The Oxford History of the Laws of England vol 1: The Canon law and ecclesiastical jurisdiction from 597 to the 1640s [1] 0198258976, 9780198258971

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T h e O x fo rd H is to ry o f th e L aw s o f E n g la n d VOLUME I The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s R. H. Helmholz

OXFORD U N IV E R S IT Y PRESS

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.? F.B.A., Downing Professor of the Laws of England， and Fellow of St C atharine’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and its institutions from the earliest times until the twentieth century, drawing heavily upon recent research using unpublished materials.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 164os Helmholz I S B N 0-19-825897-6 Volume II: c. 900-1216 H udson I S B N 0-19-826030-x Volume III:1216-1307 Brand I S B N 0-19-826866-6 Volume IV :1307-1377 D onahue I S B N 0-19-926951-3 Volume V :1399-1483 Biancalana I S B N 0-19-926599-2 Volume V I:1483-1558 Baker I S B N 0-19-825817-8 Volume VII: 1558-1625 Ibbetson I S B N 0-19-825802-x Volume VIII: 1625-1689 Brooks I S B N 0-19-826031-8 Volume IX :1689-1760 Horwitz I S B N 0-19-826100-4 Volume X :1760-1820 Oldham I S B N 0-19-826494-1 Volume X I:1820-1914 Institutions C ornish ，A nderson ，Cocks ，Lobban ，Polden， and Smith I S B N 0-19-925881-3 Volume XII: 1820-1914 Substantive Law and Procedure C ornish ，A nderson ，Cocks ，Lobban ，Polden， and Smith I S B N 0-19-925882-1 (Two-volume set of Volumes XI and XII: ISBN 0—19-925883—x)

OXFORD U N IV E R S IT Y PR ESS

Great Clarendon Street, Oxford 0x2 6 d p Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Bangkok Buenos Aires Cape Town Chennai Dar es Salaam Delhi Hong Kong Istanbul Karachi Kolkata Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi Säo Paulo Shanghai Taipei Tokyo Toronto Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © R.H. Helmholz, 2004 The moral rights of the author have been asserted Database right Oxford University Press (maker) First published 2004 Crown copyright material is reproduced under Class Licence Number CO1POO00148 with the permission of the Controller of HMSO and the Queen s Printer for Scotland All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available ISBN 978-0-19-825897-1 5 7 9 10 8 6 4 Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India Printed in Great Britain on acid-free paper by the MPG Books Group

PREFACE first undertook to explore the records of the English ecclesiastical courts dur­ 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 claw in action, in so far as one can in the court records, adds something meaningful to the traditional approach. Second, the juris­ diction 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 com­ mentaries 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,

I

VI

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, competi­ tion, 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 ius 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

VÜ

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 correc­ tion, 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

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

1 67

3. From the Thirteenth Century to the Accessionof 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

475

10. Marriage and Divorce

521

11. Defamation

565

12. Crimes and Criminal Procedure

599

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CONTENTS Abbreviations

xv

Table of Parliamentary Statutes

xxiii

Table of Citations to Ius Commune

xxvii

l.The Anglo-Saxon Church The Mission of St Augustine The Establishment of Christian Law Canonical Sources and Learning Substantive Law Conclusion

2. From the Norman Conquest to the Establishment of Consistory Courts Formation of the Classical Canon Law The English Church Conclusion

3. From the Thirteenth Century to the Accession of Elizabeth The Canon Law and Legislation Legal Education and Canonical Scholarship Ecclesiastical Jurisdiction Conclusion

4. From the Elizabethan Settlement to the Abolition of Episcopacy Fundamental Assumptions Education and Scholarship Legislation The Ecclesiastical Courts The Final Days

1 2 11 25 40 62

67 68 106 143

147 148 186 206 234

237 239 243 263 282 307

XÜ

CONTENTS

5• し m l Procedure and the Law of Proof Basic Characteristics The Opening Stages The Stage for Proof The Final Stages Definitive Sentences 6. Monetary Obligations and Economic Regulation Breach of raith (Laesio fidei) Other Monetary Obligations Economic Regulation 7. Testamentary Law and Probate Jurisdiction The Canon Law of Last Wills and Testaments Ecclesiastical Probate and Testamentary Litigation English Practice and Formal Laws

311 312 317 327 341 343 355 358

368 377

387 389 396

426

8. Tithes and spiritual Dues

433

The Canon Law of Tithes Litigation over Tithes Other spiritual Dues

435 440

9. Churches and the Clergy

475

Benefices and the ius patronatus Ecclesiastical Elections Church Property The Clergy 10. Marriage and Divorce Matrimonial Contracts Divorce Ancillary Causes touching Marriage Changes and Continuities 11.Defamation The ius commune and Defamation The Scope of Actionable Defamation Changes and Continuities in Law and Practice Jactitation

465

477

491 494

505 521 523

540 556

563 565 566 574

590 596

CONTENTS

XÜi

12. Crimes and Criminal Procedure

599

The Canon Law and Crime Criminal Procedure Substantive Law of Crimes

600 604 626

Select Bibliography

643

Index of Names and Places

669

Index of Subjects

675

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ABBREVIATIONS T H E IU S C O M M U N E Dist.l c.l

Decretum Gratiani, Distinctio i ?can.1

C .l q .l c.l

----- Causa i ?quaestio i ?can.1

De pen.

----- De penitencia

De cons.

----- De consecratione

1(2) Comp.

Compilatio prima (secunda etc.)

X 1.1.1

Decretales Gregorii IX , lib.i?tit.i?cap.1

Sext 1.1.1

Liber Sextus, lib.i?tit.i?cap.1

Clem. 1.1.1

Constitutiones Clementinae, book i ?tit.i?cap.1

Extrav. 1.1.1

Extravagantes (of Pope John XXII and Communes)ylib.i?tit.1.cap.1

gl ord.

glossa ordinaria (standard commentary on texts of the Corpus iuris canonici and the Corpus iuris civilis)

s.v.

sub verbo (reference to glossa ordinaria or other commentary on a legal

text) Dig. 1.1.1

Digestum Justiniani, lib.i?tit.i?lex 1

Cod. 1.1.1

Codex Justiniani, lib.i?tit.i?lex 1

Inst. 1.1.1

Institutiones Justiniani, lib.i?tit.i?lex 1

Nov. 1.1.1

Novellae Justiniani, lib.i?tit.i?lex 1

Cod. Th.1.1.1

Codex Theodosianus, lib.i?tit.i?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 ^Ethelbert

Af

Laws of Alfred

AJLH

American Journal of Legal History

Anglican Canons

The Anglican Canons

APC

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

Archdnry

Archdeaconry of

Archidiaconal Acta

Twelfth Century English Archidiaconal and Vice-Archidiaconal Acta,

ed. Gerald Bray (= 6 CERS;1998)

ed. B. R. Kemp ( —92 C. &: Y. Soc.; 2001)

XVI

ABBR EV IA TIO N S

As

Laws of ^Ethelstan

ASC

Anglo-Saxon Chronicle

ASE

Anglo-Saxon England

Atr

Laws of ^Ethelred

Baker，

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

Introduction

Baker, Spelman Introduction

J. H. Baker， Introduction ， The Reports of Sir John Spelman， ii (= 94 Seiden Soc.;1977)

Becket Materials

Materials for the History of Thomas Becket， Archbishop oj しanterbury，

ed. J. C. Robertson (= 67 RS;1875-85) Bede, HE

Bedes 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^ (ist edn? 1765-9)

BMCL

Bulletin of Medieval Canon Law, n.s.

Bodl.

Bodleian Library, Oxford

Bracton

Britton

Bracton de legibus et consuetudinïbus Angtiae (Bracton on the Laws and Customs of England)y ed. George Woodbine and trans. S. E. Thorne (1968-77) Britton, ed. E M. Nichols (1865, repr.1983)

BRO

Bristol RO, Bristol

BRUC

A. B. Emden, Biographical Register oj the University of Cambridge to 1500 f1963)

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 Law and the Law of England

R. H. Helmholz, Canon Law and the Law of England (1987)

Cardwell，

Edward Cardwell, Synodalia: A Collection of Articles of Religiony CanonSy and Proceedings of Convocations (1842)

Synodalia

CBRO

Cumbria RO?Carlisle

CCAL

Canterbury Cathedral Arcnives and Library

CERS

Church of England Record Society

X V II

ABBR EV IA TIO N S

Church and Government

Church and Government in the Middle Ages: Essays Presented to C. R. Cheney on his/oth Birthday, ed. C. N. L. Brooke et al f1976)

Churchill，

Irene Churchill, Canterbury Administration: The Administrative

Canterbury Administration

Machinery of the Archbishopric of Canterbury Illustrated from Original Records (1933)

Clerke, Praxis

Francis Clerke, Praxis in curiis ecclesiasticis (London,1684)

CLJ

Cambridge Law Journal

Cn

Laws of Cnut

Coing, Handbuch

Handbuch der Quellen und Literatur der neueren europäischen 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.&S.l

Councils & Synods with other Documents relating to the English Church ly ad

C. & S. II

8 /i- i2 〇4y ed. D. Whitelock, M. Brett, and C. N. L. Brooke f1981)

Councils & Synods with other Documents relating to the English Church lly ad

120^-I3i3y ed. E M. Powicke and C. R. Cheney (1964)

C. & Y. Soc.

Canterbury and York Society

Cosin, Apologie

Ricnard Cosin, Apologie for Sundrie Proceedings by Jurisdiction ecclesi­ astical (ist edn?1591)

Cowell’s

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

Interpreter

CP

Court of Common Pleas

CPL

Calendar of Entries in the Papal Registers relating to Great Britain and Irelandy 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 R Tanner et al

(1990) DNB

Dictionary of National Biography

Doctor and Student

Christopher St German, Doctor and Student^ ed. T. J. L. Barton (= 91 Seiden Soc.;1974)

1.Plucknett and

x v iii

ABBR EV IA TIO N S

DRO

Devon RO?Exeter

DUL

University of Durham Library

Ecclesiastical Courts Comm.

Report of the Commissioners... into the Constitutions and Working of the Ecclesiastical Courts (1883)

Ecc. LJ

Ecclesiastical Law Journal

EEA

English Episcopal Acta

Eg EGu

Laws of Edgar Peace of Edward and Guthrum

EHD

English Historical Documents

EHR

English Historical Review

Elvey,

The Courts of the Archdeaconry of Buckingham 1483-1^23, ed. E. M. Elvey

Buckingham Courts

(=19 Buckinghamshire Record Society;1975)

Em

Laws of Edmund

English Lawsuits

English Lawsuits from William I to Richard Iy ed. R. C. Van Caenegem

ERO

Ew Execs. FNB Flahiff， 'Prohibitions’ Four Studies GCC GL

(=106-7 Seiden Soc.; 1990-1) Essex RO, Chelmsford Laws of Edward the Elder Executors (of last wills and testaments) Anthony Fitzherbert, New Natura Brevium (London,1704) G. B. Flahiff, cThe Writ of Prohibition to Court Christian in the Thirteenth Century?? p t.i? (1944) 6 Mediaeval Studies 261-313；pt- 2> (!9 4 5 ) 7 Mediaeval Studies 229-90 R. H. Helmholz, The ius commune in England: Four Studies (2001) Gonville and Caius College, Cambridge Guildhall Library, London

Glanvill

The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill^ ed. G. D. G. H all(1965)

GLRO

Greater London RO, London

GRO

Gloucestershire RO?Gloucester

Grundlagen des Rechts

Grundlagen des Rechts: Festschrift für Peter Landau zum 65• Geburtstagy ed. Jörg Müller et al. f2000)

Haddon and Stubbs Hale, Proceedings

Councils and Ecclesiastical Documents relating to Great Britain and Irelandy ed. Arthur W. Haddan and William Stubbs (1869, repr.1964)

HEHL Helmholz, Roman Canon Law

William Hale, A Series of Precedents and Proceedings in Criminal Causesy 14/^-1640 (1847, repr.1973) Huntington Library, San Marino, California R. H. Helmholz, Roman Canon Law in Reformation England (1990)

ABBR EV IA TIO N S

xix

HFCL

Hereford Cathedral Library

HFRO

Herefordshire RO, Hereford

Hinschius，

Paul Hinschius, Das Kirchenrecht der Katholiken und Protestanten in Deutschland (1888, repr.1959)

Kirchenrecht

Holdsworth，

William Holdsworth, A History of English Law (1922-66)

History

Houlbrooke， Church Courts

Ralph Houlbrooke, Church Courts and the People during the English Reformation 1520-15/0 (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， 1570-1640 (1987)

Church Courts

IJ

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 … annotationibus Johannis deAthona (Oxford,1679)

Constitutiones

Jones，'Relations’

W. R. Jones, 'Relations of the two Jurisdictions: Conflict and Cooperation in England during the Thirteenth and Fourteenth Centuries m 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. E L. Attenborough (1922)

Attenborough Laws, Robertson

The Laws of the Kings of England from Edmund to Henry Iy ed.

A. J. Robertson (1925) Lefebvre-Teillard， Anne Leiebvre-Teillard, Les Ofßciahtes a la veille du Concile ae rrente Les Officialités

(1973) The Letters ofLanfrancyArchbishop of Canterbury, ed. Helen Clover and

Letters of Lanfranc

Margaret Gibson (1979)

LHR

Law and History Review

Liebermann,

Felix Liebermann, Die Gesetze der Angelsachsen (1903-16)

Gesetze

ABBR EV IA TIO N S

LJRO

Lichfield Joint RO?Lichfield

LP

Letters and Papers of Henry VIII

LPL

Lambeth Palace Library, London

LQR

Law Quarterly Review

LRO

Leicestershire RO?Leicester

LRS

Lincoln Record Society

Lyndwood，

William Lyndwood, Provinciale (seu Constitutiones Angliae) (Oxford,

Provinciale

Makower， Constitutional History

1679)

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

Mansi, Concilia

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

Marchant，

Ronald Marchant, The Church under the Law: JusticeyAdministration

Church under the Law

and Discipline in the Diocese of York 1560-1640 (1969)

MGH

Monumenta Germaniae historica

Milsom，

S. E C. Milsom, Historical Foundations of the Common Law (2nd edn? 1981)

Historical 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) 〇RO

Oxfordshire RO, Oxford

R&C.

Prior and Convent

PCC

Prerogative Court of Canterbury

PL

Patrologia Latina

Pollock and Maitland

Frederick Pollock and E W. Maitland, The History of English Law before the time of Edward I (2nd edn?1898; reissued 1968)

Poos, Lower

Lower Ecclesiastical Jurisdiction in Late-Medieval England^ ed. L. R. Poos

Courts

PRO

(2001) Public RO, Kew， Surrey

ABBR EV IA TIO N S

Xxi

Proc.

Proceedings of the

RDC

Revue de droit canonique

Reg.

The Register 〇ƒ (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 Hallumy Bishop of Salisbury i4 〇y -iy y 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 Herejordensis 1389-1404,

ed. William Capes (= 20 C. &: Y. Soc.;1916) Reg. Waltham

Register of John Waltham， Bishop of Salisbury 1388-1395, ed.

C.

Timmins (= 80 C. &Y. Soc.;1994) repr.

reprinted (in)

RHD

Revue historique de droit frangais et étranger

RIDC

Rivista internazionale di diritto comune

Ridley s View

Thomas Ridley, A View of the Civile and Ecclesiastical Law (ist edn? 1607; 3rd edn，Oxford，1662)

RO

Record Office

Roman Canon Law

E W. Maitland, Roman Canon Law in the Church of England (1898)

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

Seiden Soc.

Seiden Society

Select Canterbury Cases

Select Cases from the Ecclesiastical Courts of the Province of Canterbury c.i2〇o -i^o iy ed. Norma Adams and Charles Donahue, Jr. (= 95 Seiden

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 Charters

William Stubbs, Select Charters and other Illustrations of English Constitutional History^ ed. H. W. C. Davis (9 th edn?1913)

Swanson, Church

R. N. Swanson, Church and Society in Late Medieval England (1989)

and Society

TCD

Trinity College, Dublin (Long Library)

X X II

ABBR EV IA TIO N S

TRG

Tijdschrift voor Rechtsgeschiedenis

TRHS

Transactions of the Royal Historical Society

Tudor Church Reform

Tudor Church Reform: The Henrician Canons of 1535 and the Reformatio legum ecclesiasticarumy ed. Gerald Bray (= 8 CERS; 2000)

TUI

Tractatus universi iuris

Van Hove,

A. Van Hove, Prolegomena ad Codicem iuris canonici (1945)

Prolegomena Visitation Articles^ Frere

Von Schulte, Geschichte

Wahrmund, Quellen

Visitation Articles and Injunctions of the Period of the Reformation，

ed. W. H. Frere (=16 Alcuin Club Collections;1910) J. R von Schulte, Die Geschichte der Quellen und Literatur des canonischen Rechts (1875, repr.1956) Quellen zur Geschichte des römisch-kanonischen Prozesses im Mittelalter^ ed. Ludwig Wahrmund (1905-28)

Wi

Laws of Wihtrsed

Wilkins, Concilia

David Wilkins, Concilia Magnae Britanniae et Hiberniae (1737)

Woodcock，

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

Medieval Courts

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 Reformation (1981)

London Church Courts

YB

Yearbook (Vulgate edn unless otherwise indicated)

YML

York Minster Library, York

ZRGyKan. (Germ.) A bt

Zeitschrift der Savigny-Stiftung für RechtsgeschichteyKanonistische (Germanistische) Abteilung

TABLE OF PARLIAMENTARY STATUTES Magna Carta (1215).................................................................... 55,144-5,171，179, 202, 392, 425 20 Hen. Ill (Stat. M erton), c. 5 (1236) ( u s u r y ) .......................................................................170 20 Hen. Ill (Stat. M erton), c. 9 (1236) (special b a sta rd y )..................................................... 558 3 Edw. I? c. 22 (1275) (Stat. West. I) (marriage of w a r d s ) ..................................................... 170 7 Edw. I (Stat. M o rtm a in )(1 2 7 9 ).............................................................................................148 13 Edw. I (Stat. West. II)? c. 34 (1285) (forfeiture of d o w e r ) .................................................562 13 Edw. I (Stat. W inchester), c. 6 (1285) (churchyards).................................................170, 495 1 Edw. Ill, st. 2? c .11(1327) (defam ation against indictors) .................................................594 15 Edw. Ill, s t .1 c. 5 (1341)(jurisdiction over usury) ............................................................379 25 Edw. Ill, st. 2 (1351)(Stat. of Labourers) ........................................................................... 383 25 Edw. Ill, st. 4 (1351)(p ro v iso rs).................................................................................... 172,178 27 Edw. Ill, s t .1 (1353) (provisors).............................................................................................177 31 Edw. III ，s t .1，c. 4 (1357) (probate f e e s ) .......................................................................168, 416 31 Edw. Ill, s t .1 c .11(1357) (adm inistration of e s ta te s ) ....................................................... 170 37 Edw. Ill, c .13 (1363) (apparel of c le rg y )............................................................................. 170 38 Edw. III ，st. 2, c .1(1363-4) (p ro v iso rs)................................................................................179 45 Edw. Ill, c. 3 (1371)(tithe of great w o o d ) ...................................................170 ,176, 281， 449 50 Edw. Ill, c. 5 (1376) (clerical p riv ile g e s)............................................................................. 175 13 Ric. II ，st. 2, c. 2 (1389-90) (p ro v iso rs )............................................................................... 178 巧

Ric. II ，c. 6 (1391)(endow m ent of c h u rc h e s ).................................................................... 170

16 Ric. II ，c. 5 (1392) (P ra e m u n ire )............................................................148, 巧 6,177, 232,368 2i Ric. II?c . 15 (1397) (general pardon).......................................................................... 626 2 Hen. IV?c . 15 (1400) (de haeretico comburendo)......................................................... 175, 640 4 Hen. IV?c . 12 (1402) (appropriation of churches)........................................................ 170 5 Hen. IV?c. 11(1404) (payment or tithes)..................................................................... 460 2 Hen. V，st. 1，c. 3 (1414) (procedure).............................................................. 169-70, 232 2 Hen. V，st. 2, c. 2 (1414) (wages of clergy)..................................................................... 175 3 Edw. IV?cc. 1-5 (1463) (trade and sumptuary regulation)............................................ 382 3 Hen. VII?c. 5 (1487) (usury)......................................................................................... 379 4 Hen. VIII, c. 2 (1512) (benefit of clergy)....................................................................... 117 7 Hen. VIII, c . 11(1515) (general pardon)....................................................................... 626 21 Hen. VIII, c. 5 (1529) (probate fees).................................................................... 281， 416

XX IV

T A B L E OF P A R L IA M E N T A R Y S T A T U T E S

2i Hen. VIII, c. 6 (1529) (m ortuary d u e s ) ........................................................................ 278, 468 21 Hen VIII, c .13 (1529) (incom patible benefices)..................................................................182,483 23 Hen. VIII, c .1 (1532) (benefit of c le r g y ) ............................................................................. 117,496 23 Hen. VIII, c. 9 (1532) (citation w ithin d io c e s e ) .................................................182, 280, 353 24 Hen. VIII, c .12 (1533) (restraint of appeals)................................................................ 182, 211 25 Hen. VIII, c. 6 (1534) (s o d o m y ).......................................................................................... 629 25 Hen. VIII, c .14 (1534) (heresy).............................................................................................640 25 Hen. VIII, c .19 (1534) (submission of c le rg y )............................................ 184, 211，241， 350 25 Hen. VIII, c. 21(1534) (abolition of papal ju risd ic tio n ).......................................... 212, 466 26 Hen. VIII, c .1 (1534) (royal s u p re m a c y ).................................................................... 181， 272 27 Hen. VIII, c .17 (1536) (benefit of c le r g y ) ........................................................................... 117 27 Hen. VIII, c. 20 (1536) (collection of tith e s )..............................................................277, 460 27 Hen. VIII, c. 25 (1536) (poor r e lie f ) ...............................................................................469-70 28 Hen. VIII, c .10 (1536) (abolition of papal ju ris d ic tio n ).......................................... 148,168 28 Hen. VIII, c .15 (1536) (benefit of c le r g y ) .............................................................................117 28 Hen. VIII, c .16 (1536) (d isp e n sa tio n s)................................................................ 148,181， 212 32 Hen. VIII, c .1 (1540) (Stat. of W ills )..................................................................................400 32 Hen. VIII, c. 7 (1540) (paym ent of tith e s ) ......................................................... 277, 443, 462 32 Hen. VIII, c. 38 (1540) (prohibited degrees in m a rria g e )........................................212, 286 34 &: 35 Hen. VIII, c. 4 (1543) (bankruptcy) .............................................................................411 34 &: 35 Hen. VIII, c .19 (1543) (pensions for m o n k s )............................................................. 372 37 Hen. VIII, c. 9 (1545) (u su ry )........................................................................................ 379, 635 37 Hen. VIII, c .12 (1545) (London tith e s )................................................................................. 452 37 Hen. VIII, c .17 (1545)(laymen and ecclesiastical ju ris d ic tio n )....................................... 182 1 Edw. VI? c .12 (1547) (crim inal la w )........................................................................................ 181 2 &: 3 Edw. VI? c .13 (1549) (paym ent of tith e s )...........................182,184, 233, 277, 280, 442-3, 445 , 451，460, 472 2 &: 3 Edw. VI? c. 21(1549) (marriage of c le r g y ) .....................................................................181 3 &: 4 Edw. VI? c .10 (1550) (destruction of im a g e s ) ..............................................................181 5 &: 6 Edw. VI? c. 4 (1552) (brawling in c h u rc h y a rd s)...................................................182, 280 5 &: 6 Edw. VI? c .11(1552) (tre a so n )...........................................................................................311 2 &: 3 Ph. &: M ar.? c. 8 (1555) (highw ays)..................................................................................472 1 Eliz. I? c .1 (1559) (Act of S uprem acy)................................................................ 211，278, 286-7 1 Eliz. I? c. 2 (1559) (Act of U n ifo rm ity )........................................................................... 235, 277 5 Eliz. l y c. 9 (1563) (p e rju ry )...................................................................................... 276, 297, 311 5 Eliz. I? c .16 (1563) (w itchcraft)............................................................................................... 276 5 Eliz. I? c .17 (1563) (so d o m y )...........................................................................................276, 629

T A B L E OF P A R L IA M E N T A R Y S T A T U T E S

XXV

5 Eliz. I? c. 23 (1563) (execution of writs of c a p tio n ).....................................................278, 639 8 Eliz. I? c .1 (1566) (consecration or bishops).........................................................................241 13 Eliz. I? c .1 (1571)(treason) ................................................................................................... 276 13 Eliz. I? c. 5 (1571)(fraudulent conveyances).......................................................................468 13 Eliz. I? c. 7 (1571)(b an k ru p ts)........................................................................... 273, 276, 411-12 13 Eliz. l y c. 8 (1571)(usury) ................................................................................276 379, 381， 635 13 Eliz. I? c .10 (1571)(dilapidations) .......................................................................241，278, 498 13 Eliz. I? c .12 (1571)(qualifications of c le rg y ).......................................................................274 13 E liz.i? c. 20 (1571)(lease of benefices) ................................................................................369 14 Eliz. I? c. 5 (1572) (poor relief) .............................................................................................276 14 Eliz. I? c .11(1572) (dilapidations)........................................................................................ 498 18 Eliz. I? c. 3 (1576) (relief of poor and illegitimates) .......................................... 276, 561， 635 18 Eliz. I? c. 7 (1576) (benefit of c le rg y )..................................................................................... 273 23 Eliz. I? c .1 (1581)(church attendance) ................................................................................. 273 29 Eliz. I?c. 5 (1587) (m ortuary dues) ...................................................................................... 468 39 Eliz. I?c. 6 (1597-8) (lands given to charitable u s e s ) ..........................................................276 39 Eliz. I?c. 9 (1597-8) (benefit of clerg y )..................................................................................241 39 Eliz. I? c. 28 (1597-8) (general p a rd o n )............................................................................... 281 43 Eliz. I?c. 4 (1601)(charitable u s e s ) ........................................................................................ 417 43 Eliz. I?c. 8 (1601)(adm inistration of estates) .....................................................................278 1 Jac. l y c. 9 (1603) (alehouses) ................................................................................................. 268 1 Jac. l y c .11(1603) (bigamy) .............................................................................................276, 555 1 Jac. I? c. 25 (1603) (repeal and renewal of statutes) ............................................................. 273 3 Jac. l y c. 5 (1605) (recusancy) ...................................................................................................281 3 Jac. l y c. 21(1605) (blasphem y)................................................................................................ 276 4 Jac. l y c. 5 (1606) (drunkenness) ........................................................................... 268, 276, 633 7 Jac. l y c .10 (1609) (alehouses)........................................................................................ 268, 633 21 Jac. l y c. 7 (1624) (drunkenness) ..................................................................................268, 633 21 Jac. I? c. 20 (1624) (profane swearing) ................................................................................276 21 Jac. I? c. 28 (1624) (abolition of sanctuary) .......................................................................273 1 Car. I? c .1 (1625) (protection of Sundays) ........................................................................... 273 7 &: 8 Geo. IV? c. 28 (1827) (benefit of clergy a b o lish e d )....................................................... 117 20 & 21 Viet.，c. 85 (1857) (ecclesiastical jurisdiction) ......................................................... 560

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TABLE OF CITATIONS TO IUS COMMUNE R o m a n L aw Dig. l.i.io .......................................................85

Dig. 48.19.5................................................ 600

Dig. 1.3.32.................................................... 171

Dig. 48.19.18 ..............................................603

Dig. 1.4 . 1 .................................................... 249

Dig. 49 -1 - 1 .................................................. 349

Dig. 2.1.10.................................................... 86

Dig. 4 9 .6 .1 .................................................. 350

Dig. 2.4.14 .................................................. 591

Dig. 50.16.30..............................................449

Dig. 2.14.7.................................................... 361

Dig. 50.17.1-211......................................... 252

Dig. 2.46.14 ................................................ 591

Dig. 50.17-3〇〇 ........................................ 7 , 巧 4

Dig. 3 -2 . 1 .................................................... 571

Cod. 1.1.1.................................................... 605

Dig. 4.2.Ó-7 .......................................... 544-5

Cod. 1.1.4.................................................... 357

Dig. 4 .4 .2 7 .................................................. 247

Cod. 1.2.5.................................................... 514

Dig. 5.1.68 .................................................. 318

Cod. 1.2.14.................................................... 87

Dig. 5.48.49................................................400

Cod. 1.3.19.................................................. 606

Dig. 18.1.1-31..............................................395

Cod. 1.3.28........................................390, 416

Dig. 22.3.1-29..............................................330

Cod. 1.3.45..............................................51， 417

Dig. 2 2 .3 .2 .................................................. 328

Cod. 2.12.10................................................ 247

Dig. 25.3.7 .................................................. 558

Cod. 2.13.15 ................................................374

Dig. 2 7 .3 .1 .................................................. 377

Cod. 3.1.13.................................................. 348

Dig. 28.1.4.................................................. 402

Cod. 3.1.14.................................................. 226

Dig. 28.1.19 ................................................394

Cod. 3.1.15 .................................................. 347

Dig. 30.1.57 ................................................ 576

Cod. 3.12.2.................................................. 384

Dig. 32.1.79 ................................................452

Cod. 4.1.3 .................................................... 335

Dig. 4 2 .1 .1 .................................................. 126

Cod. 4.19.25................................................ 605

Dig. 42.1.55 ................................................ 245

Cod. 4.21.20........................................191， 401

Dig. 47 .10.5 ................................................586

Cod. 5.4.26.................................................. 553

Dig. 47.10.7........................................576, 582

Cod. 5.14.5.................................................. 591

Dig. 47 -10-15 ................................................ 584

Cod. 5.35.5.................................................. 570

Dig. 47.10.17................................................ 581

Cod. 5.35.8.................................................. 570

Dig. 48.1.13.................................................. 217

Cod. 5.59.5.................................................. 492

Dig. 4 8 .2 .8 .................................................. 605

Cod. 6.23.21......................................399, 400

Dig. 48.2.11................................................ 605

Cod. 6.23.31........................................191， 399

Dig. 48.137 ................................................ 637

Cod. 6.37.10................................................ 255

XXV111

T A B L E OF C IT A T IO N S TO IUS C O M M U N E

Cod. 6.42.32 ............................................ 390

Dist. 62 c. 3 ................................................492

Cod. 6.61.8 .............................................. 560

Dist. 83 c. 3 ................................................ 196

Cod. 7.14-5 .......................................... 537, 591

Dist. 88 c. 9 ................................................355

Cod. 7.51.4.................................................. 347

Dist. 90 c. 4 .................................................. 59

Cod. 7.59.1.................................................. 329

C .1 q. 3 c. 8 ................................................ 221

Cod. 7.62.32.................................................. 97

C .1 q. 6 c. 3 ................................................ 196

Cod. 7.75.3.................................................. 414

C. 2 q . 1 c c .15,17 ......................................125

Cod. 9 .3 .3 .................................................... 318

C. 2 q. 3 cc. 2 - 5 ........................................ 568

Cod. 9.35.5.................................................. 584

C. 2 q. 4 c c .1 - 3 .......................................... 78

Cod. 9.36.1.................................................. 568

C. 2 q. 5 c .1 2 .............................................608

Cod. 9.46.1-10........................................... 569

C. 2 q. 5 c. 21 (d .p .)..................... 140, 604

Inst. 1.2.9 .................................................... 171

C. 2 q . 11 c .1 ............................................ 196

Inst. i.2 3 .p r .................................................. 86

C. 3 q. 4 c .12 .............................................128

Inst. 2.15 .................................................... 429

C. 3 q. 6 c .1 ............................................... 182

Inst. 2.18 .................................................... 425

C. 3 q. 6 c .1 6 .............................................128

Inst. 2.22 ........................................... 425, 430

C. 3 q. 7 c .1 ...............................................221

Inst. 4.4 ..............................................569, 584

C. 5 q . 1 cc. 1 -1 6 ........................................568

Nov. 3 4 . 1 .................................................... 381

C. 5 q. 6 c .1 ............................................... 568

Nov. 89.15 ................................................. 560

C. 5 q. 6 c. 2 ............................................... 513 C. 6 q . 1 cc. 2?1 6 ............................... 568, 571

C a n o n L aw

C. 9 q. 2 c. 7 .................................................. 86 C. 9 q- 3 c. 3 .................................................. 87

Dist. 5 c c .1-4 ..............................................10

C. 9 q. 3 c. 8 ................................................396

Dist. 8 c. 2 .................................................. 272

C. 9 q. 3 c .1 7 .............................................. 95

D ist.11 c. 7 .................................................. 171

C .10 q . 1 c .1 0 ............................................499

D ist.12 c. 6 .................................................. 171

C .10 q . 1 c .1 1 ..............................................337

D ist.12 c .10 .................................................. 5

C .10 q. 2 c. 4 ..............................................374

Dist. 25 c. 6 ...............................................601

C .10 q. 3 c. 2 ..............................................470

Dist. 37 c. 5 ................................................ 198

C .11 q . 1 c. 4 1 ............................................ 514

Dist. 46 cc. 5-6 ........................................ 568

C .11 q . 1 c. 47 (d.p.) ........................... 508

Dist. 47 c .1 (d.a.) ....................................469

C .11 q. 3 c .1 3 ............................................ 571

Dist. 47 c. 8 ...............................................469

C .11 q. 3 c .1 9 ............................................ 638

Dist. 50 c. 5 .................................................76

C .11 q. 3 c. 7 1 ..............................................374

Dist. 50 c. 24 ( d .p .) ....................................77

C .12 q. 2 c. 2 8 ..............................................42

Dist. 50 c. 32 (d.p.) ....................................77

C .12 q. 2 c. 4 6 ........................................... 392

Dist. 56 c. 2 ...............................................198

C .12 q. 5 c. 2 ..............................................389

Dist. 56 c .10 ...............................................50

C .13 q. 2 c. 4 ..............................................392

T A B L E OF C I T A T I O N S TO IUS C O M M U N E

X X IX

C .14 q. 2 c. 2 ............. .............................381

X 1 .6 .4 2 ...................................................... 493

C .14 q. 3 c . 1 ( d .a .) … ............................. 378

x 1.6.54 ...................................................... 543

C .14 q. 6 c . 1 ............ .............................618

X 1.11.17.......................................................601

C .15 q. 3 c. 4 ............. ............................... 86

X 1.13.6.........................................................137

C .16 q . 1 c. 2 ............. .............................567

X 1.14.3................................................ 274,275

C .16 q . 1 c. 9 ............. ............................... 23

X 1.14.14-15 ................................................ 275

C .16 q. 3 c. 7 ............. ............................. 335

X 1 .1 9 .1 ...................................................... 430

C .16 q. 7 c. 2 5 ........... ............................. 472

X I .2 3 .I .......................................................220

C . 16 q. 7 c. 38 ........... .............................101

X 1.23.6 .......................................................220

C .17 q. 4 c. 9 ............. ............................. 497

X 1.23.7................................................164, 218

C .17 q. 4 c. 2 0 ........... ............................. 637

X 1.25.1.........................................................376

C .17 q. 4 c. 2 1 ........... ............................. 495

X 1 .2 9 .3 .........................................................98

C .17 q. 4 c. 2 9 ........... • 5 6 ,103,129, 209, 505

X 1.29.4 .......................................................618

C .18 q. 2 cc. 28-9 … .............................220

X 1 .2 9 .6 .........................................................98

C. 21 q. 4 c . 1 ............. .............................537

X 1.29.21-2 .................................................. 98

C. 22 q . 1 c . 1 7 ........... ................................115

X 1.29.28...................................................... 391

C. 22 q. 4 c. 2 3 ........... .............................363

X 1.32.1.........................................................226

C. 22 q. 5 c .12 ........... .............................358

X 1.34-1-2 .................................................... 59

C. 23 q. 4 c. 4 ............. .............................632

X 1.36.8 ...................................................... 453

C. 23 q. 4 c. 2 4 ........... .............................178

X 1.36.11.......................................................526

C. 23 q. 5 c. 23 ........... .............................272

X 1 .4 0 4 ...................................................... 544

C. 26 q. 7 c .12 ........... ....................497,603

X 1.43.1-14.................................................. 328

C. 27 q. 2 c. 3 1 ........... .............................562

X 2.1.2 .........................................................162

C. 27 q. 2 c. 34 ( d .p .) . .............................524

X 2.1.3.............................115,176—7, 479, 606

C. 30 q. 5 c. 6 ............. .............................561

X 2.1.13 ............................... 8 8 ,104, 356, 606

C. 31 q. 2 c .1 ............. .............................530

X 2 .2 .1 .........................................................427

De pen. D ist.1 c .14 . .............................603

X 2 .2 .3 .........................................................427

C. 35 q . 1 c .1 ................ .............................541

X 2.2.5 ................................................ 427,496

De cons. D ist.1 c. 69 . .............................467

X 2.2.6 .........................................................116

De cons. Dist. 3 c .1• • .............................384

X 2 .2 .7 .........................................................556

De cons. D ist.11 c. 95 .............................441

X 2 .2 .8 .........................................................379

X 1.2.10 ...................... ...................... 170,175 X 1.3.31........................ .............................370

X 2.2.10.................................356,

427, 509

X 2.2.11.................................257,

423, 509

X 1.4.3 ........................ .............................172

X 2.2.13................................................182, 207

X 1.4.10-11................. ...............................171

X 2.2.14 ...................................................... 514

X 1.6.1-60.................... .............................491 X 1 .6 .7 ........................ .............................274

X 2.2.15 ................................................115, 356 X 2.2.17.........................................................185

T A B L E OF C IT A T IO N S TO IUS C O M M U N E

X 2.2.18 ..

