BX 5059 .M3 
 
 Maitland, Frederic William 
 
 1850-1906. 
 Roman canon law in the 
 
 Church j3f_England 
 
Digitized by the Internet Archive 
 in 2015 
 
 https://archive.org/details/romancanonlawincOOmait 
 
CANON LAW IN ENGLAND 
 
 Edition Imported by 
 
 NEW AMSTERDAM BOOK COMPANY 
 156 FIFTH AVENUE : NEW YORK 
 
ROMAN CANON LAW 
 
 IN THE 
 
 CHURCH OF ENGLAND 
 
 SIX ESSAYS 
 
 EY 
 
 FREDERIC WILLIAM MAITLAND 
 
 M.A., LL.D. 
 
 DOWNING PROFESSOR OF THE LAWS OF ENGLAND 
 IN THE UNIVERSITY OF CAMBRIDGE 
 
 METHUEN & CO. 
 36 ESSEX STREET, W.C. 
 LONDON 
 1898 
 
PREFACE 
 
 When, in co-operation with Sir Frederick Pollock, I 
 was at work upon certain chapters in a History of 
 English Law, and, in particular, a chapter on marriage, 
 I found that, on pain of leaving- the book shamefully 
 incomplete, I was compelled to make an incursion into 
 a region that was unfamiliar to me, namely, that of 
 ecclesiastical jurisprudence. After some study, which 
 must not be called prolonged or profound, but none the 
 less was unprejudiced, I discovered that I was slowly 
 coming to results which, though they have not wanted 
 for advocates, have not been generally accepted in this 
 country by those whose opinions are the weightiest, and 
 have recently been rejected by the report of a Royal 
 Commission signed by twenty-three illustrious names. 
 To be brief, I found myself attributing to the Roman 
 Canon Law an authority over the doings of the English 
 Ecclesiastical Courts such as it is not commonly sup- 
 posed to have wielded. In the first three of the follow- 
 ing essays (the other three deal with some minor but 
 cognate matters) I endeavoured to state the reasons 
 that had convinced me. These essays were published 
 in the English Historical and Law Quarterly Reviews, 
 
vi 
 
 Preface 
 
 and I thank Messrs. Longman and Sir F. Pollock for 
 consenting to their collection and republication. Now 
 that they are brought together and, as I hope, some- 
 what improved, they may perhaps do a little to promote 
 the further exploration of a not uninteresting tract of 
 English history, and in that case I shall not regret a 
 trespass which I am not likely to repeat. 
 
 At a time when the perennial stream of Anglo- 
 Roman controversy has burst its accustomed channels 
 and invaded the daily papers, the assumption will be 
 readily made that anyone who writes about those 
 matters of which I have here written is an advocate of 
 one of two churches, the English or the Roman. 
 Therefore it may be expedient for me to say that I am 
 a dissenter from both, and from other churches. Prob- 
 ably that fact will be, and I think that it ought to be, of 
 no interest to the readers of this book ; but I have 
 reason to fear the repetition of a mistake. 
 
 F. W. M. 
 
 Cambridge, 1898. 
 
CONTENTS 
 
 CHAP. PAGE 
 
 I. William Lyndwood i 
 
 II. Church, State, and Decretals 51 
 
 III. William of Drogheda and the Universal Ordinary 100 
 
 IV. Henry II. and the Criminous Clerks . . . .132 
 
 V. ' EXECRARILIS ' IN THE COMMON PLEAS .... 148 
 
 VI. The Deacon and the Jewess 158 
 
 vii 
 
CANON LAW IN ENGLAND 
 
 I. WILLIAM LYNDWOOD 
 
 During the later middle ages the laws and the courts 
 of the church claimed as their own so large a part in 
 human affairs that any one who is interested in the legal 
 history of England, even though his main interest lies 
 in matters that are and always were not ' spiritual ' but 
 'temporal,' is compelled to make some inquiry about 
 the rules that were enforced by the ecclesiastical tri- 
 bunals in this country. He would like, for example, to 
 know something of the law of marriage that prevailed 
 in England ; he would like to know whether a certain 
 decretal was a part of that law. Now, having been led 
 to make some inquiry of this kind, it is my misfortune 
 to find that I am unable to accept what appears to be, 
 not only the generally accepted theory, but also the 
 theory of those who have the best right to speak. 
 It is likely that they are in the right and I 
 am in the wrong. Nevertheless, the cause of truth 
 may be served by the statement of an unfashionable 
 opinion. 
 
