc. (n.s.); 1960); C. R. Cheney, ‘A Recent View of the General Interdict on England, 1208-1214’ (1966) 3 SCH 159-68.

131 The standard work is Leona C. Gabel, Benefit of Clergy in England in the Later Middle Ages (1928-9, repr. 1969). 132 4 Hen. VIII, c. 2 (1512); 23 Hen. VIII, c. 1 (1532); 27 Hen. VIII, c. 17 (1536); 28 Hen. VII], c. 15, s. 3

(1536). For a fuller account of these developments, see Baker, Spelman Introduction, 326-34; Gabel, Benefit of Clergy (above n. 131), 116-27; J. M. Beattie, Crime and the Courts in England 1660-1800 (1986), 141-6, 451-8, 485-6.

118 ESTABLISHMENT OF CONSISTORY COURTS about guilt and punishment without regard to the findings of the inquest in the royal courts. The bishops usually imprisoned clerics delivered to them for a time, often in one of the prisons the bishops were required to keep. Then the cleric would be admitted to canonical purgation if no one stepped forward to undertake a formal accusatio against them. If he failed to find purgators, degradation from holy orders could follow. In theory, the possibility of private prosecution, coupled with the reality of episcopal supervision of the whole process, should have kept it from being the toothless procedure most observers have seen in the procedure.!5 But lenient treatment of the clergy provoked resentment and suspicion from an early date,!34 and its later history does not add lustre to the martyr’s crown won by Thomas Becket.

CLERICAL GRAVAMINA AND CIRCUMSPECTE AGATIS (1286)

By the end of the thirteenth century, disagreements between church and state had assumed a regular form, one that followed roughly the shape of the Constitutions of Clarendon—that is, episcopal complaint and royal response. However, the dis-

putes took on a properly legal form. The emergence of a more sophisticated English common law, the establishment of the main royal courts, and the devel-

opment of writs of prohibition containing royal orders not to hear pleas that (according to the common law) should only have been heard in a temporal forum—all of these placed conflicts of jurisdiction in a different posture by the late thirteenth century.135 The clergy had to react to the common law where jurisdictional conflict arose.

The canon law recognized that some matters belonged only to the temporal forum, and that some matters could be brought before either an ecclesiastical or a secular judge, according to the choice of the litigants or the dictates of local custom. However, under the canon law, decision about which was the proper forum belonged to the church, not to the temporal law. It was a perversion of Gregorian principles to allow royal judges to make the final determination. Unfortunately, the writ of prohibition did exactly that. In practice, the clergy had to live with it. But they could also attempt to change it while they did. They could complain about it. They could seek ways around it. 133 Pollock and Maitland, i. 443; F. G. Emmison, Elizabethan Life: Morals and the Church Courts (1973), 294.

134 See e.g. the “So-called Statutes of John Pecham, c. 6 (1279 x 1292) in C. & S. II, pt. 2, 1122, attempting to prevent easy admission to purgation; see also A. K. McHardy, “Church Courts and Criminous Clerks in the later Middle Ages’ in Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen, ed. M. J. Franklin and Christopher Harper-Bill (1995), 165-83. 135 The basic works are Flahiff, ‘Prohibitions, and id., “The Use of Prohibitions by Clerics against Ecclesiastical Courts in England, (1941) 3 Mediaeval Studies 101-16.

THE ENGLISH CHURCH 119 The clerical response proceeded on more than one front. Diocesan and provincial legislation was enacted, excommunicating anyone who infringed on ecclesiastical

liberties. That legislation could be, and sometimes was, invoked against those who sought royal writs of prohibition.!3° However, the largest body of response consisted of episcopal gravamina, or complaints to the king about specific ways in which the royal courts were violating ecclesiastical liberties. Robert Grosseteste, the great scholar who served as bishop of Lincoln between 1235 and 1253, left the first surviving list of grievances, although his own list was addressed to the archbishop of Canterbury rather than to the king.!9” Thereafter, the compilation of complaints

about secular encroachments on the proper sphere of ecclesiastical jurisdiction became almost regular.138

Many gravamina are monotonous litanies of clerical grumbling. The privileges

of the clergy were not being fully respected, either in civil or criminal cases. Elections of bishops and abbots were not being left truly free from lay influence. Clerics were being denied full freedom of testation. The immunity of churches was not being respected. And so forth. We shall have occasion to examine the

substance of these complaints in more detail in the second half of this book, where the substantive canon law on each point will be discussed. In one aspect, however, the gravamina deserve particular attention here, because they show an increasing level of legal sophistication in controversies between canon law and the common law. New problems emerged in the spiritual forum, because new devices were hit upon to make writs of prohibition more effective. For example, the writ of prohibition called Ex relatu plurium, was devised in the last quarter

of the thirteenth century. It concealed the name of the person who had purchased the writ and thus, it was thought, protected him from retaliation by the church.!39 The new form of the writ also made the king a nominal party and so, it was held by the judges, it barred compurgation by the clerical defendant as a permissible mode of determining guilt or innocence. Against this development the clergy protested.!4° They received an ambiguous and (in their eyes) quite unsatisfactory reply. Effective refusal to change persisted in most of the responses to the complaints given by the kings, although they did sometimes promise a form of redress. The most seemingly conciliatory and long-lived royal response to the complaints actually arose out of an attempt by his itinerant justices to bring ecclesiastical judges 136 Evidence on this point is assembled in Canon Law and the Law of England, 77-99. 137 Epistolae Roberti Grosseteste, ed. H. R. Luard (= 25 RS; 1861), 205-34.

138 See W. R. Jones, ‘Bishops, Politics, and the Two Laws: The Gravamina of the English Clergy, 1237-1399’ (1966) 41 Speculum 209-45. 139 Flahiff, “Use of Prohibitions by Clerics’ (above n. 135), 113-14.

140 Complaints before Parliament, c. 1 (1280) in C. & S. I, pt. 2, 874.

120 ESTABLISHMENT OF CONSISTORY COURTS in the diocese of Norwich to trial for encroaching upon royal jurisdiction.1*1 It was a writ directing his justices to ‘act circumspectly’ in dealing with pleas within ecclesiastical congnizance. It further defined areas of jurisdiction where the direction should be applied. Tithes, mortuaries and parochial dues, defamation, attacks on the clergy, and breach of faith (if intended to correct sin rather than to recover money) were all recognized as within the competence of the church. Although sent originally to the diocese of Norwich, copies of the writ were made and circulated widely. It assumed an authoritative character and came in time to be treated as if it had itself been a statute; indeed it was later placed within the Statutes of

the Realm.142 The writ defined the sphere of ecclesiastical jurisdiction that was acceptable to the Crown. Together with the slightly fuller Articuli cleri of 1315—16,!43 it marked an established boundary. It also provided a starting-point for

the English church’s later effort to maintain its medieval jurisdiction intact. Neither document was entirely successful in stilling episcopal complaint. The kings never acceded to the more strident clerical demands. Gravamina continued to be made and submitted to the king or to Parliament. But a floor for clerical assumptions had been set.

Spread of Canonical Learning in England None of the issues dealt with by Circumspecte Agatis or the Constitutions of Clarendon could have been as phrased as precisely as they were—nor come to the fore as irritants and matters of debate—had it not been for the spread of canonical learning in England. Regular instruction in the canon law was one means by which it could become a rival to the law of the temporal courts, and it was probably a sine qua non for the creation of diocesan courts in the church. Older canonical collections, or casual references to the ancient canons such as are found, for example, in an earlier treatise on simony by Abbot Gilbert Crispin of Westminster (d. 1122),!44 could not carry that weight. A more decisive advance in legal study was needed. As was true on the Continent, the history of the spread of the classical canon law began, not with the creation of new courts or even the scientific study of the canon law itself, but with the revival of interest in and study of the Roman law. 141 See E. B. Graves, “Circumspecte Agatis’ (1928) 43 EHR 1-20; Paul Hyams, “Deans and their Doings: The Norwich Inquiry of 1286’ in Proc. Sixth International Congress of Medieval Canon Law, ed. Stephan Kuttner (1985), 619-46; David Millon, ‘Circumspecte Agatis Revisited’ (1984) 2 LHR 105-23. 142 SR, 1. 101-2.

143 SR, 1. 171-4. On its importance and compilation, see J. H. Denton, “The Making of the Articuli Cleri of 1316’ (1986) 101 EHR 564-89.

144 The Works of Gilbert Crispin, Abbot of Westminster, ed. Anna Sapir Abulafia and G. R. Evans (1986), 142-57; Michael Kulikowski, ‘An English Abridgement of the Hispana of Autun at Antwerp’ (1997) 83 ZRG, Kan. Abt. 198-208.

THE ENGLISH CHURCH 121 VACARIUS AND ROMAN LAW IN ENGLAND

The great name in the arrival of systematic study of Roman law on English shores has long been that of Vacarius (d. 1198). To be sure, he was not the first person to have made any use of the civil law in England. Reference to it appears scattered

here and there among the artefacts of Norman England, just as had been true among the Anglo-Saxons.!45 The Leges Henrici Primi, composed before his arrival,

purported to quote the Theodosian Code, although the words seem to have come from a medieval epitome.!4° The “Laws of Edward the Confessor’, compiled just a little later in the twelfth century, are said to have owed their “structure and general approach to Justianian’s lawbooks.!4” But none of this sort of evidence meant that there was anything like regular study of Justinian’s law in England before 1150. That began with the arrival of Vacarius, although he himself does not deserve all the credit. Vacarius himself is a somewhat shadowy figure—a characteristic he shares with many of the jurists of this age.!48 He lived a very long life and had his finger in so many pies, it is not easy to characterize his aims or even to describe his career. An entry in Robert of Torigny’s Chronicle for 1149 described him as a ‘vir honestus et juris peritus, in origin a Lombard, and the teacher of Roman law to both rich and poor in England.!49 He was born about 1120 and studied law in Bologna. In the 1140s he was invited to come to England by Archbishop Theobald in order to assist in the administration of the province of Canterbury. It was a task for which trained jurists were beginning to be necessary. Vacarius spent the rest of his life in England, most of it in the North pursuing what can be described as a moderately successful

ecclesiastical career and also producing works on theology and law. One of the most revealing of the latter was a Summa de matrimonio. It provides a wonderful example of an early civilian’s unwillingness to accept the canon law as an equal, still less as a senior partner, even in matters, like the law of marriage, where the church would claim an exclusive competence.!>° His treatment of the subject was based

upon Roman law alone. Such an attitude could not last, but its existence opens a window on the state of legal knowledge in the middle years of the century. 145 See Ralph V. Turner, “Roman Law in England before the Time of Bracton’, (1968) 7 Jnl British Studies 1-10; Senior, ‘Roman Law in England’ (above n. 49), 191-206; Eleanor Rathbone, ‘Roman Law in the Anglo-Norman Realm’ (1967) 11 SG 255-71. 146 Leges Henrici Primi (above n. 109), c. 33:4, 136-7. 147 Bruce O’Brien, God's Peace and King’s Peace: The Laws of Edward the Confessor (1999), 120.

148 See Francis de Zulueta and Peter Stein, The Teaching of Roman Law in England around 1200

(= 8 Selden Soc. (Supp. Ser.); 1990); Peter Stein, “Vacarius and the Civil Law in Church and

Government, 119-37. 149 Chronique (above n. 12), i. 250.

150 Jt is printed and commented upon in F. W. Maitland, “Magistri Vacarii Summa de Matrimonio’ (1897) 13 LOR 133-43 and 270-87. See also Joseph de Ghellinck, “Magister Vacarius: Un juriste théologien peu aimable pour les canonistes’ (1949) 44 Revue d’histotre ecclésiastique 173-8.

122 ESTABLISHMENT OF CONSISTORY COURTS Two additional facts about the career of Vacarius are significant for our understanding of the spread of civilian learning in England. The first is that he did teach Roman law in something like an academic setting, and he found students anxious to hear him. The teaching of Roman law was made impossible by a decree of King Stephen during the middle third of the 1100s, but it could not be stopped for long.5! This much is undoubted among historians, and it is more important than pinning down exactly where instruction took place or noting that Vacarius moved from teaching to a more conventional ecclesiastical career. It was once thought that Oxford was the site where Vacarius began to teach, and he was revered on that account as the founder of legal study at England’s oldest university. Acceptance of the attribution has not survived a showing that the passage in Gervase of Canterbury’s account placing the teaching in Oxford was probably an interpolation. The attribution probably arose later because of the popularity there of his most famous work, the Liber pauperum.!52 The latest assessment concludes (somewhat reluctantly) that while there are three credible candidates for the site of his instruction in Roman law—Oxford, Lincoln, and Northampton—there is insufficient evidence for making a definitive choice among them.!53

The second aspect of the career of Vacarius worthy of particular note in the context of the spread of legal study in England is the popularity of the Liber pauperum itself. Put together by the 1180s, at the latest, and composed of extracts from the Digest and the Codex, the work was meant to help students who had neither the resources nor the training to make proper use of the full texts.154 Glosses of an explanatory nature were added to the texts included, some it seems by Vacarius himself. No one now claims real juristic excellence for the finished product, at least when it is compared with what was being done in Bologna and

a few other legal centres on the Continent. But enthusiasm for the study of Roman law in England increased during the 1180s and 1190s, and before the century was out, the whole of the Corpus iurts civilis was available in England.1!55 That this broader movement was in part attributable to Vacarius is suggested by

the name, Pauperistae, that was given to students of the civil law. They were numerous enough to provoke attention. Although perhaps not sufficient to 151 John of Salisbury, Policraticus, lib. VII, c. 22, ed. C. C. J. Webb (1909), 11. 399.

152 R. W. Southern, “Master Vacarius and the Beginning of an English Academic Tradition’ in Medieval Learning and Literature: Essays presented to Richard William Hunt, ed. J.J. G. Alexander and M. T. Gibson (1976), 257-86, at 279-81. But cf. Stephan Meder, Rechtsgeschichte: Eine Einftihrung (2002),

151, where the connection with Oxford is stated. 153 Stein, The Teaching of Roman Law (above n. 148), p. xxxvil. See also H. G. Richardson, “The Schools of Northampton in the Twelfth Century’ (1941) 56 EHR 595-605. 154 See The Liber Pauperum of Vacarius ed. F. de Zulueta (= 44 Selden Soc.; 1927), 1-2. 155 W. Senior, “Roman Law MSS. in England’ (1931) 47 LQR 337-44.

THE ENGLISH CHURCH 123 prove the presence of Vacarius in Oxford, the accumulation of evidence does show the existence of some level of study of the law there. His work was also made more widely available, and that was an important part of the rise of legal study in a university setting. If it is impossible to be sure Vacarius taught there, therefore, we do at least know that law was being taught in Oxford by the last third of the century. Instruction in law, either Roman or canon law or both, was also being offered in several of England’s cathedral cities during the last third of the twelfth century.15° The importance of Roman law was reflected in the lives of influential English bishops of the twelfth century. Robert Chesney, bishop of Lincoln between 1148 and 1166, is known to have possessed a copy of the Digest.15” Bartholomew, bishop of Exeter from 1161 to 1181, was reported to have been knowledgeable in the leges, although less so in the canones.158 At least before the controversy between Henry II and Thomas Becket forced him to come to grips with the Decretum, it was Roman

law, not canon law, that was the normal source of legal authority for Gilbert Foliot, bishop of London and Becket’s most prominent episcopal opponent.!59 Of course, these bishops would have received their education—some of them probably in Bologna—before Gratian’s Decretum had appeared. For them, turning more often to the Roman law, rather than the old-fashioned Collectio Lanfranc, would have been natural. During the entire twelfth century, references to Roman law appear remarkably frequently in places where one might expect mention of either the canon law or the English common law. Mention of the Roman law of slavery appears, for example, being used as a kind of threat to his nephew, in the correspondence of Arnulf of Lisieux.!©° Gerald of Wales put his claim for damages in litigation in the form

of aestimatio used in the civil law’s actio iniuriarum.!©! Archdeacons might describe one of their decisions in civilian terms, and leasing of the church’s land 156 Alan Cobban, The Medieval English Universities: Oxford and Cambridge to c.1500 (1988), 27-9. 157 See Loyn, The English Church (above n. 99), 109. 158 See “Vita S. Remigii, c. 28 in Giraldi Cambrensis Opera, ed. J. S. Brewer (= 21:7: RS; 1877), 57. See

also Stephan Kuttner and Eleanor Rathbone, ‘Anglo-Norman Canonists of the Twelfth Century’ (1949-51) 7 Traditio 279-358, at 321, noting the comparative lack of study of the canon law evident in Bartholomew's Penitential. Roughly the same appears to be true of Glanvill; see Hall’s Introduction, at pp. xxxvi-xl. 159 See Adrian Morey and C. N. L. Brooke, Gilbert Foliot and his Letters (1965), 63-9. For examples of his early preference for Roman Law, see The Letters and Charters of Gilbert Foliot, ed. Adrian Morey and C. N. L. Brooke (1967): no. 66 (1145-8), dealing with tithes; nos. 157-8 (1165), dealing with treatment of heresy; no. 162 (1166), making use of Roman law but not mentioning the Decretum in dealing with a marriage dispute. 160 The Letters of Arnulf of Lisieux, ed. Frank Barlow (= 61 Camden Soc. (3rd ser.); 1939), no. 103 (1175). This characteristic was not peculiar to England; see e.g. Paul Freedman, The Diocese of Vic

(1983), 86-8. 161 The Autobiography of Giraldus Cambrensis, ed. H. E. Butler (1937), 67.

124 ESTABLISHMENT OF CONSISTORY COURTS could be called emphyteusis.1® ‘Instituting an heir’ appears more than once in describing the action of a man making a final disposition of his property, despite English law’s ultimate refusal to follow the civil law on this point.!® A part of King Henry IVs plan for dealing with criminous clerks was derived from the Novels of

the Corpus turis civilis; perhaps his advisors had reason to hope that its source would have seemed compelling to the clergy.!%4

Becket’s martyrdom disappointed whatever hopes the king may have held on this score. But one should not discount the standing and continuing importance of Roman law because of that incident. Roman law played a vital role in the fortunes of ecclesiastical jurisdiction in England. It was taught in Oxford from the 1170s, and a distinct civil law faculty was established there slowly but surely during the first third of the thirteenth century. The schools at Cambridge followed something like the same path, although they began a little later. The earliest faculty there was actually that of canon law; the civil law began to be studied in a separate faculty only in the last half of the thirteenth century.!©5 Once established, however, the study of the civil law lasted for many centuries.1° Some of the men who would occupy the highest posts in the English spiritual courts were trained in the faculties of civil law. Although it might be advisable for men who intended to make a career in the ecclesiastical courts to hold a degree in canon law too, it was never a necessity. If one

looks to the literature that was used in English court practice, one often finds as much Roman as canon law being cited.!°” Even at this early date, it can distort what happened if the historian tries to pull apart the two halves of the tus commune. THE DECRETUM AND THE DIFFUSION OF CANON LAW IN ENGLAND

It once was thought that the king’s defeat in the Becket controversy itself opened the way for the new canon law to enter England. Henry was forced to admit what he would not otherwise have allowed. No historian would today make the argument, 162 See Settlement (1189), Archidiaconal Acta, no. 79; Magna Vita Sancti Hugonis, ed. Decima Douie

and Hugh Farmer (1961-2), ii. 87; Thomas of Walsingham, Gesta abbatum monasterii sancti Albani, ed. H. T. Riley (= 28:4 RS; 1867-9), 160-6: ‘ut usufructuarius possidisset’. 163 e.g, William earl of Gloucester (1172), Annales prioratus de Dunstaplia, ed. H. R. Luard (= 36:3

RS; 1864-9), 22; King Richard (1190), Ralph of Diceto, Ymagines historiarum, ed. William Stubbs (= 68:2 RS; 1876), 85-6; “Church as Heir’ (c.1230) in The Cartulary of Cirencester Abbey, Gloucestershire,

ed. C. D. Ross (1964), i. 280. 164 See C. & S. I, pt. 2, 861. 165 M. B. Hackett, The Original Statutes of Cambridge University: The Text and its History (1970), 29-30; Damien Riehl Leader, A History of the University of Cambridge, Volume 1: The University to 1546 (1988), 192-201.

166 H. G. Richardson, “The Oxford Law School under Johr’ (1941) 57 LQR 319-38; Leonard Boyle,

‘The Beginnings of Legal Studies at Oxford’ (1983) 14 Viator 107-31; James A. Brundage, “The Cambridge Faculty of Canon Law and the Ecclesiastical Courts of Ely’ in Medieval Cambridge: Essays on the Pre-Reformation University, ed. Patrick Zutshi (1993), 21-45. 167 e.g, Epistolae Cantuarienses, ed. William Stubbs (= 38:2 RS; 1865), no. 560 (1188).

THE ENGLISH CHURCH 125 at least not in this form. However much he might object to particular aspects of the Gregorian programme, Henry did not attempt to prevent the study of the law of the church within his realms. It would have been a forlorn hope in any case. None the less, there was a connection between the controversy and the spread of canon law in his realm. The issues dividing the two sides became matters of open dispute. They brought to the fore the question of which side had the better case in law. In the climate of the 1160s, answering that question required having recourse to the best canonical authorities. That meant the Decretum. The older collections would not

suffice. The resources of the Decretum were called into play in the manoeuvring for advantage that occurred on both sides of the quarrel. The earliest known English references to Gratian’s work, although one it is not entirely free from doubt, come from the two letters of John of Salisbury written just before 1160.16 The wider controversial literature involving benefit of clergy during the 1160s certainly draws upon the Decretum. Among its other objectives, Gilbert Foliot’s famous letter Multiplicem (1166) purported to lay out the law about trial of clerics on the basis of texts from the Decretum.1°9 Archbishop Thomas found it both possible and necessary to found his case for condemning the Constitutions of Clarendon ex decretis et legibus.1”° He also found justification in the Decretum, as well as in Roman law, for having excommunicated Foliot.17! The need for a greater knowledge of the Decretum, and indeed for all legal knowledge of a learned kind, during the middle years of the twelfth century, was manifest to men like Foliot. They had had legal training in the schools. To them, the older ways of informality in administration were no longer adequate. More than once, Foliot felt called upon to remind his episcopal colleagues of the distinction between possessory and proprietary causes and the law against spoliation in disputes over parish churches and chapels.!72 More than once, he was moved to recall to them the importance of following the ordo turis.173 He was not alone. John of Salisbury’s letters contain a painful account of the confusion into which a litigant’s demand for a satisdatio threw Archbishop Theobold’s court. A satisdatio was a form of guarantee against being drawn into court on the same matter, but Theobald was not quite sure what the term meant, and in any event he saw the 168 The Letters of John of Salisbury, Volume One: The Early Letters (1153-1165), ed. W. J. Millor and

H. E. Butler eds. (1955), nos. 67 and 68. This was the opinion of Brooke, The English Church (above

n. 9), 110. 169 Letters and Charters of Gilbert Foliot (above n. 159), no. 170, at 235-6. 170 Roger of Pontigny, Vita S. Thome in Becket Materials, iv. 62.

171 See “Causa inter Cantuariensem archiepiscopum et episcopum Londoniensem’ in Becket Materials, iv. 213-14, citing C. 2 q.1 cc. 15, 17. 172 Letters and Charters of Gilbert Foliot (above n. 159), nos. 66, 248, 427. 173 ibid., no. 168. This is the probable intent of a letter of Foliot to Archbishop Thomas Becket before

they became enemies; it was couched in very respectful language but suggests that the archbishop’s court had not followed the ordo iuris. See Correspondence of Becket (above n. 112), 1. no. 22 (1163-4).

126 ESTABLISHMENT OF CONSISTORY COURTS demand for it as making quite unjust use of ‘the subtleties of the laws’1”4 Perhaps it was. But the cost of ignoring those ‘subtleties’ was rising. Well might the monks of Battle Abbey lament the absence of men available to them who had been properly trained in the Leges and in the law of the Decretum. Legally trained men had become essential if their house’s property was to be preserved.!75 It is in the last third of the twelfth century that the sources begin to yield significant numbers of disputes about the law being conducted on a higher level. Many of them were backed for the first time with citation to texts from the Roman and

canon laws. There are many examples. As already noted, Thomas Becket’s argument that secular trial of criminous clerks would amount to double jeopardy itself

ushered in technical disputes about and hence study of law. An ecclesiastical dispute from 1176 raised a hard question about the reach of the doctrine of res judicata.’© In the 1170s, Bishop Roger of Worcester made use of the Roman law’s missio in possessionem in attempting to settle a contest over rights in the church of Holy Trinity, Colchester.1”7” The legal problems raised by the rise in numbers of appeals to the Roman court also provoked litigation, concern, and attempts at legal definition.!78 In other words, the kind of legal sophistication that produced the possessory assizes in the royal courts during the reign of Henry II is also evident in the history of the ecclesiastical law in England.!79 Lawyers began to appear among the familiares of English bishops; they were needed for diocesan administration.!8° A kind of ‘Angevin leap forward’ in the law occurred in both temporal and spiritual law, although the Angevin kings themselves had little to do with the latter.1*1

It was no straight march, however. There was some resistance among the English clergy, and there was more ignorance. The stresses of these years of transition are particularly evident in the internal history of the church’s most 174 Letters of John of Salisbury (above n. 168), no. 2. 175. The Chronicle of Battle Abbey, ed. Eleanor Searle (1980), 324-5; this comes from the 1170s. See also

the ridicule heaped on an inexpert advocate by his better trained rivals in Thomas of Walsingham, Gesta abbatum (above n. 162), 142; and Alain Boureau, ‘How Law came to the Monks’ (2000) 167 Past & Present 29-74; Charles Donahue, Jr., “Gerard Pucelle as a Canon Lawyer: Life and the Battle Abbey Case’ in Grundlagen des Rechts, 340-7. 176 See Cartulary of Oseney Abbey, ed. H. E. Salter (= 89 Oxford Historical Soc.; 1929), no. 782. The Roman law definition is given at Dig. 42.1.1. 177 BL, Lansd. MS. 416, f. 46 (1172 X 1177), printed in Mary Cheney, Roger, Bishop of Worcester 1164-1179 (1980), 238.

178 See the discussion in Mary Cheney, Roger, Bishop of Worcester, 175-8. 179 See Mary Cheney, ‘Possessio/proprietas in Ecclesiastical Courts in Mid-twelfth-century England’

in Law and Government in Medieval England and Normandy, ed. George Garnett and John Hudson (1994), 245-54; Paul Brand, ““Multis Vigiliis Excogitatam et Inventam”: Henry II and the Creation of the English Common Law’ (1990) 2 Haskins Soc. Jnl 197-222. 180 See e.g. Acta of the Bishops of Chichester 1075-1207, ed. Henry Mayr-Harting (= 56 C. & Y. Soc.; 1964), 6, 18—21.

181 Doris M. Stenton, English Justice between the Norman Conquest and the Great Charter (1964), 6-53.

THE ENGLISH CHURCH 127 characteristic and serious sanction, excommunication.!®? In earlier days, it had been something like a curse, employed without thought of legal process and dependent for its effect on the justice of the cause and the strength of the man doing the excommunicating. Saintly men so used it, and what they did was not without defenders. For instance, the Life of St Hugh of Lincoln recounted several incidents where the saint and bishop (d. 1200) quickly unleashed the ‘sword of excommunication against a wrongdoer, in each instance without the slightest suggestion that the bishop had done anything wrong under the canon law. In order to cheat a knight out of his inheritance, a barren couple pretended they had had a child. St Hugh confronted them, and without anything like prior citation or trial, he excommunicated the man. His victim was found lifeless the next day, struck dead by the saint’s anathema.!83 On another occasion, Hugh rebuked a woman who had deserted her husband. She spat in his face. He excommunicated her at once, and she too paid the price. She was found dead, having been ‘strangled by the devil} as it appeared to the saint’s biographer.!84 Increasingly as the twelfth century progressed, however, ex parte excommunications like those issued by St Hugh were being challenged as contrary to the law of the church. Thomas Becket was himself involved in several incidents in which his

actions gave his enemies the opportunity to chastise him for excommunicating his enemies without the slightest show of giving them a trial, or even an opportunity to justify themselves informally.185 Procedural formality was becoming the norm. A Council of Westminster (1200), convoked in part to carry forward the goals of the Third Lateran Council of 1179, enacted a canon forbidding excommunication ‘unless a canonical monition precedes it.18° This was the way of progress. By the first quarter of the thirteenth century, the older forms of excommunication used by Hugh and Thomas Becket, sentences issued without monition or trial, were coming to seem “both antique and antiquated’, as Gerald of Wales put it.18” Other signs of change appear in the records of the time. The elaborate anathemas contained in the charters from an earlier period, warning of the dire consequences that would befall any who did not respect their terms, now began to disappear from monastic and episcopal charters.!88 The push towards acquiring a basic familiarity 182 Further sources and a fuller discussion of this subject can be found in: “Excommunication in Twelfth Century England’ (1994-5) 11 Jnl Law and Religion 235-53. For an Anglo-Saxon example, see Wulfstan of Winchester, Life of St thelwold, c. 33, ed. Michael Lapidge and Michael Winterbottom

(1991), 50-1. 183 Magna Vita (above n. 162), 11. 20-5. 184 ibid. 31-2. 185 See Letters of Arnulf of Lisieux (above n. 160), no. 54a; Frank Barlow, Thomas Becket (1986), 184.

186 ¢,7in C. &S. J, pt. 2, 1064. 187 Giraldi Cambrensis Opera, ed. J. Brewer (= 21:1 RS; 1861), 227-8: ‘antiquo sed et antiquato more’. 188 See EEA 6: Norwich 1070-1214, ed. Christopher Harper-Bill (1990), p. Ixix; and see generally Lester Little, ‘Formules monastiques de malédiction aux [Xe et Xe siécles’ (1980) 58 Revue Mabillon 377-99, esp. 385.

128 ESTABLISHMENT OF CONSISTORY COURTS with the canon law was felt by many churchmen. When Abbot Sampson found himself becoming involved in litigation as a judge in the 1180s, he felt it his duty to make a study of ‘the Decretum and the decretal letters.189 His prior education had made no place for it. Now it was becoming something like a necessity. It should be said that not all churchmen studied the canon law and that the classical canon law always left slightly ajar the door that barred issuing sentences excommunication outside a judicial context. Becket answered his opponents in kind, and he was not without support among the learned. When all was said, however, it was far safer to learn the rules, far less perilous to consult one of the growing number of ordines tudiciari. These treatises met a need. They set out a procedure that was fairer to the parties, and they avoided the likelihood of an appeal and appellate rebuke. The growing utility of the ordines was one part of the expanding place of law in the

government of the church, a development ushered into English practice by the arrival of Gratian’s Decretum and by a more careful and systematic approach to law and litigation that the English clergy shared with their brethren on the Continent. By the first third of the thirteenth century, a familiarity with the learned laws had become almost second nature for an English bishop and his famulia.19° Its importance would have been brought home to them by the presence and effective activity

of men like the papal legate Guala, who acted as quasi tutor for the young king Henry III and was described by contemporaries as peritissimus in the law.!9! It had its hard side too. Ignorance of technical aspects of the law became a matter for bitter jest against a man involved in litigation who was untrained in it.192 Innocent III

himself mocked the bishop of Worcester’s proctor for having drunk too much English beer when he gave a mistaken account of the law of prescription.!93 But the overall results were positive. Knowledge of the church’s law was spreading. It was in the normal course of things that the Decretales Gregorii IX should have been known in England very soon after their publication in 1234. THE ANGLO-NORMAN CANONISTS

English clerics took to the tus novum. More than a few of the most important canonists of this period had English connections. The modern scholars who have investigated the subject most fully concluded that an ‘Anglo-Norman school 189 The Chronicle of Jocelin of Brakelond, ed. H. E. Butler (1949), 33-4. He learned something of rules regulating choice of forum (C. 3 q. 6 c. 16) and excommunication latae sententiae (C. 3 q. 4 c. 12); ibid. 52, 93.

190 Charles E. Lewis, “Canonists and Law Clerks in the Household of Archbishop Hubert Walter’ in Seven Studies in Medieval English History, ed. Richard Bowers (1983), 57-63.

191 The Letters and Charters of Cardinal Guala Bicchieri, Papal Legate in England 1216-1218, ed. Nicholas Vincent (= 83 C. & Y. Soc.; 1996), pp. xxx—xlv.

192 See the failure of an advocate (1211) recorded in The Chronicle of the Election of Hugh Abbot of Bury St Edmunds and Later Bishop of Ely, ed. R. M. Thomson (1974), 28-31. 193 Chronicon Abbatiae de Evesham, ed. W. D. Macray (= 29 RS; 1863), 189.

THE ENGLISH CHURCH 129 of canonists existed and flourished in the late twelfth and early thirteenth centuries.!94 The great names in this school were Gerard Pucelle (d. 1184), Master Honorius (d. c.1213), and John of Tynemouth (d. 1221), but they were not alone

or isolated by their specialization or their connection with England. Glossing manuscript copies of the Decretum, compiling guides to civilian procedure, writing summae and treatises on aspects of the canon law, and composing quaestiones for use in the schools, English canonists were fully abreast of Continental developments. A manuscript of the Decretum, originally at Oxford but now at Gonville and Caius College in Cambridge, was amply glossed by several hands during these years. It is a testament to the industry and sophistication of the ‘Anglo-Norman school’.!%5 Its glossator divided topics in the fashion

of the schoolroom, as for example in placing different kinds of attacks upon clerics in separate legal categories, apparently for ease of treatment and for purposes of drawing distinctions between possible sanctions.!9° And the jurists responsible for the glosses did not hesitate to record dissenting views, this in the fashion that would become the norm in the schools.!9”7 They also added references to papal decretals. The efforts evident in this particular manuscript were connected with the mainstream of canonical development in more than an intellectual sense. Many of the English canonists had careers both on the Continent and in England. A few, like

Gilbertus and Alanus Anglicus, even made their mark in Bologna.!98 Gerard Pucelle taught in Paris and Cologne, served in the familia of Thomas Becket and his successor, Richard of Dover, and died as bishop of Coventry.!9%9 It is true that his work, like that of the others, was eventually eclipsed by the growth of canonical study on the Continent. The English church became a recipient of what was done elsewhere. In particular, the work of the great canonist, Huguccio (d. 1210), and the glossa ordinaria of Johannes Teutonicus (d. 1246) and Bartholomew of 194 Kuttner and Rathbone, ‘Anglo-Norman Canonists’ (above n. 158), at 279. See also Rudolf Weigand, ‘Die anglo-normannische Kanonistik in den letzten Jahrzehnten des 12. Jahrhunderts’ in Proc. Seventh International Congress of Medieval Canon Law, ed. Peter Linehan (1988), 249-63; C.R. Cheney, ‘An Annotator of Durham Cathedral MS C.III.3, and unpublished Decretals of Innocent IIT, (1967) 11 SG 39-68; André Gouron, “Une école de canonistes anglais a Paris: Maitre Walter et ses

disciples (vers 1170)’ (2000) Journal des Savants 47-72; Walter Ullmann, ‘A Forgotten Dispute at Bridlington Priory and its Canonistic Setting’ (1951) 37 Yorkshire Archaeological Jnl 456-73.

195 GCC, MS. 283/676, on which see Duggan, “The Reception’ (above n. 28), 71-7; Kuttner and Rathbone, ‘Anglo-Norman canonists’ (above n. 158), at 317-21, 347-53. 196 See GCC, MS. 283/676, f. 141, glossing C.17 q. 4 c. 29 (Si quis suadente). 197 ibid., f. 151, recording the opinion of John of Teignmouth on the circumstances in which a vassal

could to be freed from his oath to his lord. 198 See Van Hove, Prolegomena, 354, and Rudolf von Heckel, ‘Die Dekretalensammlungen des Gilbertus und Alanus nach den Weingartener Handschriften’ (1940) 29 ZRG, Kan. Abt. 116-357. 199 See Donahue, “Gerard Pucelle as a Canon Lawyer’ (above n. 175), 333-48.

130 ESTABLISHMENT OF CONSISTORY COURTS Brescia (d. c.1258) diminished the significance and the reputations of the English canonists of the twelfth century. For a time, however, they were men to be reckoned with in the larger world of the church’s law. The same can be said about the collection of papal decretals. Bringing together recent letters of the popes in the interest of clarifying the substantive law of the church figured among the prominent interests of the English canonists during the second half of the twelfth century. Over half of the thirty or so of the ‘primitive’ collections so far discovered were English in origin.2°° Many of their contents passed into systematic collections, in which the decretals were divided by subject, thence into the Quinque compilationes antiquae and eventually into the Gregorian

Decretals themselves. The number of papal documents preserved in English collections turns out to have been quite high,?°! and it is widely agreed today that the activity behind their collections is good evidence of the special vitality of the English school of canon law. It is not, as was once thought, a sign of the backwardness of the English church and a consequent special need for papal guidance. The study of early ordines judiciarii opens another window on the vitality of canonical study in early thirteenth-century England. The ordo put together by Ricardus Anglicus (de Mores) (d. 1242) was deservedly popular in many parts of Europe.?°2 A recent study also connects the earliest forms of the influential tract on procedure, Actor et reus, with the law faculties at Oxford,?°3 and the same attribution has been made with the incomplete and slightly eccentric Summa on procedure compiled by William of Drogheda (d. 1245).2°4 Tracing the origins of the law faculty at Oxford is notoriously difficult, but the association with that city of so many jurists who contributed to the tus commune must weigh in any reconstruction of the faculty’s history. Finally, there were the works intended for pastoral care, primarily in the ‘internal forum’ of the confessional. They differed from the older penitential literature by 200 Duggan, Twelfth-Century Decretal Collections (above n. 72), 66, putting it at fifteen of twenty-seven. The adjective ‘primitive’ simply means that the decretals were not organized by subjectmatter, as they were in systematic collections and the Decretales Gregorii IX. The exact number of the early collections is subject to review and expansion; see e.g. Charles Duggan, Canon Law in Medieval England (1982), ‘Addenda et corrigenda, 1-2. 201 Jane Sayers, Original Papal Documents in England and Wales from the Accession of Pope Innocent IIT to the Death of Pope Benedict XI (1198-1304) (2000), pp. xxx-lv.

202 Kuttner and Rathbone, ‘Anglo-Norman Canonists’ (above n. 158), 329-39; Franz Gillmann, ‘Richardus Anglikus als Glossator der Compilatio P (1927) 107 Archiv fiir katholisches Kirchenrecht 575-655. The text is printed in Wahrmund, Quellen, vol. 2:3. 203 Linda Fowler-Magerl, Ordines iudiciarii et Libelli de ordine iudiciorum (1994), 93-5; Sayers, Papal Judges Delegate (above n. 83), 42-54.

204 The treatise is printed in Wahrmund, Quellen, vol. 2:2. See also Jane Sayers, “William of Drogheda and the English Canonists’ in Proc. Seventh International Congress of Medieval Canon Law, ed. Peter Linehan (1988), 205-22; F. de Zulueta, “William of Drogheda in Mélanges de Droit romain dédiés a George Cornil (1926), 641-57. See also Maitland’s discussion: Roman Canon Law, 107-16.

THE ENGLISH CHURCH 131 incorporating the new law of the Decretum and Decretals. More systematic in character, these manuals discarded the fixed penances of most Anglo-Saxon works in favour of ‘arbitrary’ penances tailored to each individual case and each penitent.

Three examples of this literature that have an English connection have been published in modern, scholarly editions. The first is by William “de Montibus, who taught in the schools at Lincoln towards the close of the twelfth century.2® The second is that of Thomas Chobham, who appeared in English records from around 1190 and lived to an advanced age as subdean of Salisbury. The third is by Robert of

Flamborough (d. c.1224), probably a Yorkshireman by origin, but who spent the larger part of his professional career in France.2°° The secrecy of the confessional prevents historians from speaking with assurance about the enforcement of the rules and guidelines contained in this literature,?°” but any just appreciation of the character and extent of the work being done with the canon law in England must at least be aware of the potential of the penitential forum. It would have been of great importance to a large part of the clergy and laity, perhaps often more so than the actions taken within the church’s public courts. Standing somewhat apart from these developments, yet tied to them in substance and in consequence, was the organization of the canon law faculties in Oxford and Cambridge. This occurred in the 1230s in Oxford, where, it is thought, the study of the canon law had previously been mixed together with the civil law. Thomas of Marlborough, who became abbot of Evesham, was said to have taught both laws in Oxford and Exeter,?°* and the leading student of the subject concluded that there was something like an ‘early school of practical canon law’ that existed in harmony with the civilians in Oxford from the 1170s and 1180s.?°° But separation was inevitable, and the first man known to have taken a doctorate in canon law was Richard Wich (d. 1253), later bishop of Chichester. The date of his degree coincided almost exactly with the appearance of the Gregorian Decretals in 1234. In Cambridge, the earliest statutes from c.1250 also mention a faculty of 205 H. MacKinnon, ‘William de Montibus, a Medieval Teacher’ in Essays in Medieval History presented to Bertie Wilkinson, ed. T. A. Sandquist and M. R. Powicke (1969), 32-45. 206 See Joseph Goering, William de Montibus (c.1140-1213): The Schools and the Literature of Pastoral Care (1992), 179-210; Thomae de Chobham Summa Confessorum, ed. F. Broomfield (1968); and Robert of Flamborough, Liber Poenitentialis: A Critical Edition with Introduction and Notes, ed. J. J. Francis Firth (1971). The other literature is discussed by Jonathan Hughes, “The Administration of Confession

in the Diocese of York in the Fourteenth Century in Studies in Clergy and Ministry in Medieval England, ed. David M. Smith (1991), 87-163.

207 Even the most optimistic account does not foresee the possibility of realistic discussion about enforcement; see Alexander Murray, ‘Confession as a Historical Source in the Thirteenth Century’ in The Writing of History in the Middle Ages: Essays Presented to Richard William Southern (1981), 275-322, id., ‘Confession before 1215’ (1993) 3 TRHS (6th ser.) 51-81. 208 Chronicon Abbatie de Evesham, ed. W. D. Macray (= 29 RS; 1863), 267. 209 L. E. Boyle, “Canon Law before 1380’ in HUO, 1. 531-64, at 533.

132 ESTABLISHMENT OF CONSISTORY COURTS ‘Decrees, meaning the canon law. The civil law faculty was organized as a distinct entity only a few years later. The earliest teacher of whom we have a record was

a Simon de Asceles, who incepted there as doctor of civil law sometime in the middle of the same decade and subsequently became prior of Barnwell. 2!° It is not easy to be certain about exactly what was taught in young law faculties, but we do know that the basic texts of the civil and canon laws furnished the basic curriculum. The days of the Liber pauperum had passed. PROVINCIAL AND SYNODAL LEGISLATION

The early thirteenth century was a time of intellectual growth throughout the Latin church, and growth is plainly visible in the legislative sphere. The achievements were impressive. New ground was broken. Innocent III’s Fourth Lateran Council (1215), for example, effectively prohibited trial by ordeal, narrowed the

prohibited degrees of consanguinity and affinity within the law of marriage, required at least yearly confession to one’s parish priest among the laity, clarified

the law of elections in the church, and tightened up the procedure to be used against those who violated the laws that set the boundaries of permissible thought and behaviour approved by the church.

Some legislation was more traditional, but not unimportant. Among the Council’s seventy-one constitutions, the sixth called for the holding of yearly provincial councils and the preparation of provisions to ‘correct or reform’ what was amiss in the local churches.2!! The provision was no innovation. The same call for frequent meetings of the clergy had been issued before. Perhaps it was partly coincidence, but in this instance the conciliar direction had an immediate effect. It was followed by the enactment of diocesan and provincial legislation that was more intense and innovative than anything that had come before. Councils held at London in 1140, 1143, 1145, 1151, 1152, and 1154 have left evidence of their work. Some of the synodal statutes were enacted at the initiative of papal legates

who had come to England; this may have provided a special impetus for action and given the constitutions adopted a special prestige and prominence.

Whatever the motivation, for the history of ecclesiastical jurisdiction in England, provincial and diocesan legislation played a special role. A part of the legislation turned out to be of more immediate importance in court practice than the texts of the Corpus turis canonici themselves. This was itself part of a widespread movement. The problems faced by the medieval church possessed a basic similarity in most parts of Europe. Ignorant and undisciplined clergy, ill instructed laity, opposition from secular powers, and a lack of effective means of implementing the 210 Tiber Memorandorum Ecclesie de Bernewelle, ed. J. W. Clark (1907), 73. 211 ¢,6 in Decrees, Tanner, 236-7.

THE ENGLISH CHURCH 133 law—all these plagued the church virtually everywhere. To counter these endemic difficulties, bishops throughout the Latin church repeated or paraphrased relevant enactments of the ecumenical councils, seeking their enforcement by stating them forcefully and attempting to make them more widely known. An influential example is furnished by the statutes of Richard Poore (1217 X 1219), successively bishop of Chichester, Salisbury, and Durham.?!2 The clergy were instructed both to follow the correct forms in baptising and to dismiss the women with whom they had been

living. The laity were instructed to pay their tithes faithfully and to show due reverence in the celebration of the marriages of their friends and neighbours. Rules against playing games in churchyards and in favour of making charitable bequests were enacted. Most of the legislation, of which there was more along the same lines, contained little that was new or unusual in substance. Much of it came from the

Lateran Council, and seventeen of Poore’s chapters appear to have been taken directly from statutes attributed to Odo of Sully, bishop of Paris between 1196 and 1208.213 This must have made it doubly attractive, for Poore’s own statutes were in turn borrowed by other English bishops.

However, it was not all repetition of time-honoured canons. Archbishop Stephen Langton convoked a provincial council at Oxford in 1222. Among its many prohibitions, the council promulgated canons against those who presumed to infringe the specific liberties of the English church and against those who maliciously imputed a crime to men and women of unblemished reputation. They were not merely repetitive of past canons, and both of these became distinct heads of ecclesiastical jurisdiction in England. It was with good reason that William Lyndwood would include them in his Provinciale.2!4 These two provincial statutes did not contradict the formal canon law, but neither were they copies of what it was already. The Oxford council’s second decree became the source of the English law of defamation, setting forth a narrower definition of actionable slander than the law of iniuria that would be ‘canonized’ in the Decretals (X 5.36.9). The 1222 Council’s decrees set something like a standard for English provincial legislation, which came in time to be quite voluminous.?!5 Although the authors of the standard work on the subject are probably right to hesitate about ascribing

to the statutes any role in creating ‘a spiritual re-birth’ among the English people, 21° they do not doubt either the sincerity of the episcopal efforts or the material results that issued from diocesan legislation. These local constitutions 212 C, & S. Il, pt. 1, 57-96. 213 C,R. Cheney, English Synodalia of the Thirteenth Century (1941), 55.

214 Provinciale, 345-8; see also the Tabula in the introduction, showing the many canons included

from this council. 215 See the list in Cheney, English Synodalia (above n. 213), p. Viii. 216 Marion Gibbs and Jane Lange, Bishops and Reform 1215-1272 with Special Reference to the Lateran Council of 1215 (1934), 179.

134 ESTABLISHMENT OF CONSISTORY COURTS played a part, for example, in the lengthy but finally successful effort to end the respectability of clerical marriages in medieval England.?!7 This effort to make use of diocesan legislation was of course common in the Latin church as a whole, and it can only be claimed that these English statutes provided support for it. But support of this sort deserves recognition. It was a way of implementing a wider goal. In another aspect, the conciliar legislation was intended to deal with problems that were peculiar to England. For instance, the English ecclesiastical law of last wills and testaments differed markedly from the system mentioned in the canons, and two provincial statutes, the first enacted in 1261, the second in 1343, governed much of the internal working of the English probate system.2!8 The one directed the orderly distribution of estates of those who had died intestate; the other prohibited interference with collection and disbursement of the assets of those who had left a valid testament. Both were much cited in practice. Their significance was not a matter of canonical principle so much as it was a concession to the special situation of English probate law. The statutes rested upon a limited concession to the church of jurisdiction over succession to chattels, a customary rule that did not prevail in most parts of Europe. For that reason, special rules were needed in England. The constitutions did not directly contradict the law of the Corpus turts canonici. Churches in other parts of Europe made broadly similar choices in other areas of the law. 219 The canon law did not forbid such variation. All the same, this local legislation long played a decisive role in practice before the English courts, and it marked out the distinct character of English ecclesiastical jurisdiction over testamentary succession. The Ecclesiastical Courts Study of the origins of the ecclesiastical courts in England shares several features with that of the oldest universities. Neither was created. They emerged gradually— all but imperceptibly to contemporaries—out of older and more informal institutions. In addition, at least until investigations of the modern era, historians of both have been prone to place the date of that emergence earlier than the evidence warrants. It has been common to describe the system of ecclesiastical courts that lasted for centuries as a product of the twelfth century, or even before. However, the fact is that a system of consistory courts properly speaking came into existence only from the middle or the second half of the thirteenth century. 217 C,N. L. Brooke, “Gregorian Reform in Action: Clerical Marriage in England, 1050-1200’ (1956)

12 Cambridge Historical Jnl 1-21; Anne Barstow, Married Priests and the Reforming Papacy: The

Eleventh-Century Debates (1982). 218 C. & S. I, pt. 1, 681-2; Lyndwood, Provinciale, 171. 219 See e.g. Ladislaus Abraham, ‘Tus canonicum particulare in Polonia tempore Decretalium Gregorii IX’ in Acta Congressus turidici internationalis ...1934 (1936), ill. 409-14.

THE ENGLISH CHURCH 135 Disputes involving legal matters were of course being heard by officials of the English church before that date. Bishops and other men in authority were called upon to deal with disputes of law and fact.22° To an extent, the search for the earliest signs of the existence of a court system depends on what is meant by the word ‘court. For instance, the term can be used to mean simply a meeting at which a dispute was discussed and some sort of settlement attempted. If so, a continuation of the Anglo-Saxon practice of dealing with disputes in synods would certainly be included. But many complicated disputes could not be settled within the short period during which a synod met.?2! Synods had to be adjourned and the disputes to be heard by judges given powers to settle them. It was before such subsequent ‘tribunals’ that many of the legal disputes recorded in monastic charters of the time would have been heard. These tribunals were courts of a sort. However, if the student takes the word ‘court’ in its normal modern sense, that is as meaning a formal gathering devoted either to prosecuting men and women accused of a crime or deciding private disputes between parties, a gathering that were presided over by professional judges, served by professional lawyers, and meeting regularly in fixed locations and keeping a record of its proceedings, then the student must pick a date somewhere in

the middle of the thirteenth century. Still, it was a gradual thing, and it is not wholly surprising that the move from synod to consistory courts did not attract more attention among contemporaries. ARCHDEACONS AND RURAL DEANS

In the process of change, archdeacons and rural deans played a part. Any examina-

tion of the history of ecclesiastical courts on the Continent brings the inquirer into immediate touch with a history of jurisdictional dispute between archdeacons and bishops.222 By appointment, custom, or neglect, archdeacons had become chief enforcers of ecclesiastical discipline, and it was only during the thirteenth century, with the arrival of the classical canon law, that bishops were able to set up their own judicial system. With publication of the Decretals, it was established that, in principle, regular appeal to them lay from the tribunals of the archdeacons. They did so, establishing the consistory courts as courts of appeal and also of first instance. Continental legal historians have traced this process in detail. By contrast, English historians have devoted much less attention to it. Yet 220 See e.g. the difficult dispute over the marriage of Christina of Markyate (mid-twelfth century), in The Life of Christina of Markyate, ed. C. H. Talbot (1959), 46-7, 70-3; the question involved coerced marriage and was referred to at least two bishops for decision. 221 See Johannes de Imola, Commentaria super Decretales ad X 3.5.29, no. 12, on the “paucis diebus’ at which synodal meetings could be held.

222 eo, Fritz Michel, Zur Geschichte der geistlichen Gerichtsbarkeit und Verwaltung der Trierer Erzbishofe im Mittelalter (1953), 9-18.

136 ESTABLISHMENT OF CONSISTORY COURTS something like the Continental experience, although without the same prolonged and open conflict, also occurred in England. At least there is strong evidence of jurisdiction placed in the hands of archdeacons, some of which was later taken back by the bishops and all of which was, in theory at least, finally subjected to the possibility of appeal and inhibition.223 Archdeacons had existed in Anglo-Saxon England, and it seems certain that they took a part in the enforcement of the moral code of the time.224 But their

appointment was spasmodic, they lacked a fixed territorial jurisdiction, and their disciplinary duties (together with the profits that accrued from them) might be shared with powerful laymen. Soon after the Conquest, however, the bishops were ordered to appoint archdeacons for parts of their dioceses, and they did so. The system by which dioceses were divided into territorial archdeaconries seems to have been put into place relatively quickly, as was the

subdivision of archdeaconries into rural deaneries.225 In a council held at London in 1108, for example, it was archdeacons who were directed not to take money for tolerating violations of the council’s statute against clergy who kept women in their houses.22° In other words, the council’s working assumption

was that the archdeacons would be doing the enforcing of the prohibition. The same assumption appears to have been made about the crimes of laymen in

the early thirteenth-century statutes of Richard Poore. About the same time, Peter of Blois was appealing to the pope to protect archidiaconal jurisdiction against attacks by agents of their bishops.22” He too shared the assumption that the archdeacons should perform the task of enforcing the church’s law on a local level.

We are poorly informed about the actual proceedings in the courts and chapters of archdeacons and rural deans during this period. No records have come down to us. However, enough mentions of these officials taking action as judges in civil disputes have survived to show that they sometimes acted as deputies of 223 e.g, Thomas of Walsingham, Gesta abbatum (above n. 162), 149, recording the bishop’s statement

that the archdeacon, not he, exercised jurisdiction over homicide. See Brian Kemp, “Informing the Archdeacon on Ecclesiastical Matters in Twelfth-Century England’ in Owen Studies (above n. 134), 131-49, at 132.

224 e.g, Northu., c. 6 in Liebermann, Gesetze, i. 380 [EHD, 1. 435]. See Jean Scammel, “The Rural Chapter in England from the Eleventh to the Fourteenth Century’ (1971) 86 EHR 1-21, at 2-3. 225 Council of Windsor, c. 5 (1070) in C. & S. J, pt. 2, 580; Barlow, The English Church 1066-1154 (above n. 99), 48-50; C. N. L. Brooke, “The Archdeacon and the Norman Conquest’ in Tradition and Change: Essays in Honour of Marjorie Chibnall, ed. Diana Greenway, Christopher Holdsworth, and

Jane Sayers (1985), 1-19; A. Hamilton Thompson, “Diocesan Organization in the Middle Ages: Archdeacons and Rural Deans’ (1943) 29 Proc. British Academy 153-94, esp. 164-67. 226 ¢,6in C. & S. I, pt. 2, 702. 227 cc, 39,77 in C. & S. I, pt. 1, 73, 85; and no. 8 in The Later Letters of Peter of Blois, ed. Elizabeth Revell (1993), 45-9.

THE ENGLISH CHURCH 137 their bishops in many situations.228 The archdeacon was traditionally known as the oculus episcopi, and some English archdeacons apparently filled that role. Whether this happened by express designation or by accident is hard to know. But it was during this period that most of them acquired an established jurisdiction in instance causes that would last a long time—until the extent of litigation before their courts was diminished through the choice of parties and the desuetude that came several centuries later. The evidence from an earlier period is, however, dominated by the archidiaconal exercise of disciplinary jurisdiction, not instance causes. Much of it is complaint. If we take it at anything close to face value, we must conclude that archdeacons were making a handsome living by ‘detecting’ the sins of the laity, mostly sins of the flesh, and imposing fines upon those whose sins they had detected.229 The best-

known piece of evidence comes from King Henry II, who was said to have remarked that the exercise of jurisdiction over sins had made his archdeacons richer than he was himself.23° A visitation by the archdeacon or his deputy was apparently an occasion to dread. Those who were visited emerged poorer men. An echo of the objection found a place in the canon law itself. A decretal of Pope Alexander III limited visitations by archdeacons to once a year because of the burdens imposed upon those who were visited. The decretal did leave one ‘loophole’. It allowed archdeacons to make an exception, ignoring the limitation, if it were shown that necessity existed (X 1.13.6). The contemporary reputation of archdeacons for judicial venality suggests they took advantage of the exception. The only systematic study so far made of the meetings of the chapters held

by archdeacons and rural deans concluded that the procedure was informal, energetic, and open to abuse. It was this procedure that chapter 6 of the Constitutions of Clarendon (1166) sought to regulate, imposing a requirement that credible evidence be brought forward before a layman could be brought to book in one of these chapters. The canon law itself would include similar provisions (e.g. X 5.1.24). Such practical steps in the direction of reform as were taken during the twelfth century seem to have been less than a success, however. In the view of

the subject’s student, the procedural safeguards created in the ius commune 228 e.g, dispute over advowson (1242) in Luffield Priory Charters, ed. G. R. Elvey (= 22, Northants.

Record Soc.; 1968), pt. I, no. 42; dispute over vicarage of Chesham (1221) in Annales prioratus de Dunstaplia (above n. 163), 74; dispute over patronage (1177 X 1179) in Letters of Arnulf of Listeux (above

n. 185), no. 136; tithe dispute (c.1150) in Cartulary of Cirencester Abbey (above n. 163), no. 417/448. Evidence on the office is examined in Pierre Andrieu-Guitrancourt, Essai sur Pévolution du décanat rural en Angleterre (1935).

229 See e.g. Magna Vita (above n. 162), ii. 38; William fitz Stephan, “Vita sancti Thomae’ in Becket Materials, iii. 43-5. 230 His attitude was expressed in c. 12 of the Inquest of Sheriffs (1170), attempting to ascertain the extent of unjust sums taken by archdeacons and rural deans; see Stubbs’ Select Charters, 177.

138 ESTABLISHMENT OF CONSISTORY COURTS ‘largely passed the rural chapter’s disciplinary functions by, and the victims were of ‘too low a social status to complain’.23! Later records of the chapters do not contradict that assessment.?32 They describe the summary detection and punishment of one ecclesiastical offender after another. No intervention by lawyers impeded the flow of prosecutions. No points of law were raised. In the fifteenth century, William Lyndwood would record that, instead of following the procedural requirements of the ius commune, these chapters were acting as if they were the traditional courts that followed the customs of the land.233 Not much had changed. By the turn of the thirteenth century, it is therefore safe to conclude that clerical tribunals with disciplinary power were meeting regularly. They were familiar enough to have caused remark and resentment.?34 These assemblies would probably have been the spiritual forum most familiar to most laymen. However, they were too informal and too traditional in their proceedings to count as established centres of ecclesiastical law. The ‘legal’ element promised by the classical canon law was missing. PAPAL JUDGES DELEGATE

The first half of this chapter discussed the role delegated papal jurisdiction played in developing and disseminating greater knowledge of the church’s law. Many of the points of law found in the Corpus iuris canonici arose either out of appeals to the papal court or out of cases brought there in the first instance. Opening virtu-

ally any page of the Decretals will produce an example, many from England. Could a plaintiff against whom an exception of excommunication had been raised in order to disqualify him from bringing suit defeat the exception by showing

that the defendant had incurred excommunication by having associated with an excommunicated person, who as it turned out was the plaintiff himself¢ No, he could not, wrote Pope Innocent HI to the archdeacon of Richmond who was the judge in a case where this exercise in legal cunning had been attempted (X 2.25.2).235 The new ordo turis invited efforts like these, turning procedure into a tactical advantage for one side or the other, and it was only by consultation with

the highest court of appeal in the church that problems like this one could be worked out.23© Many were bound to arise. 231 Scammel, “The Rural Chapter’ (above n. 224), 13, 16.

232 Poos, Lower Courts, pp. liii-lxiv; Antonia Gransden, “Some Late Thirteenth-Century Records of an Ecclesiastical Court in the Archdeaconry of Sudbury’ (1959) 32 BIHR 62-6. 233 Provinciale, 14, s.v. capitulis ruralibus: ‘magis nituntur consuetudini patriae quam iuri communi. 234 See ‘A Satyre on the Consistory Courts’ (c.1290) in The Political Songs of England, ed. Thomas Wright (= 6 Camden Soc.; 1839, repr. 1968), 155-60. 235 For further examples and discussion, see Cheney, From Becket to Langton (above n. 86), 53-62.

236 It was a consultative process, one that involved an exchange of views and ideas; see Mary Cheney, Roger, Bishop of Worcester (above n. 177).

THE ENGLISH CHURCH 139 A marked increase in numbers of ordinary cases being taken to the papal court from England was a prominent feature of twelfth-century English life.23” Beginning with a trickle in the second quarter of the century, it grew into a stream during the pontificate of Alexander III (1159-81). According to its most dedicated student, it had shown no sign of slackening by the middle years of the thirteenth century.?38 Large numbers of judges, drawn from monastic orders as well as the secular clergy, were involved. They made use of lesser officers from the diocese to do the necessary work of citation, inquiry, and execution of sentences. They heard causes ranging over the spectrum of ecclesiastical jurisdiction, marriage, and testaments as well as the more

important disputes about churches, chapels, and monastic houses. No doubt, very few of these cases were brought because they raised interesting

points of law. Most were brought out of a desire for advantage and finality. There was an ‘appetite for secure law’.239 Sentences backed by papal approval seemed desirable. The papal court was also beyond the reach of royal writs of prohibition—

probably one reason cases about ecclesiastical patronage were so often brought there—and that too increased the attraction for some litigants. One might even be tempted to regard it as a new manifestation of the filial relationship between England and the apostolic see that had existed since the time of St Augustine, except that it was an event that also occurred in most parts of the Latin church. Evidence of the activities of papal judges delegate in England is sparser for the

second half of the thirteenth century than it is for the first. This decline probably reflects the reality. Criticism of an excessive, wasteful multiplication of appeals to Rome was being heard.?4° The use of delegated jurisdiction did not cease, of course, but the need for it decreased as the consistory courts became established and as the ‘tuitorial appeal’ to the court of Canterbury was formulated to deal with appeals from the diocesan courts. But overall the experience had taught the English clergy a good deal about the law. Really, it was more than that. As cases went back and forth, a need for greater precision in setting out the applicable law made itself felt. Planning and thought was required. Papal delegation had been a means by which that canon law itself matured. THE CONSISTORY COURTS

The ordinary venue for settling disputes in the Anglo-Saxon church had been the synod. Either that, or else the disputes had been treated as matters best left for 237 Mary Cheney, “The Compromise of Avranches of 1172 and the spread of Canon Law in England’

(1941) 56 EHR 177-97. 238 Sayers, Papal Judges Delegate (above n. 83), 266. 239 Martin Brett, “Canon Law and Litigation: The Century before Gratian in Owen Studies (above Nn. 134), 21-40, at 33.

240 See Letter of 1284 in Reg. Epistolarum fratris Johannis Peckham, archiepiscopi Cantuariensts, ed. C. T. Martin (= 77:3 RS; 1882-5), no. 530.

140 ESTABLISHMENT OF CONSISTORY COURTS negotiation by the parties or personal intervention by a bishop or his deputies. ‘Courts’ were occasions as much as they were places. That was the assumption. No ‘system’ of spiritual tribunals existed in such a setting. Not much attention was paid to questions of personal jurisdiction or jurisdictional competence. Common meetings of laymen and clerics were routinely convoked in the service of doing justice during centuries before the Conquest, and they continued for a not inconsiderable time afterwards.24! Gratian’s Decretum itself shows signs of the

long history of shared institutions, procedures like compurgation and ordeals (d.p. C. 2 q. 5 ¢. 21), that united clergy and laity in thinking about the law. The tenets of the Gregorian papacy undermined the basis on which the older,

joint meetings had taken place, and the famous ordinance of William I was, if nothing else, a recognition of the need for change. By 1200 ‘freedom of the church’ was coming to mean, among other things, that the laity would be excluded from

participation in judgments about spiritual matters. At the same time, regular activity in the chapters held by archdeacons and rural deans and the rise of a system of papally delegated justice were themselves undercutting older assumptions about the merely occasional nature of justice. Isolation of legal proceedings from other matters, so that justice could be done more quickly and expertly, began to seem desirable, or at any rate inevitable, in the church. Whether these changes directly ‘displaced’ synodal judgment is harder to determine. Causes did continue to come before episcopal synods and local chapters for decision.?42 Bishops did continue to deal in ad hoc fashion with many quarrels and disciplinary matters. So it would long remain. The total amount of human disagreement that ended in litigation very likely itself increased in volume in the

second half of the twelfth century. There was probably more litigation to go around. In any case, the old assumption that synods, backed by only occasional episcopal intervention, would be sufficient was becoming harder to maintain. The development of a system of royal courts would also have challenged older ways of thinking about ‘dispute resolution’ within the church itself. The movement towards professional ecclesiastical courts did not proceed rapidly, however. A careful study concluded that the existence of consistory courts cannot be assumed from appearance of the word ‘official’ (officialis), the term used for the professional judges who later presided over them.243 Although ‘officials’ did judge causes in place of their bishops from at least the late twelfth century, the term itself 241 e.g, Chapter of Abingdon (1174 X 1184) in Archidiaconal Acta, no. 303. 242 e.g, Cause of Church of St Helena’s, Worcester (1092) in EHD, ii, no. 85; tithe cause (1148 X 1153) in EEA 8: Winchester 1070-1204, ed. M. J. Franklin (1993), no. 54; matrimonial cause (1174 X 1181) in EEA 2: Canterbury 1162-1190, ed. C. R. Cheney and Bridgett E. A. Jones (1986), no. 47A.

243 David M. Smith, “The “officialis” of the Bishop in Twelfth- and Thirteenth-Century England: Problems of Terminology’ in Owen Studies (above n. 134), 201-20.

THE ENGLISH CHURCH 141 was used loosely to designate episcopal agents appointed for a variety of tasks. It did not necessarily designate a man whose career was that of a judge. Only around the middle of the thirteenth century, and slightly later in some places, did references to ‘the officiality’ and to seals and registers of consistory courts begin to appear in the English records. It was only then that the connection between the term ‘official’ and judicial office becomes secure.

The conclusion of this article accords with the other detailed studies of the English courts that have been made.?*¢ It fits the history of the notary public in England; the first surviving appearance of a notary comes from 1257.45 It coincides in time with a famous decretal of Pope Innocent IV sent to the archbishop of Reims in 1246, recognizing and endorsing the use of officiales in judging causes

(Sext 2.15.3). At least broadly speaking, it accords with what happened in Continental practice.24° It also accords with what is known about ecclesiastical lawyers in England. Only from the third quarter of the century can one speak of their being treated in anything like a professional capacity,?4” although once that development came, it came decisively. By the reign of Edward I, ecclesiastical lawyers were well enough established to be bringing suit to recover their fees and ‘retainers .248

Documents drawn up for purposes of litigation do survive from before Edward’s reign, and in them one naturally looks for the existence of organized courts. Knowledge of the law was certainly present from an earlier date. Creation of consistory courts occurred against an intellectual background that now seems compatible only with a functioning court system. Yet it is evident that such a system did not exist. Why the delay? It is inconveniently hard to explain. Perhaps the lack of detailed coverage of a court system in the Roman law texts discouraged

earlier development. There may also have been principled resistance to the ‘routinization’ of the law in the form of permanent courts. Perhaps there was an unwillingness to take that step even among those whose sympathies lay with the law of the church. Permanent courts implied that law and legal disputes would be a normal part of the life of the church. That development was disliked and 244 See Select Canterbury Cases, introd. 7, 14-15; Woodcock, Medieval Courts, 13-14; M. Morgan, ‘Early Canterbury Jurisdiction’ (1945) 60 EHR 392-8; Colin Morris, “From Synod to Consistory: The Bishops’ Courts in England, 1150-1250’ (1971) 22 JEH 115-23; Michael Burger, ‘Officiales and the famuliae of the Bishops of Lincoln, 1258-99’ (1990) 16 JMH 39-53. 245 See C. R. Cheney, Notaries Public in England in the Thirteenth and Fourteenth Centuries (1972), 14. 246 See e.g. Peter Erdé, “Mittelalterliche Offizialate in Ungarn und in Polen’ (1999) 23 BMCL 16-34;

Winfried Trusen, “Die gelehrte Gerichtsbarkeit der Kirche’ in Coing, Handbuch, i. 467-79. But cf. Jean Gaudemet, Le Gouvernement de l’Eglise a Pépoque classique: 11e partie, Le gouvernement local (1979), 166-73, locating the rise of the courts in the twelfth century. 247 Paul Brand, The Origins of the English Legal Profession (1992), 147-8.

248 Information from Robert Palmer, cited in Select Canterbury Cases, introd. 25 n. 1.

142 ESTABLISHMENT OF CONSISTORY COURTS feared by many thoughtful men. “Lawsuits are hateful to those who love God’ may have been a platitude of the time, but it was also a real and pointed warning.?*9 It pointed to what was happening. Whatever the causes, by 1300 regular courts, governed by a sophisticated system of procedural law and staffed by professional lawyers, had come into being in England. The signs of change appear in the contrast between older legal documents and those issued during the second half of the thirteenth century. The ‘halting phrases’ and the ‘idiosyncracies of style’ disappeared, replaced by orderly and standardized forms taken from the ordines tudiciari1.25° Bishops were seeking to bring greater order to the penitential system within their dioceses, making effective their claims to exclusive jurisdiction over ‘reserved’ cases.?5! Order seemed desirable, even necessary. What were these new courts like? It would be wonderful to find one depicted in a contemporary manuscript. Alas, no such picture has been found so far. We must not imagine them as terribly grand institutions, however. Perhaps ‘court system’ is too imposing a title for the reality.252 The courts customarily met at a convenient place in churches; no special buildings were constructed for them. Formal sessions were held once a month or sometimes a little more often—at any rate at regular

times and places. A consistory court was presided over by the official (or his deputy), almost always a graduate in law. We also know something of the other personnel in the thirteenth century, because they were required to swear a formal oath promising to execute their offices honestly and to observe the customs of the court. Among them were the proctors, who represented the parties to instance litigation, and in the principal courts, advocates to speak for the parties when questions of law arose in the causes. Some courts had “examiners, that is men entrusted with the important task of taking the depositions of witnesses. Soon there would be a registrar to compile and keep the acta of the court, and (probably later only) summoners to carry out the task of citing parties before the courts. The earliest regular written record of continuous proceedings in one of these courts comes from the 1270s,?53 but it is not until the latter half of the fourteenth century that

we find the first surviving act books being compiled in the form they were to retain until the 1640s and beyond. We shall return to an attempt to draw out the most salient features of these courts in the next chapter and in the sections on canonical procedure in the second half of this book. 249 Settlement of suit involving Shenstone church (1176 X 1181) in EEA 16: Coventry and Lichfield, 1160-1182, ed. M. J. Franklin (1998), no. 86.

250 Morgan, ‘Early Canterbury Jurisdiction (above n. 244), 396-7. 251 See e.g. Roy Haines, “The Penitential System at Diocesan Level’ in id., Ecclesia anglicana: Studies in the English Church of the Later Middle Ages (1989), 39-52. 252 See Select Canterbury Cases, introd. 16—25; James A. Brundage, “The Bar of the Ely Consistory

Court in the Fourteenth Century: Advocates, Proctors and Others’ (1992) 43 JEH 541-60. 253 CCAL, Ecc. Suit Roll, no. 222.

CONCLUSION 143 CONCLUSION Many changes occurred in the law of the church between 1066 and 1300. None is more salient than the rise of the procedural system characteristic of the ius commune. Beginning with Roman law, procedural law was worked out in the writing of hosts of academic writers in light of the exigencies of court practice and the perceived needs of the Christian religion. The inquisitorial system designed to detect crimes, for example, was mostly innovation, although precedents were also

found for it in the older canons, even in the Bible itself. The new procedure responded to the perception that many offences, including heretical beliefs the canonists counted among the most serious of crimes, were likely to go unpunished unless improved institutions of law enforcement could be found. At the same time, the canonists recognized that safeguards for persons accused of crimes were necessary if the law was not itself to become an instrument of injustice. This concern too had an impact upon the procedural system of the ius commune. The

result of both perceptions was that the courts of the thirteenth-century church were regulated by procedural rules in a way that would have been inconceivable before the Conquest. It would surely be wasted effort to express an opinion about the wisdom of this change, this injection of lawyers into dispute settlement. Was it ‘a good thing’ or was it the reverse? Readers may have their own views. More learned men than the author of this volume have concluded that the result was not so much the rule of law than it was the rule of lawyers.254 Who is to say that they are wrong? They

can count among their supporters the greatest of English legal historians, EW. Maitland. He was among the detractors of the ecclesiastical jurisdiction that

emerged during these centuries. There was no going back, of course. And the courts of the church would last well into the modern era. Even until the nineteenth century, they would retain much the same form they had achieved by 1300. They became fixtures of the English legal system. They proved sufficiently resilient to endure the attacks of eloquent men who spoke in the name of reformed religion. Simple longevity does not mean that they deserve approval. No one today applauds the Spanish Inquisition because it was durable. What can be drawn out of the evidence are four connected points about the period. They had lasting consequences on the history of English law.

First, ecclesiastical jurisdiction in England had become established along subject-matter lines. The courts of the church were not the preserve of the clergy. Because the English kings, unlike many Continental rulers,?55 refused to recognize 254 Cheney, From Becket to Langton (above n. 86), 10-18, 154.

255 Cf. e.g. Jean-Francois Poudret, Coutumes et coutumiers: Histoire comparative des droits des pays romanads, pt. I (1998), 329-60.

144 ESTABLISHMENT OF CONSISTORY COURTS the clerical privilegium fori in civil cases, the clergy could not claim to be exempt from temporal jurisdiction, except in criminal matters. The canon law, which held to the one as strongly as the other, was effective only in part. English bishops complained about violation of their law in the gravamina they submitted to the king throughout the fourteenth century, but without success. It was the nature of the case, not the status of the litigant, that determined the proper forum in England, and the clergy took the place of ordinary litigants in civil cases. Whatever the psychological effect on the English clergy, in the long run, this turned out to be a blessing in disguise for ecclesiastical jurisdiction in England. Since ecclesiastical jurisdiction ratione personae did not exist, the common law courts were not tempted to reduce the competence of the spiritual courts to the point where they exercised jurisdiction solely over the clergy. Writs of prohibition depended on the subject-matter of the dispute. In France, by contrast, that reduction occurred. Attacks on the ecclesiastical courts took the form of reducing their jurisdiction to the point where they dealt only with the clerical order. Long before the Revolution of the 1780s, the French ecclesiastical courts had come to exercise a slender part of their medieval jurisdiction.2°° In England, although the ecclesiastical courts held a smaller competence in, say 1700 or 1800 than they did in 1300, they were still hearing significant numbers of civil cases involving the laity. Second, by 1300 the ecclesiastical courts had established their place within the larger legal system in England. Room for argument about how large that place should be persisted, but at least the ecclesiastical lawyers could be certain that they would occupy a place. The royal courts were courts of limited jurisdiction, and although they expanded those limits over the course of the following centuries, they remained in principle what they had always been. They did not encroach on the jurisdiction of the church to the degree their French or German counterparts did during the fourteenth century. The acknowledged force of immemorial custom and the precedential value of documents like Circumspecte agatis combined to secure a relatively secure status for the spiritual forum in England. This is a larger point than it may seem. Interaction between the royal and the ecclesiastical courts was a fact of legal life in England. The royal courts sent most questions involving marriage and legitimacy of birth to the spiritual forum when

they arose in secular litigation. The Chancery and the English sheriffs helped enforce ecclesiastical judgments when they received requests from the church. The church itself proclaimed sentences of anathema against those who violated Magna Carta. Although a line of jurisdictional demarcation had been established between

the two, both in theory and in practice, they were also interdependent. Their 256 See Bernard d’Alteroche, L’Officialité de Paris a la fin de TAncien Régime (1780-1790) (1994), 793 Robin Briggs, Communities of Belief: Cultural and Social Tension in Early Modern France (1989), 257.

CONCLUSION 145 mutual dependence and cooperation were in place by 1300. It would be many centuries before this feature of English legal life would be lost. Third, by 1300 the canon law had earned an undisputed place in England. Diocesan courts throughout the land sought to put the ius commune into practice. Virtually everyone had some contact with them, although no doubt it was contact of a disagreeable sort for many of the men and women who were summoned before an archdeacon’s court for sexual offences or infractions of the rules against working on holy days. The canon and Roman laws were also studied systematically in the English universities. On this account, if for no other reason, the ius commune became a feature of wider English intellectual life. Historians have sometimes taken note of this point in a negative way: English common law was not taught at Oxford or Cambridge until the eighteenth century, and this absence shows how out of touch the ancient universities were with the needs of society. This may well be true. Perhaps the common law should have been taught there. But what was taught is surely as significant as what was not taught. Whether the secure place of the canon and Roman laws in the intellectual life of the nation enabled them to penetrate into English common law is an old and disputed question. Some think they did; even Magna Carta shows signs of influence running from the tus commune.?5” Others think they did not; the use of juries to establish questions of fact, the lack of university training among English common lawyers, and the special nature of the land law excluded meaningful influence.?58 It cannot be the business of a book on ecclesiastical jurisdiction to enter directly and at any length into this contentious subject. However, the possibility should not be left in total silence. Many Englishmen, including common lawyers, knew something of the canon law. It is not beyond thinking—though it is hard to prove—that they made use of what they knew.?5?

Finally, the institutional law of the church had reached a point where it had become much harder for men and women to ignore than had been true at the start of the period. A chance remark by a chronicler of the twelfth century well illustrates the change. Writing of the reign of Henry I (1100-35), the author of the Gesta Stephani recorded that among his other offences against God and the church, the king had caused valid marriages to be dissolved ‘on the flimsiest of pretexts.2©° The chronicler’s assumption, in other words, was that the king himself 257 R.H. Helmholz, ‘Magna Carta and the tus commune (1999) 66 University of Chicago Law Review 297-391.

258 J. C. Holt, ‘Magna Carta and the Origins of Statute Law’ (1972) 15 SG 487-507, at 500-2. See gen-

erally T. ET. Plucknett, “The Relations between Roman Law and English Common Law down to the Sixteenth Century: A General Survey’ (1939) 3 University of Toronto Law Jnl 24-50, at 44; J. H. Baker, “Roman Law at the Third University of England’ (2002) 55 Current Legal Problems 123-50. 259 See generally Javier Martinez-Torrén, Anglo-American Law and Canon Law (1998). 260 Gesta Stephani (above n. 111), 17.

146 ESTABLISHMENT OF CONSISTORY COURTS had the responsibility and power to secure enforcement of the law of God. Woe to the king who failed, as Henry had. He stood under the judgment of God for allowing the church’s law to be evaded and valid marriages to be undone for reasons that were no more than pretexts. It now seems quite surprising that any chronicler from this period should have assumed the king had this kind of power. His attitude was already out of date. But what is even more noteworthy than his remark’s attitude towards the monarch’s religious power is that the chronicler said nothing whatsoever about courts of the church. He made no mention of proceedings having been brought for the dissolution of the marriages. Nor did he suggest that the parties (or the king) had compounded a substantive error by ignoring the existence of the ecclesiastical forum. He put it all down to the king’s violation of his responsibility, as if the matrimonial dissolutions had taken place because of the king’s neglect to rule his people properly. This chronicler wrote more than a century before 1300. By then, such an attitude would no longer have been natural for a cleric and a moralist. The consistory courts would have been in place. They would have been hard to ignore. The king could not simply have ‘caused’ the dissolution of marriages. No doubt, ways of dissolving marriages on flimsy or fictitious grounds could still be found. But it would have been prudent, even necessary, to secure a sentence of the church along the way. The ecclesiastical courts had become so normal a feature of the English legal landscape that it would have been prudent to appear before one of them. At

least it would have been the ordinary thing to do, and that made a very large change from Anglo-Saxon times.

3

From the Thirteenth Century to the Accession of Elizabeth STUDENT obliged to choose a single feature as characteristic of the canon law

A aurine the later Middle Ages and the early Tudor period should probably pick its stability. Conservatism in law suited the temper of the times, the reflexive attitude of the jurists, and the assumptions upon which the jurisprudence of the ius commune was based. Dean Colet (d. 1519) was no admirer of the ecclesiastical courts, but he was an acute observer, and he would have found ample company among the English civilians in asserting there was ‘no need that new laws and constitutions be made, but [only] that those that are made already be kept’ The contrast between the stability of this period and the advances in law that had taken place during the twelfth and thirteenth centuries is dramatic. Relatively

few changes in the nature of the law, its sources and its institutions, are to be found in the records of the later Middle Ages. Inevitably, conservatism had important consequences for the history of ecclesiastical jurisdiction in England. On the one hand, it limited the intellectual horizons of the civilians, and it may even have played a part in the decline in ecclesiastical jurisdiction that began during the last years of the fifteenth century. On the other hand, it also helped to preserve import-

ant institutions through difficult times, and it provided a foundation for fuller development of the possibilities inherent in the medieval ius commune.

Despite its stability overall, the history of the canon law and ecclesiastical jurisdiction in England from the last half of the thirteenth century to the start of the reign of Elizabeth was not without incident. Some of it even possesses a mildly dramatic quality. Within the canon law itself, notable events occurred. Provisions were enacted to deal with the contests between the mendicant friars and the secu-

lar clergy. Legislation related to the Conciliar movement and the Great Schism was adopted. A rising tide of penal law—much of it involving heresy—found its way into the Corpus iuris canonici. Changes were also imposed upon ecclesiastical 1 Convocation Sermon (1511) in J. H. Lupton, A Life of John Colet (1909), 300. See H. C. Porter, “The Gloomy Dean and the Law’ in Essays in Modern English Church History, ed. G. V. Bennett and J. D. Walsh (1966), 18-43.

148 13TH CENTURY TO THE ACCESSION OF ELIZABETH

jurisdiction from without. An increase in the intervention by secular powers in religious matters occurred in most European lands, and the English church was not spared. The Statute of Mortmain that prohibited the unlicensed alienation of land to the church (7 Edw. I, 1279), the several statutes of Provisors and Praemunire that hindered appeals to the Roman court and in time even more than that (e.g. 16 Ric. II, c. 5, 1392), and the statutes that abolished papal jurisdiction and recourse to the Roman court from England in the 1530s (e.g. 28 Hen. VIII, c. 10, 1536)—all of these

were external threats to the medieval system. They must attract the attention of historians of the law, just as they have attracted the attention of historians of religion and of the English constitution. Dramatic events cannot, however, provide the primary focus of a designedly methodical history of ecclesiastical jurisdiction in England. It would be a mistake to lay too much emphasis upon them. They can mislead us in our effort to appreclate the role the courts and the canon law have played in England’s legal life. More important in the long run were the institutions established and the jurisdictional

rules arrived at in the years around 1300. They touched the lives of the people subject to the canon law more immediately than great events like the Conciliar Movement or the Great Schism. Moreover, it happened that most of the medieval institutions and the greater part of the classical canon law were not abandoned at the time of the Protestant Reformation. Rejection of papal authority did not entail rejection of all the pope’s law. The settled institutions of the medieval English church have the more claim to our attention on that account. The steady rhythm of the work in the courts and the continuing role of the ius commune in them must provide the primary focus for the historian of the canon law in England. If taking this perspective on the history of ecclesiastical jurisdiction in England makes it seem to be a history of decline, one that was particularly marked during the hundred years from the last quarter of the fifteenth century to the middle years of

the next—as indeed it does—one should add that the institutions and the law enforced in them nevertheless proved tenacious enough to outlast most, although not all, of the troubles that beset ecclesiastical jurisdiction in the early Tudor era. The courts and the men who practised in them lived through the threats to the canon law that arose during the last years of the fifteenth century and that continued into the next. The necessary starting-point for understanding the process is the period around 1300, beginning again with developments within the canon law itself.

THE CANON LAW AND LEGISLATION The intellectual forces that had led to the rise of the classical canon law were not spent with the appearance of Gratian’s Decretum and the Gregorian Decretals. These lawbooks established the pattern. From it, there would be no deviation.

THE CANON LAW AND LEGISLATION 149 However, the jurists recognized that improvements in and additions to the church’s law were both desirable and possible. Some may even have been neces-

sary. New problems had arisen. Old problems had grown more insistent. Although it was accepted that some of them grew from the persistent malice of sinful men and stood beyond the effective reach of legislation, many more of the ills of the world seemed apt for legislative remedy.2 Nor did ways of thinking about law remain entirely untouched by experience. Working within a functioning system of professional courts made a difference in what men thought the canon law should contain. It led them to think harder about the nature of judicial process than had been necessary before the creation of a true legal system, and this

meant that the body of the formal law would be expanded and changed in the process. It also meant that formularies and commentaries on the law would be needed. For the sake of convenience, we shall deal with the literature spawned by

the canon law later and separately, taking it under the heading of education. Legislation will be considered first. The material related to statute law is divided into three parts: completion of the Corpus iuris canonici, enactment of English provincial and synodal legislation, and the passage of statutes in Parliament that

touched upon the law of the church and the jurisdiction of the ecclesiastical courts.

The Corpus turis canonici The first move towards expansion of the contents of the two basic collections was the addition of a collection known as the Liber sextus. Pope Boniface VHI commissioned it. He promulgated it in 1298. Despite a name suggesting it would introduce new subjects, the Liber sextus added none. It covered the same legal topics found in the Decretals, only expanding the scope of the law in several of them. Like the older law books, the new collection was divided internally into five books, and it divided each of the five internally, using titles identical with those of its predecessor. No new titles seemed necessary. Some of the substance within the titles was new, however. The Liber sextus incorporated decrees from the Councils of Lyons (1245 and 1274). It also included selected papal decretals issued between the reigns of Gregory IX (1227-41) and that of Boniface VII. The glossa ordinaria to this new collection, compiled by the famous canonist Joannes Andreae (d. 1348), was complete by 1304, surely a sign of how essential the gloss had become for canonical purposes. 2 See e.g. Sext 2.12.1, dealing with misuse of the exception of excommunication in litigation. Interesting and useful in assessing the nature of the church’s legislation is Rodes, Ecclesiastical Administration (Ch. 1, n. 7), 68-88.

150 13TH CENTURY TO THE ACCESSION OF ELIZABETH In the years that followed, three smaller compilations were published and were eventually added to the Corpus turis canonici. The first of these was a short decretal collection, the Clementines, so called because almost all of its decretals came from the chancery of Pope Clement V (1305-14). It was promulgated by Pope John XXII in 1317, and received its glossa ordinaria, again by the hand of Joannes Andreae,

within ten years of that date. The second and third collections, known as the Extravagantes Johannis XXII and the Extravagantes communes, were the fruit of pri-

vate efforts to make available the most frequently cited papal decretals that were issued after 1317 or that had found no place in earlier collections. In order to make them conform more closely to the pattern of the Liber extra, both were edited by Jean Chappuis, a Paris canonist working at the close of the fifteenth century. He added them to the edition of the Corpus turis canonici he prepared for publication in Paris in 1500, and they have been treated as indispensable parts of the law of the medieval church ever since. Taken together, these four new collections occupy only slightly more than a third of the number of folios taken up by the Gregorian Decretals in a modern edition, but they cannot be neglected in any study of the canon law. They were one means by which new law was transmitted to local churches, and for the history of ecclesiastical jurisdiction in England, many of the additions to the law of the Western church proved to be of central importance. They also solved some of the questions that had been left open. For instance, a chapter in the Decretals had stated that churches and churchyards polluted by the shedding of blood must be ‘reconciled’ by formal action of the bishop (X 3.40.4). But if only the church itself was polluted, must the churchyard also be ‘reconciled’? And would the same answer obtain if it was the churchyard where the pollution took place? That was not stated in the earlier law, and a decretal of Boniface VIII dealing with the ensuing lacuna in the law was added to the Liber sextus (Sext 3.21.1).3 Many such uncertainties were left to the ingenuity and speculation of the jurists in the medieval ius commune. But not all were, and, where a gap was filled or an inconsistency was addressed in the new collections, ecclesiastical lawyers were the beneficiaries.

For the historian, the new lawbooks are particularly useful in providing a measure of the progress and an appraisal of the nature of the canon law in the later Middle Ages. A quick comparison of the titles in the Liber sextus with those of 3 The ‘solution’ was that, where the pollution occurred in the church, if the churchyard was directly

adjacent to the church the latter too was considered polluted, but not if it were separated from the church. However, the church was not polluted by bloodshed in the cemetery in either case, this being thought a logical deduction from the canonical status of the churchyard as accessory to the church itself. This was not a trivial matter; the fees for reconciling church and cemetery were assessed separately, and in one case from 1495, the sum of 66s. 8d. was paid to a bishop for each act of reconciliation. Reg. John Morton, Archbishop of Canterbury 1486-1500 II, ed. Christopher Harper-Bill (= 78 C. & Y. Soc.; 1991), no. 362.

THE CANON LAW AND LEGISLATION 151 the Gregorian Decretals shows that some titles were omitted altogether and others were greatly abbreviated. For example, there is no title at all dealing with simony, whereas the title on the subject in the Decretals had contained forty-six

chapters. The section dealing with marriage and kindred topics, which had contained twenty-one titles in the fourth book of the Decretals, was reduced to a comparatively minuscule treatment—only three titles and five chapters in all—

in the Liber sextus. And the fifth book of the new collection contained only the most cursory treatment of the most common crimes—homicide, infanticide, adultery, arson, rape, theft, usury, counterfeiting. They had all figured more prominently and been treated at greater length in the Decretals. The same generalization holds true for the post-1300 collections. For example, the Clementines contains a solitary title, and a solitary chapter within it, in its fourth book relating to marriage, and that chapter simply raised the stakes for those who knowingly contracted marriages with nuns or persons to whom they were related within one of the prohibited degrees of affinity or consanguinity. It declared them ipso facto excommunicate. The new laws did little to solve the problems the courts were experiencing in administration of the canon law of marriage. What development of matrimonial law there was took place in the thought and in the treatises of the canonists and other commentators on the ius commune. The explanation for this change cannot have been the same for every subject that was given only cursory treatment in the new collections. In the law of simony, for example, the treatment in the Decretals was extensive enough to have provided guidelines to the most pressing questions, and the incidence of the most egregious forms of simony seems to have lessened over the course of the later Middle Ages. At least this seems to have been true for England. Although it is not impossible to find causae simoniacae pravitatis in the English court books or bishops’ registers of the fourteenth and fifteenth centuries,* causes involving simony were very few in number when compared to cases dealing with subjects like marriage, tithes, or proof of last wills and testaments. Inquests into the circumstances surrounding the admission of new parochial clergy to benefices, a procedure found regularly in the registers, also brought only a few accusations of simoniacal presentments into the open. Moreover, many practices involving the sacraments that might have been classed as simoniacal came to be treated as matters of either legitimate customary practice or as within the pope’s power to dispense.® Perhaps the relative neglect of simony in the Liber sextus can therefore be explained by a belief among the men responsible for the canon law that there was no need for anything more. 4 e.g. Ex officio c. Rule (Lichfield 1464), LJRO, Act book B/C/1/1, fo. 2v: “negotium correctionis sive symoniace pravitatis. 5 See the acta of a synod of Simon Langton, bishop of Ely (1364) in Wilkins, Concilia, iii. 59-61, where objection was taken to the practice.

152 13TH CENTURY TO THE ACCESSION OF ELIZABETH For the decline in attention to marriage, a similar explanation will not do. The disputes the canon law spawned were many and varied. Clandestine marriages, valid though illicit, caused frequent problems. Uncertainties about some impediments to contracting valid unions lay untouched by legislation. The law seems (at least to us) to have been in urgent need of amendment. But little was done. One can only suppose that the apparent neglect of the subject in the Liber sextus grew out of an unwillingness to upset a law that had only recently been settled and a neglect of theological developments that the separation of law from theology had caused. Allowing young men and women to contract indissoluble marriage by the exchange of words of present consent, as problematic as it now appears, had been the result of serious debate in the twelfth century. Pope Alexander II had himself overturned Gratian’s solution to the dilemma of how to define a binding marriage. Could it be done again? Would it have been sensible to change the rules about consanguinity and affinity that had themselves been changed significantly at the Fourth Lateran Council in 1215? Doing so might have seemed too precipitate a step, an imprudent one under the circumstances. Moreover, it may be that opinion among the laity would not have tolerated a stronger assertion of clerical control over marriage. Indeed, the informal marriages the canon law long treated as valid brought some advantages to participants in the system.® In the event, improvements to the law of marriage of a major kind had to wait. The omission of sustained attention to crimes in the fifth book of the Liber sextus 1s perhaps the most puzzling of the three developments shown by the later parts of the Corpus ituris canonici. Omission appears to signal a narrowing of the horizons of the canon law to the point where it dealt largely with crimes of a religious nature. That marked a real change in attitude, for we know that the earlier canonists had devoted sustained attention to crimes of all sorts and to the nature of criminal guilt.” It may be that the rise of secular legal systems dealing

with (and claiming greater competence over) temporal crimes inhibited the issuance of further decretals and canons in this area. And it may also be that the doctrine that all penalties lay within the discretion of the judges—a rule that must have mattered most in criminal proceedings—had the same effect. It is hard to do more than guess, and the ‘counter-example’ of heresy, about which the fifth book of the Liber sextus contains an abundance of material, shows that no collapse of thought about criminal matters took place across the board. That a general narrowing in focus occurred in the criminal law is also suggested by some of the titles in the Liber sextus and later collections that contained an

equal or even a more expansive coverage of their subjects than found in the 6 Charles Donahue, Jr., “The Policy of Alexander the Third’s Consent Theory of Marriage’ in Proc. Fourth International Congress of Medieval Canon Law, ed. Stephan Kuttner (1976), 251-81. 7 See Stephan Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX (1935).

THE CANON LAW AND LEGISLATION 153 Gregorian Decretals. Despite the relatively smaller size of the former, it did include extensive treatments of a few subjects. Excommunication, for example, occupied a large part of the new collections, not just in the title of the fifth book devoted expressly to it, but also in canons dealing with many other individual subjects.8 Canons related to heresy appear in abundance in the newer collections. Rules that defined or refined the law of procedure were also present in great numbers. The canons in the Clementines which authorized the adoption of summary procedure in the courts are the most celebrated of these,® but there were many others, such as the rule that no appeal lay from a bishop’s official to the bishop himself (Sext 1.4.2), or the provision defining when and how proof of a negative could be admitted (Sext 2.9.1). Finally, there was something like an explosion in the number of canons dealing with ecclesiastical offices. Matters like canonical elections, papal provisions to benefices, and claims to prebends and other ecclesiastical dignities—most of them dealing at bottom with the distribution of rights to office and income on the part of the clergy—claimed a large share of the attention of the canons in these collections. In them, the right of the papacy to control ecclesiastical benefices was stated in fulsome terms and defined in more detailed provisions (Sext 3.4.2).

Again, one cannot suppose that the identical impulse lay behind all the areas where equivalent or expanded coverage occurred in the texts. The greater attention paid to procedural law for heresy and excommunication must reflect both the realities of greater religious dissent and the strong desire on the part of the clergy to suppress crimes, of which heresy seemed to be only the most appalling example, by all means possible. Was something perceived to be going wrong? Then let the evildoers be excommunicated ipso facto.!° Such was the reflexive reaction of the canonists. In time, it would be said that the practice of excommunicating quite so many people worked to trivialize the most serious sanction at the church’s disposal. In theory at least, a person suspected of heresy who contumaciously refused to respond to a legitimate summons for a year or more could be handed over to

the ‘secular arm’ and burned as if he were a convicted heretic (Sext 5.2.7). His heresy would be presumed from the passage of time. We must not think this happened often, but it was a possible result under the canons, and to point to it is not an unfair way of portraying one of the salient features of the later medieval canon law. 8 e.g. Sext 3.23.4, extending ipso facto excommunication to anyone who impeded the jurisdiction of the ecclesiastical courts or took part in the violation of the jurisdictional privileges of the clergy. 9 Clem. 2.1.23 5.11.2.

10 See e.g. Sext 1.6.12 (interference with canonical elections); Sext 3.21.1 (disturbers of ecclesiastical jurisdiction); Sext 5.11.21 (attackers of novices in religious houses). Note that the penalty was confined to the laity.

154 13TH CENTURY TO THE ACCESSION OF ELIZABETH The considerable amount of detailed care devoted to explicating the law of civil and criminal procedure in the Liber sextus must put the work of the canonists of the time into a more favourable light than their treatment of heresy, although they themselves would probably not have admitted any difference in merit. The explan-

ation for this attention must lie in the experience the jurists were gaining with a system of functioning courts. Experience exposed problems. With it came greater sophistication about how the system might be run.!! Canons followed, defining the scope of judicial power (Sext 1.13.2), limiting the use of oaths in the spiritual forum (Sext 2.4.2), and regulating the legal profession (Sext 1.19.1-9). Matters that had become irritants because of the growth and assertiveness of temporal tribunals, such as whether the sentence of a lay judge would be res judicata

in an ecclesiastical court (Sext 2.11.2), were likewise addressed. A collection of eighty-seven judicial maxims was added to the end of the Liber sextus.!2 Not that this concern for procedure was altogether new, and many of the new canons did simply draw out implications of what was present in the old. Taken together, however, the effect of the newer collections was not simply repetition of what existed already. They achieved something of value, not least of which was to develop and carry forward a notion of what procedural due process required. The growth in numbers of canons devoted to benefices and ecclesiastical offices in the Liber sextus and the later canonical collections was a natural outgrowth of three things: the complexity and instability of the canonical law of elections and the ius patronatus; the desire to keep unworthy men from occupying benefices with cure of souls; and centralization in the papacy of the power to name clergy to specific offices and dignities in the church. It was hard to define, for example, exactly what election by the maior et sanior pars of the clergy meant where there was disagreement among the electors, and attempts (never quite successful) were made to clear this up (Sext 1.6.9). Occupation of benefices by children was prohibited (Sext 1.6.14) and the holding of plural benefices with cure of souls was restrained (Extrav. Jo. XXII 3.1). The papal rights to appoint to benefices acquired by virtue of special reservation, vacancy of the incumbent at or near the papal court, promotion of the prior holder by papal mandate, or some other product of chance or design were stated and regulated (Sext 3.4.22; Extrav. Comm. 3.2.10).!5 The papal ability to grant benefices in advance of their vacancy, despite an ancient rule against

it (X 3.8.1), required distinction, careful statement, and elucidation (Sext 3.7.3).

11K, W. Norr, “Prozef$zweck und Prozefstypus: der kirchliche ProzefS des Mittelalters im Spannungsfeld zwischen objektiver Ordnung und subjektiven Interessen’ (1992) 78 ZRG, Kan. Abt. 183-209. 12 By contrast, the title in the Decretals, De regulis iuris, contained only eleven chapters (X 5.41.1-11). Compare also Dig. 50.17.1-211.

13 See Guillaume Mollat, La Collation des bénéfices ecclésiastiques sous les papes d’Avignon (1305-1378) (1921).

THE CANON LAW AND LEGISLATION 155 There was real legislative change in this area of the canon law. It is natural to find,

as one does, that litigation in the Roman curia should have been dominated by disputes over benefices and ecclesiastical dignities during the later Middle Ages. The dominance reflected the ambiguities left in the law, the growth of papal provisions, and the amounts of income that were at stake. In this instance, litigation mirrored the coverage of the later texts in the Corpus turis canonici. Disputes about one aspect or another of the law of benefices and papal jurisdiction would also occupy the attention of English kings, aspiring parochial clergy, episcopal chanceries, clerical dignitaries from outside England, and some quite ordinary patrons. The subject will require closer attention in Chapter 9. Synodal Legislation Enactment of canons by diocesan and provincial synods had been a part of the law of the English church from its earliest days, and it continued into the later Middle Ages, albeit in altered and seemingly weakened form. In 1215 the Fourth Lateran Council had decreed re-establishment of the rule that provincial councils should meet every year. Its decree envisioned that yearly diocesan synods would also be held. These directions were incorporated into the Gregorian Decretals (X 3.5.19; X 5.1.25). They would have been well known to the English bishops and many of their clergy. But enactment of a rule, even one with an ancient pedigree and the prestige associated with a great council of the church, did not guarantee its enforcement. Although diocesan synods and provincial councils were held,!4

the thirteenth-century canonist Hostiensis recorded that the requirement of yearly frequency was quite imperfectly observed.!5 English archbishops would themselves ruefully admit the truth of his words.16 THE PACE OF SYNODAL ACTIVITY

The church’s failure to hold yearly synods was mirrored in the results. Just as had happened with the books of the Corpus turis canonici themselves, the legislative output of the English church during the fourteenth and fifteenth centuries cuts a poorer fig-

ure than does that of the thirteenth, though it seems unduly harsh to dismiss it as drifting ‘into an obscurity of ceremonial and absenteeism.!” There was activity. 14 There were, for example, disputes over the clerical obligation to attend them; e.g. PR. & C. of Watton c. Bishop of Carlisle (York 1406-7), BI, CP.F.26.

15 Hostiensis, Lectura ad X 5.1.25, s.v. sicut olim. G. L. Bray has prepared a list ‘Councils and Convocations, 1272-1640, that is forthcoming.

16 Reg. John de Grandisson, ed. F. C. Hingeston-Randolph (1894), 968-71; PRO, Ancient Correspondence, xlix, no. 92, cited in Kathleen Edwards, “The Importance of English Bishops during the Reign of Edward IT (1944) 59 EHR 311-47, at 340.

17 Jean Scammell, “The Rural Chapter in England from the Eleventh to the Fourteenth Century’ (1971) 86 EHR 1-21, at 13.

156 13TH CENTURY TO THE ACCESSION OF ELIZABETH The stated purpose of holding synods had never been simply, or even primarily, to enact legislation. It was rather to bring together the bishops and representatives of the ordinary clergy to help reform what was amiss.!8 This task might involve legislation, but it might also involve settling civil disputes, reaffirming rules that had not been observed, proceeding against miscreants, responding to complaints and demands from without, and discussing common clerical problems. All these played a part in the meetings of the clergy held in later medieval England. How to react to the Statute of Praemunire was discussed at length in hopes—vain hopes it must be said—of hitting upon a way to combat this restrictive piece of secular legislation. Lollards and preachers whose speech had crossed the line between orthodoxy and heterodoxy were brought before councils for trial and correction. Matters of state, like the schism in the papacy, crusades against the Turks, and wars against the king’s enemies were all talked about. Subsidies to finance them were granted. Proposals to end jurisdictional disputes between dioceses over the probate of testaments in England were debated

and acted upon. These matters, perfectly suited for synodal attention under the canon law, did not always call for formal legislation, although they might. The record of synodal legislative activity is not itself blank. Although not all the

textual traditions have yet been fully worked out by scholars, progress has been made.!9 We know when councils were summoned and that they usually met in response. Many have left a record of their activities,2° and some diocesan and provincial synods have also left records of legislation passed.2! The provincial councils held in 1328-9 and 1342 produced constitutions that, although fewer in number, would not have embarrassed the prelates in the great assemblies of earlier years.22 Their canons clarified the process of bringing appeals, insisted that

men of unfree condition should be allowed to make last wills, provided for inquests to be made into the state of dilapidated parsonages, and set out more efficient ways for the debts of decedents to be paid. Among their accomplishments

was a statute dealing with fraudulent alienation of goods by men on their deathbeds; the statute allowed executors to follow these assets into the hands of the donees and to recover them if the remaining assets were insufficient to meet 18 Johannes de Imola, Commentaria ad X 3.5.29, no. 20: ‘Si tamen alii voluntarie veniunt admittendi sunt. That this remained true is suggested by the records of a synod for the diocese of Ely (1375), preserved in CUL, EDR D/2/1, ff. 24v—25v.

19 See C. R. Cheney, “Legislation of the medieval English Church’ (1935) 50 EHR 193-224, 385-417, esp. 414-17; Roy Haines, “Education in English Ecclesiastical Legislation of the Later Middle Ages’ in Councils and Assemblies, ed. C.J. Cuming and Derek Baker (= 7 SCH; 1971), 161-75. 20 See the long list in Dorothy B. Weske, Convocation of the Clergy (1937), 217-335 and G. L. Bray, Convocations and Synods of the Churches of England and Ireland (forthcoming). 21 See e.g. the constitutions of 1367, and 1408 in Wilkins, Concilia, iii. 68-73, 314-19. 22 Wilkins, Concilia, ii. 552-4, 702—9; see Brenda Bolton, ‘The Council of London of 1342’ in Councils and Assemblies (above n. 19), 146-60.

THE CANON LAW AND LEGISLATION 157 the decedent’s other obligations. This was not an unreal problem. English act books contain causes where the validity of such alienations was tested, and if we cannot always recover how the causes were decided, at least we have the provincial legislation that provided the relevant law. The regard with which the statutes of 1328 and 1342 were held among the English ecclesiastical lawyers is indicated by their regular inclusion in the books of provincial legislation that were made during the later Middle Ages.?3 Rather like the books containing common law statutes that proliferated during this period and that were used by judges in the local and common law courts, these ecclesiastical collections were circulated among the judges, advocates, and proctors in their courts. That they were used is made evident by the inclusion of forms referring to them from litigation in the same volumes. Often they were mentioned by name in the act books as the source of particular claims.?4 A further indication of the practical importance of the fourteenth-century constitutions is that the statutes of 1328 and 1342 were later chosen for inclusion and glossing by William Lyndwood in his Provinciale.

Provincial and diocesan synods were also supplemented by other forms of quasi-legislative activity. One was the episcopal mandate. Although it was normal to enact new rules through a synod attended by representatives of the clergy, their presence and consent was not canonically necessary for all purposes,?5 and during the fifteenth century it was common for the bishops to issue directions on their own authority. They were variously called: decreta, mandata, statuta, ordinationes, or monitiones. One finds these terms being applied, for example, to epis-

copal directions that sequestration of parochial revenues be made in orderly fashion, that tithes be paid promptly and fully, that new feast days be decently celebrated, that the behaviour and organization of cathedral chapters be improved, and that particular superstitious practices be eliminated.2© Whether one calls these

23 BL, Harl. MS. 2349 (constitutions from the Council of Oxford in 1222 to Archbishop Stratford (d. 1334); GCC, MS. 235/171, pp. 117-239 (fifteenth century, and put into subject-matter order); CUL, MS. Dd.9.38, ff. 36v—63 (fourteenth century, including many common law forms); Bodl. MS. 794, ff. 1-197

(constitutions from Boniface to Winchelsey). On the collection of synodal statutes into books more generally, see Odette Pontal, Les Statuts synodaux (1975), 68-74; Christian Dury, ‘Chapitres séculiers et législation canonique: Saint-Paul de Liege et la communication du droit (XI1e—XVe siécles)’ in Droit

et communication: dire, enseigner, publier, ed. Christophe Leduc (2000), 71-81; Péter Erd6, “Synodalbticher der Kirchenprovinzen von Gniesen, Prag und Salzburg’ (1999) 10 RIDC 9-36. 24 e.g, Ex officio c. Official of Archdeacon (Ely 1375), CUL, Act book EDR D/2/1, ff. 22v—23, an action

for misconduct in office based on five provincial or synodal constitutions and one text from the Liber sextus (Sext 2.14.1).

25 The relevant authorities on the point are collected in Augustinus Barbosa, Pastoralis solicitudinis, pt. IT, alleg. 93, nos. 23-5. 26 Wilkins, Concilia, ii. 497-8 (1320: De modo et forma interponendi sequestrationes fructuum); ill. 219 (1393: Contra male decimantes), iil. 379 (1416: St John of Beverly’s feast); iii. 389 (1418: ‘“Gloton messe’ to

be eliminated).

158 13TH CENTURY TO THE ACCESSION OF ELIZABETH mandates ‘statutes’ or something else depends of course on what definition of that term one chooses, but there is no doubt that they covered much the same ground and were meant to accomplish many of the same goals as synodal legislation. For instance, the contents of a mandate of 1402 from the archbishop of Canterbury

that no market trading be held in parochial churchyards on holy days would not have been very different from that of many enactments of fully constituted provincial councils.2” The decision of individual disputes also led to rulings about the legality of specific ecclesiastical practices. Whether the decision was made in

a synod or by the bishop personally, the result might be circulation of a new or amended rule of conduct. The major variation in synodal practice that occurred during this era came as a consequence of the rise of Convocation beginning in the late thirteenth century. It could be called a replacement or even an enlargement, since in some sense the change was more formal than substantive. English Convocations were meetings of representatives of the clergy, called by each archbishop, usually at the request of

the king, in order to consider and consent to the grant of a subsidy to the king, or less frequently the pope. Convocation would become mainly a ‘clerical taxing assembly’.28 Even before Convocation’s emergence, the clergy—archbishops and bishops, abbots and priors, and the representatives of the lower clergy—had taken part in general meetings of the community of the realm, and some of these meet-

ings had granted subsidies to the king. However, by the late thirteenth century, this relic from Anglo-Saxon traditions of cooperative government between regnum

and sacerdotium had come to seem anomalous to some of the more scrupulous among the clergy.?9 For a time, it had looked as if taxation of the clerical order without papal consent would be impossible altogether. But even after the church had retreated from that position, many among the clergy held to the view that for reasons of policy there should be a formal separation between taxing institutions. The greater prelates might take part in Parliament, since they were barons as well as bishops. But this rationale did not apply to the ordinary clergy. They should not be compelled to answer a direct royal summons. If they were to meet in response to royal needs, therefore, it should be in answer to citation by a spiritual author-

ity. And it should be to meet in an assembly distinct from that of the laity. From a royal concession to this view, driven by the need for clerical subsidies, arose the English Convocation, or rather two Convocations, since the assembly for 27 Wilkins, Concilia, il. 266-7. 28 E, W. Kemp, Counsel and Consent (1961), 104-5. 29 That the lower clergy did not, however, quickly and altogether cease to attend sessions of Parliament has been shown by A. K. McHardy, “The Representation of the English Lower Clergy in Parliament during the Later Fourteenth Century in Sanctity and Secularity: The Church and the World, ed. Derek Baker (=10 SCH; 1973), 97-107, and Jeffrey H. Denton, Representatives of the Lower Clergy in Parliament 1295-1340 (1987).

THE CANON LAW AND LEGISLATION 159 the province of York met separately from that of the province of Canterbury. However, after 1462 the Northern Province incorporated the constitutions of the Southern Province in so far as they were not repugnant to existing York constitutions. York continued for a time to make its own statutes, but making allowance for customary exceptions in particular places, the English church was largely governed by the Canterbury assembly.*° How different was this Convocation from the traditional provincial councils? In mechanics, somewhat. The monks and lower clergy attended by elected repres-

entatives and had a right to participate in the decisions that were made in Convocation, whereas provincial councils were assemblies of bishops, with other

clergy attending at their sufferance. In substance there was also a difference, because its primary activity was to deliberate about the grant of a subsidy to the Crown, whereas provincial councils were assembled to deal with the church’s own agenda. Furthermore, no connection in time between meetings of Parliament and ecclesiastical assemblies had existed in the earlier provincial councils.

None the less, there was a great deal of ‘overlap’ between what was done in provincial assemblies and what occurred in Convocation. Indeed, many of the assemblies held during the fourteenth and fifteenth centuries employed both terms to describe themselves, making no apparent distinction between a synod and Convocation. The same documents speak of a meeting of the clergy as both synodus and convocatio,?! and in some instances only ecclesiastical matters were discussed by Convocation. That is, subsidies to the Crown were sometimes not at issue at all,32 and even when it came together in response to a royal request for a subsidy, Convocation also dealt with the same problems that provincial councils had. It responded identically. A Convocation of 1452 took up a dispute about customary oblations that was then troubling the clergy and citizens of London.%3 A Convocation of 1463 enacted provisions that prohibited arrests or service of secular legal process during church services and also sought to rein in excesses in clerical dress.34 A Convocation of 1434 shortened and improved the articles of general 30 The adoption of 1463 is quoted in The Records of the Northern Convocation, ed. G. W. Kitchin (=113 Surtees Soc.; 1906), p. Ixi. 31 e.g, Meeting of 1404 in Wilkins, Concilia, 111. 279. See also Meeting of 1435 in ibid. iii. 525, where

it is said: ‘In hoc synodo per breve regium et mandatum archiepiscopi coacti, prelati et clerus unam

decimam et medietatem decimae concedunt domino regi. See also Churchill, Canterbury Administration, 1. 364; J. Armitage Robinson, ‘Convocation of Canterbury: Its Early History’ (1916) 81 CQR 81-137; D. A. Jennings, The Revival of the Convocation of York, 1837-1861 (1975), 1.

32 e.g.a Convocation of 1422, called to discuss what subsidy could be granted for a delegation to be sent to the Council of Pavia, in Reg. Chichele, iii. 81-6; it made no mention of a royal writ and did mention the ‘decree of the said [Fourth Lateran] sacred Council’ 33 Wilkins, Concilia, iii. 562-3. See generally Thomas Lathbury, A History of the Convocation of the Church of England from the Earliest Period to 1742 (1853), 82-104. 34 Wilkins, Concilia, iii. 585-6.

160 13TH CENTURY TO THE ACCESSION OF ELIZABETH excommunication the parochial clergy were obliged to read publicly, changing the frequency from four to three times a year,>° it being hoped this would make it easier for those clergy who had ‘neither dared nor been permitted to make these ritual denunciations.3© There was more of this nature. It was of a piece with what earlier synods and provincial councils had enacted. The legislative institutions of the English church were by no means moribund, therefore, even though the Fourth Lateran Council’s decree that synods be held yearly was not enforced to the letter. Meetings held in the diocese of Lincoln in

1519 were, for example, the scene of vigorous protests by the ordinary clergy against attempts by Cardinal Wolsey’s council of bishops to impose reform legislation on them.3” And, of course if one takes Convocation as the equivalent of a provincial synod—as it was in most respects—then the record of compliance with the canon law’s requirement does not look too bad. Parliament met almost yearly during the fifteenth century. Because Convocation met at the same time, it might be said that the Council’s decree actually came close to being fulfilled. One

of the minor ironies of the history of the church is that in this instance the temporal law became the means by which the canon law was being enforced. All this may be admitted. The accomplishments of the later medieval church may be given their due. When they have been toted up, however, the record still remains one of decline in activity from the earlier period. This is particularly true of the period after 1350. From the later fourteenth and fifteenth centuries less synodal activity took place, and much of what there was—proceedings designed to prevent the spread of Lollardy, injunctions about clerical dress and haunting of taverns, and regulations for new feast days—is not legislation to which the historian of ecclesiastical jurisdiction can point with pride or satisfaction. These were

troubled times for the church. Quite apart from the Black Death that brought such devastation to the entire population, special problems faced the clergy as a whole. The Great Schism in the papacy lasted from 1378 to 1417. The Conciliar movement, no matter how admirable its aims or reputable its canonical credentials, did raise up divisions in the church and did throw some questions of authority into doubt. Conflicts between the mendicants and secular clergy also muddied the waters.38 Across Europe, as within England itself, temporal courts were more forcefully asserting their rights to exercise jurisdiction in areas also claimed by the 35 Wilkins, Concilia, 111. 523-553; Reg. Chichele, iii. 255-8.

36 Reg. Chichele, i11. 223 (1431): “[I]n pluribus locis curati non audebant nec permittebantur hujusmodi

sentenciam in eorum ecclesiis pronunciare. 37 See Visitations in the Diocese of Lincoln 1517-1531, ed. A. H. Thompson (= 33 LRS; 1940 for 1936), 148-52.

, oR. N. Swanson, “The “Mendicant Problem” in the Later Middle Ages’ in The Medieval Church: Universities, Heresy, and the Religious Life, ed. Peter Biller and Barrie Dobson (= 11 SCH, Subsidia; 1999), 217-38.

THE CANON LAW AND LEGISLATION 161 church. And the perception, shared it is true by the secular powers, that a rising tide of heresy threatened to sink the bark of Christ often seems to have monopolized the attention of leaders in the church. With the exception of the expanded intervention from the royal courts, these great problems had only a peripheral effect on the day to day running of the ecclesiastical courts themselves. To the extent that recent scholarship about the laity’s attitude towards their religion is a full and accurate portrayal of reality, they also had little effect on the daily practice of religion.3? However, pressing external

problems did affect synodal law. They dictated much of what synods and Convocation debated and did, and they kept the assemblies from doing some things they might otherwise have attempted. Time was allocated to recognizing one claimant to the papal tiara over another, and the actions taken by contemporary councils on the Continent were weighed at length.4° Not much time was left over. One explanation for the downwards trend in amounts of synodal legislation may be a perceived lack of need for specific legislation, as was true for the canon law as a whole. But it cannot be the whole explanation. The preoccupations of the time did not favour expansion of the canon law. Attention was diverted to other things. THE NATURE AND CONTENT OF LEGISLATION

By the thirteenth century, the ‘supplementary’ character of provincial and diocesan legislation was beyond dispute. A century ago, an attempt was made to show that this legislation, coupled with special English customs, demonstrated that the

English church enjoyed a large degree of independence from the papacy even before the Reformation. This so-called ‘Stubbs—Maitland’ dispute has, then and since, captured much scholarly attention.*! It must be enough to say that no one accepts the thesis of English independence from papal jurisdiction, a thesis attributed to Bishop Stubbs, at least in its extreme form. Maitland’s side itself, however, cannot be accepted entire. He underestimated the role of custom in the law of the church and he treated the Corpus iuris canonici anachronistically. He treated it as if it had been a modern code.*? But he was right to stress that the medieval English 39 See e.g. Eamon Duffy, The Stripping of the Altars: Traditional Religion in England, c.1400—c.1580 (1992).

40 Wilkins, Concilia, 111. 321 (1409) (dealing with recognition of Pope Alexander V); ibid. 332-3 (1410)

(acts of the Council of Pisa considered). 41 Tt has continued to be discussed, from a variety of points of view; see e.g. H. W. C. Davis, “The Canon Law in England’ in Henry William Carless Davis, 1874-1928, A Memotr, ed. J. R. H. Weaver (1933), 123-43; Denys Hays, “The Church of England in the Later Middle Ages’ (1968) 53 History 35-50; Charles Donahue, Jr., ‘Roman Canon Law in the Medieval English Church: Stubbs v. Maitland Re-examined’ (1974) 72 Michigan Law Rev. 647-716. 42 See Helmholz, Roman Canon Law, 4—20, for a fuller treatment of the issue.

162 13TH CENTURY TO THE ACCESSION OF ELIZABETH

church was a subordinate part of a larger entity, the Catholic church. It owed allegiance and obedience to the apostolic see. Certainly this held true for the English statutes. Quite apart from the purpose of giving additional publicity to rules enacted for the church as a whole, synodal

legislation was meant to implement and to augment the general law of the church.43 If there were to be fundamental legislative changes, they would come as the result of papal or conciliar initiative. Acceptance of this subsidiary character explains much of what was done in practice. Synodal constitutions did not supplant the formal law. They added specific penalties to more general norms, and they adopted detailed provisions for implementing policies stated in more sweeping terms in the Corpus iuris canonici. For instance, the canon law provided that laymen should not be the judges of spiritual matters (X 2.1.2). A statute adopted in 1414 by Convocation for the province of Canterbury added that married clergy

should fall under the same prohibition, and that if either laymen or married clergy did in fact act as judges in contravention of the rule, any judicial sentences they issued should be treated as nullities. They themselves should be held excommunicate ipso facto.*4 In other words, the local legislation added detail and a specific sanction to a general rule. This did not make them insignificant. Detail is important in legislation. It decides cases. The English constitutions were very often used in litigation, often even where a law from the Corpus iuris canonici might have served.4> It is noteworthy that when the printing press came in, the English statutes were among the earliest sources of ecclesiastical law to be published.*¢ Probably the most significant, and certainly the most consequential, statutes of this type were the provisions intended to carry out the laws against heresy. The principle that a belief that was contrary to the creeds of the church constituted a crime was clear enough in the texts. But Englishmen thought that more than this was needed, more than was contained in the fifth books of the Decretals and the Liber sextus. For instance, the statutes of Archbishop Arundel (1408) added to them. They prohibited preaching without an episcopal licence, forbade public

contention about the nature of the Eucharist, banned innovation in teaching methods, proscribed translations of the Scriptures into English, and condemned the works of John Wycliff.47 As backward as they now seem, these statutes were meant simply to make more specific the more general law of the Western church 43 Kemp, Counsel and Consent (above n. 28), 29-34; Répertoire des statuts synodaux des diocéses de Pancienne France, ed. A. Artonne, L. Guizard, and O. Pontal (1969), 7-9. 44 See Lyndwood, Provinciale, 128-9, esp. s.v. exerceat.

45 e.g. Vicar of Newbald c. Chaumpney (York, 1505), BI, D/C.AB.2, fo. 34, an action brought “iuxta constitutiones sinodales Ebor’ (for unlawful interference with ecclesiastical property). 46 See Lawrence G. Duggan, “The Unresponsiveness of the Late Medieval Church: A Reconsideration’

(1978) 9 Sixteenth Century Jnl 3-26, at 13-14. 47 Wilkins, Concilia, il. 314-19.

THE CANON LAW AND LEGISLATION 163 against religious dissent. They were the forerunners of much longer lists of specific works and ideas condemned as heretical and ordered burned by the English Convocations of the fifteenth century. They also gave something like a “foretaste’ of the extensive programme of listing and condemning erroneous works adopted at the time of Henry VIII.48 Local circumstance often required local provisions. In some areas of the law, the rules enacted in English synod might differ in significant ways from those enacted in, say, the Italian or Iberian peninsulas. For example, synodal statutes in Florence permitted the omission of libels in litigation worth less than 15s. A constitution from the diocese of Lisbon prohibited laymen from making last wills and testaments without the presence of their parish priests, adding that if a layman violated the rule, he would be treated as having died intestate as to the church, with the consequence that the bishop would take one-third of his goods.49 No equivalent rules were enacted in England. Nor were they found in the Decretals. However,

no derogation from the essential unity of the canon law was intended by the Lisbon or Florentine statutes. At most, they show that diversity was tolerated in a larger measure than today seems appropriate in an organization run along strict and hierarchical lines. Even if this supplementary function explains the intent of most of the English

synodal legislation, it does not explain everything. It did not guarantee that there would be no inconsistencies. Indeed, some English commentators seem to have taken a special interest in noting that this or that provincial constitution was contrary to the law found in the Corpus iuris canonici. For instance, one of Archbishop Stratford’s statutes designed to speed up the process of appeals by omitting a preliminary decision on the appeal’s merits was said by a contemporary commentator to be a violation of the canon law that required a true hearing before an inhibition could be issued to the lower court.5° His conclusion about the 48 Kemp, Council and Consent (above n. 28), 116-17; e.g. ‘Processus contra haereticos’ (1382) in Wilkins, Concilia, 11. 157-8. Compare ‘Instrument’ (1530), Wilkins, Concilia, iii. 727-37. 49 Constitutions of 1310, tit. De oblatione libelli in Richard C. Trexler, Synodal Law in Florence and Fiesole, 1306-1518 (1971), 2423; Synod of 1240, c. 12 in Synodicon Hispanum, Vol. I: Portugal, ed. Antonio Garcia y Garcia (Madrid, 1982), 291. See generally Sinodos diocesanos y legislacion particular, ed. Jaime Justo Fernandez (1999). 50 e.g, Formulary (fourteenth century), GCC, MS. 588/737, fo. 12v, which contained a marginal note

to statutes of Archbishop Stratford allowing letters of inhibition to be sent without hearing the principal matter of an appeal a gravamine: “‘[H]oc est contra ius commune cum cause cognitio requiritur de iure’, citing Sext 2.15.7. See also a comment in a collection of statutes from the diocese of Exeter, BL, Harl. MS. 220, fo. 19v (fifteenth century), dealing with the nature of a sentence of excommunication in one of them: ‘Secus est iure communt1’; also a similar comment about episcopal discretion to enjoin penance in Ex officio c. Elys (Salisbury, 1412), in Reg. Hallum, no. 1143: “est expresse contra textum decretalis [X 3.2.3]. See generally Lyndwood, Provinciale, 19, s.v. synodalt; E. W. Kemp, Introduction to Canon Law in the Church of England (1957), 27.

164 13TH CENTURY TO THE ACCESSION OF ELIZABETH

situation was cautious. He did not say the local statute was to be treated as inconsistent with the church’s constitution, as might be a national statute that contravened the terms of the European Convention of Human Rights or a statute that violated the provisions of the United States Constitution. Such a frontal challenge would not have been made at all. This statute, whatever its formal status, continued to be put into practice. Complaints about its effects were still being heard in the early sixteenth century.>! The history of English synodal statutes regulating preaching by the Franciscans was broadly similar. They seem to have prevailed in practice despite their seeming inconsistency with a papal decretal.>2 No doubt some of the men who drew attention to conflicts between local and general law hoped for amendment of the former. It could happen. But it must be more important for any assessment of the history of the canon law in England to take note that the zus commune did not operate like modern legal systems in putting its hierarchy of sources into effect. The existence of appellate courts did not guarantee that local practices and customs would be ‘corrected’ by the process of appeal. For example, the custom of the court of Canterbury was to disregard the canonical rule about compulsion of witnesses in tuitorial appeals (X 2.21.1).53 This court, therefore, did not apply one part of the law set out in the Decretals. No appellate decision compelled it to change its ways. Such disparities between the canon law stated in the Decretals and local customs, sometimes described as the stylus curiae of particular tribunals, could exist for hundreds of years, without anything being done to ‘set things right’ More frequent than such direct contradiction between synodal statutes and the formal law were situations in which any conflict was indirect, or only potential. A nice example is furnished by a statute of the northern province ascribed to Archbishop Greenfield (1304-15). It contained an attractive idea, one that was surely consistent with the high view of the nature of excommunication held by the canonists. The statute enacted that no one could be excommunicated or denied Christian burial simply for failing to pay a debt.54 This enactment raised a real 51 “Summa litis motae in Convocatione;, c. 8 (¢.1512) in Wilkins, Concilia, ili. 656.

52 Benjamin Z. Kedar, ‘Canon Law and Local Practice: The Case of Mendicant Preaching in Late Medieval England’ (1972) 2 BMCL 17-32. See also the question of choice of rural deans, where variety was apparently admitted despite an apparently clear directive that it was to be shared by bishop and archdeacon. Cf. X 1.23.7.6 with statutes of Chichester I, c. 44 (1245 X 1252) (C. & S. II, pt. 1, 460); Reg. Walter Langton, Bishop of Coventry and Lichfield 1296-1321 I, ed. J. B. Hughes (91 C. & Y. Soc.; 2001), Pp. XXVI-XXVIL.

53 Inner Temple Library, London, Petyt MS. 511/3, fo. 14v: ‘Nota in tuitorio secundum consuetudinem de Arcubus non coguntur testes. See also the discussion about practice in the same court in Bodl., Ashmole MS. 1146, fo. 111Vv.

54 Constitutiones Eboracensis Provinciae, lib. II, c. 7 in Wilkins, Concilia, 111. 662—81: “| F ]irmiter

inhibemus ne cuidam communio corporis Christi vel morienti ecclesiastica sepultura pretextu cuiuslibet debiti denegetur’.

THE CANON LAW AND LEGISLATION 165 problem of consistency with the general canon law. If taken literally, it might be held to contravene provisions of the latter. A man might incur a legitimate debt, take an oath to pay it, then refuse to do so, in the process contumaciously ignoring an ecclesiastical court’s order to fulfil the terms of his oath. At least if he had the resources to discharge the debt and the creditor insisted, such a man would be excommunicated for contumacy under accepted rules of the canon law. Would applying this particular statute in order to save him from that penalty (and denial of Christian burial if he happened to die) have been lawful? Perhaps it would have been. It might have been said that under ordinary rules of statutory construction the specific statute should outweigh the more general provision. If so, other less drastic remedies would have had to be used to collect the debt. But what would be wrong with that? It is hard to see a principled objection to the statute. At most, it would appear to be a sound amendment to a general rule. In the event, however, this result was not the rule in practice. Sentences of excommunication were routinely used in the English church’s jurisdiction over ‘breach of faith, even though most of these ‘breaches’ involved unfulfilled promises to pay quite ordinary debts. This outcome—seemingly contrary to the intent of the statute—was not reached by declaring it ‘unconstitutional’. It was reached because, as the medieval canonists would have put it, the debtor was not actually being excommunicated for his failure to pay a debt. He was being excommunicated for contumacy, that is for his contumacious refusal to acknowledge and obey a lawful sentence of an ecclesiastical court. It was only incidentally that the cause happened to involve a debt. By such means, the jurists ‘harmonized’ the two sources of law and reduced the reach of this statute. It applied only when no other reason for the excommunication could be given. In other words, they drew a distinction, one that allowed the English statute to be interpreted so as it bring it into conformity with the ius commune. In so doing, it must be said, they reduced its practical effect to just about zero. The jurists themselves would have seen this as a way of avoiding a potential conflict in the sources rather than as a ‘victory’ of constitutional principle. They did not welcome conflicts of a fundamental kind. When one moves from the nature of provincial legislation to consider more fully the contents of the English legislation from the later medieval period, a parallel with the Corpus iuris canonici quickly emerges. With only a few exceptions, the breadth of the areas of law covered by local legislation shrank, and the few areas that were dealt with extensively also corresponded with those that attracted the attention of the compilers of the larger collections. There was innovation, but not much. No new areas were claimed for ecclesiastical jurisdiction during this period as a result of synodal legislation. When, for example, a wider scope in the ecclesiastical remedy for defamation emerged during the fifteenth century, one which extended it to encompass abusive words as well as imputations of crimes,

166 13TH CENTURY TO THE ACCESSION OF ELIZABETH the impetus came from the universities and court practice, not from the adoption of a new provincial constitution. In the law of last wills and testaments, the activity of Convocation was largely confined to attempts to settle disputed questions of jurisdiction where men died with assets in more than one diocese. In the law of marriage, little new was attempted. A synod held in 1528 in the diocese of Ely did prohibit the celebration of marriage within the diocese by those who came from outside its boundaries until a ‘waiting period’ of a year had elapsed.*5 Whether the statute was consistent with the freedom to marry guaranteed under the medieval canon law would have made a nice academic question, but as a remedy for the endemic problem of clandestine marriages, not much can be claimed for it. It shows only a desire to ‘do something’ about a persistent and troublesome problem. Nevertheless, the legislation of the time was not wholly without ambition. Repeated enactments limited the fees that could be paid to stipendiary chaplains who celebrated Mass in parish churches and deprived the incumbents of revenue

that would otherwise have come to them.5® The object was to protect the parochial clergy. In some cases, a further step was taken. A constitution approved

in 1439 provided a method of dealing with the persistent problem of clerical poverty among the ordinary clergy,°” improving the legal position of vicars whose ordinary revenue was insufficient to support them in a style consistent with clerical dignity. Instead of being discouraged by lengthy litigation and high court fees, to the point where many abandoned hope, vicars were henceforth to be allowed

to bring suit in forma pauperis and by summary process against those to whom

their churches had been appropriated. In most cases, this would have been a monastic house. The vicars were thus granted a right to make more effective an established canonical principle—that they were entitled to an economic status commensurate with their position—as against the party that held the place of the rector and took the greater tithes. It turned out that this was not all wishful thinking. The act books contemporary with this enactment contain suits styled causae augmentationis portionts vicaril, by which this new constitution was enforced. Efforts were also made during these years to define and improve the working of the ecclesiastical courts. Just as the canons of the Liber sextus evince an increasing

attention to procedural questions, so the canons of the English Convocation sought to improve the quality of litigation by more scrupulous organization of the courts. For instance, Archbishop William Greenfield of York provided a collection

of thirty-seven statutes designed to regulate practice in his courts.58 They set 55 Wilkins, Concilia, ii. 712-13. 56 See e.g. Wilkins, Concilia, iil. 2 (1350); ibid. 135-6 (1378); ibid. 402 (1421).

57 Reg. Chichele, ii. 286-8. The effectiveness of the ordinance is doubted by R. A. R. Hartridge, History of Vicarages in the Middle Ages (1930, repr. 1968), 199-200. 58 (1311) in Wilkins, Concilia, 11. 409-15.

THE CANON LAW AND LEGISLATION 167 standards of honest and impartial behaviour for the lawyers serving there, attempting to enforce the standards by a combination of threats and mandatory oaths, also warning overly zealous lawyers against “breaking out in tumults’ while

they were in the presence of a judge. The statutes regulated the ways in which examination of witnesses was to be carried out, and they set appropriate fees for the services provided. They made an attempt to speed up the movement of cases through the courts by prohibiting ‘frustratory’ exceptions and appeals. They required that proctors in the courts seek the assistance of advocates on important points of practice, an attempt to meet the continuing problem of free-wheeling proctors, an abuse that would produce more legislation over the next centuries. Such mundane matters of court organization had not been accorded much attention in the books of the Corpus 1uris canonici, despite the greater awareness of the

importance of procedure evident in them, and English legislation, most of it enacted in Convocation, sought to fill this gap. One conspicuous exception to the ‘gap-filling’ quality of the legislation passed through synods and Convocation during this period exists. It came at the very end. Archbishop Warham’s Convocations debated and enacted canons that went dramatically beyond restatement of traditional concerns.5? Their measures cut

the ties between the English church and the papacy. Both Parliament and Convocation acted. Convocation also later enacted most of the measures by which

Protestant thought and practice passed into the English church. For example, although there was opposition among the clergy, in 1531 Convocation approved Henry VIII’s assumption of the title of “Head under Christ’ of the English church.®© The submission of the clergy was passed by both Convocations several months before it was moved through Parliament. This precedent of joint action in religious matters was continued. In 1532 and 1547, Convocation first rejected and then passed the proposal to set up a commission to revise the canon law of England.®%! In 1549, it sought to abolish a longish

list of superstitious practices, things like the use of rosary beads and bells and candles when the sacrament was being taken to the sick.®* Measures very like these

were also enacted by the English Parliament. Parliament could sometimes also provide an end run around clerical opposition in Convocation. In time, the principle would be established that it was Parliament that had the decisive say in making statutes that governed the church. The courts of the church would themselves

enforce Parliament’s statutes in addition—or even in preference to—those enacted by Convocation. But Parliament’s pre-eminence was not so clear at the 59 Michael Kelly, “The Submission of the Clergy’ (1965) 15 TRHS (5th ser.) 97-119. 60 Wilkins, Concilia, iii. 724-6. 61 Wilkins, Concilia, ili. 748-9 and iv. 15-17. See generally Lathbury, History (above n. 33), 105-53. 62 Wilkins, Concilia, iv. 32-3.

168 13TH CENTURY TO THE ACCESSION OF ELIZABETH time. Queen Elizabeth and her immediate successors claimed that, in matters of religion, they and Convocation could act without involving Parliament.® It would take a civil war and an act of judicial legislation to prove they were wrong. Secular Legislation

Protestant controversialists argued that the religious legislation passed by the Parliament at the start of the Reformation was nothing new. It merely abolished papal accretions to English institutions, accretions of relatively recent vintage.®© By contrast, Catholic controversialists argued that the Tudor legislation was revolutionary in character. It overthrew the place of the church’s law in England. Both could cite the law of the Anglo-Saxons in support—the Protestants for the role it accorded the king and laity in common assemblies, the Catholics for the papal mission that had led to the church’s establishment in England. Both could also cite Continental precedents to buttress their case—the Protestants for the similarity of secular legislation then being enacted in Catholic lands to what was happening in their own, the Catholics for the explicit rejection of long established papal authority by the English statutes.

At least in their more extreme forms, both these positions now appear misguided to an observer more interested in the legal practice than in religious controversy. The first is mistaken because, if one removed all parts of the canon law tainted by contact with the papacy, little would be left. Moreover, the precedents cited are themselves suspect; a statute abolishing papal jurisdiction (28 Hen. VIII, c. 10, 1536) was not really the same thing as a statute attempting to restrain the level of probate fees in the ecclesiastical courts (31 Edw. III, st. 1, c. 4, 1357). The first

made a dramatic constitutional change; the second was tinkering with details. The royal injunctions and the royal visitations of the church that followed were particularly galling reminders of the church’s new head. The second argument seems equally mistaken, however, partly because English custom had long played a decisive role in determining the nature of the jurisdiction exercised by the English ecclesiastical courts. Roman law precedents also provided additional support for the approach taken by the new regime. The English church had never attempted to implement the entire Corpus turis canonici, and 63 G.R. Elton, England under the Tudors (1955), 290.

64 The reference is to Middleton v. Crofts (KB 1736) 2 Atk. 650; reasons for rejecting its authority

as history are explored more fully in R. H. Helmholz, “The Canons of 1603: The Contemporary Understanding’ in English Canon Law: Essays in Honour of Bishop Eric Kemp, ed. Norman Doe, Mark Hill and Robert Ombres (1998), 23-35. 65 S.J. Barnett, “Where was your Church before Luther? Claims for the Antiquity of Protestantism

Examined’ (1999) 68 Church History 14-41. 66 Visitation Articles, Frere, i. 119-34.

THE CANON LAW AND LEGISLATION 169 most of the medieval canon law continued to be used in those courts after the Reformation. The final court of appeal became the Court of Delegates rather than the Court of Rome, but no substantial change in the institutional history of the ecclesiastical courts in England took place. The substance of most of the rules of law being put into effect did not vary. It has always been difficult, and remains so, to remove religious belief from discussion of the larger issue. From the perspective of the court records, however, it appears that neither of these controversial claims is fully vindicated. Still, they are not without utility. Both of the claims help focus attention on the nature of the

law that emerged from the Reformation. There is some truth in both of them. Secular legislation of different kinds had made a difference in the place of the canon law in medieval English life, but a new and different chapter was opened by

the Reformation. Royal injunctions injected a new element of control from the Crown. The subject has a history in its own right, and it is also worth comparing with the legislation enacted during the English Reformation. Two types of medieval secular legislation had affected the canon law. The first prohibited the ecclesiastical courts from exercising jurisdiction in particular areas, most of them areas where the canon law claimed jurisdiction but in which common law had staked out its own claim. The medieval statutes of Praemunire are a good example. The second type gave direction to the ecclesiastical courts in how they were to administer the law where they had undoubted jurisdiction. The statute requiring them to deliver a copy of the libel to any person summoned before an ecclesiastical court is a good example.°” At some level of abstraction these two types converge. Almost any rule attempting to set a rule of procedural or substantive law keeps a court from doing something else, and hence it may be regarded as a prohibition against the exercise of the court’s jurisdiction. For instance, the common law held that in defamation causes

ecclesiastical courts could not grant money damages. This rule did both.® It shaped the form of the ecclesiastical remedy, and it prohibited one type of case from being heard in the spiritual courts. For most purposes, however, the difference between the two kinds of statutes is workable enough. The canon law itself treated them differently. SECULAR LEGISLATION AFFECTING THE SUBSTANCE OF THE CANON LAW

A considerable amount of legislation passed by Parliament during the Middle Ages was designed to have an immediate effect on the way in which the canon law was implemented. Tithe, marriage, probate, churchyards, civil procedure,

appropriation of churches, clerical misconduct, and usury—all matters 67 2 Hen. V, st. 1, c. 3 (1414). 68 Circumspecte agatis (1285) in SR, i. 101.

170 13TH CENTURY TO THE ACCESSION OF ELIZABETH

undoubtedly within the competence of the courts of the church—did not escape a brush with this sort of secular intervention.°? Much of it was of minor significance, and some of it tracked the canon law itself. For instance, provisions were enacted by Parliament to secure more adequate endowments for appropriated churches.7° This was entirely in line with the canon law itself, and most

other regulation by statutes from the common law side had an effect only around the edges of the spiritual. Henry II’s earlier Constitutions of Clarendon (1164), by contrast, had stated rules that would have had a significant impact on what the bishops could do in their own courts.7! But the kings who followed retreated from this position. It was not until the seventeenth century that the pace of such legislation accelerated. Still, there was enough of it during the later Middle Ages that the church faced the problem of what to do in response more than once. Assessing its status in the law of the medieval church requires a short explora-

tion into the canon law relating to custom and secular statutes. The ‘detour’ is necessary because many statutes could be, and indeed were, treated as forms of written custom under the canon law. In fact, this was not an artificial conclusion. Some statutes merely ‘codified’ the common law, as the English common lawyers themselves said. Statutes could also be considered, without too much of a stretch, to rest upon the consent of the governed, one of the hallmarks of a legitimate custom under the tus commune. As such, it was entirely appropriate to treat a temporal statute as equivalent to a custom. A decretal from the chancery of Pope Innocent III recognized the functional equivalence of the two (X 1.2.10), and that text became the locus classicus for discussion of the subject.

The conclusion drawn from this equivalence was that not all statutes that affected the substance of the canon law were invalid simply because they were the product of lay initiative. Such statutes might (or might not) be valid under the law of the church itself.”2 The outcome depended on their contents. This recognition

is apparent in the medieval records of the church. Secular statutes are found placed together with ecclesiastical constitutions and papal decretals in formularies

69 20 Hen. III, Statute of Merton, c. 5 (1236) (usury); 3 Edw I (Westminster I), c. 22 (1275) (marriage); 13 Edw. I (Westminster IT), c. 6 (1285) (churchyards); 31 Edw. III, st. 1, c. 11 (1357) (administration of goods of decedents); 37 Edw. III, c. 13 (1363) (regulation of clerical dress); 45 Edw. III, c. 3 (1371) (tithe); 4 Hen. IV, c. 12 (1402) (appropriation of parish churches); 2 Hen. V, st. 1, c. 3 (1414) (procedure).

70 e.g. 15 Ric. I, c. 6 (4391) and Convocation of 1439 in Wilkins, Concilia, 111. 535-6. See generally Hartridge, Vicarages (above n. 57). 71 Stubbs’ Select Charters, 163-7 [| EHD, ii, no. 126]; the most famous of these (c. 8) was the restriction on appeals to the Roman court, but there were others, including several that regulated the procedure to be used in the spiritual forum (cc. 5, 6, 7). 72 See e.g. Panormitanus, Commentaria ad X 1.2.10, nos. 10-13. It was a harder question under the

canon law whether a statute enacted by a bishop could induce a custom contrary to the formal canon law. See Barbosa, Pastoralis solicitudinis (above n. 25), pt. III, alleg. 93, no. 29.

THE CANON LAW AND LEGISLATION 171 used by the English ecclesiastical lawyers.73 This placement may have reflected simple pragmatism on the part of the compilers, but it seems just as likely that ecclesiastical lawyers themselves recognized the legitimacy of the Parliamentary legislation where it was not at odds with the church’s law.

The starting-point from which the canon law reached this result was the Roman law rule that custom stood as a legitimate source of law (Dig. 1.3.32.1). The canon law adopted this approach. Pope Gregory the Great had endorsed the value of accepted customary practices in his famous letter to St Augustine. The bishop

of Hippo had written that, ‘In those matters in which Holy Scripture has established nothing certain, the custom of the people of God and what is instituted by the people are to be held for law. Augustine’s words were taken into the canon law (Dist. 11 c. 7), as was a text from the Institutes which proclaimed that ‘ancient

customs, approved by the consent of those who use them, are to be held as equivalent to laws’ (Inst. 1.2.9; Dist. 12 c. 6). These were ancient rules. Despite the strains of the Investiture Controversy, the classical canon law of the twelfth and thirteenth centuries did not repudiate them.

Acceptance of customs and statutes based upon custom was none the less not a wholly straightforward matter under the classical law of the church. Once admitted as legitimate sources of law, customs had the power to subvert the rights of the papal legislator and to encourage violation of important goals stated by the canon law. Limits had to be set to their reach. Even very long-established customs were not immune from attack under the ius commune. A wrongful action did not become lawful merely by being repeated. In order to determine whether a custom was legitimate, or instead simply an ancient abuse like lay investiture, the jurists developed a number of formal criteria. Different formulations of this test were made, but they came down to the same basic test. Resting on the tacit agreement of those governed by it, a valid custom had to be of relatively widespread usage among the group affected, of sufficient duration to meet the requirements of the law of prescription, and also to have been uninterrupted by contrary practice. To be held lawful, a custom had also to be in conformity with divine and natural law, not likely to lead men into sin, and not in itself unreasonable (X 1.4.10-11).74 What ‘unreasonability meant was not easily defined, but many examples could be given. It was thus established that customs had both to meet the tests of the law of prescription and to pass a threshold of acceptability under the norms by which the 73 e.g. GCC, MS. 235/121 (fifteenth century): pp. 81 (Westminster II), 83 (Magna Carta), 92 (Prerogativa Regis). 74 See René Wehrlé, De la coutume dans le droit canonique (1928), 110-97; John Gilissen, La Coutume (1982), 24-33; Peter Landau, “Theorie des Gewohnheitsrechts’ (1991) 77 ZRG, Kan. Abt. 156—96, esp. 158-68; Udo Wolter, “Die consuetudo im kanonischen Recht bis zum Ende des 13. Jahrhunderts’ in Gewohnheitsrecht und Rechtsgewohnheiten 1m Mittelalter, ed. Gerhard Dilcher et al. (1992), 87-116, at 104-14.

172 13TH CENTURY TO THE ACCESSION OF ELIZABETH church was governed. For instance, the established custom of having the decision in an ecclesiastical cause made by the suitors or jurors who were present in court was condemned as ‘unreasonable, because it allowed men to give legal sentences even though they might be ‘literate or illiterate, knowledgeable or ignorant’. They would be usurping the natural role of the judge (X 1.4.3). However, it was not necessarily fatal to a custom's validity that it set a rule different from one found in the formal law. There could be a valid custom praeter ius or even contra tus.7> Customs that directly contravened statutes and other texts in the Corpus iuris canonici were examined with particular care, and if a text or statute specifically stated an intent to prevail against a custom, that intent should prevail under ordinary legal principles.7° The canonists kept the interests of the church very much to the fore in administering this system. But they did all recognize the possibility that the canon law might be ‘amended’ by the tacit agreement of the people governed by it.

The law of custom, taken together with Innocent III’s decretal, therefore opened a way of bringing secular statutes within the law of the church if they ‘passed’ something akin to a canonical examination. Luckily, we have an example of just such an examination in a fourteenth century Quaestio disputata from the Cambridge law faculty.’7 It was raised in connection with a question of ‘lapse’ in the presentation of clerics to ecclesiastical benefices. Both canon law and the royal courts took the view that if the patron delayed too long in making his presentation to the bishop, the right to present ‘lapsed’ and passed to the bishop. But how

long was too long? The canon law held that it was four months for laymen, six months for clerical patrons (X 3.38.22). The common law held that it was six months for both.”78 Which was valid? Which was to be used in the English ecclesiastical courts? Modern historians are tempted to treat such matters as simple tests

of strength between church and state. But that is not how this student treated it. He asked whether the English rule, arising out of a statute, could be treated as a valid custom under the canon law. His answer covered the basic points in the law just noted. On the one hand, the statute had presumably been made with the consent of the English people, because it had been enacted by Parliament. The ius commune permitted customary deviation from a written law, particularly where

the standards of the written law were being modified rather than abrogated entirely, as was true in this instance. Nor was there anything in this deviation from decretal law that could be said to stand contrary to divine or natural law. The Bible said nothing about the specific length of the ‘lapse’ period. On the other hand, all else being equal, the spiritual law should outweigh the temporal in matters of title 75 See H. FE. Jolowicz, Roman Foundations of Modern Law (1957), 21-37. 76 Giuseppe Comotti. La consuetudine nel diritto canonico (1993), 32-43. 77 GCC, MS. 483/479, ff. 4v—6. 78 25 Edw. IIL, st. 4 (1350-1); John Mallory, Quare Impedit (1737), pt. 1, tit. Lapse (P).

THE CANON LAW AND LEGISLATION 173 to ecclesiastical benefices. Moreover, the Cambridge scholar took note, the canon law on ‘lapse’ was quite specific on this difference between lay and clerical rights. This was not a case where the canons were themselves vague or deficient. They should control. All in all, therefore, something could be said on both sides. The student ended his discussion and reached his conclusion with a more subtle analysis of the likely effects of the different periods. The longer the patron had to present, he reasoned, the longer the people of a parish would be without a pastor. The supreme rule of the canon law was salus animarum. This being so, the interpretation that favoured the spiritual health of the people should be preferred. Hence it seemed that the shorter period before ‘lapse’ occurred should be chosen.”? Making this choice would guarantee that the parishioners had adequate spiritual solace two months sooner than they would under the six months the common law provided. Hence the canon law’s test should prevail. This English statute did not survive this test of what made a valid custom. The scholar who gave this answer to the academic quaestio had no power to change what the king’s law required. The common law judges were not inclined to risk their jurisdiction to try claims involving advowsons in order to follow his line of reasoning (or the canon law itself) about the more appropriate time limit for declaring a ‘lapse’ to have occurred. Some of them may have been aware of the difference, and in a few areas of the law they were willing to adapt their law to accord with that of the church. But they were not to be swayed in this one. The real interest in this academic argument is a canonical one. The example shows clearly that canonists did not regard temporal rules like the one contained in this statute as necessarily invalid. It was not a simple test of power between church and state. Analysis was necessary. Perhaps the canonists’ habitual respect for the civil law played a role in encouraging them to take this approach to the possible validity of temporal laws. The Roman law was the secular law they had immediately in mind in analysing similar problems. The canon law had borrowed a great deal of both form and substance from it in formulating the law of the church. Although parts of Roman law were rejected, the canonists were not hostile in principle to admitting its worth, or even of making affirmative use of temporal law.8° This was particularly true when the canon law itself was deficient or unclear, and the obvious analogy between Roman 79 GCC, MS. 483/479: “Tertio me movet inefficacia statuti obviandi anime salutem nam ista artatio

temporis erat introducta in favorem salutis anime, scilicet ut cito provideretur cura animarum’ The difference was also discussed along similar lines, if more briefly, in a seventeenth-century civilian’s notebook: BI, Prec. Bk 6, ff. 18v—19v.

80 See the examples given in Pietro Vaccari, ‘Nota sul diritto canonico nei suoi rapporti col diritto civile nei secoli XH—XIV’ (1938) 27 ZRG, Kan. Abt. 348-63.

174 13TH CENTURY TO THE ACCESSION OF ELIZABETH law and English custom or statutes supported the argument that local laws were not invalid simply because they contradicted the texts of the Corpus iuris canonict. The lack of symmetry between them would only be the start of the inquiry. Few better examples of this openness to variation exist than the law involving sanctuary. This privilege, available to criminals to seek refuge in a church and thereby

avoid arrest and trial, was of obvious and immediate interest to the clergy who administered the churches. Unfortunately, the canon law on the subject left many things unclear. The Decretals contained only two chapters devoted to it (X 3.49.6, 10),

and the Liber sextus none at all. The two texts left many questions, including the important one of how persons not entitled to take sanctuary were to be removed from it, wholly unaddressed. Into this gap stepped the temporal law—English law adopted the system of abjuration of the realm after forty days in the church for all those who took sanctuary. Procedure was administered by the coroner. It is not at all clear that this system was compatible with the canon law, which envisioned perpetual asylum as long as the criminal’s life and limb were in danger. Indeed, several related English customs would have seemed doubtful under the canon law. For example, English practice admitted to sanctuary some criminals whose offences would have excluded them under the canon law.®! English practice also adopted a rule that after forty days a felon in sanctuary would be denied food and drink if he refused to abjure the realm, whereas the canon law set no such limit.®2

No comprehensive discussion of the compatibility of English custom and canon law on the subject has yet been discovered, and it would probably have been a purely academic question if one existed. The common lawyers called the shots. However, it is worthy of note that in dealing with the rules in force, the leading

medieval English canonist, William Lyndwood, spoke of them as ‘customs of England’83 His commentary raised no principled objections against them. He took the trouble to describe several aspects of their application and even to provide Roman and canon law analogies for some, although he did recognize that their source lay outside the texts of the ius commune.84 The law of sanctuary thus provides a good example of interaction between English customary law—the tus proprium as it would have been called by the Continental jurists—and the ius commune. A wide, but not unlimited, scope was left for regional variation. The customs that governed sanctuary practice in European lands did vary quite considerably. Even Scotland’s law differed markedly from England’s.®5 81 e.g, ‘public thieves’ were excluded from sanctuary under the terms of X 3.49.3, but they were

admitted under English common law. 82 See Four Studies, 61. 83 Lyndwood, Provinciale, 256, s.v. abjurationem terrae. 84 ibid., s.v. via publica, discussing the distinction between private and public rights of way.

85 Hector MacQueen, “Girth: Society and the Law of Sanctuary in Scotland’ in Critical Studies in Ancient Law, Comparative Law and Legal History, ed. John Cairns and Olivia Robinson (2001),

THE CANON LAW AND LEGISLATION 175 In some cases, there was greater harmony between secular and spiritual legislation.

Much of the Parliamentary legislation was intended to support and strengthen the position of the church and the operation of ecclesiastical jurisdiction, not to restrict or control it. Magna Carta’s chapter one, which confirmed the rights and liberties of the English church, was the prototype of this kind of statute.8° Other cases followed. Parliamentary legislation to deal with the Lollards was entirely supportive of the church’s law, even to the point of enacting a statute that required all preachers to have an episcopal license (2 Hen. IV, c. 15, 1400). This provision, virtually identical to one

enacted by Convocation, was intended to restrict the preaching of dangerous doctrine. Statutory prohibitions against the arrest of ‘any person of Holy Church’ while performing religious services also amounted to a partial endorsement of the canon law (50 Edw. III, c. 5, 1376). No doubt the clergy would have preferred prohibition against any arrest of the clergy by secular officials, but at least they had secured a clear recognition of the clergy’s special status in law by means of this statute.

Parliamentary regulation of the wages that could be paid to stipendiary priests also tracked church’s law dealing with the problems caused by rivalry between them

and the parochial clergy (2 Hen. V, st. 2, c. 2, 1414). It too was complementary. From the church's point of view, the problem raised by these statutes was not that they were attacks on ecclesiastical jurisdiction. They were not. They supported it. The problem was that the statutes often used different language or adopted slightly different means of attacking the same problem addressed by the canons. The question would then be which version prevailed and (later on) which court system had the right to interpret the statutory language. It is a guess—though a reasonable guess with some backing from the canonists—that the answer might even depend upon the court where the matter was being raised.87 LEGISLATION RESTRICTING THE SCOPE OF ECCLESIASTICAL JURISDICTION

By no means all parliamentary legislation was benign from the canonical point of view. Some of it was quite unacceptable to the clergy. It stood in direct contradiction to the canon law. It was an inducement for sin. It threatened the independence of the English church. It effectively denied the supremacy of the apostolic see. This pattern by which such rules came into force had been set early on. King Henry II’s Constitutions of Clarendon (1164) had contained restrictions on what subjects fell within the church’s competence. Disputes over advowsons and pleas of debt made 333-52. See generally Pierre Timbal Duclaux de Martin, Le Droit d’asile (1939); Carlotta Latini, I/ privilegio dell’immunita (2002); L.-R. Misserey, ‘Asile en occident’ in DDC, i. 1089. 86 The most detailed was the Articuli cleri (1315-16), SR, i. 171-4. 87 See Panormitanus, Commentaria ad X 1.2.10, no. 14: ‘Quartus casus, quando lex civilis est generalis

et rationabilis, sed deviat a iure canonico...lex civilis est servanda in foro suo et canon in foro suo.

176 13TH CENTURY TO THE ACCESSION OF ELIZABETH under pledge of faith, both matters claimed by the church (X 2.1.3; Sext 2.2.3), were declared to be the exclusive concern of the temporal courts.88 The statutes passed by Parliament in the later Middle Ages did not back away from these jurisdictional rules. The clergy objected to them in the twelfth century and continued to do so thereafter. They also sought ways around them, and their strategy of objection and evasion was not altogether fruitless. The English kings were willing to modify or even abandon a few of the more extreme results that could be drawn from the common law’s jurisdictional principles,®? and not all the secular statutes survived the test of acceptance by the people affected. The part of the Constitutions of Clarendon dealing with jurisdiction over advowsons was generally observed in England, although it was undercut to an extent by proceedings at the papal court and was subject in practice to ecclesiastical procedures designed to protect the interests of bishops and other possible claimants to parochial cures. These ecclesiastical usages were not, in practice, treated as altogether incompatible with the common law’s own jurisdictional claims. By contrast, Henry II’s constitution forbidding the courts of the church to take cognizance of sworn promises to pay debts had become virtually a dead letter by

the early fifteenth century. The courts heard many such pleas under the rubric of ‘breach of faith. The common law rule began, however, to be enforced through an innovative interpretation of the Statute of Praemunire in the later years of the same century and the church’s jurisdiction over promises to pay money was moribund by the end of the second decade of the sixteenth century. The question of which side would prevail was thus not always straightforward. Neither side abandoned its theoretical claims. Both lived with the discordant results that obtained in practice. By all odds however, the dominant fact about direct statutory attacks on ecclesiastical jurisdiction during this period is how few of them existed. Despite rivalry and opposition between the canon law and English law and institutions, King and Parliament rarely purposefully diminished the scope of ecclesiastical jurisdiction. Only a few statutes did so. One that did, at least according to the clergy, was a statute of 1371 prohibiting collection of tithes on sylva caedua, trees more than 20 years old coppice-wood.%” The church refused to accept this change in the law, and the statute produced friction of an intensity far greater than any economic importance the trees could have had. This instance was, however, very much an exception. More often, the statutes approved in Parliament proclaimed the validity of the traditional boundaries and

sought only to find more effective ways to enforce them. An example is the 88 cc. 1, 15 in Stubbs’ Select Charters, 164, 167 | EHD, i. 719-22]. See Swanson, Church and Society, 142-7.

, ws eg ‘Concordat of Edward III with Pope Gregory XI, 1376’ in EHD, iv, no. 377 and “Regis modifi-

catio statuti contra Provisores editi’ in Wilkins, Concilia, ili. 236-7 (1398). 90 45 Edw. III, c. 3.

THE CANON LAW AND LEGISLATION 177 common law’s rule that if a suit were brought in an ecclesiastical court for tithes that amounted to more than a quarter of the total value of the tithes due within a parish, a prohibition would lie to prevent it going forward.9! The object of the rule was to protect royal jurisdiction over disputes about advowsons. Bringing suit for more than that percentage was a way of circumventing that rule. This was so because the parson who claimed a significant part of the tithes might indirectly be contesting the rights of a rival to the benefice to its fruits, and hence the title under which the rival had entered. It therefore seemed necessary to choke off this indirect way of raising the question of patronage. The rule’s purpose was not to challenge the church’s right to try tithe causes, only to keep that right from being used as an indirect challenge to royal jurisdiction over advowsons. Ecclesiastical lawyers did not see things quite that way. The canon law claimed the right to try all cases involving ecclesiastical patronage, as matters necessarily ‘annexed’ to the spiritual realm (X 2.1.3). Invocation of royal jurisdiction over advowsons in England was itself a violation of the canon law.9?2 This special

restriction for tithe litigation only compounded the long-standing wrong. Moreover, it eliminated one means by which the canonical rule could be vindicated, and it provided a nuisance value in other kinds of tithe litigation. Tithe payers could use it to evade, or at least to delay, meeting their legitimate responsibilities. In evaluating the Parliamentary legislation of the later Middle Ages, it is important to bear both legislative purpose and clerical reaction in mind. Even if the reason for passing statutes was simply to implement old jurisdictional rules, that often did little to mollify clerical anger. Too often for their tastes, the customs did not allow the church to exercise the jurisdiction guaranteed under the canon law, and the Parliamentary statute raised the stakes in the enforcement of the customary law of the realm. The clergy regarded this as ‘aggression’ by the lay sphere, and from their point of view this was a correct conclusion.

The statutes that stood at the top of the list of the clerical gravamina, the statutes called by the name of Praemunire and Provisors, were both like that. They stated no new principle. The Statute of Praemunire, first enacted in 1353 and more fully stated in 1392, penalized those who sued in the Roman court over all matters

‘which touch[ed] the king’ and belonged by right within the jurisdiction of his courts.°> Offenders were put outside the king’s protection, their lands and chattels were to be forfeit to the Crown, and they themselves were to be brought before 91 See Circumspecte agatis (1285), SR, i.101; Articuli cleri, c. 2 (1315-16), SR, 1.171. This was to set a more

precise figure to carry out a traditional royal goal; see Jones, ‘Relations, 158-9. 92 Hostiensis, Summa aurea, lib. Il, tit. De foro competenti, no. 11: “Vel iuris patronatus...sed hanc decretalem non servat curia illustris Regis Anglie, imo quicquid dicat Papa, ipse cognoscit’ 93 27 Edw. III, st. 1 (1353); 16 Ric. II, c. 5 (14392). On the operation of the statute, see E. B. Graves, “The Legal Significance of the Statute of Praemunire of 1353’ in Anniversary Essays in Mediaeval History by

178 13TH CENTURY TO THE ACCESSION OF ELIZABETH the king and his council to answer for their offence. Enactment of this statute was thought to be required because the Roman court was beyond the reach of royal writs of prohibition. The curial officials paid no attention either to English jurisdictional rules or to writs of prohibition. For this reason, if for no other, additions

to the common law were necessary if the traditional boundaries between the spheres of church and state in England were to be maintained. The Statutes of Provisors, first enacted in 1351 and put into more definitive form in 1390, similarly stated that its purpose was to restore to English patrons and clerical electors the rights to choose the clergy to fill cathedral stalls and ordinary benefices they had

enjoyed before papal encroachments had ‘impeached, blemished and confounded’ those traditions.%* Papal reservation of benefices had impeded enforcement of existing rights of patronage and election—trights supposedly guaranteed by the canon law itself—and they had caused revenue from English benefices to flow out of the realm into the hands of aliens, some of whom might actually be the enemies of the king. If these traditional usages were to prevail, an adequate remedy would be required in the face of changed conditions. Persons who entered into benefices claiming that right through papal provision were therefore subjected to penalties similar to those of Praemunire. The purpose of these statutes thus converged. They were both designed to protect the jurisdiction of the royal courts and to maintain the traditional rights of potential litigants before them. The clerical perspective was different and more complicated. Some among the

clergy saw the conservative point of the statutes. They objected to what they regarded as excessive papal intrusion in local affairs, upsetting the traditional rights of election and patronage. The power to make exceptions to the law in order to accomplish some other goal, the power on which papal provisions rested, was

not favoured under the canon law. Exceptions were regarded as vulnera legis (C. 23 q. 4 c. 24). The ecclesiastics who objected to them were not all cranks. Thomas Gascoigne, chancellor of Oxford in the early 1440s, was among them.% So was John Grandisson, bishop of Exeter from 1327 to 1369.9® These men did not call the existence of papal power over benefices into question, but they did dispute the wisdom of extending it. And a few of them went beyond this. In 1402, for example, Students of Charles Homer Haskins, ed. Charles Taylor (1929), 57-80; Robert Rodes, Jr., Lay Authority and Reformation in the English Church: Edward I to the Civil War (1982), 59-66. 94 25 Edw. IIL, st. 4 (1350-1); 13 Ric. IL, st. 2, c. 2 (4389-90). On the background, see A. D. M. Barrell, “The

Ordinance of Provisors of 1343’ (1991) 64 Historical Research (BIHR) 264-77; Fredric Cheyette, “Kings, Courts, Cures, and Sinecures: The Statute of Provisors and the Common Law’ (1963) 19 Traditio 295-349.

°5 Thomas Gascoigne, Loci e libro veritatum, ed. James E. Thorold Rogers (1881), 26, 202-3; on Gascoigne see Winifred Pronger, “Thomas Gascoigne’ (1938) 53 EHR 606-26; ibid. 54 (1939), 20-37. 96 Reg. John de Grandisson, ed. F. C. Hingeston-Randolph (1894), Pt. 1, 111-12; see also Letter to the Pope (1327), Reg. Roger Martival, Bishop of Salisbury 1315-1330, Vol. IT bis, ed. C. R. Elrington (= 58 C. & Y. Soc.; 1972), 549-52.

THE CANON LAW AND LEGISLATION 179 the prior and convent of Pontefract wrote to the king asking him to invoke the statute in order to protect their rights in a local church against a claimant armed with a papal provision.®”? The statutes sometimes favoured the interests of the English clergy because they protected their own rights of patronage and provided greater opportunities for their own advancement. However, the popes themselves and many thoughtful men among the English clergy regarded these particular statutes as ultimately prejudicial to their own interests and to those of the Holy See. In 1391 Pope Boniface IX declared them null and void, and in the 1420s Pope Martin V renewed efforts to have the Statute of Provisors repealed.98 The official position of the English clergy, expressed in Convocation, mirrored this view. The new statutes were declared contrary to the rights and inter-

ests of the church. They denied the independence of the canon law and the supremacy of the papacy. They sought in effect to ‘freeze’ the church’s law in its earl-

ier condition. In addition, as a practical matter, these statutes made things materially worse for the bishops who were caught between the claims of king and pope. Whereas the penalties for violating a writ of prohibition were limited and often ineffective in practice,9? the Statute of Praemunire threatened violators with more immediate and harsher penalties: ouster from the protection of the king, confiscation of lands and chattels, and imprisonment at the pleasure of the king. Mesne process against offenders was tightened up. Earlier practice had left Englishmen free to appeal to the papal court and free to comply with the outcome of litigation there. Now they were being threatened with the most severe kind of punishment for doing so. Papal provisors and their agents were to be arrested, required to renounce their provisions, obliged to give surety not to continue suits begun in the Roman court, and compelled to pay a fine at the king’s pleasure. Threats of yet more stringent measures followed.!°° To many among the clergy, this constituted an obvious violation of the freedom guaranteed to the church in Magna Carta and its several confirmations. At a Convocation in 1434, they organized what we would today call a committee of experts to investigate and to seek a remedy to the threat posed by Praemunire. Unhappily, as they saw it, the deliberations that followed produced no positive result: "No effective remedy was found, the Convocation’s scribe was obliged

to record.!®! It was cold comfort to be told, as the king had said in response to 97 See e.g. the letter to the king by the P. & C. of Pontefract (c.1402) seeking to protect their rights in a church against a papal provisor by invoking the statutes, in EHD, iv. 665-6. 98 CPL, iv. 277; Edouard Perroy, L’Angleterre et le grand schisme d’Occident (1933), 305-19.

99 See e.g. the possibility of evading a writ of prohibition through subdelegation, mentioned in a late-fourteenth-century formulary, Corpus Christi Coll. Oxford, MS. 72, fo. 91, as noted in Barraclough, ‘Praxis Beneficiorum’ (1938) 27 ZRG Kan. Abt. 94-134, at 118. 100 38 Edw. III, st. 2, c. 1 (1363-4). The benefice was to be declared vacant by the fact of papal provision,

and therefore subject to presentment by the king or patron. 101 Wilkins, Concilia, i. 523-4: ‘nec consecutum est remedium effectuale’.

180 13TH CENTURY TO THE ACCESSION OF ELIZABETH clerical gravamina, that he was simply maintaining the rights of his ancestors or that he could not act without the assent of Parliament.

The history of enforcement of these statutes belongs as much to European diplomatic history as it does to English history or the history of the canon law. The parallels with French history and the Pragmatic Sanction of Bourges (1438) are close. Negotiations about them between the English bishops and the popes, between the bishops and the king, and between the popes and kings fill many pages in the collections of documents that were made at the time. The English laity complained about the cupidity of the Roman curia; the popes and bishops about the tyranny over the church that the kings and English Parliament was seeking to exercise. So different were the conclusions each side drew about motives

and jurisdictional principles, one may well wonder how they managed to live together. Yet they did.1°? They did not allow disagreement about this issue to scuttle cooperation on issues where there was agreement. The clergy prayed for the

king and threatened with excommunication anyone who upset the peace of his realm. The king proclaimed his allegiance to the freedom of the church and continued to use the ‘secular arm’ in concrete ways to support the sentences of the ecclesiastical courts. Most common enterprises survived all disagreement between regnum and sacerdotium, including this one. Indeed the full story is more complicated still. Enforcement of the statutes of

Praemunire and Provisors was sporadic. It turned out that in practice both laymen and clerics were willing to take action involving benefices that was quite inconsistent with their own laws. The secular measures were not self-executing, and they did not stop papal provisions.!°3 English clerics continued to seek them.1!°4 In many cases, the statutes provided another weapon in the hands of rival claimants to benefices. Even English kings and nobles made use of papal provisions to secure the entry of their own candidates to bishoprics. The Commons in Parliament asked that exceptions be made in favour of university graduates, for whom papal provision sometimes provided the only way to a benefice.!5 On the other side, the English clergy themselves were not of one mind on the

subject. They had little reason to applaud the entry of foreign absentees into English benefices. The announced principle of ecclesiastical independence did not 102 See William Pantin, The English Church in the Fourteenth Century (1955), 81-98; Peter Heath, Church and Realm 1272-1461 (1988), 118-38; John A. F. Thomson, The Transformation of Medieval England, 1370-1529 (1983), 314-31.

103 e.g, in a fifteenth-century Chancery formulary, most of the parties invoking the statutes of Praemunire and Provisors were religious houses or clerics themselves. See CUL, MS. I1.5.18, ff. 300-10. 104 See e.g. Jessie Lloyd, ‘Notes on Cambridge Clerks Petitioning for Benefices, 1370-1399’ (1943-5) BIHR 75-96, 192-211. 105 Petition No. 28 (1401), RP, iii. 459; The Chronicle of Adam Usk 1377-1421, ed. C. Given-Wilson (1997), 126-7. See also J. T. Driver, “The Papacy and the Diocese of Hereford, 1307-1377’ (1947) 145 CQR 31-47.

THE CANON LAW AND LEGISLATION 181 always carry the day when their own interests were involved. In practice, clerics often renounced the benefit of papal provisions drawn in their favour in order to secure royal approval for their entry into particular benefices. What scruples they had, they overcame. In this course, England was far from unique. The history of the French reaction to papal provisions followed a parallel course, although one with differences in detail.1°° In German lands, it also proved possible to arrive at accommodations between papal rights and local interests.1°7 Compromise and acquiescence in practices that violated the tenets of one law or the other were the order of the day. REFORMATION LEGISLATION

Ambiguity about the extent of spiritual authority persisted in the actions taken by Parliament that played such a pivotal role in bringing about the English Reformation. From one perspective, the temporal statutes introduced dramatic constitutional changes and no less formidable changes in the forms of worship within English churches. They cut the cord that had tied together the fortunes of the English church and the papacy since the mission of St Augustine many centuries before. An act of Parliament recognized the king as the ‘only supreme head in earth of the Church of England’ and extinguished papal jurisdiction over all

English litigation. The abolition reached beyond simply those matters that belonged to the crown according to the customs of the realm (26 Hen. VIII, c. 1, 1534). A Henrician statute declared all bulls, faculties, and dispensations issued by the bishop of Rome to be null and void, though a savings clause had to be left for dispensations in marriages solemnized two years before the act took effect (28 Hen. VIII, c. 16, 1536). Although most of the acts of the Henrician Reformation were also passed by Convocation, the scale of Parliamentary involvement in religious affairs was much greater than it had been during the Middle Ages. With the coming of the Tudor monarchs, legislation expressly amending the law applied in the ecclesiastical courts was also enacted on a new scale. Some of it was required by the Reformation. For instance, Edwardian statutes recognized the

legitimacy of marriage by priests and required that images be removed from parish churches (2 & 3 Edw. VI, c. 21, 1549; 3 & 4 Edw. VI, c. 10, 1550). Laws like these had at least an indirect effect on the practice of the courts, since they defined the offences that would come before them for correction. The same might be said

of the statutes regulating public worship, since those who refused to accept the regulations might end up as defendants in the ecclesiastical courts. Other statutes narrowed the scope of sanctuary and benefit of clergy (e.g. 1 Edw. VI, c. 12, s. 9, 1547). 106 Noél Didier, ‘Postulation, élection et provision apostolique a l’évéché de Carcassone en 1456’ (1951) 29 RHD (4th ser.); 39-78. 107 See H. Hildersheid, “Bénéfices en Allemagne’ in DDC, ii. 634-7.

182 13TH CENTURY TO THE ACCESSION OF ELIZABETH These too changed accepted law, although their proponents said they were merely carrying forward long-needed reforms, some of which had been enacted earlier, but had been imperfectly observed.

A few of the new statutes more directly affected the running of the English ecclesiastical courts. For example, a late Henrician statute permitted laymen, if they were Doctors of Civil Law, to exercise ecclesiastical jurisdiction (37 Hen. VU, Cc. 17, 1545). Others introduced minor improvements in court practice. For example, a statute changed the terms on which appeals could be brought in the church’s

courts, allowing fifteen days instead of ten to elapse after sentence before an appeal would ordinarily be barred (24 Hen. VIII, c. 12, s. 3, 1533). These were not major changes; their object was to improve the quality of judges in the ecclesiast-

ical courts and to bring into greater harmony with the law what had become common practice in appeals. From another perspective, the change was even less dramatic in intent. A large part of the Henrician legislation that affected practice in the ecclesiastical courts actually restated traditional canonical rules. Statutes were passed forbidding holding plural ecclesiastical benefices, farming of church property, and non-residence

by the parochial clergy.!°§ A Henrician statute sought to secure the rights to parochial income for successors to benefices against the claims of all third parties,

and another forbade the citation of persons outside their own diocese (23 Hen. VIII, c. 9, 1532). An Edwardian statute required that all English men and women pay their tithes (2 & 3 Edw. VI, c. 13, 1549), and another forbade fighting in churches and churchyards (5 & 6 Edw. VI, c. 4, 1552). These did not vary the old law; they reinforced it. If anything, they were meant to put a stop to what had become a widespread avoidance of traditional rules. Considering this type of statute in slightly more depth opens a window on the mentality of the reformers and indeed the future of the canon law in England. From the point of view of the Protestant reformers, these statutes did not simply announce Parliament’s right to legislate for the English church and nation; they sought to apply principles of the canon law against the church and clergy itself. The idea was to restore the old rules of the canon law in the face of their long violation through disuse, papal dispensation, and juristic ingenuity. For instance, the new statutory rule that persons should not be cited out of their own diocese (23 Hen. VIII, c. 9, 1532) was a restatement of the old principle that all persons should be tried before their own bishops (C. 3 q. 6 c. 1; X 2.2.13; Sext 2.2.1). Under the tra-

ditional canon law, it was the diocesan bishop, the judicial ordinary, who had responsibility for doing justice to all those who were domiciled in his diocese. As perceived by the reformers, the real problem was that this venerable rule, like 108 91 Hen. VIII, c. 13, ss. 1, 9, 15 (1529).

THE CANON LAW AND LEGISLATION 183 many in the ius commune, had been so eaten away by exceptions that it had lost its force in practice. Reading through a medieval commentary on the subject makes

statement of the rule appear to be no more than the starting-point for a process of enumerating exceptions.!°9 So it seems now; so it seemed then. Exceptions were

carved out for jurisdiction by grant or privilege, contrary custom, and the consent, actual or implied, of the parties. In rem jurisdiction provided another exception, allowing jurisdiction to another bishop where property involved in litigation was outside the diocese where a litigant resided. Where a crime, a marriage, or perhaps even a contract had taken place outside the diocese of the persons involved, the contention was made that this too impliedly authorized deviation from the traditional rule, subjecting parties to suit where they had once acted, instead of within the diocese where they lived. In England, non-observance of the old rule was compounded by the practice of tuitorial appeals, which allowed the archbishops to take cognizance of causes that belonged by right to the courts of their suffragans on the flimsiest of pretexts that a bishop or his officers had violated (or threatened to violate) the rights of the party making the appeal. To an observer from outside, the exceptions seemed to have swallowed the rule. The Henrician statute was intended to restore the old law. Of course, that particular statute may have gone too far. What, for example, was to be done to deal with offences committed by vagabonds? An exception in the later medieval canon law recognized that for wandering men—‘Where I find you, there I shall judge you—had to be the operative principle of jurisdictional competence. Without it vagabonds would escape the nets of the ecclesiastical courts altogether.!!° But did the exception (and the many others like it) survive the Henrician statute? The words of the statute itself recognized no such exception. Could one be implied? After the statute’s enactment, could an ecclesiastical court still resist a declinatio fori by taking advantage of one of the numerous medieval exceptions to the rule? That question, and others like it, would absorb the attention of many civilians and some common lawyers in the years ahead.

The question would cause disagreement and trouble. Most of the civilians believed the statute was “but declaratory of the ancient canons.!!! They even held that it could be waived by the bishop whose jurisdiction was affected.112 The common lawyers thought differently, and they backed up their opinion with rulings in cases brought on writs of prohibition. Faced by these rulings, the civilians 109 See e.g. gl. ord. ad Sext 2.2.1, s.v. casus; Hostiensis, Summa aurea, lib. II, tit. De foro competentt, nos. 9-10, for lists of exceptions to the rule. 110 “Ubi te invenero, ibi te iudicabo, cited in Hostiensis, Summa aurea, lib. Il, tit. De foro competentt,

no. 10. 111 See Notebook of William Trumbull, BL, Add. MS. 72544A, fo. 105. 112 e.g, Case of John Clarke (1617), BI, Prec. Bk 2, p. 344 (1617) (licence to do so from the bishop of

Ely to the courts of the archbishop).

184 13TH CENTURY TO THE ACCESSION OF ELIZABETH were apt to conclude that the Henrician statutes were to blame for undermining the effectiveness of the ecclesiastical courts. It is not easy to say who was right. Perhaps the answer given will depend on the sympathies of the observer. No dogmatic answer will be offered here. But the motive behind the statute was not revolutionary, and even if one takes the civilians’ view that

legislation like this Henrician act was indirectly responsible for hampering the church's ability to enforce its own law, it is a mistake to emphasize the frequency of this result. Nor is it right to dwell on them to the exclusion of the more positive aims of the acts of Parliament that touched the church. In the main, the Tudor legislative output directly involving the canon law did not overturn the existing substantive law. It did not purport to change or diminish the scope of ecclesiastical jurisdiction, and some of it improved the mechanics of what the courts could do.!!3 Most statutes left the law of the church alone, and none of it was intended to hinder the civilian judges in the exercise of their traditional jurisdiction as that jurisdiction had been defined by English custom. What new restrictions came into being in Tudor England—and some did—were the product of litigation in the courts, not legislation. To this generalization, there was one possible large exception. It is a “might-havebeen’ of English legal history. A provision first approved by Convocation in 1532, then enacted by Parliament in 1534, and thereafter several times renewed, promised real change. It stated that for the time being the existing canon law was to continue in force in so far as it was not inconsistent with English customs and the royal pre-

rogative.114 Continuity with the past was not its primary intent, however. The statute envisioned an ambitious programme of reform. It authorized a commission of thirty-two men, one-half drawn from the clergy and the other half from the laity, who together would reformulate the canon law in England. The Commission was appointed and reappointed over a long period. In 1552 it produced a draft, the Reformatio legum ecclestasticarum.115 The laws contained in this document would have worked significant changes in the practice of the church’s courts. In some matters, as the provision made for permitting remarriage where one spouse had disappeared, it would almost certainly have brought improvement.!!6 For whatever reason, however, it failed of passage. It was no more successful after Elizabeth came to the throne.!!” Whether by accident or design, the ‘interim’ provision of the 1534

statute, the provision that retained the substance of the medieval canon law, became the permanent law of the English church. The statute did not prevent all challenges to ecclesiastical jurisdiction. Nor did it ‘freeze’ the status quo. Writs of 113 e.g, 2 & 3 Edw. VI, c. 13, s. 14 (1549). See Eric Kemp, “Legal Aspects of the History of Church and

State’ (2003) 7 Ecc LJ 48. 114 95 Hen. VIII, c. 19. 115 The most recent edition is found in Tudor Church Reform, 150-743; the history of the project is

discussed ibid., at pp. xli-cxiii. 116 Tit. 8, c. 9 in Tudor Church Reform, 252-3. 117 See Norman Jones, ‘An Elizabethan Bill for the Reformation of the Ecclesiastical Law’ (1985) 4 Parliamentary History 171-87.

THE CANON LAW AND LEGISLATION 185 prohibition allowed challenges to be made. Some of them succeeded. But overall, the institutions and the substance of ecclesiastical law were left intact to a degree that now seems quite remarkable. This failed attempt at statutory reform played

a major part in securing that result. The outcome was that no English statute required the men who served in the tribunals to make a fresh start. Today it seems doubly surprising that this should have happened. Should not extinguishing papal jurisdiction have carried with it elimination of the law by which the popes ruled? At least by implication, the Corpus turis canonici asserted papal prerogatives on its every page. Surely that step should have brought wholesale change in the canon law, if not indeed its outright abolition. To some men, the time seemed ripe. Serious proposals were advanced for stripping the ecclesiastical courts of major parts of their jurisdiction. The best known is the Commons’ Supplication against the Ordinaries of 1532.1!8 It contained a lengthy list of grievances against the ecclesiastical courts, and it sought their correction. More suggestions for change followed. Dr William Petre, a civilian and Thomas Cromwell’s deputy, proposed moving all probate, defamation, and tithe litigation to the temporal courts.!!° Richard Pollard, a barrister, advocated taking all ex officio jurisdiction away from the church, and other measures to restrict spiritual jurisdiction were floated in Parliament.!° These and other proposals for sweeping change ultimately came to naught. At least three factors help explain this initially surprising result. First, the English Reformation went ahead under a banner of reform, not wholesale rejection of the past. It aimed at ending abuses and restoring a polity that, it was supposed, had once existed but had been corrupted. Like the reform movement in the AngloSaxon church that had taken place almost five centuries before, a reverence for

a past that was imagined as much as it was real limited the changes that were made.!2! In both cases, it would have contradicted the claims of the reformers if 118 Jt is printed in EHD, v. 732-6. See also J. A. Guy, The Public Career of Sir Thomas More (1980), 186-92; Margaret Bowker, “Some Archdeacons’ Court Books and the Commons’ Supplication against the Ordinaries of 1532’ in The Study of Medieval Records: Essays in Honour of Kathleen Major, ed. D. A. Bullough and R. L. Storey (1971), 282-316; G. R. Elton, “The Commons’ Supplication of 1532: Parliamentary Manoeuvres in the reign of Henry VIITP (1951) 66 EHR 507-34; J. P. Cooper, “The Supplication against the Ordinaries Reconsidered’ (1957) 72 EHR 616-41.

119 For what follows, see John F. Davis, Heresy and Reformation in the South-East of England, 1520-1559 (1983), 6-17; G. R. Elton, Reform and Renewal (1973), 129-35; and Hermann Lutz, Das Canon Law der Kirche von England (1975), 30-7. 120 Elton, Reform and Renewal (above n. 119), 1333; see also Stanford E. Lehmberg, The Reformation Parliament, 1529-1536 (1970), 83—6, 222-3; Anon., BL, Cotton MS. Cleo. F.1i, ff. 250-253, entitled “Certen

considerations why the spirituell jurisdiction wold be abrogatt and repelled or at the leest reformed’

121 See Graham Nicholson, “The Act of Appeals and the English Reformation’ in Law and Government under the Tudors, ed. Claire Cross, David Loades, and J. J. Scarisbrick (1988), 19-30. The privilegium regni discussed in this article and dismissed as an invention was actually taken from a papal grant by Gregory IX to Henry III in 1231. It appeared in the Decretals as X 2.2.17; see also CPL, i. 128 and Rymer, Foedera, vol. I:1, 128; it is discussed in J. Robert Wright, The Church and the English Crown 1305-1334 (1980), 142-54, and seems in time to have fallen into desuetude.

186 13TH CENTURY TO THE ACCESSION OF ELIZABETH everything had been jettisoned, and this did not happen. Second, the civilians who

staffed and in a measure controlled the law and practice of the courts of the English church were conservative men. They were trained in the methods and assumptions of the ius commune. They had nothing else to put in its place. It was their habit to give a ‘minimalist’ interpretation to statutes affecting the law they had inherited, and they resisted proposals for wholesale change. Whether one regards the habitual conservatism of the civilians as the result of self-interest, inertia, or attachment to the rule of law, it was a fact. It restricted the changes that occurred. Third, in its attachment to most of the inherited canon law, England

was far from alone among Protestant nations. In Germany and other northern lands to which the Reformation came, large parts of the canon law were kept intact.!22 The substance of the medieval law, the papal powers being left out, con-

tinued to hold sway in many Protestant tribunals. Reformation did not entail rejection of all inherited law. Although many historians have thought the reverse, retention of the bulk of the ius commune is exactly what should be expected. It made practical sense. What inducement was there for dramatic change in most of the things the canon law dealt with—tithes or marriage and divorce, for example? The Reformation did not change the nature of tithes or the need for their collection. Nor was wholesale change in matrimonial law to be anticipated. The most momentous change to emerge from the sixteenth century was actually a product of the Council of Trent, not a new law adopted by Protestants. Few Protestants were antinomians, and in an age before legal positivism held sway, they could accept the worth of law without being overly scrupu-

lousness about its source. English civilians made their peace with apparent endorsement of the contents of the papal law books by limiting acceptance to those parts that had been ‘received’ in England. That did not violate their settled assumptions. It turned out that quite a large part of the tus commune met that condition.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP Canonical treatises written during the later Middle Ages lack the charm of novelty. Some would say they lack charm of any kind. The academic law did not change dramatically, and the world of the jurists and commentators can seem 122 See e.g. Udo Wolter, ‘Die Fortgeltung des kanonischen Rechts und die Haltung der protestantischen

Juristen zum kanonischen Recht in Deutschland bis in die Mitte des 18. Jahrhunderts’ in Canon Law in Protestant Lands, ed. R. H. Helmholz (1992), 13-48; John Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (2002), 53-85; Martin Heckel, “Die Verénderungen des kanonischen Rechts durch die Reformation und die Religionverfassung des Alten Reiches’ in Recht und Verfassung im Ubergang vom Mittelalter zur Neuzeit, ed. Hartmut Boockmann et al. (1998), 25-67, with a bibliography at end.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 187

a closed and arid place to those who regard it from outside. Academic lawyers lectured upon the same material, in much the same ways, from beginning to end. The jurists who wrote the commentaries on the ius commune apparently took pride in drawing ever finer distinctions, accumulating ever lengthier references to the opinions of fellow jurists, and compiling treatises of ever greater length. The size and initial complexity of their writing is forbidding. Perhaps it is inevitable that the contents of later medieval works should have been less well explored by historians than has canonist scholarship of the period before the appearance of the Gregorian Decretals. Prolonged immersion in the later works has seemed difficult even to contemplate. From an objective point of view, however, neglect of the later legal treatises is hard to justify. Genuine novelty is rarely a virtue in the law, and it was not encouraged by the nature of the tus commune. Modest improvements here and there and

steady expansion of existing forms of literature were what was needed. By and large, practitioners stuck with familiar sources and with familiar methods of analysis. The old tools always furnished the starting-point for legal discussion. They provided the safe and necessary reference points whenever new developments occurred. Sensible teachers may, therefore, have been quite well advised to fix their attention upon the basic sources of law. The medieval jurists were not speaking and writing for the benefit of historians. They intended their words to be useful to their successors and to the lawyers and judges who would practise in the courts. This audience looked for the fullest possible treatment of the legal issues raised in the texts. Few among them cared to advance idiosyncratic ideas. It is undeniable that some men, even some very great men, would fly from the closed

world of the jurists, in part for this reason. Erasmus did. So did Rabelais. We cannot fault them. But we cannot follow them. It would lead us far afield. And the very persistence and success of the ius commune over many centuries warns against any inclination to see its history as a steady decline. Study of the canon law and ecclesiastical jurisdiction requires an appreciation of the nature of instruction in the medieval universities. It also requires some familiarity with the scholarly traditions kept alive in their law faculties.

University Education Medieval juristic literature in the canon and Roman laws was closely linked to university education.!23 The men who wrote the standard treatises customarily 123 Helmut Coing, ‘Die juristische Fakultaét und ihr Lehrprogramm in Coing, Handbuch, i. 39-128,

at 39; Peter Weimar, ‘Die legistische Literatur und die Methode des Rechtsunterrichts der

188 13TH CENTURY TO THE ACCESSION OF ELIZABETH spent a part of their careers as teachers within a law faculty, though many of them later moved beyond. They might become bishops, administrators, or judges, but the treatises they left behind bear the marks of the schoolroom. A Lectura, one of the characteristic works of canonistic literature, would have begun its life as a lecture, and there was always a close connection between legal education and other forms of literature used in practice. More than this, virtually all the men who served as judges and advocates and judges in the English ecclesiastical courts

held university degrees. The training they received impressed certain ways of thinking upon them, ways they carried into practice. By the time of the publication of the Liber sextus, instruction in law at the two

English universities had assumed the form it would retain. The days of the Pauperistae at Oxford were finished, and university training in England conformed to the pattern of instruction in the Continental universities.!24 Until the suppression of the canon law faculty in the 1530s, legal study was divided into two separate faculties, one for Roman law, one for canon law. In the former, the texts of the Corpus iuris civilis were read; in the latter those of the Corpus iuris canonict. Perhaps because the study of the former was normally preliminary to the latter, the number of students in the civil law faculty at Oxford was usually slightly larger than the canon law faculty.!25 Despite the division and the difference in approach, little antagonism or even rivalry seems to have existed between the two faculties. For long years, they shared the same buildings, and students in the canon law faculty were given what amounted to academic credit for having attended lectures in the civil law. Before admission to the status of lecturer in the canon law faculty at Oxford, a candidate was to have heard lectures in the civil law for at least three

years.126 Many students therefore attended both faculties, and particularly towards the close of the medieval period the ideal course, tempered always by financial needs, was to take a doctorate in both laws. Glossatorenzeit’ (1969) 2 Ius commune 43-83, at 44-7; William Courtenay, Schools and Scholars in Fourteenth-Century England (1987), 37-41.

124 |. E, Boyle, ‘Canon Law before 1380’ in HUO, i. 535-7; M. B. Hackett, The Original Statutes of

Cambridge University (1970), 30-3. Not all English ecclesiastical lawyers attended Oxford or Cambridge; see R. J. Mitchell, ‘English Law Students at Bologna in the Fifteenth Century’ (1936) 51 EHR 270-87; Jonathan Woolfson, Padua and the Tudors: English Students in Italy, 1485-1603 (1998), 39-72.

125 See Alan Cobban, “Theology and Law in the Medieval Colleges of Oxford and Cambridge’ (1982-3) 65 Bull. JRUL 57-77, esp. 77; id., “Oxford’s Medieval Alumni’ (1977) 74 Past & Present 3—40, at

11. The reverse seems to have been true at Cambridge, where the canon lawyers outnumbered the civilians; id., “Medieval Alumni of the University of Cambridge’ (1989) 86 Past e& Present 9-86, at 61-3; James Brundage, ‘English-Trained Canonists in the Middle Ages: A Statistical Analysis of a Social Group in Law-Making and Law-Makers in British History, ed. Alan Harding (1980), 64-78. 126 Statuta antiqua universitatis Oxoneiensis, ed. Strickland Gibson (1931), 46, Il. 25-7. For relations between the two laws, see Domenico Maffei, ‘Dottori e studenti nel pensiero di Simone da Borsano’ (1972) 15 SG 231-49, esp. 243-4.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 189 The road to a degree in either faculty was arduous, or at any rate long. By the late fourteenth century, for example, the statutes provided that in order to become a bachelor in canon law at Cambridge, a candidate had to have heard lectures on the civil law side for three years (or five if he had not been a regent in arts), and then two years of lectures on the Gregorian Decretals and two on the Decretum.}27 If the candidate were already a monk or in priest’s orders and thereby forbidden to study the civil law by Pope Honorius III’s decretal, Super specula (X 3.50.10), he

was permitted to substitute an equivalent number of years of study of the canon law for the civil law requirement. True, one could begin as quite a young man— a boy in his mid-teens. Students might also hope to be excused by means of a formal grace from some of the requirements.!28 But to become a doctor utriusque juris, as many did, required something like twenty or twenty-three years of study. Unless they had a rich patron or came from a wealthy family, students depended upon luck, acquisition of some kind of benefice, and the papal constitution, Cum ex eo (Sext 1.6.34). The constitution permitted a dispensation from the requirement of residence in the benefices that provided students with an income. With a dispensation, students could hold an ecclesiastical benefice for up to seven years while still at a university, although many such dispensations were granted for shorter periods.}29 Still, it can come as no surprise to discover that many students studied for a time at one of the universities but left without taking a degree.13° The expenses mattered. Probably what would strike a modern university student as the most distinctive feature of medieval legal education was its dogged concentration on the texts of the laws. The lectures the students heard were not presentations of general subjects like marriage, criminal procedure, or the law of benefices organized by the lecturer. Still less did the accepted format permit lecturers to concentrate upon pet areas of scholarly interest. The lectures focused close attention upon what texts said, what they meant, and what they might imply. Each of them had first to be 127, Documents relating to the University and Colleges of Cambridge, no. 101 (1852), i. 366. At Oxford

at least, the promulgation of the canonical collections that followed the Gregorian Decretals required a slight reorganization of the curriculum in order to accommodate them; see L. E. Boyle, “Canon Law before 1380’ (above n. 124), 547. 128 See the examples given in Damian R. Leader, A History of the University of Cambridge, Vol. 1: The University to 1546 (1988), 195-7.