1〇3, 3巧 ，5〇9

X 3ユ 3 • •

—

163

X 2 .4 .1 ...

… 322, 326

X 3ュ 7 …

. . . .

6ii

X 2 .5 .1 …

......... 325-6

X 3-2.8 . . ,

…

X 2.6.1-5 .

… 325, 327

X 3.5.1-38

218, 483

X 2 .7 .1 ..•

...............198

X 3.5.5

••

—

X 2 .8 .1 …

............... 318

X 3.5.10 •

…

.3 6 9

X 2 .9 .1 .._

............... 356

X 3.5.19 • •

—

155

X 2 .9.3 • •

............... 385

X 3 .5 .2 1 • •

3 1 8 , 37〇

X 2.13.7 • _

............... 5〇3

X 3-5-29 .

1 3 9 >1 5 6

X 2.13.10 .

............... 535

X 3.5.3。 • •

369, 459

X 2.14.5 • •

............... 347

X 3.7.3 • •

，1〇1，巧 4

X 2.14.6 . •

............... 347

X 3.7.6 • •

—

X 2.14.10 •

— 318, 321

X 3.8.1..

X 2.18.3 • •

............... 33〇

X 3-10.10 .

—

X 2.19.2 .

............... 335

X 3.13.1-12

1〇3, 4 7 7

X 2.19.11.

••• 339, 576

X 3.17.2

•

—

377

X 2.20.14

337, 516, 6 〇1

X 3-18.2 .

…

• 2〇5

X 2.21.1..

… 164, 339

X 3.24.1.

—

103

X 2.22.1-16

............... 333

X 3.26.1.

—

389

X 2.23.1-16

............... 33〇

X 3-26.2 .

—

389

X 2.23.10 •

............... 331

X 3.26.3

.

39〇 , 3 9 6

X 2.23.11• •

............... 53〇

X 3-26.4

.

• 5 1 ，39〇

X 2.23.12 .

............... 331

X 3.26.6 .

—

391

X 2.24.18 .

… 356, 363

X 3.26.7 .

—

389

X 2.24.24 •

............... 363

X 3-26.10

1 0 2 , 191

X 2.24.36

............... 335

X 3 - 2 6 .il .

•••39〇

X 2.25.2 • •

• • • 巧 8, 638

X 3-26.12

—

X 2.25.5 • •

.............. 349

X 3.26.16

39〇 , 4 2 5

X 2.26.1…

............... 191

X 3-26.17 .

392, 396

X 2.27.6 . •

.............. 344

X 3.26.19 .

—

391

X 2.27.7 • •

............... 245

X 3.28.7 .

—

392

X 2.27.16 _

............... 343

X 3-28.12

…

• 4〇 5

X 2.27.23 .

• • • 569 , 571

X 3-30-2 .

—

439

X 2.28.17 •

............... 352

X 3.30.4 •

• • 450-1

X 2.28.53 •

........... 208

X 3.30.5 •

—

438

X 2.28.59 •

.............. 349

X 3-30-14

…

.436

X 2.28.66 •

.............. 349

X 3.30.17 •

439, 442

X 3.1.15 . . •

............. 382

X 3-3〇-i 8

—

604

1〇3

332

154> 218 1〇3

392

437

T A B L E OF C I T A T I O N S TO IUS C O M M U N E

X XXI

X 3.30.20 •

...............................437

X 4.15.5............................................... 548, 549

X 3.30.22 .

................................ 438

X 4.15.7......................................................... 549

X 3.30.30 .

............................. 448

X 4.16.1............................................... 320, 532

X 3.31.8 . . •

................................ 102

X 4.17.6 ....................................................... 196

X 3.34.1• • •

................................ 102

X 4.17.7......................................................... 557

X 3.34.7 • •

................................ 632

X 4.20.1-8 ...................................................561

X 3.37.27 • •

................................ 275

X 4 .2 0 .2 ....................................................... 558

X 3.38.1-31

...................... 477, 480

X 4 .2 0 .4 ....................................................... 562

X 3.38.22 .

...................... 172, 480

X 5.1.10......................................................... 516

x 3.39.4-5

................................ 356

X 5.1.14 ....................................................... 605

X 3.39.23 • •

................................ 219

X 5.1.15...................................................217,385

X 3.40.1-10

................................ 477

X 5.1.17..........................................................607

X 3.40.4 • •

................................ 150

X 5.1.19..........................................................610

X 3.48.1-6

............. 477,494,499

X 5.1.21..........................................................610

X 3.49.1-10

...................... 477 , 494

X 5.1.24 ....................................... 137, 337, 604

x 3.49.3 •

................................ 174

X 5.1.25......................................................... 155

X 3.49.5 …

........................103,495

X5.2.1-2 ..................................................... 569

X 3.49.6 • •

...................... 174, 497

X 5.3 -1-46 ................................................. 477

X 3.49.10 •

................................ 174

X 5.3.8 ......................................................... 483

X 3-50-9 •.

................................ 618

X 5 .3 .9 ......................................................... 468

X 3-50.10 •

................................ 189

X 5.3.17......................................................... 369

X 4.1.10 …

................................ 530

X 5 .3 .4 2 ....................................................... 467

X 4.1•巧 …

................................ 524

X 5.6.12 ....................................................... 356

X 4 丄1 9 … •

................................ 530

X 5.6.14 ....................................................... 356

X 4-2.2 . . •

................................ 550

X 5 .7 .9 ..........................................................639

X 4ユ7 …

................................ 551

X 5.7.13 ....................................................... 639

X 4.3.1—2 •

............................... 531

X 5.17-1-7.....................................356, 494 , 545

X 4.3.3 • • •

................................ 524

X 5.18.3 ....................................................... 469

X 4.5.1-7 •

...................... 532, 534

X 5.19.1-19............................................378, 381

X 4-7-!-8 .

....................553, 56〇-1

X 5.20.7.........................................................511

X 4.9.1…

................................ 544

X 5.21.1-3..................................................... 632

X 4-9-2 . . •

................................ 552

X 5.24.2 ....................................................... 103

X 4.11.6 • •

................................ 553

X 5.31.4 ........................................................629

X 4.14.2 . •

................................ 522

X 5.31-12....................................................... 539

X 4.14.6 • •

...................... 543, 547

X 5.32.2 ......................................................632

X 4.14.8 . •

............................... 541

X 5.34.1-16..................... 602, 608-9 , 614, 617

X 4-15-1••

................................ 548

X 5.34.5 ....................................................... 572

X 4-!5-2 • •

................................ 550

X 5.34.12........................................................612

T A B L E OF C IT A T IO N S TO IUS C O M M U N E

XXX11

X 5.34-15 • • •

............. 613

Sext 2.15.1.................................................... 350

X 5-36.1-9 • •

133, 357, 569

Sext 2.15.3.................................................... 141

X 5.36.5 …

............. 587

Sext 2.15.7.................................................... 163

X 5.36.6 …

.............. 579

Sext 3.4.1-41....................................... 218, 459

X 5.37.1-13 .

… 602, 624

Sext 3.4.2.............................................. 巧 3, 487

........... 620

Sext 3 .4 .4 .................................................... 369

X 5-39-15 • • •

........... 286

Sext 3.4.22 .................................................. 154

X 5-39-22 ..

........... 495

Sext 3.7.1-8.................................................. 218

X 5-39-35 • •

........... 600

Sext 3.7.3 .................................................... 154

X 5-39-44 • •

........... 620

Sext 3 .7 .4 .................................................... 391

X 5.4〇.2 i …

............... 451

Sext 3.15.1.................................................... 102

X 5.41.1-11•

............... 154

Sext 3.20.1.................................................. 206

X 5.41.6 …

...............6i8

Sext 3 .2 0 .4 .................................................. 514

Sext 1.3.11..

...............382

Sext 3.21.1............................................ 150,153

Sext 1.4.2 . _

............. 153

Sext 3.23.3................................... 103, 505, 514

Sext 1.6.1-47

............. 491

Sext 3.23.4 .................................................. 153

Sext 1.6.9 . •

............. 154

Sext 5.2.7...................................................... 153

Sext 1.6.12 . •

............. 153

Sext 5.5.1-2........................................378,380

Sext 1.6.14. •

............. 154

Sext 5.11.1.................................................... 604

Sext 1.6.24 .

............. 491

Sext 5.11.20.................................................. 621

Sext 1.6.34 •

...............189

Sext 5.11.21.................................................. 153

Sext 1.6.40 .

.............. 392

Sext 5.[13].4 .......................................587, 618

Sext 1.13.2 . •

............. 154

Sext 5.[13].2 9 ..............................................492

Sext 1.19.1-9

............. 154

Sext 5.[13].4 2 ..............................................414

Sext 2.1.1..•

............... 352

Sext 5.[13].4 9 ..............................................577,618

Sext 2.2.1..

.........182-3

Clem. 1.3.1-8 ..............................................491

Sext 2.2.2 . •

............... 352

Clem. 1.6.1.................................................. 275

Sext 2.2.3 • •

• • • 176, 358

Clem 1.6.3 .................................................275

Sext 2.4.2 . •

............. 154

Clem. 2 .1 .2 ................................. 巧 3, 257, 314

Sext 2 .7 .1 .•

............... 327

Clem. 2.12.1................................................350

Sext 2 .9 .1 .

............. 153

Clem. 5.5.1.................................................. 378

Sext 2.9.2 . •

............... 327

Clem. 5.11.2......................................... 巧 3, 314

Sext 2.10.2 .

............... 330

Extrav. Comm. 1.3.1-4.............................. 154

Sext 2.11.2 . •

............. 154

Extrav. Comm. 3.2.10................................ 154

Sext 2.12.1..

............. 149

Extrav. Comm. 3 .4 .1 ................................ 494

Sext 2.14.1.•

............. 157

Extrav. Jo. XXII 3 . 1 ...................................154

X

5 -3 9 -6

. ..

1

The Anglo-Saxon Church church has never been without laws, and in many respects the Anglo-Saxon church 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.1The 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 he

1 For the Sermo, see Dorothy Whitelock, Sermo Lupi ad Anglos (2nd edn.1952) [EHD, i, no. 240]. The correspondence is discussed below, at n n .10-23, and the Anglo-Saxon laws at various points in this chapter.

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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.2 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 mission­ aries 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.3 To assert its legal signi­ ficance 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.4 Likewise, the solemn charter employed by the Anglo-Saxons was first taken over from the private deeds used in late imperial Rome.5&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 R Donald Logan, History o f 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 Necessitas5 (1914) 29 EHR 689-703, at 702-3; Pierre Chaplais, 'Who Introduced Charters into England? The Case for Augustine5in Prisca Munimenta: Studies in Archival & 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.

T H E M I S S I O N OF ST A U G U S T I N E

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.6 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 imme­ diate 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’.7 Among the consequences, the Roman inspiration that lay behind Augustine's mis­ sion and the subsequent conversion of what had been a more largely pagan popu­ lation 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. Bedes account tells how the synod sought to bring English practice into line with that which was observed generally in the Western church and more partic­ ularly in Rome.8 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.9 6 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 law5; Margaret Deanesly, ötaelights on the Anglo-Saxon Church (1962),137-44; Robert Rodes, Jr., Ecclesiastical Administration in Medieval England: The Anglo-Saxons to the Reformation (1977), 6-10; John L. Barton, Roman Law in England ( = V 13a IRMAE;1971),4-6. 8 Bede, HE, bk. Ill, c. 25. 9 Veronica Ortenberg, The English Church and the Continent in the Tenth and Eleventh Centuries (1992),148-54.

4

THE A N G LO -SA X O N

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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.10 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.11 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.12

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. Augustine5 (1959)10 JEH, 1-49; Paul Meyvaert，‘Bede’s Text of the Libellus Responsionum of Gregory the Great to Augustine of Canterbury m 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 Great5(1976) 32 Traditio, 145-84.

T H E M I S S I O N OF ST A U G U S T I N E

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 prin­ ciple 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 divi­ sion 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 prac­ tice, 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 permis­ sion 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.13 For example, even while admitting that differ­ ences in usage had existed, Bede was quite doubtful about the wisdom of allow­ ing variations in the clerical tonsure.14 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.io), 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 Theme5 (1963) 4 Heythrop Jn l 141-62.

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THE A N G LO -SA X O N

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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 jurisdic­ tion 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 punish­ ments, some of them of extreme severity, for offences like the theft of chattels from churches.16 The laws of ^thelbert, 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.17 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, ii. 2, s.v. Kirchenraub. See also Hiroshi Hayashi, Essays in Anglo-Saxon Law (1990), i. 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 JEthelberht to Magna Carta (1966), 3-4.

T H E M I S S I O N OF ST A U G U S T I N E

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 juris­ diction 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 Gregorys response would occasionally appear in later Anglo-Saxon laws,18 and in the long history of the canon law, it 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.19 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 affin­ ity, although these prohibitions were not always identical with those that would obtain later on.20 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 England5(1998) 27 ASE 209-32. 19 A. Esmein, Le Manage en droit canonique (1891),i. 97-108. 20 See e.g. Bede, HE, bk. Ill, 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.

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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.21 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 or 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 ca certain secular law in the Roman republic'. It permitted marriages between cousins. However, he added, c[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.

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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 cone 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 con­ duct 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 popes 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 encour­ age 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 cput 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

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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.22Virtually 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.23 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 England5(1994) 23 ASE 5-17, arguing that these questions dedt with matters of purity regarded as important by the B池 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 m St Augustine and the Conversion of England (above n. 3),174-86; Becky Lee, 'The Purification of Women after Childbirth5(1995-6)14 Florilegium 43-55, at 44-6.

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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 cdelighf 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

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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 tms oecause 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.24 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 ygS.26 The Council of Chalcedon (451)was referred to in a decree of the English council of Chelsea (815)，27 and the faith of the Council of Nicaea was reiterated and affirmed at a legatine council heid m England during 787.28 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 Theodore5in Archbishop Theodore: Commemorative Studies on his Life and Influence, ed. Michael Lapidge (1995), 27-8. 26 Haddon and Stubbs, iii. 525-6. 27 c. 8 in Haddon and Stubbs, iii. 582. 28 c .1 in Haddon and Stubbs, iii. 448. See also iElfric?s Pastoral Letter (993 X c.995), no. 6 in C. & S. Iy p t .1,197. See also Deed of Bishop Byrhthelm (957) in W. de Gray Birch, Cartularium Saxonicum (1885-99), iü- n 〇- 997- See generally J. D. A. Ogilvy, Books Known to the English, 597-1066 (1967)，120-3.

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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 ^thelbert of Kent (d. 616) as legislating iuxta exempla Romanorum.30 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.31 But at a minimum, Bedes 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 sub­ jects raised in these letters concerned the law of the church.34 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,36 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), 29-30,9732 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 church5.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 m Lawy 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.

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Hadrian, he was able to establish a school at Canterbury in which, among other things, some instruction in Roman law took place.37 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.38 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 dis­ cussed 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 'internationaF 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.39

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 ^thelred was brought 'before the holy synod of a priestly counciF.40 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^ 600-899 141-68. 38 Hadden & Stubbs, iii.119. 39 iEthelwulf, De abbatibus (803 X 821),ii. 337-8, ed. A. Campbell(1967), 28-9. 40 See Henry Adams, Essays in Anglo-Saxon Law (1876), 309-10.

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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.41 Synods might also undertake investigations, making use of the ancient institu­ tion 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,43 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, cfor diverse reasons' annual meetings were to be held at a still unidentified place called 'Clofeshoch' or cClovesho'. That would furnish the standard for the English church.45 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.46 Not much evidence of diocesan 41 Benedict IV, De synodo diocesana, lib. IV, c.1 § 4. 42 See e.g. Regino of Prüm, Ltbn duo de synodalibus causis, lib. II, cc. 2-4, ed. R G. A. Wasserschieben (1840, repr.1964)，207-8. 43 Lateran IV, c. 6 in Decrees, Tanner, i. 236-7. 44 See Le Pontifical Romano-Germanique du dixième stede, ed. Cyrille Vogel and Reinhard Elze (1963), ii. 59, in which a meeting was to be squeezea into the activities of the crowded morning hours. 45 Haddon and Stubbs,111.120. 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, m England (1961),215. Attempts to identify the exact location have a long and not terribly successful history; see Simon Keynes，TTze Cbwndk qf しw/b/zo (1994)， 14 17. 46 Letters ofLanfranc, no.11. 一

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(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.47 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 cAclea (probably Oakley) in 782, a (contentious’ synod held at Chelsea in 787, one in Northumbria in 787, and another at cAclea in 788; it lists none for the ten years before and after these terminal dates.48 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, how­ ever altered they may have been in parts, and if one also accepts the reasonable assumption that charters witnessed by large number of ecclesiastics were prob­ ably made in the course of synods, then the holding of synods begins to look almost like a regular occurrence.50 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.51 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. 6y 9 in Haddon and Stubbs, iii. 581,583. 48 EHDy i . 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 ofClofesho (above n. 45); Hanna Vollrath, Die Synoden Englands ms 1066 (1985),159-234. 51 See e.g. c. 6 (requiring priests to announce in synods what had gone wrong among their flocks). Wulfstans Canons of Edgar, ed. Roger Fowler (1972), 2-3; C. & S. Iypt.1,317. More evidence is collected in R. R. Darlington, 'Ecclesiastical Reform in the Late Old English Period5(1936) 51 EHR 38^-422.

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dealing with such indiviaual bishops and priests as seemed right or necessary.52 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.53 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.54 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.55 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.io, 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.56 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 AS£ 175-95. 54 Haddon and Stubbs, iii. 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, iii. 579-83. 56 See, e.g., Ealdorman iEthelwine and Bishop ^Escwig 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.

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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.57 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 Godl58 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 meet­ ings as csynod or witenagemof, 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 c^thelheard the archbishop pre­ siding and judging, with the witness of King Cenwulfl60 The records themselves regularly stated that disputes were being heard cat synodal councils', and matters were recorded as having being dealt with cby synodal judgments'.61 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 State5in Lagiustizia nelValto medioevo (Secoli IX -X I) ( = 44 Settimane di Studio del Centro Italiano di studi sulFalto medioevo;1997), 548-81, at 569-70. 58 VIII Atr 2:1;II 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, iii. 555 (805): '[J]usto et synodali judicio restituere huic sanctae familiae curavimus5; ibid. 567-8 (810): '[U]trique partes ad synodale concilium advocari et invitari jubebanturl

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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 estab­ lished 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 dur­ ing 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.62 In the event, these instructions proved impossible to fulfil. Augustine was given Canterbury rather than London as his principal see by King ^thelbert, and little could be done at York until the efforts of Bishop Paulinus succeeded in persuad­ ing 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 envi­ sioned, 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.

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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.63 Nothing like the twelve bishoprics envi­ sioned in Gregory s letter were created for the northern province. This was a mis­ sionary 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 gov­ erned 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, pro­ vided 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.64 Under whatever exact organizational form they took, they controlled large areas of land. From them, missionary work was under­ taken. 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.65 However, it also made the creation of diocesan organization more diffi­ cult, 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 cthe 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 England5(1995) 4 Early Meateval 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.

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traditions of Augustine's church'.66 Professions of canonical obedience, made by suffragan bishops to the archbishops of Canterbury, exist from the end of the eighth century.67 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.68 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 govern­ ance 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 trap­ pings 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.69 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 Lichfield5in 1SCH (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 Lanfrancy 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.

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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 ca remote ideal' in these early centuries.70 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. Bedes Life of St Cuthbert (d. c.68y) described it as cthe 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.71 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.74 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.75 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.76 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 aMinster Hypothesis (1995) 4 Early Medieval Europe 87-104. 71 Lives of the Saints, trans. J. R Webb (1965) ch. 9, 84. 72 Alan Thacker, 'Monks, Preaching and Pastoral Care in Early Anglo-Saxon England5in Pastoral Care before the Parish, ed. John Blair and Richard Sharpe (1992),137-70, at 147. 73 John Blair, 'Clerical Communities and Parochial Space5in 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 (= 61C. &Y. Soc.; 1966)，90—2.

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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).77 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 c. 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 him­ self 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 Eigenkirche, or proprietary church, in German speaking lands.80 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, i. 261[Laws, Robertson, 112-13]. 78 Letter to Egbert, archbishop of York (734), in EHDy i, no.170 (p. 737). 79 The evidence is reviewed in Stenton, Anglo-Saxon England (above n. 2 9 ),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 Klingelhöfer, Manory Villy and Hundred: The Development of Rural Institutions in Early Medieval Hampshire (1992) 58-75. 80 The fundamental work is H. Boehmer, 'Das Eigenkirchentum in England5in Texte und Forschungen zur englischen Kulturgeschichte: Festgabe für Felix Liebermann (1921),301-53; see also Peter Smith, 'The Advowson: The History and Development of a Most Peculiar Property5in (2000) 5 Ecc LJ 320-39.

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the builders of these churches required more time and organizational skill than this age had. The transformation was not accomplished in Anglo-Saxon England.81 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.84 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 jus­ tice 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.86 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 nelValto 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 Before5in Domesday Studies, ed J. C. H olt.(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, ^.650-1100' (2000), 36 Northern History 199-216; Donald Bullough, 'Burial, Community and Belief in the Early Medieval West5,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, n o . 1 . See gen­ erally Charles Drew, Early Parochial Organisation in England: The Origins o f 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 0/9, p. 82.

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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 maybe 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 depuis les Fausses Décrétales jusquau Décret de Gratiën (1931,repr.1972).

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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 DionysioHadriana, 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.89 Most of them never achieved more than local circula­ tion 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 immedi­ ately following Augustine's arrival in England, probably the most important collec­ tions were three: the Vetus Gallica: apparently compiled at Lyons at some time between 585 and 627, it was much used in later systematic collections;90the 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.91 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.92 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 stede (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 alia storia delle fonti del äiritto canonico I: II 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 colección canónica 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, Einfluß und Verbreitung der

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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 lay­ men. 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.94 The laws of King ^thelred (1014) refer to instructions for the clergy found in books of canons, without telling us what books these were.95 Bishop Leofric (d .1072)left a book of canons to the church at Exeter.96 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 Fälschungen 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 Überlieferungsformen (1929), 203-5, and Martin Brett, 'Theodore and the Latin Canon Law5in Archbishop Theodore: Commemorative Studies (above n. 25), 120-40. 95 c. 28 in C. & S. Iyp t.1,397. 96 Grant (c.1070), in Anglo-Saxon Charters, ed. A. J. Robertson (1956), 228-9.

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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 cata­ logues 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.100 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.101 An English collection of glosses, including canonical material presumably taken from a Continental collection known as the Sanblasiana, was known at Canterbury about 800.102JEijrics 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 cknew the canons to any extent'.103 A collection of canons made in England, once attributed to Archbishop Ecgbert of York (d. 766), but now associated with 97 Haddon and Stubbs, iii. 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 Papacy5in 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 England5 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 JEijrics in altenglischer und lateinischer Fassung (1914, repr.1966), pp. xc-cxvii, and c.13 in C. & S. Iyp t.1,425.

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Archbishop Wulfstan (d .1023), made similar use of several canonical collections, probably including the Dionysio-Hadriana, the Hispana, and the Hibernensis.104 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.105 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 Bedes Historia ecclesiastical6 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.107 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.108 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. Bedes 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.109 The result looks much the same in looking at the briefer document from the mid-eighth century called cThe Dialogue of Egbert, Archbishop of York'. When 104 Wulfstans 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, Einfluß 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 A S E 1-60. 107 Stenton, Anglo-Saxon England (above n. 29), 462. 108 There are exceptions, e.g. 'Aelfric's Pastoral Letter for Wulfsige IIF (993 x c.995), in C. & S. Iy pt. 1,196-226 (biblical arguments and conciliar sanctions mixed together in about equal portions for defining proper clerical conduct). 109 Bede, HEy bk. Ill, c. 25. Richard Abels, 'The Council of Whitby: A Study in early Anglo-Saxon Politics'(1983) 23 Jnl British Studies 1-25.

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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.110 Similarly, in arguing that the clergy should never carry arms, Archbishop ^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.111 For controversial questions, the canonical collections often seem to have been most remarkable by their absence. Perhaps utility in disagreements was not their function.112

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.113 In a volume devoted to ecclesiastical law, their role in articu­ lating the law of the English church must be the principal focus, though the two cannot be entirely separated. N A T U R E OF T H E P E N I T E N T I A L B O O K S

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.114 110 Interrog. XIII in Haddon and Stubbs, iii. 409. 111 First Old English Pastoral Letter for Wulfstan, nos. 190-5, in C. & S. Iyp t.1,297-8. 112 See Peter Cramer, 'Ernulf of Rochester and Early Anglo-Norman Canon Law5 (1989) 40 JEH 483-510, at 496, where their purposeful use is described as akin to 'an extension of a prayer5. 113 Tms process has been the subject of much scholarship, some of it quite controversial; see Rob Meens, 'The Frequency and Nature of Early Medieval Penance5 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 cLibri paenitentiaies (= 27 Typologie des sources du moyen age occidental;1978); Allen J. Frantzen,

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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 cready-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 ca mechanical prescription of so much penance for so much sin.115 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 homiciae 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.116

The system does seem mechanical. That appears almost to have been its aim. But the characteristic can also be put more positively.117 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 Penitennals and their Influence on Continental Christianity (1923); Ferme, Introduzione (above n. 89), 105-12,125-7; R W. H. Wasserschieben, Die Bußordnungen der abendländischen 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 Wasserschieben, Die Bußordnungen (above n .114), 259, 265. See M. L. W. Laistner, 'Was Bede the Author of a Penitential?5(1938) 31 Harvard Theological Review 263-74. 117 R J. Payer, 'The Humanism of the Penitentials and the Continuity of the Penitential Tradition (1984) 46 Mediaeval Studies 340-54.

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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.118 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 differ­ ences, 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 Prüm (d. 915), compiler of the Libri duo de synodalibus causisy included several.120 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 PENITEN TIA L BOOKS A N D 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 cbeat' 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.121 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 Penitentials5 (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, iii. 372-4.

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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.122 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, fornica­ tion, 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 under­ stood 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.123 The overlap 122 Poenitentiale Theodori, 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 o f Christianity (above n. 79), 257-61. 123 Thomas P. Oakley, English Penitential Discipline and Anglo-Saxon Law in their Joint Influence (1923), 53.

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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 ^thelred, for example, stated that violators of the laws of God or man should make amends under both the ecclesiastical and the secular law.124 Excommunication could be regarded as a kind of spiritual outlawry,125 and the penitential called cPseudo-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.126 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, clest they imagine they can sin with impunity'.127 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.128 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'.129 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.130 They interrupted the orderly development of the canon law and they turned Gods forgiveness of the sins of men and women into a market transaction. 124 VI Atr 50 in Liebermann, Gesetze, i. 258-9 [Laws, Robertson, 104-5]. 125 Pollock and Maitland, i. 478. 126 Lib. II, c. 9 in Wasserschieben, Bußordnungnen (above n .114), 225. See generally E. M. Treharne, 'A Unique Old English Formula for Excommunication from Cambridge, Corpus Christi College 303' (1995) 24 A S E 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 c. 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 'Libripaenitentiales (above n.114),111-12. But see L. Bieler, 'The Irish Penitentials: Their Religious and Social Background5(1966) 8:2 Studia Patristica 329-39, esp. 332, where their advantages over the ancient system of penance are listed.

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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 peni­ tential 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.131 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 indi­ vidual 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. C H A R A C T E R I S T I C S OF E C C L E S I A S T I C A L L E G I S L A T I O N

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.132 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.133 As a general matter, 131 e.g. Burchard of Worms, Decretorum Libri X X (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, i. 46-7 [Laws, Attenborough, 62-3]. On Alfred's Codes, see Richard Abels, Alfred the Great Wan Kingship and Culture in Anglo-Saxon England (1998), 34-7, 275-7.

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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.134 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,135 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.136 King Alfreds laws from the late ninth century directed bishops to deal with priests guilty of homicide by deposing them from their orders.137 The cCode' 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.138 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 ^thelbert of Kent (d. 616), although written in the vernacu­ lar, 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 Altertum5(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 I Em 5—6 in Liebermann，Gesetze，i.188—9 [Laws，Robertson， 6—7]. See generally Barlow， Church 1000-1066 (above n. 59), 138-44. 139 A. W. B. Simpson, 'The Laws of Ethelbert5in On the Laws and Customs of England: Essays in Honor o f Samuel E. Thorne, ed. Morris S. Arnold et al (1981),3-17; W. W. Lehman, 'The First English Law5(1985) 6 JL H 1-23; Lisi Oliver, The Beginnings of English Law (2002), 52-116.