 The doctrine that is in possession of the field I take 
 to be that which is set forth in the learned Report of 
 the Ecclesiastical Courts Commission. After saying a 
 few words about the composition of the Corpus Iuris 
 
2 Canon Law in England 
 
 Canonici, the commissioners (among them were his- 
 torians whose every word deserves attention) gave us 
 the following sentence : ' But the canon law of Rome, 
 although always regarded as of great authority in Eng- 
 land, was not held to be binding on the courts.' 1 Now 
 if by ' the courts ' the commissioners meant (and no 
 doubt they did mean) the ecclesiastical courts, and if 
 they were speaking of the three centuries which im- 
 mediately preceded the Reformation (and no doubt 
 they did intend to include that age), then I cannot but 
 think that their dictum, carefully worded though it be, 
 is questionable, and should be questioned. 
 
 It may be admitted that the difference between 
 ' great authority ' and binding force is somewhat fine ; 
 still it seems to me that the words here chosen suggest, 
 and were meant to suggest, analogies which are to my 
 mind misleading. The English ecclesiastical courts are 
 supposed to manifest for 'the canon law of Rome' the 
 respect which nowadays an English court will pay to 
 an American or an Irish decision, or perhaps that higher 
 degree of respect which one English court of first in- 
 stance will pay to the decision of another, or perhaps 
 some yet higher degree. But, at any rate, we must 
 speak of respect, not of obedience. ' The canon law of 
 Rome ' was not regarded as statute law by the English 
 ecclesiastical courts ; they did not conceive that it pro- 
 ceeded from a legislator whose commands they were 
 bound to obey. Now to me it seems that this doctrine, 
 however often it may have been repeated, is not yet 
 beyond dispute, and that in all probability large portions 
 (to say the least) of ' the canon law of Rome ' were 
 regarded by the courts Christian in this country as 
 absolutely binding statute law. 
 
 The exact measure of authority that was attributed 
 
 1 Report of the Ecclesiastical Courts Commission, 1883, vol. i. p. xviii. 
 
William Lyndwood 
 
 3 
 
 to the Decretum Gratiani we need not discuss. To 
 start with, it was mere private work, one among rival 
 text-books, and to the last it never received any solemn 
 sanction. Nevertheless it soon drove all competitors out 
 of the field. It became the one and only book out of 
 which students learnt the old law of the church, and to 
 which practitioners turned if, as would happen from time 
 to time, they were compelled to refer to the old law. 
 But so copious was the flow of decretals that when, in 
 1234, Pope Gregory's book was published, Gratian's 
 was already antiquated. It was already a book for the 
 lecture-room rather than for the law court. Almost all 
 the topics that it touched (except, indeed, some few 
 which were being extruded from the legal sphere) were 
 regulated by new law, and many of the texts col- 
 lected by Gratian were too hortative, too lax and flabby 
 to satisfy an age which was severing an ecclesiastical 
 jurisprudence from mere 'moral theology.' 1 
 
 So perhaps we may put the Decretum on one side. 
 But if we turn to the three collections of decretals that 
 were issued by Gregory ix., Boniface viu., and John 
 xxii., there can surely be no doubt as to the char- 
 acter that they were meant to bear by those who issued 
 them, or as to the character that they bore in the eyes 
 of those who commented upon them. Each of them 
 was a statute book deriving its force from the pope who 
 published it, and who, being pope, was competent to 
 ordain binding statutes for the catholic church and every 
 part thereof, at all events within those spacious limits 
 that were set even to papal power by the his divinum et 
 natitrale. Our question, then, is not how much of a 
 vague traditional law was accepted by the English 
 
 1 J. F. von Schulte, Gcschichte der Quellen unci Literatur des cano)iiscJien 
 Rechts, ii. 456 : ' Der legislatorische Inhalt des Dekrets war zum grossten 
 Theile bereits antiquirt, als die Dekretalen Gregors IX. erschienen,' 
 
4 
 
 Canon Law in England 
 
 church and her courts, but whether those courts con- 
 ceived that they were bound by three papal statute 
 books which indubitably endeavoured to enact ius com- 
 mune for the whole church. 
 