129 See L. E. Boyle, “The Constitution Cum ex eo of Boniface VIIT (1962) 24 Mediaeval Studies 263-302; R. N. Swanson, “Universities, Graduates and Benefices in Later Medieval England’ (1985) 105 Past & Present 28-61; Roy M. Haines, “The Operation of the Bonifacian Constitution Cum ex eo* in id., Ecclesia anglicana: (Ch. 2, n. 251), 138-55.

130 Jt has been estimated, for example, that A. E. B. Emden’s great bibliographical registers for Oxford and Cambridge before 1500 contain only between one-fifth and one-fourth of the total number of persons admitted. See Cobban, The Medieval English Universities (Ch. 2, n. 156), 212-13; Jean Dunbabin, “Careers and Vocations’ in HUO, 1. 565-605, at 568-9.

190 13TH CENTURY TO THE ACCESSION OF ELIZABETH read through verbatim. Then the glossa ordinaria was also read. The gloss would itself have repeated and expanded upon the text. Students at Oxford were obliged

to have copies of the texts, at least on loan, so that the purpose of the reading cannot have been wholly to remedy a lack of law books.!3! Students were to commit the texts to memory. An Italian master advised his students to recite the opening words of the laws they had learned each day while lying in bed at night.1!2 At Bologna, no text could be omitted, though this must have been a severe trial in covering Gratian’s Decretum.!33 Having gone through the recitation of text and

gloss, the lecturer was then directed to elucidate further the text he had read, defining difficult words, relating the text to other relevant portions of the Corpus, solving apparent inconsistencies between them, and also raising points of special interest. In other words, he was not to stray far from the laws themselves. How close was this ideal to what actually happened? A fair number of lecture

notes from Oxford and Cambridge have survived. Although it is a very small sample of what there once must have been, to the extent that the survivals are representative, the fit seems fairly close. Of course, no one who knows law teachers can

believe it was exact. However, the texts and glosses were certainly read and explained. There does seem to have been slightly more comment and more reference to other learned authorities than one would expect from the statutes. In a New College manuscript from the early fifteenth century, for example, the lecturer managed to work in references to Nicholas of Lyra, St Anselm, the Decretum, Hostiensis, the Digest, and several books of the Bible in commenting on the first title of the Decretals.!54 However, in a vital respect the spirit of the academic approach found in the university statutes was wholly respected. The lecturers did not discuss what happened

in practice before the courts. Lecturers during the seventeenth century would sometimes break this rule of exclusion, but it holds for the medieval evidence that has survived. For Roman law particularly, this meant that many things of no real relevance to practice in the courts would be covered—patria potestas for example. For canon law, many legal topics that would be important in practice were omitted because they were not in the texts. Thus in the law of defamation, the civil law of 131 Statuta antiqua (above n. 126), 43-4; see Graham Pollard, “The pecia system in the medieval universities’ in Medieval Scribes, Manuscripts ¢& Libraries: Essays Presented to N. R. Ker, ed. M. B. Parkes and Andrew Watson (1978), 145—61, at 150-1. 132 Martinus de Fano, “De regimine et modo studendi quem debent habere scolares’ in (1921) 6 Studi e memorte per la storia dell’ Universita di Bologna 25-9, at 27.

133 Coing, “Die Juristische Fakultat’ (above n. 123), 72-3. In Oxford the publication of new books of the canon law led to omission of some of the older texts and hence movement to a two-year cycle in which the entire Corpus could be included. See L. E. Boyle, “The Curriculum of the Faculty of Canon Law at Oxford in the First Half of the Fourteenth Century’ in Oxford Studies presented to Daniel Callus (= 16 Oxford Hist. Soc., (n.s.); 1964), 135-62, at 150-1. 134 New Coll., Oxford, MS. 192, fo. 12-12Vv.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 191 iniuria was the subject of a lecture, but not the Provincial constitution of 1222 that

determined the remedy available in medieval English practice.!35 The English ecclesiastical courts required that advocates and proctors intending to enter into practice spend at least a year in residence (the year of silence), and the education these men would have received demonstrates the wisdom of that requirement. The graduates coming to the courts would have had a thoroughly academic education, whether they had chosen to study Roman law or canon law. This is one reason the degree they had received made so little difference when most graduates moved into positions of responsibility in the courts. However, their long training made a difference to them. It continued to shape the ways ecclesiastical lawyers approached practical problems once they had moved

outside the classroom. They did not make arguments without the support of a specific legal text. Their views normally had always to be buttressed by respectable academic opinion. For example, when the sixteenth-century civilians wished to allow holographic wills in the face of a requirement in both laws that witnesses were to have been present at the will’s making (Cod. 6.23.31; X 3.26.10), they may well have done so because they considered wills written wholly in the testator’s hand to be reliable indications of his final wishes. But they did not take the step without a text. They found a law in the Codex allowing proof of a document whose authenticity was in dispute by comparing the hand in which it was written with known examples of the hand of the document’s purported drafter (Cod. 4.21.20(19)). The parallel with wills seemed close. The practice was known as Comparatio litterarum in the court documents of the time.!3° It was only when holographic wills were themselves sufficiently established to call for little comment that the connection with a specific civilian text, one that was lectured upon in the schools, could be forgotten. As central as they were, lectures on the Roman and canon laws did not constitute the whole of a medieval legal education. Surviving notebooks of students and professors are quite informative about the other ingredients. First, there were the repetitiones, in which particular texts could be pulled apart and expanded upon. For example, some of the repetitiones of William Todeworth have been preserved,

and in dealing with the first chapter of the title De praescriptionibus in the Decretals (X 2.26.1), he provided several definitions of the subject, and he compared canonical prescription with praescriptio longi temporis of the civil law, citing the treatment of the subject by Azo, Cyno da Pistoia, and Hostiensis.137 He went 135 e.g, late fourteenth-century lecture, probably of William Cachepole, BL, Royal MS. 9.E.viii, fo. 52v. See generally James Brundage, “From Classroom to Courtroom: Parisian Canonists and their Careers, (1997) 83 ZRG, Kan. Abt. 342-61.

136 A fuller version of the story is worked out in R. H. Helmholz, “The Origin of Holographic Wills in English Law’ (1994) 15 JLH 97-108. 137 New Coll., Oxford, MS. 179 (fourteenth century), fo. 108.

192 13TH CENTURY TO THE ACCESSION OF ELIZABETH

on to discuss the exact differences between custom and prescription in the ius commune. This treatment was thus somewhat more comprehensive than would have been called for in a regular lecture. It ventured further afield. But the difference was one of degree only. Second, there were disputationes and quaestiones.138 Different forms existed, but the essence of them all was that the disputants were required to take a legal problem and solve it as best they could. Several examples have been preserved, both from the Continent and for England.!39 In one early English quaestio it was supposed that the king of England, in returning from a pilgrimage had been taken by

the emperor and imprisoned in harsh conditions by a German bishop. Having bought his release, the king later returned and invaded the bishop’s land to recover

what he had paid in ransom; the bishop and his men took up arms in resisting, and many men were killed. In the fight, the king took the bishop prisoner and the bishop appealed to the pope to be freed. The question was whether the pope could, and should, order his release.!4° Several dubia were raised by the question, as was normal, and the plethora of citations relevant to both sides of the question must have given this student the opportunity to exhibit both his skill in legal argument and control over the literature of the ius commune that he had worked to acquire in the schools. Third, there were commonplace books and other collections of legal material compiled by students. They were expected to study the sources and the learned commentaries on their own, and at least the more industrious among them did so by putting together notebooks to record what they had learned. For example, an anonymous fourteenth-century treatise on excommunication, which made specific reference to English provincial constitutions, has been preserved among the manuscripts of New College, Oxford.141 The work was carefully done, and if brief, it none the less gives signs of effort on the part of a student compiler. Among the most frequent products of this kind of student work are the alphabetical arrangements of points of law—from Abbas to Xenodochium in a typical case.!42 Methodical collection of authorities is capable of both sophistication and 138 See e.g. GCC, MS. 42/148 (c.1400), containing nine folios and three questions or dubia dealing with the civil law; the third, for example, raised the question of whether the royal concession of a delay

of three in meeting an obligation that had been granted to a debtor could also be invoked by the debtor’s surety.

139 See e.g. Martin Bertram, ‘Der Liber quaestionum des Johannes de Deo (1248), and Emma Montanos Ferrin, ‘Las quaestiones disputatae en los estatutos universitarios medievales’ in Die Kunst der Disputation, ed. Manlio Bellomo (1997), 85-132 and 157-204; and see generally Manlio Bellomo, ‘Legere, repetere, disputare’ in Medioevo edito e inedito: I. Scholae, Universitates, Studia, ed. Manlio

Bellomo (1997), 53-96. 140 BL, Royal MS. 9.E.viii (thirteenth century), ff. 191-199. 141 New Coll., Oxford, MS. 207, ff. 127-131Vv.

142 e.g, Peterhouse, Cambridge, MS. 42. The latter word was actually written Zenodochium in the MS.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 193

comprehensiveness. Perusal of the eight-volume, double-folio work by the learned and energetic Cardinal Tuschus (d. 1620), for instance, shows the heights of usefulness to which the method could aspire. By contrast, most English examples are poor things—tributes to a perennial divergence between student ambi-

tion and student achievement. Some individual letters have very few entries recorded under them, and a few none at all. One or two authors often furnished virtually all of the authorities cited throughout many commonplace books.!43 Finally, there is the question of familiarity with the treatise literature of the ius commune. Its importance to the acquisition of legal knowledge is admitted by all, even though its merits have been open to dispute.!44 For the historian the relevant question is: How regularly or studiously did aspiring jurists consult the treatises? Much of what we wish to know is beyond recovery. The presence of books does not prove they were read. We do not even know how the availability in England of the learned commentaries from the ius commune stood in 1300. However, we do know that by the turn of the sixteenth century manuscript and printed law books were widely available in the universities, particularly in college libraries, as they were in at least some of the consistory courts. In addition to the Corpora of the Roman and canon laws, commentaries on the texts—containing the “complex and insatiable jurisprudence’ that is the hallmark of the ius commune—were present in most library catalogues from medieval colleges.!45 Many of them had come by way of gift.146 During the fifteenth century, the commentaries by Panormitanus (d. 1445 or 1453) were particularly popular at Oxford. Deservedly so, we may think.!4”7 His coverage of the Decretals is sensible, comprehensive, and clear. But he was only the best of many commentators, and the notes of students made reference to him and to the other learned writers with enough regularity to encourage an optimistic view of the work habits of law students of an earlier day. In 1500, the fullest flowering of this legal literature still lay ahead. Production of

what became standard treatises—Sanchez (d. 1610) on the law of marriage, Mascardus (d. 1588) on the law of proof, Menochius (d. 1607) on legal presumptions, Mantica (d. 1614) on last wills and testaments, and Julius Clarus (d. 1575) or Didacus Covarruvias (d. 1577) on criminal procedure—all these were in the future. 143, e.g, Lincoln Coll., Oxford, MS. Lat. 5 (fifteenth century), which seems to have been taken entirely from Gratian’s Decretum.

144 A useful survey of the literature entitles its two chapters on the period between 1350 and 1550 ‘Decline’ and ‘Mediocrity’; see J. A. Clarence Smith, Medieval Law Teachers and Writers: Civilian and

Canonist (1975), 82, 99. 145 Roman Canon Law, 57. 146 See e.g. Richard Holme (d. 1424) in BRUC, 311-12.

147 See the list of his works in Oxford Libraries in E. F. Jacob, ‘Panormitanus and the Council of Basel’ in Proc. Third International Congress of Medieval Canon Law, ed. Stephan Kuttner (1971), 205-15, at 214-15; see also Niccolo Tedeschi (Abbas Panormitanus) ei suoi Commentaria in Decretales, ed. Orazio Condorelli (2000).

194 13TH CENTURY TO THE ACCESSION OF ELIZABETH The proliferation of Decisiones, Consilia, Observationes, Singularia, and Communes

conclusiones had also not reached the point where the volumes could neither be counted nor remembered. But what there was, English ecclesiastical lawyers who had been at a university would have had the chance to know firsthand. The list of authors cited in William Lyndwood’s Provinciale, a work of the mid-fifteenth century, for example, contains all the most respected names from the ius commune.148

The Literature of the ius commune in England In published canonical scholarship, comparison with the schools and universities on the Continent makes the English universities look very much like poor cousins. As the leading student of the history of canon law’s study at Oxford put it, “[A]n

academic tradition of canon law never caught fire.149 The same is true for Cambridge, and a fortiori for scholarship in the Roman law. As a general matter, the English ecclesiastical lawyers were consumers of the commentaries on the tus commune, not producers. The relatively small group of English jurists who did write works dealing with the canon law attracted little notice among their counterparts across the English Channel, then or now. For a brief time before publication of the Gregorian Decretals in 1234, English collectors of papal decretals stood in the forefront of European development of the church’s law. But those days were gone by the mid-thirteenth century, and they did not return. What explains the meagre English contribution to the ius commune after so promising a start? It is not easy to say. Explanations have ranged from the dominance of the common law in England, the country’s distance from Bologna, the absence of secular tribunals where Roman law was used, and an allegedly “practical outlook’ that predominated among these descendants of the Anglo-Saxons. Perhaps there is something to all of them. One other factor has recently been suggested. It is plausible.!5° Most of the teachers in the English law faculties were young men, them-

selves fresh from their studies and unlikely to remain for long in the universities. There were not many of them at any one time, although the introduction of collegiate instruction in the later fifteenth century did something to augment their number.151 This means that unlike most of the Continental universities, where tradition or municipal pride led to the creation of law faculties staffed by men who spent their 148 See Provinciale, at first pages of volume. 149 Boyle, “Canon Law before 1380’ (above n. 124), 556. 150 Brian Ferme, Canon Law in Late Medieval England (1996), 16. 151 See the comments in W. A. Pantin, ‘A Medieval Treatise on Letter-Writing with Examples from the Rylands Latin MS. 394’ (1929) 13 Bull. JRUL 326-82, at 377-9; Swanson, “Universities, Graduates and Benefices’ (above n. 129), 553 Brundage, “The Cambridge Faculty of Canon Law’ (Ch. 2, n. 166), 21-45, at 28; T. A. R. Evans, “The Number, Origins and Careers of Scholars’ in HUO, ii. 519.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 195 careers as academics, Oxford and Cambridge had no real ‘professoriate. Most graduates fulfilled their duty to lecture upon receipt of the degrees that entitled them to take the professor’s cathedra, but they did not remain at the university long enough to polish their lectures to the point where they would be fit to circulate widely in

manuscript or (later) attract the attention of a printer. Adam Usk (d. 1430), for instance, spoke of himself as occupying a chair in civil law at Oxford, but it did not detain him for long.!52 England had few academic ‘stars’.!53 The situation across the Channel was often quite different. For instance, Joannes Andreae, fons et tuba 1uris, remained a professor of law from 1302 until his death in 1348.154 The admirable Bartolus taught at Pisa and Perugia for at least eighteen years

before his untimely death in 1357.455 Antonius de Butrio taught canon law in Bologna with only brief interruptions from the time he received his doctorate in 1387 to his death in 1408.!5° Before ascending higher, Panormitanus taught at Bologna, Parma, and Siena between 1411 and 1432.15” This pattern was not invariable on the Continent; some doctores moved to higher office within a few years of taking their doctorates. However, the average span of teaching seems to have been longer

on the Continent than it was in England, and this may help to explain the relative paucity of canonical works produced within the medieval English universities. For all that, there is something to record. And if the observer casts his net a little more widely, he will quickly collect examples of writers who made use of the literature of the ius commune in a variety of settings. The canon law was a normal

and important part of the intellectual world of the later Middle Ages. From a lawyer’s perspective, the most significant piece of proof were the works written by English ecclesiastical lawyers. But perhaps a lawyer’s perspective is too narrow. It may give a false impression of a quite restricted spread of canonical learning in the church. To appreciate the overall place of the canon law, it is worth taking a brief look at what was written by some of the men outside the university law faculties before looking at the works of English jurists properly speaking. An example from three groups, each taken from the four centuries touched by this chapter, suggests how ubiquitous knowledge of the canon law was. THEOLOGIANS AND CONTROVERSIALISTS

For the thirteenth century, there is no better example of knowledge and occasional use of the canon law outside the courts than the work of the great Robert Grosseteste,

152 Chronicle of Adam Usk (above n. 105), 250-1.

153 Compare Helmut Walther, “Learned Jurists and their Profit for Society’ in Universities and Schooling in Medieval Society, ed. William Courtenay and Jiirgen Miethke (2000), 100-26. 154 Von Schulte, Geschichte, 11. 208-9. 155 Smith, Medieval Law Teachers (above n. 144), 81-2.

156 Von Schulte, Geschichte, ii. 289-91. 157 Van Hove, Prolegomena, 497.

196 13TH CENTURY TO THE ACCESSION OF ELIZABETH scholar and bishop of Lincoln from 1235 to his death in 1253.!58 Apart from his impressive achievements as a scholar, Grosseteste was an active participant in the issues of the day. He did not hesitate to favour kings, popes, and archbishops with advice of a disconcerting candour. In it, he called upon the Scriptures to show the

truth of his positions more than he did anything else. But he also made use of the canon law. Where the independence of the church was at issue, he could and did cite the Decretum and the Liber extra in support of his position.159 Where a question of ecclesiastical administration came before him, he could and did cite the canons to show the necessity of acting with prudence and authority.!© Where they became relevant, he could and did cite the provincial constitutions of the English church.!© Grosseteste was no academic lawyer. Biblical theology was his long suit. References to the Bible in his letters far outnumber those to the ius commune. But he knew enough about the canon law to call upon it for support. Perhaps he had help. There would have been canonists in his familia. But the canon law was not something he wished to ignore.

The career of John Baconthorpe (d. 1346), teacher of theology at Paris, Cambridge, and Oxford, Provincial of the Carmelite order in England between 1329 and 1333, and famous in the history of scholastic thought as doctor resolutus, presents a second, though slightly different, example of the significant place occu-

pied by the canon law outside juristic circles. Baconthorpe always regarded himself as a theologian, not a lawyer. And that is surely what he was; his extensive works are academic treatises on theological topics. However, he had also studied

law as a young man,!©2 and when one looks at all closely, references to legal sources in his writing pop up regularly. For example, in his commentary on the Sentences, he discussed the effect of sentences of excommunication, making reference to the basic legal texts on the subject, and also to works by Huguccio, Geoffrey of Trani, Joannes Andreae, and Joannes Monachus, all of them canonists.1®

In discussing the nature of God’s power, by contrast, he made use exclusively of the Bible and works by theologians. This kind of dual usage, according to the subject being treated, is not an isolated example, and Baconthorpe thus stands out both as something like a ‘throw-back to the days before the separation of law from theology. To him there was no inconsistency between commenting on a theological 158 R, W. Southern, Robert Grosseteste. The Growth of an English Mind in Medieval Europe (1986); Robert Grosseteste: Scholar and Bishop, ed. D. A. Callus (1955); Joseph Goering, “Robert Grosseteste at the Papal Curia in A Distinct Voice: Medieval Studies in Honor of Leonard E. Boyle, O.P., ed. Jacqueline Brown and William Stoneman (1997), 253-71. 159 e.g, Roberti Grosseteste Epistolae, ed. R. R. Luard (= 25 RS; 1861), 78 (X 4.17.6), 228 (C. 2 q. 11.1). 160 ibid. 107 (Dist. 83 c. 3), 189 (C.1q. 6c. 3).

161 ibid. 265 (Council of Oxford, 1222), 288 (same). 162 BRUO, 1. 88-9; BRUC, 669-70. 163 John Baconthorpe, Super IV sententiarum, ad IV.17.2.1 (1485), fo. 120v; compare his reference to Aquinas, Peter Lombard, and Duns Scotus in talking about the theological question: ibid., ad IV.17.1.2.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 197 work and taking up subjects like the powers of ecclesiastical judges or the forms of canonical elections, referring to the literature of the ius commune in his discussion of them. His work is a reminder that the canon law had a place in the thought of the clergy outside law faculties and ecclesiastical courts.1%4 A quite different example comes from the writing of the fifteenth-century con-

troversialist, Reginald Pecock (d. c1460).1° Best known as the author of The Repressor of Over Much Blaming of the Clergy, which contained lengthy answers to the attacks on the church being made by the Lollards, Pecock rose to become bishop successively of St Asaph and Chichester. After a strong beginning, his career and his life ended sadly. In 1457 he was accused of heresy, required to abjure the opinions expressed in his writings, and induced to resign his see. He spent the (short) remainder of his life “detruded’ in a simple cell at Thorney Abbey, deprived of all writing

material and any except devotional books. Asking what Pecock knew about the canon law, one might expect him to have learned something about the practical side of canon law as a bishop, but not much about its academic side. His academic career had all been in Arts and Divinity; he took his BD at Oxford in 1425 and his DD in 1450. But when one looks directly at The Repressor, one quickly finds that the academic canon law had a place in it. Pecock expressed definite views about the correct place (albeit a restricted one) of the canon law in academic study. More than once he cited relevant texts from Gratian’s Decretum and the Gregorian Decretals in scoring points against the Lollards, and he was familiar enough with the contents of the Corpus turis canonici to know that it contained seemingly contradictory texts on the legal status of testaments made by clerics.1°© Despite his informed views on many legal subjects,!©7 no one would call him a jurist. He called upon the ius commune much less frequently than Baconthorpe. But he could, and he did, call upon it when he wished. That is the point. During the fifteenth century a familiarity with basic features of the 1us commune was not an exceptional accomplishment.

The usefulness of knowledge of the canon law took a different turn in the sixteenth century. It played a part in controversy between Protestants and Catholics.

Of this, John Jewel (d. 1571), apologist of the reformed Church of England and 164 For further examples and fuller discussion, see Walter Ullmann, ‘John Baconthorpe as a Canonist’

in: Church and Government, 223-46. His theological contributions are surveyed in P. Chrysogone, ‘Maitre Jean Baconthorp. Les sources. La doctrine. Les disciples’ (1932) 34 Revue neo-scolastique de philosophie 341-65. A similar example, whose use of the canon and Roman laws would repay study, is John Bromyard (d. c.1352). His Summa praedicantium (1486) abounds in citations to both laws, alongside theological sources. See BRUO, i. 278. 165 FE, FE, Jacob, “Reynold Pecock, Bishop of Chichester’ in id., Essays in Later Medieval History (1968), 1-34. 166 Reginald Pecock, The Repressor of Over Much Blaming of the Clergy, pt. 1, ch. 7, pt. 3, ch. 12, pt. 3,

ch. 19, ed. C. Babington (=19 RS; 1860), i. 33-4, il. 354-9, 407-9. 167 See Norman Doe, Fundamental Authority in Late Medieval English Law (1990), 17-18, 60-3, 92—4.

198 13TH CENTURY TO THE ACCESSION OF ELIZABETH

bishop of Salisbury, provides a good example, although one from just slightly outside the period covered by this chapter. Like the others, Jewel had no specifically

legal training. He was a theologian, an Oxford BD (1552) and DD (1565).168 However, in his long controversy with Thomas Harding, he evinced a learning in the tus commune that appears not much inferior to a professional civilian of his time.!©° His work all but strains to convey that impression. He used the tus commune with apparent facility. It is true that, like most controversialists, Jewel cited the canon law to his own purposes. Where he found texts and commentaries in the learned laws apparently recognizing the lawfulness of Protestant practices, such as freedom of the clergy to marry recognized in the Decretum, he endorsed them.!”° Where he found commentators making what he regarded as exaggerated claims for papal power, such as the assertion that the pope and the cardinals could take

money for conferring benefices without committing simony, he poured scorn upon them.!7! Where he found inconsistencies between the historical record and contemporary Catholic views, such as the canon law’s acceptance of Roman legislation that regulated many aspects of the Christian religion, he exploited the seeming weakness in his opponent’s position.!72 Jewel’s opponent, Thomas Harding (d. 1572), answered him in kind. Most modern historians have lost patience with

exploring the immense learning in the literature from the church’s past that Reformation controversialists possessed in abundance. Reading through any considerable amount of it makes it easy to understand the modern reaction. Repetition of the same points and exaggerated invective make for heavy going. Jewel’s exam-

ple is none the less a reminder of the importance contemporaries saw in such learning and also of the canon law’s natural place in the controversies of the day. ECCLESIASTICAL ADMINISTRATORS AND DIGNITARIES

The number of theologians and religious controversialists in medieval England must always have been dwarfed by the total number of men in holy orders. We can never know a great deal about the training common among clerics who had not studied at 168 See generally W. M. Southgate, John Jewel and the Problem of Doctrinal Authority (1962); J. E. Booty, John Jewel as Apologist of the Church of England (1963). 169 See The Works of John Jewel, D.D. Bishop of Salisbury, ed. Richard Jelf (1848), 1. xxxiii—lxvi for a list

of those authors he cited. It is possible that some of his citations were second-hand, i.e., taken from references in other works; see Neil Ker, “The Library of John Jewel’ (1977) 9 Bodleian Library Record 256-65, at 258-61, listing, apart from the basic canonical texts, many works by Andreas Tiraquellus (d. 1558).

170 “The Defence of the Apology of the Church of England’ in Works, iv. 554-8, citing Dist. 37 c. 5 and Dist. 56 c. 2. 171 Works, vi. 152-60, citing commentaries by Hostiensis, Panormitanus, Joannes Andreae, Felinus Sandeus, Baldus, and Bartolus. The specific point of controversy between Jewel and Harding was a passage in the Summa angelica. 172, Works, vi. 435-42, citing many texts from the Codex and Novels and X 2.7.1 and commentators,

including Cardinal Zabarella, on that decretal of Honorius III.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 199 a university, but we can know enough about the background of the upper clerical ranks, to which university graduates naturally aspired, to ask how widespread knowledge of the canon law was among the leaders of the church. Something has been done along these lines, but the inquiry has usually been stated in a different way. It has begun with a common complaint of the time: that men were being drawn away from the arts and theology faculties by a desire for worldly advancement. A law degree offered a road to riches and prominence. To the extent that the complaint is true, the positive side (from a lawyer’s point of view) must be that training in the us commune would have been widely dispersed among the leaders of church and nation. Was it in fact? Not enough research has yet been done to be sure, but soundings have been taken. They do not show the complaints were false. They show they were true. University degrees in law were relatively common among the clerical elite, usually more common than degrees in theology or the arts. Of the seventeen clerical occupants of the office of lord chancellor during the fifteenth century, nine were graduates in law, three were theologians. The king’s secretary, keeper of the signet, was also customarily a graduate in law, and civilians came to dominate the equity side of Chancery during the second half of the fifteenth century.!73 The ranks of the episcopate also contained many lawyers. According to one survey, of the 112 English graduates from the higher faculties at Oxford and Cambridge who were appointed to episcopal sees during the fifteenth century, lawyers outnumbered theologians by a margin of seventy-six to forty-three.!”4 On any count, a large percentage of the diocesan bishops had studied law. The same characteristic appears a little lower down the clerical ladder. Of the 110 men who held dignities in Salisbury Cathedral during the fifteenth century (deans, archdeacons, and canons), sixty-two held degrees in law.!75 Nineteen of the thirty-four residentiary canons of York Minster during the fifteenth century were also graduates in law; only three of their number were graduates in theology.!76 Of 173 J, Otway-Ruthven, The King’s Secretary and the Signet Office in the XV Century (1939), 76-88, 153-55; Mark Beilby, ‘The Profits of Expertise: The Rise of the Civil Lawyers and Chancery Equity’ in Profit, Piety and the Professions in Later Medieval England, ed. Michael Hicks (1990), 72-90. 174 'T. H. Aston, G. D. Duncan, and T. A. R. Evans, “The Medieval Alumni of the University of Cambridge’ (1980) 86 Past ¢& Present 9-86, at 70. See also for the period 1216 to 1499, T. Aston, ‘Oxford’s

Medieval Alumni’ (1977) 74 Past & Present 3-40, at 28. But cf. Joel Rosenthal, The Training of an Elite Group: English Bishops in the Fifteenth Century (1970), 14, which puts the two about equal. 175 Le Neve, Fasti Ecclesiae Anglicanae 1300-1541, III, Salisbury Diocese, comp. Joyce M. Horn (1962),

3-20, suppl. with corrections from Fasti, XII (1967). Thirty men are not listed with a degree; there were

ten theologians and six listed as MA. Neither prebendaries nor those who were given provisions to benefices but apparently did not enter into possession have been included. 176 Barry Dobson, “The Residentiary Canons of York in the fifteenth century’ (1979) 30 JEH 145-74, at 174. See also D. N. Lepine, “The Origins and Careers of the Canons of Exeter Cathedral 1300-1455’ in Religious Belief and Ecclesiastical Careers in Late Medieval England, ed. Christopher Harper-Bill (1991), 102, showing 30% of the canons having a first degree in law, 23% a doctorate.

200 13TH CENTURY TO THE ACCESSION OF ELIZABETH the approximately 500 graduates presented to benefices in the diocese of Lincoln between 1495 and 1520 whose degrees can be traced, 216 had taken a degree in canon law, civil law, or both; only sixty-six of them held degrees in theology.!7” Not too much should be claimed for these figures, intriguing as they may be to consider and laborious as they certainly are to collect. Except at the very top of the scale, ‘unknowr is an all too frequent entry beside the name of a man whose academic background is being sought. What the figures do establish, however, is that knowledge of the ius commune was not limited to a small group of professional ecclesiastical lawyers. Men who had studied law would have been present in every

cathedral close and many parish churches throughout the kingdom. In the medieval centuries, monks were also sent to the universities by their houses to study law, not just theology.!”8 The principal duties of all these graduates might not have been legal ones, but their legal training would not necessarily have been wholly irrelevant to their careers. For instance, the duties of any curate would have brought him in touch with legal process to an extent difficult to imagine today. He

would have executed orders from the consistory courts. He would have had occasion to refer to the canons in the penitential forum, and he would have been required to read provincial constitutions from the pulpit. His own conduct of parochial business would have been directed by the church’s law. One of the most popular books among the parochial clergy, and one of the very few canon law works printed in England, was the Manipulus curatorum, written by a Spanish jurist in the first half of the fourteenth century. An elementary work of canon law, it was well suited for the needs of a parish, and its contents would have been well within the ken of many incumbents. ENGLISH CIVILIANS AND CANONISTS

Against the background of widespread familiarity with the ius commune, it is doubly striking that the English universities produced so few canonists and civilians of note during the Middle Ages. Apart from giving a partial explanation for this absence already suggested, the historian can only describe briefly what professional

canonical learning there was in fact, providing references to fuller studies and attempting to relate it to the wider history of the ius commune. There is no lack for material, even setting to one side the formulary books to be surveyed briefly in the next chapter. That material may not reach the first rank in scholarship, but the material existed. Each century produced something worthy of description. 177 Margaret Bowker, The Secular Clergy in the Diocese of Lincoln 1492-1520 (1968), 45. There were

110 men presented who were described as magistri, but without note of specific degree. At the same time, there were 1,168 persons presented without degrees. 178 See Joan Greatrex, ‘Monk Students from Norwich Cathedral Priory at Oxford and Cambridge, C.1300 to 1530’ (1991) 106 EHR 555-83, esp. 555, 562, 580-1.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 201

For the thirteenth century, two works written for the penitential forum stand out. One is by Thomas of Flamborough (d. c.1224), the other by Thomas of Chobham (d. ¢.1235).179 These Summae confessorum were compilations combining

law and practical theology, designed for use in administering the sacrament of penance. Directing the clergy about what to ask penitents and how to deal with likely responses, the Summae omitted most complexities in the canon law and studiously avoided rehearsing the lengthy disputes of the jurists. As such, they were useful in practice, even if they did not do full justice to the potentialities inherent

in the canon law. Many were written on the Continent over the course of the Middle Ages, the most famous being those of Raymond of Penaforte and John of Freiburg.!8° But the two English exemplars were not without merit. The first was enlivened by snatches of dialogue between priest and penitent; the second by a ‘priest’s eye’ view of the law made by the great men of the church. English writers also contributed to producing another of the most common juristic works of the period, the ordo iudiciarius. Most distinguished of these, also the author of glosses on the papal decretals, was Ricardus Anglicus (d. 1242).18! He taught at Bologna, however, and perhaps his name should not be found in a proper English list. When he returned to England it was to take up a conventional clerical career. At

this he succeeded. He died as bishop of Durham. The other, William of Drogheda (d. 1245), attracted Maitland’s notice,!82 and closer to his own time, also that of Joannes Andreae (d. 1348).!83 William’s only surviving work, the Summa aurea, has come down to us only in part. Compared with other works of this genre, it is most notable for its ‘practical’ outlook. Although he taught law at Oxford and filled his work with citations to Roman and (to a lesser extent) canon law, he also included forms for use in bringing cases, advice on how to avoid pitfalls commonly encountered in litigation, and even tips on ways of avoiding intervention by the king’s courts.

The record of the fourteenth century is a little better than that of the thirteenth, although even its foremost student does not claim much for its contribution to

the wider history of the canon law.!84 Three figures are worthy of particular 179 Both have been printed in recent editions: Thomae de Chobham Summa Confessorum, ed. F. Broomfield (Louvain and Paris, 1968); and Robert of Flamborough, Liber Poenitentialis: A Critical Edition with Introduction and Notes, ed. J. J. Francis Firth (1971). 180 See Von Schulte, Geschichte, 11. 527-36.

181 The work is printed in Wahrmund, Quellen, iii. pt. 3. 182 Roman Canon Law, 107-16. See also F. de Zulueta, “William of Drogheda’ in Mélanges de droit Romain dédiés a Georges Cornil (1926), 641-57; Boyle, ‘Canon Law before 1380’ (above n. 124), at 538-9, where he is described as ‘the only literary light of the faculty of civil law in the middle ages’. The Summa

aurea is printed in Wahrmund, Quellen, iii. pt. 2. 183 Von Schulte, Geschichte, 1. 552-3. 184 See Boyle, ‘Canon Law before 1380’ (above n. 124), 557, taking note that the output of neither the canon nor Roman law faculties at Oxford ‘amounted to much academically in the middle ages’ See also C. T. Allmand, “The Civil Lawyers’ in Profession, Vocation and Culture in Later Medieval England, ed. Cecil Clough (1982), 155-80, at 163-6.

202 13TH CENTURY TO THE ACCESSION OF ELIZABETH note: William of Pagula (d. c.1332), John Ayton (d. ¢1349), and Thomas Fastolf (d. 1361). Pagula, also known as Paull because of the place in Yorkshire from which he originally came, was probably an Oxford DCnL and became vicar of Winkfield in the diocese of Salisbury.185 It is instructive that he advanced no further in the clerical ranks. All his works can be connected to the duties of the incumbent of a parish church, and it is a legitimate speculation to suppose he wished to remain where he was.186 He wrote several works: a Summa summarum, a lengthy compendium of the canon law taken from the works of other canonists; an Oculus sacerdotis, a pract-

ical handbook meant to be used by parish priests in carrying out their duties; a Speculum praelatorum, an ambitious attempt to take those parts of the first two that were relevant for the work of prelates and add to it; and also the so-called Speculum Regis Edwardi tertii, an expanded version of William’s letter of complaint about the plight of his people in the face of demands for purveyance by the king’s commissioners.!87 Only the last of these has been printed, but several manuscript copies of the others have survived. All of them are particularly notable for Pagula’s incorporation of English synodal and provincial legislation, the work of theologians, and even provisions from Magna Carta. He cast a wide net; what he produced was more than the simple copying of the works of others his titles may suggest. To John Ayton, or Acton as the name is sometimes written, several canonistic

works have been attributed, but he is best known for his gloss to the legatine constitutions of Cardinals Otho and Ottobuono.'88 It was this gloss that was later included in editions of William Lyndwood’s Provinciale. Probably because it is inferior to Lyndwood’s own compilation and gloss in system, length, and completeness, Ayton’s reputation has suffered.!89 It is not clear that this is fair. The idea of providing a commentary to provincial constitutions was not a common one in the fourteenth century. It would be incautious to suppose that Ayton thought of it himself, for other examples can be found.!9° However, there are points where his work commands respect. He was conscious of the need to balance the claims of local statutes and customs with the general law of the church.!%! His citations 185 On his writing and career, see L. E. Boyle, “The Oculus sacerdotis and some other Works of William of Pagula, and “The Summa summarum and some other English works of Canon law, both printed in the author’s Pastoral Care, Clerical Education and Canon Law, 1200-1400 (1981). See also Pantin, The English Church (above n. 102), 195-202, and J. H. Baker, Monuments of Endlesse Labours: English Canonists and their Work 1300-1900 (1998), 9-15.

186 He stated his wish that they be ‘ad proficuum et utilitatem pauperum clericorum’ who lacked the fuller treatments of canon law; see HEHL, MS. E1 9/H/3, fo. 1Vv. 187 De Speculo Regis Edwardi, ed. Joseph Moisant (1891), attributed to Simon Islep. The attribution to Pagula is probable but not proven; see Boyle, “The Oculus sacerdotis (above n. 185), 107-8.

188 See Baker, Monuments (above n. 185), 29-42. 189 e.g, Roman Canon Law, 7-8 190 e.g, Franciscus Romaguera, Constitutiones synodales diocesis Gerundensium, |st edn (Barcelona 1512). The edition printed in Gerona in 1691 has been used here. 191 e.g, John Ayton, Constitutiones, 64, s.v. consuetudinem regionis.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 203 included not only the familiar and prominent jurists, but also the Bible, Aristotle, Ambrose, Boethius, Horace, and even Gerald of Wales.192 He recognized both the difficulties and possibilities of dealing effectively with royal writs of prohibition under the canon law.!93 He was able to provide a colourable explanation for the English custom of admitting criminals to sanctuary who would not have been admitted under the formal canon law.!9%4 Ayton and his gloss await a more careful examination than they have received so far.

Fastolf’s contribution to the literature of the ius commune is of a different order, and the assertion that it was Fastolf who took the forward step in question is admittedly speculative. Baker, who brought the possibility to light, finds it equally plausible that William Bateman, bishop of Norwich from 1344 to 1355 and

founder of Trinity Hall in Cambridge, might be given the credit for the start of

reporting the decisions of the papal Court of Audience known as the Rota Romana.'%> In any event, these Decisiones were first collected while Fastolf, a native of East Anglia and probably a graduate of Cambridge, was one of the English auditors at the Rota in the 1340s.!9° The first printed editions name Fastolf as the reporter. Reporting what individual courts had done was a novelty within the traditions of the ius commune, although it was quite firmly established in the English year books. The possibility, therefore, is that these influential Decisiones, which have a continuous history thereafter and led to the collection of similar Decisiones from other courts, may have drawn their inspiration from the English example, one known to Fastolf and several of the fellow Englishmen serving as auditors at the Rota during the fourteenth century. The considerable difference between the lively give and take of the year books and the more academic

presentation of cases in the Decisiones does not in itself make the connection improbable. If these three men were the most notable English jurists, they also had lesser company. Manuscript copies of lectures, repetitions, and other treatments of the

192 ibid. 41-2, s.v. contagium. 193 ibid. 40, s.v. applicentur. 194 ibid. 102, s.v. ut etiam reos sanguinis. 195 J, H. Baker, “Dr Thomas Fastolf and the History of Law Reporting’ (1986) 45 CL] 84-96; see also

Gero Dolezalek and K. W. Norr, ‘Die Rechtsprechungssamlungen der mittelalterlichen Rota’ in Coing, Handbuch, i. 849-56; A. Fliniaux, “Contribution a histoire des sources de droit canonique: Les anciennes collections des Decisiones Rotae (1925) 4 RHD (4th ser.) 61-93, 382-410; Angela Santangelo Cordani, La giurisprudenza della Rota Romana nel secolo XIV (2001), 34-8. 196 See Gero Dolezalek, “Quaestiones motae in Rota: Richterliche Beratungsnotizen aus dem vierzehten Jahrhundert’ in Proc. Fifth International Congress of Medieval Canon Law, ed. Stephan Kuttner and Kenneth Pennington (1980), 99-114. See also HFCL, MS. O.4.xv, described as “‘Quaestiones motae

in Rota’ including cases of English provenance from the mid-fourteenth century. On the latter, see Gero Dolezalek, “Legal Practice at the Rota in Avignon at the Time of Bishop Bateman’, Trinity Hall 2000: Legal Education and Learning (2000), 51-7.

204 13TH CENTURY TO THE ACCESSION OF ELIZABETH canon law have survived.!97 Walter of Elveden (d. 1360) wrote a compilation of points of law based upon the Liber sextus and perhaps also an introductory work on the study of the canon law.!9§ Simon of Boraston (fl. 1338) put together a Compilatio de ordine tudiciario.199 Quite a few works meant for instruction of the parochial clergy, all incorporating parts of the canon law, were also compiled.? For instance, in 1384 John de Burgh, chancellor of Cambridge University, pro-

duced a pastoral manual called Pupilla oculi. It was intended to improve on Pagula’s Oculus sacerdotis, and was successful enough to be printed in 1510.29!

Ranulf Higden (d. 1346), a monk of Chester and best known as the author of the Polychronicon, compiled a Speculum curatorum of which several manuscript copies have survived. It made use of the canon law. An anonymous Cilium oculi

was compiled at some point during the century, drawing heavily upon the Gregorian Decretals and intended to state the basic law relevant to running a parish. John Mirk’s vernacular verse Instructions for Parish Priests conveyed large amounts of canon law in easily palatable form, and it was only one of several such efforts.?°2

Despite their intention to deal with practical problems facing the parochial clergy, these works possessed a markedly academic, but simplified, character. They were not wholly unlike modern ‘nutshells’ of the law. In dealing with blasphemy, for example, Higden’s work stated the very general definitions of blasphemy that

had been given by St Ambrose and St Augustine, but he provided no concrete examples and he said nothing more detailed about how a curate was to deal with what must have been a frequent problem.2°3 The law on the subject was complex and filled with fine distinctions that might have been carried into practice. Higden did not take his readers very far. He gave the general definitions and left it at that. 197 e.g. BL, Royal MS. 9.E.vii, including lectures by Walter Cachepole, Roger de Hatfield, Thomas Stowe, John de Lyngfield, and sixteen others. Cachepole was the principal jurist represented. A useful Ph.D. dissertation has been written on the subject: Christine Lutgens, “The Canonists of B.L. MS. Royal 9.E.VIT and Canon Law in England in the Fourteenth Century’ (Univ. of Toronto, 1979). 198 BRUC, 210; Peterhouse Coll., Cambridge, MS. 42. 199 See BRUO, i. 221; Von Schulte, Geschichte, i1. 237; Stephen Forte, “Simon of Boraston, O.P. Life and Writings’ (1952) 22 Archivum Fratrum Praedicatorum 321-45, esp. 325-30.

200 The best overall guide is Pantin, The English Church (above n. 102), 189-219. See also C. H. Lawrence, “The English Parish and its Clergy in the Thirteenth Century’ in The Medieval World, ed. Peter Linehan and Janet Nelson (2001), 648-70, at 664—6; Roy Haines, ‘A York Priest’s Notebook’ in id. Ecclesia anglicana (above n. 129), 156-79, at 160-2. 201 On Burgh, see Davis, “The Canon Law in England’ (above n. 41), 127-30. 202 John Mirk’s Instructions for Parish Priests, ed. Gillis Kristensson (1974); see also his Latin work containing more explicit reference to the law: James Girsch, ‘An Edition with Commentary of John Mirk’s “Manuale sacerdotis” ’ (University of Toronto Ph. D. Diss. 1990). For a published discussion, see

H. G. Pfander, “Some Medieval Manuals of Religious Instruction in England and Observations on Chaucer’s Parson’s Tale’ (1936) 35 Jnl English and German Philology 243-58. 203 “Speculum curatorum, Library of Univ. of Illinois, Urbana, MS. 251 H 53s, pp. 165-6.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP 205 However, to suggest this as a shortcoming perhaps mistakes his purpose. These works summed up the basic points of much more complicated learning found in the works of the canonists. Whatever their merits, enough of them were written, enough contemporary references to them exist, and enough copies have survived to encourage the belief that they were used. To all appearances, they were more than shows of acquaintance with the relevant canon law.?°4 The history of canonical scholarship in fifteenth-century England is dominated by the figure of William Lyndwood (d. 1446). He had an outstanding career. He served as dean of the Court of Arches, accumulated many English benefices, and died as bishop of St David’s. Of all the later medieval English writers on the ius commune, he alone acquired a lasting European reputation.” Yet in one sense the focus of his life and work was provincial. His great work, the Provinciale, was a

collection of and a gloss upon the principal constitutions of the province of Canterbury. He took the constitutions, selected the most important of them, arranged them roughly in the order of the books and titles of the Decretals, and provided a running commentary on their meaning. It became their glossa ordinaria. And because the constitutions continued to govern many aspects of practice in the English ecclesiastical courts after the Reformation, Lyndwood’s work long remained central to the work of ecclesiastical lawyers, at least up until the time this volume ends and probably well beyond. The Provinciale was many times reprinted. Despite its title, Lyndwood’s work was far from provincial in outlook. As an excellent study of the Provinciale has shown, his great effort was to show the congruence between the general canon law and the English constitutions.2°° He strove to prove that provincial constitutions that seemed at first sight to be at odds with the texts of the Corpus 1uris canonici were actually quite consistent with legitimate readings of the law of the church.2°7 Whatever one thinks of his success, his was a signal accomplishment. Not only did Lyndwood long continue to supply the widely accepted meaning that was put upon the constitutions and a detailed commentary on their role in the courts, he also brought a semblance of harmony from what sometimes looked very like dissonance.?°8

204 See e.g. the list of books from Southwell parish (1369) in Visitations and Memorials of Southwell Minster, ed. A. F. Leach (= 48 Camden Soc. (n.s.); 1891), 197—8. 205 The famous treatise, De synodo dioecesana, written by Prosper Lambertini (d. 1758), who became Pope Benedict XIV, cited Lyndwood four times. See Rome edn of 1755, pp. 4, 60, 244, 236. 206 See Ferme, Canon Law (above n. 150).

207 See e.g. Provinciale, 160, s.v. laicis quovismodo, reconciling Archbishop Stratford’s constitution forbidding tithe farming to laymen with a papal decretal (X 3.18.2) apparently allowing it. 208 ibid. 141; the phrase is borrowed from Gratian; see Stephan Kuttner, The History of Ideas and Doctrines of Canon Law in the Middle Ages (1980), no. 1.

206 13TH CENTURY TO THE ACCESSION OF ELIZABETH Lyndwood’s prominence has pushed lesser canonists from the fifteenth and early sixteenth centuries into the shade. Perhaps this is just, but they should not be kept entirely out of sight. Robert Finingham (d. 1460), a Norwich Franciscan and prolific defender of his order, wrote several treatises dealing with parts of the canon law.299 William Haryngton (d. 1524), law student at Oxford and Bologna before pursuing a conventional ecclesiastical career, wrote a summary of the church’s law of marriage.?!° Robert Heete (d. 1428), fellow of New College, Oxford, and probable author of a short life of William of Wykeham, was author of at least part of a

set of lectures on the first and fifth book of the Decretals. He also compiled a Brocarda turts.2!1 Short, anonymous works dealing with particular aspects on the church’s law were compiled. Some formularies used in court practice contained regular reference to learned authorities from the ius commune, and contemporary library catalogues list other works about the law of the church, although mostly anonymous, that very likely came from English pens.?!2 Henry VII’s divorce from Catherine of Aragon also stimulated academic treatments of the status of their marriage under the law of the church.?!3 Writing within the traditions of the ius commune did not, therefore, disappear from English shores. All the same, neither the extent nor the quality of the work is impressive when compared with the output of the same period from Italy, France, Germany, and Spain. Little of the English literature ever attracted the interest of sixteenth-century printers. Dipping into its contents will not persuade most observers that the printers made a serious mistake.

ECCLESIASTICAL JURISDICTION By the end of the thirteenth century, the organization of ecclesiastical jurisdiction had assumed the shape it would retain until the close of the period covered by this volume. In theory, it was an ordered system. High and low, the courts were governed 209 Von Schulte, Geschichte, ii. 454; John Bale, Index Britanniae Scriptorum (1902 edn), 371. 210 The Commendacions of Matrymony (1513). 211 See DNB, ix. 365-6; HUO, i. 548 n. 2. See also BL, Royal MS. 11.B.xi, a treatment of the correct interpretation of Sext 3.20.1, apparently by John Bell (d. 1556) and John Allen (d. 1534). See also New

Coll., Oxford, MS. 192, ff. 12, 65v, incorporating references to the privileges of the English king and making reference to John of Ayton’s work. 212 See TCD, MS. 278, ff. 204-300 (fifteenth century; a general collection on the tus commune); N. R. Ker, “Patrick Young’s Catalogue of the Manuscripts of Lichfield Cathedral’ (1950) 2 Mediaeval and Renaissance Studies 151-67, esp. nos. 63, 67, 75; Ireatise on provisions, Corpus Christi Coll. Oxford, MS. 72,

ff. 85-91, described in Barraclough, “Praxis Beneficiorum’ (above n. 99), 117-18; work seemingly on Gratian’s Decretum by Thomas Chillenden (d. 1411), is noted in E. E. Jacob, “Notanda quaedam de iure canonico inter Anglos praesertim inter Oxonienses saec. XV’ in Acta Congressus turidici internationalis... 1934 (1935), il. 470-81, at 477.

213 e.g, “Cranmer’s Book’ in Records of the Reformation: The Divorce 1527-1533, ed. Nicholas Pocock (1870), 1. 334-99; ‘Advocate’s Answers’ in ibid. 11. 217-27; Guy Bedouelle and Patrick Le Gal, Le ‘Divorce’ du roi Henry VIII: Etudes et documents (1987).

ECCLESIASTICAL JURISDICTION 207 by the same procedural law, and a system of appeals existed to secure a measure of conformity from one consistory court to another. Titles in the Gregorian Decretals and the Liber sextus defined the jurisdiction of the spiritual courts, both as against secular jurisdiction and among competing authorities within the church itself. Long titles regulated correct forms of proof and also procedural questions—matters like the scope of res judicata or the place of judicial oaths in the courts. Other decretals defined the duties and powers of judges and lawyers. The word ‘system’ is not out of place. This uniformity, real as it was, should not hide the variations that existed and

the changes that occurred during this period. Much of it came from without, effected either by act of Parliament or by judicial decision in the royal courts. The English common law became more restrictive in its allowance of jurisdiction to the ecclesiastical courts from the last years of the fifteenth century onwards, and

the Protestant Reformation cut off the possibilities of recourse to the papacy. Moreover, disparities of usages had always existed among the several courts where ecclesiastical law was applied. Internal disputes about which courts properly held competence over specific kinds of litigation could not be avoided. The notion that

a stylus curiae might legitimately set one court apart from another was widely held. Ecclesiastical jurisdiction was not everywhere identical, although the participants would not have thought themselves estranged from one another by any fundamental disagreements. The Ecclesiastical Courts

Some of the courts of the medieval church were impressive by any standard. They were staffed by experienced advocates and proctors, presided over by judges with training in both Roman and canon laws, and administered by qual-

ified subordinate officials with legal expertise and demarcated spheres of responsibility. Other courts—the local chapters of rural deans and those attached to cathedral prebends being the most notable—possessed none of the trappings of legal sophistication, except that most of them did keep records. These lesser courts normally exercised only ex officio jurisdiction, rarely had lawyers serving in them, and might even have a presiding judge who had only ‘on the job’ legal training. They were hard to remove. The church embraced the principle that custom could be the legitimate source of legal jurisdiction and it adopted the system of praeventio, a method for determining jurisdiction by priority in time of the itis contestatio, in order to settle disputes about competence over individual cases.?!4 This prevented the elimination of many lesser courts. 214 See e.g. gl. ord. ad X 2.2.13, s.v. in tua.

208 13TH CENTURY TO THE ACCESSION OF ELIZABETH

It meant that disparity and dispute within the system outlasted the creation of the classical canon law. THE PAPAL COURTS

In the church’s legal system, authoritative judgments were made at the top. During the Middle Ages that top was the papal court, or rather courts, since by the

mid-fourteenth century more than one established tribunal dealt with the many petitions and disputes that came before the apostolic see. Ways were sought to moderate the inconveniences caused by appeals to Rome in small matters. For example, appeals in criminal causes were restricted.2!5 The popes themselves sought to restrain appeals by adding the clause appellatione remota to rescripts of justice. However, the right to appeal to Rome was a fixed star in the canon law. Admitting the premise, it was hard to hit upon an effective stopping point.?!6 In time, this right to appeal would become a source of grievance against the canon law itself, but for the moment it was a fact. And not a generally unwelcome fact. An English ‘privilege’ allowing Englishmen not to be cited outside the realm without a special papal mandate is mentioned in both royal and ecclesiastical docu-

ments of the thirteenth century. But if it ever obtained in practice, it had fallen into desuetude by the mid-fourteenth century.2!7 Before and after, English men and women regularly took advantage of the possibility.2!8 The medieval court books contain many appeals to the apostolic see, and certainly not all of them were subsequently abandoned. Expansion of papal government had made it impossible for the popes themselves to give ear to all the petitions and complaints addressed to them. They still heard major causes in the papal Consistory, but ordinarily they were obliged to delegate the decision of causes to others. The result was an administrative system of a formidable complexity.?!9 It was not created at once. It grew gradually. And it long admitted some overlap in function among the various offices. For purposes of investigating ecclesiastical jurisdiction in England, three of the institutions that

emerged call for special mention: the Audientia litterarum contradictarum, the office of the papal Penitentiary, and the Audientia sacri palatit known familiarly as

the Roman Rota. Financial and administrative bodies at the papal curia also touched upon legal questions. But the three courts were the primary points of 215 Durantis, Speculum iudiciale, lib. III, pt. 3, tit. De appellationibus § 2, no. 2.

216 See e.g. Thomas Starkey, Dialogue between Reginald Pole and Thomas Lupset, ed. Kathleen Burton (1948), 119-20; Gl. ord. ad X 2.28.53, s.v. expresse, and DD ad id. 217 See Wright, The Church and the English Crown (above n. 121), 142-54. 218 See e.g. Timothy Cooper, “The Papacy and the Diocese of Coventry and Lichfield 1360-1385° (1987) 25 Archivum Historiae Pontificiae 73-103. 219 It is described in Guillaume Mollat, The Popes at Avignon, 1305-1378 (9th edn, 1963), 294-305; also helpful is Thomas Frenz, Papsturkunden des Mittelalters und der Neuzeit (1986).

ECCLESIASTICAL JURISDICTION 209 contact with English litigation. It was before them that the English proctors and advocates associated with the Roman court most often appeared.?2° The first of these institutions, apparently a formal development that occurred during the pontificate of Innocent III, was mentioned in the previous chapter. In it, rescripts of delegation were read out before being dispatched to the local judges delegate who were to hear and determine the actual cause.??! The letters were subject to contradiction before this court, as its name implied, so that the judges appointed and the wording of the rescript could be amended to conform to the law’s requirements and the convenience of the parties. If there was a dispute about it, an auditor litterarum contradictarum had the responsibility of settling the final form of the letters. We know that the court was important to English litigants. They found it worthwhile to appoint proctors to protect their interests in this tribunal from at least the turn of the thirteenth century.?22 It was also in anticipa-

tion of proceedings held before this Audientia that William of Drogheda formulated the sample petitions that Maitland noticed.2?3 The second, the office of the papal Penitentiary, is probably the least known of the three among English-speaking readers, although it exercised a regular and important jurisdiction in English ecclesiastical affairs throughout the medieval period. Before this office, came most applications for dispensations in marriage cases and most petitions for absolution from sentences of excommunication imposed for those sins reserved to the apostolic see. For example, under the canon law persons guilty of having made attacks on clerics were required to appear in Rome before they could be absolved (C. 17 q. 4 c. 29). There were exceptions to the rule, and in practice the requirement was not often followed, but where it was observed, proceedings most appropriately took place before the Penitentiary. His office held jurisdiction not only over the ‘internal forum’ properly speaking, but also over many matters from the ‘external forum’ that involved questions of conscience.224 The roots of this office stretched back in time to the early Middle Ages, but the first mentions of it as a distinct, established institution come from the thirteenth century, and it was only in the following century that its forms and functions were 220 See e.g. E. F. Jacob, “To and From the Court of Rome in the Early Fifteenth Century’ in id., Essays (above n. 165), 58-78.

221 The fundamental work is Peter Herde, Audientia litterarum contradictarum (1970); see also Vatican Archives: An Inventory and Guide to Historical documents of the Holy See, ed. Francis Blouin, Jr. (1998), 106.

222 See Jane Sayers, ‘Canterbury proctors at the Court of Audientia litterarum contradictarum, and ‘Proctors representing British Interests at the Papal Court, 1198-1415’ in Law and Records in Medieval England (1988), nos. III, IV; P. N. R. Zutshi, “Proctors Acting for English Petitioners in the Chancery of the Avignon Popes (1305-1378)’ (1984) 35 JEH 15-29. 223 See Summa aurea, tit. 1 in Wahrmund, Quellen, i1. 7-8; Roman Canon Law, 111-12.

224 See H.C. Lea, A Formulary of the Papal Penitentiary in the Thirteenth Century (1892). The range of subjects covered by petitions is scarcely less wide than the canon law itself.

P y 8 as Pp

210 13TH CENTURY TO THE ACCESSION OF ELIZABETH

recisely defined.225 The number of men serving as penitentiaries at one time during the fourteenth century varied from between ten to twenty.22° The office

was subject to periodic reform.22” Objections to its supposedly excessive power were

made, and during the sixteenth century its powers in the ‘external forum’ were curtailed. The archives of the Penitentiary were kept sealed until a few years ago. Most researchers have therefore had to rely on formularly books, and it is only now that a start has been made at opening up the historical riches to be found in the archives.228 For England, little has yet been attempted. The third important tribunal was the Rota, whose decisiones the English auditor, Thomas Fastolf, is credited with being the first to publish and before which appeals to the Roman court from most of the English courts were expected to be heard. Of the three, it was the most distinguished in terms of its personnel as well

as being the most legally significant.229 Oldradus de Ponte (d. 1335), Felinus Sandeus (d. 1503), and Franciscus Mantica (d. 1614), all jurists of note, served as auditores. So did numerous Englishmen.?3° Like many medieval institutions, its exact origins are obscure. The best guess is that it emerged gradually in the thirteenth century from the common practice of papal delegation of causes to indi-

vidual cardinals and papal chaplains. The practice hardened into a routine and eventually a court. Mention of auditores sacri palatii are found in sources of the thirteenth century, and a constitution of Pope John XXII in 1331, called Ratio iuris, defined its personnel, regulated its procedure, and gave it a recognized status as a principal papal court of law.23! The Rota was a collegiate body, composed of a

dozen or so auditores, each technically speaking only the reporter to the whole court for the causes brought before it. Although not limited in jurisdictional 225 The basic work is Emil Goller, Die papstliche Pénitentiarie von ihrem Ursprung bis zu threr Umegestaltung unter Pius V (1907-11); see also Leonard Boyle, A Survey of the Vatican Archives and of its

Medieval Holdings (1972), 92-3; Vatican Archives (above n. 221), 213-16; Charles H. Haskins, “The Sources for the History of the Papal Penitentiary’ (1905) 9 American Jnl of Theology, 421-50.

226 Timotheus Majic, “Die Apostolische Ponitentiarie im 14. Jahrhundert’ (1955) 50 Rdmusche Quartalschrift fiir christliche Altertumskunde und Kirchengeschichte 129-77, at 142-5. 227 See Goller, Die papstliche Pénitentiarie (above n. 225), 90-8. 228 Ludwig Schmugge, Kirche, Kinder, Karrieren: Papstliche Dispense von der unehelichen Geburt im Spatmittelalter (1995), 13-17. 229 Use of the name Rota to designate the Audientia sacri palatii appears relatively late in papal doc-

uments; the first mention was in 1423. The term’s origins have remained controversial. See Egon Schneider, Die rémische Rota nach geltendem Recht auf geschichtlicher Grundlage (1914), 86-90.

230 Margaret Harvey, The English in Rome, 1362-1420 (1999), 132-48; William Pantin, “The Fourteenth Century in The English Church and the Papacy in the Middle Ages ed. C. H. Lawrence (1965), 175-7.

231 Tts text is given in Michael Tangl, Die pdpstliche Kanzleiordungen von 1200-1500 (1894), 83-91.

Some of the records of the court are described in Hermann Hoberg, “Die Protokollbticher der Rotanotare von 1464 bis 1517’ (1953) 39 ZRG, Kan. Abt. 177-227; a list of some of the many articles writ-

ten by Hoberg on the history of the Rota is found in Vatican Archives (above n. 221), 218.

ECCLESIASTICAL JURISDICTION 211 competence, the disputes that came before the Rota during the later Middle Ages were dominated by litigation over benefices, probably the indirect result of the expansion of papal provisions.?32 Yet their dominance was not complete. It was before the Rota in the 1370s that the papal judges heard and determined the invalidity of the English custom of hearing civil cases involving clerical defendants before secular courts.2%3

Finally, some notice should be taken here of the Court of Delegates and the Faculty Office in England. They were not papal courts, but they replaced the papal courts as the final court of appeal in English ecclesiastical causes and also as the source of dispensations. The start of the first goes back to the Reformation legislation prohibiting appeals to Rome and providing that in cases of ‘lack of justice’

in the courts of the archbishops, parties aggrieved should appeal to the King’s court of Chancery, which would in turn appoint commissioners whose determinations were to be definitive (25 Hen. VIII, c. 19, s. 4, 1534). A fresh set of judges was appointed for each appealed cause. From these tentative beginnings eventually emerged a court with a history of its own.234

Although an early act book (1538-44) exists for the court, its proper history begins only after the accession of Elizabeth.235 The statute under which it oper-

ated was repealed during Mary’s reign, and it required Elizabeth’s Act of Supremacy (1 Eliz. I, c.1, ss. 4, 6, 1559) to restore the court to life. For present pur-

poses, three observations must suffice. First is the obvious point that the court operated in the name of the crown, not the papacy, even while it perpetuated the traditional system of appeals. The original plan had been to cut off all possibility of appeal beyond the courts of the archbishops (24 Hen. VIII, c. 12, 1533), but it must have been thought that this was too radical a change from past practice, and this institution was the result. Second, the statutes opened up the possibility that ecclesiastical causes would be heard by laymen, even common lawyers. Delegates could be chosen from outside the ranks of the civilians, although this possibility happened more rarely before 1650 than it did afterwards.23° Third, the new court was given a broader competence than the ecclesiastical law alone. It consolidated appellate jurisdiction from other courts where the civil law was applied, including the courts of admiralty and the two universities.

232K. W. Norr, ‘Ein Kapitel aus der Geschichte der Rechtsprechung: Die Rota Romana’ (1975) 5 Ius commune 192-209, at 194.

233 Decisiones antiquae sacre Romanae Rotae (1509), no. 840. It is discussed in Walter Ullmann, ‘A Decision of the Rota Romana on the benefit of Clergy in England’ (1967) 13 SG 455-90, and Santangelo Cordani, La giurisprudenza (above n. 195), 245-6. 234 The basic work is G. I. O. Duncan, The High Court of Delegates (1971). 235 See Guide to the Contents of the Public Record Office (1963), i. 163. 236 Duncan, High Court of Delegates (above n. 234), 23, 178-81.

212 13TH CENTURY TO THE ACCESSION OF ELIZABETH The Faculty Office traces its origins to a statute of 1534 establishing machinery to deal with the ‘licenses, dispensations, faculties, compositions, rescripts, delega-

cies, instruments and other writings, all of which had previously issued from the papal court (25 Hen. VIII, c. 21, 1534, amended by 28 Hen. VIII, c. 16, 1536). In

them, the archbishop of Canterbury was authorized to appoint a master of the Faculties, and, although it is possible that there was an earlier appointment, it is certain that in 1538 a commission authorized Dr Nicholas Wotton to issue dispensations in the same fashion as the delegates of the popes had done, at least to the extent that they were not prohibited by divine law.?3” Two early registers of the office have been preserved, including the years 1534 to 1540 and 1543 to 1549.238 They contain matrimonial dispensations, including authorizations for marriage without banns and cases of prohibited degrees of affinity and consanguinity, dispensations for holding plural benefices and for non-residence, dispensations for ordination despite illegitimate birth, and miscellaneous grants like the right to eat meat during Lent or (surprisingly) to wear the habit of a religious order beneath the garb of a secular priest. Displaced monks and friars were obliged to become frequent supplicants at the Faculties. It was then, and has been since, a subject for lively debate whether the office merely moved the abuses associated with papal dispensations to English shores. Particularly at first, so it seemed. However, the scope of permissible dispensations narrowed gradually over the course of the history of the office. For instance, dispensations to marry

despite the existence of relationship in one of the prohibited degrees occupied a greatly reduced sphere by virtue of Tudor statute (32 Hen. VIII, c. 38, 1540).239 Dispensations of many kinds were long regarded with suspicion.?4° They turned a wrongful act into a permissible one. But it was admitted even by critics that some dispensations had to exist, and the Faculty Office continued. Indeed, the mastership became something of a plum for rising civilians. The ‘lightness of the duties and the substantial emoluments’ it brought to its incumbent guaranteed the office would not want for aspirants.2+! Its full history remains to be written, but it is clear already that the connection with modern faculty jurisdiction exercised by diocesan chancellors to protect the fabric of churches, cannot be an entirely direct one.?42 237 On Wotton (d. 1567), see DNB, xxi. 973. 238 TD, S. Chambers, Faculty Office Registers 1534-1549 (1966).

239 A dispensation from 1588 for a marriage between a man and the widow of the brother of the man’s mother is found in a Chichester Precedent book, WSRO, Ep I/51/3, fo. 80. One issued in the name of Archbishop Cranmer is found in Standley c. Gascoigne (York 1557), BI, CP.G.687. 240 See e.g. John Bramhall (d. 1663), Schism Guarded, Disc. 4, ch. 8 in The Works of John Bramhall (1842), il. 444-9.

241 Wilfrid Hooper, ‘The Court of Faculties’ (1910) 25 EHR 670-86. See also E. F. Churchill, ‘Dispensations under the Tudors and Stuarts’ (1919) 34 EHR 409-15. 242 See Peter Winckworth, A Verification of the Faculty Jurisdiction (1953), 13-15.

ECCLESIASTICAL JURISDICTION 213 THE COURTS OF THE BISHOPS

The canon law assumed that the bishops would exercise ordinary jurisdiction in

their dioceses, and from the mid-thirteenth century this jurisdiction would be delegated to a professional judge. This is certainly what happened. However, the power of bishops in legal matters was not thereby reduced to the right to name their chancellors or officials; they might still decide cases for themselves. Many did. The creation of the Court of Audience of the archbishops of Canterbury was the result of this residual right; its jurisdiction was no less extensive than the archbishop’s principal provincial court, the Court of Arches. Indeed the auditors of the Audience long contended, though not without opposition, that they were competent to hear causes on appeal from the Arches.243 Even this relatively elaborate structure did not prevent the archbishop from dealing personally with legal disputes.244 The same pattern is found in some other dioceses.?45 Despite the existence of alternatives, most litigation between parties was heard in the first instance before the English consistory courts. Every English bishop— there were seventeen in the later Middle Ages and five more were added after 1541—held a consistory court for the diocese as a whole. From the fourteenth century, records from these courts survive in quantities sufficient to describe how they exercised ecclesiastical jurisdiction, and several good books about individual courts have been written on the basis of the records.246 They reveal some variety in organizational structure. For example, some consistory courts heard appeals from courts of the archdeacons, but some did not. Some were staffed by advocates, but some were served only by proctors. Common features in court personnel did none the less exist throughout England. Every court was presided over by a professional judge, normally called the official principal. Almost always, he would have been trained in the university law faculties.24” The officials were served by the registrar, the man who compiled and kept the court records, and often a deputy registrar. Although most were not graduates, if any

one man held the courts together in times of hardship, it was the registrar. By the fifteenth century, the office was becoming an appointment for life. Many of the occupants served for very long periods indeed.?48 A staff of proctors—though ‘staff? may 243 An example of an appeal from the Arches: Russe c. Spore (1304), LPL, Act book MS. 244, fo. 5. See

generally Charles Donahue, Jr., and Jeanne Gordus, ‘A Case from Archbishop Stratford’s Audience Act

book’ (1972) 2 BMCL 45-59. 244 Churchill, Canterbury Administration, 1. 469-86. 245 e,9, the Court of Audience for the diocese of Peterborough, from which only one pre-1640 act book has survived: NRO, Correction book 67 (1636-9). 246 The first comprehensive study was Woodcock, Medieval Courts. See also the Bibliography at the end of this volume. 247 See R. L. Storey, Diocesan Administration in Fifteenth-Century England (2nd edn, 1972), 9-13; A. L. Browne, “The Medieval Officials Principal of Rochester’ (1940) 53 Archaeologia Cantiana 29-61. 248 Woodcock, Medieval Courts, 38—40.

214 13TH CENTURY TO THE ACCESSION OF ELIZABETH be too grand a word for the small numbers involved—would also have been present in the courts to represent the parties in civil matters. The numbers practising at any one time varied—from three to four in the smaller courts, to seven or eight in the larger dioceses, and many more in London and York. At Exeter in 1323, for example, nine men were listed as proctors, although not all of them were involved in daily practice before the court.?49 In the larger courts there would also have been one or more advocates. At Exeter, there were two, and also four men listed as ‘awaiting’ places

as advocates. Less conspicuous in the records, but usually present in court and undoubtedly prominent in the minds of critics of the ecclesiastical courts, would have been a group of apparitors or summoners, the men who served the citations that compelled men and women to appear before the courts. They had to be present to prove that the absentees and the contumacious had been lawfully cited. In a European context, it is particularly notable what a small group of men this

was. There were fewer subordinate officials in the English spiritual courts than

would have been present in many similar ecclesiastical tribunals on the Continent.25° A few of the English consistory courts did employ an ‘examiner general’ to carry on the depositions of witnesses which provided the bedrock of proof

in the spiritual forum,?5! and they would also have been able to call upon the bishop’s sequestrator to enforce appropriate orders to take revenues of churches into the bishop’s hands.?52, However, in England there was no separate group of notaries public attached to the courts, as there was in France. The registrar and many English proctors were created notaries, and the number of them was sometimes considerable.253 They did some of the ordinary work of a notary public, but

no separate office within the court system existed. Nor was there a sigillator to guarantee the authenticity of documents. No magister testamentorum or receptor emendarum served. No defensor pauperum was appointed.254 Most notably absent 249 See Reg. Walter de Stapeldon, bishop of Exeter (A.D. 1307-1326), ed. F. C. Hingeston-Randolph (1892), 115-19.

250 Compare the situation in France, described in Lefebvre-Teillard, Les Officialités, 33-8; Paul Fournier, Les Officialités au Moyen-Age (1880), 29-31; Edouard Fournier, L’Origine du vicaire général et des autres membres de la curie diocésaine (1940). 251 e.g, Richard Burgh was styled examiner general in a York Act book for 1417, BI, Cons. AB.1, fo. 50. The office seems later to have gone out of use, however. 252 See Churchill, Canterbury Administration, 1. 60-2; Jill Hughes, ‘A 1301 Sequestrator-General’s

Account Roll for the Diocese of Coventry and Lichfield’ (1997) Camden Miscellany XXXIV (=10 Camden Soc., 5th ser.), 105-39. 253 The standard work is Cheney, Notaries Public in England (Ch. 2, n. 245); see also: Nigel Ramsey,

‘Scriveners and Notaries as Legal Intermediaries in Later Medieval England’ in Enterprise and Individuals in Fifteenth-Century England, ed. Jennifer Kermode (1991), 118-31, at 124-5. For some rea-

son, the latest treatment of the subject omits mention of notaries attached to the spiritual courts; see Ole Fenger, Notarius Publicus: Le Notaire au Moyen Age latin (2001), 110-11. 254 See Ferdinand Elsener, ‘Der “Arme Mann” (pauper) im Prozefsrecht der Grafen und Herzoge von Savoyen in Studien zur Rezeption des gelehrten Rechts, ed. Friedrich Ebel and Dieter Willoweit (1989), 220-39, at 234.

ECCLESIASTICAL JURISDICTION 215 from English practice was the promotor, or procurator fiscalis, who prosecuted crimes in many courts on the Continent and who exercised a preponderant influence on the character of ecclesiastical jurisdiction. Proctors occasionally took that role in England,?55 but it happened by appointment only for individual causes. Sessions of the English consistory courts were held regularly—roughly speaking every three weeks throughout the year and occasionally more frequently—except during vacations in the months of August and September. Most of the bishops’ courts met in the cathedral of the diocese, usually in a special place devoted to that purpose. They sometimes also met in one of the larger parish churches, probably for reasons of convenience. For example, the consistory court for the diocese of Ely often met in Great St Mary’s in Cambridge, where a larger number of lawyers was

to be found than in the cathedral city itself. Only one courtroom has been preserved from an early period: that in Chester Cathedral. It consists of an enclosure formed by wooden panels or ‘walls’ on three sides, access being gained by a door. At one end there was a raised seat for the judge and also room for two assessors. A table filled the enclosure in front of the official’s seat. Around that table must have

sat the registrar and also the proctors, probably with clients of theirs whose cases were being heard. Outside the enclosure would have stood observers and litigants or defendants awaiting their turn. The enclosure’s walls were low enough to see over; the court room was neither large nor particularly awe-inspiring.

In attempting to picture what happened in these courts, one should hold in mind the centrality of documents for the course of ecclesiastical litigation. No matter the oral nature of the subjects dealt with by the courts, the important elements of an instance cause were all written: the libel, the depositions, the sentences, and most of the more minor stages in litigation. Sessions of the courts were devoted to their production. Except in ex officio cases, a large part of what was said aloud was given over to submitting documents. The treatise known as Actor et Reus, found in archives throughout England, recorded the various stages of a colloquy between judge and proctor. “My lord, a proctor was instructed to say, ‘I pray that a term should be assigned to me to propound a libel in due form of law. The judge: “We assign the next [term] to you for the purpose of introducing your libel, and to the adverse party to receive it. The proctor: “My lord, I pray that your lordship will admonish [the defendant] to appear in each and every session up until the end of the cause’.25¢ So it went through to the end of the session. This dialogue was said in Latin. Its obvious purpose was to put the correct documents before the court. Of the courts of the bishops, the largest and most professional were those held in the name of the two archbishops. They heard both appeals and causes of first 255 Ex officio c. Mawger and Maweger (York, 1599), BI, CP.G.3048.

256 See e.g. CUL, MS. Dd.10.36 (late sixteenth-century formulary), ff. 29-29v, containing a simple version of the dialogue.

216 13TH CENTURY TO THE ACCESSION OF ELIZABETH

instance. The archbishop of Canterbury maintained three separate courts in London: the Court of Arches, the Court of Audience, and the Prerogative Court (PCC), the last for the exercise of his testamentary jurisdiction. For ordinary litigation from his own diocese, he held a regular court in Canterbury cathedral. The courts of the archbishop of York were roughly (though not exactly) the same, although there was no separate commissary court in the Northern Province, since the courts of appeal all met in the same city and the press of business was less.257 By an accident of history, the surviving York records from the Middle Ages are now much fuller than those from the provincial courts in London. It is said that all but a few of the latter records were destroyed by the Great Fire in 1666. How the many surviving court records of the bishops of London escaped the conflagration we do not yet know.?58 THE LESSER ECCLESIASTICAL COURTS

Below the consistory courts stood the many tribunals held by archdeacons, rural deans, cathedral dignitaries, monastic houses, and bishops for parishes outside their own dioceses. They were the courts of ecclesiastical peculiars. Although less is known about them than the episcopal tribunals, it is right to stress their existence. They existed in profusion.259 They also varied in character, although basic identity of procedure ruled in the ex officio causes and probate practice that made up the great bulk of their work. On the one hand, some of these courts, particularly those of archdeacons (of whom there were fifty-six or so in the 1520s), were scarcely inferior in personnel and jurisdiction to those of bishops. They were presided over by the same kinds of judges and served by the same proctors who acted in the consistory courts. They heard instance causes, often including marriage causes, exercised jurisdiction over a wide geographical area, and some were not ordinarily subject to appeals to the courts of the bishop.?°° On the other hand, other courts were confined to matters arising from a small number of parishes, held only ex officio and probate jurisdiction, and were not served at all by professional lawyers.?©! Moreover, there were the chapters attached 257 Carson I. A. Ritchie, The Ecclesiastical Courts of York (1956); K. F. Burns, “The Medieval Courts’ (1962), the first volume of a larger study of the York courts, available in BI Library; David M. Smith, A Guide to the Archive Collections in the Borthwick Institute of Historical Research (1973), 53-6. 258 See Wunderli, London Church Courts, 161-3. 259 See R. N. Swanson, ‘Peculiar Practices: The Jurisdictional Jigsaw of the Pre-Reformation Church’ (2001) 26 Midland History 69-95; Kenneth Fincham, Prelate as Pastor. The Episcopate of James I (1990), 148-55.

"160 See e.g. The Courts of the Archdeaconry of Buckingham, 1483-1523, ed. E. M. Elvey (=19 Buckingham Record Soc.; 1975); C. E. Hodge, “Cases from a Fifteenth Century Archdeacon’s Court’ (1933) 49 LOR 268-74; Act Book of the Ecclesiastical Court of Whalley 1510-1538, ed. Alice Cooke (= 44 Chetham Soc.; 1901). 261 See e.g. the court of the deanery of Wisbech, 1458-94 in Poos, Lower Courts, 270-592.

ECCLESIASTICAL JURISDICTION 217 to rural deaneries that summoned the nearby clergy and some of the laity to answer for offences against the church's law. The ius commune did not ordinarily

permit men and women accused of criminal offences to appear by proctor (Dig. 48.1.13; X 5.1.15), and procedure before these local ecclesiastical courts was

informal. It had to be. Most of the laymen present could not have read the documents used in instance litigation. Some of these courts did have an official principal, a registrar, and an apparitor,?©2 but others appear not to have had even that.2°3 The latter operated without following the ordo iuris very strictly; Lyndwood commented that the chapters held by rural deans were more apt to follow the customs of their country than the law of the church.2°4 Where we possess their records, they consist mostly of summary office proceedings brought on the basis of public fame. By far the largest part of the medieval cases coming before them dealt with sexual transgressions.?® There were also courts that fell somewhere in between these two poles. Some of those held in the name of a dean and chapter stood well ahead of the rural chapters in terms of legal competence. They dealt with instance cases as well as ex officio matters, and the amount of litigation in them was equivalent to that of many archdeacons tribunals. Also like the archidiaconal courts, they often perambulated, moving from one place to another within the area over which they held spiritual jurisdiction. For example, in 1340 the court of the dean and chapter of Lincoln met twenty-two times in twelve different parish churches.26° When one hears about “ubiquity of the ecclesiastical courts in England, therefore, one should keep in mind these lesser courts. They were one of its clearest manifestations. The strength of the assumption that office carried with it a right to exercise legal jurisdiction is well illustrated by the existence of the many courts that fell towards the lower end of this class. Even royal chapels claimed exemption from diocesan authority for themselves and their parishioners, sometimes buttressing their claims by papal grants or the force of prescriptive right.2°” They held courts. Most frequent were those held by prebendaries. Under the canon law, prebends were rights to income from churches; these rights were attached to collegiate bodies, normally divided among the members. The canons of a cathedral church were the normal holders and thus “‘prebendaries.2°® The canon law dealing with the rights attached to them became complex enough that a commentator described 262 e.g, FS. Hockaday, “Withington Peculiar’ (1917) 40 Transactions of the Bristol and Gloucestershire

Archaeological Soc. 89-113, at 94. 263 Scammel, “The Rural Chapter’ (above n. 17), 15. 264 Provinciale, 14, s.v. capitulis ruralibus: ‘magis nituntur consuetudini patriae quam juri communi. 265 e.g, FS, Pearson, ‘Records of a Ruridecanal Court of 1300’ (1912) 29 Worcestershire Historical Soc.

Collectanea, 70-80. 266 Poos, Lower Courts, 105-27. 267 J. H. Denton, English Royal Free Chapels 1100-1300 (1970), 94-118.

268 Hostiensis, Summa aurea, lib. II, tit. De praebendis et dignitatibus, no. 1.

218 13TH CENTURY TO THE ACCESSION OF ELIZABETH litigation arising from prebendal rights as a source of income and a cause for sin and a source of shame.?° Both the Decretales Gregorti IX and the Liber sextus had long titles devoted to the subject (X 3.5.1-38; X 3.8.1-16; Sext 3.4.1-41; Sext 3.7.1-8). In the

present context, however, it is worthier of note that prebends easily became the source of ecclesiastical jurisdiction in the parish churches to which they were attached. If one looks, for example, at the prebendaries of York Minster, for which a good although post-medieval list has been compiled, it turns out that, besides the major canonries, ‘peculiar’ courts were also held for (at least) the prebendaries of Ampleforth, Barnby, Bilton, Bugthorpe, Fenton, Holme, Husthwaite, Knaresborough,

Langtoft, North Newbald, Osbaldwick, Riccall, Salton, Stillington, South Cave, Strensall, Wadworth, Warthill, Weighton, Wetwang, and Wistow.27° Most of these encompassed jurisdiction over more than one parish church. Parishioners in them were thus subject to these “peculiars’ and could have claimed an immunity from initial process before the courts of their bishops.?7! The lesser courts cannot have had much ‘business’ in contentious matters, but they were the source of revenue and prestige for the men in whose name jurisdiction was exercised. So they resisted abolition. Their long-continued existence is another reason for speaking of the ‘ubiquity’ of ecclesiastical courts in England. Almost from the time these lesser tribunals come into the historian’s view, their

jurisdiction was something the bishops were seeking to curtail, or at least more effectively to supervise.2’72 Rural deans, in particular, did not possess ordinary jurisdiction under the law, and in theory they could be removed at will by the ordinary (X 1.23.7.6).273 A lack of anything more than a rudimentary familiarity with the canon law among the majority of them could be assumed, and resentment against them among the people subject to their jurisdiction was a matter of common knowledge.?”4 The bishops had every incentive to assert their powers of 269 Albericus de Rosate, Dictionarium turis, tit. Praebenda, no. 2. 270 Smith, Guide (above n. 257), 112—41.

271 Capitular jurisdiction extended to 134 parishes and townships, most near York. Sandra Brown, The Medieval Courts of the York Minster Peculiar (1984), 4. A declinatio fori on this ground: Lindley c. Henson (Archdnry Nottingham, 1597) NUL, Act book A 11, pp. 26-7; it was contended in the case that the defendant had consented to jurisdiction of the archdeacon even though his parish was ordinarily

subject to the jurisdiction of the chapter of York. The number of such exempt jurisdictions in some dioceses was much smaller; see e.g. Francis Steer and Isabel Kirby, Diocese of Chichester: A Catalogue of the Records of the Bishop, Archdeacons and former Exempt Jurisdictions (1966), 138, 146, 154 (listing only the Dean’s peculiar and two exempt rural deaneries, although the authors acknowledge ‘many gaps’ in

the remaining records). 272 See the remarks about the efforts to curtail archidiaconal jurisdiction during the fourteenth century in John Lydford’s Book, ed. D. M. Owen (1974), 17. 273 See also Lyndwood, Provinciale, 80, s.v. committatur. 274 See Hyams, ‘Deans and their Doings (Ch. 2, n. 141), 619-46; Elvey, Courts of the Archdeaconry of Buckingham (above n. 260), pp. xii—xiil.

ECCLESIASTICAL JURISDICTION 219 supervision as judicial ordinaries. But the customary rights of many of these subordinate diocesan officers were very old, stretching back to Anglo-Saxon and Norman times.275 Perhaps they were even useful in the sense that they were close to home for the men and women subject to them. Their learned and enthusiastic historian, William Dansey, concluded that the later Middle Ages witnessed the obsolescence of their jurisdiction in England, and some of the courts evidently did disappear. However, later research has questioned that conclusion, attributing the apparent decline to the absence of surviving records rather than to disappearance of the substantive right.27° The jurisdictional claims of rural deans, it seems, were not easily dislodged. VISITATIONS

Holding ordinary jurisdiction under the canon law carried with it both the right and the duty to ‘visit’ the institutions and people subject to it. To ‘visit’ meant to inquire, inspect, and correct whatever faults inquiry revealed. Questions, usually prepared in advance of the visit, were put to representatives of a parish church or monastic house, and on the basis of the answers to them, the visitor or his delegate would endeavour to correct whatever was amiss. Moving from one place to another where representatives from other locations could conveniently appear, he would conduct a formal visitation.?77 In fact, the procedure used for parochial visitations resembled nothing so much as the ex officio jurisdiction exercised in the chapters of rural deans and archdeacons. They were both occasions for enforcing the law by summary process, and their records are sometimes indistinguishable. Despite the importance of visitations, the canon law on the subject was no model

of exactitude or completeness. Gratian had largely ignored it. No title of the Decretals dealt with it specifically, and although it was mentioned in several places in both lawbooks (e.g. X 3.39.23), many questions were left open. For example, it was by no means certain how often visitations should be held. Procurations, the fees customarily collected by the visitor from those whom he visited, were a burden to the 275 See Scammell, “The Rural Chapter’ (above n. 17); the attempt to discipline a rural dean for wrongfully exercising spiritual jurisdiction was met by a plea of customary right in: Ex officio c. Vicar of Westley Waterless (Ely, 1376) CUL, Act book EDR D/2/1, fo. 39v. 276 William Dansey, Horae decanicae rurales (2nd edn, 1844), 1. 106-13; A. H. Thompson, “Diocesan

Organization in the Middle Ages: Archdeacons and Rural Deans’ (1943) 29 Proc. British Academy 153-94, at 184-93. Indirect testimony to their continuance is given by episcopal efforts to restrict their competence even after the Reformation; see, for example, those of the early seventeenth century found in CRO, EDC 5(1621), no. 67. 277 e.g, Archdeacon’s Visitations (1514-16), CCAL, Act book Z.3.3, ff. 15v—18, held at the parish church

of Tenterden; twenty-one parishes were obliged to appear. Not all did. Nine reported Omnia bene, two

turned in a bill of presentment, and two made no statement. The subject and English evidence are described in Peter Smith, “Points of Law and Practice concerning Ecclesiastical Visitations’ (1991) 2 Ecc. LJ 189-212, and Katherine French, The People of the Parish (2001), 31-7.

220 13TH CENTURY TO THE ACCESSION OF ELIZABETH

visited and on that account a source of complaint. Determining how frequently visitations were to be held under the law of the church therefore became a matter of moment and contention. One text suggested every third year was correct (X 1.23.1)} others that they be held ‘frequently’ or ‘at the pleasure’ of the visitor (C. 18 q. 2 cc. 28-9); still another that visitations should normally occur every year (X 1.23.6). This textual dilemma was ‘solved’ ingeniously, if not wholly satisfactorily, by William Lyndwood. He concluded that the first text referred to how often they must be held, whereas the last referred to how often they could be held. The middle two dealt with situations where a special need for visitation could be shown; the first and last to situations where no such need had been shown.278 In the event, it appears to have become largely a matter of custom, bishops most often being accorded the right to visit every third year and archdeacons each of the other two years.?79 Records from visitations have survived, although not in profusion for any time before the sixteenth century. We have examples of monastic visitations from the med-

leval period to the Dissolution,28° and also some parochial visitations from the thirteenth and fourteenth centuries.28! Bishop Robert Grosseteste (d. 1253) is said to have been a ‘pioneer’ in their implementation on the local level. At any rate, presentments by the churchwardens became a normal means of enforcing disciplinary jurisdiction in the English church, and it was during episcopal or archidiaconal visitations that presentments were most commonly made. Many a ruinous chancel or manse

was fixed; many a notorious adulterer brought to book; and many a non-resident vicar was called to account in consequence of this humble investigative institution.

A new chapter in the history of the subject was written by the royal visitations first authorized under Henry VIII. Injunctions were issued by the English monarchs in 1536, 1538, 1554, and 1559; they provided the substance for visitations then held by royal authority. King James I required Archbishop Bancroft

to issue instructions to the bishops.282 Some of the injunctions covered 278 Tyndwood, Provinciale, 49, s.v. visitatione. 279 Jt was noted in the canons of 1604, c. 60 in Anglican Canons, 350-1. See Giles Jacob, A New Law Dictionary (1732), s.v. Visitation; Rodes, Lay Authority (above n. 93), 172-3. 280 See C. R. Cheney, Episcopal Visitation of the Monasteries in the Thirteenth Century (1931). Both

monastic and parochial visitations were combined in a record printed as Kentish Visitations of Archbishop William Warham and his Deputies, 1511-1512, ed. K. L. Wood-Legh (= 24 Kent Records; 1984). 281 e.g, C. E. Woodruff, “Some Early Visitation Rolls preserved at Canterbury (1917) 32 Archaeologia Cantiana 143-80, ibid. 33 (1918), 71-90; id., ‘An Archidiaconal Visitation of 1502’ in ibid. 47 (1935), 13-543 A. H. Thompson, Visitations in the Diocese of Lincoln 1517-1531 (= 33, 35, 37 LRS; 1940-7); W. Sparrow Simpson, Visitations of Churches belonging to St. Paul’s Cathedral in 1297 and 1458 (= 55 Camden Soc. (n.s.; 1895); Diocese of Norwich: Bishop Redman’s Visitation 1597, ed. J. F. Williams (= 18 NRS; 1946). The

earliest manuscript record of a parochial visitation so far discovered is CCAL, Ch. Ant. H.67a (1290s); one from the 1330s from the diocese of Norwich is preserved in Bodl., Norfolk MS. Roll 18.

282 See Visitation Articles and Injunctions of the Early Stuart Church I, ed. Kenneth Fincham (= 1 CERS; 1994), 94-9.

ECCLESIASTICAL JURISDICTION 221 traditional themes of the canon law—due payment of tithes and forbidding the unlicensed holding of plural benefices, for example.?83 Other injunctions broke new ground—the discouragement of superstitious practices and the encouragement of reading the Bible by the laity, for instance.284 The actual machinery

of the visitations held to enforce these injunctions did not vary much from what had gone before,28> but the royal supremacy upon which they were based and the abolition of papal jurisdiction they helped bring about were new. Their

lasting impact on practice in the ecclesiastical courts is hard to disentangle from that of Parliament and Convocation, but their more immediate utility in setting out some of the ground rules of the Protestant Reformation must have been great. The Legal Profession The absence of a group of men who made their living from the practice of law had

been one of the most salient characteristics of the history of the canon law in Anglo-Saxon and Norman England. As was largely true for the English common

law, England had been a ‘land without lawyers.28° Their existence was not required under the canons. However, the law of the church was not wholly adverse to the forces that would change this situation. Gratian’s Decretum impliedly proclaimed the virtue of legal learning, and his texts envisioned procuratores repre-

senting churches (C. 1 q. 3 c. 8), even stating the qualifications that such men should possess if they were to carry out their duties faithfully (C. 3 q. 7c. 1). By the end of the thirteenth century, the potential inherent in such texts had largely been realized, and not just in the schools. Professional lawyers began to appear outside. The canons of the London council of 1237 spoke of advocates as regular participants in litigation, seeking to restrain the ‘craftiness and sophistry’ that allegedly marred too many of their appearances.?8” William of Drogheda devoted numerous chapters in his Summa to describing and questioning the powers and duties of advocates and proctors.288 By the end of the century, the presence of lawyers

had become sufficiently routine in the English church that standard forms for appointing them in litigation were being circulated and used in practice. More

283 See e.g. Injunctions of 1538, c. 14; Articles of 1559, c. 23 in Visitation Articles, Frere, ii. 41; iil. 4. 284 See e.g. Injunctions of 1538, c. 3; Injunctions of 1559, c. 6 in Visitation Articles, Frere, ii. 36: iii. 10.

285 See e.g. Royal Visitation of 1559: Act Book for the Northern Province, ed. C. J. Kitching (= 187 Surtees Soc.; 1975 for 1972), pp. XX—XxXIi.

286 Brand, Origins of the English Legal Profession (Ch. 2, n. 247), 1-2.

287 c, 29, C. & S. II, pt. 1, 258. On the rise of professional thought more generally, see James Brundage, “The Rise of Professional Canonists and Development of the Ius Commune’ (1995) 81 ZRG,

Kan. Abt. 26-63, esp. 41-55. 288 cc, 33-72, 99-141 in Wahrmund, Quellen, i. 36-71, 94-170.

222 13TH CENTURY TO THE ACCESSION OF ELIZABETH detailed regulation of their education, organization, and conduct in litigation had

begun to seem imperative.289 Compared with their counterparts across the Channel, English university graduates in law always enjoyed relatively restricted ‘career opportunities.29° The temporal courts of the common law were closed to them. In the sphere they occupied, however, they had become indispensable by the early fourteenth century. ADVOCATES AND PROCTORS

The profession of ecclesiastical law was divided between proctors and advocates, as it was on the Continent.29! The division was, roughly speaking, equivalent to that existing between solicitors and barristers in the common law. Advocates were the experts in the church’s law. Virtually always armed with a university degree in civil or canon

law (or both), they formulated and made the legal arguments for their clients, particularly in difficult cases. They gave legal advice in the canonical equivalent of a counsel’s opinion. They were the civilians called upon to act in the diplomatic service of the king. From their ranks were drawn the judges in the ecclesiastical courts and masters in Chancery. It is true that some men were occasionally described both as advocates and proctors in the medieval records.29? It is also true that no rule prohibited proctors from moving up in the ranks. But these were both exceptional situations. In normal circumstances, the distinction was maintained. Proctors belonged to a lesser order. Their primary function was to appear for the parties in every aspect of instance litigation. A client’s proctor became dom-

inus litis—to use the common phrase of the time—and indeed the procuratores generales who were attached to the consistory courts did the bulk of the legal work in the instance causes that came before the courts. They prepared the documents, and they spoke in place of their clients, who were not required to be present unless the opposing party requested their presence to answer in person. In some places their control over litigation was all but complete, because advocates were not present at all, except as special need arose, in the courts of the bishops. The medieval

diocesan courts at Canterbury, Exeter, Rochester, Hereford, and Lichfield, for example, were served only by proctors. Bath and Wells and Ely, by contrast, were served by resident advocates. It did occasionally happen that a proctor moved up 289 Select Canterbury Cases, Introd. 22-5. 290 Jeremy Catto, “Masters, Patrons and the Careers of Graduates in Fifteenth-Century England’ in

Concepts and Patterns of Service in the Later Middle Ages, ed. Anne Curry and Elizabeth Matthew (2000), 52-63, at 58-60. 291 See Fournier, Les Officialités (above n. 250), 32-41; J. J. Hogan, Judicial Advocates and Procurators (1941), 32-51.

292 e.g, KAO, Act book DRb Pa 2, fo. 17: “Magister Bartholomeus Lovell procurator et advocatus curie predicte. Note the parallel with the common law: Brand, Origins (above n. 286), 69; and with Scots law: John Finlay, Men of Law in Pre-Reformation Scotland (2000), 3-12.

ECCLESIASTICAL JURISDICTION 223 to serve as a judge, at least if he held a university degree, but most proctors remained in the same position, within the same courts where they had been admitted. The number practising before each court was also generally fixed. Only when one proctor died or retired was a new proctor admitted. About the education of proctors we are not as well informed as we are about the advocates and judges.?93 Many of them were also notaries public, and this

would have required some basic training in the use and preparation of documents. A substantial minority of proctors, but no more, held the first degree in either Roman or canon law. For example, of the twelve proctors appearing regu-

larly in the commissary court at Canterbury between 1475 and 1500, four, or perhaps five, of the proctors held a university degree. In the consistory court at Winchester, two of the five proctors who appeared in the first surviving instance act book (1526-30) were graduates in law. Of the eight proctors serving at Lichfield between 1466 and 1474, two were certainly graduates and one may have been at Oxford for a time. The rest must either have left university without taking a degree or else been educated exclusively within the court system.

A sizeable body of written guides existed to serve an educative function for aspiring proctors. Elementary manuals of civilian procedure were compiled and kept. They cannot have served any real purpose other than to begin the education of new proctors. A typical example began: ‘A trial consists of three elements, the start, the middle, and the end. The start of a trial is the litis contestatio, the middle consists of the proofs, and the end is the sentence’. Then it gave a little more detail, explaining for example that the first part of the trial was itself divided into several stages: citation, constitution of proctors, presentation of the libel, answer by the defendant, and assignment of terms for the proof that would take up the second stage.294 They were not much more detailed than that. Exposure to causes being heard in the courts would have been another necessary part of the education of proctors. They seem to have entered the profession by undergoing something like a clerkship with an experienced proctor. A ‘year of silence’ was the rule in the London courts, and a similar probationary period seems also to have been in use elsewhere. Something like it was obligatory even for those who had advanced degrees in law. University training was never tied directly to practice in the English ecclesiastical courts. The kind of knowledge that came

from repeatedly witnessing a court in session, working with an experienced proctor, and digesting the contents of manuals of praxis was a requisite part of becoming a proctor or an advocate. 293 Evidence on this point is collected in R. H. Helmholz, “The Education of English Proctors, 1400-1640 in Learning the Law: Teaching and the Transmission of Law in England 1150-1900, ed. Jonathan Bush and Alain Wijffels (1999), 191-210; and id., Marriage Litigation in Medieval England

(1974), 148-9. 294 Taken from “Summarium processus, BL, Add. MS. 6254, ff. 1-2.

224 13TH CENTURY TO THE ACCESSION OF ELIZABETH The profession was quite small, and kept so by regulation. No one has yet compiled a list of all the ecclesiastical lawyers in practice or investigated the subject systematically, but studies of individual dioceses have been made.?95 The results

are consistent enough to inspire confidence in their applicability throughout England. At Salisbury in the mid-sixteenth century, only three proctors were steady practitioners before the consistory court.29° In the court of the archdeacon of St Albans towards the close of the century, only two proctors were present, although this scarcity became a matter of complaint.29” In the diocesan court at Canterbury, four proctors were regularly active in 1500.2%8 In the greater courts in London and York, the number of active proctors was larger—between twelve and twenty in London during the sixteenth century.299 But overall, the count of professional lawyers in the ecclesiastical courts did not go very high. Proctors normally practised in the courts of both bishop and archdeacon in the same diocese. Many of the lesser courts employed no lawyers at all. One estimate put the num-

ber of practising proctors at 200 for the turn of the seventeenth century, but this may reflect an expansion in the size of the profession during the latter half of the century. For most of the period covered by this chapter, the total figure was probably considerably less.

In only one office did the number of professionals exceed the comparative group in the English royal courts—judgeships. One or more judges served every bishop and archdeacon, and others were active in the peculiar jurisdictions. Of course, pluralism was a way of life among the civilian judges. The same man might at one time be official of bishop and archdeacon, or official of archdeacon and one or two of the lesser tribunals. However, by the same token many courts had two men serving as judges in the same court, as when one man was official principal, and the other the commissary general. The total number of English judges in the ecclesiastical courts was thus relatively large. Throughout this period, the number of judges in the central courts of the common law and Chancery rarely exceeded fifteen.5°! Although exact numbers elude us, we can be sure that the percentage of advocates that eventually became judges in the ecclesiastical forum was higher than it was for barristers in the common law courts.

Ecclesiastical lawyers were paid for the preparation of documents and for every

court appearance they made. Bills of expenses were drawn up at the end of 295 See Brundage, “Bar of Ely (Ch. 2, n. 252), 541-60. 296 Ingram, Church Courts, 61. 297 Robert Peters, Oculus Episcopi: Administration in the Archdeaconry of St. Albans 1580-1625 (1963), 61. 298 Woodcock, Medieval Courts, 121-3.

299 A list of those active in London during the mid-fifteenth century is found in BL, Stowe MS. 570, ff. 127-8; twenty-two proctors were named between 1547 and 1576, but only fifteen marked as practising. 300 Brian Levack, “The English Civilians, 1500-1750’ in Lawyers in Early Modern Europe and America,

ed. Wilfrid Prest (1981), 108-28, at 112. 301 John Dawson, The Oracles of the Law (1968), 2-3.

ECCLESIASTICAL JURISDICTION 225 litigation. They allow historians to estimate how much litigation cost. In a Canterbury testamentary cause from 1498, for example, the total of the plaintiff's expenses came to 22s. 5d., taxed by the court at 20s. and charged to the losing party. Of this 6s. was allocated to pay for appearances by the proctor, who had charged 6d. for each occasion he had appeared.3°2 Two court appearances by an advocate in a defamation suit at York in 1454 cost a total of 6s. 6d.393 Proctors were permitted to sue to collect these fees. We know they did so. What we cannot know is how lucrative the offices of proctor and advocate were overall. Tentative estimates have been made of about £12 or £15 per year for a busy proctor during the fourteenth century. It is natural to suppose that advocates enjoyed careers that left

them wealthy men. But the fact is that we do not have personal notebooks or records of receipts from the practice of ecclesiastical lawyers. They alone would permit a more exact appraisal to be made. PROFESSIONAL STANDARDS AND THE CIVILIANS

Despite the division in function between advocates and proctors, the same set of professional and ethical standards applied to both. And the canon law was quite articulate, even insistent, about the duties of the lawyers in litigation—duties to their clients and duties to the ideals of fair and impartial justice. One should not assume from the unscrupulous ‘tips’ that William of Drogheda provided to the lawyers who read his treatise that canonical litigation was meant to be a ‘no holds barred’ contest. The profession of ecclesiastical law was subject to a comprehensive set of rules of ethical conduct. Concrete means of supervision existed, and the records contain cases in which disciplinary action was taken against individual proctors.3% It would be as cynical to assume the ethical standards meant nothing at all as it would be naive to suppose that they perfectly described the conduct of the civilians. The ethical standards were set out in the oath that proctors and advocates swore upon their admission to practice. It required a lawyer to: (1) faithfully execute his responsibilities towards his client; (2) withdraw from a cause known to be unjust;

(3) refrain from advancing baseless exceptions; (4) maintain absolute honesty in

statements made to the tribunal; (5) take only moderate or reasonable fees; (6) avoid any unnecessary delay in litigation; and (7) keep himself from suborning perjury or instructing witnesses.3°© The Second Council of Lyons (1274) repeated 302, Woodcock, Medieval Courts, 126. 303 BI, CP.F.190. 304 This is suggested as a possibility by Brundage, “Bar of Ely’ (above n. 295), 559, and by Allmand,

‘Civil Lawyers’ (above n. 184), 171; see generally Brundage, ‘The Profits of the Law: Legal Fees of University-Trained Advocates’ (1988) 32 AJLH 1-15. 305 Ex officio c. Mark, SRO, Act book D/D/Ca 1, p. 12 (suspension from practice). 306 An early and influential enactment was c. 45 of the Council of Rouen of 1231 in Mansi, Concilia, XXIli. 218-19. See also c. 29 of the Legatine Council of London (1237) in C. & S. II, pt. 1, 258-9. The sub-

ject is discussed in James Brundage, “The Calumny Oath and Ethical Ideals of Canonical Advocates’

226 13TH CENTURY TO THE ACCESSION OF ELIZABETH and enlarged these standards, requiring that the lawyer’s oath be renewed annually.3°7 Synodal statutes and court regulations added penalties and specificity to the rules.3°8 Lengthy sections in the medieval commentaries laid down and discussed rules of professional conduct in the courts.3°9 During the course of litiga-

tion the lawyers were obliged to take the oath de calumnia vitanda, in effect swearing that they were in compliance with the law’s ethical standards in the case before the court. If English proctors transgressed the bounds of ethical behaviour, therefore, it could not have been out of ignorance. It must be admitted that nothing definitive can be said about the implementation of these ideals? A little can be. The judges did exercise some control over the size of the fees collected by the lawyers, since they taxed the expenses at the end of litigation, virtually always setting a lower figure than that claimed. Poor clients were entitled to be represented by a proctor and advocate without pay-

ment (X 1.32.1), and admission of litigants in forma pauperum was frequent enough in practice to show that this provision was by no means a dead letter.3!° Among the court records are also entries where proctors or advocates refused to accept unjust causes,3!! and more in which proctors dismissed causes they discovered to be unjust during the course of a trial.3!2 Such a cause was called a causa desperata. It was one the proctor could no longer defend in good conscience.?!3 The evidence, such as it is, does not depict a profession without scruples.

Proc. Ninth International Congress of Medieval Canon Law, ed. Peter Landau and J. Miiller (1997), 793-805, and id., “The Ethics of Advocacy: Confidentiality and Conflict of Interest in Medieval Canon Law’ in Grundlagen des Rechts, 453-66. 307 ¢,19 in Decrees, Tanner, 1. 324.

308 e.g, Regulations for Court of Canterbury (1295); the courts at York (1311); and the courts of Canterbury (1423) in Wilkins, Concilia, ii. 204-13, 409-15; 111. 427-8.

309 e.g, Durantis, Speculum iudiciale, lib. 1, pt. 4, tit. De advocato, a section that occupies more than ten folios in a large double folio edition. 310 See Brian Tierney, Medieval Poor Law (1959), 15-19; James Brundage, “Legal Aid for the Poor and the Professionalization of Law in the Middle Ages’ (1988) 9 JLH 169-79. 311 BI, Cons.AB.1, fo. 30r (1417), in which proctor John Willyngham said he would not act unless the rights were clear to him; York CP. F.78 (1410) in which the advocate Robert Ragenhill refused to take a

case assigned to him, “quia et asseruit...ipsa Mathilidis fovebat et defendebat causam iniustam’ 312 e.g, CCAL, Act book Y.1.6, fo. 133 (1466): “Tunc Ramsey dimisit causam tanquam desperatam et injustam’ The pre-1500 records from Canterbury contain thirty such cases; for fuller exposition of the evidence, see Canon Law and the Law of England, 41-57. 313 e.g, Hostiensis, Summa Aurea, lib. I, tit. De postulando, no. 5: ‘Item ad officium suum pertinet,

ne causam suscipiat contra conscientiam et quamcito sentiet, quod desperata sit causa omnino recedere debet, alloquin dolo est advocatus’; Durantis, Speculum tudiciale, lib. I, pt. 4, tit. De salartis procuratorum et tabellionum, no. 3: ‘[Q]ui etiam debet iurare quod quamcito causam malam esse noverit ipsam deseret’.. The Roman law source for the phase causa desperata and for the above oath is Cod. 3.1.14.4.

ECCLESIASTICAL JURISDICTION 227 DOCTORS’ COMMONS

In the main, the fifteenth century was a time of expanding opportunities for English ecclesiastical lawyers. The rise of an effective jurisdiction in the admiralty and in lesser equity courts, the increase in the number of civilians invited to serve as masters in Chancery, and regular employment in diplomatic service opened up

new sources of influence and income. No development during these years was more propitious for them, however, than the creation of Doctors’ Commons, the College of Advocates in London. It was probably preceded by an informal concentration of professional expertise in the capital. Precedent books compiled around this time show the diffusion of documents from the London courts outwards to other dioceses.3!4 However, the emergence of a permanent society for the higher end of the profession, rivalling the role of the inns of court in the English common law, gave a cohesion and a centre to the English civilians they had not

possessed before. Decisions made collectively by the ‘Doctors of the Arches’ became a source of law for the courts of the English church.3!5 The traditional starting-point for the Society is 1511, when the subscription book was begun. However, more thorough research has shown that the college’s founding occurred actually some years before that date, probably in the 1490s.316

There are several references to ‘the doctors of the arches’ gathered together in Paternoster Row from those earlier years,3!” and it may even be possible to extend the history of the College back to 1469, when Thomas Kent bequeathed twentyeight books of civil and canon law for use by members of the court of Canterbury in London. Whatever the date—and probably no exact moment will ever be discovered—the society had come into existence by the first quarter of the sixteenth century. The quarters in Paternoster Row quickly became too small, and in 1568 a

move was made to Mountjoy House in Knightrider Street. There it remained, although its quarters had to be rebuilt after the Great Fire, until the college was wound up in 1865 and the buildings demolished in 1867. In its earliest years, the membership of Doctors’ Commons was not so straitly confined to practising advocates and judges as it would later be. Several proctors in the Court of Arches were among the early subscribers. The names of prominent ecclesiastics, bishops, and archdeacons, are also found in the subscription book. 314 e.g, Precedent book (fifteenth century), WTRO, D1/45/1. 315 e.g, Case of Doctor Gager (Ely 1609), BI, Prec. Bk 11, fo. 19v, dealing with the powers of a bishop

elect’s official before his installation: ‘It was resolved by the doctors of the Arches that ante installationem the chancellor of Elie might proceed etc.’. 316 G, D. Squibb, Doctors’ Commons (1977), 1-22.

317 There is a reference to ‘hospicium ubi doctores transiunt ad communes, viz. infra domum habitiationis dicti magistri Ray’ in Ex officio c. Warner (London, 1521), GL, Act book MS. 9065J/1, fo. 100v. The man referred to must be Dr John Rayne (d. 1536), on whom see Squibb, Doctors’ Commons (above n. 316), 132.

228 13TH CENTURY TO THE ACCESSION OF ELIZABETH

Graduates of foreign universities were represented. Beyond that, the college counted among its membership humanists and men of letters of renown. John Colet, dean of St Paul’s, Thomas More, and Polydore Virgil were the most prominent among them. It is not inaccurate to describe Doctors’ Commons as “a society of many talents’ during its first decades.318 By the end of the sixteenth century, however, this cosmopolitan feature had been lost.3!9 The last proctor was admitted in 1569, and apart from a few honorary members, most of whom were bishops

or other highly placed churchmen, membership in Doctors’ Commons became confined to advocates admitted to the Court of Arches. It was also less clerical than it had been in the early years of the century, although a movement to admit laymen had in fact begun earlier. It is possible to view these developments as a decline,32° but it is equally legitimate to see in them the growth of a truly professional society of ecclesiastical lawyers. Maintaining a list of ornamental members would have been of little real value unless they turned up to take part in the affairs of the society. Indeed, if they did appear, they might often have been more of a hindrance than a benefit to the men who wanted to get on with their work. Get on with their work the civilians of Doctors’ Commons certainly did. Their library grew gradually but impressively. It reached a point where the loss of the civil and canon law books dispersed at the College’s demise is still being lamented.

Most of the prominent English writers on ecclesiastical and maritime law who were the pride of the profession during the late Tudor and Stuart period were associated with the college.32! Its members provided leadership in the revival and defense of the ecclesiastical courts that occurred towards the end of the sixteenth century. The nature and quality of their work will be among the subjects examined in the next chapter. But first must come a word or two about the state of the ecclesiastical courts in the years from the fourteenth century to the accession of Elizabeth in late 1558. Developments during the last of these years were to make things difficult for many of the civilians, particularly for the proctors who made up the lower branch of the profession and who were most directly connected with the work of the courts.

Litigation The number of ecclesiastical courts and the incompleteness of the records surviving from before the latter part of the sixteenth century have defeated even the 318 F, D, Logan, ‘Doctors’ Commons in the Early Sixteenth Century: A Society of Many Talents’

(1988) 61 Historical Research 151-65. 319 Squibb, Doctors Commons (above n. 316), 23-36. 320 Logan, ‘Doctors’ Commons’ (above n. 318), at 159, describes it as having become ‘the narrow, closed society which it remained; and the earlier period as a “golden hour’ of its history. 321 See generally Daniel Coquillette, The Civilian Writers of Doctors Commons, London (1988).

ECCLESIASTICAL JURISDICTION 229 most determined efforts to estimate the total amount of litigation heard in the English ecclesiastical courts. Nothing like the plea rolls of the central royal courts—imperfect guides though they themselves may be—exists for the spiritual forum. This absence makes it impossible for even a rough estimate to be made. The best evidence amounts to qualitative ‘snapshots’ only, and for the medieval period they are mostly confined to instance litigation. What does exist, however, is not without value. It shows, among other things, the relative importance of the different kinds of litigation in the ecclesiastical courts. TYPES AND AMOUNTS OF LITIGATION

Ecclesiastical jurisdiction between parties embraced instance litigation over marriage and divorce, succession at death, tithes and other ecclesiastical dues, defamation, breach of faith or perjury, rights to ecclesiastical property, usury, assaults on the clergy, and ecclesiastical pensions. These subjects provided the main headings in which the surviving act books recorded litigation in any considerable numbers. Some matters—monastic or episcopal elections and most questions involving benefices, for example—occasionally came before the consistory courts, but most disputes about them were handled by ad hoc commissions outside the routine sittings of the courts. Other matters—allegations of violations of ecclesiastical

liberty and disputes involving dilapidations to ecclesiastical property—were brought rarely enough that little can be said about their substance and nothing about changes in their incidence. Within these categories, however, a few things about change can be said for certain. First, the amount of litigation dealing with aspects of marriage occupied a quite large percentage of the courts’ attention during the fourteenth century, but much less towards the close of the Middle Ages.32? Thereafter it was an occasional, but fairly steady, part of the courts’ agenda. Second, the number of causae fidei laesionts seu periurii, suits brought to secure enforcement of sworn prom-

ises, positively exploded during the course of the fifteenth century. Then it dropped precipitously after about 1490. They had disappeared from the act books completely by the end of the first third of the sixteenth century.323 Third, after

occupying a small though regular place in medieval litigation, tithe causes proliferated after the 1530s.324 The Dissolution of the monastic houses and the

dispersion of tithes in lay hands, among other factors, must have led to that expansion. 322 See Helmholz, Marriage Litigation (above n. 293), 166-8.

323 See Woodcock, Medieval Courts, 84; Canon Law and the Law of England, 283-4; Wunderli, London Church Courts, 108.

324 Houlbrooke, Church Courts, 146-8; Christopher Haigh, ‘Anticlericalism and the English Reformation in The English Reformation Revised, ed. C. Haigh (1987), 69.

230 13TH CENTURY TO THE ACCESSION OF ELIZABETH Overall, the most important apparent change was a quite dramatic drop in the volume of litigation, beginning in the fourth quarter of the fifteenth century and continuing in most dioceses ten or so years into Elizabeth’s reign. It was a relatively steady decline, and it had already reached a point that must have looked like a real crisis in the years just prior to the Henrician Reformation. For example, the commissary court of the diocese of Canterbury handled 636 causes in 1482, but by 1511 that number had declined to 198, and by 1535 it stood at 93.325 The volume of

litigation in the consistory court at Lichfield declined from 102 in 1476 to 68 in 1531.32 Most studies of ecclesiastical court jurisdiction have discovered similar declines, although accident or episcopal energy postponed the decline in a few instances.327 It was not reversed under Edward VI or Queen Mary.328 The level of litigation being heard in most ecclesiastical courts remained low. Even the standards of recording of the acta of the courts declined during these years. They must have been times of discouragement, particularly for the proctors who served in the courts. Pessimism about the future of the spiritual courts and the profession of ecclesiastical law showed itself in manifold ways. The number of admissions for the BCL degree at the universities, for example, fell to negligible proportions during the 1540s and 1550s.329

The reasons behind this phenomenon have been variously estimated. A common conclusion is that it arose from a growing lack of respect for the courts of the church and for the sanctions at their disposal. This explanation seems to grow out of an assumption that the Reformation must have caused a sudden collapse in the power of the clergy, and that the courts of the church inevitably shared in its effects. The existence of this result has been hard to prove, however, since most of the examples used to show the laity’s lack of respect for the courts can be duplicated for almost any period in their history. For a lawyer, the most natural and evident explanation for the decline in volume

of litigation has to do with jurisdictional change. Three parts of ecclesiastical jurisdiction disappeared between the 1480s and the 1530s: breach of faith, testamentary debt, and defamation in which a temporal crime had been imputed 325 Woodcock, Medieval Courts, 44, 84. This dramatic decline probably overestimates the amount of work available for proctors, since they appeared in 85% of the causes in 1535 but only 47% in 1482. By Mary’s reign, the numbers were even lower; see CCAL, Act book Y.2.19 (1557). 326 The figures were arrived at by comparing LJRO, Act books B/C/1/2 and B/C/2/3. 327 See Stephen Lander, “Church Courts and the Reformation in the Diocese of Chichester, 1500-58’

in Continuity and Change: Personnel and Administration of the Church in England 1500-1642, ed. Rosemary O’Day and Felicity Heal (1976), 215-37, at 231-2; Wunderli, London Church Courts, 81. 328 But cf. the figures for the diocese of Norwich, in: Houlbrooke, Church Courts, 273, indicating a slightly earlier recovery. 329 J. L. Barton, “The Faculty of Law, HUO, iii. 271-2; Thomas Fuller, The History of the University of Cambridge, ed. M. Prickett and T. Wright (1840), 225.

ECCLESIASTICAL JURISDICTION 231 to the plaintiff. All these were moved from the ecclesiastical to the secular courts. Whatever may have been the ‘deep’ reason for the shift, the immediate cause was an expansive reading of the Statute of Praemunire that permitted litigants cited to

appear in an ecclesiastical forum to attack the church’s jurisdiction in a more effective manner. Those attacks took their toll. COMMON LAW COURTS AND ECCLESIASTICAL JURISDICTION

With minor exceptions, the relationship between the common law courts and those

of the English church had remained pretty much the same from the end of the thirteenth century to the mid-fifteenth. Occasional disputes and irritants caused problems, but the division of jurisdiction arrived at during the later thirteenth century remained largely intact. And in some matters, the church had been able to retain its hold on cases that were claimed in theory by the temporal law. Most prominent among them were the three just mentioned. From the perspective of the common law, breach of faith was probably the most objectionable of these. By

adding three words to a common contract—‘by my faith’ or some variant—it became possible to invoke ecclesiastical jurisdiction to enforce a contract that would otherwise belong to temporal cognizance. Many people did so. Despite the avail-

ability of writs of prohibition against suing over lay debts and chattels in court Christian, “breach of faith, along with suits over testamentary debt and defamation in which secular crimes had been imputed, had become mainstays of ecclesiastical

jurisdiction. It is not too much to claim that the flourishing jurisdiction of the church’s courts in the mid-fifteenth century depended upon them. These three violations of the traditional common law rules may have rested

on a societal consensus that ecclesiastical jurisdiction over particular matters was proper. In the royal courts, the law of contract was deficient and the law of defamation non-existent. The ecclesiastical remedies filled a gap. For example,

no action of debt could be brought against an executor on an oral contract entered into by the decedent whose personal representative he was. It was said that wager of law was available as of right to all defendants in actions of debt, but an executor could not safely wage his law because he might know nothing of the decedent’s doings. He would be swearing the oath required for wager in ignorance of the facts and therefore be in special danger of committing perjury. To avoid this possibility, it was thought preferable to prohibit all actions of debt from being brought against executors. This rationale, believable or not, left an obvious lacuna in the remedies available in the king’s court, and the ecclesiastical courts filled it. They regularly offered a remedy for debts against executors.>°0 330 Evidence on this point is collected in Canon Law and the Law of England, 307-21.

232 13TH CENTURY TO THE ACCESSION OF ELIZABETH

The formal means by which these results were reached did not require open defiance of the common law. Ecclesiastical causes were not brought directly to recover debts and chattels, even where, as in cases of sworn contracts, that was their obvious aim. In form, they were always brought to remedy a breach of the defendant’s oath or to reform the health of his soul. A plaintiff in the spiritual forum did not ask for money damages. He asked for canonical justice to be done on his behalf and for a suitable punishment to be assigned to the defendant. Any matter that would show details of the facts behind the suit was carefully kept out of the canonical libel. This was important, because in Chancery where writs of prohibition and consultation were issued during the Middle Ages, action was taken only upon inspection of the libel from the ecclesiastical courts.33! This was the reason for the fifteenth-century statute that required that a copy of the libel be delivered to all defendants in courts Christian (2 Hen. V, st. 1, c. 3, 1414): the libel had to be available for the Chancery to make a determination about questions of jurisdictional competence. In practice, the centrality of the libel, combined with the ecclesiastical practice of drawing up the libels to avoid apparent jurisdictional

overlap, long worked to the church’s advantage. Lyndwood himself recorded, though he did not celebrate, the church’s success in avoiding writs of prohibition by this means.332

This strategy for maintaining ecclesiastical jurisdiction could be effective only so long as details about the nature of litigation in the ecclesiastical courts was kept from the judges of the royal courts. The Commons had complained about this in 1333, but nothing was done. The ‘wall’ was only breached by a novel interpretation of the Statute of Praemunire (16 Ric. II, c. 5, 1392-3). That statute was directed against proceedings in the courts of Rome, but at least by the mid-fifteenth cen-

tury, it had been noticed that the wording of the statute admitted of a broader reading. It penalized action ‘in the court of Rome or elsewhere (ou aillours)’339 ‘Elsewhere’ might mean what it said. It might reach proceedings within the realm of England that violated the king’s crown and dignity. Bringing an action in the King’s Bench based on this statute allowed parties to ordinary litigation in the English ecclesiastical courts to skirt the Chancery and the procedural weakness of writs of prohibition. It could put into issue more of the facts of the case and, if successful, subject a plaintiff in an ecclesiastical cause to the severe penalties of the Statute of Praemunire. 331 Statute of Consultation (1289-90), SR, i. 108, stating that a consultation that allowed the eccle-

siastical court to proceed despite a prohibition would be issued ‘upon sight of the libel of the same matter’ showing that no remedy was available in the king’s courts. 332 Provinciale, 315, s.v. perjurio: “Ex predictis colligi potest practica libellandi in causa perjurii ad evitandum prohibitiones regias’. 333 A petition to the king from Convocation in 1439 made this complaint; see Reg. Chichele, iii. 283-4. On proceedings in the royal courts, see Baker, Spelman Introduction, 66-70.

ECCLESIASTICAL JURISDICTION 233 Many private actions challenging ecclesiastical jurisdiction were brought in the wake of this change. Some of them went quite far, farther than the common law judges were themselves prepared to go. They challenged, for example, the legitimacy of suits to recover mortuaries or to punish sacrilege. Few of the early King’s Bench actions actually proceeded to judgment, but this possibility upset the tacit compromise that had governed relations between the courts of church and state, and it would not be long before improvements in procedures for issuing writs of prohibition would unbalance it still further. The ‘suggestion’ or ‘surmise’ submitted in the first place to the king’s courts allowed defendants in ecclesiastical courts to make an ‘end rum around the Court of Chancery, where prohibitions had long been issued, and to justify issuance of a judicial writ of prohibition by showing the nature of ecclesiastical proceedings in some detail.334 A statutory limitation, which required plaintiffs to make proof of their surmise within six months of its submission, had the indirect effect of putting a parliamentary seal of approval on the procedure (2 & 3 Edw. VI, c. 13, 1549).

The details of this development properly belong to the history of the English

common law, but the effect it had on ecclesiastical jurisdiction was felt in the courts of the church. It was of the greatest importance for them. Over the course of the years between 1490 and the 1530s the courts of the English church lost their jurisdiction over breach of faith, testamentary debt, and defamation where a secular crime had been imputed.335 The decline was gradual, but it was

final. Indeed, the judges of the ecclesiastical courts came to enforce the common law rules themselves. A London judge dismissed one such cause in 1513 ‘because [it did] not come within ecclesiastical cognizance’.33° His reaction was shared by most of the civilian judges, and it was not an illogical or even neces-

sarily a pusillanimous decision on their part. The canon law did not claim exclusive competence to decide disputes in any of the three areas. For example, although it claimed the right to determine whether particular oaths were licit

or not, the canon law conceded that either temporal or spiritual courts could entertain suits for their enforcement.337 Where the litigants were laymen and the contract had nothing to do with the church, as was true in the great majority of causae fidei laesio, the canon law itself conceded jurisdiction to the temporal courts. 334 See Charles Gray, The Writ of Prohibition: Jurisdiction in Early Modern English Law (1994), i, pp. XVili-xxill, 59-114.

335 The evidence is set out in Canon Law and the Law of England, 283-4, 316-19; see also R. H. Helmholz, Select Cases on Defamation to 1600 (= 101 Selden Soc.; 1985), pp. xlii—xlv; R. L. Storey, Diocesan Administration (above n. 247), 30-3. 336 Ex officio c. Peterson (1513) GL, Act book MS. 9064/11, fo. 89: ‘causa ista non convenit forum

ecclesiasticum. 337 See opinions canvassed in Lyndwood, Provinciale, 315, s.v. perjurio.

234 13TH CENTURY TO THE ACCESSION OF ELIZABETH It was principally from the perspective of the practitioners in the English consistory courts that the decline of these years would have seemed a disaster. Breach of faith had come to occupy such a large percentage of the total litigation in the spiritual courts that loss of jurisdiction over it meant a significant loss of income and influence. The loss led naturally to discouragement among the English civilians. They might have known that a similar story was being written across the Channel, but the knowledge would have been cold comfort. They could not tell where the attacks on their jurisdiction would end. They might reasonably have supposed that change would go far beyond more rigorous policing of long-standing common law rules. Probate jurisdiction, in particular, might easily fall to aggressive claims that wills and testaments were secular in nature. Even marriage might be taken away from them. The future must have looked very dark indeed. In the 1530s, the English civilians could not have realized what might have been a comforting fact: the principal jurisdictional losses that would affect their courts were already complete by the time the Henrician Reformation arrived in the 1530s.

CONCLUSION The losses to ecclesiastical jurisdiction that began in the late fifteenth century threatened the stability of the canon law’s place in England. The Protestant Reformation also made more precarious the position occupied by courts of the church. Its implementation threatened to end all study of the canon law in the universities by closing the separate canon law faculties. As its hold on the English people increased, Protestantism would put the canon law under a cloud. Large segments of the population reflexively associated the canon law with popery. Indeed, it might have seemed to some that it was only an accident—the accidental failure of the royal commission’s new canons to become law—that had preserved

both the spiritual courts and the greater part of their medieval jurisdiction unchanged at the start of Elizabeth’s reign. The brief reign of the Catholic monarchs, Philip and Mary, had done nothing to breathe new life into the courts, even

though they ordered that the canon law should be ‘publicly taught as it had been’.338 The civilians must have entered the reign of Elizabeth with trepidation. Even as they thought about the sad state of their courts, the civilians could have taken note that the stability that had characterized the law of the church for 300 years had not been irretrievably lost. The sources of English ecclesiastical law had as yet remained largely unchanged, despite the possibilities of their replacement by the Reformatio legum ecclesiasticarum. The profession still existed, and men could still be educated for entry to it in the universities. The courts were still in 338 See Legatine Constitutions of Cardinal Pole, c. 2 (1556) in Anglican Canons, 76-7.

CONCLUSION 235 place. It could have been said that the losses to their jurisdiction, ruinous as they seemed for the income of many proctors, simply amounted to vindicating rules that had not changed since the late twelfth century. The attitude of the new queen was unknown, of course, but her first actions did not give particular cause for alarm to the civilians. She moved very carefully in the selective repeal of the statutes of Philip and Mary, and the Statute of Uniformity expressly authorized the use of ecclesiastical jurisdiction to enforce the religious settlement (1 Eliz. I, C. 2, SS. 4, 11, 1559).

As it happened, the worst fears of the civilians were not realized. Stability in court structure was maintained. Levels of litigation rose. New and able men came forward to defend spiritual jurisdiction. Whatever may be said about the fortunes of the Elizabethan church more generally, the courts of the church did not fare badly in the years that followed. The well-being of the canon law and ecclesiastical jurisdiction has never been identical with that of the spiritual life of the people or the material fortunes of the clergy. The impact of great events was not always felt in the smaller world of the law of the church.

Of this maintenance of stability in the legal sphere in turbulent times there is no better and perhaps no more surprising example than the record left by the lawyers who served in the ecclesiastical courts. The great majority of them remained at their posts. Of the eighteen graduates in law admitted to Doctors’ Commons during the reigns of Edward VI and Mary who lived on into Elizabeth’s reign, fourteen continued either to practise or to exercise an official function in the government. The fate of one is unknown; only three refused to conform and were deprived.339 Similarly at York, the three advocates active under Henry VIII who survived were still in practice there under Elizabeth.34° At the lower level of the profession, most of the men serving in the courts continued in their careers throughout the dramatic religious changes of the period.3#! In the diocese of Winchester, for example, the records identify six proctors active in the latter part of Henry VHTs reign. Of them, three were dead by 1547, but two were still active in the consistory court during the 1560s. One of them, Nicholas Harpsfield, had become archdeacon of Canterbury in 1554 and was the only one

of the group to be deprived. At Lichfield, five men were serving as proctors in the 1540s. Three of them continued under Elizabeth, one of them had died, and one, Richard Martyn, cannot be traced except to the extent that we know his 339 The count is taken from Squibb, Doctors’ Commons (above n. 316), 149-53. In the first group are

counted Lewis, Hervie, Gibbon, Johns, Dale, Martyn, Kenall, Stempe, Huycke, Haddon, Aubrey, Weston, Mowse, and Clere; in the last Thornton, Dalby, and Harpsfield. The position of Lawrence

Hussey is unclear. 340 They were Richard Farley, Reginald Beysley, and William Turnbull. 341 The evidence about the proctors is more fully set out in R. H. Helmholz, “Ecclesiastical Lawyers and the English Reformation’ (1995) 3 Ecc. LJ 360-70. See also Houlbrooke, Church Courts, 26-7.

236 13TH CENTURY TO THE ACCESSION OF ELIZABETH

disappearance from the act books did not coincide with the accession of Elizabeth. These figures are not exceptional.

We cannot know the innermost feelings of these men. Perhaps they were no more than time-servers, men who put their personal fortunes above religious conviction. Or perhaps they held a sincere respect for established order and desired to see it protected by the law. Whatever their private opinions were, most of them stuck to their posts. Like musicians of the day, their place in the courts of the church separated them in a measure from current controversies over religious doctrine. Like the common lawyers, they saw no inherent evil in continuing in their profession across a religious divide. The future must have looked very unpromising in the middle years of the century, but the great majority of ecclesiastical lawyers made no move to leave their careers or their offices. And in the end most of them were rewarded. It would soon be apparent that their worst fears had been exaggerated. Ecclesiastical jurisdiction recovered its footing.

From the Elizabethan Settlement to the Abolition of Episcopacy ie the middle years of the sixteenth century, prospects for the future of ecclesiastical jurisdiction in England looked bleak. A hundred years later, they looked worse. Before the halfway mark of the seventeenth century was reached, the spiritual courts had disappeared. They had sunk along with the order of episcopacy with which they were invariably linked. Spiritual discipline exercised through Eldership and Classis, the system that replaced the older jurisdiction of ecclesiastical courts during the years of the Interregnum, rejected much, although not quite all, of what had gone before,! and in some matters, testamentary law being the most urgent and obvious example, the absence of traditional ecclesiastical jurisdiction caused widespread inconvenience.2 But none of the inconvenience seemed sufficiently great to England’s lead-

ers to warrant preserving a system of law they had come to regard as an engine of oppression and an offence to the Gospel. Where it seemed necessary to have more effective law enforcement—as it did, for example, in attempting to suppress the crimes of incest and adultery in the 1650s—jurisdiction would be vested in the courts of the common law instead.3

For any historian of ecclesiastical jurisdiction, this story must of necessity be a gloomy one. But the road to decline and disappearance is not the only path there is to trace. At many points in the years between 1550 and 1650, the future had looked very different. A revival in the study of the church’s law in England had 1 See Acts and Ordinances of the Interregnum, 1642-1660, ed. C. H. Firth and R. S. Rait (1911), 1. 789-97, 833-8.

2 The inconveniences were lamented by a contemporary civilian in LPL, MS. 3403, ff. 263-6; see also Richard Clark, “Why was the Re-establishment of the Church of England in 1662 Possible? Derbyshire: A Provincial Perspective’ (1983) 8 Midland History 86-105; Christopher Kitching, ‘Probate during the Civil War and Interregnum’ (1976) 5 Jnl Society of Archivists 283-93, 346-56; Nancy L. Matthews, William Sheppard, Cromwell’s Law Reformer (1984), 165. An entertaining expression of this view, taken

from Roger LEstrange, The Committee or Popery in Masquerade (1680), can be found in Lambeth Palace Library, Annual Review (2000), 19.

3 F, A. Inderwick, The Interregnum (A.D. 1648-1660) (1891), 33-9. It was therefore proposed to vest

probate jurisdiction in the common law courts; see Mary Cotterell, ‘Interregnum Law Reform: The Hale Commission of 1652’ (1968) 83 EHR 689-704, at 702.

238 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

taken place, and beginning just a few years into the reign of Elizabeth—even earlier in some places—the amount of litigation being heard in the ecclesiastical courts moved upwards. Able men emerged to defend the legitimacy of spiritual jurisdiction. Better order was brought to the courts. Procedural improvements were introduced. More advocates entered Doctors’ Commons. New subjectmatter was brought within the church’s jurisdiction. A literature appropriate for the post-Reformation courts was written, even while intellectual contacts with the ius commune were kept alive.

The history of ecclesiastical jurisdiction from Elizabeth’s accession to the 1640s law stands as a warning against a linear account of historical change in this sphere. There were ‘ups’ as well as ‘downs’. New problems did arise, and periodic ‘scares about the future of the ecclesiastical jurisdiction did occur in the late sixteenth and early seventeenth centuries.4 Complaints were lodged by men who thought the courts were acting arbitrarily and wrongly, or else solely for the sake of worldly gain by those who practised within them. Some of the criticism came from the leaders of the church itself. The common law courts were also taking a more aggressive stance in the issuance of writs of prohibition during these years. Common lawyers sought to restrict the freedom of the spiritual courts to apply their own law. These attitudes had consequences. About them the civilians fretted. But before the end came in the 1640s, the English civilians had had good reasons for hope about the future of their profession. They were encouraged by several events from the very start of the period. And as Elizabeth’s reign went on and as the volume of litigation in their courts increased, they recovered a good measure of the confidence it had been natural for them to lose during the first half of the century. They were loath to give up these hopes. Many clung to them, despite all reverses, until the hour of King Charles’s execution in 1649. When the collapse of effective ecclesiastical jurisdiction came, as it did in the 1640s, the event caught many of the civilians with unexpected suddenness. Mark Tabor, who had been registrar to the archdeacon of Wells and who occupied his idle years during the Interregnum by annotating his law books and reflecting on the tragedy that had come upon the English civilians, admitted to his own surprise at the demise of the spiritual courts. But in hindsight he saw some reason for it. Tabor put their fate down to overconfidence and avarice on the part of the men whose careers were made in them. He did not spare himself. Not content with old forms and procedures, the church’s officers had multiplied the number of apparitors and increased the occasions on which men and women were cited and disciplined.

4 Early in the 1600s, for example, it was rumoured ‘that the civil law should be put down and quite exterminated [from] the kingdom’ See Anthony a Wood, The History and Antiquities of the University of Oxford (1792-96), 11. 281.

FUNDAMENTAL ASSUMPTIONS 239 This had all been done, he conceded, “for greediness and gain. Multiplication of criminal prosecutions had caused resentment against the church’s courts, and Tabor concluded ruefully, ‘[T]o confess the truth, of my certain knowledge there was some cause for it within the archdeaconry of Wells’® Few modern historians would agree with Tabor’s assessment of the root causes

for the disappearance of the bishops’ courts. His lament followed a traditional pattern,’ and ecclesiastical jurisdiction was only one part of the larger system of episcopacy that fell victim to the Puritan and Parliamentary cause. The courts would almost certainly have disappeared, even had the officials kept a tighter rein on the number of apparitors and a closer watch on the number of ex officio citations. The Puritans had other ideas about how to impose discipline in the church. In one respect, however, it is impossible to dismiss Tabor’s words. He was present. He knew what the attitude of the civilians had been during the first four decades of the seventeenth century. He himself had been caught up in what he would later regard as a regime of assertiveness, self-confidence, and greed. Others had made

much the same remarks earlier in the century. Tabor may have been mistaken about the reasons for the demise of the system of ecclesiastical justice. It was a common habit of the time to ascribe disasters to divine punishment for one’s own faults. But Tabor cannot have been wholly wrong about the way things had looked to the English civilians only a few years before.

FUNDAMENTAL ASSUMPTIONS The developments of the years covered in this chapter took place against the backdrop of the Protestant Reformation, and that made a difference in several ways. The Reformation changed part of the church’s law quite dramatically. It also

left other parts unchanged. In some other respects, it was uncertain whether it would be stability or upset that would prevail in the end. Not everyone accepted the inherited canon law as an inevitable part of the English legal system. Some wished for no change at all. Despite disagreement, generally accepted features of the Elizabethan Settlement as they touched ecclesiastical jurisdiction did exist. Setting them out briefly provides a necessary backdrop for closer exploration of law as it was put into practice. There are four main points. > There were other acknowledgements of the habit from within the church. For instance, Archbishop Whitgift had warned against these very faults in the Convocation of 1601; see Cardwell, Synodalia, ii. 583. A civilian c.1610 remarked on the fault of many “gripeing judges’ who in office causes first suspended defendants ‘under pretence of gentle punishment and milde dealinge’, and later excommunicated them in order to take ‘double fees’ for absolution; see BI, Prec. Bk 11, fo. 19. 6 Taken from Wells Cathedral Library, MS. copy of Francis Clerke’s Praxis in curtis ecclesiasticis, marginalia at fo. 151V.

7 M. J. Haren, “The Will of Master John de Belvoir’ (1996) 58 Mediaeval Studies 119-37, at 137.

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First, ecclesiastical jurisdiction remained a separate system of law in England.

It did not become one part of the national or common law. The courts of the church preserved a separate identity; Sir Thomas Smith (d. 1577) could still describe them as being taken for ‘extern and foreign court[s]’ under Elizabeth.® This retention of their medieval form had several aspects. The criminal and civil procedure used in the ecclesiastical courts remained quite different from that of the common law courts. The men who acted as officials and advocates in the courts were graduates of the universities and schooled in the methods of the ius commune, as they had been during the Middle Ages. They constituted a profession set apart from that of the common lawyers. The judges in the church’s courts were appointed by the bishops, not by the Crown. Separation was also maintained in policing the limits of ecclesiastical jurisdiction. No appeal lay from the ecclesiastical courts to those of the common law; the appel comme d’abus was not imported from France.? The mechanism by which the king’s lawyers sought to control the jurisdiction of the spiritual courts was identical to what had existed for centuries:

issuance of writs of prohibition. The theory upon which the writ was issued continued to be that the ecclesiastical courts had exceeded their jurisdiction in a specific case. To secure a prohibition it was normally required that one of the litigants claim the spiritual court had encroached upon the jurisdiction of the

king’s courts. The open questions were how far the common lawyers would push this old theory and how the civilians would themselves respond to its more assertive exercise. But the underlying jurisdictional assumptions remained the same. Second, papal jurisdiction was extinguished. What the Act of Supremacy called the ‘usurped foreign power’ the popes had exercised for so long was ‘restored’ to the English monarchs (1 Eliz. c. 1, s. 1, 1559). Thereafter the kings were to be recognized as “supreme governors of this realm...as well in all spiritual or ecclesiastical things

or causes as temporal’ This led to several immediate and practical results, beyond curtailing appeals to the Roman court and bringing to an end a filial relationship

between the English church and the apostolic see that went back to the era of St Augustine. It meant, for instance, that the monarchs could appoint commissioners to exercise ecclesiastical jurisdiction, that no attention could be paid by English men and women to the papal excommunication of Queen Elizabeth that would come in 1570, and that the taking of oaths renouncing papal jurisdiction could be required of English subjects. So much was undisputed, at least in English law. However, there were also matters that were not so clear cut. The queen could not be an absolute monarch in temporal affairs, and under the Act of Supremacy 8 Thomas Smith, De republica Anglorum, lib. III, c. 9, ed. Mary Dewar (1982), 143. Along with many

civilians, he thought the use of Praemunire and Prohibitions should be curtailed because the ecclesiastical courts were no longer subject to papal control. The opposite happened. 9 See R. Naz, ‘Appel comme d’abus, DDC, 1. 818-27.

FUNDAMENTAL ASSUMPTIONS 241 neither could she take the part of a despot in the ecclesiastical sphere. But it was far from certain how far her (or her successors’) personal authority in ecclesiastical matters would extend. The question remained to be tested. Third, legislation in ecclesiastical matters would continue to be a source of law and a means of legal development. Legislation might come either from parliamentary statutes or canons enacted by the church itself, the latter usually in Convocation. Both paths required assent by the monarch. These developments required a change in approach on the part of the English civilians. Although Parliament had enacted statutes touching the law of the church during the Middle Ages, the extent of its involvement expanded greatly under Henry VIII and his immediate successors. The involvement would continue, and the statutes would be accepted as law by the courts of the church. Records from the ecclesiastical courts would regularly refer expressly to Parliamentary statutes as authority for actions being taken in them. In carrying out its role, Elizabethan parliaments passed statutes regulating and confirming the order for consecration of bishops, providing remedies for dilap-

idations in churches and houses attached to them, and withdrawing benefit of clergy from men who abducted heiresses.!° This kind of legislation did not, however, bring an end to legislation by the church itself. Convocation met and new canons were enacted, most significantly in 1604.!! These too were put into effect in the spiritual courts. The clergy had not ceded its ancient, but always limited,

right to make synodal and provincial constitutions, except in the important respect that now express royal assent was required.!2 How the two forms of legislation, spiritual and temporal, would mesh became a difficult and inconvenient question during Elizabeth’s reign. It was widely agreed that ecclesiastical constitu-

tions could not contradict the statutes of the realm, but the questions of who would interpret the legislation and who would judge whether a contradiction existed was not settled. They would not be quickly resolved. Fourth, the established canon law was not abolished, but its scope was limited. The failure of the wholesale replacement of the ecclesiastical law, which had first been raised as a possibility under Henry VIII, left the existing canon law in force in so far as it did not violate either the laws and customs of the realm or the king’s prerogative (25 Hen. VIII, c. 19, 1534). The possibility of adopting the Reformatio

was raised again under Elizabeth, but it went no further than it had under her father.13 So the traditional law endorsed under the Henrician statute continued to 10 8 Eliz. I, c.1 (4566); 13 Eliz. I, c. 10 (1571), 39 Eliz. I, c. 9 (1597-8). 11 The Anglican Canons, 163-453.

12 Whether this new requirement strengthened or lessened ecclesiastical powers is a disputed question; see e.g. C. John Sommerville, The Secularization of Early Modern England: From Religious Culture to Religious Faith (1992), 113-14.

13 See Norman Jones, ‘An Elizabethan Bill for the Reformation of the Ecclesiastical Law’ (1985) 4 Parliamentary History 171-87.

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govern the courts. The civilians took this as a justification for retaining most features of the medieval ius commune, except where the inherited law had been changed by express legislation. That was the regime the statute called for, and it is what they sought to implement. However, the Henrician statute was not their only reason for retaining as much of the canon law as they could. The habits of mind they had inherited from the past were not easy to discard. No one fact is more significant in understanding the developments in the law of the church during these years than the conservatism of the ecclesiastical lawyers. A later civilian put it into clear words. Although the Roman church, he said, ‘cannot be too severely censured for grasping at universal dominion over the consciences of the Christian world; nevertheless many of the decisions and

principles found in the canon law were ‘very wise and liberal when the papal supremacy is out of the question. He regarded the canonical rules as ‘often great refinements upon the civil law’ It followed that the rules of the ius commune possessed what he called ‘a fair claim to the approbation of the learned world’. They could ‘be safely adopted as principles of sound reason and natural justice.!4 For this man, as for most of the English civilians, there was thus nothing inherently wrong with the canon law if the papalist provisions were left out. Indeed the reverse was true; it was to be accepted except where it was otherwise objectionable.!5 His was

an attitude towards law quite divorced from the legal positivism of a later day. He looked at the substance, not the source. Questions were indeed raised about the canon law’s compatibility with other aspects of English law, but the civilians felt perfectly capable of grappling with them. Most of the canon law, including the glossing and the attitudes of mind associated with it, was not something the civilians surrendered where they had a choice. Each of these four assumptions left room for argument. For example, would custom retain the same role that it had held in the medieval ius commune? Could

there thus be a custom contra ius, when the ius was established by act of Parliament? There could have been such a custom when papal decretals were at issue, but did the same rules still apply now that the pope’s power in England had been extinguished and the authority of Parliament was directly at stake? The answer to that question would matter greatly, for example, in the law of tithes and in the rules regulating mortuary payments. It would not be supplied by facile application of any one of the four principal points just stated. There would be argument on both sides. Consequent instability in the church’s law was 14 Thomas Bever (d. 1791), “History of the Feudal and Canon Law; All Souls Coll., Oxford, MS. 110/2, ff. 44-5.

15 See the parallel in moral theology: James Keenan, “William Perkins (1558-1602) and the Birth of British Casuistry in The Context of Casuistry, ed. Keenan and Thomas Shannon (1995), 105-30. See also John Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (2002), 53-85.

EDUCATION AND SCHOLARSHIP 243 compounded by the greater willingness of the common law courts to intervene by issuing writs of prohibition. Added to this natural uncertainty as a source of contention and confusion was

the fact that not everyone was satisfied with the results of the Elizabethan Settlement and the continued existence of the ecclesiastical courts. Of the English civilians, Archbishop Matthew Parker (d. 1575) himself wrote to William Cecil, ‘I think these lawyers keep but their old trade’.!6 It was true, and the fact was a matter of discomfort for the archbishop, though he hesitated to enter the “sea of complexities’ which the civil lawyers could more easily navigate. Enemies of the English church were less circumspect in their criticism. In the 1580s, Sir Anthony Cope proposed in Parliament that the ecclesiastical courts be abolished entirely. He was committed to prison briefly for the temerity of having made the proposal,!” but he was not the only man who harboured the idea. The Marprelate tracts, which also appeared in the 1580s, targeted the ecclesiastical courts for invective and mockery, just as they targeted the bishops themselves.!8 Opposition of this sort was of concern to the civilians, although it was balanced by respect among large segments of the population.19 However, it did not deflect them from what they regarded as just principles of law embodied in their traditional practice and the ius commune.

EDUCATION AND SCHOLARSHIP Closing the canon law faculties in Oxford and Cambridge in the 1530s dealt a blow to canonical learning in England. Maintenance of the civil law faculties and the introduction of Regius professors in them did keep the banner of the ius commune flying, but this cannot have been a wholly adequate replacement for regular study of the texts of the Corpus iuris canonici. For students aspiring to a career in the ecclesiastical courts, the absence of formal instruction would not of course have been fatal. The texts of the canon law and university education more generally had never had an immediate relationship to what was done in the courts. Much of the formal law, both the canon and the Roman parts, had always been quite irrelevant to the workaday world of advocates and proctors. As long as training in the principles and methods of the ius commune was available, as it continued to be, that would have been enough for most needs of the profession. 16 Letter to Sir William Cecil (no. 271) (1569) in Correspondence of Matthew Parker, ed. John Bruce and Thomas Perowne (1853), 351-2. See also William Harrison (d. 1593), The Description of England, ed. Georges Edelen (1968), 170: “We also have a great part of the canon law daily practiced among us’. 17 DNB, iv. 1090-1; see also HEHL, MS. EL 740, which contains Thomas Egerton’s more measured response to Cope’s proposal. 18 The Marprelate Tracts [1588-1589], ed. William Pierce (1911), 150-3.

19 See the summaries in Christopher March, Popular Religion in Sixteenth-Century England (1998), 107-12, and Leo FE. Solt, Church and State in Early Modern England 1509-1640 (1990), 81-122.

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But, it may be thought, would not abolition of the canon law faculty have choked off the possibility of scholarship in the law of the church? And would it not have created the significant disadvantage of leaving students without any knowledge of vital areas of the law like marriage and divorce, in which the Roman law was incomplete and quite out of touch with the realities of the day? These would seem to be the more important questions. Luckily, the surviving evidence provides answers.

University Education Ordinary lectures in the civil law faculty followed basically the same pattern they had taken during the Middle Ages. Although the statutes encouraged lecturers to extend their scope to embrace comparative and English law, and although new currents of thought encouraged lawyers to look beyond the glossa ordinaria to questions of reason and utility in the law, lectures continued to begin with reading and commenting upon the texts of the Corpus iuris civilis.2° The usus modernus

did exert a modest influence on legal education at the universities, and a few lecturers, John Cowell for example, sought to introduce the study of English law into the curriculum. Other lecturers drew regular comparisons between the civillan texts and current practice. Exercises at Oxford sometimes raised difficult and immediate questions for legal practice, such as the extent to which presumptions could be used to convict men of crime.?! The law of marriage and what is now called family law, were both discussed by lecturers with a recognition that the canon law, not the ancient Roman law, controlled practice.2? All the same, no

dramatic break with the past took place. Students continued to learn about Roman institutions that had long since disappeared. Quite traditional disputations on such subjects were held.23 The same alphabetically arranged points of law continued to be collected, with the same disappointing results, by students in the civil law faculties at Oxford and Cambridge.?4 Similar schematic diagrams, 20 BL, Harl. MS. 3190, ff. 148-293, following the order of the Digest with some gaps; LAO, For.20, a seventeenth-century notebook of a student or lecturer following the texts of the civil law; WORO, MS. 794.093, BA 2470A, ff. 23v—188, also following the texts in order.

21 Jt is contained in BERO, MS. D/ED O57 (entitled “Exercitia in iure civil’), citing titles from the Decretals and commentaries by Baldus de Ubaldis, Paulus de Castro, Jacobus Menochius, and Julius Clarus. 22 e.g. ‘Lecture Notes, temp. Car. I, CUL, MS. Dd.5.78(2) fo. 11v, dealing with the duties of parents

to their children. 23 Alain Wijffels, “Disputations en droit a l'Université de Cambridge sous le régne élisabétain’ (2000) 57 Mémoires de la Société pour [Histoire du Droit et des Institutions des anciens pays bourguignons, comtots et romands 113-30, at 122-30.

24 e.g. York BI, Prec. Bk 9 (late sixteenth century); MLD, MS. Z 3.5.5 (early seventeenth century, taken mostly from Decretals); CUL, MS. CUA Collect. Admin. 38; CCAL, MS. C.18.

EDUCATION AND SCHOLARSHIP 245 dividing particular parts of the law into their component parts, continued to be put together in their notebooks.?5 At Oxford, the statutory requirement for admission to the BCL was three years if the candidate had an arts degree, five years if he did not. He also had to have taken the part of responder in at least two public quaestiones. Moving on to the doctorate required an additional four years.26 At Cambridge, five years were required for the first degree, or four if the candidate already possessed the MA degree. The candidate was required to respond to a public quaestio at least once, and then twice to take the part of contradictor.2’ Aularian lectures and private study of the law, both of which appear to have been growing in frequency and scope, provided additional instruction. Assessment of the rigour of the programme is not easy, but to the extent that there is one, the scholarly consensus today holds that study of the civil law was among the easier options for university students.28 The number of men taking degrees in law fluctuated. At Oxford in the 1580s seventy law degrees (both BCL and DCL) were awarded; in the 1610s the number had fallen to fifty; but by the 1630s it had risen again to 147.29 There was

undoubtedly some contemporary hand-wringing about the state of learning in the civil law, and it has sometimes been supposed that as often as not the lectures in the subject were ‘addressed to bare walls.3° But too much should not be read into signs of trouble. The student numbers show that no collapse took place. One positive development of these years was the continuation of the Regius professorships (praelectorships they were then called) devoted to the civil law and the recruitment of able men to fill them.3! It is also worthy of note that one of the new professorships at Thomas Gresham’s college in London was given over to the civil law, but the more important new chairs were those at Oxford and Cambridge. One of four new professorships established at each university in 1540, the Regius professorship in civil law, was occupied by some distinguished men. Sir Thomas Smith, an early incumbent of the chair at Cambridge, was admired then and is admired now for his interest in humanism and human knowledge more generally. He was the author of De republica Anglorum (ist edn, 1583), a description of the 25 e.g, CUL, MS. Dd.2.44 (1611), dividing the legal requirements for usucaption. 26 Stats. 6-7 (1564/5) in Statuta antiqua untversitatis Oxoniensis, ed. Strickland Gibson (1931), 380. The requirements were varied slightly in the Laudian statutes of 1636; see Statutes of the University of Oxford codified in the year 1636, ed. John Griffiths (1888), 60-2. 27 University Statute, 12 Eliz. I, c.12 in Documents relating to the University and Colleges of Cambridge (1852), 1. 461.

28 e.g. LAO, For.20 (Lectures c.1616, no foliation), at Dig. 42.1.55 (1. iudex postea), taking note that sentences in matrimonial causes did not become res judicata under X 2.27.7. 29 Brian Levack, ‘Law, in HUO, iv. 560. 30 J. B. Mullinger, The University of Cambridge (1884), ii. 422.

31 See F. Donald Logan, “The Origins of the So-called Regius Professorships: An Aspect of the Renaissance in Oxford and Cambridge’ (1977) 14 SCH 271-8.

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main institutions of English government and a comparison between them and those that prevailed on the Continent.32 Smith’s most illustrious immediate successor, John Cowell (d. 1611), held the chair for fifteen years. A learned civilian, he yet devoted the greater part of his literary effort to English law, using civilian analogy and terminology to describe the principal features of the common law.*? His deservedly high reputation as a civilian has suffered to this day from his publication in 1607 of The Interpreter. This work contained language describing the power of the king in terms exalted enough to anger many men in the House of Commons.

James I prudently disavowed the doctrines, and the book was said to have been burned by the common hangman, a fate that did not prevent the book’s reissue in 1637 and several times thereafter.34

Oxford’s Regius professors likewise included able men.*> Alberico Gentili (d. 1608) was the most outstanding incumbent of the chair. An Italian Protestant, he assumed the post in 1587 and held it until 1608. Gentili published so considerable a list of learned works that he has earned a plausible claim to be listed among the fathers of international law.3° His lectures have survived; they demonstrate a methodical approach to the texts, including many citations to the opinions of other jurists.37 A more conventional civilian, who held the chair from 1620 until his death in 1661, was Richard Zouche. Author of sixteen works listed in the Dictionary of National Biography on various aspects of the ius commune, Zouche combined his academic duties with a career as an advocate and judge of the Court of Admiralty in London. His posthumous Jurisdiction of the Admiralty of England Asserted (ist edn, 1663) was a sustained defence of maritime jurisdiction and an attack on Coke’s treatment of the subject. 32 A modern edition was published by Cambridge University Press in 1982; the editor being Mary Dewar, who is also the author of a biography, Sir Thomas Smith: A Tudor Intellectual in Office (1964). See also Peter Stein, “Sir Thomas Smith: Renaissance Civiliar’ in id., The Character and Influence of the Roman Civil Law (1988), 186—96.

33 John Cowell, Institutiones iuris Anglicant ad methodum et seriem institutionum imperialium compositae et digestae (1st edn, 1605). For example, although he recognized that the Roman law stipulatio did not exist in England, he analogized it in its legal force to a contract in writing in describing English contract law. See Lib. II, tit. 22 § 1.

34 It has attracted one modern defender: S. B. Chrimes, “The Constitutional Ideas of Dr John Cowell, (1949) 64 EHR 461-87; inter alia he questions the veracity of the story that the common hangman was ordered to burn the work. 35 Occupants of the chair are listed and described in John Barton, “The King’s Readers, HUO, 11. 285-93.

36 There is a list in Alberico Gentilt: vita e opere (= Centro internazionale di studi Gentiliani; 2000), 48-9. See also the valuable essays in Alain Wijffels, Alberico Gentili consiliatore (= ibid.; 1999). 37 e.g. Bodl., D’Orville MS. 606, fo. 4v, including references to the opinions of Cuiacius, Duarenus,

Hotmann, Baldus, Panormitanus, Bartolus, and Accursius in discussing the nature of conditions in law; LAO, For.20 (above n. 20), citing works by Paulus de Castro, Alexander de Imola, Baldus, and Bertachinus as well as the basic texts.

EDUCATION AND SCHOLARSHIP 247 From the perspective of English ecclesiastical jurisdiction, these men and their fellow teachers cannot claim to have made any signal advance in legal scholarship. They did not prepare their students for practice in any way that was significantly different from what their medieval predecessors had done, although they may have referred to practical points of law somewhat more often. They are none the less significant in assessing the place and nature of ecclesiastical jurisdiction in England. They kept the ius commune alive and made certain that the canon law component of it did not disappear along with the canon law faculty. Wherever we have records of their lectures, they include at least some reference to canonical sources—often it was not much, but it was always something. For example, Gentili’s treatment of the Codex and Digest contained a note to a text in Gratian’s Decretum and referred to the opinions of Panormitanus and Petrus Rebuffus (d. 1571), the last being one of

the most prominent of the sixteenth-century French writers on the law of the church.38 In interpreting a text from the Codex (Cod. 2.12.10), an anonymous English lecturer from the same period made five separate points about it; three came from the Roman law, two from the canon law.3? A third late-sixteenthcentury English lecturer on a text of the Digest dealing with the rights of minors (Dig. 4.4.27.1) took the occasion to discuss the topic of judicial expenses, citing exclusively from the Gregorian Decretals in so doing.4° Even Cowell, whose principal subject in the Institutiones was the English common law and who sought on

that account to stick with its authorities, could not do without at least an occasional reference to the texts of the Corpus iuris canonici and commentators on it.*1 A comment by Petrus Rebuffus sums up the situation. He wrote that the canon and civil laws were ‘so joined together, that one could scarcely be understood without the other’.42 That proved to be so in post-Reformation England. Virtually every

treatise written by a civilian from this period contains references to both the Roman and canon laws, and this was a habit first learned in the lectures they had heard in the universities. As Thomas Fuller later said of the teaching of law at Cambridge, the civilians “kept the canon law in commendamr with their own.*? There was no purge of popish law books from the college libraries. Catalogues from the time included the traditional tools of canonical scholarship.44 More than 38 Bodl., D’Orville MS. 605, fo. 3; see also CUL, MS. Dd.5.78.2, ff. 1-14v (lecture notes temp. Charles I); Library of D. & C., Durham, MS. 68, Disp. 3, no. 5: “Caeterum iure canonico quod mores hodierni

sequuntur. 39 BL, Harl. MS. 3190, ff. 48v—4ov.

40 SRO, MS. DD/WO 52/1 (no foliation). 41 See Lib. II, tit. 7 (reference to X 4.9.1); id., tit. 10 (reference to Lyndwood’s Provinciale). 42 Tractatus de nominationibus, Quaest. 5, no. 15, in TUIJ, vol. 15:2: ‘Tus canonicum et civile sunt adeo connexa, ut unum sine altero vix intelligi possit’. 43 The History of the University of Cambridge, ed. M. Prickett and T. Wright (1840), 225. 44 For examples, see CUL, MS. Dd.5.45, ff. 91v—116v (ante 1623); BL, Harl. MS. 6048, ff. 8-42; CCAL, Lit. MS. C 18 (sixteenth century).

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just preserving the old, libraries were kept ‘up to date’ in the sense that they added books by post-Reformation civilians and canonists on the Continent. For instance, in listing the works available on the subject of civil procedure, one collection listed medieval works by men like Petrus Ferrarius (fl. 1400), Johannes Monachus (d. 1313), and Geoffrey of Trani (d. 1245). However, it also listed works by authors such as Robertus Maranta (d. 1540), Melchior Kling (d. 1571), and Thomas Zerola (d. 1603).45 Nor were the latest technical legal works like these the only additions. A seventeenth-century law student’s notebook contained references to Ulrich Zasius (d. 1535), Andeas Alciatus (d. 1550), Guillaume Budé (d. 1540), and Laurenzo Valla (d. 1457).46 E. W. Maitland once argued that the intellectual horizons of the English civilians were shrinking during these years: “Year by

year they were becoming more English and less cosmopolitan.4” His description is very far from what is revealed by the records of university study in the faculty of civil law. To all appearances, cosmopolitanism remained alive.

Learned Literature That contact with Continental developments was being kept alive is immediately apparent in the learned works written by the English civilians. A sign of revival and health in the learning among the civilians, once the revival in the fortunes of ecclesiastical jurisdiction had begun, was the production of an indigenous learned literature. There were sound practical reasons for it to have come into existence. The Reformation had introduced new elements into the mix of spiritual jurisdiction and custom in England. New parliamentary statutes and new canons had also been enacted. These had to be incorporated into the literature destined for use by

practitioners. Attacks on ecclesiastical jurisdiction had to be answered and encroachments on its legitimate scope being made by royal writs of prohibition had to be countered. Civilians undertook the task. The sixteenth century was a great age for the production of legal monographs on the Continent. Jurists produced works exploring a single subject in detail and at length.48 The English civilians felt it appropriate to do likewise. Whatever the motivation, what might be called a flowering in civilian literature took place, some of it in England. Most of it has been forgotten today. Its authors are known only to a few. None but a minute fraction of the crowds that pass by the handsome monument of Henry Swinburne in the north aisle of York Minster recognize him 45 BL, Harl. MS. 6048, fo. 36v. 46 Taken from Notes by a seventeenth century student, BL, Harl. MS. 3190, ff. 15-19. 47 “Church, State and Decretals’ in Roman Canon Law, 96.

48 See generally Ernst Holth6fer, “Literaturtypen des mos italicus in der europdischen Rechtsliteratur der fritihen Neuzeit (16.-18. Jahrhundert)’ (1969) 2 Ius commune 130-66.

EDUCATION AND SCHOLARSHIP 249 for his place in the history of the law of the church. But the extent of this English civilian literature was impressive in the context of the times, and knowledge of its character is essential in coming to grips with the realities of ecclesiastical jurisdiction. Some of it did attract a printer, although more has remained in manuscript, and probably even more has disappeared over the centuries. We know of the last because of references in what has survived to works that have apparently been lost.49 With only a little squeezing, what has survived can be put into one of six categories. INTRODUCTIONS TO THE IUS COMMUNE AND COMPARATIVE LAW

Probably the best known today were works explaining the character of the ius commune. Some of these had a purpose that verged on the political. The line between introductory and apologetic works was easily crossed. Sir Robert Wiseman (d. 1684) may be said to have crossed it in a work designed to spread greater knowledge of Roman law, The Law of Lawes (1st edn, 1656). The book was both a descrip-

tion and encomium of the principal features of the civil law. He sought to show ‘how very useful [Roman law] may be to the public welfare of this Nation’.5° Quoting from Gratian’s Decretum, he described it as ‘an honest, feasible and just law, according with nature and the custom of the land, convenient in time and place’. To prove these assertions, which Wiseman himself conceded were not widely accepted in his native country, he took his readers through selected parts of the civil

law. He advertised the rights accorded to parents over their children in it, and he answered the objection that the Roman law rule, Quod principi placuit legis habet vigorem (Dig. 1.4.1), granted unlimited power to the ruler. This was a common but mistaken reading, he would claim. The term ‘pleasure’ meant ‘not unbridled pleasure, but rather what conformed ‘with justice, reason, and good consideration.>! Wiseman also took note that the civil law wisely admitted little difference in inheritance between land and chattels, not comparing it explicitly with the situation in England, although the unflattering comparison with the current practice could not have been lost on his readers.52 Not that all Roman law could be adopted. It had

not been received in toto anywhere in Europe. The common law should prevail where it was adequate. But Wiseman thought the civil law might yet ‘supply and assist’ where the municipal law was defective and he believed that his own exposition of its merits would help in reaching that desirable goal. Even at the depths of their fortunes, the English civilians were capable of argument and hope. 49 e.g. reference to “Bosse Collins Book’ in Civilian’s notebook, SRO, MS. D/D/Cwe (seventeenth century); reference to ‘librum meum manuscriptum processus judiciorum’ in precedent book, LPL, MS. 2085 [pt. 2], fo. 36v; reference to ‘Mr Parker’s booke intitulatum tomus secundus’ in Precedent book, CCAL MS. Z/5/4 (seventeenth century). 50 The Law of Lawes (1657), preface (no pagination). 51 ibid. 10-11, 22-3. 52 ibid. 84—5.

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Wiseman’s hopes and his admiration of the tus commune were shared by his fellow civilians. Arthur Duck (d. 1648), author of De usu et authoritate turis civilis (ast edn, 1648), conducted a kind of survey of the extent and the ways in which the learned laws had been received in various parts of Europe. “The Roman laws have no authority in France by virtue of the authority of the Roman emperor, he wrote, ‘but they are admitted by the authority of reason and with the consent of the king’53 England might take heed. The Elementa jurisprudentiae (1st edn, 1629),

written by Richard Zouche, likewise attempted to hold up aspects of the ius commune to the admiration of its readers, but it aimed slightly higher in terms of jurisprudence. Zouche sought to show that identical principles underlay all law, using maxims drawn from the civil law to show how much was shared with English law. That basic aim was also the theme of Fulbecke’s Parallele.54 He pointed out differences, but his main argument was that common principles united the systems. Other works, like an anonymous effort from the early seventeenth century that has (deservedly) been left in manuscript, sought to introduce to his readers the

entire body of law that affected spiritual jurisdiction in England; it included Roman law, canon law, statute law, provincial constitutions, and common law cases.5> And some efforts were quite short, like a fourteen-folio Manuductio in juris civilis studia introducing the most basic features of the canon and civil laws to whatever readers it might attract.5© What united these works was their attempt to reach beyond a readership of practising civilians. In fact, the civilians themselves would have had little immediate use for them once their education had begun in earnest, and even less when they entered into the world of the consistory courts. DEFENCES OF ECCLESIASTICAL JURISDICTION

Of similarly limited utility for the practice of a civilian were the works meant to defend ecclesiastical jurisdiction against attacks and encroachments by common lawyers. Practitioners in the spiritual courts would, however, have perceived

them as of the greatest possible importance for their future. Only if the 53 Arthur Duck, De usu et authoritate iuris civilis Romanorum (Leiden, 1654), 229. On Duck, see Alain Wijffels, ‘Arthur Duck et le ius commune européen’ (1990) 10-11, Revue d’histoire des facultés de

droit et de la science juridique 193-221; Peter Stein, ‘A Seventeenth-Century English View of the European jus commune in Excerptiones turis: Studies in Honor of André Gouron, ed. Bernard Durand and Laurent Mayali (2000), 717-27. 54 William Fulbecke, A Parallele or Conference of the Civil Law, the Canon Law and the Common Law of this Realme of England (1601/2). See Daniel Coquillette, The Civilian Writers of Doctors’ Commons,

London (1988), 71-9; C. P. Rodgers, “Legal Humanism and English Law: The Contribution of the

English Civilians’ (1984) 19 IJ 115-36. 55 BL, Harl. MSS. 882-4 (seventeenth century). 56 BL, Sloane MS. 1526, ff. 61-74v (seventeenth century).

EDUCATION AND SCHOLARSHIP 251 arguments found in them prevailed would they prosper. Best known among them are Richard Cosin (d. 1597), Apologie for Sundrie Proceedings by Jurisdiction Ecclestasticall (ast edn, 1591), and Thomas Ridley (d. 1629), A View of the Civile and Ecclesiasticall Law (ist edn, 1607). Cosin took his LL D at Cambridge in 1580, moving quickly to a judicial career first at Worcester and then in the archbishop’s courts in London. His Apologie defended the legitimacy of practice in the eccle-

siastical courts at every point, a task for which he was required to master the medieval common law sources and to show how current writs of prohibition were subverting the rules they announced. It was common ground that the traditional division between spiritual and temporal remained in force, and Cosin turned the authorities from the common law against the common lawyers. He did not do so without invoking help from the ius commune, however. He used it constantly, showing, for example, what the purposes and justifications for the use of oaths were under the canon law. Use of what the common lawyers called the ex officio oath in criminal proceedings was a matter of the greatest moment at the time, and Cosin devoted the full force of his wit and learning to proving its legality. Ridley, likewise a Cambridge LL D, sought to show the wisdom and necessity of

allowing what he called ‘a free course to the civil and ecclesiastical law in this land’5” His View was half introduction to the ius commune and half defence of English ecclesiastical court practice. He began by examining and explaining the contents of the Corpus iuris civilis, not omitting the Novels and the Libri feodorum. He moved on to the canon law and to other aspects of the civil law, such as the law

of arms and maritime jurisdiction. Then he began the defence proper of the law of the church. He was not above criticizing it, however. He thought that ‘the curiositie in their distinctions’ that was characteristic of the schoolmen had led to confusion and deviation from justice in the law of tithes, for example.58 The hard handling he gave to claims about papal power in the canon law showed he was no crypto-papist. He made suggestions for improvement of the current law, as in dealing with some of the inconveniences faced by executors in the payment of legacies.5° All the same, the final product was a strong defence of what existed. It was later said that Sir Edward Coke was moved by its effect on James I so strongly that he ‘undertook from thence to prophesy the decay of the common law’. As unlikely as that proved to be, it is a justified compliment to the quality of Ridley’s work. 57 View, pt. 4, ch. 3. 58 ibid., pt. 2, ch. 4, sect. 7. 59 ibid., pt. 4, ch. 2, sect. 2. 60 David Lloyd (d. 1692), State-Worthies (2nd edn, 1670), 923. Perhaps this comment was a reference

to the same statement in a different context for which Coke was called before the Privy Council; see APC 1615-16, 645-6.

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The controversy surrounding the ex officio oath and continuing disputes about

the law of tithes led to the compilation of several other efforts by civilians to defend their jurisdiction. Most of these efforts have remained in manuscript.®! There is something to be learned from examining them. The alarm and the indignation of the civilians at the extent to which writs of prohibition were being used in attempting to diminish the scope of ecclesiastical jurisdiction stands out clearly. How, for instance, could the courts operate effectively if writs of prohibition were issued on the spurious ground that an ecclesiastical judge had not followed the civil law’s rule requiring two witnesses to prove a fact? It was plain as day that there were many exceptions to the rule in the ius commune, and the common law courts could not know what they were. Yet they issued the writs all the same. The civilians thought it would be better to return to medieval practice, when the writs were issued out of Chancery, not the King’s Bench. Then, such spurious acts of interference had not been made, at least not so often.

The literature also shows the civilians on the offensive. They asserted bold claims to determine many matters as being appurtenant to legitimate spiritual jurisdiction, as in questions of matrimonial property. Claims that would have increased the scope of jurisdiction in the spiritual courts—jactitation of tithes for example—were more fully spelled out in this controversial literature than can be seen in the court records. The manuscript treatises indicate the extent of civilian aspirations. That is valuable information, but on the whole the printed works of

Cosin and Ridley were far superior in completeness and elegance. The little explored manuscript literature does not add a great deal of substance to what these two leaders had to say. COMMENTARIES ON THE TEXTS OF THE CIVIL LAW

The most purely academic of the works of the civilians were those that dealt with the texts of the civil law. Not many of them were written, and none was printed.

They attract our attention as one indication of the sort of learning that was being conveyed to students during the seventeenth century. The Commentary on the Digest’s title De diversis regulis iuris (Dig. 50.17.1-211), probably compiled by Sir Thomas Eden (d. 1645), is the best example. Eden had an illustrious career; he was Master of Trinity Hall, Cambridge, Professor in civil law at Gresham College

in London, Member of Parliament, and judge in several of the ecclesiastical and admiralty courts.°2 His work on the Regulae iuris was completed in 1633. 61 e.g, CUL, EDR F/5/41, ff. 218-234v; BL, Lansd. MS. 253, ff. 138-178v; LPL, MS. 2026; Inner Temple Library, London, Petyt MS. 538/56, ff. 25-209. 62 See DNB, vi. 361-2; Brian Levack, The Civil Lawyers in England, 1603-1641: A Political Study (1973), 227-8; Charles Crawley, Trinity Hall: The History of a Cambridge College 1350-1992 (1992), 97-101.

EDUCATION AND SCHOLARSHIP 253 It survives in at least three manuscript copies, one demonstration that regular circulation of civilian manuscripts continued during these years.®? Eden’s method

was to advance through each of the regulae, stating their meaning, providing examples, limitations, extensions, and exceptions, and also citing learned authorities.

For example, the fifty-fourth regula stated that no person could transfer more right than he himself held. Eden pointed out that this did not apply to baptism, since even a pagan could validly baptise if he used the correct form of words. This

was a quite familiar point of canonical scholarship, and of course Eden did not claim that he was the first to hit upon the counter-example. Indeed, his work is dependent in many places on the similar commentary written by the Italian jurist Philippus Decius (d. 1536/7), who himself would have been dependent on earlier authors. Eden’s work also incorporated references to some of the more contemporary Continental writers: Hieronymus Cagnolus (d. 1551), Joachim Mynsinger (d. 1588), Petrus Peckius (d. 1589), and Didacus Covarruvias (d. 1577) are among them. He was careful to point out differences between the Roman and the canon

laws on specific points, but his writing was not primarily a work about current practice. Eden made no reference to English statutes. He did not describe what happened in the courts, even though he could have done so. Eden himself served as judge of the Ely consistory court. It was not, therefore, ignorance of practice that dictated the form and approach of his work, but rather the force of the traditions of the ius commune. A second and similar example comes from a commonplace book of Thomas Legge (d. 1607), now found among the muniments of the diocese of Ely.°* Among

other things, Legge was master of Gonville and Caius college in Cambridge, a donor to the college of a considerable collection of civil and canon law books, a commissary (judge) of the diocesan court at Ely, and a master in Chancery. Legge’s book contains a commentary on Justinian’s Institutes that exhibits the features characteristic of the approach of the academic civilians: reference to both Roman and canon law, discussion of the opinions of other jurists, and concentra-

tion on the texts themselves to the exclusion of court practice. This emphasis does not prove that he had no concern whatsoever for the relevance of what he wrote; he devoted particular attention, for example, to the law of testamentary succession. It may well be that the importance of this subject in ecclesiastical court practice stood behind that choice. We cannot know. Nor can we know what the work would look like in its final version. Legge never completed it. Its value lies 63 Bodl, Tanner MS. 422; Trinity Hall, Cambridge, MS. 27; Free Library, Philadelphia, Pa, MS. LC14/99. BL, Harl. MS. 4063, ff. 56-155, is also a commentary on the Regulae iuris, but its connection (if any) with Eden’s work is not clear. 64 CUL, EDR F/5/49, on which see Peter Stein, “Thomas Legge, A Sixteenth Century English Civilian and his Books’ in id., The Character (above n. 32), 197-208.

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rather in showing the continuation of the appeal of traditional literature of the ius commune during the seventeenth century. But, as had been true in the later Middle Ages, overall the English contribution to those learned traditions was relatively insubstantial. SPECIALIZED WORKS

The monographs about particular areas of legal practice written by the English civilians might be subject to the same criticism. They made no impact upon the Continental jurists. However, that was not their aim. Their aim was to offer a guide to the law as it was relevant in the English courts. This goal required the authors to master the applicable Roman and canon laws, since the old sources provided the foundation of post-Reformation ecclesiastical jurisdiction; to integrate English statutes and canons with the more general jurisprudence of the ius commune, since these new sources had a direct impact on the law applied in the courts; and to provide immediate guidance for the lawyers preparing for litigation in the courts, since forms and advice about procedure were often what the lawyers

needed most. This specialized literature, greater in extent than any of the other kinds, is impressive. It will be relevant again in the second half of this volume, which is devoted to substantive law, but it should not be omitted here, because it shows the forward movement of the profession in the hundred years before the end of ecclesiastical jurisdiction in the 1640s.

Henry Swinburne began his career at age 16, as a clerk in the office of the registrar at the archbishop’s court in York.®> He spent almost ten years in that capacity before proceeding to Oxford, where he took a BCL, returning to York as an advocate in 1581. He remained there, acting as an advocate and occasionally a judge in the courts of the Northern Province. In this sense, he enjoyed a ‘middling’ career as a civilian. What raises him above that level was the production of two treatises, the first on the law of last wills and testaments, the second on the law of marriage. The second has the merit of being the only English treatise to incorporate the elaborate learning of the medieval canonists on the words necessary to enter into an indissoluble marriage, but it was an incomplete treatment of matrimonial law. It was easily eclipsed by the treatise of Thomas Sanchez (d. 1610), and there was not enough English provincial or statutory law on the subject to require special treatment. That cannot be said of the first treatise. It long remained a standard authority. Swinburne’s treatment of testamentary law was as impressive in its command of the learned laws as it was in its recognition of the special character of English probate practice. For example, in England a man could not bequeath goods or 65 See J. Duncan M. Derrett, Henry Swinburne (1551-1624) Civil Lawyer of York (1973).

EDUCATION AND SCHOLARSHIP 255 chattels held jointly with another, although he noted that this result was not wholly in accord with the civil law’s rule.® In making points like this, Swinburne was able to call upon a full range of common law authorities: statutes, treatises, reported cases, and abridgements. But his principal sources remained those drawn from the ius commune. In the late sixteenth century, the royal courts had as yet made few inroads into ecclesiastical jurisdiction on this subject, and it was entirely sensible for a conscientious author to devote the bulk of his attention to the traditional authorities. If anyone doubts the continued reliance of the English civilians on the civil and canon laws, he has but to pick up a copy of Swinburne’s work

and look through the marginal citations. They are filled with references to Continental commentaries. It was Swinburne’s accomplishment to have combined genuine erudition in the learned laws with a down-to-earth interest in the questions that arose in the courts. What things were to be put in the executor’s inventory of the goods of a decedent, for example—whether leases of land, growing corn, debts owing, and profits accruing from land belonged there—none of this was beneath his attention.*%

Francis Clerke’s Praxis in curtis ecclesiasticis, written in the 1590s, demanded similar respect and was similarly useful to the profession, although it lacked the systematic completeness and orderly approach of the best of the Continental procedural literature. It accomplished for procedure in the ecclesiastical courts something like what Swinburne had done for wills. Clerke himself was only a proctor

in the London courts; he sought out an Oxford degree only (it was said) to improve the look of the book’s title page. He began the Praxis with a description of the courts of the archbishop with which he was most familiar, but the information he provided in the body of the treatise applied as a general rule in other ecclesiastical courts.®8 As with most such Continental works, Clerke’s method was to take the reader through the different stages of litigation, providing information about what was needed at each stage. The method allowed an author to convey a good deal of substantive law. Certainly this was the case with Clerke. For example, in discussing the initiation of a testamentary cause, he raised the question of which

persons had sufficient interest in a decedent’s estate to allow them to require executors and administrators to render an account of their administration.® In

principle, he wrote, both legatees and creditors were permitted to do so. 66 Henry Swinburne, A Brief Treatise of Testaments and Last Wills, pt. 3 § 6 (1590), 92, citing Cod. 6.37.10 for the general proposition. 67 ibid., pt. 6 § 7 (p. 218). Similar is a manuscript treatise on the law of executors, BL, Royal MS. Cleo. Ei, ff. 338-434; it also made use of both cases and treatises on the common law as well as authorities from the ius commune.

68 J, Duncan M. Derrett, “The Works of Francis Clerke, Proctor’ (1974) 40 Studia et documenta

historiae et 1uris 52-66. 69 Praxis, tits. 69-71.

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Enforcement of their rights was not left to the discretion of the judges. However,

the private parties had to produce more than a bare claim of right before the accounting would be required, and Clerke described the initial showing they were required to make. He went on to note the circumstances in which the guardians (curatores) of children with a future or present interest in property mentioned in

the will might avail themselves of the same right, adding what evidence they would have to produce in order to do so. In other words, substantive law was mixed in seamlesssly with the procedure. Clerke did not live to see the publication of his work. That took place only after the Restoration. However, from its compilation in the 1590s it circulated quite widely in manuscript. Forty-nine manuscript copies have so far been discovered from the period before 1640, many of them to be found in the archives of consistory courts throughout England. It was used, and indeed imitated.7° A legitimate question can be raised: Whether Clerke’s Praxis counts as a truly learned work in the traditions of the ius commune. None of the references to Continental jurists found in Continental Praxes appeared in the text of his work. This was left for other hands to do. In fact, they did so. On many of the manuscript copies still in existence, anonymous users glossed the titles with citations to learned commentaries on the ius commune.7! In that restricted sense, Clerke’s Praxis does belong fully within the traditions of the tus commune. The law of tithes attracted no pre-eminent English author like Swinburne or Clerke, but it did call forth the efforts of more than one commentator. Most of

them are quite unknown today. What historical attention has been paid to the subject has concentrated instead on the larger questions of the source of the obli-

gation to pay tithes and contemporary resistance to payment begun by John Selden’s famous work.72 This concentration has caused neglect of the practical literature on the law of tithes written at the time. Decimarum et oblationum tabula (ast edn, 1591), ascribed on its title page to William Crashaw (d. 1626), is one such treatise that was printed. Divided into fifteen Quaestiones, each of which was fur-

ther subdivided, its aim was to bring to light laws that ‘lie hidden in manifold, dark and dangerous corners in practise only, familiar in consistories.”3 To accom-

plish this, the author raised many legal problems important in practice: grazing 70 e.g, LPL, Arches N/4 (seventeenth century) (apparently a rearrangement of most of Clerke’s sections); BL, Add. MS. 6254, called “Summarium processus iudicii in curiis ecclesiasticis huius regn’

which appears more in the nature of a competing work; WTRO, MS. D5/24/18 (early seventeenth century), which appears to be a little of both. 71 This is discussed at greater length in Helmholz, Roman Canon Law, 128-32. 72 John Selden, History of Tythes (ast edn, 1618). The controversy is traced, with perhaps undue emphasis on the difficulties of collecting tithes, in Christopher Hill, Economic Problems of the Church from Archbishop Whitgift to the Long Parliament (1956), 77-131. 73, Tabula (1671), Pr. (no pagination).

EDUCATION AND SCHOLARSHIP 257 animals moving from one parish to another, the law of custom and the status of a modus decimandi, the distinctions between personal and praedial tithes, and the duty to pay tithes from the fruits of animals (e.g. eggs, honey, offspring). He called

on the texts of the Corpus iuris canonici, together with works by William Lyndwood, Petrus de Ancharano (d. 1416), Innocent IV (d. 1254), Hostiensis (d. 1271), Petrus Rebuffus (d. 1557), and Andreas Barbatia (d. 1479) for support and clarification. He also referred to English statute law, but he did not take much note

of the case law. Ignoring cases from the common law was quite typical of the approach of the civilians. They admitted the force of parliamentary statute, but they did not ascribe similar authority to common law decisions. Some other canonical tracts on the law of tithes failed to make their way into print. They were also anonymous for the most part, and some are quite modest in length and coverage. Probably the most extensive surviving example, called only ‘Materia decimarum’ and now in the British Library, bears a date of 1617 but no author’s name.”4 Its completeness in dealing with the material was inferior to that of the Tabula, but it covered much the same ground and relied on the same mix of canonical and statutory authorities. Its tone was also slightly more aggressive in stating the clergy’s rights to tithes and the church’s jurisdiction over them. For example, it claimed that tithe causes were to be classed among spiritual pleas and in no instance subject to the cognizance of lay courts, citing two chapters from the canonical texts as authority (X 2.2.11 and Clem 2.1.2).75 That was a controversial statement at the time, and the litigants and common lawyers who were

claiming a larger role for the lay courts in tithe litigation would not have been much impressed by the author’s proof. As well as being a treatise that dealt with some of the intricacies of the law of tithes, it was part of the controversial literature of the time. These four areas of ecclesiastical jurisdiction do not exhaust the coverage of the monographs written by the civilians during the sixteenth and seventeenth centuries. The intricate and contentious question of usury was the subject of several works incorporating learning from the ius commune. The best of them was probably that written by the statesman, humanist, and civilian, Thomas Wilson (d. 1581).76 The law of ecclesiastical benefices and canonical elections was the subject of an anonymous

treatise also compiled during Elizabeth’s reign.”” In it, citations to works of Lyndwood and Panormitanus mingled with references from English statutes and Fitzherbert’s Novel natura brevium. A short treatise, written early in the seventeenth 74 BL, Lansd. MS. 132, ff. 164v—190. See also BI, Prec. Bk 2, pp. 451-63 (‘A brief collection’ dealing with

tithes from the 1630s). 75 ibid., fo. 168v. 76 Thomas Wilson, A Discourse upon Usury (1st edn, 1572). See generally Norman Jones, God and the

Moneylenders: Usury and Law in Early Modern England (1989), 6-46, 206-9; Peter Medine, Thomas

Wilson (1986). 77 CUL, MS. Dd.g.29.

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century and now in the Bodleian Library, dealt with the law found in the title De iniuriis in the Roman law Digest, but it also took note of the English law of defamation shared between the royal and ecclesiastical courts.” The book by William Clerke (d. 1655) on the law of bastardy aimed at explaining the definition and treatment of illegitimacy stated in the ius commune and relating them to English practice.79 It included, for example, an arbor consanguinitatis in the style of so many Continental treatises. Several procedural works, in addition to the Praxis by Francis Clerke, were devoted to explaining the procedure and practice used in particular courts, although most of them remain in manuscript.8° One could not conclude that these and other works, taken together, reached the level of sophistication and length of what was produced by contemporary civilians on the Continent. Holdsworth may have been right to remark, “In the sixteenth century no great books were written on ecclesiastical law.®! Still, it is not an exaggeration to say that the lesser works performed a signific-

ant service in the history of English law. They brought the literature used in the ecclesiastical courts up to date without losing contact with the ius commune. MISCELLANEOUS TRACTS AND NOTEBOOKS

It would seem almost frivolous to devote any particular attention to the collections of miscellaneous civilian material now found in various English archives, were it not for the fact that such works had such an established place in the ius commune. Libri quaestionum, Observationes turis, and Miscellanea ex utroque iure were familiar titles.

They must have been useful too. Several among them—Joachim Mynsinger’s Singularium observationum for instance—became well known and were quoted frequently by the English civilians. Although some of the English collections of miscellaneous points of law were probably student efforts, more valuable today for what they show about legal education than they would have been at the time to a practising civilian, that cannot be said of all of them. Some were kept and added to, long after their authors had left academic life to become judges, advocates, or proctors. They add to the information to be gleaned from the monographic literature. Among these works, one of the best was kept by Clement Colmore. It is now part of the archives at Durham.*? Originally from a Warwickshire family, Colmore 78 Bodl., Rawl. MS. C.53.

79 Triall of Bastardie (ast edn, 1594). He began by noting the slender treatment of the subject by Sir Thomas Smith and set about making good that deficiency. 80 See CCAL, MS. Z.3.25, called “Practica iudicialis et petitiones forenses’; WTRO, MS. D/5/24/18, fo. 1,

beginning ‘De modo exequendi citationes’; CUL, EDR F/5/45, styled ‘Praxis curiae supremae commissariorum regis’; Bodl., Rawl. MS. D.1461, called “Tractatus de forma processus in curlis ecclesiasticis’; WSRO, MS. Ep I/51/4, entitled “Practica curie Cestr’?; NNRO, MS. DN/PCD 26, a twenty-page treatment of the law relating to citation of parties. 81 W.S. Holdsworth, Sources and Literature of English Law (1925), 230. 82 DUL, DDR XVIII/3.

EDUCATION AND SCHOLARSHIP 259 attended Oxford (MA 1573, BCL 1573, DCL 1582) and served as the judge of the consistory court at Durham from the latter date until his death in 1619. He was ordained, holding more than one benefice during the course of his career.83 His collection, which fills 386 folios of closely written text, contains a very great variety of material: forms from litigation, legal queries, discussions of Parliamentary statutes, opinions of counsel, lists of court fees, comments on actual causes from the ecclesiastical courts, notes about his own marriage and his children, and a long alphabetical list of points about canon and civil law. Most of it is quite practical, and some of it is quite informative. So, for example, Colmore raised the question of whether, when he received a writ of prohibition in a cause before him, he could lawfully remit the matter to the court of the archbishop, to which one of the parties had appealed. His answer was that he could, reasoning that in doing so, ‘I am so far from proceeding in the cause, that I utterly rid my hands of it’.84 One sees in remarks like these why common lawyers became exasperated with the conduct of the civilians. It is useful information in any case, and there was a great deal more informative material in the book. The order of debts to be paid when a person died with insufficient assets to pay all his creditors occupied one of Colmore’s pages.85 This was a vexed question. For example, should wages due to servants be

paid before and possibly in preference to a recognizance on a statute staple? Colmore gave a rule (No), but whether this was simply his opinion or an established point of law is not clear. He himself supplied no authority. That example contrasts with the rest of his collection. Elsewhere references to the texts and commentaries on the tus commune abound. If Colmore’s was the fullest, his was far from the only such collection. One from about the same time now at Trinity College, Dublin, for example, deals with a similarly miscellaneous group of subjects.8° It was, however, a much slighter effort. Most of the citations came from either Gratian’s Decretum or Lyndwood’s Provinciale. But the compiler was quite concerned with practice; he took note, for

example, that tithes on crops still in the field when a parson died were given by custom to the administrator of a parson’s estate in order to pay the parson’s debts and legacies, even though under the formal canon law they belonged to his successor.8? Another example from about the same period, which was arranged 83 See Levack, The Civil Lawyers (above n. 62), 219-20.

84 Swifte c. Johnson, DUL, DDR, XVIII/3, fo. 125. 85 ibid., fo. 254v. 86 TCD, MS. 598, described in the catalogue as “Collectanea de jure civili et canonico c.1600. Other examples: Queen’s Coll., Oxford, MS. 360; BL, Add. MS. 72544A; Bodl., Lit. MS. Eng.misc.f.473,

the last containing twenty-nine pages of notes on ecclesiastical law, including opinions of the Doctors.

87 TCD, MS. 598, ff. 12v-13. This question was the subject of synodal legislation (Statutes of Salisbury I, c. 69 (1217 X 1219) in C. & S. II, pt. 1, 82-3, and a long gloss in Lyndwood, Provinciale, 25, s.v. de consuetudine.