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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 cchurch-scof was to be paid under penalty of draconian fines to be imposed by the king.140 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 Arcnbishop Wulfstan.141 It has been often noted that in the last century or so of Anglo-Saxon rule, royal legisla­ tion 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.142 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. E X T E N T OF E C C L E S I A S T I C A L L A W M A K I N G I N E N G L A N D

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 vvi 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, AngloSaxon England (above n. 29)，453-4; Wormald，Making of English Law (above n. 31)，131-3; M. K. Lawson, 'Archoishop Wulfstan and the Homiletic Element in the Laws of iEthelred II and Cnut? in The Reign o f Cnut: King ofEnglandy Denmark^ and Norway, ed. Alexander Rumble (1994),141-64. 142 This is the conclusion ot Cubitt，Ängk-Sßxon し/zwrc/z Cbwndk (above n. 59)，54— 5. 140

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do have cut a poor figure when compared with the output of meetings held in Frankish Gaul and Spain.143 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 experi­ ence 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.144 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), 1

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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.145 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 prohioitions against wandering by the clergy or restated tra­ ditional rules designed to secure order in the church. cNo 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 cthe uncertainty' surrounding their ordination. Ecclesiastical property was not to be sold off or oth­ erwise 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.146 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.147 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 〇 da， from the 940s， for example, ordered the king and great men to cobey with all humility their archbishops and other bishops'.148The 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 II 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. Iypt.1,70: 'cum magna humilitate suis archiepiscopis omnibusque aliis episcopis obediantl

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collection: bishops were to be obeyed in those things which they commanded in Gods name.149 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 cgulf dividing its exalted aspirations from its spasmodic impact'.150 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.151

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 ana 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 jy Eg 1:g [n

Liebermann, Gesetze, i. 208-9 [Laws, Robertson, 32-3]: 'quibus incessanter in cunctis iustificationibus obedientes esse debemusl iso Wormald, Making of English Law (above n. 31),300. 151 See e.g. Barbara Yorke, Wessex in the Early Middle Ages (1995), 238-9.

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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 Gods 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.152A homily of Pope Gregory the Great spoke of the tithe as an obliga­ tion 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.153 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 Councils 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.155 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 cthe oblations of the faithful'. The Penitentials 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.156 Theodores 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.157 152 See John Seiden, A History of Tithes, ch. 5, no. 4, in The Works of John Seiden, iii, pt. 2 (1726), cols. 1105-7. 153 Giles Constable, Monastic Tithes from their Origins to the Twelfth Century (1964),18. 154 Decrees, Tanner, i.194. 155 The standard account is Paul Viard, Histoire de ia dime ecclésiastiquey principalement en France^ jusquau décret de Gratiën (1909). 156 Lib. II, tits. 2,14 in Haddon and Stubbs, iii.191,202-3. 157 John Godfrey, The Church, m Anglo-Saxon England (1962), 326-7.

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However, a legatine synod from the second half of the eighth century went a little further than Theodore had. It ordered that call men shall take care to give tithes from all they own.158 Subsequently, the laws of ^thelstan (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.160 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 ^thelred (1014) appear to have endorsed tripartition,161 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 Gregorys 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.162 It may have been 158 c .17 in Haddon and Stubbs, iii. 456-7: '[Pjraecipimus, ut omnes studeant de omnibus quae possident decimas dare’. 159 I As 2-3; I Em 2 in Liebermann, Gesetze, i . 147,185 [Laws, Attenborough, 122-3; Laws, Robertson, 6-7]. 160 iv 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.

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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.163 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; csoul-scof or a fee taken by the clergy for burials; cchurch-scot' or a fee payable from every agricultural holding in the fall; cRome-scof or 'Peter's pence' payable to the apostolic see.164 The origins of all these customary oblations are obscure, and their status under the classical canon law questionable. The csoul-scof 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 cchurch-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 pay­ ments 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 iuris 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. Eg x [n Liebermann, Gesetze, i. 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 Pence5, Annual Report Friends of Lambeth Palace Library (1984),10-29. See generally William Chaney, 'Anglo-Saxon Church Dues: A Study in Historical Continuity5(1963) 32 Church History 268-77. 163 jy

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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 responsibil­ ities 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 noth­ ing of this. The earliest laws treated marriage, at least in form, as a kind of sale.165 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.166 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,167 some forward movement occurred. INDISSOLUBILITY A N D 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.168 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 c . み S.ムp t.1，427— 31. 167 See Anne Klinck, 'Anglo-Saxon Women and the Law5(1982) 8 JM H 107-21. 168 por guides to the subject, see Liebermann, Gesetze, ii. 2, s.v. Eheschliessung; H. D. Hazeltine, 'Zur Geschichte der Eheschliessung nach angelsächsischem Recht5in Festgabe fü r Dr Bernhard Hübler zum 70. Geburtstage (1905), 249-84; Margaret C. Ross, 'Concubinage in Anglo-Saxon England5 (1985)108 Past & Present 3-34.

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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.169 Conversion of the Anglo-Saxons came first; fuller implementation of the church's law second. This pattern was continued. The laws of ^thelbert envi­ sioned the csale' of a maiden in marriage, at least cif there [was] no dishonesty in the bargain.170 Theodores Penitentiale imposed penance upon the husband who dismissed his wife and took another, but the second marriage was not treated as invalid.171 A man whose wife had committed adultery was free to marry again; even the guilty woman could do so after five years penance.172 Desertion for five years by a wife who 'despised' her husband furnished just cause for divorce and remarriage cwith the consent of the bishops 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.174 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 temper­ ing in practice. In doubtful matters, it stated, no sentence was to be given to com­ pel 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 ^thelred (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.176 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 EHDy 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. II, 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. Iypt.1,5.

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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’.177 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 chave more wives than one'.178 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.179 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 cto atone for' violation of the church's law if they did.180 Archbishop Wulfstans Sermo Lupi (c.1014) used the harshest terms to describe the habitual neglect of proper matrimonial practice that prevailed among the English.181 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 PR O H IB IT E D 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 疋 thelbert， as much for following Germanic custom in marrying his stepmother as for not embracing Christianity, 177 C. & S. Iy p t.1,72: 'cum aliis inlicitis personisl 178 II Cn 74; I Cn 7:3 in Liebermann, Gesetze, i. 360-1, 290-1 [Laws, Robertson, 212-13,162-3]. 179 cc.125-35 in Wulfstans Canon Law Collection (above n .104),135-52. See also Dorothy Whitelock, The Beginnings of English Society (1952),149-52. iso M rthu., cc. 61.2,64,66 in Liebermann, Gesetze, i. 384-5 [EHD, i. 438-9]. 181 EHDyi. 854-9. 182 Letters ofLanfranc, 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. 〇

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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.183 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 Gods 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.186 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 Oaas Constitutions', as already mentioned, forbade mar­ rying cognates or other unlawful persons'.189 Papal letters exhorted their English recipients not to marry'within their own kindred'.190 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.191 The laws of 愈 helred， by contrast， 183 Bede, HEybk. II, cc. 5-6. 184 c. 3 (Whitred), and c.15 (legatine) in Haddon and Stubbs, iii. 234, 455. iss Morthu., cc. 61-2 in Liebermann, Gesetze, i. 384 [EHD, i. 438]. 186 Die Briefe des heiligen Bomfatius und Lullus, ed. Michael Tangl (MGH, Ep. Select.1,1916), no. 32, trans, in part in EHDyi. 751-6; see Bernhard Jussen, Spiritual Kinship as Social Practice (2000),15-17. 187 EHDy iy no. 223. 188 c. 24 in C. & S. Iyp t.1,356. 189 C. & S. Iyp t.1,72: 'cognatis vel cum aliis inlicitis persoms. 190 Letter of Pope Leo IV (853) and Pope John VIII (877/78) in EHDy i, nos. 219, 222 (pp. 810-13).

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stated that csix degrees of relationship [meant] within the fourth kneel191192 But the easily used and detailed Arbores consanguinitatis and Arbores afßnitiatis 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.193 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 regu­ larity it would be tiresome to explore. JEijncs Pastoral Letters repeated the Nicaean canon virtually word for word,194 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.195 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 devotea himself to the Gospel, hard evidence to show the dismissal had taken place was not easy to come by. Moreover， St Pam himself had said it was better to many than bum (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 VI Atr 12 in Liebermann, Gesetze, i. 250-1 [Laws, Robertson, 94-5]. 193 c. 4 in Decrees, Tanner, i. 7. 194 Letter 2, no. 86, in Die Hirtenbriefe M-frics (above n .103), 45. 195 I Em 1 in Liebermann，Gesetze，i.184—5 Robertson，6— 7].

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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 cand to his issue, so long as they are in holy orders'.196 The 'Northumbrian Priests' Law' assumed that a priest would live with a woman, penalizing him if he deserted her and took another.197 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 prohib­ ited from taking wives in the future. The priests who were already married would not be required to dismiss their wives,199 and it would take strenuous efforts during the twelfth century before the ancient norm of priestly celibacy came to prevail in fact.200 SEXUAL A N D 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 in Anglo-Saxon Wills, ed. Dorothy Whitelock (1930), no. 37. 197 Northu., c. 35 in Liebermann, Gesetze, i. 382 [EHD, i. 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. Iypt. 2, 565. 199 Council of Winchester (1076), c.1 in C. S. Iypt. 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. 196

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incorporated into Gratians Decretum (Dist. 56 c .10).201 Incest was also declared a crime, and bishops were given a say in fixing the proper form of its punishment.202 Letters written by prominent ecclesiastics to secular rulers asserted an implicit claim to judge sexual transgressions of the laity.203 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.204 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.205 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,206 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 asso­ ciated with the church's ex officio jurisdiction right up to the abolition of episco­ pacy 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 ^thelbert 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.207 King Alfred's legislation required a 'betrothed maiden who commits fornication to pay compensation for her offence.208 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 Guthrum5,c. 4 (1002 X 1008) in C. & S. Iyp t.1,307. 203 See Ross, 'Concubinage5(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 Wasserschieben, Bußordnungen (above n .114), 238-9. 206 Elizabeth Archibald, Incest and the Medieval Imagination (2001),31-2. 207 Abt 31 in Liebermann, Gesetze, i. 5 [Laws, Attenborough, 8-9]. This has been a problematic text; see e.g. Theodore John Rivers, 'A Reevaluation of iEthelberht 31'(1976) 93 ZRGy Germ. Abt. 315-18; Rivers, 'Adultery in Early Anglo-Saxon Society5(1991)20 A S E 19-25. 208 Af 18:1-3 in Liebermann, Gesetze, i. 58-61 [Laws, Attenborough, 72-3]. See generally Marc A. Meyer, 'Early Anglo-Saxon Penitentials and the Position of Women (1990) 2 Haskins Soc. Jnl 47-61.

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they did leave some room for the exercise of the bishop's judgment about the severity of the penalties.209

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 ancil­ lary 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. i .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.210 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.211 However, the leading student of the subject discovered only an ecclesiastical orien­ tation to the assemblies where these cwill contests' were held, and he found also that tms orientation itself decreased markedly as the eleventh century approached.212 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 II 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 II Cn 70 in Liebermann, Gesetze, i. 356-7 [Laws, Robertson, 208-9]. 211 Will of Oswulf (810) in Haddon and Stubbs, iii. 567-8. 212 Michael M. Sheehan, The Will in Medieval England (1963), 63-4.

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types of property,213 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 some­ times embraced both lands and chattels.214 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 cmost 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.215 Later removal of the power of devise was resented by the clergy.216 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 bene­ fited 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 Moveaole Wealth in Anglo-Saxon England5in Medieval Settlement Continuity and Change, ed. R 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. 216 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.

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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.217 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?218 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.219 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: cHe who detracts from this disposition, may God deprive him of the kingdom of Heaven. Language like this was a common testa­ mentary malediction.220 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-xiii; Kathryn A. Lowe, 'The Nature and Effect of the Anglo-Saxon Vernacular Will5(1998)19 JLH 23-61, esp. 36-41. 219 R. J. R. Goffin, The Testamentary Executor in England and Elsewhere (1901),35-7. 220 〇f Thurkil and iEthelgyth (c.1050), in Whitelock, Anglo-Saxon Wills (above n .196), no. 36.

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his last words could be heard and later reliably established.221 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. Bedes 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 tniras and later practice has long been tantalizing enough to raise the possibility of a link between Anglo-Saxon times and later testamentary practice.224 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.226 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.227 The absence of specific Anglo-Saxon legislation on the subject only compounds the uncertainty. 221 Intern II, in Haddon and Stubbs, iii. 404. 222 This is the theme of the 'General Preface5by 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 JElfeh. (late tenth century), a division into tniras 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 〇f 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 England5 (!999) 38 Jnl British Studies 399-422; Victoria Thompson, 'Women, Power and Protection in Tenth- and Eleventh-Century England5in Medieval Women and the Law, ed. N. J. Menuge (2000),1-19, at 9-16.

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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.228 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 exemp­ tion 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.229 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.230 Or it might mean that the right of sanctuary in churches should be respected.231 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, cRegnum and sacerdotium in the Early Eleventh Century5in England before the Conquest (above n .10), 129-45. 229 e.g. Grant of Offa (787) in Haddon and Stubbs,111.462-3: 'ad libertatem «cclesiasticam5; Wi 1 in Liebermann, Gesetze, i.12 [Laws, Attenborough, 24-5]. 230 V Atr 10:2, in Liebermann, Gesetze, i. 240-1 [Laws, Robertson, 82-3]. 231 VIII Atr 1:1 in Liebermann, Gesetze, i. 263 [Laws, Robertson, 116-17].

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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.232 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 recog­ nition 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. 4 c. 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.236 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.237 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, iii. 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 Confessor5(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), A SQ s.d. 855; 'Constitutions of Archbishop Oda?, c.1 (c.946) in C. & S. Iyp t.1,69. 235 See e.g. 'A Compilation on Status', c. 8 (1002 X 1023), EHDy 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, i. 62-3 [Laws, Attenborough, 74-5]. An example of a cleric's being brought before the bishop in a case of thett is found m the Liber Eliensis, lib. II, c. 32 (above n. 56), 105-6. 237 'Canons of Edgar5,c. 7 (1005 X 1008) in Wulfstans Canons of Edgar (above n. 51);C. & S. Iyp t.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,111.452-3.

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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.238 In an age without regular spiritual courts, perhaps the later canonical position in which the clergy enjoyed a jurisdic­ tional 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 involv­ ing more than 505. should be dealt with by the bishop, whereas those of more than that amount should be heard by the king.240 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.242 Even some of the legisla­ tion 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, ii. 439, no.18. 239 e.g. Letter of Wealdhere, bishop of London (704-5) to the archbishop of Canterbury in EHDy i, no.164. See Pierre Chaplais, 'The Letter from Bishop Wealdhere of London to Archbishop Brihtwold of Canterbury: The Earliest Original aLetter Close55extant in the West5in Medieval Scribes^ Manuscripts & 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 II Cn 54:1 in Liebermann, Gesetze, i. 348-9 [Laws, Robertson, 202-3]. Morthu., c. 5 in Liebermann, Gesetze, i. 380 [EHD, i. 435]. 243 II Eg dealt with ecclesiastical matters; III Eg with temporal. See Lieoermann, Gesetze,111.133-7. 2 4 2

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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: oratoresy laboratoresy et bellatores.245 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 cin secular houses',246 and Wulfstan s Canon Law collection contained a similar prohibition against clerical (mixing in secular business’.247 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 y86.249 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 vulner­ able people from social and political disorder.250 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 aThree Orders55of Society in Anglo-Saxon England5(1994) 23 A SE 103-32. 246 c. 29 in Haddon and Stubbs, iii. 374. 247 c. 30 in Wulfstans Collection (above n .104), 78. 248 III Eg 5:2 in: Liebermann, Gesetze, i. 200-1 [Laws, Robertson, 26-7]. 249 See C. & S. Iyp t.1,67-8. 250 See Hartmut Hoffmann, Gottesjneae 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.

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supported, it appears, by the Frankish nobility itself.251 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 ^thelred and Cnut did both proclaim the need for peace to be maintained in churches.253 Others laws marked out special seasons at which peace was to be maintained as a matter of special urgency.254 Archbishop Wulfstan urged that bishops must be eager to 'settle disputes and make peace'.255 Statements like these resembled some of the provisions enacted by church councils on the Continent. But there are com­ paratively 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 cmovemenf in the Frankish sense.256 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 circum­ stances 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 Gl 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, i. 238-9, 280-1 [Laws, Robertson, 78-9,154-5]. 254 V Atr 19 (1008);1Cn 17:2 (1020 X 1022) in Liebermann, Gesetze, i. 242-3,298-9 [Laws, Robertson, 84-5,168-9]. 255 'The Bishop's Duties', c. 4 (early eleventh century) in C. & S. Iyp t.1,419. 256 Hoffmann, Gottesfriede (above n. 250), 254-6; Pollock and Maitiand, 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, ii. 450. 258 Frederick Paxton, 'History, Historians and the Peace of God m Head and Landes, Peace of Uod (above n. 251),21-40.

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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.259 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.260 They penalized monastic apostates who abandoned their religious vows. The church courts would later seek to enforce these same rules.261 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 sanc­ tions. 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 lies Britanniques du Xie au XVIIIe siècle' 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, 310-1 1 Robertson，128-9,176-7]. 262 Af 32 in Liebermann，Gesetze，i. 66— 7 [Laws，Attenborough，ア6— 7].

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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 partic­ ipation in formal oath-takings and ordeals encouraged men to think of perjury as having a connection with the church.263 It is just possible that this connection with the church was remembered when more systematic thought about jurisdic­ tional 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.264 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.265 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,266 but not every bit of 'popular religion went unrebuked. Making can offering to devils' was to be cause for forfeiture of a man s goods according to the early eighth-century laws of Wihtraed.267 'False divinations' were condemned and those who did the divining were subjected to penance by Egbert s Penitential.268 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.g. Af 33 in Liebermann，Gesetze，i. 66— 7 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, i.13 [Laws, Attenborough, 26-7]. 268 Lib. I, tit. 8, c.1 in Haddon and Stubbs,111.424.

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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'.269 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 ecclesiasti­ cal sanctions was to have a very long and variea history, one never quite crowned by success.270

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 objection­ able 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 assem­ blies, although the sanction of excommunication and the possibility of assigning 269 c.16 in Wulfstans Canons of Edgar (above n. 51), 4-5; C. & S. Iyp t.1,319-20. 270 See Goetz, 'Protection of the Church' (above n. 251).

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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.271 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.272 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 fre­ quently 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,274 and mention was made of the existence of fideicommissum in at least one tenth-century document.275 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.276 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 o f 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 T/ze SettZement c/ Dispwtes in 吻 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 Xle et Xlle siecles5(1965) 8 Cahiers de civilisation médtevale 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 Law5(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 JEthelwoläi episcopt (1995) 24 A S E 131-83, at 169-73, and Simon Keynes, 'The Fonthill Letter m Wordsy 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 Letter5(1994) 23 Aöh 57-102, esp. 98-101.

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in its ecclesiastical and temporal settings, but the procedure used in Anglo-Saxon courts also contained features that would be integrated into the more sophisti­ cated 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 appro­ priate 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.277 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 dis­ placement 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 Ccast forth'. They were 'driven out' from their positions. Then they 277 Kennedy, 'Law and Litigation (above n. 276),142-5 and 183: '[ 0 ]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 Monasticism5(1989) 40 JE H 159-207.

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were 'dispersed' throughout the realm. Neither kings nor bishops saw anything reprehensible in what had taken place.279 Indeed, they appear to have regarded dispersal of the secular clerics as something akin to a heroic act. No cdue 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 jEthelwold, 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 C/zrtmzde qfiïwぎ/z Candidws，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 m spirit than has been generally portrayed.

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From the Norman Conquest to the Establishment of Consistory Courts 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 canon­ ical 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

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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 ius commune. In assessing the nature of changes in thought and learning and in portraying eccle­ siastical 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 ecclesiast­ ical 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 tem­ poral 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.

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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 instruc­ tion 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.1 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 scien­ tific 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 gov­ ernment 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 Erdö, Introductio in historiam scientiae canonicae (1990); Luciano Musselli, Storia del diritto canonico (1992); Jean Gaudemet， et しzre: iïistoire dw draft omtmigwe (1994); Georg May and Anna Egler， Einführung in die kirchenrechtliche Methode (1986); E. J. H. Schrage and H. Dondorp, Utrumque iusy eine Einführung in das Studium der Quellen des mittelalterlichen gelehrten Rechts (1992); Antonio Martinez Blanco, Introducción al derecho canónico (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).

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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 appro­ priate 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 com­ pilation 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.2 It was printed more than once in the sixteenth century.3*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, 'Überlieferung und Verbreitung des Dekrets des Bischofs Burchard von Worms5(1935) 24 ZRGy Kan. Abt. 141-83; Peter Landau, 'Burchard de Worms et Gratiën: ä propos des sources immédiates de Gratiën (1998) 48 _RDC233-45. 3 The editio princeps, published at Cologne in 1548, has been republished in a modern reprint: Burchard von Worms, Decretorum Ubri X X (1992).

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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 Prüm 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.4 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.5 The principal characteristics that made Burchard's collection worthy of atten­ tion among his contemporaries were its scope, organization, and relative com­ pleteness. 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, excom­ munication, 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 epis­ copal 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 theol­ ogy with legal subjects, and they drew upon older collections of patristic and con­ ciliar texts, in particular those of Burchard himself and the collection known as 4 See Decretorum libri (prior note), lib.1 c. 2. 5 Giuseppe Olivero, Dissimulatio e tolerantia nelVordinamento canonico (1953).

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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.6 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.7 In stating his reasons for compiling a collection, Burchard con­ tented 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 6 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, Einfluß und Verbreitung der pseuaotstdonschen Fälschungen (1972-4), ii. 378-9, n. 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.

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found twenty.10 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,11 but it was important for the spread of knowledge of the canon law in England. Whether Lanfranc was the actual com­ piler 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 Bee,12 and Burchard's Decretum appears in an early twelfth-century catalogue of the library of Bee.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.14 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 Gabrielle Bras, 'Les Collections canoniques en Angleterre après la Conquête Normande5(1932) 11 RHD (4th ser.) 144-60, describing the Collectio Lanfranci, at 150, as 'incomplète, archaïque 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 Canterbury5 in H. H. Fitting, Mélanges Fitting (1907), ii.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?5 (1942) 58 LQR 61-81; but cf. R. W. Southern, 'Lanfranc of Bee 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 Bee (1978), 4-11, and H. E. J. Cowdrey, Lanfranc: Scholar^ Monky and Archbishop (2003), 6-8.

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without changing the essential meaning of the texts in that earlier collection.15 This effort was a quick success in England, despite its iailure to place the texts according to their subject-matter. The number of copies of the manuscript sug­ gests it was usea. 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.16 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.17 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. g r a t i a n 's d e c r e t u m

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 ius 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 athe Law of the Church m Lanfranco di Pavia e VEuropa 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 Exeter5 (1972) 45 BIHR 303-6; Paul Fournier, 'Note sur les anciennes col­ lections canoniques conservées en Angleterre5 (1933)12 RHD (4th ser.) 129-34; Fuhrmann, Einfluß und Verbreitung (above n. 6), ii. 420 n. 31;Michael GuIÜck, 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 Law5(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.

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Unfortunately, little is actually known about the life or person of the father of the canon law.18 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 'officiaF 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.19 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 cita­ tions to Roman law seem mostly to have been additions to the earliest copies. There were other additions.20 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.21 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 canon­ ical 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 Law5(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 canoniquey VIIIe-XXe siècle (1993),103-19. 19 See Gabrielle Bras, Histoire du droit et des institutions de UÉglise en Occident: Tome VII, VAge classiquey 1140-1378 (1965), 49-129. 20 See Adam Vetulani, 'Gratiën 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 f1953)11 Seminar 12-50; J. M. Viejo-Ximénez 'Concordia y Decretum del maestro Graciano5 (1999) 39 Ius canonicum 333-57, and id., 'El Derecho Romano anuevo?, en el Decreto de Graciano5(2002) 88 ZRGy 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 Gratiën et le droit romain (1998) 48 RDC 285-99. 21 See e.g. Anders Winroth, The Making of Gratian s Decretum (2000); Carlos Larrainzar, 'E1 Decreto de Graciano del Codice 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.

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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.22 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 predeces­ sors. 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, how­ ever, 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 sim­ ply 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 for­ bidding 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 Dekret5 (1984)11 Ius commune 1-29; John H. Erickson, 'The Collection in Three Books and Gratian s Decretum5(1972) 2 BMCL

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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 har­ mony. Some of the canons, he thought, might only be examples of rigor iustitiae, whereas others might be considered examples of relaxation through the applica­ tion 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 contra­ dictions that seemed so apparent in the texts. Later in the same Distinction 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 promo­ tion 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 01 piety, neces­ sity, 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 sec­ ond 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 fleshl 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 über das Decretum Gratiani ad C.1 q. 7, ed. J. R von Schulte (1890, repr.1965)，56- 57.

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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 dis­ missal. The texts themselves barely suggested the answers at which he arrived. His only apparent warrant was that he was himself ca learned exponent of legal doc­ trine'.24 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 distinc­ tion 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 ius commune. These two examples are not unrepresentative of Gratian s work.25 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 differ­ ent 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 anony­ mous author of the earlier Exceptiones Petri 25 John Baldwin, The Scholastic Culture of the Middle Ages, 1000-1300 (1971),74.

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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.26 Bartholomew, bishop of Exeter from 1161, used the Decretum Gratiani extensively in the preparation of his own 'Penitentiall27 The controversy over the trial of clerics who had committed crimes, the legal issue that divided Archbishop Thomas Becket from Henry II dur­ ing that decade, was discussed and debated using Gratian s work.28 It would of course be a mistake to assume from what well-educated men knew that familiar­ ity 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. T H E B E G I N N I N G S OF A L E A R N E D L I T E R A T U R E I N T H E C A N O N 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.29 Many others would follow. Commonly their authors would be called Cdecretists'? in homage to the name commonly given to Gratians work: Rufinus of Bologna ( d .1192), Stephan of Tournai (d.1203)， Joannes Faventinus (d.1190)， and Simon of Bisignano (£L 1175) 26 The Letters o f 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. Iypt. 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).

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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 cto transform a complex and disputed issue into coherent and clear-cut doctrine'.30 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: Distinctionesy QuaestionesyRepetitiones, 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 cen­ tury. 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.31 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 influ­ ential early example is the Ordo iudiciarius compiled by Tancred of Bologna in the second decade of the thirteenth century.32 It was eclipsed in popularity only by the appearance of the larger Speculum iudiciale 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 insuffi­ ciently covered by the Roman jurists.33 That the ordines made an advance by 30 Wolfgang Müller, Huguccio: The Lifey Worksy and Thought of a Twelfth-Century Jurist (1994),136. 31 See Knut Wolfgang Nörr, 'Die Literatur zum gemeinen Zivilprozess5 in Coing, Handbuch, i. 383-97; Linda Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius: Begriff und Literaturgattung (1984). 32 Printed as Pillius, Tancredus, Gratia, Lion de iudiciorum ordine, ed. R C. Bergmann (1842, repr. 1965), 87-316. 33 Hermann Kantorowicz, Studies in the Glossators of the Roman Law (1938), 70-2.

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promoting written, as opposed to oral, pleading is also widely (but not univer­ sally) 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.34 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.i245)? whose advice to lawyers Maitland accurately described as cnone 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, how­ ever, it is common ground among historians that the ordines iudiciorum 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.36 If the appearance of the Decretum marked a decisive step forward in the cre­ ation 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 accel­ erated. 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 R W. Maitland, 'William of Drogheda and the Universal Ordinary5in 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 Accurse5 in VAssistance dans la résolution des conflits ( = 64:3 Recueils de la Societe Jean Bodin;1997) 7-31.

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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.37 Yet some­ thing 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 under­ stood 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. B E G I N N I N G S OF T H E S T U D Y OF R O M A N 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 min­ ister 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 under­ stood 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 Jurisprudence5in Renaissance and Renewal in the Twelfth Century, ed. Robert L. Benson and uiles Constable (1982), 299-323; Peter Weimar, 'Die legistische Literatur der Glossatorenzeit m Coing, Handbuch, 1.129-260.

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same time it was issued meant that the immediate impact of the Corpus iuris 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.39What is lack­ ing 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'.40The ckeen 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 example41— —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 lim­ ited 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 England5(1992)13 JL H 101-27. 40 Letter to Hastings Rashdall(1892), published in The Letters of Frederic William Maitland^ Volume Ily ed. R N. R. Zutshi (=11 Seiden Soc. (supp. ser.)1995), 51. 41 L S. Robinson, Authority and Resistance in the Investiture Contest (1978), 79-83.

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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.iii^)ywhose 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 iuris civilis that has provided the cway 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 iudiciorum, 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 ecclesiast­ ical 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 fol­ lowed him. This cannot have been accident. Second, they were used in the eccle­ siastical 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 Gratiën (1998) 48 RDC 263-84; Wolfgang Müller, 'The Recovery of Justinian's Digest in the Middle Ages'(1990) 20 B M C L 1-30. 43 See Hermann Kantorowicz and Beryl Smalley, 'An English Theologian s View of Roman Law: Pepo, Irnerius, Ralph Niger5 (1941-3)1 Mediaeval and Renaissance Studies 237-52, at 250; Ludwig Schmugge, cCoätds Iustiniani et Institutionum baiulus—Eine neue Quelle zu Magister Pepo von Bologna5(1977) 6 Ius commune 1-9. 44 Among useful works: Hermann Lange, Römisches Recht im Mittelalten Band I: Die Glossatoren (1997); Pierre Legendre, 'Recherches sur les commentaires pré-accursiens?(1965) 33 TRG 353-429.

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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 nor­ mally 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 iuris civilis and the Corpus iuris canonici 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. R O M A N LAW A N D T H E C A N O N 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.46 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 cDe differentiis legum et canonum or a close equivalent, listed in Van Hove, Prolegomena, 508-9, and Martin Lipenius, Bibliotheca realis iuridica (1757), iii. 94. See also Heinz Mohnhaupt, 'Die Differentienliteratur als Ausdruck eines methodischen Prinzips früher Rechtsvergleichung5in 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 inveniuntur5, given as a reason for not con­ sulting theologians. 47 Bruno Paradisi, 'Diritto canonico e tendenze di scuola nei glossatori da Irnerio ad Accursio5 (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 canonico5(1997) 83 ZRGy Kan. Abt. 249-71.

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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 iuris civilis had become almost instinctive on the part of the canonists themselves, although they had staked out the independence of their own law.50 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 guar­ antee faithful administration of his duties, the canon law looked to (and found) a text in Justinian s Institutes for an answer.51 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.52 It supplemented the canons 48 d.p. C.15 q. 3 c. 4. 49 W. Senior, 'Roman Law in England before Vacarius5(1930) 46 LQR 191-206, at 193; see Stephan Kuttner, 'The Revival of Jurisprudence5in 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 Gratiën ä 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 Century5(1999)10 R ID C 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 Jurisprudence5(Syracuse University Ph.D. diss.,1991),50-74. 51 Gl ord. ad C. 9 q. 2 c. 7, s.v. et testimonio, citing Inst. i.23.pr. 52 Gl orä. ad C. 9 q. 2 c. 7, s.v. oräinanäumy citing Dig. 2.1.10.

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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.53 They viewed the existence of Roman law's legislation for the church as impliedly recog­ nizing 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, peni­ tence, 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 contradic­ tion. 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 matrimo­ nial bond. The canonists could not endorse texts exalting the powers of the Roman emperor, illustrated on so many pages of the Corpus iuris 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 con­ sidered, 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 ius 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

Gl ord. ad C. 9 q. 3 c. 3, s.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.

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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.55 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 soci­ ety 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 iuris 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.56 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 cre­ ation 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 ana 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. 一

Pierre Legendre, 'Miscellanea Britannica5(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),111.399. See generally Amelia J. Uelmen, 'A View of the Legal Profession from the Mid-twelfthcentury Monastery5(2003) 71 Fordham Law Rev. 1517-41. 5 4

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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.57 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 dra­ matic occurred that it has been described as a 'Papal Revolution in government'.59 It was a fundamental change in the church's role in society. There has been contro­ versy 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.60 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 päpstlichen 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 Erklärung (1933); Brigitte Szabó-Bechstein, Liberias Ecclesiae: Ein Schlüsselbegriff des Investiturstreits und seine Vorgeschichte (1985),138-92.

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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 popes right to act as the final judge of causae maiores were also long accepted, if somewhat more controversial, prin­ ciples 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?61 In con­ sulting 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 docu­ ments 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 gov­ ernment moved closer to becoming the fact.62 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 o f Lanfranc, no. 2. 62 See e.g. the discussion in J. T. Gilchrist, 'Canon Law Aspects of the Eleventh Century Gregorian Reform Programme5(1962)13 JEH 21-38.

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depicted in the Collectio Lanfranci and that of the glossed Corpus iuris canonici. Developments centred around the papal court were vital in bringing that dif­ ference 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 col­ lections 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.63 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 lan­ guished 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 dur­ ing the pontificate of Leo IX (1049-53), by an unknown author.64 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).

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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).65 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.66 Ideas like those found in the Dictatus papae were not without preced­ ent. 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 cto 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.67 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.68 However, papal decretals might also contain an authoritative state­ ment 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 iUDC 335-40. 66 See Kathleen G. Cushing, Papacy and Law in the Gregorian Revolution: The Canonistic Work of Anselm o f Lucca (1998),106-10. It has been shown that few of Gregory VlFs statements worked their way into the canon law. John Gilchrist, 'The Reception of Pope Gregory VII into the Canon Law (1073-1141)'(1973) 59 ZRGy Kan. Abt. 35-82, and pt. 2 in ibid. 66 (1980),192-229. Cushing shows, how­ ever, 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 VIII: 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), n 〇- ^ 6 .