 In passing, two or three words should be said of 
 this term ias commune, which was always in the mouths 
 of our English canonists and their foreign brethren. It 
 is a term which may lead an Englishman astray. In 
 the thirteenth century our temporal lawyers borrowed 
 it from the canonists, and this at a time when the Eng- 
 lish realm had little enacted law. Thus the lawyers 
 of Westminster began to contrast ' common law ' not 
 only with local customs, royal prerogatives, and chartered 
 privilegia proceeding from the king, but also with 
 statutes, for statutes were rarities ; and so it came 
 about in course of time that in the Englishman's ear 
 one of the chief contrasts to ' common law ' was ' statute 
 law.' But this is an English peculiarity. If we take 
 up a modern German law-book, one of the first lessons 
 that we learn is that gemeines Recht is not equivalent 
 to our common law. By his commune the canonist meant 
 the law that is common to the universal church, as op- 
 posed to the constitutions or special customs or privileges 
 of any provincial church. He did not mean to exclude 
 from his ' common law ' all rules imposed by a legis- 
 lator. Far from it. Before the middle of the thirteenth 
 century the most practically important part of his 
 ' common law ' was statute law, law published by a 
 legislator in a comprehensive statute book. 
 
 Now the principal witness whom we have to ex- 
 amine, if we would discover the theory of law which 
 prevailed in our English ecclesiastical courts about a 
 hundred years before the breach with Rome, is in- 
 dubitably William Lyndwood. He finished his gloss 
 on the provincial constitutions of the archbishops of 
 
PVilliam Lyndwood 
 
 5 
 
 Canterbury in the year 1430. 1 When he was engaged 
 on this task he was the archbishop's principal official : 
 in other words, his position made him the first man in 
 England whose opinion we should wish to have about 
 any question touching the nature of the ecclesiastical 
 law that was being administered in England. He held 
 the great prize of his profession. He had also been 
 the prolocutor of the clergy in the convocation of 
 Canterbury. 2 Of his learning and ability it would be 
 impudent for me to speak ; but, even if some of his 
 citations of old books were made at second hand, it is 
 plain that he was learned. 3 He commanded a large 
 library and had read many modern books, the books of 
 Italian and French canonists. He refers not only to 
 most of the great doctors of the fourteenth century, 
 but also to Petrus de Ancharano, Antonius de Butrio, 
 and Dominicus de Sancto Geminiano, all of whom 
 lived into the fifteenth, and to Johannes ab Imola, 
 who was still living. Evidently he was on the outlook 
 for the newest literature (provided that it was strictly 
 orthodox), and his travels on the continent enabled him 
 to collect it. Probably we ought to have other works 
 of his besides the Provinciate, for he speaks as though 
 some of his lectures upon the Decretum were in circu- 
 lation. 4 Now we may well be prepared to hear from 
 
 1 References will be made to the Oxford edition of 1679, in which the 
 Provinciate is followed by the Legatine Constitutions with John of Ayton's 
 gloss. 
 
 2 Lyndwood, p. 192, gl. ad v. provincial)! ; see also Diet. Nat. Biog. 
 
 3 Is it not a trait of a somewhat unusual erudition that for an historical 
 purpose he has gone behind the Gregorian collection to the Compilationes 
 Prima et Tertial Lyndwood, p. 126 : ' Quae decisiohabetur in compilatione 
 antiqua, quam vidi et perlegi in tertia compilatione. . . . Quae hodie non 
 habetur in nova compilatione decretalium, sed bene habetur in antiqua, in 
 prima compilatione, ubi earn vidi.' 
 
 4 Lyndwood, p. 299: ' Hanc materiam tetigi in Lectura Decretorum 22, 
 q. 1 in prin.' Bale ascribes to him a Summa Causarum and a commentary 
 on certain psalms. 
 