260 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

alphabetically and is now in the Bodleian Library, was more academic in tone but fuller in its use of learned authorities.88 Besides basic texts from the Roman and canon laws, it made reference to works by Bartolus, Robert Brooke, Panormitanus, Anthony Fitzherbert, Aymon Cravetta (d. 1569), Bracton, Innocent IV, Edmund Plowden, and Franciscus Mantica (d. 1614), as well as several others. But it must be admitted that the author did not go into any of his subjects in depth. At least

he provided enough information to anyone who wished to go further. An unusual, if incidental, feature of the treatment is that in discussing the crimes for which one incurred automatic excommunication, he chose to send his readers to

the medieval treatment found in John de Burgh’s Pupilla oculi.89 This was unusual. Among English writers, it is more normal to discover only Lyndwood’s Provinciale being cited in later manuals like this one. REPORTS OF CAUSES AND OPINIONS OF COUNSEL

A natural but unanswerable question is whether the final category of civilian literature—treports of causes from the ecclesiastical courts—was inspired by the flowering of reports in the English common law courts that occurred beginning in the sixteenth century. Against the supposition, one can say that the publication of decisiones from ecclesiastical courts on the Continent was well established already. Decisiones of the Roman Rota and the see of Toulouse were well known to the English civilians, and it was always their first instinct to seek guidance from the fonts of the ius commune. For the supposition, however, one can say that the Continental decisiones were typically full-blown expositions of the legal issues raised in a particular case and were ‘academic in the sense that they were meant to present a full legal

argument supported by the authority of the commentators. Most of the reports done by the English civilians look more like the judicial notes about a cause that one

finds in so many of the common law reports of the time, that is, quite brief and unofficial renderings of important points about a case. Indeed, a collection of ecclesiastical causes on defamation now in Nottingham University Library looks very like the common law collection of cases on the same subject by John March. At the same time, some of the causes in ecclesiastical reports were reported at length, just as was true of the reports from the royal courts. Whatever the inspiration may have been, ecclesiastical reports were compiled. Some English civilians began to keep notes about particular causes at the latest from the second half of Elizabeth’s reign, putting them into notebooks and circu-

lating them in manuscript copies. Nothing like the number of reports found for 88 Bodl., Rawl. MS. D. 1478. The manuscript, now Trinity Hall, Cambridge, MS. 42/1 (c.1613) seems

also to be of this type. 89 ibid., fo. 74. 9° Comparing NUL, Collection of Cases, MS. AN/A 43 (1634-7), with John March, Actions for

Slaunder (1648).

EDUCATION AND SCHOLARSHIP 261 the common law courts has survived, and it is improbable to suppose that a great many more of them once existed and have since disappeared. Nor do we have the names of the reporter in most cases. But the number is large enough to merit our attention. The fact that they were compiled reveals the nature of the aspirations of the civilians, and they lift the veil that so often conceals the reasoning from legal rules to result in the formal records of the ecclesiastical courts. The best, or at least the fullest, of the reports is a Tanner manuscript now kept in the Bodleian Library.%! It contains causes from the London courts, mostly the Court of Arches, and covers the years 1597 to 1604. It must have been kept contemporaneously, since the same cause sometimes appears at more than one place in the manuscript. Some causes were very fully reported; they included full statement of the facts, the names and arguments of the advocates on each side, the authorities cited, and the sentence in the case. Others were no more than brief notes about the existence of a particular cause; they may break off without any resolution. Quite a full range of ecclesiastical litigation appeared in the manuscript, and it now enables the student to appreciate some things about the causes that cannot be told from the records. For example, the importance of presumptions in the law is apparent in a way it never is in the act books. A woman was found in a man’s bed, and he was found in the same room clad only in his shirt. Did that suffice to prove the adultery necessary to secure a divorce a mensa et thoro’

The court held that it did, relying expressly on a standard legal presumption drawn from these facts.92 The records, by contrast, only allow guessing about the legal reasoning being used. On the evidence in this book, questions of proof and

procedure like this loomed much larger in the spiritual courts than one might suppose. Could one executor secure a beneficium divisionis of the assets of the decedent against a fellow executor if he failed to file this claim before the litis contestatio?93 If one party claimed that the judge had taxed excessive charges in a suit, could he appeal successfully if the libel of appeal failed to specify how great the excess had been? Questions like these occupied the attention of this reporter. As such, it was inevitable that the great majority of the citations in the manuscript were to Continental treatises on the canon and Roman laws. Citations to English common-law authorities do appear in it, but in virtually every situation they were outweighed by those from the tus commune.

Most of the other ecclesiastical reports from before 1640 were less complete than the Tanner manuscript.9> Some did come close. A small notebook now in the library of the London Guildhall and also (in part) in a book among the diocesan 91 Bodl., Tanner MS. 427. 92 Forest c. Forest, ibid., fo. 14Vv. 93 Case of Piddocke’s Testament, ibid., ff. 38v—39. It was decided that he could. 94 Cob c. Hunt, ibid., fo. 118. The court allowed the appeal.

95 There is a fuller list in Helmholz, Roman Canon Law, 198-9.

262 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

muniments at Worcester, contains a very large selection of illustrative causes.%° Several volumes of the papers of Sir Julius Caesar in the British Library contain lengthy reports, including full citation of authorities, taken from both the admiralty and ecclesiastical courts.2”7 A notebook now in the Borthwick Institute in

York contains causes both from the ecclesiastical courts and from the vicechancellor’s court for Cambridge University. The variety in form among the collections was considerable. Reports of causes were sometimes mixed in with other material, as in a formulary from the courts or a miscellaneous collection from one of the universities. Clement Colmore’s book at Durham, for example, contains quite a few reports drawn from practice. A formulary now in the Beinecke Library at Yale, similarly combined forms taken directly from litigated causes, with fuller statements of the facts and the judge’s resolution for some of them.9& An occasional example

of reports actually spanned the Interregnum, beginning with causes from the 1630s and continuing with some from the 1670s.99 All in all, the reports are invaluable in describing the substantive and procedural law within English eccle-

siastical jurisdiction, which will be the principal effort of the second half of this book. Opinions of counsel were very like these reports in opening up the nature of legal argument in the ecclesiastical courts. The opinions were formal answers to questions of law that were drafted by English advocates for use in a particular cause. They resembled the Continental consilia as much as they did anything else, though they were usually not as imposing in the range of learning on display. Most seem intended to advise, not to impress. Today these opinions are found scattered throughout diocesan archives and placed in diverse kinds of manuscript books. Precedent books, treatises, private correspondence, proctors’ notebooks, and cause papers kept by the courts all sometimes contain them.!° They provide a few high points. Opinions from the pen of the judicious Swinburne are, for example, to be found in a Durham manuscript.!°! Some are particularly noteworthy because they are found alongside opinions on the same subjects by common lawyers. Like the ecclesiastical reports, a few of the opinions by the English 96 GL, MS. 11448; WORO, MS. 794.093, BA 2740/B.

97 BL, Lansd. MSS. 129-31, 135. BERO, MS. D/ED/O48 seems to be taken partly from the same source. See Alain Wijffels, “Sir Julius Caesar’s Notes on Admiralty Cases: An Alternative to Law Reporting?’ in Law Reporting in England, ed. Chantal Stebbings (1995), 89-112.

98 Beinecke Library, Yale University, Osborn Shelves, MS. f.b.24. 99 CUL, Add. MS. 8866. 100 e.g. in order: BL, Harl. MS. 5105, ff. 316-323; CCAL, MS. Z.3.25, ff. 270, 313; BL, Lansd. MS. 68,

fo. 167 (no. 56); ERO, D/AED 9, fo. 12v; Mollineaux c. Rymer et al. (Chester and York, 1577) BI,

Trans.CP.1578/3. 101 Library of D. & C., Durham, Raine MS. 124, ff. 230, 234 (c.1607). 102 e.g, CUL, MS. CUA Collect. Admin. 38 (seventeenth-century civilian’s notebook containing an opinion from 1630 by Dr Eden at fo. 224 and one by Serjeant Hutton at fo. 247).

LEGISLATION 2.63 civilians were quite elaborate, with full discussion of issues and extended citation. More of them were much less detailed. Often, the advocate’s answer to a question of law was given but no academic support was added.!©3 Probably you got what you paid for. But even the sparest opinions are not without value. They provide insights into the views of the men who spent their careers in the courts of the church.

LEGISLATION Secular legislation had a direct impact upon the ecclesiastical courts in England after the Reformation to a greater extent than it had before. Although they existed, Parliamentary statutes regulating litigation in the courts of the church had been relatively infrequent before the reign of Henry VIII. Some of the earlier measures had affected the canon law itself, but the majority had been meant to state the common law’s claim to regulate the jurisdictional competence of the ecclesiastical courts. On the church’s side, the evidence is much the same. Although the measures passed by diocesan and provincial synods and by Convocation during the thirteenth and early fourteenth centuries had made substantive contributions to the English church’s law, much less synodal legislation was enacted during the later Middle Ages. Convocation had largely become a taxing assembly. At the start of the sixteenth century it must have seemed that little else could be expected from it. All this changed in the course of the sixteenth century. The burst of legislative activity that issued from the Council of Trent of course had little effect in Protestant

England, but both the English Parliament and the English church itself enacted new legal rules in greater numbers and with a broader scope than would have been expected from the record of either during the later Middle Ages. The question of

ultimate spiritual authority was buried, or at any rate put into the background. Constitutionally, both Parliament and Convocation could point to medieval precedents for what they were to do under the Tudors and Stuarts, and these precedents were pressed into service. Indeed, some of the medieval statutes and canons continued to be important in practice. Few of them were repealed, and the civilians drew no distinction in principle between them. However, it was also true that some of the statutes belonged to the distant past and were superseded by new legislation.

Ecclesiastical Legislation The English clergy during the Tudor and Stuart eras conceived that they possessed

the right to enact legislation and to secure its enforcement in the ecclesiastical courts. Statutes passed by Parliament controlled if they clashed with measures 103 SKRO, MS. E 14/11/7 (1631), belongs to this type.

264. ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

coming from Convocation alone, but this restriction did not rule out ecclesiastical measures. Purposeful regulation of religious affairs by the church took several forms. As was true in earlier periods, an initial question is to determine exactly what counts as legislation. Does it include episcopal mandates to the diocesan clergy and the articles used in parochial visitations?!®4 Both stated legal rules and could lead to monetary awards or exemplary punishment. Does it include decisions on legal points by individual bishops, like that made in 1633 by Archbishop

Laud about what constituted sufficient ‘title’ to support a candidate for holy orders?105 They too stated legal rules. They too could amend or reaffirm established canonical usages. It is hard not to count them as legislative in their practical effect. If, however, we confine our attention to canons enacted by Convocation, as it is all the more natural to do because of its connection with Parliament, the compet-

ence the church asserted still appears to have covered a quite broad range. The rule that Convocation could not legislate for the laity without the consent of Parliament, although occasionally suggested at the time and no doubt desired by some,! was actually a later development.!°” Indeed, a large proportion of the statutes enacted in Convocation had a direct impact upon the laity. Critics of the church’s legislative power could boast of a precedent from the reign of Edward III in support of the need for parliamentary approval of all legislation in ecclesiastical matters.!°8 But the reality was otherwise.!°9 Whatever opposition there was did not prevent either passage of legislation in Convocation or its implementation in the spiritual courts. Both are fully attested in the historical record. Canons were enacted 1n 1571, 1575, 1584, 1597, 1604, and 1640.11 None treated the laity differently

than they did the clergy. Nor did a more technical problem present real difficultles: some of the canons were passed only through Convocation in the Southern Province of Canterbury. However, with the exception of the 1640 canons, they were either ratified in the province of York or enforced by virtue of obedience due to the monarch.!!! In practice, they were effective across the nation. Although historians

have commonly paid much greater attention to Parliamentary statutes dealing 104 See e.g. Archbishop Whitgift’s injunctions of 1584 in Wilkins, Concilia, iv. 307-8; see generally

Visitation Articles, Frere. 105 Wilkins, Concilia, iv. 482.

106 e.g, by Roger Owen, MP (Parliament of 1601) in Simonds D’Ewes, A Compleat Journal of the Votes, Speeches and Debates... throughout the Whole Reign of Queen Elizabeth (2nd edn, 1693), 641. See generally Esther Cope, “The Short Parliament of 1640 and Convocation’ (1974) 25 JEH 167-84.

107 Evidence on this point is more fully set out in “The Canons of 1603: The Contemporary Understanding’ in English Canon Law: Essays in Honour of Bishop Eric Kemp, ed. Norman Doe, Mark Hill,

and Robert Ombres (1998), 23-35. 108 RP, ii, no. 8, 149-50 (1344); RP, 11, no. 46, 368 (1376-7). 109 ‘The common understanding was stated by the King’s justices in a memorandum (1604) Cro. Jac. 37. On the aspirations of Convocation, see David Crankshaw, “Preparations for the Canterbury Provincial Convocation of 1562-63: A Question of Attribution’ in Belief and Practice in Reformation England, ed. Susan Wabuda and Caroline Litzenberger (1998), 60-93.

110 Marchant, Church under the Law, 129-30. 111 See Anglican Canons, 12-578.

LEGISLATION 2.65 with religion, ecclesiastical legislation properly speaking also played a significant role in the day-to-day running of the ecclesiastical courts. The necessity of royal assent was the more serious limitation to the right of the church to enact legislation at the time. Constitutionally, it was a quite revolutionary change. Nor was its effect limited to theory. King James I refused his assent to canons passed by the Canterbury Convocation in 1606, and they did not become law.112 In the event, however, harmony marked most aspects of relations between

monarch and clergy, and canons were issued accordingly. They were put into practice. A few of them were important enough that they attracted detailed and extended commentary by the Stuart civilians. Like lawyers in many ages, they were more concerned with immediate legal problems than constitutional theory.!13 THE NATURE OF THE LEGISLATION

No full study of the ecclesiastical legislation enacted during the period has yet been attempted, but most of the statutes are in print, and several conclusions about the nature of the law they contained can be offered. First, some of the canons enacted by Convocation restated traditional canonical rules, most of which for one reason or another had not been adequately enforced. This was an old story. The repetition of the same rules from one synod to the next had been a disquieting but persistent

feature of life in the medieval church, and the Reformation did not bring it to a close. Indeed, one of the canons of 1604 specifically re-enacted a diocesan constitution ascribed to 1236 about baptismal fonts, stating that it had been ‘too often held in neglect’114 Similarly, legislation was enacted against non-residence by the

clergy, simony, holding benefices in plurality, and too easy commutation of penances.!15 Canons required that men to be ordained have a sufficient ‘title’ and that they be sufficiently learned to carry out their high calling.!4° The clergy was required to denounce those who had been solemnly excommunicated, but sentences of excommunication were not to be issued without due regard for form.!!” Children were not to be left unbaptized if they were in any danger of dying.1!18 Canons like these provided nothing new. They put into different words and sometimes slightly different forms some venerable principles of ecclesiastical law. At most, they provided new penalties for old offences. 112 Anglican Canons, 457-84. See generally Conrad Russell, “Whose Supremacy? King, Parliament and the Church 1530-1640’ (1997) 4 Ecc. LJ 700-8. 113 e.g. BI, Prec. Bk 2, pp. 154-5, 208-9, most dealing with marriage. 114 Canons of 1604, c. 811n Anglican Canons, 375. The reference was to Lyndwood, Provinciale, 241-4. On these statutes, see Cheney, English Synodalia (Ch.2, n. 213), 65-7. 115 See Canons of 1584, cc. 2, 5; Canons of 1604, cc. 40, 41, 45 in Anglican Canons, 223, 247. 116 Canons of 1604, cc. 33-5 in Anglican Canons, 312-17. 117 Canons of 1571, c. 4; Canons of 1604, c. 65 in Anglican Canons, 185, 355. 118 Canons of 1604, c. 69 in Anglican Canons, 359.

266 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

A desire to stake out a continuing role for ecclesiastical legislation is evident

in Convocation’s actions. The clergy did not wish Parliament to occupy the field. The canons of 1640, with their emphasis on obedience to the king and the legal authority of the church, constituted a particularly strident statement of position. Continued after the dissolution of Parliament, Convocation’s actions were something of a thumb in the eye of the Parliament.!!9 The famous ‘et cetera oath, by which the clergy were to be required to swear to the system of established church government and also whatever else might be included within the phrase et cetera, caused especial unease.!2° However, the 1640 canons were only a final expression of the clergy’s insistence that Convocation possessed the power of legislation; they did nothing new. It is true that, as with their medieval predecessors, the practical effect of re-enacting these rules was more modest

than the aim. In terms of immediate effect, the most that can be claimed for some of the new canons is that they provided additional publicity for the traditional rules. Parish churches were required to keep a copy of the relevant canons; the purpose of bringing home to parishioners the contents of the church’s law may have been served thereby. For example, a long canon among those enacted in 1604 explained the lawfulness and the desirability of using the sign of the cross in baptism.!2! This raised an explosive issue at the time, and it was conceivable that some doubters might have been convinced by the canon’s statement that ‘the abuse of a thing doth not take away the lawful use of it’. Even if they were not, however, the canons were clear expressions of a role separate from that of Parliament being asserted on behalf of the church, and they were meant to be significant on that account. Second, canons designed to carry forward the cause of the Christian religion as it was being espoused in England were regularly enacted. Some of them were identified with Protestantism; some were more general. That the English church was a true and apostolic church was asserted by one of the Canons of 1604. Those who impugned its rites and ceremonies were declared ipso facto excommunicate.!2?

Bishops were required to exhort their people to read the Holy Scriptures, and cathedral chapters were obliged to ensure that minor canons and vicars choral both owned and studied the Scriptures ‘lest they live idly and unprofitably in slothfulness’!23 A sermon was to be preached in every parish at least once a month if parochial resources were sufficient, and a homily was to be read by the 119 Canons of 1640, c. 6 in Anglican Canons, 568; the subject is discussed in Julian Davies, The Caroline Captivity of the Church (1992), 250-87. 120 See e.g. Anecdotes and Traditions, ed. William Thoms (= 5 Camden Soc., 1839), no. 98. 121 Canons of 1604, c. 30 in Anglican Canons, 303-9. 122 Canons of 1604, cc. 3, 6 in Anglican Canons, 270-3. 123 Canons of 1571, cc. 1:2, 2:5 in Anglican Canons, 172-3, 180-1.

LEGISLATION 2.67 incumbent or the curate on other Sundays.124 Archdeacons were required to own a copy of Foxe’s Book of Martyrs.125

Some of these measures must be counted as successes in terms of effect. The availability of bibles in parish churches, the object of more than one new canon, was one.!26 Others were less successful, like a canon of 1604 that prohibited public disagreement between preachers in the same church. The want of express sanctions in many of the new canons stood in the way of their enforcement, and it may be that a few of them must be counted as ‘aspirational’ in quality. That was a feature they shared with many past enactments, including some papal decretals in the Corpus iuris canonici. Because decretals were not in their origin legislative in character, but rather answers to questions that had arisen in litigation, the decretals often stated the substantive law without providing a specific sanction. They suffered thereby. Many of the new canons, although clearly meant to be legislation effective in practice, followed the same pattern. They said nothing very specific about the consequences of disobedience. The omission created problems, because even ordinarily obedient clergy would not always follow rules that were without any sanction.!2” And as the civilians themselves were later to realize and lament, neglect of the canons could create a prescriptive custom to the contrary, so that the force of a canon would be lost.!28 It has been a common feature of ecclesiastical law that rules are provided for guidance as much as they are for coercion. That feature may explain some of the canons. It cannot explain them all. Third, new canons made adjustments in the traditional rules of the canon law. Some of the canons of this type were designed to still doubts or resolve awkward

points in the law; some to bring the canons ‘up to date’ with more current thought; and some to make more definite, in new circumstances, legal conclusions

drawn from old rules and usages. The law of marriage provides an accessible example of each. Although the core of marriage law remained unaltered during this period,!29 changes occurred around the edges in three areas. An example of the first was in stating more precisely the circumstances in which a licence to marry without banns could be issued; an example of the second was in increasing the age of consent to 16 for men and to 14 for women; and an example of the third

was in requiring a bond not to remarry by those who were granted a divorce a mensa et thoro.!3° An example that combined all three was the canon that 124 Canons of 1604, c. 47 in Anglican Canons, 335. 125 Canons of 1571, c. 3:1 in Anglican Canons, 182-3. 126 Canons of 1571, c. 5:33 Canons of 1604, c. 80 in Anglican Canons, 192-3, 374-5. 127 See Case of Deprivation (c.1610), BI, Prec. Bk 11, fo. 4ov.

128 See Complaint of the Lower House, Convocation of 1703 in Cardwell, Synodalia, ii. 707-9. 129 See generally Eric Josef Carlson, Marriage and the English Reformation (1994). 130 Canons of 1604, cc. 3, 100, 107, Canons of 1571, c. 4:12 in Anglican Canons, 224-5, 190-1, 400-1, 406-7.

268 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

regulated the prohibited degrees of consanguinity and affinity.!3! Neither it nor the other canons (nor the Parliamentary statute), can be said to have succeeded completely in their aims. Doubts about the scope of the prohibited degrees remained. The disputed question of the extent of parental control of their children’s marriages was not solved. A canon of 1604 prohibited marriages below the age of 21 without consent of parents or guardians, but it did not provide any specific sanction.!52 At the least, however, the church’s power to enact laws was being asserted. It was probably with regard to the law of procedure and proof that the canons were at their most successful. Many new statutes were enacted for the consistory courts, and details in the law were adjusted to improve the speed and fairness of proceedings within them. For example, one of the 1604 canons provided a qualified immunity from suit for churchwardens who presented parishioners to an ecclesiastical court for having committed a crime.!33 The scope of liability had been a cloudy area of the law. Under some readings, the burden of proof was on a churchwarden to show that he had acted without malice in making a presentment, and he could be successfully sued for defamation if he could not meet that burden. It was an invita-

tion to trouble. By clarifying that the presumption ran the other way, that is, in favour of the wardens, this canon attempted to minimize the consequences. As one

civilian report stated, the new rule: ‘No judge will admit an action against the churchwarden, because it is to be presumed he doth it not upon malice’!4 Fourth, some canons imposed new duties upon the courts of the church, mainly on the ex officio side. The courts were required, for example, to deal with persistent drunkenness, and for the first time this offence began to appear in the act books and presentments kept by the courts.!35 Measures for the support of the poor likewise came partly within the ambit of the spiritual courts. Churches were required by the canons, as by prior royal injunctions, to provide a chest for alms to be given by parishioners ‘to their poor neighbours’. It was left to the ecclesiastical courts to see to it that the duty was fulfilled.13° Schoolmasters were obliged under one of the 131 Canons of 1604, c. 99 in Anglican Canons, 398-9. 132 Canons of 1604, c. 100 in Anglican Canons, 400-1. 133 Canons of 1604, c. 115 in Anglican Canons, 414-15. 134 BI, Prec. Bk 11, fo. 10v. See, however, Medcalf c. Bishop (1600), Bodl., Tanner MS. 427, ff. 62-64v, where

the canon was challenged and the privilege construed narrowly. Sentence for defamation was given against the churchwarden, ‘ex eo quod apparuit odium fuisse aut saltem malevolenciam ante presentationem.

135 Canons of 1604, c. 109 in Anglican Canons, 408-9. For contemporary attitudes towards drink, see Richard Greaves, Society and Religion in Elizabethan England (1981), 483-90. This was also the subject of Parliamentary statutes: 1 Jac. I, c. 9 (1603); 4 Jac. I, c. 5 (1606), 7 Jac. I, c. 10 (1609), 21 Jac. I, c. 7 (1624). Prosecutions in the courts: Ex officio c. Jeasmond (Rochester 1605), KAO, Act book DRb Pa 22, fo. 148 (‘common drunkard’); Ex officio c. Gunson (Lincoln 1611), LAO, Visitation book Vj/21, fo. 27v (‘a common

drunkard’). 136 Canons of 1604, c. 84 in Anglican Canons, 378-9; Injunctions of 1559, c. 11 in Visitation Articles, Frere, lil. 12.

LEGISLATION 269 1604 canons to have a licence from their bishops, and supervision of that level of education also fell within ecclesiastical jurisdiction.13” These duties were new to the courts; they had not made up a regular part of what the spiritual courts had done prior to the Tudor era. The canons were important instruments of these changes. Of the disciplinary jurisdiction that rested with the ecclesiastical courts, the most persistent and troublesome during this period were prosecutions involving religious dissent. In one sense, this jurisdiction was old. The medieval courts had regularly taken action against men and women who had spoken or acted in ways that were inconsistent with the doctrines of the church. In another sense, however, it was new. There was more open religious dissent to contend with, and there were

more canons defining what beliefs might be held and what conduct might be punished. For example, canons made it unlawful to assert that any ‘foreign power’ had legitimate authority within the church, and it was also unlawful to assert that archbishops, bishops, deans, and archdeacons did not have lawful authority.138 On

an unprecedented scale, men and women in seventeenth-century England held (and expressed) beliefs about proper church government in violation of canons like these. The offenders were difficult to deal with. For instance, what should have been done with two men who refused to receive Holy Communion at the hands of a curate because they thought the curate ‘was no preaching minister’?!39 The courts had to meet problems like this as best they might. To their credit, they normally did so with moderation.!4° They did not license dissent, but religious disagreement was not treated as heresy. Dissidents were warned more often than they

were punished. Some spectacular exceptions to the rule of lenity did occur, but normally the judges sought to persuade dissenters. Something like the prudence and restraint found in Pope Gregory I’s responses to St Augustine’s questions about the purpose of ecclesiastical discipline was echoed in the enforcement of the new canons. THE ROLE OF THE LEGISLATION

In reviewing the nature and scope of ecclesiastical legislation under the Tudor and early Stuart monarchs, any observer must be struck by two points. The first is its relative frequency and scope. The church reversed the decline that had taken place after the first years of the fourteenth century and had lasted to the first quarter of the sixteenth. Legislative activity by the church during this period, now backed by

the authority of the monarchy, covered many different parts of human life and 137 Canons of 1604, c. 77 in Anglican Canons, 370-1. 138 Canons of 1604, cc. 1, 2, 7 in Anglican Canons, 262-9, 274-5. 139 Fx officio c. Gurd and Watts (Salisbury, 1615), WTRO, Act book D1/39/2/8, fo. 3.

140 Martin Ingram, “Puritans and the Church Courts, 1560-1640’ in The Culture of English Puritanism, 1560-1700, ed. Christopher Durston and Jacqueline Eales (1996), 58-91.

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directly affected the exercise of ecclesiastical jurisdiction. It was, for example, a primary source of the visitation articles used by the English episcopate under the Stuarts.!4! It made decisive changes in the keeping of parish registers.142 Convocation thereby reached into virtually every corner of parochial life.

In terms of frequency of enactment, the record under the Stuarts was less impressive than it had been under Elizabeth, in part because Parliament met infrequently, in part simply because the basic Reformation statutes were already in place. However, the legislative output of Convocation cannot be dismissed as inconsequential.!43 To portray the clerical order throughout the period as feeble but obstinate opponents of reform in all matters affecting vested interests within the church, as is sometimes done, overlooks the contents of the canons that were enacted.!44 It is true that the bishops were not willing to go as far as their Puritan opponents desired on matters like suppressing the holding of plural benefices, putting an end to superstitious practices, or encouraging respect for the Sabbath. And they resisted on principle legislation coming from Parliament that would

have tied their hands in the enforcement of ecclesiastical discipline. But the canons themselves show that the bishops agreed with many of the objectives espoused by critics of the church. The second point is the overlap with parliamentary legislation. Both bodies passed measures of similar nature. Both directly affected the law of the church.

Where was the dividing line between the competence of Parliament and Convocation? It was not always easy to say, although many men did have their own opinions, and it was certain that in reality the efforts of the two bodies were running along parallel paths. A measure of overlap was acceptable to most people. In some sense, one could have said the same thing of Anglo-Saxon times. Then too there had been overlap in the laws of church and state. William Fleetwood made the point in the House of Commons in 1571,!45 and earlier Henry VII had himself made use of a collection of early materials to support his break with the papacy.!46 The Anglo-Saxon laws showed that the kings and their councils had 141 Visitation Articles and Injunctions of the Early Stuart Church I, ed. Kenneth Fincham (= 1 CERS; 1994), Pp. XVI-XVil.

142 Canons of 1597, c. 12 in Anglican Canons, 252-5. See also Will Coster, ‘Popular Religion and the Parish Register 1538-1603’ in The Parish in English Life 1400-1600, ed. Katherine French, Gary Gibbs, and Beat Ktimin (1997), 94-111, at 97-9. 143 See Conrad Russell, “Parliament, the Royal Supremacy, and the Church’ (2000) 19 Parliamentary History 27-37. 144 e.g, Jennifer Loach, Parliament under the Tudors (1991), 113: ‘the continuing feebleness of convocation as a legislative body’. 145 J. E, Neale, Elizabeth I and her Parliaments, 1559-1581 (1958), 196.

146 On the “Collectanea satis copiosa, see John Guy, “Thomas Cromwell and the Intellectual Origins of the Henrician Revolutior’ in Reassessing the Henrician Age: Humanism, Politics and Reform 1500-1550,

ed. Alistair Fox and John Guy (1986), 151-78; Janelle Greenberg, The Radical Face of the Ancient Constitution (2001), 82-91.

LEGISLATION 271 made ecclesiastical constitutions. Why should there be any difference, some men asked, now that papal usurpation had been put out of the way? Yet there was an undeniable difference. A good deal of water had passed under the bridge. A division between church and state had worked its way into the common assumptions men held about the way society should be organized. The easy fusion of the two spheres that had existed in Anglo-Saxon times was no longer possible. For example, one man who had killed a clergyman and received a royal

pardon thought it would be necessary, or at least appropriate, to receive the church’s pardon too.!47 For him, two different spheres existed. There were also those among members of Parliament who hesitated lest they step over the line that separated matters of secular concern from the legitimate province of the clergy.!48 Parliament and Convocation remained distinct institutions. The ‘mixed’ synods of the Anglo-Saxons were not revived. The attitude of the monarch and some of the bishops sitting in the House of Lords also presented an obstacle to amalgamation of the functions of church and state. The Thirty-Nine Articles, for example, were passed only by Convocation, although attempts had been made to secure their adoption by Parliament.!49 The Queen herself wished to keep a distinct space for the church, free from intrusion by Parliament, although not necessarily from her own. Elizabeth repeatedly inhibited the Commons from discussing matters touching the church and her prerogative.15° Many anxious Protestants in the House of Commons, by contrast, recognized few, if any, limits to Parliament’s rights in ecclesiastical matters. They sought and found ways around the royal inhibition. They wished the church to be governed by statute law and common law, not the canon law of an odious papacy or the decrees of a Convocation in which the laity took no part.!5! The House became the place where they could push for a truer reformation of the English church.

In some instances, they could count on support from the clergy themselves. Committed Protestants had no wish to resort to Convocation. The disagreements in principle were not settled. They led to hot words and intricate manoeuvring in Parliament. The ordinary round in the ecclesiastical courts was little touched by these events and opinions, however, at least at first. The most that can be said in conclusion about their effect on ecclesiastical jurisdiction is that they raised up 147 Cardwell, Synodalia, ii. 586-7.

148 e.g, George Carew MP in 1601, in Heywood Townshend, Historical Collections or an Exact Account of the Proceedings of the Four Last Parliaments of Queen Elizabeth (1680), 229. See generally Joan

Kent, ‘Attitudes of Members of the House of Commons to the Regulation of “Personal conduct” in Late Elizabethan and Early Stuart England’ (1973) 46 BIHR 41-71, esp. 47-50. 149 Wilkins, Concilia, vi. 73-5. 150 Loach, Parliament under the Tudors (above n. 144), 106—8; Solt, Church and State (above n. 19), 86-9.

151 This was the attitude, for example, of the Exeter antiquary and member of Parliament, John Hooker (d. 1601); see Parliament in Elizabethan England, John Hooker’s Order and Usage, ed. Vernon Snow (1977), 176.

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a source of trouble (as the civilians saw it) for the future. Perhaps feeling against ecclesiastical justice also led to some greater level of resistance to ecclesiastical court decrees in individual causes.

Parliamentary Legislation Historians have devoted a great deal of attention to parliamentary legislation affecting the church. They have clarified the paths by which legislation emerged, and they

have shed valuable light on the religious opinions of the English people in the process.!52 It is significant, for example, that many more bills were introduced than were enacted. The contention they aroused shows something about the mix of opinions in Parliament and in English society more generally. For the lawyer whose first task is to trace the history of ecclesiastical jurisdiction, however, the parliamentary

manoeuvring is important mainly in showing attitudes towards legislation that touched the church and attitudes towards the social and religious problems the church faced. The impact of the statutes themselves dwarfs in significance whatever was said in debate and whatever occurred behind the scenes. Enacted statute law is

what had a direct impact on practice in the spiritual courts.

Elizabeth’s first two statutes, the Statute of Supremacy and the Statute of Uniformity, harkened back to those of her father. This new legislation was carefully drafted.153 The earlier statutes had not pretended that Parliament had the right to alter the Christian religion or upset the rights of the church, and neither did Elizabeth’s. For example, in form the Act by which Henry VIII was confirmed as ‘Head in earth’ of the English church was professedly made ‘for corroboration and confirmation’ of Convocation’s act recognizing that the king rightly possessed that title already (26 Hen. VIII, c. 1, 1534). The king’s power was recognized, so that he could act ‘for the conservancy of the peace, unity and tranquility of the realm’

and rid the kingdom of the vices and inconveniences that had attended the exercise of papal jurisdiction. His duty was to work “for the increase of virtue and the repressing of heresy. These were the very duties of a king proclaimed by the classical canon law (e.g. Dist. 8 c. 2; C. 23 q. 5 c. 23). Elizabeth’s statutes ‘revived’ and

‘restored’ these measures. Where the newer statutes spoke about religious doctrine, as for example in the Act of Uniformity, they were careful to define heresy as consisting only of beliefs that were contrary to the tenets of the canonical scriptures and the first four general councils of the church, adding that any further

legislation on the subject stood within the joint authority of Parliament and 152 See J. E. Neale, Elizabeth I and her Parliaments 1559-1581 (1958); id., Elizabeth I and her Parliaments 1584-1601 (1958); Norman Jones, Faith by Statute: Parliament and the Settlement of Religion 1559 (1982); G. R. Elton, The Parliament of England 1559-1581 (1986), 198-222. 153 Rodes, Lay Authority and the Reformation (Ch. 3, n. 93), 77-94, 97-8.

LEGISLATION 273 Convocation (1 Eliz. I, c. 2, 1559). Whatever the reality, the legislation studiously avoided the appearance of innovation. CONTENTS OF THE STATUTES

Within this framework, the legislators of the Elizabethan and early Stuart Parliaments found considerable room for manoeuvre. Elizabeth and the first two Stuart kings would not permit Parliament to intrude too far into the affairs of the church, but just where the line was to be drawn no one could say for sure, and the Henrician precedents encouraged efforts to bring the law into accord with the needs of the time and the customs of the English people, at least as those needs and customs were perceived by members of Parliament. The bishops themselves also sometimes pressed for reform measures to ease their own burdens.!54 They cited the canonical adage, that the temporal sword should aid the spiritual sword, in support. The Tudor and Stuart monarchs were not uniformly hostile to ecclesiastical legislation coming out of Parliament, although they wished to preserve their leadership in its introduction and management. For purposes of analysis, most of the statutes that had an impact upon the ecclesiastical courts can be put into one of four categories. First, statutes were enacted to enforce the English religious settlement. In the broadest sense, this class includes acts restraining ancient privileges of the church and clergy that were inconsistent with the aspirations of the government. Putting an effective end to the privilege of sanctuary available to criminals is one example (21 Jac. I, c. 28, s. 7, 1624). Restriction on the number of crimes for which benefit of clergy could be claimed is another (18 Eliz. I, c. 7, 1576). Most statutes in this first

class, however, simply made concrete the implications and assumptions of the Protestant Reformation. Thus, in the wake of the papal excommunication of Elizabeth in 1570, it became treason to affirm publicly that the queen was a heretic or a usurper (13 Eliz. I, c. 1, 1571). Measures were passed to enforce attendance at

one’s parish church and to penalize popish recusants for not attending (e.g. 23 Eliz. I, c. 1, s. 4, 1581). A statute from early in James’s reign cleared up some of the confusion about the legal status of clerical marriages (1 Jac. I, c. 25, s. 8, 1603), and one from early in the reign of Charles I sought to prevent the profanation of Sundays that arose from ‘bear baiting, bull baiting, interludes, common plays and other unlawful exercises’ (1 Car. I, c. 1, 1625). Both duplication and differentiation marked this legislation and the canon law. Attending one’s parish church, for example, was a traditional duty under the classical law of the church. The ecclesiastical courts enforced it both before and after 154 See the proposals to reform abuses noted in Parliament of 1580, in: D’Ewes, Compleat Journal (above n. 106), 302-3.

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the Reformation. So the parliamentary legislation added nothing new in substance. What it did add was a secular penalty of £20 per month, the amount of the fine to

be forfeit to the Crown. The Caroline measure passed to prevent profanation of Sundays was matched by one of the canons of 1604 and by traditional canonical rules. The canon was designed to prevent improper usage of churches and church-

yards by much the same kinds of entertainments that figured in the act of Parliament.!55 Convocation’s measure, however, differed from the statute. It was both wider and narrower. It covered improper conduct on any day of the week and a broader range of illegal usages (for instance feasting, church ales, holding of lay courts), but it was restricted to areas in and around church buildings. Still, there was undeniable overlap between the two. In recognition of the possibility, Parliament inserted a proviso in its statute preserving the rights of the ecclesiastical courts to punish men and women for the statutory offences. Such provisos, prudently coupled with a prohibition against double prosecution, were very common features of parliamentary legislation of the time. Second, some of the parliamentary statutes amended or clarified parts of the traditional canon law. Failure of the proposed Reformatio legum ecclesiasticarum

meant that there would be no substitution of a new set of laws, but it did not mean there would be no alterations at all. Henrician and Edwardian statutes had made changes, quite apart from extinguishing papal powers. There was good reason to expect that there would be more. And there were other changes to come,

although none of those that went through Parliament and received the royal assent could be called revolutionary from the perspective of legal practice. A statute

on the qualifications requisite in the ordination of the clergy enacted in 1571 (13 Eliz. I, c. 12) provides a representative example. It had four major goals. The act required assent by the clergy to the Thirty-Nine Articles enacted by Convocation; stated that no man could be ordained before reaching the age of 24 or admitted to a benefice unless he were a deacon and at least 23 years old; prohibited men from being admitted to ecclesiastical benefices unless they held the BD degree or were specially admitted as a preacher by the diocesan bishop; and provided that title to

present to any benefice should not be lost to the patron by deprivation of an incumbent until six months had passed after notice of the vacancy had been given to the patron. How did these provisions square with the existing canon law? In some respects, they re-enacted it. The provision about the age required for ordination and conferral of a benefice with cure of souls was the same as the rule given in the applicable papal decretal (X 1.6.7). A second decretal had stated that attainment of the age of 14 was enough (X 1.14.3), but the communis opinio among the medieval 155 Canons of 1604, c. 88 in Anglican Canons, 382-3.

LEGISLATION 275 jurists had treated the latter decretal as a special concession for a special situation,

holding that the former properly stated the common law of the church.!5¢ The English statute in effect adopted this communis opinio, attempting to end any

surviving argument and, at least by implication, foreclosing the possibility of dispensation in favour of infants.157 The provisions requiring assent to the Thirty-Nine Articles and possession of university education were more innovative. They changed the canon law. That the classical canon law did not endorse Articles that declared the veneration of images and the invocation of saints to be vain and contrary to the Scriptures goes without saying. The older canons did require sufficient scientia to perform the clerical offices properly (X 1.14.14—-15), and they did require that the clergy both know and

obey the law of the church (Clem. 1.6.1). However, they contained nothing so detailed or so insistent about formal education. It might have been said that the 1571 statute made more specific a very general admonition contained in the canon

law. That would be true, although it is unlikely that the drafters of the statute would have wished to make that claim. They would have preferred to emphasize its special character and the advantages that would ensure from adequate preaching of God’s word. As for the provision about lapse, it both restated the rule of the English common law that lay patrons had six months, not the four of the canon law, before the right to present to a benefice lapsed to the bishop and also settled

a difficult and old question for the canonists. That question was whether the six-month period ran from the date of the vacancy or the date when the patron had notice of the vacancy.!58 Equity in dealing with the loss of a right argued in favour of the second; the needs of churches in favour of the first. The English statute resolved the question. Express notice was to be given to the patron by the bishop who stood to gain from the lapse.

Compared with this statute, the canons on the subject that were enacted in Convocation the same year seem quite general, perhaps less satisfactory as legal texts, though the Parliamentary statute was not without technical faults of its own.1!59 One of the canons reiterated the traditional rules about the requisite age for

ordination in general terms and stressed the need for sufficient learning in the clergy. But it was not very specific about what the requirement meant. Training ‘in 156 Gl. ord. ad X 1.14.3: ‘Haec decretalis non continet ius commune, adding a reference to X 1.6.7. See also Clem. 1.6.3.

157 It was so stated in a case in BI, Prec. Bk 11, fo. 28v: “All admissions to benefices contrary to this rule are void, notwithstanding any dispensation. 158 See e.g. Panormitanus, Commentaria ad X 3.37.27, nos. 3-4.

159 Among other things, it did not deal adequately with members of a family, excuses for noncompliance, poor papists, and the possibility of double punishment. These objections were raised in

the 1601 Parliament, where the widespread non-observance of the statute was discussed. See Townshend, Historical Collections (above n. 148), 228-9.

276 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

good letters, either in the university or in some lesser school’ was enough, according

to its wording.!© No mention was made of the Thirty-Nine Articles, perhaps because they were already part of the church’s law. The section devoted to patron-

age only required bishops to ‘exhort’ patrons to consider their responsibilities before God in making their choices and forbade the preferment of any man unless ‘by doctrine, judgment, godliness, honesty and innocency of life [he] is able to bear so heavy a burden’! The new canons said nothing about lapse, perhaps because the

issue was considered a secular matter under English law. There was, it seems, no direct contradiction between the statute and these canons. Neither was there identity. There was only overlap. It was unfortunate, but there can have been little active planning or coordination between the two. Third, statutes passed by Parliament during the Reformation era affected, either directly or indirectly, the subject-matter jurisdiction of the ecclesiastical courts. Some of them brought within the partial cognizance of the royal courts matters

that once had been the exclusive preserve of the church. This list is long. It encompasses bankruptcy (13 Eliz. I, c. 7, 1571), bastardy (18 Eliz. I, c. 3, s. 1, 1576), bigamy (1 Jac. I, c. 11, 1603), blasphemy (3 Jac. I, c. 21, 1605), brawling in churchyards (5 & 6 Edw. VI, c. 4, 1552), buggery (5 Eliz. I, c. 17, 1563), charities (39 Eliz. I, c. 6, 1597), drunkenness (4 Jac. I, c. 5, 1606), perjury (5 Eliz. I, c. 9, 1563), religious nonconformity (13 Eliz. I, c. 1, 1571), swearing (21 Jac. I, c. 20, 1624), usury (13 Eliz. I, c. 8, 1571), and witchcraft (5 Eliz. I, c. 16, 1563). English common lawyers made it a

tenet of their law that passage of a parliamentary statute making any conduct a temporal crime, as these statutes did, impliedly ousted the jurisdiction of the church.!©2 However, virtually all the statutes passed under Elizabeth and the Stuarts contained an express ‘savings clause’ preserving the subject-matter jurisdiction of

the ecclesiastical courts. The losses to them from passage of the Parliamentary statutes were, therefore, only indirect, and at first they were minor in quantity. The real losses would come only when societal assumptions about the spiritual courts changed.

Some of the parliamentary legislation worked the other way, increasing the scope of ecclesiastical jurisdiction. New duties were imposed upon the courts. This list is rather shorter, but it is by no means negligible.163 Changes in the law required the courts to supervise the licensing of schoolmasters, physicians, and midwives. Equally, they had to take action to secure the collection of alms for the poor. Visitation of hospitals became an episcopal responsibility (14 Eliz. I, c. 5,

S. 32, 1572). In many things, the ecclesiastical courts were required to enforce the detailed regulation of parochial government that was the result of initiatives 160 Canons of 1571, c. 1:6 in Anglican Canons, 174-5. 161 ¢, 10:1 in Anglican Canons, 202-3. 162 Ecclesiastical Courts Comm., p. li. 163 See Helmholz, Roman Canon Law, 104-17.

LEGISLATION 277 by monarchs, bishops, and various acts of Parliament. Did a parish church lack a copy of Bishop Jewel’s Apologia? Was the churchyard used for unlawful games?

Had ‘high pews’ been unlawfully erected in the nave of the church? If all else failed, it was up to the spiritual courts to order the churchwardens to deal with matters like these. The courts had then to see to it that the wardens followed up on their duties. Under the broad rubric of the Statute of Uniformity, no less than by direction of royal injunctions and new legislation, this kind of supervisory duty fell to England’s spiritual courts.!°4 The consequence was that the courts were kept busy dealing with disciplinary proceedings to a greater extent than they had been before.

Fourth, several Parliamentary statutes were passed to improve the effectiveness of ecclesiastical jurisdiction and the position of the church more generally. This legislation has often been overlooked by historians, perhaps under the assumption that Parliament was the natural enemy of the established church. Fuller consideration, coupled with examination of the effect of the statutes on court practice, leaves a different impression. Probably the most frequently used such statutes

were the three enacted ‘for the true payment of tithes’ under Henry VIII and Edward VI (27 Hen. VIII, c. 20, 1536; 32 Hen. VIII, c. 7, 1540; 2 & 3 Edw. VI, c. 13,

1549). The acts sought to restate many of the traditional rules as well as to make needed additions, such as allowing laymen who held greater tithes to sue in their own names. The most striking addition was permitting double, or in some circumstances triple, the value of tithes to be recovered against any person who withheld them improperly. These statutes later became a matter of contention, with the civilians (and holders of tithes) standing on one side and the common lawyers (and tithe payers) on the other.!® None the less, the statutes were regularly put into practice in the courts of the church. Doubling or tripling the amount available placed a new and more effective weapon into the hands of those entitled to collect tithes; it was a weapon they had not held before. Small wonder that the amount of tithe litigation increased dramatically during these years. Improvements in procedure to support ecclesiastical jurisdiction were also initiated by Parliamentary legislation. For example, two Henrician statutes strength-

ened the hand of the spiritual courts in executing sentences against those who refused to pay tithes (27 Hen. VIII, c. 20, 1536; 32 Hen. VIII, c. 7, 1540). Whereas

previously it had been necessary to seek a writ de excommunicato capiendo in Westminster, these new statutes made it possible to obtain the immediate aid of justices of the peace; the justices were given authority to commit offenders to 164 A quite good idea of the reality is given in E. R. C. Brinkworth, “The Laudian Church in Buckinghamshire’ (1955-6) 5 Univ. of Birmingham Historical Jnl 31-59. 165 The situation is described in more detail in Helmholz, Roman Canon Law, 89-104.

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prison in order to secure ‘due obedience’ to the proceedings of the ecclesiastical courts. As a civilian pointed out, the newer method was ‘a cheaper way’ to proceed; it also avoided the problem of ‘secret appeals’ that could blunt the effectiveness of the Chancery writs.1°° The Henrician statutes must have been a modest success. They were expanded to reach beyond tithe causes to all ecclesiastical proceedings by a statute passed early in Elizabeth’s reign (5 Eliz. I, c. 23, 1563). Among

other improvements, it provided that where sheriffs returned non est inventus to

the ordinary Chancery writs, a capias should be issued immediately. It also allowed the aid of the King’s Bench and sessions of the peace to be sought at the same time.167

Finally, some of the statutes simply put the jurisdictional rights of the courts on a sounder footing. The right to mortuaries, customary payments made to the parson on the death of residents of his parish, was given Parliamentary sanction (21 Hen. VHI, c. 6, 1529). It had been a questionable and much-debated mulct, one that has become familiar to historians from the tragic denouement to Hunne’s Case in the second decade of the sixteenth century.!©8 The statute was an advance. It settled doubts. The same can be said of some of the statutes dealing with fraudulent conveyances passed under Elizabeth. In various small ways they improved the effectiveness of the church's testamentary jurisdiction. For instance, one of them provided that where a parson alienated goods during his lifetime, the ecclesiastical courts should have the power to recall them if they were needed to pay for dilapidations to the church or manse (13 Eliz. I, c. 10, 1571). Another provided that every person who had purchased goods from a decedent but had paid inadequate consideration for them should be considered an executor de son tort for purposes of meeting the decedent's legitimate obligations (43 Eliz. I, c. 8, 1601). In small ways, such statutes helped. THE STATUTES IN COURT PRACTICE

Parliamentary legislation was cited and enforced by name in the ecclesiastical courts. Explicit references to statutes, often complete with regnal year and chapter, appear throughout the act books, cause papers, formularies, and reports of causes

in the courts.!6 No distinction was drawn between medieval and postReformation statutes, the operative assumption being that Parliament was merely 166 Case of excommunicate person (Ely, c.1610), BI, Prec. Bk 11, fo. 18.

167 On these proceedings, see Cosin, Apologie, pt. 1, c. 2. 168 See Duncan Derrett, “The Affairs of Richard Hunne and Friar Standish’ in The Complete Works

of St Thomas More, ed. J. B. Trapp (1979), ix. 215-46; Stefan J. Smart, ‘John Foxe and “The Story of Richard Hun, Martyr”’ (1986) 37 JEH 1-14. 169 Ex officio c. Bardolfe (Archdnry Huntingdon, 1597), HTRO Act book AHH 5/3, fo. 48 (disciplinary cause based upon 1 Eliz. I, c. 1), Ashton c. Middleton (Chester, 1608) EDC 5, no. 39 (cause papers in which the positions were based upon 2 & 3 Edw. VI, c. 13); precedent book (early seventeenth century), CCAL, MS. Z.3.27, fo. 165 (pensions payable under 34 & 35 Hen. VIII, c. 19).

LEGISLATION 279 exercising a legislative power it had always held. It was one of the achievements of the English civilians to integrate the statutes with the dictates of the tus commune. A glance at Richard Cosin’s Apologie well illustrates this characteristic. Without

apparent self-consciousness, Cosin placed acts of Parliament side by side with papal decretals, texts from the Roman law, and notes taken from the commentaries of the Continental jurists. Incongruous as his approach now seems, it was widely shared among the English ecclesiastical lawyers. The reports of causes from the ecclesiastical courts are most informative about

the effect of parliamentary statutes. The reports show in detail how the statutes were treated in practice, and there are enough reports surviving to confirm that more than isolated cases were involved. Variation as to the frequency of reference to statutes did exist, but all of them that contained any citations included acts of Parliament among them. The statutes were too important to be left out, even for the reporters who were most attached to the ius commune. Some areas of the law called for relatively more reference to statutes than others. Questions involving tithe and testaments were touched by more statutes than were marriage and civil procedure, for example. Moreover, in virtually every instance the civilian reporters cited texts and treatises from the tus commune more often than they did Parliamentary legislation. But where they were applicable, the statutes were used in practice. That the statutes were far from perfect in their ordering and expression is attested by contemporary comments.!7° However, that mattered less to the civilians than might be thought. It was simply an unhappy characteristic the English statutes shared with most legislation, medieval and modern. Several conclusions about the statutes emerge from the reports and other civilian literature. Most significant, although unsurprising, was the rule that under normal circumstances statutes prevailed where there was direct opposition between them and rules of the canon law, whether the rules were found in the texts of the Corpus juris canonici or the constitutions enacted by provincial synods or by Convocation. As one civilian at the start of the seventeenth century noted, a canon ‘is to little purpose against a statute of this realm’.171

The civilians did not accord that same authoritative status to cases from the common law courts. Nor did they concede that the common-law judges had any special authority to interpret the statutes. But where an act of Parliament was clear, it controlled. It is true that doubts were occasionally raised among the civilians about the extent of Parliamentary authority over their courts. The civilian just quoted to show the force of secular legislation also went on to question 170 See C. K. Allen, Law in the Making (1951), 402-57. 171 Case of Deprivation (c.1610), BI, Prec. Bk 11, fo. 4ov. See also the (partially muddled) account of

Sir Henry Marten’s treatment of statutes dealing with ecclesiastical elections in Commons Debates for 1629, ed. Wallace Notestein and Frances Relf (1921), 54-5, 183-5.

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whether an Edwardian statute (5 & 6 Edw. VI, c. 4, 1552) could be justified under accepted legal principles. The statute purported to issue ipso facto sentences of

excommunication against anyone fighting and brawling in a churchyard. But what, this civilian asked, gave Parliament the right to excommunicate? That power was reserved to the clergy. It was axiomatic. Nemo dat quod non habet.172 How then could Parliament legitimately hold any such power? The statute might appear to have been an illegitimate exercise of power.

Such cases of direct conflict were rare. It was the traditional calling of the canonist to bring harmony to dissonance, and the English civilians were good at it. They took the view that statutes in derogation of the ius commune were to

be interpreted strictly,!”3 and in their hands the maxim became the means by which large parts of the ius commune were preserved in the spiritual courts.

‘Harmonization’ usually meant preservation of the old. For instance, the Henrician statute that prohibited citation of persons outside the diocese where they dwelled (23 Hen. VIII, c. 9, 1532) was read to allow citation if the person possessed property in the diocese where he was cited, even if his dwelling-place was elsewhere.!74 The statute contained other exceptions, as did the traditional canon law, and the new act was read so as to keep those exceptions that seemed essential

to doing justice.!7> The exceptions were not expressly done away with by the wording of the statute, and on that account the judges of the spiritual courts thought themselves free to preserve them.!7° There was even an effort to interpret the statute as simply penalizing a citation made outside a person’s diocese, leaving

intact the validity of any proceedings taken against him.!”” That interpretation seems not to have been generally accepted; it might effectively have nullified the statute. But narrow interpretation was common. The 1549 statute precluding ex officio proceedings to collect tithes (2 & 3 Edw. VI, c. 13, s. 9) was read not to cover ex officio proceedings to collect other forms of ecclesiastical taxation,!78 and 172 BI, Prec. Bk u1, fo. 33.

173 GL, MS. 11448, fo. 68v (dealing with administration of estates, to the effect that a statute concerning a decedent’s ‘whole estate’ should not be read to extend to “bonis non administratis, because ‘statutum contra ius commune est stricte interpretandum’). 174 Loe c. Lucas (Archdnry Buckingham, 1601), Bodl., Tanner MS. 427, ff. 31-31V.

175 In William Trumbell’s Commonplace Book, it was supposed that “This statute is but declaratory of the ancient canons, though designed to abridge the archbishop’s prerogatives in some instances. See BL, Add. MS. 72544A, fo. 105. See also BL, Harl. MS. 6891 (c.1560), fo. 33-33v, listing those exceptions

thought to survive; the most important were the PCC, appeals, provocations, and causes in which a bishop was party. 176 e.g, Payne c. Whyttyngton (Hereford, 1536), HFRO, Act book I/6, p. 68 (dismissing application of the statute where the party had moved from one diocese to another). 177 Lucas c. Low (1602), Bodl., Tanner MS. 427, ff. 237—238v: ‘factum contra prohibitionem legis ubi

poena imponitur non est nullum sed poena imponenda est’. 178 e.g, Ex officio c. Michell (Gloucester, 1639), GRO, Act book GDR 203, s.d. 26 Sept.: ‘for not pay-

ing his dues to the church’

LEGISLATION 281 the many statutes of pardon (e.g. 39 Eliz. I, c. 28, 1598) enacted during the era were read to exclude their invocation by defamers, even though the statutory language was easily broad enough to include defamers in the pardon’s scope. By definition, defamers had injured another person, and the civilians assumed the statutes were meant to be interpreted so that they ‘giveth no man’s right away.!79 Less convincing but no less typical was the interpretation given to the 1529 statute

regulating grants of administration over decedents’ estates when the executor named in the testament refused to serve (21 Hen. VIII, c. 5). The statutory language read that in such cases the ordinary ‘shall grant’ the right to administer either to the widow or the decedent’s next of kin, with the choice to be made ‘as by the discretion of the same ordinary shall be thought good. It was held that the former words had no real effect. They left the choice of administrator to the unfettered discretion of the judge in the ecclesiastical court, as it always had been, since it could be said that the statute ‘leaveth it at his election’.!8° That conclusion required a stretch. The statute’s purpose was frustrated thereby. Less convincing still was the interpretation given to the medieval statute excepting “great wood of the age of twenty years or of greater age’ from inclusion in the tithes of the owner who cut it down (45 Edw. III, c. 3, 1371). When the rector of Papworth in Cambridgeshire sued to recover tithes for elms of over twenty-six years growth, the defendant set up the statute in defence. The judge of the consistory court at Ely rejected the defence, however, reasoning that because the statute said ‘only that a prohibition shall lie} the jurisdiction of his court over tithes was unaffected. Until he received an actual writ of prohibition in the case, he would follow the ius commune.}8!

This is not to say that parliamentary statutes made no effective changes or posed no difficulties for the judges in the ecclesiastical courts. Ecclesiastical lawyers grumbled about them. The complaint of one civilian about a Jacobean statute (3 Jac. I, c. 5, s. 13, 1605) concerning advowsons held by recusants—that it

‘hath too many imperfections in it—was not at all unusual. Nor does it appear that this particular complaint was a cover for the popish sympathies critics suspected the English civilians of harbouring.!82 The statute itself simply left 179 Anon. (Ely, c.1610), BI, Prec. Bk 11, fo. 8. The matter may have been controversial; an opinion in a formulary (temp. Jac. I) suggests the reverse. CRO, EDR 6/17, pp. 299-30. In matters where the pardons were effective, judges interpreted the acts to require appearance before an ecclesiastical court by the person pardoned so that he could be absolved from sentences of excommunication. No doubt this required payment of a fee. See GL, MS. 11448, fo. 55v. The courts also required that defendants plead and prove that their offence came within the statutes; e.g. Ex officio c. Lyne (Winchester, 1606), HRO, Act book 21M65/C1/28, fo. 2v. The common law courts did not take the same view, at least not consistently. See Charles Gray, The Writ of Prohibition: Jurisdiction in Early Modern English Law (1994), 1. 107-9. 180 Anon. (Durham, c.1610), Clement Colmore’s Book, DUL, DDR XVIII/3, fo. 132. 181 Bury c. Nossell (Ely, c.1609), BI, Prec. Bk 11, ff. 9—-9v. 182 Anon. (c.1609), BI, Prec. Bk 11, fo. 10.

282 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

unresolved too many matters dealing with presentments to ecclesiastical benefices made by recusants. Its object was to prevent them from exercising the right, but its terms were, as this civilian thought, simply too uncertain to be effective. For example, the statute required that the patron ‘shall remain’ a recusant at the time of the benefice’s vacancy. What exactly did the word ‘remain’ mean? Did it require that he ‘remain’ a recusant during the entire six-month period before lapse occurred? Or was it something else? Could it be avoided by only occasional conformity on the patron’s part? The statute furnished no guidance, and this was not its only fault. The underlying problem in the law of advowsons, he concluded ruefully, was ‘not a whit the better for this act. The Corpus turis civilis and the Gregorian Decretals had been compiled and edited by jurists of considerable skill. They both had their rough spots, no doubt. But most of these had been rubbed smooth by centuries of

laborious polishing. The contrast between them and some of the Parliamentary statutes seemed very large to many of the civilians. What came out of the English Parliament had neither been vetted for clarity, edited for consistency, nor subjected to the patient learning of the schools.!83 Substantial reasons could be given for grumbling about their substance. Many among English civilians did so.

THE ECCLESIASTICAL COURTS A few years into the reign of Elizabeth, it was apparent that the ecclesiastical courts would retain pretty much the same shape that they had assumed over the course of the Middle Ages, with the significant exception that recourse to the papal court was

brought to an end. Even abolition of papal jurisdiction made less difference in practice than it did in constitutional or religious theory. English equivalents were substituted for the papal courts, and they too had assumed a relatively stable form and jurisdiction by the end of her reign. Stability overall did not entirely banish the possibility of change or the risk of jurisdictional loss. Nor did it bring to a conclu-

sion all disagreement about the extent of legitimate ecclesiastical jurisdiction. There was continuing controversy. Efforts were made to diminish the role of the spiritual courts in the legal life of the realm. By the same token, however, efforts were also made to sustain, and even to expand, that place. From the perspective of the civilians, the developments of these years can be fairly divided between some that were clearly negative and some that were more affirmative.

Affirmative Developments Until the run-up to the English civil war, the future did not appear as cloudy for the courts of the church as it does in retrospect. We know how things came out. 183 Two readings on the act were given at the inns of court, but only in the 1630s. See J. H. Baker, Readers and Readings in the Inns of Court and Chancery (= 13 Selden Soc. Supp. Ser.; 2000), p. Ixvii.

THE ECCLESIASTICAL COURTS 283 They did not. The period that began ten years or so into the reign of Elizabeth and continued into the late 1630s was one of relative prosperity for the men who made their careers in ecclesiastical law. Their courts were busy, and the problems they faced did not overwhelm them. They enjoyed the support of the monarchs and most of the bishops. Their position was strengthened by the retention of virtually all of the church’s medieval jurisdiction and several procedural privileges, such as the ability to invoke the Crown’s power to imprison men and women guilty

of contumacy in the ecclesiastical courts. Probably they benefited from the restriction of activity in manorial and other local courts; in many places, the local, secular courts had become registries for land transactions.!84 The civilians themselves recognized places where they could advance the fortunes of their courts and

the interests of the church, and they acted upon them. There were reasons for optimism. LEVELS OF LITIGATION

One of the strongest positive factors of these years was an expansion in the number of instance causes brought in the ecclesiastical courts. Every sample made of levels

of litigation during the last third of the sixteenth century has shown a rise in volume from earlier in the century. In the consistory court for the diocese of Lichfield, for example, 81 instance causes were introduced in 1529. In 1590, the total had risen to 204.185 Within Elizabeth's reign itself, real growth took place. In the consistory court of Salisbury, for instance, 92 causes were introduced in 1566. In 1597, the number of causes introduced was 117.186 In the diocese of Gloucester, 112

causes were brought in 1560. By 1600, the number had risen to 162.!87 These increases were not isolated examples. Nor were they short-lived. The very bulk of the act books from the Jacobean and Caroline church suggests a growth in “business’ within the spiritual forum.!88§ In the diocese of Norwich, the number of causes listed as being before the consistory court in the 1580s came to a little less than 200 causes per session. By the late 1620s, it was up to over 300.!89 Although we cannot always trace the precise levels, the activity (and the income) of the civillans rose during these years. 184 See e.g. Keith Wrightson and David Levine, Poverty and Piety in an English Village: Terling 1525-1700 (2nd edn, 1995), 112.

185 Figures taken from LJRO, Act books B/C/2/3 and B/C/2/26-7. 186 Figures taken from WTRO, Act books D/1/39/1/3 and D/1/39/1/26. 187 Figures taken from GRO, Act books GDR 15 and GDR 84. 188 See e.g. Dorothy Owen, A Catalogue of the Records of the Bishop and Archdeacon of Ely (1971), 21-2, 25-6; Francis Steer and Isabel Kirby, Diocese of Chichester. A Catalogue of the Records of the Bishop, Archdeacons and Former Exempt Jurisdictions (1966), 16-18. In the diocese of Peterborough, an average

session of the consistory court in 1629 dealt with 32 causes; in 1638, the same court was dealing with about 73 causes per session. See NRO, Act books 40 and 52. 189 Comparing NNRO, Act books DN/ACT/15 with DN/ACT/59.

284 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

Fewer figures can be given for the ex officio side of the courts’ jurisdiction than

for litigation between private parties, and the level of activity should not be judged simply from an increasing number in the howls of protest made against the disciplinary actions taken by the courts. However, the evidence we have suggests the same sort of growth that occurred on the instance side. In the archdeaconry of St Albans, for instance, 135 ex officio proceedings were dealt with in 1583. In 1625, the number had risen to 294.!9° In the diocese of Salisbury, the number of office causes between 1573 and 1603 increased from 220 to 450.19! Other indications point in the same direction.!92 Developments, such as the Laudian efforts to have altars moved to the east of churches and railed in, led to more activity in

the ecclesiastical forum, however much they may have upset some ordinary parishioners.!93 In terms of raw numbers, the disciplinary jurisdiction of the courts seems to have boomed. Several cautionary words should be added before the figures are accepted at face value. The increase is probably accurate as a gauge of the relative income of judges and proctors in the courts, although the rising level of inflation has to be considered in assessing its importance. However, too much should not be read into the increase for other purposes. It was only one part of a more general rise in volume of cases in most English courts that occurred at the same time, driven by population growth, the relative cheapness of litigation, and (perhaps) a growing propensity to bring law suits.!94 In particular, it should be recognized that the erowth in litigation in them does not prove the ‘popularity’ of the ecclesiastical courts. Too many other factors were at work. ‘Popularity is a strange bedfellow for a system of public courts in any case; litigants invoke them for many reasons. Nor does the increase show much one way or the other about the state of the

English church. For one thing, a large part of the increase in instance causes occurred because more suits were being brought to recover tithes. Many of them were brought by the laymen who were successors to the monastic houses that had held the greater tithes by virtue of impropriation of parish churches during the Middle Ages. The proliferation of such causes cannot signal a great deal about the laity’s attitude towards the church. In evaluating the exercise of disciplinary 190 Peters, Oculus Episcopi (Ch. 3, n. 297), 65-7. 191 Ingram, Church Courts, 69. 192 e.g. the rise in size of the court books devoted to office acta, as shown in Owen, Catalogue (above n. 188), 24-6; see also Christopher Hill, Society and Puritanism in Pre-Revolutionary England (1997), 262; Marchant, Church under the Law, 212; Jay Anglin, “The Essex Puritan Movement and the “Bawdy” Courts, 1577-1594 in Tudor Men and Institutions: Studies in English Law and Government, ed. Arthur Slavin (1972), 171-204, at 186.

193 David Cressy, Travesties and Transgressions in Tudor and Stuart England (2000), 186-212; Davies, The Caroline Captivity of the Church (above n. 119), 46-86; Tom Webster, Godly Clergy in Early Stuart England (1997), 180-214. 194 C, W. Brooks, Pettyfoggers and Vipers of the Commonwealth (1986), 48-111.

THE ECCLESIASTICAL COURTS 285 jurisdiction, the argument is even stronger. Who can suppose it was a greater respect for the spiritual forum that led to expansion in the number of prosecutions for non-conformity? More likely, the reverse is true. At most one could say, as has been said of this side of ecclesiastical jurisdiction before the Reformation,!%> that the vigour of ex officio prosecutions inspired apprehension among those who were subject to the courts. That emotion might have mixed with an underlying lack of respect for the courts, or the opinion that their actions were inconsistent with true Christianity, or with a simple resentment against courts that enforced standards of morality and neighbourly conduct. In any case, indifference was not a common opinion. It would probably not even have been an option.

These qualifications made, the rise in numbers suggests, though it does not prove, that the church’s sanctions had not fallen into general disrespect in the wake of the Reformation. Whatever men thought of them in their hearts, in instance litigation they invoked the jurisdiction of the courts against those they thought had caused them injury. So did the temporal authorities, by assigning specific tasks to the spiritual courts.!9° The government was making a conscious choice, and in some matters litigants also had options about where to sue. For

example, suits to recover tithes might be brought in the common law courts, including use of the writ of debt.!97 And in many ex officio matters, prosecutions

could be brought in either a temporal or a spiritual forum, particularly in the several areas where parliamentary statues had been enacted with savings clauses for the church’s courts. Where there was an overlap in jurisdiction, the rise or retention of significant amounts of ‘business’ by the courts of the church must have been the product of a choice. However grudgingly the idea may have been received in Puritan circles, the notion that invocation of ecclesiastical jurisdiction was quite a normal thing to do had not disappeared in early Stuart England.

One other factor seems to have played a role in the expansion of ex officio proceedings. It was the ending of the requirement of auricular confession. This change had the accidental effect of throwing into the ecclesiastical courts matters that once would have been dealt with in the ‘internal forum’ A considerable pro-

portion of the men and women who were cited for failing to receive Holy Communion, for example, sought to excuse their failure by saying they had ‘stood out of love and charity with their neighbours’ or some variety of this theme.!98

Prior to the Reformation, such cases could have been handled in confession. 195 Bowker, ‘Some Archdeacons’ Court Books (Ch. 3, n. 188), 282-316. 196 e.g, investigation of defective cloth-making; see APC 1630-31, no. 262. 197 Authorities are collected and discussed in W. Bohun, The Law of Tithes (1730), ch. 9. 198 e.g, Ex officio c. Morgan (Bristol, 1592), BRO, Act book EP J/1/9, p. 45: ‘for no other cause but that he was not in perfecte charitye’.

286 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

Afterwards they more often came before the courts. The same was probably true of some of the defendants who were summoned before the courts for consorting with people who had been excommunicated. This was an old offence under the canon law (X 5.39.15), but public prosecutions for it were very infrequent during the Middle Ages, whereas they became a regular feature of the disciplinary jurisdiction of the ecclesiastical courts under the Elizabeth and the Stuarts. This too may be explained, at least partially, by the end of mandatory auricular confession. The Reformation did not bring to an end penitential relations between people and clergy in England, and conscience continued to serve as a legitimate arbiter of human conduct.!99 But the courts had to judge by externals. The consequence was to make public ‘trials’ of what might once have been left to private settlement. The boundary line of the classical canon law—public penance for public offences, private penance for private offences—had always been a porous one. Here it admitted of distinct movement towards expansion in the number of disciplinary matters dealt with in the spiritual courts. NEW COURTS

The Court of Delegates and the Court of Faculties were the principal courts created to take over the legal work once done at the papal court. The jurisdictional

competence given to them did not fully match that exercised by the medieval papacy. Litigants could not invoke the jurisdiction of the Delegates in the first instance, as they could have done at the papal court. This English ‘replacement’ was strictly a court of appeal. The Faculty Office also held a more restricted right to issue dispensation from positive rules of law than the papacy had exercised. For instance, the prohibited degrees of affinity and consanguinity, which rendered a marriage unlawful under a statute of 1540 and Archbishop Parker’s 1563 Table, lay

beyond the reach of its power of dispensation.2° It did, however, exercise the power to issue dispensations allowing the clergy to hold incompatible benefices, and it was the means by which sons could obtain the right to succeed to benefices their father had held, a bone of contention under the law of the post-Reformation church.?°! By all odds, the most significant ecclesiastical addition to the English scene was the Court of High Commission—or perhaps it would be better to say, the Courts 199 Kenneth Parker, “Richard Greenham’s “Spiritual Physicke”: The Comfort of Afflicted Consciences in Elizabethan Pastoral Care’ in Penitence in the Age of Reformations, ed. Katharine Lualdi and Anne Thayer (2000), 71-83.

200 32 Hen. VIII, c. 38 (1540), made permanent by 1 Eliz. I, c. 1, s. 3 (1559); Edward Cardwell, Documentary Annals of the Church of England (1844), 1. 316-20, confirmed by canons of Convocation of 1571, c. 10:6 in Anglican Canons, 204-5. See generally Carlson, Marriage and the English Reformation

(above n. 129), 93-5. 201 BI, Prec. Bk 2, p. 113, containing such a form from the Faculty Office.

THE ECCLESIASTICAL COURTS 287 of High Commission, since in practice it was divided into different branches, usually one for each diocese.2°2 Whether or not the High Commission should be treated as an ecclesiastical court, properly speaking, is a matter for legitimate, if now wholly academic, debate. On the one hand, its authority rested upon the Elizabethan Act of Supremacy (1 Eliz. I, c. 1, 1559), and its judges were appointed by virtue of a royal patent, not by appointment from the diocesan bishops.?°3 Among its powers was the ability to fine and imprison, powers the ordinary spiritual courts lacked. Its stated goal was also narrower. The commissioners were to investigate and punish crimes against the spiritual laws of the realm and to assist the diocesan courts in that task. However, the High Commission’s branches were not given plenary power to deal with the instance litigation that was the backbone of work in the consistory courts. It is true that, like the Court of Star Chamber, it attracted litigants with some quite ordinary causes to pursue, chiefly (but not exclusively) when the powers of the ordinary courts failed.2°* Making available awards of permanent alimony to divorced wives was among its accomplishments, for example.2°5 However, its chief function was always to deal with cases of contempt for religion, the clergy, and ecclesiastical

jurisdiction. Ordinary ecclesiastical litigation was not meant for the High Commission, although more of it ended up there than had originally been intended.

On the other hand, the High Commission was a truly ecclesiastical court in many respects. The procedure used in its branches was that of the ius commune, not the common law.?° So, for the most part, were the personnel serving there. The judges active as commissioners normally included the bishop and one or another choice drawn from the English civilians. Common lawyers and other prominent laymen were also named to take a place among the commissioners, but the civilians did the bulk of the work. Most significantly, the subjects that came before the commissioners were overwhelmingly ecclesiastical in nature. They were charged to deal with religious dissent, not temporal quarrels, and they followed this charge in action. The civilians naturally took the lead. Enough act books from the branches of the court have survived to give evid-

ence of the vigour with which the branches of the High Commission could act.207 Not only did they deal with men and women who had acted or spoken in 202 The standard work is Roland Usher, The Rise and Fall of the High Commission (ast edn, 1913,

repr. 1968). 203 Sample patents are printed in ibid. 337—44. 204 e.g. Ex officio c. Hall and Payne (Gloucester, 1574), who failed to appear at a visitation after being

charged with incontinence; the High Commission became involved and ended by giving a sentence declaring that they were legitimately man and wife. See Commission for Ecclesiastical Causes within the Dioceses of Bristol and Gloucester, 1574, ed. F. D. Price (= 10 Bristol and Gloucestershire Archaeological Soc., Records Section; 1972), 113.

205 The evidence is more fully laid out in Helmholz, Roman Canon Law, 77-9. 206 See e.g. the precedent book kept for the courts of the commissioners, CUL, EDR F/5/45. 207 There is a list in Usher, High Commission (above n. 202), 1-2, 367-8, augmented in Helmholz, Roman Canon Law, 46-7.

288 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

contempt of church and clergy,2°8 they also stood ready to aid the consistory courts in cases of need. They regularly did support ordinary jurisdiction. The power to fine and imprison held by the High Commission, for example, made recourse to the Chancery and issuance of writs de excommunicato capiendo less urgent than it had been for the ordinary courts. It provided an easier way for the them to deal with persistently contumacious defendants. The High Commission’s existence broadened the alternatives available.

It has sometimes been contended that the very existence of the High Commission and its role supporting ordinary ecclesiastical courts proves that the latter had lost their power over the laity and clergy.2°9 The argument runs this way: By the sixteenth century sentences of excommunication no longer inspired the spiritual terror they had during the Middle Ages. More immediate sanctions were required to support the church’s jurisdiction, and it was the Court of High Commission that supplied them. As to those who dissented in principle from the tenets of the English church and were willing to maintain that dissent publicly, this argument must be correct. Popish recusants and Brownists had little reason

to pay heed to sentences of excommunication issued by judges in courts they regarded as without legitimate authority. Principled opponents of the English church would have been obliged to pay heed to the fines and imprisonments at the disposal of the commissioners. But they would not have cared about the orders of the consistory courts.

As to the great majority of English people, however, this argument is less convincing. It is hard to know how much the situation had really changed from earlier centuries. The spiritual terror inspired by a sentence of excom-

munication, even during the Middle Ages, has often been exaggerated. Excommunication always had a limited effect upon the consciences of those who fell under its ban. It was meant to operate that way. The canon law itself recognized that judges would impose unjust sentences of excommunication, and the canonists were careful not to claim that the judgment of God would be determined by what earthly judges did.2!° As a matter of practical effect, the argument is also inconclusive. For most men and women, the threat of prosecution in the High Commission can only have provided a forceful reason for paying greater attention to the decrees of the ordinary courts. Knowing that a more immediate and severe form of punishment could be imposed if they 208 The extent of involvement by these courts in ordinary ex officio causes seems to have varied among the branches. For instance, the act book for the Peterborough High Commission (1574-9) contains many more such cases than most. NNRO, Diocesan Records X 607/9. 209 e.g, Usher, High Commission (above n. 202), 99-100; Roger Manning, “The Crisis of Episcopal Authority during the Reign of Elizabeth P (1971) 11 Jnl British Studies 1-25. 210 See e.g. Panormitanus, Commentaria ad X 5.39.28, no. 2.

THE ECCLESIASTICAL COURTS 289 disregarded the orders of the diocesan courts would have been a powerful reason for not regarding those orders with contempt. It is a separate question how great a factor resentment against the combination of spiritual jurisdiction and temporal sanctions characteristic of the High Commission was in bringing episcopacy to its knees after 1640. FORMULARIES AND COURT RECORDS

The learned literature produced by the English civilians, surveyed in the first half of this chapter, undoubtedly makes a stronger impact on most modern observers than the records and formularies used by the proctors in the courts. Its learning in the 1us commune impresses. Ignoring the latter is not a legitimate option, however. Record keeping was a measure of the well-being of the institution itself and also the attitudes of the men who served in the courts. In this case, it speaks of nothing but improvement. At Canterbury, it was in the 1570s that the registrar

began to bring order out of the disorderly records characteristic of the middle years of the century.2!! Thereafter, the Canterbury act books and cause papers continued in well-kept and virtually unbroken sequence. What happened at Canterbury holds true for most English dioceses. Almost everywhere, act books began to be more neatly and regularly compiled.?!2 Court officers kept ex officio and instance litigation more rigorously separated, usually by compiling separate act books for each.2!3 Indexes came to be inserted at the end of act and deposition books, facilitating subsequent reference to the matters contained inside. Appealed causes began to be compiled in the codex form widely used on the Continent, instead of the long and unwieldy rolls the English courts had habitually compiled during the Middle Ages.2!4 New classes of records were created for many consistory courts—as in establishing separate books for sentences of excommunication and for caveats in testamentary causes. Past records

211 Woodcock, Medieval Courts, 3. See also his introduction to the Handlist of the diocesan court records, kept in CCAL. 212 See e.g. David Smith, “The York Institution Act Books: Diocesan Registration in the Sixteenth Century (1978) 13 Archives 171-9.

213 For the diocese of Rochester, for instance, compare KAO, Act books DRb Pa 20 (1590-3) and DRb Pa 2 (1444-56). 214 Tn the province of York, this change seems to have occurred towards the end of the century; see, for instance, those found in York BI, Trans.CP. 1590-1603. All appeals from the last three years of this period, and a few from the earlier years, were in codex form. At Exeter, the first examples found come

from the first decade of the seventeenth century; see Exeter Cause papers CC 3/28 and CC 3/61. At Hereford, the earliest appealed cause in the codex form discovered is from 1605: HFRO, MS. Misc. 2. At Winchester, the first examples so far discovered come from the 1610s: Hunt c. Friend (1618), or Reed c. Bragg (1615), HRO, 21M65/C5/2, 6. It is difficult, of course, to estimate the extent of loss among this class of records.

290 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

were also more scrupulously preserved.2!5 It is remarkable for how many dioceses it turns out to be true that the preservation of an uninterrupted series of act books and cause papers dates from the middle years of Elizabeth’s reign.?!6 The regular compilation of formularies or precedent books was another measure

of the progress being made during these years. Keeping these books was not a wholly new development. Proctors in the medieval courts had long put into book form collections of documents for use in litigation. Quite a few still exist. However, it is only from the late sixteenth and early seventeenth centuries that they have survived in relative abundance.2!” What we have opens a valuable win-

dow on practice. Proctors prepared almost all of the documents used in the courts—even the sentences were drawn up by the proctors and presented to the judge. Each side prepared its own suggested sentence for issuance by the judge

(‘porrection’ as it was called). One can therefore use these formularies to trace exactly what points of law and fact were commonly put in issue in the courts. They sometimes even show what matters were commonly decisive. The most immediate reason for the greater level of compilation was starkly practical. Changes in the law required new forms. For instance, the possibility for the recovery of double or treble ‘damages’ in tithe causes, introduced by statute during the first half of the century, required that plaintiffs use new forms. The passage of statutes by Parliament regulating conduct by the clergy also called for new forms. If one sought a parson’s deprivation under them, the statutes had to be cited.2!8 The expansion of the remedy for defamation to encompass the civil law’s iniuria similarly required new forms for bringing suit. So, although in the opposite direction, did the effective exclusion of defamation for the imputation of temporal crimes from the spiritual courts. Once these changes had occurred, older forms would have been irrelevant. On the ex officio side, the new disciplinary

canons and the parliamentary statutes called for the creation of larger books of 215 Files of churchwardens’ presentments survive beginning in the 1570s at Lincoln; they become plentiful in the 1590s; see Kathleen Major, Handlist of the Records of the Bishop of Lincoln (1953), 72-3.

Tuition bonds are preserved at Lincoln from 1596. In the diocese of Chester, caveat files, containing orders to prevent the too hasty probate of estates, begin in 1614; see Chester County Council, County Record Office and Chester Diocesan Record Office Guide (n.d.) 3B—4. In the archdeaconry of Essex, excommunication books survive beginning in 1590; see ERO, D/AEM 3. 216 See e.g. the records of the diocese of Chichester, catalogued in Francis W. Steer and Isabel M. Kirby, Diocese of Chichester: A Catalogue of the Records of the Bishop, Archdeacons and Former Exempt Jurisdictions (Chichester, 1966) 16-17 (Instance act books), 19 (Deposition books), and 24 (“Detection’ books). For all these categories, scattered books survive from before the central years of Elizabeth’s reign, but continuous records survive only from the late 1560s and 1570s. 217 C, E, Welch, ‘An Ecclesiastical Precedent Book from St Asaph’ (1961) 11 Jul Historical Society of the Church in Wales 9-24.

218 e.g, Precedent book (temp. Jac. I), CRO, EDR 6/17, p. 275: “Libellus in causa deprivationis secundum statutum anno xiii Eliz. editum.

THE ECCLESIASTICAL COURTS 291 precedents. Even where they continued older laws, the new legislation often required different wording in libels and sentences. The exigencies of practice may have provided the primary motivation for the production of new formularies, but that is not all the compilations tell us. They

show in detail something of how English proctors worked. One can see, for instance, that proctors actively sought out the most effective forms for use in practice. They sometimes noted that one form of wording was better than another, or that this, but not that, form of pleading could be founded upon a specific decretal,

canon, or statute.219 Regular interchange between members of the profession across England obviously occurred, because forms from one diocese often turned up in the precedent books of another. The circulation of these books must have been quite normal practice. The archives of virtually every English diocese and archdeaconry for which any records at all survive from this period also contain a precedent book or two, some of them more than that. Where they include forms from the London courts, as many do, one can actually see the lead being given to nationwide practice by the civilians in Doctors’ Commons.??° We have so little direct information of what the practice of an average proctor was like that these prosaic formularies become invaluable. Above all, examination of the formularies shows the mix of the severely practical and the more academic that was characteristic of the life of these lawyers— indeed that is characteristic of the life of lawyers in most ages. The formularies contain notes and hints of the most practical kind. ‘If a man is called a cuckold,

put these words in the articles, stated the compiler of a Carlisle precedent book, instructing the drafter to add specific words stating that the man was married, so long as the facts would bear it.22! “Make certain that the scribe writes down that a witness swore an oath touching the Scriptures, noted a York proctor, ‘for otherwise the statement of the witness will not be valid’.222 Some formularies contained samples of court dialogue, instructing proctors on exactly what words they were to use in addressing the judge.223 Others gave detailed instructions on how witnesses should be examined.?24

At the same time, alongside such severely practical notes sometimes stand references to the most recent or sophisticated authorities from the ius commune. For instance, how far a married woman was bound to follow her husband was 219 e.g. forms used for citation of parties, also citing texts from canon and Roman law and commentary by Cyno da Pistoia, Franciscus Zabarella, and Lyndwood, in LPL, MS. 2085 (pt. 2), fo. 49. 220 e,¢, SKRO, MSS. E 14/11/2-3, containing many forms from the London courts. 221 CBRO, DRC 3/63, fo. 70. 222 University of Chicago Library, MS. 1660, fo. 21: “Caveat procurator quod notarius scribat dilatum

fuisse iuramentum (tactis scripturis) alioquin dictum testis non valet’. 223 e,o, BL, Add. MS. 6254, ff. 46-9: “Verba procuratoris rei. Ego exhibeo procuratorium meum.. .. 224 e.9. BL, Harl. MS. 5105 (seventeenth century), ff. 69v—7o: “Order how to examine a witness.

292 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

a question raised in a Durham precedent book from this period. Perhaps it had been raised in litigation. We do not know. But we do know that the question interested one proctor. He took the trouble to note that a good discussion on the point was to be found in the Decisiones capellae Tholosanae, an influential collection of canonical decisions from the see of Toulouse, and also in the works of Fredericus Schenck, a jurist who died in 1580 as archbishop of Utrecht.225 Neither authority

was particularly obscure in Continental legal circles around 1600, but that this proctor knew enough to choose them demonstrates his own familiarity with the literature of the ius commune. Not all proctors did, but learning in the laws was not exceptional among them, and it is only because he put together this book of forms and commented upon it that we know this much about him. When we find recorded in another precedent book that its owner, William Garland, had just received copies of the works of praxis compiled by Petrus Ferrarius (fl. c.1400), Lanfrancus de Oriano (d. 1488), Joachim Mynsinger, Henning Goede (d. 1521), and Fredericus Schenck, we are probably right to conclude that Garland aspired to be

something more than a journeyman practitioner.??° JURISDICTIONAL EXPANSION AND PROCEDURAL IMPROVEMENTS

One reason for the growth in numbers of causes heard in the courts noted above was a modest expansion in their jurisdictional competence. By no means all of the expansion was the result of statutory change, however. Some of it came from the internal resources of the ius commune, and, broadly speaking, the latter formed one part of the larger movement called the usus modernus Pandectarum. That term refers to the more creative and practical application of civil law texts to prob-

lems of legal practice that occurred on the Continent, principally during the sixteenth and seventeenth centuries.22”7 It also touched England. In the law of defamation, testaments, benefices, civil and criminal procedure, and some disciplinary matters, the English civilians sought to adapt their law to the times on the basis of the civil law’s resources. The changes were not dramatic, and not all of them were successful. The proper place for their exposition is in the second half of this book, where substantive law is dealt with directly. Here it must be enough to give some examples and to take note that the English civilians were not just on the defensive against incursions from without, much less ‘spineless victims’ of secular aggression.228 They were put on the defensive, but they were also capable of taking the offensive. 225 Library of D. & C. Durham, Hunter MS. 18, ff. 3v—4.

226 Found dated 1595 in the archives of the archdeaconry of Nottingham, NUL, MS. AN/P 283, ff. 66, 117V, 164V.

227 See e.g. Franz Wieacker, A History of Private Law in Europe, trans. Tony Weir (1995), 159-67. 228 Charles and Katherine George, The Protestant Mind of the English Reformation 1570-1640 (1961), 225.

THE ECCLESIASTICAL COURTS 293 It was in the internal administration of the courts that the greatest efforts were made. The bishops showed the way, issuing statutes regulating legal practice and setting permissible fees paid in the consistory courts.229 For example, John

Parkhurst, bishop of Norwich from 1560 until his death in 1575, sought to improve probate practice in his courts by requiring greater deliberation in granting

administrations.23° Improvident grants of the right to administer the estates of persons who had died intestate had been a continuing problem. Creditors and relatives of the decedent all had a claim, and no hard or fast rule determined precedence among them. Too many judges granted the right to the first person to appear before them. They sometimes did so privately, or even delegated the choice to their registrars. Later, when a better claimant came along, the judges would be

obliged to reopen proceedings, at a time when it might be too late to remedy harms that had been done. Parkhurst’s mandates therefore prohibited probate outside the presence of the judge and also made it unlawful to grant administration unless there was ‘sufficient testimony of the fact of intestacy and the status of the claimant as either wife or next of kin. That the actions were effective to cure the abuse we cannot affirm. They lacked the solemn promulgation appropriate to synodal statutes, and they were longer on exhortation than precision. We do not know how much attention was paid to them. However, they were evidently part of a broader effort by the bishops to bring order to their consistory courts. Institution of the legal action known as Duplex querela, literally ‘double quarrel, in ecclesiastical proceedings involving benefices is another example of attempts to improve the procedures available in the spiritual courts. This remedy, of which little notice has been taken by historians and which seems to have been an innovation made formally during the sixteenth century,?3! was available in the London courts of the archbishop. An exception to the statute requiring that defendants could only be cited in their own diocese and a development growing out of the tuitorial appeal in which both the judge and the opposing party were cited to appear before an appellate court, a Duplex querela could be initiated by a parson presented to a benefice against both the bishop who had refused to institute him and also against 229 e.g, Orders issued 13 March 1582 for the diocese of Canterbury, regulating the payment and division of fees, CCAL, Z.3.23 (pt. 1), fo. 183v; Schedule of fees for new diocese of Bristol (early seventeenth

century), BRO, MS. EP/J/10; Fees of York Consistory (1574) in Carson I. A. Ritchie, The Ecclesiastical Courts of York (1956), 228-31.

230 See The Letter Book of John Parkhurst, ed. Ralph Houlbrooke (= 43 Norfolk Record Soc.; 1974-5), 261-4.

sat There is a brief notice of its existence in Rodes, Lay Authority and Reformation (above n. 153), 119.

It was not mentioned, at least by name, in Lyndwood, Provinciale, nor does it so appear in medieval precedent books or act books. However, it was illustrated and discussed, without being limited to beneficial causes, in a formulary of the sixteenth century, Bodl., Tanner MS. 199, ff. 148-52. That it developed from the tuitorial appeal is suggested e.g. by Ormeshed c. Bishop of Carlisle and Walker (York, 1425), BI, Cons.AB.2, fo. 50 (styled a negotium tuitionis).

294. ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

the rival claimant to the benefice.?32 If the exact form of this remedy was new, it did not claim any new territory for ecclesiastical jurisdiction.233 Nor did it materially change the canon law. Disputes between patrons of advowsons remained with the courts of the common law. What this remedy did was to get all the interested parties together so that the ecclesiastical issues could be dealt with more conclusively. In them, complaints against the procedures taken by the bishop could be dealt with at the same time objections against the qualifications of a rival claimant were heard by this means—so, for example, allegations that the bishop had failed to give the plaintiff a proper hearing were coupled with assertions that the rival parson held an incompatible benefice. One of the problems in this area had long been the lack of a fully adequate way of dealing with the ecclesiastical issues. It was not easy to assem-

ble together in one action all those who had an interest in the matter. Making the Duplex querela available was a step in that direction. It was of a piece with other advances being made in the courts—a small but a positive amendment in the law. The impulse to make traditional procedures more effective was the special object of reform efforts in the disciplinary jurisdiction of the courts.?34 Some of the efforts created resentment among the laity, and that resentment played a part in the demise of the court system after 1640. In the short run, however, these efforts gave reason for satisfaction among the civilians. Many offenders must have slipped through the

cracks, and a degree of discretion was allowed to the churchwardens in deciding whom to present.235 The old concessions to reality did not disappear, but the ecclesiastical lawyers were taking positive steps to make the old system of presentment by

churchwardens and parochial visitation function more efficiently than it had. Attendance at visitations was more rigorously enforced, and the number of them was increased. In some places, three or four a year were held, in place of the traditional visitations that were held yearly at best. Visitation articles were printed and

standard form schedules for doing public penance were produced and used in practice.23© The requirement that curates return certificates that penances had been performed in the parish church was insisted upon more carefully than it had once

232 Its mechanics are described in Clerke, Praxis, tits. 84-93 and a sixteenth-century precedent book, NNRO, Misc. Bk. 19, ff. 85v—94. On its relation to the statute, a contemporary discussion can be found in a formulary: LAO, For.21, fo. 1.

233 The suggestion that it may have been a response to the Henrician statute prohibiting citation of any person outside his diocese (23 Hen. VIII, c. 9, 1532) is made in Clement Colmore’s book, DUL, DDR XVIII/3, fo. 9. Adding the bishop to the plea would have provided a reason for invoking the jurisdiction of the provincial court. 234 This subject is discussed in greater detail and with fuller evidence in Helmholz, Roman Canon Law, 104-9. See also Ronald Marchant, The Puritans and the Church Courts in the Diocese of York

1560-1642 (1960), 52-106; Eric Carlson, “The Origins, Function, and Status of the Office of Churchwarden’ in The World of Rural Dissenters, 1520-1725, ed. Margaret Spufford (1995), 164-207. 235 See Patrick Collinson, The Religion of Protestants (1982), 206-15. 236 A.C. Wood, ‘Nottinghamshire Penances (1590-1794)’ (1944) 48 Trans. of the Thoroton Soc. 52-63.

THE ECCLESIASTICAL COURTS 295 been. Churchwardens were reminded of their duty to present defects in their parish churches and spiritual faults of their fellow parishioners. They were given greater immunity from suits for defamation for having made presentments. At the same time, if they were derelict in what the court officials regarded as their duty to present faults, they themselves were subjected to discipline by the judges—stern warnings at the very least, coupled with orders to make good their own failings. It was even possible that a churchwarden could be excommunicated for failing to present himself. It happened to an unfortunate man named Ward at York in 1598.23” He had two charges to answer. One cannot but feel sympathy for him and the other wardens who fell foul of such a stern regime. Unless the judges were moved to mitigate the

penalty that applied, Ward would have been subject to double punishment and double fees. He would have committed two separate offences. The frequent visitations held in Stuart England must have been occasions for apprehension, both among those who were presented and among the churchwardens who did the presenting.

Two wider points should be made about the efforts of the English church to improve the machinery of the disciplinary jurisdiction of its courts and to enforce social norms within the church’s competence. First, it was part of a more general ‘Increase in government’ that occurred in many, though not all, areas of life in England.?38 The increase was not simply a result of the initiative of officers of the

spiritual courts. A serious concern for improving conduct, a concern shared by the ‘better sort’ among the laity in English villages, accompanied and supported the efforts of the ecclesiastical courts. Local courts and quarter sessions also took part in an attempt to stamp out drunkenness and disorder. No doubt there was some ‘Laudianism’ on show in the spiritual courts, some effort to impose ceremonial discipline on a reluctant laity, but there was also congruence between the improvements in ex officio jurisdiction and a greater concern for discipline in social life. This did not necessarily mean higher levels of punishment, at least in the church

courts. A great many of the people who came before the courts were simply warned to amend their lives in specific ways. But the movement to use the law to hold together the social fabric was one in which the church shared. Second, what happened in England was part of a wider European development.239 The movement took different forms in different places, and it was an unqualified 237 Ex officio c. Warde (York, 1598), BI, Visitation book Y.V/CB.1, fo. 52: ... being a churchwarden omittyed to present himselfe’. 238 Wrightson and Levine, Poverty and Piety (above n. 184), 8-9; Joel Samaha, Law and Order in Historical Perspective. The Case of Elizabethan Essex (1974), 109-13. The literature on this subject is

extensive and contentious. Very helpful is Martin Ingram, “Religion, Communities and Moral Discipline in Late Sixteenth and Early Seventeenth-Century England: Case Studies’ in Religion and Society in Early Modern Europe, 1500-1800, ed. Kaspar von Greyerz (1984), 177-93; and see Michael Braddick, State Formation in Early Modern England c.1550-1700 (2000), 136-75, 298-300. 239 R. Po-Chia Hsia, Social Discipline in the Reformation: Central Europe 1550-1750 (1989), 122—42; Beat Kiimin, “The English Parish in a European Perspective’ in The Parish, ed. French et al. (above n. 142), 15-32.

296 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

success in none. But the urge to regulate the religious and personal lives of the people more strictly than had once been done was not a desire confined to the British Isles or the English church. The Council of Trent required yearly visitations by the ordinary, and they were to be made without regard to ‘the appeals, privileges, customs and prescriptions’ of the past. The Protestant churches were not slow to embrace institutions and rules designed to foster social and religious discipline.24° A study of the visitations held in an apparently typical French diocese suggests the same heightened

concern for regulating the parochial fabric, the admission of schoolmasters, and

religious conformity that animated the English clergy and also appeared so markedly in the records of visitations being held in England at the same time.?+! There were significant differences from one location to another, of course. The fabric of a parochial church in France would not have been identical with that of one

in England, and the exact mechanisms of visitation were not identical either. However, the same concern for order was at work in both places. Some of the shared results of the concern could be called ‘repressive’ by modern

standards. It is impossible to look with favour upon the prosecution of a young girl at Gloucester who was ‘detected for idleness.242 Such prosecutions were of a piece, however, with enforcement of the Poor Law. Working was an obligation. Attempts to suppress superstitious practices, made almost everywhere in Europe, were aimed at eliminating parts of popular religion—putting into place a tighter control over some long tolerated habits. At the time, most of these prosecutions would have been described as for ‘reformation of manners’ or ‘the promotion of religion.243 The efforts would have seemed natural, and probably equally urgent, to ecclesiastical authorities on both sides of the Channel. Negative Developments Two negative factors weighed upon the ecclesiastical courts under the later Tudors and the early Stuarts. They were heavy ones. As were the positive developments, the negative developments were partly continuations of old features of ecclesiastical jurisdiction. They grew out of the place the courts had long occupied within 240 Sess. 7, Ref. in Decrees, Tanner, ii. 688; Anneliese Sprengler-Ruppenthal, ‘Das kanonische Recht in

Kirchenordnungen des 16. Jahrhunderts’ in Canon Law in Protestant Lands, ed. R. H. Helmholz (1992), 49-121; Francois Méjan, Discipline de l’Eglise réformée de France annotée et précédée d’une introduction historique (1947).

241 Robert Sauzet, Les Visites pastorales dans le diocese de Chartres pendant la premiére moitié du X Vile siécle (1975), 209-28. 242 Fx officio c. Sheppard (Gloucester, 1600), GRO, Act book GDR 86, fo. 141. 243 See e.g. Ken Farnhill, Guilds and the Parish Community in Late Medieval East Anglia, c.1470—1550

(2001), 162-5; Steve Hindle, The State and Social Change in Early Modern England, c.1550-1640 (2000), 176—203.

THE ECCLESIASTICAL COURTS 297 the English legal system. However, they were intensified in the sixteenth century.

The problems not only seemed larger to the civilians. They were larger. Men knew that the aim of the reformers in the church had been to replace the canon law with a new and better compilation of English ecclesiastical law. That effort had failed. But it could scarcely be hidden from view that retention of the bulk of the medieval canon law had not been the first choice.?44 HOSTILITY TOWARDS THE COURTS

That hostility towards the courts of the church existed in many circles could not be denied. It extended even to educated and influential members of English society,

although its extent among them is hard to evaluate fairly and fully. When the restraints were taken away at the start of the Civil War, out came a spate of pamphlets rejoicing in the demise of the courts. Amateurish rhymes mocked them:

I care not a straw For thy bawdy law. Ecclesiastical courts are down too, they say England may be glad of that happy day?4°

The courts had been the agents of repressing true religion and punishing good men. Once stripped of their power, they became objects of derision. The doggerel said what many had thought.

This sort of pent-up hostility may be regarded as the reverse side of the improvements just discussed. The greater efficiency of the ecclesiastical courts provoked active dislike, especially as to their ex officio jurisdiction. The men who staffed the courts had been pushing hard—too hard it seemed—on institutions that were otherwise familiar and legitimate. An instructive example comes from the

notebook of Clement Colmore that was compiled in the early part of the seventeenth century at Durham. When you are dealing with a man guilty of keeping illicit company with a woman, Colmore advised, do not take his oath to forsake her company. Instead, require him to appear quarterly before the court and to bring some of his neighbours with him to swear that in the meantime he had obeyed the previous injunction by not keeping company with her.246 The reason he gave for this advice was that if the ecclesiastical court were to proceed against a recidivist for breach of an oath taken in the original proceedings, they might be subjected to a writ of prohibition based on the Elizabethan Statute of Perjury (5 Eliz. I, c. 9, 1563). 244 See the remarks in the 1610 Parliament by Roger Owen recorded in: Proceedings in Parliament 1610, ed. Elizabeth Read Foster (1966), 1. 125.

245 Taken from The Pimpes’ Prerogative and The Organs Echo (both published in 1641). See also W. Senior, “The Advocates of the Court of Arches’ (1923) 39 LQR 504-5. There is a useful list of the relevant pamphlet literature in Levack, The Civil Lawyers (above n. 62), 289. 246 DUL, DDR/XVIII/3, fo. 161.

298 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

That would frustrate the purpose of the law. It would mock the jurisdiction of the

spiritual courts. Therefore, a different tactic was required: the requirement of quarterly appearance. Fair enough, one may think, but one should consider the outcome. A man found to have committed fornication would be subjected to irksome and frequent appearances before an ecclesiastical court, required to persuade some of his neighbours to come with him on every occasion, and obliged to pay a fee time and time again. From the perspective of the church’s lawyers, this step might have seemed justified. It was a more efficient way of proceeding against men and women who had offended against accepted principles of

morality, and it was a change made necessary both by an unfortunate act of Parliament and overly aggressive common law courts. The matter would have looked very different, however, from the perspective of those who had been involved as defendants. To them, the new procedure would have seemed like nothing more than a new form of extortion.

Avarice among the lawyers was the greatest source of complaint against the English spiritual courts. It was widely said that the ecclesiastical lawyers were more interested in money than in spirit. They collected fees at every turn of disciplinary

proceedings, not excluding men and women who were dismissed with a simple warning. Everything that happened in the tribunals seemed to cost money—even bringing compurgators to court required defendants to pay a fee to the court, in addition to meeting the travel expenses of the compurgators.?4”7 Court officials went further. They encouraged defendants to compound for their offences, it was said, so

that public sinners paid money into the courts instead of undergoing public penance. They also managed to require them to pay full tithes and other parochial mulcts in violation of some long-established parochial customs. The spiritual courts

appeared marked by an indelible stain of greed. That the profits of the High Commission might be destined for repair of St Paul’s in London was no adequate justification.?48

Most of what the courts did was lawful if objectionable in the eyes of their critics, but some things were beyond the pale. Outright bribery was said to be rife in the courts; the chancellor of Peterborough was cited before Parliament in 1620 for having taken bribes in at least forty cases, and in the same year the chief judge in the Prerogative Court of Canterbury was condemned for taking bribes beyond counting. It was rumoured that he had been found with £200,000 in coin on his person.?49 As was true with most of the sources of discontent, the High Commission 247 e.g, 18d. ‘pro manu primi compurgatoris and 9d. ‘pro quolibet compurgatore postea, given in:

BRO, MS EP/J/10. 248 Davies, Caroline Captivity (above n. 119), 77. 249 Diary of Walter Yonge, ed. George Roberts (= 41 Camden Soc.; 1848), 37-8. A similar example is

described in F. Douglas Price, ‘An Elizabethan Church OfficialA—Thomas Powell, Chancellor of Gloucester Diocese’ (1939) 128 CQR 94-112.

THE ECCLESIASTICAL COURTS 299 was widely regarded as the worst offender. In 1606 at Winchester, for example, the commissioners fined a man £50 for an act of fornication.?°° It was a very large sum for so ordinary an offence. Probably the man was well-to-do. Certainly he was not overawed by the commissioners. They may have felt that only a large sum would effectively deter him in the future. But this was not a view he shared. He refused

to pay it. The fine went too far beyond what was normal. How the matter was ultimately resolved, we cannot say, but the bitterness of this not uncommon experience all but rises from the pages of the court records. Imposing such a huge fine was out of line with the traditional practices of the spiritual courts. No doubt the defendant thought its size resulted from simple greed. Other sources of discontent with ecclesiastical jurisdiction ranged over some traditional charges and some new ones. The courts were slow and the law in them uncertain. Dispensations allowed in the courts amounted to licences to violate the law of the realm, even in vital matters like securing that the clergy would be resident in their parishes.25! Use of the ex officio oath, by which men were required

to swear in advance to answer questions that might subject them to punishment, was an obvious violation of law and conscience.252 Commutation of penances was too readily granted by greedy court officials.253 Sentences of excommunication were issued for trifling matters, and the practice of ipso facto excommunication, an abusive usage by which men might be deprived of their civil rights without having the chance to be heard first, was being perpetuated in the ecclesiastical courts.2°4 The courts deprived godly ministers of their livings over matters of indifference and let recusants and seminary priests go with a slap on the wrist.255 Criticisms along these lines mounted up. The Root and Branch Petition (1640) would characterize the ecclesiastical courts as standing ‘in the same way of Church government, which is in the Romish church.25° The charge was widely believed. Indeed, it was not wholly false. Real as they were, the criticisms should be kept in perspective. Not everyone shared them, and even among critics of the courts there was a wide variation in 250 Ex officio c. Perkinson (Winchester, 1606), HRO, Act book 21M65/C1/28, ff. 5v-6v. See generally Hill, Society and Puritanism (above n. 192), 295-303. 251 e.g, a speech made by an unnamed knight given in Proceedings in Parliament 1610 (above n. 244), ii. 406-7; Carleton’s proposed bill of 1571 is described in Neale, Elizabeth I and her Parliaments 1559-1581 (above n. 145), 209. 252 See Morrice in 1592 in D’Ewes, Compleat Journal (above n. 106), 474; The Notebook of John Penry, 1593, ed. Albert Peel (= 67 Camden Soc. (3d. ser.); 1944), 46-7.

253 See the many contemporary complaints cited and discussed in Hill, Society and Puritanism

(above n. 192), 265-6. 254 Proceedings in Parliament 1610 (above n. 244), 1. 126, 255-6. 255 e,¢, Commons Debates for 1629 (above n. 171), 97-101; and see generally Neale, Elizabeth and her Parliaments, 1584-1601 (above n. 152), 282-5. 256 ¢, 13 (1640) in Constitutional Documents of the Puritan Revolution 1625-1660, ed. S. R. Gardiner (3rd edn, 1906), 140.

300 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

the strength of views.257 Some of the critics chose to make use of ecclesiastical jurisdiction when it suited their ends. The civilians themselves had answers of a sort to most complaints, and some of the grievances were the object of their own efforts to improve the quality of justice. To the repeated assertions that ecclesiastical officials were mercenary, extorting money from everyone who came before them, the English civilians could point to the fall in value of money that had occurred. Inflation made it imperative that court fees be raised. Moreover, the church itself was seeking to end the abuses. Many of the bishops had imposed restrictions on the occasions when fees could be demanded and some had formulated fee schedules for the courts, limiting what would have to be paid at each step.258 If a few individual officials stretched the restrictions beyond the point of legitimate interpretation or even disregarded them completely, the civilians said they should be discovered and punished for their offences. But it was not any fault inherent in the system itself. The civilians thought the ecclesiastical courts were being unfairly pilloried, often in situations where they should actually have been praised. During the seventeenth

century, for example, the consistory courts followed the lead of the High Commission in awarding alimony to wives who had been divorced from bed and board by their husbands.259 The classical canon law had provided very little support to women in this situation. Alimony was temporary, awarded only during the course of litigation itself. The need was often great. Was this move to permanent alimony not an improvement? No it was not; not at any rate by the lights of those

who spoke about it in Parliament. According to the complaints made in Parliament, making alimony available only encouraged wives ‘to be disobedient and contemptuous against their husbands.2© Even this seeming act of justice towards the unfortunate became a stick with which to beat the bishops and their courts. In a situation like this one, some of the criticism simply had to be borne. It could be answered, but it could not be stilled entirely. Only those critics who had passed beyond criticism to open contempt could be actively prosecuted in the courts. The civilians may have taken comfort from knowing that quite a few of 257 After Morrice’s speech against the ex officio oath in 1592, for example, four members of Parliament spoke in its favour (Dalton, Wooley, Lewen, and Finch). D’Ewes, Compleat Journal (above Nn. 106), 474-5.

258 See e.g. Bancroft’s Orders for the courts of the diocese of London, cc. 4, 11, 8 (1595), in Wilkins, Concilia, iv. 348-50; Statutes of Archbishop Laud for the London courts, c. 7 (1636), ibid. 529-31. See also APC, 1621-23, 325 (order to inquire issued in 1622). 259 See Civilian’s notebook (Archdnry Nottingham, c.1637), NUL, MS. A/NA 43, five folios from end, where the judges were urged to allocate ‘terciam vel ad minus quartam partem annui valoris bonorum immobilium’ of the husband ‘in taxatione alimoniae’. See also Ingram, Church Courts, 181. 260 Proceedings in Parliament 1610 (above n. 244), ii. 265.

THE ECCLESIASTICAL COURTS 301 the complaints were the same sorts of objections that were being made against the courts and lawyers of the English common law at the same time.?°! Perhaps they were only to be expected. It is rare for courts of any kind to be the object of affection among the populace, and the ecclesiastical tribunals, established parts of the legal landscape in England as they were, were bound to share in the grousing that is the common lot of lawyers in most ages. All the same, a good deal of the mud stuck, and some of it probably deserved to be thrown. THE COMMON LAW COURTS

The religious settlement in England had not materially changed the system by which ecclesiastical jurisdiction was restrained within the bounds of statute law and English custom. The writ of prohibition remained the touchstone. The realities had changed none the less. For one thing, writs of prohibition were now being regularly issued out of the King’s Bench and Common Pleas rather than the Chancery as had been the ordinary practice in the Middle Ages. For another, the common-law judges entertained arguments about the propriety of issuing prohibitions more often and more leniently than they once had done. This is not to say that the judges of the common-law courts were purposefully undercutting the ecclesiastical courts. Nor is it to suggest that they were cynically seeking to attract

litigation in order to increase their own income. Unlike some of the Puritan critics of the courts, the common lawyers accepted the legitimate place of spiritual jurisdiction in the realm. They did not seek to abolish it. However, they did believe the ecclesiastical courts were overstepping their proper bounds, subjecting men’s persons and property to a jurisdiction that was outside English law and custom. Some of them recognized that the overstepping had been a long-standing prob-

lem. The most obvious problems had been tackled successfully, using actions based upon the Statutes of Praemunire in the years immediately before and after 1500. But there was still more to do. A large part of the ensuing controversy over prohibitions was a dialogue of the deaf. Even on simple factual matters, the civilians and the common lawyers were directly at odds. Exactly how many writs had actually been issued? The civilians put it at a much higher figure than did the king’s justices.2©2 Were prohibitions being issued upon patently frivolous suggestions? To the civilians, it sometimes seemed so. For instance, a woman was being proceeded against in court Christian

on a presumption of adultery when a man had suspicious resort to her house at night. A prohibition against the prosecution was issued on the suggestion that it 261 Donald Veall, The Popular Movement for Law Reform, 1640-1660 (1970), 97; G. E. Aylmer,

“Charles ’s Commission on Fees, 1627—40’ (1958) 31 BIHR 58-67. 262 >» Co. Inst. 603.

302 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

was contrary to the rule that ‘all pleas of night walking pertain to the Crown’. To the civilians, the invention of this writ seemed merely an excuse for curtailing their well-established jurisdiction. To the common lawyers, by contrast, it seemed that

if the ecclesiastical courts could prove no more than suspicious conduct after dark, they were rightly prohibited from taking action. ‘Night walking’ was as suggestive of burglary as it was of adultery.?° Similar disagreements abounded. Where the civilians regarded the awarding of alimony to divorced wives as comfortably within their jurisdiction over marriage and divorce, the common lawyers regarded it as unlawful encroachment on their exclusive jurisdiction over freehold land and lay chattels.2°* Where the civilians saw a simple case of incest, the common lawyers saw a threat to their monopoly to interpret the parliamentary statute defining the prohibited degrees of consanguinity.2© It was hard to find common ground in such matters, although the record also shows

that the two sides were not such bitter antagonists that they could not meet in person and even hold each other in respect. Whatever may be thought of the merits of the controversy, it is undoubted that

the increasing numbers of writs of prohibitions received by the ecclesiastical courts during the Tudor and Stuart reigns made things more difficult for them. Five principles of law lay behind the writs: (1) the ecclesiastical courts were required to accept writs of prohibitions as stating the law of England; (2) acts of Parliament could only be interpreted definitively by the common law courts; (3) judging and interpreting customary rights belonged to the common law courts alone; (4) the existence of a remedy at common law impliedly ousted ecclesiastical jurisdiction over the same matter; and (5) the common law judges held a supervisory jurisdiction to prevent the ecclesiastical courts from deviating from their own law or trespassing on established customs, even if the common

law itself did not provide a remedy. If pushed to their limits, these principles would have paralysed the courts of the church, and the common lawyers themselves were not entirely consistent in implementing them. Whether a prohibition could be issued after a definitive sentence had been given in the ecclesiastical courts, for example, remained a point of contention among them.?°* Some thought a kind of estoppel should apply. It gave two bites at the apple. Others thought the ecclesiastical proceedings were coram non judice and the writ should be issued accordingly. A principle was at stake. So there was disagreement, but on 263 2 Co. Inst. 606-7. 264 See Sir Edward Powell’s Case (1641) March 80, to the effect that a prohibition should be awarded

because alimony demanded a temporal good (money), was not directly related to marriage, and could also ‘charge a man’s inheritance’. 265 Case of Bishop of Peterborough (1605), Beinecke Library, Yale University, Osborn Shelves, MS.

f.b.149, p. 18. 266 See Gray, The Writ of Prohibition (above n. 179), 1. 124-7.

THE ECCLESIASTICAL COURTS 303 these five principles almost all of the common lawyers would have agreed. They were the starting-points.2°7 The English civilians disagreed in principle with all except the second and fourth of these rules, and even those they accepted only in part. They rejected the first most vehemently. Although parliamentary statutes bound them, they did not concede the same power to writs of prohibition. They regarded extension of the

writs beyond what was authorized by the medieval precedents, principally Circumspecte agatis and the Articuli cleri, as illegitimate acts of power, except where expansion had been expressly authorized by act of Parliament. They resisted the implications of the encroachments in their actions. As one of them put it, “The precedent of a prohibition maketh no law.2% The officials in the English ecclesiastical courts would obey a specific writ of prohibition when they received it, but

they regarded many of them as simple acts of force. Except in the actual case before them, they refused to bring their law within the confines set down in the writs. They made their complaints to the king, hoping for general amendment from his authority, and they continued to enforce the ius commune as it had been received in England and not specifically amended by statute. A concrete example of their reaction may be useful.26? In most circumstances, the ius commune required the testimony of two fully competent witnesses to prove a fact; the common law knew no such rule in ordinary litigation. Suppose a plaintiff sued an executor to enforce a legacy in a will before an ecclesiastical court, and the executor pleaded that the plaintiff had given a release for the legacy. If he had, the legacy was no longer owed. The executor would have to prove the release’s existence and validity by two witnesses; otherwise the plea would be rejected under the ordinary civilian law of proof. In these circumstances, executors who had only one witness (and sometimes even those who had more) sought writs of prohibition to prevent this from happening and to have the question about the release tried by a common law jury.2”° The allegation would be that a release was a matter for the common law, and that the ecclesiastical court’s refusal to admit its validity for merely procedural reasons would frustrate a goal of the common law. Hence it seemed to some that a writ of prohibition should lie.

Writs of prohibition in cases like these were doubly infuriating to the English civilians. First, no one denied that the underlying subject-matter was 267 These are taken (by the author) from accounts found in BL, Cotton MS. Cleo.F.i, ff. 135-61; Beinecke Library, Yale University, Osborn Shelves, MS. f.b.149; Folger Library, Washington, DC, MS. V.b.17, and Lincoln’s Inn, London, MS. Misc. 581. 268 See Folger Library, Washington, DC, MS. V.b.17, fo. 25. 269 More examples are given in Helmholz, Roman Canon Law, 173-80.

270 Bagnall v. Stokes (KB 1588) Cro. Eliz. 88; the case and others like it are discussed under the heading of ‘Evidentiary Disallowance Surmises’ in Gray, The Writ of Prohibition (above n. 179), ii. 207-91.

304. ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

within their cognizance. Probate of wills and enforcement of legacies belonged to

the spiritual forum under English law. To seize upon a minor matter like a disputed release to oust their jurisdiction violated the acknowledged rule that accessory matters should follow the principal. The tail would be wagging the dog. Second, the writ interfered with the internal administration of the church's law.

Procedure in the spiritual courts differed in many points from that of the common law, as the royal judges knew well and often recognized explicitly. One such point was the civil law’s rule requiring two witnesses, a rule that (as Ridley put it) ‘hath the consent of the Law of God, and the Law of Nations.27! To prevent application of this authoritative and salutary safeguard against perjury and error was a dangerous step. The civilians would not countenance it except where they were forced to in a specific case. Otherwise, they would continue to enforce the ius commune. That they were able to carry on in the face of writs of prohibition as effectively as they were is nevertheless a cause for surprise. It stands to reason that the wider availability of prohibitions and the advantages of submitting issues like the obli-

gation to pay tithes to juries instead of to judges in the spiritual courts should have caused the volume of litigation in the spiritual courts to shrink.2”2 Why sue there when it led so easily to a writ of prohibition that would frustrate the suit’s prosecution? Why defend there when a prohibition was to be had? Yet a shrinkage in litigation did not happen. The volume of causes introduced rose, and the contemporary act books produce few instances where prohibitions were introduced, at least when compared to those in which they could have been. What explains the apparent anomaly?

Four explanations for it are suggested in the contemporary record. First, practical advantages to bringing suit in the spiritual forum existed, assuming that no writ of prohibition was issued. This was particularly true for tithe litigation, which made up such a significant part of the increase in litigation. The judges in

the spiritual courts looked at tithing customs with a sceptical eye. They were encouraged by the law and by economic realities to reinstate full payment of tithes. Moreover, in some cases they offered double or treble damages in causes brought to recover the tithes being withheld. To do so, it was important that the right established during the Middle Ages to have a contumacious opponent excommunicated and arrested remained in force. It still put a powerful weapon into the hands of successful opponents. Even where the common law provided an alternate remedy or threatened to prohibit a suit, therefore, it sometimes paid to sue in the ecclesiastical forum. Second, the outcome of seeking a writ 271 Ridley’s View, 192-3. 272 See e.g. Nash v. Mollins (KB 1590) 1 Leo. 240-1; Berrie’s Case (KB 1616) Hob. 192.

THE ECCLESIASTICAL COURTS 305 of prohibition was often quite uncertain. To take the extreme cases from the contemporary common law reports and generalize from them does not do justice

to the complexity and the uncertainties of the developing law on the subject. The common law judges were aware of the dangers of too frequent interference—

one of them remarked, for example, that if the principle behind a prohibition being demanded were granted, ‘all suits in the ecclesiastical court should be stayed or otherwise taken away.273 Few royal judges wished to go that far. Except in obvious cases, this reluctance put a brake on the willingness of litigants to seek prohibitions in the first place. Third, the civilians hit upon several ways of blunting the effect of prohibitions. They regularly banished from their libels and other documents any language that might have suggested a temporal claim.?”4 They also took affirmative steps. For example, at the start of a suit, they required litigants to enter into penal bonds to perform the award of judge. The bond would itself say noth-

ing about the underlying nature of the suit; it would contain a promise to pay a large amount of money unless the maker continued to make dutiful appearance in the ecclesiastical court.275 If the party later sought a prohibition, he would become involved in a struggle to extricate himself from forfeiture of the sum on

the face of the bond. Such techniques (if that is the right word) must have deterred some litigants from seeking prohibitions. Fourth, there was the matter of expense. It was not simply that the writ of prohibition cost money. If the prohibition case were ultimately lost, the person who had taken out the writ would have to bear all the expenses of all the litigation. An award against him would include the expenses of the original cause in the ecclesiastical court and what the other party had spent seeking a consultation to reverse the prohibition. Such awards were commonly made in the ecclesiastical forum. The common law courts virtually never upset them. This being said, writs of prohibition still cast a long shadow over ecclesiastical jurisdiction during the Tudor and early Stuart periods. Maybe the shade was no longer in theory than it had been throughout the Middle Ages, but it certainly was longer in its actual extent. More direct and expansive challenges to the autonomy of the spiritual courts were being made. Prohibitions, issued or merely threatened, were an increasingly strong weapon in the hands of litigants. The possibility must have counted in the compromise of many causes brought in the spiritual forum.

It would even have been felt by the judges in disciplinary proceedings that depended upon the ex officio oath. The existence of the threat discouraged efforts 273 Robert’s Case (KB 1611) Cro. Jac. 269.

274 e.g, LJRO, Precedent book B/C/20/1, fo. 268v (Libel in tithe cause): “Hec clausula inseritur gracia

evitandi prohibitionem regiam’ 275 e.g, Calvert c. Ambrose (Carlisle, 1607), CBRO, Act book DRC/3/62, s.d. 20 Oct.: ‘prestita prius cautione obligatoria per [defendant] in summa xx li pro personali comparatione’.

306 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

to expand the scope of ecclesiastical jurisdiction.2”© That the spiritual courts remained as busy and effective as they did remains a cause for wonder. The civilians cannot have understood what awaited them. Ecclesiastical lawyers, like Mark Tabor, registrar to the archdeacon of Wells whose lament about the fall of ecclesiastical jurisdiction was noted at the start of this chapter, simply had not realized that they held a losing hand.

An Assessment

If they had been asked whether the two threats to spiritual jurisdiction just described were all they had to worry about, the Caroline civilians would certainly have said no. They would have been quick to mention other concerns. The lack of a sufficient supply of law graduates from the universities would have been one. The poor quality of the statutes passed by Parliament that affected the church’s courts would have been another. The continuing disputes over probate jurisdiction between the archbishops and their suffragans might well have been a third. The admitted greed exhibited by some court officials would have furnished still another point of concern.?’”7 The civilian literature and even the prosaic court books of the time show the worry each of these faults was causing among the English ecclesiastical lawyers. However justified they were, none of these concerns threatened to overwhelm ecclesiastical jurisdiction in England. The civilians had the support of the secular

authorities. Their immediate problems could be dealt with after a fashion. Surrogates could be appointed to do the judging if no law graduates could be found, and the registrars were everywhere present to hold the courts together. Skill at statutory interpretation allowed the civilians to avoid the worst consequences of ineptly drafted acts of Parliament and often writs of prohibition too. Jurisdictional disputes between different courts of the church, most protracted in testamentary matters, had existed since the thirteenth century. They always seemed to work themselves out. And as for venality among the court officers, it may have been a problem beyond solving. But it was also a grievance of very long standing. Was the problem really any worse than it was in the royal courts? Apart from the attacks by the common lawyers and a general distrust of ecclesiastical jurisdiction among segments of the population, the ecclesiastical courts

on the eve of the English civil war did not appear to be headed for extinction. 276 For example, the attempt to expand the scope of defamation to include injurious language that did not impute a crime was impeded, it was said, “because of the fear of prohibitions. BL, Lansd. MS. 253 (‘A distinction between the Ecclesiastical Law and the Common Law; ¢.1610), fo. 142Vv.

277 See e.g. the concerns in “The Forme of Government longe since exhibited by the Chauncellor of Norwich’ (temp. Jac. I), BL, Add. MS. 28843, ff. 500—-505v.

THE FINAL DAYS 307 When compared with the bishops’ courts in France, the English courts actually appeared to be thriving.?”8 In some English dioceses there was a decline in the extent of litigation between the 1620s and the late 1630s, but it was very slight. In

the Salisbury consistory court, for example, the number of instance causes recorded for each session was in the seventies at the earlier date. Even late in the 1630s, it had only declined into the sixties.2”9 In most places, the level of litigation held constant or even increased. For the diocese of Gloucester, for example, the average number of causes recorded per session during 1629 was in the sixties. In 1639, it had risen to the eighties.28° The civilians would have perceived little reason for panic.

THE FINAL DAYS When the collapse came, it came quickly. In the consistory court at Salisbury, for example, on 9 November 1641 thirty-nine instance causes were still formally on the books, although in only three of them was anything of consequence done. By the next July, only one cause remained to occupy the attention of the court. Much the same was true in the diocese of Gloucester, although the decline there was slightly slower. In September 1641, eighteen causes were entered into the act book, a dramatic drop from just two years before, but still not a void. The numbers were large enough for the registrar to pretend that the court was still doing regular business. The next summer, however, the figures were down to single digits for each Gloucester court session, and by the session of 4 May 1643, only one cause remained to be recorded. In it, the defendant did not appear. An order in the cause was entered none the less. It declared that the defendant owed his proctor £6 for services rendered.28! Even in defeat, the civilians did not forget about collecting their fees.

Roughly similar figures can be given for virtually all the English diocesan courts. Small variations did exist and in a few places formal entries continued to be made, but a story of effective collapse between 1640 and 1643 was repeated almost everywhere. In the consistory court at Chichester, from an average of twenty causes per session in the late 1630s, the volume declined to about ten in April 1641, and then to only one cause in April the next year.282 A similarly dramatic drop in the number of causes heard in the commissary court for the 278 See e.g. Vital Chomel, ‘Notes sur l’activité disciplinaire des officialités du diocése de Grenoble (1418-1449) in Etudes historiques a la mémoire de Noél Didier (1960), 49-59. 279 Comparing WTRO, Act books D1/39/1/51 with D1/39/1/54. 280 Comparing GRO, Act books GDR 171 with GDR 200. 281 Jones c. Prater, GRO, Act book GDR 206, s.d. 4 May. 282 Taken from WSRO, Act book Ep I/10/45, ff. 11-17v, 191-192, and 210v. See also Anthony Fletcher, A County Community in Peace and War: Sussex 1600-1660 (1975), 93.

308 ELIZABETHAN SETTLEMENT TO THE ABOLITION OF EPISCOPACY

diocese of London occurred between 1641 and 1643. By Easter term 1643, only one cause was recorded as being before the court.283 In the archdeaconry of Berkshire, the number of causes recorded in the act book for 1640 averaged about twenty-five.

The number shrank drastically during the next year and by Michaelmas term of 1642, there was only one case on hand to record. The page set aside for recording causes for Trinity term 1644 was left wholly blank.?*4

A parallel crumbling in the church’s ex officio jurisdiction occurred about the same period, or in some places a little sooner. The last record of a visitation of the archdeaconry of Gloucester, for example, was held in May of 1642, but only one matter remained for the court’s attention.285 The routine listing of the churchwardens and their parishes was made, though it must have seemed more for the sake of form than anything else. The last ex officio act book for the diocese of Lichfield runs from January 1640 to November 1642, but by the later date there was

nothing of any substance being done. Likewise, the ex officio entries in the archdeacon of Canterbury’s court petered out during the first half of 1641. The records were kept up there, but with one exception, no one appeared to answer the archdeacon’s citations. That exception occurred on 2 May 1643, when John Keete

of Reculver appeared. The court record stated that, “unprompted and voluntarily and with tearful humility, Keete admitted that he had fathered an illegitimate child. He asked that correction be administered to him, ‘for the better manifestation of his hearty sorrow and penitence’.?8® Even at this late date, there was thus an occasional need for the courts, and in some sense they did remain ‘open for business. But the sad fact was that there was virtually no business for them to conduct. Keete was an unusual man. The last to disappear in most dioceses were probate matters. In the consistory court at Chester, for example, the final session recorded took place in October 1643. The two causes heard both dealt with testaments.28” The court belonging to the archdeacon of Colchester was kept alive at least into 1650, but the only matters that had come before it dealt with the administration of decedents’ estates.2°® In the spring of 1647, the registrar of the Exeter diocesan court was reduced to the point where, instead of recording the thirty to forty causes before the court in 1641, he had only five causes to be placed in the act book, and all dealt with wills. There was nothing else. By the next spring, only one cause remained to be entered in the Exeter act book. Again it was a probate matter. The last formal entry at 283 Taken from GL, Act book MS. 9065H, ff. 291—292Vv.

284 BERO, Act book D/A2/C80o, ff. 5v—14, 92Vv, 148V, 149V—150. 285 GRO, Act book GDR 207.

286 CCAL, Act book Z.4.7, fo. 126. 287 CRO, Act book EDC 1/63, fo. 23. 288 ERO, Act book D/ACA/54A. See also Kitching, “Probate during the Civil War’ (above n. 2), 284-7; Martin D. W. Jones, “The Ecclesiastical Courts before and after the Civil War: The Office Jurisdiction in the Dioceses of Oxford and Peterborough, 1630-1675’ (Bodl., Oxford B. Litt. thesis, 1977), 28-31.

THE FINAL DAYS 309 Exeter before the Restoration was made the following January. But by then, there was no actual litigation that could be entered into the book. A heading was all. It is remarkable how long some of the courts maintained a show of exercising their traditional jurisdiction. The opening entries, which recorded the style of the court and the personnel present, continued to be made, just as they had been, even though there was nothing of substance to be recorded. For this formal constancy,

the church had to thank the pertinacity of many diocesan registrars. A typical example comes from the archdeaconry of Berkshire. By late 1641, the court’s regular staff of proctors had all disappeared from the scene.289 Nothing could be done in their absence, and there would have been little enough for them to do had they

been present. Only two causes were left on the books. In neither of the two were the parties actually present in court. Despite the demise of his court for all practical purposes, the archdeacon’s registrar doggedly kept the formal records going. He continued entering notations that a court was being held into the spring of 1645. In making this effort, he was not exceptional. Many registrars were loath to abandon their records and their posts. Only when things seemed entirely hopeless did they cease to make the accustomed entries. What is more, many of them held on to their law books and other court records during what must have been the very dark days that followed. Where they kept the records we do not know. But we do know that when the consistory courts were brought back to life after the Restoration, some of the same registrars were still alive, and they were anxious to begin where they had left off. This was true in a quite literal sense. They began recording the litigation of the 1660s on the very

next folio of the same act books they had reluctantly put to one side in the 1640s.29° The abolition of episcopacy in the 1640s had brought an end to the effective jurisdiction of the ecclesiastical courts. The revival of episcopacy in the 1660s would bring them back to life. The question then would be how much like the old

courts they would turn out to be. 289 BERO, Act book D/A2/C8o, fo. 141: ‘nichil actum est propter absentiam procuratorum’. 290 Examples in which the same act books contain litigation from the 1640s and 1660s with little or no separation: Archdnry Canterbury, CCAL, Act book Y.6.13, ff. 244-246 (entries from September 1648 followed by entries from September 1661); Chichester, WSRO, Act book Ep I/10/45, ff. 210v—212 (entries from Mar. 1643 followed by those from May 1661); Gloucester, GRO, Act book GDR 206 (entry for 25 July 1644 being followed after blank folios by one for 20 Nov. 1661); Archdnry Huntingdon, HTRO, Act book AHH 5/17, (from Feb. 1643 to Mar. 1670); York Exchequer Court, BI, Exch.AB.12, ff. 76-77 (from late 1649 to 1660); Archdnry Suffolk, SKRO, Precedent books E 14/11/1 and 5.

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Civil Procedure and the Law of Proof y the time the consistory courts had become established in the mid-thirteenth Becncary the church had adopted a procedural system in its courts that was quite

distinct from that of the English royal courts. The rough identity of procedure in spiritual and secular assemblies, one that had characterized the Anglo-Saxon era and persisted even into Norman times, was gone. And it was gone for good. A few areas of overlap persisted around the edges. But differences were marked out. Characteristic distinguishing features were well established in both spheres. The procedural law adopted by the church also proved to be resilient. Civil procedure was to be one of the areas of ecclesiastical law least affected by either the

Reformation statutes or incursions by writs of prohibition from the royal courts. Indeed, it was a part of the church’s law in which the civilians had particular confidence. They defended it with conviction against all attacks by the common lawyers. It also linked them with current developments on the Continent. Even after the Reformation had cut the ties between them and the papacy, procedural law kept the civilians in touch with some of the best of the legal literature then being produced on the Continent. Real as it was, the distinctive nature of procedure in the spiritual courts does not tell a complete story of relations between the two legal systems in England. Not everything was disagreement and mutual incomprehension between civilians and common lawyers. Points of contact linked them with the English royal courts. Procedure in the Court of Chancery and other equitable jurisdictions took over parts of civilian procedure, as, for example, in the use of written depositions for examining witnesses in making proof of facts.! The common law courts themselves were not wholly impervious to ideas drawn from the procedural system of the ius commune. The statutes requiring two witnesses in trials for treason (e.g. 5 & 6 Edw. VI, c. 11, 1552) and providing for compulsion of witnesses (5 Eliz. c. 9, s. 12, 1563), for example, are likely to have been civilian imports. All the same, it is undeniable that fundamental differences between procedure of the common law and that of the zus commune had come into existence before the thirteenth century and continued long 1 See, e.g., W. J. Jones, The Elizabethan Court of Chancery (1967), 236-63; Dirk Bieresborn, Klage und Klageerwiderung im deutschen und englischen Zivilprozefs (1999), 493-501.

312 CIVIL PROCEDURE AND THE LAW OF PROOF afterwards. Most basically and perceptibly, the ecclesiastical courts relied on judicial evaluation of evidence produced by the parties, not on the verdicts of juries.

BASIC CHARACTERISTICS The civilian ordo turis employed in the ecclesiastical forum grew out of what most historians have taken to constitute a genuine revolution in the law of proof. A product of the revival of legal science in the West, the movement forward began with a rejection of irrational forms of proof like the ordeal that had been prevalent during the early Middle Ages. It turned out to be much more than rejection, however. Taking the basic institutions of the Roman law, the jurists of the tus commune developed a body of procedural law that was in many respects their own creation.3 It became a subtle and elaborate system. Then and now, the civilian system of civil procedure has had its critics. That it did have faults, few would deny. Its complexity and the diversity of tenable views it fostered opened it to uncertainty and a consequent tendency to delay in civil cases. Its endorsement of torture as a means of securing confessions in criminal cases cannot but provoke distaste. But even when all its defects have been totted up and regarded with a critical eye, the procedural law of the ius commune remains an impressive achievement. It has mattered in the development of modern legal systems.

The Centrality of Civil Procedure It would not be off the mark to say that a concern for procedure remained at the centre of the thought and work of the medieval jurists. They said that it could only have been about the ordo iuris that St Paul had spoken when he directed that all things should ‘be done decently and in order’ (1 Cor. 14: 40),* and they sought to dis-

cern the full implications of that biblical direction. It was natural that among the earliest products of the schools should have been the ordines judiciaru, treatises that outlined the elements of procedure to be used in courts of church and state and that gave procedural guidance to lawyers practising in them. Procedural treatises were also among the works produced most consistently by later jurists. Lengthy works like the Speculum iudiciale of William Durantis (d. 1296) and briefer but better 2 eg. R. C. Van Caenegem, ‘Methods of Proof in Western Medieval Law’ in id., Legal History: A European Perspective (1991), 71-113.

3 Wieslaw Litewski, Der rémisch-kanontsche Zivilprozefs nach den dlteren ordines iudiciarii (1999); Linda Fowler-Magerl, Ordines tudiciarii and Libelli de ordine iudiciorum (From the Middle of the Twelfth

to the end of the Fifteenth Century) (1994); K. W. Norr, ‘Die Literatur zum gemeinen Zivilprozef’ in Coing, Handbuch, i. 383-97; Walter Ullmann, ‘Medieval Principles of Evidence’ (1946) 62 LQR 77-87. 4 Nicholas Everardus, Loci argumentorum legales, tit. Locus ab ordine, no. 1.

BASIC CHARACTERISTICS 313 organized manuals like the Praxis civilis of Robertus Maranta (d. 1540) were known and referred to frequently by ecclesiastical lawyers in England. They were relevant both before and after the Reformation, as they were on the Continent. Procedural

works were produced in England too. William of Drogheda contributed an early example in the thirteenth century, and England’s Francis Clerke was working within a long-established tradition in compiling his Praxis in curits ecclestasticis in the 1590s. An impressive quantity of lesser procedural treatises, modest outlines of the steps used in litigation, were also produced for many of the English spiritual courts; some have survived, although unprinted and neglected in diocesan archives.

The procedural tradition of the ius commune left room for variation among the courts—the so-called stylus curiae. This permissible variation was one of the reasons so many different treatments dealing with procedure were produced by the proctors and advocates of the courts in England. But it is not wrong to speak of a unity in its procedural system overall. The ordo iuris promoted a basic consistency in the settlement of disputes, gave rise to a common law of proof, and called into being a conception of due process of law that has been of real significance in the

Western legal tradition. The law of civil procedure in the ius commune had an organic character, one capable both of growth and of admission of regional differences, while it still retained the same roots and basic shape. It kept a recognizable identity in places that were geographically very far removed from each other. It kept a fundamental identity across centuries.

One reason for this overall unity was that the procedural system of the ius commune began with the basic forms of the Roman law, as they were laid out in the Justinianic compilations. Legal institutions like res judicata, a system of appeals, and use of advocates retained much the same meaning as in the law of the Corpus iuris civilis. They were known to the English ecclesiastical courts in much the same sense they had possessed in the Roman law. At the same time, the jurists took other insti-

tutions from the Roman law—concepts like the litis contestatio, interdictio, and cautio de rato—and gave to them expanded and slightly different meanings than they had had in the classical law. The process of change had begun already in late antiquity, and it was continued by the medieval jurists. Some wholly new features were also added as necessary because of the special needs and character of the canon law. Excommunication is probably the best example. Still other parts of the classical law were dropped, or at least greatly reduced in importance. The two-stage process, in which the first part of a trial occurred before the praetor and the second before the iudex, is an obvious example. However, these changes were shared throughout the Western church. They did not disrupt the basic unity of the ius commune.

The procedural system that emerged was never wholly static and it never became a straitjacket for lawyers within the system. For example, because strict adherence to plenary procedure could lead to the prolongation of litigation, the

314 CIVIL PROCEDURE AND THE LAW OF PROOF jurists developed an alternative to following each step outlined in the ordines: summary process. It was accepted formally by the church in two constitutions

issued at the start of the fourteenth century: Saepe (Clem. 5.11.2) and Dispendiosam (Clem. 2.1.2), although the process itself did have earlier origins. Under this form of proceeding, all the formal steps that were not essential for the doing of justice could be omitted; ‘only the truth of the facts was to be inspected’ The litigation was to proceed ‘simply and plainly. It was left to the commentators to put flesh on these bare bones. Their efforts informed court procedure. Whether authorization of summary procedure had a decisive impact on practice in the English ecclesiastical courts is a fair question. Certainly the distinction between summary and plenary causes was maintained in form. Certain kinds of litigation were regarded as suitable for the one or the other.° Summary procedure was sometimes specifically requested in particular causes, and just as often it was granted expressly in the course of litigation heard in the courts.”?7 However, process could drag on even in summary causes, as where one or the other party sought to delay proceedings or some accident intervened. And in some matters—restriction

to one peremptory citation of defendants instead of the three prescribed in the ordo for example—court procedure settled into so regular a pattern that very often it seems to have made little difference whether summary process was being used in a particular cause. The choice of the litigants and the desires of the judges may have played a more important part in setting the timing for individual cases. That the people involved had the ability to exert their influence, even in plenary causes, was an indication of the flexibility possible under the procedure of the ius commune.

Jurisdictional Principles For procedural purposes, the law of the church drew two basic divisions in the litigation that fell within ecclesiastical competence. The first was between that based on the status of the parties and that based on the subject-matter; the second was that between civil and criminal causes. The place of the first of these in England was but a pale form of the robust canonical ideal, but it deserves a word. The basic idea was

that the clergy could not be made subject to secular justice, and that all civil and 5 A short and useful introduction to the subject in the English courts is given in Conset, Practice, pt. IV. © See Clerke, Praxis, tit. 133 (a list of plenary causes); it cannot have been regarded as fixed by law, however. Some procedural works list the same subject in both categories, as “Summarium processus’, BL, Add. MS. 6254 (sixteenth century), ff. 24v, 41v, listing matrimonial causes as both plenary and summary. The communis opinio among the English jurists was that the list in Clem. 2.1.2 (Dispendiosam) was not exhaustive; see Shafto c. Shafto (Durham, c.1590), DUL, DDR/XVIII/3, fo. 135, per Dr Hudson. 7 e.g. Bekyn c. Morys (Bath and Wells, 1485), SRO, Act book D/D/Ca 1, p. 161, in which one proctor

had recorded, ‘vult quod procedatur in causa principali summarie et de plano iuxta constitutiones novellas Dispendiosam et Saepe in Clem. ’

BASIC CHARACTERISTICS 315 criminal causes involving them, no matter what the subject-matter involved, belonged to the spiritual forum. It was both a privilege and a duty, since under the canon law, clerics had no right to renounce or waive the privilege (X 2.2.18). At the same time, some subjects—marriage and usury being the clearest examples— belonged within the church’s jurisdiction, no matter who the parties were. Chapter 9 will take up this subject in more depth. Here, one need only note that in the world of legal practice, canonical jurisdiction based on subject-matter was the only kind of ecclesiastical competence admitted in England. Canonical jurisdiction ratione personae was restricted to the criminal law, where Becket’s martyrdom had wrung the concession from a penitent King Henry II. Further than that in recognizing the privilegium fori the English temporal courts did not go. William Lyndwood’s gloss on a provincial constitution that embodied the canonical posi-

tion summed up the then current situation: “These constitutions are little observed’8 The large question was brought before the papal court in the 1370s, where the auditors of the Rota determined that the English custom of hearing civil cases involving clerical defendants before secular courts was a wholly invalid custom under the canon law.® But nothing changed in consequence.

The restriction of the privilegium fori to the criminal law in England had a notable outcome. It meant that ecclesiastical jurisdiction resembled the common law in being organized around different ‘forms of action. Reference to almost any precedent book used by the spiritual courts shows quickly that the civilians

thought about the competence of their courts in terms of subject-matter; there was a causa matrimonialis, there was a causa diffamationis, there was a causa testamentaria, and so on. Regular forms existed for each. Although neither as precise nor as concise as the early common law writs, the canonical libels used in England did contain similar orders, statements of law, and prayers for relief. But there were no special forms seeking relief ratione personae in either system. Maitland argued that a crucial division between Roman law and English law existed on this point.!° Some affinity might appear to exist between the early Roman

law’s formulary system and the English system of writs, he recognized, but this could have been no more than an accidental parallel. It could only have been chance because, by the time of Justinian’s compilation in the sixth century, the formulary system had been swept away. Any influence exerted by civil lawyers could only have pushed English law towards the libellary procedure adopted by later Roman law, one which had little place for the earlier formula containing an ‘authoritative definition of the cause of action’! Adoption of the former did not happen in England. 8 Lyndwood, Provinciale, 92, s.v. Contingit aliquando.

9 Decisiones antiquae sacre Romanae Rotae (1509), no. 840. It is discussed in Walter Ullmann, ‘A Decision of the Rota Romana on the Benefit of Clergy in England’ (1967) 13 SG 455-90.

10 Pollock and Maitland, ii. 558-61. 11 ibid. 560.

316 CIVIL PROCEDURE AND THE LAW OF PROOF As a description of the history of the common law, Maitland’s description may well stand the test of time. But as a description of the procedural system used in daily practice before the English spiritual courts, his words can mislead. The libels used in the English ecclesiastical courts were marked by a regularity of form that was very like common law practice. The language in them was perhaps not quite so terse as that of the early royal writs. It took regular forms none the less, specific libels being designed for specific kinds of litigation. The libels were arranged by subject in precedent books, much as the common law writs were arranged in registers of writs. One might say that ecclesiastical libels were rather like actions on the case in the common law. They had a core of common words, to be used and varied according to the situation. Ecclesiastical lawyers chose from among them as befitted their needs.

The other basic jurisdictional distinction known in the tus commune—that between civil and criminal causes—was followed in most respects. Practice in the English ecclesiastical courts was divided between instance and office jurisdiction.

The former covered civil disputes between parties; the theory was that it was brought ‘at their instance’. The latter dealt with punishment of defendants who had violated the criminal law of the church; the theory was that the judge acted by virtue of his office to repress unlawful behaviour. A different form of procedure was used for each, and very often the records were kept in separate books. In prac-

tice, however, there was always some overlap between the two—in the law of defamation, for example, where either criminal or civil procedure was sometimes appropriate because of the quasi-criminal nature of the slanderous speech. The canonists distinguished between them according to the purpose of the proceeding, that is between causes begun to secure compensation and those begun for purposes of punishing the defendant. In English practice, these two might come to the same thing. A public penance and a public apology could be the appropriate sanction in defamation litigation, however it was styled. Office causes could also be ‘promoted’ by private parties, making them a kind of a procedural hybrid. However, the basic distinction between civil and criminal was preserved in English practice. Separate act books were kept for each side of

jurisdiction in courts, at least where the volume of litigation warranted it. The nature of the proof offered and the remedies used were also distinct in several ways. This chapter deals only with instance litigation. Criminal law is the subject of Chapter 12. This chapter also follows the habits of the civilians, for whom it was a commonplace that a judicial proceeding was divided into three basic parts.12 12 e.g, LPL, MS. 3403, p. 1; Bodl., Rawl. MS. C.503, fo. 1; BL, Add. MS. 6254, fo. 1: ‘Tudicium ex tribus

constat, principio, intermediis, et fine.

THE OPENING STAGES 317 THE OPENING STAGES The opening part of an instance cause led up to and included the Jitis contestatio, the joinder of issue between plaintiff and defendant. Several preparatory steps preceded it. Much of the literature compiled by English proctors dealt with them, and it is worth taking an example of their efforts more or less at random. When one seventeenth-century proctor, the compiler of a manuscript now kept in Marsh's Library in Dublin, described what was involved, he listed eleven separate steps prior to the itis contestatio.!3 (1) The plaintiff’s proctor presents the plaintiff’s claim to the court; (2) the citation is sealed and sent; (3) the apparitor swears an oath that it has been served; (4) if the citation cannot be served, a citation viis et modis is granted; (5) if the defendant does not appear in response, he is to be decreed as contumacious; (6) if he still does not appear in the next session, he is to be excommunicated; (7) when he does appear he must purge his contumacy and pay the appropriate fees; (8) the proctor for the defendant may move for the cause to be dismissed or make exceptions against the process; (9) the libel must be formally exhibited and a copy given to the defendant; (10) if the defendant does not answer, he is to be cited to answer on pain of being taken pro confesso; (11) the defendant is to answer, and, if it is negative, this response constitutes the litis contestatio. Then, the formulary’s description of the process continued into the next stage: that for making proof of the claim.

There was nothing unusual about the elaboration of the opening stages to litigation found in this particular proctor’s account. He himself remains anonymous, and some other manuals might do just as well.!4 But, as a beginning, the very typicality of the account in this formulary recommends it. It included most of the steps that were recorded in the act books and it mentioned the questions

that became issues in litigation. Its arrangement of the steps has only to be supplemented here and there. This can be done by using other formularies and comparing its contents with the procedures recorded in the act books. They fill out the salient parts of the church’s procedural system.

The Citation

Virtually every English precedent book or procedural handbook began with discussion, or at least illustration, of the citation used to summon defendants to court. A short treatise now in the diocesan archives at Norwich was actually

devoted exclusively to them.!5 As it stated, the citation was regarded as the 13 ‘Taken from an English precedent book, now MLD, MS. Z.4.2.17, ff. 192-5.

14 e.g. a formulary seemingly in use in London, c.1590, divided the first part into seven different stages; CUL, MS. Dd.10.36, fo. 30; the same is true of that in BKRO, D/A/X/4 (1576-1631). 15 NNRO, DN/PCD 2/6 (seventeenth century).

318 CIVIL PROCEDURE AND THE LAW OF PROOF ‘foundation of the ordo turis.1® Exceptions were inevitably developed to the rule, but a basic tenet of the tus commune remained that, without legitimate citation, further proceedings involving a person’s rights or possessions were a nullity.!”? The communis opinio among the jurists held that citation’s necessity was recognized by both divine and natural law.18 God himself had established the principle by summoning Adam in the Garden of Eden. He knew Adam’s guilt, but God cited him to provide an example for us. The commentators discussed the citation’s importance at length; it was, for example, one of the elements that could not be omitted in summary procedure. Although the formal law called for a party who wished to begin a lawsuit first to approach the judge himself to take out a citation, in England at least, most citations were issued by the person who kept the judge’s seal.!9 That usually meant the registrar. The judge took no part in the process. An argument could be made that this usage violated the canon law, because the ordo specified that the first step in

litigation was to go before the judge, but the more sensible view was that the apparent deviation was lawful. The reason for requiring the judge to issue citations was to ensure that ‘an honest and upright man’ would supervise the process, and its substance could be obtained without involving the judge personally.?° In England, the registrars were probably better placed to fulfil this function. It was entirely typical of the mature ius commune to ‘look through’ formal requirements to their purpose.2! Here is a good example.

Something like this same sort of compromise between formal rule and the exigencies of practice obtained in the routine reduction of the three citations pre-

scribed by the academic law to the one peremptory citation that became the norm. Although the law required triple citation before action could be taken, unless good cause was shown,?? in practice peremptory citation became the rule. Good cause was presumed to exist.?3 Likewise, although the formal law seemed to 16 Durantis, Speculum tudiciale, lib. Il, pt 1, tit. De citatione, rubr. 17 Vantius, De nullitatibus processuum, tit. De nullitate ex defectu citationts, nos. 6-10. 18 See e.g. Sigismundo Scaccia, De iudictis causarum, lib. II, c. 8, no. 439: “[C]itatio requiritur de iure

divino et naturali...tamen pars potest illi renunciare’. 19 Compare Tancred, Ordo tudiciarius, 127, with ‘“Summarium processus, BL, Add. MS. 6254, fo. 2v;

the latter cited Cod. 9.3.3 for the formal law, and stated that the change had been made for ease of the parties. This was true. Some of the judges assigned to the consistory courts were quite given to absence. 20 See e.g. Panormitanus, Commentaria ad X 3.5.21, no. 3.

21 See K. W. Nort, “ProzeBzweck und ProzeBtypus: der kirchliche ProzeB des Mittelalters im Spannungsfeld zwischen objektiver Ordnung und subjektiven Interessen’ (1992) 78 ZRG, Kan. Abt.

183-209. 22 Gl. ord. ad X 2.8.1, s.v. peremptorium; Dig. 5.1.68. 23 See John Ayton, Constitutiones, 65, s.v. si reperire, taking note of the need to accelerate the pace of litigation and finding support in X 2.14.10. See also Tancred, Ordo iudiciarius, 132, stating the rule but noting, ‘hoc tamen generalis ecclesiae consuetudo contrarium habet, and “Summarium processus, BL, Add. MS. 6254, ff. 3v—4: ‘sed ex stilo omnium curiarum iam obtinuit ut loco trium citationum de iure requisitarum iudices unam mittant peremptoriam’.

THE OPENING STAGES 319 require that the place of appearance be specified in the citation, in some places it became the custom to require the person being cited to appear ‘wherever we shall be in our city or diocese’.24 As with the English Court of King’s Bench, which shared the same basic formula, the reality was that the place could be easily discovered. It was not, therefore, a true violation of the interests of the person cited. Whatever formal discrepancies existed, the substance of the law requiring a legitimate citation was not disregarded, either by the jurists or in English practice. Apparitors regularly attended sessions of the consistory courts to certify that they had cited any party who failed to appear.?5 The courts were willing to entertain objections that sentences against parties were invalid for want of proper citation, although this

was probably a more pressing concern in ex officio than in instance litigation.?° According to standard learning, the citation used to summon parties to court should contain at least the following elements: the name and style of the judge, the name of the plaintiff, the name of the defendant, the nature of the cause being brought (in general terms), and the time and place in which the defendant was to appear.?7 If made orally, as they could be under the law and as it was sensible to do in situations where the parties were illiterate, the citations were to conform to these standards. There was academic controversy about several of them—as for example, whether

it was always essential that the citation state the nature of the claim and, if it was necessary, with what particularity.28 An occasional English case raised the point in argument,?? and some formularies seem to have assumed that the causa litigandi should be included.3° However, Lyndwood noted that many courts did omit the cause, at least in ex officio matters.31 Some citations found in the records informed the defendant only that he would have to answer ‘upon those canonical matters to be propounded against him’? In effect, this common practice became its own justification. 24 See Precedent book (c.1430), BL, Harl. MS. 3378, fo. 9v; the compiler remarked, ‘hoc tamen consuetudo obtinet in Anglia quod archiepiscopus Cantuariensis ita citat’ 25 Jt was sometimes done in writing only; e.g. Magnus c. Burden (Archdnry Lincoln, 1536), LAO, Act book Cij/1, fo. 18: the proctor “exhibuit citationem cum certificatorio in dorso. 26 For the requirement, see e.g. Council of Lambeth, c. 14 (1281) in C. & S. IT, pt. 2, 909-10. 27 Taken from a seventeenth-century formulary, NNRO, DN/PCD 2/6. See Lyndwood, Provinciale, 82, s.v. die and loco, for a medieval treatment of some of the requirements. He discussed, inter alia, whether it was sufficient to name the city, or whether instead the place within the city had to be specified in citations. Some precedent books gave explicit instructions; e.g. Bodl., Rawl. MS. D.699, ff. 4ov—41 (temp. Eliz. I). 28 e.g, Scaccia, De iudiciis causarum, lib. I, c. 32, no. 14: “verum Doctores in hoc aliqualiter dissentiunt. 29 Arnsby c. Bayley (Peterborough 1638), NRO, Instance act book 52 s.d. 5 July; the proctor objected

that the defendant had been cited ‘nulla expressa causa in citatione’ Berisford c. Babington (Arches, 1599), Bodl., Tanner MS. 427, fo. 20. See also Registrum epistolarum fratris Johannis Peckham, archieptscopi Cantuariensis, ed. C. T. Martin (= 77:1 RS; 1882), 328, dealing with tuitorial appeals.

30 e.g, Bodl., Rawl. MS. c.503, fo. 1: “Continet citatio quo tempore et loco apud quem quo agente

et ob quam causam. 31 Lyndwood, Provinciale, 91, s.v. primaria. 32 P. & C. of the Hospitallers c. Carter et al. (York, 1402-3), BI, CP.F.7: “super sibi canonice proponenda’ (a tithe cause).

320 CIVIL PROCEDURE AND THE LAW OF PROOF Omission of the reason behind the citation may now seem abusive, but the question was not then wholly one-sided. On the one hand, it was admitted that people should have a fair chance to know what awaited them and to prepare for the litigation. Due process required guaranteeing that they would have that chance. On the other hand, reading out the nature of the claim in a party’s parish church might bring him into disrepute among his neighbours, or (which seemed worse to the canonists) create a scandal within the parish. Allowing a delay for the preparation of a response could be given after an initial appearance, and nothing of substance would be affected. It may be that determining the citation’s contents was better left for decision by court officials on a case-by-case basis. A possible

compromise was to allow for citation in private by the curate of the parish, as Lyndwood himself suggested should be done. Many more orders to cite than actual citations have survived in the ecclesiastical archives, and it is hard to prove a negative (i.e. that nothing was left out of the

latter), but most of what evidence has survived suggests compliance with the requirements of this aspect of the law in civil litigation.34 Objections involving the serving of citations were sometimes made in practice, but most were either that the party had not been cited at all, or else that the defendant could not reasonably be expected to comply (for instance the time appointed was too short, the place

assigned was too distant, or the defendant was absent in service to the king). Although the nature of the record evidence may conceal the reality, it appears that less argument over the form of citations took place in practice than the academic law might at first sight lead us to suppose. Different forms of citations were developed for different matters. For instance, citations used in matrimonial causes often contained an inhibition warning the

party not to contract a marriage de facto before (or during) the litigation. Marrying pendente lite might prejudice the outcome of a case in fact, if not in law, and issuance of an inhibition in these circumstances was supported by a decretal of Alexander III (X 4.16.1). Citations could also be issued generally, as against any

and all persons who had a legitimate interest in a matter to come before the courts. They were, for example, commonly used in testamentary causes in order to notify all creditors, debtors, and others who might have a claim to take under a will to appear before a court. In ordinary cases, if defendants could not be found to be cited, English usage allowed them to be cited viis et modis. The process meant citation by a notice 33. Lyndwood, Provinciale, 90-1, s.v. per rectores and non mandentur. 34 e.g the citation found inserted (apparently by chance) between pp. 450 and 451 of an act book from the diocese of Hereford (1524), HFRO, Act book I/s, contains all the elements called for in the academic literature. So did that from Ex officio c. Cheven, a cause heard in the court of the archdeacon of Leicester, in LAO (1489), Viv/2, fo. 28, and that from the Prerogative Court of Canterbury (1629) in HEHL, STT 50s.

THE OPENING STAGES 321 posted in a prominent place where a defendant lived, as at his house or the door of his parish church, requiring him to come before the court. If he did not appear, the law none the less treated him as having been legitimately cited. This happened frequently. Apparitors, having failed to find the individual, made a return to the court certifying that the party ‘could not be apprehended because he has been keeping out of the way (latitat)’35 In response, the judge decreed citation viis et modis, and if this citation failed to bring the defendant into court, he could be declared contumacious and excommunicated. Objections to this procedure are easy to formulate. Although the effects of proceeding in the absence of a party could be undone later, albeit at the cost of paying the fees involved, the procedure invited abuse. It was not unlawful under the canon law, however. An English legatine constitution of 1237 expressly allowed it, and a decretal of Gregory IX seemingly did so too.*° So far as the surviving records reveal, in practice, no objections were taken to the existence of citation viis et modis. It was in regular use. The Libel

The libel stated the plaintiff’s claim. It was a small sheet of paper or parchment, and (in the words of one of the rhymes that were among the staple resources of the ius commune) it was to contain the following information: Each plaintiff and defendant’s name, And eke the Judge who tries the same; The thing demanded and the right whereby, You urge to have it granted instantly.37

The law held it necessary only that these elements be stated in general terms, much as an English common law writ did, because the particularities would be added later in the positions and articles used to frame the specific issues involved. The form of the prayer for relief at the libel’s end varied according to the nature of the cause. In marriage causes, for example, it might ask that the defendant be

declared the legitimate spouse of the plaintiff and required to treat him or her with marital affection. More often in practice, however, it merely asked that the defendant be ‘canonically corrected’ and that justice be done on the plaintiff’s 35 e.g, Precedent book (c.1600), LJRO, B/C/20/3, fo. 102v: “N apprehendi non potuit quia latitavit et in presenti latitat’; Wedon c. Cobbe and Fraunceys (Ely, 1377), CUL, Act book EDR D/2/1, fo. 80: ‘non-

dum est citata nec potuit inveniri...eo quod latitavit et latitat’ The parallel with the writ of Latitat in Bills of Middlesex is suggestive. See Holdsworth, History, i. 220-2; Marjorie Blatcher, “Touching the

Writ of Latitat: An Act “Of No Great Moment”’ in Elizabethan Government and Society: Essays Presented to Sir John Neale, ed. S. T. Bindoff, J. Hurstfield, and C. H. Williams (1961), 188—212. 36 ¢, 26, C. & S. I, pt. 1, 256-7; X 2.14.10. 37 Taken from Conset, Practice, tit. A Discourse of the Libel (p. 404).

322 CIVIL PROCEDURE AND THE LAW OF PROOF behalf. Likewise, the defendant made no more than a general answer, usually a blank denial of what the libel contained and a statement that therefore the plaintiff’s prayer for relief should not be granted. Defendants might also assert a counter-claim, called a libellus reconventionalis (X 2.4.1), and these were known and used in English practice.38 Copies were to be given both to the judge and to the opposing party. The medieval canonists discussed the question of whether or not a libel was an indispensable part of a law suit, whether it was de substantia iudicit—a matter of

immediate importance, because, if the answer were no, then the libel could be omitted from summary process. Various views were held.3? On the one hand, it was ‘the foundation of the action’ and necessary to inform both the judge and the other party of the nature of the claim. On the other hand, if the substance were clear, the demands of time and expense might permit its tacit renunciation. In English practice, the written libel was sometimes omitted. Purely oral petitions were made in their stead. This usage happened with particular frequency in the debt litigation brought under the rubric of breach of faith to be discussed in Chapter 6. The choice seems often to have been left to the parties involved under the general supervision of the judge. In one other respect, the English ecclesiastical courts during the later Middle Ages made a change that became uniform practice. That was in the introduction of the ‘articulated libel’. Under the ordo iuris, the libel, positions, and articles were separate documents. Each had a different function, and they were introduced at different points in litigation. The positions contained the plaintiff’s claim, stated

in more detail than in the libel and separated into individual parts. Defendants were required to answer each position, so that those admitted could be taken as proved. The articles were the questions to be put to witnesses; the depositions of these witnesses given in response to the articles formed the normal means of proof. When looked at closely, it turned out that three documents did much the same thing. Defendants denied the libel in general terms, and their proctors answered each position with the legally ambiguous statement: Non credit ut ponitur. Little was gained, and delay and expense were incurred, because of a separation that, although sensible in theory, looked increasingly artificial. The articles too went over the same ground. 38 e.g. fifteenth-century precedent book, WTRO, D1/45/1, ff. 1690v—1691, called a ‘libellus reconven-

tionalis contra eundem libellum’ The plaintiff asked for a divorce by reason of the minority of the plaintiff; the defendant sought restitution of conjugal rights. A cause from the court records is Wagge c. Dallie (Archdnry Nottingham, 1634), NUL, Act book AN/A 43, s.d. 20 Nov., in which the plaintiff’s proctor ‘allegavit libellum per viam reconventionis in hac causa datum esse de iure nullum’ 39 Gl. ord. ad X 2.3.1, s.v. libellum reclamationis and DD. ad id; Durantis, Speculum iudiciale, lib. IV, pt. 1, tit. De lib. concept. § 5; Vantius, De nullitatibus processuum, tit. De nullitate ex defectu processus, nos. 17—21.

THE OPENING STAGES 323 The response to this duplication was the ‘articulated libel’ It combined all three. Articulated libels are recognizable in the records because they contain the several points to be proved; each beginning: Item ponit et intendit probare.*® As a later civilian put it: “Those that are called articles to witnesses are called positions to the

party principal.4! Their combination became standard in ecclesiastical court practice from the fifteenth century forwards.

Exceptions

The law of exceptions developed in the ius commune presented students with a formidable mass of learning and complexity. It began with the Roman law, in which the law of exceptions constituted an already complex subject. A modern reference work lists forty-four separate exceptiones available to defendants under Roman law.42 From them, the medieval jurists attempted to fashion a systematic and sensible law, but it cannot be said that they altogether succeeded (or could have succeeded). About the only generalization that holds is that exceptions consisted of various means available to defendants of preventing further proceedings by objecting to one or another aspect of the plaintiff’s case. Several basic categories of exceptions were known to, and used in, the English ecclesiastical courts. The jurists began with a division between “peremptory, ‘dilatory, and ‘mixed’ exceptions. The first of these referred to those exceptions that excluded the plaintiff’s action altogether—res judicata or prior agreement not to sue are examples.43 Such an exception could be made at any time before sentence. ‘Dilatory’ exceptions, by contrast, were those that prevented further process of an action, but did not bar it altogether—objections to the court’s jurisdiction or the legal capacity of the plaintiff are examples. They had to be made before the litis contestatio or they were lost (unless, for most, they had ‘newly come to the atten-

tion of the claimant’). The third was necessary because the first two categories kept spilling over the borders assigned to them—the exception that the plaintiff was under a sentence of excommunication is an example.*4 It was impossible to assign it definitively to one or the other. Different forms of excommunication existed and not all of them could be treated alike. It could not be a permanent bar. Excommunication could always be lifted, restoring the person to full juridical 40 An example is Topcliff c. Greenhode (York, 1381) in Select Cases on Defamation to 1600 (= 101 Selden Soc.; 1985), 4-5; cf. the earlier Gray c. Archdeacon of Buckingham (Canterbury, 1290) in id. 3-4. One fifteenth-century formulary placed both kinds of libels side by side: WTRO, D1/45/1, ff. 1618-20.

41 Precedent book (c.1600), BL, Harl. MS. 5105, fo. 70. See also the comment in a treatment of ecclesiastical procedure in BERO (c.1660), D/ED/O42, p. 16: “Libellus apud nos hodie positiones et articulos complectit’ 42 Adolf Berger, Encyclopedic Dictionary of Roman Law (1953), 458-61. 43 See, e.g., Hostiensis, Summa aurea, lib. Il, tit. De exceptionibus, no. 2, which gives serviceable

coverage of the subject. 44 ibid., no. 3, for a lengthy discussion.

324 CIVIL PROCEDURE AND THE LAW OF PROOF capacity. On this account, it could not be a peremptory exception. However, the canonists did not consider it right to allow their courts to be used by excommunicates simply because a defendant had not raised the exception in time. So,

they concluded, the exception could be made at any point in litigation, even though it was not a permanent disqualification. On this account, pleas that one’s opponent was excommunicate could not be classed among the dilatory exceptions. Thus the attempt at simple division into two categories was defeated. Dilatory exceptions were themselves divided into three different classes: those against the judge or court, those against the person of the plaintiff, and those against the libel’s sufficiency.45 Recusal of the judge because he had an interest in the outcome of a cause is an example of the first; objection that the plaintiff had

no standing to sue because he was a minor is an example of the second; and refusal to answer a claim that was so ineptly framed it did not state a proper cause of action is an example of the third. Commentators spent pages in doubting and

determining into which category particular exceptions should be placed. Defendants sought to make use of them in practice. If the law on the subject now seems clouded by slightly artificial distinctions, this murkiness was no impediment to its application in the courts. Putting aside any further exploration of the academic law on this subject, we may draw three conclusions about the place of exceptions in the practice of the English ecclesiastical courts. First, the system found in the academic law was known and used. Formal exceptions were included in procedural manuals and formularies used by the consistory courts, and the court records themselves give evidence that they were raised in litigation. Res judicata, praeventio, recusatio 1udicis, and declinatio fori all appear in the pages of many act books, being raised by defendants to prevent the continuation of a suit brought against them.*° Second, most of the complexities found in the academic literature seem not to have caused great difficulty in practice. Many of those found in the academic law, the exceptio senatusconsulti Trebelliani or the exceptio non numeratae pecuniae, for example, do not appear to have been used at all in practice. They must have been obsolete.

Their absence does not mean that the law they contained was necessarily ignored. Particularly with peremptory exceptions, legal points could have been raised by way of a substantive defence after the litis contestatio. This happened, for example, with the exceptio metus in matrimonial litigation. If a defendant in 45 See e.g. Scaccia, De iudictis causarum, lib. I, c. 101, no. 6. 46 e.g, Ex officio c. Clews and ux. (Lichfield, 1528), LJRO, Act book B/C/2/3: ‘causa inter eas decisa et sentencia lata fuit circa xviii annos elapsos’; Ex officio c. Collins (Bath and Wells, 1605), SRO, Act book

D/D/Ca 141 s.d. 12 June: “‘allegavit se fuisse et esse praeventam in curia consistorii archidiaconali Wellen’; Recusal of M. Henry de Stanton (1270s) in Select Canterbury Cases, introd., 42; Drinkewatere c. Robert de Segre (Canterbury/London, 1304), LPL, Act book MS. 344, fo. 25: ‘proposita per partem rectoris prefati quadam exceptione fori declinatoria.

THE OPENING STAGES 325 a cause brought to establish the existence of a marriage contract claimed it was invalid because it had been contracted under compulsion, it was usual to present this claim as part of denying the contract’s validity, rather than as a formal exceptio.

Of this practice, a common lawyer might have said the exceptio was ‘subsumed under the general issue. Something like that process appears to have happened with canonical procedure. Third, little real change occurred over time, at least the time covered by this volume. There was some development, but if one picks up the treatment of exception in, say, Conset’s seventeenth-century manual on procedure in the English courts, one finds a treatment of the subject unchanged in its basics from a work of the thirteenth century.*” Perhaps the later discussion was a little simpler, but it was the same law without doubt.

The Litis contestatio Few aspects of the law of canonical procedure better illustrate the mixture of Roman law and autonomous development that characterized the ius commune than does the litis contestatio.48 Under the classical Roman law, the litis contestatio

was the end of the first half of a two-stage process; it was the last act in ture. It occurred after the praetor had established the formula to be submitted to the iudex, who would then decide the merits of the case in a separate proceeding.

According to the predominant view among scholars of Roman law, it was contractual in nature. That is, submitting a quarrel to litigation was a matter of agreement between the parties, and the litis contestatio was the moment for stating the terms of the agreement. By it, the defendant answered the complaint and, together with the plaintiff, agreed to submit their dispute to a particular iudex in accordance with the praetor’s decree. The legal situation in the medieval ius commune was quite different. The parties

did not have a free choice of judges before whom they would appear; indeed, defendants rarely had any choice at all about submitting to a court’s jurisdiction. They were proceedings in invitum. There was no praetor. Except as a matter of form, the two-stage nature of the process had also disappeared. Everything took place before the same court. Despite the changes, the litis contestatio was not dis-

carded in the medieval ordo. A ruling placed in the Decretals by Gregory IX affirmed its importance (X 2.5.1), and a separate title in the same work reaffirmed the same point (X 2.6.1-5). New applications were found for the institution, so that it retained something akin to the prominence it had held in the classical law. 47 Conset, Practice, pt. I, c. 7. 48 The subject of the academic law is dealt with in more detail in R. H. Helmholz, “The itis contestatio: Its Survival in the Medieval ius commune and Beyond’ in Lex et Romanitas: Essays for Alan Watson, ed. Michael Hoeflich (2000), 73-89.

326 CIVIL PROCEDURE AND THE LAW OF PROOF The litis contestatio became the event before which all matters preliminary to proof took place. The example of dilatory exceptions, which had to be presented before the [itis contestatio, has just been mentioned. The jurists held the same rule applied to introducing a libellus reconventionalis.*9 Practice in the English ecclesiastical courts followed the academic law. The civillans were taught that the /itis contestatio was ‘the corner stone and the foundation’ of their proceedings.®° Its centrality was stressed by the formal answers they made to the plaintiff's libel. The same words of the litis contestatio given in the works of the commentators were used in practice: ‘I assert that the matters as they are narrated in the libel are not true and therefore the matters prayed for should not be done’5! There was even litigation about what form a defendant's answer had to take to constitute a valid litis contestatio, a matter much discussed in the academic literature.52 And some of this was more than form. Whether or not a cause could be continued after

the death of one of the parties depended upon whether or not the itis contestatio had occurred before that event.>3 So did an attempt to amend the plaintiff’s libel.54

Two additional points ought to be made. The first is that a seemingly valid objection might have been raised against the practice described above of using ‘articulated libels’ on the basis of the litis contestatio. The papal decretal that had

affirmed the centrality of this institution under the canon law had invalidated a judicial sentence because the judge in the cause had admitted the introduction of the plaintiff’s positions without its having taken place: “Because we do not find there has been a litis contestatio,; Gregory IX had ruled, ‘we declare the proceedings void’ (X 2.5.1). Whatever its intrinsic merits, the English use of the ‘articulated libel’ seemed to do exactly what the decretal condemned. It combined the libel,

positions, and articles into one document and allowed it (the combined document) to be introduced at the start of litigation. It preceded the litis contestatio. The English civilians must have been alert to this possible objection, however, because the language they used in practice took care to meet it, at least in a formal sense. After the litis contestatio had taken place, proctors routinely made a formal statement that they were ‘repeating the libel with the force of positions’.*5 49 See GI. ord. ad X 2.4.1, s.v. respondere and DD. ad id. 50 “Summarium processus’ (early seventeenth century), BL, Add. MS. 6254, fo. 12: “tanquam lapis

angularis et fundamentum iudicii quo deficiente omnia ruunt. 51 Rede c. Clench (Ely, 1375), CUL, Act book EDR D/2/1, fo. 22v: ‘[N]arrata prout narrantur vera non esse et ideo petita prout pretuntur fieri non debere’. See also Durantis, Speculum iudiciale, lib. II, pt. 2, tit. De litis contestatione § 2; cf. also Select Canterbury Cases, introd., 78. 52 e.g. Whitehalfe c. Hille (York, 1534), BI, Act book Cons.AB.14, fo. 33: ‘[D]ominus auditor decrevit dictam materiam non sufficere ad litis contestationem: 53 Hostiensis, Summa aurea, lib. II, tit. De litis contest., no. 5. 54 Hacker c. Hacker (Archdnry Wells, 1630), SRO, Act book D/D/Ca 277A, s.d. 12 May: “Litemque fuisse

et esse contestatam eoque pretextu libellum predictum non fuisse nec esse de iure mutare aut emendare’. 55 e.g, LJRO, Act book B/C/1/1, fo. 36v (1464): “Repetebat libellum in vim positionum.

THE STAGE FOR PROOF 327 They did not actually introduce a new document; but they said the same document introduced previously should stand for a new one. It could, therefore, be said that they were introducing the positions in their proper place in the ordo. The inclusion of the positions in the libel might be considered to have been merely coincidental.

The second point relates to the problem caused by the continuation of the Roman law rule that the /itis contestatio was a voluntary act on the part of defendants. The canonists did not feel free to discard this feature entirely, despite its dissonance with the realities of medieval litigation. According to Decretal law, no judge was to proceed to receive witnesses or definitive sentence until after the litis contestatio (X 2.6.1). The problem was obvious: What if a man refused to enter the judicial lists at all, declining to make the Iitis contestatio? Under the Roman law,

he could not be forced to take the step, and the tactic might appear to provide him with a licence for ignoring ecclesiastical jurisdiction. Retaining the civilian institution might thus impede legitimate goals of the canon law. This possibility was never eliminated altogether, but its effects were minimized in everyday practice. First, the ius commune held that in some litigation the Iitis contestatio could be dispensed with; matrimonial causes and disputed elections being the best examples (X 2.6.1 and Sext 2.7.1). In them, the urgency of resolving a question of immediate import was held to outweigh the need for strict observance of the ordo. Second, the requirements for making a valid litis contestatio were relaxed. There was no need to use the word. An ambiguous answer, perhaps even silence in the face of the plaintiff’s statement of claim, might suffice.>® Third, the person who refused to make the l/itis contestatio might be declared contuma-

cious; the refusal was itself considered an act of contumacy (X 2.6.3). Under some circumstances, he could be taken pro confesso (Sext 2.9.2); 1f so, he could be excommunicated at once. Excommunication was the strongest sanction available to the canon law in any event, so that the result of a defendant’s refusal to make

the litis contestatio turned out to be little different in personal litigation from the result of refusing to obey a sentence issued at the close of ordinary litigation.

THE STAGE FOR PROOF After the /itis contestatio had been made in the negative, the plaintiff had to meet the burden of proof. The Marsh’s Library formulary, mentioned above in connection with the first of three procedural stages, had less to say about this one than the first, and this lesser emphasis was a feature of many similar manuals. They spoke of the assignment of “terms probatory’ in general and of the examination of witnesses and the publication of their depositions in particular, but they outlined 56 See e.g. Panormitanus, Commentaria ad X 2.6.1, nos. 15-28.

328 CIVIL PROCEDURE AND THE LAW OF PROOF fewer separate steps. They were shorter. According to the ordo, three terms should

be set for the production of witnesses, but it lay within the power of judges to abbreviate them.5” The compilers of the English books of practice regularly took note that implementation of the stage for proof depended in some measure upon judicial discretion, and perhaps this was one source of their comparative silence. We also must not neglect the effect of decisions taken by the parties and the influence of the lawyers in shaping this stage of proceedings. Many suits were settled by compromise before the litis contestatio. In fact, it seems likely that most were; at least they often disappeared from the pages of the act books. Of course, the records do not always tell their readers what accounted for the disappearance of a cause from their pages, but settlement or abandonment are the most probable reasons. Nor should one ignore the possibility of arbitration as an alternative to proof and sentence. The canon law endorsed and regulated the use of arbitra-

tion in place of full trials (X 1.43.1-14), and it was used in English practice, although rarely can the party at whose initiative it was chosen be discovered from the formal record.58 Probably it depended upon agreement. There were thus good reasons for a proctor compiling a procedural manual to have avoided a detailed description of the middle part of litigation. Too much depended upon individual circumstance, and the more vital question was the evaluation of evidence. In litigation that went ahead to the stage of proof, the starting-point was that the party who asserted a fact had to prove it.59 The maxim was recognized and applied in the English ecclesiastical courts. There were, however, several ways the burden of proof could be met. Among them were confession by the party, presumptions of law, physical and written evidence, oaths of the parties, inquests by impartial sworn men, and the depositions of witnesses produced by the parties. The last of these was by far the most common in English practice. Proof by notoriety, although it was certainly known and did play a part in ex officio proceedings, seems to have played a distinctly minor role in instance litigation. It was commonly alleged that fact X or fact Y was so well known it could not be denied, but reliance on notoriety for most purposes of proof in disputed matters was rare. It did relieve parties of the burden of proving what no one doubted—that there was a cathedral church of St Paul in London for example—but most notoriety was treated, at best, as an adminiculum of proof in establishing contested matters of fact in instance cases.©° 57 Durantis, Speculum tudiciale, lib. I, pt. 4, tit. De teste § 3, no. 7. 58 e.g, Sorysby c. Moyses (Salisbury, 1477), WTRO, Subdean’s Act book D4/3/1, fo. 6: “et pro bono

pacis et concordie compromiserunt in arbitros, viz. [naming the arbitrators and stating the terms]’. 59 Dig. 22.3.2. For a general guide to the treatment of proof in the ius commune, see Jean-Philippe Lévy, La Hiérarchie des preuves dans le droit savant du Moyen-dge (1939). 60 Ayliffe, Parergon, tit. Of proof (p. 447). English commentators often left it out of their discussions of the different forms of proof; see e.g. Lyndwood, Provinciale, 304 s.v. probationes canonicas, Robert Michell’s formulary, DRO, CC 181c¢, pp. 18-20.

THE STAGE FOR PROOF 329 More attention was paid to, and more difficulties surrounded, the other forms of proof. A short treatment of each of the other alternatives to witness proof is useful for understanding of what happened in this middle section of the canonical ‘trial’. Confessions Particularly for anyone trained as a common lawyer, the law of confessions makes a good introduction to the subject of proof in the ius commune. It well illustrates a fundamental difference between the two systems. Whereas in the common law courts during the period covered by this volume, admissions against interest made by the parties could be put before judges and juries for whatever probative effect

they might have, this relatively relaxed attitude was not present in the ius commune.®}

In the ius commune, the important question was always whether the plaintiff had made sufficient proof to justify a sentence in his favour. The judge totted up the proofs that had been presented. He then had to weigh them. Although judges exercised a measure of discretion in doing so, their task was set out for them. It was to determine whether ‘full proof’ or its equivalent had been made. Many ways of satisfying this standard existed, however, and a confession made by one of the

parties was one of them. The legal status of confessions was nevertheless not without legal difficulty. On the one hand, confessions were considered the most reliable form of proof.®2 They themselves constituted ‘full proof’ Defendants in civil litigation were required to answer the plaintiff’s positions—personally rather than by proctor if the other party requested—and where they answered affirmatively, matters of fact could normally be treated as established. On the other hand, this endorsement of confessions was always qualified under the ius commune. Not all confessions could be treated alike. Indeed, some confessions were to be rejected as proof, as, for example, a confession that might promote the party’s own interests. The subject was complicated by the habit among the jurists, one encouraged

by the texts, of discussing questions of proof according to the subject-matter being discussed. For instance, confession of a debt owed by a person was treated under a different heading than confession of a person’s age. They would not have the identical probatory effect.

Some basic distinctions can nevertheless be discerned. First, extra-judicial confessions were given less weight than those made in iudicio, but they were not 61 J. H. Wigmore, Treatise on the System of Evidence in Trials at Common Law S8§ 817-20 (1904), 921-7.

62 e.g, Mascardus, De probationibus, lib. II, quaest. 673, no. 1: “Cum confessio partis sit optima probatio’ See also Cod. 7.59.1. In the context of inquisitorial procedure, see Jacques Chiffoleau, “Sur la pratique et la conjoncture de l’aveu judiciare en France du XIIe au XVe siécle’ in L’Aveu: Antiquité et Moyen-Age (1986), 341-80.

330 CIVIL PROCEDURE AND THE LAW OF PROOF denied some weight. In the English courts, the latter became particularly relevant in marriage causes. It often happened that one of the parties would have made a public statement that might be counted as confessing the contract of marriage

(or close), and the question was always what credit should be assigned to it. Second, where the rights of third parties intervened, the status of a confession, judicial or extra-judicial, counted for less. The best example under the canon law was the confession made by a cleric that had the effect of harming his church, say by confessing to having exchanged its goods for something of lesser value.® Third, confessions were subject to judicial scrutiny for possible infirmities. A confession might be given without legitimate causa, out of fear of violence, or in sim-

ple error (X 2.18.3). It was on that account to be rejected as legitimate proof. Whether a confession could be accepted in part and rejected in part was a troublesome question, one much discussed by the jurists.°* One cannot read through much of the literature on the subject without encountering a statement to the effect that sound judicial discretion must always be exercised in evaluating confessions. Without it, judges would have tied themselves in knots. Court records from the English consistory courts do not permit much to be said about confessions, save that they were made and treated as a form of proof in instance litigation. It appears that some at least of the subtle legal questions discussed by the commentators also arose in practice. In one of the late-sixteenth-century books of ecclesiastical reports, for example, cases were included involving the proper status to be accorded to a ‘qualified confession-—that is a confession made in ambiguous words and in part seemingly to excuse the party’s own behaviour. Other entries considered the effect of an extra-judicial confession to a marriage after the party had solemnized a second marriage, and the value to be given to a confession in a tithe cause where the interests of the church might intervene.® Corroboration of the approach is given by the full presentation of a case involving extrajudicial confessions in marriage cases that was put together by a late-sixteenth-century English civilian that is now in the Cambridge University Library.® It raised many of the same disputed points and now confirms what is suggested by other books of practice: this complex body of law was an essential part of the law of proof in the courts.

Presumptions The Gregorian Decretals contained a separate title dealing with presumptions (X 2.23.1-16). So did the Digest (Dig. 22.3.1-29). Lyndwood himself inserted a title 63 Gl. ord. ad Sext 2.10.2, s.v. conventuum.

64 See Scaccia, De tudiciis causarum, lib. II, c. 11, nos. 88-103, where it was described as a matter

‘in quo Doctores valde pugnant’. 65 BI, Prec. Bk u1, ff. 7, 7v, 9. 66 CUL, MS. Oo.6.92, ff. 100—-101V.

THE STAGE FOR PROOF 331 on the subject in the Provinciale. Although the jurists held that presumptions were

not, strictly speaking, a form of proof, but rather a substitute for proof, it was beyond doubt that they held a key place in the overall law of proof within the ius commune. It is also beyond doubt that presumptions figured regularly in English litigation as a means of deciding contested cases. Their pedigree was good. The second canon on the subject in the Decretals made of the biblical Judgment of Solomon (I Kings 3: 16-28) an endorsement of the value of presumptions in litigation. Solomon could only have identified the

true mother, the reasoning ran, by applying a legal presumption: no mother would willingly consent to the killing of her child. From this attractive, if modest, start grew a law of amplitude, complexity, and subtlety. The standard treatise on the subject by Jacobus Menochius (d. 1607) fills two large double-folio volumes.®7 The activity of the spiritual courts could not have gone ahead without the law of presumptions. Procedural notebooks compiled by the English civilians routinely contained consideration of the subject,®* and there was good reason for its inclusion. The common allegation in pleading that the “common voice and fame’ holds that X is true was an effort on the part of proctors to invoke a presumption

that what was widely believed by men of credit was likely to be true. It was endorsed in the Decretals (X 2.23.10). Indeed, matters that came before the English

courts often required the use of legal presumptions, precisely because they contained matters not subject to satisfactory proof: the motives of speakers of defamatory remarks, the fact of sexual intercourse, or the death of a long absent spouse. In such cases, there was little alternative. Some of the presumptions used in practice were treated as themselves sufficient to ground a sentence. Called ‘violent presumptions’ in the parlance of the civilians, that a couple lying naked together in bed had had sexual relations together was regarded as one of these. It was stronger if raised in civil litigation than in criminal and even stronger where one of the parties confessed it. That decision was 1n accord with the decretal law (X 2.23.12), and was so applied in English practice.©? The nature of different kinds of presumptions could be a matter of dispute.

For example, whether a parson who had exchanged a rich benefice for a poorer 67 De praesumptionibus, coniecturis, signis, et indictis... Commentaria (Venice, 1587).

68 e.g, Robert Michell’s precedent book (c.1600), DRO, CC 181c, p. 19, beginning, “Multe sunt presumptionum species. 69 e.g. Forest c. Forest (c.1600), Bodl., Tanner MS. 427, fo. 14v, a divorce a mensa et thoro for adultery.

The use of the presumption in ex officio matters was more controversial, but in Ex officio c. Pernelmore

and Cook (Canterbury, 1406), CCAL, Act book X.8.1, fo. 16, the presumption seems to have been applied; the man admitted lying with her but denied sexual relations, and he was assigned public penance immediately. However, in Ex officio c. Dowse (Ely, 1592), CUL, Act book EDR D/2/18, fo. 234, a presumption based on similar facts was rejected in the face of ‘character’ evidence. The subject was

debated at length and with citation of authorities, in William Trumbell’s Commonplace Book (seventeenth century), BL, Add. MS. 72544A, fo. 11.

332 CIVIL PROCEDURE AND THE LAW OF PROOF one might be presumed to have done so for money. But, was this presumption of simony a ‘violent’ one? Or was it only a lesser kind? This question was debated by the learned, and it arose in at least one English cause.7°

The common kind of presumption found in the literature of the English civilians was the merely ‘probable’ or ‘light’ presumption. Even if it were light, a presumption could determine which party would bear the burden of proof and thus which party would prevail in litigation. A presumption in defamation causes that a person had spoken maliciously because of the tendency of his words to cause harm, for example, could be rebutted if he could show that he had spoken

with a laudable purpose or that the words had simply been part of a joke. However, the speaker had himself to rebut the presumption by affirmative proof. Lyndwood discussed the force of this presumption—that words were presumed to have been spoken with the intent attributed to them in common speech—in the

context of the provincial constitution upon which the early English law of defamation was founded. His conclusions match what emerges from examination of medieval court practice.7! One finds presumptions similarly applied in the case reports of the sixteenth

and seventeenth centuries. A person who received the fruits of a field was presumed to owe tithes on them. If he denied the obligation or pleaded prior payment, the burden of proving the excusing facts fell upon him.”? Another report recorded that the death of a party to whom money had been left in a will could be

presumed from long absence, but it also noted that evidence would always be received to rebut the presumption.’? Similarly, one English court decided that a legacy left to a creditor in a will did not extinguish the existing debt owed to the

creditor unless the executor could point to positive indications it had been so intended; his reason was that the law contained no presumption of animus compensandi on the part of testators.”4

Written Evidence and Documents From the giving of a libel to the making of an appeal, the ecclesiastical courts used writings for the essential procedural steps. All the pleadings were written. Even the oral depositions of witnesses were reduced to written form before being 70 Denton’s Case (Durham, c.1600), Library of D. & C., Durham, Hunter MS. 70, fo. 100. 71 Lyndwood, Provinciale, 345, s.v. malitiose. 72 Anon. (c.1600), BI, Prec. Bk 11, fo. 7, citing Panormitanus, Commentaria ad X 3.7.6, no. 7. 73, Chatfield’s Case (1633), SKRO, E/14/11/7, no. 51. Another example is Cockson c. Maude (Durham, c.1600), Library of D. & C., Durham, Hunter MS. 70, ff. 9-10v, used in a cause where a parson had been

long absent from his benefice. 74 Anon. (c.1610), GL, MS. 11448, fo. 43, citing Mantica, De Coniecturis ultimarum voluntatum, lib. X, tit. 10, no. 1.

THE STAGE FOR PROOF 333 submitted to the judge. In a way, this was unexpected, because such a large part of litigation heard by the courts involved words, and the evidence used to prove facts in cases brought before the courts was almost always oral. The English ecclesiast-

ical lawyers reflected this fact in their discussion of proof. For example, the Decretal’s title, De fide instrumentorum (X 2.22.1-16), was one of the few that Lyndwood omitted from his Provinciale. Otherwise, he followed the order of the Gregorian Decretals closely. Similarly, Francis Clerke’s later treatment of docu-

mentary proof dealt mainly with establishing the validity of instruments of appeal, not with written evidence considered in the first instance.75

This is not to say that documents never came before the courts as forms of proof—only that it was rarer than the written nature of the procedure and the formal canon law might initially suggest. Writings could be, and sometimes were, used to prove many facts of quite different sorts. Several areas stand out. The law of elections to monastic and episcopal offices required the submission of a formal document detailing the procedural steps that had been taken.”© Disputes over

benefices called for production of letters proving that a claimant had been ordained and duly presented.”” Papal privileges and royal grants were sometimes introduced.’78 Most suits for dilapidations—allowing a parish church or vicarage to fall into disrepair—necessitated a written document drawn up by experts called in to appraise the extent of the damage.”? After they came into existence in the 1530S, parish registers were introduced as evidence of the information in them.®° Private letters came before the courts, such as a letter from a marriage case which a man had signed as ‘Your loving Dubnash’ (an anagram for “husband’). It was used to show his recognition of having entered into a union with the plaintiff.®!

On occasion, records from secular tribunals were put before the courts of the church.®2 Ecclesiastical lawyers were familiar with the legal rules discriminating 75 Praxis, tits. 287-90.

76 e.g. Election of the abbot of Kenilworth, precedent book (fifteenth century), WTRO, D1/45/1,

ff. 1727-1729. 77 e.g. Palasour c. Pawmar (York, 1519), BI, Act book D/C.AB.2, fo. 230. 78 e.g. Vicar of Lazonby c. Farmers of Plumpton and Prior of Carlisle (Carlisle and York, 1503), BI, Act

book Cons.AB.5, fo. 31, admitting “quoddam instrumentum viz. literas ut apparuit domini Regis Anglie Edwardi...ac eciam unam bullam apostolicam Lucii pape terci1’. 79 e.g. Precedent Book (¢.1575), NNRO, PCD/2/3, fo. 19. 80 e.g, Griffith c. Shelwyke (Lichfield, 1597), LJRO, Act book B/C/2/32, s.d. 8 Mar., in which one of the

parties asked that the register be “scrutinized. According to one civilian, a register did not make ‘full proof’ or even ‘half proof’ unless two witnesses testified to the truth of its contents. See Bodl., MS. Eng.Misc.f.473, p. 133 Rebecca Probert, “The Judicial Interpretation of Lord Hardwicke’s Act of 1753’ (2002) 23 JLH 129-51, at 132-3.

81 Cleasbye c. Collingwood (Durham, 1609), DUL, DDR/XVIII/3, fo. 231. 82 Harley c. ap Powell (Hereford, 1510), HFRO, Act book I/10 s.d. 22 Sept.: “quoddam instrumentum transumptum ex archivis cancelarie’; Wethersbe c. Kent (Worcester, 1531), WORO, Act book 794.011, BA 2513/1(1), p. 40: ‘rotulos curie de Oxenton in partem probationis’; Braine c. Chapleine (Ely, 1601), CUL, Act book EDR D/2/22, fo. 16: introduction of depositions from the Court of Wards.

334 CIVIL PROCEDURE AND THE LAW OF PROOF between different types of documents—the distinction between the probative force of public as against private documents, for example. The distinction did become the subject of contention in litigation.8? It was primarily in testamentary litigation that the spiritual courts came into contact with documents introduced for purposes of proof. Last wills and testaments were of course the most often mentioned. Wills that were written by some-

one other than the testator, as most were, were not themselves dispositive instruments under the law, except as they accurately stated the last wishes of a decedent. However, they could be presumed to do so, and it was a frequent practice to require persons thought likely to possess a decedent’s will to produce a last will and testament before one of the ecclesiastical courts.84 The courts made avail-

able legal process to compel discovery of documents, and the possibility seems to have been exploited principally in testamentary litigation.®> Other parts of testamentary litigation also called for the production of documents: inventories of the assets of decedents, written evidence of some debts owed by decedents, and accounts of personal representatives. Deeds of gift inter vivos allegedly made prior to death were also introduced as defences to actions brought to executors to collect property that had belonged to decedents.8® Testamentary

jurisdiction was a vital part of the competence of the courts of the church. However, with this exception, it remains true that it was the import of the spoken word, not the probative force of documents, that the judges had to weigh in most litigation that came before the English ecclesiastical courts.