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Others were responses to bishops, uncertain about a point of law or an adminis­ trative 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 establish­ ing 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 intro­ duction 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.69 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 coun­ cils 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 con­ tained. 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.70 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 cthe formative role' in the eventual codification of these decretals.71 Rather like the Libri penitentiales of earlier times, the earliest collections were taken from the 69 See Raymonde Foreville, Latran Iy IIy III et Latrun IV (1965), 96-158, 287-306. 70 See Gaudemet, Église et Cité (above n .1),380. 71 Duggan, 'The Reception (above n. 28), at 366.

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British Isles to the Continent, where they were improved and expanded.72 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 them­ selves took an interest in their authenticity and utility.73 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.74 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 ren­ dered obsolete by the work of one man, Raymond of Penafort. His efforts were contained in a book called the Liber extra, or as it is more commonly known today, simply cthe Decretals'. Pope Gregory IX commissioned him in 1230 to bring the essential law stated in the Decretals together into a single work. The multi­ plicity 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.75 He removed superfluous information from the texts, eliminated doubts and con­ tradictions 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— —indeed it required— —additions and com­ mentary. 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 eccle­ siastical 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 tertm m Prac. i7诉 /z Internationa/ Ctmgress qfMedievaZ Cano" I^w，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 Penafort as Editor: The decretales and constitutiones of Gregory IX?(1982)12 BMCL 65-80.

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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 ius commune were shared in some measure by the canonists and civilians of the time.76 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 'officiaF 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 VIIIs 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. 一

PAPAL JUDGES DELEGATE

A text placea m 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 Literatur5(above n. 37), i. 258-60.

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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 R W. Maitland, that the pope was a 'universal ordinary' for all Christians.77 One might say that the Roman church was itself regarded as the very embodiment of iustitia.78 Following the course of the canon law in England will require further refer­ ence 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 insti­ tutions 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 insti­ tution. 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.80 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 VII 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 contradictarumy 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 con­ tested cases and the growth in standardization of the forms used to appoint the 77 Maitland, William of Drogheda and the Universal Ordinary5(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 europäisches Urkundenwesen, ed. Peter Herde and Hermann Jakobs (1999)，161-99.

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judges testify to increasing specialization and sophistication in legal matters.81 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 imme­ diate 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.Ó2.32),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 dele­ gated 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 know­ ledge or a prestigious office to deal with the case. The parties themselves were nor­ mally 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 über die päpstlichen Justizbriefe und die päpstliche Delegationsgerichtsbarkeit vom 13. bis zum Beginn des 16. Jahrhunderts

(1970)，i. 20— 5; Jane Sayers， ‘The Court of “Audientia Litterarum Contradictarum” revisited’ in Forschungen zur Reichs- Papst- und Landesgeschichte: Peter Herde zum 65. Geburtstage ed. Karl Borchardt and Enno Bünz (1998), i. 411-27. 82 See generally Hermann Conrad, Die iurisdictio delegata im römischen und kanonischen Recht ，

(1930).

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of papal judges delegate that left such a mark on the records of the English church during the late twelfth and early thirteenth centuries.83 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 cov­ ered 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.84 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 obvi­ ous. It was time consuming. It was expensive. It gave rise to fraud and forgery of papal documents.85 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 friv­ olous appeals were unavailing.86 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.87 The litigation consumed huge amounts of money—Richard kept 83 See Jane Sayers, Papal Judges Delegate in the Province o f 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), 54-86; Morris, Papal Monarchy (above n. 57), 573-7. 87 Patricia Barnes, 'The Anstey Case5in A Medieval Miscellany for Doris Mary Stenton ( = 36 Pipe Roll Soc. (n.s.);1962),1-24; Paul Brand, 'New Light on the Anstey Case5(1983) in Essex Archaeology and History 68-83. The vices shown by the case were fully matched by those of the royal courts.

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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 state­ ment routinely added to rescripts forbidding further appeals should have pre­ vented 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, crit­ icism? 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 guar­ antor 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 commu­ nication 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 clar­ ified and advanced. Papal rescripts of delegation stated the law that was to be applied in the case. cIf 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 else­ where, 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 mid­ thirteenth 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

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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 del­ egate become scarcer. By that time, the canon law in general and its study in par­ ticular 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 ius 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 attain­ ment 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 resent­ ment of many theologians.88 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. F R A M I N G A W O R K A B L E 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 offi­ cial, 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 Caraccioli5(1968) 30 Mediaeval Studies 134-62.

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ius patronatuSj 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 con­ trol 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.89 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 feu­ dal grant of land, by the thirteenth century, they had begun to follow a canonical form.90 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 ctamed' by being made subject to legal regulation. No doubt the reality was always messier than the plan, but churches were sub­ jected to episcopal oversight and required to conform to a regular pattern of pro­ cedure 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 England5(2000) 26 JM H 213-37. 90 B. R. Kemp, 'Towards Admission and Institution: English Episcopal Formulae for the Appointment of Parochial Incumbents in the Twelfth Century5(1994)16 Anglo-Norman Studies 1^-76.

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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.91 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 mater­ ial interests of the clergy. But neither could the canon law have forced every per­ son 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 irrevoc­ able and rash steps (X 3.31.8). A distinction was drawn between solemn and ordin­ ary 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.92 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. Tnira, 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.

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l 〇3

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. S T A T I N G P R I N C I P L E S OF S P I R I T U A L S O V E R E I G N T Y

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 ana his succes­ sors. 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 m 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 cin order that they might hear, not that they might sit in judgment'.93 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 priv­ ilege 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 iudicentl

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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 king­ doms. To laymen, the asserted canonical immunity from taxation also seemed at odds with the considerable wealth of the clerical order. Ways around the prohibi­ tion 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:io), CI 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. E X T E N D I N G THE C A N O N 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

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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 infan­ ticide, homicide, tournaments, duels, adultery and rape, arson, theft, counterfeit­ ing, 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 prin­ ciples 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 extin­ guished 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 utilitatisy 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.

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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.95

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 churcns 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 pre­ dict the results. William exercised the decisive voice in choosing the English bish­ ops, as had most of the Anglo-Saxon kings.96 He curtly rejected Pope Gregory VlFs 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.97 He threat­ ened with excommunication those who contravened one of his gifts to a monas­ tic house,98 and he took the customary part of an English monarch in church 95 See generally Brian Tierney, Religion^ Lawy and the Growth of Constitutional Thought^ 1150-1650 (1982). 96 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 Confessor5(2001 for 1997) 9 Haskins Soc. Jnl 159-73. 97 Letter of William I, c.1080 in EHDy 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.

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councils held in his realms." 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 Bee, 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 cler­ ical army.99100 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 cooper­ ated 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.101 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.102 Even Gregory VII, although find­ ing 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 EHDy ii, no. 86: 'Concilium magnum in octavis Pasce celebratum est, iubente et presente rege Willelmol See generally Frank Barlow, The English Church 1066-1154 (1979), 268-85; H. R. Loyn, The English Churchy 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. Iypt. 2, 607-16.

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ended more ambiguously.103 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 ecclesiast­ ical 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 O R D IN A N C E ON JU R ISD IC T IO N

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.104 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 coun­ cil 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 m Camden Miscellany X X X IV (=10 Camden Soc. 1,5th 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 primt (1951)66 EHR 321-41, but the weight of scholarly opinion still stands in favour of its substantial accuracy. 104 C. & S. Ily pt. 2, 620-4 [EHDy ii, no. 79].

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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.105 The consistory courts were not established until the thirteenth century. Moreover, it has been shown that the tem­ poral 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 sig­ nificant 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, act­ ing 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 cthe 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 crule 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 con­ cluded that it probably was intended to cover offences against the church's moral law and the fines exacted for its violation.106 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 con­ temporary Norman Council of Lillebonne (1080).107 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, iii. 24-35, and his parallel statement in v. 22-3: 'Nullus laicus habeat consuetudines episcopales, vel iusticiam quae pertinet ad curam animaruml

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jurisdiction based upon a similar division was mentioned, for example, in the early eleventh-century 'Northumbrian Priests' Law',108 and it may be tms 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 Glanvilk109 and it took con­ crete shape in cases transferred from one jurisdiction to another.110 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 cforum shopping on the part of litigants.111 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 crule of souls' were the sub­ ject 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 deter­ mined 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 juris­ dictional 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. M rthu. 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. Richardy Abbot of St Mary's c. Roger of Cockington (Exeter 1161 x 1184), in EEA n y Exeter 1046-1184, ed. Frank Barlow (1 9 9 6 ), 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 1162-11/0y 1 0 8

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ed. Anne Duggan (2000), i, no. 34.

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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 sup­ port 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.113 Nor, obviously, was the king. The canon law took the position that where excommunication proved insufficient to secure obedi­ ence 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.114 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 kings 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 vi laica removenday directing the sheriff to permit a bishop to exercise spiritual control over an ecclesiastical benefice without lay interference.116 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 resid­ ual 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 coop­ erative 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,UExcommunication et le pouvoir civil en France (1926), 65-113. 115 The fundamental work is R 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. Ill, c.127 (1818) and 3 & 4 Viet., c. 93 (1840). It is an inter­ esting, but surely also a purely academic, question whether some form of the procedure still exists. 116 pNß 12i (^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 R D. Logan, Runaway Religious in Medieval England^ c.1240-1540 (1996), 97-120.

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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 Bee, to fill it.117 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 objec­ tion 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 unlaw­ ful in Rome. A Vatican Council of 1099 had forcefully condemned both lay investi­ ture 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.119 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.120 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 Eadmer, The Life of St Anselm, bk. II, c. 2, ed. and trans. R. W. Southern (1962), 64-5. 118 Odericus Vitalis, i i .144-7. See generally Olivier Guillot, 'A Reform of Investiture before the Investiture Struggle in Anjou, Normandy, and England5(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 Sicily5(=18 SCH; 1982),147-59.

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on taking the revenues of vacant bishoprics, as if they were fiefs, thereby earning the calumny of clerical commentators.121 Almost as important for him as the rev­ enue, 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 m Rome. He heard the decree condemning lay investiture. For him, that event put the old prac­ tice 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 cto ignore his submission and obedience to the apostolic seel122 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.123 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.

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T H E C O N S T I T U T I O N S OF C L A R E N D O N

Whatever harmony marked the occasion of the 1106 compromise did not last for long. Disagreement festered even in Stephen s reign,124 and the same underlying issue was again at stake in the controversy between Archbishop Thomas Becket and King Henry II 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 dis­ pute 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 1164.125 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 01 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, ii, no.126].

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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 accompan­ ied 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 c.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 excommun­ ication (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).127 Of these, only the second passed muster with Alexander III. 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 ecclesi­ astical law were brought to obey the decrees of spiritual judges. The pope condemned it.

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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 impor­ tant 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 01 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 mag­ nates; 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 C. & S. Iypt. 2, 942-56.

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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 Johns initial defiance, and the controversy ended in victory for the church.130 But once again, no agreed-upon solution to the issue which had sparked the quarrel was reached. On an ideological level, the disagree­ ment 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 Beckefs death, though the later history of benefit of clergy turned out to be more tangled than its inception predicted.131 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 Cneck 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. VIII, c. 2), and in the 1530s by more effectively excluding these crimes, together with arson, buggery, piracy, and certain kinds of embezzlement.132 It lasted in some form until1827 (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. Ily pt.1,11-12; Interdict Documents, ed. R 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 SC H 159-68. 131 The standard work is Leona C. uabel, 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. VIII, c.15, s. 3 (1536). For a fuller account of these developments, see Baker, Spelman Introduction, 326-34; Gabel, Benefit o f Clergy (above n .131),116-27; J. M. Beattie, Crime and the Courts in England 1660-1800 (1986), 141-6, 451-8, 485-6.

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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.133 But lenient treatment of the clergy provoked resentment and suspicion from an early date,134 and its later history does not add lustre to the martyr's crown won by Thomas Becket. (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 cus­ tom. 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. CLERICAL GRAVAMINA A N D C IR C U M SP E C T E AGATIS

133 Pollock and Maitland, i. 443; R G. Emmison, Elizabethan Life: Morals and the Church Courts (1973)，294. 134 See e.g. the 'So-called Statutes of John Pecham5, c. 6 (1279 x 1292) in C. & S. IIy 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(1 9 9 5 ),165-83. 13d The basic works are Flahiff，‘Prohibitions’， ana id•， ‘The Use of Prohibitions by Clerics against Ecclesiastical Courts in England,(1941)3 Mediaeval Studies 101-16.

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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.136 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.137 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 pur­ chased the writ and thus, it was thought, protected him from retaliation by the church.139 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.140 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 actu­ ally 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' (!966) 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. IIypt. 2, 874.

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in the diocese of Norwich to trial for encroaching upon royal jurisdiction.141 It was a writ directing his justices to Cact circumspectly' in dealing with pleas within ecclesiastical congnizance. It further defined areas of jurisdiction where the direc­ tion 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 circu­ lated 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 1315-16,143 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 collec­ tions, 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),144 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 Agatis5 (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 MiWon/ Circumspecte Agatis Revisited5(1984) 2 L H R 105-23. 142 SRy i.101-2. 143 SR, i .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 Antwerp5 (1997) 83 ZRGy Kan. Abt. 198-208.

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V A C A R I U S A N D R O M A N LAW I N E N G L A N D

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.145 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.146 The cLaws 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.147 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.148 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.149 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.150 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 England5(above n. 49), 191-206; Eleanor Rathbone, 'Roman Law in the Anglo-Norman Realm5(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 Seiden Soc. (Supp. Ser.);1990); Peter Stein, 'Vacarius and the L,ivil Law5 in Church and Government 119-37. 149 Chronique (above n .12), i. 250. 150 It is printed and commented upon in R W. Maitland, 'Magistri Vacarii Summa de Matrimonio5 (1897)13 LQR 133-43 and 270-87. See also Joseph de Ghellinck, 'Magister Vacarius: Un juriste théologien peu aimable pour les canonistes5(1949) 44 Revue d'histoire ecclésiastique 173-8.

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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 stu­ dents anxious to hear him. The teaching of Roman law was made impossible by a decree of King Stephen during the middle third of the lioos, but it could not be stopped for long.151 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.152 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.153 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 n8os, 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 cen­ tury was out, the whole of the Corpus iuris civilis was available in England.155 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. VIII, c. 22, ed. C. C. J. Webb (1909), ii. 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. LriDson (1976), 257-86, at 279-81. But cf. Stephan Meder, Rechtsgeschichte: Eine Einführung (2002), 151,where the connection with Oxford is stated. 153 Stein, The Teaching of Roman Law (above n . 148), p. xxxvii. See also H. G. Richardson, 'The Schools of Northampton in the Twelfth Century5(1941)56 EHR 595-605. 154 See The Liber Pauperum of Vacarius ed. R de Zulueta (= 44 Seiden Soc.;1927),1-2. 155 W. Senior, 'Roman Law MSS. in England5(1931)47 LQR 337-44.

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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 tmra 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.156 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.157 Bartholomew, bishop of Exeter from 1161 to 1181,was reported to have been knowledgeable in the leges, although less so in the canones.158At 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 Beckefs most prominent episcopal opponent.159 Of course, these bishops would have received their education—some of them prob­ ably in Bologna—before Gratian s Decretum had appeared. For them, turning more often to the Roman law, rather than the old-fashioned Collectio Lanfranci, 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 exam­ ple, being used as a kind of threat to his nephew, in the correspondence of Arnulf of Lisieux.160 Gerald of Wales put his claim for damages in litigation in the form of aestimatio used in the civil laws actio iniuriarum.161 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. Remign, 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 Century5 (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 treat­ ment of heresy; no.162 (1166), making use of Roman law but not mentioning the Decretum in dealing with a marriage dispute. 160 The Letters o f A rnulf 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 TTzeAwtWi叹 rap/z)/ qfGiraWws Cambrensis，ed. H. E. Butler (1937)，67.

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could be called emphyteusis.162 '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.163A part of King Henry Ifs plan for dealing with criminous clerks was derived from the Novels of the Corpus iuris civilis; perhaps his advisors had reason to hope that its source would have seemed compelling to the clergy.164 Beckefs 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 actu­ ally that of canon law; the civil law began to be studied in a separate faculty only in the last half of the thirteenth century.165 Once established, however, the study of the civil law lasted for many centuries.166 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 eccle­ siastical 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.167 Even at this early date, it can distort what happened if the historian tries to pull apart the two halves of the ius commune. T H E D E C R E T U M A N D T H E D I F F U S I O N OF C A N O N LAW I N E N G L A N D

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 possidissetl 163 e.g. William earl of Gloucester (1172), Annales prioratus de Dunstaplh, ed. H. R. Luard (= 36:3 RS;1864-9), 225 King Richard (1190), Ralph of Diceto, Ymagines historiarum, ed. William Stubbs (=68:2 RS;1876)，85—6; (Church as Heir’ （C1230) in TTze CartwZary qf しzrencester Abbe;/，Gfowcesters/zire， ed. C. D. Ross (1964), i. 280. 164 See C. & S. Iypt. 2, 861. 165 M. B. Hackett, The Original Statutes of Cambridge University: The Text and its History (1970), 29- 30; Damien Riehl Leader， Ä 扮•伽厂ア c/t/ze ひmVersity c/Cam わri%e，偏 wmei: T/ze ひ (1988),192-201. 166 H. G. Richardson, 'The Oxford Law School under John (1941)57 LQR 319-38; Leonard Boyle, 'The Beginnings of Legal Studies at Oxford5 (1983)14 Viator 107-31; James A. Brundage, 'The Cambridge Faculty of Canon Law and the Ecclesiastical Courts of Ely m Medieval Camondge: 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).

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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 n6os, 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 1160.168 The wider controversial literature involving benefit of clergy during the 1160s certainly draws upon the Decretum. Among its other objectives, Gilbert Foliofs famous letter Multiplicem (1166) purported to lay out the law about trial of clerics on the basis of texts from the Decretum.169 Archbishop Thomas found it both possible and necessary to found his case for condemning the Constitutions of Clarendon ex decretis et legibus.170 He also found justification in the Decretum, as well as in Roman law, for having excommunicated Foliot.171 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 dis­ tinction between possessory and proprietary causes and the law against spoliation in disputes over parish churches and chapels.172 More than once, he was moved to recall to them the importance of following the ordo iuris.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) y ed. W. J. Millor and H. E. Butler eds.(1955)，nos. 67 and 68. This was the opinion of Brooke， TTze C/zwrc/z (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), i. no. 22 (1163-4).

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demand for it as making quite unjust use of cthe subtleties of the laws'.174 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 prop­ erly 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.175 It is in the last third of the twelfth century that the sources begin to yield signi­ ficant 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 argu­ ment 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.176 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.177 The legal problems raised by the rise in numbers of appeals to the Roman court also provoked litigation, concern, and attempts at legal definition.178 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.179 Lawyers began to appear among the familiäres of English bishops; they were needed for diocesan administration.180 A kind of 'Angevin leap forward' in the law occurred in both temporal and spir­ itual law, although the Angevin kings themselves had little to do with the latter.181 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 o f 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 Case5 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, cPossessio/proprietas in Ecclesiastical Courts in Mid-twelfth-century England5 in Law and Government in Medieval tm^land and Normandy, ed. George Garnett and John Hudson (1994), 245-54; Paul Brand, Multis v^igiliis Excogitatam et Inventam55: Henry II and the Creation of the English Common Law5(1990) 2 Haskins Soc. Jnl 197-222. 180 See e.g. Acta qf t/ze ßis/wps qf し/zic/zester 1075— 1207, ed. Henry Mayr-Harting (= 56 C & Y. Soc.; 1964)，6 ,18—21. 181 D〇ris m . Stenton, English Justice between the Norman Conquest and the Great Charter (1964), 6-53.

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characteristic and serious sanction, excommunication.182 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 excom­ municating. Saintly men so used it, and what they did was not without defenders. For instance, the Life of St Hugh ofLincoln recounted several incidents where the saint and bishop (d.1200) quickly unleashed the csword of excommunication against a wrong­ doer, in each instance without the slightest suggestion that the bishop had done any­ thing 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 with­ out 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.183 On another occa­ sion, 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.184 Increasingly as the twelfth century progressed, however, ex parte excommunica­ tions 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 if.186 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 cboth antique and antiquated', as Gerald of Wales put it.187 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.188 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 England5(1994-5)11 Jnl Law and Religion 235-53. F〇r an Anglo-Saxon example, see Wulfstan of Winchester^ Life of St Mthelwold, c. 33, ed. Michael Lapidge and Michael Winterbottom (1991),50-1. 183 Magna Vita (above n .162), ii. 20-5. 184 ibid. 31-2. 185 See Letters o f A rnulf of Lisieux (above n .160), no. 54a; Frank Barlow, Thomas Becket (1986),184. 186 c. j in C. & S. Iypt. 2,1064. 187 Giraldi Cambrensis Opera, ed. J. Brewer (= 21:1 RS;1861),227-8: 'antiquo sed et antiquato morel 188 See EEA 6: Norwich 1070-1214^ ed. Christopher Harper-Bill(1990), p.lxix; and see generally Lester Little, 'Formules monastiques de malédiction aux IXe et Xe siècles'(1980) 58 Revue Mabillon 377-99, esp. 385.

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with the canon law was felt by many churchmen. When Abbot Sampson found himself becoming involved in litigation as a judge in the n8os, he felt it his duty to make a study of cthe 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 clas­ sical canon law always left slightly ajar the door that barred issuing sentences excom­ munication 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 iudiciarii. 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 familia.190 Its import­ ance 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.191 It had its hard side too. Ignorance of technical aspects of the law became a matter for bit­ ter 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.193 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 A N G L O -N O R M A N CANONISTS

English clerics took to the ius 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 The Chronicle ofjocelin ofBrakelond, ed. H. E. Butier (1949), 33-4. He learned something of rules reg­ ulating 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 Arcnbishop Hubert Walter5in 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. Chronicon Abbatiae de Evesham, ed. W. D. Macray (= 29 RS;1863),189. 1

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of canonists existed and flourished in the late twelfth and early thirteenth centuries'.194 The great names in this school were Gerard Pucelle (d.1184), Master Honorius (d. c.iii^)y 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 sophistica­ tion of the 'Anglo-Norman school'.195 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 pur­ poses of drawing distinctions between possible sanctions.196 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.197 They also added references to papal decretals. The efforts evident in this particular manuscript were connected with the main­ stream 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.198 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.199 It is true that his work, like that of the others, was eventually eclipsed by the growth of canon­ ical 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. Jahrhunderts5 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 111\ (1967)11 SG 39-68; André Gouron, 'Une école de canonistes anglais ä 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 Setting5(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 Heckei, 'Die Dekretalensammlungen des Gilbertus und Alanus nach den Weingartener Handschriften (1940) 29 ZRGy Kan. Abt. 116-357. 199 See Donahue, 'Gerard Pucelle as a Canon Lawyer5(above n .175), 333-48.

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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.200 Many of their contents passed into systematic collections, in which the decretals were diviaed 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,201 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 back­ wardness 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.202 A recent study also connects the earliest forms of the influential tract on procedure, Actor et reus, with the law faculties at Oxford,203 and the same attribution has been made with the incomplete and slightly eccentric Summa on procedure compiled by William of Drogheda (d .1245).204 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 ius 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 'primitive5simply 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 corrigenda5,1-2. 201 Jane Sayers, Original Papal Documents in England and Wales from the Accession of Pope Innocent III to the Death o f Pope Benedict X I (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 V (1927)107 Archiv fü r katholisches Kirchenrecht 575-655. The text is printed in Wahrmund, Quellen, vol. 2:3. 203 Linda Fowler-Magerl, Ordines iudiciarii etLibelli 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; R de Zulueta, 'William of Drogheaa m Mélanges de Droit romain dédiés ä George Cornil (1926), 641-57. See also Maitland's discussion: Roman Canon Law, 107-16.

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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 cde Montibus', who taught in the schools at Lincoln towards the close of the twelfth century.205 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.206 The secrecy of the confessional prevents historians from speaking with assurance about the enforcement of the rules and guidelines contained in this literature,207 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 sub­ stance 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,208 and the leading student of the subject con­ cluded that there was something like an cearly school of practical canon law' that existed in harmony with the civilians in Oxford from the 1170s and 1180s.209 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 Teacher5 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. R 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 Century5 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 Century5in The Writing o f 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 AbbaticE de Evesham, ed. W. D. Macray (= 29 RS;1863), 267. 209 L. E. Boyle, 'Canon Law before 1380' in HUO, i. 531-64, at 533.

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(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.210 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 A N D 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 achieve­ ments were impressive. New ground was broken. Innocent Ilfs 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 CounciFs 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.211 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 leg­ islation turned out to be of more immediate importance in court practice than the texts of the Corpus iuris canonici themselves. This was itself part of a widespread movement. The problems faced by the medieval church possessed a basic similar­ ity 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 Liber Memorandorum Ecclesie de Bernewelle, ed. J. W. Clark (1907), 73. 211 c. 6 in Decrees, Tanner, 236-7.

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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 exam­ ple is furnished by the statutes of Richard Poore (1217 X 1219), successively bishop of Chichester, Salisbury, and Durham.212 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 mali­ ciously 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.214 These two provincial statutes did not contradict the formal canon law, but neither were they copies of what it was already. The Oxford counciFs 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 Councils decrees set something like a standard for English provincial legislation, which came in time to be quite voluminous.215Although the authors of the standard work on the subject are probably right to hesitate about ascribing to the statutes any role in creating ca spiritual re-birth' among the English people, 216 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. Ily p t.1,57-96. 213 C. R. Cheney, English Synodalia of the Thirteenth Century (1941),55. 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. 2 1 4

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played a part, for example, in the lengthy but finally successful effort to end the respectability of clerical marriages in medieval England.217 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 sup­ port 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.218 The one directed the orderly distribution of estates of those who had died intestate; the other pro­ hibited 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 m most parts of Europe. For that reason, special rules were needed in England. The constitutions did not directly contradict the law of the Corpus iuris 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 institu­ tions. 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 war­ rants. 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. IIyp t.1,681-2; Lyndwood, Provinciate,171. 219 See e.g. Ladislaus Abraham, 'Ius canonicum particulare in Polonia tempore Decretalium Gregorii IX?in Acta Congressus iuridtct mternationalis. . . 1934 (1936),111.409-14.

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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.220 To an extent, the search for the earl­ iest signs of the existence of a court system depends on what is meant by the word ccourtl 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.221 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 dis­ putes between parties, a gathering that were presided over by professional judges, served by professional lawyers, and meeting regularly in fixed locations and keep­ ing 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. ARCH DEACO NS A N D 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 arch­ deacons 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 ofMarkyate, 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 diebus5 at which synodal meetings could be held. 222 e.g. Fritz Michel, Zur Geschichte der geistlichen Gerichtsbarkeit und Verwaltung der Trierer Erzütshofe im Mittelalter (1953), 9-18.

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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 counciFs statute against clergy who kept women in their houses.226 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.227 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 chap­ ters 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 England5in Owen Studies (above n . 134), 131-49, at 132. 224 e.g. Northu., c. 6 in Liebermann, Gesetze, i. 380 [EHD, i. 435]. See Jean Scammel, 'The Rural Chapter in England from the Eleventh to the Fourteenth Century5(1971)86 EHR 1-21, at 2-3. 225 Council of Windsor, c. 5 (1070) in C. & S. Iy pt. 2, 580; Barlow, The English Church 1066-1154 (above n. 99), 48-50; C. N. L. Brooke, 'The Archdeacon and the Norman Conquest5in 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 c. 6 in C•み S.ムpt. 2, 702. 227 cc. 39, 77 in C. & S. Ily p t.1,73, 85; and no. 8 in The Later Letters of Peter of Blois, ed. Elizabeth Reveil(1993)，45—9.

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their bishops in many situations.228 The archdeacon was traditionally known as the oculus episcopiy 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 bestknown 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.230 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 bur­ dens 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 archdea­ cons 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 Con­ stitutions 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 A rnulf of Lisieux (above n . 185)，n o .136; tithe dispute (こ1巧〇) in CartwZary qf しzrencesterA祕 e;/ (above n . 163)，no. 417/448. Evidence on the office is examined in Pierre Andrieu-Guitrancourt, Essai sur Involution du décanat rural en Angleterre (1935). 229 See e.g. Magna Vita (above n .162), ii. 38; William fitz Stephan, 'Vita sancti Thomae5in Becket Materials^ 111.43-5. 230 His attitude was expressea m c .12 of the Inquest of Sheriffs (1170), attempting to ascertain the extent of unjust sums taken by archdeacons and rural deans; see Stubus Select Charters,177.

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'largely passed the rural chapter's disciplinary functions by', and the victims were of ctoo low a social status to complain.231 Later records of the chapters do not con­ tradict that assessment.232 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 cler­ ical tribunals with disciplinary power were meeting regularly. They were familiar enough to have caused remark and resentment.234 These assemblies would prob­ ably 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 clegaF 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 III 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 iuris 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.236 Many were bound to arise. 231 Scammel, 'The Rural Chapter5(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 Sudbury5(1959) 32 BIHR 62-6. Provinciale,14, s.v. capitulis ruralibus: 'magis nituntur consuetudini patriae quam iuri communil 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. por 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, Rogen Bishop of Worcester (above n .177). 2 3 3

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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.237 Beginning with a trickle m 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.238 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.240 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 ctuitorial 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 England5 (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 m Owen Studies (above n .134)， 21- 40, at 33. 240 See Letter of 1284 in Reg. Epistolarum fratris Johannis Peckhamy archiepiscopi Cantuariensis, ed. C. T. Martin (= 77:3 RS;1882-5), no. 530.

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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.241 Gratian s Decretum itself shows signs of the long history of shared institutions, procedures like compurgation and ordeals (d.p. C. 2 q. 5 c. 2i), 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 sys­ tem 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 deter­ mine. Causes did continue to come before episcopal synods and local chapters for decision.242 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 officiaF (officialis) ythe term used for the pro­ fessional 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 Helenas, Worcester (1092) in EHDy 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 aofficialis?, of the Bishop in Twelfth- and Thirteenth-Century England: Problems of Terminology5in Owen Studies (above n .134), 201-20.

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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 cthe 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 officiaF and judicial office becomes secure. The conclusion of this article accords with the other detailed studies of the English courts that have been made.244 It fits the history of the notary public in England; the first surviving appearance of a notary comes from 1257.245 It coin­ cides 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.246 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,247 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 croutinization 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,' Officiates and the familiae of the Bishops of Lincoln, 1258-99'(1990)16 /MH 39-53. 245 See C. R. Cheney, Notaries Public in England in the Thirteenth and Fourteenth Centuries (1972),14. 246 See e.g. Peter Erdö, 'Mittelalterliche Offizialate in Ungarn und in Polen (1999) 23 BMCL 16-34; Winfried Trusen, 'Die gelehrte Gerichtsbarkeit der Kirche5in Coing, Handbuch, i. 467-79. But cf. Jean Gaudemet, Le Gouvernement de VÉglise ä Vépoque classique: n e partiey 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.

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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.249 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 iudiciarii.250 Bishops were seeking to bring greater order to the penitential system within their dioceses, making effective their claims to exclusive jurisdiction over 'reserved' cases.251 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 lit­ igation, and in the principal courts, advocates to speak for the parties when ques­ tions 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,253 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 Level5in 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.

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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 unpun­ ished 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 ca 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, R W. 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 nine­ teenth 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 reli­ gion. 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 con­ sequences 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,255 refused to recognize 254 Cheney, From Becket to Langton (above n. 86), 10-18,154. 255 Cf. e.g. Jean-Francis Poudret, Coutumes et coutumiers: Histoire comparative des droits des pays romands, pt. I (1998), 329-60.

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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 com­ plained 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 reduc­ tion 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.256 In England, although the ecclesi­ astical 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 cus­ tom 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, V Officialité de Paris ä la fin de VAncien Régime {1780-1790)(1994), 79; Robin Briggs, Communities of Belief: Cultural and Social Tension in Early Modern France (1989), 257.

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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 systemat­ ically 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 influ­ ence running from the ius commune.257 Others think they did not; the use of juries to establish questions of fact, the lack of university training among English com­ mon lawyers, and the special nature of the land law excluded meaningful influ­ ence.258 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.259 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 con the flimsiest of pretexts'.260 The chronicler's assumption, in other words, was that the king himself 257 R. H. Helmholz, 'Magna Carta and the ius commune (1999) 66 University of Chicago Law Review 2 9 7 -3 9 1 .

258 J. C. Holt, 'Magna Carta and the Origins of Statute Law5(1972)15 SG 487-507, at 500-2. See gen­ erally T. R T. Plucknett, 'The Relations between Roman Law and English Common Law down to the Sixteenth Century: A General Survey5(1939) 3 University of Toronto Law Jnl 24-50, at 44; J. H. Baker, 'Roman Law at the Third University of England5(2002) 55 Current Legal Problems 123-50. 259 See generally Javier Martmez-Torrón, Anglo-American Law and Canon Law (1998). 260 Gesta Stephani (above n .111),17.