6 
 
 Canon Law in Englana 
 
 competent critics that in one sense he was no fair re- 
 presentative of the English canonists, since he was 
 pre-eminently learned and pre-eminently able. The 
 mere fact that he wrote a book raises him above his 
 fellows. But I should suppose that in the main we may 
 trust him to say what they think, and at any rate he 
 will state the law that he administers in the chief of all 
 the English ecclesiastical courts. His frequent employ- 
 ment in the king's diplomatic service would be enough 
 to show that he was no mere bookworm. The very 
 early date at which his book was first printed and 
 the subsequent editions of it are a testimony to the 
 high repute in which it stood before the Reformation. 
 Since then it has been often cited, often lauded, some- 
 times read ; but I cannot think that it has yet done 
 nearly all the work that it is capable of doing for the 
 history of the English church during 'the conciliar 
 period,' or that it will do that work until it falls into the 
 hands of one who is deeply read in foreign law-books. 
 
 As a witness from an earlier time we have the 
 glossator of the Legatine Constitutions, whom it is con- 
 venient to call John of Ayton. 1 The main facts that we 
 know about him are that in the canon law he was a 
 pupil of John Stratford, who became archbishop of 
 Canterbury ; that he wrote his gloss while Stratford was 
 archbishop, — in other words, between 1333 and 1348, — 
 and that he was then, and had been since 1329, a canon 
 of Lincoln. 2 Some further information about himself he 
 
 1 Dr. Stubbs has adopted this form of his name. In Diet. Nat. Biog. he 
 appears under 'Acton.' In Hardy's Le Neve, ii. 144, 233, he is Eaton. In 
 MS. Camb. Univ. Ii. 3, 14 and the printed copies of his book he is Athon. 
 The papal chancery seems to have called him Iohannes Iohannis de Acton 
 —that is, John Johns of Acton {Calendar of Papal Letters, ii. 290}. 
 
 2 J oh. de Athon, p. 129, gl. ad v. quod habita fiossessione : ' Solutio 
 secundum venerabilem patrem dominum Iohannem de Stratford doctorem 
 meum, nuper Wintoniensem episcopum, iam vero Cantuariensem, in sua 
 
PVilliam Lyitdwood 7 
 
 may have wrapped up in a riddle. 1 The printed copies 
 of his work should be used with caution, for they con- 
 tain references to books that were not written until after 
 his day, and the only manuscript of it that I have looked 
 at suggests that considerable additions were made to his 
 glosses by a second hand. But, unless the interpola- 
 tions are extremely numerous, we may here also see 
 how rapidly foreign books were received in England. 
 The famous Bolognese doctor Johannes Andreae did not 
 die until 1348, but already we have abundant references 
 to some of his treatises. 2 I should suppose that John of 
 Ayton was very much Lyndwood's inferior in all those 
 qualities and acquirements that make a great lawyer. 
 He is a little too human to be strictly scientific. His 
 gloss often becomes a growl against the bad world in 
 
 repetitione dictae Decretalis commissa, lib. 6 [c. 35 in Sexto, 1. 6].' A re- 
 petitio was an academic discourse which differed in some points from a 
 lectura. I am inclined to suppose that Ayton's book was written during 
 the early years of Stratford's archiepiscopate, for though he knows the older 
 legislation about procurations he does not refer to the Vas Electionis of 
 Benedict XII. (1336). He speaks (p. 79) of the decay of England's military 
 power. He could hardly have spoken thus after the victory of Crecy. The 
 pope provided him with his canonry in 1329 {Calendar of Papal Letters, ii. 
 290). Johnson, Vade Mecum, ed. 3, vol. i. p. 152, says that John died about 
 1 35 1, and cites for this a register at Lincoln. I am indebted to the kindness 
 of the Rev. Christopher Wordsworth for this reference to Johnson's book 
 and for a few more facts concerning our glossator. 
 
 1 At the end of his work (p. 155) he speaks of it thus : 'Hoc itaque 
 praesens meum opusculum in significatione triplici istarum figurarum 9, 2, 
 9, 5, 4 laboriose descriptum.' 
 
 2 Thus in the Oxford edition at p. 21 : ' quam approbat Car. de Zabarellis 
 in dicta Cle. I, de re eccl. non alie.' ; and at p. 51, ' per dominum Marianum 
 Socinum.' Franciscus de Zabarellis, the famous Zabarella of the council of 
 Constance, was born about 1335, and did not become a cardinal until the 
 next century (Schulte, ii. 283). Marianus Socinus was born in 1401, and 
 died in 1467 (Schulte, ii. 319). Neither of these passages could I find in 
 the Cambridge MS., mentioned above. Both John of Ayton and Lyndwood 
 frequently cite Car. Card. Cardi. as a commentator on the Sext. The 
 cardinal in question seems to be Johannes Monachus (Jean le Moine), who 
 became a cardinal in 1294 (Schulte, ii. 191). In later days Zabarella was 
 the cardinal of the canonists. 
 