Oaths of the Parties Despite biblical injunctions that seemed to forbid the taking of oaths (e.g. Matt. 5: 34), oaths became fixtures in the ius commune. In the canon law, they became a source of contractual obligation, a basis for disciplining lawyers, and a protection against deceit by parties and witnesses. Oaths were relied upon, despite the evident 83 Lacie c. Lacie (Bath and Wells, 1623), SRO, Act book D/D/Ca 230, ff. 226v—227, dealing with the

lesser probative force accorded a privata scriptura. See also Jones c. Bennet (London, 1601), Bod.L., Tanner MS. 427, fo. 196; Anon. (London, c.1610), GL, MS. 114.48, fo. 84v; Skelton c. Bowlie (Carlisle, 1632), CBRO, Act book DRC 3/3, p. 22.

84 e.¢, Ex officio c. Rocke (Archdnry Colchester, 1540), ERO, Act book D/ACA 1, fo. 41: “Willelmus Rocke habet ad exhibendum testamentum Thome Shillinge’. 85 e.g. Precedent book (seventeenth century), NUL, MS. AN/P 282, fo. 61, in which the plaintiff’s claim was given, “Ego allego quedam instrumenta mihi in hac causa esse necessaria quae penes [N] sunt. An example from the court records: Gulle c. Asheton (Lichfield, 1468), LJRO, Act book B/C/1/1, fo. 192: ‘In causa subtractionis certarum cartarum sive munimentorum. 86 e.g, Ellett c. Ellett (Exeter, 1580), DRO, Act book Chanter MS. 782, fo. 93, in which the defendant admitted possession of goods worth £6, but alleged that she possessed them “‘tanquam propria sua bona... vigore cuiusdam donationis anglice a deed of gift. The deed was inspected and the defence allowed.

THE STAGE FOR PROOF 335 dangers of perjury they entailed, because the canonists concluded that without them it would be impossible to discover the truth (X 2.19.2). The English ecclesiastical courts followed that lead. The difficulties of making ‘full proof’ under the ius commune led to the use of what were called ‘suppletory’ and ‘decisory’ oaths. Where the party who bore the burden of proof failed to meet it, there might none the less be sufficient evidence to constitute ‘half proof’ (semiplena probatio). Or a strong presumption might stand in the party’s favour. If the litigant had gone halfway or more in proving his case, it might seem mistaken to turn him away entirely, particularly given the private nature of so many of the matters that came before the courts and the difficulties of proof that naturally ensued. Suppose, for example, someone had only one unimpeachable witness. The law required two. Taking a formal oath to supplement the one witness

might provide a solution, at least if the party’s case was otherwise probable.8” Similarly, if a man claiming prescriptive title to property had proved most of the necessary elements, but could not demonstrate the good faith required under the canon law, he too might make up the deficiency by taking an oath to that effect (C. 16 q. 3 c. 7). States of mind are not amenable to strict proof in many situations. The supplementary oath suitable for these circumstances had an endorsement in Roman law (Cod. 4.1.3). It was accepted by the canon law (X 2.24.36).

Strictly speaking, decisory oaths must be distinguished both from suppletory oaths and also from canonical purgation. Decisory oaths were substitutes for proof, not additions to it. In this, decisory oaths more closely resembled compurgation. However, they were used in civil litigation, whereas compurgation was part of criminal procedure. Compurgation also took a different form and lasted longer. It required what English law called oath-helpers, was regulated by a different title of the Decretals, and remained in frequent use up to the very end of the period covered by this volume. Decisory oaths, by contrast, played a more limited role, and that only in civil cases. Still, they did have a role. They were employed most often in cases where at least one of the parties requested their use. It always lay within the

judge’s discretion to refuse or accede to these requests. A judge could resort to decisory oaths on his own motion, but more often than not the initiative seems to have come from one of the parties. Thus, in the act books one finds causes in which

one party asked that the oath be assigned to the other party. For instance, in a breach of faith cause from 1454, the plaintiff ‘prayed that the defendant should be brought before the court, asking that an oath be tendered to him’.®8 If the defendant 87 e.g. Milner’s Case (Durham, c.1600), Library of D. & C., Durham, Hunter MS. 70, fo. 42, a testa-

mentary dispute in which the proponent of the will had one witness to its execution and another to the testator’s confession. It was decided that, ‘iuramentum deferri potest’ 88 Forster c. Hills (Canterbury, 1454), CCAL, Act book Y.1.5, fo. 29v: ‘Pars actrix petit quod pars rea

veniret ad iudicium et vult deferre sibi iuramentum’

336 CIVIL PROCEDURE AND THE LAW OF PROOF came and took the oath, the plaintiff agreed to forgo his claim. Probably this choice grew out of a defect in the proof available to him.

Proof by oath was a contentious subject under the tus commune. It was undoubtedly troublesome in practice too. Matrimonial causes provide a good example. Most young people who sought to enforce a marriage contract could produce some sort of evidence to show that they had entered into it: gifts between the couple, an ambiguous confession by the other party, or public fame that they had acted as if they were man and wife. But the plaintiff in such cases might not have witnesses to an actual contract made by words of present consent. Could he make up the deficiency by taking an oath? The communis opinio among the jurists held that ‘in difficult causes of great moment’ the suppletory oath should not be

used.8° It seemed to at least some of them that matrimonial causes should be included in this class, although judicial discretion might make an exception in case of genuine necessity.°° They were, by definition, causes of moment. Alternatively, some jurists concluded that if oaths were to be allowed in such situations, it might be better to require that the defendant, who denied the marriage, take the decisory oath.9! This was sometimes done in English practice, as in a case from 1478, in which a man denied the contract fortissimo turamento, and was then dismissed.%2 As time went on, however, less faith was being put in proof

of this kind. It remained possible, and it was used for some purposes in the English courts, even including matrimonial cases. Francis Clerke, writing at the end of the sixteenth century, described it as being in use, and Henry Conset also

mentioned it at the close of the seventeenth.93 The act books confirm their words. But its frequency had declined. Inquests

It is commonly said, and truly, that the greatest difference between canonical procedure and that of the English common law lay in the latter’s reliance on juries. 89 See e.g. Mascardus, De probationibus, lib. I, quaest. 8, nos. 37-43. 90 So it was argued in Fletcher c. Cosin (Arches, c.1600), Bodl., Tanner MS. 427, ff. 113v—114v, and

apparently also in Cleasbye c. Collingwood (Durham, 1609), Clement Colmore’s Book, DUL, DDR XVIII/3, fo. 231.

91 Sanchez, De matrimontis, Lib. VII, Disp. 113, no. 28, seems to endorse this solution. It was used in at least some litigation; see e.g. Morris c. Harvy (St David’s, 1591), NLW, Act book SD/CCCm/1, fo. 8: ‘causam ad juramentum dicte partis ree referendo’; Bignor c. Belynghurst (Winchester, 1527), HRO, Act

book C2/2, fo. 30, in which the plaintiff consented to discontinuing an action to enforce a contract of marriage ‘casu quo [the defendant] vellet iuramentum prestare quod nunquam contraxit matrimo-

nium cum ea. 92 Taylor c. Bocher (Salisbury), WTRO, Subdean’s Act book D/4/3/1, fo. 72Vv. 93 Clerke, Praxis, tit. 186: Conset, Practice, pt. III, c. 5 § 1, no. 4. 94 e.g, Webb c. Gardiner (Gloucester, 1630), GRO, Act book GDR 171, s.d. 9 Feb.: ‘[Plaintiff’s proctor]

allegavit semiplenam probationem ex parte sua... quare petiit iuramentum suppletorium domino suo differri etc.

THE STAGE FOR PROOF 337 Maitland himself wrote that by the end of the thirteenth century, trial by jury had ‘become so peculiarly English that legists and decretists would be able to make

nothing of it.95 In so extreme a form, this statement is contradicted by the evidence of practice in the English spiritual courts. In fact, the ecclesiastical courts

made regular use of an institution that closely resembled a jury. Whether they were moved to do so because of influence running from the English common law is not an entirely easy question to answer. Even if they were, however, a plausible argument could be made that they were not violating canonical principles in so doing. Inquests by group ‘verdict’ had been a regular part of the ecclesiastical practice in the early Middle Ages, and although they did not survive to occupy a separate place in the later lawbooks, the texts none the less envisioned something like a verdict of a group being employed under some circumstances to determine relevant facts. For example, bishops had a duty to visit their dioceses, and this visit was to

be made by assembling a group of men and making inquiry of them (C.10 q.1¢. 11; X 5.1.24). The fact of a woman’s virginity was to be determined “by honest and prudent matrons’ (X 2.20.14) deputed by the judge. Any judge had the

power to convoke an inquest of knowledgeable men to help him in determining questions involving titles to ecclesiastical benefices.%° In all these cases, the law seems to have expected that these groups would give a collective answer to the questions put to them. The sworn men in such cases were not regarded as testes. It was not expected that they would be produced by the parties and examined separately, although they could be. In England, at any rate, canonical ‘juries’ were employed.%’ In a marital dispute heard before the archbishop of Canterbury's court of Audience early in the fourteenth century, for example, after he had heard the allegations of both parties, the auditor (judge) ‘decided to inquire by thirteen or twelve men from among the faithful neighbors of the [parties], who were not suspect to either, as to which of the parties was guilty of the aforesaid dissension and dispute’.98 Similarly, in a later

fourteenth-century dispute about the condition of a church and other ecclesiastical property under the care of a bishop, it was decided that the matter was to be 95 Pollock and Maitland, ii. 620. 96 Mascardus, De probationibus, lib. I, concl. 180, nos. 6-7. 97 Charles Donahue, Jr., “Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law’ in On the Laws and Customs of England: Essays in Honor of Samuel E. Thorne, ed. Morris S. Arnold, Thomas A. Green, Sally A. Scully, and Stephen D. White (1981), 127-58, esp. 134—41.

98 (1305), LPL, Act book MS. 244, fo. 54: ‘Auditis allegationibus et altercationibus partium predic-

tarum decernimus inquirendum fore per Radulphum de Cumbe et tresdecim vel duodecim de fidedignioribus vicinis dicti Johannis (the husband) neutri partium predictarum suspectis. Other use of inquests in matrimonial litigation: Ex officio c. Hesdeldenman and Maister (Canterbury, 1373), CCAL, Act book Y.1.1, fo. 31v (consanguinity); Bokke c. Bakeres and Joures (Rochester, 1347) in Reg. Hamo Hethe, 964.

338 CIVIL PROCEDURE AND THE LAW OF PROOF investigated ‘by faithful men, both clerical and lay, having full notice of the defects’.99 By far the most frequent usage of group inquests in English practice occurred where a patron had presented a cleric for admission as incumbent of

a parish church. When this happened, bishops or their officials routinely appointed a panel, very often made up of an equal number of laymen and clergy, who were required to answer a series of questions about the state of the benefice and the qualifications of the candidate for admission.!°° The inquest was usually held at the parish church or nearby. They became frequent enough in practice to be given a special name: inquests de ture patronatus. When the men summoned had assembled, they gave a unanimous ‘verdict’ to the questions put to them, and the bishop or his delegate acted in accordance with it. We shall look again at their purpose and their role in practice in Chapter 9. These inquests were used particularly in situations where ordinary proof by witnesses would have been unsuitable. In dealing with dilapidations to a church, for instance, what was wanted was a record of facts that were evident or widely known in the parish, not the partisan testimony likely to be given by the supporters of each of the litigants.1°! Moreover, in some circumstances the existence of

public knowledge became an issue in canonical litigation, and questioning a group of sworn men would have been an efficient way to discover it. Was there fama publica that the parson does not say matins or that he kept a concubine? An inquest might say whether there was. The judge would not necessarily be bound by the ‘verdict’ of the inquest he had summoned, and he (and the inquest itself) might consider other forms of evidence in reaching a final decision. The process was meant ‘to inform the conscience’ of the participants.!2 Although they occupied a relatively small place in English practice and a more tenuous one in the ius commune, these inquests did play a role in supplementing other forms of proof. Witnesses

The normal method of proof in the English ecclesiastical courts, as noted above, was by the testimony of witnesses. They gave evidence under oath, again a sign of the canon law’s routine reliance upon the force of oaths. Witnesses were produced 99 Reg. Trefnant, 8. Similar is an inquest taken after the death of Richard Bideshal, rector of the parish of Hardwick (Ely, 1375), CUL, Act book EDR D/2/1, ff. 32v-33, and one about the fabric of a church and rectory (1293), CCAL, Sede Vacante Scrapbook III, no. 220. 100 The usage is discussed in J. W. Gray, “The ius praesentandi in England from the Constitutions of Clarendon to Bractom (1952) 67 EHR 481-509. 101 Procedure making use of an inquest in cases involving dilapidations is outlined in a seventeenthcentury precedent book: NNRO, PCD/2/3, fo. 29: “In Dilapidations what to be Done’.

102 e.g, Civilian’s notebook (seventeenth century), WTRO, D5/24/18, fo. 28v: ‘ad informandum conscientias juratorum.

THE STAGE FOR PROOF 339 by the parties themselves, who paid their expenses and who possessed (and exercised) a right under the canon law to compel potential witnesses to appear on their behalf (X 2.21.1).193 After their admission, at which the proctor for the other side was given the opportunity to object to their competence, examination of the witnesses was conducted individually and privately by an official appointed by the court. This process took place entirely outside the court, and the parties themselves were excluded, lest they influence the testimony given. The judge himself was rarely present at the examination. It could easily happen that he would not see the witnesses at all, as where they lived at a distance or in appeal cases. The plaintiff’s articles and the defendant’s interrogatories provided the basis for

this examination. The former stated the particulars of the plaintiff’s claim, as discussed above; the latter were questions designed either to undercut the credibil-

ity of the witness or to show that the defendant had the stronger case. Asking whether a witness had received gifts from the plaintiff was an example of the first; asking whether a testator had acted in an abnormal fashion when he made a codicil to his will was an example of the second. The answers to both were recorded in the depositions, or attestations as they were sometimes called. Judges or examiners could frame questions of their own to be put to the witnesses,!°4 and this sometimes happened. Short tracts given titles such as “Those Things to be Observed in the Examination of Witnesses’ were frequently placed in the notebooks of English proctors, and they make clear that examiners were expected to be more than simple scribes. Examiners were to organize what witnesses had said. They were to ‘cut off all vain talk’ of witnesses who were ‘full of babble and nothing to the purpose’! They might add comments of their own, as for example, noting that a witness had

spoken ‘in a vacillating fashion as if he had been suborned’! After putting his comments in writing, the examiner submitted the written depositions to the judge, who then formally published them during a court session. Each party was supposed to receive a copy, the original remaining with the court.!°7

At the point of publication, the opposing party was again given a chance to enter his objections against the witnesses and their depositions, if his proctor had prudently reserved the right at the time of their initial admission as witnesses. The range of possible objections to their persons was wide indeed, and they were made in formulaic fashion in practice.198 According to a familiar medieval tag, witnesses 103 See Peter Herde, “Der Zeugenzwang in den papstlichen Delegationsreskripten des Mittelalters’

(1962) 18 Traditio 255-88. 104 Gl. ord. ad X 2.19.11, s.v. interrogationes. 105 Precedent book (1576-1631), BKRO, D/A/X/4, ff. 70-7ov. Other examples: Bodl., Rawl. MS. D.1088, fo. 59 (c.1600); BL, Harl. MS. 5105, fo. 69. 106 CCAL, Ch. Ant. M 365 (1291): “Vacillanter deposuit iste et etiam rediit causam sciencie tanquam

esset subornatus. 107 Durantis, Speculum iudiciale, lib. I, tit. De teste § de attest. Publicat., no. 1. 108 See e.g. Clerke, Praxis, tit. 149; see also Bernard Schnapper, “Testes inhabiles’ (1965) 33 TRG 575-616, dealing mostly with criminal trials but useful for both.

340 CIVIL PROCEDURE AND THE LAW OF PROOF might be disqualified by: “Condition, gender, age, discretion, reputation, fortune, and truthfulness’! All of them were raised. It turned out, however, that there were numerous exceptions to the rules of witness disqualification based on status. That is, in many circumstances testimony from a person disqualified for some purposes might nevertheless be received for other purposes. For example, Hostiensis, from whose Summa aurea the list comes, stated as an accepted rule that women could not serve as witnesses. However, he then qualified it almost out of existence by endorsing the ‘exceptional’ cases in which women might be received as witnesses. In England, normal usage was to take and admit depositions from a wide range

of persons and for the judge then to consider the objections against them in assessing the probative force of the evidence they gave. Objections to the admission of witnesses based on status or improper conduct were certainly made.!!° More often than not, their evidence was considered. For instance, in one fifteenthcentury marriage case, exception was taken to admission of a woman said to be blind and simple-minded. But, against this objection, it was said that, ‘neverthe-

less she could perfectly well hear a contract to marry allegedly entered into between the man and woman involved.!!! The operative assumption in this case and others like it seems to have been that the judge could exercise his discretion in considering the probative force of her deposition. He would not simply apply a rule of exclusion from the academic law. Exercise of judicial discretion of this sort occurred frequently in practice. Still, the disqualifications were raised by the lawyers just as regularly. Questions of the probative force of the testimony of witnesses were not easy ones. For example, the basic rule of the ius commune was that two reliable witnesses were needed to make ‘full proof a principle the jurists found stated many times in the Bible itself (e.g. Deut. 17: 6, Matt. 18: 16). Exceptions to the rule testis unus, testis nullus were made, but it remained the starting-point. The law’s requirement that there be at least two

witnesses to prove a fact was not a simple matter of a preference based on numbers or even on distrust of what a single person had said. Judges were instructed to compare what the witnesses had said and to draw conclusions from it. Here the biblical story of Susanna and the elders furnished the normal ‘proof text’112 After 109 Hostiensis, Summa aurea, lib. II, tit. De testibus, no. 2: “Conditio, sexus, aetas, discretio, fama, et fortuna, fides. In testibus ista requires’ It is given, in practically identical language, in a late Elizabethan precedent book: DRO, CC 181¢, p. 15. See generally Susanne Lepsius, Der Richter und die Zeugen (2003), 126-93.

110 e.g. Burford c. Burford (Archdnry Wells, 1630), SRO, Act book D/D Ca 277A, s.d.17 Feb. (excom-

municate); Flint and Dyer c. Branch in ibid., s.d. 3 Feb. (minority). See generally James Brundage, ‘Juridical Space: Female Witnesses in Canon Law’ (1998) 52 Dumbarton Oaks Papers 147-56.

111 Found in BL, Harl. MS. 3378, ff. 82-83: ‘audire potuit contractum matrimonialem predictum inter ipsos J. et C. habitum prout veraciter audivit’ 112 The story is found in Dan. 13 in the Vulgate; today it has been placed in the Apocrypha. See Bernard Jackson, ‘Susanna and the Singular History of Singular Witnesses’ in Acta Juridica 1977: Essays in Honour of Ben Beinart (1979), il. 37-54.

THE FINAL STAGES 341 Susanna had been condemned to death for adultery on the false testimony of the two old men, Daniel intervened, requiring that they be interrogated apart from each other. When they were, one of them described her crime as having occurred under a yew tree; the other under a clove tree. Discovery of this discrepancy in their stories revealed her innocence. Judges were required to follow Daniel’s example. It is evident that the English civilians did so; they made their decisions by weighing the evidence in the depositions put before them. If, as in the case of Susanna, the evidence given by the

witnesses was contradictory, or if it did not ‘tend to one and the same end; the witnesses were considered testes singulares. Their testimony could not then be considered full proof.!!3 At the same time, if the stories told by the witnesses were absolutely identical, that by itself might indicate they had been agreed on (and possibly fabricated) in advance. The English civilians were familiar with these rules and approaches, and although the evidence on the point is not very thick, what there is suggests the judges put them into practice.!!4 Alleged inconsistencies in the depositions of individual witnesses which caused cases to fail for want of ‘full proof’ were regular subjects of attention in the notebooks and case reports of the English civilians.115 This result is what should have been expected. Detection of inconsistencies and reconciliation of apparent contra-

dictions in the depositions of witnesses were crucial judicial skills in the ius commune.

THE FINAL STAGES Once the depositions had been published, a considerable part of the causes recorded in the act books came to a quick end. The merits would often have been clear. Little incentive for prolonging the case would have remained. Indeed, the incentives ran the other way. No litigation expenses would necessarily have

to be paid to a winning litigant by the loser for what had occurred prior to publication. He might have had good cause for thinking he was in the right. A tusta causa litigandi would excuse him from this burden. Afterwards, that claim would have been harder to make. Prolonging litigation would probably have been done for its own sake. The loser would certainly have had to pay the other party’s costs, and it would have been prudent for him to renounce further process.!16 113 Hostiensis, Summa aurea, lib. II, tit. De testibus, no. 10: ‘Quando unus dicit de re una et alius de

alia re,...non valet talium testimonium, cum singuli sint in suis testimoniis singulares. 114 e.g, Wylson c. Fox (York, 1402), BI, CP.F.22, copied in part in Helmholz, Marriage Litigation (Ch. 3, n. 293), 228-9. 115 e.g, West c. Bridges (London, 1599), Bodl., Tanner MS. 427, fo. 34. 116 So stated in the marginalia of a manuscript copy of Clerke, Praxis, HL, HM 35072, fo. 2v: ‘quia post aperturam attentationum vel post productionem instrumentorum incepit scire se habere iniustam causam litigandi. The same reasoning appears in BI, Prec. Bk 11, fo. 11; parties are urged to

342 CIVIL PROCEDURE AND THE LAW OF PROOF Where no renunciation occurred, additional steps were laid out in the ordo 1uris

for this third stage of a suit, and if the parties did not waive them, the English courts assigned a term ad proponenda omnia, one ad concludendum, one ad informandum, and one or more terms ad audiendam sentenciam.'1” So the precedent book in Marsh’s Library states, and indeed this was conventional learning. One can sometimes trace the steps in the act books, although the records also contain the assignments of terms simply ‘to do what is just.!!8 Moreover, in many cases a term for the sentence was assigned quickly after publication of the depositions, but then the case would be continued from one session to another under a heading ad idem. Some cases went on and on under that same heading until they were finally dropped from the act book.!!9 What happened to them we can rarely discover, but it is reasonable to suppose that negotiations and attempts to agree on a compromise were taking place. There is a great deal about what happened in this third part of process in routine litigation that we will never know. For example, the term ad informandum was designed to allow the advocates to make legal and factual arguments before the judges. There are examples of the term’s being assigned, but there are many more cases where it was not. In them, nothing at all was recorded about the legal arguments made. The result is that, too often, very little can be said about legal argument before the courts, particularly in those courts where only proctors served. It is even a stretch to suppose that any sustained argument about the law took place. This observation is as true for the Middle Ages as it is for later periods.

It may, therefore, be true that process before, say, the Court of Arches differed quite substantially from that used by lesser courts. It is a guess—although a reasonable guess—that procedure during the final stages was dominated by a desire for agreement or acquiescence in the court’s disposition. The number of men who controlled litigation in the ordinary consistory courts was very small—often four to six. They must have known each other very well. The law’s ordo iuris was intended to guarantee that due process was accorded to the parties as much as it was to dictate the exact steps they took, and the lawyers may have allowed the final steps in litigation to go forward as custom and individual need dictated. have their witnesses state their testimony first before other witnesses, so that if their actual testimony did not accord with it, the party would not be condemned in charges. 117 MLD, MS. Z.4.2.17, no. 17.

118 e.g, Marchaunt c. Vyngerlith (Rochester, 1347) in Reg. Hamo Hethe, 942. 119 e.g, Adam c. Adam (Rochester, 1437), KAO, Act book DRb Pa 1, ff. 2-85, a matrimonial cause in which publication occurred 17 June; in the next session (18 July) nothing was said against the witnesses

and a term ad proponenda omnia set for the next session, when the cause was concluded and a term ad audiendam sentenciam set for 29 July. After that the cause was continued ad idem during each term until 9 December 1438, when it was marked pendet, after which it disappeared from the records. No definitive sentence was given in the act book.

DEFINITIVE SENTENCES 343 At the same time, the results were never ‘formless’ or wholly arbitrary. The final stages of ecclesiastical causes followed a regular form. The courts made sensible

use of what the ordo iuris provided. Of the canonical steps, four were regularly used in practice.

DEFINITIVE SENTENCES The canon law recognized two basic types of sentences, the interlocutory and the definitive, the former being reserved for rulings during the trial, the latter for final decisions on the merits. Both were in use in England. Definitive sentences, the more frequently met of the two, were formal, even ceremonial, documents. They began with an invocation of God’s name, a mention of the nature of the cause and the names of the parties, and an assertion of the rectitude of the judge. Then they went on to provide a recitation—often a quite lengthy recitation—of the procedural steps followed in the case. Only at the end did they give the decision on the merits, and this merely stated the judge’s conclusion in the most general terms: “The actor had duly established his intentio’; or else ‘he had failed to establish his intentio for want of sufficient proof’ So they read. Sentences thus tell modern readers almost nothing about the law or the reasoning that lay behind judicial decisions. Canonists noted that a judge might set out the causa that had moved him to decide as he did,!”° but he was not legally obliged to do so, and few English judges ever did.12! Even stranger

to modern tastes are the long-winded elaborations of procedure in canonical sentences, seemingly designed to show that the court had followed the steps required by the ordo iuris. Procedure was legally important. A sentence given without observance of the substance of the ordo was a nullity. Lawyers were told to ‘diligently ensure that the sentence be given solemnly and in due form by the judge’!22 A degree of formality was meant to surround the sentence’s delivery (‘porrection’ in civilian parlance). A definitive sentence was to be read aloud in a public session of the court. Those who had taken part in the decision or were affected by it were to be present, or at least given a chance to be present. A sentence given in occulto was invalid.123 Except for two minor exceptions, the judge was to do the reading, and he was to be seated judicially as he did so. The solemn and deliberate language of the

sentences was thus meant to be matched by the speech and demeanour of the 120 GI. ord. ad X 2.27.16, s.v. exprimantur. ‘Tudex potest apponere causam quae ipsum movet; si tamen non apponitur bene tenet sentencia. 121 See Helmholz, Marriage Litigation (above n. 114), 201 for a typical sentence from the fourteenth century. The practice long continued; see Duncan, The High Court of Delegates (Ch. 3, n. 234), 173-4. 122 Durantis, Speculum iudiciale, lib. II, pt. 2, tit. De sententia § 4, no. 1: “[SJententia ordine iudiciario substantiali praetermisso, vel non servato lata, non tenet ipso iure’. See also Vantius, De nullitatibus processum, tit. Ex defectu processus, no. 1, and tit. Quibus modis, no. 7. 123 Durantis, Speculum iudiciale, lib. II, pt. 2, tit. De sententia § 5, nos. 4-5.

344 CIVIL PROCEDURE AND THE LAW OF PROOF participants. It is true that occasionally the act books record the reverse: breaches in decorum, as in mentioning the existence of a magnitudo clamoris during a session

at Canterbury.!24 The ideal may have been far from the reality. In aspiration, however, the civil procedure used in the ecclesiastical courts was a formal process,

conducted by set forms in the words used by proctors and following fixed (and uninformative) patterns that were laid out in the sentences. A second feature of the definitive sentences in the English spiritual courts that surprises modern lawyers was that they were normally prepared by the parties themselves, or rather by the proctors acting on their behalf. Each side presented the judge with a copy of the sentence he hoped to have porrected. The judge then chose the one that accorded with his own decision, usually having a formula that began Lecta et lata added at the end to indicate its adoption by the court. Some of the documents that have been preserved contain changes and interlineations, apparently where there had been a compromise or change in the amount owed by the defendant.!25 Whether this custom was an appropriate ‘economy move’ or a violation of the requirements of the ordo iuris is not clear. Even if it were the latter, it would

not have been a violation of its substance. The jurists did not treat omission of the formal language as a cause of nullity. It was that question which, in the end, determined the shape of much of the practice in the ecclesiastical forum.

Execution of Sentences After the sentence had been formally porrected, the ius commune and the English ecclesiastical courts provided a separate term in which execution of the sentence was demanded by the winning party. In part, this procedural term was meant to

give the losing party time to object. William Durantis, for example, provided seventeen different matters that would delay execution: appeals—a petition for restitutio in integrum, an agreement for arbitration.!2¢° In part, this step was also

meant to provide time for a specific remedy to be formulated; the example of a missio in possessionem was that given in the Decretals (X 2.27.6). Its most notable

example was the appointment of executors to secure enforcement of sentences in litigation over benefices heard at the papal court. Its most routine example was the issuance of orders to parochial curates requiring them to read publicly the sentences of excommunication or suspension from entry into the church that had been issued against individual parishioners. All these functions supplemented the definitive sentence, which would normally have stated only that one party was 124 Ex officio c. Eveburgh and Beaupel (Exeter and Canterbury, 1269-72), CCAL, Sede Vacante Scrapbook III, no. 464. 125 Taylor c. Wood (Lincoln, 1582-3), LAO, Court papers RP/6, ff. 33-37v. 126 Speculum iuridiale, lib. II, pt. 3, tit. De executione sententiae § 6, nos. 1-6.

DEFINITIVE SENTENCES 345 entitled to possession of a piece of property, was the rightful incumbent of a benefice, or had violated the rights of the church. A good deal of the learning compiled by the jurists on this subject was quite irrelevant in English practice. The ecclesiastical courts did not have the power physically to reach the assets, still less the real property, of litigants before them. No sheriff or writ of fleri facias was available to seize a party’s chattels.!2” Orders of sequestration issued against the property of litigants were used, and they might be

considered an exception, but they were temporary in nature. The permanent decrees of English ecclesiastical courts were virtually always issued in personam and

limited to excommunication of those whose continuing contumacy evinced an unwillingness to carry out a court’s mandates.!28 Assignment of a separate term for seeking execution of sentences was not in any event an indispensable part of the ordo iuris; it could be renounced, waived, or even made part of the sentence itself.129 With reason, all these things were done in practice. In matrimonial litigation, for

example, if no appeal from the definitive sentence confirming the existence of a valid marriage was entered within the ten or fifteen day period allowed under the law, nothing more happened unless the losing party refused to obey the sentence. The order to solemnize could be issued as part of the sentence itself.15°

None the less, the availability of a separate term for seeking execution of a sentence did serve a purpose in much instance litigation.!3! Sentences of excommunication and interdicts were not issued automatically by the courts. They had to be sought by the winning party, and before one was issued, it was not a waste

of time to give the party an opportunity to avert it. This step was particularly useful when the aid of the “secular arm’ came into play. Before an ecclesiastical court sought the writ de excommunicato capiendo from the Chancery, a term was given to the party involved, summoning him to show cause, if he had one, why the writ should not be sought.!32 In other words, the party that sought an order that would result in the imprisonment of his opponent had to ask for it. Then, he

had to allow his opponent to make a case against its issuance. That opponent 127 Baker, Introduction, 66—7.

128 Civilian Notebook, BL, Add. MS. 6254, fo. 32v: ‘Omnis executio in foro ecclesiastico est indirecta,..., ut faciat hoc et si non faciat excommunicar1. 129 e.g, Giles of Avenbury c. Sir John of Aigueblanche (Hereford and Canterbury, 1270-2), in Select Canterbury Cases, B.3.gg (pp. 91-2). 130 e.g, Suardby c. Walde (York, 1372), BI, CP.E.111, printed in Helmholz, Marriage Litigation (above

n. 114), 212. 131 See Select Canterbury Cases, introd., 55-6.

132 e.g, Blakeman c. Husewif (Canterbury, 1293), CCAL, Sede Vacante Scrapbook I/109/2, a marriage

cause in which the parties had been ordered to solemnize. The defendant refused and was ordered to produce ‘causam rationabilem si quam habeat quare cum ecclesia ultra non habeat quod faciat in hac parte contra eandem non debeat invocare brachium seculare. Denton c. Myer (Archdnry Buckingham, 1601), BKRO, Notebook D/A/C/25, fo. 64v, a tithe cause in which the defendant had remained excommunicate for more than forty days; the plaintiff sought his ‘signification’ in a separate term to which he was summoned.

346 CIVIL PROCEDURE AND THE LAW OF PROOF might be able to show, for example, that he was too poor to pay what he owed. If so, the signification would be dropped and the court would modify the prior sentence to require him to pay his debt only ‘when he came to a more prosperous condition’.!53 The term fixed for assignment of execution of sentences played additional roles

in English litigation. Probably the most important lay in determining the most appropriate treatment for defendants who had lost their case. Sometimes the assignment was a matter of routine, as in making an order to pay what was owed in tithes, but this was not always so. In defamation causes, for example, public penances were often assigned against defendants, even in instance causes. They might take different forms, from a humiliating appearance in penitential garb in the parish church to a private apology before a small group of people. This term was used to settle which was to be used.134 A different use of the term was to deal with the quite frequent situation in which an appeal had been made but not prosecuted within the time allowed (typically a year). A special term for demanding

execution of the original sentence brought the case back to the attention of the judge whose sentence had been subject to the appeal. A third was to object to the form or substance or validity of the sentence. That the sentence did not conform to the libel or that it omitted legally necessary words were matters that could be raised in the term for execution of the sentence.!35 Costs and Charges The procedural law of the ius commune used the term charges (expensae) for what

the English common law would call costs. The underlying principle was not greatly different. The party that caused the expense of litigation should pay for what his activities had cost. Three separate forms of charges were provided by the canon law, and all of them appear with frequency in the pages of act books and case reports compiled by English civilians.13° Appeals from “immoderate taxation of charges’ could be made under the canon law and were in English practice.!5” 133 e.g. a fifteenth-century formulary, Bodl., Tanner MS. 426, fo. 95: “Exceptio contra executionem sentencie ratione paupertatis. Examples are: Gloveres c. Carold (Canterbury, 1374), CCAL, Act book Y.1.1, fo. 83; the plea of poverty, made in the term for execution of the sentence, was refused in Sixforth c. Horsman (York, 1519), BI, Act book D/C.AB.2, fo. 216, perhaps because the defendant pleaded he had

spent his assets ‘prosequendo iusticiam contra Sixforth in curia temporali in causa secular? 134 Clerke, Praxis, tit. 271. 135 Bennet c. Jones (London, c.1600), Bodl., Tanner MS. 427, fo. 223; Carnsew c. Day (London, 1599), Bodl., Tanner MS. 427, fo. 208. 136 By Dr Ferrand, in Legc. Hodgskins (London, 1604), GL, MS. 11448, ff. 22v—-23; see also CUL, CUA Collect.Admin.38, fo. 20. 137 e.g, Coupere c. Carter (Ely, 1377), CUL, Act book EDR D/2/1, fo. 72v: ‘a quadam condempnatione

expensarum nimis excessive et immoderate’; Lovell c. Chell (Hereford, 1596), HFRO, Act book 1/13, s.d. 2 Oct.

DEFINITIVE SENTENCES 347 Whether this practice provided any kind of check on abusive use of charges, and whether the awarding of charges offered a way around the common law’s rule that the ecclesiastical courts could not give money damages, are only two of several unanswerable questions thrown off by the subject. The first kind were the charges occasioned by unjustified delay: expensae retardati processus. Raising frivolous exceptions one could not prove, or citing witnesses from afar who had nothing of substance to add to the cause, were textbook examples of what it meant to ‘retard’ the process without good cause (Cod. 7.51.4; X 2.14.5). If a party did so, he would have to pay for the delay. It might thus be a disputed question whether a continuance sought in litigation had been meant to give the parties a chance to settle the suit or was instead simply a way of stretching out the cause.!38 The amount of charges awarded lay within the discretion of the judge, although at

Ely in 1600 it was said that 16d. per day was the normal charge for unnecessary delay.!39 If the party could not pay these charges, the judge had the authority to punish him physically under the ius commune, but this recourse was not employed in English practice.!4° Expensae retardati processus were particularly useful in practice in the attempts

the ecclesiastical courts made to defend themselves against unwarranted writs of prohibition. Prohibitions were issued in Chancery (or later the King’s Bench) without a full investigation of the facts. It was tempting for defendants in the ecclesiastical courts to secure one. The writ would result in suspension of any action in the spiritual courts. However, when a litigant succumbed to the temptation, and it later turned out that he was wrong about the merits, not only would

a writ of consultation from the temporal courts issue allowing the cause to proceed, the litigant would also be compelled by the ecclesiastical court to pay for

all the charges associated with the delay.!4! He might think twice about the possibility.

The second kind were those charges associated with failure to appear or act

promptly in court: the expensae contumaciae. Purposeful unwillingness to respond to a lawful citation and refusals to obey an order to give personal responses to the plaintiff’s positions were common examples (Cod. 3.1.15(13); X 2.14.6). If the plaintiff had ever been declared contumacious during litigation, he would not later be permitted to proceed until he had first paid the charges of 138 e.g, Woodkeep and Sculthorp c. Kirkham (Peterborough, 1641), NRO, Instance Act book 54, s.d. 11

May; the defendant objected to the charges because he said the ‘retardation’ that occurred had been because the cause had stood sub spe concordie. 139 BI, Prec. Bk 11, fo. 2v: “Expensae retardati processus pro uno die xvi d....ex stylo curiae ita

obtinet in causis Elien’. 140 Gl. ord. ad X 2.14.5, s.v. et si solvendo. 141 e.g, Fisher’s Case (London, 1605), GL, MS. 11448, fo. 14, Dr Martin seeking taxation of charges ‘in

causa consultationis. If the party had been right, he still had to pay a fee for being absolved, although not charges for contumacy; see CUL, EDR F/5/45, fo. 244.

348 CIVIL PROCEDURE AND THE LAW OF PROOF his contumacy.!42 The availability of this form of monetary penalty should be taken seriously by historians writing about the courts. It made a difference in practice. Excommunication was the most serious sanction at the disposal of the ecclesiastical courts, and modern historians sometimes write as though the ‘spiritual terror’ it might induce was all that kept litigants in line. Once that ‘terror’ was removed, it is suggested, litigants might regard the edicts of the courts with

disdain, or at least with regard to their perceived justice. This conclusion overlooks the immediate effect of being required to pay charges for contumacy. The English courts (and the parties to litigation in them) held in reserve the threat of signification and imprisonment. To avert that ultimate threat, contumacious litigants would have had not only to appear and promise to obey the mandates of the court. They would also have had to make monetary amends for failing to do sO sooner.

The third kind were the charges directly associated with conducting litigation. Victus victori debet in expensis condemnari (Cod. 3.1.13(12).6). The writing of documents, the fees of the lawyers, and the expenses of producing witnesses were the most common examples of these charges. At the close of the suit, the winning

party submitted a list of those expenses he had incurred, and he took an oath affirming their veracity. The judge then ‘taxed’ them (usually in a downward direction), and the award of charges against the losing party was made.1*# Sometimes, payment was arranged so that it could be made in halves or even thirds, presumably for the convenience of the losing party. Judges also had discre-

tion to make no award at all, and they were directed to exercise it when they concluded the losing party had had ‘just cause for going to law.!44 More often, however, the award became a matter of routine, and numerous schedules of taxed charges have survived among the court records.!45

Appeals

An ordered system of appeal was both a means of guaranteeing justice and of frustrating justice in the ius commune. The canonists recognized the dual possibilities very well. On the one hand, appeals were necessary; they were requisite ‘for the protection of the innocent, for it could be assumed that the innocent would be ‘frequently aggrieved’ by judges.14° The right to lodge an appeal was, therefore, 142 e.g, J.-P. de Ferrariis, Practica aurea, tit. Forma libel. actio. real. § Et expensis, no. 5. 143 e.g. Jarret c. Madeley (Worcester, 1589), WORO, Act book 794.011 BA 2513/4, p. 319: “[Plaintiff]

exhibuit billam expensarum ad summam iii li. ii s. viii d. quam dominus taxavit ad summam | s.’. 144 See e.g. the example and discussion in BL, Add. MS. 6254, fo. 42Vv.

145 See e.g. Woodcock, Medieval Courts, 135-7; Ritchie, The Ecclesiastical Courts of York, 151-2; Duncan, High Court of Delegates (above n. 121), 277-9. 146 Hostiensis, Summa aurea, lib. II, tit. De appellationibus, nos. 1-2.

DEFINITIVE SENTENCES 349 not something easily to be denied; even a person validly excommunicated could do so (X 2.25.5). They could be lodged both against final sentences and against allegedly wrongful conduct by officials, conduct that need not have been embodied in a formal sentence. On the other hand, it was equally evident that appeals were all too often made out of malice, and as Ulpian himself had said, they sometimes resulted in overturning well-delivered judgments.!4” The ability to bring appeals was one that had to be brought within bounds (X 2.28.59). In other words, the law wavered between two contradictory approaches, with a slight preference for permitting appeals in doubtful cases. Papal rescripts of justice to judges delegate commonly contained the phrase, appellatione remota, apparently forbidding appeals, but the jurists interpreted the phrase as containing an implied exception for ‘just appeals. So the appeals continued.!48 It cannot be claimed that the canon law ever solved the

problem (if indeed it can be solved). Here only an outline of its operation is feasible. A full description would be a very lengthy description.149 DIRECT APPEALS

In England there were two basic types of appeals from judicial sentences: direct appeals and tuitorial appeals. Direct appeals were themselves divided into two classes, depending on whether they were made before or after definitive sentence. The former were called interlocutory appeals and were made a gravamine, that is when an intermediate ruling by the judge threatened to jeopardize one party’s status or cause.15° Under the law both were to be made gradatim, that is, up the ladder from archdeacon to bishop to metropolitan to pope, without omitting any of the rungs (X 2.28.66). The great exception to the rule was the last, the pope. He was the ‘universal ordinary and the ‘judge of all’.!5! It was, therefore, lawful to invoke his jurisdiction at any time. This original jurisdiction was inherited only in part by the Court of Delegates after the Reformation. It also seems to have been less frequently exercised.1!5? 147 id., citing Dig. 49.1.1.1.

148 Tancred, Ordo iudiciarius, 302: ‘Sed intelligenda est illa, nisi subsit iusta causa appellandi. 149 See e.g. Conset, Practice, pt. V, contains a minute and careful account of the subject; at c.1§ 1, it includes a not wholly unjustified criticism of the ‘chaos’ found in Francis Clerke’s treatment of appellate practice.

150 What follows can be found in most procedural manuals; here Tancred’s Ordo iudiciarius, Durantis’s Speculum iudiciale, and Henry Conset’s Practice have been the principal sources. The author has also enjoyed the help provided by a ‘flow chart’ on the subject prepared by Daniel Klerman while he was a student at the University of Chicago. 151 GI. ord. ad X 2.28.66, s.v. post huiusmodi; Hostienis, Summa aurea, lib. II, tit. De appellationibus,

no. 4. See generally Roman Canon Law, 100-31; John Watt, The Theory of Papal Monarchy in the Thirteenth Century (1965), 92-7. See, however, Execs. Schilbotel c. Execs. Schilbotel (York, 1415-17), BI,

CP.F.69, containing identical appeals made both to the apostolic see and the Council of Constance. 152 Duncan, High Court of Delegates (above n. 121), 42-6.

350 CIVIL PROCEDURE AND THE LAW OF PROOF Appeals were to be made within ten days of the sentence or gravamen, lengthened to fifteen days by virtue of a Henrician statute (25 Hen. VIII, c. 19, 1534).153 Interlocutory appeals were required to meet more stringent procedural requirements than appeals after definitive sentence, but appeals were possible for both.!54 They might be made orally apud acta or in written form. In either case, the appellant sought apostoli from the judge a quo to the judge ad quem. These were letters notifying the appellate judge of the fact of appeal and the nature of the cause (Dig. 49.6.1; Clem. 2.12.1). The judge issuing them might defer to the appeal by issuing apostoli reverentiales, or instead refuse what he considered a frivolous appeal by issuing apostoli refutatori1.155 Refusal did not prevent the appeal, but it did mean that the appellate judge would have to remit the cause to the judge a quo for further process and sentence. By contrast, if the judge issued apostoli reverentiales, the appellate court might itself finish the cause. In either case, the records (libels, depositions, record of process) were sent to the judge to whom the cause was appealed—during the Middle Ages in the form of rolls, during the sixteenth century in the more convenient form of codices. Appellants were normally given one year to prosecute the appeal, although in some circumstances they could be assigned either more or less. If they failed to prosecute it, the appeal lapsed and was returned to the judge a quo for taxation of charges and then for either continuation of the cause or execution of the original definitive sentence. This procedural system described in the academic literature was followed in English practice. The court books and other remains of ecclesiastical justice record observance of virtually all parts of the ordo. Both apostoli reverentiales and apostoli refutatorii were issued in response to appeals.!5° Proctors argued about

whether or not the annum fatale had elapsed, preventing process on an appeal unless good cause for allowing additional delay could be shown.!57 Objections were taken when a judge a quo assigned less than a year for prosecution of an appeal.158 Congruence between procedural law and practice is thus the primary conclusion to be drawn from the court records, although it should be stressed that the law itself made ample room for discretion in appellate practice. Apart from 153 The original ten days began from the time when notice of the sentence or gravamen came to the appellant, and the ten days were dies utiles, excluding days on which no legal business could be done. It may be, therefore, that the statute did no more than affirm the same period, but change to ordinary

reckoning of time. 154 GI. ord. ad Sext 2.15.1, s.v. interlocutoria. 155 The law on the subject, and further divisions among apostoli, are well sketched in A. Amanieu, ‘Apostoli,; DDC, i, cols. 691-8.

156 Sixforth c. Horsman (York, 1519), BI, Act book D/C.AB.2, fo. 216: “Dominus noluit admittere

appellationem...et assignavit sibi apostolos refutatoriales. Vicar of Lazonby c. Farmer of Plumpton and Prior of Carlisle (Carlisle and York, 1503), BI, Cons.AB.5, fo. 59v: “Dominus commiussarius tradidit...

apostolos reverentiales. 157 Mr Curle’s Case (c.1610), BI, Prec. Bk 11, ff. 22v—23. 158 Pyllane c. Mason (York, 1533), BI, Act book D/C.AB.3, fo. 36, in which the judge assigned four months for prosecuting an appeal to the papal court and an additional four to certify to the prosecution.

DEFINITIVE SENTENCES 351 that, although a few brave and useful attempts to estimate the frequency of appeal in court practice have been made,!59 the chief area in which examination of the court records yields greater knowledge than that found in the ordines lies in their demonstration of how frequently appeals were made but ultimately deserted.1© They seem commonly to have been used for purposes of delay. Entries in the act books show that the canonists’ conflicted response to the merits of the institution of appeals was no ivory tower response. TUITORIAL APPEALS

Congruence with the formal law was not so clear a feature of tuitorial appeals. The

tuitorial appeal was one made ad sedem apostolicam et pro tuitione ad sedem Cantuariensem.'©! In other words, formally the party appealing invoked papal jurisdiction and, in a subsidiary fashion, that of the archbishop of Canterbury in aid of his appeal. Such an appeal could be made from either judicial or extrajudi-

cial action by a diocesan official. Parties could make a tuitorial appeal from a definitive sentence, an interlocutory sentence, or even the threat of irreparable

harm. The court of the archbishop would issue an inhibition against further action on the diocesan level and then proceed to determine whether or not tuition was warranted. The appellee would be obliged to appear and the matter of the appeal would be handled summarily. If the parties agreed or acquiesced, the whole dispute could be terminated before the archbishop’s court, and examination of the court records shows that the parties did often agree to have the merits of the principal cause heard.!© It saved time and expense.

Two legal objections were made against the institution of tuitorial appeals. First, they infringed upon the jurisdictional rights of the suffragans. In theory, the church’s appellate system was an ordered one, in which causes were to proceed up

the ladder. Tuitorial appeals bypassed the lower courts, sometimes entirely, because archiepiscopal jurisdiction could be invoked by alleging that one party had been threatened with serious harm because of the action (or inaction) of a diocesan officer. Second, they usurped a papal prerogative. Complaints could be laid before the door of the apostolic see as a matter of right under the medieval

canon law, but that prerogative did not necessarily extend to archiepiscopal 159 See Houlbrooke, Church Courts, 275-7; Woodcock, Medieval Courts, 63—4. 160 e.g, Braine c. Greane (Bristol, 1564), BRO, Act book EP/J.1/6, p. 29: “Quo die F. allegavit tempus

fatale fuisse et esse lapsum et quod non constat de aliqua appellatione interposita, unde dominus ad elus petitionem decrevit dictum Robertum Brayne citandum fore...ad dicendam causam quare sentencie alias contra eum late executionem demandari et expensae taxari non debeant etc. Probably the most frequent legal question raised in the Report of Ecclesiastical Causes, c.1600, Bodl., Tanner MS. 427, was: An appellatio sit deserta?’. 161 On tuitorial appeals, see Churchill, Canterbury Administration, i. 427-39, 60-7; Select Canterbury

Cases, introd., 64-72. 162 Select Canterbury Cases, introd., 71.

352 CIVIL PROCEDURE AND THE LAW OF PROOF jurisdiction (Sext 2.1.1). Archbishops were tied to the ordo. And although tuitorial

appeals were formally appeals to the papal court, in practice they allowed the courts of the archbishop to decide the merits of many causes. Invocation of the papal prerogatives could become almost a matter of form. Several defences of the tuitorial appeal were made. A ‘Treatise’ on the subject inserted in a medieval Canterbury formulary admitted the procedure was ‘against the written law in many respects, but nevertheless argued that a decretal of Pope Alexander III, which had expressly allowed the archbishop of Canterbury to proceed for the sake of safeguarding the appellant’s right to possession pending final appeal (X 2.28.17), amounted to sufficient authorization.!©3 It meant that the arch-

bishop held a ‘special privilege’ and was acting as ‘handmaid’ (ancilla) of the Roman see in hearing tuitorial appeals. It could be thought of as a form of provocatio to higher authority recognized by the ius commune.1% A second justification rested on custom. It was an undoubted rule of the ius commune that custom could itself validly confer jurisdiction,!® and documents emanating from the archbishops made exactly this claim with reference to tuitorial appeals.1 The existence

of the archbishop’s probate jurisdiction over bona notabilia would have been another, similar example of legitimate custom’s capacity to create jurisdictional rights.167 Hostiensis, the great thirteenth-century canonist who had spent some considerable time in England, formulated a third reason for treating the tuitorial appeal as lawful.1°8 It was necessary, he wrote, because of the church's right to ‘signify excommunicated persons to the royal Chancery, thereby securing their imprisonment. Under the law applied in the English secular courts, an appeal to Rome would not prevent signification and imprisonment; however, an appeal to Canterbury would. To protect appellants against being imprisoned pendente lite— something that would have violated a canon law rule—the tuitorial appeal had to be allowed. So far as we know, no ‘test case’ of the validity of tuitorial appeals was ever made. It would have made for an interesting argument. Canterbury’s suffragans did complain about them in the late thirteenth century.!©? However, the tuitorial 163 This convention was discussed in CCAL, MS. D 8, ff. 53-66v. See also X 1.30.1, and discussion in Bodl., Ashmole MS. 1146, ff. 111v—114v. See one archbishop’s letter (1281) in: Reg. Peckham (above n. 29),

172-3. A modern assessment is Antonio Bevilacqua, Procedure in the Ecclesiastical Courts of the Church of England (1956), 31-40. 164 See e.g. Durantis, Speculum iudiciale, lib. IV, pt. 2, tit. De appellationibus $2, nos. 7-9; the connection was made in Precedent book (seventeenth century), WTRO, D5/24/18, fo. 29. 165 e.g. gf. ord. ad Sext 2.2.2, s.v. de consuetudine, referring to this general problem. 166 e.g, Precedent book (fifteenth century), WRO D1/45/1, fo. 1421: ‘tam de statutis eiusdem curie quam de consuetudine laudabili et antiqua pacifice observata.. The same formula is found in KAO, MS.

DRb O 10, ff. 152v—153. 167 See below, Ch. 7: 427-9. 168 Tectura ad X 2.28.17, no. 2; a substantial extract and discussion of this argument is found in:

Select Canterbury Cases, introd., 65-6. 169 Churchill, Canterbury Jurisdiction, i. 428-9.

DEFINITIVE SENTENCES 353 appeal had been in use from at least the early part of that century, if not from before,!7° and it persisted. The archbishops made one concession: tuitorial appeals were not to be allowed in matrimonial causes. But even that concession was but poorly observed in practice.!7! Tuitorial appeals were hard to keep within bounds. The practice of allowing them was extended to the province and archbishops of York.!72 The extension must show that if Canterbury’s rights rested on a special privilege to deviate from the canon law, it was neither so special a privilege nor so

serious a violation of the canon law that sharing the former and deviating from the latter were legally impermissible.

The validity of the tuitorial appeal again became a contentious issue in the context of the Reformation. Retaining a form of appeal that proclaimed the archbishop of Canterbury to be acting as the “handmaid’ of the bishop of Rome would have been out of the question. More substantively, its retention could easily have been thought to violate the statute restricting citation of defendants out of their own dioceses (23 Hen. VIII, c. 9, 1532).!73 As a result, tuitorial appeals disappeared eo nomine. The Court of Delegates never took the place of the papal court in this aspect of ecclesiastical court practice. Yet, this form of appeal did live on, albeit in an

altered and diminished form. Appeals a gravamine to the courts of the archbishop from actions by subordinate diocesan officers continued to be made. They continued to be accepted in the archbishop’s courts.!74 So it remained possible to skirt the

canonical rule that appeals must be made gradatim. The example stands as a reminder of a common feature of the procedural system of the ius commune: the exceptions to the rules could be as significant in practice as the rules themselves. 170 Something like it is mentioned in a letter of 1146; see Letters and Charters of Gilbert Foliot, ed. Morey and Brooke (Ch. 2, n. 159), 93. 171 Churchill, Canterbury Administration, 1. 462; for comments about practice, see Select Canterbury Cases, introd., 68; Woodcock, Medieval Courts, 64. 172 e.g, Aghionby c. Prior of Carlisle (York, 1424), BI, Act book Cons.AB.2, fo. 11: “in quodam pretenso negocio appellationis tuitorie’; Parsons c. Abbot and Convent of Whalley (York, 1492-5), BI, CP.F.283:

‘sentiens se ex premissis gravaminibus...indebite fore gravatum’ (the common formula for making a tuitorial appeal a gravamine); see also David M. Smith, Ecclesiastical Cause Papers at York: The Court

of York 1301-1399 (1988), 91. 173 Canons of 1604, c. 94 in Anglican Canons, 392-5. 174 Clerke, Praxis, tit. 242; Conset, Practice, pt. V, c. 3 § 1, nos. 2, 5. A challenge was made to their legality in Stubbs c. Parkinson (York, 1586), BI, Chanc.AB.12, fo. 108.

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6

Monetary Obligations and Economic Regulation HE canon law claimed a place for itself in areas of life now regarded as having

Drochine whatsoever to do with religion. The church did not consider money and spirit as inevitable enemies, although the movement for apostolic poverty led by the mendicant orders would serve as a reminder that the two were not identical twins. Economic and spiritual interests were not, in any event, parts of human life which the canon law would seek to keep sealed in separate compartments. By the time the classical canon law was being formulated in the twelfth and thirteenth centuries, the church had put behind it the blanket condemnations of commerce and the strictures against the accumulation of goods found in the writing of some of the church Fathers.! Avarice remained a sin. Its seemingly unstoppable rise as time had gone on was condemned by clerics of the highest stature. The clergy was not to take a direct part in trade (Dist. 88 c. 9). The church’s law none the less gave cautious approval to the principal institutions of European commercial life. Much of what the canonists could not altogether approve, they sought to regulate.

The subject itself drew them to it. A certain separation of the church from worldly concerns, which was an aspiration of the Gregorian reformers and was embodied in the canon law, could not have entailed renunciation of contact with the economic life of the laity. In some ways, the canons actually intensified that contact, because the church itself sought to direct the ordinary course of men’s lives. Religion’s reach was long, and the law of the church had something to say about many commercial institutions. Some of the consequent areas of secular life touched by the canon law are well-known and have been explored in detail by able historians. The theory of the just price in commercial dealings, the prohibition 1 For the early period of church history, see Richard Newhauser, The Early History of Greed: The Sin

of Avarice in Early Medieval Thought and Literature (2000) and id., “Towards modus in habendo: Transformations in the Idea of Avarice’ (1989) 75 ZRG, Kan. Abt. 1-22. For the later medieval period,

see John Baldwin, “The Medieval Merchant before the Bar of Canon Law’ (1959) 44 Papers of the Michigan Academy of Science, Arts and Letters 287-99; John McGovern, “The Rise of New Economic Attitudes in Canon and Civil Law, A.D. 1200-1550’ (1972) 32 The Jurist 39-50; Lester Little, Religious Poverty and the Profit Economy in Medieval Europe (1978), 3-41.

356 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

of lending money at interest, and the use of restitution and unjust enrichment as legal remedies—these were all areas where the law of the medieval church concerned itself directly with the market-place. Further areas of regulation existed too, although they are less well-known.” For example, the canon law had some-

thing to say about the legality and division of goods taken from shipwrecks (X 5.17.3); it contained principles applicable to royal taxation (X 3.39.4—5); and it reached even to the regulation of coinage (X 2.24.18).3 Trading with the Turks during wartime was forbidden (X 5.6.12), and commerce with the Jews at any time was restricted (X 5.6.14). What is more, these examples do not count the ‘indirect’ sort of control over secular matters that was claimed by the medieval church. It was meant to be a supple-

mentary control only, exercised only when other sources of control failed. For example, the canon law asserted the legitimacy of opening disputes to spiritual jurisdiction where there had been a “failure of justice’ on the part of the temporal law (X 2.2.10), and in some circumstances it envisioned spiritual intervention in otherwise temporal affairs being exercised in favour of an ill-defined class called miserabiles personae (X 2.2.15). It asserted, moreover, the existence of an apparently open-ended right to intervene in secular matters “by reason of sin’ (X 2.1.13), and its jurisdiction over oaths offered the possibility of regulating many otherwise quite worldly transactions because the parties had invoked the name of God or the saints in entering into their original transaction. Furthermore, the church’s rules about the observance of Sundays and feast days inevitably exerted an impact on commercial life (X 2.9.1).4 Some regulation of commercial dealings was contained in the medieval canon law for reasons peculiar to the church. It did not involve the courts in any regula-

tion of commercial dealings outside the clerical orbit. For instance, the so-called privilegium fori required all clerics to be sued or tried in the spiritual forum. Under the canons they could not be cited to appear before a lay court, and this personal privilege of the clergy meant that there had to be rules in areas of law otherwise outside ecclesiastical competence. Without them, the privilege could not have been implemented. If a cleric were sued for assault, for example, a law 2 See generally John Gilchrist, The Church and Economic Activity in the Middle Ages (1969); John W. Baldwin, Masters, Princes and Merchants: The Social Views of Peter the Chanter and his Circle (1970), i. 228-51, 261-311; Diana Wood, Medieval Economic Thought (2002); Raymond de Roover, “The Concept of Just Price: Theory and Economic Policy’ (1958) 18 Jnl Economic History 418-34; Jean Ibanés, La Doctrine de l’église et les réalités économiques au XIIle siécle (1967); Odd Langholm, Economics in the Medieval Schools (1992); James Gordley, The Philosophical Origins of Modern Contract Doctrine (1991), 40-68.

3 Thomas Bisson, Conservation of Coinage (1979), 166-88; R. F. Wright, “The High Seas and the Church in the Middle Ages’ (1967) 53 Mariner’s Mirror 3-31, 115-35; Peter Herde, ‘R6misches und kanonisches Recht bei der Verfolgung des Falschungsdelikts im Mittelalter’ (1965) 21 Traditio 291-302.

4 C. R. Cheney, ‘Rules for the Observance of Feast-Days in Medieval England’ (1961) 34 BIHR 117-47; James Lea Cate, “The Church and Market Reform in England during the Reign of Henry HI’ in Medieval and Historiographical Essays in Honor of James Westfall Thompson (1938), 27-65.

MONETARY OBLIGATIONS AND ECONOMIC REGULATION 357

was needed to fix how his liability should be determined, and one was furnished (X 5.36.1-9). However, the church did not thereby claim any jurisdiction over assaults involving laymen. The medieval church never asserted a plenary jurisdiction over the affairs of the world. Even when due allowance has been made for special situations and the particular needs of the clergy, the canon law none the less made some large claims. It also

spawned a rich jurisprudence that touched trade and commerce. From that jurisprudence, temporal lawyers could draw inspiration if they chose, but against its implementation they also had to offer resistance, at least they did if their own

courts were not to be faced with a directly competing canonical forum. Had litigants been able to invoke canonical jurisdiction at every point offered by canonical theory, it would have been a rare case where a declinatio fori could legitimately

have been made. As a thirteenth-century Italian civilian wrote with a touch of sarcasm, By reason of sin, the pope intrudes himself into everything. This lawyer certainly knew that any such intrusion would have been regarded as an ‘indirect’ one by a canonist, but he saw its possible outcome clearly enough. The canon law was capable of penetrating into the most secular corners of human life. Temporal lawyers everywhere resisted that possibility, as they were bound to do. They did so with effect. In England, the threat to the jurisdiction of the common law courts never came close to being realized. The privilegium fori was not allowed to the clergy in civil matters, the English church made no real attempt to implement the law relating to muiserabiles personae in its courts, and decisions about goods left from shipwrecks were not treated in the spiritual forum. What contact the English ecclesiastical lawyers had with the law in these areas was academic or incidental.° To take just one example, the civilians would have come into contact with the outcomes of shipwrecks in the admiralty courts, but in the spiritual forum, the nearest they came was prosecuting a man who had seized the opportunity to loot a wrecked ship rather than attending church on All Saints’ Day.”? Whether from fear of royal wrath or habitual acquiescence in English custom, the bishops asserted no claim to jurisdiction over

several aspects of economic life found in the Corpus iuris canonici. The effect of the zus commune on English legal practice was therefore indirect, where any existed at all. This being said, it should be added quickly that it is not the whole story. Some parts of the canon law regulating secular obligations were received in England— enough to require treatment in any general history of ecclesiastical jurisdiction. 5 Odofredus, Lectura super Codice ad Cod. 1(4).1.4, no. 3.

6 See John Bromyard, Summa praedicantium (1486), tit. Consuetudo, arts. 21-35, for a full and interesting discussion of the disputed validity of the custom of wreck, under which ships and their contents were looted by inhabitants of the places where they were washed up. 7 Ex officio c. Samson (Canterbury, 1488), CCAL, Act book Y.4.2, fo. 104. The bishops themselves attended to the English common law when such questions arose; see e.g. the case of a Sandwich wreck (1331) in Literae Cantuarienses, ed. J. B. Sheppard (= 85:1 RS; 1887-9), no. 393.

358 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

BREACH OF FAITH (LAESIO FIDEI) Of the special areas of commercial life where the English ecclesiastical courts asserted their competence, none made a bigger difference to the lawyers who practised there than one that depended upon the law of oaths: the cause called “perjury or breach of faith. It came within the scholastic category of ‘promissory oaths’8 This was an area of natural interest to the canonists. Although God might make no distinction between what a man said and what he swore to do, the church could and did.° The canon law held that the addition of an oath to any promise—even a quite ordinary promise to pay for goods sold or services performed—allowed the

parties to invoke spiritual jurisdiction to enforce the promise (Sext 2.2.3). Lyndwood justified this by saying: “Violation of an oath is a direct irreverence towards God’! He had the company of many learned men, and even some not so learned men, in taking this view. Had he desired, he could even have pointed to precedents from the Anglo-Saxon laws. Lyndwood was not, however, making a claim to exclusive spiritual jurisdiction over sworn promises on behalf of the church, and neither did other canonists. There was ‘accumulation’ of jurisdiction. The underlying contract retained its temporal character in the eyes of the canonists. Suit could still be brought to interpret and enforce it in the temporal forum without any rule of the canon law being breached. The doctrine of praeventio would apply to decide jurisdictional conflicts in individual cases. The ‘overlap’ did mean placing an additional remedy in the hands of the parties, one dependent upon a different way of understanding the transaction, but that was all. In the spiritual forum, it was the oath that was being enforced, not the underlying obligation. In the temporal forum, the reverse was true. In this respect the development within the medieval canon law was, mutatis

mutandis, analogous to what would later occur in the English common law. Most famously in Slade’s Case (1602), the action of assumpsit was allowed to plaintiffs suing to recover a money owed as an alternative to the old writ of debt, in which wager of law was available to defendants.12 Although the common 8 Piero Bellini, L’obbligazione da promessa con oggetto temporale nel sistema canonistico classico (1964); this continued to be a topic in English academic circles; see e.g. Robert Sanderson, De iuramenti promissori obligatione praelectiones septem (1683); and a shorter treatment in Library of D. & C., Durham

(c.1570), Hunter MS. 18A, ff. 136 et seq. 9 See gl. ord. ad C. 22 q. 5 c. 12, s.v. differentiam. 10 Lyndwood, Provinciale, 315, s.v. perjurio; see also BL, Harl. MS. 6718, fo. 38: “Nota quod licet curia

ecclesiastica non deberet cognoscere in temporalibus contractibus, hic ad corrigendum anima pro iuramento cognosci potest. 11 e.g, V Atr 22:2, and I Cn 19:3 in Liebermann, Gesetze, 1. 242-3, 300-1 [ Laws, Robertson, 84-5, 170-1]. 12 Slade v. Morley (1602) 4 Co. Rep. 91; and J. H. Baker and S. FC. Milsom, Sources of English Legal

History: Private Law to 1750 (1986), 420-44; see also Baker, Introduction, 341-50; D. J. Ibbetson, A Historical Introduction to the Law of Obligations (1999), 135-40; A. W. B. Simpson, A History of the Common Law of Contract (1975), 281-302.

BREACH OF FAITH (LAESIO FIDE!) 359 lawyers recognized that the underlying transaction was identical, no matter which route the plaintiff chose, the theory upon which the suit was brought in assumpsit was different. It had the added advantage of allowing trial by jury. But that was incidental. One could choose either to enforce the undertaking (the assumpsit) or to enforce the debt. In most situations either remedy could be sought. This is the same thing as was said by the canonists in a slightly different context. In their case, however, it was a change in jurisdiction, not merely a form of action, that followed from the theory chosen. This way of thinking about the subject was a very obvious way around a jurisdictional rule of the English common law. It allowed the ecclesiastical courts to exercise a jurisdiction that would otherwise have been forbidden to them through a purely verbal trick. Parties had simply to add a form of words to any secular contract and they could invoke the spiritual forum. Ecclesiastical lawyers in the fifteenth century were advising potential creditors to do exactly that.!3 It seems more like a ‘dodge’-— and a pretty obvious one—than it did anything else, and some men at the time did

think it was an illegitimate way of proceeding. The Constitutions of Clarendon (1164), which were part of the quarrel between Henry II and Thomas Becket, announced that pleas of debt belonged within the king’s sphere of justice, whether made with the pledge of [the party’s] faith or without.!4 They were to lie within the exclusive cognizance of the temporal courts. Writs of prohibition, intended to prevent the church from hearing “pleas involving lay debts and chattels; were made available to prevent such cases from being brought before an ecclesiastical forum

under a pretext that only the oath was being enforced.!5 The church was to be allowed to punish the sin of perjury, but not to deal with pleas involving lay debts and chattels under that rubric. Litigation in the Ecclesiastical Forum

Whatever the rule of the common law, the reality was that the courts of the English church came to exercise a very considerable jurisdiction over promises coupled with an oath, and they did so long after the Constitutions of Clarendon had forbidden it. Under the rubric of breach of faith (causae laesionis fidei seu perjuri in the records) the spiritual courts provided a legal remedy for disappointed promisees. They thus offered, by indirection, enforcement of debts and obligations of all sorts. The earliest records of ecclesiastical jurisdiction contain examples of the exercise of this jurisdiction, and by the mid-fifteenth century, it 13 BL, Harl. MS. 6718, fo. 38: “Et si quis vellet deducere placitum in foro ecclesiastico, oportet quod exponere faciat fides cum iuramento solempni interposito. 14 ¢,15 in Stubbs’ Select Charters, 167 | EHD, ii. 722]; Glanvill, lib. X, c. 12; see also Jones, “Relations; 165-9.

15 Flahiff, “Prohibitions; pt. 2, 257-60.

360 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

had become almost a flood.!® Before the Commissary Court at Canterbury in 1417, for example, 148 cases, or slightly more than half of the total number of cases introduced dealt with “breach of faith’ In the second half of the century, the total rose even higher.!” Elsewhere, the numbers were not quite so large, but the pattern

was not different. Laesio fidei causes claimed the lion’s share of litigation in the courts during the middle years of the fifteenth century.!§ They were being heard from the highest to the lowest level in the English court system.19 Almost all of this litigation was contentious. The juridiction gracieuse, common in France, by which

obligations of the laity were entered into and recorded before an ecclesiastical official,2° achieved no more than a toehold in England. Only in the diocese of York

was it adopted in any significant measure.?! Otherwise, disputes fell on the instance side of the courts’ jurisdiction. NATURE OF THE CLAIMS

Most causae fidei laesionis were simple in the extreme. At least they must seem so

to a lawyer. Their facts were simple, and they could be dispatched in one or two court sessions. A typical plaintiff’s positions asserted the following: (1) on a certain day the plaintiff had sold and delivered goods, perhaps an animal or a quantity of grain, to the defendant; (2) the defendant had, then or later, by his oath faithfully promised the plaintiff to pay a sum of money for the goods; (3) the

plaintiff had subsequently requested the defendant to fulfil that oath; (4) the defendant delayed and refused to pay the money and still does refuse to do so; and (5) that the aforesaid were true, public, notorious, and manifest.2? To this plead-

ing of the facts plaintiffs customarily added a claim that they had been injured (in some unspecified way). At the end there was a prayer for relief, usually simply a request that the defendant be canonically punished for perjury or for failing to observe his own oath.?3 The nature of this prayer should not disguise the aim. Specific performance of an undertaking to pay money (or deliver goods) was what was being sought in most cases. It was a controversial question among the jurists whether debtors could be directly compelled to pay a secular obligation by 16 Early cases: see Select Canterbury Cases, introd., 96-7; C. R. Cheney, Hubert Walter (1967), 73. 17 Woodcock, Medieval Courts, 84, 89-92.

18 Figures are given in Canon Law and the Law of England, 283-4. 19 Poos, Lower Courts, 1. 20 Paul Fournier, Les Officialités au moyen dge (1880), 295-8; Louis Carolus-Barré, ‘L’Organisation de

la juridiction gracieuse a Paris dans le dernier tiers du XIlIle siécle’ (1963) 69 Le Moyen Age 417-353 Ingeborg Buchholz-Johanek, Geistliche Richter und geistliches Gericht im spdtmittelalterlichen Bistum Eichstitt (1988), 72-89. 21 ‘Condemnationes factae coram magistro Willelmo de Stanes auditore’ (York 1315-33), YML, MS. M 2(1)a, from the courts of D. & C., York; see also Swanson, Church and Society, 167. 22 Chatt c. Foster (York 1511), BI, CP.F.321.

23 e.g, Dobynson c. Fulbrige (York, 1504), BI, D/C.CP.2, fo. 24v: “[The plaintiff] peciit eundem Fulbrige canonice puniri pro eo quod violavit fidem suam’

BREACH OF FAITH (LAESIO FIDEI) 361 spiritual sanctions.24 However, under the canon law, a party could not normally be absolved from a sentence of excommunication, which would follow disobedience of a court order, without making restitution to the party injured. It was a

natural shortcut to conclude—and to order—that defendants in causae fide laesionts should fulfil promises they had sworn to perform.?5 The unilateral nature of the promises being sued upon in these cases deserves emphasis. The courts enforced sworn promises, not bargains. That many of the

promises were made in a commercial setting was legally irrelevant, except in unusual situations. The promise and the oath that had accompanied it were what mattered. If the promise were conditional, of course, that might change the analysis and outcome. Non-performance of a condition would excuse the defendant, for he had promised no more.?¢ But this would happen only if the condition were express, and it would not fundamentally change the nature of the church’s

jurisdiction. The theory that lay behind the cases demanded that there should have been a promise, supplemented by some form of oath. The theory required that plaintiffs plead that there had been a pledge of faith on the part of the defendant. It was a separate matter from the underlying obligation. Some of the canonists did toy with the idea that a simple promise should suffice to support a legal action. Rejecting the inherited Romanism—ex nudo pacto non oritur actio (Dig. 2.14.7.4)—they conceived that the principle of fidelity to one’s word required that any promise, sworn or unsworn, should give rise to a legal remedy.?” Indications have been found that this consensualist doctrine was occasionally put into effect in France.28 However, there was also respectable opinion on the other side among the canonists—it may have been a prudent desire to limit the doctrine’s reach to the penitential forum. As a matter of ordinary practice the purely consensual position was not accepted in the English ecclesiastical courts. In a Canterbury case from 1461, for example, a promise to pay a debt for the sale of grain between the parties was apparently admitted in the first court session, but the judge went on to set a further term ad libellandum on the question of whether a pledge of faith had accompanied it.?9 In a York case from 1496, the plaintiff

claimed the defendant had said, “By my faith ye shall be content and paid’ 24 See Tilman Repgen, Vertragstreue und Erfiillungszwang in der mittelalterlichen Rechtswissenschaft

1. | an Rodyng c. Baker (Hereford, 1493), HFRO, Act book I/1, p. 95: “Unde monitus est quod

perimpleat promissum suum citra vigiliam Michaelis’. 26 e.g. Glew c. Boys (York, 1520), BI, D/C.AB.2, fo. 235, a promise conditioned upon the worth of a horse being sold. 27 See generally Francois Spies, De observation des simples conventions en droit canonique (1928), 35-1383

Bellini, Vobbligazione da promessa (above n. 8), 144-51. 28 Lefebvre-Teillard, Les Officialités, 225. 29 Bygge c. Mydelton (Canterbury, 1461), CCAL, Act book Y.1.7, fo. 88v: ‘Ad libellandum quoad promissionem fidet.

362 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

The defendant admitted saying only, “[I]f my wife pay you not for the malt...I shall or I shall lay my land in pledge for the money.%° The exact nature of the words mattered. Many depositions of witnesses confirm that the pledge of faith was by no means a legal fiction. One witness in a Canterbury case testified that the defendant had said: “By my faith I shall faithfully observe the agreement I made with you if God shall give me life’.3! It was claimed that he had been holding up his right hand at the time. This man obviously knew what he was doing. It would go beyond the

available evidence to assert that the English courts never enforced a promise ‘uncloathed’ by an oath. Indeed, an occasional entry from the medieval act books invites scepticism about how absolutely the requirement was observed.32 In the great run of cases, however, the oaths alleged were quite real. As in the stipulatio of Roman law, verbal formality had legal consequences in the canon law—and for the most part beneficial consequences. Adding a pledge of faith to an obligation and a promise rendered it subject to ecclesiastical jurisdiction.*? The unilateral character of the legal notion behind these causes meant they would be available in a wide variety of situations. Most causae fidei laesionis involved buying and selling, but this was not a limitation inherent in the theory on which they were brought. Promises to accept arbitration awards, to provide marriage portions, and to convey land all appear in the records.34 Allegations that a defendant had not fulfilled a promise to find a surety for another person, to obey the statutes of a municipal guild, or even to pay a priest for saying Mass for the soul of the defendant’s late husband also feature in litigation.3> A ‘personal service’ contract, such as an

apprenticeship agreement or a promise to do ‘journey-work, came within the church's jurisdiction, as long as it had been made with a pledge of faith.>° Many of the causes found in the act books arose out of promises made in the course of secular or ecclesiastical litigation.?” It was a normal practice. Oaths were 30 Rawson c. Vicars, BI, D/C.CP.1496/2. 31 Asshforde c. atte Crouche (1410), CCAL, Act book X.10.1, fo. 231.

32 e.g, Tompson c. Eden (Salisbury, 1478), WTRO, Subdean’s Act book D/4/3/1, fo. 84: “et quia ex probatione testis liquet de debito, iudex condempnavit ream in dicta summa ix d. et iniunxit eidem ut satisfaciet actor1.

33 Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition

(1990), 68-72. 34 These and others are found in Canon Law and the Law of England, 267-8. 35 See Ex officio c. Bennys (London, 1473), GL, Act book MS. 9064/2, fo. 5v; Ex officio c. Kyng (London, 1486) in ibid, fo. 163r; Hesill c. Brigham (York, 1393), BI, CP.E.194. 36 Willingham c. Symakr (Lincoln, 1346) in Poos, Lower Courts, 198; apprenticeship of Thomas Best (York, 1373), YML, Act book M 2(1)c, fo. 12; Mortimer c. Daye (Durham, 1492), Library of D. & C., Durham, Act book, C.B.Pr.Off., ff. 35v—36.

37 Atte Mede c. Horn (Canterbury, 1375), CCAL, Act book Y.1.1., fo. 105; Byrcholt c. Cophurst (Canterbury, 1416), cited in Woodcock, Medieval Courts, 91-2; Heyr c. Wryght (London, 1495), GL, Act book MS. 9064/6, fo. 178.

BREACH OF FAITH (LAESIO FIDE!) 363 regularly imposed on parties to litigation in the ecclesiastical courts. They were required, for example, to pledge their faith that they would obey the lawful dictates of the judge, pay all legitimate expenses, and respect orders of sequestration. If they later disobeyed any of these, they could be prosecuted for perjury. They would have

violated their oath. Like the crime of perjury in the modern world, the church's jurisdiction over oaths was used for a variety of purposes, some quite unrelated to a concern for sanctity of the oath. When the church’s jurisdiction over oaths was lost, as it was around 1500, the civilians faced a real problem in finding an adequate replacement to bind parties in litigation to obey the mandates of the judges. They

were required either to make greater use of penal bonds or to rely on promises backed only by the inherent disciplinary powers of the spiritual courts.38 The intricacy of the church’s law of oaths was little in evidence in the causes brought before the courts. According to the law of the church, some oaths would not be enforced. Oaths for illegal purposes—to commit murder or to live in continuing adultery, for example—were invalid under the canon law (C. 22 q. 4c. 23; X 2.24.24), but none appears in the surviving records. If they were made, such promises were not sued upon. Similarly, under the canon law many sworn promises were to be observed despite possible infirmities of intention.79 An oath made under a mistake of fact, for example, could be avoided only under a quite narrow set of circum-

stances. The canon law saw virtue in living up to the terms of some foolish or mistaken promises (C. 22 q. 4 c. 23; X 2.24.18). However, this doctrine too did not arise in litigation so far uncovered. The great majority of cases brought under this heading turn out to have been

about money—the sworn promise to pay a certain sum in return for goods or services. The normal setting was a commercial one. It was also a commerce of a relatively low level. Virtually all the surviving cases involved oral promises, and the amounts at issue in them were not great. At Canterbury in 1483, for instance, the average sum sued for was 12s. 1d., the lowest being 12d. and the highest £6 6s. 6d. At Hereford in 1492, 13s. was the average, the lowest being 3s. and the highest 32s. 4d. In the commissary court at London in 1463, the average was 8s. 1d., the lowest being 14d. and the highest 38s.4° It might not be entirely fair to describe the ecclesiastical courts as serving as a forum for “petty debt litigation’ while they masqueraded as punishing the sin of perjury, but this dismissive phrase does capture something of the character of most of the fifteenth-century litigation. 38 Robert C. Palmer, Selling the Church: The English Parish in Law, Commerce, and Religion, 1350-1550 (2002), 50-4.

39 See generally Jules Roussier, Le Fondement de Tobligation contractuelle dans le droit classique de lEglise (1933); Spies, De Pobligation (above n. 27); Jan Hallebeek, ‘Actio ex iuramento: the legal enforcement of oaths’ (1990) 17 Ius commune 69-88. 40 The figures are taken from Act books: CCAL, Act book X.8.3; HFRO, Act book I/1, GL, Act book MS. 9064/2.

364 MONETARY OBLIGATIONS AND ECONOMIC REGULATION DEFENCES AND LEGAL COMPLICATIONS

Despite the simplicity of most causae fidei laesionis seu perjuri, questions of law did sometimes arise. Under some circumstances, for instance, it was possible to object that a contract was invalid because it had been coerced. Occasionally that objection was made.*! Prior settlement of the underlying controversy was also a response available to defendants. It too was made.42 Most prevalent, however, were defences which confirm the point just made—the centrality of the oath for the church’s jurisdiction. That is, defendants admitted the obligation, but denied having sworn to meet it. For example, in a 1456 cause, one defendant ‘admitted

that he had purchased a horse’ from the plaintiff, but “he denied that he had pledged his faith for the half a mark’ due for the horse, as the plaintiff claimed. In another cause, brought in 1496, the defendant admitted to having purchased parchment worth 5 1/2 d. from the plaintiff, “but he denied any promise’ to pay for it.44 In a third cause, from 1439, the defendant ‘offered to the plaintiff that if he could prove by any witnesses that he had pledged his faith, he would submit to him’.45 Otherwise he would not. These were permissible answers under the ecclesiastical law as it was applied in England, obviously dependent upon the requirement of a pledge of faith.

Other defences were also possible. That a promise had been made upon a condition that had not been fulfilled was one of the more common justifications for not paying found in the records. A promise to pay for the purchase of a horse, so one defendant claimed, had been made conditional upon certification of the animal’s soundness by a third person, and his approval had not been forthcoming.*¢ A promise to pay a sum of money to the plaintiff, another claimed, had been made conditional upon the plaintiff’s holding him harmless as to the executors of a man recently deceased, and he had not done so.*” In a very small number of these cases, it is not wholly clear whether the condition had been expressed at the time of the

contract, and the possibility that the courts were importing a warranty does exist. A defect in the quality of limestone sold was proffered as a defence in a case heard at Durham in 1497, for example, and the record does not contain an allegation that this had been an express term when the promise had been made.*8 41 e.g, Barbour c. Lynche (Canterbury, 1420), CCAL, Act book Y.1.3: “Dicit pars rea quod nunquam prestitit sibi fidem nisi compulsus’. 42 Sturmy c. Gat (Canterbury, 1455), CCAL, Act book Y.1.5, fo. 79: the defendant alleged that the plaintiff had accepted grain in satisfaction of the amount claimed. 43 Savyn c. Gray (Canterbury, 1456), CCAL, Act book Y.1.5, fo. 125: ‘fatetur quod emit equum pro marca de quo solvit vii s. negat tamen fidem se fecisse pro dimidia marce’. 44 Dasse c. Thomas Scriptor (Durham, 1496), Library of D. & C., Durham, DCP C.B.Pr.Off., fo. 100. 45 Taylour c. Rodyone (Rochester, 1439), KAO, Act book DRb Pa 1, fo. 112.

46 Watson c. Gibson (Durham, 1492), Library of D. & C., Durham, DCP C.B.Pr.Off., ff. 42-43. 47 Anon. (Canterbury, 1472), CCAL, Act book Y.1.10, fo. 138. 48 Fery c. Meryner (Durham, 1497), Library of D. & C., Durham, DCP C.B.Pr.Off., fo. 102.

BREACH OF FAITH (LAESIO FIDEI) 365 The rarity of such legal disputes about conditions and other complicating factors still deserves more emphasis than their existence. Disputes over the lawfulness of the transactions behind the promise arose very rarely in English court practice. The law held that every enforceable promise should be supported by a legitimate causa. Without it, words that had not been meant seriously or had been uttered by mistake might be the source of liability.49 The English courts must have understood and followed this doctrine, for where causae fidei laesionts were fully pleaded, the pleading always included a statement of the causa that lay behind the promise. Plaintiffs never alleged promises in a vacuum and sometimes they took care to note expressly that the defendant’s promise had been made ex certa causa licita et honesta.>° Despite this apparent care in pleading, only one case invalidating a promise for lack of legitimate causa has so far been found, despite long searching. It comes from the diocese of Gloucester, and involved a promise by the rector of a parish to allow the parishioners the right to choose their own curate in return for a yearly payment of £30. The judge held the promise was ‘merely void in law, and strangely enough, he used the term that would become familiar in the English common law rather than the civilian’s causa. This agreement, it was held, had been ‘yielded unto and granted upon no consideration.>! Hostiensis summed up canonical learning on the point by saying that pacta should always be kept unless it could be shown that they were either against the law, contra bonos mores, or fraudulent.52 What we can see of the realities of English practice is entirely consistent with his statement. REMEDIES

The normal remedy in cases dealing with breach of faith was an order to ‘unbreach’ that faith—in other words, to fulfil it by observing the promise the defendant had made. In most cases, this meant the payment of a sum of money. The courts were

willing to work out what might be called ‘payment plans’ where the defendant could not pay all at once. In a 1473 case involving a promise to pay £6 6s. 8d. for example, the judge ordered him to pay 6s. 8d. every quarter until the full sum had been paid.>3 If the defendant could not pay at all because of his poverty, the courts were willing to admit this as an affirmative defence, although it had to be proved and most paupers were required to take an oath to pay if and when ‘they should be restored to more copious fortune.*4 Also regularly found in the records were causes 49 Zimmermann, Obligations (above n. 33), 546-59; Simpson, Law of Contracts (above n. 12), 384-6. 50 Hunte c. Bygelle (Hereford, 1500), HFRO, Act book 1/3, p. 48. 51 Rector of Minchinhampton’s Case (Gloucester, 1535), GRO, Visitation book GDR 189, fo. 36. 52 Lectura ad X 1.31.1, no 6.

53. Cristian c. Geret (Canterbury, 1473), CCAL, Act book Y.1.8, fo. 324v. 54 Ex officio c. Oslack (York, 1332), YML, Act book M 2(1)a, fo. 39: ‘iuravit solvere quamcito facultas

ad id optulerit. Other pleas of poverty: Peer c. Maydeston (Canterbury, 1462), CCAL, Act book Y.1.7, fo. 146; Smyth c. Bordell (Durham, 1497), Library of D. & C., Durham, DCP C.B.Pr.Off., fo. 105; Cotes c. Storche (Rochester, 1443), KAO, Act book DRb Pa 1, ff. 365v, 375v.

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that were either compromised for a lesser sum or submitted to arbitration. In other words, the theory that the binding character of an oath was involved did not keep the courts from reaching a result based upon reason and agreement by the parties. Debtors were not excommunicated where there was a reasonable alternative.

In cases where an order of specific performance would have been either inappropriate or impossible, the judges ordered public penance to be performed. There was always a disciplinary side to the English church’s jurisdiction over sworn promises. Perjury was an ecclesiastical crime as surely as usury was, and

ex officio prosecutions for perjury were brought before the courts. For any defendant in one of them, having to appear on Sunday in a parish church wearing a white sheet and carrying a candle was always a possible outcome of having violated an oath. This occurred even in some causae fidei laesionis seu perjuri that were brought as instance causes.>> If this class of litigation often seems like nothing but the collection of petty debts, therefore, it should also be said that this is not all it was.

Disappearance of the Laesio fidei Jurisdiction Given the availability of writs of prohibition to prevent suits over lay debts and chattels being heard in the spiritual courts, it is remarkable that so many were heard. It must have been quite obvious to all who cared to look that the jurisdictional rules of the common law were being ignored, indeed openly flouted, by the courts in the exercise of their jurisdiction over perjury. Specific performance, in effect, was being ordered, not just public penance. English civilians admitted it.5° Why did not more defendants take advantage of writs of prohibition to prevent them from doing so?

This has not been an easy question to answer. The answer found in the medieval records is a formal one. Libels used in causae laesionis fidei were always

composed to avoid mentioning the debt. They alleged only that the defendant had committed the crime of perjury and incurred the guilt attaching to it by violating a sworn promise. The prayer for relief asked only that he be punished by canonical sanctions. What the case was really about (as we would say) would have been revealed only in the positions submitted later on in the cause. In medieval practice within the royal Chancery, writs of prohibition were issued and the availability of writs of consultation was settled upon inspection of the canonical libel. This limitation meant that the officials there would have had no reason for intervention on the basis of libel they had before them.5” Lyndwood 55 e.g. Atte Wode c. Lynford (Canterbury, 1464), CCAL, Act book Y.1.6, fo. 4ov.

56 William of Drogheda, Summa aurea, c. 67 in Wahrmund, Quellen, ii. 66-7. 57 Fuller evidence on this point is given in Canon Law and the Law of England, 71-5.

BREACH OF FAITH (LAESIO FIDE!) 367 himself advised litigants to compose their libels accordingly, saying they would thereby avoid writs of prohibition.*® The difficulty with this explanation is that it is impossible to believe. At least it is hard to believe it, however well attested it may be. Can hitting upon a solution to the problem have been beyond the intellectual capacity of the common lawyers? That seems unlikely. On this account, two other suggestions have been made. One is that the small amounts of money at stake in most breach of faith cases discouraged the defendants in them from securing writs of prohibition. It was a calculation about the cost and the chances of success that ruled out their use as a matter of course. As a matter of fact, it would often have been cheaper to

pay the debt than it would have been to secure the prohibition and follow it through to a conclusion. The courts of the church were not without sanctions of their own in skirmishes over jurisdiction with the royal courts, and rational litigants knew this.

The second explanation is that the church’s jurisdiction rested upon two outside influences: first, a social consensus about the place of religious obligation in ordinary life, and, second, weaknesses inherent in the medieval law of contract

in the secular courts.59 The availability of wager of law, the need for a quid pro quo, and the requirement of a sum certain in actions of debt restricted the utility of the old action of debt in the common law. Actions of covenant required a written instrument, and medieval actions on the case were designed to remedy tortious wrongs, not breaches of contracts.© The consequent dissatisfaction with

the common law, a dissatisfaction that would later lead to the development of indebitatus assumpsit, when coupled with a respect for the idea that perjury was a sin even where it occurred in a commercial setting, was enough to allow the church’s medieval jurisdiction in breach of faith litigation to continue largely unimpeded. The end of this state of affairs does not tell us definitively which of these three explanations is correct. It may be compatible with them all, though its compatibility with the first, the formal explanation, is the easiest to see. Whatever the

explanation is, the obstacle was at length overcome. Beginning in the second half of the fifteenth century, the church’s jurisdiction over breach of faith came under attack. It was then that a way around the limitations of medieval writs of 58 Lyndwood, Provinciale, 315, s.v. perjurio: “Ex predictis colligi potest practica libellandi in causa perjurii ad evitandum prohibitiones regias. 59 See e.g. David Millon, “Ecclesiastical Jurisdiction in Medieval England’ (1984) University of Illinois Law Review 621-38, at 634-6; Charles Donahue, Jr., ‘Roman Canon Law in the Medieval English Church: Stubbs vs. Maitland re-examined after 75 Years’ (1974) 72 Michigan Law Review 647-716, at 701.

60 See Milsom, Historical Foundations, 245-8, 250-62; Simpson, Common Law of Contract (above Nn. 12), 53-196.

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prohibition was found, namely an expanded role for the Statute of Praemunire (16 Ric. II, c. 5, 1392).6! The statute prohibited pleas that belonged to royal jurisdiction from being brought ‘in the Court of Rome or elsewhere, and by 1465 the king’s justices had decided that the word ‘elsewhere’ could be read broadly. It could include courts within the realm of England. The statute threatened

more serious penalties than did writs of prohibition: forfeiture of goods and lands, indefinite imprisonment, and loss of the king’s protection. Actions brought on the statute thus ‘raised the ante’ against anyone bringing a causa fidei laesionis before an English ecclesiastical court, and the method of pleading used in them allowed a relatively complete version of the facts to be put before the judges.

Apparently under pressure of private actions brought upon this statute, the church’s jurisdiction over promises gradually disappeared. The loss began in the 1490s, and by the first decade of the sixteenth century, what had been a torrent became a trickle. By the 1530s it had dried up almost completely.® Thereafter, although it is not impossible to find an occasional causa fidei laesionis among

the church court records of the sixteenth and seventeenth centuries, the church’s jurisdiction over sworn promises was essentially moribund. It was eventually restricted to perjury committed in an ecclesiastical court. It was not among those aspects of their medieval heritage that the English civilians sought to preserve.

OTHER MONETARY OBLIGATIONS Breach of faith causes do not exhaust the subject of the monetary obligations that came within the jurisdiction of the medieval church. In the former, the existence of the oath was thought to make ecclesiastical jurisdiction appropriate, but other obligations to pay money were brought before the courts without that justification. In these other cases it was either the spiritual nature of the underlying transaction or a connection with some other aspect of ecclesiastical jurisdiction that justified the church’s claim to competence. None of them figured as largely in English court practice as had the secular contracts based on the concept of fidei laesio, but some of them lasted longer. 61 See W. T. Waugh, “The Great Statute of Praemunire’ (1922) 37 EHR 173-205; Baker, Spelman Introduction, 66-70. 62 Figures are given in Canon Law and the Law of England, 283-4; for a contemporary comment, see Doctor and Student, 232. 63 e.g, Lakes c. Tisdall (Canterbury, 1601), CCAL, Act book Y.3.3, fo. 12, styled ‘negotium lesionis fider. The Act book gives no indication of the details. 64 See Clerke, Praxis, tit. 132; Cosin, Apologie, pt. 1, c. 8.

OTHER MONETARY OBLIGATIONS 369 Annual Pensions Apart from breach of faith, the monetary obligation that gave rise to the most litigation in the ecclesiastical courts during the Middle Ages was the ‘annual pension. Defined as ‘a certain portion taken out of a benefice with cause and during less than an indefinite period,® the annual pension was the rough ecclesiastical equivalent of the annuity in the common law. In this context, pensions played an important role in adjusting monetary rights of the clergy inter se. They served, for example, to help settle disputed claims to benefices. They were also commonly used during the Middle Ages to provide stipends for chantry priests. Where there was pressing need, they were employed as a way of establishing charitable ‘trusts’ for the benefit of individual churches and the clergy who served in them.*% No special title in the Decretals was devoted to the subject, but annual payments were a very common form of obligation in the Middle Ages, and they were mentioned and treated as a legitimate payment at several points in the Decretals (e.g. X 3.5.30; X 5.3.17). They met a need. For instance, they played a large part in financing papal government, for the popes might burden a church with a pension payable to the apostolic see.®8 Papal provisions to benefices also commonly mentioned pensions being attached to churches, and it would have been essential in any event that rules be established to clarify their status in law (Sext 3.4.4). The canon law would require that there be a legitimate causa for the grant of an annual pension— provision for the poor, or study at a university being standard examples—although the ordinary presumption was that a pension granted by the pope had been made with good cause.® It was a subject the canonists could not have ignored. Canonical approval of annual pensions was not an altogether forgone conclusion.” For one thing, long-lasting pensions might impoverish benefices and other ecclesiastical offices to which they were attached. Incumbent clergy might suffer from them. For that reason, the law required episcopal approval of the assignment of a pension out of a benefice (X 3.5.10). Under Queen Elizabeth, Parliament would pass a statute against grants of annual pensions (13 Eliz. I, c. 20, 1571), incorporating some of the same objections and limitations found in the canon law.7! It seems to have been no more successful than its predecessors in curbing the practice. 65 Girolamo Giganti, Tractatus de pensionibus ecclesiasticis, Quaest. 1.

66 FNB 339 (*151). In some circumstances, the common law gave the annuitant an election to sue either in the spiritual or temporal forum; see ibid. 114 (*51b). 67 e.g, Ex officio c. Godehewe (Canterbury, 1397), CCAL, Act book Y.1.2, fo. 67v (3d. annual payment

out of revenue of land to keep lamp in church). 68 See Barbara Hallman, Italian Cardinals, Reform, and the Church as Property, 1492-1563 (1985), 46-65. 69 Petrus de Tonduti, Tractatus de pensionibus ecclestasticis, C.1, no. 7; C. 33, no. 14.

70 Instructive is Francis Plowden, Treatise upon the Law of Usury and Annuities, pt. II, c. 2 (1797),

esp. pp. 298-303. 71 Compare Tonduti, De pensionibus (above n. 69), C. 39, nos. 5-10.

370 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

More immediate obstacles to canonical approval of granting annual pensions also presented themselves. Pensions were used as a way of avoiding the usury laws,’72 and as employed in English practice as at the papal court itself, they risked association with simony. Even the jurists who looked with favour on them admitted that annual pensions lent themselves to abuse on this score. Most pensions were payments made out of spiritual revenues, and they were closely connected with transactions by which ecclesiastical offices were acquired or exchanged. They could

therefore easily slip over the line that separated licit from illicit agreements. The communis opinio among the jurists held that they did not necessarily cross it, but the conclusion depended on careful distinctions; some would say, thin distinctions.

Intellectual effort on their part was required to reach the result that made a legitimate place for annual pensions. An example will show this. Many had their

origins in settlement of disputes over rights in ecclesiastical benefices. Rival claimants to benefices compromised, the ‘loser’ taking an annual pension in lieu of the benefice he had at first claimed as of right.73 On its own, this must have seemed quite a sensible way to proceed, but it would undoubtedly have been simony for the successful claimant to pay money to the benefice’s patron to acquire the benefice. Was it any less simoniacal for him to pay money to a rival claimant to a benefice instead? The result would have been the same. This was not

an unusual dilemma in the canon law,’4 and the communis opinio among the jurists concluded that, despite appearances, it was not necessarily the same thing. The reason, justification, and the persons were different.75 For many purposes, an ecclesiastical benefice was treated as an income stream in the canon law, and the

law raised no objection to the division of that stream where good cause for doing so could be shown and where the stream did not flow into the possession of a layman.’¢ Tithes could lawfully be divided in different ways among the clergy. Why should annual pensions be treated in any other fashion? Moreover, their 72 See Paul Ourliac, ‘La Théorie canonique des rentes au XVe siécle’ in Etudes historiques a la mémotre de Noél Didier (1960), 231-43, at 233, 241; an example from English practice: Ex officio c. Coly

(Hereford, 1518), HFRO, Act book O/27, p. 44. The defendant did not appear. See also Stanley Chodorow, “Custom, Roman Canon Law, Economic Interests in Late Twelfth-Century England’ in Grundlagen des Rechts, 291-9; Philippe Godding, ‘Wilhelmi Bont Lovaniensis De redditibus perpetuis et ad vitam’ (2000) 68 TRG 257-67. 73, See e.g. Case of Church of Acton (1160 X 1182) in Archidiaconal Acta, no. 23; Dispute over Wolford Church (Worcester, 1254), EEA 13: Worcester 1218-1268, ed. Philippa Hoskin (1997), no. 168. 74 e.g. the confidentia beneficialis, whereby benefices were transferred subject to a secret trust. See J. Deshusses, “Confidence, DDC, iv. 67-71. It was the object of vigorous reform efforts in the wake of

the Council of Trent. 75 See gl. ord. ad X 3.5.21. 76 Panormitanus, Commentaria ad X 1.3.31, nos. 5-6; Augustinus Barbosa, Praxis exigendi pensiones, Proem., no. 10, the latter holding that papal authorization normally excluded taint of the sin of simony. See also the conclusions of Storey, ‘Ecclesiastical Causes in Chancery’ in Study of Medieval Records, (Ch. 3, n. 118), 236-59, at 252-3; Cheney, From Becket to Langton (Ch. 2, n. 86), 122-5.

OTHER MONETARY OBLIGATIONS 371 utility in the church’s interests was apparent. It could not have been unlawful to provide adequate support for a superannuated vicar, and annual pensions were an obvious way of doing so.7”

As one might expect from the nature of the institution, virtually all the parties in the causae annuae pensionis that came before the English ecclesiastical courts during the Middle Ages were in holy orders. This was what was envisioned in Circumspecte agatis,’® and virtual limitation to clerical litigants fitted the canonical understanding of the subject. Pensions were about money and ought to be determined by the status of the litigants. The exclusion of the laity was not invariable however. Laymen—the king himself—held annual pensions paid out of the revenues of religious houses or benefices in order to maintain his chaplains.79 There were also cases where laymen had been granted annual pensions as a way of ‘buying out’ their interests in spiritual property. In addition, after Dissolution of the monasteries, laymen succeeded to rectories, and this involved them in disputes about annual pensions attached to those rectories.8° But even then, by and large, it was a clerically dominated area of litigation. Just a few more things can be said about the subject. The scenario just mentioned, in which rival claimants ended a dispute over a benefice by establishing a pension, was not an infrequent occurrence.*! It easily gave rise to litigation later on, when the merits of the controversy were forgotten and the pension had begun to seem like

one more onerous charge on spiritual revenues. Just as common—probably more common in fact—were divisions of tithes or other parochial revenues made between monastic impropriators of parish churches and their incumbents.82 They too were the source of subsequent disputes. They too arose from the settlement of disagreements. Unfortunately, in many cases found in the surviving act books, little more can be said about them than that some form of consensual settlement between ecclesiastics had been the inception of the obligation.® 77 See e.g. Case of Thomas My (Lincoln, 1446) in A. Hamilton Thompson, The English Clergy and their Organization in the Later Middle Ages (1947), 241-3; Case of Boteler (1414) in Reg. Hallum, no. 466.

In the closely related case of a payment made as part of the exchange of benefices, dispensation from the Court of Faculties was thought necessary; see Anon. (c.1600), BI. Prec. Bk 11, fo. 34V. 78 SR, i. 101: “[I]tem si prelatus alicuius ecclesie petat pensionem a rectore sibi debitam’. For a good

example of the permeability of the distinction, see Roy Haines, “The Dispute between the Bishops of Winchester and the Archdeacons of Surrey in id., Ecclesia anglicana: Studies in the English Church of

the Later Middle Ages (1989), 106-25, at 112-14. 79 PNB 512-13 (*231). 80 This, for example, is what is found in a late sixteenth-century formulary, BL, Harl. MS. 5105, fo. 172v (‘Libellus in causa subtractionis spiritualis pensionis’). 81 See J. W. Gray, “The Ius praesentandi in England from the Constitutions of Clarendon to Bracton’ (1952) 67 EHR 481-509, at 506. 82 e.g, P. & C. of St Gregory c. Garnon, rector of Pluckley (Canterbury, 1398), CCAL, Act book Y.1.2,

fo. 132: ‘Dictus prior peciit annuam pensionem nomine decimarum de Plukle’. 83 Churchwardens of St Mary Magdalene c. Bret (Canterbury, 1417), CCAL, Act book Y.1.3, fo. 51v.

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In a few of the cases in which laymen were involved, the ‘concept’ of an annual pension seems to have been stretched to cover annual rent due from houses or land held by a parish church and leased to a layman. The money was called a ‘pension’ or ‘annual rent’ in an effort to bring it within a recognized category of ecclesiastical

causes. These cases skated even closer to the edge of ecclesiastical jurisdiction than did suits between ecclesiastics, and writs of prohibition from the royal courts are to be found in cases dealing with annual pensions with greater frequency than their numbers overall might suggest.84 The church none the less preserved its jurisdiction over annual pensions well into the seventeenth century.8> The royal courts were prepared to admit at least a modicum of ecclesiastical jurisdiction over them, and their utility was evident to the civilians.8°

Particularly noteworthy from a lawyer’s perspective were the cases where a fault in the establishment and continuation of an annual pension was alleged. Failure to observe canonical rules led naturally to later disputes.87 In a case dealt with at York in the late fifteenth century, for example, a parson had resigned his rectory into the hands of the archbishop’s vicar general, who assigned a yearly pension of 7 marks to him in return. His successor, who the record hints may have played a role in the transaction, subsequently refused to pay the pension. As justification for refusal to pay the pension, he alleged the absence of a valid causa in the original assignment, the lack of consent by the patrons of the benefice, and the likely impoverishment of the benefice if he were forced to meet the obligation.*8

These were not idle contentions, and they were similar to objections raised in other cases.89 One can see why he objected—and it would not have been for legal reasons alone. It was regularly asked in inquests about vacant churches whether

or not they were burdened by an annual pension. The relatively large sums at issue in some of the litigation over annual pensions show that the question was one that would have made a substantial difference to the income of the men involved.%° 84 See Select Canterbury Cases, introd., 79; Canon Law and the Law of England, 82; for examples, see P. & C. of Blyth c. Kelk (York, 1384), BI, CP.E.250; Lord c. Bishop of Lincoln (York, 1364-5), BI, CP.E.172;

the clerical complaint (1285), in: C. e& S. I, pt. 2, 971; and the slightly ambiguous statute on the point:

34 & 35 Hen. VIII, c. 19 (1543). 85 Clerke, Praxis, tit. 132. 86 e.g, FNB 114-15 (*51b); Gilby v. Williams (KB 1623), Cro. Jac. 666; Bishop of London v. Smith (KB 1668) 1 Ventr. 3.

87 See e.g. Statutes of Chichester II, c. 34 (1289), in C. & S. ID, pt. 2, 1088, suggesting the existence of ‘real simony’ in transactions between monastic houses and vicars. 88 Puesey c. Rudby (York, 1491), BI, CP.F.281, the church of Foston being the parish at issue. No result survives. A similar case is contained in a Precedent book (Canterbury, c.1600), CCAL, Z.3.27, fo. 12. The question of the necessity of the patron’s consent is discussed at length in Tonduti, De pensionibus (above Nn. 69), C. 25.

89 See e.g. the forms in a Precedent book (sixteenth century), MLD, MS. Z.3.1.18, ff. 49-51. 90 Swanson, Church and Society, 55-8.

OTHER MONETARY OBLIGATIONS 373 Testamentary Debt To die either owing money or being owed money is not an unusual event today, and it was not unusual during the Middle Ages. Testamentary executors and administrators were charged with paying the former and collecting the latter. As they are today, most such claims could be dealt with informally, simply by notification and (if necessary) negotiation. But some debts inevitably became the subject of litigation, and in them the inevitable question was where the litigation would occur. In England, the courts of the common law were available for debt claims made by and against executors from the reign of Edward I, and writs of prohibition were therefore made available to prevent the courts of the church from hearing cases involving testamentary debts. As Maitland said, in the eyes of the common lawyers, they were not among the ‘testamentary causes’ that fell to the church.9! A window was left open to the spiritual forum.%? But it was a narrow opening, and despite their connection with probate of decedents’ estates, the common law held consistently that debt claims involving decedents did not come within ecclesiastical jurisdiction. The consistory court records tell a different story.9> Suits dealing with testament-

ary debts formed a staple part of spiritual jurisdiction until the same movement that also removed breach of faith from ecclesiastical competence had taken place. Even then, it was not entirely moribund. Placing a direction to pay the decedent's debts into his will allowed the debts to be treated as legacies and thus within the

jurisdiction of the spiritual courts,94 and the ecclesiastical courts continued routinely to summon the testator’s creditors to appear before them and to register (and sometimes settle) their claims. Unlike causae fidei laesionis, these claims did not

depend upon the existence of an oath. Allegation of the pledge of faith was conspicuously absent from libels and positions used in testamentary debt litigation. Instead, it was commonly alleged against debtors that they were ‘impeding’ implementation of the decedent's last will and testament by not paying the executor what they had owed the decedent. It was assumed that executors were obliged by their office, and by the oath they took on taking up that office, to pay the debts of the man

they represented. Without collecting the debts owed to him, they could not fulfil that duty. Like the cases heard in the royal courts, testamentary debt litigation in the ecclesiastical forum was often complicated by problems of proof. Defendants in suits brought to collect debts sometimes alleged that the debt had been discharged before the decedent died. But discharge was not always easy for them to show, and 91 Pollock and Maitland, i. 348; see also Jones, ‘Relations’, 169-78. °2 Bracton, fo. 407), left some room for debts proved and acknowledged during the decedent's lifetime.

93 A fuller account appears in Canon Law and the Law of England, 307-21. 94 ENB 89 (*44).

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the executor himself would rarely have known anything about the circumstances.

This led to some odd situations. For example, debtors who had paid the debt might actually have done better to deny the debt entirely, so that the burden of proof would fall on the executor. If they alleged payment, the burden would fall upon them. One possible way out was to allow the defendant debtor to undergo canonical purgation, swearing that he had paid the debt during the decedent’s lifetime. Compurgation does appear in the records in such cases, a slightly ironic result perhaps. The common law courts refused to permit the action of debt to be used at all in these circumstances, ostensibly because of the possibility of perjury if wager of law was permitted. The courts of the church permitted them, but faced much the same problem.

Payments for Services (Causae salarii)

The higher clergy were supported by tithes and endowments attached to their churches. The majority of the men who held inferior offices in the church, including offices within the church’s court system, and those who held no office at all, were not. They had little choice but to rely on stipends, fees, and salaries for their living. This is what they did. However, the traditional canon law did not

smooth the path to their receipt of a respectable level of emoluments. It was axiomatic that the rites of the church were not to be sold or exchanged for money. The same prohibition applied to those who made their living in the ecclesiastical courts. The texts stated that justice itself was a good that was not to be bought and sold (Cod. 2.13.15).9° Were they not doing exactly what the canons condemned? As with the church’s attitude to commerce itself, the hurdles presented by the

ancient texts and the prohibition of simony were surmounted. The gloss to Gratian’s Decretum distinguished the old prohibitions against taking money by

reading them as applying only when no real work was done by the church’s representatives.?” William Durantis dismissed them more simply, saying, ‘I reject such strictness.98 Drawing a distinction between payment for the thing itself and paying for services that permitted attainment of the thing, and arming themselves

with texts proclaiming that no man can be obliged to expend his labour for nothing (e.g. 1 Cor. 9: 7; C. 10 q. 2 c. 4), jurists like Durantis opened the door to 95 e.g, Olyffe c. Kynd (Archdnry Leicester, 1526), LRO, Act book I D 41/11/1, fo. 35: ‘nullam summam

pecunie debuit dicto Willelmo Plummer tempore mortis sue’. 96 See Gaines Post, Kimon Giocarinis, and Richard Kay, “The Medieval Heritage of a Humanistic Ideal: Scientia donum dei est unde vendi non potest (1955) 11 Traditio 195-234. 97 Gl. ord. ad C. 11 q. 3 c. 71, s.v. non licet. 98 Speculum iudiciale, lib. I, pt. 4, tit. De salariis §3, no. 1.

OTHER MONETARY OBLIGATIONS 375 the collection of fees for services rendered. They did not leave it open very wide, let it be said. Limits on the fees that could be charged, provision for gratuitous service for the poor, and condemnation of sharp practices such as the taking of contingent fees were all part of the classical canon law. But open the door, the jurists surely did. It was a matter of necessity at the time. The ecclesiastical system could not have functioned without someone's paying for it. The results of this accommodation to the ways of the world turned up in practice before the English ecclesiastical courts. Causae salarii were admitted in a variety of settings. It was possible for a priest to sue to recover what was called a ‘sacerdotal stipend’? So it was for priests suing to recover fees for celebrating Mass for the soul of a decedent as specified in his will.!©° Parish clerks were allowed to invoke ecclesi-

astical jurisdiction to collect the fees that went with their office.!°! So were holy water clerks and those who buried the dead.!©2 Proctors in the courts were permitted to sue their clients to recover unpaid fees.1°3 The bell-ringers at a funeral had the right to bring actions in the ecclesiastical court so that they could be paid for their services.!°4 One of the rare causa fidei laesionis found in the act books of the late sixteenth century turns out to have been an action brought by a proctor, presumably

to secure payment for his services.! All these suits formed part of ordinary ecclesiastical jurisdiction in England. Lyndwood wrote that even priests could receive temporal payments for spiritual services without being guilty of simony, just so long as they received the payment ‘with a pure intention’!°© Whether such purity in intention was actually held by the litigants in the many causae salarii found in the act books may now seem doubtful. If we confine our attention to the record, however, the most that can be said with assurance is that the plaintiff’s intention did not become a question in litigation. Defendants did not raise it. The question of contemporary attitude towards these fees, like many others, is one historians of ecclesiastical jurisdiction cannot answer. The existence of the claims, and their regular enforcement in the courts, are more certain. 99 Blakhurst c. Cragge et al. (Archdnry Chester, 1513), CRO, Act book EDC 1/1, fo. 65; Frank c. Execs. of Basyng (Rochester, 1441), KAO, Act book DRb Pa 1, fo. 205v, called a ‘causa detentionis stipendit. 100 Ex officio c. Huntismore (London, 1470), GL, Act book MS. 9064/1, fo. 10. 101 e.g, Ex officio c. Henshawe (Chichester, 1586), WSRO, Act book Ep I/17/6, ff. 44v, 61: “[Henshawe]|

oweth unto the clerke for his wages for ii yeares xvi d.. 102 e.g, Marschall c. Jay (Hereford, 1494), HFRO, Act book I/1, p. 133; Ex officio c. Holden (London, 1483), GL, Act book MS. 9064/2, fo. 77.

103 e.g, Giles c. Setlar (Hereford, 1494), HFRO, Act book O/20, p. 262, styled a causa salari. There is additional evidence in Canon Law and the Law of England, 44-7. 104 Ex officio c. Wodewarde (London, 1483), GL, Act book MS. 9064/2, fo. 16: ‘pro pulsatione campane

tempore mortis sui xii d.’. 105 Croke c. Kennet (Chichester, 1598), WSRO, Act book Ep I/10/20, s.d. 21 Sept.; Lloyd c. Cottrell

(Chester, 1594), CRO, Act book EDC 1/28, fo. 53v. 106 Provinciale, 238-9, s.v. salartis.

376 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

Accountings Although they only rarely ended in payment of money, a brief word should be said about the ecclesiastical equivalent to the Chancery’s equitable accounting and the common law’s action of account.!°” To ‘render an account’ in English practice was to make a formal report on one’s administration of goods, lands, and funds of money. It was an obligation inherent in the office of many fiduciaries or quasi-fiduciaries in the canon law (X 1.25.1). Fulfilling it required stating with some, though not perfect, particularity how the assets in the hands of the fiduciary had been administered.1° It might require submission of documents showing exactly what the administrator had done while in office and also the taking of an oath on his part testifying to his due observance of the office’s requirements. Those with an interest in the property would be given a chance to object as part of the process. It ended with approval of the accounts by the court and formal discharge of the fiduciary. The duty to account inhered in many ecclesiastical offices.1°° The most common form of accounting in the English ecclesiastical court records, however, was that undertaken by executors and administrators of decedents’ estates.11° Negotium

redditionis computus was a usual title given to the process in the act books. Swinburne’s treatment of the importance that attached to it, and more generally to the making of faithful accountings, still impresses. Without it, he wrote, ‘unfaithful

dealing’ by administrators would inevitably lead to the ‘undoing’ of deserving families.111 This was not a new concern. Nor was it unique to the judicious Swinburne. Medieval diocesan statutes stressed it. They paid particular attention to the duties inherent in the office. A requirement that an inventory of the goods be made was stated; provision for bankrupt estates was made; and a (waivable) time limit for completion of administration was set.!!2 Administration of an estate required making burial arrangements, collecting assets of the decedent, and paying debts and legacies. The tasks were complex enough that accounting sometimes required consultation with an advocate.!!3 Documents containing accounts have survived to show what was involved, as have examples of the discharge of executors and administrators at the close of the process. To this subject we shall return in Chapter 7. 107 See Baker, Introduction, 363-5; Milsom, Historical Foundations, 275-82. 108 Tyndwood, Provinciale, 177, s.v. reddere rationem.

109 e.g, the warden of the fabric of the Southwell Minster (c.1260) in Visitations and Memorials of Southwell Minster, ed. A. F. Leach (= 48 Camden Soc. (n.s.); 1891), 204-5. 110 Michael Sheehan, The Will in Medieval England (1963), 218-20. 111 Henry Swinburne, Brief Treatise of Testaments and Last Wills (1590), pt. VI § 17, no. 1. 112 Statutes of Exeter II, c. 50 (1287) in C. & S. I, pt. 2, 1045-9. 113 e.g, Ex officio c. Singleton (Winchester, 1587), HRO, Act book 21M65/C2/25, fo. 78v, the cause then

being put over so that the person accounting “possit consulere cum peritis.

ECONOMIC REGULATION 377 Although they were the most common defendants, executors and administrators were by no means the only persons required to render an accounting under the ius commune, and several examples of cases involving other kinds of fiduciaries can be

found in the surviving act books. Guardians of children (tutores and curatores) were obliged to account when a minor reached majority (Dig. 27.3.1.3). They normally took an oath to do so at their appointment, then were later called to account before the same court.!!4 Churchwardens were under a duty to render an account at the end of their term of office.!45 Sequestrators of vacant or litigious benefices had to account for their stewardship of parochial revenues after they had

completed their task.!!° So did the lay collectors of ecclesiastical revenues and members of a guild charged with administration of its affairs.1!7 Much of the process of accounting must have been done outside formal court sessions. For that reason accounts did not appear in large numbers in the records of litigation. Most are now lost to us. But enough have survived to show that rendering an account was quite a normal part of administering assets that belonged to another person or an institution, and that the courts took a hand in supervision.

ECONOMIC REGULATION The amplitude of canonical doctrine touching economic matters was not matched in the work of the English ecclesiastical courts. We cannot speak, for instance, of any effort to enforce the theory of the just price in commercial dealings on the basis of the records of the courts. Canonical penalties against those who introduced false weights and measures into the stream of commerce (X 3.17.2) were not imposed in court practice.!!8 Perhaps they were raised in the ‘internal forum’ of the confes-

sional. About that, little or nothing can be said. In the ‘external forum’ of the ecclesiastical courts, only the law of usury, restrictions against trading or working

on Sundays and holy days, and a trace of wage regulation have left a mark sufficiently distinct to attract the attention of a historian of ecclesiastical jurisdiction in England. 114 e.g. tutorship of Braithwaite (York, 1614), BI, CP.H.1011; see also Canon Law and the Law of England, 240. 115 e.g, Ex officio c. Steele et al. (Durham, 1600), DUL, Act book DDR VIUI/1, fo. 51, a proceeding for

having failed to account ‘iuxta laudabilem consuetudinem. 116 eg D, & C. of Lichfield c. Lever et al. (Lichfield, 1639), LJRO, Act book B/C/2/73, s.d. 6 July; the defendants were described as ‘sequestratores fructuum redditum et proventium dicte ecclesie’. 117 e.g. Ex officio c. Walker (Lincoln, 1337) in Poos, Lower Courts, 48; Precedent book (early sixteenth century), BL, Harl. MS. 2179, fo. 81Vv.

118 Such matters were sometimes raised indirectly in defamation cases; see e.g. Ex officio c. Bray (London, 1470), GL, Act book MS. 9064/1, fo. 12: “diffamatur quod ipse consentiens erat et concilium dedit uni fabricatori et fabricatione false monete.

378 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

Usury Gratian’s Decretum defined usury as lending money or goods and demanding or receiving in return anything above what had been lent (d. a. C. 14 q. 3 c. 1). It was a strict definition, and the canon law followed it, forbidding all usury. Biblical prohibitions against usury were cited (e.g. Deut. 23: 19-20; Luke 6: 35), and legislation against many aspects of the subject was adopted by several councils of the church, including synodal legislation in England.!!9 Usurers were declared excommunicate ipso facto and were required to make restitution before they could be restored to the body of Christians. The classical canon law made clear that the law’s prohibitions covered the Christian laity as well as the clergy, and the Fourth Lateran Council even condemned ‘excessive and immoderate’ usury taken by the Jews.!2° Titles dealing with usury were placed in the Gregorian Decretals (X 5.19.1-19), the Liber sextus (Sext 5.5.1-2), and the Clementines (Clem. 5.5.1). It became a topic of great complexity in the schools, as lawyers and theologians sought to reconcile the traditional law on the subject with the exigencies of commerce.!?1

Both congruence and dissonance are to be found between the canon law of usury and what happened in the English ecclesiastical courts. The former predominated; at any rate the court records correct the facile conclusion drawn by a few modern historians that the church’s law must have been altogether ‘evaded or ignored’ in English life.122 The act books contain regular prosecutions brought against usurers, and it was possible for parties to sue in the spiritual forum to recover money taken as interest on a loan.!23 The canon law’s prohibitions were by no means dead letters.!24 Statements like that of William Harrison (d. 1593)—to the effect that the law’s prohibitions were obeyed only by ‘fools’—caution against supposing that they were effective.125 The uniformity of

English learned opinion about usury throughout the period covered by this volume is none the less one of the notable conclusions of recent scholarship on the subject.12°

119 e.g, Lateran II (1139), c. 13; Lateran III (1179), c. 24 in Decrees, Tanner, 200, 223. 120 'T. P. McLaughlin, “The Teaching of the Canonists on Usury (XII, XIII and XIV Centuries)’ (1939) 1 Mediaeval Studies 81-146; (1940) 2 Mediaeval Studies 1-22.

121 John T. Noonan, The Scholastic Analysis of Usury (1957); Elaine S. Tan, ‘An Empty Shell? Rethinking the Usury Laws in Medieval Europe’ (2002) 23 JLH 177-96. 122 H, G. Richardson and G. O. Sayles, Law and Legislation from 4thelberht to Magna Carta (1966), 85. 123 Ex officio c. Taillour (Ely, 1377), CUL, Act book EDR D/2/1, fo. 78: “Et iuratus est... quod restituet

dictos xl d. eidem Johanni Doke infra quindenam. 124 See Diana Wood, ‘Lesyng of Tyme: Perception of Idleness and Usury in Late Medieval England’ in The Use and Abuse of Time in Church History, ed. R. N. Swanson (= 37 SCH; 2002), 107-16. 125 William Harrison, The Description of England, ed. Georges Edelen (1968), 203. 126 See Eric Kerridge, Usury, Interest and the Reformation (2002), 53-76; I. P. Ellis, “The Archbishop and the Usurers’ (1970) 21 JEH 33-42.

ECONOMIC REGULATION 379 Of the areas of congruence, the first is that jurisdiction over usury was a shared one in medieval and early modern England. This situation, although it may seem detrimental to the church’s rights, actually tracked the position of the canon law itself. The church made a claim to exclusive jurisdiction over usury only when a question of defining usury was at issue. Jurisdiction in punishing usurers was one of those many areas of penal law in which the church was content to share its jurisdiction with the temporal courts.!27 This was the situation in England. Until the sixteenth century the royal courts claimed competence over usurers at their death; at that point, the chattels of the usurer were to be taken into the king’s hands and his lands into those of his feudal lord.!28 At least some manor and borough courts also exercised a concurrent jurisdiction over living usurers throughout the later Middle Ages.!29 Both greater congruence and a possible source of discord in this aspect of usury jurisdiction were products of Tudor legislation. Parliamentary statutes made usury a temporal crime (3 Hen. VII, c. 5, 1487; 37 Hen. VU, c. 9, 15453 13 Eliz. I, c. 8, 1571).13° These laws thus threatened the existence of the church’s right

to regulate one of the oldest of its economic concerns. However, the principal statute on the subject, enacted in 1571, contained a ‘savings clause’ for ecclesiastical jurisdiction, and the spiritual courts continued to entertain causes involving usury in a form that was little changed from medieval practice.!3! A defendant before the York High Commission who refused to answer the charge of usury had the ‘savings clause’ pointed out to him and was ultimately imprisoned when he persisted in his refusal.!32 Although the jurisdiction was not exclusive and although it was invoked less often than once it had been, usurers did continue to come before the spiritual

courts in both ex officio prosecutions and instance causes. Indeed, they were sometimes named in the presentments of churchwardens.!%3

Second, at least some of the intricacies of the ius commune on usury were relevant in suits heard by the English ecclesiastical courts. Cases of ‘cloaked usury, in which a formal sale and resale of goods was arranged in order to disguise the 127 See gl. ord. ad X 2.2.8, s.v. malefactores; Julius Clarus, Liber V Sententiarum, tit. Usura, no. 8. The assertion in Canon Law and the Law of England, 324, is incorrect. 128 Glanvill, lib. VII, c. 16. See also 15 Edw. III, st. 1, c. 5 (1341).

129 See Holdsworth, History, viii. 102-3; Sylvia Thrupp, The Merchant Class of Medieval London, 1300-1500 (1948), 175-7.

130 The history of the parliamentary statutes is worked out in Norman Jones, God and the Moneylenders: Usury and Law in Early Modern England (1989), 47-65. 131 e,9, Ex officio c. Rane (Chester, 1598), CRO, Act book EDV 1/122, fo. 59v: “for usurie she lent Homfrey Higgenson iii li. for which shee had xvii d. a week’; Ex officio c. Goodyer (York, 1598), BI, YV.CB.1, fo. 6v: “for

a usurer she took of Henry Ayneley 4s. for the loan of 20s’; E G. Emmison, Elizabethan Life. Morals and

the Church Courts (1973), 72-4. 132 Ex officio c. Scot (York, 1586), BI, HC.AB.11, fo. 53. 133 e.g. Ex officio c. Watkyn (Hereford, 1608), HFRO, Act book O/83, p. 56: “presented for a usurer prout in presentatione’; Ex officio c. Denesmith (Lichfield, 1592), LJRO, Act book B/C/3/2, s.d. 14 Sept.:

‘presentatur propter usuriam’; Ex officio c. Warde (Exeter, 1620), DRO, Chanter MS. 763, fo. 48v: ‘[Presented] for taking excessive usury’.

380 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

fact that in substance a loan at interest was being made, did come before the courts.!34 Gifts were also sometimes used for the same purpose, as in one case where a borrower had given a spoon to the man who had lent him 8s. and found himself charged with usury.13>5 Intention could matter in these situations; a gift (or the resale) might conceivably have been free of usurious intent even if made to the lender of money. The defendant in the case involving the spoon, for example, claimed it was a free gift on his part. Another alleged he had made an extra payment only ‘in order to comfort’ the lender.!3° It was not unknown for defendants in such cases to be allowed to undergo compurgation to demonstrate their innocent intent.!37 This might indeed have been the only practical way of testing the question. Third, an apparently surprising finding that emerges from examining English court records is best explained by congruence with the formal law. The surprise is not finding any defendants in causae fidei laesionis who pleaded that their oath to fulfil a contract was invalid because the contract itself was usurious. The English courts heard many hundreds of these cases every year during the fifteenth century,

and so far as the surviving records are representative, this defence was never raised. Why not? The absence seems quite unlikely—unlikely, that is, until one looks at the canon law and discovers that where anyone took an oath to pay usury, he could none the less be compelled to fulfil it.138 In effect, the strength of the oath

prevailed against the prohibition against usury. Enforcement of the oath was not the end of the matter. One might seek to have the oath relaxed under certain conditions, and it was possible to bring a separate action to recover the usurious portion of the loan. In any event, the parties could be prosecuted ex officio and ordered to return the money.!39 But usury itself was not a substantive defence in

the canon law to an action brought on the sworn promise, and that rule must explain what happened in practice. Against these areas of congruence between law and practice should be set the unexpected discovery that, except in rare instances, the ecclesiastical courts did

not prosecute many offences that were commonly associated with usurious transactions. An example is the person who leased property to usurers. Doing so was unlawful under the canon law (Sext 5.5.1), but no prosecution against lessors 134 Examples are given and discussed in Canon Law and the Law of England, 330-2. 135 Sowton c. Fowler (Chichester, 1508), WSRO, Act book Ep. I/10/1, fo. 106v. 136 Ex officio c. Horton (Chester, 1620), CRO, EDV 1/21, fo. 109. 137 e.g. Ex officio c. Cheven (Lincoln, 1489), LAO, Visitation book Viv/2, ff. 22, 28-30 (receipt of an

article of clothing by alleged usurer); Ex officio c. Simpson (Archdnry Essex, 1578), in Emmison, Elizabethan Life (above n. 131), 73 (gift of money). 138 See Hostiensis, Summa aurea, lib. I, tit. De tureturando, no. 4. 139 e.g, Ex officio c. Taillour (Ely, 1377), CUL, Act book EDR D/2/1, fo. 78, in which the defendant

admitted taking 40d. as interest and was ordered to restore it to John Doke, to whom he had lent 20s.

ECONOMIC REGULATION 381 has so far been discovered in the act books. More surprising, even where the usurers themselves were directly involved, it appears that the courts undertook prosecutions only in cases where the rate of interest was relatively high. Under the canon law, any rate of interest was too much (C. 14 q. 3 c. 2). The Romanists were

prepared to allow a ‘moderate’ level of interest (Nov. 34.1), but the canonists rejected this laxist view.!4°

Practice before the English ecclesiastical courts tells another story. In fact, something close to what the Roman law allowed prevailed before the courts. A study of the subject found that with only one exception, the rate in prosecuted cases during the Middle Ages was always higher than 7.5 per cent, and that the great majority of cases clustered between 12.5 and 34 per cent.!4! Perhaps this should not be a surprise. Soundings about the same subject have been made for locations as far removed from each other as Aragon, Venice, and the Low Countries, and they have produced much the same result.!42 This disparity between formal law and judicial enforcement makes a difference

for understanding the later development of the English law of usury. The Elizabethan usury statute drew a distinction between taking interest at a rate in excess of 10 per cent and doing so at a lower rate. Only the former was punished as a crime, and in practice the statute was interpreted to allow taking interest at less than 10 per cent without penalty. Most historians have regarded this allowance

as a rejection of the medieval law on the subject and adoption of a ‘Protestant’ view of the subject. In one sense it was.!43 About the subject there was heated debate. In another, and probably more accurate sense, however, allowing a moderate level of interest to be taken was a continuation of what had long been the norm in court practice. Finally, surveying the early court records has produced one additional item of note. Almost no large transactions came before the courts. There may be accident in this; the records of the higher ecclesiastical courts in London have perished, and it

would have been in London that complicated debts would have been incurred. Whatever the reason, the largest amount of a loan attacked as usurious so far discovered in the medieval act books was for just a bit more than £24, and the great majority of cases dealt with loans of 4os. or less. In this sense, historians who have described the church’s jurisdiction over usury as easily evaded may be right. The complexity of the law on the subject offered many ways to enter into commercial transactions that would not have been considered usurious in law, and men who made large loans may have been more careful to find a legally permissible alternative. Certainly large loans were made and interest taken. But as has happened in many 140 See gl. ord. ad X 5.19.18. 141 See Canon Law and the Law of England, 332-3. 142 ibid. 334; see generally Gilchrist, The Church and Economic Activity (above n. 2), 114. 143 See Jones, God and the Moneylenders (above n. 130), 6-46.

382 MONETARY OBLIGATIONS AND ECONOMIC REGULATION times and places, it was the ‘small-time’ offender who most often came to grief before the courts.!44 Inevitably if incidentally, this has deprived the searcher in the records of the ecclesiastical court of any evidence about damnum emergens or lucrum cessans, not to mention some of the more elaborate doctrines worked out in the schools.

Wages

Good studies might be made of the prescriptions against excesses in personal conduct and commercial behaviour shared by the English common law and the canon law. Perhaps the most obvious candidate for study would be sumptuary legislation. English law attempted to curb excess in eating, drinking, and apparel; so did the canon law with relation to the clergy (X 3.1.15).145 Excessive drinking among

the clergy did give rise to occasional prosecutions in the medieval courts, but no ‘sumptuary prosecutions against the clergy have so far been discovered under this heading. Action was taken against clergy and laity for failing to fast on the days proper for it, but that was a different matter. Excesses in clothing and eating must either have been left to the secular forum or to informal actions taken by the bishops against their own clergy.!4° It was otherwise, however, in a small area of the law: the regulation of clerical salaries. The number of causes heard was always small, but that does not prove that the regulation was ineffective. Perhaps it proves the reverse.

What one paid for clerical services was not left entirely to the market-place in the canon law. Agreements to serve another at a certain wage were admitted, but like the Roman law’s locatio conductio, with which wages were treated in the ius commune, contractual freedom was not absolute.!4” The canon law held that wages must be adequate, but they must also be moderate (Sext 1.3.11.5). In the case of the men who made their living in the ecclesiastical courts, this led to the estab-

lishment of tables of fees—so much for each appearance of a proctor, and so forth.!48 This kind of regulation went slightly beyond the bounds of what the law itself required, but was not inconsistent with it. The most notable English example of wage regulation in the church’s law was the series of measures enacted in the aftermath of the Black Death.!49 The problem was 144 See R. H. Tawney, Introduction, Thomas Wilson, A Discourse upon Usury (1925), 22; see Mark Bateson and Jeffrey Denton, ‘Usury and Comital Disinheritance: The Case of Ferrers versus Lancaster,

St Paul’s, 1301 (1992) 43 JEH 60-96. 145 Cf. 3 Edw. IV, cc. 1-5 (1463). 146 See Frances Baldwin, Sumptuary Legislation and Personal Regulation in England (1926); Alan Hunt, Governance of the Consuming Passions: A History of Sumptuary Law (1996). 147 See Steven Epstein, “The Theory and Practice of the Just Wage’ (1991) 17 JMH 53-69. 148 e.g, Constitutions of Archbishop Greenfield of York (1311), c. 11 in Wilkins, Concilia, ii. 4103 Statutes for Court of Canterbury (seventeenth century), Bodl., Tanner MS. 315; see generally William Durantis, Speculum iudiciale, lib. II, tit. De salartis procuratorum, nos. 2-5. 149 Bertha Putnam, “Maximum Wage-Laws for Priests after the Black Death, 1348-1381’ (1915) 21 American Historical Review 12-32.

ECONOMIC REGULATION 383 the same one that animated the Statute of Labourers (25 Edw. II], st. 2, 1351). As happened in the case of ordinary workers, the death of so many stipendiary chaplains made the remaining ‘labour pool’ scarce.15° These men were paid a salary for the celebration of Masses and other divine offices, and there were too few of them to keep up the accustomed rounds. They were demanding exorbitant salaries and, it was said, they had become “delirious with licentiousness’ as a result. From the start, the canon law had admitted the legitimacy of their ministrations only with apparent reluctance; paying them for performing the sacraments skated close to the edge of simony, and the law’s ordinary expectation was that the clergy would be supported by a benefice of one kind or another.!5! In the circumstances, it was perhaps understandable that the higher clergy should have reacted in the same way that their secular counterparts did. The bishops attempted to fix lawful wages for

all stipendiary clergy and to prevent their easy movement from one place to another. Efforts were being made at this time to bring chaplains within the ambit of the Statute of Labourers itself.152 The prelates would have regarded such efforts as acts of usurpation of their authority. This possibility too must have encouraged them to enact parallel regulation on their own. The opening episcopal move in this direction came from Archbishop Islip. Called Effrenata from its incipit, the constitution was put into place in the 1350s. A series of similar mandates followed, amending and expanding the scope of the original enactment.!53 They fixed the salaries that could be paid to stipendiary chaplains and sought to keep them from leaving one diocese for another in search of personal advantage. What success the effort enjoyed we cannot be sure. It was possible to found a prosecution against a chaplain in one of the ecclesiastical courts based upon Islip’s constitution,!54 but we know neither how often it was done nor how effective it was as a deterrent. Whether the measure is better remembered as an example of ‘harmonious co-operation between Church and State, or instead as an example of ‘pluralist princes of the church [preaching] apostolic poverty to their chaplains’ must remain a matter of opinion.!>> It does certainly provide a good example of the canon law’s desire to regulate clerical behaviour without interference from without. The canonists held that the church had the right to fix standards of conduct for the clergy, and the English church sought to follow their lead.

150 See Knighton’s Chronicle 1337-1396, ed. G. H. Martin (1995), 102-3 for contemporary description. 151 See Lyndwood, Provinciale, 238-9, s.v. salariis, where the arguments justifying the payment of salaries were rehearsed. 152 Bertha Putnam, The Enforcement of the Statutes of Labourers (1908), 187-9. 153 Wilkins, Concilia, i. 15 (1351), 50-1 (1362), 135-6 (1378). 154 Fx officio c. Walpol (Ely, 1376), CUL, Act book EDR D/2/1, ff. 47v—48: ‘super excessiva perceptione

salarii sui. An apparently similar cause was Ex officio c. Austyn (Canterbury, 1469), CCAL, Act book Y.1.11, fo. 67, seeking the return of a stipendium paid to a chaplain without benefice. 155 Both are contained in Putnam, ‘Maximum Wage-Laws’ (above n. 149), 19, 32.

384 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

Labour on Sundays and Holy Days Attendance at church on Sundays and holy days was not the private option it has now become. It was a legal duty, enforceable in a court of law against anyone without a legitimate excuse for absence. The rule was carried a step further. It was unlawful to engage in a trade or most forms of manual labour on those days. This prohibition was nothing new in the thirteenth century. Laws to the same effect were found among the Anglo-Saxons and even in Roman law.!5° Nor was it adopted by the church with the express intent of demeaning work or commerce. The rules were adopted to keep the holy days holy. The courts sought to prevent bowling as much as thrashing grain or public trading. The church’s rules had an effect on the sitting of the royal courts as serious as on the holding of public markets.157 Men may have grumbled about the prohibitions at the time, and no doubt a good deal of violation of the law’s proscriptions occurred. The canonists would not have been surprised. They would have been surprised to read that they were acting in order to maintain the church’s position as ‘sole producer of entertainment.!58 Whatever the motive and whatever the level of success, in its results the canon law’s prohibitions must certainly have had an effect on commerce. The results have been with us within living memory. The canons on which were based disciplinary actions against men and women who contemned the Sabbath were contained principally in the ninth title of the second book of the Gregorian Decretals and the twelfth title of the second book of the Digest. Gratian’s Decretum also contained a traditional list of the days on which servile labour was prohibited (De cons. Dist. 3 c.1). A basic treatment was found in the law books devoted to procedure in the courts, and the association of prohibitions on the sitting of public courts and doing business in the market-place proved to be a continuing feature of the subject. English diocesan statutes repeated and affirmed it.159 The prohibition was never absolute. Works of piety might be performed— aiding the poor for instance. So might works of real economic necessity—protecting

crops or goods that might otherwise perish or be damaged, for example. Both of these exceptions were discussed (and expanded) by the efforts of medieval canonists. 156 e.g, Ine 3 in Liebermann, Gesetze, i. 90-1 [ Laws, Attenborough, 36-7]; Cod. 3.12.2(3). 157 Paul Brand, ‘Lawyers’ Time in England in the Later Middle Ages’ in Time in the Medieval World, ed. Chris Humphrey and W. M. Ormrod (2001), 73-104, at 76.

158 Brooks Hull and Frederick Bold, “Towards an Economic Theory of the Church’ (1989) 7 International Jnl Social Economics 5-15, at 8. Contemporary criticism is cited and discussed in Hill, Society and Puritanism (Ch. 4, n. 192), 264-5; instances of violations of the law are collected in: Edith Rodgers, Discussion of Holidays in the Later Middle Ages (1940), 94-9. 159 e.g, Statutes of Exeter II (1287), c. 22 in C. & S. II, pt. 2, 1020-1. See generally Max Levy, Der Sabbath in England: Wesen und Entwicklung des englischen Sonntags (1933); W. B. Whitaker, Sunday in Tudor and Stuart Times (1933); Athene Reiss, The Sunday Christ: Sabbatarianism in English Medieval Wall Painting (2000).

ECONOMIC REGULATION 385 They built upon a decretal of Alexander HI which, avowedly by way of indulgence, permitted fishing on forbidden days for a species otherwise hard to capture and highly valued for food (X 2.9.3).1© This relaxed concept of necessity could be understood as embracing forms of simple utility, and so it happened in this instance.1©!

To move from law books to court books is to move from a realm of subtle distinction and complicated argument to a realm of simplicity. Prosecutions were regularly undertaken in the English courts against those who carried on their trade on Sundays and holy days, but so far as one can tell, the courts rarely heard arguments about the relative degrees of necessity for the activity in which defendants had engaged. There were a few.!©2 Their numbers were insignificant, however, in proportion to the total number of office cases recorded. Almost any ex officio act book contains prosecutions for some variant of the accusation that a man had been ‘a common labourer on Sundays’!6 Prosecutions were undertaken against men

and women who had shovelled sand, dried wool, and gathered peas on the Sabbath.! The cases dealt with selling shoes, collecting acorns, even fishing—the last despite the existence of Alexander IITs decretal.1®° A man could be prosecuted for encouraging his servants to work on holy days.!° The historian of the ecclesiastical courts at Canterbury detected in the records the occurrence of repeated ‘drives’ against butchers who sold meat on Sundays.!%7 In virtually none of these many prosecutions does any legal argument appear to have been made in response to the charges. The speculations of the jurists do not appear in them.

The causes were usually handled in summary fashion, leading quickly to dismissal or the assignment of correction against defendants. Defendants in disciplinary cases were not represented by proctors (X 5.1.15), and during the 160 See e.g. Hostiensis, Summa aurea, lib. II, tit. De ferits, nos. 4-5. 161 Barbara Harvey, “Work and Festa Ferianda in Medieval England’ (1972) 23 JEH 289-308. 162 Ex officio c. Cowper and Clerke (Lichfield, 1591), LJRO, Act book B/C/3/1, s.d. 2 June. The defendant, accused of cutting trees on Sundays, asserted he had done so ‘non ex malicia sed urgenti necessitate’. Other such pleas: Ex officio c. Brickman (Hereford, 1605), HFRO, Act book O/83, p. 240; Ex officio c. Gilbertum (Archdnry Oxford, 1584), The Archdeacon’s Court, ed. E. R. Brinkworth (= 23 Oxford Record Soc.; 1942), 28; Ex officio c. Turpin (York, 1619), BI, V.1619, fo. 43.

163 e.g, Ex officio c. Peryn (Canterbury, 1451), CCAL, Act book X.1.1, fo. 5v: “communis laborator diebus dominicis. 164 Ex officio c. Dovey (Exeter, 1620), DRO, Chanter MS. 763, s.d. 15 Nov.; Ex officio c. Pirack (Archdnry Cornwall, 1624), CWRO, Act book ARD/7, s.d. 7 Sept.; Ex officio c. Todd (Peterborough, 1601), NRO, Correction book 35, fo. 35. 165 Ex officio c. Lydes and Noke (London, 1496) in Hale, Proceedings, no. 189; Ex officio c. Whiche (Archdnry Buckingham) in Elvey, Buckingham Courts, no. 230: “‘pesces prendendo’; Ex officio c. Cricklett (Gloucester, 1639), GRO, Act book GDR 203, s.d. 25 Oct.: ‘for fishinge on Saboth dayes’. 166 Ex officio c. Parnell (Norwich, 1593), NNRO, ANW/2/31, fo. 17Vv. 167 Woodcock, Medieval Courts, 80; see also E. R. C. Brinkworth, Shakespeare and the Bawdy Court of Stratford (1972), 51 (similar ‘drive’ in 1590-2); Kenneth Fincham, Prelate as Pastor: The Episcopate of James I (1990), 174 (same in 1610S).

386 MONETARY OBLIGATIONS AND ECONOMIC REGULATION

Middle Ages, compurgation was the normal method of deciding cases where defendants contested an accusation of unlawful trading. Both these factors would naturally have kept questions of law from engaging the attention of the English courts. Substantive justifications were occasionally made in prosecutions brought against men and women who had not attended church, but very rarely did the reasons given for their absence require balancing degrees of utility. Some defendants claimed illness or necessary absence on royal service. A few claimed a local custom excused them to do at least limited work.!©§ But most submitted. The Reformation did not greatly affect the substance of this sort of indirect regulation of commerce. A reduction in the number of holy days and a slight increase

in the number of cases brought for working on Sundays were the principal changes evident in the court records. Otherwise, the courts continued to receive presentments against men and women who had carried on their trade on Sundays or holy days. They continued to discipline those whose guilt could be established, though with less frequent and automatic use of public penance. Very often as time went on defendants were dismissed after receiving no more than ‘a pious admonition’ from the judge. A few defendants who were summoned before the courts after the Reformation did object, and they did so along legal lines. Among those who did were some men who thought the number of holy days should have been reduced still more than it had been. For example, in 1607 Thomas Griffen informed the official of the archdeacon of Essex that God had commanded his people to labour for six days and to keep the seventh day holy.!6 He thought this biblical injunction impliedly licensed him to carry on his trade any day but Sunday. That would allow him to work on holy days. The judge was unimpressed by this clever argument a contrario sensu, and he ordered Griffen to acknowledge his error publicly. Overall, the English ecclesiastical courts always exercised a jurisdiction in economic affairs in quite narrow circumstances. It was a subsidiary competence, one that left most economic matters involving the laity to the temporal courts. This was not really out of step with the general approach to the affairs of the laity taken in the canon law, although the canon law itself was not put into practice. Particularly after the disappearance of their jurisdiction over breach of faith, the ecclesiastical courts were left with less direct connection to the commercial life of the nation than the canon law claimed. The courts had to be content with quite a narrow jurisdiction. But such general competence over the laity as they had, as Griffen’s example well shows, the civilians would strive to retain. 168 Fx officio c. Gill (York, 1633) in Robert Skaife, ‘Extracts from the Visitation Books at York (1900) 15 Yorkshire Archaeological Jnl 235.

169 See Hale, Proceedings, no. 723; see also Emmison, Elizabethan Life (above n. 131), 196-7.

/ Testamentary Law and Probate Jurisdiction o English men and women of past centuries, the probate jurisdiction held by Tike church must have seemed the single most important of its legal privileges.

The law of testaments and intestate administration reached into the lives (and pockets) of a large percentage of the English population. It touched family relationships and inter vivos transactions only tangentially related to dying. It meant a great deal to the English civilians; it was lucrative above anything else they did. It was also a necessary part of the nation’s legal system. Probate was the last area of jurisdictional competence to disappear from the act books in the 1640s, and after the revival of the spiritual courts in the 1660s, probate was quickly reinstated. Jurisdiction over testaments remained in the hands of the church into the second half of the nineteenth century, a longevity that has had consequences with which we still struggle. For all its centrality, the origins and relationship to the ius commune of English church’s jurisdiction over succession have always been hard to explain. The difficulty was apparent even in the Middle Ages. The nature of the church’s jurisdiction rested on local custom, not the canon law itself. William Lyndwood himself evidently felt some anxiety on this score, because he devoted a significant part of his discussion of the subject to an attempt to reconcile the English system with the church’s general law.! The fit between the two was imperfect, as he was compelled to admit. It was his purpose (and his achievement) to show that testamentary jurisdiction exercised in the consistory courts, although based upon a legal regime peculiar to England, was not at bottom inconsistent with the tenets of the tus commune.

Two characteristics of the English law of succession rendered the fit imperfect. The first is that, although many of its particulars were connected to and indeed drawn from the ius commune, by conceding primary jurisdiction over wills and intestate estates to the ecclesiastical courts, the English system diverged from what 1 See Ferme, Canon Law in Late Medieval England (Ch. 3, n. 150). The English situation was not unique; see e.g. Otto Vervaart, ‘Argumentation in Practice: Nicolaus Everardi (1462-1532) on Canon Law and Custom in the Low Countries’ in Proc. Tenth International Congress of Medieval Canon Law (2001), 635-50.

388 TESTAMENTARY LAW AND PROBATE JURISDICTION the texts of the Roman and canon laws envisioned. It diverged from what happened elsewhere in the church’s legal system. Even its staunchest defenders recognized that the extent of the church’s jurisdiction in England was out of step with what

was envisioned in the ius commune. In that system, succession was a temporal matter, with only a few openings for the exercise of spiritual jurisdiction. English law had taken a different tack. The move towards giving the church primary jurisdiction occurred gradually over the course of the twelfth and thirteenth centuries. The process has left no, or very few, outward signs of struggle (or actual agreement) in the historical record.2 Why the royal courts took no steps to prevent usurpation of legitimate temporal claims has never been an easy question to answer.

The second is that English law made a basic division between succession to chattels and succession to land. Only jurisdiction over the former was held by the ecclesiastical courts. That division was not called for by the ius commune, it could never be maintained strictly in probate practice, and it complicated the adminis-

tration of many estates. It is hard to defend. Indeed, the division was to move Maitland to what appears to have been real indignation against the courts of the medieval church. The consequences of the division, he wrote, ‘have been evil. We rue them at the present day, and shall rue them as long as there is talk of real and personal property.’ It cannot be the object of this volume to solve these puzzles or to make a case

for the merits of the English probate system. Answers to the question of why it developed as it did have eluded the author, as they have eluded most of his predecessors. It is, for example, perfectly sensible to note that death was a moment when people’s thoughts turned to religion, and that the church was concerned with securing the benefits of pious bequests. It is also prudent to point out precedents from the Anglo-Saxon period; wills were not a new thing in the thirteenth century, even though there were as many differences as there are similarities between some of earlier will making and what emerged in the thirteenth century. It is certainly right to note that in parts of the Continent, the medieval ecclesiastical courts also enjoyed a larger competence over wills than the texts provided.® Suggestions like these are natural enough, but they do not establish the reason for the thoroughgoing and continuing English divergence from the ius commune on this point. The displacement of the post obit gift by the civilian testament and

the rise of the testamentary executor obviously made a crucial difference, but 2 Sheehan, The Will in Medieval England (Ch. 1, n. 212), 166-76, suggesting 1230 as the date by which jurisdiction was established; see also Makower, Constitutional History, 425-31; Barton, Roman Law in

England, (Ch. 1, n. 7), 79-93. 3 Pollock and Maitland, il. 355, 363. 4 See, however, the judicious exploration of the subject in Sheehan, The Will (above n. 2), 135-47,

and Louis Dulac, Théorie de lexécution testamentaire (1899), 24-8. 5 See above. © See e.g. Ingeborg Buchholz-Johanek, Geistliche Richter und geistliches Gericht im spdtmittelalterlichen Bistum Eichstatt (1988), 149.

THE CANON LAW OF LAST WILLS AND TESTAMENTS 389 these changes occurred in many places in Europe. What needs to be explored are the reasons behind the English developments About this, there is unfortunately

not enough evidence that can be counted as strict proof. Indeed, there is not enough evidence to suggest an answer. Lyndwood was content to suppose only that it rested ‘on the consent of the king and his magnates.’ In seeking some kind of answer, we can only survey the ius commune on last wills and testaments and compare it with the evidence found in the records of the English courts.

THE CANON LAW OF LAST WILLS AND TESTAMENTS William Lyndwood and Henry Swinburne were the principal English writers on the law of wills and testaments from the period before 1640. The first began with provincial constitutions, although he incorporated learning from the tus commune and the commentators on it. The second started with the definitions and the forms of testaments found in the Roman law, although he too went far beyond his own starting-point. Both approaches were sensible. For the historian seeking to put the subject into perspective, however, it is more instructive to begin with the formal canon law. The texts bring into sharper relief several features of the English church’s testamentary jurisdiction.

The Corpus turis canonici Gratian’s Decretum included canons touching succession (e.g. C. 12 q. 5 c. 2), but

no Causa or Distinctio was devoted particularly to the subject. The Decretals contained two titles dealing expressly with succession, the first dealing with testaments, the second with intestacy (X 3.26—7).8 Also included elsewhere in the Decretals were titles on some related but subsidiary matters, such as the laws of burial and gifts between husband and wife. The Liber sextus and the Clementines also contained titles on testaments, though both were quite modest in their contribution to the formal law. A considerable number of the canons and decretals in this not very long list dealt with problems peculiar to the clergy. Could a cleric or a monk make a will? Could a monk? As a general rule: Yes, as to the first (X 3.26.1) and No, as to the second (X 3.26.2). Should property found in the hands of a cleric at his death pass to his church or instead to his legatees? The answer depended upon the source of the property, assuming it could be traced (X 3.26.7).9 Rules like these were 7 Provinciale, 176, s.v. ecclesiasticarum libertatum. 8 For the texts, see Victor Wolf von Glanvell, Die letztwilligen Verfiigungen nach gemeinem kirchlichen

Rechte (1900). ® Doctor and Student, 261-3, gives the virtually identical rules of English law.

390 TESTAMENTARY LAW AND PROBATE JURISDICTION regarded as a necessary part of clerical regulation and protection of the church’s patrimony. The canonists sought to safeguard the property of the church, while providing a means for individual clerics to dispose of property they held in an individual capacity. Hence this part of their coverage. The canons on testamentary succession none the less had five more general characteristics that applied to wills made by the laity. All of them were of importance in the work of the English ecclesiastical courts. First, the canons assumed the existence and the utility of the Roman law of succession, without however necessarily being bound by all of it. Reliance upon Roman law was found in terminology as well as substance. That the institution of an heir was essential for making a true testament appeared in the canon law, as it did in the civil law, although the consequences were not so severe. The canonical texts envisioned allowance of the quarta Trebelliana and the portio legitima very much as the institutions had been understood in the civilian texts (X 3.26.16), although not with complete identity. It is instructive to note that, even where there was discontinuity between the canon law of succession and the Roman law, the canonists cited texts from the Corpus iuris civilis to demonstrate that their own law could be supported from that traditional source.!° The law of succession had claimed the attention of all the classical jurists; it was one of the fullest and most impressive parts of Roman law. It would have been entirely natural for canonists to begin with it, and they did.

Second, the church asserted a definite if subsidiary role for itself in the enforcement of charitable bequests. The canonists were not confined by the Roman law in situations where they conceived that the interests of the church

came into play. Thus, one decretal asserted that if no effort at execution of a charitable bequest had been made within a year of the time when notice had been made, execution would devolve upon the diocesan bishop (X 3.26.3). This was to assert as of right what the Roman law had conceded in a quite limited

fashion (Cod. 1.3(6).28). Another held that, despite a custom supported by Roman law that required five or seven witnesses to render a testament valid, where a gift ad pias causas was concerned, two or three witnesses would suffice

(X 3.26.11). ‘In the mouth of two or three shall every word be established’ (Matt. 18: 16), when joined with juristic ingenuity, was sufficient to override both custom and civilian precedent in such circumstances.!! The canon law, as it was stated or assumed in the Decretals, did not envision what happened in England, where the bishops took it upon themselves to supervise the whole process of succession to chattels. In the texts, the bishops were to exercise only 10 e.g. gl. ord. ad X 3.26.4, s.v. nudis verbis, citing Cod. 6.42.32 as favouring the widening of the validity of oral bequests. 11 Nicolaus Boerius, Decisiones, pt. II, quaest. 338, no. 6, contains a useful and typical discussion.

THE CANON LAW OF LAST WILLS AND TESTAMENTS 391 a limited and supervisory jurisdiction. Their purpose was to secure the fulfilment of the pious and charitable bequests.12 Third, the Gregorian Decretals mentioned, and indeed sanctioned, the place of the testamentary executor in securing that the last wishes of decedents would be carried out (X 3.26.19). It is true that in the canon law, the title ‘executor’ was not one reserved for the law of succession. There were ‘executors’ of papal provisions to benefices (Sext 3.7.4). There were ‘executors’ of sentences given by papal judges delegate (X 1.29.28).

But it was this testamentary office and all that went with it—the executor’'s ‘representation of the decedent, his replacement of the heir of the Roman law, and his subjection to direction by the courts—that gave English testamentary law the special character it retained. True, executors of the last wills of decedents were known elsewhere in Europe.!3 Roffredus of Benevento (d. c.1243), for example, described

them as common in Apulia.!4 Executors were discussed in treatises of the ius commune.!5 Whether the ultimate origins of this office are to be discovered in the forests of Germany, the civil law’s concept of fides, or some more exotic source is a long-lived controversy among historians of the law. The English ordinance does not add to it. Perhaps it is not even the right question. We should say only that, although the Decretals did not envision the overthrow of Roman law, in which nomination of the heir was indispensable to a full testament, they also made room for the testamentary executor. William Durantis devoted a long section of his Speculum to the office, and the executor was a familiar figure in many parts of medieval Europe.1¢ Other commentators envisioned the possibility that executors might take the place of

the haeres under some circumstances.!? The importance of the executor would decrease on the Continent in consequence of fuller reception of the Roman law. It was in the hands of English lawyers that this office had its most long-lasting future. 12 e.g. gl. ord. ad X 3.26.6, s.v. ab episcopo: ‘publicatio testamenti non pertinet ad episcopum. That a

‘broad’ view of what this meant was taken in at least some parts of the Continent is suggested by Christian Schwab, Das Augsburger Offizialatsregister (1348-1352) (2001), 92-3, 208-9, 212.

13 See Goffin, The Testamentary Executor (Ch. 1, n. 219); Lycia Gardani Contursi-Lisi, Desecutore testamentario (1950); Reinhard Zimmermann, ‘Heres fiduciarius? Rise and Fall of the Testamentary Executor in Itinera fiduciae: Trust and Treuhand in Historical Perspective, ed. R. H. Helmholz and Reinhard Zimmermann (1998), 267-304. 14 Roffredus Beneventanus, Tractatus libellorum, pt. IV, tit. De actione ex testamento (1968), fo. 89 (left col.). 15 e.g, Franciscus Mantica, Tractatus de conjecturis ultimarum voluntatum, lib. VIII, tit. 5, nos. 8-9; Franciscus Camarela, De legatis et singulis rebus per fideicommissum relictis (Venice, 1681), lib. XIV, quaest. 7.

16 Speculum iudiciale, lib. II, pt. 2, tit. De instr. edit. $13. See generally Henri Auffroy, Evolution du testament en France des origines au XIIIe siécle (1899); Jean Engelmann, Les Testaments coutumiers au XVe siécle (1903); Philippe Godding, ‘La Pratique Testamentaire en Flandre au 13e siécle’ (1990) 57 TRG 281-96; Goffin, Testamentary Executor (above n. 13). 17 See e.g. Michaelis Grassus, Tractatus de successione tam ex testamento quam ab intestato, lib. II,

quaest. 8 (Venice, 1606), holding and providing earlier citations for the proposition that he could so serve, if no heir were named and he was given complete powers to represent the testator.

392 TESTAMENTARY LAW AND PROBATE JURISDICTION Fourth, in the exercise of supervisory jurisdiction over testaments, the canon law made no division between lands and chattels. For some purposes, a distinction was drawn between the two in the ius commune. For instance, the ius spolti, the claim to the goods of deceased bishops that the medieval popes first condemned and then embraced after they had become its beneficiary, extended only to movable goods.'8 It was not so here, however. The Third Lateran Council had enacted a canon to protect the many goods (multa bona) that had been given to churches,!9 and this question was asked of Pope Alexander III in the context of testamentary gifts: Did the word bona include land? His answer was yes; it did (X 3.26.12). A gift of goods made generally was to be understood equally generally.2° Only that interpretation would effect the donor's

apparent broad purpose of aiding the church. The pope thus held that episcopal supervision of bequests made to charitable uses should extend to immobilia as well as mobilia. The separation of land from chattels that Maitland decried could not, therefore, have been a direct product of the canon law on testaments. Fifth, despite the limited nature of episcopal intervention in the law of succession authorized under the canon law, the Corpus iuris canonici contained several texts that were capable of being read more broadly and assertively. Leaving ambiguity about the extent of the church’s claims was not, it should be said, peculiar to testa-

mentary law. It was a characteristic found across the canonical texts. But this is a particularly good example. The canonical texts proclaimed that a person’s last wishes ‘shall in all things be carried out’ (e.g. C. 13 q. 2 ¢. 4; X 3.26.17). It might extend

even to choosing the place of one’s burial (X 3.28.7). The proclamation became a kind of ecclesiastical refrain. It was persistent enough that, in the last resort, making

sure it happened could fall to the church’s ministers. Before the duty to secure performance of a man’s last wishes, local customs, temporal statutes, papal decretals, and the formalities of the civil law might be obliged to give way. The rule of testamentary freedom that the canon law proclaimed could not have been without exceptions. Otherwise a testator might leave his widow without support, and the rights of others might come into doubt. But it was a strong rule, perhaps even a dangerous rule, to put in the hands of judges in the spiritual courts. And as it turned out, something like it did become a cardinal rule of probate jurisdiction in England.

Provincial and Synodal Legislation Magna Carta provided that after payment of debts owed to the king, and after making provision for ‘reasonable parts’ due to a man’s wife and children, the chattels of decedents should pass to his executors, who would carry out the final 18 C,12 q. 2c. 46; Sext 1.6.40; Daniel Williman, The Right of Spoil of the Popes of Avignon, 1316-1415 (1988), 1-2; Fr. de Saint-Palais d’Aussac, Le Droit de dépouille (Jus spolit) (1930).

19 ¢,15 in Decrees, Tanner, 219. 20 See gl. ord. ad X 3.26.12, s.v. bona.

THE CANON LAW OF LAST WILLS AND TESTAMENTS 393

disposition contained in his last will and testament.?! This statement of limited freedom of testation tracked sentiments found in contemporary ecclesiastical sources, notably a letter from Pope Alexander III to the bishop of Ely of a few years before the Great Charter.?? If England’s bishops needed any special encouragement to seek implementation of the principle by means of canonical legislation, they had it. They also went beyond it in synodal and provincial statutes, thereby augmenting and improving what had been covered by the texts in the Corpus iuris canonict.

Much of the synodal legislation of the thirteenth century was phrased in quite broad terms. It was meant to restate a principle already contained in the general canon law: that last wills and testaments should be respected. For example, some diocesan statutes enacted a rule that those who impeded the execution of the final wishes of a testator should be ipso facto excommunicate.” These statutes turned out to perform useful service in the courts, despite their seemingly obvious point and their overlap with the Decretals, because they provided a sanction. Many ways of impeding a last will and testament could be named—refusing to pay a debt owed the testator; suing out a writ of prohibition; retaining goods that had been lent by the testator; interfering with the executor’s legitimate attempt to pay debts, neglect by the executor of his office—all these and others fitted within the wording of the statutes. They were the means by which many testamentary matters came before the ecclesiastical courts. Other statutes attacked more specific problems. They prohibited forgery and fraud in the making and proving of wills, for example.24 This prohibition would prove to be more than platitudinous, since many wills were put into written form by the scrivener after the testator’s death. Very often a man would have made an oral declaration of his last wishes shortly before he died, but only then could his directions be written down, and the task might not have been completed during his lifetime. Was such a will written or oral? And was it accurate? Might it reflect what the hearers thought the dying man must have said? Or should have said? Too often one group of legatees thought it was an accurate transcription of a dying man’s verba novissima; another group regarded it as the product of fraud. Thus one of these statutes would be invoked when the question of probate came before an ecclesiastical court.2° 21 ¢, 26 in Stubbs’ Select Charters, 296. 22 See 2 Comp. 3.14.1 in Quinque compilationes antiquae, ed. A. Friedberg (1882), 84-5. 23 See e.g Statutes of Salisbury I, c. 52 (1217 X 1219); Statutes of Winchester I, c. 49 (1224); Statutes of Exeter I, c. 8 (1225 X 1237) in C. & S. I, pt. 1, 76, 133-4, 230-1.

24 e.g. Statutes of Salisbury II, c. 40 (1238 X 1244); Statutes of Wells, c. 67 (c.1258); Statutes of Winchester III, c. 77 (1262 X 1265) in C. & S. IL, pt. 1, 382, 619-20, 717-18. 25 e.g. Will of Swyff (Rochester, 1451), KAO, Act book DRb Pa 2, fo. 177v, in which the scribe said that,

‘postea iste iuratus secundum notam dicti vicarii scripsit idem testamentum et deliberavit illud Thome Bregges uni executorum’; Gaile c. Smithe (York, 1602), BI, Trans. CP.1601/2, in which the intended scrivener alleged, ‘by reason of other affairs... he did not stay to write the said John Gaile his will’

394 TESTAMENTARY LAW AND PROBATE JURISDICTION A few of the English statutes would prove to be controversial and would never be more than fitfully implemented. For instance, English synodal statutes stated repeatedly that villeins could make a valid will.2° They did so in the face of a prohibition

against it inherited from Roman law (Dig. 28.1.19), one many of the canonists themselves repeated.?” But it seemed the right outcome. Villeins were Christians and

human beings; the statutes took this for granted. On this account, they must be permitted to set their affairs in order and provide for their soul’s health. They also possessed goods they had treated as their own during their lives; even at their death they came to have a right to pass title to it unless the lord took effective steps to prevent it. The conclusion followed: Villeins might dispose of their goods at death. But, it was objected, did they really own any property to set in order? Did they have sufficient interest in it to bequeath for their soul’s health? Legal theory said no.28 Whatever the villein had in his hands actually belonged to his lord. The villein had bare possession, and if the lord objected he could not dispose of any property

the lord had allowed him to use. Lyndwood suggested drawing a distinction between servi and those who were only servilis conditionis, but the problem remained.?? Men of servile condition did not have true dominium. Between these views there was little room for agreement, at least on the level of principle. And there was more. To the extent that the question was ever settled, it was by local custom and the eventual demise of the institution of villeinage.>°

Defining the duties and powers of executors and administrators also came within the scope of diocesan statutes. These representatives of the decedent must be careful and zealous in carrying out their responsibilities, the statutes stated, or else they would be subject to removal. They must not take the assets of the testator for their own uses unless they were specifically authorized to do so in the will. They must make an inventory of the goods belonging to the decedent and render an account of collection of his assets.3! Diocesan statutes also made provisions to deal with intestacy, and they tackled the problem of who could serve as an executor, although not, it seems, the legally troublesome question of whether a woman could be appointed.3? That last question was to be resolved (in the affirmative) 26 Council of Merton & Westminster, c. 24 (1258); Clerical Complaints at Westminster (1280) in C. e& S. IT, pt. 1, 585, pt. 2, 878. 27 e.g, Hostiensis, Summa aurea, lib. IU, tit. De testam., no. 7. 28 See e.g. the response at Parliament in 1280 in C. & S. II, pt. 2, 878. But see also the more complicated account in Doctor and Student, 271-3. 29 Lyndwood, Provinciale, 172, s.v. servilis conditionts. See also, Baker, Introduction, 468-74. 30 See A. E. Levett, Studies in Manorial History (1937), 208-34; Sheehan, The Will (above n. 2), 253-8; Paul Hyams, King, Lords and Peasants in Medieval England: The Common Law of Villeinage (1980), 66-74. 31 Statutes of Worcester I, c. 66 (1229); Statutes of Norwich, c. 66 (1240 X 1266); Statutes of Worcester III, c. 83 (1240); Statutes of Chichester I, c. 53 (1245 X 1252); Statutes of Wells, cc. 63, 65 (c.1258) in C. e& S. IL,

pt. 1, 181, 359, 316, 462, 618-19. On the inventories themselves, see Tom Arkell, ‘Interpreting Probate Inventories’ in When Death Do Us Part, ed. Tom Arkell, Nesta Evans, and Nigel Goose (2000), 72-102. 32 See Durantis, Speculum iudiciale, lib. I, pt. 2, tit. De instr. edit. § 13, no. 76.

THE CANON LAW OF LAST WILLS AND TESTAMENTS 395 by the civilians, both in recognizing the choices of testators and in exploiting the plentiful resources of the ius commune.*3

It is worth noting that much of this earliest diocesan legislation concerning wills came from the period before the consistory courts had been established as permanent institutions. Once that existence could be taken for granted, the need for a disciplined approach to testamentary law was all the greater. In meeting that need, no one stands out more prominently than William Lyndwood. He devoted his energies to it. He also had a head start. By the time he compiled his Provinciale in the fifteenth century, several provincial constitutions dealing with testaments had come to dominate litigation in the English courts. They had partly displaced

the diocesan statutes, itself a sign of the need for and move towards greater uniformity. Some of the diocesan statutes had ceased to be observed, if indeed they had ever been.4

Lyndwood was thus able to assemble the most relevant of the provincial constitutions and comment upon their contents. He was also equipped to call upon the resources of the ius commune to deal methodically with some of the most basic questions raised in English practice. The law of succession was an area of the law in which the Roman law was particularly full and particularly developed.

Lyndwood used it throughout. Perhaps the most important step he (and his predecessors) took in bringing the two together was to confirm the equivalence of the English executor with the heir in Roman law.%> It was not an altogether exact equivalence, but it was close enough to be convenient. From this approach many rules of practice followed. There were many other such cases. For example, who could make a valid will? Commenting on a provincial constitution disqualifying professed monks from making wills, Lyndwood added: “But there are [also] many others who cannot make a testament.?° He listed them, giving a citation taken from the Roman and canon laws to support each: the insane, minors, prodigals, manifest usurers, and (secundum quosdam) also the excommunicated. It was clear that the Roman law on this subject was the starting-point for him (Dig. 18.1.1-31), although it could not be the final word. For instance, the final class, those who

stood under a sentence of excommunication, raised a question not dealt with in the Digest, and it was also a controversial question among the canonists. The communis opinio came to allow men under the church’s ban to make a will, 33 See Rowena Archer and B. E. Ferme, “Testamentary Procedure with Special Reference to the Executrix’ in Medieval Women in Southern England (= 15 Reading Medieval Studies; 1989), 3-34; Ann Kettle, “My Wife Shall Have It: Marriage and Property in the Wills and Testaments of Later Medieval England’ in Marriage and Property. Women and Marital Customs in History, ed. Elizabeth Craik (1984), 89-103, at 100-2. 34 e.g, Statutes of Salisbury I, c. 96 (1217 X 1219) in C. & S. I, pt. 1, 91, requiring the presence of the parish priest at the making of last wills and testaments; see Lyndwood, Provinciale, 174, s.v. probatis.

35 Provinciale, 172, s.v. intestatis. 36 Provinciale, 167, s.v. condere testamentum.

396 TESTAMENTARY LAW AND PROBATE JURISDICTION although the commentators recognized the difficulty of assembling witnesses who might themselves be excommunicated for deliberately associating with a man under the church’s ban.” In any event, Lyndwood was right to be cautious about excluding them. Lyndwood’s second accomplishment, one noted already, was to show that the English system was not out of harmony with essential features of the classical canon law. No better example exists than his attempt to defend the large testa-

mentary jurisdiction held by the English church. The canon law restricted the bishop’s role to securing the enforcement of legacies for pious causes (X 3.26.17). The English ecclesiastical courts did much more than that. They enforced legacies of all kinds. However, Lyndwood pointed out, both Hostiensis and Innocent IV,

canonists of the highest reputation, had been of the view that all testamentary dispositions could be called pious.38 If they were reasonable, it was a work of piety to see to their execution. The term causa pia was not self-defining. The English

courts were thus doing no more than implementing that understanding of the word. Moreover, although the English system might be based upon custom rather than the Corpus turis canonici, this was not necessarily contrary to the canon law. Custom could be a valid source of jurisdiction (C. 9 q. 3 c. 8), and the English

custom would be likely to meet the tests of reasonability and acceptance by those it governed. A later age might look back and accuse the English church of overreaching; it claimed a more expansive jurisdiction over wills and probate than the canon law itself did. In a sense that is a telling criticism, but it is also one that took a different view of the tus commune than the earlier jurists would have done. Lyndwood’s approach was not false to the civilian traditions in which he had been nourished.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION Jurisdiction over probate was widely dispersed among the English ecclesiastical courts. The archiepiscopal sees both had courts devoted specially to probate, the Prerogative Court of Canterbury and the Exchequer Court in the North.%9 Later on,

they would come to dominate testamentary practice. This was not so during the Middle Ages and into the sixteenth century. The records of most of the courts held 37 Johannes D. Durantis, De arte testandi et cautelis ulttmarum voluntatum (Venice, 1564), tit. 1, caut. 10. 38 Provinciale, 169, s.v. residuts, citing their commentaries on X 3.26.3.

39 Christopher Kitching, “The Prerogative Court of Canterbury from Warham to Whitgift’ in Continuity and Change: Personnel and Administration of the Church in England 1500-1642, ed. Rosemary O’Day and Felicity Heal (1976), 191-214; David M. Smith, “The Exercise of the Probate

Jurisdiction of the Medieval Archbishops of York’ in Life and Thought in the Northern Church c.1100—c.1700: Essays in Honour of Claire Cross, ed. Diana Wood (1999), 123-44.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 397

by rural deans, archdeacons, and cathedral prebendaries also contain verbatim copies of testaments together with a short note recording their proof in common form on a certain day.*° In many of the larger courts, testaments and records of their proof

were put into separate volumes, beginning cautiously in the fifteenth century. The York probate act books are quite full from the sixteenth century forwards, and the pattern was followed elsewhere.*! The books testify to the smooth running of the system. At least that is how it looks. Most wills were produced for probate shortly after the death of the testators and the probate process was handled routinely and expeditiously by the courts. Summary probate, the procedure by which proof and commission of administration could be made upon the oath of the executor when no one appeared to challenge the will, appears to have been a success in practice.*? Examining surviving cases of contested probate, however, leaves a very different impression of the merits of the English law of succession. Looking at them more

closely makes the law, at least as it was put into operation, seem quite beset by problems. Some of them might have been avoided by adopting a more coherent system of proving wills and administering estates. In examining these problems, however, it is important always to keep the routine round of probate practice in mind.43 There were many more estates settled promptly and efficiently than there were will contests. The courts were available locally; long trips were rarely necessary to prove a will. Like many areas of the law, testamentary practice cannot be adequately described by looking only at the disputes. Describing and assessing the English system of contentious probate must begin with a statement of five “facts of probate life. They could neither be wished away nor legislated out of existence. First, a very high percentage of wills were made at

the very end of the testator’s life. Men must have thought about what they wished to do in advance. Among the great, what we would call ‘estate planning’ probably occurred.44 But in the routine will cases that came before the courts, there was little sign that the testator had arrived at the moment having taken care to focus on what would happen to his property after he died. It was commonly believed among ‘the ruder and more ignorant people’ that making a will hastened 40 See e.g. the many examples in Poos, Lower Courts; Sandra Brown, The Medieval Courts of the York Minster Peculiar (1984); The Courts of the Archdeaconry of Buckingham 1483-1523, ed. E. M. Elvey (= 19 Buckinghamshire Record Soc.; 1975); F. S. Hockaday, “Withington Peculiar’ (1917) 40 Transactions of the Bristol and Gloucestershire Archaeological Soc. 89-113; Jane Sayers, ‘Monastic Archdeacons’ in Church and Government, 188—9, 1958.

41 David Smith, A Guide to the Archive Collections in the Borthwick Institute of Historical Research (1973), 155-80.

42 See e.g. the description in formularies, Bodl., MS. Lat.misc.d.51, fo. 7 (late sixteenth century) and LAO, For.21, fo. -lv. See also Lyndwood, Provinciale, 173, s.v. voluntatem ultimam; Marchant, Church under

the Law, 88-90. 43 See Lincoln Wills, 1532-1534, David Hickman ed. (= 89 LRS; 2001), pp. x-xvili. 44 This may not have been true of the wills from the upper ranks of society; see Introduction to Reg. Chichele, ii, p. xxi.

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one’s death.*5 The result was that most testators were near to death when they made a final disposition of their property, and they knew it. Second, the oral aspect of will making was as important, if not more so, than the written. A significant percentage of testators could neither read nor write.*° In making their wills, they would often have the help of men who could—typically but not invariably

the curate of their parish church—but the testators themselves would not have been able to ‘review’ a written document, or even read it. What they said aloud was

the best evidence of what they wished to happen after their death. Third, the division between lands and chattels that was made for jurisdictional purposes was admitted by all participants. It governed practice. But it was also a division that

proved quite unstable in many situations. Probably this could not have been helped. The courts of the church would not easily close their eyes to what would happen to a decedent’s real property in distributing the personal estate, particularly in cases of intestacy. There were many areas of overlap, and neither the royal courts nor the ecclesiastical courts could keep entirely on ‘their side’ of the fence dividing the two, even had they wished to. Fourth, death of one spouse and remarriage of the other were frequent events. This inevitably complicated ascertainment and enforcement of the rights of children born of successive marriages. It seems unlikely that the occurrence of ‘split families’ ever approached that of modern times, but the greater incidence of early death from disease, plague, and accident during these centuries meant that there were many of them. Fifth, several assumptions of the ius commune differed from English custom and law, in particular on the respective rights of husband and wife. The property of a woman fell under the power of her husband in the common law. It did not recognize community property in the modern sense of that term, but during coverture the husband was given control over the woman’s lands and chattels. Since the common law did not assert control over the devolution of chattels at death, however, it was left open to question just how far this part of the common law would extend.

Classification of Last Wills and Testaments A more exact definition of the two words ‘will’ and ‘testament’ is a perennial desideratum of the law. Jurists in the traditions of the ius commune themselves 45 Henry Swinburne, A Brief Treatise of Testaments and Last Wills (ast edn, 1590), pt. I § 12, no. 53 see

also Christopher Marsh, ‘“Departing Well and Christianly”: Will-making and Popular Religion in Early Modern England’ in Religion and the English People, ed. Eric Josef Carlson (1998), 201-44, at 209.

It was a usage not limited to England; see e.g. Pedro Joaquin Garcia Moratalla, Los testamentos en Albacete a finales del siglo XVI (1588-1600) (1999), 21.

46 R. A. Houston, Literacy in Early Modern Europe: Culture and Education 1500-1800 (2nd edn, 2002), 125-71; M. T. Clanchy, From Memory to Written Record (2nd edn, 1993), 328-33; David Cressy, Literacy and the Social Order: Reading and Writing in Tudor and Stuart England (1980), 73, 104-8.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 399

tried their hand at it, with no more success than has attended similar efforts in later times.4” Today we sometimes distinguish: Wills devise land and testaments bequeath chattels. Common parlance, however, normally treats the two as synonymous, and much the same ‘confusion existed in medieval and early modern usage. The modern distinction existed and is occasionally found in the records,48 but very often it was lost or neglected.49 The most common expression found in the court records was to speak of the ‘testament containing the last will’ of a decedent, in the sense that ‘last will’ was the more all-inclusive term.>° It would be to introduce further confusion to attempt to ‘correct’ their habits. It may be said none the less that everything was not simply ‘lumped together’ into the category ‘wills. Distinctions based upon Roman law were regularly drawn

between different types of last wills and testaments in contemporary usages.>! Some of them—‘soldier’s and sailor’s wills’ for instance—have not yet been discovered in the surviving records of the ecclesiastical courts. Surprisingly, neither has the donatio causa mortis. Others—the testament ad pias causas—seems not to have been treated as a separate category in practice, though charitable gifts were always treated with a certain indulgence.>? However, three forms of wills (or four if one includes codicils) were distinctly so named in the court records. The first was the written instrument. The old forms of Roman testaments, the testamentum per aes et libram for example—had long since been obsolete, and even the solemn testament, which was required to be made as one act, witnessed by seven persons called together for that purpose, and subscribed by the testator (Cod. 6.23.31) had given way to the less rigorous forms allowed under the canon law. The English civilians were familiar with the Roman law institutions, however,

sometimes making comparisons between it and the usages of their own courts. For them, it would have been inconvenient if the wills they knew could not be counted as legitimate testaments, even though they might not be the ‘solemn testaments’ of the Roman law.>3 And they always drew a distinction between oral

and written wills, even though the oral statements by which so many testators expressed their last wishes and the willingness of the English courts to enforce 47 See e.g. Franciscus Mantica, Tractatus de conjecturis ultimarum voluntatum, lib. I, tits. 4-6. 48 e.g. Will register (1440-53), KAO, DRb Pwr 1, separating testaments from last wills and codicils. 49 See Introduction to Reg. Chichele, 11, pp. xix—xxi.

50 e.g, Hamlyn c. Dix and Langaller (Exeter, 1627), DRO, CC 189/1: “condidit testamentum suum in se continens ultimam voluntatem’; Precedent book (c.1610), CCAL, Z.3.30, fo. 184; Will of Tynke (Archdnry Cornwall, 1608), CWRO, Act book ARD/3, fo. 92v: “Negotium probationis testamenti sive ultime voluntatis. Sometimes ‘testament’ was used to mean a formal document, as in Roman law, whereas ‘last will’ meant more broadly the final wishes of a decedent; e.g. Broke et al. c. Barret (1594),

BL, Lansd. 135, ff. 81v—88. 51 See Swinburne, Brief Treatise (above n. 45), pt. I $§ 8-15. 52 Ecclesiastical formulary (c.1490), BL, Add. MS. 41503, fo. 87v; Clerke, Praxis, tit. 166.

53 Annotation of Mark Tabor to the printed copy of Justinian’s Institutes in Wells Cathedral Library, fo. 136.

400 TESTAMENTARY LAW AND PROBATE JURISDICTION

them meant that the distinction would often count for little enough. At least, it can be said that the written will was a more secure means of testation. It was less dependent upon accurate memories of the witnesses. It raised fewer problems of proving the decedent’s testamentary intent.54 The second was the oral or nuncupative will. Roman law sanctioned them, but only if witnessed by seven persons present at the time the testator declared his last wishes (Cod. 6.23.21.4). The canon law reduced the number of witnesses required, and English court practice enlarged the scope of nuncupative wills. The Statute of Wills required that devises of land be in writing, but this was not so for chattels (32 Hen. VIII, c. 1, 1540). For the purpose of disposing of chattels, English ecclesiastical law treated oral wills as fully equivalent to written testaments in virtually every respect. The most dramatic (if that word be admitted in this area of the law) example was the rule that an oral will might revoke a written will. This result was contrary to the Roman law, but it was in line with the canonists’ desire to discover and give effect to a dying man’s verba novissima. This desire was carried into all corners of the law. If the witnesses heard a testator declare that such and such was

what he wished to happen to his goods, that sufficed.5> If the testator was replying to questions—as in “To whom do you wish your clothing to go’?—that too was enough.>® The harder case was presented by the testator who simply answer ‘Yes’ or ‘No’ to bequests suggested by one of those who were at his bedside.5” It was

required for validity that an executor either be named in, or could be inferred from, the words of the nuncupative will,°8 although if none were, the substance of the will could still be enforced by granting letters of administration cum testamento annexo. The third was the holographic will. It was—and is—a testamentary disposition written entirely in the hand of the decedent and signed by him. On the theory that his handwriting provides an adequate substitute for the testimony of witnesses, no

other evidence was required for validity. The best evidence in the hand of the testator was thought to eliminate the risk of mistake or forgery; it guaranteed that the writing was indeed the writer’s last will. Roman law had not recognized holographic wills except under quite exceptional circumstances, and it has long 54 e.g. Platt c. Scales (1590), CUL, MS. Dd.g9.1, fo. 109, a nuncupative will in which a civilian commented

that the words spoken were ‘very slender to induce a testament’. 55 Civilian Miscellany (c.1600), CCAL, MS. C 18, fo. 215v: “Sufficit testibus audire a testatore hanc esse eius voluntatem’

56 Swinburne, Brief Treatise (above n. 45), pt. I § 12, no. 6; Will of Jennyson (York, 1563), BI, D/C.CP.1563/6.

57 Shafto’s Will (Durham, c.1590), DUL, DDR/XVIII/3, fo. 134, holding against validity, although the question of bequests was put very generally. 58 A gift of all one’s property was sufficient to constitute an executor. Bever’s Will (Durham, c.1590), DUL, DDR/XVII/3, fo. 132v, citing gl. ord. ad Dig. 5.48.49(48), s.v. dominus esto.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 401

been an intriguing question to know how they came to be accepted within the ius commune. The most likely explanation is that they were a product of the usus modernus Pandectarum, as the movement to make wider use of the ancient texts

of Roman law to deal with contemporary legal problems is known among German scholars.>? In this case it employed a means of proving the authenticity of documents known as comparatio litterarum (Cod. 4.21.20(19)) and applied it to wills.©° Holographic wills were accepted in English practice during the course of the sixteenth century, although they were always regarded with suspicion. The judicious Swinburne was quite cautious about admitting them; Francis Clerke was more enthusiastic.®! They occupied a small place in English court practice, but the literature of the English civilians during the sixteenth and seventeenth centuries commonly dealt with them, surely because of their novelty and their ‘testing’

character. How far would practice go beyond the categories inherited from Roman law? How far would it go in carrying out the intention of the testator? The holographic will made a good test. The final category, the codicil, might not be classed as a form of testament at all. Today the codicil is only a way of adding to a will. However, the jurists defined it broadly. It was ‘the just sentence of what anyone wishes to be done after his death, but without naming an heir. These were much the same words they used to define the testament itself.©2 Alternate usage of the terms does sometimes appear in the contemporary records,® but in most act books of the English courts

the term was used to mean an addition to a valid testament that did not name an executor.®* In line with common English practice validating nuncupative testaments, adding oral codicils to written wills was entirely permissible.®> The Roman testament was ambulatory, and that applied to changes made by oral wills. Indeed, oral additions to wills were almost routine.

Testation and Will Making A few of the circumstances that surrounded the making of last wills and testaments have already been examined briefly, and the subject of freedom of testation will be 59 Franz Wieacker, Privatrechtsgeschichte der Neuzeit (1967), 204-48. 60 See Monika Beutgen, Die Geschichte der Form des eigenhdndigen Testaments (1992); Helmholz, ‘The Origin of Holographic Wills in English Law’ (1994) 15 JLH 97-108. 61 Swinburne, Brief Treatise (above n. 45), pt. 4 § 25; Clerke, Praxis, tit. 165. 62 Mantica, De conjecturis ultimarum voluntatum, lib. I, tit. 8, no. 1. 63 e.g. Estate of Mildew (Chichester, 1488), WSRO, Ep ITI/4/1, fo. 27: “de et super codicello sive ultima

voluntate predicti Ricard’. 64 e.g, Estate of Goderer (Rochester, 1452), KAO, Act book DRb Pa 2, fo. 177: ‘ostenderunt unum codi-

cellum ultime voluntatis ut asseruerunt confectum ad quandam cartam’ 65 e.g, Will of Kirke (York, 1570), BI, Exch.AB.4, fo. 61: “Officio domini pro probatione codicilli Thome

Kirke’ in which the court’s order “decrevit eundem codicillum annectendum fore eidem testamento.

402 TESTAMENTARY LAW AND PROBATE JURISDICTION taken up later in dealing with legacies and the administration of estates. It is equally important, however, to examine first how the last wills and testaments that came before the courts came to be made. One ought also to begin where the canonists did—with the question of who could make a valid testamentary disposition. TESTAMENTARY CAPACITY

The contentious question of bondsmen and villeins has already been noted. While not unknown, probate of villeins’ wills seems to have been quite rare in ecclesiastical court practice. When the question was raised, more often than not one finds

dismissal to the court of a lord when it turned out that a decedent had been of unfree status.© The question of competence to make a will was a more general one, however. It was raised both in the ius commune and in English common law, the

most conspicuous, and now even notorious, example of which has been the married woman's will. The tus commune began with the rule that anyone not expressly prohibited from making a will had the capacity to do so. But it turned out that many potential testators were prohibited. Bartolus, for example, listed four general categories of exclusion, each of which included several sub-categories.” There were defects of freedom (e.g. slaves and monks); defects of mind (e.g. madmen and infants); defects of the senses (e.g. the blind and those who could not speak);

and defects of behaviour (e.g. heretics and criminals condemned to death). Generally speaking, the canonists simply repeated these exclusions, although they were prepared to admit at least partial exceptions where bequests ad pias causas were at stake.®

The surviving records from the English spiritual courts produce few if any examples of most of these categories. Some of the missing categories, like the disqualification of condemned men, are easily explained. Their chattels were taken by king or lord. Their wills, if they made one, simply would not have come before the courts. Others, like the exclusion of the blind, are harder to explain, although it may be that once practice had settled into a pattern they would not have gener-

ated much litigation. Swinburne, taking his cue from the exceptions made on their behalf in the ius commune, suggested that a way was found to validate the testaments of men who had been deprived of some of their senses.®? Still other categories, as for example the disqualification of the mentally incompetent, did appear occasionally in litigated cases. Given the closeness to death of so many 66 e.g. Will of Fynyan (Hereford, 1447), HFRO, Act book O/4, p. 12: ‘ad probandum testamentum in curia sua temporali quia mulier defuncta erat ascripticia. Same result: Will of Genyn (Chichester, 1527), WSRO, Act book Ep. I/10/4, fo. 34v; Will of Scarlett (Winchester, 1514), HRO, 21M65/C2/1, fo. 63; Will of Meyr

(Hereford, 1453), HFRO, Act book O/5, p. 142. 67 Commentaria ad Dig. 28.1.4, nos. 4-8. 68 Hostiensis, Summa aurea, lib. II, tit. De testamentis, no. 7; Durantis, Speculum tudiciale, lib. II, pt. 2, tit. De instr. edit. § 12 (Compendiose), nos. 1-6; Panormitanus, Commentaria ad X 3.26.Rubr., nos. 3-10. 69 Swinburne, Brief Treatise (above n. 45), pt. IT $$ 10-11.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 403

testators, perhaps it is surprising that there were not more. However, the law presumed testamentary competence in every person. The burden of proving the opposite rested upon contestants of the will’s validity,” and meeting it was not an easy matter. As Swinburne wrote, the test was the ability of the person to understand the contents of his will, and in his view many apparently simple-minded men had enough reason to pass this test. His view was applied generally in practice. For instance, one sixteenth-century case held that the fact that one testator whose mental competence was challenged either was incapable of putting his

shoes on the right foot (according to one side) or needed some help getting dressed (according to the other) did not necessarily preclude him from making a valid last will and testament.7! It was the married woman’s will that presented the most difficult (and frequent) legal question involving testamentary capacity. The problem was marriage, not misogyny. Widows and unmarried women could make valid wills. This was not

disputed. They were allowed to sue in their own right before the ecclesiastical courts in other areas of litigation, and they did so. But did they have any property to will? The common law held that when a women married, her property passed under the control of the husband.”2 Only if she had his permission could she make

a valid will. The rule of the ius commune, one reiterated in English provincial constitutions of 1261 and 1343, was the reverse.73 Women had the right to dispose of their own property by will and those who impeded them from doing so were to declared ipso facto excommunicate.74 Lyndwood’s gloss on the 1343 constitution repeated the arguments for the married woman's right, at least as to her paraphernalia, a category he interpreted quite broadly.75

What were the results of this seemingly direct clash? The court records have now been examined with enough care to make the outcome tolerably clear. During the fourteenth century, the church managed to protect the right of many women to leave their property by will, but during the fifteenth the right was effectively lost. The common law’s position came gradually to prevail in fact 70 Will of Lychfeld (Canterbury, 1516), CCAL, Act book Y.2.10, fo. 17v; Swinburne, Brief Treatise (above n. 45), pt. 2 § 3, no. 8. 71 Execs. of Oldwodde c. Oldwodde and Oldwodde (Durham, 1528), BI, CP.G.139. 72 Glanvill, VII, 5; Bracton, fo. 6ob. See generally EF. Jotion de Longrais, “Le Status de la femme en Angleterre’ in La Femme (= 12 Recueils de la Société Jean Bodin; 1962), 135-241, at 174-81; Amy Louise Erickson, Women & Property in Early Modern England (1993), 139-51, 205-6. 73 ¢,23in C. & S. II, pt.1, 682; Wilkins, Concilia, 11. 705-6. 74 e.g, Petitions to the King (1295), c. 32 in C. & S. I, pt. 2, 1143. 75 Provinciale, 171-9, esp. 173, 8.v. propriarum uxorum, and Precedent book (fifteenth century, BL, Royal MS. 11.A.xi, ff. 7v-8, taking much the same view. On this see Charles Donahue, Jr., “‘Lyndwood’s

Gloss propriarum uxorum: Marital property and the ius commune in fifteenth-century England’ in Europdisches Rechtsdenken in Geschichte und Gegenwart: Festschrift fiir Helmut Coing, ed. Norbert Horn (1982), 19-37.

404 TESTAMENTARY LAW AND PROBATE JURISDICTION after 1400.76 Where women’s wills were effective afterwards, the permission of the

husband was obtained; it was usually noted specifically in the court records.’” Although it is true that occasional efforts were made to enforce the ecclesiastical law against impeders of married women’s wills,” the actual number of their wills being proved had reached too low a point by the mid-fifteenth century for these cases to seem more than a token effort. Precedent books and causes from the spiritual courts themselves recognized the force of the common law’s rule.”9 Married women had lost the ability to leave their personal property by will. Whether this development is best explained by sheer weakness on the part of the English ecclesiastical courts or by some other factor is a good question. Weakness (or episcopal timidity) in the face of the common law is the simplest explanation, and it may be the right one. However, the development coincided with two other events that may also have contributed to the demise of married women’s wills. The first was the establishment of greater testamentary freedom for men. The second was the rise of the trust for married women.®° The one, which had occurred by the fifteenth century, inevitably cut into the rights of wives, since at least in the eyes of English lawyers, their expectancy or “forced share’ of the husband’s estate had been the source of the woman’s moral right to make a will. She was only bequeathing what would inevitably come to her. The large-scale disappearance of the forced share from English customary law indirectly removed that source of testamentary freedom for women. The second factor was the development of an alternate way

for married women to control devolution of property at their death. The settlement of property to be held in trust required some advance planning, but it was not legally contentious and could be applied to both lands and chattels. That devel-

opment can only have curbed the need for married women’s wills. It made the ‘clash’ between church and state irrelevant for practical purposes. 76 See Michael Sheehan, “The Influence of Canon Law on the Property Rights of Married Women in England’ (1963) 25 Mediaeval Studies 109-24; Erickson, Women & Property (above n. 72), 205-6; R. H. Helmholz, ‘Married Women’s Wills in Later Medieval England’ in Wife & Widow in Medieval England, ed. Sue Sheridan Walker (1993), 165-82. The common law itself was not without complexities; see M. C. Mirow, “Monks and Married Women: The Use of the Yearbooks in Defining Testamentary Capacity in Sixteenth- and Seventeenth-Century Readings on Wills’ (1997) 65 TRG 19-39, at 30-8. 77 e.g. Parishioners of Barnby c. Rynshaw (York, 1489), BI, CP.F.271: “cum consensu et permissione Thome Watkynson adtunc mariti sui’. In Estate of Edlyng (Rochester, 1459), KAO, Act book DRb Pa 3, fo. 380v, the husband seems to have been given the power to license part of a will after the wife’s death.