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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 allow­ ing 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 reli­ gious power is that the chronicler said nothing whatsoever about courts of the church. He made no mention of proceedings having been brought for the dissolu­ tion of the marriages. Nor did he suggest that the parties (or the king) had com­ pounded 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 dis­ solutions 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 atti­ tude 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.

From the Thirteenth Century to the Accession of Elizabeth student

o b lig e d t o c h o o s e a s in g le fe a tu r e as c h a r a c te r is tic o f t h e c a n o n la w

during 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 cno need that new laws and constitutions be made, but [only] that those that are made already be kept'.1 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 import­ ant 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 Essßj/s in Modern 五 C/zwrc/z iïistery，ed. G. V*Bennett and J. D. Walsh (1966)，18—43.

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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. 1, 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.io,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 reli­ gion 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 apprec­ iate 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 contin­ ued 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.

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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 function­ ing 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 iuris 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 VIII com­ missioned it. He promulgated it in 1298. Despite a name suggesting it would intro­ duce 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 VIII. 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.

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In the years that followed, three smaller compilations were published and were eventually added to the Corpus iuris 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 iuris 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 ecclesi­ astical 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 earl­ ier 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).3Many 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 col­ lections, 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. 8汶 was paid to a bishop for each act of reconciliation. Reg. John Morton^ Archbishop of Canterbury 1486-1500 lly ed. Christopher Harper-Bill (=78 C. & Y. Soc.;1991)，no. 362.

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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 pro­ minently 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 prob­ lems 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,4 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 cus­ tomary practice or as within the pope's power to dispense.5 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 pravitatis5. 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.

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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 impedi­ ments 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 III 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 m 1215? Doing so might have seemed too precip­ itate 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.6 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 is perhaps the most puzzling of the three developments shown by the later parts of the Corpus iuris 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.7 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 Marriage5in 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).

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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 sub­ jects.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 num­ bers. The canons in the Clementines which authorized the adoption of summary procedure in the courts are the most celebrated of these,9 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 ecclesi­ astical 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 atten­ tion 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 atten­ tion 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 exam­ ple, by all means possible. Was something perceived to be going wrong? Then let the evildoers be excommunicated ipso facto.10 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 dis­ posal. 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. 2.1.2; 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.

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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.11 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 resjudicata 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.112 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 pro­ hibited (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).13 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).

11 K. W. Nörr, 'Prozeßzweck und Prozeßtypus: der kirchliche Prozeß des Mittelalters im Span­ nungsfeld zwischen objektiver Ordnung und subjektiven Interessen (1992) 78 ZRGy 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 ä yAvignon (1305-1378)(1921).

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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 pro­ visions, and the amounts of income that were at stake. In this instance, litigation mirrored the coverage of the later texts in the Corpus iuris 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,14 the thirteenth-century canonist Hostiensis recorded that the requirement of yearly frequency was quite imperfectly observed.15 English archbishops would themselves ruefully admit the truth of his words.16 T H E PACE OF S Y N O D A L A C T I V I T Y

The church's failure to hold yearly synods was mirrored in the results. Just as had hap­ pened with the books of the Corpus iuris 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 cinto an obscurity of ceremonial and absenteeism'.17 There was activity. 14 There were, for example, disputes over the clerical obligation to attend them; e.g. R & C. of Watton c. Bishop o f Carlisle (York 1406-7), BI, CP.F.26. 15 Hostiensis, Lectura ad X 5.1.25, s.v. sicut oum. G. L. Bray has prepared a list 'Councils and Convocations，1272—1640’， that is forthcoming. 16 Reg. John de Grandisson, ed. R C. Hingeston-Randolph (1894)，968-71; PRO, Ancient Correspondence, xlix, no. 92, cited in Katnleen Edwards, 'The Importance of English Bishops during the Reign of Edward IF (1944) 59 EHR 311-47, at 340. 17 Jean Scammell, The Rural Chapter in England from the Eleventh to the Fourteenth Century5 (1971)86 1—21， at 13.

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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.18 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 hit­ ting 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.19 We know when councils were summoned and that they usually met in response. Many have left a record of their activities,20 and some diocesan and provincial synods have also left records of legislation passed.21 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 earl­ ier 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 effi­ cient 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 . 2 9 , no. 2 0 : Si tarnen alii voluntarie veniunt admittendi sunt5.That this remained true is suggested by the records of a synod for the diocese of Ely ( 1 3 7 5 ) , pre­ served in CUL, EDR D/2/1, ff. 2 4 V - 2 5 V . 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，CtmdZia，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.

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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 provin­ cial 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 provin­ cial legislation that were made during the later Middle Ages.23 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 litiga­ tion in the same volumes. Often they were mentioned by name in the act books as the source of particular claims.24A 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,25 and dur­ ing the fifteenth century it was common for the bishops to issue directions on their own authority. They were variously called: decreta, mandata, statuta, ordinationesy 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.26Whether 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 legislation canonique: iamt-Paul de Liège et la communication du droit (XIIIe-XVe sièclesj m Droit et communication: direy enseignery publier, ed. Christophe Leduc (2000), 71-81; Péter Erdö, 'Synodalbücher der Kirchenprovinzen von Gniesen, Prag und Salzburg5(1999)10 RIDC 9-36. 24 e.g. Ex offiao c. Official of Archdeacon (Ely 1375), CUL, Act book EDR D/2/1, ff. 2 2 V - 2 3 , 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 m Augustinus Barbosa, Pastoralis sohatudtms, pt. Ill, alleg. 93, nos. 23-5. 26 Wilkins, Concilia, ii. 497-8 (1320: De modo et forma interponendi sequestrationes fructuum ); 111.219 (1393: Contra male decimantes),111.379 (1416: St John of Beverly's feast);111.389 (1418: 'Gloton messe5to be eliminated).

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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.27 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.29 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 suosiaies, arose the English Convocation, or rather two Convocations, since the assembly for 27 Wilkins, Concilia, iii. 266-7. 28 E. W. Kemp， Cbwnsd anö しonsent (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 Century5in Sanctity and Secularity: The Church and the World, ed. Derek Baker ( = 10 SCH;1973)，97—107, and Jeffrey H. Denton， Representatives qft/ze Lower し/ in Parliament 1295-1340 (1987).

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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 constitu­ tions. York continued for a time to make its own statutes, but making allowance for customary exceptions in particular places, the English church was largely gov­ erned by the Canterbury assembly.30 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 convocation1 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 cus­ tomary oblations that was then troubling the clergy and citizens of London.33 A Convocation of 1463 enacted provisions that prohibited arrests or service of secu­ lar legal process during church services and also sought to rein in excesses in cler­ ical dress.34A 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.lxi. 31 e.g. Meeting of 1404 in Wilkins, Concilia, iii. 279. See also Meeting of 1435 in ibia.111.525, 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, i. 364; J. Armitage Robinson, 'Convocation of Canterbury: Its Early History5(1916) 81 CQR 81-137; D- A. Jennings, The Revival of the Convocation ofYorky 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 men­ tion the 'decree of the said [Fourth Lateran] sacred CounciF. 33 Wilkins, Concilia, iii. 562-3. See generally Thomas Lathbury, A History of the Convocation of the Church o f England from the Earliest Period to 1742 (1853), 82-104. 34 Wilkins, Concilia, iii. 585-6.

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excommunication the parochial clergy were obliged to read publicly, changing the frequency from four to three times a year,35 it being hoped this would make it eas­ ier for those clergy who had 'neither dared nor been permitted to make these rit­ ual denunciations'.36 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 CounciFs 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 legis­ lation on them.37 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 CounciFs 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 syn­ odal 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 histor­ ian 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 creden­ tials, did raise up divisions in the church and did throw some questions of author­ ity 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, iii. 523-55; Reg. Chichele, iii. 255-8. 36 Reg. Chichele, iii. 223 (1431):'[I]n pluribus locis curati non audebant nec permittebantur hujusmodi sentenciam in eorum ecclesiis pronunciarel 37 See Visitations in t/ze Diocese 1517— 1531，ed. A. H. Thompson (= 33 LRS;1940 for 1936)， 148-52. 38 R. N. Swanson， ‘The “Mendicant Problem m 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.

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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 monopol­ ized 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 eccle­ siastical 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.39 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 contempor­ ary councils on the Continent were weighed at length.40 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. T H E N A T U R E A N D C O N T E N T OF L E G I S L A T I O N

By the thirteenth century, the 'supplementary' character of provincial and dio­ cesan 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 cStubbs-Maitland' dispute has, then and since, captured much scholarly attention.41 It must be enough to say that no one accepts the thesis of English independence from papal jurisdiction, a thesis attri­ buted 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.42 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 It has continued to be discussed, from a variety of points of view; see e.g. H. W. C. Davis, 'The Canon Law in England5in Henry William Carless Davisy1874-1928, A Memoir^ 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-examined5 (1974) 72 Michigan Law Rev. 647-716. 42 See Helmholz, Roman Canon Law, 4-20, for a fuller treatment of the issue.

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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 sup­ plant the formal law. They added specific penalties to more general norms, and they adopted detailed provisions for implementing policies stated in more sweep­ ing terms in the Corpus iuris canonici, ror 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 excom­ municate ipso facto.44 In other words, the local legislation added detail and a spe­ cific 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.45 It is noteworthy that when the printing press came in, the English statutes were among the earliest sources of ecclesiastical law to be published.46 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 dioceses de Vancienne 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 ofNewbald 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^-26, at 13-14. 47 Wilkins, Concilia, iii. 314-19.

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against religious dissent. They were the forerunners of much longer lists of spe­ cific 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 155. A constitution from the diocese of Lisbon prohibited laymen from making last wills and testa­ ments without the presence of their parish priests, adding that if a layman viol­ ated 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 equival­ ent 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 contempor­ ary commentator to be a violation of the canon law that required a true hearing before an inhibition could be issued to the lower court.50 His conclusion about the 48 Kemp, Council and Consent (above n. 2 8 ) , 1 1 6 - 1 7 ; e.g. 'Processus contra haereticos5 ( 1 3 8 2 ) in Wilkins, Concilia, iii. 1 5 7 - 8 . Compare 'Instrument'( 1 5 3 0 ) , Wilkins, Concilia, iii. 7 2 7 - 3 7 . 49 Constitutions of 1 3 1 0 , tit. De oblatione libelli in Richard C. Trexler, Synodal Law in Florence and Fiesohy 1306-1518 ( 1 9 7 1 ) , 2 4 2 ; Synod of 1 2 4 0 , c. 1 2 in Synodicon Hispanumy Vol II: Portugal, ed. Antonio Garda y Garda (Madrid,1 9 8 2 ) , 2 9 1 . See generally Smodos diocesanos y legislación particular, ed. Jaime Justo Fernandez ( 1 9 9 9 ) . 50 e.g. Formulary (fourteenth century), GCC, MS. 5 8 8 / 7 3 7 , fo.i 2 v , which contained a marginal note to statutes of Arcnbishop Stratford allowing letters of inhibition to be sent without hearing the prin­ cipal matter of an appeal a gravamine: '[H]oc est contra ius commune cum cause cognitio requiritur de iure?, citing Sext 2 . 1 5 . 7 . See also a comment in a collection of statutes from the diocese of Exeter, BL, Harl. MS. 2 2 0 , fo.1 9 V (fifteenth century), dealing with the nature of a sentence of excommunication in one of them: 'Secus est iure communi5; also a similar comment about episcopal discretion to enjoin penance in Ex officio c. Elys (Salisbury,1 4 1 2 ) , in Reg. Hallumy n o . 1 1 4 3 : 'est expresse contra textum decretalis [X 3 . 2 . 3 ] ' . See generally Lyndwood, Provinciale,1 9 , s.v. synodali; E. W. Kemp, Introduction to Canon Law in the Church of England

(1 9 5 7 ), 2 7 .

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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 chal­ lenge 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.51 The history of English synodal statutes regu­ lating preaching by the Franciscans was broadly similar. They seem to have pre­ vailed in practice despite their seeming inconsistency with a papal decretal.52 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 ius commune did not operate like modern legal systems in put­ ting 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 cset 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 Convocatione5,c. 8 (c.1512) in Wilkins, Concilia, iii. 656. 52 Benjamin Z. Kedar, 'Canon Law and Local Practice: The Case of Mendicant Preaching in Late Medieval England5(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. C£ X 1.23.7.6 with statutes ot しhichester I，c. 44 (1245 X 1252) (C. み S. 21，p t.1，460); ぎ. Walter Langton^ Bishop of Coventry and Lichfield 1296-1321 Iy ed. J. B. Hughes (91 C. & Y. Soc.; 2001), pp. xxvi-xxvii. 53 Inner Temple Library, London, Petyt MS. 5 1 1 / 3 , fo . 1 4 V 'Nota in tuitorio secundum consuetudinem de Arcubus non coguntur testes'. See also the discussion about practice in the same court in Bodl” Ashmole MS.1 1 4 6 , fo. mv. 54 Constitutiones Eboracensis Provinciae, lib. Ill, c. 7 in Wilkins, Concilia,111.662-81: '[Fjirmiter mnibemus ne cuiaam communio corporis Christi vel morienti ecclesiastica sepultura pretextu cuiuslibet debiti denegeturl ：

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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 ignor­ ing 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 prom­ ises 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 excommun­ icated 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 dis­ tinction, 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 par­ allel 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,

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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 activ­ ity 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.55 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 rem­ edy for the endemic problem of clandestine marriages, not much can be claimed for it. It shows only a desire to cdo 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.56 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,57 improving the legal position of vicars whose ordinary revenue was insufficient to support them in a style consistent with cler­ ical 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 think­ ing. The act books contemporary with this enactment contain suits styled causae augmentationis portionis vicarii, 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, iii. 712-13. 56 See e.g. Wilkins, Concilia,111.2 (1350); ibid. 135-6 (1378); ibid. 402 (1421). 57 Reg. Chichele, iii. 286-8. The effectiveness of the ordinance is doubted by R. A. R. Hartridge, History o f Vicarages in the Middle Ages (1930, repr.1968),199-200. 58 (1311)in Wilkins, Concilia, ii. 409-15.

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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 cfrustratory' 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 atten­ tion in the books of the Corpus iuris 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.59 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 VIlFs assumption of the title of cHead under Christ' of the English church.60 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 commis­ sion to revise the canon law of England.61 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.62 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 prin­ ciple would be established that it was Parliament that had the decisive say in mak­ ing 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 Clergy5(1965)15 TRHS (5th ser.) 97-119. 60 Wilkins, Concilia, iii. 724-6. 61 Wilkins, Concilia, iii. 748-9 and iv.15-17. See generally Lathbury, History (above n. 33), 105-53. 62 Wilkins, Concilia, iv. 32-3.

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time. Queen Elizabeth and her immediate successors claimed that, in matters of religion, they and Convocation could act without involving Parliament.63 It would take a civil war and an act of judicial legislation to prove they were wrong.64

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.65 By contrast, Catholic controversialists argued that the Tudor legislation was revolu­ tionary 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 author­ ity by the English statutes. At least in their more extreme forms, both these positions now appear mis­ guided to an observer more interested in the legal practice than in religious con­ troversy. 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 .io ,1536) was not really the same thing as a statute attempting to restrain the level of probate fees in the ecclesiastical courts (31 Edw. Ill, st.i,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 par­ ticularly galling reminders of the church's new head.66 The second argument seems equally mistaken, however, partly because English custom had long played a decisive role in determining the nature of the jurisdic­ tion exercised by the English ecclesiastical courts. Roman law precedents also pro­ vided additional support for the approach taken by the new regime. The English church had never attempted to implement the entire Corpus iuris 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 Understanding5in 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 Examined5(1999) 68 Church History 14-41. 66 Visitation Articles, Frere, i.119-34.

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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 dis­ cussion 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 com­ mon 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.67 At some level of abstraction these two types converge. Almost any rule attempt­ ing to set a rule of procedural or substantive law keeps a court from doing some­ thing 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.68 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 differ­ ence between the two kinds of statutes is workable enough. The canon law itself treated them differently. S E C U L A R L E G I S L A T I O N A F F E C T I N G T H E S U B S T A N C E OF T H E C A N O N 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 H e n . V

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undoubtedly within the competence of the courts of the church—did not escape a brush with this sort of secular intervention.69 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 appropri­ ated churches.70 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 Ifs 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.71 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 cdetour' 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 conclu­ sion. 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 ius 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.72 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. Ill, Statute of Merton, c. 5 (1236) (usury); 3 Edw I (Westminster I), c. 22 (1275) (marriage); 13 Edw. I (Westminster II), c. 6 (1285) (churchyards); 31 Edw. Ill, st.1,c .11(1357) (administration of goods of decedents); 37 Edw. Ill, c.13 (1363) (regulation of clerical dress); 45 Edw. Ill, 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. II, c. 6 (1391)and Convocation of 1439 in Wilkins, Concilia, iii. 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. Ill, alleg. 93, no. 29.

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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, cIn those matters in which Holy Scripture has estab­ lished nothing certain, the custom of the people of God and what is instituted by the people are to be held for lawl Augustine's words were taken into the canon law (Dist.11 c. y)yas 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).74What cunreasonability' 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 pre­ scription and to pass a threshold of acceptability under the norms by which the 73 e.g. GCC, MS. 235/121 (fifteenth century): pp. 8 1 (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 Gewohnheitsrechts5(1991)77 ZRGy Kan. Abt. 156-96, esp. 158-68; Udo Wolter, 'Die consuetuao im kanonischen Recht bis zum Ende des 13. Jahrhunderts5in Gewohnheitsrecht und Rechtsgewohnheiten im Mittelalter, ed. Gerhard Dilcher et al (1992), 87-116, at 104-14.

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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 neces­ sarily 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 ius.75 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 prin­ ciples.76 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 Ilfs 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.77 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 presenta­ tion 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 ecclesi­ astical 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 presumaoly oeen made with the con­ sent 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 76 77 78

See H. R Jolowicz, Roman Foundations of Modern Law (1957), 21-37. Giuseppe Comotti. La consuetudine nel diritto canonico (1993), 32-43. GCC, MS. 4 8 3 / 4 7 9 , ff. 4 V - 6 . 25 Edw. Ill, st. 4 (1350-1); John Mallory, Quare Impedit (1737), p t.1,tit. Lapse (P).

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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.79 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 dif­ ference, 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 inter­ est 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 encour­ aging 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.80 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 animarum5. The difference was also discussed along similar lines, if more briefly, in a seventeenth-century civilian s notebook: BI， Prec Bk 6, ff.i8v- 19V. 80 See the examples given in Pietro Vaccari, 'Nota sul diritto canonico nei suoi rapporti col diritto civile nei secoli XII-XIV'(1938) 27 ZRGy Kan. Abt. 348-63.

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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 canonici 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, io), 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 per­ petual asylum as long as the criminals 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.81 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.82 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 pro­ vide 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 ius proprium as it would have been called by the Continental jurists—and the ius com­ mune. 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.85 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 Scotland5 in Critical Studies in Ancient Lawy Comparative Law and Legal History, ed. John Cairns and Olivia Robinson (2001),

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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.86 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 doc­ trine. 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. Ill, 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 ques­ tion 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 L E G I S L A T I O N R E S T R I C T I N G T H E S C O P E OF E C C L E S I A S T I C A L 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 contradic­ tion 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 IIs 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, II privilegio delVimmunitä (2002); L.-R. Misserey, 'Asile en Occident5in DDCy 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?.

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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 juris­ dictional rules. The clergy objected to them in the twelfth century and continued to do so there­ after. They also sought ways around them, and their strategy of objection and eva­ sion 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,89 and not all the secular statutes survived the test of acceptance by the people affected. The part of the Constitutions of Clarendon deal­ ing 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 prac­ tice 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 Ifs 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 eccle­ siastical 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.90 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.

89 e.g. 'Concordat of Edward III with Pope Gregory XI,1376' in EHDy iv, no. 377 and 'Regis modificatio statuti contra Provisores editi m Wilkins, Concilia, iii. 236-7 (1398). 90 45 Edw. Ill, c. 3.

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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.91 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 indir­ ect way of raising the question of patronage. The rule's purpose was not to chal­ lenge 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.92 This special restriction for tithe litigation only compounded the long-standing wrong. Moreover, it eliminated one means by which the canonical rule could be vin­ dicated, 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 respon­ sibilities. 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 cus­ tomary 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.93 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, i.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. II, tit. De foro competently no.11:'Vel iuris patronatus... sed hanc decretalem non servat curia illustris Regis Anglie, imo quicquid dicat Papa, ipse cognoscitl 93 27 Edw. Ill, st.1(1353);16 Ric. II, c. 5 (1392). 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

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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 juris­ dictional 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 con­ founded' those traditions.94 Papal reservation of benefices had impeded enforce­ ment of existing rights of patronage and election—rights 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 sub­ jected 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.95 So was John Grandisson, bishop of Exeter from 1327 to 1369.96 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. Ill, st. 4 (1350-1);13 Ric. II, st. 2, c. 2 (1389-90). 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 Law5(1963)19 Traditio 295-349. 95 Thomas Gascoigne, Loci e libro veritatum, ed. James E. Thorold Rogers (1881),26, 202-3; 〇n Gascoigne see Winifred Pronger, 'Thomas Gascoigne5(1938) 53 EHR 606-26; ibid. 54 (1939), 20-37. 96 Reg. John de Grandisson, ed. R C. Hingeston-Randolph (1894), P t.1,111-12; see also Letter to the Pope (1327), Reg. Roger M artival Bishop of Salisbury 1315-1330, Vol II bisy ed. C. R. Elrington (= 58 C. & Y. Soc.;1972), 549-52.

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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.97 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 inter­ ests 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.989The 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 materi­ ally 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 inef­ fective in practice," the Statute of Praemunire threatened violators with more immediate and harsher penalties: ouster from the protection of the king, confisca­ tion 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.100 To many among the clergy, this constituted an obvious viola­ tion of the freedom guaranteed to the church in Magna Carta and its several con­ firmations. 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: cNo effective remedy was found', the Convocation s scribe was obliged to record.101 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 R & C. of Pontefract (c.1402) seeking to protect their rights in a church against a papal provisor by invoking the statutes, in EHDy iv. 665-6. 98 CPLy iv. 277; Edouard Perroy, UAngleterre 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 Benenciorum5(1938) 27 ZRG Kan. Abt. 94-134, at 118. 100 38 Edw. Ill, 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,111.523-4: nee consecutum est remedium effectuale.

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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 seek­ ing 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.102 They did not allow disagreement about this issue to scut­ tle 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 con­ tinued 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 lay­ men 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.103 English clerics continued to seek them.104 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 provi­ sions 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.105 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. R Thomson, The Transformation of Medieval England, 1370-1529 (1983), 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. Ii.5.18, ff. 300-10. 104 See e.g. Jessie Lloyd， （Notes on CamDriage Clerks Petitioning for Benefices，1370—1399 U943— 5) BIHR 75-96,192-211. 105 Petition No. 28 (1401)，ÄP，in. 459; TTze し/zram.de qfAdam ひ5た1377— 料2ん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.

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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.106 In German lands, it also proved possible to arrive at accommodations between papal rights and local interests.107 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 cen­ turies before. An act of Parliament recognized the king as the conly 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.i, 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 reli­ gious 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.1Edw. VI, c.12, s. 9,1547). 106 Noël Didier, 'Postulation, élection et provision apostolique ä 1 eveché de Carcassone en 1456' (1951)29 RHD (4th ser.); 39-78. 107 See H. Hildersheid, 'Bénéfices en Allemagne5in DDCy ii. 634-7.

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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 L^ivil Law, to exercise ecclesiastical jurisdiction (37 Hen. VIII, c .17,1545). Others introduced minor improvements in court practice. For exam­ ple, 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 hold­ ing plural ecclesiastical benefices, farming of church property, and non-residence by the parochial clergy.108 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 vio­ lation 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

21

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c . 13,

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(1 5 2 9 ).

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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.109 So it seems now; so it seemed then. Exceptions were carved out for jurisdiction by grant or privilege, contrary custom, and the con­ sent, actual or implied, of the parties. In rem jurisdiction provided another excep­ tion, 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 vio­ lated (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.110*But did the exception (and the many others like it) survive the Henrician statute? The words of the statute itself recognized no such excep­ tion. 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 cbut declaratory of the ancient canons'.111 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 rul­ ings in cases brought on writs of prohibition. Faced by these rulings, the civilians 109 See e.g. g l ord. ad Sext 2.2.1, s.v. casus; Hostiensis, Summa aureay lib. II, tit. De foro competent^ nos. 9-10, for lists of exceptions to the rule. 110 'Ubi te invenero,lbi te iudicabo5,cited in Hostiensis, Summa aureaylib. II, tit. De foro competent^ no.10. 111 See Notebook of William Trumbull,BL, Add. MS. 72544A, fo.105. 112 e.g. Case o f 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).

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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.113 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 ecclesiasticarum.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.116 For whatever reason, however, it failed of passage. It was no more successful after Elizabeth came to the throne.117 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 State5(2003) 7 Ecc LJ 48. 114 25 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-cxm. n〇 lit. 8, c. 9 in Tudor Church Reform, 252-3. 117 See Norman Jones, 'An Elizabethan Bill for the Reformation of the Ecclesiastical Law5(1985) 4 Parliamentary History 171-87.

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prohioition 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 iuris canonici asserted papal pre­ rogatives 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 1532.118 It contained a lengthy list of grievances against the ecclesiast­ ical courts, and it sought their correction. More suggestions for change followed. Dr William Petre, a civilian and Thomas Cromwells deputy, proposed moving all probate, defamation, and tithe litigation to the temporal courts.119 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.120 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.121 In both cases, it would have contradicted the claims of the reformers if 118 It is printed in EHDy 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 VIIF (1951)66 EHR 507-34; J. R Cooper, 'The Supplication against the Ordinaries Reconsidered5(1957) 72 EHR 616-41. 119 For what follows, see John R 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),133; see also Stanford E. Lehmberg, The Reformation Parliament 1529-1536 (1970), 83-6, 222-3; Anon., BL, Cotton MS. Cleo. F.ii, ff. 250-253, entitled 'Certen considerations why the spirituell jurisdiction wold be abrogatt and repelled or at the leest reformed5. 121 See Graham Nicholson, ‘The Act of Appeals and the English Reformation m 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 CPLy i .128 and Rymer, Foedera, vol. In ,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.

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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 cminimalisf 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, iner­ tia, 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.122 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 mat­ rimonial law to be anticipated. The most momentous change to emerge from the six­ teenth 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 posi­ tivism 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 assump­ tions. It turned out that quite a large part of the ius commune met that condition.

LEGAL EDUCATION AND CANONICAL SCHOLARSHIP Canonical treatises written during the later Middle Ages lack the charm of nov­ elty. 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. Jahrhunderts5in 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 Heckei, 'Die Veränderungen des kanonischen Rechts durch die Reformation und die Religionverfassung des Alten Reiches5in Recht und Verfassung im Übergang vom Mittelalter zur Neuzeit, ed. Hartmut Boockmann et al (1998), 25-67, with a bibliography at end.

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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 encour­ aged by the nature of the ius 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 develop­ ments 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.123 The men who wrote the standard treatises customarily 123 Helmut Coing, 'Die juristische Fakultät und ihr Lehrprogramm5in Coing, Handbuch, i. 39-128, at 39; Peter Weimar, 'Die legistische Literatur und die Methode des Rechtsunterrichts der

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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 con­ formed to the pattern of instruction in the Continental universities.124 Until the suppression of the canon law faculty in the 1530s, legal study was diviaed 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 canonici 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.125 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 fac­ ulty 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. Glossatorenzeit5 (1969) 2 Ius commune 43-83, at 44-7; William Courtenay, Schools and Scholars in Fourteenth-Century England (1987), 37-41. 124 L. 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 Century5(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 Cambridge5 (1982-3) 65 Bull JRUL 57-77, esp. 77; id., 'Oxford's Medieval Alumni'(1977) 74 Past & Present ^-4 , at 11.The reverse seems to have been true at Cambridge, where the canon lawyers outnumbered the civil­ ians; id., 'Medieval Alumni of the University of Cambridge5 (1989) 86 Past & Present 9-86, at 61-3; James Brundage, 'English-Trained Canonists in the Middle Ages: A Statistical Analysis of a Social Group m Law-Making ana Law-Makers in British History, ed. Alan Harding (1980), 64-78. 126 Statuta antiqua universitatis Oxoneiensis, ed. Strickland Gibson (1931),46,11.25-7. For relations between the two laws, see Domenico Maffei, 'Dottori e studenti nel pensiero di Simone da Borsano5 (1972)15 SG 231-49, esp. 243-4. 〇

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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.127 If the candidate were already a monk or in priest's orders and thereby forbidden to study the civil law by Pope Honorius Ilfs 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.128 But to become a doctor utriusque iuris, 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 require­ ment 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.129 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.130 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 sub­ jects 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 ofCambndgey Vol 1:The University to 1546 (1988),195-7. 129 See L. E. Boyle, 'The Constitution Cum ex eo of Boniface VIIF (1962) 24 Mediaeval Studies 263-302; R. N. Swanson, 'Universities, Graduates and Benefices in Later Medieval England5(1985)105 Past & Present 28-61; Roy M. Haines, 'The Operation of the Bonifacian Constitution Cum ex eoc in id., Ecclesia anglicana: (Ch. 2, n. 251),138-55. 130 It has been estimated, for example, that A. E. B. Emden s great bibliographical registers for Oxford and Camondge before 1500 contain only between one-fifth and one-fourth of the total num­ ber of persons admitted. See Cobban, The Medieval tmglish Universities (Ch. 2, n .156), 212-13; Jean Dunbabm, 'Careers and Vocations m H U O , 1.565-605, at 568-9.

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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.131 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.132 At Bologna, no text could be omitted, though this must have been a severe trial in covering Gratians Decretum.133 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 repre­ sentative, 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 refer­ ence 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.134 However, in a vital respect the spirit of the academic approach found in the uni­ versity 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 peda 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 scolares5in (1921)6 Studi e memorie per la storia delVUniversita di Bologna 25-9, at 27. 133 Coing, 'Die Juristische Fakultät5(above n . 1 2 3 ) , 7 2 - 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 m Oxford Studies presented to Daniel Callus ( = 1 6 Oxford Hist. Soc., (n.s.);1 9 6 4 ) , 1 3 5 - 6 2 , at 1 5 0 - 1 . 134 New Coll., Oxford, MS.1 9 2 , fo.1 2 - 1 2 V .

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iniuria was the subject of a lecture, but not the Provincial constitution of 1222 that determined the remedy available in medieval English practice.135 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 wills 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 documents 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.136 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 consti­ tute the whole of a medieval legal education. Surviving notebooks of students and professors are quite informative about the other ingredients. First, there were the repetitionesyin 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 com­ pared 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. 5 2 V . See generally James Brundage, 'From Classroom to Courtroom: Parisian Canonists and their Careers',(1997) 83 ZRGy 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 Law5(1994)15 JLH 97-108. 137 New Coll., Oxford, MS.179 (fourteenth century), fo.108.

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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 differ­ ence 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 prob­ lem and solve it as best they could. Several examples have been preserved, both from the Continent and for England.139 In one early English quaestio it was sup­ posed 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 ana 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.140 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 alpha­ betical arrangements of points of law—from Abbas to Xenodochium in a typical case.142 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 medievales5in Die Kunst der Disputation, ed. Manlio Bellomo (1997), 85-132 and 157-204; and see generally Manlio Bellomo, 'Legere, repetere, disputare5in Medioevo eäito e ineäito: I. Scholaey Universitatesy Studiay ed. Manlio Bellomo (1997)，53- 96. 140 BL, Royal MS. 9.E.viii (thirteenth century), ff.191-199. 141 New Coll.，Oxford，MS. 2 0 7 , ff.1 2 7 — 1 3 1 V . 142 e.g. Peterhouse, Cambridge, MS. 42. The latter word was actually written Zenodochtum in the MS.

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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 exam­ ples 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.143 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.144 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.145 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.147 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 ref­ erence to him and to the other learned writers with enough regularity to encour­ age 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 presump­ tions, 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， MedievaZ Teac/zers and Writers:しzvzZzVmand Canonist (1975), 82, 99. 145 Roman Canon Law, 57. 146 See e.g. Ricnard Holme (d.1424) in BRUQ 311-12. 147 See the list of his works in Oxford Libraries in E. R Jacob, 'Panormitanus and the Council of Basel’ in Prac. TTzini JnfenMtiona/ しongress qfMedievaZ Canon I^w，ed. Stephan Kuttner (1971)，205—15, at 214— 巧； see also NiccoZd Teふsc/zi (Ä祕仍 Panormitonws) e i swm しommentoria in DecretoZes，ed. Orazio Condorelli (2000).

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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 Provinciate, a work of the mid-fifteenth cen­ tury, 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, c[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 ius commune, not producers. The relatively small group of English jurists who did write works dealing with the canon law attracted little notice among their coun­ terparts across the English Channel, then or now. For a brief time before publica­ tion 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 domin­ ance 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.150Most 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 colle­ giate instruction in the later fifteenth century did something to augment their num­ ber.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), 55; Brundage, 'The Cambridge Faculty of Canon Law5(Ch. 2, n .166), 21-45, at 28; T. A. R. Evans, 'The Number, Origins and Careers of Scholars' in HUO, ii. 519.