8 
 
 Canon Law in England 
 
 which he lives, the greedy prelates, the hypocritical 
 friars, the rapacious officials. 1 
 
 Of the cosmopolitan, the 'extra-national,' or 'super- 
 national ' tone of the work of these two English canonists 
 I need hardly say a word, except to point out that it 
 implies the existence of a circle of English readers who 
 are always looking to the mainland for new commentaries 
 on the Decretals, the Sext, and the Clementines, and 
 who would be ashamed if they fell behind their foreign 
 colleagues in the conventional art of citation. Every 
 one, it is assumed, will understand a reference to Inno., 
 or Hosti., or Spec, or Will., or Io. An. ; there is but one 
 man who can be called the archdeacon, but one who can 
 be called the cardinal. On the other hand, the names 
 of any English canonists are conspicuously absent. They 
 are conspicuously absent also in the catalogues of 
 medieval libraries that have descended to us. Lynd- 
 wood's contemporary, John Newton, treasurer of York, 
 bequeathed many books of canon law to the cathedral. 
 He had works of Johannes Andreae, Zenzelinus, William 
 de Mont Lezun, John de Lignano, Henry de Bohic, 
 besides some older books, such as the commentary of 
 Innocent iv., the Speculum of William Durant, and the 
 archdeacon's Rosary ; but never a book proceeding from 
 an English canonist does he mention. 2 Are we, then, 
 to believe that our courts and practitioners have suc- 
 ceeded in importing all this foreign science, and yet 
 have rejected one of the main axioms on which it rests : 
 the axiom that the popes can legislate and have legis- 
 lated on a magnificent scale ? 
 
 I have been unable to find any passage in which 
 either John of Ayton or Lyndwood denies, disputes, or 
 
 1 John (p. 68) holds that the offia'alis derives his title ab officio, i.e. noceo ; 
 Lyndwood (p. 105) protests. 
 
 2 Testamenta Eboracensia, i. 366, 369. 
 
William Lyndwood 
 
 9 
 
 even debates the binding force of any decretal. Of 
 course there are portions of the canon law which, as a 
 matter of fact, are not being enforced in England, 
 because the temporal power will not suffer their enforce- 
 ment. But that is quite a different matter ; I will return 
 to it in another essay. Here we are speaking of the 
 law which our courts Christian applied whenever the 
 temporal power left them free to hear and decide a 
 cause, and I have looked in vain for any suggestion 
 that an English judge or advocate ever called in ques- 
 tion the statutory power of a text that was contained in 
 any of the three papal law-books. As to those decretals 
 which in Lynd wood's day were, and have ever since been, 
 'extravagant,' it would be difficult to prove that all of 
 them were known in England. 1 With the publication 
 of the Clementines in 13 17 the gilded age of papal 
 legislation came to an end ; the golden age was already 
 in the past. For one thing, the papacy was in a bad 
 way ; for another, so much law had been made that 
 there was little room for more, unless it were to be of a 
 new kind such as no pope would bring himself to 
 make. The extravagants that were issued were few ; 
 they dealt with few topics, and those topics were 
 not such as would often give rise to litigation in the 
 English courts. 2 The ninety-six years which immedi- 
 ately preceded the date of Lyndwood's book saw the 
 issue of only five decretals which passed into the 
 classical volume of ' Extravagantes,' published by Jean 
 
 1 John of Ayton seems to have known the three most famous extravagants 
 of John xxii., viz. Execrabilis, Sedes afostolica, and Suscepti regiminis (see 
 Schulte, op. at. ii. 52). He also had Cum inter nonnullos (1323), which 
 dealt with the dispute about evangelical poverty. 
 
 2 Schulte, op. cit. ii. 53: 'Das eigentliche Detail des Rechts war er- 
 schopfend ausgebildet : die papstliche Gesetzgebung seit Clemens v. 
 erstreckte sich, abgesehen von den Erlassen fur spezielle Verhaltnisse, nur 
 auf wcnigc Punktc.' 
 