In Ex officio c. Halywell (London, 1495), GL, Act book MS. 9064/6, fo. 181v, it was asserted that a womans will was invalid, “quia maritus defuncte adhuc vivens’. 78 e.g. Ex officio c. Spicer (Hereford, 1479), HFRO, Act book O/13, pp. 204, 206. 79 BL, Add. MS. 41503, fo. 87v: “Et si mulier faciat testamentum oportet quod habeat licenciam viri sui; Ex officio c. Mecham (London, 1508), GL, Act book MS. 9064/10, fo. 23, involving a married womans will allegedly made with her husband’s permission. 80 These possibilities are explored and more evidence supplied in: Helmholz, ‘Married Women’s Wills’ (above n. 76).

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 405

A final question, and perhaps the most significant question, lies on the border between legal and social history. Of those who were eligible to make last wills and testaments, how many actually did so? How many allowed their property to pass

by intestacy? How many died leaving property that had no contact with the courts of the church at all? In the present state of knowledge, these questions cannot be answered on the basis of reliable statistical evidence. Indeed, we can

only say two things with any confidence. First, Maitland supposed that ‘an intense and holy horror of intestacy took possession of men’s minds’ during the twelfth and thirteenth centuries.®! There is, however, very little evidence to support this supposition to be found in the probate records, and there is some to contradict it. Intestacy was far from uncommon, and it did not subject the body of the man who died intestate to exclusion from consecrated ground. That ignominy was reserved for those who died under a legitimate sentence of excom-

munication. It was not imposed on the bodies of men who had died without making a will.82 Second, soundings of the percentage of the adult male population whose estates

were subjected to ecclesiastical probate during the sixteenth century have been made. They show that something like one-third of the adult male population died leaving wills.83 This is actually not a particularly low or an alarming figure; it is over twice the rate some studies of twentieth-century practice have found.* However, unlike the modern situation, submission of a decedent’s estate to probate was a duty under the ecclesiastical law. The relatives of a decedent could not lawfully agree to suppress a will or ignore probate, as they can today.®> There is therefore something to explain. Lack of any assets left that could be bequeathed or subjected to probate is the most obvious explanation for the discrepancy between 81 Pollock and Maitland, 11. 356. 82 X 3.28.12. Examples where the issue was raised: Estate of Daleron (London, 1308), LPL, Act book MS. 244, fo. 96v; Estate of Warner (Archdnry St Albans, 1520), HTRO, Act book ASA 7/1, fo. 24; Estate of Mollineux (York, 1638), Sheepscar Library, Leeds, Act book RD/A 7D, fo. 6v.

83 Nigel Goose and Nesta Evans, “Wills as an Historical Source’ in When Death Do Us Part (above n. 31), 44-5; Motoyasm Takahashi, “The Number of Wills Proved in the Sixteenth and Seventeenth Centuries’ in The Records of the Nation, ed. G. H. Martin and Peter Spufford (1990), 187-213, at 213;

Lloyd Bonfield, “Normative Rules and Property Transmission: Reflections on the Link between Marriage and Inheritance in Early Modern England’ in The World we have Gained, ed. L. Bonfield, R. M. Smith, and Keith Wrightson (1986), 165-6; Stephen Coppel, “Wills and the Community: A Case Study of Tudor Granthany in Probate Records and the Local Community, ed. Philip Riden (1985), 76-8. 84 Allison Dunham, “The Method, Process and Frequency of Wealth Transmission at Death’ (1963) 30 Univ. of Chicago Law Review 241-85, at 244. In some places, however, the modern ratio is closer to that found in the sixteenth-century records. See Page on the Law of Wills, ed. William Bowe and Douglas Parker (1960), viii. 23-4.

85 Prosecutions were regularly brought for attempting to suppress a will or failing to produce one; e.g. Will of Cobeham (Canterbury, 1340), CCAL, Ch.Ant. A 36-IV, fo. 24, called ‘negotium exhibitionis

testamenti.

406 TESTAMENTARY LAW AND PROBATE JURISDICTION legal theory and fact. Some men were simply too poor to have any goods worth taking notice of.8° Others had given away what they had while they were still alive. It is true that the estates of some decedents were certainly settled before local, temporal courts, and some estates with assets managed to escape having to submit to ecclesiastical jurisdiction altogether. There were occasional cases brought before the courts in which defendants confessed to having ‘administered’ assets of a decedent for many years without any help from the authorities.87 ESTABLISHING THE DECEDENT S$ LAST WISHES

The difference between modern will making and the normal practice during the periods covered in this volume is easily the most notable finding to emerge from prolonged study of the court records. One cannot miss it. Little “estate planning’ to speak of took place. Whatever may have been true of the upper reaches of English society, at the level of the middling sort of men whose estates came before the consistory courts, making a will was something one did at the very end of one’s life. No lawyer was involved, although a priest was often present to provide counsel and solace. Relatives and friends were often there too—ready to give their own opinions and their own advice about what the dying man should do with his property. Most of what happened of importance was oral, and often there was reason to hurry. The

will would be written down if there was time and someone to do the writing, but normally it was then read back to the dying man so that he could confirm that it contained his last wishes. It would be his spoken confirmation that counted in law as much as the writing.88 There were exceptions to these generalizations, but if one starts with them, it is easier to see why litigation took the form it did. It was frequently impossible to separate the oral from the written. Whether the final wishes of the testator were really those found in a written will or those he had spoken as he lay sick and dying made for frequent and difficult litigation. Of course, what he had said last is what counted, if he had meant his words to be his

last will. But had he so meant them? With good reason did English synodal statutes direct that an adequate number of witnesses be present at the making of a testament, just as they should be at a marriage contract.’ Their testimony might be the only way this question could be answered. 86 The estates of such men rarely came before the courts, but when they did, the people involved were dismissed; e.g. Ex officio c. Pynchon (Canterbury, 1473), CCAL, Act book Y.1.10, fo. 31: “Et postea

allegat et sub testimonio fidedignorum quod pauper obiit et non habuit unde testamentum facere deberet. Et ideo dimissus est’. 87 e.g, Ex officio c. Freman (London, 1497), GL, Act book MS. 9168/1, fo. 27v (twenty-two years); Ex officio c. Sharnewell (Rochester, 1475), KAO, Act book DRb Pa 4, fo. 271 (forty years). 88 See e.g. Ex officio c. Bishopp (Norwich, 1502), NCCD, no. 35. See also Marsh, ‘Departing Well and

Christianly’ (above n. 45), 216-20. 89 Provincial Statute of 1455 in Wilkins, Concilia, 111. 574-5.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 407

An instructive example is provided by a mid-sixteenth-century case involving a leasehold held at his death by George Goodyear. His written will left the leasehold to his wife, adding that if she married again it should pass to Francis Busbye. But what if she died unmarried? The written will did not say. Busbye thought the testator had meant to leave the remainder to him at her death; the widow thought he had meant to leave it up to her to decide to whom it would ultimately pass. The

omission had been recognized shortly before he died and some members of the family went to see him clear it up. But the evidence about what he had said when the problem was put to him turned out to be conflicting. Some said one thing; others something else. Nothing was reduced to writing. The man who had done the writing of the original will said it had been his assumption all along that the grant was to be valid “during widowhood. He had written what he did only because of his own ‘lack of knowledge’. When he discovered the problem he went to Goodyear’s house, but when he arrived his wife (the beneficiary) had told him that her husband was asleep, and he had been unable to speak with him again before he died. Hence the uncertainty about what his actual last wishes had been. Cases like this one are not unknown today. Very likely, they have been known (and will be known) in every age where last wills and testaments are used to pass property at death. However, three things about it are worthy of special remark. First, the nature of will making led naturally to such disputes. The reason we seek out lawyers to draft wills is that they are likely to think of the problem. No one had done this for Goodyear. No lawyers had been present. Second, most of the witnesses to this will had an interest in the outcome. Indeed, the legal value of their testimony was one of the legal problems that confronted the appellate judge in the case. The law treated their testimony as suspect, but there was no one else who could testify. Third, the English ecclesiastical courts sought to determine what the actual last wishes of the decedent had been. Today, judges would be required to

stick with the terms of the written will. Then, the functional equivalence of nuncupative and written testaments precluded ignoring what the dying man had really wanted, or at least what he had really said. The problem was anticipated by the jurists of the ius commune.®! And indeed, that is what happened in the case. The words ‘or at her death’ were added to Goodyear’s will by the judge of first instance, and his sentence in favour of Busbye was affirmed on appeal. The temptation to repeat similar stories is one the historian of law must resist. It would not do, however, to leave the subject without a brief and more general word about some of the sources of recurring problems. One was raised by the friend or relative who visited the decedent shortly before his death and asked him, subtly or 90 Busbye c. Smythe and Execs. of Goodyear (Durham and York, 1562-5), BI, Trans.CP.1562/1. 91 See Giovanni Chiodi, Linterpretazione del testamento nel pensiero dei glossatori (1997), 485-617.

408 TESTAMENTARY LAW AND PROBATE JURISDICTION not so subtly, for a bequest. A valid bequest could be done orally, and it must have been hard to say no, even if the decedent wanted to exclude the importunate guest from his will. And of course the dying man might know he could always restate his original intention once his visitor had left. Another source of potential conflict was the oral codicil to the written will. Often enough, these cases involved what look to have been ‘after-thoughts’ by a dying man. His will had been written down and it was read back to him. Then he thought of something else (or something different), and he told those around him what he was thinking. Were these new words meant to be a clarification, an addition, or a partial revocation of what the will itself contained? If they were written into the existing will, they might appear to be suspicious interlineations. If they were not, they might be hard to establish and difficult to interpret. There would be questions at issue, matters for a court to decide.% Still another complicating factor was presented by more comprehensive desires by many men to arrange their affairs before they died. Forgiving debts, settling

marriage gifts, and sorting out what belonged to whom—all were things it was perfectly natural to wish to complete before dying.°4 The statement of a dying

man that he has paid a debt is not something a judge would be sensible to ignore.®> All these complicated probate, however, because arranging them was usually done orally, and it was not always easy to class them with testamentary dispositions properly speaking. Only modern probate practice has firmly separated the formal will from the informal settling of accounts. To their credit, the ecclesiastical courts took a more realistic view of life, though difficulties of proof and coordination with the secular courts arose in doing so. Even in their own sphere, working out what the final desires of decedents had been was made more complicated by that admirable realism. It made for uncertainty. Sir Edward Coke was absolutely right to advise testators to take great care with the formalities in disposing of their estates.%° 92 e.g. Estate of Pette (Rochester, 1446), KAO, Act book DRb Pa 2, fo. 61: ‘per importunitatem petentium hoc fecit quia aliter non potuit habere pacem’. Other apparent examples: Will of Ree (London, 1494), GL, Deposition book MS. 9065, ff. 239-41; Gosling c. Gosling (Canterbury, 1557-8), CCAL, Deposition book X.10.6, ff. 176-9 and Act book Y.2.19, fo. 46; Will of Sparrow (York, 1567), BI, D/C.CP.1567/4.

93 e.g. Prior c. Prior (Archdnry St Albans, 1590), HTRO, Precedent book ASA 6/4, ff. 7-8: the testator is said to have added, “Yet there is somewhat else which I would give’. Other examples: Estate of Sharp (Durham, 1562), DUL, Act book DDR VII/2, fo. 12v; Will of Horseman (York, 1568), BI, D/C.CP.1568/4; Estate of Lisney (Canterbury, 1623), CCAL, Deposition book X.11.14, ff. 132-4. 94 e.g. Preston c. Exec. of Cook (York, 1434), BI, CP.F.114: “Et concordia tunc fuerat facta inter eos,... et renuciavit hinc inde omnibus actionibus personalibus et realibus. Other examples: Exec. of Scardeburgh c. Mollescroft (York, 1402), BI, D/C.CP.1402/1 (tort claim), Wayne c. Cobden (Chichester, 1499), WSRO, Act book Ep II/4/1, fo. 89 (debt); Estate of Dycke (Ely, 1542), CUL, Act book EDR D/2/3, fo. 9 (ownership of

a horse). 95 Such a statement by John Wilde (1478) was reduced in writing in BL, Add. Ch. 5225. 96 Butler v. Baker (KB 1591) 3 Co. Rep. 25a.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 409

Proving the Will As in the laws of marriage and tithes, there was little articulate resistance to the English church’s claims to probate jurisdiction. It was one of those parts of the legal landscape that people accepted. Even though it would have been possible under the

canon law, it was only in the seventeenth century that any real challenge to the church’s jurisdiction appeared. And most of the challenges then were theoretical. What there was all along, however, was a kind of grumbling reluctance among some people, a disinclination to submit cases involving succession to the courts of the church. Only occasionally did this bubble up to the surface of the court records. But it was there. The fees always exacted for administration of estates probably had as much to do with the resentment as anything else. SECURING DUE PROBATE OF ESTATES

In ex officio prosecutions, the ecclesiastical courts routinely cited wives, children or siblings, and executors named in wills (or alleged to be named in wills) to appear

before them, and ‘to exhibit the testament of [a decedent] if he had made one’9” The court officers were not passive about this. Visitations were used to ferret out estates that might be subject to ecclesiastical probate,98 and the apparitors, many of whom were assigned a specific territory, could have informed the registrar or the judge about likely candidates for probate. Possible legatees under a will would have done the same. The death of a man of even moderate wealth would have been a matter of common local knowledge, and probate jurisdiction was widely enough shared for it to have come to the attention of some court. If the man had made no will, an administrator could be appointed to take charge of the intestate’s assets. It was an answer that the will had already been proved before another competent judge.9? It was also possible to say that the decedent had been so poor he died without assets. Dismissal followed.!°° But otherwise, if there were assets, they were subject to probate administration.

The procedure used in the ecclesiastical courts extended to what we call the discovery of documents. Although it was a power used more frequently to force the production of evidence in the course of litigation, discovery also played a part of the effort to compel submission of decedents’ estates to the jurisdiction of the 97 e.g. Estate of Hatchenden (Rochester, 1590), KAO, DRb Pa 20, fo. 11: requiring the defendant to produce a testament ‘si quod condiderat’. 98 See e.g. the act book of the archdeaconry of Colchester (1540-2), ERO, D/ACA 1, which contains many such entries. 99 e.g. Ex officio c. Totram (Ely, 1599), CUL, Act book EDR D/2/20, fo. 27, alleging that the decedent had had bona notabilia and that the will was before the PCC. 100 e.g, Estate of Gyttyn (Hereford, 1454), HFRO, Act book O/5, p. 90: ‘dimittitur quia nichil habuit in bonis.

410 TESTAMENTARY LAW AND PROBATE JURISDICTION courts. A party with an interest in the outcome of litigation had the right to seek a view (aspectio) of relevant documents, including last wills and testaments.1©! Anyone who was alleged to have hidden, alienated, or withheld charters and other documents relating to a decedent’s estate could be compelled to produce what they had.192 Wives were the most natural recipients of such orders.!93 That the power to compel discovery of documents exercised in the Court of Chancery was derived from an ecclesiastical precedent has not been proven, but the two systems

had much in common.! Despite their best intentions, the ecclesiastical courts were inevitably faced with

situations where they had been unable to get the executor and other parties to appear. Cases ranged from that of a master who retained the goods of his former servant, thereby frustrating the named executor’s attempt to take charge of them, to the case of a relative, widow, or widow’s new husband who took it upon him or

herself to carry out the decedent’s last wishes, but without first submitting to ecclesiastical authority.1°5 To prove a will cost money. The temptation to pay the debts and settle the disposition of an estate privately must have been strong. Their action in doing so might have been quite benign. Whether it was or not, when the courts got wind of an estate of any size being administered without their approval, they took action.

They would also go beyond simply summoning the presumed executor to produce the will. They proceeded against those who were in possession of the goods and chattels of the decedent. The most common name given to these suits in English practice was the causa temerariae administrationis bonorum. Some were

brought against those who were otherwise entitled to administer but had not bothered to come before a court.1°° Others were brought against those whose 101 e.g, Legg c. Hill (Exeter, 1534), DRO, Act book Chanter MS. 778, s.d. 3 June: “Petiit aspectionem

tabularum testamenti Johannis Legg defuncti super quibus poterat instrui. And order ‘ad exhibendum testamentum’ was issued. 102 e.g, Ex officio c. Tomson (Ely, 1463), CUL, EDR Liber B, fo. 69v: “[Defendant] alienavit certas

evidencias terrarum et impedivit ultimam voluntatem...[et] promisit deliberare omnes evidencias infra viii dies’.

103 e.g. Ex officio c. Boothe (Durham, 1592), DUL, Act book DDR IV/3, fo. 33: “ad ostendum testamentum mariti sui defuncti. 104 See John H. Wigmore, Treatise on the System of Evidence in Trials at Common Law (1904) SS 2857, 2219.

105 e.g. Ex officio c. Swetying (London, 1487), GL, Act book MS. 9064/2, fo. 194v: ‘adminstrat bona

Johannis Palmer defuncti mariti sui sine ordinarii auctoritate. Other examples: Ex officio c. Dier (Winchester, 1523), HRO, Act book 21M65/Ci/1, fo. 104; Palm c. Hoyte (Lichfield, 1592), LJRO, B/C/5/1592; and Ex officio c. Spenloe et al. (Archdnry Buckingham, 1601), BKRO, Civilian’s notebook D/A/C/25, fo. 23v. 106 e,9, Estate of Thewe (Hereford, 1454), HFRO, Act book O/5, p. 9: “Rees Thewe nuper de parochia de Kenchester decessit ab intestato. Doghy relicta eiusdem administrat bona et catella dicti Rees absque aliqua sufficienti auctoritate.. She appeared before the court and administration was committed to her.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION All

status was in doubt or who had no right to administer at all. Pleading in them typically alleged: (1) that the defendant had no right to claim administration; (2) that goods of the decedent’s had nevertheless come into his hands; and (3) that, not giving them up to the proper authorities, he had instead refused (and still did refuse) all attempts to collect them so that the estate could be properly

administered. An inventory of the goods in question might be attached to the libel.197 Suit could be brought as either an instance matter or an ex officio prosecution, but in either case the object was to secure restoration of the chattels or, if that were not possible, to charge the ‘temerarious administrator’ as a fiduciary in auto-

matic breach of his duty. Orders of sequestration covering the assets might be entered to restrain further dissipation or interference with them.!°8 From these roots emerged the institution known in the common law as the executor de son tort,!°° the person whose office carried with it all the liabilities and none of the privileges that normally belonged to testamentary executorship. BANKRUPTCY AND GIFTS INTER VIVOS

Two special problems arose in probating estates. They both involved men who died possessed of too little property to meet all the claims that would be made against them. One was usually involuntary—the bankrupt estate. The other was voluntary—the estate of anyone who had given away all his goods before he died. The English civilians had to fashion a response to the problems these cases created, and they had to vary slightly the form of probate that the will would take in consequence. English law knew nothing of the Roman law’s cessio bonorum, and before the Tudor period, no common law procedure existed to deal with bankruptcy.11° Absence of such provisions in the temporal law can only have increased the number of insolvent estates. When they judged the testator had died too far in debt to meet all the obligations outstanding, the executors named in a will usually refused to accept the office and the accompanying duties of administration. They would appear before a court expressly to renounce the executorship, and a ‘fear of the creditors’ or some variant would be the reason they gave.!41 Once the executors had undertaken the office, they could not 107 Ex officio c. Nealer (Lichfield, 1591), LJRO, B/C/5/1591. 108 e.g, Ex officio c. Wilkes et al. (Rochester, 1451), KAO, Act book DRb Pa 2, fo. 140: ‘Emanavit litera -

rectori de Southflet et aliis ad sequestranda bona Ricardi Wikes defuncti...et Johannes Wikes de Longfeld ad respondendum super eo quod administravit bona defuncti sine auctoritate’. 109 John Godolphin, The Orphan’s Legacy or a Testamentary Abridgment (1st edn, 1674), pt. II, c. 8. 110 See 34 & 35 Hen. VIII, c. 4 (1543) and the more lastingly important 13 Eliz. I, cc. 5, 7 (1571), dis-

cussed in W. J. Jones, The Foundation of English Bankruptcy: Statutes and Commissions in the Early Modern Period (1979). 111 e.g, Estate of Brown (Rochester, 1473), KAO, Act book DRb Pa 4, fo. 16: Renunciation by the

named executor, ‘propter metum creditorum quia bona non sufficiunt ad solucionem debitorum’

412 TESTAMENTARY LAW AND PROBATE JURISDICTION legally escape its obligations, but no rule of law required them to take it up in the first place. It might be a matter of prudence to avoid it.!!2 Prudent declining of the executorship did not, however, disqualify the person from undertaking any administration of a bankrupt estate; it only changed the form. Roman law allowed the haeres to take advantage of the beneficitum inventari to limit his potential liability to the assets available, and the English courts followed this lead. The oath of the administrator would require him only to pay the debts “insofar as the goods extended’1!3 The procedure used in such cases built upon what was done in ordinary probate administration. Testaments would be proved. Oaths would be taken. What assets

there were would be collected. An inventory would be made. Bankruptcy of an estate called for only three special features: first, an order sequestering the decedent’s goods; second, public proclamations calling all creditors of the decedent to appear and submit their claims under penalty of losing them; and third, establishment of a proportion at which legitimate claims would be paid.114 The latter was called defalcatio or rata bonorum. For example, in a Gloucester case from 1560, creditors received 6s. for each £1 in claims they could prove.!!5 This seems to have been typical; where there were no assets, they of course received nothing, but often enough there was enough left for them to receive a share. As the date of this Gloucester case shows, the system did not cease after the elimination of testamentary debt from the church’s jurisdiction in the late fifteenth century. Nor did it disappear entirely with the enactment of the 1571 bankruptcy statute. It must have been more difficult to keep going, but informal adjudication of debt claims undoubtedly took place.11© The common lawyers were prepared to admit the legitimacy of proclamations calling together the creditors despite its seeming inconsistency with their claim to hear all debt cases. They tolerated it, ‘because it was the ancient custom?!!7 Whatever the rationale, administrators continued to bring actions in the ecclesiastical courts ‘against all creditors.118 The courts continued to declare barred claims of creditors who did not respond to the proclamation.!!9 Creditors themselves must have had a strong incentive to 112 Discussed in Precedent book (Norwich, c.1600), NNRO, ANW/21/8, at the end. 113 e.g, Estate of Gorwell (Canterbury, 1487), CCAL, Act book Y.4.2, fo. 102: “Et iuratus de fideliter administrando quatinus bona extendunt’. 114 For fuller discussion see Canon Law and the Law of England, 291-305. 115 Estate of Mille (Gloucester, 1561), GRO, Act book GDR 17, p. 150: ‘pro qualibet libra vi s116 e.g, Estate of Marley (Archdnry Lincoln, 1553), LAO, Act book Cij/3, ff. 1-2: rejection of a claim

‘quia non constabat aliquo legitimo modo de debito. 117 GL, MS. 11448, fo. 219 (Dr Marten reporting the opinion of Sir William Peryam). An example from the court records: Estate of Howell (Salisbury, 1562), WTRO, Act book D1/39/1/2, fo. 56v: “Facta est

proclamatione pro creditoribus Howell ad comparendum in hunc diem’. 118 e.g, Estate of Forde (Oxford, 1589), ORO, Act book Oxf. Dioc. Papers d.3, fo. 7v. 119 Estate of Adlambe (Archdnry Salisbury, 1585), WTRO, Act book D2/4/1/3, ff. 44v, 49: “Deinde domi-

nus preclusit omnes et singulos non comparentes et decrevit distributionem fieri citra proximum.

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cooperate. They commonly took a hand in collecting and appraising the assets, as in cases where a ‘principal creditor’ or a small number of them were appointed specifically to carry out the task.!2° One act book entry dealing with a bankrupt estate used the word ‘compounding’ to describe what the creditors did, and it seems likely that informal settlement of claims suggested by the term was the rule in practice.121 However one explains it, the system had not disappeared by the middle of the seventeenth century. It stands as an example of the continuing utility of ecclesiastical jurisdiction despite assaults from without. A common reason why estates were bankrupt was the inter vivos gift. Men gave away all they owned while still alive. Good reasons for doing so might have existed,!2? quite apart from a natural desire to spare survivors the expense of probate adminis-

tration. One was a trust-like arrangement—a man or woman would receive all the goods of a person who could no longer care for himself in return for a promise to provide that care until the person died.!23 Others were simply gifts to the natural takers of a man’s estate. The ecclesiastical courts did not oppose these and other gifts like them, although they always required them to be proved, typically by showing a deed of gift.!24 To judge by the frequency with which a writing was mentioned as being submitted to the courts, they required either a transfer of possession inter vivos or the existence of a writing to establish the gift’s validity.125 Even fully proved inter vivos gifts were treated as invalid, however, if they were made ‘in fraud of church, king, creditors, or heirs.12© This ground of invalidity was stated definitively in a provincial constitution called Cordis dolore from the time of 120 e.g, Estate of Attwell (Canterbury, 1631), CCAL, Act book Z.1.15, fo. 202: Richard Birkhenhead, the principal creditor, was permitted to bring suit against the decedent’s widow, no doubt to recover the assets. 121 Estate of Dudley (Bath and Wells, 1616), SRO, Act book D/D/Ca 187, s.d. 28 Jan.: “cum creditoribus antedictis de novo composuisse’; Estate of Jones (Lichfield, 1639), LJRO, Act book B/C/2/73, s.d. 22 Oct.: ‘conceditur administratio creditoribus promoventibus’. See also Precedent book (York, c.1610), BI, Prec. Bk 2, p. 465: ‘Administratio ab intestato decedentis concessa creditoribus. 122 e.g. Estate of Crabb (Archdnry Colchester, 1638), ERO, Act book D/ACA 53, fo. 120: “et allegavit illud factum fecisse bona fide et bonis considerationibus’. 123 e.g, Ex officio c. Tilherst (Rochester, 1447), KAO, Act book DRb Pa 2, fo. 76: “ad inveniendum eidem Simoni durante vita sua victus sui necessaria. See generally Elaine Clark, “Some Aspects of Social Security in Medieval England’ (1982) 7 Jnl Family History 307-20. 124 e.9, Ex officio c. Budd (Archdnry Huntingdon, 1598), HTRO, Act book AHH 5/3, fo. 2.41: ‘literas quas-

dam donationis dicti fratris sui subsignatas manu seu signo eiusdem. Other examples: Ex officio c. Raymer (Ely, 1589), CUL, Act book EDR D/2/18, fo. 45; Ex officio c. Emerton (Archdnry Buckingham, 1610), BKRO, Act book D/A/C/3, fo. 202v; Ex officio c. Minor (Bath and Wells, 1640), SRO, Act book D/D/Ca 334, fo. 14Vv. 125 e.g, Will of Carpenter (Lincoln, 1339), in: Poos, Lower Courts, 89; Ex officio c. Brabin (Lichfield, 1598),

LJRO, Act book B/C/3/5, s.d. 4 Aug.: ‘et ostendit literas donationis earundem bonorum’; Ex officio c. Studamarear (Hereford, 1638), HFRO, Act book O/98, s.d. 19 Feb. [Deanery of Archenfield]: “ad probandum quoddam scriptum donationis. But cf. Ex officio c. Partridge (Gloucester, 1600), GRO, Act book GDR 86, fo. 130: ‘ad probandum donationem per testes’. 126 So stated by Mark Tabor (c.1640), in gloss to his copy of the Institutes, Wells Cathedral Library, D.2.34, marg., fo. 80v; he cited only “provincialibus Anglie’ in support.

414 TESTAMENTARY LAW AND PROBATE JURISDICTION Archbishop John Stratford (d. 1348).!27 Roman law might also have been called upon to support this limitation on testamentary freedom (e.g. Dig. 42.8; Cod. 7.75.3), but it was this piece of English synodal legislation that was mentioned as the source of law

in the court books. Lyndwood commented upon it at length. Exhumation of the body of the deceased donor and its exclusion from consecrated ground—called for under Cordis dolore where a fraudulent gift of this sort had been established—was threatened in a Canterbury case from 1421 and one from St Albans in 1520. Whether or not the threats were actually carried out we do not know.!28

For the ecclesiastical courts to determine the validity of such inter vivos gifts might have been regarded as acting outside their jurisdiction, even by the generous definitions the English civilians allowed themselves. It might seem to threaten the common law’s jurisdiction over lay debts and chattels. However, the civilians took the view that this jurisdictional exclusion did not apply to them where the existence of a gift was raised only by way of an exceptio, that is as a defence to a causa temerariae administrationis bonorum. Where the initial proceeding was brought against a donee for wrongful interference with the chattels of the decedent, undoubtedly a testamentary cause, donees would claim that, far from acting wrongfully, they held the property by gift. Because this defence was incidental to the principal issue in the suit (the wrongful interference), the ecclesiastical courts might proceed.!29 Accessorium sequitur principale (Sext 5.[13].42). This may be the

tail wagging the dog. But it provided a justification for exercise of a jurisdiction that was otherwise convenient, and allegations of gifts having been made in fraud of rightful claimants did come before the courts. Where the gift had been large, it was a common practice to name the donees as administrators of the estate and to charge them with the collection of debts and the payment of legacies.13° THE MECHANICS OF PROBATE

Having secured the attendance of the executors and ascertained the existence of assets at the date of death, the courts formally approved the decedent’s will and confirmed the status of the executors (or assigned an administrator if he had died 127 Council of London (1342), c. 9, in: Wilkins, Concilia, 1. 706; Lyndwood, Provinciale, 161-5; see also the commentary on the council in Roy Haines, Archbishop John Stratford (1986), 394-405. 128 Ex officio c. Pyndfold (1421) CCAL, Act book Y.1.3, fo. 180; Estate of Warner (1520) HTRO, Act book ASA 7/1, fo. 2.4.

129 See Ex officio c. Boston (Durham, c.1584), DUL, DDR/XVIII/3, fo. 134v, citing Brooke’s Abridgement in support. 130 Ex officio c. Cowper (Rochester, 1472), KAO, Act book DRb Pa 4, fo. 5v, requiring them to act ‘ne

incurrant in penam constitutionis De donationibus, ca. Cordis dolore. Other examples: Estate of Wynker (Rochester, 1448), KAO, Act book DRb Pa 2, fo. 97; Estate of Hampton (London, 1499), GL, Act book MS. 9064/7, fo. 73v; Ex officio c. Tayler (Lichfield, 1598), LJRO, Act book B/C/3/5, s.d. 3 Aug.; Ex officio c. Orteby (Lincoln, 1342), in Poos, Lower Courts, 155.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 415

intestate). A public proclamation might be made to discover if anyone had objections to the validity of the will.13! Proof of a will in common form required only presentation of the will to the appropriate court official and establishment of its validity by the oaths of the executor and witnesses to the will—sometimes even less in the way of proof, as Swinburne remarked.132 None of the potentially interested parties had to be formally cited. Proof of a will in solemn form, by contrast, called for citation of all

those who had an interest in the estate, and it required testimony of witnesses to prove the will’s authenticity. The former was shorter and cheaper; the latter more secure, since probate in common form could be challenged as of right at any time, but probate per testes was not contestable after the passage of thirty years.133 From at least the later sixteenth century, the courts adopted a system whereby interested parties could ensure solemn probate by introducing a cautio (or caveat as they are more normally called in English practice) before any action had been taken.!34 This was a notice to the court not to approve a will without notifying a particular party, so that he or she could contest the will’s validity. The most immediate task, however, was to take care of the funeral. Either before or shortly after proof of the will, the executors were required to compile an invent-

ory of the estate, including what was owed to and by the decedent. They had to submit it to the court, where, as with all the steps involved, it could be challenged as false or incomplete.!35 Formal commission of administration of the estate, normally to the executors themselves, followed. Its essence was a direction to ‘carry out’ the last will and testament of the decedent, within the limits of the law and as directed by the court. Sureties or penal bonds to guarantee performance were sometimes used as part of the effort, particularly after the demise of the English church’s jurisdiction over breach of faith had deprived the courts of the power to enforce oaths directly. Then came the detailed process of administration: paying and collecting debts, dealing with mortuaries, satisfying legacies, seeing

to it that the children’s portions were paid, and the other details required by the process of administration. Some of the work might, for example, require going 131 e.g, Will of Bragge (Hereford, 1443), HFRO, Act book O/2, p. 44: “eodem die facta fuit proclamatio

an aliquis voluerit obiicere contra quoddam testamentum in scriptis exhibitum.

132 The processes are described in Swinburne, Brief Treatise (above n. 45), pt. VI § 6. See also Sheehan, The Will (above n. 2), 196—211.

133 The rule was carried to the extent of allowing it to be challenged even by those who had already received legacies under it; Barksdale c. Hotchines (PCC, 1631), SKRO, E 14/11/7. For the thirty-year period, see Cowell’s Interpreter, s.v. Probat of testaments; William Nelson, Lex Testamentaria (1714), 423-4. 134 e.g, Ex officio c. Execs. of David (St David’s, 1591), NLW, Act book SD/CCCm/1, fo. 71v: “comparuit

Johannes Richard de Carmarthen alias cautionem interponens versus testamentum dicti defuncti. The documents themselves commonly began, “Caveat ne fiat aliquid in bonis... going on to assert the party’s interest in the estate. 135 e.g, Estate of Angell (Salisbury, 1555), WTRO, Subdean’s Act book D4/3/1, fo. 34v: “Et recusavit

acceptare inventarium quia est insufficiens et truncatum nec bona sufficienter appreciata’

416 TESTAMENTARY LAW AND PROBATE JURISDICTION to a local court, or even the courts at Westminster. At the end of the process, the executors submitted their accounts—the process discussed in Chapter 6—and received a discharge from the court. Under some of the diocesan statutes, which followed the lead of Roman law (Cod. 1.3.28), unless the whole process had been completed within a year, the executors were to be considered negligent and removed from office.!3© Such a rule could not be enforced to the letter, of course, but forays

into the probate archives have been made, and they show that the time normally taken by the probate process was actually quite short, much shorter than it is today.!9” This schematic depiction of probate, accurate enough though it may be in outline, should not be taken as a complete picture. If it were, it would paper over the many legal problems that arose in the course of administering estates. For example, where

more than one executor was appointed (as happened often) and one died and was ‘replaced’ by his own executor (as also happened often), how should relations between them be organized? This situation caused headaches galore. We shall look at a few such problematic areas in the next section. The probate system never operated without hitches. For instance, a great deal depended upon the good faith of the executors, who in theory were not entitled to take for themselves any part of the estate not bequeathed or due to them under the law. They were given wide discretion under many wills, however, and the formal accountings they were compelled to make could not guarantee their rectitude. The ‘unfaithful executor’ was a stock figure of satire and complaint in medieval English literature.!38 In addition, there was the question

of probate fees. No aspect of the English church’s jurisdiction attracted more or longer-lasting complaint, and it has been well chronicled by historians of the courts of the church. Probate fees, it may be said, were not the product of choice or fault. On

that account alone one may suppose the people obliged to pay the fees would be especially likely to object. True enough, but the complaints were long-lived and they

were loud. They cannot have been wholly without substance. From first to last, Parliamentary and synodal statutes were enacted to curb excessive exactions for proving a will.!39 Their success was never complete. Efforts to reform the system did not still the complaints.!4° Even some English civilians echoed them.14! 136 Statutes of Exeter c. 50 (1287) in C. & S. II, pt. 2, 1047. The requirement was mentioned in practice; see Ex officio c. Cust (Lincoln, 1337) in Poos, Lower Courts, 21; Ex officio c. Carater (Archdnry Chester, 1524), CRO, Act book EDC 1/3, fo. 10. 137 See introd. to Reg. Chichele, ii, pp. ix-xxxv; Houlbrooke, Church Courts, 115. 138 FE, J. Arnould, Manuel des péchés: Etude de littérature religieuse Anglo-Normande (1940), 121-23 Thomas Kinney, “Two Secuturs and an Overseere make Thre Theves: Popular Attitudes toward False Executors of Wills and Testaments’ (1980) 3 Fifteenth Century Studies 93-105. 139 e.g, 31 Edw. III, st. 1, c. 4 (1357); 21 Hen. VIII, c. 5 (1529).

140 See the evidence given in Houlbrooke, Church Courts, 114-15; Kitching, ‘Prerogative Court’ (above n. 39), 208-13; Marchant, Church under the Law, 243-4. 141 Comment on change in testamentary practice (c.1616), BL, Harl. MS. 1877, fo. 86v: “But the true cause is to raise fees.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 417

Legal Aspects of Testamentary Administration Carrying out the last wishes of some testators proved to be a complicated task. Difficulties went beyond the interpretation of testamentary language, although many of the cases found in the English ecclesiastical reports from the late sixteenth and

seventeenth centuries dealt with some of the apparently timeless problems in the modern law of wills. Does a legacy of a chest include the contents of the chest? It all

depends on the nature of the chest’s contents. The law presumes to interpret the testator’s intent based on the character of what is inside. If the objects found there fit with what a chest normally contains, they pass under the bequest. If they are out of place there, however, they do not. Analysis of cases like this old chestnut scarcely changes from one age to another.!42 The Roman jurists discussed them. We discuss them still. Beyond noting their existence, we cannot stop for them. Primary attention must be given to the areas where the ecclesiastical courts made a special contribution to the development of English law and where they encountered special problems. CHARITABLE BEQUESTS

Securing enforcement of charitable bequests was the stated reason for canonical intervention in the law of testamentary succession. It was part of the church’s inheritance from Roman law (Cod. 1.3.45), and in some parts of Europe it did furnish the main reason for ecclesiastical intervention in the law of succession. Special files were kept for piae causae in the archives of the courts of the church.!43 This category included bequests for the benefit of the church and the soul of decedents of course, but it was wide enough to embrace bequests for the redemption of captives, the succour of the poor, the care of widows and muserabiles personae, the

repair of bridges and roads, the aid of pilgrims, and the provision of dowries for deserving maidens.!44 Bequests for charitable purposes were afforded special legal privileges in the 1us commune. A standard treatise on the law managed to list 167 of them.!45 The rule that they would not fail for want of a specific beneficiary is probably the most significant example of a privilege that has survived into our own day. A gift made ‘to the poor would be carried out even if no specific poor persons were named in the legacy. This was done routinely in the ecclesiastical forum.

The English law of charity did not, therefore, begin with the Statute of Charitable Uses (43 Eliz. I, c. 4, 1601).!46 Although Lyndwood would stretch to 142 The example is discussed at length in an opinion of Dr Duck (1630) in Book of Opiniones doctorum, SKRO, MS. E 14/11/7, fo. 1.

143 A record class kept at Barcelona was called “Iestamenta et Piae Causae’ (Barcelona Cathedral

Archives). 144 Taken from Albericus de Rosate, Dictionarum turis, s.v. Piae causae. 145 See Andreas Tiraquellus, De privilegtis piae causae tractatus (Cologne, 1587), Proem. 146 Gareth Jones, History of the Law of Charity 1532-1827 (1969), 3-15; J. A. F Thomson, “Piety and Charity in Late Medieval London’ (1965) 16 JEH 178-95.

418 TESTAMENTARY LAW AND PROBATE JURISDICTION include all bequests as within the definition of the piae causae in order to explain the English church’s jurisdiction over succession, he did not forget the special

nature of truly charitable bequests,!4”7 and the courts did not do so either. Bequests for the repair of roads, the upkeep of a parish church, the benefit of the

poor, and (during the Middle Ages) the saying of Masses for the soul of the departed all fell within the competence of the ecclesiastical courts.!48 So were cases begun to secure adequate maintenance of church ornaments and the care of parish libraries.!149 Where no specific beneficiary had been named in the will, exactly how such bequests were distributed must have been left up to the execu-

tors or other persons charged with the responsibility of carrying them out. Discretion must have been allowed to them, but the records do show that charitable fiduciaries (as we may call them without serious anachronism) were first subject to approval by the ecclesiastical courts and then required to make an accounting of their administration of the funds.1%° The privilege of varying the terms of a charitable trust when fulfilment of the terms became impossible—the doctrine known as cy-prés in our law—was also a part of the zus commune,!>! and it was certainly known in England. Swinburne took note of it.452 A case heard in the diocese of Ely in the 1460s authorized the change of a bequest for the purpose of erecting a cross in the parish church of Leverington to what the record described as ‘a more convenient use’ at the peti-

tion of the churchwardens.153 One begun at Rochester about the same time authorized the change of a bequest for repair of a church’s bell tower to one for repair of the parish church itself, because of an immediate danger to the latter.154 The surviving records discovered so far have only produced a few such cases;!55 it may be that more were handled personally by the bishops.15° More commonly found was the creation of provisions for charitable uses out of the estates of men 147 Provinciale, 180, S.v. pias causas. 148 Exec. of Baker c. Willyam (Canterbury, 1373), CCAL, Act book Y.1.1, ff. 71, 73; Ex officio c. Execs. of

Fitchett (Exeter, 1534), DRO, Act book Chanter MS. 778, s.d. 3 Aug.; Ex officio c. Maycott (Canterbury, 1618), CCAL, Act book X.9.14, fo. 59; Howell c. Sabot (Winchester, 1525), HRO, Act book 21M65/C1/2, fo. 82.

149 e.g, Churchwardens of Hernhill c. Belde (Canterbury, 1421), CCAL, Act book Y.1.4, fo. 35: styled a

‘causa exhibitionis unius cerei coram ymagine beate Marie’. 150 e.g, Ex officio c. Kennett (Canterbury, 1577-8), CCAL, Act book X.2.1, fo. 2v, in which it was presented that Kennett had not made an accounting for moneys left for the benefit of the poor. He then appeared, made the accounting, and was dismissed. 151 See Johannes Petrus Moneta, Tractatus de commutationibus ultimarum voluntatum (Lyons, 1624). See Reinhard Zimmermann, “Cy-prés’ in Iuris Professio: Festgabe fiir Max Kaser zum 80. Geburtstag, ed.

Hans-Peter Benohr et al. (1986), 395-415. 152 Brief Treatise (above n. 45), pt. I § 16, no. 4. 153 Ex officio c. Execs. of Everard (1462), CUL, EDR Liber B, fo. 2ov. 154 Fx officio c. Lorkey (1459), KAO, Act book DRb Pa 3, fo. 383. 155 Another possible example is: Ex officio c. Kyng (Lincoln, 1339) in Poos, Lower Courts, 90. 156 e.g, Church of Blandford Forum (Salisbury, 1414) in Reg. Hallum, no. 1026.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 419

who had died intestate or had otherwise made incomplete dispositions of their goods.!57 The subject deserves further exploration. TESTAMENTARY TRUSTS

It is scarcely possible to exaggerate the frequency with which the English ecclesiast-

ical courts made use of trust-like devices.!58 Whether they can be described as ‘trusts’ in a strict legal sense is a more arguable question.!59 The English courts never developed a distinct jurisdiction for trusts—there was no causa fiduciaria for example—and no English civilian wrote a treatise about the law of trusts. Some of the legal categories regarded as necessary parts of true trusts—separation of legal from equitable title for instance—played no apparent part in the ecclesiastical law or practice. All the same, management of property by one person for the benefit of another was a regular part of the law administered by the spiritual courts of the land. In a general sense, the institution so familiar in them should occupy some place in the history of the famous English trust. It was almost inevitable that the ecclesiastical courts would make some use of the idea. The possession of property to which fiduciary duties were attached was a natural and obvious part of the canon law.!® Most spiritual offices and much ecclesiastical property was held subject to a duty to provide for others and to preserve the corpus for the future. Moreover, something very like the trust was known to Roman law, in large measure though the institution of the fidetcommissum.}®! The law of fiducia was subject to considerable development by the jurists of the ius commune, some of whom were prepared to attribute legal personality to institutions where the concept of fiducia came into play.!® In other words, the formal law of the church prepared the way for the creation of trust-like institutions. In the context of English testamentary law, the greatest incidence of the ‘trusts’

that found their way into the courts occurred in administering bequests for minors. Property bequeathed to children was routinely delivered to their personal 157 e.g, Estate of Haynton (Lincoln, 1337) in Poos, Lower Courts, 36. 158 Tt was noted by E. F. Jacob, “The Archbishop’s Testamentary Jurisdiction’ in Medieval Records of the Archbishops of Canterbury (1962), 47.

159 See e.g. Joseph Biancalana, “Medieval Uses’ in Itinera Fiduciae (above n. 13), 113: “But rough resemblance, however interesting, does not make for historical connection’ The question is more fully considered and more evidence set out in R. H. Helmholz, “Trusts in the English Ecclesiastical Courts’ in ibid. 153-72.

160 See Shael Herman, “The Canonical Conception of the Trust’ in Itinera Fiduciae (above n. 13), 85-109; Maurizio Lupoi, “The Civil Law Trust’ (14999) 32 Vanderbilt Jnl Transnational Law 967-88. 161 See David Johnston, The Roman Law of Trusts (1988).

162 Ferdinando Treggiari, Minister Ultimae Voluntatis (2002), 78-88, 167-80; Robert Feenstra, ‘Foundations in Continental Law since the 12th Century: The Legal Person Concept and Trust-like Devices’ in Itinera Fiduciae (above n. 13), 305-26, and Michele Graziadei, “The Development of Fiducia in Italian and French Law from the 14th Century to the End of the Ancien Régime’ in ibid. 327-59.

420 TESTAMENTARY LAW AND PROBATE JURISDICTION representatives or guardians to be held and used for their benefit, usually until the reached majority. Phrases like ad opus, utilitatem et commodum, or ad commodum,

proficuum et utilitatem, or ad usum et educationem were used to describe the relationship between guardians and children in administering property.!% Details might be added, as in specifying the amount to be used yearly for their benefit, but normally the guardian’s duties were stated only in general terms.!% They were required only to provide for the sustenance and bringing up of the children, and to deliver the property bequeathed to them when the children reached the age of majority. Guardians were subject to continuing supervision and control by the courts, as in a case where, it was alleged, the guardians had received £100 in revenues from trust property, but they had spent nothing whatsoever on the intended beneficiaries.!©> Whether stimulating greater generosity or seeking their removal was the object of the suit is not wholly clear from the record. The latter was clearly available in appropriate cases.!% It is worth adding a note that the opposite, cases of prodigality on the part of the guardians, occurred too in the records. Guardians who spent too much of the children’s portions could be sued for the loss by their wards.1°% The court records also contain cases involving several other purposes for which ‘trusts’ were declared and their enforcement sought. Legacies left for the benefit

of women and the elderly came before them. So did charitable uses, as where

property had been left in continuing trust for the benefit of a church or the poor.!68 Something very like a trust among creditors occurred in bankrupt estates: one person would be chosen to administer the estate’s assets for the benefit of all the decedent’s creditors. Sequestrators who held ecclesiastical benefices on the death or incapacity of the incumbent, or those who took charge of property left

by a decedent that was subject of dispute, are two other examples commonly found in the act books. The corpus of most of these ‘trusts’ usually consisted of money, but cows, sheep, or even spoons could be held in one of them. “Trusts’ like these were a pervasive part of the ecclesiastical law. 163 e.g, Formulary (seventeenth century), LAO, For.22, fo. 180; Formulary (sixteenth century), MLD, MS. Z.3.1.18, pt. 2, fo. 71v; Estate of Barcombe (Chichester, 1564), WSRO, Act book Ep II/4/2, fo. liv. 164 Compare Estate of Strubby (Lincoln, 1339) in Poos, Lower Courts, 101 (allocation of particular sums) with Estate of Otebrede (Canterbury, 1398), CCAL, Act book Y.1.2, fo. 97v (money to be held and paid to the daughter ‘iuxta arbitrium ac discretionem’ of the rector of the parish). 165 Fx officio c. Crouche & Hooper (Salisbury, 1570), WTRO, Precedent book, D5/24/3, ff. 62-5. 166 Rampton c. Pratt (York, 1337), BI, CP.E.32. 167 e.g. Ex officio c. Stayne (Rochester, 1591), KAO, Act book DRb Pa 20, fo. 51; the defendant was

compelled to make a bond to guarantee that the children would receive their portion at majority. 168 e.g, Ex officio c. Norton (Norwich, 1605), NNRO, Visitation book VIS 4/1, fo. 1: ‘for detaining the use of v li. being 10s. being a legacy to the use of the poor and to be yearly paid’

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 421 FEOFFMENTS TO USES

A form of these ‘trusts’ that deserves particular notice is the feoffment to uses. It was connected with the English church’s jurisdiction both indirectly and directly. Indirectly, because a primary purpose for conveying land to feoffees to uses was to permit the feoffor to devise land by his last will and testament, despite the medieval common law’s prohibition of devises of land. Since legal title to the land rested in the feoffees, directions in the last will of the feoffor could control the devolution of the land at his death, effectively if not formally permitting the devise of freehold land. Directly, because the courts of the church were involved with them before the final third of the fifteenth century. They were called upon to

enforce the testamentary directions of feoffors. The common law courts took scant notice of those directions, and the Chancellors only began to provide a remedy over the course of the fifteenth century.!©? An obvious problem with uses lay

in their enforcement, and Maitland himself suggested that the courts of the church might have filled the gap.!”° To him it seemed inherently unlikely that so important an institution as this should have been left wholly dependent upon personal relations between the feoffor and his feoffees, particularly after the former’s death. And the records show that there was a mechanism of enforcement being made available in at least some of England’s ecclesiastical courts. The basic idea that lay behind it was a familiar one in the ius commune; the duty of a fiduciary cemented by an oath. The ecclesiastical lawyers would have found the English use easy to assimilate.171

The most completely preserved fifteenth-century act books—those from the dioceses of Canterbury and Rochester—contain numerous instances of the enforcement of uses. In 1455, to take just one instance, the executor of Jacob Warwell secured an order against the feoffees to uses nominated by Warwell, requiring them ‘to deliver possession of [his] lands according to the will of the decedent.!72 If they disregarded the will, they were subject to excommunication. Outside these two dioceses the evidence of ecclesiastical enforcement of uses is less abundant. This may be simply because the records elsewhere are less abundant. It is also possible that the nature of gavelkind, the special form of land tenure 169 Margaret Avery, Evaluation of the Effectiveness of the Court of Chancery under the Lancastrian Kings’ (1970) 86 LQR 84-97; id., ‘History of the Equitable Jurisdiction of Chancery before 1460’ (1969) 42 BIHR 129-44; but cf. Nicholas Pronay, “The Chancellor, the Chancery and the Council at the End of the Fifteenth Century’ in British Government and Administration: Studies presented to S. B. Chrimes, ed.

H. Hearder and H. Loyn (1974), 87-103. 170 Pollock and Maitland, 11. 232. 171 See Shael Herman, “The Canonical Conception’ in Itinera Fiduciae (above n. 13); Sergio Camara Lapuente, La fiducia sucesoria secreta (1996), 188—93.

172 Exec. of Warwell c. Elys and Jamys (Canterbury, 1455), CCAL, Act book Y.1.5, fo. 92v: ‘Tudex

assignavit ad deliberandum statum terre etc. citra proximum iuxta voluntatem defuncti. More examples from these two dioceses are given in Canon Law and the Law of England, 341-53.

422 TESTAMENTARY LAW AND PROBATE JURISDICTION associated with Kent, had something to do with this result. It is an old question whether land held in gavelkind was devisable before 1540.!73 However, the Kentish evidence does not stand alone. Cases involving feoffments to uses appear occasionally in the records at York, Norwich, Ely, and Hereford.!74 Their numbers would be larger if one counted executors described as holding land to specific uses. Executors were often the same people as the feoffees to uses in medieval practice.!75 In an Ely case from 1463, for example, the defendants were

prosecuted for failure to carry out testamentary directions concerning three acres of land, but it is not wholly clear whether they were sued in their capacity as executors or as feoffees to uses.!7° Two cases have been found dealing with feoffments to the use of mendicant orders—perhaps they are worthy of special note because of the old supposition that uses were invented as a way to reconcile the Franciscans requirement of apostolic poverty with their immediate need for food and shelter.!77

In all these cases, the ecclesiastical courts acted in personam against the feoffees. They had been charged, usually by oath, with administering the lands for the beneficiary named in a will, and the courts directed the feoffees to live up to the terms of the will—usually by ordering them to convey the land to the cestuil que use—as they had agreed to do at the time of the feoffment. In the eyes of the ecclesiastical lawyers, this did not amount to enforcing a devise of land. That would have impinged too directly on the common law’s rights. It was,

instead, ordering individuals to live up to their promises. And this was not entirely fiction. In one case where it was shown that the testator had not delivered the land to feoffees during his lifetime, but only directed how land should pass at his death, the attempt to devise the land failed.!78 Nor did the ecclesiastical courts continue to exercise jurisdiction over uses after an effective remedy 173 ‘Thomas Robinson, The Common Law of Kent, or the Customs of Gavelkind (3rd edn, 1822), book

II, c. 5. Robinson noted the frequency of feoffments to uses in the Kentish records, however, and concluded that it was evidence against the existence of the power of devise. If the power had existed, he asked, what need would there have been to employ this device? 174 e.g, Execs. of Chaumberleyn c. Teryngton (York, 1394), BI, CP.E.214; Ex officio c. Coldyk (Norwich, 1416), NNRO, D. & C. Acta et Comperta Roll 1, s.d. 5 Nov.; Ex officio c. Execs. of Sutton (Ely, 1462), CUL, EDR Liber B, fo. 23; Ex officio prom. c. Harald (Hereford, 1443), HFRO, Act book O/2, p. 45. 175 See Biancalana, ‘Medieval Uses’ (above n. 159), 118-19, 142-3; J. M. W. Bean, The Decline of English Feudalism 1215-1540 (1968), 131-2. 176 Ex officio c. Brice and Hervy (Ely, 1463), CUL, EDR Liber B, fo. 40: “detinendo 11i acras terre in le olde felde. Another apparent example is Ex officio c. Nycolson (York, 1429), BI, D/C.AB.1, fo. 79.

177 See Stephen DeVine, “The Franciscan Friars, the Feoffment to Uses, and Canonical Theories of Property Enjoyment before 1535’ (1989) 10 JLH 1-22. The cases are: Ex officio c. Herne (Canterbury, 1397), CCAL, Act book Y.1.2, fo. 5 (Franciscans) and Carmelite Friars of Doncaster c. Exec. of Barwick (York, 1472-3), BI, CP.F.255. 178 Estate of Medherst (Rochester, 1451), KAO, Act book DRb Pa 2, fo. 168: ‘nullum sortiri posse effec-

tum eo quod nullum statum fuit deliberatum per testatorem dum vixit’.

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 423

became available in Chancery. The cases begin gradually to disappear from the ecclesiastical records from the 1460s. One of the stated goals of the canon law was to provide a forum for doing justice where the secular forum failed.!79

Enforcement of uses in the English spiritual courts was consistent with that goal. BEQUESTS OF THE INCOME FROM LAND

To say that the ecclesiastical courts had no jurisdiction over freehold land, as is often done, is true in a strict sense. The judges did not directly pass on the validity of devises of land. They went out of their way to reject any right to do so.18° However, this does not give a complete picture. There were cases that straddled the line, and not just the feoffments to uses just noted. One of them was the direction in a will that income derived from land be given to an individual or used for a certain purpose. Which courts had jurisdiction depended on how one looked at the situation. On the one hand, freehold land passed to the heir; it and its proceeds

should never come within ecclesiastical jurisdiction at all. On the other hand, ultimately it was the bequest of a chattel (the money) that was involved, and that was the concern of probate jurisdiction. Nothing affecting the passage of title to the land would be at issue, at least so long as the amount being sued for was not too substantial a part of the land’s value. The courts of the church were not paralysed by the dilemma. They acted to enforce such bequests. For example, an annual payment of 13s. 4d. taken from

lands that had belonged to a man named William Gylbert were the subject of a suit at Canterbury in 1417.18! Similar claims continued to be heard into the sixteenth and seventeenth centuries.!82 Not enough of them have been discovered to be certain that they did not rest on special circumstances. Nor is it entirely clear that they violated rules of the common law.!83 Indeed, they may indicate nothing better than the difficulties inherent in drawing a line between lands and chattels. 179 Gl. ord. ad X 2.2.11: ‘Nota quod propter negligentiam iudicis secularis transfertur iurisdictio ad ecclesiasticum’ 180 e.g, Hodgson c. Topham (York, 1563-6), BI, D/C.CP.1563/7: the sentence specifically excepted the

parts of a ‘mixed will’ referring to land, ‘quas clausulas ad iuris huius regni Anglie dispositionem

referrimus. 181 Thorp c. Unkwell (Canterbury, 1417), CCAL, Act book Y.1.3, fo. 59. 182 e.g, Collacott c. Collacott (Exeter, 1629), DRO, Act book Chanter MS. 802 s.d. 15 Jan., in which the

defendant admitted receiving £4 13s. 4d. yearly ‘out of the landes belonging to him [the minor and beneficiary]*. Similar is Brunte c. Brunte (Lichfield, 1590), LJRO, B/C/5/1590: the bringing up of the child

was to be paid from moneys raised from “terras et tenementa...ad usum in testamento nominatum’; Ex officio c. Gwatkyn (Hereford, 1608), HFRO, Act book O/83, p. 53: it involved ‘a benevolence given out

of certain lands in pios usus’. 183 Compare Anon. (KB 1557) Benl. 21 (granting a prohibition), with Anon. (KB 1567) 3 Dyer 264b (denying one).

424 TESTAMENTARY LAW AND PROBATE JURISDICTION ESTATES IN CHATTELS

It is hornbook law that there could be no successive legal interests in chattels at common law. “The gift of a chattel for an hour is a gift of it for ever’.184 Inroads were made in the rule, as for example with so-called chattels real, or leaseholds, and also for goods held in trust. As to the legal title to personal goods, however, it is familiar learning that there could have been no estates in chattels at common law.!85 Collectors (and readers) of early testaments have long been suspicious of this doctrine. Many of them (not the majority, but enough to raise a question) contain bequests of future interests in chattels, vested or contingent. They seem to violate this settled rule.18°

The law of the church recognized no such limitation, and successive interests in

chattels came quite frequently before the English ecclesiastical courts in testamentary litigation. Apparent legal fictions alluded to in reports from the royal courts—as supposing that the first grantee might be considered to hold the chattels in trust for the second—played little discernible role in the cases.187 When a man left chattels to one person for life, with a remainder over to someone else, persons who took the chattels and held them contrary to those terms were treated as ‘impeders’ of the last will and testament of the decedent. They were regarded as

violators of Archbishop Stratford’s Constitution of 1343 and were subject to excommunication if they did not bring their conduct into line.!88 Normally, it was not more complicated than that. Thus, a sum of money (£6 13s. 4d.) and a silver spoon were left to one testator’s widow for her life, then to pass to the son at her death. Securing adherence to its terms was the subject of court action against the

widow.!89 Some bequests that look very like springing and shifting executory interests came before the spiritual courts to be enforced.!9° Here the hornbook rule may do no more than describe what the common law courts themselves did. They are an inaccurate statement of the reality. 184 Robert Brooke, La Graunde Abridgemente (1576), tit. Done e& remainder, no. 57. See John Chipman Gray, The Rule against Perpetuities (4th edn, 1942), $$ 77-87. 185 Holdsworth, History, vii. 469-78. 186 Of the just slightly fewer than 100 testaments collected for the town of King’s Langley between 1523 and 1640, for example, six contain such interests. See Life & Death in Kings Langley: Wills and Inventories 1498-1659, ed. Lionel Munby (1981), nos. 16, 55, 85, 92, 93, 111; bequests conditioned upon

age and time have not been counted. 187 But cf. Pentston’s Case (1597) BL, Lansd. MS. 161, fo. 34, where Dr Dun at least toyed with the idea

that the life tenant took only the usufruct in plate bequeathed for life with remainder over. It is possible that the post-Reformation civilians took a greater interest in these theories, if only as a way of pro-

tecting ecclesiastical jurisdiction. 188 Lyndwood, Provinciale, 171. 189 Estate of Hake (Salisbury, 1551), WTRO, Subdean’s Act book D4/3/1, fo. 26. 190 e.g, Will of Clarke (Archdnry Canterbury, 1558), CCAL, Act book Y.4.10, fo. 82 (bequest of a horse

to take effect after the wheat had been sown).

ECCLESIASTICAL PROBATE AND TESTAMENTARY LITIGATION 425 RIGHTS TO LEGITIM

Entire freedom of testation was not an established part of the medieval church’s inheritance. It ‘competed’ with an ancient and tenacious idea: that a married man’s estate should be divided into three parts, one for his widow, one for his children, and one to be disposed of as he wished. If he had only a wife, she should take a half. If he had neither, and only if he had neither, could he leave all his property as he desired. Glanvill stated the rule and Magna Carta endorsed the principle.19! Its antiquity in England is vouched for by a description of the Venerable Bede.!%

The law of the church taught the same thing. Roman law was itself far from endorsing testamentary freedom in any form that could be called absolute. The Querela inofficiosi testamenti (Inst. 2.18) and the Lex Falcidia (Inst. 2.22) stood out

against it. The one permitted the invalidation of “undutiful wills’ except under narrow circumstances; the other prohibited testators from burdening heirs by bequeathing more than three-quarters of their estate to others. For their part, the canon law texts endorsed at least the principle behind such restrictions on freedom in will making (X 3.26.16). Panormitanus spoke for the canonists in holding that statute or custom could abridge the right of children to take a share in a parent’s estate, but they could not abolish the right entirely.!93 It rested ultimately upon the law of nature. The history of legitim in England nevertheless belongs mainly within the law of custom. That is what prevailed in the ecclesiastical courts. In discussing the rights to a ‘forced share, Lyndwood referred his readers to ‘the custom of the place, not to a text of the learned laws.!94 From the period before 1400, the sources refer to the claims of widows and children to a third of a decedent’s estate as being owed ‘according to the custom of England’!9> Over the course of the next century, their rights were reduced to the status of a local custom, albeit a fairly widespread one. The custom continued to obtain at least in the Northern Province and in London. A case from the diocese of London at the end of the fifteenth century, for example,

refers to the duty to pay Jlegitim as ‘according to the custom of the city of London.!% References to it after 1500 are also found for the dioceses of York, 191 Glanvill, lib. VII, c. 5; Magna Carta, c. 26 in Stubbs’ Select Charters, 296. 192 Bede, HE, bk. V, c. 12.

193 Commentaria ad X 3.26.16: ‘potest diminui non autem in totum tolli quia esset contra equitatem naturalem’ For extended discussion of the extent to which custom could change the law, see Grassus,

De successione (above n. 17), Tit. Legitima, quaest. 42. 194 Provinciale, 178, s.v. defunctum. 195 e.g, Bonn c. Felingham (Norwich and Canterbury, 1306), LPL, Act book MS. 244, fo. 17v: “terciam

partem bonorum dicti defuncti ipsam dominam Johannam iuxta consuetudinem anglicanam existentibus liberis. The evidence is laid out more fully in Canon Law and the Law of England, 247-62. 196 Hall c. Walpole (London, 1486), GL, Act book MS. 9064/2, fo. 147v: ‘tercliam partem bonorum iuxta consuetudinem civitatis London.

426 TESTAMENTARY LAW AND PROBATE JURISDICTION Carlisle, Chester, Durham, and the archdeaconry of Leicester.!97 Most of them were styled causae filialis portionis. They were also described as resting upon the custom of the county, province, or area where the decedents had lived.198 Evolution towards testamentary freedom did not make the idea of a threefold division itself disappear. Many testators referred to the ‘third portions’ of their property in making their wills. That thought furnished at least the starting-point for dividing the assets of intestate estates. The evidence shows, however, that in most parts of England, the one-third share allotted to children was a matter of the testator’s choice, not of the children’s right, from the fifteenth century forwards. The details of the evolution of this custom are lost to us, and even slightly mysterious. Why should the custom have lasted in both the most traditional area of the land (York) and in the most economically advanced (London)? No plausible explanation has yet been offered. We can say no more with certainty than to assert that freedom of testation came to be the norm in most of England’s ecclesiastical courts. That happened in the common law courts too.

ENGLISH PRACTICE AND FORMAL LAWS The English law of testamentary succession, as developed and put to use in the spiritual forum, turns out to be the hardest of the areas of the law identified in this volume to describe in a satisfactory way. Compared to the law of marriage or tithes, it seems filled with contradictory evidence. Some conflict existed in both of the latter, to be sure, but the law itself could be stated clearly enough. The civilians

knew what they were doing, and what they should be doing. The historian can witness this. With testaments, by contrast, an adequate characterization of the rules as they were put into practice seems to slip away from the historian’s grasp. In part, this is because the courts sought to enforce the last wishes of individual testators, to provide sufficient support for infants and those who were incompetent in the eyes of the law, and to meet the competing demands of creditors, legatees, and the church itself. Goals like these made for variety. In some ways, the law did too.199 The evidence is bound to appear untidy, even incoherent, when looked at from without. 197 Man c. Man (York 1512), BI, Act book D/C.AB.2, fo. 129; Landcake c. Landcake (Carlisle, 1633), CBRO, Act book DRC 3/3, p. 53; Cheydok c. Execs. of Cheydoke (Chester, 1502), CRO, Act book EDC 1/1,

fo. 7v; Hodgeson c. Richardson (Durham, 1532), DUL, Act book III/1, fo. 25v; Pyke c. Daygington (Leicester, 1525), LRO, Act book 1 D 41/11/1, fo. 3. 198 Swinburne, Brief Treatise (above n. 45), pt. III, § 16, no. 4; see also Pollock and Maitland, ii. 351-3,

in notes containing examples from the common law. 199 e.g, John Ayton, Constitutiones, 107, s.v. executionem, noting that testaments were to be favoured

in the law and supported in one way or the other.

ENGLISH PRACTICE AND FORMAL LAWS 427 However, these factors cannot explain everything. The law of testamentary succession, almost alone among the areas of ecclesiastical competence in England, rested virtually entirely on choice. In it, the Roman law applied only in those parts

which the church found appropriate; the formal canon law was brief and inadequate, and the common law was in turns indifferent and menacing in dealing with ecclesiastical jurisdiction. Most questions were affected by custom. The exercise of powers of discretion and the compromise of claims were prominent fea-

tures of testamentary litigation, probably even more so than they were in other areas where the courts of the church entered.

The Canon Law Where should a testament be submitted for probate? A great deal depended on the answer to that question. Executors and administrators required a convenient and definite forum. Creditors and expectant legatees wished to know where to look to enforce their claims. And there was more than convenience involved. Testamentary

practice was lucrative for the practising lawyers, and no bishop wished to let the rights to jurisdiction of his see be ignored or usurped. The situation invited contention. Contention there was. The Corpus iuris canonici contained a title, called De foro competenti, at the start of the second book of the Gregorian Decretals. As applied to testamentary law, however, its rules about the proper forum were confusing. No decretal addressed the problem directly. One seemed to call for the lex situs to control, presumably the place where the assets of the decedent were found (X 2.2.3). Another asserted the rights of the diocesan bishop over all persons within his diocese, and this would seem to include decedents (X 2.2.1). A third forbade convening laymen before an ecclesiastical court in a civil matter in the absence of special

circumstances, seemingly making the question moot (X 2.2.10). Running throughout was the recognition that local custom or agreement might determine the shape of practice (X 2.2.5). Consuetudo dat turisdictionem. None of these (save the last) fitted the English law of last wills and testaments very well. And why should they have? The texts were compiled under the assumption that testamentary jurisdiction would ordinarily rest in the temporal forum. So the canons could not furnish more than general guidance. Open questions remained. Within one diocese, should probate jurisdiction belong to the bishop

alone or to one of his subordinates instead? Could it be left to the choice of the families involved? And what should happen when a man died with goods in different places? Would a separate action in each diocese be necessary? These were problems that had to be met. The canon law texts furnished few definitive answers.

428 TESTAMENTARY LAW AND PROBATE JURISDICTION

The history of “prerogative probate, which occurred when a man died with property in more than one diocese, has been well studied.? It was long a live issue.

Where there was a choice of venue, academic opinion seems to have favoured taking the testator’s domicile as the place of probate.?°! The canons of the council convened by the papal legate Ottobuono in 1268, however, directed that probate should belong to the bishop in whose diocese a testator died.2°? These solutions, sensible though they seem, did not prevail. The archbishops counted both rules as contrary to their rights as metropolitan. Over the course of the fourteenth century, they managed to overcome the opposition among their suffragans which the prerogative claims naturally raised.2° The canon of Cardinal Ottobuono’s was distinguished away, as being applicable only to the first stages of probate and hence

not relevant to probate administration. The position as to venue taken by most academic writers was treated as subject to a contrary custom.2% The result was that

the archbishops (mostly) prevailed.2°5 However, in time a threshold value was attached.2°© For prerogative probate to apply, the decedent must have had bona notabilia, by which was meant that the total value of his estate (excluding land but including debts) had to be greater than a minimum sum. Whether that sum was 405S., 100S., £10 11s. 6d., £23 3 1/2s., or £10 remained in dispute even in Swinburne’s day. He regarded the last as the ‘most commonly received’ opinion, but the canons

of 1604 set it at £5, and except in the City of London, where the larger figure obtained “by composition, it endured at that level.2°7

This long-running dispute at the top of the English church was replicated by similar disputes lower down the pecking order. Several bishops sought to establish their own prerogative probate. The same rule the archbishop used against them,

they would in turn use against their archdeacons. If a decedent had goods in more than one archdeaconry, probate belonged to the episcopal court as a matter of right.2°8 Ex officio prosecutions to enforce that rule were therefore brought 200 Churchill, Canterbury Administration, 1. 380—423; introd. to Reg. Chichele, ii, pp. ix—xxxv; Sheehan, The Will (above n. 2), 196-205. Many detailed questions are answered by George Lawton, A Brief Treatise of Bona Notabilia (1825).

201 Durantis, Speculum iudiciale, lib. II, pt. 2, tit. De instr. edit. § 13 (Nunc vero aliqua), no. 42; the

compiler acknowledged that this was not the only possibility. 202 c,14in C. & S. II, pt. 2, 764-5. 203 Not without legal protest, however; see the full argument (Hereford, 1395) in Reg. Trefnant, 103-14. 204 John Ayton, Constitutiones, 107, s.v. in cuius diocesi and fidem etc.

205 Agreements were sometimes reached, as between the archbishop and the bishops of Salisbury c.1345; see Hemingby’s Register, ed. Helena Chew (= 18 Wiltshire Archaeological and Natural History Soc., Records Branch; 1963 for 1962), no. 215. 206 ‘The archbishops of York seem to have taken the same position and reached the same result by the

later sixteenth century: e.g. Cockes c. Leyland (Chester and York, 1615), BI, CP.H.1203. See generally Smith, “York Probate Jurisdiction’ (above n. 39), 128-31. 207 See Brief Treatise (above n. 45), pt. VI § 11, no. 53 c. 93 in Anglican Canons, 392-3. 208 Precedent book (c.1600), NRO, PDR Misc.Bk.19a, fo. 271; Precedent book (fifteenth century), KAO,

DRb O 10, ff. 7-8 (bishop of London and his archdeacons); Synod of 1375 (Ely), CUL, Act book EDR D/2/1, ff. 24v—25; Ex officio c. Pepper (Bath and Wells, 1622), SRO, Act book D/D/Ca 230, ff. 202v—203.

ENGLISH PRACTICE AND FORMAL LAWS 429 against the officials of ecclesiastical dignitaries below the level of bishop; deans and archdeacons were alleged to have proved last wills and testaments without legitimate authority.2°? However, even this cannot be described as an invariable rule in practice. Most act books for a sub-episcopal court contain the proof of at least a few wills.2!° Custom and convenience must have counted for a good deal in determining where a will would be submitted for probate.

The Roman Law It was second-nature for ecclesiastical lawyers to turn to the Corpus iuris civilis for authority and guidance in testamentary law. The Roman law was rich; the canon law was poor. However, not all the texts of the Corpus turis civilis were suitable for application in English practice, and none of them was obligatory. It was a question of how much of the civil law would be used. What was the result in practice? Three examples seem representative. The first is the law of testamentary substitution, the process whereby another heir could be substituted if the heir instituted either could not or would not take up the task (Inst. 2.15). The Roman law knew different forms (e.g. substitutio pupillaris, substitutio quasi pupillaris, substitutio vulgaris), all with slight variations of form and substance. The English civilians vacillated about how much of this they would apply in practice. Here are two statements from different points in the same manuscript containing ecclesiastical causes: Dr Marten said that one making a will, his child being young, if in case his child miscarry before 14 years of age, he may substitute the estate to others substitutione pupillari. If after 14 and before 21 substitutione vulgari. There is no pupillary substitution in England in regard there is no patria potestas, and therefore in London where a third part is due to the child, the father cannot dispose of that third part after the child’s death, but the next of kin will administer.?#

These two descriptions of English practice are obviously discordant, if not contradictory. Perhaps they could be brought into tolerable harmony, but it would require an effort. Swinburne’s account of the subject was no more definite. He began by stating that of the law of substitutions ‘we have no use at all here in England or very little; but then he went on to state that substitute executors could be named, and that in many cases they would be admitted to serve.?!2 Certainly it happened in fact.2"3 209 e.g. Ex officio c. Quembell (Chichester, 1508), WSRO, Act book Ep I/10/1, fo. 38: “quia probavit tes-

tamentum cuiusdam Willelmi Stryng...in contemptum iurisdictionis episcopalis. Other examples: Ex officio c. Vicar of Kalkewell (Lincoln, 1337) in Poos, Lower Courts, 15; Ex officio c. Morgan (London,

1522), GL, Act book MS. 9065J/1, fo. 126. 210 See above n. 40. 211 GL, MS. 11448, fo. 4 and ff. 5—-55v. 212 Brief Treatise (above n. 45), pt. IV § 19. 213 e.g, Will of Sherp (Durham, 1562), DUL, Act book DDR VII/2, fo. 12v, where an alternate taker and executor is named.

430 TESTAMENTARY LAW AND PROBATE JURISDICTION A second example is the law of guardianship.?2!4 The Roman law of cura and tutela was a resource to which the civilians naturally turned. The Decretals themselves assumed its existence (e.g. X 1.19.1). Since bequests to minors were often made, the ecclesiastical courts had frequent occasions to appoint, or recognize the existence of, tutores and curatores. They did not follow the English common law of guardianship. However, neither did they follow the Roman law exactly. In practice, the two kinds of guardianship were consolidated. For instance, the texts called for tutores to be appointed for children who had not reached puberty, curatores for those who had reached puberty, but had not yet reached 25. English ecclesiastical lawyers knew the difference, but more often than not the guardian they assigned was simply called tutor et curator. The reason for the distinction had ceased to be useful. And of the elaborate civilian forms of redress against erring guardians—the actio rationibus distrahendis or the actio tutelae utilis, for example—the act books reveal not a trace. Ecclesiastical guardianship was, therefore, based upon Roman law, but it was a Roman law simplified quite dramatically. A third example is the Lex Falcidia (Inst. 2.22). It restricted to three-quarters the share of any testator’s estate that could be left as legacies, its purpose being to encourage heirs instituted by testament to accept the burdens of that office. Too often, heirs had refused because no reward was offered to them, and intestacy in the technical sense had followed. This law therefore reserved a quarter of the estate for them as a matter of right. In the English records, the term ‘Falcidian portion’ occasionally appears, but seemingly not in the full technical sense of the word.?!5 That would have been well-nigh impossible. The English heir took nothing under the will, and English executors were supposed to take only the share of the testator’s estate that the will allowed them.?!© Rather, the term used in the ecclesiastical courts appears to mean a limitation of the testator’s freedom of testation in a general sense. The legitim was one example. In one case, the limitation was said only

to have arisen ‘out of a certain equity on behalf of the decedent’s widow.?!7 Nothing technical in the Roman law was meant. Perhaps more surprisingly, the Roman law’s institution was given a similarly ‘loose’ meaning in some parts of the Continent.?/§ It meant a limitation in the freedom of testation. The “Falcidian portion’ was that in a sense, but the term had 214 For what follows, see Canon Law and the Law of England, 211-45, and Will Coster, ““To Bring Them Up in the Fear of God”: Guardianship in the Diocese of York, 1500-1668’ (1995) 10 Continuity and Change 9-32. 215 Waleys c. Waleys (Canterbury, 1304), LPL, Act book MS. 244, fo. 49; Anon. (London, 1493), GL, Deposition book MS. 9065, fo. 144; Lakan c. Lakan (York, 1546), BI, D/C.CP.1546/2. 216 See Barton, Roman Law in England (above n. 2), 88 n. 342. 217 Estate of Bothzoni (Canterbury 1304), LPL, Act book MS. 244, fo. 64v: ‘ex quadam equitate’. 218 See Las observancias de Jimeno Pérez de Salanova, Justicia de Aragon, ed. Antonio Pérez Martin (2000), 176-7; Steven Epstein, Wills and Wealth in Medieval Genoa, 1150-1250 (1984), 12-13.

ENGLISH PRACTICE AND FORMAL LAWS 431 a more precise meaning in Roman law. Whether this usage was a creative use of Roman law or a perverse one is perhaps debatable. In any event, it was not used often enough in the English records to speak of the Falcidian pars as anything like an established institution, requiring that executors be given a fixed part of any estate. Use of the term does illustrate the habit of the ecclesiastical lawyers of dipping freely into the ample resources of the ius commune and coming back with something of value to them.

The Temporal Law In dealing with the English common law, most of the problems the English eccle-

siastical courts faced were no different than those they faced elsewhere. The common lawyers admitted the legitimacy of ecclesiastical jurisdiction. However, writs of prohibition issued on one pretext or another did complicate the process of administering estates. For instance, the rule that all debt litigation could only be heard in the royal courts undeniably made it harder to bring administration to

a close. Competing, or at least parallel, jurisdiction exercised by some local courts raised the spectre of wills that were valid for some purposes but invalid for others. Increasingly during the fifteenth century, the Court of Chancery began to

‘encroach on the church's jurisdiction by offering what amounted to parallel remedies. All these are familiar. They were a problem, but they were bearable. None rendered the courts “powerless, as is sometimes casually asserted.?!9

In one respect, however, testamentary law did present a special problem for the civilians, one that grew out of the jurisdictional division between land and chattels. The division made the division and administration of estates difficult. It makes the resulting picture confusing for historians of the law. In a nutshell, the problem was that in dividing estates among potential takers, the ecclesiastical courts had no sure way of ascertaining what would happen in the temporal forum. Before 1540, most land would pass by intestate succession; afterwards by will but independently of control by the ecclesiastical courts. In a case from the second half of the sixteenth century, for example, the testator had said he wanted half his property to go to one person, half to the other.2?° He seems to have meant

all his property, not just his chattels (though this was disputed). The obvious difficulty was that the ecclesiastical court had jurisdiction only over the chattels. Should the officials adjust the shares allocated to each according to what they thought the outcome would be in the temporal forum? Or should they divide the

chattels equally, even though this might mean a quite unequal division of the total? That was the subject of the dispute among the civilians. 219 e.g, W. J. Jones, The Elizabethan Court of Chancery (1967), 400-1. 220 Will of Tildesley (Chester and York, 1566), BI, Trans.CP.1566/3.

432 TESTAMENTARY LAW AND PROBATE JURISDICTION Unfortunately, in the actual case the problem is clearer than the outcome. We can be sure only that it, and similar problems, were raised in litigation before the English spiritual courts.221 Maitland’s words about the ‘evil consequences’ that followed from the jurisdictional division between lands and chattels are worth recalling to mind. His criticism should be balanced by a recognition of the speed and ease with which ecclesiastical probate occurred in ordinary practice. The system was not inefficient. But his rueful conclusion is not contradicted by the court records. 221 e.g, Execs. of Chaumberleyn c. Teryngton (York, 1394), BI, CP.E.214 (allocation of land among general takers); Aylewyn c. Howlyn (Canterbury, 1467), CCAL, Act book X.8.3, fo. 122 (sale of land as part of estate assets).

8

Tithes and Spiritual Dues HE tithe was the basic ecclesiastical tax paid by the laity. It was as close as the

Doorn would come to an income tax, and just as consequential. The revenue it produced furnished a primary source of the income of the parochial clergy. And not only them; it helped support the whole clerical order. In time, tithes would become a source of contention, and the church would have to expend great efforts to defend its claims. These efforts ultimately proved impossible to sustain, and today tithes have disappeared as a legal obligation. It may seem surprising, therefore, that the starting-point was one of harmony between the spiritual and temporal laws. They were agreed: “The tenth part of the increase, yearly arising and renewing, from the profits of lands, the stock upon lands, and the personal industry of the inhabitants’ was owed to the church.! These words come from Blackstone’s Commentaries, but they fit the canon law’s own definition almost perfectly. Virtually identical formulations appear in the works of the medieval canonists, and they continued to be the touchstone of the law of tithing for many centuries.

By the time the consistory courts had become established in the thirteenth century, tithing also had a considerable history in England. It was mentioned at several points in the Anglo-Saxon laws; payment of tithes had been treated as a legal obligation from at least the mid-tenth century.? As in many other spheres of the law,

the church’s right to deal with the collection of unpaid tithes and to resolve conflicting claims to them was given both clearer recognition and greater precision after

the Conquest. Ecclesiastical jurisdiction over tithe disputes was confirmed by Circumspecte agatis (1285) and the Articuli cleri (1315-16).? At least at first sight, there-

fore, orderly collection of tithes and ecclesiastical jurisdiction over them appear to have been accepted all round. Points of discord are not immediately obvious. Yet discord there was—in abundance. Virtually all commentators on the law recognized this as a fact of life. One eventual result of discord was jurisdictional, breaking the church’s monopoly on litigation over tithes. In discussing the subject, 1 Bl. Comm., ii. 24; compare Hostiensis, Summa aurea, lib. IV, tit. De decimis, no. 1. 2 JI Eg 1:1 in Liebermann, Gesetze, i. 196-7 [ Laws, Robertson, 20-1].

3 SR, 1. 101, 171, the first with the significant proviso that no more than a quarter of the parochial tithes were involved, lest the question of patronage be raised indirectly.

434 TITHES AND SPIRITUAL DUES Blackstone went on to describe an expansive competence over tithe questions that had come to be exercised in the royal courts in England. By the eighteenth century, this had had the effect of ousting the church from the exercise of a substantial part of its earlier jurisdictional rights, and incidentally of diminishing the amount of revenue collected from tithes. Broadly speaking, this was the natural result of a long history of disagreement about tithes. Much of what Blackstone described was an innovation on the jurisdictional situation described in this volume, although the reasons for it would have been apparent earlier to anyone with eyes to see. It is certain that the changed situation would have called forth a protest on the part of medieval canonists and English civilians of the sixteenth and seventeenth centuries. They asserted that jurisdiction over disputes involving the definition and validity of tithes belonged to the church, and to the church alone. They dis-

missed the royal courts’ insistence on trying tithing customs as quite wrongheaded. It was during the final part of the period covered by this volume that the struggle over tithes took shape. At the same time, inroads on the church’s rights by the secular courts could never have come as a total surprise to ecclesiastical lawyers.5 The canon law’s rules about tithing had always been imperfectly observed. The full collection of tithes had long been subject to customary inroads. Indeed, some discrepancy between ideal and reality existed everywhere that the canon law was in force. Economic historians, whose interest in tithes grows out of their utility in measuring levels of production, have established this beyond doubt.® There never was a golden age of obedient tithing. In many parts of Europe, tithes had been in lay hands from an early date, and the process of restoring them to the possession of the clergy was slow and incomplete. Progress in securing strict enforcement of canonical definitions of the obligation’s scope was even more uneven.’ The canonists knew this. It was a common saying among them that the law of tithes had caused more than its share of acrimonious disputes between clergy and laity. According to a description written in England during the early years of the fourteenth century, for instance, the collection of tithes had caused ‘wrangles and contentions and scandals and hatreds, very frequently and in the highest degree, 4 Bl. Comm., i1. 88-90. See also John Rayner, Cases at Large concerning Tithes (1783), 1, introd., p. lxiv. 5 See e.g. Petrus Rebuffus, Tractatus de decimis (1615), quaest. 10, nos. 1—4. © See Emmanuel Le Roy Ladurie and Joseph Goy, Tithe and Agrarian History from the Fourteenth to the Nineteenth Centuries, trans. Susan Burke (1982), 24-60 (also containing a bibliography of the subject).

7 Paul Viard, Histoire de la dime ecclésiastique dans le royaume de France aux XIle et XIIle siécles (1912), 71-86; Willibald Pl6chl, Das kirchliche Zehentwesen in Niederdosterreich (1935), 80-4; Jesus San Martin, El diezmo eclesidstico en Espana hasta el siglo XII (1940), 151-2; Michel Aubrun, La Paroisse en France des origines au XVe siécle (1986), 126-33; Piotr Gérecki, Parishes, Tithes and Society in Earlier Medieval Poland c.1100—c.1250 (1993); John W. Baldwin, Masters, Princes and Merchants: The Social Views of Peter the Chanter and his Circle (1970), 1. 229-35.

THE CANON LAW OF TITHES 435 between the rectors of churches and their parishioners.® The ‘wrangles’ did not cease.? This sentiment was never restricted to tithing in England. It was a part of the church’s heritage virtually everywhere where tithes were collected. A few modern writers on the subject have echoed this sentiment, but in recent years, most of those who have examined the subject in detail have concluded that there was ‘no sign of extensive opposition’ to the collection of tithes during the Middle Ages.!° Their view is that, however anomalous a system of ecclesiastical taxation may now seem, in the agricultural society of earlier centuries, tithing was accepted by the people as a matter of course. These two positions about common attitudes towards tithing do at least seem to be mutually inconsistent. How can a tax accepted as a matter of course have caused so many wrangles? This apparent contradiction invites a closer look at the record of litigation involving tithes. It will help us to see something about the situation that was played out in the courts and even about the laity’s attitude to the tithe. Of course, the answer may depend on which sources one is reading. In following the story through, it will always be appropriate for readers to remind themselves from time to time that it is litigation that is being described. Litigation is about disagreement. The records of the ecclesiastical courts will say little about tithes faithfully paid. Nor will they reveal much about the adequate support so long provided for the English clergy. They will, in other words, emphasize the negative. But the positive side was present. No tax is ever popular, but the tithe must be accounted a relatively successful one. It lasted a very long time.

THE CANON LAW OF TITHES The classical canon law regarded payment of tithes as an expression of the duty all men owed to God and God’s representatives on earth, the clergy. The evident need

to support the clerical order, an order Jesus himself had instituted, and the prohibition against clerical participation in gainful, secular employment, made the tithe a matter of necessity, even of divine command. Biblical support was at hand too. 8 See Statute of 1305, in: Wilkins, Concilia, ii. 278; Lyndwood, Provinciale, 190; it is repeated in

New College, Oxford, MS. 92, fo. 183v: “inter rectores ecclesiarum et parochianos suos rixa et contentiones et scandala et odia per maxima multotiens oriuntur. Other English complaints were made about the difficulties and controversies caused by disputed tithes; see Thomas Walsingham, Historia Anglicana, ed. H. T. Riley (28:2 RS; 1863-4), 208. See also Eric J. Evans, The Contentious Tithe. The Tithe Problem and English Agriculture, 1750-1850 (1976), 42-66; Rayner, Cases concerning Tithes (above n. 4), i, preface, pp. ili—iv. 9 See e.g. Christopher Haigh, “The Troubles of Thomas Pestell: Parish Squabbles and Ecclesiastical Politics in Caroline England’ (2002) 41 Jnl British Studies 403-28. 10 Giles Constable, ‘Resistance to Tithes in the Middle Ages’ (1962) 13 JEH 172-85; Ralph Houlbrooke, Church Courts, 119; Emma Mason, “The Role of the English Parishioner, 1100-1500’ (1976) 27 JEH 17-29, at 20-1; Susan Brigden, “Tithe Controversy in Reformation London’ (1981) 32 JEH 285-301.

436 TITHES AND SPIRITUAL DUES Moses had directed the people to bring their tithes and offerings before God (Deut. 12: 6), and Jesus pointedly told the leper to show himself to the priest and to ‘offer the gift that Moses commanded’ (Matt. 8: 4). These were but a few of the many scriptural endorsements from which the canonists drew a duty to pay tithes. They were used to justify the tithe, and also the other monetary dues that were enforced in England by the ecclesiastical courts. Why God had chosen to make this duty a tenth, rather than, say, a ninth or an eleventh, presented slightly more of a puzzle

for the canonists. Perhaps “because it so pleased Almighty God’ was the best answer that could be given.!! But God’s command had been given at an early date (Gen. 28: 22), and the underlying principle was certain enough. That it led to complexities and difficulties had to be accepted. The tithe was not a matter of benevolence or charity. It was a legal obligation (X 3.30.14). The same could be said of the laity’s duty to keep up the fabric of their parish church and to pay the customary oblations that the pious habits of their ancestors had fastened upon them. They were all based ultimately upon the necessity of supporting the clergy in a suitable fashion. Of course, it could be said that the necessity might be met in some other way. So it could have been. However, this particular way was supported by biblical precedent, the positive law of the church, and long-established custom. It was not to be easily overturned.

Fundamental Controversies This straightforward way of presenting the duty Christian men and women owed to church and clergy is belied by the subject’s history, and the tithe became a matter of scholarly contention. John Selden was the most famous of the English critics of the canonical version of the story, and his treatment can still be read with profit.12 As a legal duty, the tithe had been very slow in establishing itself. Selden showed this. Moreover, despite the law’s prohibition, the right to tithes had been widely dispersed among laymen, and the nature of its forms, extent, and means of collection varied greatly from one time and place to another. A respectable view among the medieval theologians, and even some men trained in the canon law, 11 These arguments were rehearsed in a brief fifteenth-century English treatise on the law of tithes, BL, Add. MS. 28783, ff. 1-8v.

12 John Selden, The History of Tithes (ast edn. 1618) in The Works of John Selden (London, 1726), 3:2

1075-298. Scholarship on the subject, particularly for England, is not extensive. See John Moorman, Church Life in England in the Thirteenth Century (1945), 114-25; William Easterby, The History of the Law

of Tithes in England (1888). Several works deal with special aspects of the subject: Catherine E. Boyd, Tithes and Parishes in Medieval Italy (1952); Giles Constable, Monastic Tithes from their Origins to the Twelfth Century (1964); A. D. de Sousa Costa, ‘Posizione di Giovanni di Dio, Andrea Dias de Escobar et altri canonisti sulla funzione sociale delle decime’ in Proc. Fourth International Congress of Medieval Canon Law, ed. Stephan Kuttner (1976), 411-66.

THE CANON LAW OF TITHES 437 had been that the tithe—at least the personal tithe—could lay no claim to divine sanction; it was a tax instituted by the positive law of the church.!3 Making an affirmative case that tithes had always been owed iure divino would now strain the credulity of anyone with even a slight knowledge of the subject’s history, and it had learned doubters like Selden in earlier times. Selden’s account was answered by his contemporaries. Among others, George

Carlton and William Fulbecke matched wits with him, both upholding the church’s basic position.!4 Selden himself was obliged to acknowledge his error in publishing his book.!5 Some of the cases reported in the royal courts also accepted the canonical position that tithes were owed ture divino.!® This may seem perverse and unlikely, but it is well to recall that the canonical argument was never that the tithes had been admitted and paid from Old Testament times to the present. It was

rather that the constitution of the church required support of the clergy and hence something like the tithe. Enough references to tithing appeared in the Bible for the canonists to easily conclude that it must have been a part of God’s plan for humanity. English writers on the subject were eventually required to set aside consideration of ‘the validity of that antiquated principle as the basis of a legal right’ in favour of ascribing the origins of the tithe to positive law.!” But the clerical position was widely accepted during the times covered by this volume, and the status claimed for the tithe made a difference in litigation.

Basic Classifications By the time disputes about tithes surface in any numbers in the court records of the thirteenth century, the outlines of the formal canon law were tolerably clear. The basic division was between praedial and personal tithes. The first consisted of the products of the earth—wine, grain, and fruit from trees, for example. A full tenth of these was to be paid, without deduction for the costs of their production. They were owed to the parish church where the land was located, although custom might validly allow a different recipient to share them (X 3.30.18). Personal tithes were owed on the fruits of a person’s industry—as from fishing and hunting, or the income derived from teaching or trading. They were to be paid to the parish where the person resided and received the sacraments (X 3.30.20), and the expenses 13 See e.g. Viard, Histoire de la dime ecclésiastique (above n. 7), 74-5. 14 The first was the author of Tithes Examined and Proved to be Due to the Clergie by a Divine Right (1606); the second of Parallele or Conference of the Civil Law, Canon, and the Common Law of England (1602). See also Cowell’s Interpreter, s.v. Tithes. 15 See Cyndia Clegg, Press Censorship in Jacobean England (2001), 148-60. 16 e.g, Parkins v. Hinde (KB 1589) Cro. Eliz. 161; Wright v. Wright (KB 1596) 1 Gwil. 167 at 188; Warner v. Suckerman and Coates (KB 1615) 3 Bulst. 119. 17 Samuel Toller, A Treatise of the Law of Tithes (1808), 11.

438 TITHES AND SPIRITUAL DUES of producing the income could be deducted from the amount due (X 3.30.22). There were always hard and intermediate cases—as, for example, the young of tamed geese and swans. One English author supposed their offspring must be counted among personal tithes if the particular birds could fly, but praedial if they could not.!8 Overly subtle distinctions like this one were signs of the difficulties that always accompanied the classifications.

A separate and intermediate category was invented to deal with some of the more troublesome cases. Fittingly called ‘mixed’ tithes, the category was meant to

cover what was nourished both by the land and the industry of man. The offspring or products of farm animals were its principal occupant. They were fed by men, but also by the earth itself. ‘Mixed’ tithes were treated in most respects like praedial tithes (X 3.30.5), except that the movement of animals from one parish to another during the course of the year, coupled with the awkwardness of making a fair division into tenths of the offspring of animals, caused many such tithes to be commuted to a money payment. With ‘mixed’ tithes, local custom prevailed more often than with praedial tithes. A second basic division in tithes was that between the ‘great tithes’ and the “small

tithes. Very often the distinction mirrored that between praedial and personal tithes, although it was more often subject to amendment by local custom or agreement.!9 Ordinarily the great tithes went to the rector, the small tithes to the vicar of the parish church in which the crops were harvested or the animals pastured. The relevance of this division had been augmented by the large-scale appropriation of parochial churches by monastic houses from the twelfth and thirteenth centuries onwards.” It meant that the monastery often held the position of rector of the parish. The monks appointed a vicar to serve the cure of souls in their place. The vicar was entitled to a portio congrua of the tithes to sustain his needs, and the need was often met by granting him the small tithes. It was partly for this reason that the category was hard to tie down. After the Dissolution put the monastic lands into the hands of laymen, they ordinarily continued to enjoy the right to the great tithes, just as the vicars did the small tithes.

Exigencies of Practice The complexity of the problems raised by the application of these rules and the division of tithes into separate categories—which are readily apparent once one 18 William Crashaw, Decimarum et oblationum tabula (ast edn, 1591) (1671), 28. 19 e.g, Agreement on church of Speen (Salisbury, 1394) in Reg. Waltham, no. 110. 20 B. R. Kemp, ‘Monastic Possession of Parish Churches in England in the Twelfth Century’ (1980) 31 JEH 133-60; A. Hamilton Thompson, The English Clergy and their Organization in the Later Middle Ages (1947), 101-31; G. W. O. Addleshaw, Rectors, Vicars and Patrons in Twelfth and Early Thirteenth Century Canon Law (1956); Hartridge, History of Vicarages (1930) (Ch. 2, n. 57), 1-89.

THE CANON LAW OF TITHES 439 begins to think seriously about them and which will be amply illustrated in what follows—required distinction, determination, and compromise. The Decretals and English statutes of the thirteenth century contained many examples of each. For instance, they stated clearly the size of payment and designation of the recipient. These were matters of law, not personal choice on the part of the tithe payer, but they left room for different forms of payment and for prescriptive rights in the receipt of tithes. They restricted the rights of the laity to receive or to transfer tithes (X 3.30.17), but they did not wholly exclude the possibility of leasing tithes to lay agents for a term. They laid down the rule that the clergy themselves owed no tithes (X 3.30.2), but the status of lands held by monastic houses was not settled. It is fair to say that the law contained in these decretals was applied in English practice, but it is also necessary to add that the role accorded to custom, prescription, and agreement proved to be of a significance just as great, or perhaps greater, in the litigation brought before England’s consistory courts. Some approval of custom and compromise in setting the tithe was of course a matter of practical necessity for the canon law. Think, for example, of the difficulties likely to arise

when an odd number of animals was born during the course of a year. How should the tenth be ascertained? Even if it happened that there were an even ten, some would be healthier than others and hence worth more. How was the parson’s animal to be chosen? Room simply had to be left in the law for habitual usages and for individual choice. The necessity for compromise is particularly clear for cases where, as was normal,

either fewer or more than ten animals were born. How would the parson’s tenth be determined? One way would be by estimating the total value of the new animals and dividing it by ten, although there might well be argument about the value if they

were not sold. Another way would be to wait until the next year, so that the tithe would be delayed until the total of ten was reached. This might be the best choice for

the tithe payer, although it might still be difficult to decide who would make the choice of animal, and it might be objected to as against the interests of the parson.?1 A third way would be to let the parson choose from among the poorer quality animals when fewer than ten were born, and from among the better animals when there were more. No method would have suited everyone. But in any event, the situation invited agreement and compromise.”? It was as sensible as it was inevitable to leave the method of payment to individual determination. And these circumstances were endlessly repeated in other hard questions about acceptable forms of paying tithes.?3 21 See Lyndwood, Provinciale, 193, where the possibilities were discussed. 22 e.g, Chaundler c. Mattocke (Salisbury, 1570), WTRO, Act book D1/39/1/6, fo. 61v. Twelve lambs had

been born in the course of the year; the agreement was that the owner would have the pick of the first two, the vicar the choice of the third. 23 See e.g. the detailed compromise given in G. R. Quaife, Wanton Wenches and Wayward Wives (1979), 252-3.

440 TITHES AND SPIRITUAL DUES At the same time, limits had to be set if the purpose of the tithe was to be achieved. Admitting agreement and custom raised two dangers, both of which could erode the principle that the clergy were legally entitled to a share of their parishioners’ incomes. The two could endanger the clergy’s livelihood. The first was that any agreement between parishioner and parson might set a precedent for the future. Agreement by a weak or peace-loving parson might redound to the detriment of his successors. The second danger was that customary methods of payment could become antiquated over the course of time and cease to be satisfactory. The tithe was designed to provide a living for the parson, and changes in the value of money and the nature or profitability of the crop subject to tithes could foil that purpose. Customary ways of doing things could thus stand in the way of the law’s goal.

The canon law responded to these dangers by attempting to limit the potential force of custom and agreement. Three rules emerged. First, the validity of any agreement between parson and tithe payer was limited to their lifetimes, unless it was also confirmed by the bishop. Second, any tithing custom, commonly called a modus decimandi, had to pass a test of validity under the law of prescription, including a threshold of reasonability. Third, all customs and agreements were in a sense provisional, subject to upset if they failed to assure an adequate living

for the man who held the cure of souls. All these requirements left room for argument. It was clear that a custom to pay no tithes at all was invalid. It was equally clear that a custom of paying a sum of money that was equivalent to the value of crops in lieu of tithing in kind was quite all right. But there were many cases in between. For them, exactitude was not achieved. Probably it could not have been. Disputed cases arose regularly in the English courts.

LITIGATION OVER TITHES Litigation over tithes fell within the jurisdiction of ecclesiastical courts from an early date. Their competence was affirmed by Parliamentary statutes as well as English custom. Parliamentary sanction never entirely prevented jurisdictional conflict with the common law, and the nature of chattels long made it possible to classify what had once been tithes as lay debts and chattels once severance of the tithe from the ground had occurred.?4 Once severance took place, it might be uncertain where a suit to recover the chattels or their value should be brought. During the seventeenth century, disputes about tithing customs also became a source of real conflict between the courts of church and state. But at all periods 24 e.g, Ex officio c. Merton (York, 1399), BI, D/C.AB.1, fo. 13v, a prosecution brought against a man

involved in a suit before a secular court to recover lambs that had allegedly been part of a tithe.

LITIGATION OVER TITHES 441 covered by this volume, tithes occupied a significant share of the work of the ecclesiastical courts. It is a measure of their importance that ecclesiastical formularies could be drawn up that were devoted almost exclusively to variant forms to be used in tithe litigation.25 The natural assumption of the English civilians was that if a man failed to pay his tithes, he would be summoned to appear before an ecclesiastical court and ordered to fulfil that duty, by excommunication if necessary. No doubt informal efforts to enforce the duty also occurred at the parish level, much of it by dint of personal efforts made by the incumbents who were also the recipients of tithes. About this and about the tithe in the penitential forum we can say very little. Chaucer’s Canterbury Tales described his worthy parson as a man who was ‘loath to curse for his tithes’2© The implication was that the opposite sort of parson was more common. Chaucer’s may have been an accurate portrayal.

Sermons urging due payment of tithes could lead to stronger measures being taken by the preachers when the sermons were not followed by payment from the hearers. Some did not stop short of excommunicating those of their flock who would not respond to persuasion. This sort of clerical initiative was questionable under the law. A text from the Decretum did provide a measure of support for it (De cons. Dist. 11, c. 95), and an early synodal statute licensed some kind of action being taken by parsons against defaulters.2”7 However, the better canonical opinion held that to excommunicate one of one’s own parishioners in order to collect money was to act as a judge in one’s own cause. Private action of this sort also usurped his bishop’s jurisdictional rights.28 That it happened, however, we can scarcely doubt.

General Patterns About the litigation over tithes that occupied the consistory courts, a good deal can be reported on the basis of the contemporary records. The causes illuminate the nature of the canon law on the subject, the common problems the courts (and the clergy) faced, and even something of the laity’s attitudes towards the obligation. It is sensible to begin, however, with simple description. Suits involving tithes appeared in the court records from the earliest days of ecclesiastical jurisdiction. Many were heard by papal judges delegate in the twelfth century and afterwards, a testimony to 25 See NNRO, ANW/21/6 (sixteenth century); BI, Prec. Bk 2, pp. 451-63 (seventeenth century); YML, M 2(4)j (seventeenth century). 26 The Canterbury Tales, General Prologue (A) 486 in The Riverside Chaucer, ed. Larry Benson (3rd edn, 1987), 31.

27 Statutes of the Archdeaconry of London (1229 X 1241), c,10 in C. & S. IT, pt. 1, 334. See also Peter Heath, The English Parish Clergy on the Eve of the Reformation (1969), 150. 28 Lyndwood, Provinciale, 196, s.v. censuram ecclesiasticam.

442 TITHES AND SPIRITUAL DUES their importance to the clergy. In fact, the largest number of delegated cases for the first half of the thirteenth century dealt with disputes about tithes.?9 Throughout the Middle Ages, suits to collect tithes could be brought either as instance or as ex officio matters. Where simple non-payment by a parishioner was the issue, the latter must have been cheaper and easier to initiate, and suits against alleged withholders of tithes were regular entries in most ex officio act books.3°

However, a statute enacted in 1549 prohibited imposition of a corporal oath on defendants in disputes over personal tithes (2 & 3 Edw. VI, c. 13, s. 9). In prac-

tice, the statute seems to have been treated as applicable to all tithe disputes. Because oaths were essential parts of ex officio prosecutions, the statute had the effect of moving tithe litigation to the instance side. It also had another effect— eliminating compurgation from tithe disputes. Compurgation had sometimes been used in tithe causes in English practice,31 even though it would normally have worked to the advantage of defendants, because it left the determination of liability in their hands. The statute, in line with a more general movement in the law of the church towards restriction of compurgation, ended that possibility. The change worked, incidentally but surely, in favour of tithe holders. The canon law prohibited laymen from owning tithes (X 3.30.17). Whatever was true elsewhere, by the fourteenth century this restriction had generally come to be observed in English practice, at least to judge by the court records. The great majority of tithe causes were begun by clerics throughout the Middle Ages. Admittedly exceptions are there to be found. It is not clear, however, that these causes were simply relics from the days when laymen might presume to dispose of the tithes as

a right incident to their land and their control over the church on it. Some may have been. But it seems more likely that most laymen involved in these causes were either ‘farmers —in other words lessees of the tithes—or else they were acting as churchwardens and suing in the name of the church.33 The former could be a matter of convenience for the clergy; the latter a way of more effective protection for the church’s rights. In them, the parties suing were not claiming dominium over 29 Sayers, Papal Judges Delegate (Ch. 2, n. 83), 188-95. 30 e.g. Ex officio c. Dyton (London, 1485), GL, Act book MS. 9064/2, fo. 114: Johannes Dyton recusat

solvere rectori ecclesie parochialis Sancti Nicholai ad Macall’ pro decimis et oblationibus 3s. 4d.’. Dyton appeared, admitted owing 20d., after which the cause seems to have been compromised. 31 e.g, Ex officio c. Fuller and Wodeward (Salisbury, 1391), Reg. Waltham, no. 931.

32 Hardy c. Cochet et al. (Lichfield, 1465), LJRO, Act book B/C/1/1, fo. 76; Tredeway c. Clovell (London, 1489), GL, Deposition book MS. 9065, ff. 50-2; Becket c. Keydewen (Hereford 1443), HFRO,

Act book O/2, p. 58. Cases where the tithes had been sold illegally to laymen also existed, as the case against Robt Sustede (Ely, 1375), CUL, Act book EDR D/2/1, fo. 30, but the purchaser had not brought suit in the consistory court. 33 e.g. Churchwardens of Horton c. Miller (Rochester, 1454), KAO, Act book DRb Pwr 1, fo. 188, styled a ‘causa subtractionis decimarum.’ See generally Swanson, Church and Society, 241-2; K. L. Wood-Legh, Church Life in England under Edward III (1934), 135.

LITIGATION OVER TITHES 443 the tithes, but only a short-term interest in collecting them under a lease or as a representative of a church.34 The causes were therefore not necessarily inconsistent with the substantive canon law, as they appear at first sight to have been. The system of leasing tithes to laymen for the convenience of the tithe holder did not cease with the Reformation. Causes involving leases were outnumbered in litigation, however, because of the large-scale entry of the laity as plaintiffs in tithe causes that came only after Dissolution of the monasteries. They too were almost

always formally styled ‘farmers’ of the tithes in the records, but many of them claimed to hold the tithes in perpetuity and as a matter of right, just as the monks had done. At the Dissolution, the impropriated monastic tithes came first into the hands of the king, and then to those of the laymen and corporate bodies to whom the monastic lands were granted. The possibility that the tithes might be restored to the parochial clergy, for whom they were originally intended but whose rights had long since been diluted, was not taken. Parliamentary statutes allowed tithe farmers and impropriators to sue in their own names to recover the tithes that were accessory to the former monastic lands (32 Hen. VIII, c. 7, 1540; 2 & 3 Edw. VI, c. 13, 1549).

To judge by the records, these lay tithe holders were obliged to resort to the ecclesiastical courts with greater frequency than their monastic predecessors. At least the numbers of causes brought for withholding tithes increased after these tithes came into lay hands. No systematic survey of the comparative numbers has been conducted, and it is worth saying, if only as a reminder that records of contentious litigation are imperfect guides to the realities of human life, that most tithes were undoubtedly paid as they came due. But an increase in tithe disputes from late Tudor times onwards is the overwhelming impression left by reading through the act books. Collecting tithes was of the greatest urgency for the clergy, not just for the laymen who held the formerly monastic tithes, and the tithes more often had to be claimed in court.35 A careful study of the York records confirms the impression of growth in contentious litigation.3° A small sample taken from the diocese of Rochester shows the same pattern. Only nine tithe causes appear in the act book for the year 1438; for the year 1594 there were thirty-seven.%” In the 34 e.g. Ex officio c. Stradyll and Colyer (Hereford, 1445), HFRO, Act book O/4, p. 8, where the lease

of a chantry was for six years only and the canonical consent of the bishop had been obtained. The practice was widespread; in 1295, for example, the tithes of a collegiate church in Devon were farmed

to eleven different local men; see C. A. F. Meekings, ‘St. Teath’s Tithes—1295° in id., Studies in 13th-Century Justice and Administration (1981), 168-70. 35 Hill, Economic Problems of the Church, 77-131. 36 W. J. Sheils, “The Right of the Church: The Clergy, Tithe and the Courts at York, 1540-1640’ in The Church and Wealth, ed. W. J. Sheils and Diana Wood (= 24 SCH; 1987), 231-55, at 235. 37 Comparing KAO, Act book DRb Pa 1, ff. 42v-90 with DRb Pa 15, ff. 59-138v. See also Houlbrooke, Church Courts, 146-9; J. S. Purvis, Select XVI Century Causes in Tithe from the York Registry (= 114 Yorkshire Archaeological Soc.; 1949 for 1947), pp. vii—viii; Margaret James, “The Political Importance of the Tithes Controversy in the English Revolution, 1640-60’ (1941) 26 History 1-18.

444 TITHES AND SPIRITUAL DUES former year virtually all the plaintiffs were in holy orders; in the latter the split was about fifty-fifty, an apparent testament to the assertive interests of those who took control of formerly monastic lands. In the diocese of York, lay plaintiffs actually outnumbered clerical plaintiffs during the seventeenth century, though not by a large margin.38 In all eras, most causes brought for withholding tithes were settled quite expeditiously, very often by some form of compromise and agreement. The principal exceptions were the cases between rival claimants to receipt of the tithes. Where parish boundaries were at issue, or where the proper division between the great

and the small tithes was at stake, or where a monastic exemption from paying tithes on lands under their control was in dispute—in other words, where competing clerics were involved—litigation dragged on. It lasted longer than where simple non-payment or the exact nature of a parish custom was the main issue, and disputes very often ended in detailed and complicated agreements between the parties.39

There were examples to the contrary—causes in which parishioners resisted paying at length—but at least this seems to have been as true as most such generalizations. In the diocesan court of Canterbury in 1374-5, for example, of the nineteen cases about tithes begun, three involved rival claimants. Two of these cases took up twenty-six court sessions each; although the third occupied only one.*° Of the other sixteen causes brought by a cleric against a layman to collect tithes, by contrast, all but one had been heard and finished in from between one and four sessions.

Withheld Tithes The causa subtractionis decimarum was the most frequent form of tithe litigation found in the English records. In such a case, the plaintiff’s libel commonly alleged: (1) his title, either as the legitimate incumbent of a church or lawful farmer of the tithes; (2) his prior and peaceable possession and his exercise of the right to receive specific tithes; (3) the legitimacy of the tithe demanded, more often than not stated both in terms of an obligation under both the ius commune and a ‘laudable custom and manner of tithing’ in the location; (4) the defendant’s possession of lands and either chattels or crops within the parish involved; (5) the total value of the tithe being

demanded; (6) the plaintiff’s legitimate demand for payment and the defendant’s refusal; and (7) the proper jurisdiction of the court. The libel ended with a general 38 Sheils, “Tithe and the Courts at York’ (above n. 36), 236. 39 e.g. P. & C. of Blyth c. Rector of Bingham (1284) in The Cartulary of Blyth Priory, ed. R. T. Timson (= 27 Thoroton Soc; 1973), no. 366. 40 CCAL, Act book Y.1.1., ff. 5-92v; the exception, brought by the rector of Old Romney and found at fo. 7v, was settled by the clerical defendant’s confession.

LITIGATION OVER TITHES 445 prayer for canonical relief. Of course the exact contents of libels could vary according to the exigencies of litigation. Where a statute provided for double or treble damages, as did the statute of 1549 (2 & 3 Edw. VI, c. 13, ss. 1, 2), for example, the forms required by the statute were added to the pleading. It was not, however, normal to put detailed information about the tithes claimed such as the number and kinds of animals or the quantity and quality of crops. At least by the sixteenth century, these lists were normally placed in a separate schedule and appended to the libel. The defendant’s typical answer was not a blank denial of the obligation. This is

an instance in which the requirement that the defendant reply to each of the plaintiff’s positions worked effectively to narrow the issues that had to be proved.

By admitting the plaintiff’s title to tithes as vicar of the parochial church and the legitimacy of at least some of the tithes demanded, as many defendants did, they could limit the matters in dispute and save on the expenses of litigation. Defendants chose this path with good reason. It was a rare tithe cause that was decided by absolving the defendant entirely from the plaintiff’s claim. One estimate put the percentage of cases in which the plaintiff won at over 80 per cent.?! This meant that virtually always there would be expenses for defendants to pay in addition to the tithe owed. Defendants had every reason to seek ways to minimize the amount; avoiding fruitless denials was one way. The issues most commonly left to be tried fell into different classes, although sometimes the same cause could easily involve several at the same time. For purposes of analysis, the central issues can be put into one of five distinct categories. FACTUAL DISPUTES

The majority of contested tithe cases, at least during the Middle Ages, involved what look to have been purely factual questions. No disagreement about the legitimacy of a particular form of tithing, still less about the lawfulness of a claim to pay no tithes at all, was involved in this litigation. So, for example, the parson might have sued for tithes; the parishioner answered that he had already paid them. The only possible question of law was whether they had been paid in the correct and traditional fashion.4? Or perhaps the plaintiff alleged he was the rightful farmer of tithes; the defendant denied his title, claiming they were owed to the parson of a nearby church. It then fell to the plaintiff to prove the allegation, and if he failed, the defendant was entitled to an absolutory sentence.*3 41 Houlbrooke, Church Courts, 140. 42 e.g. Cowling v. Hewes (Worcester, 1562), WORO, Deposition book 794.052 BA 2102/1, fo. 41: “[H]e hath sett forthe his tithes of all the corne above mencioned ... according to the tenor of the statute’. He also alleged it to be according to legitimate custom. 43 e.g. Day and Kent c. Hender (London, c.1600), Bodl., Tanner MS. 427, fo. 144v, in which sentence for the defendant was given ‘ex defectu probationis libelli’

446 TITHES AND SPIRITUAL DUES A sizeable number of the tithe cases found in the English act books did not even

involve these sorts of disputed factual questions; they were brought simply because the defendant had not paid his tithes and needed prodding before he would do so. When they came before the judge, defendants commonly acknowledged their responsibility. Such cases should not be overlooked in assessing the nature of tithe litigation, although it is hard to know whether simple inertia or dislike of tithes (or a particular parson) lay behind most initial refusals. It would not be too far wrong to describe the litigation as a species of debt collection. A surprisingly large number of the cases contested on the facts revolved around disagreements about the size or quantity of the assets from which the tithe was to be paid. One rector claimed the ash trees cut down by a parishioner were worth £20; the parishioner that he had sold them and they had fetched only £5. A vicar claimed that the parishioner had kept between one and two hundred sheep in the parish; the parishioner that he had had forty at most. A farmer of tithes claimed the fleece of the defendant’s sheep were worth 3s.; the tithe payer that he could sell them

for no more than 12d.44 Observers will note the hardy tendency to exaggeration in the plaintiff’s estimation of his damages. It seems to mark litigation from most periods in human history.

What else are we to make of these frequent factual disputes? How could such large disparities in estimates of value and number have come about? It is hard to know. The tithe was, of course, a variable tax. In one early seventeenth-century

dispute, one defendant alleged that the parish’s custom was to pay tithes of wood by weight determined ‘according to the consciences of the parishioner’.*> Under such a system, perhaps the assessments were bound to vary. Still, those variances were sometimes startling. Rarely are the records good enough for us to be able to say which estimate was correct, and it seems more likely that both were products of simple partisanship or even litigation strategy. The most that one can say with any certainty is that the cases now seem to have been very good candidates for arbitration and settlement.*° That is what happened in most of them. Factual disputes were also present in some of the more complicated cases that raised points of law. Indeed, it was rare for the legitimacy of a tithing custom to be brought into issue without its being coupled with a disagreement about what the custom being challenged actually was. Taking advantage of a composition or other 44 Rector of Kneesall c. Bakster et al. (York, 1405-7), BI, CP.F.14; Vicar of Kirkby Wharf c. Santon (York, 1420), BI, CP.F.160; Widowson c. Atkin (Archdnry Nottingham, 1609-10), NUL, AN/LB 221/5/10. 45 Hudson and Yates c. Bewshar (Durham, 1604), DUL, DDR/XVIII/3, fo. 237.

46 Occasionally, one can see the process of compromise unfolding: Pettewerth c. Kirkeham (Ely, 1375), CUL, Act book EDR D/2/1, ff. 22v—23, 24, 26, 27v—28. In some cases, the judge ordered the parties to agree: Ex officio c. Dygby and Drake (Ely, 1462), CUL, EDR Liber B, fo. 22v: ‘ideo iudex assignavit eis-

dem ad concordandum cum rectore.

LITIGATION OVER TITHES 447 agreement about tithes was often as much a matter of proving the agreement's existence as it was of demonstrating its legitimacy under the law.” Cases raising the difficult question of how to deal with animals moving from one parish to another during the course of a year almost always also involved disputes over when and where the animals had been moved. The clergy could have tracked those movements

with great difficulty, and it can be no surprise that there was contention about whether the movement had been exactly the way it was alleged by plaintiffs. CLASSIFICATION OF TITHES

Classifications mattered in the law of tithes, and they were sometimes difficult enough that they were bound to end in controversies. The distinction between praedial and personal tithes is the best-known distinction. It worked well in many situations, but difficult cases did ensue. For instance, to which category did the manufacture of salt from sea water belong? Producing sea salt was done by taking water from the ocean, putting it into a pan, and then simply allowing the water to evaporate. On the one hand, it was argued that the sea water itself was of no value;

the value came only from what a man did with it, and sea salt did not grow and renew itself, as crops did. Hence, the tithe should be classed as personal. On the other hand, it was conceded that water was notionally part of the earth, and salt was one of the fruits of the sea as surely as corn was fruit of the earth. The labour expended in producing it was trivial—a little work and then some waiting. Hence, said the other side, the tithe of sea salt should be classed as praedial.48 And it mattered. If the tithe was praedial, no reduction for the expenses of the cost of

its production could be made; a tenth of the full value of the sea salt produced would be owed. For obvious reasons, the canon law tended towards expanding the scope of praedial and reducing the scope of personal tithes, and this seems to have been the opinion of the particular English civilian who wrote about sea salt. But his argument was far from overwhelming. Tithes that were undoubtedly personal in nature were more difficult to collect than praedial tithes. It required making actual proof that the tithe payer had made a profit from his labours, something one civilian remarked, ‘will be very hard to do’.*9 They were very often commuted into small sums of money.®° Their status

became something of a cause célébre during the fifteenth century, when a Franciscan named William Russell preached that personal tithes were not owed iure divino. He was presumptuous enough to assert that, in some circumstances, 47 e.g. Stapleton c. Clerke (Worcester, 1598), Bodl., Tanner MS. 427, ff. 131-131v: one witness testified,

‘nullas decimas esse solutas in specie infra memoriam hominum’ 48 Both sides of the dispute were developed in Clement Colemore’s Book, DUL, DDR/XVIII/3, fo. 127. 49 Cause of Tithe Brick (York, c.1600), BI, Prec. Bk 11, fo. 12Vv. 50 A. G. Little, “Personal Tithes’ (1945) 60 EHR 67-88.

448 TITHES AND SPIRITUAL DUES they might be paid to whatever pious use the tithe payer chose. Such a rule would obviously have benefited the Franciscans, and Russell was treated as a heretic by the alarmed authorities.5! He ultimately recanted, but the episode points to what must have been a widespread phenomenon. Personal tithes, though they were sometimes paid, were paid less faithfully than praedial. Their principal student could find not a single example of a lawyer paying tithe on the earnings of his profession, for example, and long exploration of the act books has not produced any instances to revise his opinion that they must have escaped the clergy’s net.°? The division between great and small tithes was a regular bone of contention. Typically, the former went to the rector, the latter to the vicar. So again it mattered into which category any particular tithe was put. There were accepted examples of each: the great tithes consisted of grain and the chief crops; the small tithes of fruits of the trees and the produce of gardens.>3 Hostiensis added that, in England, the wool of sheep, cheese made from milk, and eggs of hens belonged to the small tithes.54 However, there was no exact definition and everyone admitted that the classification might vary from one parish to another. When, for example, the prior and convent of Carlisle sued the rector of Beaumont in 1490 over tithes allegedly due from fish caught in ‘the King’s Pool’ in the Eden River, the question was in which category the fish belonged. The parties were at odds, and it seems to have been the local custom that made the difference.55 Third, some things were not tithable at all, except by local custom, and knowing whether a specific item belonged to this class was not always easy. It is important to remember that the tithe was not per se a land tax. It was due on the increase coming yearly out of the land. No tithes were due simply because a man owned a plot of land. It did not matter what the land itself was worth. If the land lay fallow, no tithes were owed. There would have been no increase; no renewing. This

is what made the question of things that were attached to the land itself so intractable. If one took peat or sod from the land, did the fact of separation from the earth suddenly make it tithable? Or what if one made bricks from clay? Or took lead from a mine? Or carried sand away from the beach? Questions like these led to litigation. In defending the church’s rights to tithe in these circumstances, Thomas Ridley was led to suppose that many minerals would ‘renew again when they are digged up’>° He likened them to timber, which does renew itself, albeit slowly. They were, he added, all God’s creatures. The underlying reasons for the tithe, recognizing the honour due to God and providing an adequate living for the 51 Contemporary material is contained in Reg. Chichele, iii. 118-57; see also Craig A. Robertson, “The Tithe-Heresy of Friar William Russell’ (1976) 8 Albion 1-16.

52 Little, “Personal Tithes’ (above n. 50), 82. 53 Gl. ord. ad X 3.30.30, S.v. minutas. 54 Lyndwood, Provinciale, 192, s.v. talibus decimis. 55 BI, CP.F.277. 56 Ridley’s View, ch. 6 § 2.

LITIGATION OVER TITHES 449 clergy, would of course have been as applicable in one area as it would have been in another. But somehow, this point seemed to get lost in the distinctions. And Ridley’s argument was itself open to objection.

The most persistent and bitter dispute that depended upon classification was about trees. A provincial constitution of 1343, recognizing that tithes had not been paid on them as they should have been, declared that from henceforth tithes should be paid when the trees were cut.5” This effort to change traditional practice drew forth petitions in Parliament and at length a statute making available a writ of prohibition against suits brought to collect tithes on ‘great woods of the age of twenty years’ or more (45 Edw. III, c. 3, 1371), except where payment was warranted by local custom.

Interpreting these two legislative enactments would produce some of the most improbable and contentious distinctions found in any part of English law. What was meant by sylvae caeduae? The Digest contained a definition of sorts (Dig. 50.16.30), but it did not solve the problem. It did not specify exactly what sort of great woods counted. Who could have guessed that oak, ash, and elm trees would eventually be held to fall within the statute, but not willows, maples, or birch? 5°

In the context of the history of ecclesiastical jurisdiction, three points about ‘great woods are worth stressing. First, this form of tithe was bound to be contested.

Trees were attached to the land—to be treated as part of the freehold in English common law—and the annual profits they produced were fruits, acorns, and the like.59 It was admitted that the roots of trees were nourished by the soil as surely as grain or grass was, but to collect tithes on the trees seemed very like a tax on the land itself. It was a stretch of the canon law. Second, the attempt to collect tithes that had admittedly not been paid before threatened the laity’s attachment to (and reliance upon) ancient tithing customs. Where would the church’s aggression end? It must have seemed important to draw a line at some point. Here was that point. Third, both sides continued to seek enforcement of their positions. No tacit compromise was reached, and suits seeking to collect tithes on “great woods’ became frequent in the courts of the church. There was continuing resistance. A late medieval case heard in the diocese of London was typical. In response to a vicar’s causa subtractionis decimarum, the defendant said that he had paid all his tithes, ‘with the exception of the trees he had cut, which tithes he had not paid because neither the said vicar nor his predecessors had been in possession of the said tithes, [so that] he is not bound to pay the said tithes’ Even after the Reformation, 57 See Lyndwood, Provinciale, 190-1, for the contemporary understanding from the canonical point of view. 58 See Simon Degge, The Parson’s Counsellor with the Law of Tythes (1685), pt. 2, c. 4. Loppings from

trees also created special difficulties. 59 See Doctor and Student, 300-9. 60 Ex officio c. Rotte (London, 1494), GL, Deposition book MS. 9065, fo. 247v: ‘exceptis decimis silve

cedue cuius decime non solvebantur eo quod dictus vicarius neque predecessores sui non fuerunt in possessione precipiendi huiusmodi decimas [et] non tenetur solvere huiusmodi decimas.

450 TITHES AND SPIRITUAL DUES such suits did not altogether cease, though most of them involved variant readings

of the fourteenth-century act of Parliament.®! In any event, the problems of classification did not go away. CHANGES IN LAND USAGE

When the way in which a plot of land was used changed, as often happened, how did the tithes themselves change? If, for example, wasteland was newly brought under cultivation, or if land that had been used for growing grain was converted to pasture, what happened? In the former case, it would seem, new tithes should come into being; in the latter, old tithes should be lost. Logically, that would be the answer, and it was the answer, at least in some situations. It was what happened, for example, where a parish was depopulated. But the whole matter was never quite so simple. The first question—how to treat new cultivation—was affected by the old and vexed question of monastic tithes. From an early date, many monasteries enjoyed papal exemptions from the obligation to pay tithes on the land under their direct

control. The monks claimed this exemption was a crucial aspect of monastic freedom; their enemies that the monks had become rich at the expense of the parochial clergy and in violation of the law of God. Like today’s charitable exemp-

tions from taxation, the monastic exemptions could be abused. In dealing with

them, the medieval popes had responded to the needs and demands of the moment. In the opinion of the subject’s foremost student, Alexander IIIs policy was ‘to follow no policy’ with respect to monastic tithes.® At least this historian found it impossible to discern any consistent approach in the pontiff’s decrees. In these circumstances, during the following century, the canon law sought to hit upon some workable standards. One possibility for sensible compromise was to restrict the privilege of exemption to newly cultivated lands, and this solution found a place in the Decretals (X 3.30.4). The category of novalia thus came into being. It would be of great importance in England for several reasons: first, because monastic houses, particularly the Cistercians, brought large areas of wasteland under cultivation; second, because the exemption from paying tithes on such lands stuck with the lands, even long after the memory of their original character had been forgotten; and third, because men sought to extend the rule that newly cultivated land was 61 e.g, Adams c. Abbote (Winchester, 1543), HRO, Act book 21M65/C2/3/1, s.d. 28 Apr.; Execs. of Seaverne c. Marten (Worcester, 1588), WORO, Act book 794.011 BA 2513/4, p. 165. See also Precedent

book (c.1600), CCAL, Z.3.27, fo. 74v: “Protestationes ad evitandum prohibitionem regiam ubi agitur pro decimis silve cedue’ designed to meet the terms of the statute; Crashaw, Tabula (above n. 18), quaest. II, no. 1; BI, Prec. Bk 2, pp. 452-3. 62 See Hill, Economic Problems (above n. 35), 103-5; Eric Kerridge, Agrarian Problems in the Sixteenth

Century and After (1969), 108-11. 63 Constable, Monastic Tithes (above n. 12), 294.

LITIGATION OVER TITHES 451 not tithable to non-monastic lands.°* The Edwardian tithe statute reaffirmed most of the canonical rules about novalia, limiting, however, the exemption for conversion of wastelands to a seven-year period (2 & 3 Edw. VI, c. 13, s. 6, 1549). The ques-

tion normally contested under the statute, as had been true under the earlier canon law, was whether there had ever been any prior cultivation of the lands in question. If there had been, the exemption did not apply (X 5.40.21).© Where the opposite occurred—as in use of the land for purposes that would not produce any annual increase and hence a tithe—the starting-point under the canon law was that the tithe was not lost. Transferring tithable land to a Jew or Turk, for example, men who would be under no personal obligation to pay tithes, did not destroy the tithe obligation on the land (X 3.30.4). If the land had been subject to tithes, the subjection remained. In this sense, the tithe was a land tax.

The same principle applied when the usage of the land itself changed. As Panormitanus wrote: ‘Note that a change in the quality of the place does not have [the effect] of altering the obligation to pay tithes’.® Thus, conversion of land to a non-productive use would not necessarily oust the tithe obligation. However, this could only be the starting-point. Praedial tithes varied according to the size of the harvest. If the land from which they were taken was converted into a different use entirely, it would not have been possible to calculate what the tithes would have been. Some other measure would have to be used, and here again custom and agreement by the parties, whether express or implied, came into play. The most famous example of the operation of this principle in England was the tithing custom of the City of London. In the thirteenth century, it was agreed that in place of tithes, Londoners should pay from 1/4d. to 1d. each Sunday and on cer-

tain feast days, depending on the amount they paid in yearly rent for their dwelling-places.°” This was (at least under the canon law) meant to be a provisional settlement. It also did not fit the definition of either praedial or personal tithes very exactly, since it was not based either upon the profits of the payer’s industry or on the fruits of the earth. The London payments were rather a replacement for the tithes that were once paid, and might still be paid, under ordinary canonical principles. Many suits were brought to enforce the tithe based upon the value of habitations, but the provisional nature of the custom under the canon 64 Petrus Rebuffus, De decimis, quaest. 14, nos. 16-18, 28-9. 65 e.g, Graunt c. Bot (Worcester, 1561), WORO, Deposition book 794.052 BA 2102/1, ff. 16-17, in

which the defendant had cleared land of thorns and bushes, but as one witness testified, after this had

been done, it “did appear that hit was sowen before time because hit was ridgye. The outcome depended on that question. See Case of “Decimae novalium, BI, Prec. Bk 11, fo. 16. 66 Panormitanus, Commentaria ad X 3.30.4, no 2. 67 See Monitio by Archbishop (1397) and Convocation (1452) in Wilkins, Concilia, ili. 231-2, 562-3. 68 e.g, Ex officio c. Walpoll (London, 1508), GL, Act book MS. 9064/10, fo. 13: “Notatur ex officio quod

subtraxit decimas domus habitationis sue infra parochiam predictam’

452 TITHES AND SPIRITUAL DUES law left it open for the clergy to push for a higher level of payment. This the laity resisted.® It ended, at least for the time being, with a statute and decree of 1545 (37 Hen. VIII, c. 12), by which 2s. 9d. would be paid for each £1 in the person’s rent. The decree contained several exceptions and left jurisdiction to deal with future disputes in the hand of the mayor—a breach in ecclesiastical jurisdiction over tithes that would be enlarged over the following centuries. AGREEMENTS ABOUT TITHING

Compromises and agreements about what tithes were owed played an important role in litigation before the courts of the church—first, as part of the proceedings themselves and second, as precedents for settling tithes for the future. Many tithe causes were settled by agreement of the parties themselves. Indeed, judges sometimes ordered the parties in tithe cases to meet and agree on the amount of money that would be paid.”° This was not contrary to the tenets of the canon law which looked with favour upon composition between parson and parishioner in settling tithe disputes, as in most areas of the law. However, it was a limited sort of favour. The canon law drew a distinction between compromise of present disputes and agreement as to future conduct. Less scope for validity was given to the latter, precisely because the long-term rights of the church would be at issue. It was about the latter that contention commonly arose. However, some agreements about existing tithe obligations did also raise difficult points of law. For instance, in one fifteenth-century case, a rector and a vicar had previously entered into a formal compositio, under which the former would receive the tithe of grain, and the latter the tithe of animals on the land in question.7! The land was converted from arable to pasture land, and the question was what effect the

change would have on their agreement. Apparently the compositio said nothing about whether it would survive such a variation. The argument for the rector was made under the legal rule examined in the prior section: changes in use of the land do not vary the obligation to pay tithes. Hence he should receive no less than he had before the change. This ‘background norm’ should entitle him to the principal tithes on the land. Against this, the vicar’s case was that the question was simply a matter of interpreting an agreement. Roman law texts stated that if the words were clear, they would survive anything less than a fundamental change in the subject-matter.

Thus, the bequest of an open space of land would endure a change in which a house was built there and then pulled down (Dig. 32.1.79). The substance would 69 See J. A. F Thomson, “Tithe Disputes in Later Medieval London’ (1963) 78 EHR 1-17; Brigden, ‘Tithe Controversy (above n. 10); Wunderli, London Church Courts, 108-13. 70 e.g. Vicar of Monkton c. Norkyn (Canterbury, 1418), CCAL, Act book Y.1.3, fo. 81v: an order ad concordandum; Ex officio c. Leverych (Bath and Wells, 1460), SRO, Act book D/D/Ca 1, p. 18: enforcement

of a compositio entered into between a parishioner and a curate. 71 The case is found in a fifteenth-century formulary, BL, Harl. MS. 862, ff. 233-234v.

LITIGATION OVER TITHES 453 remain unchanged. Hence, he was now entitled to the tithes, and the rector would take nothing. As is too often the case, we do not know the case’s resolution; we know only the lines along which it was argued. Such legal issues did arise, but they were never the principal source of litigation about tithing agreements. That source was a conflicting view between tithe payers and tithe owners about the force of agreements on future tithes. The canon law required that any agreement about future tithes be based upon a reasonable causa and that it last no longer than the life of the parson involved, unless the consent of the bishop was sought and obtained (X 1.36.8). Even then, it would not necessarily be a permanent arrangement. As with all tithes, any settlement the parties reached was subject to future variation where the circumstances changed. Any such agreement was, as Panormitanus put it, subject to a tacit condition: ‘as long as the church is not harmed’.’”? They were to be given a narrow reading, because they derogated from the tus commune, and because their ultimate purpose might require taking account of change in circumstance. Few laymen who owed tithes took so narrow a view of their agreements. They thought the contracts they entered into with the clergy should govern what would happen in the future. The passage of any considerable number of years would only have confirmed them in this opinion.”3 For example, in what appears to have been a particularly bitter dispute over agistment tithes at Canterbury in the late

sixteenth century, the defendant answered the complaint by saying that ‘long before this suit he had and did compound with the aforesaid vicar for the tithes coming and arising of the said forty-one acres. Now, he discovered, the vicar was also demanding tithe for the barren ewes on the land.74 The long-standing composition, in the vicar’s view, had not covered introduction of the new animals onto the land. The parishioner thought they had reached a final settlement for the land. But it was not so. In this instance, we do know what happened. A sentence in the cause was given in the plaintiff’s favour. Probably this was the correct result under the applicable canon law, but the modern reader cannot help thinking the parishioner had had a respectable position in law. TITHING CUSTOMS

Like agreements, tithing customs enjoyed a place in the canon law, but it was a place subject to restrictions. Custom as to time, place, and manner of payment were admitted. As to substance, however, some customs were apt to subvert the 72 Commentaria ad X 1.36.8, no. 3; a sixteenth-century English statement of the same principle is found in a treatment called “‘Decimarum materia, BL, Lansd. MS. 132, ff. 164-190, at fo. 181. 73 e.g, Inhabitants of Wortley c. Rector of Tankersley (York, 1524), BI, CP.G.128; the successor of the

incumbent who had made the agreement acquiesced in its continuation, but his successor did not. 74 Ackworth c. Wyn (Canterbury, 1578-9), CCAL, Act book. Y.3.16, ff. 133, 281v, 326: Deposition book X.10.18, ff. 127v—129, 147V.

454 TITHES AND SPIRITUAL DUES underlying purpose of the obligation—to provide a reasonable level of support for the clergy. They could not be accepted across the board. A Hertfordshire vicar referred to them as a ‘monster’s head’.’5 He was expressing a widely held clerical view.

Yet tithing customs were necessary, both because it would have been quite inconvenient for all tithes to be paid in kind and because many of the pecuniary rights of the church itself rested upon custom alone. Custom could not be dispensed with, or even disparaged as a source of legal obligation. Three principal restrictions were adopted.’© First, customs had to be reasonable—a custom of paying no tithe at all was invalid, but one which merely substituted an equivalent value in coin for tithes in kind was valid. Second, to be binding upon the recipient, customs had to meet the tests of legal prescription—the usage had to be widespread, lengthy, and uninterrupted. They had to rest upon long-time tacit consent of those bound by them. Third, the place of custom was given a wider scope in personal than in praedial tithes. Some even said that a custom of paying no tithes at all was valid as to personal tithes. The example of the city of Venice, whose inhabitants paid no tithes at all, but where a lump sum was payable to the church at their death, provided the textbook example of the latitude allowed to custom. The ecclesiastical courts sought to enforce these limitations, even while admitting the force of prescriptive custom, especially in the cases where the custom was beneficial to the church. In one illustrative case, the parson claimed under a custom of paying tithes in a certain way; the defendants answered that they had paid that way only ‘for twelve years, not out of custom, but of their own free will’”7 Here the alleged custom favoured the church and could stand under the canon law. This was not the normal situation, however. Mostly, it was the tithe payer who stood upon the custom. The tithe holder asserted the invalidity of a custom and sought to collect tithes in kind. For example, in 1517 a Hampshire vicar sued to collect tithes from the locks of sheared sheep. The three parishioners being sued ‘said that the custom was not to pay tithes of lockes, whereupon the judge of the consistory court of Winchester, ‘pronounced the said custom to be illegitimate and altogether void and irrational.’® To the clergy, such customs were merely traditional wrongs. To the laity faced with a newly discovered mulct, collecting tithes where none had ever been paid amounted to violating settled principles of law.79 75 The Parish Register and Tithing Book of Thomas Hassall of Amwell, ed. Stephen G. Doree (5 Hertfordshire Record Soc.; 1989), 221. 76 See Rebuffus, De decimis, quaest. 13, nos. 40-67.

77 Rector of Middleton c. Wilford and Kyrk (York, 1495), BI, CP.F.285: ‘per xii annos non ex consuetudine sed spontanea voluntate’. 78 See Vicar of Carisbrooke c. Fleitt et al., HRO, Act book 21M65/C2/1, fo. 114v: “‘pronunciavit dictam

consuetudinem fore illegitimam et omnino nullam ac irrationabilem. 79 Ex officio c. Whithecote (Lincoln, 1517), LAO, Act book Cj/2, fo. 38v: ‘ipse Thomas dixit quod non fuit solitum ibidem ante hec huiusmodi decimas solvere et quod ipse noluit aliquas huiusmodi decimas

LITIGATION OVER TITHES 455 The great majority of disputes did not present such stark disagreement. Usually the parishioner alleged that he had paid something, in fact that he had paid his tithes according to a legitimate custom, though not what the plaintiff claimed. The tithe holder sought to show, to the contrary, that the tithe was inadequate or the custom illegitimate. Such disputes became particularly frequent from the late sixteenth century, when the pressures of economic inflation had rendered the tra-

ditional amounts too small to meet the needs and desires of the clergy. They sought to upset some long-established customs as a result. The canon law provided the means. For example, in one cause from the north of England, a custom of paying 2d. for each lamb born during the year was attacked as ‘so unreasonable and contrary to law that [even if proved] it would prove no custom but an ancient wrong.®° In a 1609 cause from the west of England, the custom of giving a small sum of money per year instead of tithe eggs in kind was attacked.8! Witnesses said it had stood for fifty years or more, but by that date what had been reasonable in 1550 would have been a quite small sum of money. The courts viewed claims that no tithes had been paid in kind within living memory from the canonical perspective. They were strict in requiring proof and where change seemed warranted, they were willing to invalidate some old customs.®? Tudor legislation about tithes did clarify some of the disputed questions that ensued, but it was not sufficient to settle all the problems, particularly in an age when litigating was comparatively cheap, the value of the money was falling, and double or treble damages were available under the Edwardian statutes. Out of these circumstances the royal courts developed a rule that would in time sap the vitality of ecclesiastical jurisdiction over tithes. Where a defendant sued for withholding tithes alleged a custom or modus decimandi, the common lawyers held that a prohibition would lie. A dispute over the validity of a custom would be outside spiritual competence.®3 It would be tried by a common law jury instead. This rule would eventually confine the scope of ecclesiastical jurisdiction to quite narrow limits. By Blackstone’s day, it could be asserted that, “itt now seldom happens that tithes are sued for at all’ in the ecclesiastical forum.§4 This change had not taken place by the 1630s, however. Signs of its coming may have been present, solvere’; P. & C. of the Hospitallers c. Carter et al. (York, 1402-3), BI, CP.F.7: ‘nunquam fuit visum vel

auditum...quod aliqua decima pro agistamento illius loci ecclesie predicte fuerat persoluta. Other examples of similar point-blank refusals: Rector of Taverham c. Eye et al. (Ely, 1377), CUL, Act book EDR D/2/1, fo. 75v; Vicar of St Nicholas, Newcastle c. Bartram et al. (Durham and York, 1504-5), BI, CP.G.20; Cowprey c. Hybardy (Chichester, 1507), WSRO, Act book Ep I/10/1, fo. 25v.

80 Hudson and Yates c. Bewshar (Durham, 1604), DUL, DDR XVIII/3, fo. 237. 81 Knolles c. Lucas (Exeter, 1609), DRO, CC 3/118. 82 Stapleton c. Clerke (c.1600), Bodl., Tanner MS. 427, ff. 131-133v contains a good illustration. 83 Charles Gray, The Writ of Prohibition: Jurisdiction in Early Modern English Law (1994), ii. 148-56. 84 Bl. Comm., iil. 88.

456 TITHES AND SPIRITUAL DUES but they were as yet straws in the wind. The act books from the days of the early Stuarts remained full of causes brought to collect tithes. The civilians claimed that this jurisdiction belonged to them as of right, and they pointed to a long line of English precedent in support of their claim. The civilians obeyed prohibitions in tithe causes whenever they had received one, but they did not cease from enforcing the canon law of tithes when they had not.

Disputes between Tithe Holders If suits for withheld tithes were the more frequent form of tithe litigation in the ecclesiastical forum, suits between rival claimants to the tithes were not at all rare. They also had a way of occupying more court time than did suits over withheld

tithes. During the fourteenth century at Canterbury, litigation between rival claimants was usually given a special name, causae spoliationis decimarum, thus

contrasting with the causae subtractionis decimarum just described. In other words, the lawyers recognized a real difference in nature between them. It may have been meant to emphasize the possessory character of the suits, for a claim to

tithes between ecclesiastics could be based upon prescription or custom to a greater extent than when the question was whether any tithe at all was owed. In some cases, actual seizure of the tithes by one party would have taken place, making the possessory remedy appropriate. But most were simply disputes over a right to the tithes, and in time this early effort at precision in terminology was given up.

The variety of names under which parochial revenues were sought in litigation was very great. The causa intrusionis iuris ecclesiastici, and the causa iniustae detentionis decimarum, and several others covered much of the same legal territory in

English practice. Perhaps the terminological multiplicity shows nothing more than the variety of situations out of which disputes about money owed to the church arose. INTER-PAROCHIAL DISPUTES

Beating the bounds’ or ‘perambulation’ of the parish remains a picturesque custom in some English churches. In earlier days, its main purpose was more practical: to make known the parochial boundaries so that the tithes from the lands inside

them could be duly collected. As a means of settling disputes, a perambulation no doubt did some good, but it never stilled all uncertainties.85 The proof of boundaries was regarded as a matter of special difficulty in the ius commune,®° and

disputes between rival parsons for tithes, disputes that often raised this question, 85 See e.g. Tithing Book of Thomas Hassall (above n. 75), 200-7. 86 e.g, Guido Papa, Decisiones, quaest. 193, describing ten different means of making proof.

LITIGATION OVER TITHES 457 are among the earliest kinds of litigation found in the formal records of the English ecclesiastical courts.87 They did not cease. In a contest of 1575, for example, the question was whether a field known as ‘Prickeldowr’ lay within the parish of Boughton under Blean or

in the nearby parish of Challock.8& Witnesses testified to having taken part in several Rogationtide processions, during one of which an ‘old Mr Lewknour’ had pointed out what he said was the correct boundary. But overall, the evidence was quite inconclusive. Most testimony in the cause amounted to no more than repeating common fame among rival parishioners; it is plain that the perambulation’s route was not absolutely determinative. The suit itself ate up almost a year from start and finish, before sentence was finally given in favour of the parish of Boughton. It was one of many similar disputes.®9 A significant number of suits ostensibly brought against parishioners for withholding tithes actually turned out to be inter-parochial suits once the facts were fully known. The canon law allowed a third party with an interest in the outcome of a suit to intervene. In the context of tithe litigation, parsons took advantage of this right if a neighbouring parson sued a tithe payer whom they believed lived in their own parish. It was a regular occurrence. After the prebendary of Prees sued several men to collect tithes in 1464, the record states, ‘Forthwith Sir John Brygge, rector of the parish church of Hodnet, appeared and alleged pro interesse suo |his right to| the tithes of Lynford field’9° Perhaps the prebendary had supposed that suing tithe payers would provide him with a ‘softer target’ than suing the rector himself. But this rector was not asleep. And others were similarly alive and active when their own income might be at stake. It claimed their immediate attention. Thus did some causae subtractionis

decimarum regularly became inter-parochial disputes. The defendant in a fourteenth-century tithe cause who offered to meet the parson’s claim did a sensible thing by making his offer conditional upon the parson’s promise to save him harmless from all tithe claims of the parson of the neighbouring parish.?!

Animals moving from one parish to another in the course of the year were a further source of litigation. English provincial law called for a “congruent division’ 87 e.g. Master Edward c. H. the Archdeacon (c.1200) in Select Canterbury Cases, A.13; Vicar of Aldington c. Vicar of Newchurch (Canterbury, 1293), CCAL, Sede Vacante Scrapbook III, nos. 187, 191; Vicar of Leeds c. Aylsy and Vicar of Rothwell (York, 1344-5), BI, CP.E.55; Vicar of Chislet c. Vicar of Reculver (Canterbury, 1372), CCAL, Act book Y.1.1., fo. 4v. 88 Boddenden c. Marshall (Canterbury, 1575-6), CCAL, Act book, Y.3.1, ff. 150v, 187, 222, 259V, 276v, 319; Deposition book X.10.16, ff. 181, 206v—207.

89 See e.g. Margaret Stieg, Laud’s Laboratory: The Diocese of Bath and Wells in the Early Seventeenth Century (1982), 129-36. 90 Redhyll c. Pole et al. (Lichfield, 1464), LJRO, Act book B/C/1/1, fo. 1v: “Et statim comparuit dominus

Johannes Brygge rector ecclesie parochialis de Hodnett et allegavit pro interesse suo decimas campi de Lynford’.

91 Vicar of Herne c. Hachard (Canterbury, 1395), CCAL, Act book U.40, fo. 58.

458 TITHES AND SPIRITUAL DUES to be made between the parishes where the animals had been pastured, at least if the tithes were classified as praedial or mixed tithes, and it certainly happened that pro rata divisions were made in practice.% Still, there were disputes about how long animals had been in each parish, and there were disputes about the existence of customs that were legitimate ways of making the appropriate divisions. Where sheep were sheared might be as important as where they had been pastured.93 During the Middle Ages, many of the arrangements made to deal with such cases were between

monastic houses far distant from the pasture lands. They were unstable enough. Afterwards, when these tithes had come permanently into lay hands, the situation became more complicated still. Questions involving inheritance and inter vivos alienation of the tithes inevitably came before the courts as a consequence.

DISPUTES BETWEEN RECTORS AND VICARS

Many of the disputes that arose between rectors and vicars concerned the proper way of classifying tithable objects. Were they small or great tithes? In which category should the produce of newly cultivated land be put? A monastic house to which a parish church had been appropriated was the normal defendant in suits brought by vicars during the Middle Ages; afterwards it was the lay rector, the grantee of the formerly monastic lands. The legal issues in these causes were not much different than those just discussed, except that when the original appropri-

ation took place, a formal division of the tithes would have been made. The monks were to receive some; the vicar they appointed was to receive the rest. Which was which was usually spelled out in a document. When this had been done fully, it was to that early division that the courts looked in the first instance.%4 However, custom, agreement, or prescription could legitimately vary the terms of

the initial division. This solution was both good and bad. It allowed for changes in payment to reflect changing times—later variation in the use of the land for example. But it also complicated the interpretation of old divisions.

There were also rules to aid the courts. Garden tithes, for example, were normally paid to the vicar. But they too were not conclusive. In a York case from the late fourteenth century, the monks of the abbey of Rievaulx claimed the garden tithes arising within the parish of Helmsley by prescriptive right.9° Under the canon law, they were free to argue that special circumstance justified deviation 92 See Lyndwood, Provinciale, 194, s.v. dividenda est; Statutes of Salisbury II, c. 43 (1238 X 1244) in C. & S. IT, pt. 1, 382-3. Such a case involving the rector of Charing (1304) is recorded in LPL, Act book MS. 244, fo. 52; and see Poos, Lower Courts, p. lii. 93 See the discussion in BI, Prec. Bk 2, pp. 454-5. 94 e.g. Vicar of St Nicholas, Newcastle c. Bartram et al. (York, 1504-5), BI, CP.G.20, inspecting the register of the bishop of Durham from 1294. 95 Vicar of Helmsley c. Rotour (York, 1392-5), BI, CP.E.201.

LITIGATION OVER TITHES 459 from the ordinary rule. A different method could become a legitimate way of making the division. In this case, local custom and national custom came face to face. Deviation from an accepted norm was admitted more easily in suits between rival ecclesiastics than it was when laymen were involved. Canonists held that in principle it did not matter to whom the tithes were paid, just as long as they were paid to the church.%© Hence this sort of litigation. There was more. Some quite long-settled divisions of tithe revenue came under attack in the so-called causa augmentationis portionis vicari. As the name implies, this litigation grew out of an attempt by a vicar to secure a larger share of the total amount of tithes owed than he presently held. This ‘augmentation’ came at the expense of the rector, normally a monastic house during the Middle Ages. The theory behind the suit was that every vicar was canonically entitled to an adequate share of parochial revenues (X 3.5.30; Sext 3.4.1). Without this congrua portio, he would suffer in his person. The parish and its people might suffer the loss of his ministrations. All rectors stood under this obligation, and episcopal acta approving the appropriation of a parish church commonly reserved the power of changing the share allotted to the vicar if the original share should become inadequate in the future.9” As a libel in one such case put it, ‘the process of time and the necessity of things [might] bring want and difficulty’ to the vicar involved.98 When circumstances changed in this way, the vicar had a claim to a greater share of the tithes. This was a matter of canonical right, although because the interests of the rector, the parishioners, and the patron were often involved, most causes asserting that right seem ultimately to have been settled through personal intervention of the bishop and negotiation among the people directly affected.%

It was only after the Reformation that this obligation gave rise to serious resistance.1©° This happened, first and foremost, because the monetary inflation of the sixteenth century rendered the vicar’s portion inadequate more often than it had been during medieval times. But it also happened because the rector’s share of the tithes held by monastic houses then fell into the hands of the laity. This was a recipe for dispute. The clergy naturally thought that the obligation, and the 96 See e.g. BI, Prec. Bk 2, p. 461: “Non refert quae ecclesia decimas habet, modo ecclesie persolvantur’.

97 e.g. Church of Old Cleeve (Bath and Wells, 1192 X 1195) in EEA 10: Bath and Wells 1061-1205, ed. Frances Ramsey (1995), no. 195: appropriation to Monks of Bec, ‘salva etiam honesta et sufficienti

sustentatione’ for the incumbent. That many of the settlements were inadequate from the start is shown by Lawrence, “The English Parish and its Clergy (Ch.3, n. 200), 648-70. 98 Taken from Precedent book (1576-1631), BKRO, D/A/X/4, ff. 275-278. 99 e.g. Case of Ripton Parish (Lincoln, 1446), LAO, Act book Cj/o, p. 9, submitted to decision first of arbitrators and then the bishop of Lincoln, and settled (at least for the moment) by the assignment of an annual pension to one of the claimants. 100 Perhaps it should be said that these causes had little to do (except in their aim) with the attempts to augment clerical stipends discussed in Hill, Economic Problems (above n. 35), 289-306; the latter were private efforts and did not involve litigation.

460 TITHES AND SPIRITUAL DUES possibility for augmentation, remained intact. Res transit cum onere. The laity, at

least those among the laity who held the tithes, took the opposite view. They thought ownership of the great tithes was a part of their inheritance. It went with the land itself. It therefore lay outside the jurisdictional competence of the ecclesiastical courts. On this issue, no agreement ensued. The ecclesiastical understanding was well put in Thomas Ryves’s The Poor Vicar’s Plea for Tithes (London, 1620).!!

Historically, logically, emotionally, perhaps even spiritually, this book made an effective case for the viability of the causa augmentationis. However, the writs of prohibition that issued from the royal courts in such cases took the layman’s part. The success of attempts to augment the vicar’s portion was spasmodic at best.1©2 After the Restoration, civilians would count the efforts made a failure overall.!

Conflicts with the English Common Law For the most part, the common law accepted and supported the church’s law of tithes. Statutes were passed by medieval Parliaments to support the church in its efforts to collect tithes, and the Edwardian tithing statute added double and treble damages to the church’s arsenal of weapons against those who withheld what they owed.!°4 The common lawyers accepted the principle that ordinarily a custom of not paying any tithes at all was invalid.!°° When common lawyers wrote practical treatises on the subject, as they did from the late sixteenth century forwards, most of what they wrote was compatible with, if it was not indeed drawn from, the canon law. One should not exaggerate the antipathy between the two court systems on this subject. None the less, there was always some contention between them, and the level of disagreement about jurisdiction over tithes between the royal courts and the ecclesiastical courts escalated during the sixteenth and seventeenth centuries. Attempts to quash the causa augmentationis portionis vicarit was not the sole example of a basic disagreement that separated the positions of the two court systems. Determining the scope and legitimacy of tithing customs became a particular

source of discord. Writs of prohibition proliferated, and the English civilians defended their jurisdiction with the energy of men who saw the end to which the 101 Tt was concerned most directly with Ireland, but the arguments in it applied with equal vigour in England. Another short discussion (seventeenth century) is found in Bodl., Tanner MS. 280, fo. 198. 102 e.g, Wall c. Smith (Salisbury, 1640), WTRO, Act book D1/39/1/54, ff. 21v et seq., which was marked ‘ad sententiandum or simply ‘stet. for ten court sessions, after which it appeared no more in the act book.

103 That was the conclusion of a post-Restoration account found in a Precedent book (c.1696), WORO, MS. 794.093 BA 2479, fo. 92: “Some bishops have attempted, but could never prevail without the improprietor’s consent’. 104 5 Hen. IV, c. 11 (1404); 27 Hen. VIII, c. 20 (1536); 2 & 3 Edw. VI, c. 13 (1549). 105 e.g. Branch’s Case (KB 1585) Moo. 219; Bishop of Lincoln v. Cooper (KB 1590) Cro. Eliz. 216.

LITIGATION OVER TITHES 461 prohibitions might lead—in fact did lead.1°° This situation was not wholly new. Before the thirteenth century, jurisdiction over some disputes involving tithes had been shared between church and state. Despite the recognition of the church’s rights for most of the rest of the Middle Ages, conflict and overlap were never wholly absent. The outlines of the story have also been well chronicled by modern scholars,!©”7 and the most that needs to be done is to take account of their research and to detail what light the ecclesiastical court records shed on the subject. PATRONAGE QUESTIONS

The English kings claimed the right of the royal courts to determine disputes about advowsons from an early date, and the royal justices sought to prevent the church’s admitted right to deal with tithes from indirectly trenching upon this claim. It was settled in the course of the thirteenth century that where more than a quarter of the total value of tithes within any parish were being sued for in an ecclesiastical court, a writ of prohibition would lie. The idea was that by claiming a large share of tithes, one parson might in effect oust another and thereby undermine the right to the advowson held by the defendant’s patron. As Stoner J. put it in 1330, ‘The advowson of all the tithes is nothing less than the advowson of the church’!°8 Because the possession of parochial rights counted in establishing any patron’s rights, the fear was not wholly imaginary, even where less than all the tithes were at issue, and a special writ of prohibition called indicavit came to be used to ensure that this did not happen. The ecclesiastical court records present quite a different picture of the subject, although it was never one of fundamental jurisdictional conflict. First, virtually

every plenary tithe cause raised the question of the plaintiff’s legal status as parson—exactly the question the common law rule held that the spiritual courts could not hear. This was true no matter the percentage of tithes at issue. The question was obviously relevant in the ecclesiastical forum, because no parson could claim the tithes unless he had a right to them as either rector or vicar.1© It would have been very strange had the common law rule been interpreted so as to keep that question out of ecclesiastical competence. Second, the letter of the rule was quite easy for any parson to defeat, simply by bringing separate suits against the parishioners. In none of them, taken individually, would more than a quarter of the tithes have been at issue. Such multiple suits were not infrequently brought in 106 See Ridley’s View, chs. 2-4. 107 Norma Adams, “The Judicial Conflict over Tithes’ (1937) 52 EHR 1-22; Jones, ‘Relations’, 157-65;

Flahiff, ‘Prohibitions’ 108 YB Pas. 4 Edw. III, fo. 27, pl. 29. See also Doctor and Student, 236. 109 e.g, Stapleton c. Clerke (Worcester, 1599), Bodl., Tanner MS. 427, fo. 131-131v; the plaintiff’s claim to have been inducted as rector of Dichford was disputed, as was the status of the church as a parish.

462 TITHES AND SPIRITUAL DUES practice, although there was nothing about the records in them to suggest that they were commonly being used as a way of avoiding a writ of prohibition. Third, despite these potential sources of conflict, little actually ensued. Had patronage questions come into issue, the patrons themselves would have intervened in tithe disputes. This happened in those ecclesiastical causes, to be examined in Chapter 9, where the right to churches and the patronage that went with that right came directly in issue. But it did not happen in the tithe litigation that has survived. The law of tithes seems to have been one of those areas of the law where this particular source of conflict was avoided. TITHES AS LAY DEBTS AND CHATTELS

Tithes could easily be depicted as money or lay chattels rather than a spiritual obligation. They could be severed from the other nine parts of the crop. They could be commuted into money payments. They could be sold or leased to someone other than the parson entitled to them. At what point did they cease to be tithes? The royal courts claimed jurisdiction over all lay debts and chattels, unless they related to marriage or testaments, and they provided a writ of prohibition to prevent the spiritual courts from dealing with disputes about all other debts and chattels. They also provided a writ of debt or a writ of trespass to recover chattels withheld or wrongfully taken. This might be used once the tithes had been separated from the other nine parts. Eventually, the availability of writs of debt for what was owed in tithe would allow the royal courts to appropriate most of the church’s jurisdiction over tithes, particularly where the interests of the laity were concerned. It is not always easy to be sure exactly what the position of the royal courts was on this question during the Middle Ages. The year book cases mostly end inconclusively.1!° However, some large and threatening claims were undoubtedly made from time to time. Perhaps oddly, this obvious source of potential conflict did not become a source of real discord in practice during the Middle Ages, or even into the sixteenth and

seventeenth centuries, at least if one judges by the records of the ecclesiastical courts. Indeed, sixteenth-century statutes seem actually to have strengthened the church’s position on this score.!!! The ecclesiastical courts regularly exercised jurisdiction to recover tithes severed from the other nine parts. Moreover, where tithes were paid in kind, the person entitled to them had the option of suing the buyer where they were sold to a third party instead of being delivered to him.!!2 No cases of more extensive ‘tracing’ of the chattel into the hands of subsequent purchasers have been found in the records, but it is clear that severance from the 110 See e.g. Case of the Parson of K. (1364) YB Hil. 38 Edw. III, fo. 5; Case of the Prior of D. (1364) YB Pas. 38 Edw. III, fo. 8; Case of the Abbot of C. (1364) YB Trin. 38 Edw. IT, fo. 19. 111 e.g, 32 Hen. VIII, c. 7 (1540). See Blackwel’s Case (CP 1601) Cro. Eliz. 844. 112 Cause of the Tythwood (c.1610), BI, Prec. Bk 11, ff. 1ov—11, also reviewing the medieval authorities; see also a civilian’s opinion, Library of D. & C., Durham, Raine MS. 124, fo. 231.

LITIGATION OVER TITHES 463 earth alone did not put the tithes outside the jurisdiction claimed by England’s spiritual courts. Where the tithe had been sold or commuted into a money payment, the courts of the church also allowed suits to collect the money to go ahead, despite the existence of sentiment against it on the part of the common lawyers.!!3 The question relevant in the spiritual courts was whether the source of the obligation to pay the

money had been the tithe. Indeed, recovery of money in place of tithes was the most familiar case. Defendants in tithe causes often argued that they had paid the sum demanded or that they owed nothing, but never that the obligation had become a lay debt or chattel. The line was not drawn according to its form at the time the suit was begun.!!4 Sentences in tithe cases issued by the spiritual courts normally contained condemnations to pay specific sums of money. Nor, at least before the sixteenth century, did prohibitions involving the claim that money or chattels were involved figure largely in the act books.145 It may be, of course, that the records of the royal courts during the Middle Ages and afterwards also contain many debt and trespass pleas that were grounded in claims for tithes. Certainly there were some. No one has yet conducted a systematic exploration of the records to discover how many. What one can say is that to all appearances the potential for conflict where tithes had been severed or turned

into a different form of property—a potential that had existed at least since the thirteenth century—was not apparent in the records of the English ecclesiastical courts. TITHING CUSTOMS

This potential for conflict was felt—and indeed realized—in jurisdictional disputes about the law of custom in tithing. A treatment of ecclesiastical law cannot explore all the distinctions the common lawyers developed to determine when a prohibition would lie to prevent a spiritual court from dealing with a modus decimandi. Sir Edward Coke’s famous report of a case under that name remains the best introduction to the subject.!!6 It has the added merit of making selective use of the opinions about tithing held by Thomas Aquinas and a few notable canonists. More importantly, Coke’s opinion stated clearly the fundamental reason for the assertion by the common law of the right to try all tithing customs. That reason was this: Where the custom was to pay less than the full tithe, as most customs were, the ecclesiastical courts were regularly acting to ‘overthrow the same’!!” They were pressing for a return to tithing in kind and in full. 113 See the ‘Addition’ to Circumspecte agatis (1285), discussed in Graves, “‘Circumspecte Agatis, (Ch. 2, n. 141), 16.

114 See Leigh v. Wood (KB 1597) Cro. Eliz. 607; Portinger v. Johnson (KB 1617) 1 Gwil. 286; Scot v. Wall

(1628) Hob. 2.47. 115 See Canon Law and the Law of England, 82. 116 Case of Modus Decimandi (CP 1608) 13 Co. Rep. 12. 117 ibid., at 18.

464 TITHES AND SPIRITUAL DUES Coke accused the canonists of violating their own law in not admitting legitimate tithing customs, and he had a point. To some extent this was true. The English civilians had taken a very restricted view in assessing the legitimacy of prescriptive customs during the seventy-five years before this case was heard. Where his statement was misleading, however, was in not stating that the canon law favoured taking exactly the view that the judges in the ecclesiastical courts took. Parishioners who relied on agreement and custom to free themselves from payment of tithes in kind had to meet strict tests under the law. Here is one formulation of the test, taken from a Jacobean civilian’s opinion: To prove a prescription of paying of tithes or a certain rate for tithes of houses every parishioner must prove that for 40 years and more that only that rate hath been paid. And the witnesses that depose this must depose it of their own knowledge. And further they must depose that more than 40 years since they have heard ancient men avouch that only that rate hath of long custom been paid in discharge of tithes. Otherwise they do not prove a custom.!18

The act books and case reports from the ecclesiastical courts contain many tithe disputes in which this high burden of evidence was used to invalidate customs that (at least in the tithe payer’s view) had long governed how they acted.119 It was not so much that customs were struck down as unreasonable— although that happened too. It was rather that they had to be strictly proved. Defendants had to show there had been no interruption in the custom. If full proof of continuity and general observance was not forthcoming, the ecclesiastical courts would order a return to the regime of the tus commune. That meant payment in kind. No doubt the ecclesiastical court sentences, some of which called for return to a regime that had never existed, were the subjects of negotiation in individual cases. The threat of a writ of prohibition hung over much of the litigation about tithing customs and agreements in the spiritual tribunals, and the possibility had an effect on how the cases came out. Some hard bargaining went on between the men who were entitled to the tithes and parishioners. Very often there must have been formulation of a new custom in place of the old.!2° But, from the church’s point of view at least, it was possible to count some success in making up for the ravages of the sixteenth-century inflation. These cases show one more thing: a way of reconciling the apparently opposite views about lay attitudes towards the tithe set out at the start of this chapter. 118 Opinion of Dr Hayward in Precedent book, SKRO, E 14/11/7, fo. 23; see also, among the controversial literature on the subject, BL, Lansd. MS. 161, ff. 252-261.

119 The subject is more fully discussed and more cases are cited in Helmholz, Roman Canon Law,

94-104. 120 See e.g. John Pruett, The Parish Clergy under the Later Stuarts (1978), 82-91.

OTHER SPIRITUAL DUES 465 On the one hand, quite acrimonious disputes about tithes were very common, from the thirteenth century to the abolition of the consistory courts. On the other hand, very few of them raised matters of principle. One discerns few signs of real opposition to tithes as a right of the church. If divine service was not provided by the clergy, then some men thought the laity might withhold their tithes.!2! But this was not a denial of the duty to pay tithes. The sad fact was that acceptance in principle was perfectly consistent with the existence of “wrangles and contentions and scandals. Perhaps that is a permanent characteristic of the law of taxation. So it was, in any event, with the canon law of tithes.

OTHER SPIRITUAL DUES The tithe proved the greatest financial burden on the laity and the greatest source of parochial revenue for the clergy at all times covered by this volume. It was not, however, the only one. Many lesser exactions were owed to church and clergy. They arose out of pious habit. Habits hardened into rights, however, and sometimes even into statutes. Inevitably, they became the subjects for litigation in the ecclesiastical courts. Although there was inevitable overlap between the categories, three distinct kinds of spiritual dues appeared with enough frequency in the court records to watrant separate treatment in an account of English ecclesiastical jurisdiction. The first consists of customary payments owed to the clergy, the second of payments for relief of the poor, and the third of payments made for repair of the church fabric.

Customary Oblations The most famous, and certainly one of the oldest, of the spiritual mulcts was known as Peter's Pence, or more commonly as ‘Romepenny’ or “Romefeoh’ during the Anglo-Saxon period in which it began. In theory a penny from each English hearth, it was to be paid to the bishop or his agents and forwarded to Rome. Like many such long-lived dues, its exact origins and motivation are now impossible to trace. It was mentioned more than once in the Anglo-Saxon laws, and the Anglo-Saxon Chronicle recorded alms being taken from the West Saxons to Rome in 887, 888, and 890.!22 The best guess is that this obligation began ‘as voluntary alms contributed by the Anglo-Saxon people at the instance of the king’.!23 From there it gradually established itself as a form of tax. Eventually the sum received by the papacy 121 Anon. (Court of Audience, 1605), GL, MS. 11448, fo. 13v, with citation to medieval authorities. 122 EGu 6:1 in Liebermann, Gesetze, i. 130-1 [| Laws, Attenborough, 104-5], II Eg 4:1, in Liebermann, Gesetze, i. 198—9 [ Laws, Robertson, 22-3]; ASC, s.a. 887, 888, 890 in EHD, i. 183. 123 Lunt, Financial Relations of the Papacy (Ch. 1, n. 164), 3-84, at 6. See also O. Jensen, “The Denarius

sancti Petri in England’ (1901) 15 TRHS (n.s.) 171-247.

466 TITHES AND SPIRITUAL DUES as Peter’s Pence would become fixed at 299 marks. According to its modern students, the methods and extent of its collection always depended to some extent upon local

custom,!24 but there is little doubt that it was being collected with a fair degree of regularity up to the time of its abolition by statute in 1534 (25 Hen. VIII, c. 21).!25 Many medieval bishops’ registers took note of actions begun to enforce the regular payment of Peter’s Pence, and the records of the medieval consistory courts also contain ex officio prosecutions to secure its collection.12¢ In this, it was very like many

parochial customs, voluntary in their inception, but obligatory in their sequel.

Several customary dues like Peter’s Pence were part of the English church's Anglo-Saxon inheritance. Among similar contributions, for example, should be counted the oblations known as ‘plough alms’ and ‘wax-scot’ and “church-scot’— all of them payments of small amounts of money made on specific occasions. !27 Others of the same character were added over the course of time, and some subtracted. About some of these mulcts we know little more than their existence and

their names, as in the case of the “Christesdole, the subject of contention in the diocese of Norwich in 1305, or the “Maynpott, at issue in Lincolnshire in 1346, or the “Garth penny, the subject of a suit in Carlisle in 1629.!28 Some of these obligations are better known, as that of presenting a candle or a money equivalent to the parish church on Candlemas (2 February), or the traditional offering of money to pay for the holy loaf.129

Not all of these customary oblations outlasted the Reformation’s attempt to suppress superstition. But many of them did, and the act books contain some picturesque examples, such as the ‘custom gallon’ of beer (allegedly) presented annually to the parson of the church of Portlemouth in the diocese of Exeter, or the provision of drink for the yearly perambulations in some parishes.13° 124 Tunt, Financial Relations (above n. 123), 80-1. 125 The statute was repealed by 1 & 2 Ph. & Mar., c. 8, s. 3 (1554-5), but revived by 1 Eliz. I, c.1, s. 2 (1559). 126 Ex officio c. Isaac (Salisbury, 1391), Reg. Waltham, no. 121; Ex officio c. Wylliam (Canterbury, 1474),

CCAL, Act book Y.1.10, fo. 186; it was claimed that the defendant ‘non curat solvere denarios sancti Petri viz. xx d. xx annos’; Ex officio c. Carpenter (Winchester, 1525), HRO, Act book 21M65/C1/2, fo. 101. 127 See William A. Chaney, ‘Anglo-Saxon Church Dues: A Study in Historical Continuity’ (1963) 32

Church History 268-77; Dorothy Owen, “Iwo Medieval Parish Books from the Diocese of Ely: New College MS. 98 and Wisbech Museum MS. v in East Anglian and Other Studies Presented to Barbara Dodwell (= 11 Reading Medieval Studies; 1985), 121-31. 128 Ex officio c. Grangia (1305), LPL, Act book MS. 244, fo. 59; Ex officio c. Croft (1346), Poos, Lower Courts, 202; Ex officio c. Harlie (1629), CBRO, Act book DRC 3/62 s.d. 30 Jan.

129 Rector of Knapwell c. Warde (Ely, 1376), CUL, Act book EDR D/2/1, fo. 54; Churchwardens of Monnesley c. Lynde (Hereford, 1497), HFRO, Act book I/1, p. 253: “causa subtractionis panis benedicti’ 130 Froste and Bevell c. Steede (Exeter, 1604), DRO, MS. CC 3b/19; Ex officio c. Gasper and Caudey (Salisbury, 1602), WTRO, Act book D1/39/2/5, fo. 36. See also those listed in Sedley Lynch Ware, The Elizabethan Parish in tts Ecclesiastical and Financial Aspects (1908), 77-87. The fee paid for churching of

women was another and more contentious such mulct. See David Cressy, Birth, Marriage, and Death: Ritual, Religion, and the Life-Cycle in Tudor and Stuart England (1997), 210-16.

OTHER SPIRITUAL DUES 467 New ones could arise too, as an alleged custom of providing straw for use in a parish church’s seats.!3! A determined survey would produce more examples of local customs, as well as the inevitable disputes about their antiquity and legitimacy. Very likely, they were sometimes concealed under act book entries called a causa subtractionis iuris ecclesiastici or even a causa violationis ecclestasticae liber-

tatis. Where the facts behind such entries can be discovered, they often turn out to have been about money allegedly owed as a form of customary payment. The payments made up significant parts of any parson’s living.!32 Parsons would count them as among the iura parochialia,!33 and they would be willing to go to law to collect them as their due.

The formal canon law did not condemn their efforts. Quite the reverse; it approved them, at least most of them. The collection of customary dues like these

was justified by the church’s attitude towards ‘laudable customs, those that expressed the piety natural to the laity. A text from the Decretum (De cons. Dist. 1 c. 69) proclaimed that offerings should be made at God’s altar, for God had said to Moses, ‘Let no man appear before me empty’ (Exod. 23: 15). Indeed, the canon law sought to punish those who impeded their collection (X 5.3.42). Silence was

to be imposed on anyone who sought to persuade others not to pay customary oblations founded in piety and long usage. Such orders were issued.134 Whatever its theoretical claims of superiority over temporal power, the medieval church did not hold the power to tax the laity, except in the ways that were sanctioned by divine law and established custom. There was thus every incentive for the church to hold on to what it had. In some instances, however, justifying and enforcing payment of these customary

dues did pose problems for the ecclesiastical lawyers. The mortuary payment, which had been known as ‘soul-scot’ in Anglo-Saxon times, is a particularly good example.!35 The mortuary was a customary offering made to the parson on a person’s death, to be taken from his goods. Although it took different forms and although it was not collected everywhere, traditionally the decedent's ‘second best beast’ was the mortuary payment. It was, as Blackstone put it, a kind of ‘ecclesiastical heriot, since 131 Fx officio c. King (Archdnry Northampton), NRO, Correction book 41, p. 13: ‘for not finding strawe to lay in the seates in the church ... according to the custom’

132 See e.g. Robert Swanson, ‘Standards of Livings: Parochial Revenues in Pre-Reformation England’ in Religious Belief and Ecclesiastical Careers in Late Medieval England, ed. Christopher Harper-Bill (1991), 151-95, at 188-9.

133 See Hostiensis, Summa aurea, lib. III, tit. De parochiis, nos. 2-3; Lyndwood, Provinciale, 273, s.v. ecclestis parochialibus; Ayliffe, Parergon, tit. Of a Parish; Edward Stillingfleet, Ecclesiastical Cases (2nd edn, 1702), 168-80. 134 e.g, Andreas c. St Faith (Worcester and Canterbury, 1293), CCAL, Ecc. Suit, no. 296; Ex officio c. Shrowsbery (London, 1471), GL, Act book MS. 9064/1, fo. 105v: “excitat parochianos ibidem quod non solvant onera huiusmod?. 135 The history of the mortuary is given, with more detail, in Four Studies, 135-86.

468 TITHES AND SPIRITUAL DUES the first best beast went to the decedent’s lord.!3° The legal problem was that, when examined with any care, the mortuary looked very like a burial payment. Indeed, it was a burial payment. Under the canon law, paying the clergy for a person’s burial was unlawful (X 5.3.9). The law condemned it as simony. It was paying money for a spiritual service. Custom, even long-established custom, could not justify simony any more than it could justify adultery or lay investiture.

Justifying this form of customary payment called for some ingenuity. Strict reformers might have said it could not be done. But that was not the result arrived at by the jurists. During the thirteenth century, they hit upon an answer of sorts: collection of the mortuary was a replacement for forgotten tithes.137 Most men did not pay their tithes completely, it was said. Payment of the mortuary on their behalf was a way of improving the state of their accounts before the Final Judge. Was this rationalization? Perhaps. The answer itself led to further difficulties. How, for example, could it be required of infants who died? They would not have forgotten to pay any tithes. Why was it collected in some places but not in others? Tithes were due everywhere. William Lyndwood took up just such conceptual difficulties, concluding weakly but instructively, ‘I think that in this, recourse is to be had to long established custom ’.!38 His words are testimony to the strength of custom as a source of obligation under the canon law. Even the 1529 statute, which provided a firmer legal basis for the mortuary and converted it into a money payment, recited that its application was limited to places where the mortuary had customarily been paid.139

Relief of the Poor The medieval church took upon itself an obligation to encourage helping the poor and unfortunate. Numerous ways of doing this were embraced. The church went beyond encouragement of alms-giving. For instance, a quarter of the tithe was to be paid to the poor under an established tradition in the Latin church. The laws of Athelred had put the duty even higher: a third of the tithe should always go to

the poor.!4° Desuetude of these prescriptions under the classical law did not eliminate ecclesiastical efforts to care for those who could not feed and clothe themselves.141 The clergy were under a duty to receive the poor. The obligation of hospitality, including care for the hungry, was enjoined upon the clergy in many 136 Commentaries, 11. 425.

137 This was first suggested in Statutes of Salisbury II, c. 42 (1238 X 1244) in C. & S. I, pt. 1, 382. 138 Tyndwood, Provinciale, 21, s.v. subtractionts. 139 91 Hen. VIII, c. 6; see also 13 Eliz. I, c. 5 (1571), 29 Eliz. I, c. 5 (1587).

140 VIII Atr 6 in Liebermann, Gesetze, i. 264 [ Laws, Robertson, 120-1]. 141 See generally Brian Tierney, Medieval Poor Law: A Sketch of Canonical Theory and its Application in England (1959); John Gilchrist, The Church and Economic Activity in the Middle Ages (1969), 76—82.

OTHER SPIRITUAL DUES 469 English synodal statutes.!42 Indeed, in some circumstances, the canon law held that the poor had a right to be supported from the superfluous wealth of others. This led to many concrete results. The creation of institutions for the poor and provision of regular distribution of alms to them stand out as accomplishments of the age.143

The overall effectiveness of medieval poor relief has proved to be a contentious

question among some historians. Religious allegiance has sometimes been the decisive factor, as it was in the old and once famous dispute between Cardinal Gasquet and G. G. Coulton.!44 The subject cannot occupy the attention of the student of the ecclesiastical courts, except as it appears in the records, and it must be said that for the medieval period those records discourage romantic conclusions about the church’s solicitude for the unfortunate. Of course, records of litigation

do not by their nature provide information about works of mercy, and there is some evidence of poor relief to be found in the medieval record. The courts intervened to protect the goods of charitable foundations and to enforce charitable bequests that benefited the poor.!45 They allowed pleas to be made in forma pauperis. Precedent books from the Middle Ages included commissions issued to curates requiring them ‘to stir up the people’ to give alms to men and women who had suffered disasters through fire or accident.!4© Such efforts may well have borne fruit. However, they did not involve direct action in the courts. Only a few proceedings were brought in the courts to compel either the clergy or the laity to contribute to poor relief.14” The canon law permitted the poor to ‘denounce’ a rich man who refused to give to those in need, and the bishop would compel the latter to fulfil his duty.148 The procedure was ‘indirect’ enforcement of the rights of the poor. But if it ever happened in practice, no sign of it has yet been uncovered in the English court records. Regular enforcement of a legal duty to contribute to poor relief was a step taken

only in the sixteenth century. A statute enacted by Parliament in 1535 required 142 e,¢,, gl. ord. ad d.a. Dist. 47 c. 1, s.v. hospitalem; Statutes of London II, c. 64 (1245 X 1259) in C. & S. IT, pt. 1, 647.

143 See generally Michel Mollat, The Poor in the Middle Ages, trans. Arthur Goldhammer (1986); Miri Rubin, Charity and Community in Medieval Cambridge (1987). 144 See G. G. Coulton, Ten Medieval Studies (1930, repr. 1967), 162-5; F. A. Gasquet, Parish Life in Mediaeval England (1906), 84-6. 145 e.9, Master of the Hospital of St Thomas, Canterbury c. Halle (Canterbury, 1374), CCAL, Act book Y.1.1, fo. 753 Ex officio c. Warden of the Hospital of Stourbridge (Ely, 1380), CUL, Act book EDR D/2/1, fo.

139; Marchaunt c. Clovre (Rochester, 1348) in Reg. Hamo Hethe, 983. 146 e.g, Precedent book (fifteenth century), CUL, EDR F/5/32, fo. 26.

147 An exception is Ex officio c. Abbot of Killingworth (Archdnry Buckingham, 1489) in Elvey, Buckingham Courts, no. 104.

148 Gl. ord. ad Dist. 47 c. 8, s.v. esurientium; Panormitanus, Commentaria ad X 5.18.3, no. 7. See Tierney, Medieval Poor Law (above n. 141), 127.

470 TITHES AND SPIRITUAL DUES churchwardens to set up a ‘poor man’s box’ and to receive the ‘charitable and voluntary alms’ of the parishioners in it (27 Hen. VIII, c. 25, s. 4).149 The canons of

1604 added a combination of exhortation and direction to the statute, as did episcopal directions for poor relief in individual dioceses.!5° Overseers of the poor were appointed. The fines levied and the penances commuted in the spiritual courts were dedicated to the benefit of the poor.15! The bishops’ visitations included efforts at collection and distribution of alms meant for the unfortunate.1%2

Thus it was that contributions for relief of the poor became a legal duty on the part of the inhabitants of each parish. Statutes required it. Afterwards ex officio prosecutions against the recalcitrant became quite regular occurrences in the ecclesiastical courts. An extract from a consistory court act book from the diocese of Ely in 1590 is typical. The registrar recorded that, “Thomas Pearson is presented, for that he refuseth to pay his collection to the poor man’s box. He hath been oftentimes desired and neighbourly by his neighbours, but still he refuseth it.153 The mixture of persuasion and threat contained in the words of this extract marked the subject throughout. How effective it was in the service of the poor, we cannot be sure. We know for certain only that individual men were bound to contribute. And of course this duty was only one part of the Elizabethan Poor Law—a much larger and still controversial subject.

Church Rates

Under the ius commune, the duty of repair of the parish church fell upon the rector, to whom the share of the tithes originally destined for that purpose had come to belong.!54 It was a duty he might share with the vicar by agreement or custom, both of which would have been appropriate where the vicar enjoyed a substantial share of the tithes. Under English custom, by contrast, responsibility 149 One from 1589 is pictured in Emmison, Elizabethan Life (Ch. 2, n. 133), 208.

150 ¢, 84 in Anglican Canons, 378-9; c. 25, Whitgift’s Articles for Worcester, c. 25 (1577) in W. P. M. Kennedy, Elizabethan Episcopal Administration (1924), ii. 58. 151 e.g, Ex officio c. Murgatroyde (York, 1596), BI, Chanc.AB.13, fo. 38v, in which the defendant admitted to fornication and was ordered to pay 6s. 8d. to parochial officers for distribution ‘among the poor of the said chapel’; Ex officio c. Browne (Durham, 1593), DUL, Act book DDR IV/3, fo. 75v: ‘et

realiter solvit xl s. ad pios usus distribuendos’, of which he paid 20s. at once; it was to be distributed ‘pauperibus infra eandem parochiam. 152 e.g, Injunctions of Bishop Chaderton at Lincoln, 1607 in Visitation Articles and Injunctions of the Early Stuart Church, ed. Kenneth Fincham (= 1 CERS; 1994), 71; Archbishop Grindal for the Province of York, cc. 44, 52-3 (1571) in Visitation Articles and Injunctions of the Period of the Reformation, ed. W. H. Frere (1910), 266, 268-9. 153 Ex officio c. Pearson (1590), CUL, EDR Act book D/2/18, fo. 8v. Two other examples: Ex officio prom. c. Apleton (Winchester, 1621), HRO, Act book 21M65/C2/45, s.d. 28 Apr.: ‘in quodam negotio denegationis eleemosynae sive largitionis charitative’; Ex officio c. Clarke (London, 1583) in Hale, Proceedings, no. 535. 154 C10 q. 3. ¢. 2.

OTHER SPIRITUAL DUES 471 for upkeep of the nave and some other parts of the parish fabric rested upon the parishioners themselves.!5>5 The obligation—and it was a legally enforceable obligation—was one of those ‘laudable customs’ which, although contrary to the let-

ter of the canon law, fitted comfortably within its broader purposes. In practice, this custom was the foundation of the so-called “church rate’ It covered both basic repairs and some of the church’s ornaments and its collection of books. This financial responsibility, though based on custom, was also backed by English synodal statutes from the thirteenth century, and ex officio actions brought to com-

pel parishioners to contribute to the rates are found among the earliest surviving act books from the fourteenth century.!5° It was not, however, before the fifteenth century that we find records of the system having assumed the form it would retain. That system called for self-assessment on the part of the men who were obliged to pay the rate. Although the courts would admit the assessment to be made according to other local customs,!5” most commonly the parishioners, or at least a group of the

most prominent among them, were called together by the churchwardens and required to agree on a sum to be assessed against land, houses, and animals within the parish.!58 Once collected, the wardens administered the fund for the benefit of the church’s fabric. In some instances, the proposed assessment was brought before the consistory court for approval, probably when there had been disagreement at the parochial meeting or when the wardens anticipated difficulty in collecting it.159 This system could not be called ‘democratic’ in a modern sense of the word.!® It was, however, part of the larger movement towards taking control of parochial matters that was assumed by the laity during the later Middle Ages. The assess-

ments were formally said to have been made ‘by the common consent of the parishioners, by ‘the maior et sanior pars among them, or at any rate ‘by the greater part’ of the parish.!©1 These formal entries may have been close to the fact. It is true 155 John Ayton, Constitutiones, 113, s.v. ad hoc tenentur; Lyndwood, Provinciale, 53, s.v. reparatione; ibid. 253, s.v. ad quos pertinent. The chancel was under the care of the clergy. 156 Customs of Salisbury III, c. 8 (1228 X 1256) in C. & S. I, pt. 1, 512-13; Ex officio c. Parishioners of Uckfield (Chichester and London, 1304), LPL, Act book MS. 244, fo. 24v; Churchwardens of Whitstaple c. Russel (Canterbury, 1374), CCAL, Act book Y.1.1., fo. 78v; the form was spelled out in a fifteenth-century formulary, BL, Harl. MS. 3378, fo. 73: ‘Querela in causa contributionis fabrice ecclesie’. 157 e,¢, Parish of Halton (Archdnry Chester, 1525), CRO, Act book EDC 1/3, fo. 28, in which the villagers

alleged a local custom and the court set a term for its proof, which, however, was not forthcoming. The judge then set the award to be made ‘secundum bonorum suorum valorem in posterum. 158 Fx officio c. Chever (London, 1486), GL, Act book MS. 9064/2, fo. 134v, where the assessment was

made ‘iuxta taxationem factam per parochianos electos’.

159 e.g, an action called ‘Negotium confirmationis rate de Dodiscombsleigh promotum per gardianos ibidem reclamatum per Doudney’ (Exeter, 1629), DRO, Act book Chanter MS. 803 s.d. 22 Sept. 160 Tt has been called a ‘school for democracy, however; see W. E. Tate, The Parish Chest: A Study of the Records of Parochial Administration in England (3rd edn, 1969), 1. 161 e.g, Churchwardens of Challock c. Amys (Canterbury, 1416), CCAL, Act book Y.1.3, fo. 11; Ex officio c.

Mossole (Chichester, 1586), WSRO, Act book Ep. I/17/6, fo. 41; Case of Parish of Carnaby (York, 1468), BI, CP.F.243; Ex officio c. Bladwell (Archdnry Norwich, 1602), NNRO, Act book ANW/6/5, s.d. 1 July.

472 TITHES AND SPIRITUAL DUES that all lay supervision of the business of churches had been forbidden by the First Lateran Council,!®2 and Gratian’s Decretum incorporated the canon in its pages

(C. 16 q. 7 c. 25). By the fifteenth century it had become obvious that the prohibition had fallen into desuetude, at least as it related to this aspect of parochial government. The same system was used, for example, in the first general highway act enacted in 1555 (2 & 3 Ph. & Mar., c. 8). It had become a part of English law. The cases about church rates that came before the ecclesiastical courts from the

fifteenth century onwards were usually brought by the churchwardens, although ex officio prosecutions remained possible despite the statute that prohibited them from being brought in tithe causes (2 & 3 Edw. VI, c. 13, s. 9). As was their wont, the English civilians read the Edwardian statute strictly, in the service of preserving the ius commune, and the statute did not expressly mention church rates.16 Particularly

in such prosecutions, the exact reason for dispute is often hidden by the blank nature of the records, but enough causes with detailed pleading exist so that somewhat more about rates can be said. The most common objections raised were first, that the rate payer had not been adequately summoned to appear at the meeting, and second, that a particular assessment was unjust. Assessments were customarily made according to the amount of land and number of animals each person in the parish owned, and landholders sometimes objected because not all such property was equally productive or valuable.!®* There was something to this objection, but the custom in most places was firmly enough established to survive such challenges. This method of assessment by land and animals could be changed by agreement among the parishioners, but it continued to furnish the starting-point.!%©

Other objections were also occasionally made, such as one parishioner’s complaint against the Laudian regime—that the rate was not being assessed for improvements in the fabric of the church, but instead ‘for some interior beautifying thereof’! A few cases involved disputes about ownership of land, such as a case involving one (surely unsuccessful) defendant who claimed an exemption from the rates because he held only a life estate, or the excuse made by a defendant seeking escape liability because he had not been in possession of the land at the time of the assessment, or the more difficult problem presented by land that 162 ¢, 8 in Decrees, Tanner, 1. 191.

163 e.g, Ex officio c. Plumtree (Archdnry Nottingham, 1596), NUL, Act book AN/A 11/2 (pt. 2), p. 22: ‘presented for refusinge to pay to the necessary uses of the church’ 164 e.g, Ex officio c. Gie (Salisbury, 1602), WTRO, Act book D1/39/2/5, fo. 30: ‘his yardlands are not so good as others by v li-; Church of Luxulian (Exeter, 1630), DRO, Chanter MS. 803 s.d. 23 June: “dictam

ratam fuisse et esse inequalem et minus indifferentem’ See also Emmison, Elizabethan Life (above n. 149), 278-9. 165 See Formulary (c.1630), LJRO, B/A/20/unsorted, at end of volume, where it is said that the rate was levied at ‘12 d. for every yardland’. 166 Ex officio c. Robinson (Lincoln, 1639), LAO, Act book Cj/30, fo. 80.

OTHER SPIRITUAL DUES 473 was held by tenants in common.!°7 There were also some causes involving large numbers of defendants; the presence of many dissenters from the assessed rate

must show that the system itself had broken down.!68 Where this happened, refusal could lead to a sentence of interdict against the parish church itself.1° They were rare, however, and no objections to the principle that stood behind this form of taxation have so far been discovered in the surviving records. Of course it is unlikely that such objections would have been made openly in court or included in the formal court records if they had been. As with objections against tithes themselves, objections against church rates as the source of obligation would have done little good in litigation, and few lawyers will plead what does their clients no good. Still, it is instructive to recognize how seldom claims of any sort to immunity from church rates were made. Such claims to customary immunity were raised quite often in tithe litigation, but comparatively few are to be found in causes involving this form of communal taxation. 167 Churchwardens of St Mary, Sandwich c. Broke (Canterbury, 1422), CCAL, Act book Y.1.3, fo. 206:

‘habet in dicta parochia ad terminum vite sue quatuor acras terre’; Churchwardens of Monkton c. Clyve (Canterbury, 1422), CCAL, Act book Y.1.3, fo. 228: “Et quod ea occasione ipse non occupat huiusmodi

terras’; Churchwardens of Harrold c. Yarwey (1630), discussed with opinions of counsel in CUL, Collect.Admin.38, ff. 224-7. 168 Church of Palgrave c. Parsons et al. (Lichfield, 1469), LJRO, Act book B/C/1/1, fo. 266v; Church of Holy Trinity, Micklegate (York 1619), BI, V.1619, ff. 9v-10v; Church of Luxulian (Exeter, 1630), DRO, Chanter MS. 803, s.d. 23 June. 169 e.g, Precedent book (seventeenth century), DRO, Chanter MS. 724, ff. 54v—55.