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careers as academics, Oxford and Cambridge had no real professoriate'. Most grad­ uates 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.152 England had few academic 'stars'.153 The situation across the Channel was often quite different. For instance, Joannes Andreae, fons et tuba iuris, 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 1357.155 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 1408.156 Before ascending higher, Panormitanus taught at Bologna, Parma, and Siena between 1411 and 1432.157This 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 lit­ tle 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 o f Adam Usk (above n .105), 250-1. 153 Compare Helmut Walther, 'Learned Jurists and their Profit for Society5 in Universities and Schooling in Meateval Society^ ed. William Courtenay and Jürgen Miethke (2000),100-26. 154 Von Schulte, Geschichte^ ii. 208-9. 155 Smith, Medieval Law Teachers (above n .144), 81-2. 156 yon Schulte, Geschichte, ii. 289-91. 157 Van Hove, Prolegomena, 497.

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scholar and bishop of Lincoln from 1235 to his death in 1253.158 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 01 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.159Where 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.160 Where they became relevant, he could and did cite the provincial constitutions of the English church.161 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 resolutusy 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,162 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.163 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 sub­ ject being treated, is not an isolated example, and Baconthorpe thus stands out both as something like a cthrow-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 M ind in Medieval Europe (1986); Robert Grosseteste: Scholar and Bishop, ed. D. A. Callus (1955); Joseph Goering, 'Robert Grosseteste at the Papal Curia m A Distinct Voice: Medieval Studies in Honor of Leonard E. Boyley O.R, 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 c.1). 160 ibid.107 (Dist. 83 c. 3),189 (C.1 q. 6 c. 3). 161 ibid. 265 (Council of Oxford,1222), 288 (same). 162 BRUOy i. 88-9; BRUCy 669-70. 163 John Baconthorpe, Super IVsententiarum, 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.

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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 discus­ sion 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.164 A quite different example comes from the writing of the fifteenth-century con­ troversialist, Reginald Pecock (d. c.1460).165 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) remain­ der 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 aca­ demic 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 scor­ ing points against the Lollards, and he was familiar enough with the contents of the Corpus iuris canonici to know that it contained seemingly contradictory texts on the legal status of testaments made by clerics.166 Despite his informed views on many legal subjects,167 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 ius 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 R Chrysogone, 'Maïtre 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 E. R Jacob, 'Reynold Pecock, Bishop of Chichester5 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, ii. 354-9, 407-9. 167 See Norman Doe, Fundamental Authority in Late Medieval English Law (1990),17-18, 60-3, 92-4.

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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 ius commune that appears not much inferior to a professional civilian of his time.169 His work all but strains to convey that impression. He used the ius com­ mune 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.170 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.171 Where he found inconsistencies between the historical record and contemporary Catholic views, such as the canon law's acceptance of Roman legis­ lation that regulated many aspects of the Christian religion, he exploited the seem­ ing weakness in his opponents position.172 Jewels 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 con­ siderable amount of it makes it easy to understand the modern reaction. Repetition of the same points and exaggerated invective make for heavy going. Jewels 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), i. 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 ref­ erences in other works; see Neil Ker, 'The Library of John Jewel5(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 England5in 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 pas­ sage 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.

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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 know­ ledge 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 ius 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.173 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 outnum­ bered theologians by a margin of seventy-six to forty-three.174 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.175 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.176 Of 173 J. Otway-Ruthven, The King's Secretary and the Signet Office in the X V Century ( 1 9 3 9 ) , 7 6 - 8 8 , 1 5 3 - 5 5 ; Mark Beilby, 'The Profits of Expertise: The Rise of the , 1Lawyers and Chancery Equity5in Profit Piety and the Professions in Later Medieval England, ed. Michael Hicks ( 1 9 9 0 ) , 7 2 - 9 0 . l

iv i

H. Aston，G. D. Duncan， and T. A. R. Evans， ‘The Medieval Alumni or the University of Cambridge5(1980) 86 Past & Present 9-86, at 70. See also for the period 1216 to 1499, T. Aston, 'Oxford's Medieval A lum ni'(1977) 74 Past & Present ^-4 , 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. 1 7 4

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175 Le Neve, Fasti Ecclesiae Anglicanae 1300-1541, IIIy Salisbury Diocese^ comp. Joyce M. Horn (1962), 3-20, suppl. with corrections from Fasti X II (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 fitteenth century5(1979) 30 JEH 145-74, at 174. See also D. N. Lepine, 'The Origins and Careers of the Canons of Exeter Cathedral 1300-1455 m 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.

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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.177 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, 'unknown is an all too frequent entry beside the name of a man whose aca­ demic 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.178 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 dou­ bly 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 mate­ rial 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 magistriy 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.

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For the thirteenth century, two works written for the penitential forum stand out. One is by Thomas of Flamborough (d. c.i224)? the other by Thomas of Chobham (d. c.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 stu­ diously 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.180 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 juris­ tic 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).181 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,182 and closer to his own time, also that of Joannes Andreae (d.1348).183 Williams 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 practicaF 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 encoun­ tered 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.184 Three figures are worthy of particular 179 Both have been printed in recent editions: Thomae de Chobham Summa Confessorum, ed. R 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, ii. 527-36. 181 The work is printed in Wahrmund, Quellen, iii. pt. 3. 182 Roman Canon Law, 107-16. See also R de Zulueta, 'William of Drogheda5in Mélanges de droit Romain dédiés ä Georges Corml (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, ii. 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 l , iv i 1 Lawyers' in Profession^ Vocation and Culture in Later Medieval England, ed. Cecil Clough (1982),155-80, at 163-6.

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note: William of Pagula (d. ^1332), John Ayton (d. ^1349), and Thomas Fastolf (d.1361).Pagula, also known as Pauli 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.185It is instructive that he advanced no further in the cler­ ical 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 commis­ sioners.187 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 incorpor­ ation 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.188 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 com­ pleteness, Ayton s reputation has suffered.189 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.190 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.191 His citations 185 On his writing and career, see L. E. Boyle, 'The Oculus sacerdotis and some other Works of William of Pagula5, and 'The Summa summarum and some other English works of Canon law5,both printed in the author's Pastoral Carey Clerical Education and Canon Lawy 1200-1400 (1981).See also Pantin, The English Church (above n .102),195-202, and J. H. Baker, Monuments ofEndlesse Labours: English Canonists and their Work 1300-1900 (1998), 9-15. 186 He stated his wish that they be 'ad proficuum et utilitatem pauperum clericorum5who lacked the fuller treatments of canon law; see HEHL, MS. Ei 9/H/3, fo.iv . 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, 1st 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.

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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.193 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.194Ayton 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.195 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.196 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

s.v. contagium. 19d i b i d . 4 0 , s.v. applicentur. 194 ibid.102, s.v. ut etiam reos sanguinis. 195 J. H. Baker, 'Dr Thomas Fastolf and the History of Law Reporting5(1986) 45 CLJ 84-96; see also Gero Dolezalek and K. W. Nörr, 'Die Rechtsprechungssamlungen der mittelalterlichen Rota5in Coing, Handbuch, i. 849-56; A. Fliniaux, 'Contribution ä Thistoire des sources de droit canonique: Les anci­ ennes collections des Decisiones Rotae (1925) 4 RHD (4th ser.) 61-93, 382-410; Angela Santangelo Cordani, La giurisprudenza della Rota Romana nel secolo X IV (2001),34-8. 196 See Gero Dolezalek, cQuaestiones motae in Rota: Richterliche Beratungsnotizen aus dem vierzehten Jahrhundert5in Proc. Fifth International Congress of Medieval Canon Law, ed. Stephan Kuttner and Kenneth Pennington ( 1 9 8 0 ) , 9 9 - 1 1 4 . See also HFCL, MS. O . 4 . X V , described as 'Quaestiones motae in Rota5including 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 192

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canon law have survived.197 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.198 Simon of Boraston (fl.1338) put together a Compilatio de ordine iudiciario.199 Quite a few works meant for instruction of the parochial clergy, all incorporating parts of the canon law, were also compiled.200 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 Pagulas Oculus sacerdotis, and was successful enough to be printed in 1510.201 Ranulf Higden (d .1346), a monk of Chester and best known as the author of the Polychronicony 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.202 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.203 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.viii, 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.VIII and Canon Law in England in the Fourteenth Century5(Univ. of Toronto,1979). 198 BRUCy 210; Peterhouse Coll., Cambridge, MS. 42. 199 See BRUO, i. 221;Von Schulte, Geschichte, ii. 237; Stephen Forte, 'Simon of Boraston, O.P. Life and Writings'(1952) 22 Arctuvum 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 Century5in The Medieval World, ed. Peter Linehan and Janet Nelson (2001),648-70, at 664-6; Roy Haines, 'AYork Priest's Notebook5in id. Ecclesia anglicana (above n .129),156-79, at 160-2. 201 On Burgh, see Davis, 'The Canon Law in England5(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. Pfänder, 'Some Medieval Manuals of Religious Instruction in England and Observations on Chaucer's Parson s Tale5(1936) 35 Jnl English and German Philology 243-58. 203 'Speculum curatorum5,Library of Univ. of Illinois, Urbana, MS. 251 H 53s, pp.165-6.

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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.204 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.205Yet 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 con­ gruence between the general canon law and the English constitutions.206 He strove to prove that provincial constitutions that seemed at first sight to be at odds with the texts of the Corpus iuris canonici were actually quite consistent with legitimate readings of the law of the church.207 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 com­ mentary on their role in the courts, he also brought a semblance of harmony from what sometimes looked very like dissonance.208

204 See e.g. the list of books from Southwell parish (1369) in Visitations and Memorials of Southwell Minster, ed. A. R 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 o f Canon Law in the Middle Ages (1980), no.1.

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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 pro­ lific defender of his order, wrote several treatises dealing with parts of the canon law.209 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.210 Robert Heete (d.1428), fellow of New College, Oxford, and prob­ able 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 iuris.211 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.212 Henry VIlFs divorce from Catherine of Aragon also stimulated academic treatments of the status of their marriage under the law of the church.213 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 out­ put 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 yon Schulte, Geschichte, ii. 454; John Bale, Index Britanniae Scriptorum (1902 edn), 371. 210 The Commendacions ofM atrymony (1513). 211 See DNB, ix. 3 6 5 - 6 ; HUO, i. 5 4 8 n. 2 . See also BL, Royal MS. n.B.xi, a treatment of the correct interpretation of Sext 3 . 2 0 . 1 , apparently by John Bell(d.1 5 5 6 ) and John Allen (d. 1 5 3 4 ) . See also New Coll., Oxford, MS.1 9 2 , ff. 1 2 , 6 5 V , 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 ius commune); N. R. Ker, 'Patrick Young's Catalogue of the Manuscripts of Lichfield Cathedral5 (1950) 2 Mediaeval and Renaissance Studies 151-67, esp. nos. 63, 67,75; 'Treatise on provisions', Corpus Christi Coll. Oxford, MS. 72, ff. 85-91, described in Barraclough, 'Praxis Beneficiorum5 (above n. 99), 117-18; work seemingly on Gratians 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 iuridta mternationalis... 1934 (1935), Ü. 47〇- 8i ?at 477213 e.g. Cranmer's Book5in Records of the Reformation: The Divorce 1527-1533^ ed. Nicholas Pocock (1870), i. 334-99; 'Advocate's Answers' in ibid.11.217-27; Guy Bedouelle and Patrick Le Gal,Le 'Divorce' du roi Henry VIII: Études et documents (1987).

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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 par­ ticipants 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 con 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 pri­ ority in time of the litis contestation in order to settle disputes about competence over individual cases.214 This prevented the elimination of many lesser courts. 214 See e.g. g l ord. ad X 2.2.13, s.v. in tua.

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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.215 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.216 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 with­ out 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.217 Before and after, English men and women regularly took advantage of the possibility.218 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 them­ selves 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.219 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 palatiiknown 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. Ill, 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 j^-10^. 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).

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contact with English litigation. It was before them that the English proctors and advocates associated with the Roman court most often appeared.220 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.221 The letters were sub­ ject 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 tri­ bunal from at least the turn of the thirteenth century.222 It was also in anticipa­ tion of proceedings held before this Audientia that William of Drogheda formulated the sample petitions that Maitland noticed.223 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 impor­ tant 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, pro­ ceedings most appropriately took place before the Penitentiary. His office held juris­ diction 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. R Jacob, 'To and From the Court of Rome in the Early Fifteenth Century5in 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. Ill, 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, ii. 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.

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precisely defined.225 The number of men serving as penitentiaries at one time during the fourteenth century varied from between ten to twenty.226 The office was subject to periodic reform.227 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 audi­ tor, 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.230 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.231 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 Göller, Die päpstliche Pönitentiarie von ihrem Ursprung bis zu ihrer Umgestaltung 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 Penitentiary5(1905) 9 American Jnl of Theology, 421-50. 226 Timotheus Majic, 'Die Apostolische Pönitentiarie im 14. Jahrhundert5 (1955) 50 Römische Quartalschrift fü r christliche Altertumskunde und Kirchengeschichte 129-77, at 142-5. 227 See Göller, Die päpstliche Pönitentiarie (above n. 225), 90-8. 228 Ludwig Schmugge, Kirche^ Kinder^ Karrieren: Päpstliche Dispense von der unehelichen Geburt im Spätmittelalter (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 römische Rota nach geltendem Recht a u f geschichtlicher Grundlage (1914), 86-90. 230 Margaret Harvey, The English in Romey 1362-1420 (1999),132-48; William Pantin, 'The Fourteenth Century5in The English Church and the Papacy in the Middle Ages ed. C. H. Lawrence (1965)，175-7. 231 Its text is given in Michael Tangl, Die päpstliche Kanzleiordungen von 1200-1500 (1894), 83-91. Some of the records of the court are described in Hermann Hoberg, 'Die Protokollbücher der Rotanotare von 1464 bis 1517'(1953) 39 ZRGy 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.

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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.232 Yet their dominance was not complete. It was before the Rota in the 1370s that the papal judges heard and determined the inva­ lidity of the English custom of hearing civil cases involving clerical defendants before secular courts.233 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 legis­ lation prohibiting appeals to Rome and providing that in cases of Clack 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 determi­ nations 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 eventu­ ally 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.i,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.236 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.

232 K. W. Nörr, 'Ein Kapitel aus der Geschichte der Rechtsprechung: Die Rota Romana5(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 England5(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.

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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 dispen­ sations 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.237 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, dis­ pensations 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 grad­ ually 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.240 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.241 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.242 237 On Wotton (d.1567), see DNByxxi. 973. 238 D. 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, CRG.687. 240 See e.g. John Bramhall(d.1663), Schism Guarded, Disc. 4, ch. 8 in The Works of John Bramhall (1842), ii. 444-9. 241 Wilfrid Hooper, 'The Court of Faculties'(1910) 25 EHR 670-86. See also E. R 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.

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T H E C O U R T S OF T H E B I S H O P S

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 arch­ bishop'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 elab­ orate structure did not prevent the archbishop from dealing personally with legal disputes.244 The same pattern is found in some other dioceses.245 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 cen­ tury, 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 advo­ cates, 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 facul­ ties.247 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 occu­ pants served for very long periods indeed.248 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 book5(1972) 2 BMCL 45-59. 244 Churchill, Canterbury Administration, i. 469-86. 245 e.g. 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 Rochester5(1940) 53 Archaeologia Cantiana 29-61. 248 Woodcock, Medieval Courts, 38-40.

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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.249 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.250A few of the English consistory courts did employ an 'examiner gen­ eral' to carry on the depositions of witnesses which provided the bedrock of proof in the spiritual forum,251 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.252 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 some­ times 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 Stapeldony bishop of Exeter (A.D. 1307-1326)y ed. R 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, UOrigine du vicaire général et des untres 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.i,fo. 50. The office seems later to have gone out of use, however. 252 See Churchill, Canterbury Administration, i. 60-2; Jill Hughes, 'A 1301 Sequestrator-GeneraFs Account Roll for the Diocese of Coventry and Lichfield5 (1997) Camden Miscellany X X X IV (=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 England5 in Enterprise and Individuals in Fifteenth-Century England, ed. Jennifer Kermode (1991),118-31, at 124-5. F〇r 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 aArme Mann5(pauper) im Prozeßrecht der Grafen und Herzoge von Savoyen m Studien zur Rezeption des gelehrten Rechts, ed. Friedrich Ebel and Dieter Willoweit (1989), 220-39, at 234.

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from English practice was the promotor, or procurator fiscalis, who prosecuted crimes in many courts on the Continent and who exercised a preponderant influ­ ence on the character of ecclesiastical jurisdiction. Proctors occasionally took that role in England,255 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 pre­ served from an early period: that in Chester Cathedral. It consists of an enclosure formed by wooden panels or Vails' 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 officials 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 mat­ ter 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 etReus, found in archives throughout England, recorded the various stages of a colloquy between judge and proctor. cMy lord/ a proctor was instructed to say, CI pray that a term should be assigned to me to propound a libel in due form of law'. The judge: cWe assign the next [term] to you for the purpose of introducing your libel, and to the adverse party to receive if. The proctor: cMy lord, I pray that your lordship will admonish [the defendant] to appear in each and every session up until the end of the cause'.256 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 Mawger (York,1599), BI, CRG.3048. 256 See e.g. CUL, MS. Dd.10.36 (late sixteenth-century formulary), ff. 2 9 - 2 9 V , containing a simple version of the dialogue.

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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 liti­ gation 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 confla­ gration we do not yet know.258 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 exist­ ence. 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, particu­ larly those of archdeacons (of whom there were fifty-six or so in the 1520s), were scarcely inferior in personnel and jurisdiction to those 01 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 mar­ riage causes, exercised jurisdiction over a wide geographical area, and some were not ordinarily subject to appeals to the courts of the bishop.260 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.261 Moreover, there were the chapters attached 257 Carson L A. Ritchie, The Ecclesiastical Courts of York (1956); K. R 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.

260 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 Court5 (!933) 49 LQR 268-74; Act Book of the Ecclesiastical Court of Whatley 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.

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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,262 but others appear not to have had even that.263 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.264 Where we pos­ sess 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.265 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 chap­ ters 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 perambu­ lated, 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.266 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.267 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 bod­ ies, normally divided among the members. The canons of a cathedral church were the normal holders and thus 'prebendaries'.268 The canon law dealing with the rights attached to them became complex enough that a commentator described 262 e.g. R S. Hockaday, 'Withington Peculiar5(1917) 40 Transactions of the Bristol and Gloucestershire Archaeological Soc. 89-113, at 94. 263 Scammel, 'The Rural Chapter5(above n .17),15. 264 Provinciale,14, s.v. capitulis ruralibus: 'magis nituntur consuetudini patriae quam juri communil 265 e.g. R S. 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. Ill, tit. De praebendis et dignitatibus, no.1.

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litigation arising from prebendal rights as a source of income and a cause for sin and a source of shame.269 Both the Decretales Gregorii 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.270 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 ini­ tial process before the courts of their bishops.271 The lesser courts cannot have had much 'business' in contentious matters, but they were the source of revenue and pres­ tige 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.272 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 resent­ ment against them among the people subject to their jurisdiction was a matter of common knowledge.274 The bishops had every incentive to assert their powers of 269 Albericus de Rosate, Dictionarium iuris, 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 o f the Bishops 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-xiii.

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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 disappear­ ance of the substantive right.276 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 dele­ gate 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.277 In fact, the procedure used for parochial vis­ itations 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 cus­ tomarily collected by the visitor from those whom he visited, were a burden to the 275 See Scammell, 'The Rural Chapter5 (above n . 1 7 ) ; 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 ofWestley Waterless (Ely,1 3 7 6 ) CUL, Act book EDR D/2/1,fo. 3 9 V . 276 william Dansey, Horae decanicae rurales (2nd edn,1844), i.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 ( 1 5 1 4 - 1 6 ) , CCAL, Act book Z.3.3, ff. 1 5 V - 1 8 , 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'( 1 9 9 1 ) 2 Ecc. LJ 1 8 9 - 2 1 2 , and Katherine French, The People of the Parish ( 2 0 0 1 ) , 3 1 - 7 .

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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 cat 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 couldbe 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.279 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 ieval period to the Dissolution,280 and also some parochial visitations from the thirteenth and fourteenth centuries.281 Bishop Robert Grosseteste (d.1253) is said to have been a pioneer' in their implementation on the local level. At any rate, present­ ments by the churchwardens became a normal means of enforcing disciplinary juris­ diction 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 visita­ tions first authorized under Henry VIII. Injunctions were issued by the English monarchs in 1536,1538,1554, and 1559; they provided the substance for visita­ tions then held by royal authority. King James I required Archbishop Bancroft to issue instructions to the bishops.282 Some of the injunctions covered 278 Lyndwood, Provinciale, 49, s.v. visitatione. 279 It 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. JL L. V^ood-Legh ( = 24 Kent Records;1984) • 281 e.g. C. E. Woodruff, 'Some Early Visitation Rolls preserved at Canterbury5(1917) 32 Archaeologia Cantiana 143-80, ibid. 33 (1918), 71-90; id., 'An Archidiaconal Visitation of 1502 m ibid. 47 (1935),13-54； ，

A. H. Thompson， Vzsztotions in t/ze Diocese 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 Redmans Visitation iS9Jy ed. J. R Williams (=18 NRS;1946). The earliest manuscript record of a parochial visitation so far discovered is CCAL, Ch. Ant. H.6 jsl (1290s); one from the 1330s from the diocese of Norwicn is preserved in BodL, Norfolk MS. Roll18. 282 See Visitation Articles and Injunctions of the Early Stuart Church Iy ed. Kenneth Fincham (=iCERS;1994), 94-9.

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traditional themes of the canon law—due payment of tithes and forbidding the unlicensed holding of plural benefices, for example.283 Other injunctions broke new ground— —the discouragement of superstitious practices and the encour­ agement 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,285 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 cland without lawyers'.286 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 pro­ claimed 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. 7 c.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 particip­ ants in litigation, seeking to restrain the 'craftiness and sophistry' that allegedly marred too many of their appearances.287 William of Drogheda devoted numer­ ous 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;iii. 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 0/1559: Act Book for the Northern Province, ed. C. J. Kitching ( = 187 Surtees Soc.;1975 for 1972), pp. xx-xxii. 286 Brand, Origins of the English Legal Profession (Ch. 2, n. 247),1-2. 287 c. 29, C. & S. Ily p t .1 ,258. On the rise of professional thought more generally, see James Brundage, 'The Rise of Professional Canonists and Development of the Ius Commune5(1995) 81 ZRGy Kan. Abt. 26-63, esp. 41-55. 288 cc. 33-72, 99-141 in Wahrmund, Quellen, ii. 36-71, 94-170.

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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'.290 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.291 The division was, roughly speaking, equivalent to that exist­ ing 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 counsels 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.292 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 pres­ ent 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 England5in 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 Offiaalttés (above n. 250), 32-41;J. J. Hogan, Judicial Advocates and Procurators (1941),

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292 e.g. KAO, Act book DRb Pa 2, fo.17: 'Magister Bartholomeus Lovell procurator et advocatus curie predicted 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.

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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.293 Many of them were also notaries public, and this would have required some basic training in the use and preparation of docu­ ments. 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: C A trial consists of three elements, the start, the middle, and the end. The start of a trial is the litis contestation 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 neces­ sary part of the education of proctors. They seem to have entered the profession by undergoing something like a clerkship with an experienced proctor. A cyear 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 1 -1900, ed. Jonathan Bush and Alain Wijffels (1999),191-210; ana id., Marriage Litigation in Medieval England (1974)，148-9. 294 Taken from 'Summarium processus5,BL, Add. MS. 6254, ff.1-2. 巧

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The profession was quite small, and kept so by regulation. No one has yet com­ piled a list of all the ecclesiastical lawyers in practice or investigated the subject systematically, but studies of individual dioceses have been made.295 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.296 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.297 In the diocesan court at Canterbury, four proctors were regularly active in 1500.298 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 pro­ fessional lawyers in the ecclesiastical courts did not go very high. Proctors nor­ mally 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,300 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.301 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.

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litigation. They allow historians to estimate how much litigation cost. In a Canterbury testamentary cause from 1498, for example, the total of the plaintiffs expenses came to 225. ^d.y taxed by the court at 205. and charged to the losing party. Of this 65. was allocated to pay for appearances by the proctor, who had charged 6d. for each occasion he had appeared.302 Two court appearances by an advocate in a defamation suit at York in 1454 cost a total of 65. 6d.303 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 esti­ mates 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.304 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 pro­ fessional and ethical standards applied to both. And the canon law was quite articul­ ate, 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 pro­ fession of ecclesiastical law was subject to a comprehensive set of rules of ethical con­ duct. Concrete means of supervision existed, and the records contain cases in which disciplinary action was taken against individual proctors.305 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.306 The Second Council of Lyons (1274) repeated Woodcock, Medieval Courts^ 126. 303 BI, CP.R190. 304 This is suggested as a possibility by Brundage， ‘Bar of Ely’ （above n. 295)，559, and by Allmand， (しïvil Lawyers’ （above n . 184)，171;see generally Brimdage， ‘The Profits of the Law: Legal Fees of University-Trained Advocates'(1988) 32 A JLH 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, xxm. 218-19. See also c. 29 of the Legatine Council of London (1237) in C. & S. IIyp t.1,258-9. The sub­ ject is discussed in James Brundage, 'The calumny Oath and Ethical Ideals of Canonical Advocates' 3 0 2

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and enlarged these standards, requiring that the lawyer's oath be renewed annu­ ally.307 Synodal statutes and court regulations added penalties and specificity to the rules.308 Lengthy sections in the medieval commentaries laid down and dis­ cussed rules of professional conduct in the courts.309 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 implemen­ tation 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.310 Among the court records are also entries where proctors or advocates refused to accept unjust causes,311 and more in which proctors dismissed causes they discovered to be unjust during the course of a trial.312 Such a cause was called a causa desperata. It was one the proctor could no longer defend in good con­ science.313 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. Müller (1997),

793-805, and id., 'The Ethics of Advocacy: Confidentiality and Conflict of Interest in Medieval Canon Law5in Grundlagen des Rechts, 453-66. 307 c.19 in Decrees, Tanner, i. 324. 308 e.g. Regulations for Court of Canterbury (1295); the courts at York (1311);and the courts of Canterbury (1423) in Wilkins，C⑽ dZia，ii. 204-13, 409-15; iii. 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 JL H 169-79. 311 BI, Cons.AB.i,fo. 3〇r (1417), in which proctor John Willyngham said he would not act unless the rights were clear to him; York CP. R78 (1410) in which the advocate Robert Ragenhill refused to take a case assigned to him, 'quia et asseruit... ipsa Mathilidis fovebat et defendebat causam iniustaml 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 ofEnglanäy 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 advocatus5; Durantis, Speculum iudtctale, lib. I, pt. 4, tit. De salarus procuratorum et tabellionumy no. 3: '[Q]ui etiam debet iurare quod quamcito causam malam esse noverit ipsam deseretl The Roman law source for the phase causa desperata and for the above oath is Cod. 3.1.14.4.

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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 con­ centration of professional expertise in the capital. Precedent books compiled around this time show the diffusion of documents from the London courts out­ wards to other dioceses.314 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.315 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 cthe doctors of the arches' gathered together in Paternoster Row from those earlier years,317 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 dis­ covered—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 o f Doctor Gager (Ely 1 6 0 9 ) , BI, Prec. Bk 1 1 , fo.1 9 V , 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 Rayn in Ex officio c. Warner (London,1521),GL, Act book MS. 9065J/1, fo. loov. The man referred to must be Dr John Rayne (d.1536), on whom see Squibb, Doctors' Commons (above n. 316)，132.

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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 promin­ ent among them. It is not inaccurate to describe Doctors' Commons as ca society of many talents' during its first decades.318 By the end of the sixteenth century, however, this cosmopolitan feature had been lost.319 The last proctor was admit­ ted 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,320 but it is equally legitimate to see in them the growth of a truly profes­ sional 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.321 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 exam­ ined 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 surviv­ ing from before the latter part of the sixteenth century have defeated even the 318 R 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 remained5,and the earlier period as a 'golden hour5of its history. 321 See generally Daniel Coquillette, The Civilian Writers of Doctors' Commons^ London (1988).

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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. T Y P E S A N D A M O U N T S OF L I T I G A T I O N

Ecclesiastical jurisdiction between parties embraced instance litigation over mar­ riage and divorce, succession at death, tithes and other ecclesiastical dues, defama­ tion, 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.322 Thereafter it was an occa­ sional, but fairly steady, part of the courts' agenda. Second, the number of causae fidei laesionis 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. ，

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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 relat­ ively 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 1531.326 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 stan­ dards 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 com­ mon 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 laitys 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 148os 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 Law5, H U O , 111.271-2; Thomas Fuller, The History of the University o f Cambridge, ed. M. Prickett and T. Wright (1840), 225.

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to the plaintiff. All these were moved from the ecclesiastical to the secular courts. Whatever may have been the cdeep' 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. C O M M O N LAW C O U R T S A N D E C C L E S I A S T I C A L J U R I S D I C T I O N

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—cby 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 per­ jury. 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.330 330 Evidence on this point is collected in Canon Law and the Law of England, 307-21.

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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.331 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.i,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 13335 but nothing was done. The cwalF 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 cin the court of Rome or elsewhere (ou ailloursY.333 '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 matter5showing that no remedy was available in the king's courts. Provinciale, 315, s.v. perjurio: 'Ex predictis colligi potest practica libellandi in causa perjurii ad evitandum prohioitiones regiasl 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. 3 3 2

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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 legiti­ macy 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' submit­ ted in the first place to the king s courts allowed defendants in ecclesiastical courts to make an cend run 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 com­ mon law rules themselves. A London judge dismissed one such cause in 1513 'because [it did] not come within ecclesiastical cognizance'.336 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 major­ ity of causae fidei laesio, the canon law itself conceded jurisdiction to the tem­ poral courts. 334 See Charles Gray, The Writ of Prohibition: Jurisdiction in Early Modern English Law (1994), i, pp. xviii-xxiii, 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 Seiden Soc.;1985), pp. xliii-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 ecclesiasticuml 337 See opinions canvassed in Lyndwood, Provinciale, 315, s.v. perjurio.

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It was principally from the perspective of the practitioners in the English con­ sistory 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 civil­ ians. 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 aggres­ sive 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.

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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 ecclesiasti­ cal 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.340 At the lower level of the profession, most of the men serving in the courts con­ tinued in their careers throughout the dramatic religious changes of the period.341 In the diocese of Winchester, for example, the records identify six proctors active in the latter part of Henry VIlFs 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. L/360-70. See also Houlbrooke, Church Courts, 26-7.

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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 m 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 ecclesi­ astical 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.

4 From the Elizabethan Settlement to the Abolition of Episcopacy 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,1 and in some matters, testamentary law being the most urgent and obvious example, the absence of traditional ecclesiastical jurisdiction caused widespread inconven­ ience.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

I

n

1 See Acts and Ordinances of the Interregnum^ 1642-1660^ ed. C. H. Firth and R. S. Rait (1911), i. 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 Perspective5(1983) 8 Midland History 86-105; Christopher Kitching, 'Probate during the Civil War and Interregnum5 (1976) 5 Jnl Society of Archivists 283-93, 346-56; Nancy L. Matthews, William Sheppard^ CromwelVs Law Reformer (1984),165. An entertaining expression of this view, taken from Roger L'Estrange, The Committee or Popery in Masquerade (1680), can be found in Lambeth Palace Library^ Annual Review (2000),19. 3 R 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.

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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 cups' as well as 'downs'. New problems did arise, and periodic 'scares' about the future of the ecclesiastical jurisdiction did occur in the late six­ teenth 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 fret­ ted. 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 kingdom5.See Anthony ä Wood, The History and Antiquities of the University o f Oxford (1792-96),11.281.

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This had all been done, he conceded, cfor greediness and gain.5 Multiplication of criminal prosecutions had caused resentment against the church's courts, and Tabor concluded ruefully,c[T] 0 confess the truth, of my certain knowledge there was some cause for it within the archdeaconry of Wells'.6 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,7 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 cita­ tions. 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. 5 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 dealinge5,and later excom­ municated 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 curiis ecclesiasticis, marginalia at fo. 1 5 1 V . 7 M. J. Haren, 'The Will of Master John de Belvoir5(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.8 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 ecclesiast­ ical courts to those of the common law; the appel comme d'abus was not imported from France.9 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 kings 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 .i,s .i,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 temporaF. 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 commis­ sioners 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. Ill, c. 9, ed. Mary Dewar (1982),143. Along with many civilians, he thought the use of Praemunire and Prohibitions should be curtailed because the ecclesi­ astical courts were no longer subject to papal control. The opposite happened. 9 See R. Naz, 'Appel comme d?abus?, DDCyi. 818-27.

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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.10 This kind of legislation did not, how­ ever, bring an end to legislation by the church itself. Convocation met and new canons were enacted, most significantly in 1604.11 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.12 How the two forms of legis­ lation, 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 (1566);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 ques­ tion; 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 devel­ opments 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 pos­ sessed what he called ca fair claim to the approbation of the learned world'. They could cbe safely adopted as principles of sound reason and natural justice'.14 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.15His 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 commune7. 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 Casuistry5in 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.

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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, CI think these lawyers keep but their old trade'.16 It was true, and the fact was a mat­ ter of discomfort for the archbishop, though he hesitated to enter the csea of com­ plexities' 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 pro­ posed in Parliament that the ecclesiastical courts be abolished entirely. He was committed to prison briefly for the temerity of having made the proposal,17but 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.18 Opposition of this sort was of con­ cern 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 prin­ ciples 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 aaily practiced among us?. 17 DNBy 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 R 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 read­ ing and commenting upon the texts of the Corpus iuris civilis.20 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 civil­ ian 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.21 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.22 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 disputa­ tions 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.24 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 It is contained in BERO, MS. D/ED O57 (entitled 'Exercitia in iure civili5), 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. 1’，CUL，MS. Dd.5.78(2) fo.liv， dealing with the duties of parents to their children. 23 Alain Wijffels, 'Disputations en droit ä TUniversité de Cambridge sous le règne élisabétain (2000) 57 Mémoires de la Société pour VHistoire du Droit et des Institutions des anciens pays bourguignonSy comtois et romanäs 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.

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dividing particular parts of the law into their component parts, continued to be put together in their notebooks.25 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.27 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 pro­ gramme 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'.30 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.31 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 antigwa wmVersitotis Oxom.ensis，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), i. 461. 28 e.g. LAO, For.20 (Lectures c.1616, no foliation), at Dig. 42.1.55 (1. iudex posted), taking note that sentences in matrimonial causes did not become res judicata under X 2.27.7. 29 Brian Levack, 'Law5,in HUOy iv. 560. 30 J. B. Mullinger, The University of Cambridge (1884),11.422. 31 See R Donald Logan, 'The Origins of the So-called Regius Professorships: An Aspect of the Renaissance in Oxford and Cambridge5(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 suc­ cessor, 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 ana­ logy and terminology to describe the principal features of the common law.33 His deservedly high reputation as a civilian has suffered to this day from his publica­ tion 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.35 Alberico Gentili (d.1608) was the most outstanding incumbent of the chair. An Italian Protestant, he assumed the post in 1587 and held it until1608. Gentili published so consider­ able a list of learned works that he has earned a plausible claim to be listed among the fathers of international law.36 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, 'iir Thomas Smith: Renaissance Civilian in id., The Character and Influence of the Roman Civil Law (1988),186-96. 33 John Cowell, Institutiones iuris Anglicani ad methodum et seriem institutionum impenaitum compositae et digestae (ist 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. Ill, tit. 22 § 1. 34 It has attracted one modern defender: S. B. Chrimes, 'The Constitutional Ideas of Dr John Cowell5, (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 m John Barton, 'The Kings Readers', HUO, iii. 285-93. 36 There is a list in Alberico Gentili: 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.

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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 sig­ nificant 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.39 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.40 Even Cowell, whose prin­ cipal 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 occa­ sional reference to the texts of the Corpus iuris canonici and commentators on it.41 A comment by Petrus Rebuffus sums up the situation. He wrote that the canon and civil laws were cso 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 ckept the canon law in commendam with their own.43 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 - 1 4 V (lecture notes temp. Charles I); Library of D. & C., Durham, MS. 68, Disp. 3, no. 5: 'Caeterum iure canonico quod mores hodierni sequunturl 39 BL，Harl. MS. 3190, ff. 4 8 V — 4 9 V . 40 SRO?MS. DD/WO 52/1 (no foliation). 41 See Lib. Ill, 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 TUI, vol. 15:2: 'Ius canonicum et civile sunt adeo connexa, ut unum sine altero vix intelligi possitl 43 The History o f the University of Cambridge, ed. M. Prickett and T. Wright (1840), 225. 44 For examples, see CUL, MS. Dd.5.45, ff. 9 1 V - 1 1 6 V (ante 1 6 2 3 ) ; BL, Harl. MS. 6 0 4 8 , ff. 8 - 4 2 ; CCAL, Lit. MS. C 1 8 ^sixteenth century).

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just preserving the old, libraries were kept cup to date m 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 R W. Maitland once argued that the intel­ lectual horizons of the English civilians were shrinking during these years: cYear by year they were becoming more English and less cosmopolitan.47 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 jurisdic­ tion 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. 6 0 4 8 , fo. 3 6 V . 46 Taken from Notes by a seventeenth century student, BL, Harl. MS. 3190, ff.15-19. 47 'Church, State and Decretals m Roman Canon Law, 96. 48 See generally Ernst Holthöfer, 'Literaturtypen des mos italicus in der europäischen Rechtsliteratur der frühen Neuzeit (16.-18. Jahrhundert)5(1969) 2 Ius commune 130-66.

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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 jurisdic­ tion. 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. I N T R O D U C T I O N S TO T H E I U S C O M M U N E A N D C O M P A R A T I V E 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 know­ ledge of Roman law, The Law ofLawes (ist edn,1656). The book was both a descrip­ tion and encomium of the principal features of the civil law. He sought to show chow very useful [Roman law] may be to the public welfare of this Nation.50 Quoting from Gratian s Decretum, he described it as can 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 cnot unbridled pleasure', but rather what conformed cwith justice, reason, and good consideration.51 Wiseman also took note that the civil law wisely admitted little difference in inher­ itance 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 exposi­ tion 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 B o o k m civilian s notebook, SRO, MS. D/D/Cwe (seventeenth century); reference to 'librum meum manuscriptum processus judiciorum5in precedent book, LPL, MS. 2 0 8 5 [pt. 2 ] , fo. 3 6 V reference to 'Mr Parker's booke intitulatum tomus secundus' in Precedent book, CCAL MS. Z/5/4 (seventeenth century). 50 The Law ofLawes (1657), preface (no pagination). 51ibid. 10-11, 22-3. 52 ibid. 84-5. ；

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Wiseman s hopes and his admiration of the ius commune were shared by his fellow civilians. Arthur Duck (d.1648), author of De usu et authoritate iuris civilis (ist 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. cThe Roman laws have no authority in France by virtue of the authority of the Roman emperor', he wrote, cbut they are admitted by the authority of reason and with the consent of the king'.53 England might take heed. The Elementa jurisprudentiae (ist 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 sys­ tems. 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.55 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.56 What united these works was their attempt to reach beyond a readership of practising civilians. In fact, the civilians them­ selves 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. D E F E N C E S OF E C C L E S I A S T I C A L J U R I S D I C T I O N

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 a htstoire desfacultés de droit et de la science juridique 193-221; Peter Stein, 'A Seventeenth-Century English View of the European jus commune in Excerptiones iuris: 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 Lawy the Canon Law and the Common Law qft/zis (1601/2). See Daniel Coquillette， TTze しzvzZzVm Writers qf Lectors’ 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.1 5 2 6 , ff. 6 1 - 7 4 V (seventeenth century).

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arguments found in them prevailed would they prosper. Best known among them are Richard Cosin (d.1597), Apologie for Sundrie Proceedings by Jurisdiction Ecclesiasticall (ist 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 ca free course to the civil and ecclesiastical law in this land'.57 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 cthe 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.59 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'.60 As unnkeiy 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 A P C 1615-16y 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.61 There is something to be learned from examining them. The alarm and the indig­ nation 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. C O M M E N T A R I E S O N T H E T E X T S OF T H E C I V I L 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.62 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.

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It survives in at least three manuscript copies, one demonstration that regular circulation of civilian manuscripts continued during these years.63 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 contem­ porary 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 01 his work, but rather the force of the tra­ ditions 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.64 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 Edens 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 integ­ rate 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.65 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 incor­ porate the elaborate learning of the medieval canonists on the words necessary to enter into an indissoluble marriage, but it was an incomplete treatment of matri­ monial 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 (I1551-1624) Civil Lawyer of York (1973).

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chattels held jointly with another, although he noted that this result was not wholly in accord with the civil law's rule.66 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 tra­ ditional authorities. If anyone doubts the continued reliance of the English civil­ ians 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 com­ bined 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, grow­ ing corn, debts owing, and profits accruing from land belonged there— —none of this was beneath his attention.67 Francis Clerke s Praxis in curiis 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 pro­ cedural literature. It accomplished for procedure in the ecclesiastical courts some­ thing 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 infor­ mation he provided in the body of the treatise applied as a general rule in other ecclesiastical courts.68 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 decedents estate to allow them to require executors and administrators to render an account of their administration.69 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 f〇r the general proposition. 67 ibid., pt. 6 § 7 (p. 218). Similar is a manuscript treatise on the law of executors, BL, Royal MS. Cleo. F.i, ff. 338-434; it also made use of both cases and treatises on the common law as well as author­ ities from the ius commune. 68 J. Duncan M. Derrett, 'The Works of Francis Clerke, Proctor5 (1974) 40 Studia et documenta historiae et iuris 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 consist­ ory courts throughout England. It was used, and indeed imitated.70 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 comment­ aries on the ius commune.71 In that restricted sense, Clerke's Praxis does belong fully within the traditions of the ius 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 Seiden s famous work.72 This concentration has caused neglect of the practical lit­ erature on the law of tithes written at the time. Decimarum et oblationum tabula (ist edn,1591),ascribed on its title page to William Crashaw (d.1626), is one such treatise that was printed. Divided into fifteen Quaestionesyeach of which was fur­ ther subdivided, its aim was to bring to light laws that clie hidden in manifold, dark and dangerous corners in practise only, familiar in consistories'.73 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 m curiis ecclesiasticis huius regni’ 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 Seiden, History of Tythes (ist 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).

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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.74 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 con­ troversial 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).76The law of ecclesiastical benefices and canonical elections was the subject of an anonymous treatise also compiled during Elizabeths reign.77 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.i68v. 7o ihomas Wilson, A Discourse upon Usury (ist 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.9.29.

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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.78The book by William Clerke (d.1655) on the law of bastardy aimed at explaining the definition and treat­ ment 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.80 One could not conclude that these and other works, taken together, reached the level of sophistication and length of what was pro­ duced by contemporary civilians on the Continent. Holdsworth may have been right to remark, cIn the sixteenth century no great books were written on ecclesiastical law'.81 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. M ISCELLANEO US TRACTS A N D 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 quaestionurriy Observationes iuris, 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 prac­ tising 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.82 Originally from a Warwickshire family, Colmore 78 BodL, Rawl. MS. C.53. 79 Triall o f Bastardie (ist 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 commissariomm regis’；Bodl” Rawl. MS. R1461， called ‘Tractatus de forma processus in curiis ecclesiasticis’; WSRO, MS. Ep I/51/4, entitled 'Practica curie Cestn; 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?DDRXVIII/3.

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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 vari­ ety 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 par­ ties had appealed. His answer was that he could, reasoning that in doing so, CI 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 per­ son 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 estab­ lished 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 ius 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.86 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.87 Another example from about the same period, which was arranged 83 See Levack， TTze しmZ lawyers (above n. 62)，219-20. 84 Swifte c. Johnsony DUL, DDR, XVIII/3, fo.1 2 5 . 85 ibid., fo. 2 5 4 V . 86 TCD，MS. 598 ， described m the catalogue as ‘Collectanea de jure civili et canonico c.i6oo’. Other examples: Queen s Coll., Oxford, MS. 360; BL, Aad. 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. 5 9 8 , ff. 1 2 V - 1 3 . This question was the subject of synodal legislation (Statutes of Salisbury I, c. 6 9 ( 1 2 1 7 X 1 2 1 9 ) in C. & S. IIy p t. 1 , 8 2 - 3 , and a long gloss in Lyndwood, Provinciale^ 2 5 , s.v. de consuetuame.

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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. R E P O R T S OF C A U S E S A N D O P I N I O N S OF C O U N S E L

A natural but unanswerable question is whether the final category of civilian literature— —reports 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 particu­ lar 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 eccle­ siastical causes on defamation now in Nottingham University Library looks very like the common law collection of cases on the same subject by John March.90 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. 90 Comparing NUL, Collection of Cases, MS. AN/A 43 (1634-7), with John March, Actions for Slaunder (1648).

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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.91 It contains causes from the London courts, mostly the Court of Arches, and covers the years 1597 to 1604. It must have been kept con­ temporaneously, since the same cause sometimes appears at more than one place in the manuscript. Some causes were very fully reported; they included full state­ ment 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 manu­ script, 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 presump­ tions 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 thorol 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 contestation93 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?94 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 ius commune. Most of the other ecclesiastical reports from before 1640 were less complete than the Tanner manuscript.95 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. 4 2 7 . 92 Forest c. Forest, ibid., fo.1 4 V . 93 Case ofPiddockes Testament, ibid., f f . 3 8 V - 3 9 . It was decided that he could. 94 し0¢ c. Hwnt，ibid.，fo.118. The court allowed the appeal. 95 There is a fuller list in Helmholz, Roman Canon Law, 198-9.

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muniments at Worcester, contains a very large selection of illustrative causes.96 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 admir­ alty and ecclesiastical courts.97 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.98 An occasional example of reports actually spanned the Interregnum, beginning with causes from the 1630s and continuing with some from the 1670s." 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.100 They provide a few high points. Opinions from the pen of the judicious Swinburne are, for example, to be found in a Durham manuscript.101 Some are particularly note­ worthy because they are found alongside opinions on the same subjects by com­ mon lawyers.102 Like the ecclesiastical reports, a few of the opinions by the English 96 GL，MS.11448; W〇R〇，MS. 794.093, BA 2740/B. 97 BL, Lansd. MSS. 129-31, !35- 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 Reportingr m Law Reporting in England, ed. Chantal Steobmgs (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).

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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.103 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 com­ mon 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 meas­ ures 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 preced­ ents 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 con­ tinued 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.

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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?104 Both stated legal rules and could lead to monetary awards or exemplary punishment. Does it include deci­ sions 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?105They 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,106 was actually a later development.107 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.108 But the reality was otherwise.109 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 in 1571,1575,1584,1597,1604, and 1640.110 None treated the laity differently than they did the clergy. Nor did a more technical problem present real difficult­ ies: 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.111 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 Whitgitt 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 Votesy 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 Understanding5in 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, ii?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. no Marchant, Church under the Law, 129-30. 111 See Anglican Canons, 12-578.

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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 revolution­ ary 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.113 T H E N A T U R E OF T H E L E G I S L A T I O N

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 consti­ tution ascribed to 1236 about baptismal fonts, stating that it had been ctoo 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.115 Canons required that men to be ordained have a sufficient 'title' and that they be sufficiently learned to carry out their high calling.116 The clergy was required to denounce those who had been solemnly excommunicated, but sen­ tences of excommunication were not to be issued without due regard for form.117 Children were not to be left unbaptized if they were in any danger of dying.118 Canons like these provided nothing new. They put into different words and some­ times 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. 81 in 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.

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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.119 The famous cet 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.120 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 tradi­ tional 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.121 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 cthe 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.122 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 clest they live idly and unprofitably in slothfulnessl123 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.

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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.126 Others were less successful, like a canon of 1604 that prohibited pub­ lic disagreement between preachers in the same church. The want of express sanc­ tions 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 caspirationaF in quality. That was a fea­ ture 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 decret­ als 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.127 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.128 It has been a common feature of ecclesiast­ ical 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 cup 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,129 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.130 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. 5:3; Canons of 1604, c. 80 in Anglican Canons, 192-3, 374-5. 127 See Case of Deprivation (c.1610), BI, Prec. Bk 11,fo. 4〇v. 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, i9〇-i? 4〇〇- i?406-7.

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regulated the prohibited degrees of consanguinity and affinity.131 Neither it nor the other canons (nor the Parliamentary statute), can be said to have succeeded com­ pletely 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.132 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 m the law were adjusted to improve the speed and fairness of pro­ ceedings within them. For example, one of the 1604 canons provided a qualified immunity from suit for churchwardens who presented parishioners to an ecclesiast­ ical court for having committed a crime.133 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: cNo judge will admit an action against the churchwarden, because it is to be presumed he doth it not upon malice'.134 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.135 Measures for the support of the poor like­ wise 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 cto their poor neighbours'. It was left to the ecclesiastical courts to see to it that the duty was fulfilled.136 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. io v . See, however, Medcalfc. Bishop (1600), Bodl., Tanner MS. 427, ff. 62-64%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 saltern 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. 2/v (‘a common drunkard’). 136 Canons of 1604, c. 84 in Anglican Canons, 378-9; Injunctions of 1559, c.11 in Visitation Articles, Frere, iii.12.

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1604 canons to have a licence from their bishops, and supervision of that level of education also fell within ecclesiastical jurisdiction.137These 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 cwas no preaching minister'?139 The courts had to meet problems like this as best they might. To their credit, they nor­ mally did so with moderation.140 They did not license dissent, but religious dis­ agreement 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 Vs responses to St Augustine's questions about the purpose of ecclesiastical discipline was echoed in the enforcement of the new canons. T H E ROLE OF T H E L E G I S L A T I O N

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 Ex 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. Cnnstopher 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.141 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.143 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.144 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 l^yi,145 and earlier Henry VIII had him­ self made use of a collection of early materials to support his break with the papacy.146 The Anglo-Saxon laws showed that the kings and their councils had 141 Visitation Articles and Injunctions of the Early Stuart Church Iy ed. Kenneth Fincham (=1 CERS; 1994), pp. xvi-xvii. 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 Kümin (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 convo­ cation as a legislative body5. 145 J. E. Neale, Elizabeth I and her Parliaments^ 1559-1581(1958),196. 146 On the 'Collectanea satis copiosa5, see John Guy, 'Thomas Cromwell and the Intellectual Origins of the Henrician Revolution 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.

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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 com­ mon 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.147 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.148 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.149 The Queen herself wished to keep a dis­ tinct space for the church, free from intrusion by Parliament, although not neces­ sarily from her own. Elizabeth repeatedly inhibited the Commons from discussing matters touching the church and her prerogative.150 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.151 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 England5(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 Hookers 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 affect­ ing 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.152 It is significant, for example, that many more bills were introduced than were enacted. The contention they aroused shows something about the mix of opin­ ions 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 care­ fully 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 cHead in earth' of the English church was professedly made cfor corroboration and confirmation of Convocation s act recognizing that the king rightly possessed that title already (26 Hen. VIII, c .i,1534). The king s power was recognized, so that he could act cfor the conservancy of the peace, unity and tranquility of the realm' ana ria the kingdom of the vices and inconveniences that had attended the exer­ cise of papal jurisdiction. His duty was to work cfor the increase of virtue and the repressing of heresy'. These were the very duties of a king proclaimed by the clas­ sical 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 doc­ trine, 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 scrip­ tures 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 ^59 (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.

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Convocation (1 Eliz. I, c. 2 ,1559). Whatever the reality, the legislation studiously avoided the appearance of innovation. C O N T E N T S OF T H E S T A T U T E S

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.154 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 eccle­ siastical 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 .i ,1571).Measures were passed to enforce attendance at ones parish church and to penalize popish recusants for not attending (e.g. 23 Eliz. I, c.l,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 cbear baiting, bull baiting, interludes, common plays and other unlawful exercises'(1 Car. I, c .i,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 clas­ sical 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.155 Convocations 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 ecclesiasti­ cal courts to punish men and women for the statutory offences. Such provisos, prudently coupled with a prohibition against double prosecution, were very com­ mon 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 rea­ son 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 con­ ferral of a benefice with cure of souls was the same as the rule given in the applic­ able 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.

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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.156 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 with­ out 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 preach­ ing 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.158 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.159 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 cin 156 Gl ord. ad X 1.14.3: 'Haec decretalis non continet ius commune5,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. 2 8 V '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 . 1 4 8 ) , 2 2 8 - 9 . ：

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good letters, either in the university or in some lesser school' was enough, according to its wording.160 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 cby doctrine, judgment, godliness, honesty and innocency of life [he] is able to bear so heavy a burden.161 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. n , 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.162 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 01 initiatives 160 Canons of 1571,c.1:6 in Anglican Canons, 174-5. 161 c.10:1 in Anglican Canons, 202-3. 162 Ecclesiastical Courts Comm., p.li. 163 See Helmholz, Roman Canon Law, 104-17.

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by monarchs, bishops, and various acts of Parliament. Did a parish church lack a copy of Bishop Jewel's Apologia7. 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.164 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 consider­ ation, 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 cfor 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 cir­ cumstances triple, the value of tithes to be recovered against any person who with­ held 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.165 None the less, the statutes were regularly put into practice in the courts of the church. Doubling or tripling the amount avail­ able 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 Buckinghamshire5(1955-6) 5 Univ. of Birmingham Historical /n /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 cdue obedience' to the proceedings of the ecclesiastical courts. As a civilian pointed out, the newer method was ca cheaper way' to pro­ ceed; it also avoided the problem of'secret appeals' that could blunt the effective­ ness of the Chancery writs.166 The Henrician statutes must have been a modest success. They were expanded to reach beyond tithe causes to all ecclesiastical pro­ ceedings 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. VIII, c. 6y1529). It had been a questionable and much-debated mulct, one that has become familiar to historians from the tragic denouement to Hunnes Case in the second decade of the sixteenth century.168 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 .i o ,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 decedents 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.169 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, p t.1,c. 2. 168 See Duncan Derrett, 'The Affairs of Richard Hunne and Friar Standish5in The Complete Works o f St Thomas More, ed. J. B. Trapp (1979), ix. 215-46; Stefan J. Smart, 'John Foxe and aThe Story of Richard Hun, Martyr55?(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 1Eliz. 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).

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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 ius 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 comment­ aries 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 ius 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 expres­ sion is attested by contemporary comments.170 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 iuris canonici or the constitutions enacted by provincial synods or by Convocation. As one civilian at the start of the seventeenth century noted, a canon cis 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 civil­ ians 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 o f Deprivation (c.1610), BI, Prec. Bk 11,fo. 4〇v. See also the (partially muddled) account of Sir Henry Martens treatment of statutes dealing with ecclesiastical elections in Commons Debates for i629y ed. Wallace Notestein and Frances Reif (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 dot 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,173 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 pos­ sessed property in the diocese where he was cited, even if his dwelling-place was elsewhere.174 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.175 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.176 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.177 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,178 and 172 BI，Prec. Bk 11，fo. 33. 173 GL, MS.11448, fo. 68v (dealing with administration of estates, to the effect that a statute con­ cerning a decedent's 'whole estate5should not be read to extend to 'bonis non administratis5,because 'statutum contra ius commune est stride interpretandum5). 174 Loe c. Lucas (Archdnry Buckingham,1 6 0 1 ) , BodL, Tanner MS. 4 2 7 , f f . 3 1 - 3 1 V . 175 jn william TrumbelFs 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 1/ 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. 4 2 7 , ff. 2 3 7 - 2 3 8 V '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 church5. ：

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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'.179 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 decedents next of kin, with the choice to be made cas 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 cleaveth it at his election.180 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. Ill, 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 prohioition in the case, he would follow the ius commune.181 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 chath too many imperfections in if—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.182 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 per­ son pardoned so that he could be absolved from sentences of excommunication. No doubt this required payment of a fee. See GL, MS.11448, fo. 5 5 V . 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), i.107-9. 180 Anon. (Durham, c.1610), Clement Colmore's Book, DUL, DDR XVIII/3, fo.132. 181 Bury c. Nossell (Ely, c . 1 6 0 9 ) , BI, Prec. Bk 11,ff. 9 - 9 V . 182 Anon, (c.1609), BI, Prec. Bk 11,fo.10.

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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 cnot a whit the better for this actl The Corpus iuris 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.183 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. Xwo 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 Seiden Soc. Supp. Ser.; 2000), p.lxvii. 183

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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.184 The civilians them­ selves 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. L E V E L S OF L I T I G A T I O N

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 162.187 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 'busi­ ness' within the spiritual forum.188 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 300.189 Although we cannot always trace the precise levels, the activity (and the income) of the civil­ ians rose during these years. 184

See e.g. Keith Wrightson and David Levine, Poverty and Piety in an English Village: Terling 1525-1/00 (2nd edn,1995),112. iss 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 GDR15 and GDR 84. 188 See e.g. Dorothy Owen, A Catalogue of the Records o f 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 Bishops 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.

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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 sug­ gests the same sort of growth that occurred on the instance side. In the archdeac­ onry of St Albans, for instance,135 ex officio proceedings were dealt with in 1583. In 1625, the number had risen to 294.190 In the diocese of Salisbury, the number of office causes between 1573 and 1603 increased from 220 to 450.191 Other indica­ tions point in the same direction.192 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.193 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.194 In particular, it should be recognized that the growth 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 actayas 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 aBawdy?, 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.

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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,195 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.196 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.197And 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 foruml A considerable pro­ portion of the men and women who were cited for failing to receive Holy Communion, for example, sought to excuse their iailure by saying they had 'stood out of love and charity with their neighbours' or some variety of this theme.198 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 A P C 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 charityel

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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 juris­ diction 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.199 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.200 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.201 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 Care5in Penitence in the Age of Reformations, ed. Katharine Lualdi and Anne Thayer (2000), 71-83. ^2 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), i. 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. 2 0 0

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of High Commission, since in practice it was divided into different branches, usually one for each diocese.202 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 .i ,1559), and its judges were appointed by virtue of a royal patent, not by appointment from the diocesan bishops.203Among 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 ordin­ ary courts failed.204 Making available awards of permanent alimony to divorced wives was among its accomplishments, for example.205 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.206 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 (ist 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/br しawses wit/zin t/ze Dioceses of Bristol and Gloucester 1574^ ed. R 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. ，

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contempt of church and clergy,208 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.209 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 churcns 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.210 As a matter of practical effect, the argument is also inconclusive. For most men and women, the threat of pro­ secution 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) con­ tains 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 V (1971)11 Jnl British Studies 1-25. 210 See e.g. Panormitanus, Commentaria ad X 5.39.28, no. 2.

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8

9

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 ius commune impresses. Ignoring the latter is not a legitimate option, how­ ever. 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.211 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.212 Court officers kept ex officio and instance litigation more rigorously separated, usually by compiling separate act books for each.213 Indexes came to be inserted at the end of act and deposition books, facilitating subsequent reference to the matters con­ tained 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.214 New classes of records were created for many consistory courts—as in establishing separate books for sen­ tences 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 Century5(1978)13 Archives 171-9. 213 For the diocese of Rochester， for instance， compare KA〇， Act books DRb Pa 20 (1590-3) and DRb Pa 2 (1444-56). 214 In 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: H unte. Friend (,1618), or Reea c. Bragg (1615), HRO, 21M65/C5/2, 6. It is difficult, of course, to estimate the extent of loss among this class of records.

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were also more scrupulously preserved.215 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.216 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.217 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 (cporrection 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.218 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 o f Chichester: A Catalogue of the Records of the Bishops Archdeacons and Former Exempt Jurisdictions (^hichester,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 Asaph5(1961)11Jnl 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. edituml

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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 prac­ tice. 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.22021We 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 prac­ tical 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. cIf 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.221 cMake certain that the scribe writes down that a witness swore an oath touching the Scriptures', noted a York proctor, cfor 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.224 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.g. 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 vaiet. 223 e.g. BL, Add. MS. 6254, ff. 46-9: 'Verba procuratoris rei. Ego exhibeo procuratorium meum.. 224 e.g. BL, Harl. MS. 5 1 0 5 (seventeenth century), ff. 6 9 V - 7 0 : 'Order how to examine a witness'.

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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 inter­ ested 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.i4〇o), Lanfmncus 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.226 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.227 It also touched England. In the law of defamation, testaments, benefices, civil and criminal procedure, and some discip­ linary 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. 66y 1 1 7 V , 1 6 4 V . 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.

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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.230 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. Parkhursfs mandates therefore prohibited probate outside the presence of the judge and also made it unlawful to grant administra­ tion 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,231 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 1 3 March 1 5 8 2 for the diocese of Canterbury, regulating the payment and division of fees, CCAL, Z . 3 . 2 3 (pt.1 ) , fo.1 8 3 V Schedule of fees for new diocese of Bristol (early seventeenth century), BRO, MS. EP/J/10; Fees of York Consistory ( 1 5 7 4 ) in Carson L A. Ritchie, The Ecclesiastical ；

Courts o f York ( 1 9 5 6 ) , 2 2 8 - 3 1 . 230 See The Letter Book of John Parkhurst, ed. Ralph Houlbrooke (= 43 Norfolk Record Soc.; 1974-5),

261-4. 231 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).

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the rival claimant to the benefice.232 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 par­ ties 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.234 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 eccle­ siastical 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 tradi­ tional 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.236 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. 8 4 - 9 3 and a sixteenth-century precedent book, NNRO, Misc. Bk.1 9 , ff. 8 5 V - 9 4 . 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 juris­ diction 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^ 1520-1/25^ 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.

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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 pres­ ent faults, they themselves were subjected to discipline by the judges—stern warn­ ings 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 1598.237 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 visita­ tions 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.238 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 cLaudianism' on show in the spiritual courts, some effort to impose ceremonial discipline on a reluctant laity, but there was also congruence between the improve­ ments 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.i,fo. 52: . .being a churchwarden omittyed to present himselfel 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 Kümin, 'The English Parish in a European Perspective5in The Parish, ed. French et at. (above n.142),15-32.

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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 ordin­ ary, and they were to be made without regard to cthe appeals, privileges, customs and prescriptions' of the past. The Protestant churches were not slow to embrace institu­ tions and rules designed to foster social and religious discipline.240 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.241 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 cthe 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 ecclesiast­ ical 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. Jahrhunderts5in Canon Law in Protestant Lands, ed. R. H. Helmholz (1992), 49-121; Fran9〇is Méjan, Discipline de VÉglise réformée de France annotée et précédée dyune introduction historique (1947). 241 Robert Sauzet, Les Visites pastorales dans le diocese de Chartres pendant la première mottte du XVIIe siècle (1975), 209-28. 242 Ex 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 Angliay c.1470-1550 (2001),162-5; Steve Hindle, The State and Social Change in Early Modern England^ c.1550-1640 (2000), 176-203.

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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.244 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 L^ivil War, out came a spate of pamph­ lets 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 day245 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 keep­ ing 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 i6ioy ed. Elizabeth Read Foster (1966), i.125. 245 Taken from The Vimpes 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.

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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 pro­ ceeding 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 noth­ ing 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.247 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 Pauls in London was no adequate justification.248 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.249As was true with most of the sources of discontent, the High Commission 247 e.g.18汶 （pro manu primi compurgatoris’ and 9汶 （pro quolibet compurgatore postea’， given in: BR〇， MS EP/J/io. 248 Davies, Caroline Captivity (above n .119), 77. 249 Diary o f Walter Yon^e, ed. George Roberts (= 41 Camden Soc.;1848), 37-8. A similar example is described in R Douglas Price, 'An Elizabethan Church Official—Thomas Powell, chancellor of Gloucester Diocese5(1939)128 CQR 94-112.

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was widely regarded as the worst offender. In 1606 at Winchester, for example, the commissioners fined a man £50 for an act of fornication.250 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 ex­ perience 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.251 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.254 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 cin the same way of Church government, which is in the Romish church'.256 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. 5 V - 6 V . 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 Penryy 1593, ed. Albert Peel(=67 Camden Soc (3d sen);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), i.126, 255-6. 255 e.g. 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 c .13 (1640) in Constitutional Documents of the Puritan Revolution 1625-1660^ ed. R. Gardiner (3rd edn，1906)，140•

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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 ecclesiast­ ical 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 for­ mulated 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 sup­ port 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 cto be disobedient and contemptuous against their husbands'.260 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 n .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 APCy 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 immobilium5of the husband 'in taxatione alimoniael See also Ingram, Church Courts,181. 260 Proceedings in Parliament 1610 (above n. 244), ii. 265.

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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.261 Perhaps they were only to be expected. It is rare for courts of any kind to be the object of affec­ tion 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. T H E C O M M O N LAW C O U R T S

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 realit­ ies 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 prohi­ bitions 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.262 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 Fs Commission on Fees, 1627-40'(1958) 31 BIHR 58-67. 262 2 Co. Inst. 603.

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was contrary to the rule that call 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. cNight walking was as sug­ gestive of burglary as it was of adultery.263 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.264 Where the civilians saw a simple case of incest, the common lawyers saw a threat to their monopoly to inter­ pret the parliamentary statute defining the prohibited degrees of consanguinity.265 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 maybe 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 w rits:(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 them­ selves 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.266 Some thought a kind of estoppel should apply. It gave two bites at the apple. Others thought the ecclesiastical proceedings were coram nonjudice 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 PowelVs 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 o f 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), i.124-7.

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these five principles almost all of the common lawyers would have agreed. They were the starting-points.267 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, cThe precedent of a prohibition maketh no law'.268 The officials in the English ecclesi­ astical 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.269 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 plain­ tiff 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.270 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.i49; Folger Library，Washington， ^ 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.

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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) chath the consent of the Law of God, and the Law of Nations'.271 To pre­ vent 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.272 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 con­ temporary 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.