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Churches and the Clergy TT” canon law was a law for the clergy. Designedly so. It defined their duties and protected their churches. It safeguarded their persons and regulated their conduct in the world. It provided direction for them in the exercise of their sacramental ministry. And this was not all; the canon law did more than provide a basic level of protection and practical guidance for the clergy. It offered them a separate

legal jurisdiction. The canon law sought to secure their immunity from being brought before temporal courts and attempted to keep them from being subjected

to all but a few temporal obligations. The effort was broad and pervasive. According to one sixteenth-century treatise, the church and clergy enjoyed 188 separate legal privileges under the tus commune.! The clerical bent of the canon law also made itself felt on the negative side. By its own terms, the canon law asserted a limited (though not a negligible) jurisdiction over the laity. This kind of ‘self-denial’ turned out not to apply very strictly in

England, but that was mostly a matter of English custom. In its design, the church’s legal system was one in which clerical litigants, or at least clerical defendants, would naturally appear in a great majority of the causes brought before the courts. Laymen ordinarily would not. They would be sued and tried in their own forum. Actor sequitur forum rei. Development of a separate ecclesiastical jurisdiction for the clergy therefore followed the logic of thought held by the Gregorian reformers and given formal expression in the canon law. William the Conqueror’s

ordinance, forbidding the hearing of ‘episcopal pleas’ in the hundred courts, incorporated at least something of the way of thinking characteristic of the canon law, even if we now know it was not itself the occasion for creating a system of ecclesiastical courts.” Separation of clerical from lay pleas was more than a socially desirable jurisdictional rule. According to the classical canon law, laws and customs that subjected the clergy to secular jurisdiction, civil or criminal, constituted an attack on the liberty of the church. They violated principles set in place by divine law itself. 1 See Laelius de Zanchis, Tractatus de privilegtis ecclesiae (Verona, 1587), Proem. 2 See above, Ch. 2: 108-10.

476 CHURCHES AND THE CLERGY It was therefore something approaching a matter of necessity that a special forum for the clergy should come into being. Immediately practical concerns pointed in that same direction. Canon law asserted that most cases involving management of spiritual affairs—the law of ecclesiastical benefices, the discipline of the clergy, the control of land held by churches, for instance—would fall within the exclusive competence of the church’s tribunals. The temporal courts were to keep hands off. Though it would not have been possible (or desirable) to make this separation complete—doing that might create a licence for the laity to ignore the church’s laws—a certain distance between the two spheres was the law’s goal. And it was for the church to say where the line between the two should be drawn. This was the aspiration. The reality was another matter. In no part of Europe was the medieval church wholly successful in establishing the level of control and

independence that was asserted in the Decretals and enacted in the numerous statutes issued by provincial church councils. The heritage of the early Middle Ages, when kings and powerful laymen had exercised a control over churches that amounted almost to ownership, was not quickly overcome.? The Roman law built upon quite different assumptions; it subjected the clergy to temporal jurisdiction even while it admitted their special status. Its prestige in medieval Europe augmented the position of the temporal courts. And as time passed and secular rule matured, the extent to which ecclesiastical claims to jurisdiction could be realized

in practice contracted.4 Over the long run, making effective the separation between the two orders required its acceptance by the laity as well as its promulgation by the canon law. Grudging acceptance might be enough. Some naysayers could be tolerated. But widespread, active opposition on the part of society's governors would be fatal to the church’s claims. These facts invite—they may even require—historians of ecclesiastical law and institutions to look into local records and accounts of court practice. The object will be to compare, in so far as possible, the formal canon law with what happened in fact. Doing so in the context of English legal history produces a mottled picture. Some canons were followed; some were not. Some common law rules were embraced; some were resisted; some were tolerated. The details of practice in England differed in many circumstances from what was done in some parts of the Continent where the records have survived to be explored. It would not 3 Boehmer, “Das Eigenkirchentum in England’ (Ch. 1, n. 80), 301-53; Nora Berend, At the Gate of Christendom: Jews, Muslims and ‘Pagans’ in Medieval Hungary, c.1000—c.1300 (2001), 179-83; Péter Erd6,

‘Das oberste Patronatsrecht der ungarischen K6nige in der Forschung von Vilmos Frakn6i’ in A bonis bona discere: Festgabe fiir Janos Zlinszky (1998), 373-83.

4 See e.g. Monique Vleeschouwers-Van Melkebeek, ‘Conflits de juridiction au niveau diocésain dans les pays bourguignons de par deca’ ( = 40 Publications du Centre europeén d’études bourguignonnes: XIVe—XVIe s.; 2000), 33-47.

BENEFICES AND THE IUS PATRONATUS 477 necessarily be true, however, that the overall level of compliance with the canon law was less.> It may be only that the particular instances of conflict and agreement differed from one place to another.

The third book of the Gregorian Decretals and the Liber sextus contained the titles setting out the canon law’s regulations about the government of churches.

The property belonging to churches was not to be alienated or diminished (X 3.13.1-12). The right to nominate clerics to ecclesiastical benefices—called ius patronatus in the canon law and advowson in English common law—was sanc-

tioned and regulated (X 3.38.1-31). Rules for the consecration of churches and chapels were laid down (X 3.40.1-10). Provision for the repair of parsonages and church buildings was made (X 3.48.1-6). The immunity of churches and churchyards from secular activity was defined and affirmed (X 3.49.1-10). Other parts of the Corpus iuris canonici were relevant too. For instance, rules against simony that could affect any cleric’s right to hold an ecclesiastical benefice were placed in the Decretals fifth book (X 5.3.1-46). But it was in the third book that most of the basic

principles were stated. The texts asserted that enforcement of the rules should normally take place in the courts of the church.

BENEFICES AND THE IUS PATRONATUS The most famous area of dispute over this matter between the courts of church and king in England involved advowsons, the canonical tus patronatus. This was the right to nominate the parson of a parochial church, although there were a few other spiritual offices where it applied.© From early days, the English kings had asserted an exclusive jurisdiction to try all cases involving advowsons. Most advowsons had their origin in the right of a lord to control a church he had built on his own land, and men continued to think in terms of the lord’s dominium over the church.” Bishops, even popes, had no blanket right to deprive them of it.8 Control over it remained, as Maitland once said, ‘a thing’. In the eyes of contemporaries, there was nothing inherently spiritual about an advowson, and it followed most of the rules for incorporeal hereditaments.? It normally passed as an appurtenance to land. Like other appurtenances, it could not normally be alienated in gross; the canon law sought to prevent such alienation from occurring (X 3.38.16). But the right was not spiritual in the sense a chalice was.

5 Robert Brentano, Two Churches: England and Italy in the Thirteenth Century (1968), 88-97. 6 Constitutions of Clarendon, c. 1 (1164) in Stubbs’ Select Charters, 164 [ EHD), i. 719].

7 This is clearly set out in Addleshaw, Rectors, Vicars and Patrons (Ch. 8, n. 20). 8 See Franciscus Duarenus, De beneficiis, lib. V, c. 4, for a canonical (though Gallican) statement of

this perspective. 9 Pollock and Maitland, ii. 136.

478 CHURCHES AND THE CLERGY Benefices to which advowsons appertained were also treated as sources of income

in both the canon and the temporal laws. A rector, a vicar, and a curate might all draw revenue from the same parish; each would have separate rights to a portion. The benefices could be split into halves; they could be leased; they could be exchanged. The canon law did attempt to control the process. The consent of the bishop was necessary to the validity of many such transactions. But they occurred with frequency, and they show that benefices were regarded as money-producing institutions. The cure of souls was not necessarily involved in questions about parochial income. What seems anomalous today seemed normal then. The system existed in similar (though not necessarily identical form) in most parts of the Western church.!° Whether the advowson came into lay or clerical hands, in England the common law courts asserted an exclusive competence to try disputes about it. And this was not a claim they neglected. Disputes between patrons occurred with a frequency it is now hard to imagine, and the royal courts developed a series of writs to make their claim to competence effective.!! These were not just writs of prohibition to keep the church from encroaching on the common law’s jurisdiction; they developed writs of right of advowson and writs of Quare impedit to try conflicting claims to advowsons. They formulated writs to be sent to the bishops and their officials, directing them to give effect to the decisions about advowsons taken in the royal courts. Writs of Quare non admisit and Ne admittas and Quare incumbravit were everyday examples. It was early recognized that a realistic line could not be drawn between allowing patrons to sue in lay courts, clerics in the ecclesiastical.!2 So these writs were required. All must bring their complaints in the courts of the king whenever the right to ecclesiastical patronage was at issue. On this point, the common law was insistent, if complex. A prime reason for enacting the statutes of Provisors and Praemunire in the fourteenth century was to prevent litigation about advowsons from being taken to the papal court in Rome. There, the king’s writ did not run. Imposing personal penalties on men who invoked its jurisdiction was a matter of necessity.13

The question for the historian of ecclesiastical jurisdiction is, therefore, twofold. How far did the courts of the church respect this claim to exclusive royal competence? And, to the extent that they did, what did this leave to them in ordinary practice? The starting-point for answering them must be the canon law itself. It took the opposite position from the common law’s: it held that any dispute about the right of ecclesiastical patronage was a causa spirituali annexa, and therefore 10 See generally Jean Gaudemet, Le Gouvernement de léglise a V'époque classique: Ie partie (1979),

246-52; for leasing of the right to parochial income, see Robert C. Palmer, Selling the Church: The English Parish in Law, Commerce, and Religion, 1350-1550 (2002), 75-111.

11 See FNB 66-122 (*30—55). 12 Jones, ‘Relations’, 102-32. 13 Baker, Introduction, 129-30.

BENEFICES AND THE IUS PATRONATUS 479 a matter for the church to adjudicate (X 2.1.3).!4 Because the right was commonly and legitimately held by laymen, it could not be a causa spiritualis in the same sense that a case involving simony or tithes would have been. But it was close enough that the canonists counted it as belonging within the cognizance of the spiritual forum.

The church’s position met resistance from the start, though it was admitted in some parts of Europe.!5 It formed a regular part of ecclesiastical jurisdiction in many areas. The rise of papal reservation of benefices in the later Middle Ages added a new source of claims, and hence litigation, about benefices and advowsons. Litigation in the Rota Romana at the time was largely about benefices. From the canonical perspective, England therefore presented a difficult, but not

wholly unique, problem. For a time, the canon law had held its own. During the twelfth century and into the thirteenth, disputes over patronage were quite often brought before clerical judges.1° A large share of the Gregorian Decretals defining the canon law on the ius patronatus were issued to deal with English disputes. However, improvements in the procedures available in the common law ended this regime, and by the time the consistory courts emerged into the light during

the second half of the thirteenth century, the lay courts held the upper hand. Assertion of temporal jurisdiction over patronage questions was centralized in the king’s courts and it came to constitute a quite legally sophisticated body of law. Lyndwood acknowledged the fact of royal jurisdiction, and Hostiensis, the canonist who lived for a time in England, found it worthy of special note as an example of a persistent violation of the church’s legal rights.!7

What light do the records of the ecclesiastical courts shed on the subject? They show that the English church was not successful in upholding the canonical position about its exclusive jurisdiction over the ius patronatus. The plea rolls of

the royal courts from the period after 1300 contain many pleas between rival patrons. The records of the ecclesiastical courts contain virtually none. The very few exceptions to this rule were suits between clerical patrons, most of them monastic houses.!8 Indeed, the English ecclesiastical courts went beyond simple obedience to 14 See Hinschius, Kirchenrecht, ii. 618-39; Peter Landau, Ius Patronatus: Studien zur Entwicklung des Patronats im Dekretalenrecht und der Kanonistik des 12. und 13. Jahrhunderts (1975); Paul Thomas, Le Droit de propriété des laiques sur les églises et le patronage laique au moyen age (1906), 89-159; Glenn Olsen, “The Definition of the Ecclesiastical Benefice in the Twelfth Century: The Canonists’ discussion of Spiritualia’ (1967) 11 SG 431-46. 15 See Thomas, Le Droit de propriété (above n. 14), 161-70. In France, a division was eventually drawn

between petitory and possessory actions, the latter belonging to the secular forum, the former to the spiritual; see Paul Fournier, Les Officialités au moyen age (1880), 83; Lefebvre-Teillard, Les Officialités, 113.

16 Cheney, From Becket to Langton (Ch. 2, n. 86), 108-18. 17 Lyndwood, Provinciale, 217, s.v. foro regio; Hostiensis, Summa aurea, lib. II, tit. De foro competente, no. 11: ‘sed hanc decretalem [X 2.1.3] non servat curia illustris Regis Anglie, immo quicquid dicat Papa, ipse cognoscit. 18 eg. P&C. of Calnec. A. & C. of Abingdon (Canterbury, 1305), LPL, Act book MS. 244, fo. 13v, a

dispute over the church of Kensington.

480 CHURCHES AND THE CLERGY writs of prohibition. When the legal rights of an incumbent came before them, they received evidence from the decrees of the royal courts as evidence.!9 They admitted the king’s claim to present during vacancies in episcopal sees.2° Even in the formal pleading, the ‘English custom’ of permitting the ius patronatus to be determined in the royal courts was apparently accepted, at least as a matter of fact, in the spiritual forum.?! The ecclesiastical courts were themselves reluctant to continue suits if it turned out that they encroached upon the rights of lay, particularly royal, patrons.?? It must seem that acquiescence in the common-law position would have left little for the bishops and their courts to do beyond waiting for orders from the royal courts. It might seem that they surrendered control to the royal forum. However, the appearance is deceiving. A good deal was left for the ecclesiastical courts to do.?3 For one thing, the bishops had duties and privileges, even under the common law. The common law admitted, for example, the bishop’s right to collate to a benefice in cases of ‘lapse’, that is where the patron himself had not acted within six months of the vacancy.?4 This limitation to patrons’ rights led to some com-

plicated litigation. Moreover, if patrons rarely brought their claims before an ecclesiastical court, the clerics they had presented to a benefice most certainly did. They sought to have themselves inducted, and to have any clerical opponents who stood in their way removed.?° Despite initial appearances, therefore, quite a bit of litigation over benefices remained for the bishops and their courts. They retained a meaningful level of control over the process. 19 e.g. Vicar of Lazenby c. Prior of Carlisle (York, 1503), BI, Cons.AB.5, fo. 31: “[Defendant] exhibuit

quoddam instrumentum viz. literas ut apparuit domini Regis Anglie Edwardi’. See also Harley c. ap Powell (Hereford, 1510), HFRO, Act book I/10, s.d. 22 Sept., where there was introduced into evidence ‘quoddam instrumentum transumptum ex archivis cancellarie domine Regine’. 20 e.g. Church of Godmersham (Canterbury, 1349), CCAL, Sede Vacante Scrapbook I/23/1, a finding

that the king was ‘verus patronus hac vice ratione temporalium archiepiscopatus Cantuariensis sede vacante in manu sua existencium’ The extent of the king’s claims on this score was large; see R.A. R. Hartridge, “Edward I’s Exercise of the Right of Presentation to Benefices as Shown by the Patent Rolls’ (1927) 2 Cambridge Historical Jnl 171-7; Peter Heath, Church and Realm, 1272-1461 (1988), 124-5; Margaret Howell, Regalian Right in Medieval England (1962). 21 Church of Melsonby (York, 1338-40), BI, CP.E.39/32: ‘lis et controversia predicte coram iusticiariis

predictis in banco ad quos etiam de consuetudine notorie Anglie et legitima prescripta... pertinent’ 22 e.g. Colymore c. Walker (Gloucester, 1554), GRO, Act book GDR 7B, p. 389, a tithe cause: “quia illa

causa non est tractanda in hac curia ecclesiastica dominus duxit supersedendum’ 23 See generally Rosemary O’Day, “The Law of Patronage in Early Modern England’ (1975) 26 JEH 247-60; Cheyette, “Kings, Courts, Cures, and Sinecures’ (Ch. 3, n. 94), 295-349; Robert C. Palmer, English Law in the Age of the Black Death, 1348-1381 (1993), 28-53.

24 X 3.38.12, 22; lay patrons were given four months under the canon law, ecclesiastical patrons six, but the English common law would not admit the disparity in treatment, and the latter seems to have prevailed in practice. 25 e.g, Pastonc. Chamnet (Lichfield, 1596), LJRO, Act book B/C/2/31, s.d. 16 Mar.: the defendant, possessor of a benefice, was cited to show cause ‘quare Nicholaus Paston legitime presentatus et institutus ad et in vicariam ecclesie de Womburne predicta induci non debeat’.

BENEFICES AND THE IUS PATRONATUS 481 One more thing should be said before looking more directly at the evidence. Disputes centred around the question of which parson should be inducted into a benefice. Readers should hold it in their minds that the question of jurisdictional competence normally arose in the context of litigation between private parties. The average objector to a fault in a cleric’s title to a benefice was not a publicspirited citizen. He was not even the bishop or one of the bishop’s agents. He was another cleric with a claim to the same benefice. Before the courts, the interest of these two parties was necessarily paramount. It did happen that the bishops took a hand, but more often they were stakeholders, more interested in admitting a fit and lawful parson than in fighting to promote observance of rules about canonical jurisdiction. By all odds, the most important of the private parties involved were the men seeking to be admitted into a benefice. In such contests, each

side might have more than one argument to advance—they might, for example,

have some title to the benefice derived from both a lay and an ecclesiastical source. Many of them did not much care about matters of canonical principle.?°

The courts, whether of king or church, did not prevent them from reaching accommodations with their rivals, the other litigants. Of course, legal principle was involved too. The king’s rights were ultimately at stake, as were the rights of the church. However, if one examines the subject only

from the vantage-point of witnessing a struggle between church and state, it is very hard to understand how a reasonable level of accommodation was achieved. And in truth it was achieved. We shall not understand how this happened fully until the plea rolls for the later medieval period are more fully explored than they have been. But even now, examination of legal practice in the ecclesiastical courts

makes the picture clearer than it would otherwise be. Four aspects of contemporary practice should be brought to the surface.

Qualifications of Candidates Presented Within limits, the common law left it up to the diocesan bishop to determine the suitability of candidates presented to him. It could happen that a true and lawful patron would present an unsuitable parson. The bishop could refuse to admit him. If he did, the bishop might have to justify his refusal, as in an action of Quare impedit brought against him in the royal courts. But the causes for refusal were legion. Not endlessly elastic, let it be said, but they left room for independent decision about whom to admit. Bishops sometimes appointed special examiners to carry out the task.2”7 Such a decision could affect the rights of patrons, and 26 See Cheyette, “Kings, Courts’ (above n. 23), 324-5.

27 e.g, appointment of six experts by Archbishop of Canterbury (1332), Literae Cantuarienses, ed. J. B. Sheppard ( = 85:1 RS; 1887-9), no. 442.

482 CHURCHES AND THE CLERGY inevitably, the situation led to disputes. Many are to be found on the plea rolls of the royal courts. They came before the courts of the church too. Although most arose at an initial, administrative stage of proceedings,8 they also appeared later in the ecclesiastical courts, normally in ex officio actions brought against clerics either to prevent their occupation of a benefice or to secure their removal from it.?9 For purposes of analysis, the causes for legitimate refusal can be divided into three categories. First were defects in the person or status of the cleric being presented. Physical defects—the lack of a limb, for example—and deficiencies in learning were grounds for refusal to admit.3° A candidate’s lack of proper ordination was another.3! Illegitimate birth without having secured a valid dispensation was a third.32 And there were others, some of which were open to disagreement, or at least to negotiation. Guilt of a serious crime, commission of perjury, or even standing under a sentence of excommunication might, for example, be regarded as sufficient to bar a prospective holder of a benefice from admission.?3 Determining the existence of such faults would involve a hearing of some sort, and it might take place before an ecclesiastical tribunal. Of course, crimes might be pardoned, sins forgiven,

and excommunications lifted. Bishops had room for manoeuvre in deciding whether they would be. It was up to them to determine whether the offending cleric should be admitted to the benefice despite his past. From the vantage-point of court records, it is a rare occasion when one can see these acts of discretion actually being exercised,34 but episcopal discretion must have played a regular role in determining who would be admitted to serve parochial churches. Except in extreme situations, none of their supervision contravened the rules of the English common law. 28 The administrative process of entering a benefice is well described in Reg. Bishop Henry Burghersh 1320-1342: I, ed. Nicholas Bennett (= 87 LRS; 1999), pp. xvili-xxvii. See also B. R. Kemp, ‘Towards Admission and Institution: English Episcopal Formulae for the Appointment of Parochial Incumbents in the Twelfth Century’ (1993) 16 Anglo Norman Studies 155-76; Bowker, The Secular Clergy

in the Diocese of Lincoln (Ch. 3, n. 177), 64-84; A. H. Thompson, “Ecclesiastical Benefices and their Incumbents’ in (1944-5) 22 Transactions of the Leicestershire Archaeological Soc. 2-32.

29 e.g. the case of presentment to the church of Morlay involving litigation in both kinds of courts (Norwich, 1571) in The Letter Book of John Parkhurst, Bishop of Norwich, ed. Ralph Houlbrooke (= 43 Norfolk Record Soc.; 1974-5), nos. 38, 46. 30 See e.g. the discussion in Duarenus, De beneficits, lib. IV, c. 3. 31 e.g, Ex officio c. Knapton (York, 1522), BI, D/C.AB.2, fo. 272v, a proceeding requiring him to show

‘quare non debeat decerni pro intruso, apparently begun because he could not show sufficient letters of ordination. 32 Ex officio c. Thomas of Newmarket (Ely, 1376), CUL, Act book EDR D/2/1, ff. 59v—60: ‘super defectu natalium’ 33 e.g, Turner c. Bishop of Chester (York, 1587), BI, Chanc.AB.12, ff. 105, 107v; the bishop alleged that

Turner, who had been presented to a vicarage, could not be admitted because he was excommunicate. 34 An exception is a proceeding over a Yorkshire church (1606), recorded in BI, Chanc.AB.15, fo. 7, in which a crime had been pardoned by the king; the existence of rights in third parties complicated the question. See also the treatment of William Gyffard (Salisbury, 1393) in Reg. Waltham, nos. 815, 828.

BENEFICES AND THE IUS PATRONATUS 483 A second cause for refusing a cleric was a problem connected either with the benefice itself or with other benefices held by the cleric presented. Disputes about whether the prior incumbent had actually resigned arose with surprising fre-

quency in practice. So did disputes about what were called ‘incompatible benefices. The canon law forbade the holding of more than one benefice with cure of souls at the same time (X 3.5.4-7, 28).35 As laudable a measure as it was, the

prohibition caused problems in making the system of presentment function smoothly, and it created litigation in the ecclesiastical courts. The prohibition could be avoided by a sufficient dispensation; it left the holder with some (but not complete) choice about which of two benefices he would retain; and it raised questions about exactly what the concept of incompatibility of benefices meant.3° A Parliamentary statute of 1529 augmented rather than reduced the complexity of the law on this score, by adding a concession that benefices worth less than £8 yearly would not count (21 Hen. VIII, c. 13, s. 9). So it happened in practice: one cleric claimed a benefice because the incumbent in possession held it together with a second, incompatible benefice. The incumbent countered that there was no incompatibility within the canonical meaning of the term or that he held a valid dispensation. The ecclesiastical courts would be required to sort out the truth. A third reason for rejecting a cleric presented to a benefice arose out of ques-

tions about the presentation itself. Many of these were dealt with in the royal courts—conflicts about who held the right to present when the advowson had passed from one person to another, as by inheritance or sale. Others were the proper concern of the spiritual courts. Defects in the form of the presentation might also come into play there, including some minor failures.3” So could conflicts between successive presentations to the same benefice by the same patrons.

So too could some claims that a presentment was invalid because it had been obtained tacita veritate.

A common ground for claiming invalidity of a presentment was that it had involved simony. The canon law forbade admission of any man whose right to a church was tainted by the payment (or the promise) of money or its equivalent (X 5.3.8). But the temptation to make some kind of arrangement in return for gaining the right to a valuable living was great; it is undeniable that the temptation 35 See also Archbishop Peckham’s constitution at Council of Reading (1279) in C. & S. II, pt. 2,

837-41, commented upon at length by Lyndwood, Provinciale, 135-7. For modern studies, see C. J. Godfrey, “Pluralists in the Province of Canterbury in 1366’ (1960) 11 JEH 23-40. 36 e.g, Maudsley c. Chaffyn (Salisbury, 1570), WTRO, Act book D 1/39/1/6, fo. 66v (adequacy of dispensation); Ex officio c. Knyght (Rochester, 1457), KAO, Act book DRb Pa 3, fo. 327 (manoeuvring about possible exchange of benefices); Exton c. Johnson (York, 1586), BI, Trans.CP.1586/3 (definition of incom-

patibility under English statute). 37 e.g. Ive c. Barker (Archdnry St Albans, 1572-4), HTRO, ASA 9/9, no. 927, a causa beneficialis involving the church of Ludgarshall.

484 CHURCHES AND THE CLERGY was not always resisted.38 The ‘deals’ were not always easy to discover, and the more complicated the arrangement, the greater chance there was that it would not count as simony under the law. The confidentia beneficialis, by which the holder of a benefice agreed to place all or part of the parochial revenues in trust for another, caused intractable problems when it was made a part of the initial

presentment.39 In any event, where the validity of a presentment under the canon law was unclear, the effect of a possibly simoniacal presentment was a matter left to be sorted out in the spiritual forum.*° Another cleric, himself having some claim to the benefice, might raise a question of simony against the cleric whom he saw standing in his own path to the benefice,*! and this too would take place in an ecclesiastical court. The common law did not stand in the way.

Inquests de iure patronatus When a bishop received a presentment, if he were in doubt about the rights involved or the title of the cleric presented, his most natural next step was to convoke an inquest called de iure patronatus. When he received inconsistent direction

from the common law courts—not a rare event—it was an almost invariable response.*2 This meant calling together, usually in the parish church involved, a panel of men. Typically, twelve were summoned to take part, although that number was not invariable. More often than not, one half of them would be clerics, the other half drawn from the laity. They were asked a series of questions. Some related to the person of the cleric: Was he a man of free condition and lawful age? Was he beneficed elsewhere? Was he known to be infamis? These questions all related to the clerical qualifications just discussed. Other questions, however, related to the benefice itself. Was it vacant and how had the vacancy occurred? Who was the lawful patron? How much was the church worth annually? These inquiries touched both upon some matters claimed by the royal courts and some

38 See Swanson, Church and Society, 64-6; Stanley Chodorow, “Custom, Roman Canon Law, Economic Interests in Late Twelfth-Century England’ in Grundlagen des Rechts, 291-9. 39 See J. Deshusses, “Confidence, DDC, iv. 67-73. They were prohibited by a succession of papal initiatives after 1564; see Michele Graziadei, “The Development of Fiducia in Italian and French Law’

Itinera Fiduciae: Trust and Treuhand in Historical Perspective, ed. R. H. Helmholz and Reinhard Zimmermann (1998), 327-59, at 347-8. 40 e.g, Church of Wilburham Parva (Ely, 1569), CUL, MS. Dd.9.1, ff. 169-71 (an agreement to lease the parsonage and tithes for a term); Tesedale c. Ottelay (York, 1417), BI, Cons.AB.1, ff. 30-1 (a promise to give half the oblations to a hospital for the poor).

41 e.g. Banister c. Hankinson (Chester, 1608), CRO, EDC 5, no. 55, in which the allegation was that the defendant had allowed the patron to take some of the income of the benefice until he had

accumulated £60. 42 See e.g. Case of the church of Lampeter (1417), PRO, E 135 6/34.

BENEFICES AND THE IUS PATRONATUS 485 that were more strictly speaking ecclesiastical. Both were invariably part of the procedure used.43

The similarity of this proceeding with trial by jury in the royal courts is very striking. Indeed, the men convoked were called juratores, and their answers were referred to as veredicta in the ecclesiastical court records.44 They gave their verdict as a group. Sometimes the records state specifically that they spoke unanimiter,*®

although it was more normal for their answers simply to be set down as having been given with one voice.*© As with juries, more was often involved than simply putting the questions and recording the answers. The inquest de iure patronatus

possessed many features of a trial. The parties to the dispute, including the patrons,*” were entitled to be present at the taking of the inquest and presumably to give their side of the argument. They could object to the procedure, and it was

good cause for appeal if an interested party had not been properly cited.48 Neighbours, acting as witnesses, might also be present to inform the inquest about relevant matters.49 Written evidence, like a charter, might be introduced and evaluated as part of the process.5° A procedural manual stated that it was the standard practice for lawyers to be present at inquests de iure patronatus to help safeguard the rights of the patrons to benefices in dispute; they were to act by ‘informing the consciences of the jurors.>! In one case, a witness described the inquest as having

43 Lyndwood, Provinciale, 217, s.v. inquisitionem. An example is the inquest concerning Tillington church (Chichester, 1282-4), EEA 23: Chichester 1254-1305, ed. Philippa Hoskin (2001), no. 295.

44 See e.g. for the diocese of York (sixteenth century), BI, Inst.AB.3, ff. 52-63; for the diocese of Norwich (seventeenth century), NNRO, DN/VIS 7/2 (table of fees). 45 e.g. Church of Bampton (1215 X 1218) in Rotuli Hugonis de Welles, ed. W. P. W. Phillimore (=1C. & Y. Soc.; 1909), 129.

46 e.g. Case of churchyard of Dent (1444), JRL, MS. 333, fo. 5, where the answers were introduced, ‘Item dicunt quod’ with no other voices being recorded. 47 See e.g. the “Negotium inquisitionis iuris patronatus’ for the church of Settrington (York, 1591), BI, Chanc.AB.12, fo. 310, a cause in which one cleric and his patron sued his rival cleric for the benefice

together with the patron under whom the rival claimed; also cited were ‘omnes alios ius titulum aut interesse etc. in genere [habentes]’. 48 William rector of Catton c. Walter de Bedewynde (1318 X 1328), BI., CP.E.241S (appeal); Case of Walter Bluet (1293), CCAL, Sede Vacante Scrapbook I/104/2-6 (objection). 49 Case of Colton church (1307) in Reg. Walter Langton, bishop of Coventry and Lichfield, 1296-1321, I, ed. J. B. Hughes (= 91 C. & Y. Soc.; 2001), no. 686. 50 Case of church of Holy Trinity, Coventry (1421-2), Reg. Heyworth, LJRO, B/A/1/9, ff. 7v-8, where

there is a reference to an inspection of ‘quadam carta inde confecta’ in the return to the inquest. 51 Summary of Court Procedure (seventeenth century), WTRO, D5/24/18, fo. 28v: “Et hic notandum

est quod patroni predicti solent curare ut intersint tempore inquisitionis predicte [et] advocati jurisperiti in lege municipali huius regni ad informandum conscientias iuratorum et ad exhibendum [vel] saltem ostendendum huiusmodi iuratis inquisitoribus instrumenta et evidencias quascumque probatione eorumque iuris in presentatione. An example of appearance by one of the claimants: Case of church of Aikton (1304) in Reg. John of Halton, bishop of Carlisle, AD 1292-1324, ed. W. N. Thompson (= 12 C. & Y. Soc.; 1913), 226-8.

486 CHURCHES AND THE CLERGY heard ‘much arguing of the matter on either side by counsel learned as well at the common as the ecclesiastical laws of this land’.52 Little attention has been paid to these inquests by historians of English law or ecclesiastical institutions. The pioneering study concluded that their regular use

by the church after the royal courts had asserted exclusive jurisdiction over advowsons meant that the church had not abandoned its position in the contest over jurisdiction with the royal courts.53 That is a possible reading; the inquests dealt with many of the questions that were the business of juries in the king’s courts to answer. However, that conclusion conflicts with other evidence on the point, and inquests de iure patronatus continued to be used after the Reformation (indeed after the Restoration), times when the church had definitively accepted the jurisdiction of the royal courts over disputes about advowsons.*4 Evidently, the royal courts did not object. A slightly different interpretation may be preferable. It is that the bishops used these inquests to keep from making a mistake. Convoking the inquests, which

used much the same methods and relied upon much the same evidence that would have been decisive in the royal courts, was one way in which the bishops could satisfy themselves about the merits involved in any presentment. It was a public event, and it minimized the risk of later discord. The bishops were not bound by the veredicta of the inquests in any case.°> The lesser juridical effect of the verdicts given by the inquests may have been the most important distinction between practice relating to common law juries and the inquests used in ecclesiastical court practice. It was only one step. It was a useful step, however. Inquests seem to have been intended as a means of avoiding error and later trouble. It may well be asked: Would use of inquests actually have avoided trouble? What happened if the bishop was faced with a conflict between an order of the royal court in a Quare impedit action and the finding of the inquest? The answer 52 Winne c. Toxsall (York, 1613), BI, CP.H.883; it was cause for objection that an interested party had

not had the chance to bring a lawyer; see a case involving a chantry in Dilwyn church (1481) in Reg. Thome Millyng, episcopi Herefordensis, AD 1474-1492, ed. A. T. Bannister (= 26 C. & Y. Soc.; 1920), 68-70: ‘que nunquam novit materiam et se indigere consilio iurisperitorum. 53 J. W. Gray, “The ius praesentandi in England from the Constitutions of Clarendon to Bracton’ (1952) 67 EHR 481-509, at 508; the inquests are also noted in A. H. Thompson, “The Register of the Archdeacons of Richmond, 1442-1477’ (1930) 30 Yorkshire Archaeological Jnl 22-42; O'Day, ‘Law of Patronage’ (above n. 23), 257-9. 54 See William Gibson, ““Good Mr Chancellor,’ The Work of Dr John Audley, Chancellor of York, 1710-1744 (1998) 73 Yale Univ. Library Gazette 32-46, at 33-4. 55 e.g, Case of church of Uldale (1305) in Reg. Halton (above n. 51), 221-3 (two inquests held); Case of church of Winterslowe (1304) in Reg. Simonts de Gandavo, diocesis Saresberiensis, AD 1297-1315, ed. C. T. Flowers and M. C. B. Dawes (= 41 C. & Y. Soc.; 1934), 633; Case of church of Winterborne Came (1410) in Reg. Robert Hallum, bishop of Salisbury, 1407-17, ed. Joyce Horne (= 72 C. & Y. Soc.; 1982), no. 851 (first inquest rejected for cause).

BENEFICES AND THE IUS PATRONATUS 487 to that question—seen repeatedly in the records of the consistory courts and in episcopal registers—itself shows how far the bishops were from wishing to pick a fight with the king’s justices. Normally they declared the benefice litigious and issued an order of sequestration for the church until the dispute had been settled.5° That action allowed the bishop to appoint an administrator to collect parochial revenues and to see to it that the normal services were conducted. It left things in suspense. If the bishop did choose to go ahead to admit one of the rival candidates to the benefice, he often did so under the express condition that the man admitted should resign if another was later proved to have a better right. It was also a common practice to require the cleric admitted to take out a bond to

save the bishop harmless should things turn out badly.5? Legal techniques designed to avoid possible complications were available to the English bishops, and they took them. Papal Reservation of Benefices Large issues of obedience to the canon law and problems of conflicting claims to benefices came to the surface most pointedly when one of the rival candidates to a benefice could claim a provision from the papal court.58 The consistory courts in England might make their peace with many of the rules of the royal courts, but

the courts in Rome paid no attention to what to them was merely an invalid ‘English custom’ allocating jurisdiction over the ius patronatus to the temporal forum. No royal writ of prohibition was admissible before a papal court. And over the course of the fourteenth century a widening class of benefices was reserved for

disposition by the Roman pontiff. The canonists asserted that, in principle, all ecclesiastical benefices lay in the gift of the successors to St Peter; only custom and prudence dictated recognition of the claims of others.59 Some of the benefices so reserved for papal provision were put at the disposal of curial officials,©° but not all, and ambitious English clerics sent or took their petitions for benefices to Rome. Moreover, appeals from local disputes about possession 56 Clerke, Praxis, tit. 201. 57 e.g. Reg. William Bateman, Bishop of Norwich 1344-1355, II, ed. Phyllis Pobst (= 90 C. & Y. Soc.; 2000), no. 10503 ecclesiastical formulary (c.1620), LPL, MS. 1590, fo. 37v: “Condition to save harmlesse the Bp. for collating by lapse’.

58 On this subject, including many references to prior literature, see Angela Santangelo Cordani, La giurisprudenza della Rota Romana nel secolo XIV (2001), 517-650; see also Geoffrey Barraclough, Papal Provisions (1935); William Pantin, ‘The Fourteenth Century’ in The English Church and the Papacy in

the Middle Ages, ed. C. H. Lawrence (1974), 183-94. 59 See gl. ord. ad Sext 3.4.2, s.v. licet. 60 Margaret Harvey, “The Benefice as Property: An Aspect of Anglo-Papal Relations during the Pontificate of Martin V, 1417-31 in The Church and Wealth (= 24 SCH; 1987), 161-73; J. Robert Wright, The Church and the English Crown 1305-1334 (1980), 129-35.

488 CHURCHES AND THE CLERGY of parochial rights also took litigation there.®! It too might encroach upon royal jurisdiction. The result was that clerics (or their agents) returned with papal letters of grace designed to smooth their path to a benefice and to parochial rights. Whatever the complaints brought before Parliament—and they were brought—many laymen, including even the English kings, were happy to make use of the system of papal provision to advance the fortunes of their own candidates. The results were too complex and varied to fit a neat depiction of contest between church and state. This particular path to a benefice came to an abrupt halt with the Reformation,

and its effectiveness had been curtailed before then, in part at least by the enactment of the Statutes of Praemunire and Provisors in the second half of the fourteenth century.®? However, throughout the later Middle Ages, papal letters of grace and other provisions were undoubtedly a factor in litigation about benefices brought before the English ecclesiastical courts. For instance, in 1386 a ‘poor clerk’ armed with an apostolic letter of grace sought (with ultimate success) institution into the church of Sproatley against the objections of the incumbent; the latter sued him to prevent him from continuing his claim and the court at York had to deal with a causa beneficialis.°4 Equally, litigation about benefices in the papal courts could require reaction in the English courts. In 1382, for example, the bishop of Durham refused to admit a man presented by the king to the church of Bishopwearmouth after an inquest de ture patronatus found that the church was ‘litigiosa in curia Romana’.® This refusal may have proved costly. He would have violated the Statute of Praemunire. We do not know how the dispute ended, but we do know that the question was brought before the ecclesiastical court at York, and that its judges were not willing to ignore the process at Rome.

How, then, could it have been that accommodation between the courts of canon law and common law was ever reached? The bishops and their courts were (seemingly) caught in an impossible bind. About this question three things can be said. First, papal provisions were not orders to the bishops: ‘Admit N to the benefice of X or you will incur the everlasting enmity of the St Peter and his 61 e.g, Stalham c. Hall (Norwich, 1380) in Original Papal Letters in England 1305-1415, ed. P.N. R. Zutshi (1990), no. 358. 62 see e.g. Jessie Lloyd, ‘Notes on Cambridge Clerks Petitioning for Benefices, 1370-1399’ (1947 for

1943-45) 20 BIHR 75-96, 192-211; Timothy Cooper, “The Papacy and the Diocese of Coventry and Lichfield 1360-1385 (1987) 25 Archivum historiae pontificiae 79-93; Heath, Church and Realm (above Nn. 20), 125-33.

63 See Driver, “The Papacy and the Diocese of Hereford (Ch. 3, n. 105), 31-47, at 46; Cecily Davis, ‘The Statute of Provisors of 1351 (1953) 38 History (n. s.), 116-33; R. L. Storey, ‘Papal Provisions to English Monasteries, (1991) 35 Nottingham Medieval Studies 77-91. 64 Burthan c. Wymark (York, 1386), BI, CP.E.133. 65 Galoun c. Bishop of Durham (York, 1382), BI, CP.E.127. See generally Waldo E. L. Smith, Episcopal Appointments and Patronage in the Reign of Edward II (1938), 50-85; Ann Deeley, ‘Papal Provision and Royal Rights of Patronage in the Early Fourteenth Century’ (1928) 43 EHR 497-527.

BENEFICES AND THE IUS PATRONATUS 489 successors. The canon law was not so crude as that.°© They were rather directions: ‘Admit N to the benefice of X if it is vacant, if the facts stated in the apostolic letter are correct, and if no other legitimate obstacle stands in the way’. This left something for the bishops to determine. They held a measure of legitimate discretion. Second, in practice there was forbearance on both sides. No matter what the amplitude of the claims was, the papacy rarely intervened to claim a right to dispose of benefices in lay hands, and the English monarchs did not regularly seize the temporalities of the bishops who answered royal writs with temporizing excuses. A large share of papal provisions dealt with prebends and other offices in cathedral and collegiate churches, not with parish churches. Third, the clerics being presented ultimately decided about what to do with a papal provision. Executors were appointed, but the terms of their agency left much to their judgment. They were directed to look into the truth of the papal letter. And in the end, it was the cleric being provided to a benefice whose interests were most immediately at stake. The avenues for compromise open to him were many. A litigant could renounce a claim made under royal (or papal) authority.®” He would incur no penalty thereby. He might even do so profitably, giving up his claim in return for an annual pension, a monetary settlement, or a right to enter upon the next vacancy. The laws against simony did not reach that far. This is not to suppose no conflict existed. Nor is it to pretend that all competitors came away satisfied.©8 Fundamental disagreements did exist about judicial competence to decide questions involving the ius patronatus. And it mattered. It affected how participants acted. Probably it is true that the overall movement was in favour of the Crown from the thirteenth century onwards.®? However, as is true for constitutional law in our own day, cases raising disagreements about fundamental issues do not always require a fight to the finish. Men can live with them. Very often it is enough that individual cases come to an end. The lawyer’s ability to draw distinctions will comfort the losers and arm their successors in the next case. Some openings will always be left. The larger issues may remain unresolved. The ecclesiastical lawyers so treated the ius patronatus. As commentators have noted, ‘the rival claims of pope and king were made to subserve the interests of the individual competitors.7° 66 Barraclough, Papal Provisions (above n. 58), 78-80, 90-8; Landau, Jus Patronatus (above n. 14), 145-55, 160-70. For an example from English practice, see the argument about two Salisbury benefices (c.1346) in Hemingby’s Register, ed. Helena Chew (= 18 Wiltshire Archaeological and Natural History Soc., Records Branch; 1963 for 1962), no. 229.

67 See e.g. the appearance (by proctor) of Thomas Polton, dean of York (1420), YML, Act book H 2(1)a, fo. 53: ‘Protestabatur ... quod non fuit nec est intentionis domini sui neque sue huiusmodi privilegio sive dispensatione apostolica uti... si in aliquo displiceat regie magestati-. 68 See e.g. the travails of Adam Usk, described at length in The Chronicle of Adam Usk 1377-1421, ed. C. Given-Wilson (1997), pp. XXI-XXXvi. 69 G,. L. Harriss, “Medieval Government and Statecraft’, (1963) 25 Past e& Present 8-39.

70 Helena Chew, introd. Hemingby’s Register (above n. 66), 26.

490 CHURCHES AND THE CLERGY In one way or another, litigation over benefices to which the clergy were parties came before the bishops and sometimes the English consistory courts. This happened despite the jurisdictional monopoly of the royal courts in disputes between the patrons. We do not know how many (if any) of the ecclesiastical causes involved some breach of the common-law rules. Nor do we know the extent of the bishops’ compliance with the directives of the royal courts. Episcopal claims of plenarty—

that they could not obey because the benefice was not vacant—were regularly made in answer to royal writs. They may seem suspicious. These blank responses may have concealed violations of the king’s law. Some of the causes in the ecclesiastical court books alleging ‘violent intrusion’ by one cleric into a benefice in the possession of another may also have involved the rights of patrons.7! But until the details of this complex area of the law are more fully investigated, we cannot be sure. It is only sure that much, though perhaps not all, of what the ecclesiastical courts did in litigation about benefices was quite consistent with the king’s law.

The Duplex Querela During the sixteenth century, at least in the Province of Canterbury, cases dealing with presentation to benefices were ‘regularized’ by assigning them to a separate legal category, called the Duplex querela.’2 This legal remedy was similar to an appeal, brought before the Court of Arches or the archbishop’s Court of Audience by a cleric who had been presented to a bishop, who had refused to admit him and had admitted someone else in his place.73 The ‘double’ nature of the action came from naming as defendants both the bishop and the party who had been admitted, allegedly contrary to right. In theory, the Duplex querela could be brought in any area of ecclesiastical competence—for instance, where a bishop’s court refused to appoint one person as administrator of a decedent’s estate and appointed someone else instead.74 However, this remedy was used almost exclusively in beneficial matters. A successful action elicited an order from the Court of Arches that the plaintiff be admitted to the benefice. It was said in justification that the defendant bishop's negligence had caused the right to admit to pass to his superior, the archbishop.”> 71 See Select Canterbury Cases, intro. 75-7. An example is Powtor c. Cowte (Salisbury, 1570), WTRO, Act book D1/39/1/6, fo. 66, styled ‘negotium intrusionis in rectoriam. 72 It is described at length in Clarke, Praxis, tits. 84-93. The same term was known at York; e.g., Church of Bolton (Chester and York, 1587), BI, Chanc.AB.12, fo. 105, called a ‘Negotium duplicis querele’.

73 Cases so styled from the Court of Audience in London can be found in LPL, MS. 3711, ff. 32, 215 (1615), the first involving the bishop of St Davids in Wales, the second against the bishop of Oxford. Disappearance of the bulk of records from the Court of Arches make these the more valuable. 74 Clarke, Praxis, tit. 93. 75 e.g, Civilian’s notebook (c.1625), SKRO, E 14/11/4, fo. 159; Formulary (c.1600), BL, Harl. MS. 5105, fo. 274; Formulary (temp. Eliz.), CCAL, Z.3.25, fo. 85.

ECCLESIASTICAL ELECTIONS 491 As the duplex querela played out, however, the bishop who was one of the defendants would normally wish to justify his own action. So would the other defendant. They could cite the many reasons detailed above by way of defence. The Duplex querela provided the normal forum for testing the reasons. Others might also intervene to preserve their own interests. Some surviving causes show that the patrons

were at least occasionally among them.” Why would they wish to stay out? The Duplex querela may have seemed contrary to the spirit of the common law’s monopoly over advowson disputes. Theoretically, perhaps it was. At least it could have been. But it was a fact. Indeed, so common was it that its overuse became a source of abuse the English civilians themselves recognized. The canons of 1604 attempted to limit the circumstances under which it could be brought.7”

ECCLESIASTICAL ELECTIONS For historians who know the canon law primarily as a hierarchical system of government, the prominence of the law of elections in the Corpus turis canonici can come as a surprise. We associate elections to offices with republican government, not with monarchies. This does not mean that we have misunderstood the character of the canon law. Ways were found of reconciling hierarchical government with an endorsement of elections.” The successor to Judas Escariot was, it was said, chosen by an election (Acts 1: 15-16). Yet the ubiquity of elections in the canonical texts still remains worthy of remark. One of the longest titles in the Gregorian Decretals dealt with them (X 1.6.1-60), and similar titles appeared in all of the following books (Sext 1.6.1-47; Clem. 1.3.1-8; Extrav. Jo. XXII, tit. 1; Extrav.

Comm. 1.3.1-4). According to the texts of the canon law, most leaders of the church, and many more minor officers too, were to be chosen by election. The subject was regarded as important enough to inspire a treatise written by one of England’s few notable canonists, Lawrence of Somercote (d. ¢.1257).79 In one sense, it could even be said that the rule that the ius patronatus would be held by an individual or a monastic house can be considered an exception to the canon law’s expectation that ecclesiastical leaders were to be elected.®° 76 Braine c. Bishop of St Davids (Canterbury Audience, 1615), LPL, Act book 3711, fo. 32 (dispute over

advowson of church of Kerry). 77 ¢.95 in Anglican Canons, 394-7. 78 See e.g. [Guillaume de Pierre Godin], The Theory of Papal Monarchy in the Fourteenth Century, Art. 5:2, IL. 372-82, ed. William McCready (1982), 234, placing emphasis on the power of the superior to

confirm and asserting as a rule, ‘Qui confirmat dat’ 79 See Alfred von Wretschko, Der Traktat des Laurentius de Somercote, Kanonikus von Chichester: liber die Vornahme von Bishofswahlen enstanden im Jahre 1254 (1907); references about his life can be found in: Fasti Ecclesiae Anglicanae 1066-1300, V: Chichester (1996), 62.

80 The canon law held, however, that a right of election was derived from the ius patronatus. Gl. ord. ad X 1.6.24, s.v. consuetudine; on the choices see Dietrich Kurze, Pfarrenwahlen im Mittelalter (1966), esp. 532-4.

492 CHURCHES AND THE CLERGY If one leaves aside the popes themselves, who were of course elected, the bishops

were the most important of the leaders chosen by vote under the canon law. A canon of the First Lateran Council proclaimed that no one was to be consecrated as bishop who had not been canonically elected.*! Beginning with that assumption, the canon law worked out a sophisticated system of conducting elections— one that would, so it was thought, guarantee that the best men would be selected to lead the church and its people. The Gregorian Decretals reaffirmed the necessity of election to episcopal office, laid down the personal qualifications requisite in candidates, established the rules by which canonical elections should take place, listed criteria for determining who could act as electors, provided for what would happen whenever a failure in the process occurred, and set out the basic powers exercisable by bishops-elect.82 The law also provided three methods for election. The first and the normal method was called ‘scrutiny’. It called for individual votes to be cast, in order to determine the choice of the ‘greater and more discerning’ part of the electors. The second, the “way of compromise’, required advance agreement to submit to the decision of a specific group of men. The third, the ‘way of inspiration, was left for a choice made when all electors hit upon the same candidate, as it were by divine inspiration. Formal rules were established for each, even the last.

Underlying the details (of which there were many) stood an important principle of representation. It had two sides. On the one side, all those who had a legitimate interest in the outcome of the election should have a voice in it. Quod omnes tangit debet ab omnibus approbari (Cod. 5.59.5.2; Sext 5.[13].29). Electors were to be free in exercising their franchise, and they were entitled to timely notification so that they could take their proper part.83 Due notice was regarded as a cardinal point in the freedom of the church. On the other side, the ‘electorate’

was restricted in order to eliminate improper influences and to secure the church’s freedom from lay control. The laity was excluded from ecclesiastical elections as a matter of principle, and in most dioceses the cathedral chapter was given the sole responsibility for electing the bishop. Facing each other, the two were slightly at odds, but both affirmed the centrality of elections in the classical law of the church. The power to select bishops was taken into the hands of the papacy over the course of the thirteenth and fourteenth centuries. First, by appeal, as where 81 Decrees, Tanner, i. 190, incorporated into the Decretum as Dist. 62 c. 3.

82 A convenient account is Anscar Parsons, Canonical Elections: An Historical Synopsis and Commentary (1939), 52-68; see also the commentary and documents in Jean Gaudemet, Les Elections dans l’église latine des origines au XVIe siécle (1979), 105-92.

83 GI. ord. ad X 1.6.23, s.v. metuebant; see Charles J. Reid, Jr., “The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry’ (1991) 33 Boston College Law Review 37-92, at 67-70.

ECCLESIASTICAL ELECTIONS 493 there had been a disputed election; then by papal postulation of bishops, as where some procedural fault in the election itself called forth intervention from above; and finally by papal reservation of the power to name bishops, as where a prior bishop was deemed to have vacated his see at the Roman court, the system of election ceased to be the means by which bishops were actually selected.84 The English kings objected in principle, but they also made their peace with the new system. They themselves made use of the papal powers to secure their own candidates for the episcopate. The popes would very often give heed to their recommendations. After the Reformation, the English kings took more direct control over the elections, acting formally in place of the popes. Even then, however, the form of episcopal elections continued to be used. Post Reformation formularies and act books contained proper forms for lawyers to make sure that they followed the outdated canonical norms of elections.®5

However, the method outlasted its disappearance from the choice of bishops. Developments at this high level left untouched elections to many lesser offices in

the church, and it was there that the law of elections appeared most often in ecclesiastical records. During the Middle Ages, this covered primarily the officers of monastic houses, hospitals, and collegiate churches. Most legal intervention took the form of confirmation of elections made by the electors; it was the duty of the bishop to oversee the process to make sure it had taken the proper legal form. The duty led to frequent entries in bishops’ registers, as, for example, in quashing an election of a proposed prior of Norwich cathedral priory in 1352 for failure to abide by procedures laid down by the Fourth Lateran Council incorporated into the Decretals (X 1.6.42).8° Similar entries turned up occasionally in

the act books. In 1480, for instance, a contested election of the prior of the Augustinian house of Barlinch came before the consistory court of the diocese of Bath and Wells.8” Monastic houses were required to compile quite lengthy documents to show that they had complied with the law’s requirements. The courts scrutinized these documents, and they also examined witnesses to the election in

the process of confirmation.8® Ecclesiastical formularies contained detailed 84 Geoffrey Barraclough, “The Making of a Bishop in the Middle Ages: The Part of the Pope in Law and Fact’ (1933) 19 Catholic Historical Review 275-319. 85 e.g. Formulary (seventeenth century), BL, Harl. MS. 5105, fo. 324: “Processus super confirmatione episcop1.

86 Reg. Bateman (above n. 57), no. 1619. The bishop went on to provide the candidate to the position by his ordinary right, being ‘mindful of the merits of the elect. See also Churchill, Canterbury Administration, il. 119-26. 87 SRO, Act book D/D/Ca 1, pp. 241-3, called ‘Acta in negotio confirmationis. 88 e.g, Priory of Winchester (1305), LPL, Act book MS. 244, ff. 71v-72, including two archdeacons and three monks. See also the process in election of Robert Jakes as prior of Maiden Bradley (1389) in Reg. Waltham, nos. 58, 65, 487.

494 CHURCHES AND THE CLERGY accounts of the proper way to conduct an election, and it appears they were referred to in practice.89 Dissolution of the monasteries diminished the number of ecclesiastical elections

held in England, but it did not eliminate them altogether. And it did not materially change the rules by which they were held. Rural deans, clerical representatives to Convocation, even some parochial offices were routinely subject to the process of election.?° That the complex canonical rules were scrupulously followed in every instance seems unlikely; the subject awaits an interested student. In one respect, however, it is apparent that the ius commune continued to exert an influence on elections outside the ecclesiastical sphere proper. Masters of the colleges at Oxford and Cambridge were selected by a process that followed in outline what was laid down in the canon law. In 1609, an election to the vacant mastership of Christ’s College, Cambridge, was contested for various failures in giving proper notice of the election to the fellows. The words of the college statutes were the first recourse in the argument that followed, but it was the tus commune, including citation of the Commentaria by Panormitanus, that provided the means of interpreting them.?!

CHURCH PROPERTY Two titles at the end of the third book of the Decretals dealt with the protection of church buildings and their surroundings (X 3.48.1-6; X 3.49.1-10). Other sections also touched upon related subjects—the thirteenth title of the same book incorporated the canon law’s prohibitions against alienation of church property, for example, and a title in the fifth book took up the subject of arson and other violent injuries done to churches (X 5.17.1-7). Church property was thought to merit a level of legal protection beyond what was accorded to ordinary land and chattels. Paul II’s constitution Ambitiosae (1467) went so far as to declare all forms of alienation of ecclesiastical property null and void.” Provisions like these had been part of the law of the English church from the earliest times. The early Laws of King #thelbert called for compensation to be made twelve-fold for theft of God’s property, and only slightly less for theft of goods belonging to the clergy. Laws and diocesan statutes of varying degrees of severity followed.% 89 e.g. BL, Royal MS. 8.A.xviii, ff. 111-17; TCD, MS. 278, ff. 116-23; LJRO, B/A/20/1, pp. 15 et seq.

90 e.g. Records of elections of rural deans (Bath and Wells, c.1458), SRO, Act book D/D/Ca 1, p. 13. 91 BI, Prec. Bk 11, fo. 21v. Other examples of interpretation by civilian categories in college elections:

Presidency of St John’s College (c.1591), BL, Lansd. MS. 68, fo. 78; Statute and Powers of College

Presidents in the absence of Masters (c.1600), BI, Prec. Bk 11, fo. 37. 92 Extrav. Comm. 3.4.1. 93 Abt 1 in Liebermann, Gesetze, i. 3 [Laws, Attenborough, 4-5]. See also Liebermann, Gesetze, 11, s.v. Kirchenraub; Statutes of York I, c. 41:3 (4241 X 1245), Statutes of Chichester II, c. 39 (1289), in: C. e& S. I, pt. 1, 496, pt. 2, 1089.

CHURCH PROPERTY 495 Some of the many questions relating to churches were treated as purely admin-

istrative matters by the bishops or their designates. The union (or division) of benefices, the creation and consecration of chapels, and provision for burial within churches are examples. They were governed by the canon law, but rarely gave rise to any sort of litigation before an ecclesiastical court.9* Some other matters relat-

ing to churches involved the payment of money and parochial taxation. Parish rates and clerical stipends are examples; they were dealt with in Chapter 8. Three main areas involving the governance of churches, which did regularly appear in the records of the ecclesiastical courts, remain to be identified and discussed.

Protection of Churches and their Property A church building and its immediate surroundings enjoyed a special status in law. That status was affirmed and clarified by innumerable canons, ecclesiastical statutes, and secular legislation.9> It cannot be pretended that the rules were ever perfectly observed.%© The records are too full of allegations of brawling inside churches and profanation of churchyards for success to be proclaimed. It was not at the time. Churches and churchyards might also be the largest, if not the only, place where many secular events could be held. The temptation to use them was great. Moreover, chattels belonging to a church might become mixed with other property by theft or industry, and they might be sold or traded for purposes good and bad. The canon law limited those of such usages as it did not forbid, and this limitation raised the possibility—perhaps even the certainty—of ecclesiastical prosecutions against those who converted or disturbed church property. Most would be brought on the ex officio side. In theory, attacks on churches and spoliation of their goods subjected the perpetrators to the penalties of sacrilege (C. 17 q. 4 c. 21); under a decretal of Clement III they were declared ipso facto excommunicate (X 5.39.22).9”

For the most part, the English court books show the courts following the canon law in this aspect of their jurisdiction. Although they were not frequent, causae sacrilegi1 do appear in contemporary records.98 These prosecutions were brought 94 See e.g. the argument touching union of the prebend of Bullinghope and office of dean (Hereford, 1389) in Reg. Trefnant, 73-90. 95 e.g. X 3.49.5 (no temporal pleas involving crimes and the shedding of blood to be held in churches);

Canons of 1604, c. 88 (no temporal courts or leets, lay juries, musters, or any other profane usage) in Anglican Canons, 382-3; 13 Edw. I, st. 2, c. 6, 1285 (no fairs or markets to be kept in churchyards). 96 J. G. Davies, The Secular Use of Church Buildings (1968), 36-95, 155-204.

97 English legislation supported the canons; e.g. Council of Merton and Westminster, c. 15 (1258) in C. & S. I, pt. 1, 581. 8 e.g. Ex officio c. Faysot (Canterbury, 1399), CCAL, Act book X.8.1, fo. 26v: “quod commisit sacrilegium asportando furtive lapides et ceram a cimiterio et ecclesia ibidem’; Ex officio c. Michell and Page (London, 1485), GL, Act book MS. 9064/2, fo. 115v; Philippes the Chaplain c. Dale (Archdnry Chester, 1503), CRO, Act book EDC 1/1, fo. 30v. See also Cosin, Apologie, pt. I, c. 9.

496 CHURCHES AND THE CLERGY to recover the item taken from a church and to subject the offender to canonical penance. Absolution was given only upon a defendant’s showing of willingness to do both. The defendants in these cases might none the less have counted themselves lucky that sacrilege was treated as an ecclesiastical offence in medieval England. Secular jurisdiction would probably have been harsher. The canon law itself counted sacrilege as a ‘mixed crime; that is one that could be prosecuted in either a temporal or a spiritual forum.9? Some of the corporal punishments meted out to those who had stolen church goods by the former on the Continent are truly horrifying.1° It would be pleasant to make a connection between this comparative leniency and Pope Gregory the Great’s advice to St Augustine many centuries before.!©! His words dealt with exactly this subject and called for a lenient result. Sadly, evidence for a tie is lacking. But there is a related point worth making. Only when it became normal to invoke the common law instead of the canon law—that is to punish theft from churches as larceny or burglary—did English law approach the Roman law-based Continental law of sacrilege in the severity with which it treated offenders.! Just as often as they invoked the concept of sacrilege, the English ecclesiastical courts sometimes also styled suits to recover wrongfully taken church property simply causae subtractionis bonorum ecclesiasticorum. This must have been regarded as the more appropriate name where the offence was less, but the purpose of recovering the chattel seems to have been no different. For example, in 1515, the man to whom the parishioners of Shelwich had become indebted and to whom they had agreed to give a chalice to satisfy the debt found himself as the

defendant before the court of the archdeacon of Canterbury.!°3 He was not charged with sacrilege. How could he be? But he was in possession of a res sacra and the means by which he had acquired it were ultra vires of the parishioners. The judge ordered him to return the chalice under pain of excommunication. In the majority of causes involving churches and offences on church property, the disciplinary side of ecclesiastical jurisdiction was prominent. Making an arrest

both within a church or its cemetery, or on the way to a spiritual court, was regarded as wrongful, subjecting the offender to discipline. It attracted the seemingly exaggerated name of causa violationis libertatis eccleste.1°4 It is even more of 99 DD ad X 2.2.5. The status of the defendant, the purpose of the prosecution, and local custom were all recognized as sufficient to justify jurisdictional allocation. 100 e.g. Julius Clarus, Practica criminalis, § Sacrilegium; Jodocus Damhouder, Praxis rerum criminalium, c. 113; Nicolaus Boerius, Decisiones, Dec. 254, nos. 13-20. See also the comments in John Ayliffe, Parergon

iuris canonici Anglicani (1726), tit. Of sacrilege (pp. 476-8). 101 See above Ch. 1: 6-7. 102 See 23 Hen. VII], c. 1 (1532); Bl. Comm., iv. 240. 103 Ex officio c. Marche, CCAL, Act book Z.3.3, fo. 61Vv.

104 e.g. Ex officio c. Salter (York, 1402), BI, D/C.AB.1, fo. 27; Ex officio c. Baxby et al. (York, 1423), BI, CP.F.135; Ex officio c. Bonn (Canterbury, 1469), CCAL, Act book Y.1.11, fo. 40.

CHURCH PROPERTY 497 a stretch to think of those who cut down trees in a churchyard or allowed their pigs to feed there as ‘violators of ecclesiastical liberty, but so they were treated in some of the early court records.!° To fight in the churchyard or to fornicate in a church were both offences against the law of the church. Where blood or semen had been emitted, the offenders were treated as having ‘polluted’ a sacred place, and they were punished accordingly. Pollution required reconciliation of the place by the bishop, and this was done in practice. Indeed it was a source of income for the bishops.!°° Lesser sanctions—but sanctions none the less—were invoked against those who impeded services by bringing “unseemly speeches and worldly business’ within churches.1!0°7

The sacred character of churches and their environs was also the reason why the

canon law embraced the institution known to historians as sanctuary.!°8 No doubt the antiquity of sanctuary and its ubiquitous place in many legal systems eased the path to canonical acceptance,!©? and no doubt the ‘law of mercy’ also had something to do with it (C. 26 q. 7 c. 12). However, it was the idea that churches

should enjoy immunity from intervention from without that provided the most frequently mentioned rationale for allowing criminals to take refuge in church or churchyard (X 3.49.6).!!° They were able thereby to escape prosecution by secular authorities and vengeance at the hand of their enemies. But this was an inciden-

tal consequence of the immunity of the church in which they took refuge, not because of any merit in themselves or a desire on the part of the clergy to frustrate the demands of temporal justice. Sanctuary under the canon law was taken to be the result of preserving ‘the honour of God and his saints’ and of maintaining ‘the peace and life’ of church and clergy (C. 17 q. 4c. 9). The English common law of sanctuary differed from the canon law’s on several

points. For instance, the former allowed men who took sanctuary only forty days inside before requiring them to abjure the realm. The canon law permitted 105 Ex officio c. Archer et al. (Canterbury, 1308), LPL, Act book MS. 244, fo. 93v; Ex officio c. Stephan (Canterbury, 1399), CCAL, Act book X.8.1, fo. 39; Ex officio c. Clerk (Archdnry St Albans, 1520), HTRO, Act book ASA 7/1, fo. 25v.

106 e.g, Inhabitants of Middlesmoor c. Bayns (York, 1520), BI, Act book D/C.AB.2, fo. 239, styled a causa super pollutione cimiterit. See also Ex officio c. Michel (Salisbury, 1391) in Reg. Waltham, no. 964; and ‘Receipts for Reconciliation’ (1495) in Reg. John Morton, Archbishop of Canterbury 1486-1500, IT (= 78 C. & Y. Soc.; 1991), no. 362.

107 e,g,, Ex officio c. Patricke (Peterborough, 1637), NRO, Correction book 68, fo. 56. 108 J, C. Cox, The Sanctuaries and Sanctuary Seekers of Medieval England (1911), 182-207; Norman Trenholme, The Right of Sanctuary in England (1903); Thomas John de’ Mazzinghi, Sanctuaries (1887); André Réville, “L'Abjuratio regni: histoire d’une institution anglaise’ (1892) 50 Revue historique 1-42; fuller examination of the evidence is found in Four Studies, 16-81. 109 See Liebermann, Gesetze, ii. s.v. Asyl, Charles H. Riggs, Criminal Asylum in Anglo-Saxon Law (1963).

110 See Carlotta Latini, I privilegio del’immunita: Diritto @asilo e giurisdizione nell’ordine giuridico dell eta moderna (2002), 43—65, 280-304.

498 CHURCHES AND THE CLERGY perpetual asylum. The English common law also allowed a much larger class of offenders to claim asylum than did the law of the church; public thieves and many others were excluded by the canons. The English bishops seem to have been willing to abide by the English customary law of sanctuary. They made no attempt to keep out of sanctuary men who were not entitled to enter under the canon law. Nor did they object to abjuration of the realm. Commentators on the canon law themselves encouraged a certain amount of deference to local custom, and the bishops took that lead. However, the English bishops did stick to their guns at the level of principle. They did insist upon the principle of immunity of the churches that fell under their care. They acted to recall to sanctuary anyone who had been forcibly removed, and they took action in their courts to prosecute those who had done the removing.1!!

Dilapidations The law of dilapidations was the rough ecclesiastical equivalent of the common law of waste. It required incumbents, including cathedral dignitaries and even bishops,

to provide proper care for the buildings and lands attached to their benefices. English commentators gave this duty a more spiritual ‘flavour’ by describing allowing a parsonage to fall into decay as an act of “implicit sacrilege. They also affirmed the reality of eternal punishment of all those who violated their duty.1!2 However, the standard of care was really no different from that provided by the temporal law of waste, and many of the buildings covered under the ecclesiastical law were no more than ordinary houses. They were, none the less, treated under a different legal

heading, and dilapidations have been a tenacious part of the church’s law. As in modern ecclesiastical law, the category covered improper alienation of a church’s property as well as its repair, although the elaborate statutory measures and careful definitions of property that is ‘ecclesiastical in its nature’ found in modern law were not present in the early law.113 With few exceptions, the English common law also admitted the validity of the church’s jurisdiction over this subject. It was not among

the areas of spiritual jurisdiction attacked and curtailed during the late fifteenth century. Two Elizabethan statutes actually restated the basic law of dilapidations and confirmed the church’s jurisdiction over it (13 Eliz. c. 10, 1571; 14 Eliz. I, c. 11, s. 6, 1572).

Any discussion of this subject requires recalling that under a general custom of the English church, the laity were responsible for upkeep of the nave of parochial churches, and they might be responsible for more under local customs. The law of dilapidations, properly speaking, covered only the clergy, and it covered the 111 Four Studies, 62-3, 68. 112 John Ayton, Constitutiones, 119, s.v. sub divini attestatione judict; Ayliffe, Parergon (above n. 100), s.v. Of dilapidations. 113 See e.g. Ecclesiastical Law [repr. Halsbury’s Laws of England, 3rd edn] pt. 6 § 2 (3rd edn, 1955).

CHURCH PROPERTY 499 chancel and other property belonging to the benefice. This shared burden between clergy and laity appears at first sight to have been contrary to the formal canon law, which fastened liability for maintenance of the entire fabric on ‘those who held the benefice’ (X 3.48.1). Payment to meet it was to be made out of the tithe (C. 10 q.1 c. 10). The law therefore held that parsons were legally compelled to pay for the repairs, as long as they had sufficient revenues from the benefice to do so (X 3.48.4). No text required the parishioners to undertake the task. Those who enjoyed the fruits of a benefice, the canonists held, should also bear the burdens.1!4 This situation appears to have presented a real conflict between law and practice, a case where the English church ignored the canon law. However, in reality, the English custom diverged from the law of the church only in a formal sense. So the canonists understood it. In this area of the law, as Joannes Andreae noted, ‘In the first instance, recourse is to be had to custom’.!!5 Thus, this example of a papal decretal that was not received in England, when examined from the perspective of the medieval canonists, actually shows only the sort of reliance on local custom they themselves would have expected.

This English custom left a good deal for the clergy—tresponsibility for the chancel and the parsonage being the most obvious items. It extended to the property held by bishops and other dignitaries too. There were always open questions;

they would have to be settled in light of local conditions. Among the earliest English ecclesiastical legislation were canons providing more detail about items like church roofs, adjacent cemeteries, and clerical vestments.!!6 In particular, a provincial constitution attributed to Archbishop Winchelsey (d. 1313), much commented upon by Lyndwood, provided answers for some of the most urgent questions that arose in practice.1!” Royal injunctions of 1536 went a little further; they limited the amount of parochial income that had to be devoted to repairs to one-fifth.118 But still there was some lack of clarity, and it might actually have been unwise to aim at a fixed rule. The variables in determining what to do with run-down churches were great. They were not conducive to exact rules. Unsettled questions and disputes did arise naturally in practice, and from them issued a law of dilapidations, one that produced a considerable amount of litigation and a surprising trail of evidence to suggest that many churches and clergy

houses suffered from a lack of adequate repair. We can only speak in general terms about many aspects of the subject. But there is something to be said. 114 Gl. ord. ad X 3.48.1, s.v. adiuvent: ‘Nam ubi emolumentum ibi debet esse onus’.

115 Commentaria ad X 3.48.1, no. 3: [Primo] recurrendum est ad consuetudinem, secundo ad portionem deputatam fabricae, tertio ad id quod dicitur hic’. 116 e.g, Statutes of Winchester I, cc. 11-12 (1224) in C. & S. J, pt. 1, 128. There were many more; see

index in ibid. 117 See Lyndwood, Provinciale, 251-3. 118 Frere, Visitation Articles, ii. 11.

500 CHURCHES AND THE CLERGY Prosecutions for dilapidations against living incumbents were normally brought either ex officio or at the suit of the churchwardens as representatives of the parish.1!9 Unsurprisingly, many coupled the charge of dilapidations with an offence of some other kind, such as non-residence, sexual immorality, or neglect of parochial duties.!2° They also often mentioned wrongful alienation of church property.!2! Where successful, they ordinarily led simply to an order to repair or restore, usually with a date for completion being set. In more extreme cases, they could lead to an order for the sequestration of parochial revenues, with the proceeds being used gradually to carry out the repairs.!22 A persistent feature of the law of dilapidations was the prevalence of causes brought against the estates of deceased clerics. This result was natural. Decay might be hard to discover during the life of an incumbent. When the man had died, however, leaving the church or house in disrepair, things might look different. Most crucially, there would be a successor to complain. The law required their executors to make good the deficiencies, provided sufficient assets remained in the estate of the old incumbent. In order of payment, this obligation came after the cleric’s proven debts, but before his legacies. Responsibility for dilapidations was also an obligation fastened upon the office. It extended, for example, to the lay rectors who had taken monastic lands,123 and liability did not depend upon showing negligence or wilful conduct on any defendant’s part. That the loss had occurred by fire, for example, did not relieve an office-holder of liability. It was even a disputed question among the civilians whether an incumbent (or his estate) could be sued for dilapidations that had occurred during the tenure of his predecessors.124 119 e.g. Churchwardens of Edensor c. Abbot & Convent of Rochester (Lichfield, 1468), LJRO, Act book

B/C/1/1, fo. 216v, a “causa reparationis cancelle ecclesie parochialis. Note that the rector rather than the vicar bore this burden. See also Ex officio c. Brown, Rector of Hollingbourne (Canterbury, 1470), CCAL, Act book Y.1.11, fo. 110; Mayne, Rector of Walton c. Adams, Rector of Weston super Mare (Bath and Wells, 1527), SRO, Act book D/D/Ca 2, p. 43; Ex officio c. Hesketh (Archdnry Chester, 1606), CRO, Act book

EDC 1/3, fo. 147, the defendant being the successor to a monastic house. 120 The most extreme allegation discovered is Ex officio c. Tynlay (York, 1465), BI, D/C.AB.1, fo. 175

(also said to have fathered ten illegitimate children; he confessed as to sexual relations but not apparently the number of children). 121 e.g. Ex officio c. Elliston (Exeter, 1620), DRO, Act book Chanter MS. 763, fo. 61v: “for suffering his

vicarage house to goe in decay and for selling away the stones and pillars thereof’ 122 e.g. Parish church of Shebbear (Exeter, 1630), DRO, Act book Chanter MS. 764, fo. 86: “Negotium sequestrationis fructuum rectorie de Shebbeare propter ruinas cancelle’. See also Houlbrooke, Church Courts, 157-60, 174-5. 123 e.g, Ex officio c. Seale (Salisbury, 1616), WTRO, Act book D1/39/2/8, fo. 34v; the defendant sought

to escape liability by denying that he had ever repaired the chancel (i.e. alleging a contrary custom), but was condemned to pay for repairs on a showing that one of his predecessors had done so. 124 Maw’s Case (c.1600), BI, Prec. Bk. 11, fo. 17, held that he could. A roughly contemporary discus-

sion held that ‘neither will the suit extend further back than the last predecessor or his executor’. See BI, Prec. Bk 2, pp. 127-8. The former said that the defendant (or his estate) could in turn bring suit against the estates of his immediate predecessors.

CHURCH PROPERTY 501 Among the special legal features, probably the most notable in the English context was the routine use of inquests to determine factual questions involving dilapidations.!25 These inquests, similar to those used in disputes about presentments to parish churches, were used to settle many of the questions of detail which the canon law left open. Typically, an agent of the bishop or his court was appointed to convoke a panel composed of both laymen and clerics, to inspect the benefice, and to make an estimate of the amount required to bring it back up to an adequate state of repair.126 Among the group, very often ‘men skilled and expert in mechanical arts and in making and repairing buildings and structures’ were included.!2” Notable is the element of similarity between their work and the sworn ‘viewers’ under English law’s Assize of Nuisance.!28 Like the inquests de iure patronatus, however, the ‘verdicts’ of these panels were evidently not as final as a common law jury’s. It was possible to raise objections to their findings of fact on appeal.!29

Church Seats, Pews, and Benches

To us, orderly rows of pews are among the most familiar feature of parish churches. It was not always so. Parish churches before the latter part of the Middle Ages rarely provided a place for the congregation to sit.!3° Collegiate or monastic

churches might have stalls for the clergy and choir during long services; parish churches might have sedilia cut into the walls for use by the clergy; occasionally rude benches might be provided for the aged and infirm at the back of a church. Noble men and women or the aged and infirm might fittingly have a seat. But ordinary usage was to the contrary. Most of the congregation stood and knelt. They did not sit. The canon law therefore had no occasion to provide rules for the erection or placement of church seats, and it did not.!3! The canons prohibited the laity (with the exception of the patron) from presuming to sit in the chancel, but further than that there was no need to go. 125 They were not required; see Precedent book (fifteenth century), BL, Royal MS. 11.A.xi, ff. 45v—46,

making provision for the proper wording of a document involving repairs ‘ubi inquisitio non est capta. 126 See the form (1389) commonly used, given in Reg. Trefnant, 8. 127 Formulary (c.1630), DRO, Chanter MS. 724, ff. 64v-65: “quosdam viros in arte mechanica atque aedificiis et structuris faciendis et reparandis peritos et expertos. A York formulary required “two artificers of good credit’ BI, Prec. Bk 2, pp. 127-8. 128 See generally London Viewers and their Certificates, 1508-1558, ed. Janet Loengard (= 26 London Record Soc.; 1989).

129 e.g, Execs. of Sutton c. Oxenford (York, 1397-8), BI, CP.E.230, including the deposition of John Ferrour, a carpenter, who was present at the inspection. 130 Alfred Heales, The History and Law of Church Seats or Pews (1872), i. 1-15; Roger Lee Brown, Pews, Benches and Seats: Being a History of the Church Pew in Wales (1998), 1-9; G. H. Oliphant, The Law of Pews (1850); J. Charles Cox, Bench-Ends in English Churches (1916), 1-27.

131 An apparently exceptional effort among the people to establish regular seats for themselves was denounced in Statutes of Exeter II, c. 12 (1287) in C. & S. IZ, pt. 2, 1007-8.

502 CHURCHES AND THE CLERGY By the fifteenth century, something had to be done. Seats were appearing in churches as more than an occasional thing; documents began routinely to mention their presence.!32 How rapid and extensive the movement in that direction was we have no way of knowing, but that it existed is beyond doubting. From the lawyer's perspective, the real problem was not so much that the seats appeared. It was that very often these new pieces of furniture were neither provided nor approved by the church. Sometimes their builders could claim no legitimate authority whatsoever. The pews, at least some of them, were the product of private initiative. Individual parishioners caused seats to be built for their own use, and for the use of their families. They built them, and they maintained them. They kept others out. They did not always seek permission of the bishop, or sometimes of anyone at all. There was no plan. The dilemma was how to get a plan, how to assert the church’s right to control the proliferation of seats in churches. It would be the task of the bishops and their courts to bring order to the situation that resulted from these private efforts, and then to fix on principles of

allocation when parish churches themselves began to provide seats for the congregations. It cost them a struggle—a struggle that is evident in the court records of the time. William Laud, while bishop of London, would say that ‘there was better serving of God where there were [no pews] at all’133 But it was too late for going back. In the period covered by this volume, one sees the efforts being made and the direction in which the law was moving. Bishops ordered wardens to draw up a plan. In a few cases, leaders among the parishioners themselves convened a meeting to set up pews and settle who would sit where.134 Then, ex officio actions could be brought to require parishioners to sit in the places they had been assigned.135 By the 1630s, at the latest, registers of faculties granted for the erection of pews were being kept in some places.!3¢ In these registers, observers may see the beginnings of the faculty jurisdiction that still rests with the English ecclesiastical courts, but it will require a vivid imagination on their part to discern a regular system in the many disputes about church seats that reached the courts at the time. This is one of the areas where Convocation ought to have given a lead. 132 Heales, History (above n. 130), 30-44. 133 See Reports of Cases in the Courts of Star Chamber and High Commission, ed. S. R. Gardiner 39 Camden Soc. (n.s.); 1886), 243-4. 134 e.g, Depositions in Kaye c. Kaye (York, 1597), BI, HC.CP.1597/2, recounting that ten to fifteen

years before, ‘it was thought good to the inhabitants...to furnish the said chapel with convenient stalls or pews and so to assign or set forth to every man a convenient place’. 135 e.g, Ex officio c. Barton (Winchester, 1578), HRO, Act book 21M65/C1/20, fo. 16; ‘recusat sedere in

ecclesia in loco sibi limitato’ 136 ‘Liber de facultatibus concessis’ (Archdnry Suffolk, 1635), SKRO, MS. E 14/1/13; Faculty book (1633), NNRO, FCB 1, 652 ff. See generally Peter Winckworth, A Verification of the Faculty Jurisdiction (1953), 16-25; Peter Evans, Church Fabric in the York Diocese 1613-1899: The Records of the Archbishop’s Faculty Jurisdiction (1995).

CHURCH PROPERTY 503 Still, the process did not occur in a legal vacuum. Some legal resources were in place, enough to deal with a part of the litigation. One—probably the most frequently invoked—was the rule that peaceful possession should not be disturbed. Spoliatus ante omnia restituendus est (X 2.13.7). So came into being the causa disturbationis sedilis or its equivalent.!37 These claims always began with the allegation of the plaintiff’s peaceful possession of a pew, but what followed varied. The scope of alleged interference widened out to embrace claims that fights had broken out in pews, that threatening words had kept the possessor at home, and that

the erection of a new pew had interfered with the rights of an existing pew holder.!38 In the first instance, the ecclesiastical courts decided these causes by applying the law of possession. The question was whether one party had disturbed the other’s peaceable possession. Defendants found guilty were styled ‘intruders’ of a possessory right, and questions of title were expressly reserved for separate and later litigation.!59 When the question of title did come on, the English spiritual courts recognized three sources of legitimate right. Unfortunately, they did not always fit together perfectly. The first was the law of prescription. A man who had erected a seat and retained it for long enough could claim prescriptive title. No exact number of years was laid down in the texts and none seems to have become established in practice. The documents that survive mention the acquisition of prescriptive title by possession of forty years, sixty years, and ‘time out of mind’!4° The opinion of one Jacobean civilian was that the first of these was the correct number.!4! The second possible source of title to a church seat was assignment by the parish itself, usually by action of the churchwardens. Whether by agreement of the parishioners, commission by the bishop, or simple act of usurpation, wardens did sometimes set ‘convenient places for the erecting of seats or pews in the church’!42 The 137 e.g, Parkinson c. Gascall (Archdnry Berkshire, 1585), BERO, Act book D/A2/Ca21, ff. 91, 96v, 102v, styled “causa perturbationis possessionis in sedili’. It was, however, possible to combine the two; e.g. Backlough c. Mawkyn (Lichfield, 1531), LJRO, Act book B/C/2/3, fo. 157, styled “causa super iure et titulo et possessione sedendi in quodam sedili. 138 e.g, Ex officio c. King (Archdnry St Albans, 1519), HTRO, Act book ASA 7/1, fo. 20, the defendant

also being assigned penance ‘pro perturbatione divinorum’; Ralph and Lowe c. Goodlowe (Chester and York, 1590-1601), BI, Trans.CP.1601/4, giving details about the size of the two pews. The introduction of a writ of prohibition complicated settlement. 139 e.g, Heath and Wever c. Wever and Wever (Hereford, 1571), HFRO, Act book O/10, s.d. 12 Oct.; having found one party ‘in quieta possessione’ the judge ordered the other to desist from interference, ‘donec pars actrix probaret dictum sedile suum esse de iure’. In Hodgson c. Gaudie (Chester, 1601), CRO, Act book EDC 1/32, fo. 9v, the record stated the decision ‘reservato tamen titulo eiusdem stanni’. 140 Formulary (c.1600), Bodl. Rawl. MS. D.1088, fo. 37v (40 years); Cardy c. Brees (Chester, 1558), CRO, EDC 5/19/11 (60 years); Buck c. Pearcelay (Norwich, 1635), SKRO, 909/6, fo. 16.

141 See WORO, MS. 794.093 BA 2470/B, fo. 45: ‘Note a man cannot be removed out of his seate which he hath held above 40 yeares’. 142 So stated in Atkinson c. Stockdale (York, 1607-8), BI, CP.H.427.

504 CHURCHES AND THE CLERGY right to allocate a pew was said to have been a source of profit for them.143 At any rate, it was widely used. So often, in fact, that some parishioners began to conceive they had a right to be assigned a place to sit. Suits would be brought against the

churchwardens with the end in view.!44 That was particularly true in parishes where pews became more generally available during the seventeenth century. The third source of title was grant by the ordinary, an early instance of the exercise of faculty jurisdiction. It had the brightest future of the three. When, for example, churchwardens allowed a seat to be set up in the parish church at St Albans, they were ordered to desist upon a showing that the archdeacon had forbidden the creation of new seats without his permission.!45 Bishops had an interest in establishing that their consent, express or implied, was required before a church seat could be created. They were willing to back this up with legal action. It became a matter of prudence, if not more, to obtain approval from the bishop.!4¢ None of these banished contention. Some of it came from without.!4”7 Competing actions in other courts and writs of prohibition from the royal courts caused occasional problems for the civilians. But most came from within. Owning a pew was a matter of status.!48 Parishioners, defending their places or aspiring for a higher one, sometimes did so by invoking the aid of the courts. Litigation in the ecclesiastical courts ensued. Most pews passed with particular land and houses,

and questions of inheritance and grant also popped up in court practice involving pews. Moreover, church seats could be treated as a nuisance when they interfered with the conduct of services. Their replacement or even their removal was sometimes sought before the courts. In a suit from Canterbury in 1618, for instance, a parishioner was said to have built a pew so high that the people could scarcely see the officiating clergyman. The parishioner himself claimed it was ‘of a reasonable and convenient height and not prejudicial to any others’.149 In such a dispute, there would have been ample room for legal argument on both sides. It

can be no accident that arbitration was regularly used in practice or that many cases were settled by agreement among the interested parties. Even today the law 143 G, W. O. Addleshaw and Frederick Etchells, The Architectural Setting of Anglican Worship (1956), 91-2.

144 e.g, Fogg c. Horton (Canterbury, 1636), CCAL, Act book Z.2.2, s.d. 22 Dec., styled ‘Negotium assignationis sedilis in ecclesia de Buckland’. 145 Ex officio c. Robynson, Hood, and Spencer (1602), HTRO, Act book ASA 7/19, fo. 54v. For the future, see e.g. Maidman c. Malpas (1794) 1 Hagg. Cons. 205. 146 See e.g. grant to Nelson (York, 1620), BI, FAC.1620/1; grant to Gonvill (Norwich, 1633), NNRO, FDB 1, ff. 2v-3; grant to Webb (Archdnry Suffolk, 1639), SKRO, E 14/1/13, fo. 1. 147 e.g, Bilson v. Wright et al. (KB 1604) Noy 108; Garven v. Pym (CP 1612) Godb. 199; Brabin v. Trediman (KB 1618) 2 Rolle 24. 148 French, The People of the Parish: (Ch. 3, n. 277) (also emphasizing segregation by sex). 149 Ex officio c. Jarvas (1618), CCAL, Act book X.9.14, fo. 225v. In Ex officio c. Wintour (Gloucester, 1639), GRO, Act book GDR 203, s.d. 25 Oct., the defendant was dismissed subject to ‘the cutting of the seat half a foot lower’.

THE CLERGY 505 of church seats retains a certain incoherence.!5° Ordinary churchgoers can be happy that, except in very rare situations, it is also obsolete.

THE CLERGY Protection of the clergy was an avowed goal of the canon law. The assumption standing behind it was that there would inevitably be friction between clergy and laity. The lessons of history were said to demonstrate that the laity was by nature ‘greatly hostile’ to the clerical order (Sext 3.23.3). Hostility required the laws safeguarding the clergy and sheltering them against interference from without—from secular taxation, from the violent hands of laymen, from the long arm of the temporal courts. So it was thought. And this was more than a matter of practical exigency. Divine law itself required that the clergy hold a special status before the law.

Violent Hands and Contemptuous Speech The Second Lateran Council (1139) enacted a canon that became the mainstay of efforts to protect the persons of the clergy from physical attack.15! Although not entirely innovative, it was the text incorporated into Gratian’s Decretum (C. 17 q. 4 c. 29), and it was regularly referred to by its incipit (Si quis suadente) in the medieval act books of the English church. It proclaimed that anyone who ‘laid violent hands’ upon a cleric or monk would thereby fall ipso facto under a sentence of excommunication. In addition, it stated that except where the offender was close to death, he could gain absolution only by presenting himself before the ‘apostolic presence’ in Rome. The constitution was one part of the church’s effort to separate the clergy from temporal incursions. The papacy was to serve as the guarantor of that separation. Hence the terms of this canon. In the hands of the medieval canonists and of later decretals, Si quis suadente

enjoyed (or suffered) both emphatic reaffirmation and significant modification.!52 From the outset, its definition was expanded beyond ‘hands. Attacks with feet, clubs, and stones were included. Poisoning was more debatable, but the communis opinio ultimately included it.!53 However, even though its prohibition was

stated in absolute terms, many exceptions in the opposite direction were also worked out—cases where hands laid upon a cleric might not be treated as ‘violent 150 See Ecclesiastical Law (above n. 113), pt. 6 § 2, nos. 901-10; G. H. and G. L. Newsom, Faculty Jurisdiction of the Church of England (2nd edn, 1993), 118-20. 151 ¢,15 in Decrees, Tanner, 1. 200.

152 For much of what follows, see R. H. Helmholz, ‘Si quis suadente (C.17 q.4 c.29): Theory and Practice’ in Proc. Seventh International Congress of Medieval Canon Law, ed. Peter Linehan (1988), 425-38. 153 See Paulus Squillante, Tractatus de privilegis clericorum (1635), ch. VI, dub. 3, no. 55.

506 CHURCHES AND THE CLERGY hands’ within the meaning of the law. Legitimate correction, as in a father’s disci-

plining a son in holy orders; self-defence, as in a victim’s repelling a clerical ageressor; and excusable mistake, as in cases where a cleric was dressed in layman’s clothes, were all excluded from the canon’s coverage. These and similar exceptions were known in England. A fifteenth-century formulary in York Minster Library, for example, listed and discussed briefly fourteen different situations “in which a person striking a cleric does not incur excommunication’.!54 Pleas in justification were also raised before the courts. For instance,

a layman at Rochester in 1515 alleged that he had laid hands on a priest only in order to break up a potential fight between him and the archdeacon’s apparitor.!5 Another admitted he had thrown beer at a cleric, but said it had been as a joke.15° Self-defence came up the most commonly. The ecclesiastical courts recognized its legitimacy, but they normally gave it a narrow reading. In one Canterbury case, for example, the defendant alleging self-defence admitted he could have fled from the cleric who was attacking him, and he was quickly sentenced to perform public penance in consequence of that admission.157 Both ex officio prosecutions and private actions brought by the clerics themselves, the latter normally styled causae iniectionis manuum violentarum, were quite regular entries in the medieval act books. They continued to appear there at least occasionally after the Reformation,!5* but more often they were brought before the branches of the court of High Commission. Where the physical attack could be interpreted as an attack on the clerical order, rather than just on one individual, this development would have been natural. The Commissioners had been given jurisdiction to deal with cases of importance to church and realm, and this part of litigation, which had come before the consistory courts during the Middle Ages, would have found a home

before them. The greater powers of punishment given to the High Commission would also have encouraged clerical plaintiffs to so frame their complaints as to justify bypassing the local courts. At all periods, the prosecutions brought to enforce Si quis suadente were expressions of a clerical spirit pervasive in the canon law. In one respect, however, English ecclesiastical practice did diverge from the canon law, even during the Middle Ages. That was in the requirement that absolution for 154 YML, Add. MS. 22, fo. 128v: “Casus in quibus percutiens clericum non est excommunicatus. 155 Ex officio c. Larkyn, KAO, Act book DRb Pa 6, fo. 115v. 156 Ex officio c. Burbaich (Rochester, 1447), KAO, Act book DRb Pa 2, fo. 65; unfortunately for us, the cause was compromised and no sentence was given on whether beer counted as ‘hands’. 157 Fx officio c. Walsh (1398), CCAL, Act book X.8.3, fo. 6v.

158 e.g, Ex officio c. Ralfe (Canterbury, 1582), CCAL, Act book X.2.1, fo. 72; Holland c. Gretten (Lichfield, 1596), LJRO, Act book B/C/2/31, s.d. 16 Mar.; Lawson c. Wright (Lincoln, 1641), LAO, Act book Cj/32, fo. 63. In a case from “Clement Colmore’s Book’ (1613), DUL, DDR/XVIII/3, fo. 56v, the

wording of the prosecution tracks Si quis suadente, but is described as brought “iuxta statuta huius regni Anglie sacrasque constitutiones.

THE CLERGY 507 attacks on the clergy could be obtained only in Rome. These penitential journeys rarely, if ever, happened.!59 Where they did, a clerical offender, having incurred canonical irregularitas, was usually involved.!© Confessing their fault and doing public penance locally were all that was required of virtually all lay defendants who had

violated this canon. The interpretations of the jurists had prepared the way for this result. Sz quis suadente itself excepted anyone who was close to death. The canonists expanded the category. Women, the indigent, and the unfree were excused under the same rationale. As a practical matter, they were not able to make the trip. Levis iniuria was also excluded. As sometimes happened in the ius commune, the exception became the rule. Recourse to Rome for absolution was mentioned in the records only

in an indirect form; they recorded excuses for not going there. One example is an early sixteenth-century case where the defendant took an oath ‘that he had not sufficient goods to visit the supreme pontiff’ and was excused the trip in consequence.!® Although the canonists gave a broad definition to the term ‘violent hands’ in interpreting Si quis suadente, the canon was not normally extended to cover verbal abuse. ‘Hands’ might include “feet, but they did not include tongues, or the product of tongues. As to words, most clerics were confined to bringing claims of defamation on the same footing as the laity. However, this limitation did not apply to words that touched upon the dignity of the clerical order as a whole, and a wide definition was given to that category in practice. The parishioner who said to the curate, “Leave thy preaching, for it is not worth a fart, was regarded as deserving of penitential discipline.162 What he said tended to disparage the clergy, not just the preaching abilities of one man. And so a fortiori where more general words had been used—‘All priests are whoremongers’ or ‘I would rather confess to a tree than a priest’, for example.!% Any troll through a book of surviving ex officio prosecutions will yield a catch of cases like these. Prosecutions for speaking ‘unreverently’ against a clergyman were normal entries. It is not so easy, however, to proceed from them to a reliable estimation of what the English people really thought of their clergy.!% Still less 159 Two exceptions have been discovered in which the possibility was at least raised: Ex officio c. Senyng et al. (Rochester, 1465), KAO, Act book DRb Pa 3, fo. 50or (involving castration of a priest), and Ex officio c. Cook (York, 1515), BI, D/C.AB.2, fo. 166 (involving laesio enormis).

160 e.g. Case of Robert Asshewell (London, 1308) in Reg. Radulphi Baldock... Episcoporum Londoniensium, 1304-1338 (7 C. & Y. Soc.; 1911), 70. 161 Ex officio c. Cowper (Archdnry St Albans, 1518), HTRO, Act book ASA 7/1, fo. 17v: “quod non est

habilis in bonis adeundum summum pontificem’ 162 Fx officio c. Mowniford (London, 1508), GL, Act book MS. 9064/10, fo. 11V.

163 e.g, Ex officio c. Forest (London, 1499) in Hale, Proceedings, no. 231; Ex officio c. Sprat (Canterbury, 1472), CCAL, Act book Y.1.11, fo. 199v; Ex officio c. Johnson (Canterbury, 1597), CCAL, Act book X.8.15, fo. 185v.

164 See the judicious summary by Christopher Marsh, Popular Religion in Sixteenth-Century England (1998), 86-95.

508 CHURCHES AND THE CLERGY convincing are simple comparative estimates of change from one period to another. Disciplinary proceedings for slandering the clergy were not peculiar to any one time, and the derisive words spoken may always have represented quite unpopular views. We rarely know. But the existence of such prosecutions, and their congruence with the broad purposes of the law of the church, are still worthy of note. Separation of clergy from the laity, as the concept was understood in the canon law, was obviously not intended to give the laity a right to escape correction at the hands of the courts when they reviled the clergy.

Jurisdictional Privileges of the Clergy The rights enjoyed by the clergy under Si quis suadente were known as the privilegium canonis in the medieval law. Of equal or greater importance was the privilegium fori. It protected the clergy from being brought before temporal courts as defendants. This privilege has long been known to historians of English law as ‘benefit of clergy —the right enjoyed by all clerics, and subsequently enlarged to cover anyone who could make a show of literacy—to escape conviction for felony before the common-law courts. It had possible roots in the Anglo-Saxon past, but it became established only in the twelfth century. Henry II was compelled to recognize it in consequence of the murder of Archbishop Thomas Becket, for the archbishop had chosen to make it the crucial test of the church’s freedom from royal control. Afterwards and quite independently of influence running from the church, benefit of clergy went on to have a long, complex, and legally ambiguous

history in the administration of English criminal law.16> Not always noticed by historians, however, is that benefit of clergy in England, being limited to the criminal law, was contrary to the law of the church. The canon law itself drew no line between criminal and civil law for these purposes (e.g. d.p. C. 11 q.1¢. 47). The privilegium fori covered both. CIVIL CAUSES

The natural temptation is to pass over in silence the privilegium fori applicable in civil causes. The English common law set its face against it, and the refusal stuck. The English bishops did protest,!° although without effect. At length, they were 165 The basic study remains Leona Gabel, Benefit of Clergy in England in the Later Middle Ages (1928-9); see also James Fitzjames Stephen, A History of the Criminal Law of England (1883), i. 459-72; Peter Heath, The English Parish Clergy on the Eve of the Reformation (1969), 119-33; J. M. Beattie, Crime and the Courts in England, 1660-1800 (1986), 141-6; Baker, Introduction, 513-15, 530-2, 560-1; Swanson, Church and Society, 149-53, 182-4; C. B. Firth, ‘Benefit of Clergy in the time of Edward IV’ (1917) 32 EHR 175-91.

166 The most famous was by Robert Grosseteste to his archbishop; see Roberti Grosseteste episcopi quondam Lincolniensis Epistolae, no. 72 (= 25 RS; 1861), 205-34. Others followed; see e.g. Statutes of Exeter II, c. 30 (1287) in C. & S. IT, pt. 2, 1027; Petitions to the King, no. 33 (1295) in C. & S. I, pt. 2, 1143.

THE CLERGY 509 obliged to acquiesce. By the fifteenth century, even the formal protests ceased. In civil matters, therefore, the clergy were almost as fully subject to the royal courts in England as the laity was. No jurisdiction ratione personae could be exercised in the spiritual courts.1°” The temptation to say nothing about the civil privilege in the canon law on this account, although real, should nevertheless be resisted, and

not simply because doing so would lead to an overestimation of the extent of Becket’s victory and an underestimation of the extent of the claims of the medieval church. It should be resisted for a better reason: because understanding the civil privilege provides a window, otherwise unavailable, upon the canon law and the realities of relations between the two legal systems in England. Three points should be made.

First, the canon law admitted exceptions to the rule of separation between clergy and laity on the civil side. It took a more sophisticated and realistic view of what could be done. The starting-point was summed up in the legal maxim: Actor

forum rei sequitur. Suit must be brought in the forum of the defendant. It was applied to potential conflicts of jurisdiction; in civil matters laymen were not to be sued before an ecclesiastical court, they were rather to be sued before a temporal court (X 2.2.10). Clerics were not prohibited from suing laymen, and clerics would therefore legitimately appear in a secular forum when they did so. It might even be said that some of the clerics who sued out writs of prohibition from the Chancery were actually following the letter of the canon law where their opponents were laymen. This rule about competence was tempered by the rule that if the subject-matter of the litigation was inherently spiritual in nature, the parties had voluntarily submitted themselves to ecclesiastical jurisdiction, or customary

practice permitted, a layman could be sued in the spiritual forum (X 2.2.11, X 2.2.18). Marriage was the obvious example of the first; testamentary causes of the last. Despite such instances, the canon law never sought to ensure that no cleric could appear in any lay court. Its desire to separate clergy from laity was tempered by a recognition of the realities of life. Second, in English practice, the bishops were able to retain some level of control in personal actions involving their clergy as defendants.!°8 This was an indirect result of the common law’s requirement that the bishops serve the process. They carried out the role ordinarily performed by the sheriff or his deputy in the common law. Where a cleric was sued for debt, for example, it was up to the diocesan bishop to serve the writ requiring him to appear in the royal courts, and also (assuming the cleric lost the case) to see to it that payment of the damages was 167 Fuller treatment of the subject can be found in Four Studies, 187-239. 168 Evidence is laid out in Four Studies, 232-7. It should not be thought that England was alone in the clergy’s participation in temporal jurisdiction; see e.g. Jean-Louis Gazzaniga, “Les Clercs au service de P’état dans la France du XVe siécle’ in id., VEglise de France a la fin du Moyen Age (1995), 75-100.

510 CHURCHES AND THE CLERGY forthcoming. This process did not normally require invoking the ecclesiastical courts, but episcopal registers show how the bishops responded. On the one hand, they did chafe under the restraint of being treated as officers of the royal courts; this system reversed the role envisioned by the canon law. The temporal courts were supposed to do their bidding, not the other way around. And here, the bishops were being required to accustom themselves to acting as agents of the Crown. On the other hand, they also used their position to ‘improve’ the clergy’s position. Since the collection of damages was managed by the bishops, they were able to

use that position to preserve the fabric of churches and at least a modest living for their clergy. They would not raise the money owed if it would impoverish the benefice. The bishops thus preserved a certain independence in executing their role as ecclesiastical sheriffs. It did not amount to enforcing the privilegium fori under another name. But it did mitigate the consequences of the privilege’s rejection by the English law. Third, in the long run refusal to recognize the privilege in civil cases turned out

to be an advantage for the ecclesiastical courts. Its rejection at the beginning helped to protect and enhance their position in the end. Ecclesiastical jurisdiction in England always depended upon the subject-matter at issue. In canonical parlance it was jurisdiction ratione materiae. To limit the competence of the spiritual

forum, ways around established rules about subject-matter would have to be found. This “end-run’ did occur in some cases, tithes for example, but it was an awkward process. Spiritual jurisdiction determined by the nature of specific subjects was the starting-point, as was admitted on all sides. That assumption had a tendency to stick, and it worked to the benefit of the church’s courts. Where, however, the privilegium fori was initially recognized for most purposes

by the secular courts, as it was at least in principle in France,!® challenges to subject-matter jurisdiction in the hands of the church were easier to make. They would not go against a normal assumption about jurisdictional law. Secular jurists in France would make use of the maxim Actor forum rei sequitur to keep laymen from being brought before ecclesiastical tribunals at all. Because ecclesiastical jurisdiction regularly depended on a question of status, it was easier to reduce its scope, so that at last it would reach only the clergy. This was a long process. It was

under way already in the fourteenth century. It ended only with the French Revolution. But long before that, the French spiritual courts had come to possess a shadow of their medieval jurisdiction.!7° In England, by contrast, the courts of the church retained a meaningful competence over the laity much longer. The church’s courts played a larger role in the legal life of the nation. 169 Jean-Pierre Royer, L’Eglise et le royaume de France au XIVe siécle (1969), 96-7. 170 See e.g. Jean Imbert, La practique tudiciare tant civille que criminelle, lib. I, cc. 24-5 (1602), 83-9; Bernard d’Alteroche, V’Officialité de Paris a la fin de TAncien Régime (1994), 79.

THE CLERGY 511 CRIMINAL CAUSES

Benefit of clergy has never enjoyed a good press among English historians. The procedure used on the ecclesiastical side has been regarded as particularly lamentable. Among others, Maitland described the trial of clerics in the ecclesiastical forum as ‘little better than a farce, and the only full-length study of the subject concluded that the ordinary ecclesiastical trial of a cleric accused of committing a crime was ‘a mockery of justice’.!7! It will not be the aspiration of this volume to reverse that judgment or to defend the system used in England. As Maitland himself showed, the English practice was not even the system for dealing with delin-

quent clerics that the canon law itself endorsed.!72 Where the patience of the church was exhausted, the canons envisioned the possibility of handing them over to the temporal courts for punishment.!73 But this did not occur in England. Nor can it be this volume’s aspiration to trace the process of “secularization, by which the royal judges gradually asserted a greater control over the privilege’s invocation to hinder the punishment of crime.!”4 That subject belongs properly to the history of the English common law. What will be attempted here is a brief description of the canon law itself and the procedure used after a cleric accused of a crime in the royal courts had been ‘handed over’ to his bishop for trial and punishment. Under English criminal law, a cleric accused of a felony was obliged to appear before a common law court and ‘plead his clergy’. By the fourteenth century, it had been established that he would first be subject to an ‘inquest of office’ to determine his guilt. Once that had been done and the inquest had found against him, he would be handed over to the bishop. This procedure diverged fundamentally from what was held by the communis opinio of the canonists.!75 They interpreted the texts as holding that the cleric could not be summoned at all. It was disputed whether he was entitled simply to disregard the process against him, but the privilege to avoid being tried there was established.!7© He could not be compelled to plead in the temporal forum. Any custom to the contrary was invalid. The privilege could not be waived. It was for the church to try him first. If found “incorrigible’ he could be degraded from his orders and then ‘handed over’ to the secular courts for punishment.!77 The English system was something like the reverse of the process envisioned by the canonists. In England, clerics had first to appear in the secular forum, and then they were ‘handed over’ to the spiritual forum. 171 Pollock and Maitland, i. 443, Gabel, Benefit of Clergy (above n. 165), 115. 172 Pollock and Maitland, 1. 454-6.

173 X 5.20.7; Maitland’s depiction of the canon law on this score was attacked as anachronistic by Charles Duggan, “The Becket Dispute and the Criminous Clerks’ (1962) 35 BIHR 1-28, but convincingly resuscitated by Richard Fraher, “The Becket Dispute and Two Decretist Traditions’ (1978) 4 JMH 347-68. 174 See Baker, Spelman Introduction, 327-34. 175 See Julius Clarus, Practica criminalis, quaest. 36, nos. 1—4.

176 Guido Papa, Decisiones, Dec. 450. 177 Julius Clarus, Practica criminalis, quaest. 36, no. 28.

512 CHURCHES AND THE CLERGY The English bishops were willing to work within this system. Whatever their preferences and whatever the canons, they cooperated with it. They sought to make sure this ‘handing over’ to their officers took place, and they regularly appointed special commissioners to ‘claim’ their clerks from judges of the commonlaw courts. It is not clear exactly what role these men played in the king’s courts, since the initiative in claiming benefit of clergy normally came from defendants,

and the royal judges made the final determination of the validity of the claims to clerical status. However, the episcopal commissioners continued to be appointed, even after the process of ‘secularization’ of benefit of clergy in the royal courts was

complete.178 Perhaps their efforts ensured that the cleric would actually be brought to the bishop. The prelates strove to preserve a modicum of independent control over their clergy, and these commissioners may have helped them do so. At least they publicly staked a claim for the bishops. Once ‘claimed’ for the bishop, in any event, the cleric was turned over to the bishop’s control and subjected to a process that could be lengthy. It was not exactly a ‘trial’ before an ecclesiastical

court. Criminous clerks from the royal courts do not figure as defendants in the surviving act books. However, the process to which they were subjected was something more than ‘an empty form favourable to the accused’179 Several stages were routine. First, clerics were placed in the bishop’s prison. A 1261

constitution of Archbishop Boniface required all bishops to provide a prison for clerics accused or convicted of a crime, and some of the English bishops had more than one.18° The church was a ‘pioneer’ in using imprisonment as a penal sanction, and clerics reclaimed from the royal courts would spend some time there. Second, before proceeding with purgation, the English bishops often appointed an inquest, very like the inquests de iure patronatus, in order to inform themselves more fully about the conduct of the man accused. Unlike the inquests in advowson disputes, those used for criminous clerks were made up exclusively of clerics, but the men inquired of were similarly required to have a prior familiarity with the man accused and to conduct an adequate investigation into the facts. They were instructed to say whether the cleric ‘had committed an offence for which he would have suffered cap-

ital punishment if he had been tried by the secular laws’!8! Third, assuming the 178 e.g, commission to John Calverley (Canterbury, 1572), Reg. Matthei Parker, diocesis Cantuariensts,

A.D. 1559-1575 (=39 C. & Y. Soc.; 1933), 991; commission to Francis White and William Gell (Rochester, 1594), KAO, DRb Pa 15, fo. 72; commission of William Maxfeilde (Lichfield, 1602), LJRO,

B/C/20/3, fo. 141. 179 Gabel, Benefit of Clergy (above n. 165), 113. 180 Council of Lambeth, c. 29 in C. & S. I, pt 1, 684; Ralph Pugh, Imprisonment in Medieval England (1968), 134-7; for the canon law development, see generally Gotthold Bohne, Die Fretheitsstrafe in den italienischen Stadtrechten (1922), 1. 232-69. 181 e.g, Case of John de la Fen (London, 1306) in Reg. Baldock (above n. 160), 38: ‘pro quibus deberet

secundum leges seculi si esset laicus ultimo tradi supplicio. This language tracked that of the 1261 constitution. See also the terms of the provision for dealing with Salisbury clerics (c.1389) in Reg. Waltham, no. 31.

THE CLERGY 513 cleric got over this hurdle, the bishops caused a proclamation to be made, asking that any person who wished to object against the defendant’s being admitted to canonical purgation should come forward. If anyone did, he was given the chance to prove the defendant’s guilt—the process known as accusatio under the canon law. This did happen, but not very often. Objectors faced a difficult law of proof. They might even have subjected themselves to the poena talionts if they failed.!82 Most cases moved easily to the fourth stage: canonical purgation. This required the cleric to swear a formal oath that he was innocent of the crime and to find a number of his fellow clerics to swear that they believed his oath to be true. Chapter 12 takes a longer look at it. Compurgation was the normal process used in ex officio proceedings in the English ecclesiastical courts. Here, we may say only that, as in ordinary cases, the great majority of clerics subjected to compurgation passed it. Was this process ‘a farce’, as Maitland and others have thought? Perhaps it was. It was no engine for securing convictions. Did it ‘foster crime and cripple justice’ in medieval England, as a few historians have concluded?!83 Maybe it did. It allowed some men to escape the gallows in return for spending a period of time in the bishop’s prison. Readers may have their own views about this. What ought to be added, if only for the sake of completeness, is that the system left a good deal of discretion with the bishops and they did not just let convicted clerics go free. How long to keep an accused cleric in prison was primarily a matter for them or their officers to decide, although ways of curbing abuses of discretion on their part did exist.!84 But no criminal had a right to “speedy compurgation’ The existence of public scandal against him might also delay the process.185 In theory, the imprisonment might conceivably be for his own lifetime. Mostly, it seems, it was not. Degradation from holy orders would usually have been the preferable result in cases of particularly recalcitrant clerics. That remedy was available to the bishops; under the law of the church, the blood sanctions of the common law were not. The bishops continued to make use of removal from the ranks of the clergy of some of those who had ‘pleaded their clergy’ into at least the second half of the sixteenth century.!8° In the end, however, benefit of clergy remains hard to admire. Duplication in the lists of names of compurgators, some of whom vouched for the honesty of several clerics accused of unrelated crimes,

cannot but raise doubts about the efficacy of the canonical safeguards.18” 182 C.5q.6C. 2. 183 Pollock and Maitland, 1. 455. 184 Morell’s Case (York, 1429), BI, Cons.AB.3, fo. 45v, a causa deliberationis a carcere, seemingly

brought to compel the archbishop to justify retaining Morell. A medieval example is described by A. H. Thompson, “William Beverley, Archdeacon of Northumberland’ in Medieval Studies Presented to Rose Graham, ed. Veronica Ruffer and A. J. Taylor (1950), 216-32. 185 e.g, Case of John Heyroun (London and Canterbury, 1305), LPL, Act book MS. 244, fo. 42Vv, in which ‘intollerabile scandalum’ was said to have arisen. 186 See the many cases in BI, Inst.AB.1, ff. 108 et seg. (1560s). 187 Heath, English Parish Clergy (above n. 165), 132-3; Houlbrooke, Church Courts, 177.

514 CHURCHES AND THE CLERGY A canonist might have said that the English system was at least compatible with the preservation of a special status for the clergy. It amounted to a public recognition of the freedom of the church. If fidelity to the spirit of the canon law is a virtue, the officers of the English church could perhaps have laid claim to that.

Taxation of the Clergy The other great immunity asserted for the clergy by the canon law was a freedom

from taxation by the temporal authorities. On this point the law of the church was emphatic. The clergy could not be compelled to pay taxes to the king or his representatives unless it be with the consent of the pope himself (Sext 3.20.4). To the canonists, the principle was founded upon Holy Writ (e.g. Matt. 17: 26), supported by the ancient canons (e.g. C. 11 q. 1c. 41), and recognized by Roman law itself (e.g. Cod. 1.2(5).5). In England, Magna Carta’s first chapter was thought to give witness to the same immunity from secular taxation; it was a vital part of the freedom guaranteed to the English church. Like much else about this feature of the medieval canon law, Europe’s rulers did not simply acquiesce in this claim. A dispute of the late thirteenth century between Pope Boniface VIII and King Philip the Fair of France has long been the most famous

manifestation of disagreement. In 1296, Boniface excommunicated anyone who imposed, collected, or paid such a tax (Sext 3.23.3). He was ultimately obliged to retreat from that position, however, conceding that Philip might collect taxes from his clergy in cases of evident danger to the realm. He also conceded that Philip should be the judge of when such danger had arisen.!88 Despite this incident and others on a lesser scale, the canon law continued to state the immunity from taxation as the rule of law. The exceptions, which the jurists admitted, did not overturn the principle.

Roughly speaking, the early history of this subject in England ran parallel to developments in France. In principle, the immunity applied, but provincial assemblies of the clergy had granted subsidies in aid of the kings from the early thirteenth century.!89 King Edward I sought to establish his right to tax the clergy and summoned them to come to Parliament so that they could consent to the subsidies he required. The clergy resisted the summons and the tax. They were only partially successful. During the fourteenth century, it became settled that the English clergy had a right to assemble in what became Convocation, meeting separately from the

laity who were brought together in Parliament, if for an equivalent purpose. In 188 The basic source is Pierre Dupuy, Histoire du Différend d’entre le pape Boniface VIII et Philippe le Bel (Paris, 1655); the dispute is well summed up in Brian Tierney, The Crisis of Church and State 1050—1300 (1964), 172-9.

189 See generally Swanson, Church and Society, 110-21; Kemp, Counsel and Consent (Ch. 3, n. 28); Weske, Convocation of the Clergy.

THE CLERGY 515 their own assembly, the clergy would consent to taxation. Sometimes the pope’s consent was sought; sometimes it was not.19° The canon law allowed the clergy to make gifts from their property, so long as the gifts did not injure the patrimony of the church and so long as they were made ‘voluntarily by [the clergy’s] own free and unconstrained will’.!9! This distinction offered the possibility of reconciling their actions with the tenets of their law.

In all events, the English clergy regularly made grants to the Crown in Convocation.!92 Indeed, it became Convocation’s main function, though grants were often coupled with clerical demands for the improvements in the status of the church. The right of the lower clergy to tax themselves in Convocation was given up only after the Restoration in 1664.19 This subject belongs mostly to the history of constitutional principle or that of taxation, not to the humbler study of the ecclesiastical courts. Not entirely, however. The spiritual courts were a resource for the collectors of the clerical subsidies. Collecting taxes has usually required the sort of coercion provided by courts of law, and taxation of the English clergy does not provide a counter-example. The

courts offered a forum for collection, and the clergy were compelled to appear there and either to pay or plead a special immunity.!94 The proceeds might go both to the king and to the pope.!9> Sequestration of the cleric’s benefice was a possible consequence of failure to pay.19°

Discipline of the Clergy Study of prosecutions brought to discipline the clergy puts the attitudes and the actions of the bishops and their courts into a revealing, and slightly different, light than taxation or benefit of clergy. In the latter two cases, they may have violated the letter of the canon law, but they sought to preserve as much of its purpose as they could. Here, by contrast, they may have complied with the letter of the canon law,

but they did not follow its spirit. The canon law’s goal was to separate clergy from laity in all criminal and disciplinary matters. The principle was stated clearly 190 See e.g. the detailed papal orders about taxation (1330) in Literae Cantuarienses (above n. 27), 1,

no. 315. 191 Squillante, De privilegiis clericorum (above n. 153), cap. VIII, dub. 1, no. 68. 192 See A. K. McHardy, ‘Clerical Taxation in Fifteenth-Century England: The Clergy as Agents of the

Crown’ in The Church, Politics and Patronage in the Fifteenth Century, ed. Barrie Dobson (1984), 168-92; Jeffrey Denton, “Walter Reynolds and Ecclesiastical Politics 1313-1316’ in Church and

Government, 247-74. 193 Kemp, Counsel and Consent (above n. 189), 166. 194 See e.g. Frick, Queen’s collector c. Mallet, Vicar of Halesowen (Worcester, 1588), WORO, Act book 794.011 BA 2513/4, p. 196; Marchant, Church under the Law, 66. 195 e.g, Subsidy of 1330 in Literae Cantuarienses (above n. 27), i, no. 315.

196 Clement Colmore’s book (c.1605), DUL, DDR/XVIII/3, fo. 63 (sequestration ordered ‘eo quod rectores et vicarii non solverunt subsidium domino regi’).

516 CHURCHES AND THE CLERGY and repeatedly in the canons. Laymen were not permitted to bring criminal accusations against the clergy (X 5.1.10). Neither were they permitted to act as witnesses against the clergy in criminal cases (X 2.20.14). Three reasons for the prohibitions were commonly advanced.197 Laymen could be presumed to be acting out of enmity in bringing an accusation, and a person’s enemies were disqualified from so acting. Laymen should also be taught to revere their pastors as spiritual fathers, and permitting them to bring criminal charges would do the reverse. In addition,

a distance should be maintained between the two orders; allowing them to mix indiscriminately in the criminal arena would encourage confusion and contention between the orders. Hence the disqualification. To the rule there were two main exceptions. One was that if a layman was prosecuting an injury to his own interests, he could bring a criminal accusation against a cleric. It would have gone too far, for example, to prohibit a layman from prosecuting theft of his goods simply because the thief was in holy orders. The other was that if one of the crimina excepta were involved, the prohibition did not apply. Some crimes were regarded as so heinous (for instance heresy or simony) that the laity were allowed, perhaps even encouraged, to bring them into the light of day.

However, otherwise, the rule stood. It was not that the canonists regarded the clergy as likely to be without faults. They did not read the law as allowing clerical immunity from any criminal prosecution. It was rather that the law required the prosecutions to be undertaken within the clerical order itself. Turning from the commentaries to the pages of the court books of the English church produces a very different picture. Some causes were the product of official initiative—official prosecutions against apostate monks, for example.!%8 But, in reality, the laity took a prominent part in the prosecution of most of the clerics who appeared before the courts charged with ecclesiastical offences. What is more: so far as the records tell the truth, few objections to participation by the laity in these prosecutions were raised in practice. When objection was made, it did not prevent a disciplinary action from going ahead.!99 This result may seem strange. But the evidence is there. The act books did not bother to disguise the source of complaint. Prosecutions against clerics were begun ‘by the parishioners of the parish of Milwich, or “by the inhabitants of the village of Temple Sowerby, or “by John Crouch and Stephen Smyth’2° 197 See e.g. Panormitanus, Commentaria ad X 5.1.10, nos. 6-7. 198 e.g. Ex officio c. Johnson (Canterbury, 1474), CCAL, Act book Y.1.11, fo. 343: ‘notatur de et super apostasia. See generally Logan, Runaway Religious (Ch. 2, n. 116) 131-5. 199 Ex officio promoto Fletcher c. Spencer (York, 1596), BI, Chanc.AB.1, fo. 64v, in which it was objected that the promoter was “mere laicus’ and without other interest in the matter, but at fo. 65v, the

cause continued none the less. 200 Defendants were: Rawlyn, their vicar (Lichfield, 1465), LJRO, Act book B/C/1/1, fo. 47; Wherton, their rector (Carlisle and York, c.1487), BI, CP.F.260; Stavelley, their vicar (Rochester, 1439), KAO, Act book DRb Pa 1, fo. 114.

THE CLERGY 517 The cases begun by parishioners that are found in the act books can be divided into three substantive categories. Some involved the sacraments; some admin-

istration of church property; and some personal conduct. There are many to choose from in each category. Lengthy recitals of cases involving misbehaving clergy are, however, apt to be more entertaining than enlightening, and a few words about each must suffice to make the legal point. In all of them, laymen were being allowed to invoke the church’s disciplinary jurisdiction, and the clergy were being called before the courts to give an account of their conduct. A common example of the first was the prosecution brought for refusal to administer the

sacraments to a parishioner. They became particularly common after the Reformation, as in withholding the communion chalice from the laity or refusing altogether to admit them to receive the sacrament.?°! An earlier example is a 14.47 case brought against the vicar of Malling in the diocese of Rochester. Asked to come to the bedside of Thomas Draper to administer the Eucharist and extreme unction, he went instead to a tavern with a widow named Joan Sandhurst, saying that Draper was sure to live to the next day. Draper did not, and the vicar found himself the defendant before the consistory court.29 Most complaints that fell within the second category involved harm to the parsonage or church itself.2°3 Removing lead from the chancel roof and replacing it with inferior tiles is one example.2°4 However, some causes, like a 1467 dispute from the parish of Wisbech in Cambridgeshire, were about whether the parson

had wrongfully appropriated chattels from the churches over which they had charge. The vicar had taken two surplices; the churchwardens claimed they belonged to the parish, not to him.?° So they sued him. The third category was dominated by sexual misconduct, such as the clergyman who (it was alleged) ‘lived so dishonestly that he sends no woman away unviolated 2°

201 Ex officio c. Mackworth (Peterborough, 1586), NRO, Correction book 21, fo. 4; some raised points of pastoral discipline; e.g. Ex officio c. Gifford, Vicar of All Saints (Archdnry Essex, 1584), ERO, Act book

D/AEA 12s.d. 5 Apr.: the defendant was summoned, ‘ad dicendum causam quare recusavit admittere prefatos Johannem Lovekin et Willelmum Loughborow ad receptionem Eucharistie’. 202 Ex officio c. Vicar of Malling (Rochester, 1447), KAO, Act book DRb Pa. 2, fo. 62. See also Ex officio c. Vicar of Hollingbourne (Canterbury, 1451), CCAL, Act book X.1.1, fo. 27: “dimisit vicariam suam inof-

ficiatam et in defectu eius puer Thome Totman iacuit per 1 dies non baptizatus’; Ex officio c. Hay (London, 1481), GL, Act book MS. 9064/2, fo. 209: ‘recusavit ministrare sacramenta...ex cuius negligencia dicta Johanna obiit sine receptione sacramentorum. 203 e.g, Ex officio c. Hamond (Hereford, 1442), HFRO, Act book O/2, p. 67; Ex officio promoto c. Twys (Lichfield, 1468), LJRO, Act book B/C/1/1, fo. 216v; Ex officio c. Brown (Canterbury, 1470), CCAL, Act book Y.1.11, fo. 110. See also the tables and commentary in Bowker, The Secular Clergy (above n. 28), 110-54.

204 e.g, Ex officio c. Incumbent at Hollingbourne (Canterbury, 1408), CCAL, Act book X.8.1, fo. 43Vv. 205 Presentment of Parish of Wisbech (Ely, 1467), CUL, EDR Liber B, fo. 26. 206 Ex officio c. Hag (London, 1489), GL, Act book 9064/2, fo. 206v: ‘inhoneste vivit quia nullam fem-

inam dimittit inviolatam’.

518 CHURCHES AND THE CLERGY And there was a great deal more. The act books contain allegations of consistent drunkenness,?°” sodomy,”°8 simony,?° “public hunting}?!° revealing secrets learned in confession,?!! failing to catechize the youth of the parish,?!2 not wearing a surplice,?3

leaving consecrated hosts unprotected,?!4 holding incompatible benefices,?!5 and habitual non-residence.?!° Failure to provide church services was a particularly common complaint.?!’ It appears even to have been possible to sue for failure to provide due clerical hospitality.2!8 Complaints like these were all being brought before the courts at the initiative of the laity.219

The court records also sometimes put disciplinary matters like these under more general headings, as in causes brought for “causing dissension among the parishioners 22° or proceedings initiated ‘for the correction of the soul’ of the cleric.221 Just how these clerical souls needed correction or what the dissension had been, the formal records do not always say. One assumes greater specificity would have been required at trial. But it is evident in any event that parishioners were complaining about one sort of failing or another on the part of their own clergy, finding fault with men for ‘acting more like peasants than priests.222 The results were legal prosecutions to discipline the clergy, sometimes probably to

frighten them into self-correction, sometimes with the aim of having them declared to have incurred canonical irregularitas,223 even sometimes to force their

207 Ex officio c. Goodgam (Winchester, 1523), HRO, Act book 21M65/C1/2, fo. 8: ‘super delicto ebrietatis” 208 Ex officio c. Benet (York, 1401), BI, D/C.AB.1, fo. 21: “commisit peccatum sodomiticum cum diver-

sis hominibus eiusdem ville’; Ex officio c. Rector of Borden (Canterbury, 1408), CCAL, Act book X.8.1, fo. 44v: ‘notatur de gravi vicio sodomitico cum serviente’. 209 Ex officio c. Eaton (Chester, 1601), CRO, Act book EDC 1/32, fo. 15: a charge made “‘iuxta presen-

tationem gardianorum eiusdem parochie’. 210 Ex officio c. Barton (York, 1464), BI, Act book D/C.AB.1, fo. 172. 211 Ex officio c. Loke (Canterbury, 1469), CCAL, Act book Y.1.11, fo. 57v: ‘notatur quod revelavit con-

fessionem Agnetis filie sue spiritualis’. 212 Ex officio c. Hammond (York, 1619), BI, V.1619, fo. 9. 213 Ex officio c. Rowson (York, 1619), BI, V.1619, fo. 63.

214 Ex officio c. Dernar (Archdnry St Albans, 1520), HTRO, Act book ASA 7/1, fo. 23. 215 Ex officio c. Aunswell (Hereford, 1517), HFRO, Act book O/27, pp. 93-4. (1517). 216 Churchwardens of Pedewel c. Pedewich (Bath and Wells, 1459), SRO, Act book D/D/Ca 1, p. 296:

‘causa non residencie. 217 See John Addy, Sin and Society in the Seventeenth Century (1989), 20-45. 218 Ex officio c. Abel (Archdnry Colchester, 1540) ERO, Act book D/ACA 1, fo. 138v. 219 See also the many examples in Hale, Proceedings, index, s.v. Clerical Misconduct.

220 Ex officio c. Pecok (Canterbury, 1514), CCAL, Act book Z.3.3, fo. 6v: “de communi rixatione et litium suscitatione inter parochianos et pomposa ostentatione in locis mercati’. 221 e,9, Ex officio c. Spake (Lichfield, 1464), LJRO, Act book B/C/1/1, fo. 5: “causa correctionis animae

domini Thome Spake rectoris ecclesie parochialis de Crayton Basett ex officio ad promotionem Roberti Gilson de eadem parochia’. 222 Ex officio c. Kay (Archdnry St Albans, 1515), HTRO, Act book ASA 7/1, fo. 5v: ‘laborando tam ante

missam quam post ad instar rustici potius quam presbiteri’. 223 e.g Ex officio c. Astowe (Winchester, 1525), HRO, Act book 21M65/C1/2, fo. gov.

THE CLERGY 519 deprivation under the rubric of a causa privationis,?24 although most disputes were settled by negotiation well short of that.225 At first sight, all the cases described seem to have violated the church’s prohibitions against accusation of clerics by laymen. However, justifications of what happened were also possible under the existing law. It might have been argued that the English courts were doing no more than giving a broad reading to the category of the ‘interest’ the parishioners held under the canon law. Such prosecutions were

part of a more general intellectual effort to define crimina publica broadly, and thereby open up the number of competent accusers.22© Moreover, parishioners had

a rightful claim to adequate spiritual ministrations under the canons, and the courts were allowing them to assert it by prosecuting clergy who denied it to them. Thus, existing exceptions to the rule might apply. A second reading is also possible. It could have been said that the canon law prohibited only bringing an accusatio

against a man in holy orders. In formal terms, most (though not all) of these prosecutions were brought ex officio by the courts; the parishioners complaining were merely reporting the public fame necessary to initiate formal proceedings against the cleric involved. The history of the canon law has known many such distinctions, and perhaps this was one. Whatever the rationale chosen, the legal justification should not obscure the reality: laymen were being allowed to bring the clergy to book. Of course, all this activity was occurring in an ecclesiastical forum. From the church’s point of view, it would have been far worse to have the clerics tried before a lay court. Perhaps recognition of this alternative opened the bishops’ courts to what might otherwise have been a violation of the canon law. One observation remains to be added; it builds on the point just made. It also builds on the considerable quantity of recent historical studies showing the immediacy of the laity’s interest in religion and the church.??” The older supposition— that the laity were discontented by the religion offered to them during the later

Middle Ages—has been discredited by recent scholarship. The prosecutions brought by the laity against the clergy add support to the conclusions of these studies, in particular those prosecutions brought to secure spiritual ministrations. English men and women would not have spent the time and resources necessary 224 e.o. Ex officio c. Ludlow (Lichfield, 1464), LJRO, Act book B/C/1/1, fo. 5v: “causa privationis domini Thome Ludlow... ex officio et ad promotionem parochianorum ibidem’; Ex officio promoto c. Lewes (Bath and Wells, 1528), SRO, Act book D/D/Ca 2, p. 56. 225 In a 1527 letter to Cardinal Wolsey, Richard Fox (d. 1528), successively bishop of Exeter, Durham, and Winchester, himself claimed that he had never deprived a man in the more than forty years he had been a bishop. See Letters of Richard Fox, 1486-1527, ed. P. S. Allen and H. M. Allen (1929), 151. 226 See Fournier, Les Officialités (above n. 15), 236-7.

227 e,¢, Duffy, Stripping of the Altars (Ch. 3, n. 39); Gervase Rosser, “Parochial Conformity and Voluntary Religion in Late-Medieval England’ (1991) 1 TRHS (6th ser.) 173-89; The English Reformation Revised, ed. Christopher Haigh (1987), esp. 209-15.

520 CHURCHES AND THE CLERGY to bring them before the courts had they been indifferent to church and clergy. It is obvious from the court records that spiritual services were something many of them cared about. In another respect, however, the court books do not support the findings of recent scholarship. It has concentrated on the later medieval period. Sometimes expressly, sometimes by implication, it has contrasted the vitality of that period with the barely concealed resistance to reformed religion on the part of the laity after the Reformation. The evidence of the act books does not fit the second part of the argument. The concern crossed the Reformation divide.?28 To judge by the evidence of the court records, most English parishioners cared as much about church and clergy in 1600 as they had in 1500. They valued spiritual ministrations in both times. It would probably be closer to the mark, at least if one sticks to the world of law, to conclude simply that the canon law’s effort to create a pervasive separation between the spheres of clergy and laity was not a success. At least, it failed of acceptance among large groups of English men and women. Of course, some laymen may have been indifferent to religion and the legal jurisdiction that went with it. Some may even have supported the separation of the two orders called for by the canon law. The first is hard to judge when almost all the surviving evidence comes from the articulate members of society. However, most of the relevant evidence that does

survive demonstrates the ex animo involvement of the laity in the law of the church. In the patronage that was in lay hands, in rejection of the privilegium fori in civil cases, in acceptance of customary ecclesiastical jurisdiction over many temporal subjects, in the prosecutions undertaken by the laity to secure an adequate level of religious ministration in their parishes, that theme runs like a leitmotif through the records. Designed for the clergy the canon law may have been. But in England, as may well have been true also in many parts of the Continent, the laity was unwilling to accept fully the exclusionary implications of this principle. The English clergy succeeded in a measure in carving out a separate sphere for itself in the laws of jurisdiction and taxation. But the idea had a more limited success in the initiation and exercise of disciplinary jurisdiction over the clergy. 228 See e.g. the many examples in Scott Wenig, Straightening the Altars (2000), 255-60.

10

Marriage and Divorce ‘e} the areas of law described in this volume, none has been studied with the industry and attention to the realities of human life that has attended recent scholarship on the history of the law of marriage in England.! The results have materially changed the ways historians approach the subject. For the better. Anyone who

takes enough interest in the law of marriage’s past to have worked through the books and articles written on the subject will actually find it difficult to recreate the situation that faced historians fifty years and more ago. Then, historians were obliged to guess about what happened in practice. They guessed on the basis of the formal law, a few causes célébres, and their own assumptions about human behaviour. To be sure, some of the earlier guesses proved to be quite accurate. Maitland concluded that the church’s law produced harm as well as good. It made contracting marriages too easy and proving them too difficult.2 Other conjectures have proved less accurate. A standard account written in the early 1950s assumed that divorces based on the prohibited degrees of affinity and consanguinity were easy to arrange and were often obtained in fact.3 Both were reasonable enough conclusions on the basis of the available evidence. However, examination of the court records shows that the first was prescient; the second mistaken.

Two other, slightly different, points about the history of marriage law were broadly agreed then and have remained so since. The record evidence has amply 1 Among the scholarship about marriage relating to practice in the English spiritual courts: Carlson, Marriage and the English Reformation (Ch. 4, n. 129); Cressy, Birth, Marriage, and Death (Ch. 8, n. 130), 233-376; Select Canterbury Cases, introd., 81-8; P. J. P. Goldberg, Women, Work, and Life Cycle in a Medieval Economy (1992), 203-66; Helmholz, Marriage Litigation (Ch. 3, n. 293); Houlbrooke,

Church Courts, 55-88; Ingram, Church Courts; Diana O’Hara, Courtship and Constraint: Rethinking the Making of Marriage in Tudor England (2000); Frederik Pedersen, Marriage Disputes in Medieval England (2000); Michael Sheehan, Marriage, Family, and Law in Medieval Europe: Collected Studies, ed. James

Farge (1996). For the broader history of the subject, see Christopher Brooke, The Medieval Idea of Marriage (1989); James Brundage, Law, Sex, and Christian Society in Medieval Europe (1987); John Witte, Jr., From Sacrament to Contract. Marriage, Religion, and Law in the Western Tradition (1997). 2 Pollock and Maitland, 11. 381. 3 Joseph Jackson, The Formation and Annulment of Marriage (1951), 17-18; Reginald Haw, The State of Matrimony (1952), 42-3; see also Keith Thomas, ‘The Double Standard’ (1959) 20 Jnl History of Ideas 195-216, at 200.

522 MARRIAGE AND DIVORCE confirmed both of them, even though in some measure they do appear to contradict each other. The first is that in England judicial competence over matrimonial litigation belonged to the church, and that this competence was widely accepted. The canon law proclaimed the exclusive jurisdiction of its judges over substantive matrimonial questions (X 4.14.2), and the English royal courts did not contest this claim. Already in the twelfth century, they were deferring to the decisions of the bishops where the validity of a particular marriage became an issue in litigation, usually involving succession, brought before them.* The English church succeeded in maintaining its jurisdiction over marriage until

long after the period covered by this volume. Left open to debate, agreement, and change over time were some of the ‘accessory causes’ that surrounded marriage—for example, disputes over gifts made in consideration of marriage or questions of illegitimacy. However, the large-scale encroachment on the church’s jurisdiction over matrimonial causes, such as occurred in France, did not occur in England.5

The second point is that, despite its recognized judicial competence, the church’s rules about marriage did not command the obedience of large numbers of ordinary men and women. The requirement of solemnization of marriages in facie ecclesiae, the rule that words of present consent without consummation made an indissoluble marriage, the prohibition of concubinage, the exclusion of private settlement of disputes about marriage, perhaps even the full extent of the kinship disqualifications—all stated in the canon law—took centuries to work their way into popular mores. Roman and Germanic traditions, which had treated questions of marriage formation as private matters, seem almost to have lived on, long after the formation of the classical canon law on marriage and its implementation in court practice.® The tension between these two points seems obvious. But detailed regulation of the most personal of human relations, which the church’s law attempted, will meet with resistance in every age. It may even be true that popular attitudes are always somewhat out of step with the formal law of marriage and divorce. No 4 Glanvill, lib. VII, cc. 13-14; Bracton, fo. 407b. 5 A. Esmein, Le Mariage en droit canonique (1891, repr. 1968), i. 33-46; Jean-Pierre Royer, L’Eglise et le royaume de France au XIVe siécle (1969), 176-88. © See Georges Duby, Le Chevalier, la femme et le prétre: le marriage dans la France féodale (1981); id., Medieval Marriage. Two Models from Twelfth-Century France, trans. Elborg Forster (1978) treats the question in terms of competing “models; the one lay, the other ecclesiastical. The approach is perhaps

taken too directly from economic literature. However useful models are, economists do not suppose that they fully describe the complexities of human motivation and behaviour. See Milton Friedman, Essays in Positive Economics (1953), 24-30. However, the works contain a valuable perspective on some of the problems with which the ecclesiastical courts had to deal. For reasoned assessment and criticism of Duby’s approach, see David Herlihy, “The Family and Religious Ideologies in Medieval Europe’ in Family History at the Crossroads, ed. Tamara Hareven and Andrejs Plakans (1987), 3-17, at 7; Brooke, The Medieval Idea of Marriage (above n. 1), 119-43.

MATRIMONIAL CONTRACTS 523 principled disagreement with the church’s authority (or the state’s) is necessarily to be implied from it. Whatever may be the truer story, no ‘victory’ by the church over the disharmony that existed between law and fact was achieved in the period covered by this book. Continuing lack of harmony is significant for more than the historian tracing the history of popular ideas about the marriage bond. It stood behind a large part of the litigation it is the task of this chapter to describe.

MATRIMONIAL CONTRACTS As was true elsewhere in Europe, questions about the formation of marriage provided the chief source of matrimonial litigation that was brought before the English ecclesiastical courts. When a dispute came to litigation, the normal question was not whether a couple were entitled to a divorce, in which they sought a declaration that their marriage had been invalid. It was whether they had contracted a valid marriage in the first place. Young men and women, at least the young men and women who became litigants before the ecclesiastical courts, often entered into a matrimonial contract before any solemnization of their union had taken place in church. In most cases, they had not secured publication of banns. Sometimes only a few witnesses had been present at their agreement; sometimes none at all. Couples entered into these informal unions in a variety of circumstances and with a variety of motives— some admirable, some not so admirable, some quite contrary to the law of the church. It was this kind of union that sometimes ended in a legal contest. A private contract was the source of a valid and enforceable obligation under the canon law. It was not even always a formal violation of the law. The church sought to ensure the publication of banns and solemnization in facie ecclesiae, but even the clergy would sometimes advise couples to enter into an informal marriage contract, reasoning that a contract made before witnesses somehow added to ‘the honour of marriage’ or that it was a prudent step, because (for instance) one of the parties meant to be absent for a long time before solemnization.’” The parties to

these contracts thus might not have been ignoring the law. The law itself was ambiguous. Respectable opinion among the canonists held that the Council of Trent’s decree Tametsi invalidated only clandestine marriages, not clandestine spousals.§ Such agreements made a natural conclusion of marriage negotiations,

and they were sometimes resorted to even before negotiations had reached finality.? Because of this habit, the contracts entered into turn up under a variety of 7 The expression is taken from William Gouge (d. 1653), as quoted in Cressy, Birth, Marriage and Death (above n. 1), 269; an illustrative case, in which a contract was entered into before a long absence at sea, is: Ex officio c. Blake and Comes (London, 1599), GL, Act book MS. 9064/15, fo. 14. 8 Sanchez, De matrimontts, lib. I, disp. 12, no. 2. 9 See Ingram, Church Courts, 195-6; Shannon McSheffrey, Love and Marriage in Late Medieval London (1995), 9-10, describing the process as ‘a series of ever-widening circles of publicity about the marriage’.

524 MARRIAGE AND DIVORCE forms—some legally binding, some legally questionable, some either so indefinite or so unprovable as to amount to little more than a hope on behalf of one of the parties to them. Understanding the consequences of these contracts, and the reasons for their prevalence in practice, requires some knowledge of the canon law.

The Canon Law of Marriage The canon law arrived at its definition of a valid and indissoluble marriage only in the course of the twelfth century. Rejecting Gratian’s formulation, which had taken the view that marriage was initiated by consent and made indissoluble by consummation (d. p. C. 27 q. 2, c. 34), Pope Alexander III upheld the opinion of Peter Lombard: a full matrimonial union was created by the exchange of words of present consent (‘I take thee, N’). Words of future consent (‘I shall take thee, N’) created only a contract to marry later on, and although there were some circumstances in which its specific enforcement might be ordered, it would create an indissoluble marriage only if followed by consummation (X 4.1.15). The consent of the parties was all that mattered to the question of a union’s validity. A public ceremony, marriage gifts, consent of parents, permission of a lord, endowment of the woman, publication of banns, and the presence of a priest were all, strictly speaking, irrelevant to that question. Or rather, they were relevant only in so far as they shed light on the central question of whether a man and woman had given their present consent to take each other as husband and wife. This is not to say

that the law of the church denigrated the other questions. Indeed, it did the reverse. The canon law proclaimed that marriages should be preceded by publication of banns and should be conducted 1n facie ecclesiae (X 4.3.3). Couples could be disciplined if they ignored these rules. Some were.!° They were required to do public penance for flouting the law. But marriages contracted by words of present consent, no matter how clandestine, were valid and enforceable in the courts of the church provided that they could be proved. The merits of the church’s definition of marriage have been variously estimated. Some have regarded it as an important step in promoting the value of freedom in making personal life choices; a few have regarded it as ‘rent seeking’ on the part of church officials anxious to profit from the litigation that inevitably ensued.!! Most, however, have been less sure. Maitland thought it ‘no masterpiece

of human wisdom, concluding that it left marriages, ‘or what looked like 10 e.g, Ex officio c. Rye and Pimyl (Canterbury, 1395), CCAL, Act book U.40, ff. 41v—42, a prosecution

for solemnizing a marriage outside their parish church. 11 Sheehan, Marriage, Family, and Law (above n. 1), 259-60; Robert Ekelund, Robert Hébert, Robert Tollison, Gary Anderson, and Audrey Davison, Sacred Trust. The Medieval Church as an Economic Firm (1960), 99-104.

MATRIMONIAL CONTRACTS 525 marriages, exceedingly insecure.!2 Alexander III’s decision could make everything depend upon fine distinctions in language that were quite out of line with the way most people, let alone lovers, actually spoke. By contrast, some recent research has reached a more favourable conclusion. Admitting its imperfections, Alexander IITs resolution had the merit of recognizing a higher good of freedom in marriage.}3 It has even been concluded that, during the Middle Ages and afterwards, the laity ‘embrace[d]| the certainty and security’ of the church’s matrimonial law.!4

It will not be the concern of this chapter to attempt a synthesis or to reach a conclusion on the merits. The question probably cannot be answered. However, it may be said with assurance that the canon law on the subject created an intellectual feast for the canonists. From the thirteenth century onwards, they considered at length whether words like ‘I will marry no one else but thee, N’ constituted words of present consent, future consent, or were instead merely expressions of the speaker’s current frame of mind. They reached no certain conclusion. The early canonists said, for example, that some words which looked like future consent at first sight (e.g. ‘I will have thee as my spouse’) might ‘signify execution of a past act’ and hence create a presumption that a valid marriage had been contracted.15

However, they added, that presumption might be overcome if there was good evidence to the contrary, factors indicating only an intent for the future. Their successors four centuries later were still debating the same problems, and they were reaching conclusions no more definite.!© Thomas Sanchez (d. 1610), the Spaniard whose treatise became the standard resource on Catholic marriage law, went over the identical ground, even though the Tridentine decree Tamets1, which

required the presence of the parish priest to make a marriage valid, might be thought to have made the medieval learning irrelevant as a matter of practice. The assumption underlying all this was that the exchange of words should be treated as part of the law of contracts and be interpreted accordingly. This was an entirely natural thing to assume. Since a purpose of the law was to give effect to the intention of the parties, the law of contract was the most obvious way of thinking about the law of marriage. It brought with it rules about the age requisite for contracting marriage, the degree of compulsion that would render a marriage contract voidable, the possibility that conditions could be added to contracts, and the kind of error that would go to the heart of a contract. Learning about different kinds of contracts of marriage would come to fill many pages in canonical treatises. In the late 12 Pollock and Maitland, 11., 368. 13 e.g. Brundage, Law, Sex, and Christian Society (above n. 1), 331-7. 14 Pedersen, Marriage Disputes (above n. 1), 177. 15 See e.g. Geoffrey of Trani, Summa super titulis Decretalium, lib. IV, tit. De sponsalibus, nos. 14-16;

for fuller investigation: Menochius, De praesumptionibus, lib. III, praes. 3, no. 3.

16 Compare Hostiensis, Summa aurea, lib. IV, tit. De matri., no. 13, with Thomas Sanchez, De matrimonts, lib. VI, disp. 22, no. 7.

526 MARRIAGE AND DIVORCE sixteenth century, Henry Swinburne would add to this literature for an English audience, providing abundant citations to the opinions of his predecessors in the margins of his treatise on spousals.!” At first sight, few aspects of the work of schools appear more curious than their endless quibbling about tiny differences in possible forms of matrimonial consent. Their fine points have often proved quite repellent to students of the history of marriage. Who can blame them? What can be said on the other side is that a great many of the same points turn out to have arisen in practice.

Enforcement of Matrimonial Contracts The circumstances under which a causa matrimonialis might be initiated in the English ecclesiastical courts varied considerably. So did the legal issues involved. In all of them, however, the stated object was to have a marriage contract specifically enforced. They were not primarily damage actions for breach of contract— what a later age would call breach of promise. No doubt some cases were settled in return for a money payment, despite the canon law’s prohibition against compromise in matrimonial litigation (X 1.36.11), and some causes were also given up

by the plaintiff in the course of litigation. However, a larger percentage went through to a definitive sentence than happened in the other areas of ecclesiastical competence, perhaps because of the obvious importance for the parties of having a final decision. More than money was at stake, although control of family property no doubt also lurked behind many of the marriages that were disputed. So far as we can tell, the pattern of English litigation during the Middle Ages was broadly similar to that which prevailed in other parts of the Western church.!8

17 Henry Swinburne, A Treatise of Spousals or Matrimonial Contracts (1686). 18 See e.g. Monique Vleeschouwers-Van Melkebeek, ‘Self-Divorce in Fifteenth-Century Flanders:

The Consistory Court Accounts of the Diocese of Tournai’ (2000) 68 TRG 83-98; Jean-Francois Poudret, “Procés matrimoniaux a la fin du XIVe siécle selon le plus ancien registre de lofficialité de Lausanne’ (1992) 86 Zeitschrift fiir schweizerische Kirchengeschichte 7-46; Chiara Valsecchi, ““Causa matrimonialis est gravis et ardua”: Consiliatores e matrimonio fino al Concilio di Trento’ (1999) 2 Studi di storia del diritto 407-580; Martine Charageat, “Typologie des procés canoniques matrimoniaux a Saragosse (XV—XVI)’ in Sinodos diocesanos y legislacion particular, ed. Jaime Justo Fernandez (1999), 217-32; Isabel Falcén Pérez, “Procesos por causas matrimoniales en Zaragoza en la Baja Edad Media y

Primer Renacimiento’ (1994) 9 Aragonia Sacra 209-52; Arthur Cosgrove, “Marriage in Medieval Ireland’ in id., Marriage in Ireland (1985), 25-50; Lucia Ferrante, ‘Il matrimonio disciplinato: Processi matrimoniali a Bologna nel Cinquecento’ in Disciplina dell’anima, disciplina del corpo e disciplina della societa, ed. Paolo Prodi (1994), 901-27; Lefebvre-Teillard, Les Officialités, 147-206; Thomas Safley, Let No Man Put Asunder (1984); Beatrice Gottlieb, The Family in the Western World (1993), 68-88. They were not, however, identical; see Charles Donahue, Jr., “The Canon Law on the Formation of Marriage

and Social Practice in the later Middle Ages’ (1983) 8 Jnl Family History 144-58; Christine Meek, ‘Women, the Church and the Law: Matrimonial Litigation in Lucca under Bishop Nicolao Guinigi (1394-1435) (1995) 19 Historical Studies Irish Conference of Historians) 82-90.

MATRIMONIAL CONTRACTS 527 SIMPLE CONTRACTS

The causae matrimoniales found in the records of the courts were begun for several reasons. Some were brought to secure authoritative interpretation of the words of a contract, as in a sixteenth-century case from the north of England, in which the alleged words were: ‘I, John, take thee, Agnes, to my handfast wife.!9 The legal question was whether addition of the word ‘handfast’ meant the contract was only one of future consent. In a case from the south from a few years later, the words had been ‘I will never forsake thee, followed by a kiss.2° The legal question was whether these words necessarily referred to marriage. Variants of the word volo (I wish or I will) also gave rise to numerous difficult cases. Would it make a difference, for example, if the couple had said ‘I wish to take thee, as opposed to ‘I wish to have thee’? This was a matter on which the canonists themselves disagreed.?! Some matrimonial causes were brought to overcome the opposition of family and friends. One such case, heard in York in the fourteenth century, has actually

attracted a small degree of notoriety among historians. Known as the case of ‘Romeo and Juliet of Stonegate’, because an oral contract was allegedly made near there while one of them was on the ground and the other on a balcony, the case

involved resort to an ecclesiastical court by a strong-minded girl determined to enforce a marriage contracted against the wishes of her parents.22 The church’s law, permitting young men and women to enter into indissoluble marriages privately, seems almost to have been designed for young people eager to escape the forces that hindered free choice in marriage.?3 Some matrimonial causes were brought to force the other to live up to the obligations of having contracted marriage, where for one reason or another the other party refused to go ahead. The reasons commonly given show how far the laity was from accepting a simple contract as equivalent to a true marriage. For example, a young girl in London confessed that she had once loved a young man who was claiming to have contracted with her, but she had ceased to do so when

she discovered how prodigal he was with his own goods.24 She was therefore 19 Browne c. Alleson (Carlisle, 1573), CBRO, Act book DRC 3/2, fo. 2. The defendant admitted the words; no sexual relations had followed. The judge absolved the defendant. 20 Coomes c. Hickman (Archdnry St Albans, 1594), HTRO, Deposition book ASA 8/7, fo. 7v; the judge continued the case sub spe concordie, in ASA 7/17, fo. 1. 21 They are reviewed in Helmholz, Marriage Litigation (above n. 1), 36—40. 22 Huntyngton c. Munkton (York, 1345-6), BI, CP.E.248. The couple was so called by Canon Purvis, founder and then archivist of the Borthwick Institute, and the name has stuck. See Pedersen, Marriage Disputes (above n. 1), 25-58; id., ‘Romeo and Juliet of Stonegate’: A Medieval Marriage in Crisis (1995); Charles Donahue, Jr., “The Policy of Alexander the Third’s Consent Theory of Marriage’ Proc. Fourth International Congress of Medieval Canon Law, ed. Stephan Kuttner (1976), 251-81, at 267-9. 23 See Martin Ingram, “Spousals Litigation in the English Ecclesiastical Courts, c.1350—-c.1640° in Marriage and Society, ed. R. B. Outhwaite (1981), 35-57, at 56; Goldberg, Women, Work and Life Cycle

(above n. 1), 246-7. 24 Beucham c. Cecilia (London, 1491) in Hale, Proceedings, no. 93.

528 MARRIAGE AND DIVORCE unwilling to proceed, and she resisted his suit to enforce the marriage contract. Many things could intervene, such as the discovery of prohibited degrees of kinship, the failure of parents to make a gift upon which the prosperity of the couple depended, or the revelation of unpleasant facts about the other party’s character.?5

In one case, a man said honestly that he refused to take up residence with the woman with whom he had contracted orally, “because he thinketh she doth not love him’6 It was the fate of a considerable number of these suits to fail for want of proof. Not uncommonly plaintiffs had to admit that they ‘did not have any witnesses

who could furnish proof of the marriage?” Without proof, it is hard to see why the causes were brought in the first place. Perhaps they were begun in hopes

of bringing shame on the man or women with whom they had contracted clandestinely. Before a court, they might own up to what they had done. The role of conscience should not be ignored. The records contain many admissions against

interest by parties to matrimonial litigation—they first denied the contract but finally confessed that “before God’ they were bound to the other party, even though they had been unwilling to proceed to solemnization.?® It cannot have been a happy start to a marriage, but plaintiffs may have thought it better than nothing. Finally, some matrimonial causes were brought to undo an existing marriage that had become unhappy or inconvenient over the course of time. They appear to have been collusive, or at any rate close to the line. No statute of limitations barred ‘stale claims’ in marriage litigation. A prior contract by verba de praesenti prevailed over a subsequent marriage, no matter the length of the latter’s existence or the number of children it had produced. Reading through the records, one can suppose that some ageing men and women were moved to confess the existence of an earlier contract and the silent adultery in which they had lived for so long. 25 Worthyngton c. Worthyngton (Lichfield, 1465), LJRO, Act book B/C/1/1, fo. 69: “dicit quod dictum

est quod se invicem attingunt mulieres predictas in tercio gradu consanguinitatis’; Ex officio c. Bayly (Hereford, 1518), HFRO, Act book O/27, p. 80, in which the defendant admitted the contract, but said he abandoned it when he was told the woman was sterile; Wilson c. Pierson (London, 1512), GL, Act book MS. 9064/11, fo. 41v: the defendant admitted the contract, but said “quod dicta mulier est tanta obiurgatrix et scolda quod idpropter interdicta est ab omni le warde civitatis London et ideo recusavit subire solempnisationem. 26 Ex officio c. Browne (London, 1576) in Hale, Proceedings, no. 487. 27 e.g, Hills c. Broadstreete (Canterbury, 1631), CCAL, Act book Z.1.15, fo. 6v: “se non habere testes

aliquos sufficientes ad probandum contractum’; Pereson c. Belle (York, 1504), BI, Cons.AB.5, fo. 83v, where the woman admitted she had no witnesses, but said the man ‘promisit eam ducere in uxorem et eam rapuit’; Foote c. Hankyn (Ely, 1380), CUL, Act book EDR D/2/1, fo. 136v, in which the plaintiff was

required to take an oath that she was not maliciously or collusively omitting to prove the marriage. The judges dismissed these claims.

28 e.g. Ricroft c. Snelson (Chester, 1562) in Frederick Furnivall, Child-Marriages, Divorces and Ratifications, etc. in the Diocese of Chester, A.D. 1561-6 (= 108 Early English Text Soc. (1st ser.); 1897), 59-63.

MATRIMONIAL CONTRACTS 529 It could have been ‘the pricking of conscience and fear of divine vengeance’ that caused them to seek to enforce a contract that was very old.29 But it would take more credulity than most of us can muster to suppose that Alexander IITs definition of marriage did not lead to some ‘manipulation’ of the church’s rules on the part of some unhappy men and women determined to pass to a more agreeable marital union. If it seems unlikely that the courts of the church entertained as many disputes about the formation of marriage as they did, it would be well to remember how frequent informal contracts were. They were easy to make. As a matter of law, it did not matter whether the words had been exchanged in a church or in an alehouse, and secular venues like taverns were the sites of more alleged unions than anyone would think seemly.3° Drunkenness invalidated a marriage contract only if it deprived the drinker of the use of his reason.3! So, for example, it happened that a woman named Joan Jackson sued Robert Moreton to establish a contract of marriage made while they were drinking in a tavern; he admitted making the contract, but said in his own defence that (1) it was the first time he had met her; (2) he had meant it only as a joke; (3) when he said, “With this ring I thee wed; he had not actually been holding a ring; and (4) she was a ‘common strumpet.32 We do not have her side of the story, and perhaps Moreton’s version was mostly abuse of a woman he did not wish to marry. He could have found some support for his second point in the works of the jurists; they all discussed marriages contracted in jest, although invalidation always required more proof than the say-so of the person involved. Unfortunately, we do not know the outcome of the cause, but that

it could have been brought in the first place reveals much about the common problem faced by the courts. In this litigation, uncertainties in language and disagreements about its meaning, real as they were, probably posed a less persistent problem than that of proof. Where no witnesses had been present at an exchange of consent, the dilemma was obvious. What cannot be proved cannot be enforced, and where one party had a change of heart or remembered the events differently and therefore denied the contract, the courts of the church would dismiss the couple ‘to their consciences. Even where witnesses had been present and proof was possible, difficulties per-

sisted. Memories faded. The witnesses had heard the words differently. 29 Precedent book (fifteenth century), WTRO, D1/45/1, fo. 1693: “ex morsu conscientie et propter metum ultionis divini. A good example is found in the examination of Ralph Gregory in Price c. Price (Chester, 1562), Furnivall, Child-Marriages (above n. 21), 79. 30 See Cressy, Birth, Marriage and Death (above n. 1), 322-4. 31 Sanchez, De matrimontits, lib. I, disp. 8, no. 19. 32 Jackson c. Moreton (Archdnry St Albans, 1572), HTRO, ASA 9/9, nos. 793 and 794. The motives

involved could be complicated; see e.g. Alison Wall, “For Love, Money or Politics? A Clandestine Marriage and the Elizabethan Court of Arches’ (1995) 38 Historical Jnl 511-33.

530 MARRIAGE AND DIVORCE Circumstances coloured perceptions. Here, presumptions came to the aid of the judges. First, the canonical rule was: ‘In doubtful cases, matrimony is to be presumed’33 Second, the existence of the things that normally accompany marriage—for example, mutual gift of rings, calling each other husband and wife, reputation in the community—created a presumption that they had intended to contract marriage (X 2.23.11).34 Unless long continued, simply living together was as indicative of concubinage as it was of marriage, but if some of the other factors were added, a judge might conclude that the parties must have meant to enter into

a marriage. Many matrimonial causes did feature introduction of this kind of evidence, though the discretion vested in the judges hides its exact weight from us.35 In any event, the canon law did not shrink from ordering specific performance of marriage contracts, even ones that were disputed and that rested upon a legal presumption. It recognized that the forcing of unwilling men and women to

live together led to what the canonists described, perhaps a little breezily, as ‘unhappy outcomes,3?© but a contract made and proved would be upheld and specifically enforced. The canon law recognized the dilemma, a persistent one. Doubtful cases would always arise, and sometimes the best that could be done was to adopt the ‘safer’ alternative. To the canonists, it seemed ‘safer’ to enforce the contracts as spoken. To do otherwise would endanger the salus animarum of the parties themselves.37 MULTIPLE CONTRACTS

Not quite as frequent in practice as causes brought to enforce simple contracts— but by no means rare—were causes brought with a dual aim: to undo an existing marriage and to enforce a prior marriage contract. In the medieval act books, sometimes they were given a special name: the causa matrimonialis et divorci. The parties to them were actually called competitores. Courts could cite interested parties on their own motion, where they suspected that another marriage might have intervened, and exercise of this power also produced litigation of this nature.38 In most of these causes, one of the competitors was presently living in an established 33 Panormitanus, Commentaria ad X 4.1.10, no. 7. 34 CUL, CUA Collect.Admin.38, fo. 242: “Plene probatur matrimonium si cum semiplena probation concurrunt coniectuare et praesumptiones. On the role played by gift-giving, see Peter Rushton, “The Testament of Gifts’ (1985-6) 24 Folk Life: A Journal of Ethnological Studies 25-31; O'Hara, Courtship and Constraint (above n. 1). The presumption was not conclusive; in Jacson c. Fletcher (York, 1503), BI, Cons.AB.5, fo. 24, the plaintiff alleged a contract and gifts; the defendant admitted the latter but not the former, and the parties were ‘dismissed to their consciences’. 35 Helmholz, Marriage Litigation (above n. 1), 47, gives too little weight to these factors. 36 d.a. C. 31 q. 2 c. 1: quia invitae nuptiae solent malos proventus habere’. 37 For example, this principle stood behind the law’s unwillingness to presume the death of a long absent spouse so that the other could remarry (X 4.1.19). 38 See e.g. Precedent book (fifteenth century), CUL, EDR F/5/32, fo. 6v: “Citatio propter eius interesse.

MATRIMONIAL CONTRACTS 531 union with a person he considered his spouse; the other competitor was seeking to break up that union by alleging and proving a prior contract with the same person. Multi-party litigation throws into particular relief the freedom men and women felt about regulating their lives without attending to what they must have regarded as interference by the church. A case from the diocese of Winchester in 1527 provides an example.39 A man named Richardson was refusing to live with Cecilia, a woman

described in the record as his wife. Instead he was living with another woman named Goode at Chertsey in Surrey. He admitted having married Cecilia many years before, but claimed that during their marriage he discovered she was actually married to a man named William Stokes. He therefore left her and married again, reasoning that his first marriage was obviously invalid. This might be thought to have amounted to repudiation of Cecilia and therefore an example of the persistence of the ‘lay model’ of marriage. Perhaps it is. But note that Richardson alleged a canonical reason for his action. Even had the facts been exactly as he alleged, problems of proving them might have been great. He therefore ‘anticipated’ what the ecclesiastical court would (or should) have done. He may have talked things

over with his friends, or even submitted his situation to the judgment of wiser men.*° But he went ahead in any case, and it was in circumstances like these that the three-cornered suits, known as a causa matrimonialis et divorcii, so often arose.*! One feature of the canon law limited the number of these claims. It was the rule

that legal presumptions would not ordinarily be invoked to validate clandestine marriages (X 4.3.1). This rule had particular effect where both parties confessed to having contracted a clandestine marriage, but where one of them had also entered into a public marriage, a union accompanied by banns and celebration in facie ecclesiae. In the external forum, the latter would prevail. This was true even if some other evidence of the prior marriage existed, such as the presence of one witness or other form of ‘half proof’ ‘A manifest marriage prejudices a clandestine marriage was the operative rule.*? It settled many disputes, though it invalidated marriages that were valid in conscience. During the sixteenth and seventeenth centuries, the English civilians laid particular stress on the rule’s application. They acted to ensure that clandestine marriages would be enforced only if proved by the most convincing evidence. This rule became something like a weapon in their hands. They wielded it to curtail the making of private marriage contracts.*3 In their defence, they would have said that 39 It began as an office prosecution, Ex officio c. Richardson, HRO, Visitation book 21M65/B1/3, p. 58. 40 See Pedersen, Marriage (above n. 1), 105-18. 41 More examples can be found in Helmholz, Marriage Litigation (above n. 1), 59-62. 42 See e.g. Panormitanus, Commentaria ad X 4.3.2, no. 6. A nice example is Risley c. Heyn (London, 1501), in Hale, Proceedings, no. 248. 43 See Carlson, Marriage (above n. 1), 91-5; Ingram, Church Courts, 221.

532 MARRIAGE AND DIVORCE clandestine marriages remained legally valid, but they would have pointed out that they were plainly contrary to the law of the church. Such marriages always had been. The civilians were simply looking at traditional law in a more rigorous way. One possible way of tightening standards was to say that a party seeking to enforce a clandestine marriage contract came within the maxim: Nemo allegans turpitudinem suam est audiendus. The English civilians of the late sixteenth century never went that far. But they came close. This rule about presumption and proof had long led to difficulties of a slightly different sort, difficulties that English practice shows were more than theoretical. If a clandestine marriage gave way before a public marriage, the defendant sued in a cause brought to enforce a private marriage contract might seek to take advantage

of the rule favouring the publicly celebrated marriage.44 He might quickly go out and contract a second marriage; the more publicity the better. Some English men and women did exactly that. The canon law contained a prohibition against this, and orders not to contract pendente lite were commonly issued at the start of marriage litigation. However, marriages were not rendered invalid simply because they were contracted against the mandate of the church (X 4.16.1). The parties might be disciplined and might even be separated physically until the merits of the initial cause had been sorted out. But if they persisted, they had a fair chance of prevailing. CONDITIONAL CONTRACTS

The Decretals contained a separate title devoted to conditional marriages (X 4.5.1-7). A large segment of it echoed the Roman law of conditional gifts, both

testamentary and inter vivos, although the canons did diverge from it in some respects. Transposed to the sacrament of marriage, it created an orderly schema and some wonderful dilemmas.*5 The former (as depicted by Henry Swinburne) was as shown in Figure 10.1.

Conditions past necessary respect

cher ~ expressed in honest time

to come possible | against the Substance dishonest | } of secretly understood not against— Matrimony

Figure 10.1 44 Clerke, Praxis, tit. 200, shows something of the disagreements this problem caused among the English civilians during the sixteenth century. 45 See Hostiensis, Summa aurea, lib. IV, tit. De cond. appos., no. 12; the standard modern work is Rudolf Weigand, Die bedingte Eheschliessung 1m kanonischen Recht (1963).

MATRIMONIAL CONTRACTS 533 Several things about this classification scheme are immediately noteworthy. One is that several of the conditions that might be added to a marriage contract were disregarded and the marriage treated as valid. The only valid suspensive conditions were those that could be classed as conditions to come, expressed, possible, honest, and not against the substance of marriage. Another is that all conditions had to fit somewhere within this scheme. Fine-line drawing was necessary. Thus, for example, a marriage contracted ‘if I become king’ was valid at once. This condition was rejected unless

there were a real possibility that the individual would actually become king.*6 Otherwise, it was treated as an impossible condition. Similarly, the condition ‘if you give yourself to prostitution’ was treated as if it had not been added; the marriage was valid despite it. It was classed as a ‘dishonest’ condition and was to be disregarded.*”

Two additional canonical rules affected conditional marriages, both limiting their utility. First, if the parties had sexual relations after making a conditional contract, the contract became unconditional at once; it was conclusively presumed that they had dropped the condition, and they became man and wife. Second, the condition had to be inserted into the contract itself. A condition made after completion of the contract, or one silently understood by either of the parties, did not count. To have allowed tacit conditions would have opened the door to fraud and, so it was thought, thereby endangered the salus animarum of the contracting parties. If a couple wanted a conditional marriage, therefore, they had to make it so expressly, and even then their choice of conditions was limited. What of the dilemmas? The English court records produce some good examples.

Some of them involved conditions about past or future behaviour, often sexual behaviour. For instance, in one case there was an admitted contract by verba de futuro, but it was ‘under the condition that [the plaintiff] never had to do with one Sir Charles Tagan a priest.48 In another, there was contract entered into ‘on condition that [the plaintiff] should be able to act with [the defendant] as a man ought to with a woman.*? In a third, there was a promise to marry a woman ‘if she shall conduct herself well’ (sz bene facias).5° In a fourth, consent was made conditional upon the man’s not having previously contracted the French pox.>! In a fifth, 46 Sanchez, De matrimoniis, lib. V, disp. 4, nos. 12-13. 47 ibid., lib. V, disp. 15, nos. 3-5. 48 Ex officio c. Russel and Mane (Armagh, 1630), MLD, MS. Z 4.2.1, no. 18. Sentence was given in favour of enforcement of this marriage. 49 Forster c. Burden (Rochester, 1443), KAO, Act book DRb Pa 1, fo. 373. This cause was taken under

advisement by the judge, saying that ‘he wished to deliberate’ after which it did not reappear in the act book. 50 Ex officio c. Lyngewode and Joan, servant of Reafham (Ely, 1381), CUL, Act book EDR D/2/1, fo. 154Vv: ‘si bene facias. Sexual relations followed. The record shows that the defendant agreed to marry the woman ‘without any compulsion’ while the case was in progress. 51 Stoner c. Pagilsam (Winchester, 1518), HRO, Act book 21M65/C2/1, fo. 160; the cause was sent to arbitration.

534 MARRIAGE AND DIVORCE the condition had been, ‘if you do what I want.5? How should these cases have been decided? The first question would have been whether the conditions were definite enough to be enforced. Some conditions—‘if you can cook’ for example—were regarded as ‘impertinent’ under the canon law and disregarded, although there was also textual support for allowing ‘any condition not reproved by the canons’ to be inserted in a marriage contract.>> The second question would have been where such conditions fitted within the canon law’s scheme. It is not obvious that a promise conditioned upon sexual behaviour of one sort or another was ‘honest’ or ‘dishonest’ in char-

acter, or even if it was conditional at all. The commentators are not much help. Sanchez held that the condition, ‘If you are a virgin might lawfully be added to a contract, although he was somewhat at a loss to explain how that made the marriage conditional. By definition, conditions were either suspensive or resolutive. This one was neither, since if the woman involved were a virgin, the marriage would take effect immediately, but if she was not, then no marriage of any kind would have been contracted.°4 Better treated by the canonists and more frequent in English practice were suspensive conditions, in which the parties entered into a marriage contract, but suspended its effectiveness until some event occurred. Typically, these events were fulfilment of a promise to give land or chattels to the couple,>> or else securing the consent of the parents or ‘friends’ of one of the parties.5© Adding words like these to a contract suspended the marriage until the condition was fulfilled. Apart from questions of proof, the legal arguments commonly involved in such cases were, first, whether the conditions had been made as part of the contract rather than later or independently, and second, whether the condition had been fulfilled. Conditions like these were in tune with the habit of treating entry into marriage as something to be negotiated, and so far as one can tell from the records, the causes moved relatively smoothly through the courts. Many men and women knew the canonical rules about conditional marriages. Studies have shown some parties taking advantage of them to avoid binding themselves irretrievably, to be sure they were marrying someone who would give them children, or to gain a temporary sexual advantage.>” 52 Dovere c. Clyve (Canterbury, 1373), CCAL, Act book Y.1.1, ff. 53v, 60: ‘si ipsa vellet facere quod ipse

vellet’. Sentence was given for the plaintiff, but sexual relations were admitted. 53 e.g, Hostiensis, Lectura ad X 4.5.5, no. 4. 54 Sanchez, De matrimonitis, lib. V, disp. 4, no. 17. 55 e.g. Ex officio c. Payner and Freer (Lichfield, 1534), LJRO, Act book B/C/2/3, fo. 282: “sub tali tamen conditione viz. si idem Johannes feoffaverit eam in terris et tenementis annui valoris quinque marcarum, que conditio adhuc non est completa: 56 e.g. Wright c. Birkys and Birkys (York, 1368-9), BI, CP.E.103: “Ego volo ducere te in uxorem meam

quam citius ego potero propter matrem meam’ 57 See Pedersen, Marriage Disputes (above n. 1), 59-84.

MATRIMONIAL CONTRACTS 535 RESTITUTION OF CONJUGAL RIGHTS

The canon law distinguished between possessory and proprietary remedies in the law of marriage. Maitland maintained that the canonists were ‘driven into’ the doctrine, because they had made contracting marriages easy but proving them difficult.58 Where the banns had been read, the marriage solemnized in church, and a household established, it seemed, a deserted spouse ought to have a quicker and surer remedy to recover what had been his or hers than the uncertain causa matrimonialis. Hence arose the cause known as restitution of conjugal rights.°9 The canonists saw nothing incongruous in thinking about matrimonial rights in terms familiar in the action of novel disseisin. In possessory causes, the defendant could not directly raise the question of the marriage’s validity (X 2.13.10). He would be required to bring a separate suit to secure a divorce, if he wished to do that. In it, the burden of proving the existence of a canonical impediment would rest upon him. In the meantime, the plaintiff would be restored to their matrimonial position upon a showing of a ‘possessory’ status. This created problems of its own. In theory, it might have opened the door to protecting merely de facto unions that were little

more than public concubinage. However, the canonists stepped back from this precipice, holding that only legitimately contracted marriages were eligible for the possessory remedy. This excluded clandestine marriages. That would have seemed an added advantage. It might discourage making clandestine marriages. Moreover, having a fully celebrated union was important under the canons for other reasons, since in some circumstances a child born after a clandestine marriage would not be considered legitimate if it turned out that the marriage was invalid, whereas one born after a fully solemnized union would be treated as legitimate.

Despite its advantage, comparison of the court records with the formal law shows that many fewer causae restitutionis obsequiorum coniugalium were brought in practice than might be expected. For instance, starting in April 1437 and continuing for three years after, only one possessory cause was begun before the consistory court of the diocese of Rochester, whereas fourteen petitory causes were begun.© Something like this small proportion was typical, and the numbers of the former never did become large. Apart from the necessity of proving a properly celebrated marriage, the records suggest several reasons for the lack of frequency of claims for restitution of conjugal rights.°! First, the action seems not to have been available where the potential 58 Pollock and Maitland, i, 381. 59 The law on the subject is more fully discussed by Esmein, Le Mariage (above n. 5), ii., 13-21. 60 Taken from KAO, Act book DRb Pa 1. Other figures are given in Helmholz, Marriage Litigation (above n. 1), 68.

61 This discussion draws upon Cleasby c. Collingwood (Durham, 1609), DUL, DDR/XVITI/3, ff. 231-232Vv, a fully argued case on the subject.

536 MARRIAGE AND DIVORCE defendant had married another person, as very often happened. In most cases, it was the desire to marry someone else that caused the desertion that would have been a prelude to the possessory action. In such circumstances, it was the causa matrimonialis et divorcii that was appropriate. Second, practice blurred the distinction between the two. The canonists themselves made an exception so that nearer degrees of consanguinity could be raised as a defence to a restitutionary claim. The salus animarum of the parties was at stake.©2 They risked being ordered

to live together despite a kinship that made sexual relations between them sinful

if only the fact of their public marriage could be considered. The desire for uprightness in the church’s judicial system, which itself might be an unwitting party to evil by issuing the order, required that the exception be made. In practice, it became the rule; even a defence of pre-contract was raised in one fifteenthcentury suit from Canterbury.® Third, as a matter of practice, where the defendant in a suit for restitution asserted a reason for his actions, the suit often became one for judicial separation, the canonical divorce a mensa et thoro.® It did not raise the question of the marriage’s validity, and so skirted the canon law’s prohibition. Fourth, ex officio prosecutions offered a substitute. Probably they were considerably cheaper to arrange, at least if a deserted spouse had the sympathy of the local community and could count on a presentment being made. If, for example, a husband who had deserted his wife could be brought before an ecclesiastical court for ‘living asunder’ from his wife, as he certainly could be under the law, he would be ordered to adhere to her, unless he could plead and prove a legal justification for his refusal. Thus would the substance of the aim of the cause brought for restitution of conjugal rights be achieved. JACTITATION OF MARRIAGE

An untrue public assertion that a marriage existed between the plaintiff and the

defendant gave rise to the causa jactitationis matrimont in the ecclesiastical courts. The term ‘jactitation’ means false boasting or repeated assertion of something known to be false, and prosecutions of those who had made such ‘boasts’ began to be entertained by the English ecclesiastical courts from at least the late fifteenth century onwards.® This remedy would also have a future in later English 62 See generally Eulogi Broto Alonso, ‘La flexibilidad del derecho canénico histérico ante las acciones restitutorias y la tutela poses6ria’ (2001) 10 El dret comu in Catalunya 175— 97, esp. 194-6. 63 Gayes c. Baker (Canterbury, 1422), CCAL, Act book Y.1.4., fo. 102: the defendant alleged, ‘quod diu

ante quemcumque contractum inter ipsum et uxorem suam contraxerat dicta Alica cum quodam Johanne Exetre’ quare non tenetur impendere sibi obsequia coniugalia. Other examples are given in Helmholz, Marriage Litigation (above n. 1), 69. 64 e.g, Tailour c. Tailour (York, 1503), BI, Cons.AB.5, fo. 40.

65 It was found earlier in at least one part of the Continent; see Christian Schwab, Das Augsburger Offizialatsregister (1348-1352) (2001), 112.

MATRIMONIAL CONTRACTS 537 law. In the nineteenth century, the common law courts assumed the jurisdiction over marriage that had been held by the ecclesiastical courts. When they did so, the ordinary causa matrimonialis was left behind. The common law had no form of action designed to determine that a marriage existed and then to compel the parties to celebrate it and live together as man and wife. That would have been a form of specific performance quite at odds with normal assumptions of the common law. An action for breach of promise was available, but it offered only the award of money damages. The action for jactitation in the common law courts therefore provided a partial substitute.°° This ecclesiastical cause was taken over by the royal courts, and it allowed a plaintiff to force a defendant who had made the boast of a marriage to prove it or be silent. Indirectly, it allowed the fact of a marriage’s existence to be raised. A successful suit established the plaintiff’s right to marry someone else. An unsuccessful suit established either that no boast had

been made or that plaintiff and defendant had entered into a valid marriage. These had also been aims of the ecclesiastical remedy.

The roots of the action clearly belong in the ius commune, although less is known about them than about most such imports. The parts of the Corpus iuris canonici related to marriage made no explicit mention of jactitation. The term itself was found in the Decretum, where boastful behaviour by the clergy was censured (C. 21 q. 4c. 1), but no mention was made of marriage. The subject did not

appear in book four of the Decretals. The most common reference point for it found in the legal commentaries of the time was a text in the Roman law Codex which made it unlawful to denigrate the status of a free man by calling him unfree (Cod. 7.14.5). It declared that unless a speaker who claimed that a person was of servile condition could prove it, perpetual silence was to be enjoined on him. This was regarded as a legitimate exception to the rule that no person could be forced to bring a lawsuit; the plaintiff was simply requiring the “boaster’ to substantiate his boast.°”? The action was not necessarily linked to marriage—indeed, it lay closer to the law of defamation. None the less, the jurists percetved in the Code’s text a principle that all false assertions diminishing the status of another should be stilled. To claim a marriage existed, when it did not, diminished the status of the other person by making it harder to contract another marriage. Hence a remedy should be made available to the person injured. The first clear signs so far discovered of the remedy’s existence in English matrimonial practice come from the court books of the late fifteenth century. The earliest examples suggest experimentation. The cases were usually begun ex officio; the entries 66 Jackson, Formation (above n. 3), 123-4. 67 This is, at any rate, the substance of the treatment in Nicholaus Boerius, Decisiones, Dec. 255, nos.

7-12, and Matthaeus de Afflictis, Decisiones Neapolitanes, Dec. 268, nos. 2-4; Sebastianus Vantius, De nullitatibus processuum, tit. Ex defectu processus, no. 65.

538 MARRIAGE AND DIVORCE did not employ the words of ‘jactatition’ that would become standard usage, and most revolved around the assertions that the defendant was trying to break up the plaintiff’s existing union by asserting the existence of a pre-contract.°8 They sounded rather like tardy objections at the reading of the banns. By the middle years of the sixteenth century, however, jactitation was assuming the form that it would retain. It was being recognized as a separate ‘form of action’ in the notebooks and formularies of English proctors,® and it was also attracting the attention of advocates. A question inevitably arose: Could a causa matrimonialis be brought as a separate suit, perhaps in a different court, after a causa jactitationis had been begun? A

seventeenth-century civilian’s notebook among the muniments of the diocese of Salisbury contained a negative answer, coupled with a lamentation that this abuse had been allowed too often in recent years, thus turning the church’s law into a tool of vexation.”° By then, jactitation was also a part of an attempt by some civil-

ians to enlarge ecclesiastical jurisdiction to encompass boasting about other rights—a subject to be discussed in Chapter 11. Its place in matrimonial litigation was undoubted. EX OFFICIO PROCEEDINGS

Although most matrimonial litigation arose within the instance jurisdiction of the courts, not all did. Some occurred in the context of ex officio proceedings, and it was entirely natural that they should have done. One example will show why. In November of 1468, James Blake and Margery Bryght were summoned to appear before the court of the subdean of Salisbury for having committed fornication together.”7! Margery appeared, denied the charge, and claimed there had been

a contract of marriage between them. The judge ordered James to be cited to answer the claim. The matter became more tangled during the court’s next session in January, when Margery again appeared but said she had decided not to go forward, because she had learned that James had “precontracted’ with two other women. She was in turn given a day to prove this. Thus did an ex officio matter

of the most routine sort lead to what might have been a complicated causa matrimonialis. Unhappily (for us), we cannot tell what happened next. The case 68 e.g. Ex officio c. Ingram (London, 1485), GL, Act book MS. 9064/2, fo. 114v: “[Defendant] dicit se con-

traxisse cum Agneta Marchal pretextu cuius assertionis impeditur matrimonium Agnetis’; Ex officio c. Sandecoke (Canterbury, 1456), CCAL, Act book Y.1.5, fo. 132v: “scandalizavit seipsam et dictum Stephanum

ea intencione et causa quod matrimonium inter dictum Stephanum et predictam Agnetem Wylloke impediret’; Ex officio c. Brown and Clerke (Durham, 1485), Library of D. & C., Durham, Act book, C.B.Pr.Off., fo. 87: ‘acclamavit ipsum Thomam quod affidabat eam [sic]’. 6° e.g. Holmys c. Toowles (Exeter, 1534), DRO, Chanter MS. 778, s.d. 26 Mar.: ‘iactitavit matrimonium contraxisse cum prefato Thoma Holmys’ See also Clerke, Praxis, tit. 133. 70 WTRO, D5/24/18, fo. 34-34v. See also GL, MS. 11448, fo. 74v, where the same problem was noted,

but without comment. 71 WTRO, Subdean’s Act book D4/3/1, fo. 88.

MATRIMONIAL CONTRACTS 539 disappeared from the folios of the act book after the January session. We see only the pattern—one that was often repeated—of an ex officio prosecution turning into an instance cause. Prosecutions brought “for having two living spouses’ were probably the most frequent examples.72 An unintended but inevitable consequence of cases like these was the dispersal

of matrimonial jurisdiction among the lesser courts. This was contrary to the canon law’s rule limiting competence over marriage disputes to episcopal tribunals (X 5.31.12).73 Since disciplinary jurisdiction over the sexual offences of the

laity was much more widely spread in England, courts like the one held in the name of the subdean of Salisbury were drawn to deal with disputes over the substance of marriage contracts.”4 In theory, they should have remitted the cases to the courts of their bishops. An inhibition from above could be sought if they would not. This did happen.7> Although this reason was not stated in the act book,

perhaps it explains the disappearance of the cause between James and Margery just mentioned. But it was by no means an invariable response. The urge to settle matters was immediate and hard to refuse. Subordinate judges were thus led to consider the substantive question of whether an alleged marriage was valid. They could cite the canonical rule: “Custom confers jurisdiction’ in their favour.”° They

could also say that the purpose of the jurisdictional rule was to guarantee that expert judges would decide the complex and sensitive issues raised in matrimonial litigation. They might honestly assert that they were no less expert in matrimonial law than the officials of the bishop’s consistory. If so, they came within the broad purpose of the law.

Finally, some ex officio proceedings were begun to undo allegedly invalid marriages. This was true from first to last. ‘It has come to our ears, it would be said by the officials of an ecclesiastical court, that A and B are living together under a veil of matrimony, even though they are related within the prohibited degrees

of consanguinity.””? The thirteenth- and fourteenth-century records provide many examples, and later centuries provide some. These were the main cases in which the courts were willing to convoke inquests to determine the facts, instead 72 e.g. Ex officio c. Lawe (Canterbury, 1469), CCAL, Act book Y.1.11, fo. 35: “Notatur quod habet duas

uxores viventes, viz. unam Elenam et aliam Johannam”. 73 Prohibitions against matrimonial causes being decided by archdeacons, rural deans, and parish priests were also the subject of synodal statutes; see e.g. Statutes of Salisbury I, c. 78 (1217 X 1219); Statutes of Norwich, c. 51 (1240 X 1243); Statutes of Winchester II, c. 68 (1247) in C. & S. IT, pt. 1, 85, 353, 413. 74 See Roy Haines, “The Jurisdiction of the Subdean of Salisbury’ in id., Ecclesia anglicana 53-66.

75 The evidence is reviewed in Helmholz, Marriage Litigation (above n. 1), 143-6. 76 Gl. ord. ad X 2.13.13, s.v. in tua: ‘In his enim consuetudo quae dat iurisdictionem’ 77 e.g, Ex officio c. Slory and Joan (Ely, 1379), CUL, Act book EDR D/2/1, fo. 108; Ex officio c. Wrek and Ryde (Canterbury, 1393), CCAL, Act book U.40, fo. 21v; Ex officio c. Marshall et ux. (Archdnry Nottingham, 1599), NUL, Act book AN/A 11/2, p. 246.

540 MARRIAGE AND DIVORCE of leaving this to the parties themselves. The health of the souls of the parties was involved, at least in cases where the nearer degrees of affinity and consanguinity were at issue. For that reason, these actions were begun and seen through by the courts themselves. This continued to be so. Churchwardens’ presentments from the sixteenth and seventeenth centuries contained very similar cases, as for instance one ‘for marrying his wife’s daughter, or one reporting that a defendant ‘did marry his father’s sister’s daughter, or one begun “for marrying his uncle’s wife, or one for marrying his widow’s daughter-in-law.’8 These proceedings always involved many of the same substantive issues raised by the church’s law of divorce.

DIVORCE In modern law the term ‘divorce’ refers to bringing an end to a valid and existing marriage. It frees each party to remarry. In medieval practice, the term was most commonly used to denote what we would call an annulment, a declaration that a marriage had been invalid from the start. Divorce in the modern sense of the word did not exist, and when a judicial separation was meant, the common medieval habit was to refer to it as a divorce a mensa et thoro. No remarriage by either party was allowed afterwards. Suits for divorce, in both these senses of the word, were a regular feature of litigation in the English spiritual courts, although they were far outnumbered by causes brought to establish the existence of a marriage.

Dworce a vinculo The preponderance of causae matrimoniales over causes brought to annul an existing marriage was particularly marked in the early history of the English spiritual courts. Of the ninety-eight causes involving marriage heard by the diocesan court at Canterbury between November 1372 and May 1375, for example, only ten were brought to secure a declaration of nullity.7”? And not all of the ten were successful. It is on this point that the court records have most decisively upset the conclusions drawn by most historians before the records themselves could be explored. The natural supposition that any person who desired to dissolve a marriage ‘could probably discover a ground for its nullity’ has turned out to be contradicted by the court records.8° 78 Ex officio c. Styrcke (Bristol, 1604), BRO, Act book EP/J/1/12, fo. 61; Ex officio c. Crosse and Crosse

(Archdnry Nottingham, 1625), NUL, Act book AB 35, fo. 115v; Ex officio c. Markes (Hereford, 1584), Visitation book HD/5 s.d. 7 May; Ex officio c. Kendall (Norwich, 1605), NNRO, Visitation book VIS/4/1, fo. 8.

79 Taken from CCAL, Act book Y.1.1. Other figures are given in Helmholz, Marriage Litigation (above n. 1), 74-5; Sheehan, Marriage, Family and Law (above n. 1), 74-6; Houlbrooke, Church Courts, 71-5. 80 See Marriage, Divorce and the Church (1972), 9.

DIVORCE 541 In part, the unexpected paucity of causae divorcii may be explained by the laity’s habit of ‘divorcing’ themselves. Where the facts were clear and resort to an ecclesiastical court onerous and expensive, couples to an invalid marriage sometimes parted company, as one might say, without benefit of clergy. Sometimes they were

caught. Sometimes (we must suppose) they were not. Many of the causes that might have been brought to secure a divorce a vinculo because of an existing precontract also ended in one of the three-party suits mentioned above. That is, one of the parties would have married someone else without first securing a divorce. The ‘competitor’ would therefore be obliged to sue both to break up that marriage and to enforce his or her own rights. However, this cannot be a complete explanation of the shape of divorce litigation. To see how the law worked itself out in practice, the other grounds for divorce must furnish the starting-point. CONSANGUINITY AND AFFINITY

The Fourth Lateran Council (1215) had refined and defined the church’s rules prohibiting marriages between men and women linked by ties of blood and marriage (X 4.14.8). Most notably, it reduced the scope of the prohibited degrees from seven to four. The rules, memorialized in countless arbores consanguinitatis and arbores affinitatis placed in the folios of the Corpus iuris canonici, had the effect of forbidding couples descended from the same great-great-grandfather (or in other

words, third cousins) from marrying. The impediment of affinity barred marriages between couples similarly related by marriage, thereby preventing a woman from marrying the widower of her sister (affinity in the first degree) down to the

widower of her sister’s great-granddaughter (the fourth degree). It is important to recall that affinity was contracted by any sexual intercourse, not just marriage. Its reach was accordingly quite broad. In addition, the impediment of “public honesty disqualified the relations of men and women who had exchanged matrimonial verba de futuro but had not gone ahead to marry. In all, it made a formidable list. A Reformation statute altered these rules (32 Hen. VIII, c. 38, 1540). It validated all marriages except those that were either ‘prohibited by God’s law’ or forbidden in the eighteenth and twentieth chapters of the Book of Leviticus. The statute thus traded a healthy loosening of the reach of these impediments for an unhealthy uncertainty about just how far the impediments retained were meant to extend. The purpose of the extensive and intricate rules of the medieval church has long been a matter of speculation. St Augustine of Hippo thought they were designed to promote friendship in human society. The prohibitions encouraged young people to include others, from outside the family or clan, in the circle of matrimonial charity (C. 35 q.1c.1). Romeo and Juliet might be an example. A later

medieval opinion, by contrast, held that the rules were meant to promote the

542 MARRIAGE AND DIVORCE virtue of celibacy.8! They certainly look to have been capable of doing that, so large was the number of persons excluded from marrying each other. Examined at length, the rules would have discouraged the search for a spouse by a less than determined young man. The Henrician statute that moderated the scope of the rules proffered a third explanation. It put their origin down to the love of money endemic in the Roman court. The rules were invented ‘for lucre, so that the papal court could charge fees for issuing dispensations from them. Modern historians, rejecting the crudity of the Henrician account of papal motives but noting the antiquity and pervasiveness of the church’s kinship disqualifications, have seen in them a desire to reduce the power of kinship groups in society and to amplify the clergy’s control over the laity.82 Either that, or modern critics have supposed that the rules had no real social or religious meaning at all. Maitland called them ‘the idle ingenuities of men who are amusing themselves by inventing a game of skill’83 We do not know the truth. In fact, the purpose of these rules was not much talked about by the medieval or early modern canonists. Perhaps it did not interest them very much. Sanchez, for example, discussed at length the power of popes, secular rulers, and local custom to abridge or amend the law regulating the prohibited degrees, but when confronted with the need to justify the church’s rules as a matter of policy, he simply fell back on St Augustine. And that very briefly.*4 As noted above, the divorces sought and granted to couples for having married contrary to these rules were too few to support the conclusion that they provided

a common and easy exit from an unhappy or inconvenient marriage. That does not mean that there were no divorces at all. Nor does it mean that the existence of the prohibited degrees was never pleaded as a defence to a causa matrimonialis. Both happened. In 1390 for example, Emma, the servant of Henry Rayner, sued Robert, son of John Williamson, before the court at York to establish a marriage between them.®> Robert pleaded that Emma had previously had sexual relations with Robert’s brother, Thomas, thus causing a prohibited degree of affinity to exist between them. His allegation does sound invented. To a modern and suspicious mind, it appears to be only an excuse, hastily concocted to avoid the con-

sequences of having contracted marriage with a social inferior. But it was a contention that had to be taken seriously under the canon law, and so far as we can tell, the cause was argued along the lines laid out in the Decretals. The truth of the allegation would decide the outcome. In assessing the practical impact of the church’s rules on this score, it is important to recall the importance of the law of proof in the ius commune and the difficulty 81 Gl. ord. ad X 2.13.13, s.v. divina lege.

82 See e.g. Jack Goody, The Development of the Family and Marriage in Europe (1983), 134-46; Brundage, Law, Sex and Christian Society (above n. 1), 192-6.