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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, call suits in the ecclesiastical court should be stayed or otherwise taken away'.273 Few royal judges wished to go that far. Except in obvi­ ous cases, this reluctance put a brake on the willingness of litigants to seek prohi­ bitions in the first place. Tnira, the civilians hit upon several ways of blunting the effect of prohibitions. They regularly banished from their libels and other docu­ ments any language that might have suggested a temporal claim.274 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 prohibi­ tion 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 virtu­ ally 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. 2 6 8 V (Libel in tithe cause): 'Hec clausula inseritur gracia evitandi prohibitionem regiaml 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 comparationel

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to expand the scope of ecclesiastical jurisdiction.276 That the spiritual courts remained as busy and effective as they did remains a cause for wonder. The civil­ ians cannot have understood what awaited them. Ecclesiastical lawyers, like Mark Tabor, registrar to the archdeacon of Wells whose lament about the fall of ecclesi­ astical 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 jurisdic­ tion 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.277 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 con­ sequences 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 eccle­ siastical 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. por 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 Law5, c . 1 6 1 0 ) , fo.1 4 2 V . 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. 5 0 0 - 5 0 5 V . 276

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When compared with the bishops' courts in France, the English courts actually appeared to be thriving.278 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.279 In most places, the level of liti­ gation 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.280 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 regu­ lar 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.281 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 April1641,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 Tactivité disciplinaire des officialités du diocèse de Grenoble (1418-1449)' in Études historiques ä la mémoire de Noël 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. 1 1 - 1 7 V , 1 9 1 - 1 9 2 , and 2iov. See also Anthony Fletcher, A County Community in Peace and War: Sussex 1600-1660 ( 1 9 7 5 ) , 9 3 .

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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.284 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 church­ wardens 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, cfor the better manifesta­ tion of his hearty sorrow and penitence'.286 Even at this late date, there was thus an occasional need for the courts, and in some sense they did remain copen 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.287 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.288 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. 2 9 1 - 2 9 2 V . 284 BERO, A ct book D /A 2 /C 8 0 , ff. 5v—14, 92V， 148V， 149V—150. 285 GRO, A ct 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 War5 (above n. 2), 284-7; Martin D. W. Jones, The Ecclesiastical Courts before and after the L,ivil War: The Office Jurisdiction in the Dioceses of Oxford and Peterborough, 1630-1675' (BodL, Oxford B. Litt, thesis, 1977), 28-31.

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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 regu­ lar 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 hope­ less 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.290 The abolition of episcopacy in the 1640s had brought an end to the effect­ ive 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/C80, fo.141:'nichil actum est propter absentiam procuratoruml 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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5 Civil Procedure and the Law of Proof the time the consistory courts had become established in the mid-thirteenth century, 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.1The 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 ius commune had come into existence before the thirteenth century and continued long y

B

1

See, e.g., W. J. Jones, The Elizabethan Court of Chancery (1967), 236-63; Dirk Bieresborn, Klage und Klageerwiderung im deutschen und englischen Zivilprozeß (1999), 493-501.

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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 iuris employed in the ecclesiastical forum grew out of what most historians have taken to constitute a genuine revolution in the law of proof.2 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, how­ ever. Taking the basic institutions of the Roman law, the jurists of the ius 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 mat­ tered in the development of modern legal systems.

The Centrality 〇すし tvil 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 cbe done decently and in order'(1 Cor.14:4〇)?4and 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 judiciarii, 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 iuaiciale of William Durantis {d.1296) and briefer but better 2 e.g. R. C. Van Caenegem, 'Methods of Proor m Western Medieval Law5 in id., Legal History: A European Perspective (1991),71-113. 3 Wieslaw Litewski, Der römisch-kanonische Ztvtlprozeß nach aen älteren ordines iudiciarn (1999); Linda Fowler-Magerl, Ordines iudiciarii and Ltbelli de ordine iudiciorum (From the Middle of the Twelfth to the end o f the Fifteenth C entury) (1994); K. W. Nörr, 'Die Literatur zum gemeinen Zivilprozeß m Comg, Handbuch, i. 383-97; Walter Ullmann, 'Medieval Principles of evidence5(1946) 62 LQR 77-87. 4 Nicholas Everardus, Loci argumentorum legales^ tit. Locus ab oräineyno.1.

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1

3

organized manuals like the Praxis civins 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 curiis ecclesiasticis 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 differ­ ences, 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 resjudicata, 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 contestation interdiction 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

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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; conly the truth of the facts was to be inspected'.5 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.6 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. 6 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 processus5, BL, Add. MS. 6254 (sixteenth century), ff. 24V, 41V, listing matrimonial causes as both plenary and sum­ mary. 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 piano iuxta constitutiones novellas Dispendiosam et Saepe in Clem.?

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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 juris­ diction ratione personae was restricted to the criminal law, where Beckefs martyr­ dom 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.9 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 com­ mon 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 dijfamationis, 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.10Some 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.11Adoption 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 England5(1967)13 SG 455-90. 10 Pollock and Maitland, ii. 558-61. 11 ibid. 560.

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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 reg­ isters 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 ius 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 cat 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 proceed­ ing, 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 appropri­ ate 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 sev­ eral 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:'Iudicium ex tribus constat，principio, intermediis， et fine’.

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THE OPENING STAGES The opening part of an instance cause led up to and included the litis contestation the joinder of issue between plaintiff and defendant. Several preparatory steps pre­ ceded it. Much of the literature compiled by English proctors dealt with them, ana 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 Marshs Library in Dublin, described what was involved, he listed eleven separate steps prior to the litis contestation (1)The plaintiffs proctor presents the plaintiffs 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 descrip­ tion 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 anony­ mous, and some other manuals might do just as well.1314 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.15 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).

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'foundation of the ordo iuris.16 Exceptions were inevitably developed to the rule, but a basic tenet of the ius commune remained that, without legitimate citation, further proceedings involving a person s rights or possessions were a nullity.17The 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 sum­ moning 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 impor­ tance 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 cita­ tions were issued by the person who kept the judge's seal.19That 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 cita­ tions was to ensure that can honest and upright man would supervise the process, and its substance could be obtained without involving the judge personally.20 In England, the registrars were probably better placed to fulfil this function. It was entirely typical of the mature ius commune to clook through' formal requirements to their purpose.21 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,22 in practice peremptory citation became the rule. Good cause was presumed to exist.23 Likewise, although the formal law seemed to 16 Durantis, Speculum iudiciale, lib. II, pt 1,tit. De citatione, rubr. 17 Vantius, De nullitatibus processuum, tit. De nullitate ex defectu citationis, nos. 6-10. 18 See e.g. Sigismundo Scaccia, De iuäiciis causarumylib. II, c. 8, no. 439: '[Cjitatio requiritur de iure divino et naturali... tarnen pars potest illi renunciarel 19 Compare Tancred, Ordo iudiciarius,127, with 'Summarium processus5,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. Nörr, 'Prozeßzweck und Prozeßtypus: der kirchliche Prozeß des Mittelalters im Spannungsfeld zwischen objektiver Ordnung und subjektiven Interessen (1992) 78 ZRGy Kan. Abt. 183-209. 22 Gl ord. ad X 2.8.1, s.v. peremptorium; Dig. 5.1.68. 23 See John Ayton, Constitutiones, 6 5 , s.v. si reperire, taking note of the need to accelerate the pace of litigation and finding support in X 2 . 1 4 . 1 0 . See also Tancred, Ordo iudiciarius,1 3 2 , stating the rule but noting, 'hoc tarnen generalis ecclesiae consuetudo contrarium habet5,and 'Summarium processus5,BL, Add. MS. 6 2 5 4 , ff. 3 V - 4 : 'sed ex stilo omnium curiarum iam obtinuit ut loco trium citationum de iure requisitarum iudices unam mittant peremptoriaml

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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 dis­ covered. 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.25The 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.26 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.27 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, it it was necessary, with what particularity.28 An occasional English case raised the point in argument,29 and some formularies seem to have assumed that the causa litigandi should be included.30 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 cupon those canonical matters to be pro­ pounded against him'.32 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 tarnen consuetudo obtinet in Anglia quod archiepiscopus Cantuariensis ita citatl 25 It was sometimes done in writing only; e.g. Magnus c. Burden (Archdnry Lincoln,1536), LAO, Act book Cij/i, fo.18: the proctor 'exhibuit citationem cum certificatorio in dorsol 26 For the requirement, see e.g. Council of Lambeth, c.14 (1281)in C. & S. IIypt. 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. 4 0 V - 4 1 (temp. Eliz. I). 28 e.g. Scaccia, De iudtctts causarumylib. I, c. 32, no.14: Verum Doctores in hoc aliqualiter dissentiuntl 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 citationel Berisford c. Babington (Arches, 1599), Bodi., Tanner MS. 427, fo. 20. See also Registrum epistolarum fratris Johannis Peckhamy archiepiscopi Cantuariensis, ed. C .1.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 R & C. of the Hospitallers c. Carter et al (York, 1402-3), BI, CP.F.7: 'super sibi canonice proponenda5(a tithe cause).

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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.33 Many more orders to cite than actual citations have survived in the ecclesiast­ ical 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 inhioition 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/5, 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 505.

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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 ccould not be apprehended because he has been keeping out of the way (latitat)\35 In response, the judge decreed citation viis et modiSy 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 seem­ ingly did so too.36 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 plaintiffs 35 e.g. Precedent book (c.1600), LJRO, B/C/20/3, fo. i 〇2v: 'N apprehendi non potuit quia latitavit et in presenti latitat5; Wedon c. Cobbe and Fraunceys (Ely,1377), CUL, Act book EDR D/2/1, fo. 80: 'nondum est citata nec potuit inveniri... eo quod latitavit et latitat5.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 aOf No Great Moment55? 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 c. 26, C. & S. Iyp t.1,256-7; X 2.14.10. 37 Taken from Conset, Practice, tit. A Discourse of the Libel (p. 404).

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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 plaintiffs 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 iudicn—a matter of immediate importance, because, if the answer were no, then the libel could be omitted from summary process. Various views were held.39 On the one hand, it was cthe 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 libeF. 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 plaintiffs 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 ans­ wered each position with the legally ambiguous statement: Non credit utponitur. 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, D 1 / 4 5 / 1 , ff. 1 6 9 0 V - 1 6 9 1 , called a 'libellus reconven­ tionalis contra eundem libelluml 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,1 6 3 4 ) , NUL, Act book AN/A 4 3 , s.d. 2 0 Nov., in which the plaintiffs proctor 'allegavit libellum per viam reconventionis in hac causa datum esse de iure nullum5. 39 Gl ord. ad X 2.3.1, s.v. libellum reclamationis and DD. ad id; Durantis, Speculum iudiciale, lib. IV, p t.1,tit. De lib. concept. § 5; Vantius, De nullitatibus processuum, tit. De nullitate ex defectu processus, nos. 17-21.

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The response to this duplication was the 'articulated libell 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.40 As a later civilian put it: 'Those that are called articles to witnesses are called positions to the party principall41 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 con­ sisted of various means available to defendants of preventing further proceedings by objecting to one or another aspect of the plaintiffs case. Several basic categories of exceptions were known to, and used in, the English ecclesiastical courts. The jurists began with a division between 'peremptory', 'dila­ tory', and 'mixed' exceptions. The first of these referred to those exceptions that excluded the plaintiffs 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 cnewly 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.44 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 Topdiffc. Greenhode (York,1381)in Select Cases on Defamation to 1600 ( = 101 Seiden 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 complectitl 42 Adolf Berger, Encyclopedic Dictionary of Roman Law (1953), 458-61. 43 See, e.g., Hostiensis, Summa aureay lib. II, tit. De exceptionibusy no. 2, which gives serviceable coverage of the subject. 44 ibid., no. 3, for a lengthy discussion.

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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 excom­ municates 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 excep­ tions. 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 evi­ dence that they were raised in litigation. Res judicata, praeventio, recusatio iudicis, and declinatio fori all appear in the pages of many act books, being raised by defen­ dants to prevent the continuation of a suit brought against them.46 Second, most of the complexities found in the academic literature seem not to have caused great dif­ ficulty 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 iudtctts causarumy 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 elapsos5; 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; DnnKewatere c. Robert de Segre (Canterbury/London,1304), LPL, Act book MS. 344, fo. 25: 'proposita per partem rectoris prefati quadam exceptione fori declinatorial

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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 treat­ ment of exception in, say, Consef 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.47 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 lure. 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 stat­ ing 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. II, c. 7. 48 The subject of the academic law is dealt with in more detail in R. H. Helmholz, 'The litis contes­ tatio: Its Survival in the Medieval ius commune and Beyond5 in Lex et Romanitas: Essays for Alan Watson, ed. Michael Hoeflich (2000), 73-89.

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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 litis contestatio, has just been mentioned. The jurists held the same rule applied to introducing a libellus reconventionalis.49 Practice in the English ecclesiastical courts followed the academic law. The civil­ ians were taught that the litis contestatio was cthe corner stone and the foundation of their proceedings.50 Its centrality was stressed by the formal answers they made to the plaintiffs libel. The same words of the litis contestatio given in the works of the com­ mentators were used in practice: CI assert that the matters as they are narrated in the libel are not true and therefore the matters prayed for should not be done'.51 There was even litigation about what form a defendant s answer had to take to constitute a valid litis contestation 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 litis contestatio had occurred before that event.53 So did an attempt to amend the plaintiffs 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 contestation Gregory IX had ruled, cwe declare the proceed­ ings void' (X 2.5.1). Whatever its intrinsic merits, the English use of the 'articulated libeF seemed to do exactly what the decretal condemned. It combined the libel, positions, and articles into one document and allowed it (the combined docu­ ment) 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 for­ mal 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'.55 49 See Gl ord. ad X 2.4.1, s.v. respondere and DD. ad id. 50 'Summarium processus5 (early seventeenth century), BL, Add. MS. 6254, fo.12: 'tanquam lapis angularis et fundamentum iudicn quo deficiente omnia ruuntl 51 Rede c. Clench (Ely,1375), CUL, Act book EDR D/2/1, fo. 2 2 V ' [N] arrata prout narrantur vera non esse et ideo petita prout pretuntur fieri non deberel See also Durantis, Speculum iudicialeylib. 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: '[Djominus auditor decrevit dictam materiam non sufficere ad litis contestationeml 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 emendarel 55 e.g. LJRO, Act book B/C/1/1, fo. 3 6 V ( 1 4 6 4 ) : 'Repetebat libellum in vim positionuml ：

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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 litis contestatio was a voluntary act on the part of defen­ dants. 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 litis contestation 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 litis 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 obser­ vance 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.56 Third, the person who refused to make the litis 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); if 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 litis contestatio had been made in the negative, the plaintiff had to meet the burden of proof. The Marsh's Library formulary, mentioned above in connec­ tion 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.

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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.57 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 prob­ able 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 notori­ ety 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.60 一

57 Durantis, Speculum iudiciale, 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 pads et concordie compromiserunt in arbitros, viz. [naming the arbitrators and stating the terms]5. 59 Dig. 22.3.2. For a general guide to the treatment of proof in the ius commune, see Jean-Philippe Lévy, La Hierarchie des preuves dans le droit savant du Moyen-äge (1939). 60 Ayliffe, Parergon, tit. O f proof (p. 447). English commentators often lett it out of their discussions of the different forms of proof; see e.g. Lyndwood, Provinciale, 304 s.v. promtiones canonical Robert MichelFs formulary, DRO, CC 181c, pp.18-20.

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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 ctriall

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.61 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 cfull 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.62 They themselves constituted cfull 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 affirmat­ ively, 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 inter­ ests. 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 §§ 817-20 (1904), 921-7. 62 e.g. Mascardus, De probationibus, lib. II, quaest. 673, n o .1:'Cum confessio partis sit optima probation See also Cod. 7.59.1. In the context of inquisitorial procedure, see Jacques Chiffoleau, 'Sur la pratique et la conjoncture de Taveu judiciare en France du XHIe au XVe siècle' in UAveu: Antiquité et Moyen-Äge (1986), 341-80.

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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.63 Third, confessions were subject to judicial scrutiny for possible infirmities. A con­ fession might be given without legitimate causa, out of fear of violence, or in sim­ ple error (X 2.18.3). It was 〇n that account to be rejected as legitimate proof. Whether a confession could be accepted in part and rejected in part was a trouble­ some question, one much discussed by the jurists.64 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 amoiguous 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.65 Corroboration of the approach is given by the full presentation of a case involving extrajudicial con­ fessions in marriage cases that was put together by a late-sixteenth-century English civilian that is now in the Cambridge University Library.66 It raised many of the same disputed points and now confirms what is suggested by other books of practice: tms complex body of law was an essential part of the law of prooi m the courts. 一

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 himseli inserted a title 63 Gl ord. ad Sext 2.10.2, s.v. conventuum. 64 See Scaccia, De iudiciis causarum, lib. II, c .11,nos. 88-103, where it was described as a matter 'in quo Doctores valde pugnantl 65 BI，Prec. Bk 11，ff. 7, 7V，9. 66 CUL, MS. O0.6.92, ff.loo-ioiv.

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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.67 The activity of the spiritual courts could not have gone ahead without the law of presumptions. Procedural notebooks compiled by the English civilians rou­ tinely contained consideration of the subject,68 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 civil­ ians, 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 in accord with the decretal law (X 2.23.12), and was so applied in English prac­ tice.69 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 praesumptionibusy coniecturisy signisy et indiciis... Commentaria (Venice,1587). 68 e.g. Robert Michell’s precedent book (c.i6oo)，DR〇， CC 181c，p . 19，beginning， ‘Muite sunt presumptionum species'. 69 e.g. Forest c. Forest (c.1600), BodL, Tanner MS. 4 2 7 , 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. 2 3 4 V , a presumption based on similar facts was rejected in the face of'character5evidence. The subject was debated at length and with citation of authorities, in William TrumbelFs Commonplace Book (seven­ teenth century), BL, Add. MS. 72544A, fo.11.

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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.70 The common kind of presumption found in the literature of the English civilians was the merely 'probable' or clighf 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.71 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 pay­ ment, the burden of proving the excusing facts fell upon him.72 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.73 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.74

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. 9-1ov, used in a cause where a parson had been long absent from ms benefice. 74 Anon, (c.1610), GL, MS.11448, fo. 43, citing Mantica, De Coniecturis ultimarum voluntatum, 11b. X, tit.10, no.1.

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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.76 Disputes over benefices called for production of letters proving that a claimant had been ordained and duly presented.77 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.79 After they came into existence in the 1530s, parish registers were introduced as evidence of the information in them.80 Private letters came before the courts, such as a letter from a marriage case which a man had signed as cYour loving Dubnash’ （an anagram for ‘husband’). It was used to show his recognition of having entered into a union with the plaintiff.81 On occasion, records from secular tribunals were put before the courts of the church.82 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 ofLazonby 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 teren. 79 e.g. Precedent Book (c.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 'scrutinized5.According to one civilian, a register did not make 'full proof5or even 'half proof5unless two witnesses testified to the truth of its contents. See BodL, MS. Eng.Misc.f.473, P- !35 Rebecca Probert, 'The Judicial Interpretation of Lord Hardwicke's Act of 1753' (2002) 23 JL H 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’；Wet/zer如 c. Kent (Worcester，1531)^ 25i3/i(i), p. 40: 'rotulos curie de Oxenton in partem probationis5; Braine c. Chapleine (Ely,1601),CUL, Act book EDR D/2/22, fo.16: introduction of depositions from the Court of Wards.

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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.83 It was primarily in testamentary litigation that the spiritual courts came into contact with documents introduced for purposes of proof. Last wills and testa­ ments 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 prac­ tice 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.85 Other parts of testamentary litigation also called for the production of docu­ ments: 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.86 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 Lade c. Lade (Bath and Wells,1 6 2 3 ) , SRO, Act book D/D/Ca 2 3 0 , ff. 2 2 6 V - 2 2 7 , dealing with the lesser probative force accorded a privata scriptura. See also Jones c. Bennet (London,1 6 0 1 ) , BodL, Tanner MS. 4 2 7 , fo.1 9 6 ; Anon. (London, c . 1 6 1 0 ) , GL, MS.1 1 4 4 8 , fo. 8 4 V Skelton c. Bowlie (Carlisle,1 6 3 2 ) , CBRO, Act book DRC 3 / 3 , p. 2 2 . 84 e.g. Ex officio c. Rocke (Archdnry Colchester,1540), ERO, Act book D/ACA 1,fo. 41:'Willelmus Rocke habet ad exhibendum testamentum Thome Shillingel 85 e.g. Precedent book (seventeenth century), NUL, MS. AN/P 282, fo. 61,in which the plaintiffs claim was given, 'Ego allego quedam instrumenta mihi in hac causa esse necessaria quae penes [N] sunt5.An example from the court records: Guile c. Asheton (Lichfield,1468), LJRO, Act book B/C/1/1, fo.192: 'In causa subtractionis certarum cartarum sive munimentoruml 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. ；

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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 ecclesi­ astical courts followed that lead. The difficulties of making cfull proof' under the ius commune led to the use of what were called csuppletory' 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 chalf proof' (semiplenaprobatio). 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.87 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 cov­ ered 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'.88 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 potest5. 88 Forster c. Hills (Canterbury,1454), CCAL, Act book Y.1.5, fo. 2 9 V 'Pars actrix petit quod pars rea veniret ad iudicium et vult deferre sibi ïuramentuml ：

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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 ius 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 cin difficult causes of great moment' the suppletory oath should not be used.89 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.90 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 mar­ riage, take the decisory oath.91 This was sometimes done in English practice, as in a case from 1478, in which a man denied the contract fortissimo iuramento, and was then dismissed.92 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.94 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 . 1 6 0 0 ) , BodL, Tanner MS. 4 2 7 , ff. 1 1 3 V - 1 1 4 V , and apparently also in Cleasbye c. Collingwood (Durham,1 6 0 9 ) , Clement Colmore's Book, DUL, DDR XVIII/3, fo. 2 3 1 . 91 Sanchez, De matrimoniis, 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,1 5 9 1 ) , NLW, Act book SD/CCCm/i, fo. 8: 'causam ad juramentum dicte partis ree referendo5; Bignor c. Belynghurst (Winchester,1 5 2 7 ) , 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 matrimonium cum ea?. 92 Taylor c. Bocher (Salisbury), WTRO, iubdean s Act book D/4/3/1, fo. 7 2 V . 93 Clerke, Praxis, tit.186: Conset, Practice, pt. Ill, c. 5 § 1,no. 4. 94 e.g. Webbc. Gar^mer (Gloucester,1630), GRO, Act book GDR171,s.d. 9 Feb.:'[Plaintiffs proctor] allegavit semiplenam probationem ex parte sua... quare petiit iuramentum suppletorium domino suo differri etc’.

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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 ver­ dict 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 .l c.li;X 5.1.24). The fact of a woman s virginity was to be determined cby 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.96 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.97 In a marital dispute heard before the archbishop of Canterbury's court of Audience early in the four­ teenth 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 ecclesiast­ ical property under the care of a bishop, it was decided that the matter was to be 95 Pollock and Maitland, ii. 620. 96 Mascardus，Deprabatiomlws，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 Law5in On the Laws and Customs of England: Essays in Honor of Samuel ß. Thorne, ed. Morris S. Arnold, Thomas A. Green, Sally A. Scully, and Stephen D. White (1981), 127-58, esp. 134-41. 98 (1 3 0 5 LPL， Act book MS. 2 4 4 , fo. 5 4 : (Auditis allegationibus et altercationibus partium predictarum decernimus inquirendum fore per Radulphum de Cumbe et tresdecim vel duodecim de fidedignioribus vicinis dicti Johannis (the husband) neutri partium predictarum suspecus. Other use or inquests in matrimonial litigation: Ex officio c. Hesdeldenman ana Maister (Canterbury,1 3 7 3 ) , CCAL, Act book Y.1.1,fo. 3 1 V (consanguinity); Bokke c. Bakeres and Joures (Rochester,1 3 4 7 ) in ，)

Reg. Hamo Hethe,

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investigated cby faithful men, both clerical and lay, having full notice of the defects'." 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.99100 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 iure 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 support­ ers of each of the litigants.101 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 jama 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 cto inform the conscience' of the participants.102 Although they occu­ pied 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 Bracton’ （1952) 67 481-509. 101 Procedure maKing use of an inquest in cases involving dilapiaations is outlined in a seventeenthcentury precedent book: NNRO, PCD/2/3, fo. 29: In Dilapidations what to be Done. 102 e.g. civilians notebook (seventeenth century), WTRO, D5/24/18, fo. 2 8 V 'ad informandum conscientias juratoruml ：

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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).103 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 them­ selves 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 plaintiffs articles and the defendant s interrogatories provided the basis for this examination. The former stated the particulars of the plaintiffs 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,104 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 pro­ ctors, 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 cfull of babble and nothing to the purpose'.105 They might add comments of their own, as for example, noting that a witness had spoken cin a vacillating fashion as if he had been suborned'.106 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.107 At the point of publication, the opposing party was again given a chance to enter his objections against the witnesses and their depositions, ii 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.108 According to a familiar medieval tag, witnesses 103 See Peter Herde, 'Der Zeugenzwang in den päpstlichen Delegationsreskripten des Mittelalters5 (1962)18 Traditio 255-88. 104 Gl ord. ad X 2.19.11, s.v. interrogationes. 105 Precedent book ( 1 5 7 6 - 1 6 3 1 ) , BKRO, D/A/X/4, ff. 7 0 - 7 0 V . Other examples: BodL, Rawl. MS. D . 1 0 8 8 , fo. 5 9 ( c . 1 6 0 0 ) ; BL, Harl. MS. 5 1 0 5 , fo. 6 9 . 106 CCAL, Ch. Ant. M 365 (1291):'Vacillanter deposuit iste et etiam rediit causam seiende tanquam esset subornatusl 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 inhabiles5 (1965) 33 TRG 575-616, dealing mostly with criminal trials but useful for both.

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might be disqualified by: (Condition, gender，age，discretion, reputation, fortune ， and truthfulness'.109 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 admis­ sion of witnesses based on status or improper conduct were certainly made.110 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.111 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 cfull proof', a principle the jurists found stated many times in the Bible itself (e.g. D eut.17: 6yM att.18:16). Exceptions to the rule testis unusytestis 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 num ­ bers 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 pre­ cedent book: DRO, CC 181c, 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 DID 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 Law5(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 audivitl 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 o f Ben Beinart (1979), ii. 37-54.

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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 dep­ ositions put before them. If, as in the case of Susanna, the evidence given by the witnesses was contradictory, or if it did not ctend to one and the same end', the witnesses were considered testes singuläres. Their testimony could not then be considered full proof.113 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.114 Alleged incon­ sistencies in the depositions of individual witnesses which caused cases to fail for want of cfull 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 iusta 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.116 113 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 singuläres5. 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 statea m 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

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Where no renunciation occurred, additional steps were laid out in the ordo iuris 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.117 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 cto do what is just'.118 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 head­ ing ad idem. Some cases went on and on under that same heading until they were finally dropped from the act book.119 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 rou­ tine 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 rea­ sonable 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. Marchauntc. 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 taem 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.

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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 Gods 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 judges conclusion in the most general terms: cThe actor had duly established his intention or else che had tailed 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,120 but he was not legally obliged to do so, and few English judges ever did.121 Even stranger to modern tastes are the long-winded elaborations of procedure in canonical sen­ tences, seemingly designed to show that the court had followed the steps required by the ordo iuris. Procedure was legally important. A sentence given without obser­ vance 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'.122 A degree of formality was meant to surround the sentence s delivery (cporrection 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 Gl ord. ad X 2.27.16, s.v. exprimantur. 'Iudex potest apponere causam quae ipsum movet; si tarnen non apponitur bene tenet sentencial 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:'[Slententia ordine iudiciario substantial! praetermisso, vel non servato lata, non tenet ipso iurel 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.

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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.124 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 doc­ uments that have been preserved contain changes and interlineations, apparently where there had been a compromise or change in the amount owed by the defen­ dant.125 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.126 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, 1 5 8 2 - 3 ) , LAO, Court papers RP/6, ff. 3 3 - 3 7 V . 126 Speculum iuridiale, lib. II, pt. 3 , tit. De executione sententiae § 6, nos. 1-6.

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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 phy­ sically to reach the assets, still less the real property, of litigants before them. No sheriff or writ of fieri facias was available to seize a party's chattels.127 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.128 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.130 None the less, the availability of a separate term for seeking execution of a sentence did serve a purpose in much instance litigation.131 Sentences of excom­ munication 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.132 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-j. 128 Civilian Notebook，BL，Add. MS. 6254，fo. 32v: ‘Omnis executio in foro ecclesiastico est indirecta,..., ut faciat hoc et si non faciat excommunicaril 129 e.g. Giles o f 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. Hwsew//(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 secularel Denton c. Myer (Archdnry Buckingham, 1601),BKRO, Notebook D/A/C/25, fo. 64V, a tithe cause in which the defendant had remained excom­ municate for more than forty days; the plaintiff sought his 'signification in a separate term to which he was summoned.

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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.133 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 pro­ secuted 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.135

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.136 Appeals from 'immoderate taxation of charges' could be made under the canon law and were in English practice.137 133 e.g. a fifteenth-century formulary, BodL, Tanner MS. 426, fo. 95: 'Exceptio contra executionem sentencie ratione paupertatisl 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 secularil 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 Lege. Hodgskins (London,1604), GL, MS.11448, ff. 2 2 V - 2 3 ; 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. 7 2 V 'a quadam condempnatione expensarum nimis excessive et immoderate5; Lovell c. Chell (Hereford,1596), HFRO, Act book I/13, s.d. 2 Oct. ：

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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 ques­ tion 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.138 The amount of charges awarded lay within the discretion of the judge, although at Ely in 1600 it was said that i6d. per day was the normal charge for unnecessary delay.139 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.140 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 tempta­ tion, 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.141 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 plaintiffs 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. Fishers Case (London,1605), GL, MS.11448, fo.14, Dr Martin seeking taxation of charges 'in causa consultationisl 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.

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his contumacy.142 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 over­ looks 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 doc­ uments, 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.143 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 cjust cause for going to law'.144 More often, however, the award became a matter of routine, and numerous schedules of taxed charges have survived among the court records.145

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 possib­ ilities very well. On the one hand, appeals were necessary; they were requisite cfor the protection of the innocent', for it could be assumed that the innocent would be 'frequently aggrieved' by judges.146 The right to lodge an appeal was, therefore, 142 e.g. J.-P. de Ferrariis, Practica aureaytit. Forma libel actio, real § Et expensisy 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.11s. vm a. quam dominus taxavit ad summam 1s.?. 144 See e.g. the example and discussion in BL, Add. MS. 6 2 5 4 , fo. 4 2 V . 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.

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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 embod­ ied 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 over­ turning well-delivered judgments.147 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 cjust appeals'. So the appeals continued.148 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.150 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’.151 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.152 147 id., citing Dig. 49.1.1.1. 148 Tancred, Ordo iudiciarius, 302: 'Sed intelligenda est ilia, nisi subsit iusta causa appellandil 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 appel­ late practice. iso what follows can be found in most procedural manuals; here Tancred's Ordo iudiciarius, Durantis's Speculum iudtctale, and Henry Conset's Practice have been the principal sources. The author has also enjoyed the help provided by a 'flow chart5on the subject prepared by Daniel Klerman while he was a student at the University of Chicago. 151 Gl ord. ad X 2.28.66, s.v. post huiusmoäi; Hostienis, Summa aureaylib. II, tit. De appellationibusy 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.

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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.154 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 refutatorii.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 reverentialeSy the appellate court might itself finish the cause. In either case, the records (libeis, depositions, record of process) were sent to the judge to whom the cause was appealed—during the Middle Ages in the form of rolls, dur­ ing 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.156 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.157 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 Gl 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 refutatorialesl Vicar of Lazonby c. Farmer of Plumpton and Prior of Carlisle (Carlisle and York,1503), BI, Cons.AB.5, fo. 59V：cDominus commissarius tradidit... apostolos reverentiales. 157 M r Curie's Case (c.1610), BI, Prec. Bk 11,ff. 22V-23. 158 Pullane 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.

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that, although a few brave and useful attempts to estimate the frequency of appeal in court practice have been made,159 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.160 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.161 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.162 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 R allegavit tempus fatale fuisse et esse lapsum et quod non constat de aliqua appellatione interposita, unde dominus ad eius petitionem decrevit dictum Robertum Brayne citandum fore... ad dicendam causam quare sentencie alias contra eum late executionem demandari et expensae taxari non debeant etc.5Probably 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.

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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 pro­ ceed for the sake of safeguarding the appellant's right to possession pending final appeal(X 2.28.17), amounted to sufficient authorization.163 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.164A second justification rested on custom. It was an undoubted rule of the ius commune that custom could itself validly confer jurisdiction,165 and documents emanating from the archbi­ shops made exactly this claim with reference to tuitorial appeals.166 The existence of the archbishops probate jurisdiction over bona notabilia would have been another, similar example of legitimate customs 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.168 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 ctest 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.169 However, the tuitorial 163 This convention was discussed in CCAL, MS. D 8 , ff. 5 3 - 6 6 V . See also X 1 . 3 0 . 1 , and discussion in BodL, Ashmole MS.1 1 4 6 , ff. 1 1 1 V - 1 1 4 V . See one archbishop s letter ( 1 2 8 1 ) in: Reg. Peckham (above n. 2 9 ) , 1 7 2 - 3 . A modern assessment is Antonio Bevilacqua, Procedure in the Ecclesiastical Courts of the Church o f England

(1 9 5 6 ), 3 1 -4 0 .

164 See e.g. Durantis, Speculum iudiciale, lib. IV, pt. 2, tit. De appellationibus §2, nos. 7-9; the con­ nection was made in Precedent book (seventeenth century), WTRO, D5/24/18, fo. 29. 165 e-g- orc^- a