83 Pollock and Maitland, 1i. 389. 84 De matrimontits, lib. VII, disp. 4, no. 13. 85 BI, CP.E.181.

DIVORCE 543 of making full proof of the existence of one of the impediments to marriage. Emma’s case, for instance, was decided in her favour, apparently because Robert could not prove his claim. He did have three witnesses, but none of them could testify that they had ever actually seen her in a compromising position with Thomas. She herself said the story was made up only ‘in order to impede the marriage’ that she had undeniably contracted with Robert. Failures of proof also figured prominently in cases involving many of the degrees of affinity and consanguinity. In an early Canterbury case, for example, some thought the parties were related in the fourth and fifth degrees; some said it was the third and fourth degrees; some said they were not related at all. The outcome was that no divorce at all was celebrated.®° This was an oft-repeated end to litigation. To claim a marriage was invalid because of kinship disqualification was easier than to prove it. The courts required proof. This may be one reason that divorces on the grounds of affinity and consanguinity seem to have been more frequent among the rich than the poor. The rich could afford to discover the impediment. The poor could not. The English ecclesiastical courts were faced with perplexing problems in two additional areas of the law of marriage—the one before the Reformation, the other afterwards. Before, it was the problem of dealing with papal marriage dispensations. They did not figure frequently in the causes recorded in the act books, but since most were not contentious matters, one would not expect them to. They were recorded more often in bishops’ registers.8” When they did come before the courts, however, they were given a hard look. This was quite in accord with the canon law. By definition, dispensations were permissions to act in a way that was contrary to the ordinary rules of law.88 They were to be strictly construed on that account.®9 Their validity thus depended on stating the nature of the impediment correctly (X 4.14.6). When a dispensation to validate an otherwise consanguineous marriage was introduced before an ecclesiastical court in Leicester, for example, the objection was taken that its words authorized only a marriage to be contracted in the future, not one already contracted.9° This objection won the day. If this couple wished to secure an adequate dispensation, they would have to start again.

After the Reformation, the difficult problem was to know what marriages remained disqualified because of kinship. The purpose of the Henrician statute on 86 Elmer c. Hage (Canterbury, 1293), CCAL, Sede Vacante Scrapbook III, no. 39.

87 See e.g. Reg. John Catterick, Bishop of Coventry and Lichfield 1415-1419, ed. R.N. Swanson (= 77 C. & Y. Soc.; 1990), 25-33. 88 e.g. gl. ord. ad X 1.6.54, S.v. retinere: ‘[D]ispensatio reddit licitum quod erat illicitum’

89 See e.g. Sanchez, De matrimontis, lib. VII, disp. 24. There was some room for manoeuvre, however. The doctrine of dissimulation could come into play, for example. 90 Dukkett c. Shesyler (Archdnry Leicester, 1520), LRO, Act book 1 D 41/11/2, fo. 28: “dispensationem

esse nullius effectus quo ad matrimonium contractum sed valet ad contrahendum’ Further examples are given in Helmholz, Marriage Litigation (above n. 1), 82-7; the discussion there gives an exaggerated impression of the infrequency of matrimonial dispensations in England.

544 MARRIAGE AND DIVORCE the subject was clear enough—to reduce the number of prohibited degrees to a more sensible level and to end trafficking in dispensations. But the terms of the statute were not much more self-defining than Archbishop Oda’s ‘Constitutions’ from the mid-tenth century, which had forbidding marrying ‘cognates or other unlawful persons.9! Exactly what degrees were forbidden by the new statute? It did not say. In 1563, Archbishop Parker published a table listing sixty degrees that did, and this helped answer many of the questions.?2 But many were left. The

Archbishop himself called the subject a ‘sea of perplexities, and so it proved to be.93 Many difficult cases arose. Could a man marry his first wife’s sister’s daughter? This was not specifically prohibited by the terms of the statute or the Bible, so it might seem to be lawful.94 The Bible itself urged men to be fruitful and multiply. On the other hand, it could not be that all things were being permitted

that were not expressly made unlawful. The Ten Commandments prohibited coveting a neighbour’s wife, but this prohibition did not license coveting the neighbour’s daughter. The purpose of the law was to encourage ‘purity and cleanness of life. This particular marriage might contravene that purpose. And there were many cases like it. It would tax the patience of any reader to be taken through them, but perhaps their general approach can be summarized. The English civillans held that the degrees specifically prohibited had been meant ‘as examples

only. For that reason, much of the traditional learning about the prohibited degrees of affinity and consanguinity from the ius commune remained relevant. It

was not controlling, however. The Henrician statute had made that clear. The questions had become more complicated. COERCED MARRIAGES

The classical canon law affirmed that freedom was an essential part of marriage. The most memorable example of this principle was the canonical rule that slaves had the right to marry even against the wishes of their masters (X 4.9.1). The principle of

freedom in marriage extended to the law of divorce. The canon law permitted a party who had been coerced into marrying to secure a divorce (or to resist a causa matrimonialis) if the force had been sufficient to move a ‘constant man’ (X 1.40.4). The phrase itself was taken from Roman law (Dig. 4.2.6), and it imported the same standard used to test the validity of private transactions of all sorts.

This being admitted, the assumption of the canon law was that a person of steadfast character ought to be able to resist a certain amount of pressure from 91 C. & SI, pt. 1, 72: ‘cognatis vel cum aliis inlicitis personis. 92 Printed in Edward Cardwell, Documentary Annals of the Reformed Church of England (1844), 1. 316-20. See also Canons of 1604, c. 99 in Anglican Canons, 398-401. 93 Correspondence of Matthew Parker, ed. John Bruce and Thomas Perowne (= 33 Parker Soc.; 1853, repr. 1968), 352. ®4 Discussion of this case is found in Bodl., Selden Supra MS. 44, ff. 118, 125-7.

DIVORCE D45 without. He ought to be held to a standard of constancy. Threats of imprisonment, enslavement, or death, at least if they were credible threats, would overcome

the will of even such a person. Threats of being held up to public infamia or of forfeiting the friendship of another person would not. In the law of marriage, this understanding left room for energetic persuasion of young men and women, even persuasion coupled with stern warnings which young people might perceive as threats. The canonists added a further reason for restricting the role that force and fear would play in litigation. If the impediment were given too wide a scope, legitimate marriages would be too easily undone. This would be to the ultimate danger of the souls of the parties involved. Here again, the canonists perceived a good reason for invoking the law’s presumption in favour of marriage. A second obstacle to securing a divorce because of coercion was created by the canonical rules about validation. Coerced marriages were treated as merely voidable, not void, so that later consent, consensual sexual relations between the couple, or even cohabitation for long enough to create a presumption of consent had the effect of validating what had once been subject to upset. ‘Prior dissent might become consent, and what had at first been the source of displeasure might in the end turn to a source of pleasure’ (X 5.17.7). A young man or woman who wished to invoke the impediment of force and fear to undo a marriage on this ground therefore faced some real hurdles. The records of litigation appear consistent with this understanding of the impediment. In a case from the early sixteenth century, for example, Alice Watson

alleged that her consent to an admitted contract of marriage with Henry Bland had been compelled by her “friends.9° The judge asked her what sort of compulsion had been involved. She answered, ‘her mother ordered her by virtue of her benediction and malediction to contract with the said Henry. The judge immediately ordered her to solemnize the marriage. In a case from a few years

later, by contrast, a mother similarly situated had said to her daughter Anna, ‘By God’s body if thou wilt not be betrothed to Hugh Harrys today I will break thy bones and turn thee out of my door and thou [shall] never geteth any thing here that should do thee good’.9” Anna was also able to prove other indications of her unwillingness at the time of the contract, and her short union was dissolved. Continuing lack of consent, or continued objection to the marriage if it could be shown, weighed heavily with the judges.98 It may be that some 95 Dig. 4.2.7; a fully argued case, containing at least the seeds of a more open attitude towards the requisite standards is Cragges c. Glover (Durham, 1600), DUL, DDR/XVIII/3, ff. 235v—236. 96 Bland c. Watson (York, 1507), BI, Act book Cons.AB.5, fo. 164v. 97 Harris c. Richardes (Worcester, 1533), WORO, Act book 794.011 BA 2513/1 (i), pp. 109-10, 133. 98 Cases where this appears to have been a part of the grounds for divorce a vinculo: Hawnie c. Fox (York, 1562), BI, CP.G.803.

546 MARRIAGE AND DIVORCE movement towards greater sensitivity towards the value of freedom took place in

the early modern period. An awkward problem involving coerced marriages had to do with marriages contracted under threat of excommunication. On the one hand, excommunication was the greatest penalty known to the canon law. It was to be dreaded. On the other hand, excommunication was issued routinely for routine contumacy in the courts, and it was easily reversed by a show of willingness to abide by the law. It was an inconvenience. What, then, of a marriage contracted under this threat? If it was simply a threat of excommunication for failure to solemnize (probably the most frequent case), this was not too formidable an obstacle, however much we may think it inconsistent with our own ideas about marriage. Here the marriage had already been contracted and the sentence of excommunication was not itself the cause of the marriage. However, that justification could not be used for abjuration sub pena nubendi, a practice used quite frequently in the English courts from the thirteenth century into the fifteenth. In cases where a man and woman had been convicted of forni-

cation—usually fornication of a repeated and public kind—the English courts offered them a choice: Be excommunicated or contract a conditional marriage. If they chose the latter, each of them was required to say, ‘I accept thee, N, as my hus-

band [wife] if hereafter I have carnal knowledge of thee’ A series of synodal statutes of the thirteenth century authorized its imposition, and act books from many dioceses demonstrate its spread.1°° Under ordinary rules of the canon law, therefore, if the couple had sexual relations afterwards they were married. The condition was fulfilled and the contract took immediate effect. Men and women caught by this process occasionally objected that they were being coerced into marriage contrary to the canon law’s rules. For instance, in a case from the late fourteenth century, one defendant asserted the invalidity of a marriage he had entered into only ‘against his wishes and compelled by ecclesiastical censures.1°1 The canonists had an answer. They distinguished between just and unjust threats. If a person deserved to be excommunicated, he would not be heard to complain about having chosen a lesser penalty in order to avoid a greater. 99 See the discussion and other evidence of European practice presented in Daniela Hacke, “Non lo volevo per marito in modo alcuno’ in Time, Space, and Women’s Lives in Early Modern Europe, ed. Anne Schutte, Thomas Kuehn, and Silvana Seidel Menchi (2001), 203-21. 100 Statutes of Winchester I, c. 54 (1224); Statutes of Coventry, c. 15 (1224 X 1237); Statutes of Wells, c. 13 (1258); Statutes of London I, c. 3 (1245 X 1259); Statutes of Exeter II, c. 7 (1287) in C. & S. II, pt. 1, 134, 213, 598, 631, pt. 2, 999. The institution is explored at greater length in Canon Law and the Law of England, 145-56; several examples are noted in Poos, Lower Courts, 1 n. 113. It was also known in some other parts of church; see Schwab, Augsburger Offizialatsregister (above n. 65), 70, 99. 101. Hoton and Monkton c. Palmer (York, 1375), Library of D. & C., York, Act book M 2(1)c, ff. 22v—23:

‘Hec fuit coactus et contra voluntatem suam set compulsus fuit per censuras ecclesiasticas.

DIVORCE 547 And so, they reasoned, marriages contracted under these circumstances could not be invalid. That was the result reached in practice. But there was unease about abjuration sub pena nubendi none the less. In the margins of one of the synodal statutes authorizing it, a critic noted that it was ‘against the laws and natural equity.!°2 A fifteenth-century formulary, now in the British Library, contained a lengthy and critical evaluation of the practice.!® Abjuration in this form was not sanctioned by the Corpus turis canonict; it employed a turpis conditio condemned in the law; it made copulation the constitutive act of marriage; it violated the law’s provision that banns should precede marriage; and it made use of threats in apparent contravention of the church's ideal of marriage by free consent. These arguments must have had an effect. Abjuration began to disappear over the course of the fifteenth century. It was included in an ecclesiastical formulary from the reign of Edward IV (1462-83),!°4 but by then it had passed out of any but very occasional use in practice. If anyone lamented its disappearance, they have left no record of it. IMPOTENCE AND THE CONJUGAL DEBT

Although canon law held that marriage was made by consent alone, it did not push the principle to the point of making indissoluble marriages one or both of the parties was incapable of consummating. It made available a right to divorce on grounds of sexual impotence. Indeed, the canon law went further. Married men and women were held to owe each other a ‘conjugal debt. Unless by mutual consent, neither could deny the other a right of sexual access.!°> This “debt; in theory an example of equality between the sexes, was discussed at length by the medieval canonists. To square it with the marriage of Mary and Joseph challenged their juristic abilities; to bring it into tolerable harmony with the realities of married life defeated them. But neither deterred the canonists from taking St Paul’s words (1 Cor. 7: 4) as legal doctrine, and they envisioned the issuance of judicial orders to secure enforcement of the debt.!°© Orders to cohabit and to treat the other spouse ‘with marital affection’ in bed and board certainly were issued by the English ecclesiastical courts. Few if any of

them contained a direct order to render the conjugal debt,!°” an order that was 102 C. & S.J, pt. 2, 999 n. 4: ‘contra iura et naturalem equitatem. 103 BL, Harl. MS. 862, ff. 273-274.

104 WTRO, D1/45/1, fo. 1698: “Libellus contra virum abiurantem mulierem cognoscere sub pena nubendi. 105 See Elizabeth Makowski, “The Conjugal Debt and Medieval Canon Law’ (1977) 3 JMH 99-114; Dyan Elliott, Spiritual Marriage: Sexual Abstinence in Medieval Wedlock (1993), 142-55.

106 e.g, Panormitanus, Commentaria ad X 4.14.6, no. 4: ‘Nota quod ecclesia possit compellere coniugem ad reddendum debitum coniugale’. 107 An exception is a bizarre case, Ex officio c. Marabel (Lincoln, 1347) in Poos, Lower Courts; a man

was convicted of incest with the daughter of his wife; he was ordered to ‘render the debt’ only if his wife sought it, and then ‘cum dolore’.

548 MARRIAGE AND DIVORCE found in some French ecclesiastical court records of the time.!°8 However, perhaps it was understood. Many of the English orders actually look very like attempts to restore harmony to a marriage that had turned sour. For instance, the conclusion to a case heard at Lichfield in 1525 was this: “The parties appeared personally, and his lordship ordered the woman to be obedient to her husband and to enter upon [his] house and to act honestly towards him, and he enjoined [the husband] not to

inflict any threats or injuries upon the same woman in the future’! In an earlier case from Lincoln, a wife was ordered ‘not to provoke her husband to anger’!!° It was unlawful under the canon law for a man and wife to live apart without a good reason, and many English act books contain both orders issued to and promises made by the parties to live together.111 No doubt the internal forum was

the more frequent venue for dealing with ‘payment of the conjugal debt, but at least in its outward appearances, the obligation also figured in the courts.

Where it was alleged that one party to a marriage not only would not, but could not, render the ‘marital debt’, divorce was a possibility, at least if the impediment had been unknown to the complainant at the time of the contract (X 4.15.5). Almost all surviving cases involved the husband’s natural impotence. Allegations in them followed a regular pattern: the wife alleged the existence of a legitimate marriage, cohabitation for the canonically prescribed three-year period, a desire on her part to become a mother, and the man’s failure to consummate the marriage and satisfy that desire. By no means every case initiated was successful. The canon law regarded them with a certain amount of suspicion—long remembered in stories of men who were ‘cured’ of impotency after having secured a divorce and married someone else, in which case the canonists

debated whether and in what circumstances the man could be compelled to return to the first spouse.!!2 Problems of proof presented the greatest difficulty in this area of the law, and (exceptionally) they have offered the greatest interest for modern historians. 108 Examples are given in Esmein, Le Mariage (above n. 5), ii. 10-11; but cf. Alot c. Alot (Archdnry Chester, 1514), CRO, Act book EDC 1/1, fo. 66, styled a “causa subtractionis debiti coniugalis’. 109 Ex officio c. Hopkynson (Lichfield, 1525), LJRO, Act book B/C/2/1, fo. 66: “Quo die partes person-

aliter comparuerunt et dominus iniunxit mulieri quod sit obediens marito et quod accedat domum cum eodem marito et bene se habeat contra eundem et iniunxit eidem Thome quod non aliquas minas aut verbera imponat eidem mulieri de cetero’ See generally L. R. Poos, “The Heavy-Handed Marriage

Counsellor: Regulating Marriage in some Later-Medieval English Local Ecclesiastical-Court Jurisdictions’ (1995) 39 AJLH 291-309, at 298-303. 110 Fx officio c. Isabel atte Kyrk (Lincoln, 1347) in Poos, Lower Courts, 219. 111 e.g, Ex officio c. Blight (Archdnry Cornwall, 1597), CWRO, Act book ARD/1, fo. 101v: “comparuit et promisit cohabitare’; Ex officio c. Rigton (York, 1406), BI, D/C.AB.1, fo. 38v: the order being to share ‘corpus suum et bona sua’; Ex officio c. Warklyneton (Canterbury, 1373), Act book Y.1.1, fo. 28v: ‘iuratus

est tractare Matildam Trippes uxorem suam maritali affectione tam in mensa quam in lecto’ 112 DD ad X 4.15.1.

DIVORCE d49 That interest stems from one method used to test impotence. The texts of the canon law envisioned proof of impotence being made either by oath of the parties, supported by that of compurgators (X 4.15.5), and also by inspection of the woman's virginity by “faithful matrons of good reputation [who are] experts in the nuptial art’ (X 4.15.7). Both were used in practice, but the latter would have been unhelpful where the woman was not a virgin, and it must have been thought they were not wholly reliable in any event, since on more than one occasion the English courts actually used an inquest of ‘faithful matrons’ to test the man’s sexual abilities. Here is an extract: The same witness exposed her bared breasts and with her hands, warmed at the said fire, she held and rubbed the penis and testicles of the said John, embracing and frequently kissing the same John. And she stirred him up in so far as she was able to demonstrate his virility and potency, admonishing him to prove and render himself a man then and there. And, examined and diligently questioned, she says that the whole time aforesaid the said penis...remained without any increase or decrease.!!3

Having carried out their inspection, the seven women who had taken part cursed the unhappy John for presuming to marry a young woman whom he ‘could not serve and please. Then they left him alone and no doubt quite miserable. Historians sometimes defend the more unattractive usages of the medieval church by admonishing their readers not to judge medieval practice by modern standards. This crude method of proving impotence surely strains that admonition to breaking point. Can it really be regarded as ‘a form of sex therapy ’?114 It did

have a small amount of support among commentators of the time; Thomas Chobham (d. c.1236) endorsed a form of ‘inspection’ of men that sounds very like

it.415 It also had a connection, or at least a parallel, with the French proof by congrés, in which the couple sought to achieve sexual union before a panel of experts as a means of resolving a dispute about impotence.!!6 It might also be said in mitigation that a few men were able to ‘pass’ the test used in England.!!7 But the

latter happened only rarely, and proof by congrés never received the seal of approval of the canonists. Sanchez, for example, referred to it as res turpissima and

113, Russell c. Scathelok (York, 1433), BI, CP.F.111. The Latin text and further examples are given and

discussed in Helmholz, Marriage Litigation (above n. 1), 89-90. A more complete examination of the subject is: Jacqueline Murray, “On the Origins and Role of “Wise Women” in Causes for Annulment on the Grounds of Male Impotence’ (1990) 16 JMH 235-49. 114 Murray, “Wise Womer (above n. 113), 246. 115 See Thomae de Chobham Summa Confessorum, ed. F. Broomfield (1968), 184-5.

116 R, Naz, “Congrés, DDC, iv. 226; Pierre Darmon, Trial by Impotence: Virility and Marriage in Pre-Revolutionary France, trans. Paul Keegan (1985).

117 e.g, Ex officio c. Poynant et al., CUL, EDR Act book D/2/1, ff. 130, 140v, 142: “ad idem quia commissa palpitacione viri, certificatum est nobis de eius sufficienti potentia.

550 MARRIAGE AND DIVORCE concluded that it stood ‘contrary to all natural honesty.!!8 Proving impotence by ‘inspection’ of the man seems to have disappeared from English court practice by the second half of the fifteenth century. Thereafter, the courts seem to have taken a more lenient attitude towards allowing divorce for impotence.!!9 MINORITY

The marriage of children was lawful under the medieval canon law, but its exerc-

ise was limited. The canonists limited its legal effect, not only because they espoused the principle of free consent in marriage, but also because of the subject just discussed—it was necessary that partners to a marriage be able to render the ‘conjugal debt’ to each other.!2° Small children could not. Marriage of children could serve a purpose none the less, and it was not forbidden. Unions involving children cemented family alliances and offered the prospect of controlling the devolution of property. They were positively encouraged by the institution of feudal wardship.!2! Careful research has show that the ‘pre-modern’ pattern of early marriage was not as common in England as had once been thought, but particularly among the propertied classes it was not easily dislodged.!22 Swinburne discussed it with a care too great for us to treat the subject as an irrelevance, and a collection of the records of marriages of children taken from the sixteenth-century records of the diocese of Chester makes a sizeable volume.!?

Omitting some of the many subtleties, the canonical rules dealing with the marriage of children came down to the following. Infants (below the age of 7) could not contract an indissoluble marriage, whether they used words of present or future tense.!24 However, if they did so and after reaching puberty showed a consent to the contract by outward signs—for example, kissing, embracing, giving gifts, naming each other husband and wife—then the marriage was treated as having been validated by their choice, although knowing whether to class the original contract as sponsalia de futuro or sponsalia de praesenti taxed the ingenuity of the learned.!25 Between the age of 7 and puberty (presumed to be at 12 for girls,

118 De matrimontiis, lib. VII, disp. 99, no. 15.

119 e.g. Vaus c. Vaus (York, 1504), BI, Cons.AB.5, fo. 94, in which a divorce was granted upon the

oaths of the parties involved. 120 DD ad X 4.15.2. 121 Joel Hurstfield, The Queen’s Wards: Wardship and Marriage under Elizabeth I (1958), 3-19, 96-107.

Early marriage allowed fathers to avoid control of the marriage of their daughters falling to royal prerogative wardship and guardians to avoid losing their rights to the same. 122 Peter Fleming, Family and Household in Medieval England (2001), 19-23; Ralph Houlbrooke, The English Family 1400-1700 (1984), 63-8, 83-5; Vivien B. Elliott, “Single Women in the London Marriage Market: Age, Status and Mobility, 1598-1619’ in Outhwaite, Marriage and Society (above n. 25), 81-90. 123 Swinburne, Spousals (above n. 17) §§ 5-9; Furnivall, Child-Marriages (above n. 28). 124 A small exception was made where a marriage was held to be necessary pro bono pacis (X 4.2.2). 125 Swinburne, Spousals (above n. 17) § 8, no. 7.

DIVORCE 551 14 for boys), a marriage was presumptively valid, but both parties could ‘reclaim’ against it upon reaching puberty. Either of the children had the right, and where such a reclamation was made, both parties were free to contract with others. This second was the situation that gave rise to most divorces infra annos nubiles found in the court records. The law itself was full of complications. For instance, since it seldom happened that both children were of the same age, what was the effect of delay in ‘reclaiming’ by the first party to reach puberty? Was that person in effect doing the right and sensible thing by waiting until the other came of age, or did it amount to a waiver of the right to object? And what of changes of mind in the interim—could they be presumed from conduct? And were decisions binding once made?!26 We cannot assert that these questions, and others like them, did not arise in litigation. In fact, it is very likely that they did. However, not many divorces on this ground appear in the surviving act books, and the evidence does suggest a certain amount of good sense on the part of the judges.12’ In a sixteenthcentury case from the diocese of Lichfield, for example, the defendant admitted to having been 18 at the time he had contracted marriage with a girl who had been 14 years old ‘or thereabouts. She had reclaimed against the marriage within the following six months, saying before a group of neighbours, “Of all men living I will not have thee’!28 Three witnesses testified to the words. Now, it could have been said that her words amounted to little in the law. The parties seem to have been too old, the ‘reclamation’ too slow, and its place not before the proper authorities. The time for objecting had also gone by. Six years had elapsed from the time of the reclamation by the time the suit was begun. Nevertheless the court granted this divorce. No allegation of consummation was made, and apparently the couple had never set up any kind of household. It is one of the rewards of the hours spent working through court records to find such sensible ‘compromises’ between the formal law and the attitudes and wishes of the people involved. OTHER IMPEDIMENTS

The four impediments just discussed, together with the most frequent source of divorce a vinculo—precontract—do not exhaust the list of diriment impediments available under the canon law. Far from it. William Hay (d. 1542), a Scottish canonist who lectured on the law of marriage at Aberdeen, was repeating the common learning in listing twelve: “Error, condition, vow, kinship, crime, disparity of 126 DD ad X 4.2.7.

127 See Ingram, Church Courts, 173-4; Houlbrooke, Church Courts, 71-5; Leppington c. Blakelock (York, 1605), BI, CP.H.178, a divorce where the capacity of the defendant, at best, severely limited and there had been no cohabitation. 128 Gest c. Parkys (Lichfield, 1530), LJRO, Act book B/C/2/3, fo. 105. The suit was styled “causa divorcii

mota ratione minoris etatis.

552 MARRIAGE AND DIVORCE cult, force, orders, bond of marriage, honesty, affinity, and impotence’.!29 Some these have left no trace whatsoever in the surviving court records. The nature of English society must explain a part, as for example the impediment of ‘disparity of cult’ It existed, for example, where a Christian attempted to marry a Moslem or a Jew and, as things then stood in England, such a case was unlikely to have arisen. Expulsion of the Jews in the late thirteenth century deprives English historlans of more knowledge of the practical workings of this impediment.

The restricted meaning given to some of the impediments explains other absences from the records, such as that relating to error of person. Securing a divorce on this ground required a real mistake as to person—that is marrying Titia reasonably believing her to be Bertha. The canon law was careful not to permit mistake as to the person’s fortune or character to work its way into the law of diriment impediments, and years of working through the surviving records have

disappointed the hope of finding an example of its enforcement, or even its appearance. Some of the absences of these impediments from the records are quite hard to explain. This is so for the impediment of vows, that is marriages contracted by persons who had previously taken vows of chastity of one sort or another. Works by the medieval canonists contain more than ample treatments of the subject, and it may be only the accidents of survival that explain its absence from the historical records. A few of these other impediments did arise, as for example, allegations that there had been an error in condition, one that rendered a marriage voidable. If a free person married someone of servile status without knowing the other person’s true condition, he could secure a divorce a vinculo, except where he had ratified

the contract by consent or sexual intercourse after discovery of the condition (X 4.9.2). Instances have survived from the Middle Ages.13° So far at least, no cases of divorce for error of condition have come to light for later than the fifteenth cen-

tury. In strict law, the impediment could be asserted for all types of villeinage. It is not altogether clear why it was not done more often, in view of the persistence of personal ‘unfreedom’ into the early modern period.!3! The wording of the Henrician statute cutting down the number of diriment impediments seems to exclude it, however, and this may be the best explanation for its disappearance.

The impediment of crime has also left a few traces in the medieval court records. The crime referred to was adultery. Although the canons had once 129 William Hay’s Lectures on Marriage, ed. John Barry (= 24 Stair Soc.; 1967), 48-9. 130 See Helmholz, Marriage Litigation (above n. 1), 100; Pedersen, Marriage Disputes (above n. 1), 183, 189.

131 See Diarmaid MacCulloch, “‘Bondmen under the Tudors’ in Law and Government under the Tudors, ed. Claire Cross, David Loades, and J. J. Scarisbrick (1988) 91-109.

DIVORCE 553 purported to disqualify all adulterers from marrying each other after the death of a first spouse, the canon law as it emerged in the thirteenth century restricted the scope of the impediment to cases where there had been the conjunction of: (1) adultery; (2) knowledge of an existing marriage at the time the adultery occurred; and (3) either ‘machination’ in the death of the first spouse or a sworn contract of marriage during the life of the first spouse.!32 Was this impediment enforced in English practice? The quality of the evidence is not wholly satisfactory. Its existence was undoubtedly known; the impediment of crime appeared in precedent books and was found alleged in some libels.!33 But it cannot have been more than an occasional thing. No unambiguous examples have been found, and there is also evidence to suggest that in cases where it might have been alleged, it was not.!%4

Finally, there was ‘spiritual’ affinity. This impediment was contracted—if that is the right word—by standing as godparent for a child, then seeking to marry one of the immediate kin of the same child. The basic idea was that a godparent was a spiritual parent. Because spiritual relations were as great, if not greater, than carnal relations in the eyes of the law, it followed that marriages between

spiritual kin could not stand, any more than they could where carnal kinship stood in the way (X 4.11.6). Justinian himself had forbidden marriage between a man and a woman whom the man had received from the sacred font (Cod. 5-4.26.2), and it is reasonably assumed that behind his decree stood widespread public feeling.!35 The prohibition was, at any rate, established in the classical canon law. Its reach was broad. When, to take only one example, it was determined that a man had married a woman whose former husband had acted as godfather to the man’s daughter by a prior marriage, the man and woman were divorced. 136

132 X 4.7.1-8; Esmein, Le Mariage (above n. 51), i. 384-93; J. F. Donohue, The Impediment of Crime (1931).

133 e.g, Precedent book (fifteenth century), WTRO, D1/45/1, fo. 1693: “Libellus in causa divorcii quando vivente primo moritur secundus contraxit et polluit mulierem in adulterio’; Precedent book, College of Arms, London, Vincent MS. 419, fo. 127; Ex officio c. Martyn (Canterbury, 1451), CCAL, Act book X.1.1, ff. 42v, 58v, in which compuration was ordered against a man who denied a charge of adul-

tery and collusion in the death of his first wife. Other evidence is discussed in: Helmholz, Marriage

Litigation (above n. 1), 94-8. 134 Helmholz, Marriage Litigation (above n. 1), 94-8. 135 Joseph Lynch, Godparents and Kinship in Early Medieval Europe (1986), 205-57; Will Coster, Baptism and Spiritual Kinship in Early Modern England (2002), 75-9. 136 Fx officio c. Haseldenman and Maister (Canterbury, 1373), CCAL, Y.1.1, fo. 31v: Johannes Maister

nuper maritus dicte Emme filium dicti Henrici constante matrimonio inter ipsum et dictam Emmam de sacro fonte levavit. In Brunyng c. Alice, his wife (Canterbury, 1294), CCAL, Sede Vacante Scrapbook

ITI, no. 21, an inquest was summoned to declare ‘utrum mater Richardi levavit Aliciam uxorem dicti Richardi de sacro fonte. No one could testify that this was so from direct knowledge, although they had heard it said, and the marriage was allowed to stand.

554 MARRIAGE AND DIVORCE Divorce a mensa et thoro Divorces from bed and board, what modern law terms a judicial separation, were

available for three formal reasons under the canon law: adultery, cruelty, and heresy. Such a divorce allowed man and wife to live apart but not to remarry. They

were based upon fault, so that, in theory at least, if one party could prove the other’s adultery, his claim for divorce would nevertheless be defeated if the plaintiff had himself committed adultery. Such cases of mutual recrimination are to be found in English precedent books.!37 Where there was a contest between spouses, the English courts dealt with them as the law demanded. The demanded proof of

either adultery or cruelty, and the standards of discord sufficient to warrant a divorce were not low. The successful cases from medieval England contain some quite frightening accounts of marital violence,!38 and when a divorce was sought, the plaintiff was always careful to allege that he or she could not cohabit with the spouse because of the likely danger of loss to life and limb.139 Even so, contested divorces were not always successful; a careful study concluded that plaintiffs had to possess both ‘an obdurate nature and hard evidence’.!4° More frequent in the medieval court records, however, were divorces granted with the mutual consent of the parties. It is well-nigh impossible for courts to make men and women live together if they are determined to live apart, and the medieval records reflect this fact of life. The judges often made an effort to persuade them to

reconcile—‘by words both soothing and harsh’ as one registrar described his judge’s actions!4!—but if they persisted, they were allowed to separate. The nature

of their attitude is well caught in a case where on 26 October 1525 Margaret Cronkshaw appeared to ask for a divorce from bed and board from her husband John. She lived in fear of her life, she said, and he had beaten her so severely that she had despaired of her life. She and John also took an oath of chastity, one presumes because the judge required it. The judge then granted the petition. No term was assigned for her to prove what she asserted. The next April, however, she and John were back before the court, asking that the prior sentence be annulled and that they be allowed to live together as man and wife. This petition too the judge granted, thereby tacitly annulling the vow of chastity the two had taken.!42 In the late sixteenth and seventeenth centuries the English courts apparently became less willing to grant such consensual divorces. It was part and parcel of the 137 Gilbart c. Gilbart (temp. Eliz. I), Bodl., Rawl. MS. D 699.

138 Helmholz, Marriage Litigation (above n. 1), 105-6. See also several of the essays in Coniugi

nemict: La separazione in Italia dal XII al XVIII secolo, ed. Silvana Seidel Menchi and Diego Quaglioni (2000). 139 E.g, Marsten c. Marsten (1535) in Act Book of the Ecclesiastical Court of Whalley 1510-1538, ed. Alice

Cooke (= 44 Chetham Soc.; 1901), 181. 140 Ingram, Church Courts, 182. 141 Colwell c. Colwell (Canterbury, 1454), CCAL, Act book Y.1.5, fo. 37v: ‘per blanda et aspera. 142, Cronkshaw c. Cronkshaw (1525-6), Whalley Act book (above n. 139), 105-6.

DIVORCE D55 church’s effort to exercise greater control over marriage,!*3 and the result appears in the court records: not many cases of divorce a mensa et thoro and more ex officio prosecutions against married couples who were living apart.!44 The canons of 1604

tightened up the procedures to be used in all divorce cases, including these. Satisfactory proof was to be required. Confession of the parties was not to be credited. Sentences were to be pronounced with suitable formality. Judges who disregarded the canon laws rules were to be suspended from the exercise of their office for the term of a year.!45 Probably the canons made a difference. Still, the newly stiffened attitude cannot have been totally effective. One seventeenth-century precedent book still contained a form drawn up for divorces granted by mutual consent.!46 There was a time, during Elizabeth’s reign, when it looked to be a real possibility that the English church might go in the other direction, embracing the reform adopted in some of the Continental Protestant churches that allowed the innocent

party in a divorce a mensa et thoro to remarry and that permitted divorce for desertion. The Reformatio legum ecclesiasticarum had sanctioned both;!4’ there were those among English theologians who advocated the change;!48 and the records of the ecclesiastical courts contain both petitions for permission to remarry after a divorce and evidence that it was sometimes allowed in practice.149 However, most of the civilians opposed any alteration in the law on this score, and

the moment of opportunity for change passed. The canons of 1597 and 1604 rejected the possibility. Indeed, the latter took positive steps to make sure it did not happen. A canon required that the parties actually enter into a penal bond not to remarry as a condition of receiving a divorce from bed and board.15° The story of attempts to allow remarriage after a lengthy desertion is a little

different, but the result was the same. Parliament enacted a statute making it a felony to marry before seven years had elapsed after being deserted by one’s spouse (1 Jac. I, c. 11, 1603-04). The statute might have been read a contrario sensu to allow

remarriage after seven years. But the civilians read it to apply only to criminal penalties, holding that ‘in other respects the ius commune is still in force’! And 143 Ingram, Church Courts, 185.

144 Houlbrooke, Church Courts, 68-9; Ingram, Church Courts, 180-8. 145 Canons of 1604, cc. 105-9 in Anglican Canons, 404-7. 146 MLD, MS. Z.3.1.18 (pt. 2), fo. 7v: “Sentencia divortii a thoro et mensa de mutuo consensu.

147 Tit. 10.5-9, in Tudor Church Reform, 266-71. 148 See Ingram, Church Courts, 146-7. 149 Edwardes c. Bradshaw (c.1585), Bodl. Tanner MS. 164, fo. 207 (question raised); Ex officio c. Jones (London, 1589), GL, Act book MS. 9064/13, fo. 27 (confession of party to having done so not punished);

Warham c. Warham (temp. Eliz. I), MLD, MS. Z.3.1.18 (pt. 2), fo. 143 (libel including prayer to be allowed to remarry). See also “Martin Harburgh’s Divorce’ (1574), in Reports from the Lost Notebooks of Sir James Dyer, ii, ed. J. H. Baker (= 110 Selden Soc.; 1994), no. 391. 150 Canons of 1597, c. 6:3 and Canons of 1604, c. 107 in Anglican Canons, 242-3, 406-7. The practice was mentioned in a contemporary proctor’s notebook: CUL, EDR F/5/45, p. 186. 151 “Causa absentis coniugis’ (c.1610), BI, Prec. Bk 11, fo. 2v. Other examples are given in: Helmholz, Roman Canon Law, 166.

556 MARRIAGE AND DIVORCE so it happened that ‘the gates of exit from true matrimony had all been closed, with the dubious exception of a narrow portal, one opened only for the rich. That was the possibility of divorce by act of Parliament.!>

ANCILLARY CAUSES TOUCHING MARRIAGE The canon law contained provisions to deal with what the canonists called causae spirituali annexae, that is matters so closely related to the substance of the law of marriage (or other spiritual subject) that they came within the church’s competence. The

claim for canonical jurisdiction was not as strong as that over marriage itself. Disputes over succession to feudal land, for example, were conceded to the temporal forum (X 2.2.7). The Corpus iuris canonici had little to say about the adoption of children.!53 However, titles dealing with the legitimacy of children, matrimonial endowment, and gifts between husband and wife appeared in the Decretals. In these areas, the courts of the church offered an alternative to the common law. A history of ecclesiastical jurisdiction must take notice of the cases where the offer was accepted.

Illegitimacy In so far as the remaining records are representative, the English spiritual courts entertained few or no suits brought purely to establish that a person was of legitimate birth.!54 Legitimation of children was no part of English law, and the ecclesiastical courts did not attempt to force the issue even where the disputed question was the legitimacy of a child born to married partners. A fifteenth-century precedent book from the diocese of Salisbury does contain forms for what it called a causa bastardiae, but few contested causes on the subject actually appear in surviving act books.!5> [legitimate birth was a bar to ordination in the medieval canon law, and this was more than theory in England. However, dispensations from the rule could be procured from the papal court. Perhaps that explains a part 152, Alan Macfarlane, Marriage and Love in England 1300-1840 (1986), 225; Lawrence Stone, The Road to Divorce: England 1530-1987 (1990), 301-46.

153 This has led to controversy over whether the canon law intentionally discouraged adoption in order to encourage gifts to the church; see Jack Goody, The Development of the Family and Marriage in Europe (1983), 68-84 (arguing that it did); Lloyd Bonfield, “Canon Law and Family Law in Medieval Western Christendom’ (1991) 6 Continuity and Change 361-74 (that it did not). See generally Franck Roumy, L’Adoption dans le droit savant du XII’ au XVI siécle (1992). 154 They were sometimes found in bishops’ registers, however; see e.g. Matter of Austyn (London, 1319) in Reg. Stephani Gravesend, ed. R. C. Fowler (= 7 C. & Y. Soc.; 1911), 209-10. What practical effect

these certificates had is difficult to know. 155 WTRO, D1/45/1, ff. 1636-1637, 1698v. One of the few exceptions is Haworth c. Haworth (Lichfield, 1465-6), LJRO, Act book B/C/1/1, fo. 38v, marked ‘causa illegitimationis sive bastardie’.

ANCILLARY CAUSES TOUCHING MARRIAGE 557 of the subject’s absence from English court records.15° It was treated as an administrative matter. Post-Reformation dispensation was issued by the Court of Faculties, but this too produced few contested cases in the courts. The issue of legitimacy did arise in the context of litigation, however, in suits brought in the royal courts involving inheritance to real property. When one party claimed the other could not inherit land because of the latter’s illegitimate birth, the English custom was to suspend the action and send a writ to the bishop for decision of the question of legitimacy. This practice—generous to the church—

was actually open to challenge under the canon law. It could be said that it ‘perverted’ the ordo iuris and led to ‘confusion’ of jurisdictions.!5”7 At the same time, the practice could also be supported by a papal decretal (X 4.17.7), one that conceded that the temporal forum rightly possessed jurisdiction over land held

by feudal ties, but asserted that the church must judge all questions involving marriage. There was a choice to be made. In France, lawyers regularly ignored the church’s claims from the late thirteenth century, and jurisdiction came in the end to rest within the temporal sphere.!58 In England, by contrast, the common law’s solicitude for the jurisdiction of the church and its adherence to traditional norms

kept this from happening. The custom of reference to the church lasted a long time.!59 Indeed, it proved to be useful under the Tudors in establishing personal freedom, for the perhaps surprising reason that a bastard could not be a serf. Serfdom passed only through the male line, and for this reason a child without a known father could not be considered a villein. Establishing illegitimacy required a certificate from the bishop, and it became what its foremost student has called ‘a foolproof road to freedom for England’s serfs’16° Although this purpose passed out of use with the practical demise of villeinage, the system of certification by the bishop was still in operation when Blackstone wrote.!®! Few signs of the system’s workings remain in the court books, however, probably because they were normally handled by inquests convoked at the request of the bishops. In other words, the system retained a hold on practice, but the inquests that made it work found no place in the ordinary records of the consistory courts.!© 156 See, however, CUL, EDR F/5/32, ff. 31v-32, a fifteenth-century formulary containing several dispensations, but all coming from the papal court. 157 The argument was made in a fifteenth-century formulary: CCAL, MS. D 8, ff. 18-18v. 158 Philippe de Beaumanoir, Coutumes de Beauvaisis, ed. A. Salmon (1899), no. 578, stressing that “teus debas depend de l’eritage’. See Anne Lefebvre-Teillard, “Causa natalium ad forum ecclesiasticum spectat: un pouvoir redoubtable et redouté (2000) 7 Cahiers de recherches médiévales (XII]e—XVe s.) 93-103. 159 See Canon Law and the Law of England, 187-210. 160 See MacCulloch, ‘Bondmen under the Tudors’ (above n. 131), 101. Some certificates from the

bishops are found on the plea rolls of the Court of Common Pleas and the Chancery. 161 Bl, Comm., ill. 355.

162 e.g, Dyne c. Dyne (Lincoln, 1293-4) in Select Canterbury Cases, D.17 (pp. 612-27).

558 MARRIAGE AND DIVORCE Over the course of time, the English common law developed exceptions to the rule requiring reference to the bishops, normally where its definition of illegitimacy was different from that of the canon law. The best known gave rise to a confrontation at Merton in 1234, where the English barons uttered their celebrated Nolumus in reply to the urging of the bishops that English law of inheritance be brought into line with the ius commune. The barons were unwilling to treat as legitimate a child of parents who had married in facie ecclesiae only after the child’s birth.1°3 In such cases, the English royal courts kept decision of the question of legitimacy to themselves. About legitimacy, the laws of church and state on this point were never harmonious. The common law could not permit the church to decide questions that affected inheritance of land if its definition was to be prevail. A similar example was the law related to the children of divorced parents or children born of adulterous liaisons. The common law came to treat children of parents whose marriage was later dissolved for precontract as illegitimate; the canon law’s test, however, depended upon the knowledge and good faith of the parents. The church treated the children as legitimate if at least one of the parents had been honestly ignorant of the impediment.

Alimony When a man and woman are divorced, in modern law until a few years ago the man was customarily required to pay alimony to the woman. It was a payment meant to support her. What place did it have in the classical canon law? Scholars who have looked have found very little on the subject in the medieval texts and commentaries.!°4 This is confirmed by examining Sanchez’s treatment; it makes the obligation dependent upon receipt of the woman’s dowry.!® However, the Roman law envisioned a payment being made while the legitimacy of a marriage was being determined (Dig. 25.3.7), and this became the English practice in causae divorcit, as well as in ordinary matrimonial litigation once a de facto marriage had

been shown.!° After the cause had been decided, of course, the question was moot. If the petition was unsuccessful, the couple were obliged to return to mutual cohabitation. If successful, the marriage had been declared null ab initio. No effects remained, although the woman’s dowry was to be returned to her and a fair division made of the assets they had held together while married (X 4.20.2). The harder and more urgent case was judicial separation. This was of particular importance since the parties were not allowed to remarry. The legal question was 163 FW. Maitland, introd. to Bracton’s Note Book (1887), i. 104-10. The text of the barons’ refusal is

given in Stat. Merton, c. 9 (1236) in SR, 1. 4. 164 e.g, Esmein, Le Mariage (above n. 5), li. 95-6. 165 Sanchez, De matrimonits, lib. IX, disp. 4, no. 19. 166 Ayliffe, Parergon, tit. Of alimony (p. 59).

ANCILLARY CAUSES TOUCHING MARRIAGE 559 whether the obligations attendant upon a marriage continued despite divorce a mensa et thoro. On the one hand, the duty of living together, the marital debt, ceased. So, it seemed as a matter of logic, should lesser duties. On the other hand,

the marriage bond itself did not cease. Logic was not everything; the equities favoured recognition of a continued obligation to a woman on her own.!°” The result was one of those theoretical “stand-offs’ that sometimes characterized the ius commune. Sanchez raised a host of possible distinctions: Had any dowry been paid? Had it been refunded? Which party had committed the offence that gave rise to the divorce? What if the woman was richer than the man? What if one of them was sentenced to the triremes? What if one of them became a heretic?!® All these might, or might not, affect the outcome. Sanchez ended his discussion saying: ‘Tandem dubitabis. To this, readers impatient for an answer can only say Amen. In England, the history was more straightforward. During the Middle Ages, long-term alimony awards were not normally made in divorce causes except by agreement of the parties, perhaps under prodding by the judges.!©? Awards of

alimony pendente lite were frequently made, but they were limited, as their name implies, to the period of the litigation itself. Common practice offered what a sixteenth-century source described as ‘slender relief for distressed wives’ over

a longer term,!”° and during Elizabeth’s reign the Privy Council licensed the branches of the court of High Commission to make orders for ‘reasonable alimony and maintenance’ in cases of divorce a mensa et thoro. The courts made regular use of this licence,!7! and the practice of coupling sentences of divorce with awards of alimony quickly spread even to the ordinary ecclesiastical courts.172

The development was controversial at the time. It led to complaints: in Parliament, that the availability of alimony encouraged wives to be “disobedient and contemptuous’ to their husbands; in the common law courts, that the awards violated the rule that suits over lay debts and chattels could only be heard in 167 Sanchez, De matrimontiis, lib. VII, disp. 93, no. 22: finding ‘magna aequitas’ in the woman’s favour, but concluding none the less, ‘[N]ullam tamen obligationis rationem invenio. 168 De matrimontiis, lib. IX, disp. 4, no. 1—disp. 5, no. 18. See also CUL, CUA Collect.Admin. 38, fo. 271, where both sides are argued. 169 Dencourt c. Mervyn (Canterbury, 1394), CCAL, Act book U.40, fo. 70 (award to be paid yearly); Wallerond c. Wallerond (Winchester, 1522), HRO, Act book 21M65/C1/1, fo. 56 (wife’s third to be paid to

her presently). 170 See the exposition in a tract entitled “The Cheife Branches of the Commission, BI, HC.Misc.9. 171 e.g, Ex officio c. Ellis (York, 1612), BI, HC.AB.16, fo. 13v, where alimony was allowed even though

no divorce was granted, because it was shown that the husband was likely to go overseas and had acted uncharitably towards the wife. 172 e.g, Ex officio c. Osbourne (Norwich, 1593), NNRO, Act book 25 s.d.1 Aug., the award being made

‘pro facultatibus ipsius Thome eidem Marie ex taxacione domini iudicantis’; Halford c. Halford (Chester and York, 1600), BI, Trans.CP.1600/1: the award being made despite the fact that it was the woman who had committed adultery; see other examples in Helmholz, Roman Canon Law, 77-9.

560 MARRIAGE AND DIVORCE a temporal forum; and on the stage, that alimony’s availability had unleashed upon the world women of ‘strong and enlarged’ sexual appetites.!73 Despite objections, alimony awards became a regular part of English ecclesiastical jurisdiction. Rules for assessing the size of the award of alimony began to appear in proctors’ notebooks,!”4 and in time awarding alimony passed into the common law itself under the Matrimonial Causes Act of 1857 (20 & 21 Vict. c. 85 § 17). It is only in very recent days that the obligation risks becoming obsolete.

Support of Illegitimate Children Under the canon law, parents had a duty to support their children (X 4.7.5); it was regarded as a part of natural law.!75 Evolution of the duty is a textbook example of the progressive ‘softening’ of the stern regime of classical Roman law, which had accorded more powers than duties to the father. It happened first by imperial constitutions and then under the canon law.!”° The ‘softening’ was, in any event, one endorsed by all the canonists, and it was also enforced in the English ecclesiastical

courts through most of the period covered by this volume. In entertaining petitions by mothers on behalf of their illegitimate children and in initiating ex officio actions against the fathers, the courts required fathers to pay for the maintenance of their children.!7”7 Not much, it seems, but something. Wherever they could, the judges sought agreement of the fathers involved, but even without it, orders ‘to cause the child to be cared for’ were regular features of court practice. Sometimes they were coupled with orders to endow the woman herself, presumably so that she herself might find a husband.178 The most troublesome question in practice was always that of proving paternity—

described by a standard treatise as ‘difficult and almost impossible’ under the normally high standards of proof endorsed in the ius commune.179 Because of the

difficulties, the jurists were prepared to sanction proof “by presumptions and conjectures. These included access, public fame, out of court admissions, even similarity in looks, and of course there were the normal ampliations and limitations within each of these categories.18° Evidence from practice, though not as full 173 Proceedings in Parliament 1610, ed. Elizabeth Foster (1966), i. 265; Sir Edward Powell’s Case (CP 1641) March 80 (pl. 119); Lady Alimony, or the Alimony Lady (London, 1659), Act 2, sc. 2. 174 e.g, Notebook (c.1637), NUL, Act book AN/A 43, 5th folio from the end.

175 Gl. ord. ad X 4.7.5, s.v. secundum facultates: ‘nam educatio filiorum de iure naturali est... et ex

instinctu naturae procedit. 176 See e.g. Cod. 6.61.8.4; Nov. 89.15.pr; Biondo Biondi, I] diritto romano Christiano (1952-4),

ili. 290-7. 177 For fuller discussion, see Canon Law and the Law of England, 169-86. 178 e.g, Ex officio c. Rede (Winchester, 1517), Act book B/1/A. 1, fo. 65: ‘necnon dabit dicte Agneti

xx s. in dotem’ 179 Mascardus, De probationibus, i, concl. 787, no. 6. 180 Ibid., concl. 787-96.

ANCILLARY CAUSES TOUCHING MARRIAGE 561 as a cautious historian could wish, suggests that the English judges did look to the presumptions endorsed in the commentaries. However, it is also undeniable that they used compurgation to test a father’s denial of paternity more often than the treatises might lead one to expect.

Like alimony awards, child support was taken over and made a part of the common law, but it happened much sooner. The Elizabethan Poor Law empowered justices of the peace to order parents to provide for the support of their illegitimate children (18 Eliz. I, c. 3, s. 1, 1576). It contained a ‘savings clause’ for

ecclesiastical jurisdiction, and the spiritual courts continued to exercise their traditional jurisdiction immediately after passage of the statute. However, it fell out of use in time, and finally it became possible for lawyers to suppose that the statute created an entirely new duty.!8! It might appear that English fathers had once been under no duty whatsoever to care for their illegitimate children, whereas what actually happened was that the duty had been there all along. It was simply moved from one side of the line between temporal and spir-

itual jurisdiction to the other. How great the problems caused by illegitimacy were on both sides of the jurisdictional divide has been a matter of study and dispute. 182

Matrimonial Gifts Gifts made upon the occasion of a marriage included those made to the couple by parents and relations and those made by the man and woman to each other. The canon law did not regard these gifts as being ‘of the essence’ in marriages, despite a text in the Decretum to the contrary (C. 30 q. 5 c. 6). The Decretals did, however, contain a title on the subject (X 4.20.1-8). Its chapters attempted to establish three things. First, they announced that the church courts could deal with questions relating to matrimonial gifts as ‘accessory to their competence over matrimonial causes properly speaking (X 4.20.3). The church did not claim exclusive jurisdiction over gifts, but ecclesiastical courts could judge disputes about them as part 0 a competence shared with temporal courts. Second, they stated that upon the dissolution of a marriage, in the absence of special circumstances, the woman’s dowry should be returned to her, the man’s donatio propter nuptias should be returned to him, and the common property of the couple should be divided (X 4.20.1, 5). Moreover, in some circumstances, the substance of these gifts might have to be protected during the marriage itself. Intervention to prevent dissipation of the assets was possible. Third, a woman 181 See e.g. Ivy Pinchbeck and Margaret Hewitt, Children in English Society (1969-73), 1. 206-14. 182 See e.g. Richard Adair, Courtship, Illegitimacy and Marriage in Early Modern England (1996), 48-91.

562 MARRIAGE AND DIVORCE who committed adultery or deserted her husband thereby lost the right to her dowry (X 4.20.4). This was the same rule adopted in the English common law, although the meaning of the term dos was quite different.183 A married woman forfeited her right to a life estate in one-third of her husband’s land if she deserted him (13 Edw. I [Westminster II], c. 34, 1285).184 The same underlying principle was part of the canon law. The English ecclesiastical courts could not have carried out the terms of the

Decretals fully. They held no direct jurisdiction over freehold land,!8> and their control of gifts of chattels at marriage was incomplete.18° At most, the spiritual courts held a concurrent jurisdiction over gifts connected with marriage,

and it is certain that most such litigation took place before the common law Courts. However, men and women did sometimes choose the ecclesiastical forum, and when they did, the courts attempted to carry out the ‘spirit’ of the law found in the Decretals. When, for example, a divorce for precontract was celebrated at Canterbury in 1519, the judge ordered the man to ‘return to [the woman] the goods which she had brought with her at the time of spousals’!87 And when a suit over the validity of a marriage was being settled in 1621, the judge entertained a plea over the chattels that were being given on the woman’s behalf.!88 The act books do not overflow with causes like these. Matrimonial contracts including intricate property transactions are not normally found in ecclesiastical archives. The most that can be said is that the court records do

contain the occasional causa donationis in nuptias and causa restitutionts dotis,189 and that they also left a mark in the notebooks of proctors.!9° Gifts made in consideration of marriage also sometimes figured in the settlement of decedents’ estates.19! 183 Glanvill, lib. VII, c. 14; compare gl. ord. ad C. 27 q. 2 c. 31, s.v. dotavit: ‘Id est, donationem propter

nuptias dedit, nam secundum leges mulier dat dotem et vir donationem’ 184 See Paul Brand, ““Deserving” and “Undeserving” Wives: Earning and Forfeiting Dower in Medieval England’ (2001) 22 JHL 1-20; Joseph Biancalana, “The Writ of Dower and Chapter 49 of Westminster P (1990) 49 CL] 91-116. 185 Bracton, fo. 407b; Glanvill had been prepared to admit ecclesiastical competence if the plaintiff chose it; see lib. VIII, c. 18.

186 Pollock and Maitland, i. 427-36; Robert Palmer, ‘Contexts of Marriage in Medieval England: Evidence from the King’s Court circa 1300’ (1984) 59 Speculum 42-67. 187 Ex officio c. Ketynton and Stevynson (Canterbury, 1519), CCAL, Act book Y.2.10, fo. 62v: “quod

deliberabit ei talia bona qualia adduxit secum in tempore sponsalicie sub pena excommunicationis. 188 Greene c. Greene and Welche (Archdnry Buckingham, 1621), BKRO, Act book D/A/C/8, fo. 40. 189 e.g, Reve c. Baker (Exeter, 1599), DRO, Act book CC 784C, s.d. 16 Feb.; Dangell c. Smythe (York, 1522), BI, Act book D/C.AB.2, fo. 296v; Ex officio c. Reynold (London, 1476), GL, Act book MS. 9064/2, fo. 159; a few other examples are given in Helmholz, Marriage Litigation (above n. 1), 110. 190 Anon. notebook (seventeenth century), LPL, MS. 1371, fo. 11, stating the rules as to restoration of

goods given as dowry upon dissolution of the marriage. 191 e.g, Seelow c. Execs. Thomas Darwentwater (York, 1514), BI, D/C.CP.1514/1 (sheep and money).

CHANGES AND CONTINUITIES 563 CHANGES AND CONTINUITIES The history of the law of marriage and divorce in England is remarkable both for the changes it witnessed and for its stability over time. The stability was the dominant of the two. And it is the more surprising. Once the rules for the formation of

marriage had been agreed upon in the thirteenth century, the English church scarcely deviated from them. The church maintained most of its jurisdiction over

the law of marriage and divorce. Whatever changes the Reformation made in ‘demoting’ marriage from the status of a sacrament to that of a contract, this had little effect on the law or in the courts.192 The temporal courts did not provide an alternative forum, as happened in several places on the Continent. Nor did the English church adopt the reforms enacted by the Council of Trent, requiring the presence of the parochial curate as a condition of a marriage’s validity. Private contracts per verba de praesenti remained judicially enforceable. Neither did the English church adopt the reforms of the Protestant churches on the Continent, reforms that recognized a right to remarry after divorce in a small but significant measure. In 1628, Christopher Sherland remarked in the House of Commons that the ancient canons were ‘counsels of mature deliberation and ancient marks of our church. He opposed any move to ‘esteem ourselves wiser than our fathers’.!93 His views appear to have been widely shared. Whatever fundamental shifts in the

population’s attitudes towards marriage and the family themselves may have occurred after 1500,!94 they did not find expression in fundamental legal change within the English church’s law of marriage and divorce. There were changes in law and practice none the less. Several of them have been noticed along the way. Abjuration sub pena nubendi was abandoned as a sanction for fornication in the fifteenth century, because it was regarded as a penalty inconsistent with the freedom that should inhere in marriage. Causes for ‘jactitation’ or false boasting that a marriage had been contracted were allowed. Standards of proof for clandestine marriages were tightened up in the sixteenth century, as a step necessary to discourage violation of the church’s laws about solemnization in facie ecclesiae. The scope of the diriment impediments was cut down by a statute enacted under Henry VIII, part of a general movement to make it easier to contract marriages that were not thought to violate the laws of God.195 Prosecutions 192 See generally Christine Peters, “Gender, Sacrament and Ritual: The Making and Meaning of Marriage in Late Medieval and Early Modern England’ (2000) 169 Past & Present 63-96. 193 Quoted in Carlson, Marriage (above n. 1), 141. 194 This is the theme of Lawrence Stone, The Family, Sex and Marriage in England, 1500-1800 (1977). It remains controversial; see e.g. Kathleen Davies, “Continuity and Change in Literary Advice on Marriage’ in Marriage and Society (above n. 23), 58-80; Houlbrooke, The English Family (above n. 122), 14-17.

195 See Esmein, Le Mariage (above n. 5), 240-86; Pierre Bels, Le Mariage des protestants francais jusquen 1685 (1968), 220-7; Witte, From Sacrament to Contract (above n. 1), 61-5.

564 MARRIAGE AND DIVORCE for marrying at prohibited times of the year, or without banns or a licence, were brought with frequency from the sixteenth century.!% The greatest change, however, was not anything that occurred in law. It was rather what happened in fact. Every study so far undertaken of the court records has found a decline in the number of matrimonial causes over the course of the later Middle Ages. At all times, matrimonial litigation dealt principally with establishing the existence and validity of a marriage contract, not with divorce. However,

there were fewer of them as time went on. During the fourteenth century, a large part of the litigation heard by the courts dealt with marriage; by the end of the fifteenth century it was a much smaller part. Occasional spikes upwards occurred thereafter, but the broad movement downwards remained unchanged.!9”7 Other kinds of litigation predominated in the ecclesiastical courts, and the causa matrtmontalis ceased to be more than an occasional entry in the records. Identifying the reason for this decline in numbers cannot be other than an exercise in reasonable speculation. Most of the historians who have worked through the records in search of an answer have ascribed it to a growing acceptance among the laity of the church’s rules about marriage.!98 Probably the affirmative steps taken during the sixteenth century to make proving clandestine marriages more difficult also played a role in the decline. Perhaps a wider availability of licences for clandestine marriages also helped.199 None of it could have happened, however, until the church’s standards about contracting marriage in facie ecclesiae had worked their ways into popular mores. That process was not complete by 1500. It was not complete even by 1640. But movement in that direction was taking place. Signs of it are discernible in the court records. 196 See e.g. the many ex officio prosecutions for 1608-9, in CCAL, Act book X.9.7, ff. 60v—82v. 197 There does appear, for example, to have been a slight ‘uptick’ in numbers at York during the first decades of the sixteenth century. See e.g. BI, Cons.AB.5. 198 Marchant, The Church under the Law, 61; Ingram, ‘Spousals Litigation’ (above n. 23), 54-5; Ralph

Houlbrooke, “The Making of Marriage in Mid-Tudor England: Evidence from the Records of Matrimonial Contract Litigation’ (1985) 10 Jnl Family History 339-51, at 351; Helmholz, Marriage Litigation (above n. 1), 72-3. A contrary view, based upon the possibility that cases might have gone to

other courts, is expressed by Richard Smith, “Marriage Processes in the English Past: Some Continuities’ in The World we have Gained, ed. Lloyd Bonfield, R. M. Smith and Keith Wrightson (1986), 43-99.

199 Jeremy Boulton, ‘Itching after Private Marryings? Marriage Customs in Seventeenth-Century Londor’ (1991) 16 The London Jnl 15-34.

11

Defamation POKEN words gave rise to the great majority of the causes that came before the SEnelich ecclesiastical courts during the later Middle Ages. Only the increase in

tithe litigation that occurred in the second half of the sixteenth century would alter the balance, and then not by very much. Words were what counted. This is a remarkable finding to emerge from examination of the English court records. The dominance of spoken words in ecclesiastical litigation would be hard to predict simply from looking at the courts’ jurisdictional competence. It would also make

a sharp contrast with the written nature of proceedings in the spiritual courts. One naturally supposes that writings would have been the most regular concern in a court system that itself produced so much documentation and set such great store by it. But it was not so. In the law of marriage, testaments, and breach of faith, it was what had been said aloud that furnished the evidence at the heart of most causes brought before the spiritual courts. The absence of a strong notarial tradition in England must have made a difference. On the criminal side too—in prosecutions for blasphemy, heresy, and the many minor offences like scolding or reviling the curate—spoken words, rather than documents, were what the courts of the English church had to consider.

Nowhere, however, were spoken words more prominent than in the area of jurisdiction that is the subject of this chapter: the law of defamation. Written defamation, what we call libel, played a negligible part in court practice, even though nothing prevented it from being heard by the ecclesiastical courts, as it occasionally was in fact. The advent of the printing press did not immediately change the character of what came before the courts; it was oral defamation that was the staple part of litigation in the ecclesiastical forum well into early modern

times.! It seems to have remained at the centre too. Some jurisdiction over 1 For comment on the records and evidence of the incidence of defamation causes, see Wunderli, London Church Courts, 63-80; Houlbrooke, Church Courts, 79-83, 273-81; C. A. Haigh, ‘Slander and the

Church Courts in the Sixteenth Century’ (1975) 78 Transactions of the Lancashire and Cheshire Antiquarian Soc. 1-13; Marchant, Church under the Law, 19-20, 71-5; Woodcock, Medieval Courts,

87-89; Martin Ingram, ‘Law, Litigants and the Construction of “Honour”; Slander Suits in Early Modern England’ in The Moral World of the Law, ed. Peter Coss (2000), 134-60.

566 DEFAMATION defamation was retained within the church’s jurisdiction until the nineteenth century, although by the eighteenth the jurisdiction was greatly reduced in volume

and probably also in its general acceptability among the English populace.” Its primary concern continued to be spoken slander.3 In the hands of able social historians, the study of defamation litigation has illuminated many areas of human life—gender relations and the place of personal honour in English villages, among others.* Literary historians have also found the subject attractive.> This volume must stick to the legal side, but it is important not

to lose sight of the wider aspects entirely. We should remember that they were present, even if they were legally irrelevant and only rarely noted explicitly in the court records. Men and women placed a high value on the preservation of their reputations. They also used defamatory utterances (and the resources of the church’s system of courts) in order to bring shame and hardship upon their enemies. In addition, quarrels about defamation often formed one small part of much more complicated disputes among neighbours.® Any one of these motives—and more—may have been at play in what looks like routine defamation litigation. That they were kept out of the records did not keep them out of the participants’ minds. Unless we recognize their existence, we will find it hard to fathom why so much energy and money were spent on the trivial quarrels and inconsequential insults that so often came before the ecclesiastical courts.

THE IUS COMMUNE AND DEFAMATION The regular presence of defamation litigation in the English ecclesiastical courts could not have been predicted from the texts of the classical canon law. Slander was not counted as among the causae spirituales. It was not one of the subjects the church had a special stake in defining and regulating. No great percentage of the 2 For the latter, see S. M. Waddams, Sexual Slander in Nineteenth-Century England: Defamation in

the Ecclesiastical Courts, 1815-1855 (2000). 3 ibid. 23-4. 4 e.g. Elizabeth Foyster, Manhood in Early Modern England: Honour, Sex and Marriage (1999); Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London (1996); Susan Amussen, An Ordered Society: Gender and Class in Early Modern England (1988), 101-4, 144-5: J. A. Sharpe, Defamation and Sexual Slander in Early Modern England: the Church Courts at York (1980); L. R. Poos, ‘Sex, Lies, and the Church Courts of Pre-Reformation England’ (1995) 25 Jnl Interdisciplinary History 585-607.

5 M. Lindsay Kaplan, The Culture of Slander in Early Modern England (1997); Lisa Jardine, “Why Should he Call her Whore? Defamation and Desdemona’s Case’ in Addressing Frank Kermode, ed. Margaret Tudeau-Clayton and Martin Warner (1991), 124-53. 6 Phillipp R. Schofield, “Peasants and the Manor Court’ (1998) 159 Past e& Present 3-42, at 29-37; Adam Fox, “Ballads, Libels and Popular Ridicule in Jacobean England’ (1994) 145 Past & Present 47-83;

J. A. Sharpe, ““Such Disagreements betwyx Neighbours”: Litigation and Human Relations in Early Modern England’ in Disputes and Settlements: Law and Human Relations in the West, ed. John Bossy (1983), 167-87; John Addy, Sin and Society in the Seventeenth Century (1989), 113-26.

THE IUS COMMUNE AND DEFAMATION 567 litigants who came before the courts in defamation causes were in holy orders, so that competence ratione personae cannot explain the English church’s jurisdiction over it. Nor in point of fact was there anything remotely spiritual about most of

the spoken words with which the English courts had to contend. On the Continent, in so far as one can judge, the result that followed naturally from the written law also obtained in practice. Defamation did not form a regular part of the competence of ecclesiastical courts in France.” A pioneering investigation of the Italian courts also shows it firmly on the secular side of the legal system,’ and German studies of ecclesiastical courts seem in accord.° The very existence of the medieval English church’s jurisdiction over defamation therefore seems puzzling. As unsatisfactory as it may be, the force of custom must again be acknowledged if one is to explain what happened. It might therefore seem sensible to set the learned laws to one side and concentrate on the cases themselves. However, this would be a mistake. Coverage of the academic law is not a waste of time. Although the canon law contained no special heading for defamation, it did contain abundant legal resources upon which the English ecclesiastical lawyers drew in defamation litigation. If particular texts and specific approaches to slander did not matter at one specific moment, they might come to matter at a later one. Much the same can be said of the Roman law half of the ius commune. A brief examination of the ius commune turns out to be essential in setting the English law of defamation into a proper context.

Gratian’s Decretum Gratian dealt with defamatory utterances at several points, but nowhere in the Decretum did he present the subject as worthy of treatment in its own right. Slander was always incidental to some other subject of greater importance. All the

same, Gratian did raise points of relevance to it. For example, a person who insulted another should not be treated as guilty of the offence if he was not doli capax, as in the case of an insane person or young child (C. 16 q.1¢. 2). The point of this canon was to clarify the concept of guilt in the canon law. However, Gratian and his commentators recognized that it might also be necessary to determine 7 See Lefebvre-Teillard, Les Officialités, 80, 127-9; Christelle Walravens, “Insultes, blasphemes ou héresie? Un proces a Vofficialité épiscopale de Troyes en 1445’ (1996) 154 Bibliotheque de lEcole des

chartes 485-507. 8 Daniel Lesnick, ‘Insults and Threats in Medieval Todi’ (1991) 17 JMH 71-83. 9 e.g. Ludwig Kaas, Die geistliche Gerichtsbarkeit der katholischen Kirche in Preussen (1915, repr. 1965),

20-2; Ingeborg Buchholz-Johanek, Geistliche Richter und geistliches Gericht im spdtmittelalterlichen Bistum Eichstatt (1988), 94-127, 145-61; Georg May, Die geistliche Gerichtsbarkeit des Erzbischofs von Mainz in Thiirinten des spaten Mittelalters (1956), 138-58; see also Peter Erd6, “Tribunali ecclesiastici medievali in Polonia e in Ungheria’ (1995) 36 Studi medievali (3rd ser.) 323-43, at 338.

568 DEFAMATION whether a particular insult constituted a legally wrongful act. Similarly, a text in the Decretum stated that ‘scurrilous and jesting clergy who use disgraceful language were to be removed from their offices’ (Dist. 46 c. 5). The point of this canon was to secure a clerical order beyond reproach, but it was quite obvious that it might also be necessary to determine whether the cleric’s language met the test of actionable scurrility. By such an indirect path, Gratian showed that deciding how to treat defamatory language could come within the ambit of the canon law and could deserve the attention of commentators.

Perhaps the canons related most closely with later English developments appeared in Causa 5 of the Decretum. The Causa dealt inter alia with the question of what should be done with the author of a libellus famosus written to denigrate the reputation of a bishop (C. 5 q. 1).!° Roman law called for capital punishment (Cod. 9.36.1); the ancient canons for public whipping or excommunication, at least if the writer could or would not prove the truth of what was contained in the libellus. Gratian did nothing to clarify what a libellus famosus had to contain if it were to warrant sanctions of this, or any other, sort; apparently he was content to leave this to existing law. He wished rather to establish the special and ecclesiastical nature of proceedings where it was a bishop who had been the subject of such a writing. Again, only the possibility of the church’s jurisdiction over harm caused by words was established by the texts as Gratian presented them, and that was primarily because a cleric had been harmed. Uncertainty as to what words were legally actionable (as we would say) and inattention to what punishments should be meted out to defamers ran like a theme through the Decretum. Some canons referred to accusations of a crime, but more used vaguer terminology—‘contumelious matters’ (C. 5 q. 1c. 1), or “base words’ (Dist. 46 c. 6), or simply ‘falsehoods’ (C. 5 q. 6 c.1). The penalties threatened ranged from ‘exclusion from the kingdom of God’ (C. 6 q. 1c. 16), to ‘anathema’ (C. 5 q. 1 c. 3), to infliction of the lex talionis (C. 2 q.3 c. 2). No legal definition of defamation can be drawn from them. What might be said, however, is that Gratian asserted by implication that slurs and abuse might appropriately come before the tribunals of the church. Of course, it would be surprising to find anything else. The reputation of the clergy was one of his principal concerns. Slander damaged it. The several texts circling around the edges of defamation were a natural result.

The Gregorian Decretals

No title called De diffamationibus appeared in the Decretals, or in any of the official canonical collections that followed. The two closest candidates, offering 10 See also C. 2 q. 3 cc. 4-5, dealing with false accusations and their consequences.

THE IUS COMMUNE AND DEFAMATION 569 sources where one might look for coverage of the subject, came in the fifth book of the Decretals. The first was a short title adopting the substance of the Roman law of iniuria, which included slanderous utterances (X 5.36.1-9). This canonical title was itself taken over directly from Roman law (e.g. Inst. 4.4). The second was the title De calumniatoribus (X 5.2.1-2). This title, which does sound like a more natural source of ecclesiastical jurisdiction over defamation, actually was the less relevant of the two. It had a parallel in the Roman law (Cod. 9.46.1-10), but the

two canon law texts it contained merely repeated the point, also found in the Decretum, that those who made untrue and mischievous accusations against others, particularly against the clergy, should be punished. The texts in the Decretals had a distinctly ecclesiastical bent. One dealt with a subdeacon accusing a deacon; the other with a subordinate cleric’s publicly stated objections to ‘various excesses’ allegedly committed by his bishop. They were far from establishing an ecclesiastical jurisdiction over defamation such as that exercised by the English courts. One connection can nevertheless be made. The concentration in these two texts

upon accusations of unlawful conduct was something that ran throughout the canon law, and it would also turn up at the centre of the English church’s law of defamation. Seeing a tie between slander and imputations of crimes would have been a natural one for men trained up in the canon law. The title De calumnuiatoribus itself was too brief and too limited in scope to furnish a workable law of defamation.

It stated (or restated) a principle, and not much more. However, the context in which it was framed—beginning with accusations of criminal conduct and describing the legal consequences that followed from such accusations—would make itself felt in the formulation of a working law on the subject in England.

Ultimately, the endorsement of the Roman law of iniuria in the Decretals turned out to be more fruitful in practice than the title on calumny. At first sight, it may look unpromising. Even as ‘canonized’ in the Decretals, the concept of iniuria was a very miscellaneous group of wrongs, by no means restricted to insults and verbal wrongs. Some of the texts in the Decretals’ title De iniurits dealt with injuries to animals and injuries caused by them, as for example an injury

caused when an ox fell into another man’s pit (X.5.36.2). The most famous commented-upon decretal that involved speech arose out of a quarrel in which one man said that another’s horse was worth more than the hair on the latter’s head (X 2.27.23). It was a general sort of insult. This approach lumped together many forms of wrong. By taking it, the canonists

were following the Roman law. As understood in the developed ius commune, an actio iniuriarum could be brought either for physical or verbal injury.1! 11 e.g. Julius Clarus, Practica criminals, lib. V, tit. Inturta.

570 DEFAMATION Blows and threats were considered together. Insults by gestures or pictures came within the same broad category. Under such a regime, neither the conduct nor the words covered could be precisely defined. The essential thing was harm to the

plaintiff and wrongful intent on the part of the defendant,!2 although for both requirements a legal presumption might suffice as proof. Complaints could be raised either as a criminal or civil matter. A distinction was drawn between atrox inturia and levis iniuria (Cod. 5.35.8), a way of holding down the number of claims for trivial affronts and insignificant physical contacts. A one-year period of limitations was also imposed upon the right to seek redress for iniuria (Cod. 5.35.5). Otherwise, the concept was a wide one. As a matter of learning, this remedy and the learning that went with it were quite familiar to the English civilians. They would have studied it at university,

and they referred to it throughout their discussions of the law of defamation, sometimes for the support it provided, sometimes by way of contrast with their own customs in litigation. For example, Lyndwood repeated the classification

scheme for iniuria, virtually word for word with what was found in the Continental literature.13 He held that it ought to be used in assessing the seriousness of any defamatory utterance. The Elizabethan and Jacobean civilians regularly made comparisons and drew distinctions between the features of the Roman law of iniuria and the English provincial constitution.14 Throughout, the ecclesiastical lawyers took rules about liability from it, as in defining what would consti-

tute legal malice. The civilian category could not have been the immediate inspiration for the medieval English law of defamation, but it stood prominently in the wings. It was called upon repeatedly in analysing legal problems that arose, and it would play an even more immediate role in the expansion of the scope of canonical defamation that occurred from the fifteenth century onwards.

Detractio, Infamia, and Purgatio Canonica The canon law contained other concepts relevant to defamation. Three of them played a role in the development of English law and practice, although in the long run it was less than that played by the law of iniuria. Echoes of the academic law on the three recur in the court records, and ecclesiastical lawyers drew upon them in argument. None alone explains the form the English law took, but all of them must have been present in the minds of the lawyers, perhaps even of some of the litigants.

12 e.g. Hostiensis, Summa aurea, lib. V, tit. De damno dato, no. 3: “Et quidem quando damnum culpa

alicuius datum est...Ergo duo requiruntur: et quod damnum datum sit et quod culpa dantis

damnum precesserit’. 13. Provinciale, 258, S.v. iniuris. 14 e.g, Anon. (c.1610), BI, Prec. Bk 11, fo. 4v, dealing with procedural requirements; Notebook (seventeenth century), NNRO, ANW/21/11, nos. 119-20, discussing the difference in limitations periods.

THE IUS COMMUNE AND DEFAMATION 571 Detractio appears to share closest ideological kinship with defamation. As much a theological concept as a legal one, it had a natural affinity with what we regard as the essence of defamation: injury to reputation. For example, Thomas Aquinas, citing an extract from the Book of Proverbs: ‘A good name is a greater good than

great riches’ (Prov. 22: 1), went on to define detraction as ‘the blackening of another's reputation.!5 The glossa ordinaria to Gratian’s Decretum similarly summed up a canon by noting, ‘And let no man grasp at what diminishes the honour of others.!© To commit the sin of detractio against one’s brother was summa iniquitas (C. 6 q. 1c. 16). From a lawyer’s perspective, it may be that the very moral tone present in these statements presented an obstacle. The texts defined the term detractio in the broadest terms, and they offered no clear remedy to the person whose reputation had been subject to detraction. It would require a stretch to bring the concept within the realm of courts of law. But therein also lay its utility. Detractio stood in the background, known to the lawyers and capable of being brought forward to urge that an expansive and moral reading be given to the concept of defamation.!” This would not be irrelevant. Infamia was a concept taken over from Roman law.!8 It was incurred by many forms of dishonest, shameful, or immoral behaviour. For example, the apposite title of the Digest lumped together soldiers dishonourably discharged, stage performers, brothel-keepers, and men condemned for public crimes and frauds (Dig. 3.2.1). All were infames and disqualified both from holding offices of trust and from acting as accusers in criminal trials. The categories mentioned were only examples, of course. Others might incur infamia, even by being on the losing side of a dispute in the law courts. Despite the verbal resonance of the word fama, its relevance to defamation in the English courts was not immediate. Infamia was broader and its consequences were different. However, the concept did furnish a textbook example of the church’s jurisdiction over the laity. A case from the Decretals had involved the pope in restoring a layman’s reputation, by declaring him to be free from infamia (X 2.27.23). The source of that power was not obvious, but the outcome was. The church was acting in a part of life normally regarded as temporal. The restoration of a person’s 15 Summa theologiae, 2a22, quaest. 73, art. 2. See Carla Casagrande and Silvana Vecchio, I Peccati della lingua: Disciplina ed etica della parola nella cultura medievale (1987), 331-63. 16 Gl. ord. ad C. 11 q. 3 ¢. 13, $.v. commendandi. 17 See e.g. the small treatise called “De detractione’ in MLD, MS. Z.3.5.31, p. 699. Richard Allestree

(d. 1681) classified defamation as one form of “Detraction. See his The Government of the Tongue (ist edn, 1667, repr. 1721), 49-61. 18 Francesco Migliorino, Fama e Infamia: Problemi della societa medievale nel pensiero giuridico nei secoli XII e XIII (1985); Peter Landau, Die Entstehung des kanonischen Infamiebegriffs von Gratian bis zur

Glossa Ordinaria (1966); Vincent Tatarczuk, Infamy of Law: A Historical Synopsis and a Commentary (1954). It was commonly divided into three types: infamia turis, infamia canonica, and infamia factt. The second could be incurred by any mortal sin and was removed by confession and penance. See gl. ord. ad C. 6 q.1C. 2, s.v. leges.

572 DEFAMATION reputation, a task that came to be regarded in England as a normal goal of the law, would appear prominently in ecclesiastical defamation. Fama was also relevant in the operation of the third institution, purgatio canonica. Under the decretal law, a person against whom fama publica circulated could be compelled to undergo canonical compurgation in order to demonstrate his innocence of the crime of which he stood defamed (X 5.34.5). The medieval church adopted this procedure because of the difficulty of making affirmative proof of many crimes, the urgent necessity of punishing criminals, and the utility of securing a public declaration of innocence on behalf of men and women against whom damaging fama had circulated.!9 It became the standard way of proceeding in criminal matters before the spiritual courts. It had a direct relevance to defamation in two ways. First, canonical purgation could not be compelled unless the fama publica passed a threshold of reliability; it had to be widely believed among persons of credit. Not just any rumour would do. The law on this point would become important in articulating the requirement of publication in defamation practice. Second, canonical purgation was often a prelude to a causa diffamationis, brought against the person who had been the source of the public fame. There was therefore a natural connection. It was a connection that would be recognized in the text of the provincial constitution that began the development of a law of defamation in England.

Auctoritate dei patris If the ultimate justification for the English church’s jurisdiction over defamation was custom, its immediate source was not. It came from legislation, specifically from a constitution enacted by the Council of Oxford in 1222. It thus dated from more than a decade before the compilation of the Gregorian Decretals. The provincial council was convoked by Archbishop Langton to announce and build upon the decrees of the Fourth Lateran Council.2° One of its enactments, known from its incipit as Auctoritate det patris, read: By the authority of Almighty God, We excommunicate all those who, for the sake of hatred, profit, or favour, or for whatsoever other cause, maliciously impute a crime to any person who is not of ill fame among good and substantial persons, by reason of which purgation at the least is awarded against him, or he is harmed in some other manner.

A virtually identical constitution was adopted in the Province of York.?! The terms and requirements of this constitution were obviously not identical with those of 19 See Richard Fraher, “Conviction according to Conscience: The Medieval Jurists’ Debate concerning Judicial Discretion and the Law of Proof’ (1989) 7 LHR 23-88, at 32-40.

20 ¢.5in C. & S. I, pt. 1, 107. 21 Statutes of York I, c. 42 (1241 X 1255), C. & S. IE, pt. 1, 496.

THE IUS COMMUNE AND DEFAMATION 573 any of the legal categories found in existing canonical or civilian texts. It was narrower than the actio iniuriarum, for example, because it required that a crime should have been imputed. For the same reason, it was not the detractio discussed by Thomas Aquinas and found also in the Decretum. It also contained a specific sanction, automatic excommunication, against those who violated its terms. This constitution would long exert a decisive influence over the law of defamation in England. It fixed the scope of early practice in the ecclesiastical courts. It was upon its wording that Lyndwood commented in dealing with defamation,?? and it was its text that was read out to congregations in England’s parish churches,

regularly warning them of the excommunication they would incur if they slandered their neighbours.?3 When at length the royal courts began to offer a remedy for defamation in the sixteenth century, it was this constitution (or at least a version of it) to which they looked first for a working definition of slander.*4 Defamation meant the imputation of a crime. In several respects, the English constitution fitted well with the thought of the time. The same concern for punishing unjustified accusations of crimes, which appeared so prominently in the Decretum, also appears in it. The same concern for

dealing with the consequences of fama publica, which animated the system of canonical purgation, also animated it. The same concern for stopping malicious accusations of criminal behaviour, which produced the writ de odio et atia in the English common law, also stood behind Auctoritate dei patris.° However, the constitution did not simply repeat existing canon law. It added something new. Nor did it match the ius commune perfectly. Had the Decretals always been regarded as ‘binding statute law, as Maitland assumed they were, an appeal to the papal court could have been taken from a sentence in a cause where no crime had been imputed but the requirements of an actio iniuriarum had been met. The papal court, one presumes, would have reversed the sentence, and English practice would have fallen gradually into line with what the papal law books said. However, no such appeal has been found. No such mandate from the papal courts has been discovered. In fact, the tus commune did not normally proceed by this course. Auctoritate dei patris was not at odds with any important canonical principle, even though it could not be denied that the constitution was not identical with the law found in the Decretals. The English church was free to 22 Provinciale, 345—48.

23 That this was done is shown by the depositions of witnesses who testified that they knew its terms from having heard them, e.g. deposition of Peter Bencher (Canterbury 1414), CCAL, X.10.1, fo. 54v: “sepius audivit pronunciatum sive publicatum in ecclesia sua parochiali ... quod omnes diffamatores sunt excommunicati. 24 See R. H. Helmholz, Select Cases on Defamation to 1600 (= 101 Selden Soc.; 1985), pp. Ixvi-Ixxix. 25 For this writ, see Bracton, fo. 123; Susanne Jenks, “The Writ de odio et atia (2002) 23 JLH 1-22.

5/4 DEFAMATION set its own limits on a subject like this. And it seems to have done exactly that. Had

the interests of church and clergy or the tenets of the Christian religion been directly at stake, the outcome might well have been different. But they were not. No one we know of stepped forward to object to a disparity between local and Decretal law.

THE SCOPE OF ACTIONABLE DEFAMATION Some aspects of the law of defamation were defined clearly in the Oxford constitution. More were not. Much was left to be provided by the glosses of the schools and the exigencies of practice. For example, the text declared all defamers ipso facto excommunicate. These words would not have been applied literally. It would not have corresponded with the formal law of excommunication, and in practice it would have meant the creation of a large and uncertain class of slanderers who were being automatically placed outside the communion of the church. Could all men and women be treated as excommunicated as soon as they uttered defamatory words? Moreover, the words of the text also left open what they would be required to do to have the sentence lifted. The constitution declared them excom-

municated, but said nothing more. Read literally, this too might have caused enduring problems of administration. These were quite normal problems under the canon law. Persons excommunicated latae sententiae (as it was called) were entitled to have a sentence against them delivered in a court before they were treated as having fallen under the church’s ban. Equally, before it was delivered they were themselves entitled to be cited to offer their own side of the story—to show cause why they should not be treated as excommunicate, using the formal language of the records.2© And once they had appeared and shown a willingness to abide by the judge’s decrees they were entitled to absolution. But these things were not clear from the Oxford constitution itself. They depended upon bringing the remedy within the normal run of ecclesiastical litigation. This process had happened already by the time we can see the constitution being put into operation during the second half of the thirteenth century. This same process of accommodation with existing law led naturally to allowing defamation to be treated on both the office and the instance side of ecclesiastical jurisdiction.2” Public slanderers (mostly women) were brought before the courts to answer for being a communis diffamatrix, a communis obiurgatrix, or 26 This was recognized formally by a decree of Pope Martin V and also the Council of Basel (1435); see Decrees, Tanner, i. 487; Elisabeth Vodola, Excommunication in the Middle Ages (1986), 142-5.

27 e.g, Formulary (seventeenth century), NNRO, ANW/21/11, nos. 119-20: ‘Diffamationis causa est causa aut criminaliter aut civiliter intenta-.

THE SCOPE OF ACTIONABLE DEFAMATION 575 a communis perturbatrix of their neighbours.?8 Ex officio prosecutions were particularly appropriate when the words spoken did not name an individual, as in “The priests here are incontinent’ or “There are not five honest men in this parish’?9 Equally, it was possible to bring an office prosecution where the person defamed was dead.3° However, individuals whose reputations had been injured by an imputation of a crime always had the ability to sue in their own right. Although the words of the Oxford constitution did not expressly grant a private ‘cause of action, as we would say, the approach to statutes taken by the academic writers clearly allowed it, and their approach was matched by practice in the English ecclesiastical courts.

Imputation of a Crime Some things were more open to doubt. Deciding what had to be imputed was the first such task. The constitution made clear that it had to be a crime. Mere insults did not count. Nor did language that might have caused harm to a person’s reputation but stopped short of alleging that he had committed a crime, as where one described another as a lunatic, a serf, or a bastard.3! Snide remarks against a man’s masculinity, which figured in the legal practice of some other Northern countries, were also outside the constitution’s coverage.?? Imputations of professional incompetence were, from a modern perspective, probably the most notable omission. All of these were regarded as merely imputing a ‘defect’ in the person. Defects did not fall within the wording of the provincial constitution, thus excluding anyone injured by such words from taking advantage of the remedy for defamation. No particular limitation existed, however, in the kinds of crimes that fell within the constitution. It did not exclude secular crimes. That too determined practice

during the Middle Ages. No distinction was made between imputations of offences prosecuted in the courts of the king and those prosecuted before the ecclesiastical tribunals, and cases involving words that imputed theft appeared as frequently as any others in the medieval court records.*3 It would not be until 28 e.g, Ex officio c. Nicolson (Canterbury, 1469), CCAL, Act book Y.1.11, fo. 60v; Ex officio c. Dancaster (Archdnry St Albans, 1517), HTRO, Act book ASA 7/1, fo. 11v; Ex officio c. Somersett (London, 1493), GL, Act book MS. 9064/5, fo. 113.

29 Ex officio c. Upton (Canterbury, 1399), CCAL, Act book X.8.1, fo. 54v; Ex officio c. Reminger (Canterbury, 1619), CCAL, Act book X.9.14, fo. 233v. 30 Ex officio c. Reynold (Canterbury, 1397), Act book X.8.1, fo. 3v: “diffamavit Johannem Brykenden

defunctum. 31 Lyndwood, Provinciale, 347, s.v. crimen. 32 Preben Meulengracht Sorensen, The Unmanly Man: Concepts of Sexual Defamation in Early Northern Society, trans. Joan Turville-Petre (1983).

33 e.g. of the sixteen defamation causes found in the first surviving deposition book from Canterbury (1411-21), CCAL, X.10.1: eleven dealt with imputations of theft, two with sexual offences,

and one each for sacrilege, leprosy, and murder; one of the causes involved a multiple imputation (theft and fornication).

576 DEFAMATION towards the end of the fifteenth century that this situation would change and the scope of Auctoritate dei patris would be forcibly narrowed to include only imputations of ‘spiritual crimes’ like fornication, usury, and heresy. Establishing that a crime had been part of the imputation was not the end of the question. It still left open whether it was necessary that commission of an actual crime had been imputed. The constitution could have been so read. And there were reasons for doing so. Not only was there support to be found in the Roman law (Dig. 47.10.7), good practical reasons might have promoted such a course. There is a good deal of difference between “You old horse thief’ and “Last Friday you broke into my paddock, stole my gray mare, and sold her in the market-place’. There is a

still greater difference between either of these and going on to secure a criminal indictment. Perhaps only the last should count. It would have kept a good deal of trivial litigation out of the courts. At the same time, it was undeniable that a satisfactory line between these three sorts of utterances would have been hard to draw in practice. Should the man who says “You have stolen more horses than N who was hanged for it yesterday’ be able to escape liability because he did not name specific acts of theft? Or because he did not actually secure an indictment? The harm to a

reputation and the maliciousness of the speaker may be just as great in all three situations; everything will depend on the circumstances. The English courts flirted with requiring specificity in imputations during the early years after the Oxford constitution’s adoption. Imposing the requirement claimed some backing among commentators on the law of infamia,34 and in a late-thirteenth-century causa diffamationis from Canterbury, we find one defendant making this formal exception to the plaintiff’s claim, “In the same libel no certain crime or falsity is alleged’.35 However, the distinction must have proved too

fragile to maintain. By the mid-fourteenth century, if no sooner, it had become clear that it was enough that a crime had been imputed, even if the words had been quite general. To assert openly, “‘N is a thief and guilty of divers crimes’ was

sufficient to bring the matter within the provincial constitution’s terms.3° No doubt the more specificity the better; proctors added details to their libels whenever they could.” But that was a counsel of prudence and advantage. It was not required. This would lead to a situation where it was defamatory to call a woman ‘a whore’ or a man ‘a whoremaster, without saying anything more specific. Both 34 e.g. Baldus de Ubaldis, Commentaria ad X 2.19.11, no. 63: ‘Iste [infamia] proprie loquendo praesupponit certum delictum’; see also Bartolus, Commentaria ad Dig. 30.1.57, no. 3. 35 Rowelle c. Paggrave (1292), CCAL, Ecc. Suit Roll no. 70: “[N]ec in eodem libello declarat certum crimen aut falsitatem cum plures sunt species criminum’ 36 Henry de Esse c. John, Vicar of Potterne (1291-4) in Select Canterbury Cases, D.4 (pp. 375-87, esp. 378).

37 It was found, e.g. in the depositions of witnesses. In Chylton c. Garden (Canterbury, 1414-15), CCAL, X.10.1, ff. 54v, 69, the imputation “cut-purse’ was backed by more detailed statements of the words spoken that gave details of the crime.

THE SCOPE OF ACTIONABLE DEFAMATION 577 were technically crimes within the meaning of the constitution. Realistically speaking, most such imputations amounted to insults and not much more.?8 But by the sixteenth century, and probably before, any suggestion that a specific criminal act should have been named would have been greeted with either incredulity or nostalgia for a less litigious age. Much the same openness to allowing suits to be brought greeted attempts to invoke in the spiritual forum what would become the mitior sensus rule once the common law courts began to allow actions on the case for slander. That infamous doctrine allowed defendants to escape liability if the words were capable of a nondefamatory construction—‘Thou hast stolen my wood’ would not be actionable, because the words might refer to growing trees, and for the loss of growing trees no criminal action lay. Their value could only be recovered in a civil action for trespass.39 This doctrine could claim a canonical pedigree (Sext 5.[13].49), and the court records produce a few instances in which the argument was advanced. ‘I did not say you had a child before your marriage, but that I have heard it said that you had etc.’ was, for example, proffered as a defence in one case. It caught the attention of an early-seventeenth-century civilian.4° Something about the doctrine has always fascinated lawyers. For the most part, however, in their sentences the courts

themselves stuck with the rule that words should be interpreted in their most natural sense, as they would have been understood among hearers. Thus, to say that a man was ‘kept as a stallion in the house’, that a woman ‘had to do with a particular man, or that a man and women “did make two beds and go into one’ were all construed as imputations of unchastity, even though the words might conceivably have been given a more benign reading.*! Most hearers would naturally have assumed the worst. That was the test. Efforts in the opposite direction, that is towards loosening the requirement that the plaintiff had been named as a criminal, were also made. On the whole, they were more successful. A good example is the statement, “Thou art a cuckold’? It was an interesting enough case to have been put into a Cambridge law student's notebook.*? These words did not impute a crime to the plaintiff, as the Oxford 38 Wunderli, London Church Courts, 63-80; Ruth Karras, “The Latin Vocabulary of Illicit Sex in English Ecclesiastical Court Records’ (1992) 2 Jnl Medieval Latin 1-17, at 7-9; Jane Cox, Hatred Pursued

beyond the Grave (1993), 37-56. 39 John March, Actions for Slaunder (1648), 28-30. 40 Katie c. Whittingham (Durham, c.1600), Clement Colmore’s book, DUL, DDR/XVIII/3, fo. 140.

41 Penruddock c. Jaye (Salisbury, 1615), WTRO, Deposition book D1/42/30, ff. 44-53; Colcott c. Charde (Exeter, 1513), DRO, Deposition book Chanter 854, pp. 391-3; Pallmer c. Hill alias Slodden (Bath and Wells, 1611), SRO, Act book D/D/Ca 173 s.d. 8 Oct. See also Select Cases on Defamation (above n. 24), Pp. XXVIl.

42 Stawkes c. Simpson (Carlisle, 1574), CBRO, Act book DRC 3/2 s.d. 28 May; White c. Reed (Archdnry St Albans, 1528), HTRO, Act book ASA 7/1, fo. 45v (cuckold knave). 43° Atkin c. Raven (1636), CUL, CUA Collect.Admin. 38, ff. 38v—4o.

578 DEFAMATION constitution seemingly required. However, English civilians concluded, they might sustain a causa diffamationis none the less. Proctors should be careful in framing the pleadings to state that the words did impute the crime of unchastity (i.e. to the plaintiff’s wife), that they were spoken out of malice, and that the reputation of the plaintiff had suffered from them.*4 To exclude liability in such a case would seem very technical. So the argument for treating them as actionable in law would have run. Apparently it succeeded. There were always arguable cases—‘Whore of thy tongue’ for example.*> It was

insulting, but what did it mean? Or slightly ambiguous language—‘Jade’ or ‘Queen’ or “Drab’.4° Could these words be given an innocent construction? Or

imputations by implication, a long-running favourite topic among the commentators—'I never killed a man’, for instance.47 Would hearers always have understood this statement as an imputation of murder? Or the words that also caused trouble in the royal courts: “Thou hast the pox’.48 Could this mean smallpox or was it necessarily the French pox? The former implied no moral turpitude; the latter did. The lawyer’s reaction in framing the pleadings in these hard cases was always

to emphasize the malice of the speaker and the harm to the reputation of the person injured. Doing so might provide a way around a possible objection that no direct and unambiguous crime had been imputed. Also called into play was the innuendo, added to the pleadings to show the defendant had meant the worst.49 All these things might bolster the strength of his client’s case. From the start, on some occasions at least, the judges of the ecclesiastical courts seem to have succumbed to the temptation to provide a remedy even where the constitution’s requirements were not fully met. They may have seen it as an opportunity to reprove slanderers, promote harmony, and thereby to do a modicum of good. 44 Taken from Paddy c. Lawry, in Precedent book (eighteenth century), DRO, Chanter MS. 8234, p. 210. 45 Kinder c. Barton (Archdnry Nottingham, 1597), NUL, Act book AN/A 11/1, pp. 22-3. For imputa-

tions of bastardy, one Elizabethan civilian advised that the mother of the person so defamed should bring the suit, or at least join in it. See DUL, Raine MS. 124, fo. 23v. Another advised laying emphasis on the loss of a reputation, the evil motive of the speaker, and the violation of norms of charity. See Precedent book (seventeenth century), YML, MS. M 2(4)j, p. 9. 46 Hurt c. Bow (Bath and Wells, 1630), SRO, Act book D/D/Cd 70 s.d. 3 Nov. This quite typical if legally puzzling description is found in a civilian’s notebook, WORO, MS. 794.093 BA 2470/B, fo. 51: ‘The word Queane is not soe grievous a diffamacion as the word Whore. 47 Parker c. Paul (Gloucester, 1673), GRO, Act book GDR 221, s.d. 18 Mar.: ‘I never was thy husband’s

whore. 48 Heywood c. Smith (Chester, 1631), CRO, EDC 5 (1631, no. 77). 49 e.g. Lam c. Conaway (c.1600); HTRO, ASA 6/4, fo. 38: ‘meaning and declaring thereby that the said Edward Lam had had the carnal knowledge of the body of the said Katheryn Conaway’. The words of the imputation had said only that he had ‘had the use of [her] body’ See Select Cases on Defamation (above n. 24), pp. xlvi, xcvi.

THE SCOPE OF ACTIONABLE DEFAMATION 579 Malice and Falsity Auctoritate det patris required that the imputation of a crime had been made mali-

ciously. Malice simply meant animus iniuriandi, the intent to cause harm. According to the common understanding of the jurists, however, malice did not require proof. It could be presumed from the nature of the words spoken and the surrounding circumstances.°° In defamation practice, this meant that although the plaintiff was required to allege malice in his positions, normally the burden of proving a lack of malice was thrown upon the defendant. Otherwise, the legal pre-

sumption was enough. The records show this. Defendants made affirmative claims that their words had not been malicious. They alleged that they had spoken secretly and for a good purpose, or even that they had uttered the imputation while

in childbirth and on that account could not have been guilty of malice.>! Drunkenness came up quite often in attempts to show a lack of malice, though it seems to have been treated as a mitigating factor only when the defamer had apologized after sobering up.>2 It did not excuse entirely, but it could mitigate the penalty.53 Proving lack of malice required more than showing one had given in to a common human weakness. But the question—Quo animo?—was a constant concern of the ecclesiastical courts. QUALIFIED PRIVILEGES

From the concept of ‘non-malicious’ utterances in time emerged a number of what we would now call ‘qualified privileges; that is, situations where a person was privileged to speak words that would otherwise be actionable. Their number was not large; less than it is in modern law. Nor was the consequence of establishing

one of them so great. They were less absolute. The narrowness of the available privileges is well illustrated by defamatory utterances made as part of judicial proceedings. Participants in litigation were given no blanket privilege to defame under the ius commune. To rebut the presumption of malice, the speaker had to show that his purpose in speaking had been laudable; it must have been to secure justice for himself or in the interests of the commonwealth. What he said, therefore, had to raise a matter of legitimate public interest.54 For instance, to allege that someone had done something shameful—say, cheating at cards or 50 See Jacobus Menochius, De praesumptionibus, lib. V, praes. 40, no. 31; Lyndwood, Provinciale, 263, S.V. IN1UTLOSE.

51 Yerwith c. Turpyn (York, 1455-6), BI, CP.F.193; Ex officio c. Jonson (Lincoln, 1527), LAO, Act book Cj/3, fo. 39Vv.

52 e.g. Ex officio c. Rayner (Norwich, 1708), NNRO, DEP/54: ‘that he being in drink did speake scandalous words of the producent for which being sober he was sorry having no reason for speaking the same’. 53 This was the communis opinio; see Julius Clarus, Practica criminalis, lib. V § Inturia, no. 17.

54 See e.g. Panormitanus, Commentaria ad X 5.36.6, no. 5.

580 DEFAMATION committing fornication—would not qualify even if said in the course of judicial proceedings. To qualify, the statement must have been made as one part of a criminal prosecution undertaken in the public interest. This approach is what was found in English causes in the ecclesiastical courts. A defendant who had said publicly that the plaintiff had wrongfully entered his close, cut down his trees, and taken them away did not rely on the mitior sensus rule to

justify his words; he claimed instead that his purpose in speaking had been to secure damages for damage to trees as one part of judicial proceedings.®> A similar defence was that the defendant had spoken the words solely to inform the churchwardens that an individual had committed a crime that should be presented in the bishop’s visitation. Here the imputation served a public purpose, helping to further the legitimate goals of the visitation.5¢ It could not have been malicious. A second of these qualified privileges—probably the most common one alleged

in defamation practice—was provocation by the defendant. The idea was that malice implied a certain deliberation, and that sudden anger for a good reason showed its absence. One man alleged that the plaintiff had first called him ‘vile villein thief’ and that he had answered her, ‘I will be so bold to call you naughty whore.>” A servant who had imputed unchastity to her master answered his suit for defamation by saying he had been beating her without cause at the time and that she was justifiably angry when she spoke the words.°8 A third man who had said of his vicar, “Thou art one whoremaster priest’ sought to justify himself by alleging the vicar had first accused him of perjury and adultery.>°9 He was justifiably angry. None of these provocations, even if proved, served to exonerate defamers from all blame. They were treated as providing cause to ‘mitigate the penance’ assigned to the defendant, but provocation was not a complete defence.©° The preferred remedy among the canonists was to allow a causa reconventionis to be brought.

That was a second causa defamationis brought against the plaintiff who had 55 ‘Taken from Precedent book (fifteenth century), BL, Royal MS. 11.A.xi, ff. 6ov—61. An example involving an imputation of theft is Ex officio c. Bowdyn (Exeter, 1517), DRO, Chanter MS. 854, pt. 1, p. 182: ‘dicit quod non dixit huiusmodi verba animo diffamandi set causa restitutionis habendi’. 56 e.g. Osburne c. Morgan (Bristol, 1613), BRO, EP/J/1/15, s.d. 30 June: ‘not animo diffamandi or animo malicioso but so that the churchwardens might correct the said Christiana. See also Dix’s Case (c.1620), Bodl. MS. Eng.Misc.f473, p. 11: ‘A parishioner may inform a churchwarden of a misdemeanor so it be true and so he do it not animo malicioso’; Eaton c. Eaton (Chester, 1631), CRO, EDC 5, no. 70, in which case the defendant was said to have informed a justice of the peace and have been bound over

to prosecute. 57 Bitfield c. Griffin (Bristol, 1566), BRO, Act book EP/J/1/6, p. 309. 58 Vernells c. Turner (Hereford, 1634), HFRO, Act book I/23 s.d. 24 July. 59 Dighton c. Holme (York, 1510), BI, CP.G.47. 60 e.g, Fulalove c. Fletcher (Archdnry Nottingham, 1636), NUL, Act book AN/A 43, s.d. 14 July, where

the cause proceeded even though the provocation was apparently admitted. See also the treatment in: Precedent book (fifteenth century), BL, Royal MS. 11.A.xi, ff. 14v—15: “Executio sentencie late in causa

diffamationis ubi actor provocavit.

THE SCOPE OF ACTIONABLE DEFAMATION 581 provoked the words. It happened often. In the third case just mentioned, for example, the full facts only came out in a causa reconventionis for defamation brought

against the vicar. In this sense, the ecclesiastical law of defamation always had a theological side to it. Maybe ‘pastoral’ would be the better term. The remedy was designed to correct the erring, and also to restore harmony and reputations where that was possible, as much as it was meant to weigh the legal merits of a case.®! As the great civilian Bartolus said, the canon law dealt with questions of intent, not simply the consequence of acts.®2 For such purposes, it seemed better to make both parties do penance than to excuse them because both had equally been at fault.

A third category was the private, and hence privileged, utterance. The master giving a reference for one of his servants was the example most often given by the

jurists. The reference served a legitimate purpose and would not have been intended for public dissemination. The injury caused by the statement might be real enough, particularly if the statement was false, but the protection of a reputation was ‘outweighed’ by society’s need for reliable references and the advantages of honest communication of opinion. A certain class bias was undoubtedly present.

The modern letter of recommendation that is written on behalf of students illustrates the continuing vitality of this kind of qualified privilege, as does its ambiguous nature. Instances of the qualified privilege arose in English practice. No cases of references for servants have so far come to the surface, but causes in which defendants contended that their statements had been private and privileged on that account did. It was said of one defendant that he had spoken, ‘not in a malicious manner but as a matter to be concealed and kept secret’.®3 A second case arose out of words spoken when a lessor inquired of the morals of a woman to whom she had leased a London house. A third case involved the defence that the man sued had spoken

privately at a dinner table, going on to argue that ‘good manners and common humanity require that table talk should be wrapped up in a cloth.® It was against the possibility of defences like these that plaintiffs sought to emphasize the public, repeated, and malicious character of the slander spoken whenever the facts would

bear it. They often claimed in pleading that the defendant had offered to prove the imputation. They said that the defendant had spoken deliberately and out of hatred. These were ways of cementing the point that the utterance had been made seriously and maliciously. 61 In a case heard at York in the 1520s, the parties were ordered to drink together as part of their mutual reconciliation. Olyver c. Car (1523), BI, D/C.AB.2, fo. 307. 62 Bartolus, Commentaria ad Dig. 47.10.17, no. 4. 63 Odell c. Randal (Salisbury, 1583), WT RO, Deposition book D1/42/9, fo. 46v. 64 Cockett c. Beckett (London, 1521), GLRO, DL/C 207, fo. 102. 65 Butcher c. Hodger (Bath and Wells, 1619), SRO, D/D/O, box 5, ff. 32-8.

582 DEFAMATION TRUTH

This character of the church’s law of defamation was particularly evident in the law’s treatment of true imputations. That the words spoken are true is an absolute bar to bringing an action for defamation in modern law. Indeed, truth or falsity is what the argument is about in high-profile cases. The common law’s rule goes back to the earliest days in the sixteenth century. The matter was a good deal more complicated in the spiritual courts, however, and the complication may have followed, at least in part, from the wording of the Oxford constitution. On the one hand, it did expressly require that the imputation of a crime had been a false one. True accusations may be made out of malice, and malice is all its terms required. On the other hand, it is more likely that malice will be lacking where something known to be true has been said, and the constitution did require the plaintiff to show that he had not been previously defamed of the crime imputed to him. This

requirement of a good reputation left open the possibility of using truth as an affirmative defence. What was true was likely to have been known beforehand to others. Many a guilty man, one might think, would have suffered no harm from what was said about him. An imputation, even a malicious one, might simply have confirmed what everyone knew already.

Although there was some disagreement, the communis opinio among the commentators who dealt with the law of verbal iniuria held that truth in itself was not a sufficient justification. Defendants had to establish their own lack of malice by doing more than showing the truth of what they had said.®° Some of the evidence from the English records seems to fit this position, but some of the evidence also suggests that truth could in some circumstances serve legally to excuse defamatory utterances. Although the original Oxford constitution did not require that the imputation be false, many of the formularies and libels used in litigation added the word falso to the text.67 Defendants sometimes also pleaded that their words had been true, thus apparently relying on truth to justify the words spoken.®8 Moreover, the defence of truth had an obvious connection with canonical purgation, which was frequently a prelude to a causa diffamationis. Its object was publicly to establish a man’s innocence and to restore his reputation. If the defamed man failed in canonical purgation, it would have seemed a strange result to allow him to sue for defamation all the 66 See Oldradus da Ponte, Consilia, Cons. 53, nos. 1-4. On later English practice, see Waddams, Sexual Slander (above n. 2), 33-9. 67 e.g. Bukenham c. Sparham (Canterbury, 1304), LPL, Act book MS. 244, fo. 21: the defendant was being sued “super eo quod falso et maliciose dictam Clariciam dicitur diffamasse’. 68 Ex officio c. Schupton (York, 1420), BI, D/C.AB.1, fo. 59: ‘[F]atetur se talia verba protulisse et ultra quod verum fuit’; Adryan c. Hewelding (Canterbury, 1420), CCAL, Act book Y.1.3, fo. 142Vv: “[P]ars rea

fatetur se dixisse certa verba non tamen diffamandi animo quia verum dixit. See also Wunderli, London Church Courts, 65.

THE SCOPE OF ACTIONABLE DEFAMATION 583 same.° Indeed, the point of many defamation causes heard by the courts was to

establish a person’s innocence of a crime.7° The imputations of minor theft found in the court books often read like quarrels over the ownership of chattels more than anything else.”! Establishing the truth about who owned what seems to be why they were brought in the first place. The same can be said of the causes involving imputations of perjury. Strong as this evidence is, it does not necessarily demonstrate that truth was always regarded as a legal bar to initiating a causa diffamationis. Some of it is compatible with the status of truth usually given by the jurists: that truth was a mitigating factor, but in itself no more. A Jacobean civilian said this about London practice: Where truth was pleaded in a defamation cause, ‘the Judge of the Arches doth most commonly reject it. If he doth admit it and it prove true, he doth mitig-

ate the penalty and expenses.’2 This may point to why allegations of truth appeared so often in the act books. If a defendant wanted to be treated more leniently, as almost every one of them did, there was every reason to plead truth, even though he knew it would not wholly excuse him. What would be lost?

A second indication of the status of truth as justification is that defamation causes were sometimes retained by the courts even after it had been established that the words spoken were true.”73 Defendants who alleged the truth of their

words also went on to allege that they had had an additional good and nonmalicious reason for having said them. To them, truth alone did not seem to be enough of a defence, at least not enough where something else could also be proffered. Taken all together, the evidence suggests the wide scope given to judicial

discretion in defamation causes. In some circumstances, truth would justify a defamatory utterance, but more often it would not. We need also to factor in the importance ascribed to re-establishing harmony between those concerned—in other words, to put the scandal caused by the defamatory words into the past. That too rendered the status of this privilege uncertain. 69 e.g. Moreys c. Fowler (Canterbury, 1420), CCAL, Act book Y.1.4, ff. 26v, 27v; the plaintiff was required to undergo compurgation in a cause involving imputation of theft; however, he ‘defecisse in purgatione’ and the cause disappeared from the act book thereafter. 70 e.g. Vane c. Skyner (Rochester, 1441), KAO, Act book DRb Pa 1, fo. 212. The defendant admitted

saying that Vane had brought men to kill and wound another man. The plaintiff denied having done so and offered to purge himself, upon which the judge asked the defendant whether he wished that result. He said no, and the cause was ended by consent, the defendant agreeing to ask forgiveness of the plaintiff. 71 e.g. Wayte c. Avered (London, 1481), GL, Act book MS. 9064/2, fo. 148, seemingly no more than a claim to goods in the plaintiff’s possession belonged to the defendant; Symson c. Sherp (York, 1503), BI, Cons.AB.5, fo. 19, a dispute about whether the plaintiff had returned five pieces of cloth or only four; Ferrour c. Cowper (Chichester, 1507), WSRO, Act book Ep I/10/1, fo. 91v, a dispute about an apron. 72 BI, Prec. Bk 1, fo. 5.

73 e.g. Cotyng c. Warde (Canterbury, 1418), CCAL, Act book Y.1.3, fo. 69b (sexual relations established, but the cause was continued sub spe concordie).

584 DEFAMATION JESTS

A justification that calls for a brief notice, although it appeared infrequently in litigation, is that of jesting. The remedy required that the words must have been understood as defamatory at the time they were uttered. Words otherwise slanderous that had been meant as a joke, or that the parties had themselves never

taken seriously, did not meet that requirement.”4 With jokes, the imputation would not have been malicious within the meaning of Auctoritate dei patris, or under the ius commune generally (Dig. 47.10.15.23). So in a cause from the diocese of Winchester brought for calling the plaintiff “a bawdy knave [who was] worthy

to stand in a sheet; the defendant pleaded that he had been with the plaintiff in a tavern, that both were ‘well drunk and merrily disposed; and that they had left the tavern together.”> In other words, they were only joking. If true, it was hard to see why the cause was begun in the first place. But there may have been a good reason. Maybe others had heard the raillery and believed it. Who knows? In the eyes of the law, in any event, the words would have lacked the element of malice. It would have been as contrary the law’s requirements as it would have been contrary to good sense to make the defendant do penance for having made a joke. Defendants had to take the initiative to excuse themselves on this score. But they could do so. REMISSION

Also raised in the same Winchester cause was the defence of condonation (Inst. 4.4.12). Because the defendant in the cause had left the tavern with the plaintiff, apparently in harmony together, the latter could allege that if he had committed any offence, the plaintiff had forgiven it. This foreclosed suit. In some cases, remission by action was directly alleged as an exception.7© More often, however, this defence operated something like a statute of limitations. No actual act of remission was required. Passage of time without taking action to seek redress raised a presumption that the party injured intended not to sue.?”7 The ordinary time period was one year (Cod. 9.35.5). Some civilians held that the limitation did not apply to defamation causes founded upon Ex auctoritate dei patris, applying it only to the civilian actio iniuriarum.’® However, there was opinion on the other side among the English civilians,”? and remission through the simple passage of 74 Gransden c. Bright (Rochester, 1608), KAO, Act book DRb Pa 18, fo. 12v: ‘prolata joco et ludo et animo jocandi et non aliter’ 75 Warren c. Vibert (Winchester, 1579), HRO, Act book 21M65/C2/20 s.d. 7 Feb. 76 Browne c. Lemyng (York, 1400), BI, CP.F.2, called a ‘processus super facto contrario’ 77 See Harry Dondorp, ‘Remissio iniuriae’ in Grundlagen des Rechts, 655-75; for an English example, see Precedent book (sixteenth century), Bodl., Tanner MS. 199, ff. 162v-163. 78 Clerke, Praxis, tit. 120; BI, Prec. Bk 11, fo. 32. 79 See BL, Harl. MS. 4117, fo. 7ov; but at fo. 72, the opposite rule was given.

THE SCOPE OF ACTIONABLE DEFAMATION 585 time was occasionally pleaded expressly as a defence in defamation causes.®° In practice, plaintiffs could be required to state the date on which the defamation

occurred, apparently in order to meet the requirement that the plaintiff have taken action within one year.®!

The Element of Harm The constitution required that plaintiffs had suffered some form of harm as a condition of bringing a causa diffamationis, but it set the bar low. It was a very general standard. It did specify that the imposition of canonical purgation on plaintiffs was one trigger for the legal remedy. To be required to undergo compurgation was a kind of a guarantee that fama publica had circulated against a person. His or her reputation naturally suffered thereby. However, Auctoritate dei patris went on to say that suffering harm ‘in some other manner’ would also suffice. That would open the courts to allegations of loss of face of the most intangible and trivial sorts. No requirement of physical harm or monetary loss restricted the scope of ecclesiastical defamation.

A major exception, a situation where the absence of actual harm made a differ-

ence in practice, arose from the constitution’s requirement that the plaintiff should ‘not have been of ill fame’ before the defamatory utterance. Repeating what

everyone knew might, therefore, not be defamatory within the text’s meaning. Defendants regularly made exactly this claim. Forms for exceptiones of “prior ill fame’ were given in English precedent books. They were recorded in act books and in formal pleadings; witnesses were frequently asked whether the plaintiff’s reputation had been any worse after the slander than it had been before.82 Lyndwood himself noted the frequency with which this question was raised in litigation—he regarded it as a dubious tactic, however, because it allowed malicious defamers to

escape unpunished. He went on to suggest a way of interpreting the text of the constitution so as to minimize its effects.89

Plaintiffs (and their witnesses) sought to do the exact reverse. They sought to establish their own ‘prior good fame’ and the injuries they had suffered because of the defamatory utterance.84 Despite the lack of formal requirement, plaintiffs 80 Butcher c. Hodges (Bath and Wells, 1619), SRO, Cause paper in D/D/O, Box 5, ff. 32-8. 81 Precedent book (fifteenth century), BL, Royal 11.A.xi, fo. 53 (objection that the libel failed to say

‘quo mense aut quo anno’ the defamation had occurred). 82 Brodmay c. Harte (Winchester, 1516), HRO, Act book 21M65/C2/1, fo. 92: “quod per aliqua verba

confessata per partem suam opinio et bona fama dicti Brodmay...non est aliquo modo lesa apud bonos et graves. For other instances see Select Cases on Defamation (above n. 24), p. XXXV1.

83 Provinciale, 347, s.v. unde: ‘Et sic practizant multi. He also criticized it and suggested ways of reducing its scope. 84 e.g, Dromonby c. Adam (York, 1423), BI, CP.F.138: ‘mulier fidelis honeste conversationis integri status bone fame et opinionis illese nullo crimine furti sue falsitatis aut aliquo alio crimine notabili irretita.

586 DEFAMATION alleged concrete injuries. The witnesses they produced commonly testified about them. One plaintiff was said to have lost an advantageous marriage as a result of the defamation; another to have been brought before a secular court to answer a charge of theft; a third to have been ejected from her husband’s bed because the defendant had spread abroad a story of her adultery.85 Naturally enough, the fact of the plaintiff’s canonical purgation was pleaded specifically to show that the

Oxford constitution’s requirement of harm had been met.8° None of this was legally necessary; the witnesses for some plaintiffs said only that ‘the status and good fame [of the plaintiff] were diminished and injured’ by the defamatory words, and the causes were not dismissed for failure to state a cognizable claim.8” Nevertheless, the lawyers added particulars about actual harm where they could.

A sixteenth-century proctor advised others that, in framing the pleading for a defamation cause they should always stress that a woman called ‘a whore’ was actually legitimately married.88 The harm might have been greater, and it would have been legally relevant to fashioning an appropriate remedy.

The Remedy Excommunication was the consequence of imputing a crime maliciously under Auctoritate dei patris. The limitations of adopting this most serious of spiritual weapons as an ordinary remedy for slanderous statements have already been given. However, for most defendants, the real question would have been knowing what one had to do to have the sentence of excommunication lifted. What did absolution require? Or, put another way, what could a plaintiff expect? In the actio iniuriarum of the ius commune, the normal remedy was the payment of a sum of money. The amount would be determined by an aestimatio, made in the first instance by the plaintiff but ultimately by the judge, to the effect that the victim would not have endured the affront caused by the iniuria for such and such a sum of money (Dig. 47.10.5.11). Were Roman law the touchstone, therefore, the award of money damages or the routine use of fines might have been the rule.®9 It was not so in English practice. At least it was rare. Sentences formally imposing ‘silence’ on defamers and requiring them to perform a public penance, or

85 Aston c. Bekewyth (York, 1435), BI, CP.F.117; Belby c. Burdell (York, 1488), BI, D/C.CP.1488/1. 86 e.g. Kichynman c. Lovcoke (York, 1512), BI, CP.G.59.

87 e.g. Strong c. Wilson (York, 1520), BI, CP.G.98—9: ‘status et bona fama ipsius Elizabethae denigrantur et leduntur apud multos ratione prolationis huiusmodi. 88 Proctor’s notebook (¢.1600), CBRO, DRC 3/63, fo. 70. 89 See e.g. A. J. Finch, “The Nature of Violence in the Middle Ages: An Alternative Perspective’ (1997) 70 Historical Research 249-69, a study of one French ecclesiastical jurisdiction.

THE SCOPE OF ACTIONABLE DEFAMATION 587 at least make a public acknowledgement of fault, became the rule. Why was this? Two reasons can be given. The first was the canonical principle that to be absolved

from excommunication one was required to restore the person injured to the position that person had held before the wrongful act if restoration were possible. If a man wrongfully took possession of a church’s property and was excommunicated for it, he would not be admitted to communion if he refused to give the property back. In defamation, what had been taken was not property, but a reputation. Sometimes less than that. Perhaps a long-standing quarrel had erupted into an exchange of slanderous language. More than anything else, what needed to be restored was peace between the parties. For this purpose, payment of money was an imperfect instrument. It might be the best one could do in a legal forum, and no doubt many plaintiffs would have been delighted to receive some money. But the church had reasons within its own law for preferring something else. We should not romanticize the result. Doing public penance was a punishment. So it was regarded by those required to perform it. It was humiliating and might even be painful. Nor were the courts of the church ‘pure’ in the sense of an unwillingness to touch money; where someone had caused property damage, paying for it was the remedy envisioned by the canons.9! Even in the law of defamation, payment of expenses was a regular part of ecclesiastical jurisdiction. In time, the size of the expenses exacted would cause bitterness among the public and embarrassment to the civilians. But the spiritual courts never did treat defamation as a matter best suited to monetary compensation. The use of public penance accorded better with the purposes of the canon law. Reputations are not truly restored with money. In exceptional cases, an act of mutual forgiveness might be ordered. In ordinary cases, successful plaintiffs would be entitled to a sentence ‘restoring’ them to the prior good fame they had enjoyed before the defamation. As a matter of normal practice, then, the English spiritual courts chose the equivalent of what would be known as the Amende honorable in French law and the Widerrufsklage in German law.9?

The second reason for the restriction to public penance was that the English common law sought to prevent the ecclesiastical courts from giving money damages in defamation cases. The rule of the king’s law, confirmed by the writ Circumspecte agatis (1286), was that the church could exercise jurisdiction over defamation only so long as ‘money was not demanded and proceedings [were confined to] the correction of sins.93 If the ecclesiastical courts had stepped over this 90 Sext 5.[13].4.

91 See e.g. Panormitanus, Commentaria ad X 5.36.5, no. 1, dealing with injury caused by fire. 92 See Jean Imbert, La Practique tudiciatre tant civile que criminelle, lib. III, c. 21 (Paris, 1612), 379-81; Udo Wolter, Das Prinzip der Naturalrestitution in § 249 BGB (1985), 70-4. 93 CC. & S, IT, pt. 2, 975.

588 DEFAMATION line, they would have subjected themselves to writs of prohibition.%4 A plaintiff demanding money would himself have taken a risk. It is no wonder, then, that

the libels used in practice confined themselves to prayers for spiritual relief. Left open was the possibility of ‘commuting’ a penance for a money payment,?®

but it was never demanded formally by plaintiffs. About that possibility the final chapter will have a word or two to say. Also left open was the road of com-

promise between the parties, one that might include some money changing hands. Perhaps this happened. The canon law encouraged settlement of disputes. But if it did happen, it was not made part of the records. It was not something the canon law encouraged judges to do directly, and there would have been no reason for recording it in the books.

The penances imposed upon men and women ‘convicted’ of defamation in English practice ran the gamut from public ceremonies in church to semi-private confessions of error. One of the former, from 1397, ordered: At the time of High Mass, the congregation being assembled, [the defendant] should confess in a loud and intelligible voice that he had erred in the words he had said, [and] that they had come from false information of other persons, and should humbly beg forgiveness from [the plaintiff].%°

One of the latter, from 1515, required simply that the defendant, ‘should ask pardon [of the plaintiff] before several honest persons.9” Penances were normally left

to judicial discretion under the canon law, and variety in outcome is therefore what should be expected. The civilians said the remedy should fit the defamation.

Thus, for defamation in the market, a public retraction; for defamation at another’s house, a private confession of error. The status of the parties and the circumstances surrounding the quarrel between them also mattered. So did the heinousness of the words. The constant factor was the admission of wrongdoing coupled with a public apology. This is one of the pieces of evidence suggesting that, on a practical level, truth often served as a substantive defence. Almost uniformly, defendants who had been ‘convicted’ were obliged to admit that they had spoken falsely.

One point remains to be made about the scope of ecclesiastical defamation, and it is best made in the context of the remedies used on the ex officio side. In some courts, ex officio prosecutions were used in preference to instance causes, because 94 Anon. (1497), YB Trin. 12 Hen. VII, fo. 22, pl. 2. 95 See the ‘Addition to Circumspecte agatis, SR, 1. 101; Graves, “Circumspecte Agatis’ (Ch. 2, n. 141), 1-20. For an example, see the case of Isabella wife of John Austin (1479) in Poos, Lower Courts, 312. 96 Ex officio c. Miller, BI, Act book D/C.AB.1, fo. 6v. 97 ‘Taken from KAO, Act book DRb Pa 6, fo. 100.

THE SCOPE OF ACTIONABLE DEFAMATION 589 they had not been granted jurisdiction over instance causes. But just as often, the reason was intrinsic to the nature of defamation itself. Private defamation intersected with the spiritual courts’ jurisdiction over language that threatened the harmony of a community—verbal breach of the peace is about as close as one can come to the idea in modern terms.9? The offence of ‘scolding’ was its most common medieval form, and the act books often described it as a form of defamation. An offender was literally a ‘sower of discord’ For instance, Isabel, wife of John Austin, was cited before the deanery court of Wisbech in 1479; against her it was reported: “She is a common defamer of her neighbours, calling them whores and strumpets and fishnags in the most pernicious way possible’.!® After first denying it, Isabel admitted the truth of the report. Hers would have been a hard position from which to escape, even by compurgation, considering the weight of local opinion that must have existed against her. Upon this confession, Isabel was ordered to walk barefoot before the parish procession on two successive Sundays dressed in penitential garb and carrying a candle. On the second Sunday, she was required to offer the candle before the statue of St Edmund after the Gospel had been read. No complaint, not necessarily even a private harm, would have been involved in her prosecution. Strange as it may now seem, such ‘penitential events’ were familiar sights in England’s parish churches. The congregation would have been accustomed to them. That they would actually have reconciled the parties and restored peace in the parish is easy to doubt. That they were inducements to devotion among the congregation is impossible to believe. No doubt doing penance would have

been ‘a lesson’ to Isabel, and it might have provided some satisfaction to her enemies. Maybe it kept her quieter in the future. She cannot have wished to return to an ecclesiastical tribunal. It is hard to be sure about the effect. In some

cases—such as one dealing with a false imputation that the person was a usurer—the public penance might conceivably have allowed the plaintiff to return to his place in the commercial community.!©2 Like much else in the ecclesiastical court records, these remedies require a leap of the imagination to

98 The commissary court of the diocese of London is a prominent example; see e.g. Ex officio c. Warner (1487), GL, Act book MS. 9064/2, fo. 194: “Margareta Warner pro communi diffamatrice vicinorum, presertim Alicie Power’. 99 Jurisdiction over scolding was shared with local, secular courts in many places; see e.g. Karen

Jones and Michael Zell, “Bad Conversation? Gender and Social Control in a Kentish Borough, €.1450—C.1570° (1998) 13 Continuity and Change 11-31.

100 e.g. Ex officio c. Cryklwood (London, 1493), GL, Act book MS. 9064/10, fo. 14v: ‘seminatrix discordie’. For an instructive literary example, see Geoffrey of Burton, Life and Miracles of St Modwenna,

ed. and trans. Robert Bartlett (2002), 99-103. 101 See Poos, Lower Courts, 312. 102 Rikyll c. Spere (London, 1487), GL, Act book MS. 9064/2, fo. 192.

590 DEFAMATION understand. They sometimes require an even greater leap to approve. It is only when compared with the imposition of a money penalty that they begin to look sound in conception.

CHANGES AND CONTINUITIES IN LAW AND PRACTICE More so than any other area of ecclesiastical jurisdiction, the law of defamation was subjected to change over the course of its history. The greatest was the start of the

action of the case for words in the royal courts, which occurred in the sixteenth century. It reduced the church’s share of jurisdiction over defamation. Change occurred in the other direction too. Auctoritate dei patris retained a hold on practice even after the Middle Ages, but it did not remain the sole source of the law applied in the courts. The English civilians widened the scope of ecclesiastical defamation remediable in their courts by going beyond the terms of the 1222 constitution. However, there was one salient continuity in ecclesiastical jurisdiction over defamation. It should not be neglected entirely. That is its overlap with the jurisdiction of the secular courts, occurring mainly in the laws of assault, trespass, and crimes. Only long habit keeps lawyers from seeing how obvious it is. Men rarely fight in silence. Neighbours trading insults often trade blows. On this account, it can seem quite artificial to separate defamation from other areas of criminal and civil law. In an era before newspapers, most slander was face-to-face slander. It was

bound up with other kinds of injuries. Exploration of the records of temporal courts has shown that verbal abuse was often coupled with physical assaults, and that in some instances at least verbal ‘assaults’ could be prosecuted as a breach of the peace.!©3 Whether the secular courts treated verbal wrongs under a separate jurisdictional heading, as many local courts did before 1400 and as the royal courts did after 1500, abusive language always came before them in some way. A shared jurisdiction over verbal wrongs was not, of course, contrary to the canon law. The English church’s jurisdiction was built upon custom, in any event, and the civilians could not have objected to that manifestation of custom’s place in a legal system.

Expansion of Defamation’s Scope

Confining actionable defamation to imputations of crimes was by no means required by the canon law. Although it had been the foundation of English eccle-

siastical law, the limitation was actually contrary to the texts of the Decretals and ordinary practice in the ius commune. Room for movement was apparent. The constitution’s terms were not altogether self-defining, and there was always 103 See Ingram, “Slander Suits’ (above n. 1), 140-2.

CHANGES AND CONTINUITIES IN LAW AND PRACTICE 591

pressure to expand their meaning where the facts seemed to call out for some form of relief. The history of the law of defamation shows repeatedly how hard it is to keep tort remedies inside a box. The natural pressure of litigation will be towards expansion. This was so with ecclesiastical defamation, as it would later be with the common law’s action on the case for slander. From some point during the fifteenth century, the English ecclesiastical courts began to experiment with offering a broader remedy—that is, for words that were less than the imputation of a crime. There was no ‘executive decision to expand defamation; no one leading case we know of paved the way. Nor (surprisingly)

was there a rejection of Auctoritate dei patris. It continued to be invoked and noted in the act books. Indeed, it continued to furnish the basis for most of the law of defamation. However, something new was being brought forward. The movement was towards expanding the remedies available, so that they would embrace

imputations of ‘defects’ and (somewhat more hesitantly) other kinds of insulting and malicious language. The first of these may appropriately be considered one fruit of the usus modernus Pandectarum. A text in the Codex declared it iniquitous to impugn the status of a free person by calling him a slave (Cod. 7.14.5). Silence was to be imposed upon the speaker. In this text, the jurists saw a larger principle: that individuals had a lawful

interest in the protection of their reputations against false and denigrating statements.1° It belonged to a different legal category than iniuria. In the first instance, it applied to assertions denigrating any free person’s status. But by a process of analogy it could also apply to the ‘defects’ that were not covered by Auctoritate dei patris, to imputations of illegitimacy, alienage, even physical or mental deformities. So it happened.

The second was the actio iniuriarum itself. Less elegant than the law from the Codex, it could claim a firmer grounding in the texts and a longer history of commentary by the Continental jurists. It was bound to be attractive to the English

civilians. And to their clients. Writing in the mid-fifteenth century, William Lyndwood took note of the distinction between the remedy offered by Auctoritate

dei patris and the wider possibilities available under the tus commune.'°5 He recognized both. The terminology used in the act books too gives a clear indication of a move towards expansion. Whereas the earlier records invariably used the term causa diffamationts, from about the same time as Lyndwood wrote, they also began to use the phrase causa diffamationis seu convictt. The word convicium meant simply an insult, as opposed to the imputation of a crime required by the provincial constitution. 104 e.g, Antonius Perez, Praelectiones ad Cod. 7.14.5, no. 10: ‘ratio ibidem subnexta generalis est,

videlicet quod periniquum sit errore aut malignitate statum alicuius diffamari’; Ulrich Zasius,

Commentaria ad Dig. 2.4.14, no. 5. 105 Provinciale, 346, malitiose.

592 DEFAMATION This could not have been an accidental or unconscious change. An early attempt at expansion was purposefully recorded as a causa iniuriarum sive convici1.1°© By the second half of the fifteenth century, both theories could be pleaded in the same cause; they would simply be placed in separate articles. If one failed, the other might not.!°7 In the year 1469, the act book for the diocesan court at Canterbury recorded that forty-four causae diffamationis were brought, but nine causae diffamationis et convicii also came before the court. In the next century, the proportions would be reversed, and in time, the civilians ventured even farther afield, at least in the way they thought about the remedy. They would permit actions to be brought for ‘slanderous and opprobrious words contrary to the rule of charity.!°8 They envisioned the bringing of a causa maledictionis or a causa rixationis.'°° In terms of the kinds of cases that appear in the records of the spiritual courts, the results of this move towards expansion were exactly what one would expect: more litigation and less concern for the content of the words spoken. Questions of status—for the most part dealing with imputations of servile status extending even to calling someone ‘a churl’ or ‘a knave’-—came before the courts.11° So did some very general if insulting language: ‘evil man, ‘false man, or ‘oppressor of your neighbours’!!! To say that a person was ‘a drunken fool’ or a ‘drunken ass’ became a source of a claim for redress.112 To call a man ‘a soulless creature’ could subject the speaker to a suit for verbal injury.!!3 The critic who charged in 1535 that the ecclesiastical courts had made a legal wrong (and a source of revenue) out

of language that was ‘but brabling’ could have found support in the court records.114

Just how seriously the judges took much of the language of insult is, however, not wholly clear. Some things, as commentators said, were ‘so frivolous as that they yield no action’!!5 Often, the judges in trifling cases pushed the parties to settle 106 Adane c. Ricard (Canterbury, 1462), CCAL, Act book Y.1.7, fo. 139Vv.

107 So stated in a Formulary (late sixteenth century), BL, Harl. MS. 4117, fo. 77v (no. 100). 108 Hutchinson c. Langhorne (Carlisle, 1634), CBRO, Act book DRC 3/3, p. 124: “verborum scandali-

zorum ac opprobriosorum contra regulam charitatis’ 109 Precedent book (¢.1600), CBRO, DRC 3/63, ff. 109, 154.

110 e.g. Conley c. Barton (Archdnry Buckingham, 1492), BKRO, Act book D/A/V/1, fo. 1: “I wolde prove thee a chorle of condition’; Walter c. Fry (Chichester, 1508), WSRO, Act book Ep I/10/1, fo. 14: ‘false piking knave’; Anon., BL, Add. MS. 72544(A), p. 287: ‘rotton churl’. On the word ‘knave; see the discussion in Clement Colmore’s book, DUL, DDR/XVIII/3, fo. 136v. 111 Wright c. Pierson (Durham, c.1600), DUL, DDR/XVIII/3, p. 140; Well c. Hyne (Exeter, 1516), DRO, Chanter MS. 854, p. 151; Paynet c. Bescampe (Chichester, 1507), WSRO, Act book Ep I/10/1, fo. 93v. 112 Lewes c. Lewes (Bath and Wells, 1622), SRO, Act book D/D/Ca 230, fo. 74; Whyte c. Tapp (Archdnry St Albans, 1607), HTRO, Act book ASA 9/9, no. 880; see also Sharpe, ‘Defamation’ (above n. 4), 12. 113, Wilson c. Archbald (Durham, 1609), Library of D. & C., Durham, Act book SJC/3, fo. 24.

114 LP, ix. 1071, quoted in Houlbrooke, Church Courts, 83. 115 Ridley’s View, ch. VII § 1.

CHANGES AND CONTINUITIES IN LAW AND PRACTICE 593 their dispute without allowing full or even summary process. They appear to have been satisfied with some form of apology made then and there.!!° It is not hard to see why. Some of the numerous imputations that a woman was ‘a strong whore’ cannot seriously have been meant to assert (or to have been understood by the

hearers) that she made her living as a prostitute. But the cases kept coming. Convicium of all kinds became an everyday source of litigation. The harder thing to understand is why it did not simply swallow diffamatio as defined by Auctoritate dei patris. But it did not; the two coexisted. Each continued to be allowed, and they were treated separately. Different forms of pleading were used for each. The addition of the new to the old, in any event, was reason why the amount of slander litigation in the ecclesiastical courts grew over the course of the late sixteenth century.!!” This increase may appear to be a quite unexpected result. The reverse should have happened. It should have followed from the loss to the

church of what had been a staple part of its medieval jurisdiction over defamation: cases involving the imputations of secular crimes. Secular Crimes and Ecclesiastical Jurisdiction

This second, and important, change occurred around the turn of the sixteenth century. It led to a radical contraction in the substantive reach of ecclesiastical defamation. Auctoritate dei patris drew no distinction between secular and temporal crimes, even though this distinction was one of which its authors were certainly aware. It was a normal subject of canonical thought. The framers simply did not apply it in the 1222 constitution. English ecclesiastical lawyers during the

Middle Ages confirmed the constitution’s inclusion of both kinds of crimes. William Lyndwood took note that imputations of homicide and theft were within the crimes covered by the constitution’s terms.!!8 The words were the principale; the crime the accessorium. Lyndwood discussed the term’s proper definition of a

crime at some length, but his discussion shows no sign of supposing that the inclusion of secular crimes stood in violation of any rule or custom of the English common law. None the less, there was undoubtedly an overlap—one that could be regarded as a threat to the common law. As long as the imputation of a secular crime constituted actionable defamation before the courts of the church, and as long as defendants could raise the truth of the imputation as a mitigating factor, the question of whether a person had committed what amounted to a felony could come before a spiritual 116 e.g, Bostoke c. Humfrey (Chester, 1530), CRO, Act book EDC 1/4, fo. 33v: “ad petendum veniam a

dicto Roberto Bostoke in facie curie’. 117 Sharpe, ‘Defamation’ (above n. 4), 8-9. 118 Provinciale, 347, s.v. crimen.

594 DEFAMATION court for determination. Perhaps “determination is not the right word. The ecclesiastical courts did not seek to punish the parties in defamation causes for the sub-

stantive crimes imputed. A losing plaintiff would not be punished for theft if a defendant showed the words were true. Still, the courts might have to determine whether or not the imputation had been true, and that required dealing with a matter that came within the competence of the temporal courts. That this was more than a theoretical possibility is shown by occasional causae diffamationis found in the court records. They involved crimes that were (or had been) also the subject of contemporary proceedings in the temporal forum.!!9 The secular records confirm this. A petition to Parliament early in the reign of Edward III alleged that suits for defamation were being brought against those who had caused others to be indicted in the royal courts.!2° The practice would have been considered an abuse under the canon law itself, but one way or another it could have happened, and a statute was enacted, granting a writ of prohibition when it did (a Edw. IIL, st. 2, c. 11, 1327).

From the perspective of the common lawyers, an action brought against a man who had preferred an indictment was only an egregious example of a more fundamental problem. The problem was that, where a temporal crime had been imputed and the question of whether the imputation was true had been raised before an ecclesiastical court, there would have been an inroad on the common law’s monopoly over pleas of the Crown. The inroad might be more than theoretical. News of the outcome of proceedings before an ecclesiastical court might influence the opinions of others. This might affect what would happen in a secular court. At the least, the same issue—guilt of the crime—might be litigated in two places. There could be no guarantee that the outcome would be the same. When

a moment of heightened concern for jurisdictional questions arrived among the common lawyers; when the spiritual courts had come under fire for various

reasons; and when litigants saw an opening that might allow them to avoid being sued in an ecclesiastical court, the situation was bound to be challenged. That moment came in the second half of the sixteenth century.

An attack on ecclesiastical jurisdiction over defamation, based upon an expanded reading of the medieval Statute of Praemunire, began in the final quarter of the fifteenth century. It was part of the same development that was responsible for ending the church’s jurisdiction over contracts ( fidei laesio) and over testamentary debt.!2! Men who had been sued for defamation before a court of the church brought actions in turn before the Court of King’s Bench, alleging that the ecclesiastical suit had abridged the principle that “determination of all 119 e.g, Bynglay c. Farnhill (York, 1362-4), BI, CP.E.170 (theft of peas and trespass action); Grewes c.

Drodehous (Norwich, 1416), NNRO, Acta et Comperta Roll 1, s.d. 4 Nov.; Martyn c. Folvylle

(Canterbury, 1454), CCAL, Act book X.1.1, fo. 97v. 120 RP, ii. 9, no. 21. 121 See above 231-4, 366-8.

CHANGES AND CONTINUITIES IN LAW AND PRACTICE 595

felonies perpetrated within the realm of England belongs of right to the court of the lord king’122 Further pleading set out the details of the causa diffamationis, enough to show that imputation of a temporal crime had been involved. This rendered defendants (the ecclesiastical plaintiffs) liable to pay damages to the person they had sued in the spiritual forum and perhaps to endure more stringent penalties from the king. The success of such actions made an ‘end rum around the limitations of the medieval law of prohibitions. They subjected anyone who sued in the spiritual forum to penalties far in excess of what they might expect from the ecclesiastical courts, and this spelled the end of this aspect of spiritual jurisdiction. Under the pressure of this threat, imputations of crimes like theft and homicide ceased to be actionable in the ecclesiastical courts. This development had two other results within the courts themselves—one expected, the other accidental. The first was the acceptance of the jurisdictional rule by the judges in the ecclesiastical courts. Particularly when the royal courts began themselves to offer a remedy for defamation during the first half of the sixteenth century, the English civilians made their peace with the changed situation. They must have recognized the futility of further resistance, the anomaly of double

jurisdiction, and even the disappearance of the need.!23 As early as 1503, an ecclesiastical court at York ordered a man brought before it as a defendant in a causa

diffamationis to take the matter before a secular court if he wished to raise the defence of truth.!24 By the 1530s, suits introduced before the courts were regularly being dismissed by the judges, “because of the civil nature of the cause’.!25 Ridley

and Cosin would later accuse the royal courts of going too far in restricting the jurisdictional rights of the church, but they did not assert that the medieval jurisdiction over defamation should be restored.!26 At the time they wrote, cases involving imputations of secular crimes did occasionally arise in ecclesiastical practice,!2” but they were very much the exception. The second development was the large-scale exclusion of men from defamation

litigation in the courts of the church. A proverb had it that “Words are women, deeds are men;!28 and it may be that men thought suing for slander a sign of 122 Samford v. Walronde (1506), PRO, KB 27/980, m. 32. 123 See the discussion in William Trumbell’s Notebook, BL, Add. MS. 72544 (A), p. 287. 124 Sympson c. Sherp (York, 1503), BI, Cons.AB.5, fo. 19: “Et dominus commissarius assignavit eidem

Sharp ad prosequendum causam suam coram iudice seculari et ad certificandum’ 125 e.g, Hore c. Howell (Archdnry Leicester, 1530) in Proceedings of the Ecclesiastical Courts in the Archdeaconry of Leicester, 1516-1535, ed. A. Percival Moore (= 28 Associated Architectural Societies’ Reports and Papers; 1905), 649: “Remittitur causa judici temporali’; for other examples, see Select Cases on Defamation (above n. 24), pp. xliv—xlv. 126 See Ridley’s View, ch. VII § 1; Cosin, Apologie, pt. I, c. 9. 127 e.g, Clarke c. Brunt (Chester, 1604), CRO, EDC 5, no. 58 (‘cut purse thief’). 128 Quoted in Sara Mendelson and Patricia Crawford, Women in Early Modern England 1550-1720 (1998), 215.

596 DEFAMATION weakness. The law itself counted too. Restricting ecclesiastical jurisdiction to the imputation of spiritual offences meant that, in practice, most cases were about one person calling another ‘a whore’ or imputing some other kind of sexual mis-

conduct. Much of it was insulting language, and perhaps not much more. However, the word ‘whore’ did technically impute a crime cognizable in the eccle-

siastical courts, and as a matter of fact this was a term women commonly said to other women. Men were not precluded from suing when called ‘an adulterer’ or ‘a whoremaster’ or ‘a heretic. Some did.!29 But the great majority of litigation was begun by women whose sexual probity had been impugned. And most of it was brought against other women.!3° Reputation mattered greatly to them. Thus did the ‘double standard’ have an inevitable, if indirect, result on the shape of English ecclesiastical jurisdiction.

JACTITATION ‘Jactitation of marriage’ merited a brief treatment in Chapter 10. It was an ecclesiastical cause brought for falsely claiming to have contracted a marriage with the plaintiff, thereby impeding the plaintiff’s chances of marrying someone else. Its essence was the false boast, the claim to possess a right the boaster did not possess. Regarded from the perspective of plaintiffs, jactitation of marriage could be said to be the imputation of a condition or status (being married) to any person who had not actually contracted a marriage. That was its connection with defamation. To ‘defame’ someone of being married to the defendant would naturally subject a single person to harm, precisely because it injured his or her ability to contract another union. Jactitation meant the false imputation of a status in circumstances where harm would naturally ensue. So regarded, the underlying legal rationale was capable of considerable expansion. Claiming that a free person was a serf or villein was the most obvious example.!3! Boasting that the speaker held a right to a public position claimed by another person was a second. The earliest ‘boasting’ cases brought before the English spiritual courts, however, involved a subject firmly within ecclesiastical 129 Bernard Capp, “The Double Standard Revisited: Plebeian Women and Male Sexual Reputation in Early Modern England’ (1999) 162 Past & Present 70-100. 130 See Foyster, Manhood in Early Modern England (above n. 4), 77-8 (of a total of 225 defamation causes between 1604 and 1665, all but 76 were brought by women); Gowing, Domestic Dangers (above n. 4), 63 (7:1 ratio). For later figures, see Tim Meldrum, ‘A Women’s Court in London: Defamation at the Bishop of London’s Consistory Court, 1700-1745’ (1994) 19 London Jnl 1-20, at 6. The figures in

Poos, ‘Sex, Lies, and the Church Courts’ (above n. 4), 597-9 are only slightly more ambiguous. The subject is discussed at length by Ingram, ‘Slander Suits’ (above n. 1), 151-60.

131 Conley c. Barton (Archdnry Buckingharm, 1492), BKRO, Act book D/A/V/1, fo. 1 (chorle of condition’).

JACTITATION 597 competence and one in which the boast, if true, would scarcely have been an advantage to the boaster: prosecutions of men for boasting about having had illicit sexual relations. They date from the mid-fifteenth century at the latest, and they continued into the next two centuries, though they never became common. So in 1458, William Kenvale was prosecuted “because he defamed himself, saying that he had committed fornication with Margaret Humberk’!32 In 1470, a London man was similarly prosecuted for publicly claiming he had committed sodomy with another man.!33 Almost all the cases involved boastful men, though occasionally a woman might find herself before the courts on the same basis. One such cause, which was brought against a woman, involved an allegedly false claim to be pregnant by a named man.!34 The connection with defamation must have been all too evident. It was only in the sixteenth century, however, that the causa jactitationis became

established as a separate heading of ecclesiastical jurisdiction. It also moved beyond the realm of marriage and sex. Cases involving matrimony continued to be the most frequent and most successful, but the civilians evidently realized that the concept could be stretched to cover boasting more generally. Thus one finds causes being brought for falsely boasting that one had a right to collect tithes or to sit in a particular seat in the parish church.135 A causa jactitationis beneficit, brought against a cleric for falsely pretending to have been instituted to a parish church, came into existence.13© Even boasting about having been drunk within a church was brought before an ecclesiastical court under this rubric.!37 Precedents were drawn up for use against those who made false claims to judicial competence and against those who claimed the right to a legacy without justification.!38 The remedy, if these charges were proved, was an order imposing ‘perpetual silence’ on the speaker and often some form of public apology as well.139 In these situations, 132 KAO, Act book DRb Pa 3, fo. 352: ‘Notatur quod diffamavit seipsum dicendo quod commisit fornicationem cum Margareta Humberk. 133 Ex officio c. Smyth (London, 1470), GL, Act book MS. 9064/1, fo. 4: ‘publice predicavit se com-

mississe crimen sodomiticum cum magistro Thoma Tunley. This was a rare case; see Wunderli, London Church Courts, 83-4.

134 Fx officio c. Vynter (Lincoln, 1447), LAO, Act book Cj/o, p. 28. See also Ex officio c. Amy Martynmasse (Lincoln, 1516), in An Episcopal Court Book for the Diocese of Lincoln 1514-1520, ed. Margaret Bowker (= 61 LRS; 1967), 3. 135 See Precedent book (sixteenth century), BL, Harl. MS. 1253, fo. 27; Eaton c. Lloid (St Asaph, 1580), NLW, Act book SA/CB/1, fo. 32 (‘causa iactitationis iuris usus et occupationis sedilis’). 136 See Precedent book (1576-1631), BKRO, MS. D/A/X/4, fo. 302. 137 Ex officio c. Sarney (Gloucester 1606), GRO, Act book GDR 101, s.d. 14 Aug. 138 William Colman’s book (seventeenth century), SKRO, E 14/11/2, no. 129; Execs. of Wellingham c. Waterman (Archdnry Huntingdon, 1632), HTRO, AHH 5/11, fo. 2v. 139 e.g, Holmys c. Toowles (Exeter, 1534), DRO, Chanter MS. 778, s.d. 24 Feb.: the plaintiff asked that

the defendant be compelled ‘ad docendum de iure sue jactitationis aut perpetuum silencium sibi imponi.

598 DEFAMATION it is noteworthy that truth must have served as a full defence. Otherwise, there would have been little point to bringing the case before a court in the first place. Broadening the concept of actionable boasting offered the church and its lawyers a way of expanding the scope of ecclesiastical jurisdiction. Conceivably, any sort of false public assertion might have given rise to litigation in one of England’s ecclesiastical courts. Theologians had long recognized ‘boasting’ as a sin, even if it was not directly addressed in the Corpus iuris canonict.!*° It clearly could cause harm. The common law courts offered no remedy. The church might fill a gap. The ‘potential’ was enormous. Had it been realized, the loss to the spiritual courts of their jurisdiction over imputations of secular crimes would scarcely have mattered to English proctors and advocates. They would have succeeded in augmenting the number of legal wrongs punishable in England and, along with it, the size of their practice. Ultimately, this ambitious project failed. The number of actions brought for jactitation found in the act books of the seventeenth century was always small, and almost all of them involved marriage. None of the litigation so far discovered involved boasting about a purely secular matter. Writs of prohibition could certainly have been brought to prevent extension of the remedy to reach other kinds of boasting. Even the contemporary civilians might have hesitated about the possibility of conflict. When the experiment came to naught, they could not have been too disappointed. They were not too greatly hurt in their incomes. For one reason or another, their competence over imputations of crimes like adultery and fornication proved hardy enough to keep them and their courts busy. Historians who have taken the trouble to look have quickly discovered that defamation was an area of growth for the ecclesiastical courts during the reigns of Elizabeth and the early Stuarts.!4! It turned out that there was more than enough slander litigation to go around. 140 See Casagrande and Vecchio, Peccati della lingua (above n. 15), 369-82. 141 See above n. 117; Sharpe, “Such Disagreements’ (above n. 6), 172; R. B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860 (forthcoming), ch. 5.

12

Crimes and Criminal Procedure HE ecclesiastical courts in England dealt with a long list of wrongs under the ‘Dimbrets of their ex officio jurisdiction. The existence of the penitential forum was not thought to exclude public prosecutions of those who offended against the church’s law. It was a recognized principle of the medieval canon law that a public crime called for a public trial and a public penance.! The crimes that came before the spiritual courts were a miscellaneous lot, and the criminal jurisdiction exercised in them was not wholly stable over time. Both additions and subtractions took place. Confident generalization is therefore difficult, and no one way of classifying crimes will explain the pattern of jurisdiction fully. It was not limited, for example, to the clergy. Nor was it kept within bounds defined by specific canonical texts. The most that can be said is that throughout the period covered by this volume, a significant part of what came before the courts were offences against either religion or the peace of a community—matters like blasphemy or scolding. In almost every instance, it can also be said that the most frequent offences brought before the courts were violations of the sexual mores of the time, faults like fornication or incest, and the harbouring of men and women who committed them. Today it is unusual to speak about any of these offences as ‘crimes’. They are sins, if they are anything at all. Either that, or they are treated as ‘morals offences — almost all of them obsolete in modern conditions, even if they often do remain

on the statute books.? Partly on this account, some thoughtful observers have contended that historians should confine usage of the term ‘crime’ to the felonies punishable by the common law.? According to this view, it is a mistake to confound the enforcement of societal norms with crimes that called for afflictive, serious penalties. This view would obviously exclude considering the ex officio jurisdiction of the ecclesiastical courts, with the possible exception of heresy.

1 See Winfried Trusen, ‘Zur Bedeutung des geistlichen Forum internum und externum fiir die spatmittelalterliche Gesellschaft’ (1990) 76 ZRG, Kan. Abt. 254-85. 2 They are not defunct, however; see Peter Rook and Robert Ward, Sexual Offences (1990). 3 G.R. Elton, ‘Introduction: Crime and the Historiar’ in Crime in England 1550-1800, ed. J. S. Cockburn (1977), 1-14, at 4.

600 CRIMES AND CRIMINAL PROCEDURE Attractive as this view may be, it is not one for which support can be found among the medieval canonists or in the ius commune more generally. The canonists took it as given that their own law dealt with real crimes. Richard Cosin, the Elizabethan

civilian, was stating a canonical commonplace in placing together conduct that was ‘a sin, a crime, and an offence’ when he sought to describe and defend the jurisdictional competence of the English ecclesiastical courts. Distinctions were drawn between these three words, but the overlap was always greater than the differences; the terms were sometimes used indiscriminately. The ecclesiastical court records themselves referred to adultery, usury, and scolding as ‘crimes. The purpose of the canon law was to ensure, in so far as was consistent with the ordo iuris and a certain presumption of innocence, that these crimes ‘should not go unpunished*5 The great civilian writers on criminal law did not assume anything different. They did divide crimes into various classes. For example, some were considered crimina enormia and some crimina mediocria. The difference between these two classes, however, did not match the jurisdictional divisions of the law applied in England. For instance, adultery was taken to belong among the greater, fornication among the

lesser crimes. Homicide counted as one of the greater crimes, theft was one of the lesser.® In England, both of the former belonged to the ecclesiastical courts; both

of the latter to the royal courts. If nothing else, the difference in classification between what happened in England and what was supposed to happen under the ius commune invites us to consider the place of crime within the classical canon law.

THE CANON LAW AND CRIME Its history made it all but inevitable that the church should take a hand in the public repression of crime. No limitation of its jurisdiction to the ‘internal forum’ would have seemed natural to medieval canonists, because public investigation of crimes of one sort or another appeared on almost every page of their laws. The ancient canons of the church prohibited criminal activity, among the clergy above all; they also provided that penalties be applied against the criminals.? The Anglo-Saxons had also made the tightest connection between the penitential discipline of the church and the

4 Cosin, Apologie, pt. 2, c. 1; see Anne Tarver, Church Court Records: An Introduction for Family and Local Historians (1995), p. Xv.

5 X 5.39.35; Dig. 48.19.53; for fuller explorations of the subject see Richard Fraher, “The Theoretical

Justification of the New Criminal Law of the High Middle Ages: Rei publicae interest, ne crimina remaneant impunita (1984) Illinois Law Rev. 577-95; Lorenz Schulz, “Die praesumptio innocentiae— Verdacht und Vermutung der Unschuld’ (2002) 119 ZRG, Germ. Abt. 193-218. 6 Albericus de Rosate, Dictionarium iuris, s.v. Crimen.

7 e.g. Council of Chalcedon (451), c. 18 in Decrees, Tanner, i. 95; and see Wilhelm Rees, Die Strafgewalt der Kirche (1993), 116-37; Hinschius, Kirchenrecht, iv. 743-864.

THE CANON LAW AND CRIME 601 criminal law found in the early statutes.8 Gratian dealt with crimes at various points in the Decretum; he also discussed criminal procedure and criminal sanctions.? In addition, the basic structure and underlying purpose of the classical canon law required that the church have a law of crimes. Biblical justification was found for it (Matt. 18: 15-18), but the internal logic of the law gave just as strong a push. In the first place, its jurisdiction over the clergy and monks ratione personae would compel the church to determine the guilt or innocence of a large group of men and women.

The privilegium fori could not have been effective without a law of crime (and a criminal procedure) by which the clergy could be tried. In the second place, ordination and promotion within the clerical ranks were moments when the canon law required scrutiny of the candidate’s past. The clergy must be free from the stain of crime (e.g. Dist. 25 c. 6). To assure they were qualified, they were required to answer the question of whether or not they had committed a crime (X 1.11.17). The responses

might require investigation and further consideration. Distinctions were drawn between greater and lesser crimes; between publicly known and ‘occult’ crimes, and between crimes for which the cleric had done penance and been absolved and those for which he had not.!° In the third place, almost every piece of litigation within the courts of the church, even purely civil causes, might require a judge to deal with a question about crime. Although there were many exceptions to it, the rule was that criminals were not to be admitted to give evidence in canonical trials (X 2.20.14). Attempts to discredit witnesses on this score turned out to be frequent in practice, and there had to be a way of deciding the question of the competence of witnesses. Finally, the canon law envisioned direct exercise over all crimes of certain types by the courts of the church. Heresy is the best-known example. It seemed essential that

the church, and the church alone, should have the right to determine what heresy was. The duty of definition could not be left to laymen. Hence, the canon law classed heresy as a crimen mere ecclesiasticum and within the exclusive competence of spirit-

ual tribunals. Lay courts, to which punishment of men and women convicted of heresy was committed, were not permitted to question the church's sentences.!! How

many crimes belonged within this class was always a disputed matter among the canonists, and local custom left room for some variation. The short of it is, however, that as long as the church had public courts, it would have to deal with crimes.

The Corpus iuris canonici did so primarily in the fifth book of the Gregorian Decretals. That title cannot be described as a criminal code. It made no attempt 8 Oakley, English Penitential Discipline (Ch. 1, n. 123). 9 See generally Karl Weinzierl, “Kirchliche Strafen im Dekret Gratians’ in Ecclesia et ius: Festgabe fiir Audomar Scheuermann, ed. Karl Siepen, Josef Weitzel, and Paul Wirth (1968), 677-89. 10 See e.g. Hostiensis, Summa aurea, lib. I, tit. De temp. ord., no. 8. 11 Julius Clarus, Practica criminalis § Haeresis, no. 4, noting also the inroads which some lay courts

had made into the church’s competence.

602 CRIMES AND CRIMINAL PROCEDURE to cover all possible crimes. Nor did it define those it did cover with exactitude. Its

coverage was extensive none the less. The Decretals devoted separate titles to simony, heresy, apostasy, homicide, infanticide, adultery, rape, theft, arson, usury, forgery, soothsaying, clerical hunting, and criminal iniuria. It also dealt at length

with criminal procedure, including the canonical purgation that would play such a large role in English practice (X 5.34.1-16). The canon law contained a title dealing with criminal penalties properly speaking (X 5.37.1-13), and also a very long title on the law of excommunication. The later canonical compilations added to most of these titles, particularly the last, and of course they were all subject to elaboration in the works of the medieval jurists. We shall turn to look more closely at procedural questions in the next section of this chapter. Before doing that, however, three features of the coverage of the Decretals and of

the canon law more generally ought to be stated and clarified with an example or two. First, it is obvious that the list of crimes just given was nothing like a list of those matters that came before the English ecclesiastical courts. English historians have often assumed that sexual offences were the natural and peculiar concern of

the canon law, because they were so treated in England. In truth, however, the canon law placed no special emphasis on the sins of the flesh as belonging by right to the ecclesiastical courts. The English church’s exclusive jurisdiction over them— one that would earn them the sobriquet ‘the Bawdy courts—was not something compelled (or even encouraged) by the canon law itself. No title “De fornicatione appeared in the Decretals. Fornication was not condoned, of course, but neither was it singled out for special concern by the church. And as for adultery, the church asserted its right to define the crime; doing so was a part of its responsibility to define what constituted a valid marriage. However, the punishment of adulterers was something that could be shared with the temporal courts, depending on local custom and the rule of priority in time known as praeventio.!2 The canon law’s assumption was that, except for a few crimes, laymen would be tried before lay

courts unless local custom was to the contrary. The result was that the ways in which sexual offences were treated could vary considerably from one place to another.!3 The English jurisdictional pattern was nothing like universal in the Latin church.

Second, quite a few of the many wrongful actions that came before the ecclesiastical courts could be treated as either civil or criminal in nature. As noted briefly in Chapter 5, the form of proceeding and the purpose for which it was brought—

to punish or to secure civil damages—normally determined on which side of 12 Julius Clarus, Practica criminalis, lib. V, quaest. 37, no 8. 13 See e.g. L. Otis-Cour, ‘Lo pecat de la carn: La repression des délits sexuels 4 Pamiers a la fin du

moyen age’ in (1996) 1 Studi di storia del diritto 335-66; Guido Ruggiero, “Sexual Criminality in the Early Renaissance: Venice 1338-1358 (1975) 8 Jnl Social History 18-37.

THE CANON LAW AND CRIME 603 the line any particular action fell. The well-known division between civil and criminal trespass is a modern analogue. In medieval England, defamation was the most commonly cited example of litigation that could be considered either a crime or a civil wrong. However, the same division was made elsewhere, as with many of the offences against the church’s testamentary laws. Failure to introduce a will for probate or commission of acts of interference with a testamentary administrator carrying out his duties could come before a court as either a civil or criminal matter.

Classification might depend upon individual circumstance more than the exact nature of the offence. Whether the distinction made a great difference in determining how ‘convicted’ defendants were treated, however, may be questionable. The remedies in use were basically the same. In practice, the nature of procedure being invoked—compurgation or witness proof—may have been determinative. One ascertainable consequence was to permit courts which had been granted only ex officio jurisdiction to deal with defamation. The commissary court of the diocese of London, for example, heard many defamation causes that were criminal in style and procedure, but were actually brought to clear one person’s reputation. Third, there was a purposive element to the criminal law of the medieval church— a religious element if you like—that makes it hard for us to understand some of its features. The canonists believed that all men and women stood under the judgment of God. Punishment by God dwarfed in seriousness any earthly penalty the church could inflict. Moreover, God’s judgment was sure, the church’s was imperfect. And

this difference was more than an abstract recognition of man’s fallibility. It had concrete consequences in the criminal law. Some of the consequences now seem almost modern in their merits. The importance of the human will in determining the nature of a wrongful act was one.!4 The legitimate place found for mercy in applying

the criminal law was another.!> The rule that the church would not snoop into private corners of men’s lives in order to ferret out secret faults was a third.1° Others now seem less defensible. Allowing criminals to escape the consequences of their

acts if they could find sanctuary within a church was one. Granting more lenient penances (or none at all) to clerics guilty of criminal acts than to laymen, so that

the clerical order would not be brought into public contempt, was another. Allowing well-to-do men and women of means to compound for their offences and thereby gain the advantage of not having to perform a humiliating public penance was a third.

Most significant of the consequences of recognizing the limitations inherent in human judgment, however, was the way in which the canonists regarded the sanction of excommunication. On the one hand, it was the greatest ‘weapon’ at 14 Stephan Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX (1935), 39-63.

IS eg. C.26q.7 ¢. 12. 16 See e.g. De pen. Dist. 1c. 14, taken from Dig. 48.19.18.

604 CRIMES AND CRIMINAL PROCEDURE the disposal of judges in the ecclesiastical courts. It cut the sinner off from God. On the other, it was a ‘medicinal’ sanction (Sext 5.11.1). Its primary purpose was to

restore the person excommunicated to spiritual health, not to punish him. Inroads were made in both principles. The church did not shrink from punishing those who fell under its ban, even with the severest of temporal sanctions. But the medicinal nature of excommunication was never lost entirely from view, and this way of looking at excommunication made a difference in ordinary court practice. Its use could be tailored to circumstance. It could be applied or withheld, according to the effect the judge thought it would have on the person sentenced. Judges might even take into account the views of the community where the person lived. None of this would have been contrary to the canons.

CRIMINAL PROCEDURE Canonical purgation has taken centre stage for most historians who have described the criminal side of the English church’s jurisdiction. Rightly so. Compurgation did dominate court practice, particularly during the Middle Ages. It was never the only way of proceeding legitimately in criminal matters, but it was the most commonly employed in the English ecclesiastical courts. However, one can better understand the reasons for its place in practice by beginning where the canonists themselves did: with a threefold classification scheme of criminal prosecutions. The ius commune started by distinguishing between accusation, denunciation, and inquisition. Once, there had been more. The medieval church had been a leader in the move towards rational forms of proof. The Fourth Lateran Council had rejected the use

of ordeals, prohibiting the clergy to take part in them, although they had been mentioned as a possibility in the Decretum (d.p. C. 2 q. 5 c. 21). Proof by notoriety, although allowed under the texts (e.g. X 3.2.8), had also become largely obsolete by the time the English consistory courts were established. An opening was left for it; some crimes would be so obvious that no denial would be heard. It could furnish good reason for undertaking inquisitorial proceedings.!7 But as a normal

matter, proof solely by notoriety in the spiritual forum had been abandoned by desuetude. The ordo iuris prevailed in criminal cases, and it is not fanciful to speak of a right to canonical due process.!8 The starting-point for the canonists had been the Roman law, but as in the law of civil procedure, so it was here. The medieval

jurists evolved a system of criminal procedure that was largely their own. The English records show that the courts followed them. 17 X 5.1.24; see Andrea Carboni, “La notorieta del delitto nelle riforme ecclesiastiche medioevali’ (1959) 28 Studi Sassaresi (2nd ser.), 49-99, at 87-96. 18 See e.g. Durantis, Speculum iudiciale, lib. Hl, pt. 1, tit. De notoriis criminibus, no. 8; see generally Kenneth Pennington, The Prince and the Law, 1200-1600 (1993), 132-64.

CRIMINAL PROCEDURE 605 Accusatio, Denunciatio, and Inquisitio The formal accusatio began as the principal and preferred method of dealing with crime. It remained so in the writing of the medieval jurists, long after it had been eclipsed for most purposes by the canonical inquisitio. It also remained available in the court practice. Before anyone brought before one of the ecclesiastical courts for having committed a crime was admitted to canonical purgation, for example, a public proclamation was routinely made, asking if anyone wished to undertake an accusatio. If so, let him step forward. Not many did. But the opportunity was offered, and some accusers took advantage of it. Somewhat like the criminal appeal in the English common law, the accusatio required a private accuser to initiate and carry through the prosecution. Consistent with its initiation, the procedure used was virtually identical to that used in civil causes.19 The form of the libel would vary slightly, and the remedy prayed for would often differ; otherwise, most of the procedural rules were the same. The defendant was to be cited as in instance causes. Witnesses were to be called. Two would ordinarily be required. Only a higher level of proof required for conviction would separate a trial begun by accusatio from an ordinary instance cause.?°

Several aspects of the procedure ought none the less to be noted specially. First, many potential accusers were legally prohibited from acting because they lacked legitimate standing in law (Dig. 48.2.8).21 Women and minors were so excluded. Monks and soldiers were ruled out as being legally subject to another man’s will. Excommunicates and infames were barred as being unworthy to come before the courts. The enemies of the accused were forbidden to accuse because they were presumed to be acting out of hatred and spite. Exceptions were

made within each category, as in allowing women to bring accusations for injuries to themselves or near relatives (Dig. 48.2.11), and the canon law also took

a more tolerant view of who might be admitted to accuse when serious crimes were involved. It still seems likely that a part of the decline of the accusatio can be explained on this basis. Under the law, to act as an accuser also required the person to submit to the poena talionis, meaning that if he failed in the accusation he himself would suffer

the same punishment to which the accused would have been subject had he been declared guilty. This ancient Roman institution of retaliation was endorsed in a measure by the canon law (e.g. X 5.1.14), and occasional references to it are 19 e.g, Durantis, Speculum tudiciale, lib. II, pt. 1, tit. De accusatione, no. 1: ‘facile est videre, nam fere

eadem in ea servanda sunt [ut] etiam in civili actione’ 20 See Cod. 4.19.25; Bartolus, Commentaria ad Cod. 1.1.1, no. 12: ‘[I]n causis criminalibus... quia debent esse probationes luce meridiana clariores’. 21 The medieval additions are spelled out, with appropriate citations, in Fournier, Les Officialités, 237-42.

606 CRIMES AND CRIMINAL PROCEDURE to be found in the English ecclesiastical court records.22 In some cases it could scarcely have been applied, however, as where a cleric was removed from office for the commission of a crime, and where used it may have been reduced to an

obligation to pay the expenses of prosecution.?3 In any event, it admitted of exceptions under the ius commune. Whatever the form and outcome, the disincentive was undeniable. The possibility provided a disincentive to greater and continued use of the accusatio. It meshed with the opinion of the canonists. They

regarded the ancient accusatio as an inefficient and insufficient method of repressing crime. The texts required them to respect it, but they had no reason to encourage its use. An alternate form of criminal procedure, the denunciatio, was patterned upon procedure mentioned in the Gospels (Matt. 18: 15). Its purpose was to recall the denouncer’s brother from sin.?4 One of Innocent III’s most famous and controversial

decretals had permitted assertion of spiritual jurisdiction in an otherwise secular matter under this rubric (X 2.1.13). “What sane man; asked the great pope, ‘does not know that it belongs to our office to correct any mortal sin whatsoever?’ The proced-

ure required a fraternal admonition before bringing the matter formal before the church, in accordance with the scriptural direction. The medieval canonists endorsed

the wisdom of the initial admonition, if not its necessity in every case. William Durantis, for example, envisioned a cleric saying to his bishop, ‘My lord, it is said that

you have a concubine, which is something that should not be. He went on to warn him ‘charitably’ to desist, lest the bishop’s good name should be tarnished. Durantis even provided a text from the Roman law for the cleric to cite to the bishop in order to cement the point.?5 Once this fraternal admonition had been disregarded, a formal denunciatio served primarily as a way of bringing the matter to the attention of the authorities. It then did not entail any special procedures; prosecution either by inquisitio or private accusatio could ensue. By proclamation, Queen Elizabeth recommended its use in religious disputes as a way of avoiding ‘slanderous words and railings’2° In ordinary ecclesiastical practice, the prosecution ex officio promoto was one form denunciation took. An individual brought a criminal matter to the attention of a court and undertook to carry it forward. However, the procedure 22 e.g, March c. Waps (Rochester, 1446), KAO, Act book DRb Pa 2, fo. 59: “Et inscripsit se ad penam

talionis et offert se hoc legitime probaturum’ The charge was of forging a last will and testament. 23 e.g. Ex officio c. Frount (London, 1519), GL, Act book MS. 9065J/1, fo. 57v, in which an objector to

compurgation undertook formally to accuse and to pay the expenses if he failed. 24 See Helmut Coing, “English Equity and the Denunciatio evangelica of the Canon Law’ (1965) 71 LQR 223-41; Charles Lefebvre, “Contribution a létude des origines et du développement de la denunciatio evangelica en droit canonique (1950) 6 Ephemerides turis canonici 60-93. 25 Speculum iudiciale, lib. III, pt. 1, tit. De denunciatione § 2, no. 4. The reference was to Cod. 1.3.19. 26 Proclamation 460, c. 50 in Tudor Royal Proclamations, Volume IT: The Later Tudors (1553-1587), ed. Paul Hughes and James Larkin (1969), 128.

CRIMINAL PROCEDURE 607 by presentment of offences by churchwardens could also be considered a form of denunciatio,2’ and it normally led to canonical purgation. This was also the course followed in England with the third form of criminal procedure provided in the ius commune, the inquisitio.

This third method of proceeding, the inquisitorial, lay at the center of ex officio practice in England. The theory behind it was that fama publica could legitimately take the place of an accuser. If widespread and backed by indicia of truthfulness, public fame might be just as reliable as an individual. It might even be better. It would

not leave the repression of crime in unreliable, private hands. Public courts could inquire and act without ‘handicaps’ such as the natural temptation for individual accusers to settle a case for money. And if any special justification for the procedure was needed, it was found in the biblical example of Sodom and Gomorrah. The outcry about the sins of the city had risen up to the Heavens, and God had said, ‘I will

go down now, and see whether they have done altogether according to the cry’ (Gen. 18: 21). God’s example showed what the church must do. The bishops must act. Inquisitorial criminal procedure was the result (X 5.1.17). Proof by notoriety, ejected

by the canonists through the front door, thus worked its way halfway back inside through the rear.

Proceeding by inquisitio in the canon law required that the judge and the officials under his control conduct investigation and trial of suspected criminals. The courts were given the power to compel witnesses to come and give evidence against suspects. The officials were themselves to frame the questions put to defendants and witnesses. Judges were instructed that it was among their functions to ‘strike terror into the hearts of criminals in the interests of the public suppression of crime.28 This led to what one commentator has called ‘short-cuts in the law of proof’? and in many parts of the Continent to the creation of the courts of the Inquisition. The habitual use of torture in those tribunals, the secrecy that

surrounded the interrogation (and even the names) of witnesses, the efforts they made to reach anyone who might have given aid to a suspected heretic, and the awful punishments that followed from their sentences have given them a deservedly bad reputation in modern times. Nor were they content to deal with heresy per se; their jurisdiction expanded to cover witchcraft, blasphemy, and other religious crimes. However, for reasons that have remained slightly mysterious,3° the Roman Inquisition did not arrive on English shores, and there is no need to enter into the 27 Clarke, Praxis, tit. 323. 28 Albertus Gardinus, De malefictis, rubr. 29 Fraher, “Theoretical Justification’ (above n. 5), 586-7.

30 Jt is often said that this was pure accident; little heresy existed in England before 1400, so that there was no need. It may be, however, that this is a case of ‘over-reacting’ to earlier claims about the inherently admirable character of Englishmen.

608 CRIMES AND CRIMINAL PROCEDURE controversy that still surrounds them.3! In England, the ordinary ecclesiastical courts used inquisitorial procedure, but without the special features that were to mark the history of the inquisitorial tribunals on the Continent. That is, in formal terms they did place the initiative for prosecuting ecclesiastical crimes in the hands of the judges. No accusers were required. However, for the ordinary crimes that came before the English courts—including most allegations of heresy—what was

done in practice fell far short of what we would think of as a true inquisitorial process. Indeed, it fell so far short of that that most modern historians have derided

the ‘trial’ of suspects before the spiritual courts as altogether ineffective. Like the criminal procedure characteristic of the English common law, ‘there were no official evidence-gatherers’ to help with ex officio prosecutions in the ecclesiastical forum.32 No professional promoters of office were appointed, as they were in parts

of the Continent. Practice settled into a routine. It operated by citing persons publicly suspected of a crime, questioning of them by the judge, and then compurgation to follow.

Canonical Purgation The start of ex officio prosecutions depended upon the existence of legitimate reason for thinking that a person had violated the law, say by committing adultery or making a blasphemous statement. The person would be summoned to appear before an ecclesiastical court, where he would be asked whether he had committed the offence. If he admitted it, he would be assigned a public penance or in some cases be dismissed with a pious admonition. If he denied it, he might be dismissed if it was clear that he had been defamed maliciously. More commonly, however, he was subjected to canonical purgation. To appreciate what canonical purgation meant in the context of ordinary crim-

inal procedure, it helps to start with the place it occupied in the Corpus turis canonici. As found in the canonical texts, compurgation was suitable in one particularly difficult situation: the cleric whose conduct was suspicious, but against whom no satisfactory proof was available (e.g. C. 2 q. 5 c. 12; X 5.34.2).33 Suppose,

for example, it was widely believed that he had entered the benefice by simony. 31 The literature on this subject is enormous. The classic work in English remains Henry Charles Lea, A History of the Inquisition of the Middle Ages (1888). For more favourable and recent views of the procedures used by the Inquisition, see e.g. John Tedeschi, The Prosecution of Heresy: Collected Studies on the Inquisition (1991); Albert Shannon, The Medieval Inquisition (2nd edn, 1991); Elena Brambilla, Alle origini del Sant’Uffizio: Penitenza, confessione e giustizia spirituale dal medioevo al XVI secolo (2000); H. A. Kelly, Inquisitions and Other Trial Procedures in the Medieval West (2001) 32 The quotation is from John H. Langbein, Torture and the Law of Proof (1976), 78.

33 James Brundage, “Proof in Canonical Criminal Law’ (1996) 11 Continuity and Change 329-39, esp. 330-2.

CRIMINAL PROCEDURE 609 Or suppose that a woman had been seen more than once leaving his rectory late at night. People talk. Rumours spread. Scandal would be the result. It might infect the life of a community. But laymen were prohibited by law from accusing their pastors, and nothing might be done. No suitable accuser might come forward. Of course, the canonists also recognized that the scandal itself might be false. It might be the product of malice, envy, or mistake. The question was what to do when proof was unavailable but suspicion high. It was in such instances that canonical

purgation offered a plausible solution. It allowed proceedings to be brought against the cleric and a means found for him to clear his reputation if he were innocent. If he could not clear his name, he could be corrected or even deprived of his benefice. In either case, the public scandal could be ended. It was another question how far the system of compurgation that emerged from such situations could appropriately be used to deal with routine crimes. The canonists were fully aware of the problems inherent in the procedure. They considered that compurgation was an unreliable way of determining truth or falsity.54 It might be slightly better at determining a person’s motive, and it might be an accurate gauge of a person’s standing in the community, but it had evident weaknesses. Strictly speaking, canonical purgation was not a form of proof at all. It was an alternative to proof. It scarcely figured, for example, in the standard treatise, De probationibus, written by Joseph Mascardus. Compurgation was a suitable way of dealing with damaging and persistent rumour. It was a serviceable means by which a person's tarnished reputation might be recovered and (one hoped) harmony restored among his neighbours. But it was a poor way of determining what was true.

Recognizing this, the canon lawyers sought to make compurgation as reliable an instrument as possible. They began by imposing several legal requirements on its imposition. FAMA PUBLICA

Although it had a broader significance in the canon law,>> in England fama publica

served the function “probable cause’ does in modern criminal law, or (perhaps more accurately) the function a grand jury presentment served in the early common law. It was both a means of initiating a criminal trial and a protection against abusive prosecution. It was a guard against overzealous intrusion by public officials into men’s private lives. Because public fame had serious consequences in law and because it allowed courts to dispense with the safeguards that accompanied the 34 See e.g. Panormitanus, Commentaria ad X 5.34.14; Joannes Andreae, Commentaria ad X 5.34.11, no. 2; the subject is explored in more depth in Four Studies, 110-21. 35 See generally Francesco Migliorino, Fama e infamia: Problemi della societa medievale nel pensiero giuridico net secoli XII e XIII (1985); Aniceto Masferrer Domingo, La pena de infamia en el derecho historico espatiol (2001), 60-125; Brambilla, Alle origini (above n. 31), 89-93.

610 CRIMES AND CRIMINAL PROCEDURE criminal accusatio, the jurists held that no prosecution could be begun without fama publica, and that not just any public rumour counted (X 5.1.19). Fama had to meet a number of preliminary tests. It must have been held by a sufficient number of people, not just a small group.36 They must have been creditable persons, not

ribaldi, habitual perjurers, or persons of no credit in the community. Rumours spread by a man’s enemies also did not count as fama publica, even if the enemies were otherwise reliable and the rumours had been widely believed. And if all the information could be traced to a single person, even if he were otherwise credible, this would not ordinarily pass muster under the two-witness requirement of the tus commune.>”

In court practice, these limitations were known and sometimes invoked, but they were kept in the background. It was left to defendants to raise them, and they seldom did. Whether the neglect was purposeful or incidental we cannot say, but few of those who were summoned to appear actually raised objections based on the quality of fame against them. The records normally stated that they stood defamed ex frequenti et clamosa insinuatione of the whole community.38 This may

have been true. But when the silent formality of the records can be lifted, it is apparent that the fama was often being reported by specific individuals—the curate, the servant, the apparitor, the aggressive neighbour, or even the defendant’s husband.3° They were acting to bring the public fame into the light. The result was not illegal. However, it could lead to abuse, and it was to bring some control to this process of semi-private ‘prosecution that the system of regular visitations, with episcopal articles of inquiry and formal presentment by churchwardens, was introduced.*° At least prima facie, the churchwardens’ presentments spoke the voice of the parish. It could be presumed that they were reporting what the fama publica actually was. Use of presentments was not a perfect indicator of course; it carried no absolute guarantee of reliability.44 Some churchwardens might have agendas of their own. They brought some things before the courts they should 36 See e.g. gl. ord. ad X 5.1.21, s.v. quaesivisti: ‘Item dicta paucorum non infamant. See also Baldus de Ubaldis, Commentaria ad X 3.2.7, no. 3. 37 e.g. Ex officio c. Seward (Winchester, 1578), HRO, Act book 21M65/C1/20, fo. 15: “eo quod notatur

per relationem unius ideo dominus eundem dimisit’. 38 e.g. Ex officio c. Houyle (Canterbury, 1304), LPL, Act book MS. 244, fo. 19v; Ex officio c. Wilkinson (Durham, 1533), DUL, Act book DDR/III/1, fo. 51. 39 Ex officio c. Stonehill (Rochester, 1449), KAO, Act book DRb Pa 2, fo. 109 (vicar); Ex officio c. Collier (Canterbury, 1627), CCAL, Act book Z.4.5, fo. 32v (housekeeper); Ex officio c. Barnes (York, 1595-6), BI, V.1595-6.CB.3, fo. 32v (apparitor); Ex officio c. Rodes (London, 1588), GL, Act book MS. 9064/13, fo. 5v (named individual); Ex officio c. Sparkes (Archdnry Buckingham, 1606), BKRO, Act book D/A/C/3, fo. 101 (husband); Ex officio c. Barnes (Ely, 1577), CUL, Act book EDR D/2/10a, fo. 7 (wife). 40 Rodes, Ecclesiastical Administration (Ch. 1, n. 7), 135-8. 41 e.g, Ex officio c. Frende (Canterbury, 1585), CCAL, Act book Y.3.9, fo. 18, a cause in which the war-

dens, under questioning by the court, admitted that one person had spread a rumour and that this was all that lay behind their presentment.

CRIMINAL PROCEDURE 611 not have done, and they failed to present some things they should have done. Presentments could therefore be challenged and the presumption that the wardens spoke authoritatively overcome.*? The older means of discovering the existence of public fame also remained open. But reliance on the churchwardens in the first instance was undoubtedly a procedural improvement.*? It was a regular process; it filtered out some loose talk and some malicious accusations.

The limitations on prosecution provided under the law none the less had results. Although it did not happen often, it was open to men and women cited to

appear before an ecclesiastical court to deny that any public fame circulated against them. If they did, they were entitled to have its existence proved. When an objection was raised, the courts sometimes made use of inquests to determine the question,*4 and if the inquest reported that no reliable public fame existed, the defendants were entitled to be dismissed.45 Probably it helped if the defendant could point out a particular reason why the fama did not meet the law’s test. At least the records contain cases in which this happened. One man alleged that the rumour had its origins ‘in the bare say-so of a whore.*° A second man alleged that all the fame against him had come from one of his former servants whom he had dismissed and who wished to strike back at him out of malice.4” A third claimed that the fame was ‘insubstantial and not very public.48 Occasionally a defendant sought to introduce affirmative evidence of his or her good fame, seemingly to show that no compurgation could be imposed under the law.*9 Challenges like these did not always succeed, and some defendants actually preferred to undergo public compurgation despite deficiencies in the case against them. Compurgation might do more to restore their reputations than standing on 42 So came into existence the negotium justificationis billae that required the wardens to justify their presentments; e.g. Ex officio c. Lane (Archdnry Buckingham, 1637), BKRO, Act book D/A/C/11, fo. 88. 43 e.g. Ex officio c. Ike (Lichfield, 1596), LJRO, Act book B/C/2/32, s.d. 30 Mar., admission of a man

to purge himself solely by his own oath, ‘eo quod non existit presentatio per economos nec aliquem parochianum iuratum: 44 e.g. Ex officio c. Magges (Bath and Wells, 1628-9), SRO, Act book D/D/Ca 263, fo. 32v, in which the

defendant, said to have been guilty of a sexual offence, ‘negat famam publicam, unde dominus decrevit inquisitionem fieri’; Ex officio c. Cressy (Archdnry St Albans, 1516), HTRO, Act book ASA 7/1, fo. 6: “Et

decrevit descendendum fore ad inquirendum super fama et super veritate’. 45 e.g. Ex officio c. Stonehill (Rochester, 1449), KAO, Act book DRb Pa 2, fo. 209: ‘Qui dicunt quod

non sunt diffamati de premissis ideo dimissi sunt. 46 Ex officio c. Kinge (Canterbury, 1601), CCAL, Act book X.9.2, fo. 58: “ex nuda relatione meretricis. 47 Ex officio c. Randall (London, 1612), GL, Act book MS. 9064/17, fo. 25v.

48 Ex officio c. Stevyns (Hereford, 1475), HFRO, Act book O/11, s.d. 9 Jan.: ‘levis et non multum publica. The judge adjourned the cause ‘quousque cognosci poterit an fama super huiusmodi articulo fuerit publica vel non publica. 49 Ex officio c. Raven (Norwich, 1594), NNRO, ACT/25, s.d. 6 Feb. (certificate of good fame from witnesses); Ex officio c. Crispe (Canterbury, 1597), CCAL, Act book X.8.15, ff. 144, 212 (defendant a Justice of the Peace); Ex officio c. Sympson (London, 1600), GL, Act book MS. 9064/15, fo. 32v (testimonial letters

of parishioners).

612 CRIMES AND CRIMINAL PROCEDURE what might appear to be a ‘technicality’ would have. Indeed, some men and women affirmatively asked to be admitted to compurgation with exactly this end in view.°° It was envisioned by the canon law (X 5.34.12). They sought a judicial sentence restoring them ‘to their prior and spotless reputation’ after they had successfully undergone compurgation. For some, that sentence was worth having. But this was a voluntary act. Most compurgation was not. Under the law, men and women summoned before a public court were entitled to avoid having to take an oath and find compurgators, unless fama publica of a certain reliability had first been shown to exist against them. THE POSSIBILITY OF ACCUSATIO

Before admitting anyone to purgation, the ecclesiastical courts routinely made a public proclamation, asking that anyone who wished to undertake the role of accuser should step forward.>! The proclamation was made where it would be heard

by interested parties, usually in the parish church where the person resided. Sometimes specific individuals were also cited to appear before the court in anticipation of the assignment of compurgation, seemingly when their personal interest made it likely that they might wish to bring a formal accusatio. Affirmative proof of any contested matter was a better source of proof than compurgation under the law, and the English courts followed the ius commune in encouraging its production. Admitting anyone to purgation in the face of objection of this kind was a cause for appeal.52 From this provision grew an established form of proceeding in English practice: the causa reclamationis contra purgationem.> It turned purgatio into accusatio. At the same time, an objector had another choice. He might take the role of promoter of the ex officio cause, thus bringing the matter within another recognized category of the ius commune.*4 In substance, there would have been little difference between the two. It would have required the person to prove the crime, but it would have prevented the accused from escaping by compurgation. More often than not, exactly what motivated ‘reclamations’ against compurgation is hidden from us. They might have come from a simple desire to see justice done. 50 e.g, Cause of Stenton (Lichfield, 1598), LJRO, Act book B/C/3/5, s.d. 10 Jan.: “Quo die comparuit voluntarie quidam Willelmus Stenton de Bildwas et allegavit se falso diffamatum super crimine incontinetie vite cum quadam Susanna Davies et petiit se admitti ad purgandum se’.

51 See e.g. Ex officio c. Chilcott (Archdnry Taunton, 1624) in Collectanea II: Act book of the Archdeacon of Taunton, ed. Claude Jenkins (= 43 Somerset Record Soc.; 1928), 141-2, where the procedure is fully set out. 52 e.g, Ex officio c. Parfyte (Hereford, 1454), HFRO, Act book O/5, p. 9: ‘recepit purgationem Thome

Therman post reclamationem factam. 53 Jefferey c. Wodschaw (Lichfield, 1471), LJRO, Act book B/C/1/2, fo. 26v; the objector was given a day ‘ad allegandum causam reclamationis contra purgationem dicti Johnnes Jefferey’. 54 e.g, Ex officio c. Jackson (York, 1443), BI, D/C.AB.1, fo. 104: “comparuit personaliter dictus Robertus Clyfe tanquam promotor officii...ad dicendum contra purgationem.

CRIMINAL PROCEDURE 613 One objector claimed he had intervened to save the participants from committing perjury.°> They may just as well have arisen out of spite. The wife of a man said to have committed adultery with a woman seeking to clear her name through purgation was found to have objected for that cause.5° ‘Reclamations’ may also have been made in the hopes of securing payment of money that would look very like a bribe; many causes were stopped but then compromised and dismissed in subsequent court sessions. In only a few cases can we make a confident guess at motivation. In the consistory court of Chester in 1556, a woman defamed of fornication with several men denied it. She was assigned to a term to undergo purgation, the normal procedure. This was prevented, however, by the intervention of a man with whom she had already admitted having sexual relations. He sought to prove that she was in fact promiscuous and therefore should not be admitted to compurgation—in other words, that the fama against her was true. His object, however, was not to vindicate canonical standards. It was to avoid the entry of an order of filiation against him. That would require him to pay for the child’s upbringing, and that is exactly what happened.9” EXAMINATION BY THE JUDGE

Even if no one stepped forward to reclaim, admission to compurgation was not always quick or automatic. The English judges had the defamed person before them. Defendants were not permitted to appear by proctor, at least at this stage, and their presence offered an opportunity for questioning them. It is clear that judges took advantage of it.58 Some of the crimes that came before the courts

could scarcely have been denied, though mitigating circumstances might be offered—for example, contempt of ecclesiastical jurisdiction or perjury that had taken place in the face of the court. Compurgation would not be awarded in such cases. The canon law itself held that where guilt was clear beyond doubt, the guilty person should not be admitted to compurgation (X 5.34.15).°? When a woman had given birth to a child, for example, should she be allowed to deny the charge of fornication and undergo canonical purgation? It would have made an obvious mockery of the system to allow this to occur, and women were prevented from doing so at this stage of proceedings.©° The courts went further. For instance, a woman named Agnes Yves appeared before the official of the archdeacon of 55 John Lytel, objecting in Ex officio c. Godmanchester (Ely, 1380), CUL, Act book EDR D/2/1, fo. 147:

‘ne idem dominus Johannes et compurgatores sui periculum periurii incurrant. 56 Ex officio c. Coupland and Snowdon (York, 1440), BI, D/C.AB.1, fo. 96. 57 Ex officio c. Thomaslaughter (1557), CRO, EDC I/4, fo. 105v. 58 e.g. Ex officio c. Simons (Salisbury, 1568), WTRO, Act book D1/39/1/3, fo. 113: “[I]Judex ad statim ad ipsius Simonis examinationen processit’. 59 See Carboni, ‘La notorieta del delitto’ (above n. 17), 49-99; Brundage, ‘Proof’ (above n. 33), 332-4. 60 e.g. Ex officio c. Boarne (Salisbury, 1616), WTRO, Act book D1/39/2/8, fo. 15v.

614 CRIMES AND CRIMINAL PROCEDURE Buckingham in 1521; public fame was circulating, Agnes was a scold and common slanderer of her neighbours.®! She must have been, at least she was so considered,

because the record stated that forty neighbours had come to court at the same time in order to affirm the truth of the fame. After some colloquy between them, the official refused to admit Agnes to compurgation. The initial appearance was probably more important in routine litigation, however, for fixing the terms on which compurgation would be allowed. The number of compurgators to be required and the place of compurgation rested within the discretion of the judge under the canon law. The canons had set exact numbers of compurgators for some cases (e.g. X 5.34.1), but the communis opinio among the jurists took the view that the number was ‘arbitrary, meaning that it was up to the judge to make the decision. Probably this was as it should have been. The gravity of the offence and the reputation of the accused may make a legitimate difference. The friendless man from far away may reasonably be required to bring fewer compurgators than the lifelong resident of a parish. At any rate, the court records show that the English judges did regularly exercise discretion in setting the terms of compurgation. Probably allowing defendants to clear themselves by their own oath occurred most frequently.®? Judges must have thought these defendants were innocent. An actual case—different from many others only in its details—illustrates the utility of this initial examination. A woman named Dorothy Clarke of Reculver in Kent was presented for sexual incontinence in 1586.6? Common fame had it that

she had had unlawful sexual relations with a man named William, apparently from the same parish. Under questioning, she told the judge that he had been at her house one evening for a quite innocent reason, when it had begun to rain. The rain had come down so hard, she said, that he could not return to his own house without getting soaked. So he stayed. In the end, William remained there the whole night. But she insisted that nothing untoward had happened. This was just the sort of incident from which gossip would arise. How should this case have been dealt with? Real proof of what happened was admittedly impossible. It lay with the judge to decide whether to admit her to compurgation and to set the terms for it. He might dismiss her on her own oath given then and there, or he might require many compurgators to support her sworn denial and assign the parish church as the place of oath-taking, or he might do something in between. The judge’s decision would probably determine the outcome of the case, and it was during this initial ‘hearing’ that it would be made. Unlike assignment of wager 61 Ex officio c. Yve, BKRO, Act book D/A/C/1, fo. 3.

62 e.g. Ex officio c. Ike (Lichfield, 1596), LJRO, Act book B/C/2/32, where this happened apparently because there was no formal presentment against her by the churchwardens. 63 Ex officio c. Clarke (Canterbury), CCAL, Act book Y.3.9, fo. 133. However, at fo. 160, she was recorded as having admitted the offence and been assigned public penance.

CRIMINAL PROCEDURE 615 of law in the royal courts, the judges in the ecclesiastical courts kept meaningful control of the process. THE COMPURGATORS

The number of the compurgators was fixed by the judge, but the defendant was allowed to select who they would be. Their choice was not unrestricted, however; here again the canonists sought to make the system as reliable as they could. They

were aware of the danger of allowing defendants entire freedom of choice. Compurgators were therefore required to be persons of good repute, not tainted by infamia of any kind, and they were to be familiar with the life and character of the defendant. They were also to be ‘of the same order’ as the defendant, meaning that clerics were to serve as compurgators for clerics, merchants for merchants, women

for women, and so on. The judges had discretion to admit exceptions to these requirements, as in cases where an insufficient number of compurgators of the same order could be found. Still, the presence of a knowledgeable and informed sroup of compurgators was the expectation. It was the goal of the canon law. Nor were these requirements ignored in English practice.°4 The most common

source of objection against compurgators was unfamiliarity with the person accused, as in cases where they were rejected because they came from a different parish or neighbourhood.® But other objections can occasionally be found in the

cases—that the proffered oath helpers were habitual perjurers, tenants of the defendant and so beholden to him, or had themselves taken part in the crime.®® Sometimes the record merely stated that potential compurgators were rejected as ‘unsuitable’.©”? The poor were occasionally excluded by reason of their presumed unreliability.°8 In 1629, a judge in the diocese of Bath and Wells refused to accept purgation unless the defendant produced at least two compurgators who were members of the Common Council of the City of Wells.°? Compurgatory oaths

were normally taken in a public place when there was any question about the outcome, and this must have served as a disincentive against introducing suspect compurgators. The names of all the compurgators were also commonly recorded in the records. They would not have been professional swearers. 64 For examples, see Four Studies, 106-8.

65 e.g, Ex officio c. Easter (Winchester, 1522), HRO, Act book 21M6s5/Ci/1, fo. 42: ‘[C]omparuit dicta Elisabetha et induxit quasdam mulieres non vicinas dicte Elisabethe in compurgatrices, quam purgationem dominus reiecit’. 66 Ex officio c. Estrey (Canterbury, 1304), LPL, Act book MS. 244, fo. 37v; Ex officio c. Lindsell (1598) in Emmison, Elizabethan Life (Ch. 2, n. 133), 294; Ex officio c. Newton (Canterbury, 1451), CCAL, Act book X.1.1. fo. 37.

67 Ex officio c. Beisdenys (London, 1511), GL, Act book MS. 9064/11, fo. 9 (‘minus idonei’).

68 Ex officio c. Hapgode (Rochester, 1515), KAO, Act book DRb Pa 6, fo. 122 (‘mulieres pauperes

et inops’). 69 Ex officio c. Atwell (1629), SRO, Act book D/D/Ca 263, fo. 205.

616 CRIMES AND CRIMINAL PROCEDURE THE PERFORMANCE OF COMPURGATION

Canonical purgation required that the defendant take a formal oath that he was innocent of the crime of which he stood defamed and then for the compurgators to swear that they believed the defendant had sworn a true oath. The first oath was de veritate, the second de credulitate only. The compurgators thereby had a defense to a charge of perjury if it later turned out that the defendant had been guilty. Their oath did not expressly affirm his innocence, only their belief in his oath. The court sentences too were cautious on this score. Failure meant conviction, but this was considered to be only by virtue of ‘a fiction of the law.7° Successful compurgation entitled defendants to be declared restored to their prior status and good fame, but this restoration extended only ‘insofar as lies within the judge’s power.”! The formal sentences thus did not declare either that the defendant was actually innocent of the charge or that he was actually guilty.

In most cases, compurgation in the ecclesiastical courts was successful. Defendants ‘passed’ the test. Careful samples have been made, and they show that between two-thirds and three-quarters of those who attempted canonical purgation succeeded.’ Of course, this is only what should be expected. The legal restrictions detailed above were intended to separate out in advance those cases in which compurgation would not succeed. Only those likely to succeed were admitted in the first place. Compurgation was meant to be an ostensio innocentiae more than it was a means of ascertaining facts. Its natural finale, one that was quite evident in English practice, was the sentence restoring the defendant to the good fame and reputation he or she had enjoyed before the fama publica had begun to circulate. Therefore, it by no means follows that compurgation was necessarily ‘a farce’ or ‘a pantomime’ simply because of the large percentage of defendants who ‘passed’ the test.73 It is undeniable that the institution could be ‘manipulated’ by guilty men.’”4 In some cases, it probably was. But jumping to the conclusion

that this was the normal case runs the risk of mistaking the institution’s nature and purpose. With all the safeguards it possessed, compurgation enjoyed no better a reputation among the jurists of the ius commune than it has among modern historians. Their

reasons were different, but their disapproval was identical. Its endorsement in the Gregorian Decretals prevented canonical purgation from disappearing from 70 Lyndwood, Provinciale, 114, s.v. nequiverint. 71 e.g, Ex officio c. Halwyk (Canterbury, 1451), CCAL, Act book X.1.1, fo. 5ov: ‘Et restituit iudex ipsum

ad famam quantum in ipso est’. 72 See Houlbrooke, Church Courts, 45; Emmison, Elizabethan Life (above n. 66), 294; Canterbury Commissary Court (1472), CCAL, Act book Y.1.10, ff. 106-47 (sixteen successful, nine failed or defendant disappeared); Heath, English Parish Clergy (Ch. 9, n. 165), 115-16.

73 Emmison, Elizabethan Life (above n. 66), 294; Pollock and Maitland, i. 443. 74 See G. R. Evans, Law and Theology in the Middle Ages (2002), 167.

CRIMINAL PROCEDURE 617 commentaries on the canon law, but the Liber Sextus and the other canonical compilations contained no further titles devoted to it, and later commentators almost uniformly described it as probatio fallax.7> Criticism was all but universal. Compurgation was an inducement to perjury; it was inconsistent with the ordinary rule that the burden of proof rested upon the prosecuting party; and it was contrary to the church’s position that the vanae voces populi were unworthy of being taken seriously.7© Compurgation was not even a matter of necessity. Judges had other resources, including the use of presumptions and judicial torture in more serious cases. Everything pointed to the desirability of its exclusion from ordinary practice in the ius commune, and in most parts of Europe that was exactly what had occurred by the end of the sixteenth century. A form of compurgation, in which defendants publicly abjured the errors they had committed, was retained only in heresy prosecutions, where it was thought to serve an educative function.7” The English ecclesiastical courts did not go that far. Judicial torture was not available to them,’® and compurgation could claim the tenacious grip of long tradition. None the less, maturing thought in the zus commune had an effect on English practice. Whereas compurgation had been used for virtually all ecclesiastical crimes during the Middle Ages, by the seventeenth century, it had come to be used almost exclusively for sexual offences.7? Where necessary, the oath of the accused alone was treated as sufficient more often than had been true in the fifteenth. The voluntary acts

of compurgation that were quite common during the fifteenth century had disappeared from the court records by the end of the sixteenth. The English civilians

evidently shared the attitudes of the Continental jurists about the fallibility of compurgation.®° Although exceptions were made, by 1600 ordinary practice in the ecclesiastical courts had restricted the use of compurgation to sexual crimes.

Sanctions The canon law of sanctions was a flexible instrument. Broadly speaking, the law’s aim was ‘to make the punishment fit the crime, although one quickly recognizes that the canonists’ ideas about what punishments fitted what crimes sometimes differed quite markedly from our own.®! A first principle was the rule of restitution. 75 The evidence is given in greater detail in Four Studies, 109-24. 76 e.g, Antonius de Butrio, Commentaria ad X 5.34.1, no. 17. 77 Julius Clarus, Practica criminalis, quaest. 63, no. 5; Raoul Van Caenegem, ‘La Preuve dans le droit du moyen age occidental’ in La Preuve (= 17:2 Recueils de la Société Jean Bodin; 1965), 691-753, at 725-7. 78 Thomas Smith, De republica Anglorum, lib II, c. 24, ed. Mary Dewar (1982), 117.

79 See the preliminary figures in Four Studies, 123-4; it is also suggested in Cowell’s Interpreter, s.v. Purgation.

80 See Book of Cases (c.1600), Bodl., Tanner MS. 427, fo. 41, suggesting wider use of the law of presumptions. 81 E.R. C. Brinkworth, Shakespeare and the Bawdy Court of Stratford (1972), 15.

618 CRIMES AND CRIMINAL PROCEDURE No man should profit by his own wrong. No offender should be restored to communion with the church if he refused to restore the fruits of his wrongdoing.®? The English ecclesiastical courts sought to act upon this principle. In a prosecution for usury, the defendant would be ordered to return the usurious part of the transaction.®3 In ex officio prosecutions for defamation, the point of ordering defendants to make public apologies was to restore the reputation of the person who had been wrongly defamed in so far as possible. Where a man had wrongfully cut down an elm tree in the churchyard, he was ordered to plant another.84 Where possible, what wrong had been done should be undone. The canon law did not stop there. It did not set its face against penalties. Some crimes were unsuitable for restitution—blasphemy and fornication, for example. Most crimes called for some kind of penal sanction in addition to an order making the injured party whole. In awarding penalties, the canon law embraced a test of

rough proportionality. Greater crimes should be punished by greater penalties, lesser crimes by lesser sanctions (C. 14 q. 6 c.1). No one should be punished beyond

his deserts. This admonition was balanced by the direction that ‘more benign’ sanctions should be preferred in doubtful cases within the penal law (Sext 5.[13].49), and by the rule that ‘all penalties are arbitrary, in the sense that they lay within the judge’s legitimate discretion.8> The evidence is, therefore, harder to evaluate. Still,

most of it is consistent with the law of proportionality in punishment. Incest was commonly treated more severely than fornication.’ Fathering an illegitimate child was dealt with more harshly than selling goods during church services. The test of proportionality was itself tested by one limitation within the canon law; the church and clergy were forbidden to take part in the issuance of sentences of blood (X 3.50.9). The prohibition was strongly stated by the Fourth Lateran Council in 1215.87 It cannot be claimed that it was read a Ia lettre by the canonists or the English church, however. Whipping was regularly used as a penalty by the ecclesiastical courts in medieval England, although with decreasing frequency. The canon law sanctioned the use of judicial torture under some circumstances (X 5.41.6), although strictly speaking torture was not considered a punishment; it was rather an ‘aid’ in the collection of evidence.8® Conviction for heresy was 82 Sext 5.[13].4.

83 e.g. Ex officio c. Taillour (Ely, 1377), CUL, Act book EDR D/2/1, fo. 78: “Et iuratus est...quod restituet dictos xl d. eidem Johanni Doke infra quindenam’ 84 Ex officio c. Chapman (Archdnry St Albans, 1592) HTRO, Act book ASA 7/15, fo. 13; ‘Unde dominus

iniunxit eidem to plant an other elme’. 85 See e.g. gl. ord. ad X 1.29.4. See Laurent Mayali, “The Concept of Discretionary Punishment in Medieval Jurisprudence’ in Studia in honorem eminentissimi Cardinalis Alphonst M. Stickler, ed. R. Castillo Lara (1992), 299-315.

86 e.g. Ex officio c. Bundye (Hereford, 1608-9), HFRO, Act book O/83, p. 77 (penance three times in

both market-place and parish church). 87 Decrees, Tanner, 1. 244. 88 Pierro Fiorelli, La tortura giudiziaria nel diritto comune (1954), 1. 127-30, 223-32.

CRIMINAL PROCEDURE 619 traditionally punished with death by burning, although actual punishment was left to the sentence of the secular courts. These practices were not thought to violate either the principle of proportionality or the rule against clerical participation in blood sanctions, even if they may seem to do so by today’s standards. EXCOMMUNICATION, SUSPENSION, AND INTERDICT

The canon law recognized the possibility (and the utility) of many different kinds of sanctions. Excommunication was by far the most serious available to the consistory courts, and it was probably the most often invoked. One ought to recognize the existence and place of others none the less. Some were peculiar to the clergy— suspension from office, sequestration of the revenues of a benefice, or deposition from holy orders, for example.89 Some were consequences of other sanctions—denial

of burial in consecrated ground for excommunicated persons or suicides, for example. Some were ‘variants’ of excommunication—the interdict, for example. In Roman law, interdicts were orders, issued originally by the praetor, designed to protect or vindicate rights in a variety of circumstances.9° They might, for example, forbid interference with a public river or command restoration of stolen property.

The canon law took over the concept, using it to order closure of churches and suspension of most spiritual services from the laity in order to compel obedience to its orders.9! Most famously in English history, in 1208 Pope Innocent III imposed an interdict on the kingdom to force King John to accept Stephen Langton as his archbishop. The incident was not repeated in England, but at a local level interdicts played a modest role in court practice. They seem to have been thought useful in cases of obstinate parochial failure, such as where there had been long delay in repairing the nave of a church, seeking reconciliation of the church after ‘pollution’ of the churchyard, or a parish-wide refusal to contribute to a subsidy.93 Interdicts scarcely appeared in the act books, however. Excommunication, by contrast, appeared with great frequency.

For all its centrality in court practice, excommunication itself was a peculiar kind of sanction.94 Exclusion from membership in the community has been a 89 See Hinschius, Kirchenrecht, v. 51-85. 90 W. W. Buckland, A Text-Book of Roman Law (3rd edn, 1963), 729-44.

91 Edward Krehbiel, The Interdict. Its History and its Operation (1909), 4-49.

92 See e.g. C. R. Cheney, “King John and the Papal Interdict’ in id., The Papacy and England, 12th-14th Centuries (1982), no. IX. 93 Church of Broomhill (4306), LPL, Act book MS. 244, fo. 82v (dispute over chapel); Ex officio c. Aderley

et al. (Lichfield 1528), LJRO, Act book B/C/2/3, fo. 62 (bloodshed in churchyard); Precedent book (York, c.1600), BI, Prec. Bk 2, p. 367 (subsidy and tithes); Precedent book (Exeter, seventeenth century), DRO, Chanter MS. 724, ff. 54v—55 (repair); Precedent book (Archdnry Nottingham, seventeenth century), NUL, MS. AN/P 283, fo. 7v (failure to pay procurations). 94 Elizabeth Vodola, Excommunication in the Middle Ages (1986), 2-7, also citing the large body of

scholarly literature on the subject.

620 CRIMES AND CRIMINAL PROCEDURE feature of most societies, and the church knew it from its early days. As it appeared in the classical canon law, however, excommunication contained within it some quite contradictory elements. On the one hand, it was the greatest sanction known to the canon law. It amounted to ‘handing the sinner over to the Devil; and was greatly to be feared. Other Christians were to avoid him or her.95 On the other hand, the sanction did not bind God and was not to be obeyed contrary to the ‘law of conscience’.%® The man or woman unjustly excommunicated had nothing to fear, for its true purpose was medicinal, to restore the person excommunicated to spiritual health. The legal and social effects of excommunication were just as filled with seeming incongruities. On the one hand, it cut the excommunicated person off from contact with other Christians, rendering him a ‘religious outlaw. Another person associating with an excommunicate was rendered excommunicate by the very fact of association. On the other hand, the rule had many exceptions. An excommunicate could contract a binding marriage, make a valid last will and testament, and associate freely with members of his own household.%” He could be absolved ad cautelam in order to act

in litigation. Apparent incongruities extended even to the procedural side. On the one hand, a person could be excommunicated automatically simply by committing one of a long list of possible offences; what was called excommunication latae sententiae. The church indulged itself in public proclamations declaring all offenders of this or that kind to be excommunicate. On the other hand, procedural safeguards stood ready to protect against any unfairness in excommunication’s application. Legitimate citation and a chance for a hearing were required before a man could be excommunicated. It is true that ways were found of reconciling these apparent inconsistencies in the law, but they remained close beneath the surface of court practice. To ask whether excommunication ‘worked’ is to ask a hard question.

As one sees it in the pages of the act books, excommunication was normally imposed for contumacy and for contumacy only.98 Even the person excommunicated latae sententiae was given a chance to appear and present whatever answers he had before sentence against him was pronounced. Only if he refused to appear was he subject to discipline; the assignment of a term to show cause why he should not be declared excommunicate was a regular feature of court practice. For most purposes, the sanction became ‘judicialized’. Thus, the ability of ordinary priests to excommun-

icate without authorization from above was restricted.9° Excommunicates were 95 See e.g. Bernold von Konstanz, De excommunicatis vitandis, ed. Doris Stockly (= 15 MGH, Fontes iuris Germanici antiqui; 2000), 83-106; Cardwell, Synodalia, 1. 48. 96 Panormitanus, Commentaria ad X 5.39.44, no. 3: °[N]ota quod contra legem conscientiae non est

obediendum etiam pape’. 97 ibid. 98 This found support among some of the greatest canonists; e.g. Innocent IV, Apparatus ad

X 5.39.6: ‘cum excommunicatio non cadat nisi in contumacem. 99 Lyndwood, Provinciale, 196, s.v. censuram ecclesiasticam.

CRIMINAL PROCEDURE 621 entitled to attack the legitimacy of a court’s jurisdiction over their persons.!°° They had the right to appeal against an unjust sentence of excommunication. Moreover, in English practice at least, excommunication was virtually always preceded by suspension ab ingressu ecclesiae, a kind of a personal interdict that kept the person from entering into the parish church but did not otherwise exclude him from contact with other Christians.!©! Only where the person suspended refused to appear after that initial stage would the courts move to the stage of formal excommunication, and this often only after deliberation. What, then, was the reality? Was excommunication an effective way of dealing with contumacy? Did it inspire respect, or at least general obedience, among the populace? Patient working through the court records produces little certainty on this score. The records contain examples to support virtually all the generaliza-

tions that have been made about excommunication. For example, it has sometimes been said that the sanction had become so much a matter of routine in the ecclesiastical courts that it had lost its spiritual terror. A man at Canterbury in 1473 said he ‘had no wish to be absolved from the sentence of excommunication’ and

(the record continued) “wished to remain in his wickedness as if a pagan’.1©? However, a woman at Salisbury in 1585, who had been excommunicated for refusal

to appear to answer the charge that she was ‘an unruly woman, appeared to ‘humbly beg the benefit of absolution from the sentence’, seeking to be restored to ‘the communion of Christ’s faithful people’.1°3 Which of these was the authentic voice of the people? Statistical studies of contumacy rates have been undertaken to avoid the obvious dangers of “history by anecdote’, but the results have not been consistent or comprehensive enough to provide a certain answer. Shall we hope for a more definitive answer in the future? Probably it is too much to expect. We do not know whether the most serious forms of punishment actually deter poten-

tial criminals in our own century.!°5 Why should we expect to know whether excommunication did so in the fourteenth? Did outlawry? Maitland’s final words 100 See e.g. Sebastianus Vantius, De nullitatibus processuum, tit. Ex defectu iurisdictionis, no. 1; Stephanus de Avila, De censuris ecclesiasticis, pt. II, c. 3, disp. 2, dubs. 1-2. 101 Hinschius, Kirchenrecht, v. 13-16; the texts mentioned it as a sanction: e.g. X 5.38.12; Sext 5.11.20.

102 Ex officio c. Robinson, CCAL, Act book Y.1.10, fo. 167: “quod non vult absolvi a sentencia excommunicationis, ...sed perseverat in sua nequicia tanquam paganus. 103 Fx officio c. Wells (Archdnry Salisbury, 1585), WTRO, D2/4/1/3, fo. 25v: ‘humiliter petiit beneficium

absolutionis sibi impendi...et communione Christi fidelium [restitui]’

104 The evidence and conclusions are reviewed in Ingram, Church Courts, 344-63; see also R. B. Outhwaite, Rise and Fall of the English Ecclesiastical Courts, 1500-1860 (forthcoming), ch. 8; Canon

Law and the Law of England, 101-3. Evidence from the French church seems much the same; see Paul Adam, La Vie paroissiale en France au XIVe siécle (1964), 183-95; W. K. Gotwald, Ecclesiastical Censure at the End of the Fifteenth Century (1927), 1-11. 105 See Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates, ed. Alfred Blumstein et al. (1978), 422.

622 CRIMES AND CRIMINAL PROCEDURE about the ineffectiveness of the criminal law in the royal courts should serve as a warning against easy conclusions. Excommunication was backed by the threat of sterner, more secular sanctions in English ecclesiastical court practice—imprisonment through signification and caption by the ‘secular arm’ throughout the time covered by this volume, and the immediate secular punishments for contempt imposed by the branches of the court of High Commission from the reign of Elizabeth I onwards. It also entailed the loss of civil rights, such as the right to act as a plaintiff in a secular court.!°7 But

whether all this proves that excommunication itself was not feared as a spiritual matter, because sterner sanctions were thought necessary, or that it was feared, because the sterner sanctions stood in reserve, is a hard question. We can speculate about it, even produce examples in which the presence of these additional sanctions seems to prove one conclusion or the other. So far at least, speculation is about all we have. PUBLIC PENANCE

An undertaking by a person convicted of a crime to submit himself to the decrees of the court was ordinarily enough to lift a sentence of excommunication. A formal oath or a bond was sometimes required of defendants in difficult cases, but the ordinary rule was that once a person’s contumacy had ceased, he or she was entitled to be absolved. At the same time, the English ecclesiastical courts also routinely assigned penances to those who had offended against the church’s laws, and they were not usually simply ‘Say five Hail Marys.!°8 They were public events, and if the person failed to perform the penance assigned, this would be a call for reimposition of the sentence of excommunication for contumacy. Some form of public humiliation was a theme running through the imposition

of penances by the English ecclesiastical courts. Public whipping, around the church or in the market-place, was commonly assigned in medieval England. The ‘classic’ form of public penance was appearance before the congregation on a Sunday (or several Sundays), dressed in a white sheet, carrying a candle or a wand, and making an open confession of fault. For lesser offences, by virtue of the exercise of discretion by the judge, one or another of these might be omitted, but public admission of error remained the essence of public penance. For example, one parishioner who had refused to pay his tithes was required to hand over the equivalent sum of money, plus expenses, to the rector of his church in the presence 106 Pollock and Maitland, ii. 557: ‘crimes of violence were common and the criminal law was

exceedingly inefficient’ 107 Vodola, Excommunication (above n. 94), 159-90. 108 This was not unknown, however; see e.g. Ex officio c. Tylesworth (London, 1519), GL, Act book MS. 9065J/1, fo. 31: “et quod post dicat quinque pater ave et unum credo’ For comparable French evidence, see Mary Mansfield, The Humiliation of Sinners: Public Penance in Thirteenth-Century France (1995).

CRIMINAL PROCEDURE 623 of the congregation.!°° A man who had slandered his neighbours was required to stand before them in church on Sunday, saying aloud, ‘I have slandered Denise and many of my neighbours of whom I meekly ask forgiveness’!!© Occasionally, slightly more elaborate penances were used. Before the Reformation discredited them, pilgrimages were occasionally imposed upon penitents, particularly upon clerics whose open performance of penance was thought likely to bring the clerical order into disrepute,!!! and sometimes the judges made an effort to make use of a fitting symbol of the crime—a person who had worked at harvest on a Sunday might be

required to carry a sheaf of grain around the market as part of his penance, for example.!!2 A man convicted of bigamy in 1604 was obliged to stand in three market-places with a paper on his head on which the words ‘For Two Wives at Once’ were inscribed.113

Although there were regular patterns—so regular in fact that ‘schedules of penance’ were made for future use from the mid-sixteenth century—it is probably a mistake to speak about penances in terms of fixed rules. The judges had discretion

to vary the terms of the penances they assigned—the canon law held that “all penalties are arbitrary—and the orders issued did vary. The majority were in a downwards direction. It was not unheard of, for example, for judges simply to order a man and woman convicted of unlawful sexual relations not to meet together except in public places. Those who had deserted their spouses might be directed simply to return and treat the other with marital affection. Some defendants were dealt with by a warning not to repeat the crime, although it would usually be coupled with a threat of heavier sanctions if they fell back into the same conduct. A few apparently recalcitrant offenders were effectively banished; they were

required to swear an oath to leave the parish or diocese and never to return.!!4 109 Rector of Elm c. Kirkeham (Ely, 1375), CUL, Act book EDR D/2/1, fo. 27v.

110 Fx officio c. Davy (London, 1521), GL, Act book MS. 9065J/1, fo. 110. See Hubert Hall, “Some

Elizabethan Penances in the Diocese of Ely’ (1907) 1 TRHS (3rd ser.) 263-77; A. C. Wood, ‘Nottinghamshire Penances (1590-1794)’ (1944) 48 Transactions of the Thoroton Soc. 52-63. 111 e.g, Ex officio c. Lethlay, vicar of Warthill (York, 1403), BI, D/C.AB.1, fo. 28 (shrine of St John of

Beverly). See also A. J. Finch, “Sexual Morality and Canon Law: The Evidence of the Rochester Consistory Court’ (1994) 20 JMH 261-75, at 266, 274. Pilgrimages seem to have been used more often in some other parts of Europe; see Mansfield, Humiliation of Sinners (above n. 108), 277-87. 112 Ex officio c. Snede (Hereford, 1442), HFRO, Act book O/2, p. 77 (grain); Ex officio c. Frear (Archdnry Richmond, 1585), Sheepsar Library, Leeds, Act book RD/A/4, fo. 4 (angling gear for fishing on Sunday). 113. Ex officio c. Lancaster (Durham, 1604), DUL, Act book DDR IV/6, fo. 70. 114 e.g, Ex officio c. Wilson (York, 1519), BI, D/C.AB.2, fo. 222: “[M]onita fuit sub pena excommunica-

tionis quod exeat a civitate et de cetero non maneat infra civitatem’; Ex officio c. Notherton (Hereford, 1502), HFRO, Act book O/22, p. 154: “Et promisit per suum iuramentum tactis sacris recedere a diocesi Hereford’ et nunquam in eandem diocesim revertere’; Ex officio c. Dawes (Rochester, 1514), KAO, Act book DRb Pa 6, fo. 50: ‘Dominus iniunxit eidem quod recedat a diocesi Roffen’ citra festum Michaelis sub pena excommunicationis. See also the egregious example where a priest’s concubine was ordered to leave the diocese and the priest suspended for six months: Ex officio c. Wilkins (Canterbury, 1498) in Reg. John Morton IT (75 C. & Y. Soc.; 1991), 146.

624 CRIMES AND CRIMINAL PROCEDURE Precedents for it could be found in Anglo-Saxon law,1!5 but use of these banishment orders may have presented difficulties under the canon law, and it was never frequent. The practice seems to have been confined to the medieval period. From at least the time of Elizabeth I, orders to pay sums of money to the poor became more common against those convicted of an ecclesiastical crime. Throughout, some defendants were dismissed with a “pious admonition against repetition of their offence, particularly

where it was a relatively minor matter and more harm than good might come from imposing a stiff public penance. For instance, a 1470 ex officio prosecution for adultery with a parson was settled without compurgation or public penance, ‘lest it

come to the attention of the husband’ of the woman involved.!!¢ It is difficult to penetrate to the motivation of the judges except in rare instances like this last case, but it is evident that the assignment of penances was not handled mechanically.

Informal bargaining may even have occurred. The influence of intercession from without played a role.!!” The degree of contrition (or defiance) on the part of defendants must also have mattered. COMMUTATION AND PARDON

Of the oft-criticized features of practice in the ecclesiastical courts, commutation of penances must come close to the top of the list. The practice allowed some defendants to commute assigned public penances in favour of the payment of money to a charitable purpose. Public penance was a humiliating event, particularly for men and women of any standing in a community, and commutation in effect allowed them to ‘buy their way out’ of the humiliation. As stated in one proceeding at Canterbury , ‘it was not seemly for a knight to do public penance’.1!8 The canon law itself was of two minds on the merits of the institution. On the

one hand, commutation of penance had deep roots in the penitential law of the church, and the canonists recognized that it had a place. Requiring public penance might do harm as well as good to everyone concerned.1!9 On the other hand, allowing easy commutation could be the source of abuse, and it should not be admitted without good cause.!2° A papal decretal condemned the practice, but only if it was done ex cupiditate (X 5.37.3). The canons of 1597 restricted its use to ‘the rarest and gravest’ of causes.12! 115 TJ Cn 6, in Liebermann, Gesetze, i. 312-13 [| Laws, Robertson, 178-9]. 116 Ex officio c. Haymer and Biller (York, 1470), BI, D/C.AB.1, fo. 190v; “ne huiusmodi rumor ad mar-

iti sui aures deveniret’. 117 Houlbrooke, Church Courts, 47. 118 Ex officio c. Marynes (Canterbury, 1292), C. E. Woodruff, ‘Some Early Visitation Rolls Preserved at Canterbury (1917) 32 Archaeologia Cantiana 164: ‘non decet militem facere publicam penitenciam. 119 Thomas Oakley, ‘Alleviations of Penance in the Continental Penitentials’ (1937) 12 Speculum 488-502; Lyndwood, Provinciale, 325, s.v. urgente causa. The canonical status of indulgences was very similar; see Nicholas Vincent, “Some Pardoners’ Tales: The Earliest English Indulgences’ (2002) 12 TRHS

(6th ser.), 23-58. 120 See e.g. Statutes of Winchester II, c. 44 (1247) in C. & S. I, pt. 1, 409. 121 ¢,9 in Anglican Canons, 246-7.

CRIMINAL PROCEDURE 625 So it continued. Whatever its flaws, commutation remained in regular use throughout the period covered by this volume.!2? Instances that might justifiably have called forth protests can certainly be found. A London curate had sexual relations with the prioress of a nunnery, for example, and he was later permitted to compound for 3s. 4d.!23 A Lichfield curate charged with neglect of his duties was allowed to compound by saying a special Mass.!24 Typical among the laity was Maria Bellwood, cited to appear before the consistory court of Ely for giving birth to an illegitimate child. She was said to have ‘tearfully shown herself to be penitent for such a crime. She ‘humbly prayed to have her public penance commuted to a pecuniary mulct, and was allowed to do so on paying 40s., a sum that was to be spread among the poor, the fabric of her parish, and support of scholars (at Cambridge?).125 This was not a trivial amount of money in 1588, but still, it is easy to see why impartial observers might regard allowing composition as an abuse of the church’s authority. It violated the canon law’s preference for proportionality in punishments, and it seemed to turn the church’s jurisdiction over crime into a money-making proposition. So said the separatist, Henry Barrow, and perhaps not without reason.12° One careful study of commutation as it was used in practice has been made.!27 Taking an admittedly small sample from the late sixteenth century, the author found the following: (1) the initiative for commuting penances always came from

petitioners rather than the court officials; (2) all defendants were said to have shown signs of genuine contrition; (3) no instances where the petition was refused

occurred in the records; (4) the amounts of money taken in lieu of penance ranged from 10s. to 30s.; and (5) only persons of substance made use of commutation, not common labourers. The records from which these findings were taken may of course have contained more formula than fact, but they do indicate how the system was supposed to operate. 122 In the court of the D. & C. of Lincoln, for example, in summer and autumn in 1338, of 53 penances, 31 were commuted; see Poos, Lower Courts, p. xlviii. 123 Ex officio c. Wryght (London, 1508), GL, Act book MS. 9064/10, fo. 15.

124 Ex officio c. Manchester (Lichfield, 1532), LJRO, Act book B/C/10/1, fo. 8: “Postea dominus penitenciam huiusmodi in pios usus commutavit, viz. quod die citra festum sancti Jacobi dicat missam salus populi. 125 Ex officio c. Bellwood and Cave (Ely, 1588), CUL, Act book EDR D/2/18, fo. 30v: “[E]t lacrimans

ostendebat se valde esse penitentem pro crimine per eam commisso et humiliter peciit penitenciam predictam in pecuniariam mulctam mutari’. 126 ‘A Brief Discoverie of the False Church in The Writings of Henry Barrow 1587-1590, ed. Leland Carlson (1962), 624. In Ex officio c. Swettman (Canterbury, 1471), CCAL, Act book Y.1.11, fo. 123v, the defendant was prosecuted for saying that ‘all commutations of public penance are bribes. For episcopal efforts to curb it, see Kenneth Fincham, Prelate as Pastor. The Episcopate of James I (1990), 171-3.

127 W, F. Irvine, “The Bishop of Chester’s Visitation Book, 1592’ (1895) 5:4 Jnl Architectural, Archaeological and Historic Soc...of Chester 384-426. See also Marchant, Church under the Law, 175-7.

626 CRIMES AND CRIMINAL PROCEDURE More automatic and immediately beneficial than these commutations (from the point of view of defendants) were royal pardons issued by the king with parliamentary authority. General pardons had old roots, but they grew in apparent popularity in the sixteenth century.128 They were regularly enacted under the later

Tudor and Stuart monarchs, and it was also during the reigns of Elizabeth and James I that they first came to appear in the act books of the ecclesiastical courts. In consequence, when subject to an ex officio charge in a spiritual court, defendants were able to ‘pray the benefit of the royal indulgence’. Except where their offence had been specifically excepted from the coverage of a general pardon, they were entitled to be dismissed.!29 The English civilians accepted the validity of these statutes, but gave them a narrow reading. They would not, for example, apply them to allow offenders to avoid having to appear before the courts at all. Defenders had to appear and plead the pardon. Offenders pleading pardons might also have to perform penance for any contumacy before their appearance.!3° Contumacy was not within the pardon. The civilians also excluded the admissibility of a general pardon where the rights of other men and women came into play, as was common, for example, in defamation practice. The king, they said, ‘giveth no man’s right away, and one of those rights was the right to have one’s defamer make a public confession of fault.131

SUBSTANTIVE LAW OF CRIMES It is sometimes said that substantive criminal law, particularly that of medieval centuries, was no concern of lawyers.132 There is certainly some truth to this. It might even have been said at the time. Proctors played no part in most of the criminal proceedings that came before the English ecclesiastical courts, and the academic commentators devoted more of their attention to criminal procedure than they ever did to the substantive law of crimes. Comparative academic neglect never meant, however, that the canonists paid no attention to it at all. That would have been entirely uncharacteristic of the jurists of the tus commune. When faced with, say, the crime of adultery, they not only defined it; they went on to discuss why it was punishable and how it should be punished. They asked whether there were circumstances in which it could be excused. They discussed differences between the canon law and the civil law. Some of them used it as an occasion for 128 e.g, 21 Ric. II, c. 15 (1397); 7 Hen. VII, c. 11 (1515). See J. G. Bellamy, The Criminal Trial in Later

Medieval England (1998), 144-8. 129 For more detail, see Helmholz, Roman Canon Law, 162-4. 130 e.g. Ex officio c. Jefferies (Salisbury, 1602), WTRO, Act book D1/39/2/5, fo. 27v excusing them for

the crime of fornication but requiring them to confess before the churchwardens for their contempt

in not answering a prior citation promptly. 131 See Anon. (c.1600), BI, Prec. Bk 11, fo. 8. 132, Milsom, Historical Foundations, 403.

SUBSTANTIVE LAW OF CRIMES 627 flights of ingenuity, as in showing the large number of crimes that were naturally

included within it: fornication of course, perjury because a violation of the marriage vows, sacrilege because a sin against a divine institution (marriage), and violation of the Christian faith because a contempt for the church’s commands.133

For one jurist at least, it followed that ‘adultery is more serious than other crimes.!34 That seems an odd conclusion today, and it may have seemed so even

then. By other measures, crimes like simony or blasphemy or parricide were equally candidates for designation as the most serious of crimes.}!3° Previous chapters have dealt with many of the crimes that came routinely before the English spiritual courts—perjury and usury in Chapter 6, attacks on the clergy or church property in Chapter 9, and offences against the standards of matrimonial law in Chapter 10. Many cases involving criminal behaviour could also be heard on either side of the courts’ jurisdiction. Defamation was the most common example. It admitted both office and instance litigation. This leaves a number of areas still to be covered, however, and, as noted above, the most frequent appearances in the court records were made by causes involving illicit sexual intercourse.

Sexual and Familial Offences Monogamy and chastity were the standards set for human behaviour by the canon law. From the start, enforcing these standards involved the church in correcting men and women who stepped outside the boundaries. By English custom, correcting sexual offenders came to rest within the jurisdiction of the church.13° Some city and local courts also prosecuted crimes of the flesh, but it was with the jurisdiction of the church that they were most often associated. Even in the church’s public forum,

the exercise of the jurisdiction proved to be a time-consuming business. For instance, of the total of 158 charges brought against individuals who appeared before the diocesan court at Canterbury in 1474, fully 110 were about sexual crimes.!37 This was by no means an unusually high percentage. The rise in religious dissent and the addition of other offences to the church’s ex officio jurisdiction in the sixteenth and

seventeenth centuries reduced their absolute preponderance, but it did not spell 133 See Sigismundus Scaccia, De iudictis causarum, lib. II, c. 4, no. 19. 134 ibid., ‘[A]dulterium est gravius caeteris criminibus.

135 e.g, Jodocus Damhouder, Praxis rerum criminalium, C. 61, no. 1, speaking of blasphemy as ‘gravissimum et omnium criminum maximum’ 136 Cosin, Apologie, pt. 1, c. 9, at end. Some English manorial and municipal courts also dealt with it. 137 Woodcock, Medieval Courts, 79. The percentage was even greater in the court of D. & C., York, between 1396 and 1485. J. S. Purvis, A Medieval Act book (n.d.) (3,236 of 3,640 offences charged being

sexual). In pre-Reformation London, the figure was put at about 65% of the causes heard in the commissary court; Wunderli, London Church Courts, 101; see also, Colin McLaren, ‘An Early 16th Century Act Book of the Diocese of Londor’ (1965-9) 3 Jnl Society of Archivists 336—41, at 340.

628 CRIMES AND CRIMINAL PROCEDURE their end, or even reduce them to relative insignificance in the disciplinary matters that came before the courts.138 Almost everywhere and at all times, offences against marriage, as they might be described without distorting the medieval way of thinking about them, claimed a large share of the attention of the English ecclesiastical courts. England had, it has been said, a certain reputation for laxity in its treatment of sexual offences.139 Perhaps this was the reason. No serious move was made to take jurisdiction over them out of the hands of the church, as happened in many other lands, and it may be that the milder punishments meted out by the church—public penance instead of the brutal corporal punishments for incest and adultery found in some places on the Continent—lay behind that reputation. ‘Incontinence’ was the broad rubric under which sexual offences were placed in

the court records. The term was often used. However, it contained several ‘sub-categories. Fornication, adultery, and incest were the most obvious. Each meant something different. Court scribes were not always scrupulous in distinguishing the first two,!4° surprisingly so because adultery was regarded as a much

more serious violation of legal norms than fornication. Perhaps it happened because it would not have made a great deal of difference to the procedure used or the penance assigned. That lay within the judge’s discretion. It would matter to a lawyer when adultery was alleged as a cause for securing a judicial divorce a mensa et thoro, but even there the substance of the offence would have been the same. Occasionally, women were said to have taken money for their offences, an indication that they were probably prostitutes, but here again the terminology used in the records was not consistent enough for us to be sure.141

Incest, however, stood somewhat apart.!42 It was given special mention (and distinguished from adultery) in medieval statutes and the canons of 1604.!# The court records followed suit. They used the term ‘incest’ where it was legally appropriate, and they commonly described the familial relationships involved, as

in noting that the defendant had had sexual relations with his aunt, his wife’s sister, or the son of her aunt.!44 Almost all prosecutions dealt with closely related 138 See e.g. Marchant, Church under the Law, 219; Addy, Sin and Society, (Ch. 9, n. 217), 127-9; Martin

Ingram, ‘Regulating Sex in Pre-Reformation Londom in Authority and Consent in Tudor England: Essays Presented to C. S. L. Davies, ed. G. W. Bernard and S. J. Gunn (2002), 79-95. 139 Alan Macfarlane, Marriage and Love in England 1300-1840 (1986), 240-4.

140 e.g, Ex officio c. Trott (Lincoln, 1517) in An Episcopal Court book for the Diocese of Lincoln 1514-1520, ed. Margaret Bowker (61 LRS; 1967), 14.

141 See Karras, “The Latin Vocabulary of Illicit Sex’ (Ch. 1, n. 38), 1-17 at 6-8. 142 See Elizabeth Archibald, Incest and the Medieval Imagination (2001), 1-52. 143 Council of Lambeth, c. 7 (1281) in C. & S. I, pt. 2, 899-900; Canons of 1604, c. 109 in Anglican Canons, 408-9. 144 Ex officio c. Sweteaple (Winchester, 1578), HRO, Act book 21M65/C1/20, fo. 2v (amita); Ex officio c. Eston (London, 1521), GL, Act book MS. 9065J/1, fo. 112 (soror uxoris sue); Ex officio c. Hylton (York, 1596), BI, V.1595—6.CB.3, fo. 36 (in English).

SUBSTANTIVE LAW OF CRIMES 629 kin, some of them with very closely related kin.145 Sexual relations with a nun or

a person to whom one was related through baptism were considered as incest under the canon law, and they too turn up described with specificity as incest in the act books.!46 Whether this special attention accorded incest reflected a wide-

spread revulsion towards it that adultery or fornication did not, must unfortunately be left as an open question. Sodomy was prohibited by the canon law (X 5.31.4), and it was treated as an

ecclesiastical offence in medieval England. A small number of prosecutions remain in the act books. Fleta and Britton expressed the view that the criminals would be burned,!47 but no such fate awaited them. They were tried before courts that could impose only public penance, and the canon law itself called only for their excommunication. A few men were tried in the English courts. In the first decade of the fifteenth century, a chaplain was accused of sodomy with several men of the village of Langtoft in Yorkshire. In 1516 a York man was again prosecuted for the ‘detestable crime against nature’ committed with diverse men. And in 1520, a Sussex man was accused of sodomy with a cow.!48 A single case from the 1470s can be found being brought for ‘jactitation of sodomy’.!49 However, during the reign of Henry VIII, the crime was taken from the jurisdiction of the spiritual courts, the lack of effective punishment there being given as the reason. Sodomy was made a felony by statute in 1534, and although subsequently repealed, the statute was revived and made perpetual in 1563 (25 Hen. VIII, c. 6; 5 Eliz. I, c. 17). These statutes did not contain a savings clause for ecclesiastical jurisdiction, and no instances of prosecution have so far been discovered in the later act books. Offences ‘ancillary’ to the principal categories also held a place in the English ecclesiastical courts. The 1604 canons required churchwardens to present ‘other

uncleanness and wickedness of life. Many of them seem to have taken to the task.15° One such offence was ‘solicitation’ of a woman’s chastity. A few instances

remain from the medieval period, but the crime did not begin to appear in the 145 e.g, Ex officio c. Delamore (London, 1510), GL, Act book MS. 9064/10, fo. 68v (‘cum sorore sua naturali’). However, Ex officio c. Hoo (Hereford, 1518), HFRO, Act book O/27, p. 39, dealt with two persons said to have been related in the third degree of affinity or consanguinity. 146 Ex officio c. Wryght (London, 1508), GL, Act book MS. 9064/10, fo. 15 (incest with nun; she was

considered a bride of Christ, hence the graver crime); Ex officio c. Oswaldkyrch (York, 1397), BI, D/C.AB.1, fo. 4v (‘fornicatio incestuosa cum Agnete fila sua spirituali’). 147 See Fleta seu Commentarius Juris Anglicani, lib. I, c. 37 (London, 1685), 54; Britton, lib. I, c. 11. 148 Ex officio c. Benet (1401), BI, D/C.AB.1, fo. 21 (‘peccatum sodomiticum cum diversis hominibus’);

Ex officio c. Rector of Bewfield (Canterbury, 1408), CCAL, Act book X.8.1, fo. 44v (de gravi vicio

sodomitico cum serviente’); Ex officio c. Wilscrop, BI, D/C.CP.1516/2 (‘peccatum detestabilem sodomiticum contra naturam humanam’); Ex officio c. Frogebroke (Chichester, 1520), WSRO, Act book Ep I/10/2, fo. 55 (contra naturam cum vacca’). 149 Ex officio c. Smyth (London, 1470), GL, Act book MS. 9064/1, fo. 4: ‘publice predicavit se commis-

sisse crimen sodomiticum cum magistro Thoma Dunley. 150 ¢, 109 in Anglican canons, 408-9.

630 CRIMES AND CRIMINAL PROCEDURE records with any frequency until the late sixteenth century. Not much can be said about it, save to rehearse a typical allegation or presentment. A defendant in 1599 was said to have been ‘very earnest with [the woman] to have had carnal knowledge of her body’.!5! Of another it was said that he “did by divers and sundry ways and means attempt to have carnal knowledge of the body of [the woman]’152 It appears not to have required use of force, although the civilians may simply have left that allegation out because it would have conflicted with the royal courts’ jurisdiction over forcible rape. A second offence, also apparently the product of the sixteenth century, was ‘pre-nuptial fornication. The medieval act books produce very few, if any, actions brought for sexual incontinence against a man and women who had later married. What they had done was still technically fornication, of course, but in practice the marriage was treated as ‘purging’ the offence.153 Just as children born to the marriage were treated as legitimate by the canon law even if conceived before the marriage, so the courts of the English church draw a prudent veil over the event that produced the

children. However, that regime must have begun to seem ‘permissive’ in the late sixteenth century. Prosecutions alleging ‘illicit carnal knowledge or fornication with [his now wife] before solemnization of the marriage’ began to be frequent entries in the ex officio records.!54 Formal articles pro incontinencia ante nuptias were placed in court formularies.455 Many marriages would have had a difficult start; birth of a couple’s first child would have been followed in short order by the necessity of doing public penance.!5° Concealing sexual offenders from the authorities, allowing them to lodge in

one’s house and to depart unpunished, and failing to supervise one’s servants adequately were a third kind of ‘ancillary’ offence. They were a familiar part of the jurisdiction of the medieval courts, although prosecutions seem to have increased in numbers and intensity of effort during the sixteenth century.!57 Many acts that look like acts of charity—taking in a deserted pregnant girl and allowing her to give birth in one’s house—were treated as fit for punishment by the ecclesiastical

courts.!58 This was not vicarious liability; the householder was charged with allowing disorder in an area under his control, not with the acts of his servants. 151 Ex officio c. Horsfull (Archdnry Nottingham, 1599), NUL, Act book AN/A 11/2, p. 252. 152 Ex officio c. Bowyer (Ely, 1600), CUL, EDR F/5/43, fo. 67. 153 Ingram, Church Courts, 219-37. 154 See Paul Hair, Before the Bawdy Court. Selection from Church Court Records (1972), 232-3. 155 e.g, Precedent book (Ely 1590-1610), CUL, EDR F/5/43, fo. 70. 156 e.g, Ex officio c. Squire (Archdnry Essex, 1599) in Hale, Proceedings, no. 679; see G. R. Quaife, Wanton Wenches and Wayward Wives (1979), 91-2; Helmholz, Roman Canon Law, 110-12. 157 Evidence on this subject is contained in R. H. Helmholz, “Harboring Sexual Offenders: Ecclesiastical Courts and Controlling Misbehavior’ (1998) 37 Jnl British Studies 258-68. See also Ingram, Church Courts, 286-91; Hair, Bawdy Court (above n. 154), 246; Emmison, Elizabethan Life (above n. 66), 25-30.

158 See Marjorie McIntosh, Controlling Misbehavior in England, 1370-1600 (1998), 83; Ingram, Church Courts, 284-9.

SUBSTANTIVE LAW OF CRIMES 631 It could be a hard regime none the less. Probably fear that the child would become a charge of the parish under the Poor Law lay behind many of the cases, though the records never said so. At the outer edge of this class of offence were prosecutions brought for actual pandering. There is no doubt that houses of prostitution existed, most famously but not only, the Stews in Southwark.!%? It is also true that the courts regularly pursued men and women for bawdry that might easily have

included supervising a brothel. A defendant that appeared before the court of the archdeacon of Nottingham, for example, was assigned a public penance of wearing ‘capital letters on his breast and back for keeping a house of bawdry’.!6° The greater number of prosecutions, however, seem to have been brought simply for harbouring a delinquent man or woman, in most cases a woman. Alongside these sexual offences, the many ex officio matters related to marriage and family life should also be recalled. Living apart from one’s spouse without good reason was an ecclesiastical offence; so was mistreating one’s spouse while living together.!©! Prosecutions brought for ‘having two wives’ at the same time were never rare.!© Infanticide and abortion were also treated as spiritual crimes throughout the Middle Ages; so was it unlawful for children to ‘lay violent hands’ upon their parents.!©3 Marrying at a prohibited time of the year without procuring a license was a violation of the law; so from the sixteenth century was being present at a clandestine marriage.! In aspiration at least, ecclesiastical jurisdiction over the private lives of English men and women was often strict and intrusive. It is hard to disagree with the early historian of English criminal law who concluded his survey of ecclesiastical jurisdiction by saying that for him, ‘the only difficulty’ lay ‘to understand how people submitted to it for as long as they did’.16

Disturbance of the Community The courts of the English church attempted to secure a measure of harmony, or at least public peace, in the parishes over which they held ex officio jurisdiction. Whether these attempts were compelled or directed by the canon law itself is an interesting question. On the one hand, the Gregorian Decretals and later manuals

of the law of the church contained no title dealing with matters like scolding,

159 Ruth Maxo Karras, Common Women: Prostitution and Sexuality in Medieval England (1996), 3-83; Quaife, Wanton Wenches (above n. 156), 147-52. 160 Ex officio c. Garland (Archdnry Nottingham, 1626), NUL, Act book AN/A 35, fo. 146. 161 Hair, Bawdy Court (above n. 154), 244-5. 162 e.g, Ex officio c. Glasier (Canterbury, 1469), CCAL, Act book Y.1.11, fo. 34: “Notatur quod habet

duas uxores viventes. 163 e.g, Ex officio c. Pakeman (Rochester, 1465), KAO, Act book DRb Pa 3, fo. 512v: “quod ipse manus

violentas in matrem suam [iniecit]’ 164 See Helmholz, Roman Canon Law, 71-2. 165 Stephen, History of the Criminal Law of England (Ch. 9, n. 165), 413.

632 CRIMES AND CRIMINAL PROCEDURE disturbance of the peace, or public drunkenness. A few crimes in this general area were included—divination of the future, for instance (X 5.21.1-3). Applying the maxim inclusio unius exclusio alterius suggests they should have been left to the

penitential forum. Moreover, what legal standards would be applied if they were treated as public crimes? The canons supplied little guidance that would have

been of use. On the other hand, the canonical texts did deal with avoidance of public scandal. Conduct tending to bring disgrace or disorder upon a community was a matter of legal consequence. It should affect how judges acted (e.g. X 3.34.7; X 5.32.2), and it was to be avoided as divisive of the Christian people. A canon in

the Decretum also could be read as committing the church to the correction of persons given to ‘empty jests, star gazing, wizardry, drunkenness, idolatry, fortune telling, and dissolute life’ (C. 23 q. 4. c. 4). It would, therefore, be hard to maintain

that this aspect of the English church’s judicial competence was unlawful under the canons, although it is equally true that the canon law made no special claim to deal with the offences. The situation in England, in which the task of ‘social control’ was shared with local courts, would have been quite acceptable to the medieval canonists. Whatever the formal law, the English ecclesiastical courts did seek to repress what was regarded as anti-social behaviour. They were aided, perhaps even led, by the churchwardens, taking the role of the parish elite and the guarantors of public tranquility. Some of the matters the wardens brought before the judges were undoubtedly ‘of small moment’ or “of no moment; as two of the officials put it.1° Who does not sympathize with a London man named Curtis prosecuted for juggling on a Sunday?!°” It was not even during divine service. Luckily Curtis had some friends. They came to court to say that he was ‘an honest poor fellow and a good churchman, and he was dismissed without penalty. But many could not count on this support, and the courts provided a forum commonly employed to bring them into line.!®8 Some of the offences the courts dealt with under this heading had a connection with religion. Some of them did not. In some it can be hard to tell—a prosecution for “‘uncharitableness’ for example.!© Scolding was a primary example of an offence without a religious connotation. There were many cases. Katherine Rychard was presented by the churchwardens of Newton in 1464 for being ‘a common defamer’; Joan Cox in 1502 before the London court for being ‘a sower of discord among her neighbours’; Alice Calk was 166 Fx officio c. Mathew (London, 1600), GL, Act book MS. 9064/15, fo. 37: “Dominus quia videtur ei hanc causam esse parvi momenti dimisit dictam Aviciam’; Ex officio c. Gollupp (Exeter, 1620), DRO, Chanter MS. 763, s.d. 24 Nov.: the right to absolve was delegated to the vicar, “quia est causa nullius

momenti’ 167 Ex officio c. Curtis (London, 1588), GL, Act book MS. 9064/13, fo. 9. 168 e.g, Ex officio c. Sheppard (Gloucester, 1600), GRO, Act book GDR 86, fo. 141: “detected for idleness’ 169 e.g, Ex officio c. Kytchen (Canterbury, 1580), CCAL, Act book X.2.1, fo. 45: “We present [defendants]

for uncharitableness.

SUBSTANTIVE LAW OF CRIMES 633 brought before the Winchester consistory court in 1524 as a ‘public execrator of her neighbours’. Agnes, wife of William Cooke, was required to appear before the official of the diocese of Ely in 1603, having been presented as ‘a common scold’.!7° Scolding meant more than talking too much, but an exact definition of ‘scolding’

at the time is as elusive as the crimes of ‘loitering’ or “disturbing the peace’ are in our own day. English law would eventually put it into the ‘catch-all bin’ of nuisance.!7! All commentators have agreed on three points, however: (1) it was the repetition of quarrelsome talk or scandalous tales that made the offence; (2) jurisdiction over scolding was shared between church and local courts up to at least 1640; (3) it was a criminal activity dominated by women, although men could also be prosecuted.!72 In prosecutions like these, often nothing of consequence was

done; the guilty party might simply be required to promise not to repeat the offence. Or outright dismissal might be the result. No doubt, the process itself was the penalty. It meant interruption of daily life and work, and in most cases a journey away from home. Fees would have to be paid. Drunkenness was a second example. Absent from the medieval records except when coupled with another offence,!73 habitual drunkenness began to appear in

them regularly during the second half of the sixteenth century. A Rochester man was prosecuted for drunkenness in 1557, although probably earlier examples may be discovered. In 1586, a woman named Katherens was required to appear in the bishop’s court at Peterborough, where she was said to be ‘a most

abominable drunkard’. A man named Jones was presented to the consistory court of Gloucester in 1600 for being ‘a common drunkard’.!74 This was the pattern. Not much can be said about it except to note its existence. Parliament enacted statutes penalizing drunkenness during James I’s reign; offenders could be tried in temporal courts.!75 However, the statutes contained savings clauses 170 Ex officio c. Cooke, CUL, EDR B/2/21, fo. 27(c); see also Ex officio c. Rychard in Poos, Lower courts, 460; Ex officio c. Cox, GL, Act book MS. 9064/9, fo. 92v: “seminatrix discordie’; Ex officio c. Calk, HRO, Act book 21M65/C1/2, fo. 40v: “pro publica execratrice vicinorum suorum’; Ex officio c. Hunter (York, 1590), BI, V.1590.CB.1, fo. 61 (“Common curser’). 171 William Hawkins, Treatise of the Pleas of the Crown (6th edn, Dublin, 1788), c. 75 § 5. 172 R. v. Foxby (QB 1704), 6 Mod. 213; see McIntosh, Controlling Misbehavior (above n. 158), 58-65.

Compare, however, David Underdown, “The Taming of the Scold: the Enforcement of Patriarchal Authority in Early Modern England’ in Order and Disorder in Early Modern England, ed. A. Fletcher and J. Stevenson (1985), 116-36 (crisis in gender relations), with Martin Ingram, ‘“Scolding Women Cucked or Washed”: A Crisis in Gender Relations in Early Modern England?’ in Women, Crime and the Courts in Early Modern England, ed. Jenny Kermode and Garthine Walker (1994), 48-90 (no real rise

in prosecution). 173 "This was not infrequent; see A. Lynn Martin, Alcohol, Sex, and Gender in Late Medieval and Early Modern Europe (2001), 38-95. 174 Ex officio c. Elsmere (Rochester) in Hair, Bawdy Court (above n. 154), no. 585; Ex officio c. Katherens, NRO, Correction book 21; Ex officio c. Jones, GRO, Act book GDR 86, fo. 142; see also Ex officio c. Ellis (York,

1619), BI, V.1619, fo. 16. 175 4 Jac. I, c. 5 (1606), 7 Jac. I, c. 10 (1609), 21 Jac. I, c. 7 (1624).

634 CRIMES AND CRIMINAL PROCEDURE for ecclesiastical jurisdiction, and for a time, alleged drunkards continued to figure in churchwardens’ presentments. Divination, cursing, charming, and witchcraft also figured occasionally in the records of the ecclesiastical courts. They were a third kind of anti-social behaviour

dealt with in the ecclesiastical forum. The church long sought to put a stop to superstitious acts, particularly when they involved ‘magical’ arts. For example, Robert Mabley was accused of attempting to ‘enchant fishing nets’ when he appeared before the deanery court of Wisbech in 1463. In 1517, Thomas Gurnell was brought before the court of the archdeacon of St Albans, presented for having claimed that if he cursed a tree it would never bear fruit and that if he spoke three words to a woman he could have her at his pleasure. A London man was prosecuted in 1492, because (it was said) he was claiming he could cause any woman to have any man she favoured by magical means, and a man at York was proceeded against in 1590 as ‘a common charmer of cattle’.!”© They were typical defendants. It is not always possible to describe the nature of the ‘magic arts’ involved. Defendants, particularly women, were presented from time to time as suspected

witches in causes where no detail about what they had done was given in the records.!77 These prosecutions were not particularly frequent at any period, and so far as one can tell, they were treated no differently than most other ex officio prosecutions. The offence of sorcery was long associated with heresy, it is true, but there are few overt signs of this potentially fatal connection being made in the act books. Witchcraft was also a crime the ecclesiastical courts shared with the royal courts.!78 This overlap may explain its relatively infrequent appearance in the act

books. Witchcraft prosecutions have proved revealing of social customs and thought in the hands of able historians,!79 but their meaning within the study of popular culture is not one the historian of law should attempt to enter. Within the legal bailiwick, it may be proper to add that as long as the offence was kept on

176 Ex officio c. Mayley in Poos, Lower Courts, 463; Ex officio c. Borough (Archdnry St Albans), HTRO, Act book ASA 7/1, fo. 8v; Ex officio c. Lankiston (London), GL, Act book MS. 9064/5, fo. 31; Ex officio c. Bennyngham, BI, V.1590.CB.1, fo. 130Vv.

177 Ex officio c. Alice Ley (Salisbury, 1616), WTRO, Act book D1/39/2/8, fo. 28: “for being vehementlie suspected thes manie years for a witche’. Other examples: Ex officio c. Christina Oust (Rochester, 1445), KAO, Act book DRb Pa 2, fo. 29 (hagge’); Ex officio c. Isabella Wylfoote (York, 1590), BI, V.1590.CB.1, fo. 137v (‘suspected of witchcraft’). 178 Pollock and Maitland, ii. 554-6; C. R. Unsworth, “Witchcraft Beliefs and Criminal Procedure in Early Modern England’ in Legal Record and Historical Reality, ed. Thomas G. Watkin (1989), 71-98, at 74-6. 179 See generally Keith Thomas, Religion and the Decline of Magic (1971), 253-63; Alan Macfarlane, Witchcraft in Tudor and Stuart England (1970); Philip Tyler, “The Church Courts at York and Witchcraft

Prosecutions 1567-1640 (1969) 4 Northern History 84-109; Peter Rushton, “Women, Witchcraft, and Slander in Early Modern England: Cases from the Church Courts of Durham, 1560-1675’ (1982) 18 Northern History 116-32; J. A. Sharpe, “Witchcraft and Women in Seventeenth-Century England: Some Northern Evidence’ (1991) 6 Continuity and Change 179-99.

SUBSTANTIVE LAW OF CRIMES 635 the ecclesiastical side, the severe penalties of the common law were avoided. There also continued to be a certain ‘amateurishness’ about the English court proceed-

ings when compared with the strenuous efforts to discover and punish witches being made on the Continent.!8° A brief word should be added about a fourth class of crime against public order that came before the spiritual courts: disturbances committed in churchyards or within parish churches themselves. When they took place elsewhere, the ecclesiastical courts took no notice of them, but the courts did take action when unlawful conduct had taken place on consecrated ground. Such offences were more directly tied to religion and the church as an institution than were the others, but most of

them implied no disbelief or even any disrespect for religion itself. They were matters like brawling in churchyards, polluting or defiling the same, and behaving inappropriately during church services. Interrupting or insulting a preacher, dandling and kissing a dog on one’s lap, excessive and obstinate talking—all were faults of irreverence the spiritual courts undertook to correct.!8! Sleeping in church, which one hopes meant more than just nodding off during the sermon, was a not uncommon offence found in the court records.!82 Most defendants in the latter, minor cases of misbehaviour were dismissed either after having received a “pious admonition’ or ‘under hope of amendment of life. Imposition of public penance was rare, although defendants would always have been penalized in a sense. They had to appear and to pay the court fees.18 Finally, some ex officio cases were the fruits of the regulatory tasks imposed

upon the church by the Tudor monarchs. Teaching school, practising the art of surgery or midwifery without the proper licence, and also failing to pay what was owed under the Elizabethan Poor Law were the primary examples. They joined older offences more directly related to the church—non-payment of church rates and prohibitions against working on Sundays, for instance. They were meant to

help ensure the good order of communities, and the church’s courts were regarded as a natural forum for this kind of regulation. Against these ‘gains’ to ecclesiastical jurisdiction should be set two ‘losses’ from the later sixteenth century. The prosecution of usurers became a task shared with the royal courts after the enactment of two Tudor statutes (37 Hen. VIII, c. 9, 1545, and 13 Eliz. I, c. 8, 1571), and the power to issue ‘support orders’ to the fathers of illegitimate children passed to the Justices of the Peace after a Parliamentary statute of 1576 (18 Eliz. I, c. 3). The spiritual tribunals were left with only the remedy of public penance to be used against the fathers, as they were in dealing with ordinary sexual offences. 180 Barbara Rosen, Witchcraft (1969), 21-9. 181 See Hair, Bawdy Court (above n. 154), 249-51. 182 e.g, Ex officio c. Pettie (Lincoln, 1585), LAO, Vj/16, fo. 48: “dormit in ecclesia’; Ex officio c. Glimster

(Archdnry Bedford, 1618), BDRO, Office Act book 5, fo. 105: “for usual sleeping in the church’ 183 Quaife, Wanton Wenches (above n. 156), 196—7.

636 CRIMES AND CRIMINAL PROCEDURE Crimes against the Christian Religion When Maitland turned to the criminal law of the church, he devoted virtually all of his attention to heresy. The choice was natural. It was the most infamous area of ecclesiastical jurisdiction, and a limited coverage may have been about all he could attempt in the days before the records of the ecclesiastical courts had been examined. Now it is possible to see the treatment of religious dissent in much greater detail, if not necessarily in a wholly different light. We can now take account of a great deal of ‘low level’ religious difference that came before the courts but attracted little public attention in its own day. It required some sort of correction, but it lit no bonfires. We can see also that some of the dissent might have been regarded as crossing over the thin line that separated general dissatisfaction with religious institutions from actual disbelief in the core of the Christian religion. But the records show that the church rarely seized the opportunity. BLASPHEMY, SACRILEGE, AND NEGLECT OF RELIGIOUS DUTIES

Technically, blasphemy meant the attribution to God of a property inconsistent with his divinity. To say, “God tells lies’ constitutes blasphemy. To say, ‘I don’t care what God commands’ does not. The second speaker has not denied any of God’s attributes. Some of the offences described as blasphemy that came before the English courts fitted this definition, such as the Hampshire man who was alleged to have said, ‘God almighty is a cuckold’.184 Others came close, like the Kentish man who

must have been making an anti-clerical joke in describing a priest carrying the sacrament to a sick man as ‘going to give Communion to the sick bull’ of another villager.185 But most of the prosecutions found in the act books gave no more details than to say that a defendant had used ‘shameless speech in matters of religion’ or

some variant of that description.!8° Frequently and quite believably, a charge of blasphemy was joined with other offences, as for example in the case of a Sussex man said to be ‘a great and often swearer and a blasphemer and a common drunkard.187 In a medieval Canterbury ex officio case, a man was said to have ‘blasphemed’ the parochial chaplain.188 In cases like this one, it is hard to imagine that blasphemy was being taken in its technical legal sense. It may have meant no more than using abusive language about religion and its ministers. Certainly some of the penances assigned support that supposition. A man found guilty of “‘blaspheming the name of God’ in 1525 was simply given a pious admonition ‘that from henceforth he should abstain 184 Fx officio c. Felder (Winchester, 1522), HRO, Act book 21M65/C1/1, fo. 33v. 185 Ex officio c. Westgate (Rochester, 1498), KAO, Act book DRb Pa 3, fo. 112v. Other examples, Ex officio c. Rokesbie (Lincoln, 1611), LAO, Vj/21, fo. 34v: ‘saying let us not give God thanks for our meat but

let us thank ourselves’. 186 Fx officio c. Lacocke (York, 1598), BI, Y.V/CB.1, fo. 12V. 187 Ex officio c. Cobbie (Chichester, 1614), WSRO, Act book Ep 1/17/15, s.d. 26 Mar. 188 Fx officio c. Bysshop (Canterbury, 1399), CCAL, Act book X.8.1, fo. 37.

SUBSTANTIVE LAW OF CRIMES 637 from such blasphemy under penalty of doing public penance’.!8° The approach made sense. Under the law, swearing an oath ‘by the limbs of Christ’ could be considered blasphemy.1%° To have gone beyond some form of mild rebuke in such cases would have gone too far.

Sacrilege, a term sometimes used loosely today, was properly defined under the ius commune as the theft of a sacred thing from a sacred place, the theft of a non-sacred thing from a sacred place, or the theft of a sacred thing from a non-sacred place.!9! The proceedings found in the English court records fit this definition. They were brought for taking chattels from churches or churchyards.!92 The jurists treated sacrilege as a particularly execrable form of theft. It was stealing from God. The Roman law prescribed severe penalties: death by fire, hanging, or being devoured by wild beasts, although this might be mitigated for good reason to deportation or a sentence to work in the mines (Dig. 48.13.7).

These dreadful sanctions were noted with approval by some of the great Continental writers on the criminal law during the sixteenth century. They reproved the ‘great laxity’ of the canon law. The pusillanimous sentences of excommunication the canons visited upon men and women who committed this heinous act were, they said, altogether inadequate.!93 More was needed. These criticisms of the result cannot now be thought just, but the jurists were

not wrong in their description of what the English ecclesiastical courts did in practice. Public penance was the only penalty inflicted. In this regard, it may be remembered that the English ecclesiastical lawyers were true to the memory of Pope Gregory the Great, who was speaking of the crime of sacrilege in his letters to St Augustine when he advertised the virtues of moderation in administering the penal law.!94 The Continental jurists had apparently forgotten his admonition. Much more frequent in the records, although dealt with by similarly modest penalties, were prosecutions brought for neglect to attend the regular round of church services in one’s own parish. This was a duty, not a choice. Thus John Williamson was brought before the court of the archdeacon of St Albans in 1515, 189 Fx officio c. Torant (Winchester, 1525), HRO, Act book 21M65/C1/2, fo. 149. 190 For academic opinion, see R. H. Helmholz, The Spirit of Classical Canon Law (1996), 271; for a case, see Ex officio c. Burton (Rochester, 1513), KAO, Act book DRb Pa 6, fo. 6v: “notatur [ut] blasphemator

membrorum Christi. 191 Gl. ord. ad C. 17 q. 4 c. 20. See also Olivia Robinson, “Blasphemy and Sacrilege in Roman Law’ (1973) 8 IJ 356-71.

192 e.g, Ex officio c. Feysot (Canterbury, 1399), CCAL, Act book X.8.1, fo. 26v (stones from churchyard); Ex officio c. Michell and Page (London, 1485), GL, Act book MS. 9064/2, fo. 115v (letter, perhaps containing presentment, from parish church); Ex officio c. Hurlok (London, 1502), GL, Act book MS. 9064/9, fo. 18v (censer taken from vestry of church). 193 e.g, Damhouder, Praxis rerum criminalium, c. 114, no. 15; Julius Clarus, Practica criminalis, tit.

Sacrilegium, no. 4. 194 See Ch. 1, nn. 16-18.

638 CRIMES AND CRIMINAL PROCEDURE because ‘he does not come to the church on Sundays and holy days.!95 He was apparently not given the chance to dispute the charge. His absence must have been notorious, and he was treated as guilty. However, Williamson was not investigated

as a potential heretic. He was only warned ‘to better serve the church under penalty of public penance’ before being dismissed.1%° Failure to communicate at some time during the year was also a violation of the church’s law, and it too brought offenders before the courts. The offence seems to

have become more frequent during the reigns of Elizabeth and the Stuart monarchs, very likely as a result of the existence of Protestant dissent and Catholic recusancy. If religious dissent was the cause, however, the connection was not always made apparent in the records. Few defendants admitted any refusal to adhere to the English church. Large numbers of those presented for not receiving Holy Communion proffered an excuse under existing law. Debtors were afraid to venture forth from their house out of fear of their creditors; quarrelers dared not receive the sacrament until they had returned to a state of charity with their neighbours; doubters were unwilling to join with other communicants until they could resolve a ‘scruple of conscience’.19” It is to the credit of the English church that the courts contented themselves with warnings in many cases like these that came before them. Occasionally, they ordered defendants to consult with a discrete and mature clergyman, but for the most part they simply issued an order requiring the defendant to conform. They did not treat this sort of refusal as heresy. It did not even raise a presumption of heresy—a presumption that would have led to a further investigation under the canon law. The courts were far from embracing a principle of religious toleration, but either out of prudence or administrative bungling, much religious dissent was simply allowed to pass uncorrected in practice.1% Finally, from at least the mid-sixteenth century, English ecclesiastical courts began to entertain disciplinary actions against persons who had violated canonical rules related to excommunication. One of these was that the person who took part in common activities with an excommunicated person himself incurred excommunication (C. 11 q. 3 c. 193 X 2.25.2). Exceptions to it were made from the start, and in time the rule was so qualified by the jurists that it had few teeth left.199 But it was ‘on the books, and the English ecclesiastical courts began to enforce it. Against John Carrow of Bridgewater in Somerset, for example, the charge was laid that he 195 Ex officio c. Williamson, HTRO, Act book ASA 7/1, fo. 5v: ‘non venit ad ecclesiam diebus dominicis et festivis.

196 ibid.: “Et dominus monuit eum ut decetero melius servet ecclesiam sub penam publice penitencie et dimissus est. 197 See Helmholz, Roman Canon Law, 114-16, for examples and a fuller discussion. 198 See e.g. J. C. H. Aveling, Northern Catholics (1966), 125-35. 199 See e.g. Avila, De censuris (above n. 100), pt. II, c. 5, disp. 2, dub. 1.

SUBSTANTIVE LAW OF CRIMES 639 ‘doth usually converse, buy, sell, and keep company with one Cleeves of the same parish. Cleeves was only said to have been excommunicate.2°° This was part of a broader pattern involving sanctions. Attempts were being made to improve the effectiveness of excommunication and signification (e.g. 5 Eliz. I, c. 23, 1563). In addition, it became a distinct offence to “stand excommunicate’ for too long.?°! The

English civilians may have been content with modest sanctions in most cases involving disrespect for religion, but they also took steps to make the sentence of excommunication carry some of the weight the church’s law held that it should have done. HERESY

The relatively mild penalties meted out to dissenters carried over into what the canon law treated as the most serious of crimes: erroneous religious belief. Whether this tells us anything about the attitude of the English church is, however, a more complex question. It cannot be approached without first considering the law.2°2 The canon law asserted the church’s exclusive right to try heretics. This was logical. Only the church, it was maintained, could accurately determine just

which religious opinions were erroneous and which were true. However, the canon law also held that sentences issued by the judges of ecclesiastical tribunals were to be carried out by the secular courts (X 5.7.9), not by the church. Obdurate heretics—those who refused to give up their opinions—and relapsed heretics— those who reverted to their former opinions after first abjuring them—vwere to be executed and their property confiscated (X 5.7.13). The capital punishment they were thought to deserve was endorsed by the canon law, except that it could not be carried out by the clergy. Execution by being burned alive was the normal procedure, although this seems to have been a matter of custom more than anything else.2°3 Upon these foundations were built the courts of the Inquisition, operating outside the ambit and control of episcopal courts and staffed mainly by judges from the Mendicant orders, most famously the Domincans. No such system of

special inquisitorial courts was created in England, however. Prosecution of heretics continued to rest with the bishops and their courts. Even without the Inquisition, the main points of the law as to heresy were accepted in medieval England. The secular authorities did not dissent from their enforcement. The canon law called upon the secular arm to support ecclesiastical 200 Ex officio c. Carrow (Archdnry Taunton, 1621), SRO, Act book D/D/Ca 224, fo. 1v. 201 e.g. Ex officio c. Cumber (Rochester, 1591), KAO, Act book DRb Pa 21, fo. 111: ‘for standing excom-

municate to the great offence of our parishioners. 202 An old but good introductory guide is Lea, The Inquisition (above n. 31). The abridged edition published in 1969 contains a valuable introduction by Walter Ullmann. 203 Such at least was the opinion of Julius Clarus, Practica criminalis, tit. Haerests, no. 7.

640 CRIMES AND CRIMINAL PROCEDURE efforts, and royal officials answered that call with what appears to have been enthusiasm. The famous statute De haeretico comburendo (2 Hen. IV, c. 15, 1400) gave express Parliamentary sanction to the essential features of the system, but

the procedure of detection and punishment of heretics it contained had been followed before that statute’s enactment and outlasted its repeal.2°4 Indeed, in some instances secular authorities took the lead in ferreting out manifestations of heresy.2°> The statute of 1534 (25 Hen. VIII, c. 14), which sanctioned the initiation of heresy prosecutions in the common law courts, was one such manifestation.2 The influence of John Wyclif (d. 1384), the rise of Lollardy in the fifteenth century,

and the theological turmoil of the early sixteenth century frightened the governors of the day. They saw heresy under many rocks, and they were determined that it should not emerge to flourish in England.?°”

A great deal of the evidence relating to the prosecution of heresy has been published since Maitland wrote.2°8 Historians are now in a better position to look at the subject than he was. Two things have become clear in the intervening years. First, with a few notable exceptions—alarm over the Lollards and the reign of Philip and Mary being the most prominent—large numbers of heresy trials did not take place in England. Second, most of the prosecutions that did take place

ended in an abjuration of heresy and the imposition of a serious penance— imprisonment or wearing a faggot on one’s clothing, for example. Executions were rare. For instance, fifty-three defendants were brought before a court convoked by the archbishop of Canterbury in 1511 and 1512, and, mostly on the basis of witness testimony against them, were found guilty of some form of heresy. Of this group, only five were handed over to the secular arm to be burnt.?°9 Almost all the rest abjured their opinions and were assigned public penance. Figures like these have persuaded some historians that the church took a more benevolent view towards those it prosecuted for religious dissent than had earlier been supposed.?!° Perhaps so. That conclusion by no means follows, however, at 204 Makower, Constitutional History, 183-94. 205 See e.g. Heresy Trials in the Diocese of Norwich, 1428-31, ed. Norman Tanner (= 20 Camden Soc. (4th ser.); 1977), 9-10.

206 The ups and downs of Parliamentary legislation dealing with heresy are described in Davis, Heresy and Reformation 6-25.

207 On the Lollard ‘movement’, see John Thomson, The Later Lollards 1414-1520 (1965); Anne Hudson, The Premature Reformation: Wycliffite Texts and Lollard History (1988). 208 See Tanner, Norwich Heresy Trials (above n. 205); Kent Heresy Proceedings 1511-12, ed. Norman Tanner (= 26 Kent Records; 1997 for 1996); Anne Hudson, “The Examination of Lollards’ (1973) 46 BIHR 145-59; R. A. Houlbrooke, “Persecution of Heresy and Protestantism in the Diocese of Norwich under Henry VHI (1972) 35 Norfolk Archaeology 308-26; John Fines, “Heresy Trials in the Diocese of Coventry and Lichfield, 1511-12’ (1963) 14 JEH 160-74.

209 ‘Tanner, Kent Heresy Proceedings (above n. 208), pp. XV—XvVi.

210 e.g, Swanson, Church and Society, 340: “The church’s real concern was not to destroy but to save.

SUBSTANTIVE LAW OF CRIMES 641 least not as a matter of course. In most situations, the English authorities, both clerical and lay, were doing exactly what the canon law required. As long as those being prosecuted for heresy were willing to abjure—and (unsurprisingly) most of them were—the authorities had no real choice under existing law.?!! The accused could not be handed over to the secular courts for punishment. However, if the same men and women later gave utterance to one of their condemned opinions, the officials of the church delivered them to the secular arm without hesitation. Thomas More was following the canon law in hurrying Thomas Bilney to his death and martyrdom when it was proved that he had relapsed into his former opinions.?!2 Heretics got only one bite at the apple. Most published proceedings involving heresy have been taken from the records of special efforts by individual bishops to deal with what they perceived to be a pressing problem. They leave an impression of considerable energy being devoted to it. The martyrologist John Foxe confirms that impression. However, heresy prosecutions are also to be found scattered among the ex officio causes in many act books. Some were quite consistent with the pattern just described— proof by witnesses followed by abjuration or execution.?!3 Others, however, were treated more like quite routine ecclesiastical offences. A York chaplain who in 1406 had said that, ‘in cases of necessity it was better to confess to a dog than to another

man’ was required to confess his error publicly and to say the reverse.2!4 No investigation into whether this statement concealed heretical belief was undertaken. A man convented for suspicion of heresy before the diocesan court of Bath and Wells in 1482, for example, denied the charge and was admitted to canonical purgation, just as he would have been had he been charged with fornication.?!5 In 1493, a London man who could not deny a charge of deviation from the Christian view about the resurrection of the body was assigned a penance no different from what would have been assigned a common defamer.?!© Perhaps it was thought

their offences were mistakes, but not truly heretical. At least they were not persistent error. In any event, the courts dealt with many of them as ordinary disciplinary matters. No heavy artillery was brought out. And failure to attend church services did not become the occasion for suspicion of heresy. The reluctance of Queen Mary’s government to entrust the ecclesiastical courts with the task

211 There was a controversy among the jurists about how quickly the confession of error had to be made. The strictest view held that it had to be made at once and spontaneously. This appears to have been a minority opinion, however. See Nicolaus Boerius, Decisiones, no. 341. 212 See William Clebsch, England’s Earliest Protestants 1520-1535 (1964), 277-304. 213 e.g, Ex officio c. Swywyng (London, 1482) in Hale, Proceedings, no. 35. 214 Ex officio c. Pykworth (York), BI, D/C.AB.1, fo. 39. 215 Ex officio c. Martyn, SRO, Act book D/D/Ca 1, p. 246. 216 Ex officio c. Bowkyn, GL, Act book MS. 9064/5, fo. 77Vv.

642 CRIMES AND CRIMINAL PROCEDURE of restoring the nation to the Roman obedience followed from what (to them) must have seemed like habitual weakness.?!”

The desire evident in such cases to promote the correction of erroneous views while avoiding the full rigour of the laws against heresy was particularly evident in the causes heard during the later sixteenth century. Prosecution for heresy, punished by death by fire, remained possible. There were instances where it happened. Moreover, there were cases of elaborate public penances being meted out to offenders.2!8 But they were comparatively few.2!9 This scarcity is all the more notable because the act books of the time show that many cases could have been treated as heresy had the officials wished. The man who was presented as “a blasphemer of the name of God’ in 1599 might have been suspected of heresy. Further

investigation would be needed. That result was called for by some of the Inquisitors’ manuals. In fact, he was dismissed after confessing his fault and being ‘exhorted’ to avoid his crime in the future.22° The same was true in clearer cases. In 1564, for example, a West Country man confessed to having denied some of the church’s doctrines relating to the Day of Judgment and having said that certain books of the Old Testament were “fables.22! He was required to do penance in a white sheet, both in the cathedral and in his parish church, publicly confessing his

errors on both occasions. But that was all. No formal public abjuration was required. No threat of the consequences of relapse was recorded. Of course, it is difficult to penetrate behind the formal entries of act books into the minds of the actors. Perhaps the result would have been different had the man persisted in his opinion. But many other dissenters were given no more than pious admonitions and ordered to conform to the church’s teachings. We know also that by the seventeenth century there was a widespread revulsion against the horrors visited upon honest men and women during the reign of Queen Mary. The court records suggest, although they do not prove, that the English civilians shared that

sentiment. It would have been a Herculean task to suppress all dissent in any event. No one had the stomach for a Spanish Inquisition. About the English civillans some hard words can be said. They were backward looking in many ways. But nostalgia for the fires of Smithfield cannot fairly be laid at their door. 217 T), M. Loades, ‘The Enforcement of Reaction, 1553-1558’ (1965) 16 JEH 54-66. 218 Ex officio c. Hardyng et ux. (Lincoln, 1515) in Lincoln Court Book (above n. 140), 15. 219 John Coffey, Persecution and Toleration in Protestant England 1558-1689 (2000), 85-93, 113-17. 220 Ex officio c. Welles (London, 1599), GL, Act book MS. 9064/15, ff. 8-8v. 221 Ex officio c. Duyllam (Bristol), BRO, Act book EP/J/1/6, pp. 17, 19.

SELECT BIBLIOGRAPHY 1. TREATISES AND OTHER WORKS ON LAW AND PROCEDURE PUBLISHED BEFORE 1800 Afflictis, Mattheus de (d. 1523), Decisiones sacri consili1 Neapolitani (Venice, 1604). Albericus de Rosate (d. 1354), Dictionarium turis quam civilis quam canonici (Venice, 1573; repr. 1971).

Ancharano, Petrus de (d. 1416), Commentaria in libros decretalium (Bologna, 1580). Andreae, Joannes (d. 1348), In quinque decretalium libros novella commentaria (Venice, 1581; repr. 1963).

Atho, Johannis. See Ayton, John. Aufrerius, Stephanus (fl. 1490), Tractatus de potestate secularium super ecclestis et personis, in: TUL xiv.

Avila, Stephanus de (d. 1601), De censuris ecclestasticis tractatus (Lyons, 1608). Ayliffe, John (d. 1732), Parergon juris canonici Anglicant (1726). Ayton, John (d. 1350), Constitutiones legatinae d. Othonts et d. Othobont... cum annotationibus Johannis de Athona (Oxford, 1679). Azo (d. ¢.1230), Summa codicis (Basel, 1563). Baldus de Ubaldis (d. 1400), In decretalium volumen commentaria (Venice, 1595; repr. 1971).

Barbosa, Augustinus (d. 1649), Pastoralis solicitudinis sive de officio et potestate episcop1 (Lyons, 1649).

— Praxis exigendi pensiones (Lyons, 1653). Bartolus de Saxoferrato (d. 1357), Opera omnia (Venice, 1570-1). Benedict XIV, Pope (d. 1758), De synodo diocesana (Rome, 1755). Bertachinus, Johannes (d. c.1506), Repertorium turis utriusque (Venice, 1590). Blackstone, William (d. 1780), Commentaries on the Laws of England (Oxford, 1765-9). Boerius, Nicholaus (d. 1539), Decisiones aureae... Burdegalenses (Lyons, 1544). Bohic, Henricus (d. c.1350), In quinque decretalium libros commentaria (Venice, 1576). Bracton, Henry de (d. 1268), De legibus et consuetudinibus Angliae (1968-77). Burchard of Worms (d. 1025), Decretorum libri XX (1548, repr. 1992). Burn, Richard (d. 1785), Ecclesiastical Law (1762). Butrio, Antonius de (d. 1408), Commentaria in libros decretalium (Venice, 1578; repr. 1967). Camarela, Franciscus, De legatis et singulis rebus per fideicommissum relictis (Venice, 1681). Cino da Pistoia (d. 1336), In Codicem et aliquos titulos primi Pandectorum commentaria (Frankfurt, 1578; repr. 1964).

Clarus, Julius (d. 1575), Liber sententiarum receptarum V § Practica criminalis (Venice, 1595). Unless otherwise stated, books were published in London.

644 SELECT BIBLIOGRAPHY Clerke, Francis (fl. 1596), Praxis in curtis ecclesiasticis (1684).

Coke, Edward (d. 1634), First (Second etc.) Part of the Institutes of the Lawes of England (1628-44). Conset, Henry, The Practice of the Spiritual or Ecclesiastical Courts (1685). Corpus 1uris canonici cum glossis (Venice, 1615). Corpus turis civilis cum glossis (Venice, 1606). Cosin, Richard (d. 1597), An Apologie for Sundrie Proceedings by Jurisdiction Ecclestasticall (1593).

Cowell, John (d. 1611), The Interpreter or Booke containing the Signification of Words (Cambridge, 1607). Crashaw, William (d. 1626), Decimarum et oblationum tabula (1st edn. 1591) (1671). Damhouder, Jodocus (d. 1581), Praxis rerum criminalium (Antwerp, 1601; repr. 1978). Decisiones Rotae Romanae. See Rota Romana. Duarenus, Franciscus (d. 1559), Tractatus de benefictis, in: TUI, xv. 2.

Durantis, Johannes D., De arte testandi et cautelis ultimarum voluntatum (Venice, 1564). Durantis, William (d. 1296), Speculum tudiciale (Basel, 1574; repr. 1975). Everardus, Nicholaus (d. 1532), Loci argumentorum legales (Frankfurt, 1648). Farinacius, Prosper (d. 1618), Variarum quaestionum et communium opinionum criminalium liber (Venice, 1589-93). —— De immunitate ecclesiarum et confugientibus ad eas (Lyons, 1621). Ferrariis, Johannes Petrus de (fl. 1400), Practica aurea (Venice, 1610). Fulbecke, William (d. 1603), A Parallele or Conference of the Civil, Canon, and the Common Law of England (1602). Geoffrey of Trani (d. 1245), Summa super titulis decretalium (Lyons, 1519; repr. 1992). Giganti, Girolamo, Tractatus de pensionibus ecclestasticis ( Venice, 1542). Glanvill, Ranulf (d. 1190), Treatise on the Laws and Customs of the Realm of England (1965). Godolphin, John (d. 1678), The Orphan’s Legacy or a Testamentary Abridgment (1674). Grassus, Michaelis (fl. 1580), Tractatus de successione tam ex testamento quam ab intestato (Venice, 1606). Guido Papa. See Papa, Guido. Henricus de Segusio. See Hostiensis. Hostiensis (d. 1271), In decretalium libros lectura (Venice, 1581; repr. 1965). —— Summa aurea (Venice, 1574; repr. 1963). Imola, Joannes ab (d. 1436), In libros decretalium commentaria (Venice, 1575).

Innocent IV, Pope (d. 1254), Apparatus in quinque libros decretalium (Frankfurt, 1570; repr. 1968). Lancelottus, Joannes Paulus (d. 1590), Institutiones iuris canonici (Venice, 1703).

Lyndwood, William (d. 1446), Provinciale (seu Constitutiones Angliae) (Oxford, 1679; repr. 1968).

Mallory, John, Quare Impedit (1737).

Maranta, Robertus (d. c.1530), Tractatus de ordine tudiciorum...intitulatus Speculum aureum (Venice, 1549).

LAW AND PROCEDURE BEFORE 1800 645 Mantica, Franciscus (d. 1614), Tractatus de conjecturis ultimarum voluntatum (Geneva, 1735).

Mascardus, Josephus (d. 1588), Conclusiones probationum omnium quae in utroque foro quotidie versantur (Frankfurt, 1593). Menochius, Jacobus (d. 1607), De praesumptionibus, coniecturis, signis, et indictis commentariorum (Venice, 1587). Odofredus (Bononiensis) (d. 1265), Lectura super codice (Bologna, 1552; repr. 1968). Oldradus da Ponte (d. 1335), Consilia, seu responsa, et quaestiones aureae (Venice, 1570). Panormitanus (d. 1445 or 1453), Commentaria super decretalium libros (Venice, 1615). Papa, Guido (d. 1487), In augustissimo senatu Gratianopolitano decisiones (Geneva, 1667). Paucapalea (fl. 1140s), Die Summa des Paucapalea iiber das Decretum Gratiani, ed. J. F. von Schulte (1890, repr. 1965). Perez, Antonius (d. 1673), Praelectionies in duodecim libros Codicis (Naples, 1755). Prierio, Sylvestro Mazzolini de (d. 1527). See Summa Sylvestrina. Rebuffus, Petrus (¢.1557), Tractatus de decimis (Lyons, 1566). Regino of Priim (d. 915), Libri duo de synodalibus causis, ed. F. G. A. Wasserschleben (1840, repr. 1964). Ridley, Thomas (d. 1629), A View of the Civile and Ecclestasticall Law (Oxford, 1662). Rosate. See Albericus de Rosate.

Rota Romana. Rotae Romanae auditorum decisiones novae, antiquae et antiquiores (Venice, 1570).

St German, Christopher (d. 1540), Doctor and Student (1974). Samuelli, Francisco Maria, (d. 1660), Praxis nova observanda in ecclestasticis supulturis (Turin, 1678). Sanchez, Thomas (d. 1610), De sancto matrimont sacramento tomi tres (Lyons, 1739). Sandeus, Felinus (d. 1503), Commentaria ad quinque libros Decretalium (Venice, 1574). Scaccia, Sigismundo (fl. seventeenth cent.), De iudictis causarum civilium, criminalium et haereticalium (Venice, 1663). Scialoya, Angiolo (fl. 1645), Tractatus de foro competenti (Naples, 1663). Sinibaldus Fliscus. See Innocent IV. Speculator. See Durantis, William. Sperelli, Alexandro (d. 1672), Decisiones fori ecclestastici (Venice, 1651). Suarez de Paz, Gonzalo (d. 1590), Praxis ecclesiasticus et secularis (n.p., 1609). Summa Silvestrina (Venice, 1601). Swinburne, Henry (d. 1624), A Brief Treatise of Testaments and Last Wills (1590-1). —— Treatise of Spousals or Matrimonial Contracts (1686).

Tancred (of Bologna) (d. 1236), Ordo iudiciarius in Libri de iudiciorum ordine, ed. F.C. Bergmann (G6ttingen, 1842; repr. 1965). Tonduti, Petrus de (Tondutus) (d. 1669), Tractatus de pensionibus ecclestasticis (Lyons, 1671). Tractatus universi 1uris (Venice, 1549). Tudeschis, Nicholaus de. See Panormitanus. Tuschus, Card. Dominicus (d. 1620), Practicarum conclusionum turis in omni foro frequentiorum (Rome, 1605-70).

646 SELECT BIBLIOGRAPHY Ubaldis, Baldus de. See Baldus.

Vantius, Sebastianus (d. 1570), Tractatus de nullitatibus processuum ac sententiarum (Venice, 1567).

Vestrius, Octavianus (d. 1573), In Romanae aulae actionem et iudiciorum mores introductio (Venice, 1547).

Zasius, Ulrich (d. 1535), Commentaria seu Lecturas in titulos Pandectarum in Opera omnia (Lyons, 1550).

Zouche, Richard (d. 1662), Descriptio juris et judicii ecclesiastict secundum canones et constitutiones Anlicanas (Oxford, 1636).

2. MODERN WORKS RELATING TO THE CANON LAW AND ECCLESIASTICAL JURISDICTION IN ENGLAND Collections of Ecclesiastical Laws, Statutes, and Injunctions The Anglican Canons 1529-1947, ed. Gerald Bray (= 6 CERS; 1998). Codex iuris ecclesiastici Anglicani, ed. Edmund Gibson (2nd edn, 1761). Concilia Magnae Britanniae et Hiberniae, 446-1718, ed. David Wilkins (1737).

Councils and Ecclesiastical Documents relating to Great Britain and Ireland, ed. Arthur W. Haddan and William Stubbs (1869; repr. 1964). Councils & Synods with other Documents relating to the English Church I, AD 871-1204, ed. D. Whitelock, M. Brett, and C. N. L. Brooke (1981). Councils & Synods with other Documents relating to the English Church I, AD 1205-1313, ed. F. M. Powicke and C. R. Cheney (1964). Decrees of the Ecumenical Councils, ed. Norman P. Tanner et al. (1990). Die Gesetze der Angelsachsen, ed. Felix Liebermann (1903-16). Original Papal Documents in England and Wales from the Accession of Pope Innocent III to the Death of Pope Benedict XI (1198-1304 ), ed. Jane E. Sayers (1999). Original Papal Letters in England 1305-1334, ed. Patrick Zutshi (1990). Papsturkunden in England, ed. Walter Holtzmann (1931-52). Pastors and the Care of Souls in Medieval England, ed. J. Shinners and W. Dohar (1998). Records of the Northern Convocation, ed. G. W. Kitchin (= 113 Surtees Society; 1907). Sacrorum conciliorum nova et amplissima collectio, ed. J. D. Mansi (1759-98, repr. 1960-1). Select Statutes and other Constitutional Documents illustrative of the Reigns of Elizabeth and James I, ed. G. W. Prothero (4th edn, 1913).

Synodalia: A Collection of Articles of Religion, Canons, and Proceedings of Convocations, ed. Edward Cardwell (1842). Tudor Church Reform: The Henrician Canons of 1535 and the Reformatio legum ecclestasticarum, ed. Gerald Bray (= 8 CERS; 2000). Visitation Articles and Injunctions of the Early Stuart Church, i and 11, ed. Kenneth Fincham (=1and 5 CERS; 1994 and 1998). Visitation Articles and Injunctions of the Period of the Reformation, ed. W. H. Frere (= 16 Alcuin Club Collections; 1910). Wulfstan’s Canon Law Collection, ed. J. E. Cross and Andrew Hamer (1999).

CANON LAW & ECCLESIASTICAL JURISDICTION IN ENGLAND 647

Printed records from the Ecclesiastical Courts Act Book of the Archdeacon of Taunton [1623-4], ed. Claude Jenkins (= 43 Somerset Record Society; 1928). Act Book of the Ecclesiastical Court of Whalley 1510-1533, ed. A. M. Cooke (44 Chetham Society (n.s.); 1901). Acts of the Chapter of the Collegiate Church of SS Peter and Wilfrid, Ripon, 1452-1506, ed. J. T. Fowler (= 64 Surtees Society; 1875). Archbishop Grindal’s Visitation, 1575, ed. W. J. Sheils (1977). The Archdeacon’s Court: Liber Actorum, 1584, ed. E. R. Brinkworth (= 23 and 24 Oxfordshire Record Society; 1942 and 1946).

Archdeacon Harpsfield’s Visitation, 1557, ed. L. E. Whatmore (= 45-6 Catholic Record Society; 1950-1). ‘An Archidiaconal Visitation of 1502; ed. C. E. Woodruff (1935) 47 Archaeologia Cantiana 13-54.

Before the Bawdy Court: Selections from Church Court Records, ed. Paul Hair (1972). ‘Bishop Alnwick’s Court-Book (1446-49) in A. H. Thompson, The English Clergy and their Organization in the Later Middle Ages (1947), 206—46.

‘Bishop of Chester’s Visitation Book, 1592, ed. W. F. Irvine (1895) 5 Jnl Architectural, Archaeological and Historic Society... of Chester 384-426. Bishop Redman’s Visitation 1597 (Diocese of Norwich), ed. J. F. Williams (= 18 NRS; 1946).

‘A Case from Archbishop Stratford’s Audience Act Book, ed. Charles Donahue, Jr. and Jeanne Gordus (1972) 2 BMCL 45-59. Child-Marriages, Divorces and Ratifications, etc. in the Diocese of Chester, AD 1561-6, ed. Frederick Furnivall (= 108 Early English Text Society (1st ser); 1897).

‘A Clerical Affray in Petergate in 1540; ed. Claire Cross in The Church in Medieval York: Records Edited in Honour of Professor Barrie Dobson, ed. D. M. Smith (1999), 141-56. Commission for Ecclesiastical Causes within the Dioceses of Bristol and Gloucester, 1574, ed. ED. Price (= 10 Bristol and Gloucestershire Archaeological Society, Records Section; 1972). ‘A Consistory Court from the Diocese of Rochester 1363-4, ed. Sandra Lee Parker and L. R. Poos (1991) 106 EHR 652-65. Courts of the Archdeaconry of Buckingham 1483-1523, ed. E. M. Elvey (= 19 Buckinghamshire Record Society; 1975). Depositions and Other Ecclesiastical Proceedings from the Courts of Durham, Extending from 1311 to the Reign of Elizabeth, ed. J. Raine (= 21 Surtees Society; 1845). Diocese of Norwich: Bishop Redman’s Visitation 1597, ed. J. F. Williams (= 18 NRS; 1946). Episcopal Court Book for the Diocese of Lincoln 1514-1520, ed. Margaret Bowker (= 61 LRS; 1967).

‘Extracts from the Visitation Books at York, ed. Robert Skaife (1900) 15 Yorkshire Archaeological Jnl 224-43. Faculty Office Registers 1534-1549, ed. D. S. Chambers (1966). Heresy Trials in the Diocese of Norwich, 1428-31, ed. Norman Tanner (= 20 Camden Society, 4th ser.; 1977). John Lydford’s Book, ed. Dorothy M. Owen (1974).

Kent Heresy Proceedings 1511-12, ed. Norman Tanner (= 26 Kent Archaeological Society, Record Series; 1997).

648 SELECT BIBLIOGRAPHY Kentish Visitations of Archbishop William Warham and his Deputies, 1511-1512, ed. K. L. Wood-Legh (= 24 Kent Archaeological Society, Kent Records; 1984). Love and Marriage in Late Medieval London, ed. Shannon McSheffrey (1995). Lower Ecclesiastical Jurisdiction in Late-Medieval England, ed. L. R. Poos (2001).

Norwich Consistory Court Depositions, 1499-1512 and 1518-1530, ed. E. D. Stone and B. Cozens-Hardy (= 10 NRS; 1938). Papal Decretals relating to the Diocese of Lincoln in the Twelfth Century, ed. Walter Holtzmann and Eric Kemp (= 47 LRS; 1954). ‘Proceedings of the Ecclesiastical Courts in the Archdeaconry of Leicester, 1516-1535, ed. A. Percival Moore (1905) 28 Associated Architectural Societies’ Reports and Papers, 117-220. ‘Records of a Ruridecanal Court of 1300; ed. F. S. Pearson (= 29 Worcestershire Historical Society Collectanea; 1912), 69-80, 593-662. The Register of Roger Martival, Bishop of Salisbury, 1315-1330, 1v, ed. Kathleen Edwards and Dorothy Owen (= 68 C. & Y. Soc.; 1975). Registrum Hamonis Hethe, Diocesis Roffensis, 11, ed. C. Johnson (= 49 C. & Y. Soc.; 1948), 911-1043.

Reports of Cases in the Courts of Star Chamber and High Commission, ed. S. R. Gardiner (= 39 Camden Society (n.s.); 1886). Royal Visitation of 1559: Act Book for the Northern Province, ed. C. J. Kitching (= 187 Surtees Society; 1975 for 1972).

Select Cases from the Ecclesiastical Courts of the Province of Canterbury c.1200-1301, ed. Norma Adams and Charles Donahue, Jr. (= 95 Selden Soc.; 1981). Select Cases on Defamation to 1600, ed. R. H. Helmholz (= 111 Selden Soc.; 1985). Select XVI Century Causes in Tithe, ed. J. S. Purvis (= 114 Yorkshire Archaeological Society, Record Series; 1949). A Series of Precedents and Proceedings in Criminal Causes, 1475-1640, ed. William Hale (1847, repr. 1973).

‘Some Early Visitation Rolls Preserved at Canterbury, ed. C. E. Woodruff (= 32 Archaeologia Cantiana; (1917), 143-803 33 (1918), 71-90.

‘Some Late Thirteenth-Century Records of an Ecclesiastical Court in the Archdeaconry of Sudbury, ed. Antonia Gransden (1959) 32 BIHR 62-9. Visitations and Memorials of Southwell Minster, ed. A. F. Leach (= 48 Camden Society (n.s.); 1891).

Visitations of Churches belonging to St Paul’s Cathedral in 1297 and in 1458, ed. W. Sparrow Simpson (= 55 Camden Society (n.s.); 1895).

‘Visitation Returns of the Diocese of Hereford in 1397), ed. A. T. Bannister (1929) 44 EHR 279-89, 444-53; (1930) 45 EHR 92-101, 444-63. Visitations in the Diocese of Lincoln, 1517-31, ed. A. H. Thompson (= 33, 35, 37 LRS; 1940-7).

Secondary Works on English Ecclesiastical Courts Adair, Richard, Courtship, Illegitimacy and Marriage in Early Modern England (1996). Adams, Norma, ‘The Judicial Conflict over Tithes’ (1937) 52 EHR 1-22. Addleshaw, R. A. R., Rectors, Vicars and Patrons in Twelfth and Early Thirteenth Century Canon Law (1956).

CANON LAW & ECCLESIASTICAL JURISDICTION IN ENGLAND 649 Addy, John, Sin and Society in the Seventeenth Century (1989). Allmand, C. T., “The Civil Lawyers’ in Profession, Vocation and Culture in Later Medieval England, ed. Cecil Clough (1982), 155-80. Amussen, Susan, An Ordered Society: Gender and Class in Early Modern England (1988). Andrieu-Guitrancourt, Pierre, Essai sur Pévolution du décanat rural en Angleterre (1935). Anglin, Jay, “The Essex Puritan Movement and the “Bawdy” Courts, 1577-1594 in Tudor Men and Institutions: Studies in English Law and Government, ed. Arthur Slavin (1972), 171-204. Archer, Rowena, and Ferme, Brian, “Testamentary Procedure with Special Reference to the Executrix’ in Medieval Women in Southern England (=15 Reading Medieval Studies; 1989), 3-34. Archibald, Elizabeth, Incest and the Medieval Imagination (2001). Arkell, Tom, “The Probate Process, and ‘Interpreting Probate Inventories’ in When Death Do Us Part, ed. Tom Arkell, Nesta Evans, and Nigel Goose (2000), 3-37, 72-102. Aston, Margaret, Thomas Arundel: A Study of Church Life in the Reign of Richard II (1967).

Ault, W. O., “Manor Court and Parish Church in Fifteenth Century England’ (1967) 42 Speculum 53-67.

Baker, J. H., Introduction, The Reports of Sir John Spelman, 1i (= 94 Selden Soc.; 1977). —— ‘Lay Rectors and Chancel Repairs’ (1984) 100 LQR 181-5.

— ‘Dr. Thomas Fastolf and the History of Law Reporting’ (1986) 45 CL] 84-96. — Monuments of Endlesse Labours: English Canonists and their Work 1300-1900 (1998). — An Introduction to English Legal History (4th edn, 2002). — ‘Roman Law at the Third University of England’ (2002) 55 Current Legal Problems 123-50. Baldwin, Frances, Sumptuary Legislation and Personal Regulation in England (1926). Barlow, Frank, Durham Jurisdictional Peculiars (1950).

— The English Church, 1000-1066: A Constitutional History (1963). —— The English Church, 1066-1154 (1979).

Barnes, Patricia, “The Anstey Case’ in A Medieval Miscellany for Doris Mary Stenton (= 36 Pipe Roll Society (n.s.); 1962). Barraclough, Geoffrey, Papal Provisions (1935). — ‘Praxis Beneficiorum (1938) 27 ZRG, Kan. Abt. 94-134. Barrell, A. D. M., “The Ordinance of Provisors of 1343’ (1991) 64 Historical Research (BIHR) 264-77. Barton, J. L., Roman Law in England (= V: 13a IRMAE; 1971). — ‘The Study of Civil Law before 13803 HUO, 1. 519-30. —— ‘The Legal Faculties of Late Medieval Oxford’, HUO, i1. 281-313. — ‘The Faculty of Law, HUO, i11. 357-93. Bassett, W., “Canon Law and the Common Law’ (1978) 29 Hastings Law Jn1 1383-413. Bateson, Mark, and Denton, J. H., ‘Usury and Comital Disinheritance: The Case of Ferrers versus Lancaster, St Paul’s, 1301 (1992) 43 JEH 60-96. Beilby, Mark, “The Profits of Expertise: The Rise of the Civil Lawyers and Chancery Equity’ in Profit, Piety and the Professions in Later Medieval England, ed. Michael Hicks (1990), 72-90. Berman, Harold, Law and Revolution: The Formation of the Western Legal Tradition (1973). — ‘The Origins of Historical Jurisprudence: Coke, Selden, Hale’ (1994) 103 Yale Law Jnl 1651-738.

650 SELECT BIBLIOGRAPHY Bevilacqua, Antonio, Procedure in the Ecclesiastical Courts of the Church of England (1956).

Biancalana, Joseph, “The Writ of Dower and Chapter 49 of Westminster I’ (1990) 49 CL] 91—116.

Boehmer, Heinrich, “Das Eigenkirchentum in England’ in Texte und Forschungen zur englischen Kulturgeschichte: Festgabe fiir Felix Liebermann (1931).

Bolton, Brenda, ‘The Council of London of 1342’ in Councils and Assemblies, ed. C. J. Cuming and Derek Baker (= 7 SCH; 1971), 147-60.

Boulton, Jeremy, ‘Itching after Private Marryings? Marriage Customs in SeventeenthCentury Londor’ (1991) 16 London Jnl 15-34. Boureau, Alain, ‘How Law came to the Monks’ (2000) 167 Past e& Present 29-74. Bowker, Margaret, The Secular Clergy in the Diocese of Lincoln 1492-1520 (1968).

— ‘Some Archdeacons’ Court Books and the Commons’ Supplication against the Ordinaries of 1532’ in The Study of Medieval Records: Essays in Honour of Kathleen Major, ed. D. A. Bullough and R. L. Storey (1971), 282-316.

Boyle, Leonard, “The Curriculum of the Faculty of Canon Law at Oxford in the First Half of the Fourteenth Century’ in Oxford Studies presented to Daniel Callus (=16 Oxford Hist. Society (n.s.); 1964), 135-62. — A Survey of the Vatican Archives and its Medieval Holdings (1972). — Pastoral Care, Clerical Education and Canon Law, 1200-1400 (1981). — ‘The Beginnings of Legal Studies at Oxford’ (1983) 14 Viator 107-31. — ‘The Canon Law before 1380, HUO), i. 531—64. Brand, Paul, “New Light on the Anstey Case’ (1983) 15 Essex Archaeology and History 68-83. —— The Origins of the English Legal Profession (1992). ——‘ “Deserving” and “Undeserving” Wives: Earning and Forfeiting Dower in Medieval England’ (2001) 22 JLH 1-20. Brentano, Robert, York Metropolitan Jurisdiction and Papal Judges Delegate 1279-1296 (1959). — Two Churches: England and Italy in the Thirteenth Century (1968). Brett, Martin, The English Church under Henry I (1975). — ‘Canon Law and Litigation: The Century before Gratian’ in Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen, ed. M. J. Franklin and Christopher Harper-Bill (1995), 21-40.

— ‘Theodore and the Latin Canon Law in Archbishop Theodore: Commemorative Studies, ed. Michael Lapidge (1995), 120-40. Brigden, Susan, “Tithe Controversy in Reformation London’, (1981) 32 JEH 285-301.

Brinkworth, E. R. C., “The Laudian Church in Buckinghamshire’ (1955-6) 5 Univ. of Birmingham Historical Jnl 31-59. — Shakespeare and the Bawdy Court of Stratford (1972). Brooke, C. N. L., “Gregorian Reform in Action: Clerical Marriage in England, 1050-1200’ (1956) 12 Cambridge Historical Jnl 1-21. Brooke, Z. N., The English Church and the Papacy (1952, repr. 1968).

Brown, Roger Lee, Pews, Benches and Seats: Being a History of the Church Pew in Wales (1998).

Brown, Sandra, The Medieval Courts of the York Minster Peculiar (York, 1984).

CANON LAW & ECCLESIASTICAL JURISDICTION IN ENGLAND 651

Browne, A. L., “The Medieval Officials Principal of Rochester’ (1940) 53 Archaeologia Cantiana 26-61. Brundage, James A., “English-Trained Canonists in the Middle Ages: A Statistical Analysis of a Social Group’ in Law-Making and Law-Makers in British History, ed. Alan Harding (1980), 64-78.

— ‘The Bar of the Ely Consistory Court in the Fourteenth Century: Advocates, Proctors and Others’ (1992) 43 JEH 541-60.

— ‘The Cambridge Faculty of Canon Law and the Ecclesiastical Courts of Ely’ in Medieval Cambridge: Essays on the Pre-Reformation University, ed. Patrick Zutshi (1993), 21-45.

Bryson, W. H., ‘Witnesses: A Canonist’s View (1969) 13 AJLH 57-67. Burger, Michael, “Officiales and the familiae of the Bishops of Lincoln, 1258-99’ (1990) 16 JMH 39-53.

Capp, Bernard, “The Double Standard Revisited: Plebian Women and Male Sexual Reputation in Early Modern England’ (1999) 162 Past & Present 70-100. Carlson, Eric Josef, Marriage and the English Reformation (1994).

— ‘The Origins, Function, and Status of the Office of Churchwarden’ in The World of Rural Dissenters, 1520-1725, ed. Margaret Spufford (1995), 164-207.

Caspary, Gerard, “The Deposition of Richard II and the canon law’ in Proc. Second International Congress of Medieval Canon Law, ed. Stephan Kuttner and J. J. Ryan (1965), 189-206. Cate, James Lea, “The Church and Market Reform in England during the Reign of Henry HT’ in Medieval and Historiographical Essays in Honor of James Westfall Thompson (1938), 27-65.

Catto, Jeremy, “Masters, Patrons and the Careers of Graduates in Fifteenth-Century England’ in Concepts and Patterns of Service in the Later Middle Ages, ed. Anne Curry and

Elizabeth Matthew (2000), 52-63. Chaney, William, ‘Anglo-Saxon Church Dues: A Study in Historical Continuity’ (1963) 32 Church History 268-77. Chapman, Colin, Ecclesiastical Courts, their Officials and their Records (1992). Cheney, C. R., Episcopal Visitation of the Monasteries in the Thirteenth Century (1931). — ‘Legislation of the Medieval English Church’ (1935) 50 EHR 193-224. — English Synodalia of the Thirteenth Century (1941). — English Bishops’ Chancerites, 1100-1250 (1950). —— From Becket to Langton: English Church Government 1170-1213 (1956).

— ‘Rules for the Observance of Feast-Days in Medieval England’ (1961) 34 BIHR 117-47.

— ‘An Annotator of Durham Cathedral MS. C.III.3, and unpublished Decretals of Innocent IIT (1967) 11 SG 39-68. — Notaries Public in England in the Thirteenth and Fourteenth Centuries (1972). —— The Papacy and England, 12th-14th Centuries (1982). Cheney, Mary, ‘The Compromise of Avranches of 1172 and the Spread of Canon Law in England’ (1941) 56 EHR 177-97. — Roger, Bishop of Worcester 1164-1179 (1980).

652 SELECT BIBLIOGRAPHY Cheney, Mary, ‘Possessio/proprietas in Ecclesiastical Courts in Mid-twelfth-century England’ in Law and Government in Medieval England and Normandy, ed. George Garnett and John Hudson (1994), 245-54. Cheyette, Fredric, “Kings, Courts, Cures, and Sinecures: The Statute of Provisors and the Common Law’ (1963) 19 Traditio 295-349. Chodorow, Stanley, ‘Custom, Roman Canon Law, Economic Interests in Late TwelfthCentury England’ in Grundlagen des Rechts, 291-9. Chrimes, S. B., “The Constitutional Ideas of Dr John Cowell’ (1949) 64 EHR 461-87. Churchill, E. F, “Dispensations under the Tudors and Stuarts’ (1919) 34 EHR 409-15.

Churchill, Irene, Canterbury Administration: The Administrative Machinery of the Archbishop of Canterbury Illustrated from Original Records (1933).

Clark, Elaine, “Some Aspects of Social Security in Medieval England’ (1982) 7 Jnl Family History 307-20. Clark, Richard, “Why was the Re-establishment of the Church of England in 1662 Possible? Derbyshire: A Provincial Perspective’ (1983) 8 Midland History 86-105. Clegg, Cyndia, Press Censorship in Jacobean England (2001). Cobban, Alan, “Theology and Law in the Medieval Colleges of Oxford and Cambridge’ (1982-3) 65 Bull. JRUL 57-77.

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Deeley, Ann, ‘Papal Provision and Royal Rights of Patronage in the Early Fourteenth Century’ (1928) 43 EHR 497-527. Denton, J. H., English Royal Free Chapels 1100-1300 (1970).

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654 SELECT BIBLIOGRAPHY Drew, Charles, Early Parochial Organization in England: The Origins of the Office of Churchwarden (1954). Driver, J. T., “The Papacy and the Diocese of Hereford, 1307-1377’ (1947) 145 CQR 31-47. Duffy, Eamon, The Stripping of the Altars: Traditional Religion in England, c.1480-—c.1580 (1992).

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CANON LAW & ECCLESIASTICAL JURISDICTION IN ENGLAND 655 — and Le Bras, Gabriel, Histoire des collections canoniques en occident deputs les Fausses Décrétales jusqu'au Décret de Gratien (1931, repr. 1972).

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656 SELECT BIBLIOGRAPHY Haines, Roy, “Education in English Ecclesiastical Legislation of the Later Middle Ages’ in Councils and Assemblies, ed. C. J. Cuming and Derek Baker (= 7 SCH; 1971), 161-75. — Archbishop John Stratford (1986). — Ecclesia anglicana: Studies in the English Church of the Later Middle Ages (1989). Haren, Michael J., Sin and Society in Fourteenth-Century England (2000). — ‘The Will of Master John de Belvoir’ (1996) 58 Mediaeval Studies 119-37. Hall, Hubert, ‘Some Elizabethan Penances in the Diocese of Ely’ (1907) 1 TRHS (3rd set.) 263-77.

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Parker, Kenneth, ‘Richard Greenham’s “Spiritual Physicke”: The Comfort of Afflicted Consciences in Elizabethan Pastoral Care’ in Penitence in the Age of Reformations, ed. Katharine Lualdi and Anne Thayer (2000), 71-83.

662 SELECT BIBLIOGRAPHY Pedersen, Frederik, ‘Romeo and Juliet of Stonegate’: A Medieval Marriage in Crisis (1995).

— Marriage Disputes in Medieval England (2000). Pennington, Kenneth, The Prince and the Law, 1200-1600 (1993). —— ‘The ius commune, Suretyship and Magna Carta’ (2000) 11 RIDC 255-74. Perroy, Edouard, L’Angleterre et le grand schisme d’Occident (1933).

Peters, Christine, “Gender, Sacrament and Ritual: The Making and Meaning of Marriage in Late Medieval and Early Modern England’ (2000) 169 Past & Present 63-96. Peters, Robert, Oculus Episcopi: Administration of the Archdeaconry of St Albans 1580-1625 (1963).

Pfander, H. G., “Some Medieval Manuals of Religious Instruction in England and Observations on Chaucer’s Parson’s Tale’ (1936) 35 Jnl English and German Philology 243-58.

Pollock, Frederick, and Maitland, F W., The History of English Law before the Time of Edward I (2nd edn, 1898; repr. 1968). Poos, L. R., “The Heavy-Handed Marriage Counsellor: Regulating Marriage in some LaterMedieval English Local Ecclesiastical-Court Jurisdictions’ (1995) 39 AJLH 291-309. — ‘Sex, Lies, and the Church Courts of Pre-Reformation England’ (1995) 25 Jnl Interdisciplinary History 585-607.

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Pruett, John, The Parish Clergy under the Later Stuarts (1978). Pryce, Huw, Native Law and the Church in Medieval Wales (1993). Purvis, J. S., A Mediaeval Act Book, with some Account of Ecclesiastical Jurisdiction at York (1943).

Putnam, Bertha, ‘Maximum Wage-Laws for Priests after the Black Death, 1348-1381’ (1915) 21 American Historical Review 12-32. Quaife, G. R., Wanton Wenches and Wayward Wives (1979). Raban, Sandra, Mortmain Legislation and the English Church 1279-1500 (1982). Ramsey, Nigel, “Scriveners and Notaries as Legal Intermediaries in Later Medieval England’ in Enterprise and Individuals in Fifteenth-Century England, ed. Jennifer Kermode (1991), 118-31. Rasche, Ulrich, “The Early Phase of Appropriation of Parish Churches in Medieval England’ (2000) 26 JMH 213-37. Rathbone, Eleanor, “Roman Law in the Anglo-Norman Realm’ (1967) 11 SG 255-71.

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— ‘The Right of the Church: The Clergy, Tithe and the Courts at York, 1540-1640’ in The Church and Wealth, ed. W. J. Sheils and Diana Wood (= 24 SCH; 1987), 231-55. Simpson, A. W. B., A History of the Common Law of Contract (1975). Smart, Stefan, ‘John Foxe and “The Story of Richard Hun, Martyr”’ (1986) 37 JEH 1-14. Smith, D. M., “The York Institution Act Books: Diocesan Registration in the Sixteenth Century’ (1978) 13 Archives 171-9.

664 SELECT BIBLIOGRAPHY Smith, D. M., “The “officialis” of the Bishop in Twelfth- and Thirteenth-Century England:

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CANON LAW & ECCLESIASTICAL JURISDICTION IN ENGLAND 665 Tanner, Norman, The Church in Late Medieval Norwich, 1370-1532 (1984). Tarver, Anne, Church Court Records: An Introduction for Family and Local Historians (1995).

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Waddams, S. M., Sexual Slander in Nineteenth-Century England: Defamation in the Ecclesiastical Courts, 1815-1855 (2000).

666 SELECT BIBLIOGRAPHY Wall, Alison, “For Love, Money or Politics? A Clandestine Marriage and the Elizabethan Court of Arches’ (1995) 38 Historical Jnl 511-33.

Walters, D. B. ‘Roman and Romano-Canonical Law and Procedure in Wales’ (1991) 15 Recueil de Mémoires et Travaux (Faculté de droit et des sciences économiques de Montpellier) 67-102. Ware, Sedley L., The Elizabethan Parish in its Ecclesiastical and Financial Aspects (1908). Waugh, W. T., “The Great Statute of Praemunire’ (1922) 37 EHR 173-205. Webster, Tom, Godly Clergy in Early Stuart England (1997).

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Zimmermann, Reinhard, The Law of Obligations: Roman Foundations of the Civilian Tradition (1990). Zulueta, Francis de, and Stein, Peter, The Teaching of Roman Law in England around 1200 (8 Selden Soc., (supp. ser.); 1990). Zutshi, P. N. R., ‘Proctors Acting for English Petitioners in the Chancery of the Avignon Popes (1305-1378)’ (1984) 35 JEH 15-29.

— ‘Notaries Public in England in the Fourteenth and Fifteenth Centuries’ (1996) 23 Historia instituciones documentos 421-33.

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INDEX OF NAMES AND PLACES Aclea (?Oakley), synod at 16 Berkshire, archdeaconry 308-9

Adam, citation of 318 Bernard of Parma 95

fEthelbald, king 49 Bernard, St 88

Ethelbert, king 6, 13, 19, 36, 45-6, 50, 494 Bever, Thomas 242 €thelred, king 14, 23, 27, 34, 42, 47-8, 59, 468 Bilney, Thomas 641

Ethelstan, king 42 Blackstone, William 433-4, 455, 467, 557

Alciatus, Andreas 248 Bologna, study of law in 69, 75, 80, 82, 84, 86,

Alcuin 13, 28, 56 95, 121-3, 190, 195, 206 Alexander ITI, pope 93, 97, 115, 139, 152, 352, Boniface, St 13, 38, 47, 49

385, 392-3, 450, 525 Boniface VIII, pope 92, 95, 149-50, 514 Alfred, king 6, 35-6, 47, 50, 60 Boniface IX, pope 179

Ambrose, St 41, 203—4 Bracton 260

Ancharano, Petrus de 257 Bristol, diocese 293 Andreae, Joannes 95, 149-50, 195-6, 201, 499 Britton 629

Anselm, archbishop 112-3, 190 Brooke, Robert 260, 414, 424

Anselm of Lucca 92 Brooke, Z. N. 72, 74

Anstey case 98-9 Budé, Guillaume 248

Antonius de Butrio 195 Burchard of Worms 70-1, 73

Apulia 391 Burgh, John de 204, 260 Aquinas, Thomas 463, 571, 573 Burgh, Richard 214 Arnulf of Lisieux 123

Arundel, Thomas, archbishop 162 Caesar, Sir Julius 262 Augustine of Canterbury 1-3, 181, 240 Cagnolus, Hieronymus 253 correspondence with Pope Gregory I 4-11, Cambridge, university

45, 72, 81, 93, 269, 496, 637 canon law faculty closed 243 mission to England 2-4, 19-21, 51 canon law study survives 247 Augustine of Hippo 41, 76, 171, 204, 541-2 elections at 494

Ayton, John 202, 318, 426 graduates 199, 203 legal education at 145, 189, 172, 190, 243

Baconthorpe, John 196—7 origins of 124, 131-2

Baldus de Ubaldis 84, 244 Regius professors 243, 245-6 Bancroft, Richard, archbishop 220, 300 requirements for degrees 189, 245

Barbatia, Andreas 257 Canterbury, diocese

Barcelona 202, 417 archbishops 19, 21, 107, 158, 212-13, 352-3

Barrow, Henry 625 archdeacon 496

Bartholomew, bishop 79, 123 courts of 216, 222—4, 289, 344 Bartholomew of Brescia 80, 128-9 litigation at 230, 308, 360, 363, 421-2, 444, Bartolus of Saxoferrato 84, 195, 260, 402, 581 540, 592, 623

Bateman, William, bishop 203 schools at 12, 14 Bath and Wells, diocese 222, 239, 493, 615, 641 Canterbury, province

Battle abbey 126 appeals in 139

Becket, Thomas, archbishop 110, 114, 117-18, councils held at 17, 21, 159, 162 see also

123-4, 127-8, 315, 359, 508-9 Convocation

Bede, the Venerable 3,5, 13, 22-3, 29, courts of 215-16, 230, 289, 293

46-7, 54, 425 early history of 20, 22

670 INDEX OF NAMES AND PLACES Canterbury, province (cont.) Durantis, William 80, 312, 344, 374, 391, 606 archbishop’s prerogatives 212-13, 428 see also © Durham, diocese

Prerogative Court of Canterbury bishops of 100, 133, 201, 488, 519

relation to York 264 courts at 258-9, 364, 426

Carew, George 271 records at 262, 292, 297 Carlisle, diocese

courts at 426, 448, 466 Ecgbert, archbishop 28

records at 291 Eden river 448

Carlton, George 437 Eden, Thomas 252-3 Catherine of Aragon, queen 206 Edgar, king 39, 43, 58 Cecil, William 243 Edward I, king 141, 373,514

Challock, parish 457 Edward IT, king 264, 594 Chappuis, Jean 150 Edward VI, king 230, 235, 277 Charlemagne 13, 26, 28, 83 Elizabeth I, queen 167-8, 211, 223-4, 241,

Charles I, king 238, 273 271-3, 369, 606 Chaucer, Geoffrey 441 Elveden, Walter of 204 Chelsea, council of 37, 39 Ely, diocese

Chester, diocese bishops of 166, 183, 253, 393, 418 cathedral of 215 courts in 215, 222, 253, 470, 625, 633 courts in 308, 426, 550, 613 Erasmus 187

Chichester, diocese Ernulf, bishop 74

bishops 131, 133, 197 Essex, archdeaconry 290, 386

courts in 307-8 Exeter, diocese

Chobham, Thomas 131, 201, 549 bishops of 27, 79, 123, 178,519 Christ’s College, Cambridge 491 courts in 214, 222, 308-9

Christina of Markyate 135 law taught at 131 Clarus, Julius 193, 579, 639

Clement V, pope 150 Fastolf, Thomas 202-3, 210 Clerke, Francis 255-6, 258, 313, 333, 336, 349,401 + Ferrarius, Petrus 248, 292

Clerke, William 258 Finingham, Robert 206

Clovesho, councils of 15, 17, 24, 37-8, 58 Fitzherbert, Anthony 257, 260

Cnut, king 37, 46, 50, 57, 59 Fleetwood, William 270 Coke, Sir Edward 246, 251, 413, 463-4 Fleta 629

Colchester, archdeaconry 308 Foliot, Gilbert, bishop 123, 125

Colet, John, dean 147, 228 Four Doctors, of Bologna 84 Colmore, Clement 258-9, 262, 297 Fox, Richard, bishop 519

Conset, Henry 314, 325, 349 Foxe, John 267, 641

Cope, Anthony 243 France, church in

Cosin, Richard 251, 279, 579, 600 canonical learning in 73, 80, 206, 587

Coulton, G. G. 469 compared with England 59, 296, 307, 360, Covarruvias, Didacus 193, 253 510-11, 514, 522, 557

Cowell, John 244, 246-7, 617 described 59, 131, 180-1, 240 Crashaw, William 256, 450 ecclesiastical jurisdiction of 144, 214, 361,

Cravetta, Aymon 260 510, 557

Crispin, Gilbert, abbot 120 Frankfurt, council of 28

Cromwell, Thomas 185, 270 Fulbecke, William 250, 437

D’Ewes, Simon 264, 300 Garland, William 292 Damian, Peter 91 Gascoigne, Thomas, chancellor of Oxford 178

Daniel 341 Gasquet, F. A., cardinal 469

Dansey, William 219 Gentili, Alberico 246-7 Duck, Arthur 250 Geoffrey of Trani 196, 248, 525

INDEX OF NAMES AND PLACES 671 Gerald of Wales 123, 127, 203 Iberian peninsula, church in

Germany, church in described 26-7, 163

canonical learning 1, 38, 206, 401, 587 inquisition of 143, 642

described 23, 144, 181, 186, 567 laws of 38, 42, 163, 206 traditions and laws 8, 44, 46-7, 54, 83, 391, legal practice in 381

522 Innocent III, pope 96, 116, 128, 132, 138, 170, Glanvill 110, 425, 562 172, 209, 606, 619 Gloucester, diocese 283, 307-8, 633 Innocent IV, pope and canonist 95, 141, 257,

Gratian Ireland

Grandisson, John, bishop 178 260, 396

influence of 69, 79, 100, 197, 259 canonical learning 26, 30-1, 317, 460

life and career 74—9 church in 317, 327, 342 methods of 75-9, 219, 568 clergy of 20, 39 opinions on marriage law rejected 152,524 Irnerius 84

Roman law and 75-6, 86, 567-8 Islip, Simon, archbishop 383 see also Decretum Gratiant Italy, legal heritage of 80, 83, 163, 206, 246, 391 Greenfield, William, archbishop 164, 166, 382 Ivo of Chartres 71-3 Gregory I, pope 2-11, 19-20, 41-2, 45, 72, 96,

171, 269, 496, 637 James I, king 220, 246, 251, 265, 633 Gregory VII, pope 89, 92, 96, 103, 106-7 Jerome, St 41 Gregory IX, pope 94-5, 149, 185, 321, 325-6 Jewel, John, bishop 197-8, 277

Gresham College 244, 252 Johannes Teutonicus 80, 129 Grosseteste, Robert, bishop 119, 195-6, 220 John VII, pope 45

Guala, papal legate 128 John XXII, pope 150, 210 John of Salisbury 79, 125

Hadrian, pope 20 John of Tynemouth 129 Harding, Thomas 198 Judas 491 Harpsfield, Nicholas 235 Justinian 82-3, 88, 553 Harrison, William 243, 378

Haryngton, William 206 Kent, county 17, 422

Hatfield, council of 37 Kent, Thomas 227

Hay, William, canonist 551 Kling, Melchior 248 Heete, Robert 206

Helmsley, parish 458 Lanfranc, archbishop 49, 70, 73-4, 107-8, 112

Henning Goede 292 Lanfrancus de Oriano 292

Henricus de Susa see Hostiensis Langton, Stephen, archbishop 133, 572, 619

Henry I, king 102, 113 Laud, William, archbishop 264, 284, 472, 502 Henry II, king 79, 114, 117, 123-4, 137, 175-6, Legge, Thomas 253

315, 359, 508 Leicester, archdeaconry 425 Henry HI, king 128, 185 Leofric, bishop 27 Henry VIII, king 167, 206, 241, 270, 272, 629 Leofwine, bishop 49

Hertford, council of 15, 37 Leverington, parish 418 Hereford, diocese 20, 222, 289, 363, 422 Lichfield, diocese

Higden, Ranulf 204 bishops of 49

Hodnet, parish 457 courts at 222-3, 230, 235, 283, 308, 548,

Honorius, master 129 551

Honorius III, pope 189, 198 early history of 20, 49 Hostiensis 95, 155, 190-1, 257, 340, 352, 365, Lillebonne, Council of 109

448, 479 Lincoln, diocese

Hugh of Lincoln, bishop 127 bishops of 108-9, 122, 131, 160, 200

Huguccio 80, 129, 196 dean and chapter of 217

Hunne, Richard 278 litigation in 159, 233, 449, 528, 583, 632

672 INDEX OF NAMES AND PLACES

London Oldradus da Ponte 210 bishops of 223, 372, 428, 502 Oswulf, duke 17

city of 108, 227, 245, 252, 328, 381, 501 Otho, cardinal 202

Councils at 132, 136, 221, 414, 469 Ottobuono, cardinal 202, 428 customs of 425-6, 428-9, 435 Oxford, Council of 1222 133, 157, 191,

diocese of 19-20, 307-8 572-5, 577-8, 582 ecclesiastical courts in 214, 216, 223-4, 227, Oxford university of

251, 261, 291, 363, 589, 596, 603 early law teaching at 122-4, 130-1

payment of tithes in 451-2 elections at 494

Low Countries, legal practice in 380 graduates 199, 223

Lyndwood, William nature of legal study at 130, 188, 190,

life and career 205-6 193-5, 243-8

opinions of 138, 174, 217, 220, 232, 315, Regius professors in 243, 245-6 319-20, 332, 358, 366-7, 375, 468, requirements for degrees 188, 190, 245 479, 585

Provinciale 133, 157, 194, 202, 330, 333 Pagula, William of 202, 204

reputation of 205, 257, 260 Panormitanus 95, 193, 195, 247, 257, 260, 425, testamentary law and 387-9, 394-6, 403, 414, 451, 453, 494

417-18, 425 Paris, university of 86, 129, 196 Parker, Matthew, archbishop 243, 286, 544

Maitland, F. W. 3, 83, 96, 201, 209, 315-16, 405, Parkhurst, John, bishop 293, 482

432, 477, 640 Paucapalea 79

attitude towards canon law 81, 143, 388,392, Paulinus, bishop 19

511-13, 535, 636 Pavia, study of law at 73, 83, 107

characterization of English law 315-16, 337, Peckius, Petrus 253

373, 421, 432, 621 Pecock, Reginald 197

characterization of marriage law 521, 524, Penafort, Raymond of 94-5, 201

542 Peterborough, diocese 633

description of English civilians 248, 573 Petre, William 185

dispute with Stubbs 161-2, 367, 479-81, 573 Philip the Fair, king (of France) 514

Malling, parish 517 Plowden, Edmund 260, 369 Mantica, Franciscus 193, 210, 260 Pollard, Richard 185

Maranta, Robertus 248, 313 Poore, Richard, bishop 133, 136

March, John 260 Pseudo-Bede 31, 34

Marten, Henry 179, 574 Pseudo-Isidore 26-7, 29, 72, 74, 76

Martin V, pope 179, 574 Pucelle, Gerard 126, 129 Mary I, queen 211, 230, 234—5, 640-2

Mascardus, Josephus 193, 609 Rabelais 187

Menochius, Jacobus 193, 331 Rebuffus, Petrus 247, 257

Mirk, John 204 Regino of Priim 15, 32, 71

More, Thomas 228, 641 Reims, archbishop of 47, 141 Mynsinger, Joachim 253, 258, 292 Ricardus Anglicus 130, 201 Richard of Dover, archbishop 129

Nicholas of Lyra 191 Richard Wich, bishop 131

Northampton, law taught at 122 Richmond, archdeaconry 138, 486 Norwich, diocese 120, 203, 283, 293, 493 Ridley, Thomas 251, 304, 595 Rievaulx, abbey 458

Oda, archibishop 39, 45, 47, 58, 544 Robert of Flamborough 131, 201

Odo of Bayeux, bishop 107 Robert of Torigny 121

Odo of Sully, bishop 133 Rochester, diocese 289, 421, 443, 535, 633

Offa, king 20,55 Roffredus of Benevento 391

INDEX OF NAMES AND PLACES 673 Roger of Worcester, bishop 126, 138 Todeworth, William 191

Romeo and Juliet 527, 541 Toulouse, see of 260, 292

Russell, William 447 Tuschus, Cardinal 193 Ryves, Thomas 460 Usk, Adam 195, 489 Salisbury, diocese

bishops 198 Vacarius 121-4

cathedral 199 Valla, Laurenzo 248 courts in 224, 283-4, 307, 538-9 Venice 454 diocese of 133, 199, 202, 489, 538, 556

Sampson, abbot 128 Whitby, synod of 3, 29, 38 Sanchez, Thomas 193, 254, 525, 534, 542, Wilfrid, bishop 13, 42

549, 558-9 William “de Montibus’ 131

Sandeus, Felinus 210 William I, king 58, 106-7, 108-10, 112, 140,

Schenck, Fredericus 292 475

Scotland, law of 174, 222 William I, king 112-13

Selden, John 256, 436-7 William of Drogheda 81, 130, 201, 209, 221,

Simon de Asceles 132 225, 313

Smith, Thomas 240, 245 William of St Calais, bishop 107

Smithfield 642 William of Wykeham, bishop 206

Sohm, Rudolf 2 Winchester, diocese 235, 289, 454, 633 Solomon, judgment of 331 Wiseman, Robert 249-50

Somercote, Lawrence of 491 Wolsey, Thomas, archbishop 160

Southwark, stews in 631 Worcester, diocese Spain see Iberian peninsula bishops of 12, 126, 128

St Alban’s, archdeaconry 504, 634, 637 courts at 215, 222, 153, 633 St Paul’s Cathedral, London 228, 299, 328 diocese 20, 252, 470

Stephen, king 110, 114, 121 Wotton, Nicholas 212 Stratford, John, archbishop 163, 414, 424 Wulfstan, archbishop 1, 3, 29, 37, 46-7, 58-9

Stubbs, William 161-2 Wycliff, John 162 Swinburne, Henry

career 248-9, 243-4, 262, 376 York, province of 13, 19, 159, 264, 353, 425, 572

on spousals 526, 532, 550 courts of 214, 216, 224, 235, 254, 291, 360, on testaments 254—5, 389, 401-3, 415, 396, 488

418, 428-9 litigation at 235, 295, 361, 372, 379, 422, 425, 443—4, 458, 527, 564

Tabor, Mark 238-9, 306 minster 199, 218, 248

Tancred, canonist 80, 318, 349 records at 262, 289, 397, 506 Theobald, archbishop 79, 121, 125 shire 202, 426, 482, 629 Theodore, archbishop 12-15, 19, 27, 32-3,

41-2,51,57 Zasius, Ulrich 248, 591

Thomas of Chobham 131, 201, 549 Zerola, Thomas 248

Thorney, abbey 197 Zouche, Richard 246, 250

Blank page

INDEX OF SUBJECTS abandonment of litigation 328, 526 see also numbers 235, 238

settlement of litigation training 191, 240

abbots, roles of 20, 33, 38, 112-13, 119, 158 advowsons

abjuration canon law and 177, 478-9

of heresy 640-1 disputes over 175, 478, 486 of the realm 174, 498 nature of 477-8 sub pena nubendi 546-7, 563 royal jurisdiction over 115, 176, 461,

abortion, crime of 631 477-80, 491

absolution, from excommunication see also benefices; ius patronatus;

papal court and 209, 505-6 patronage, lay

payment for 239, 622 llfric’s Pastoral Letters 28, 48 requirements 361, 496, 506—7, 574, 586, 622 aestimatio of injury 123, 586

abuse, verbal 507, 529, 590, 636 see also affinity, impediment of see consanguinity

convicium, iniuria and affinity

accountings, judicial 255, 376-7, 416, 418 age accusatio, law of 77-8, 115, 513, 519, 605-7 confession of 329

Actor et reus 130,215 consent for marriage 267

administration of estates minority 395 see also children choices for 281, 409, 414, 490 old 371, 420

described 414-16 required for ordination 274-5 informal 412, 420 278, 414, 458, 477, 494, 498, 500

improvident grant of 293 alienation of property, wrongful 148, 156-7,

of clerics 259, 281 aliens, rights and disabilities of 178, 180

admiralty alms

requirements of 373, 376, 411 alimony, grant of 287, 558-60 courts of 211, 227, 246, 252, 262 gifts in 32, 51-2, 268, 276, 469

law of 246, 251, 357 distribution of 469-70

admonitions land held in free 115 fraternal 606-7 see also Poor Law judicial 295, 386, 606, 608, 635-6, 642 amende honorable 587

pious 624, 636 Anglo-Saxon Chronicle 16, 465 adultery Anglo-Saxons canon law 50, 165, 151, 602 learning among 1-2, 27-30 defamation of 580, 586, 598 legislation of 13, 36-7, 43, 57-8, 102, 270, legal consequences of 45, 528, 552-4, 562, 628 433, 465 see also individual kings

proof of 261, 301-2, 331, 341 precedents from 52-4, 60—2, 168, 185, punishment of 50-1, 237, 600, 613, 624, 270, 358

626-8 animals see also fornication; incest dogs in church 635

advocates magic used on 634 careers 207, 222 sale of 364 distinguished from proctors 167, 213-14, sodomy with 629

222-3, 225, 262 tithes on 257, 438-9, 446-7, 453, 457-8, income 225, 387 472 judges chosen from 188, 224, 258 trusts including 364

676 INDEX OF SUBJECTS annual pensions Auctoritate dei patris, constitution 572-4, 585,

causa required 369, 372 590, 593

compared with annuities 369 audience, courts of 213, 216, 337, 490

jurisdiction over 371-2 Audientia, papal 95-100, 208-9 limitations on 369 augmentation of vicarages 166, 459-60

uses of 369-72, 489 avarice 238, 298, 355

usury prohibitions and 370 Avranches, compromise of 116-17 writs of prohibition and 372

anti-clericalism 505-8, 636 banishment, as sanction 623—4 apology, public 593, 618, 622-3 bankruptcy 276, 376, 411-12, 420 apostasy 60, 111,516, 602 banns, in marriage law 212, 267, 523-4, 531,

apostoli 350 535, 547, 564 appeals fonts for 22-3, 262 abuses in 167, 349 law of 60, 87, 117, 253, 629 apparitors 214, 217, 238-9, 317-21, 409 baptism

direct 349-51 sign of the Cross in 262

forms of 289-90 bastardy see illegitimacy

from archdeacons 213 bawdy courts, ecclesiastical courts as 297-8, 602

interlocutory 349-51 benefices

law governing 115, 182, 345, 348-53 admission to 481-7, 491 restraint of 116, 136, 148, 153, 168-9, as property right 477-9

208, 349 burden of pensions on 372

to papal court 81, 92, 96, 98, 168, 179, 352, holding incompatible 483, 518

487-8 inheritance of 48, 286

arbitration 484-7

tuitorial 351-3, 490-1 litigation over 155, 172-3, 178, 211, 337,

alternative to litigation 328, 446, 504 plenarty 490 enforcement of awards 362 pluralities 154, 182, 205, 212, 225, 265 archbishops, see Canterbury, York presentations to 483-4

archdeacons reserved to papacy 153-4, 178, 479 Anglo-Saxon 21, 136 residence required 189, 518

careers and status 137, 199, 269, 397, 429 sequestration of 487 legal jurisdiction of 108, 115, 135-7, 213, stream of income from 182, 370-1, 478

216-17, 219-21, 397, 428-9 see also parish churches; ius patronatus Arches, court of 213, 216, 228, 261, 342, 490, 583 beneficium divisionis 261

arrest, see freedom, from arrest; imprisonment benefit of clergy

arson 105, 117, 151, 494, 602 civil 508-10 see also privilegium fori articles, procedural use of 322 criminal 117, 181, 273, 511-14 articles of inquiry 610 see also visitations Bible

Articuli cleri 120, 177, 303, 433 Anglo-Saxons and 8-10, 13, 29-30

assemblies place in canon law 69, 76, 78, 172, 312, 331, clerical 103, 157-8, 271 334, 378, 435-6, 601, 607 see also Convocation; synods reading encouraged 266

laity and 17-18, 514-15 translation of 162

mixed 18-19, 168, 184, 284, 294-5 bigamy, prohibition of 184, 276, 555, 623

see also synods bishops

assessors, legal 215 appeals to from court of officialis 153 assumpsit 358-9, 367 attitudes to common law 487, 508-9, 512

asylum see sanctuary canonical authority of 21, 38, 101, 175, 219, attacks, on clerical order 56, 103, 129, 209, 351-2, 383

505-8, 627 choice of 21, 106, 116, 492-4

attestations see depositions conflicts with archdeacons 135-6, 429

INDEX OF SUBJECTS 677 courts of see audience, courts of; consistory general knowledge of 195-200

courts nature of 171—5, 207, 233

criminal conduct of 77-8 possible revision of 167-8, 241, 267, 297

discretion of 509-10, 513 practice and 497-8, 515-17, 602

dues owed to 43, 150 scholarship of 186, 188 education of 199 scope of 104-6, 141, 152, 170-4, 355-7, 475 election of 491-2 spread in England 124-8, 131-2

licences from 369 succession and 427-9

mandates of 157-8 study abolished at Reformation, 243-4 responsibilities of 77, 266, 287, 481-2, study continued after Reformation, 247-8

509-10, 607 canonists

rights of 480, 493 achievements of 100-6, 507, 546

translation of 90 Anglo-Norman 93-4, 128-32

blasphemy 390, 604

Black Death, effects of 160, 382, 480 attitudes towards Roman law 86-7, 173,

definition of 204, 618, 627, 636—7 criminal law and 626-7

heinousness of 618, 627 excommunication and 164—5 jurisdiction over 276, 607 see also ius commune; jurists punishment of 565, 599, 636-7 canons of 1597 624

blindness, disabilities of 340, 402 canons of 1604 265-6, 428, 479, 491, 555, 628

boasting see jactitation canons of 1640 266

bona notabilia 352, 428-9 Catholics, controversies with Protestants 167-9,

bonds, penal 198, 236 see also recusants conditions and 167, 363, 415, 622 causa, requirement of 319, 330, 343, 365, 369, not to remarry 267,555 372, 453 to save harmless 487 cautio see caveats

to secure performance 86, 305 caveats, use of 289, 313,415 Bourges, Pragmatic Sanction 180 celibacy, promotion of 542

brawling 276, 280, 495, 635 chancels

breach of faith 120, 165, 176, 229-31, 233-4, laity excluded from 501

415, 565 repair of 471, 498-9

causa and 361, 365 chancery, English

compared with assumpsit 358-9 accountings in 376

debts enforced as 363 appointment of Delegates 211 disappearance of jurisdiction 366-8 equitable jurisdiction of 199, 311, 376 ecclesiastical jurisdiction over 358-63, 366-8 imprisonment of excommunicates 111, 144,

promises made by 360-2, 364 278, 288, 345, 352

remedies for 365-6 judges in 224

bribery 298-9, 613 masters in 222, 227, 253 bridges, repair of 417 procedure 311, 410

buggery, crime of 117, 276 prohibitions issued by 232-3, 252, 301, 347, burden of proof see proof, law of; presumptions 366

burial testamentary jurisdiction of 422-3, 431

fees for 43, 468 see also mortuaries uses enforced in 422-3 regulation of 24, 392, 495 chancery, papal 67, 81, 93, 96, 150, 170, 209 requirements for Christian 47, 105, 164-5, chantries 369, 443

376, 619 chaplains see clergy, stipendiary

within churches 495 charity

burning, sanction of 619, 639 bequests for 417-18, 469 canon law’s interest 390-1

canon law law of 133, 276, 369, 290-1, 399, 417-19 affected by secular law 169-75, 263 rule of 285-6, 541, 592, 606, 632, 638

678 INDEX OF SUBJECTS charters pollution by bloodshed 60, 150, 619

Anglo-Saxon 2, 16, 63 protection of 477, 497, 618, 635 canon law and 627 secular activities in forbidden 133, 158,

discovery of 410 277, 495

episcopal 127 secular legislation regulating 169-70, 182 evidentiary value 485 see also sacrilege; sanctuary

Great see Magna Carta Circumspecte agatis 118—20, 144, 303, 371, monastic 127, 135 433, 587

royal 333 citation chastity forms of 317-21 solicitation of 629-30 necessity of 108, 208, 318, 492

chattels creditors

vows of 102, 552, 554 of interested parties 320, 612 see also distinguished from land 51-2, 392, 398, 423, outside diocese 280, 353

431-2 peremptory 314, 318

estates in 424 viis et modis 317, 320-1

sacred 517 civilians, English

tithes as lay 462-3 approach to law 147, 186, 250, 280, 292, 341,

children 368, 464, 491, 590, 617

benefices held by 154 attitudes towards canon law 121 bequests to 419-20 attitudes towards careers 234-9, 282, 300 discipline by parents 506, 631 attitudes towards common law 279-80,

duties owed to 244, 256, 377 302-4, 479-81

inheritance by 256, 415, 425-6 attitudes towards papacy 186, 242, 247-8,

marriages of 268, 550-1 281-2

rights over 249, 631 described 200-6, 212, 227 support of 377, 420, 560-1, 635 see also education of 188 see also universities illegitimacy lack of influence on Continent 194-5, 201 Church and State see regnum and sacerdotium use of Roman law by 429, 570, 591 Church Councils, ancient venality of 306

Chalcedon 12, 36, 58, 600 works of 248-63, 332, 341 Nicaea 12, 15, 29, 48 writs of prohibition and 303—5, 414, 434, 460

Church Councils, medieval Clarendon, Constitutions of, 116-18, 120, 125,

Lateran I 41, 472, 492 137, 170, 175-6, 359, 477 Lateran IT 505 Clementines 150-3, 378, 389 Lateran III 127, 378, 392 clergy Lateran IV 132-3, 152, 155, 160, 378, 493, crimes of 79, 114, 117, 338, 511-14, 517-18, 601 541, 572, 604, 618 discipline of 515-20 Lyons 93, 149, 225 disparaging 507-8 Pisa 161 immunities of 56-7, 110-11, 144, 175, 315, 356

Trent 186, 263, 296, 523, 563 imprisonment of 118 churches see parish churches incomes of 153, 175, 369

churchwardens lenient treatment of 625

accounting by 377 marriage of 48-9, 64-5, 107, 134, 181

authority of 418, 442, 470-2, 500, 503, 632 protection of persons of 505-8, 568 presentments by 220, 268, 294—5, 540, 580, qualifications of 101, 151, 274-5, 481-4

607, 610-11, 634 rights and privileges of 24, 56, 103-4

responsibilities of 277, 295, 471, 500-2, salaries of 374-5, 383

504, 629 stipendiary 166, 175, 369, 374-5, 383, 495 testes synodales 24—5 Submission of 167

churchyards trial of disputes between 481 brawling forbidden 176, 180, 274, 495, 635 see also benefit of clergy

INDEX OF SUBJECTS 679 coercion, legal effects of 325, 364, 525, 545 in bequests 407

coinage, regulation of 356 in contracts 364, 487,525 collation, to benefices 154, 480 in marriage 532-4 Collectio Lanfranci see Lanfranc confessions

Collection in Seventy-Four Titles 91-2 auricular 11, 30, 132, 285-6, 518 collections, canonical 14, 25-30, 32, 35, 40, extra-judicial 329-30, 336

69-74, 85, 91-2, 120 judicial 329-30, 555

common lawyers public 588-9, 622, 626 attacks on ecclesiastical jurisdiction 238, 250, qualified 330 301, 306 confiscation of goods 179, 402 attitudes towards ecclesiastical jurisdiction congrés, proof by 547

240, 301-6, 367, 373, 431 conjectures, proof by 560 contacts with civilians 262, 311 conjugal rights, restitution of 535-6 disagreements with civilians 183-4, 231, consanguinity and affinity, impediment

276-7, 259, 302, 460-5 of 48-9, 132, 212, 268, 286, 302,

extent of knowledge of ius commune 145, 311 541-4

Common Pleas, court of 301, 557 conscience

common voice and fame see public voice conflict with positive law 531, 620, 638

and fame role in canon law 209, 288, 299, 338, 386,

commonplace books 192-3, 253 485, 528-9

246, 271 413

Commons, House of 180, 185, 232, 235, consideration, term used by civilians 365, Commons Supplication against the Ordinaries 185 _ consilia 84, 194, 262 communis opinio see jurists, academic, communis consistory courts

opinio of attacks on 243, 399-400

commutation by-passed by appeals 351-2 of penance 32-4, 265, 299, 588, 603, 624-6 collapse of 307-9

of testamentary provisions 418 described 213-16, 240

of vows 102 diversity among 207-8, 342

comparatio litterarum 191, 401 durability of 143-4, 218, 235, 306, 510 compounding 198, 413, 453, 603 see also emergence of 134-5, 139-42, 149

commutation records of 289-92, 309 litigation Continent, legal developments

compromise of litigation see settlement of regulation of 293-4

compurgation connections with England 93-4, 129 alternative to proof 609, 612 contrasted with England 59-60, 67-8, connection with defamation 572 110, 135-6, 194, 214-15, 258, 496,

decline in use 617 555, 602, 607-8

demonstration of innocence 380, 572, 582-3, parallels with England 128, 132-4, 141,

611-12, 616 143-4, 174, 295-6, 476-7, 526

described 335, 586, 608-17 contracts, law of see breach of faith; debt;

ineffectiveness 513, 589, 616 marriage and divorce

jurists’ attitude towards 616-17 contumacy

reclaiming against 612-13 charges for 317, 347-8

reputation 513, 616-17 failure to appear as 327 requirements before admission 118, 512-13, heresy and 153

972-3, 609-11, 613 excommunication and 165, 304, 317, 321,

tithe causes and 442 345, 546, 620-1

wager of law compared 140, 335, 374, 614-15 not covered by general pardons 626

Conciliar movement 147-8, 160 punishment for 283, 348 concubinage 39, 48, 338, 522, 530, 535, 606, 623 rate of 621

conditions convicium, concept of 591-3

680 INDEX OF SUBJECTS Convocation English law and 134, 144, 168, 174, 211,

functions of 514-15 315, 425-6

legislation of 166, 181, 184, 266 source of jurisdiction 207, 217, 219-20,

relation to Parliament 270-1 342, 590 rise of 158-9 source of law 43, 171, 207, 242, 466-71

synods and 159 cy pres see commutation Corpus turis canonict damages, law of

coroner, English 174

compilation 94—5, 130-1, 149-51, 155, bishops collect from clergy 509-10

282 double and treble 290, 304, 445, 455, 460

conciliar decrees in 155 exaggeration of 446

contents described 105, 149-55, 601-2, 631 law of defamation and 585-7

defamation and 568-9 monetary awards prohibited to church 169,

legal education and 189 347, 587-8

Lyndwood and 333 Roman law of 123, 586 number of English disputes 479 death

scope of 378, 384, 391, 491 presumed from absence 332, 530, 555 see also Gratian; Gregorian Decretals punishment by 568, 607, 618-19

Corpus turis civilis debt

academic study 82, 84, 188, 244—-5, 251 actions of 231

availability in England 122, 124 breach of faith and 367 canonists and 85-6, 390, 429 compurgation and 374 see also wager disappearance in early Middle Ages 83 of law obsolescence of parts 87, 429 consequences of 164-5, 638

testamentary law 51, 392 difficulties in proving 373-4, 408 see also Roman law incompleteness of early common law 367 costs see expenses of litigation; fees marital 547-9, 559 councils and synods see synods order of payment 259, 500

counterfeiting see forgery testamentary 373-4

covenant, action of 367 decisiones 194, 203, 210, 260

creditors declinatio fort 183, 218, 324, 357 bankrupt estates and 420 decretals see papal decretals; Gregorian breach of faith and 359 Decretals

fear of 638 Decretum Gratiani legacies to 332 glossing of 129

probate administration and 373, read at Universities 189

411-13, 427 spread in England 124-8

crimes defamation

rights of 165, 255, 293, 320, 413, 426 see also Gratian

canon law 31, 151-3, 496, 600-4 Anglo-Saxon law and 60

classification of 599-600 criminal law and 316, 575-8

impediment of 552-3 English treatise on 260

imputation of 133, 230-3, 575-8 see also in ius commune 566-72

defamation jurisdictional questions 567, 569, 590, 593-6

urgency of suppressing 607-8 malice and falsity, status of 579-85

see under individual crimes of the clergy 507-8

crimina excepta 500, 516 scope of English remedy 574-8, 590-3 cuckoldry, imputation of 291, 577 see also Auctoritate det patris

cura and tutela see guardianship defects, personal

custom legal disabilities 402, 482 see also illegitimacy canon law and 102-3, 170-4, 499 imputation not defamatory 575, 591

church and 4-6 Delegates, court of 169, 211-12, 286, 349, 353

INDEX OF SUBJECTS 681 denunciatio, law of 606 minority 550-1 depositions, of witnesses 142, 214, 311, 327, relative infrequency of 540-1

332-4, 339-41 Parliamentary 556

deprivation, sentences of 477, 518-19, 609 pre-contract 530-2 desuetude, legal 137, 208, 468, 472, 604 prohibited degrees 541-4 see also

detractio, concept of 570-1 consanguinity and affinity,

devises see land, devises of impediment of Dictatus papae 89-92 spiritual affinity 553

dilapidations, law of 156, 229, 278, 333, 338, Doctors Commons 227-8, 235, 238, 291

498-501 double standard, effect of 596

dioceses dower, loss of 562 creation of 19-21, 136 dowry 558-9, 561-2 English 20 drunkenness see also individual dioceses Anglo-Saxon law 31, 33 discord, sowing of see disturbance of the peace; becomes statutory crime 268, 276, 633 scolding boasting of 597 discovery of documents 334, 409-10 defamation and 579, 584 discretion ecclesiastical offence 518, 632-4 of bishops 281, 482, 489, 513, 530 English beer 128

of executors 416, 418, 489 imputation of 592 penances and 11, 31, 163, 622-3, 628 marriage contracts and 529 role in canon law 294, 482, 489 dubia, in ius commune 192 see also judges, ecclesiastical, discretion of due process, concept of 81, 154, 313, 320, 342, 604

dispensations Duplex querela, remedy of 293-4, 490-1 disputes about 212

given hard look 543 ecclesiastical liberty, violation of 55, 114, 229,

law of 72, 105, 151, 483 475, 496-7

requirements for 189 education, legal 95, 122—4, 131-2, 186-94, 230,

dissent, religious 243-8, 275

974-6 491-4

distinguished from defamation on clergy elections, canonical 55-6, 116, 132, 257, 333, distinguished from physical attacks on clergy emperor, Roman 86-7, 89, 112, 249-50

507, 590 episcopal laws 109-10, 475

ecclesiastical jurisdiction and 568 equity

growth of 153, 627, 638 canon law and 275, 430 not treated as heresy 269, 638, 642 concept of 547

suppression of 163, 269, 642 courts of 199, 227, 311 see also heresy; non-conformity estate planning, lack of 397, 406

disturbance of the peace 631-6 estoppel 302

divine law 8, 96, 171, 212, 318, 467, 475, ethics, legal, 225-6

505, 563 evidence, law of see proof

divorce a mensa et thoro ex officio jurisdiction

adultery and 261, 331, 554 alternative to instance 588-9, 602-3

effects of 559-60 Anglo-Saxon antecedents 50, 61-2

mutual consent and 554 distinguished from instance 316, 319, 328, prohibition of marriage after 267, 540, 555-6 472, 538-40, 605

violence and 554-5 levels of 284

divorce a vinculo oaths used in 251-2, 299-300, 305 error as to person or condition 552 promoted 316, 606

force and fear 544-7 exceptions, legal

impediment of crime 552-3 described 317, 323-6

impotence 547-50 dilatory 323-4

682 INDEX OF SUBJECTS exceptions, legal (cont.) fire

frustratory 167, 225, 347 losses caused by 469, 500, 587 in defamation causes 585 punishment of death by 636-7, 642

peremptory 323-4 fishing

Roman law of 324 prohibited on Sundays 385, 623

excommunication tithes and 437, 448

changes in 126-7, 280 fonts, baptismal see baptism, fonts for consequences of 111, 138, 288 forced share, of estate 392, 404, 425

exceptions of 323-4 forgery 98, 105, 151, 393, 400, 602

latae sententiae 128, 151, 153, 299, 495, forgiveness, legal effects of 583-4, 587-8, 623

505-6, 574 see also pardons

medicinal nature of 603-4 formality, of records 443, 457, 471, 473, 574,

public attitudes towards 621-2 585, 610, 642 see also sentences royal officials and 115-16 formularies, in English practice 170-1, 206, sanction 62-3, 153, 286, 313 289-92, 317, 324, 441, 493, 538, 582 testamentary capacity and 395-6 fornication

treatise on 192 Anglo-Saxon law and 31, 50

unjust 288, 299 boasting about 596

executors as crime 298-9, 546, 563, 618, 627-8 de son tort 278 harboring 599, 630-1 decedent’s debts and 373-4 imputation of 576, 579-60, 598

discretion of 418 jurisdiction over 600, 602 duties of 373, 376, 394-5 pre-nuptial 630

of papal provisions 344, 391, 489 Foxe’s Book of Martyrs 267, 641 renunciation of office 411-12 fraudulent conveyances see alienation of

testamentary 53, 231, 391 property, wrongful exhumation of corpses, as penalty 414 freedom

expenses of litigation 99, 224-6, 247, 305, 341, from arrest 104, 159, 175, 496

346-8, 445, 583, 587, 605 in elections 492

marriage and 44-6, 166, 544—7

fabric, of churches see parish churches, repair of of church 55-6, 116, 140, 179-80, 492,

Faculties, court of 212, 286, 371, 557 944-6, 563

faculty jurisdiction 212, 502 of testation 119, 392-3, 401, 404, 414, failure of justice, concept of 356, 423, 490 425-6, 514 Falcidian portion 430-1 see also clergy, immunities of; ecclesiastical fama publica see public voice and fame liberty

fees friars, mendicant 147, 212, 422, 639

bishops 150 friends, role in marriages 527, 531,534, 545 chaplains 166, 374-5

collection of 374-5 games, unlawful 133, 277

contingent 375 gavelkind 421-2 in ecclesiastical courts 166-8, 225-6, 298, gifts, law of

300, 635 deeds of 334

lawyers and 141, 225-6, 307, 348, 375, 382 fraudulent 413-14, 515

probate 409, 416 husband and wife 556

visitors 219 matrimonial 336, 528, 533—4, 550, 561-2 witnesses 339 pious 51, 399 feoffees to uses 421-2 to church 32, 392, 556

fideicommissa 63, 419 to witnesses 339 fides, concept of 391 see also breach of faith usury and 380

fiducia, concept of 419 glossa ordinaria 79-80, 84, 86, 95, 129, 149-50, fiduciaries, responsibilities of 376-7, 411, 419, 421 190, 205, 244, 571

INDEX OF SUBJECTS 683 godparents 553 idleness, offence of 296, 632 grace, letters of 189, 488 illegitimacy (of birth)

gravamina, clerical, 118-20, 144, 177, 180 defamation of 575-91

Greeks, customs among, 47-8 inheritance and 144—5, 556~-8, 561

Gregorian Decretals jurisdiction to determine 557 compilation of 130-1 law of 258, 276, 635 contents described 94—5, 105, 282, 330, 378, ordination and 212, 482, 556

384, 479, 491 illiteracy 172, 319

criminal law and 601, 631 immunities, legal 71, 104, 218, 268, 295,

defamation and 568-72 473, 498, 514-15 see also clergy,

glossing of 95 immunities of taught at universities 189 imprisonment

477 clerics and 512-13 see also Corpus iuris canonici excommunicated persons 111, 277-8, 283,

relation to Liber sextus 150-1, 153, 207, canon law and 512 Gregorian reform, principles of 89, 95, 99, 109, 345, 352, 622

140, 355-6, 475 High Commission and 287-8

guardianship 84, 256, 377, 420, 430 violators of Statute of Praemunire 179, 368

guilds, medieval 362, 377 incest

definition of 302, 544, 618, 628-9

heirship punishment of 38, 50, 237, 599, 628

civillaw 124, 391, 429-30 see also marriage and divorce, law of,

English law 423 prohibited degrees

executor and 391, 395 infamia, concept of 545, 571-2, 576, 615

heresy infanticide, crime of 105, 151, 602, 631 canon law and 147, 152—4, 162, 272, 402, inflation, effects of 300, 304

601-2 inhibitions, judicial 136, 163, 320, 351, 539 601, 638, 642 described 190-1, 569-70, 591, 602

compared with other crimes 38, 77, 516, 554, iniuria, law of

jurisdiction over 601 influence on English court practice 591-2 legislation combating 147 legal remedies for 123, 507, 602

639-42 973, 582

punishment of 153, 559, 601, 607, 618-19, role in law of defamation 190, 290, 569-70,

rise of 161, 197, 607, 640 injunctions, royal 43, 168-9, 220-1, 268, 277, 499 temporal law and 272, 601, 640 innuendo, in defamation causes 578

Hibernensis 26, 29 inquests

High Commission, court of 286-9, 300, 356, clerics accused of crime 511

379, 506, 559, 622 de iure patronatus 484-8 Hispana 26, 29, 120 described 156, 336-8, 511-12

holy days, observance of 145, 158, 273, 377, dilapidations and 501

384-6 marriage law and 539, 549, 557

homicide, crime of of matrons 337, 549

Anglo-Saxon law and 31, 36 proof and 336-8, 484—7 canon law and 33, 105, 151, 600, 602 royal courts and 117-18, 511 see also juries

imputations of 578, 593, 595 inquisitio, law of 607-8

oaths to commit 363 Inquisition, Spanish 608, 639, 642

sanctuary and 117 insanity 395, 402-3, 567

hospitality, clergy’s duty of 468, 518 intent

hospitals 276, 484, 493 importance in canon law 7, 11, 78, 375, 380,

humanists, legal 228, 245, 248 581

Hunne’s Case 278 litigation and 332, 375, 525, 570, 579

hunting 103, 437, 518, 602 statutes and 163, 165, 172, 384

684 INDEX OF SUBJECTS intent (cont.) promote settlement 592-3

testamentary 400-1, 417 qualifications of 97-8, 135, 240, 287, 555

see also malice see also officialis

Interdict juggling, prohibited on Sundays 632 England and 116-17, 619 juridiction gracieuse 360

law of 313, 345, 619 juries

local 473, 619, 621 canon law and 172, 336-7, 485 internal forum 130-1, 201, 209, 285-6, 377, common law 145, 311-12; see also verdicts

548, 600 jurisdiction, ecclesiastical

intestacy 281, 293, 389, 394, 405, 426, 430 see attacks upon 185, 231-2, 243, 301-5, 368-9,

also probate jurisdiction 594-5

inventories of estates 255, 334, 376, 394, 412, 415 correction of sin and 356-7, 587, 606

investiture, lay 89-90, 112-13, 171, 468 defence of 250-2, 304—5

irregularitas, clerical 507, 518 dispersion of 216, 396, 603

ius commune disputes over 115, 118-20, 156, 177-8, 257, compared with common law 325, 329 478-9, 587 literature of 193-5 division from temporal 57, 61, 206 nature of 86—8, 143, 187, 243 enlargement of 276-7, 282-6, 356, 590-3

unity of 313 in personam 345, 422

tus patronatus in rem 183, 280

as causa spiruali annexa 478—9 laymen exercise 182-3

canon law and 100-1, 177 lesser courts and 216-19 disputes decided in royal courts 480 ordinary 139-40, 182, 213, 218, 356

inquests 484—7 principles of 182-4, 206, 314-16, 427, 500,

jurisdiction over 477-81 515-16, 522, 601

ratione materiae 143—4, 510

jactitation, law of ratione personae 110, 144, 601 see also

generally 596-8 privilegium fori

marriage and 536-8, 596-8 see also ex officio jurisdiction

tithes and 252 jurists, academic

jesting 511,614

sexual relations and 597, 629 communis opinio of 271, 318, 336, 370, 395,

against clergy 506, 636 differences of opinion 129, 361

defamatory 332, 584 importance for canon law 69

marriage contracted by 529 methods of 69, 505-6

Jews, disabilities of 356, 378, 451, 552 just price, canon law 355, 377

judges delegate justices of the peace 277, 561, 635 English court of 169, 211-12, 286,

349, 353 King’s Bench, court of 232, 252, 278, 301, 319,

papal 10, 95-100, 138-9, 208-9, 349, 391, 347, 594

441-2 kings, and church government

judges, ecclesiastical authority in 17, 21, 55-6, 107, 116,

appointment of 287 240-1, 493

attitudes to common law 233, 280-1, interference with 145-6

464, 595 royal chapels 217

discretion of 152, 256, 295, 328-9, 338, 348, subject to 103-4

5930, 551, 583, 604, 613-15, 623-4 taxation and 514

examine defendants 613-15 see also prerogatives, royal fallibility recognized 288, 293, 341, 603-4

laymen as 162, 182-3, 211 labourers, regulation of 383-4 limitations on 103, 539 laesio fidei see breach of faith

numbers of 224 laity, and church government

INDEX OF SUBJECTS 685 active role 21,55, 57-8, 101, 103, 152 described 168-81, 263, 270, 272-8, 379 attitudes towards 138, 152, 161, 230, 237, enlarges ecclesiastical jurisdiction 635

297-8, 499, 519-20 interpretation of 175, 183, 241, 278-82, 302

excluded from 516 Reformation and 181-6, 211, 241-2, 263-5

judges in 182 see also Parliament

passive role 103—4, 133, 140, 492, 517 legitim, right of 425-6

spiritual jurisdiction over 104—5, 144, 264 lex talionis 513, 568, 605 land libel and slander see defamation

bequests of income from 423 libellus famosus 568

devises of 52, 421-3 libels

succession to 431-2 articulated 322-3, 326-7 see also uses compared with English writs 315-16 lapse, of right to present 172-3, 275, 480 contents of 163, 169, 232, 261, 291, 315-16,

last wishes 321-3, 326, 373, 411, 576, 582, 588 importance of 392, 400 described 321-3

uncertainties of 406-7 importance in Chancery 232, 305, 366-7 see also verba novissima possible omission of 322

latitat 321 reconventional 322, 580

law of nature see natural law variations in 291, 326, 445, 576, 605

lawyers, ecclesiastical Liber extra see Gregorian Decretals continental treatises known to 235-6 Liber sextus 95, 149-54, 162, 166, 174, 204, 218,

emergence of profession 141-4, 228 617 stability at Reformation 235-6 libraries, contents of 72-4, 192-3, 206, 227-8,

see also civilians, English; Doctors’ 253, 418

Commons Libri feodorum 251

lawyers, secular see common lawyers libri penttentiales 30-5, 130-1

leases limitation of actions

church property 322, 372, 472 defamation and 570, 584-5 ecclesiastical jurisdiction over 407, 424 none in matrimonial causes 529

of tithes 443, 462 litis contestatio 207, 223, 313, 317, 323, 325-7 legacies, directions to pay debts as 373 local courts, jurisdiction of 295, 402, 589, 632-3

legal profession, ecclesiastical Lollards 156, 160, 175, 197, 640

canon law and 221 lunacy see insanity organization of 214, 221-5

professional standards of 80, 154, 221, 225-6 magical arts 61-2, 602, 634

resistance to 96, 141 Magna Carta 55-6, 144-5, 175, 179, 202, 392, see also advocates; Doctors’ Commons; 425,514

proctors maior et sanior pars 154, 471, 492

legates, papal 89, 97, 132, 202, 429 see also malice, legal 268, 579-81, 584 see also intent

judges delegate Manipulus curatorum 200

legislation, ecclesiastical manorial courts 283, 379, 627 conservative character of 132-4 maritime law see admiralty

described 155, 716-18, 265-72 Marprelate tracts 243 dealing with current controversies 147-8, marriage and divorce, law of

156, 159, 162 Alexander III] and 152, 524—5

local, compared with general 205-6 Anglo-Saxons and 7-9, 44—9 relation to secular laws 241-2, 264 conjugal debt 547-9, 559

testaments, law of 392-4 described 152, 524-6

see also Church Councils (ancient and ex officio jurisdiction and 538—40

medieval); Convocation; synods jurisdictional rules 216

legislation, secular laity’s attitudes towards 102, 152,525 curtails ecclesiastical jurisdiction 175-81 litigation levels 229, 564

686 INDEX OF SUBJECTS marriage and divorce, law of (cont.) natural law 171-2, 318, 425, 560 manipulation of 144, 528-9 necessity, legal concept of 77, 137, 336, 384-5, possibility of remarriage after divorce 184, 514, 641

555-6 negligence 490, 500

presumptions favoring marriage 543 night-walking, as plea of the Crown 301-2 prohibited degrees 47-8, 212, 540-4 non-conformity 276, 285 see also dissent, religious see also consanguinity and affinity, Northumbrian Priests’ Law 46-7, 49, 57, 110

impediment of notaries, public

prohibited seasons 631 absence in England 1, 565

marriages Continental use of 83, 214 clandestine 520, 531-2 papal 96

conditional 532-4 presence in England 141, 214, 223 duties of 291 notebooks, student 191-2, 238, 244-5, 258-9,

loss of as legal harm 586 577 see also proctors, notebooks of multiple contracts of 530-2 notoriety, proof by 328, 604, 607

negotiation about 534 novalia 450-1 married women nuisance, law of 501, 504, 633

disabilities of 54, 398, 403—4 nuns 46, 151, 629 see also monks

relations with husbands 559-60, 561-2

maxims, judicial 154, 150, 252-3, 280, 509-10, oaths

5932, 632 et cetera 266

merchants 355-6, 615 illegal 363

mercy, law of 47, 77, 469, 497, 603 in litigation 63, 154, 251, 334-6, 363 miserabiles personae 356—7, 417 see also poverty, jurisdiction based upon 356 see also breach

legal rights of of faith

603 promissory 358

mitigation, in punishment 11, 102, 583, of officials 142, 225-6

mitior sensus rule 577-8, 580 renouncing papal authority 240

monasteries strength of 380 Anglo-Saxon 64—5 validity of 334-5, 363

Dissolution of 229, 311, 371, 443, 494 see also vows; ex officio jurisdiction, oaths

elections in 229, 493 used in

jurisdiction of 216 oeconomus 87

lands held by 439, 450, 458 offerings, spiritual

privileges of 28, 90, 450 Anglo-Saxons and 4-6, 403 rectors of parish churches 479 customary 41, 159, 465-7

see also parish churches, impropriation to, see also mortuaries; Peter’s Pence monastic lands 438, 443-4, 458, 500 officialis, as judge 101, 136, 140-2, 153, 213-15, money, and litigation 98-9, 137, 238, 263, 217, 224, 338, 351, 428-9, 539, 607

299-300 see also avarice opinions of counsel 259, 262

monks oral positions, use of 322 disqualifications of 389, 395, 402, 605 ordeals, legal

education of 128, 189, 200 clerical participation 36, 61, 140 privileges of 443, 450, 458 prohibited 132, 312, 604 reform promoted by 21, 64 ordines judiciarit 128, 130, 142, 312 regulation of 38, 58, 111, 516, 602 ordo iuris, importance 63-4, 127-8, 125, 138,

treated as clerics 34, 159, 212, 601 217, 312-14, 318, 342—5, 557, 604 see also apostasy

mortuaries 43, 242, 278, 415, 467-8 pagan practices see superstition

mos ttalicus 248-9 papacy musicians 236 as legislator 171

murder see homicide as judge 95-6, 208-9

INDEX OF SUBJECTS 687 consent for clerical taxation 514 exchange of benefices by 331

leads reform movement 89-91 qualifications of 481-4 letters of 25, 96-7, 130, 488 relations with parishioners 446, 452, 457 see plenitude of power 104, 115, 185, 192 also tithes rejection of authority 148, 240 rights of 278, 439-41, 454, 457, 462, 466-7 reservation of benefices by 153-4, 178, see also vicars

487-90 past, reverence for 36, 185, 187, 242

ties with England 28, 90, 167-8 patria potestas 190, 429

see also judges delegate, papal patronage, lay, of benefices 23, 177-9, 275-6,

papal court 294, 462, 478-9, 520 appeals to 81, 92, 96, 98, 139, 208, 352 Pauperistae 122-3, 188

cupidity of 180, 542 Peace of God 58-60

described 208-11 peculiars, ecclesiastical 216-18, 224 litigation at 154-5, 178, 211, 478 penances papal decretals 81, 87, 92-5, 130, 194, 242, 267 arbitrary 77, 131, 623

see also Gregorian Decretals commutation of 265, 298-9, 624-5

papal schism 147-8, 156, 160 described 622—4

paraphernalia 403 fixed 30-2, 35

pardons private 286 by church 271, 482 public, 286, 316, 346, 589 by injured party 584—5, 588 schedules 623

by king 271 vicarious 32 general 281, 626 penitential forum see internal forum

parent and child see children penitentiary, papal 209-10

parish churches pensions see annual pensions attendance required 273-4, 384, 637-8 perjury, crime of

behaviour in 497, 501-2, 635 Anglo-Saxon law and 33, 36, 61 connections with courts 200 dangers of 231, 304, 335, 367, 374, 613,

control over 100-1 617

courts held in 217 imputation of 580, 583

creation of 21-5 punishment of 176, 363, 366-8, 482, 613 disputes about 479-84 statute against 176, 297 disputes between 456-8 suborning of 225 impropriation to monasteries 101, 284, see also breach of faith

372, 438 Peter’s Pence 43, 465-6

penances performed in 588 pews, law of 501-5

protection of 60, 175, 495-501 see also physicians, licensed 635

sanctuary pilgrimages 4, 28, 31, 102, 192, 623

repair of 418, 498-9 see also dilapidations; pious causes, canon law 391-2, 396, 399, 402 see

rates, church also charity

Parliament, English plenarty, of benefices 101, 490 legislation affecting canon law 168-70, 241 poisoning, crime of 505

relation to Convocation 270 pollution, of churches 60, 150, 495, 497, 619, restriction of ecclesiastical jurisdiction by 635

175-81 Poor Law

support of ecclesiastical jurisdiction by 175 medieval 226, 468-70 see also Commons, House of; legislation; Tudor 268, 296, 470, 561, 631, 635 Table of Parliamentary Statutes see also poverty, legal rights and: charity,

parsons bequests for

choice of 101, 293-4, 477, 481 popularity, courts and 284

deprivation of 290 positions, procedural use of 322

estates of 259 positivism, legal 242

688 INDEX OF SUBJECTS

possession law of 295-6 bare 394 papal 28, 90, 333, 353 conjugal rights and 322, 535-6 qualified 579-81

protection of 352, 434, 444, 456, 487, 490, see also sanctuary

503 privilegium fori, civil

transfer of 413 attempts to implement 110

wrongful 410, 496, 587 law of 508-10

postulation, of bishops 492-3 rejected in England 315, 356-7 see also

poverty clergy, immunities of

384, 507 of clergy

legal rights and 57, 112, 226, 276, 346, 369, privilegium fori, criminal 511-14 see also benefit

will making and 405-6 probable cause, requirement of 137, 609

pox, French 533, 578 probate jurisdiction

Praemunire efficiency of 397

actions in royal courts 233, 301, 367-8, 594 exercise of by church 216, 397

statutes of 148, 156, 169, 176-80, 231-2, fees of 416

478, 488 ius commune and 105, 387-9, 396

praeventio 207, 324, 358, 602 origins of 51

prebends 21, 207, 217-18, 397, 489 prerogative 428 see also Prerogative Court of

precedent books see formularies Canterbury

Prerogative Court of Canterbury 216, 298, synodal statutes and 392-6

396, 428 procedure, canonical

prerogatives criminal and civil distinguished 317

feudal 116 law of 62-3 papal 96, 185, 351 plenary 314

royal 116, 184, 241, 402, 480 Roman law and 325

prescription, law of stages of 317-53

customs and 171, 192, 439-40 summary 154, 314, 397

Innocent HI and 128 treatises on 312-13

longi temporis 191 proclamations, public 412, 415, 513, 605, pews and 503 612, 621 requirements of 171, 454 proctors

tithes and 456, 458, 464 disciplined 225 presumptions distinguished from advocates 167, 213,

Anglo-Saxons and 63 222-3, 228, 342

criminal law and 560-1, 600, 617, 638 duties of 142, 191, 215, 225-6, 290-2,

discussed 128, 171, 191-2, 268, 330-2, 403, 322, 344

439-40, 454, 458, 503-4 education of 223

defamation law and 332, 570, 579, 611 exclusion from ex officio causes 217, 385, 626 importance in practice 261, 335, 369, 530, fiscal 214-15

584, 617 income and fees 225, 235, 284, 375, 387

marriage law and 525, 530-2, 545, 560-1 notaries public 214

studied at universities 244, 331 notebooks of 260, 262, 331, 339, 538, 560,

prisons 562 see also formularies of bishops 118, 512-13 numbers of 213-14, 223—4, 235, 309 penal sanction 512, 640 procurations 219, 619 see also imprisonment prodigality 395, 420, 527

privacy, protection of 11,581, 601, 603 professional incompetence, imputations of 575

privileges prohibited degrees see consanguinity and clerical 56, 78, 103—4, 508-14 see also clergy, affinity immunities of prohibitions, writs of

English 208 advowsons and 461, 478-80

INDEX OF SUBJECTS 689 after sentence 302 punishment, of crimes

annual pensions and 372 Anglo-Saxon law and 6—7, 50, 60 augmentation of vicarages and 460 capital 568, 607, 639 civilians’ attitudes towards 302-3, 460-1 corporal 496, 628

clergy’s use of 119, 509 divine 239

defamation and 588, 594, 598 exemplary 264 ex officio prosecutions against users 119 penance as 587 irrelevance at papal courts 139, 178, 487 proportionality and 625 lay debts and chattels and 231, 302, 359, secular courts for church 511-12, 601, 619,

366, 462-3 640-1

limitations to effectiveness 179, 232, see also penance

304—5, 366-7 Puritans, attitudes to ecclesiastical courts

perjury and 297 237-9, 271 principles of 115, 118, 144, 240, 251-2, 301

367-8 245, 256

procedures for issuance 119, 233, 301, 347, quaestiones, academic 80, 129, 172-4, 192,

testamentary causes and 303, 373 quarta Trebelliana 390 tithes and 177, 304, 449, 455-6, 462 quarter sessions 295 ways of avoiding 179, 203, 232, 248, 259,281, | Quinque compilationes antiquae 94, 130, 393

366-7, 461-2, 595 Quod omnes tangit 492

uncertainties about 243, 252, 305, 423, 490 Quod principi placuit 249 proof, law of

burden of 63, 327-8, 332, 335, 374, 464, 579, ransom, law and payment of 192

617 rape, crime of 105, 151, 602, 630

by confession 329-30 rates, church 470-3, 635 by inquests 336-8, 484-7 rationabilis pars 392-3 by oaths 334-6 reason, role in law 250 see also ius commune by presumptions 330-2 rectors see parsons

by witnesses 338-41 recusants

by writings 332-4 advowsons held by 281-2 law of 327-43, 543 excommunication and 288 notoriety and 328, 604, 607 not treated as heretics 640—2 paternity 560-1 penalties against 273, 299 proprietary churches 23 see also Reformatio legum ecclestasticarum 184-5, 234,

patronage, lay 274, 555

prostitution 628, 631 Reformation see Protestant Reformation Protestant Reformation registers, parochial 270, 333 controversialists of 168-9, 197-8, 271 registrars, diocesan 213, 215, 289, 309 effects on law 148, 169, 207, 221, 234, regnum and sacerdotium

239-40, 266, 273, 296 accommodation between 488-9, 520

marriage and 555, 563 cooperation between 111, 273, 383,

retention of canon law 184-6, 263, 381 510-12, 557 thought of 167-8, 182, 186 opposition between 103-4, 148, 180, 475-88

provinces, ecclesiastical 19-20 remarriage

provisions, papal 153, 178-81, 211, 369, 487-9 frequency of 377, 398 provocation, as legal defence 505-6, 580 possibility after divorce 45, 184, 540, 555-6 public honesty, impediment to marriage 541 remedies, canonical

public voice and fame defamation and 586-90

defamation and 572 discussed 356, 535

evidentiary force of 331, 336, 560, 607 imposition of silence 586-7, 637

607-12 performance

required for ex officio prosecution 217,519, see also excommunication, specific

690 INDEX OF SUBJECTS res judicata 105, 126, 154, 207, 245, 313, 323-4 savings clauses 276, 285, 379, 561, 629, 633

res sacra, concept of 496-7 scandal, public

residence, requirement of 182, 212, 265, consequences of 320, 513, 632

500, 518 defamation and 583

restitution prevention of 77, 609, 633

conjugal rights and 322, 535-6 see also scolding good fame 587-8 schoolmasters, regulation of 268, 276, 296, 635 law of 356, 617-18 scolding, offence of 574-5, 589, 632-3

necessity for absolution 105, 361, 378 seats in church see pews Restoration, and ecclesiastical courts 309 secular arm, canon law and 111, 144—5, 153,

Roman Law 180, 273, 345, 622, 639-41 Anglo-Saxons and 3, 13-14, 63, 83 self-defence, pleas of 506 canonists and 86-8, 95, 173—4, 201, 323, 429 sentences

reception of 391 definitive 343-4

revival of study of 83-8, 121-4, 312 execution of 344-6 role in canon law 102, 123-4, 174, 198, formality of 343-4

315-16, 390, 604 matrimonial causes and 526

role in England 126, 168, 429-31 prepared by parties 344

universities and 181-91 silence imposed by 537 see also Corpus turis civilis sequestration

Root and Branch Petition 299 benefices 157, 214, 376-7, 487, 500, 515, 619 Rota romana 155, 203, 210-11, 260, 315, 479 see decedents’ estates 420

also papal court judicial 345, 363, 411

royal courts serfs see villeinage

jurisdiction over advowsons 477-81 sermons, desirability of 266 relation with ecclesiastical courts 144-5 settlement of litigation 328, 342, 366, 370, 489

see also Common Pleas, King’s Bench; see also arbitration

prohibitions, writs of sexual offences

rural deans 135-40, 207, 219-21, 397 Anglo-Saxon law and 49-51 boasting about see jactitation

sacraments, right to administration of 9, 517, defamation of 575, 596

519 jurisdiction over 217, 539, 602

sacrilege marriage law and 533-4, 541-2, 546, 552 definition of 496, 498, 637 numbers of prosecutions 627-8

punishment of 31, 233, 495-6, 627 of the clergy 500, 517-18

salaries, recovery of 374-5 of the laity 31, 61, 627-31

sale of goods 105, 379 proof of 331

salus animarum, canon law and 173, 530, 533, see also adultery; fornication; sodomy

536, 540, 545, 604 shame, concept of 528, 566 sanctions, canonical sheriffs, English 108-9, 144, 278 absence in decretals 167 shipwrecks 102, 356-7 comparative leniency of 513, 618, 622,634-5, Si quis suadente 129, 209, 505-8

637, 639 sick, provision for 167,501, 636

harshness approved 512, 604, 637, 640 signification, letters of see writs, royal

laity’s attitude towards 230, 285, 621 silence

proportionality 618-19 imposition of 467, 537, 586, 591, 597

restitution and 361, 617-18 year of 191, 223

see also excommunication; Interdict; simony punishment; suspension canon law 120, 151, 198, 265, 331-2, 374, sanctuary, law of 37, 55-6, 174, 181, 203, 273, 477, 602, 627

497-8, 603 distinguished from legitimate payments 45, satisdatio 125-6 151, 198, 370, 374—5, 383, 468, 489

INDEX OF SUBJECTS 691 disqualification of clergy for 101, 370, 483-4, litigation in 16-17, 51, 62-3, 99, 135, 140

916, 608 purposes of 15-19, 156, 158, 162-3, 392-6

movement against 39, 70, 89, 107 see also Church Councils; Convocation prosecution for 151,518

sin, correction of 356-7, 587, 606 Tametst 523,525

Slade’s Case 358 taxation

slavery ecclesiastical 280-1 see also rates, church imputation of 591 methods of assessment 471-2

marriage and 544 of the clergy 103, 514-15

Roman law of 123 temporal courts, separated from spiritual threats of 545 108-10 see also villeinage Ten Commandments 544 sodomy, crime of 91, 518, 597, 629 terms, division of judicial year into 342

solemnization of marriage testaments

advantages of 531 Anglo-Saxon 51-8

encouraged 102, 524, 535, 563 capacity to make 395-6, 402-6 not required for validity 102, 523-44, 563 classification of 398-401

sexual relations before 558, 630 codicils 401, 408

sorcery see witchcraft duty to prove 405-6 specific performance, ordered 360, 365, 422, holographic 191, 400-1 547-8 impeding execution of 373, 393, 404, 424 spiritual courts see consistory courts jurisdiction over 51, 255

Star Chamber, court of 287 mixed 423

statutes see legislation; Parliament; synods nuncupative 52, 393, 400-1, 407 stipulatio, compared with breach of faith 362 proving 409-11

stylus curiae 164, 207, 313 proximity to death 397-8 subsidies, clerical 156, 158-9, 514-15 see also undutiful 425-6

taxation see also intent, testamentary

substitutio 429 testes synodales 15, 24 see also churchwardens succession, law of see intestacy; testaments theft

suicide 619 canon law and 33, 105, 151, 600, 602 summoners see apparitors clerics committing 56, 516

sumptuary legislation 382 defamation and 575-6, 580, 583, 586, 593-5 Sundays, trading prohibited on 270, 384—5, 635 from churches 6—7, 494—5, 496, 637 see also

see also holy days sacrilege

Super specula 189 Theodosian Code 121 superstition, repression of 61-2, 71, 157, 167, theology, relation to canon law 68, 78, 152,

181, 221, 270, 296, 634 195-200, 202

Supremacy, Act of 240, 272, 287 Thirty-Nine Articles 271, 274-6

suretyship 105, 364, 415 tithes

surmise, use in litigation 233, 301, 303 Anglo-Saxon law and 23, 40-3, 48

Susanna and the elders 340-1 canon law of 435-40, 442

suspension classifications of 447-50

ab ingressu ecclesie 344, 619-21 custom and 42, 439, 453, 506

from office 225, 619 damages for withholding 460

synods division of 5, 42, 48, 370-1, 456-60, 499 Anglo-Saxon 14-19 forgotten 468 Convocation and 158-61 land use and 450-2 decrees of 35-40, 62, 93, 1324, 155-7, 164, leasing of 442-3

167, 202, 241, 414-16 litigation over 229, 284, 440-60 frequency of 15-16, 32, 39, 155-7, mixed 438, 458

160-1, 263 modus decimandi 257, 440, 455, 463

692 INDEX OF SUBJECTS tithes (cont.) vacancy of benefices

obligation to pay 41-2, 182, 435-6 determination of 101, 154, 484—5

on great trees 176, 437, 446, 449 notice of 274-5

patronage and 461-3 see also lapse; plenarty

personal 257, 437-8, 447-8 vagabonds, jurisdiction over 183 praedial 257, 437-8, 447-8, 451 venue 64, 139, 428

payment in kind 463-4 verba novissima 53, 393, 400

secular restrictions of 176—7, 460-5 verdicts, of juries title, requirement of 264-55, 481, 484 common law 312, 486, 501

tonsure, clerical 5 ecclesiastical 337-8, 485

torture, judicial Vetus Gallica 26 canon law and 312, 617-18 vicars

excluded in England 617 canonical status of 166, 438, 461, 470

used on Continent 607, 618 choral 266

trading, regulation of 158, 356, 377, 384-6, 437 relations with parsons 166, 438, 458-60

treason 273, 311 residence in parish 220

trees superannuated 371 in law of theft 577 tithes due to 452-4, 461 sacred 61-2 villeinage, status of

tithes on 176, 437, 446, 449 disabilities of 156, 402, 507, 537, 552 wrongful cutting 385, 497, 580, 618 illegitimates excluded 557

trinoda necessitas 2 imputation of 537, 575, 580, 596

Truce of God 58-60 testaments and 394

trusts virginity, determination of 337, 549

charitable 369 visitations

testamentary 419-20 archidiaconal 137, 220, 308

see also uses attendance required 294

truth, as defence in defamation 582-3, 594 burdens of 137, 220

Turks, canon law and 156, 356, 451 canon law and 219-20 episcopal 61, 219, 270, 294, 470, 580, 610

unchastity, imputation of 577-8, 580, 596 frequency of 220, 294-5, 296

universities monastic 220

Continental 195, 228 see also Bologna; Paris parochial 194, 219-21, 264 English 121, 194-5, 230 see also Cambridge; royal 168, 220

Oxford utility 610

nature of instruction at 187—94, 570 vows, law of 101-2, 554 see also oaths requirements for degrees at 188-9

unjust enrichment, law of 356 wager of law 119, 231, 358, 367, 374 see also

uses, feoffments to 421-3 compurgation

usury wages, regulation of 377, 382-3

‘cloaked’ 379-80 waiver, of rights 103, 183, 315, 342, 345, 511,

crime of 151, 576, 600, 602 551

ecclesiastical jurisdiction over 229, 315, 366, warranties, law of 364

378-82 weights and measures, canon law and 38,

English works on 257-8 377

evasion of prohibitions 370, 378, 381 whipping, as canonical punishment 568, 618, imputation of whore 589 622 levels of 381

temporal law and 169-70, 276, 378-82 accusations bya 611

remedies for 618 imputations 576-7, 595-6

usus modernus Pandectarum 244, 292, 401, of the tongue 578

591 Widerrufsklage 587

INDEX OF SUBJECTS 693

widows women

rights of 417 595-6 roles of 281, 392, 403, 410 status in canon law 340, 605

grants to while 407, 424 predominance in defamation litigation

wills see testaments witchcraft and 634-5 witchcraft 31, 36, 276, 607, 634—5 see also married women; widows Witenagamot 39 work, obligation to 196

witnesses writs, royal 315-16, 490 compulsion of 164, 311, 339 capias 278

distinguished from jurors 337-9 caption 622

examination of 214, 339 consultation 305, 366 exclusion of 601 de excommunicato capiendo 278, 288, 345

experts as 333, 501 de vi laica removenda 111 laymen prohibited against clergy 516 debt 231, 358, 462

marriage contracts and 523, 529 ex relatu plurium 119

objections to 341 indicavit 461 340, 610 quare impedit 478, 482, 486

requirement of two 252, 303-4, 311, 335, prohibition see prohibitions writs of

roles in litigation 63, 78, 338-41 trespass 462 will making and 406

see also depositions Yearbooks, English 203