IO 
 
 Canon Law in England 
 
 Chappuis. 1 Lyndwood, therefore, has very little to do 
 with ' extravagant ' constitutions ; but if there are any 
 which touch the matters about which he writes, he cites 
 them as law. For example, the amount of money that 
 should be offered to a visitor by way of ' procuration ' is 
 fixed by the Vas electionis of Benedict xn. 2 This instance 
 may serve to illustrate the difficulties besetting any theory 
 which would ascribe ' great authority ' but no binding 
 power to papal ordinances. The Vas electionis is an 
 imperative document ; it enacts a tariff. The pope ex- 
 pressly legislates for England among other countries. 
 He says that an English prelate on the occasion of a 
 visitation is not to receive more than a certain sum of 
 money. Such a statute you can obey, or you can ignore ; 
 no third course is open to you. If you deny that it 
 binds you, then you allow it no ' great authority ' ; you 
 allow it no authority whatever. For Lyndwood it is 
 law. 3 He admits that in England a custom has grown 
 up which fixes the amount that an archidiaconal visitor 
 is to receive ; but in all cases that are not within this 
 custom the Vas electionis should prevail. 4 
 
 Other examples might be found of extravagants that 
 John of Ayton and Lyndwood treat as law ; but, for the 
 reason already given, our chief concern must be with 
 
 1 Jean Chappuis, who gave the Corpus Juris its final form by adding two 
 books of extravagants to the old statutory books, took part also in the 
 Parisian edition of Lyndwood's Provinciate. 
 
 - c. un. Extrav. Com. 3, 10. 
 
 8 Lyndwood, p. 221, gl. ad v. personaliter : 'quantum habent recipere 
 nomine procurations in pecunia . . . hodie limitatum est per constitutionem 
 Bcnedictinam, quae incipit Vas electionis.' Ibid. p. 223, gl. ad v. pecunia : 
 ' Haec tamen quantitas taxata est hodie secundum diversitatem certarum 
 provinciarum, sicut patet in dicta constitutione Benedicti quae incipit Vas 
 electionis.' 
 
 4 Ibid. p. 224, gl. ad v. soletsolvi: ' In Anglia communis usus habet ut 
 nomine procurationis archidiaconus recipiat in pecunia. . . . Ubi vero con- 
 suetudo summam procurationis non limitat recurrendum est ad ea quae 
 habentur in Extrav. Benedicti quae incipit Vas electionis! 
 
IVilliam Lyndioood 
 
 the three officially published law-books. Now, if we 
 regard the Gregorian code as a specimen of the legis- 
 lator's art, it will seem to our eyes a very poor affair. 
 The popes had gradually been converting a power of 
 declaring law into a power of making law ; they had 
 declared law or made law chiefly by rescripts dealing 
 with specific cases. When these rescripts, or rather the 
 legal dicta contained in these rescripts, were collected 
 by Gregory ix., the result was an inartistic and inorganic 
 law-book. We might compare it to a rude compilation 
 of ' head notes ' taken from our reports, and solemnly 
 sanctioned by the legislature. Again, we must remem- 
 ber that even the Sext and the Clementines, which are 
 not open to exactly the same criticism, were in Lynd- 
 wood's day old books. Therefore there was ample need 
 for gloss and comment, ample room for controversy. 
 All this we may see in Lyndwood's work. There are 
 plenty of open questions, plenty of cases in which the 
 various doctors entertain various opinions about the 
 meaning that should be found for this or that ambiguous 
 phrase. Sometimes when they explain a text they will 
 perhaps explain it away. But what we do not see in our 
 English book is the slightest tendency to doubt the pope's 
 legislative power, or to debate the validity of his decretals. 
 
 That in theory the sphere of papal legislation was 
 circumscribed by the ins divinum ct naturalc was hardly 
 to be denied. The pope cannot, says John of Ayton, 
 change the foundations which support the church mili- 
 tant, such, for example, as the ten commandments and 
 the seven sacraments, nor can he change the evangelical 
 doctrine, nor can he deprive us of our natural right vim 
 vi repcllerc} But these limits are wide and elastic. 
 Experience had been showing in decade after decade 
 that the task of distinguishing between that portion of 
 
 1 John de Athon, p. 76, gl. ad v. summorum pontificum. 
 
12 
 
 Canon Law in England 
 
 the church's law which was to be called divine and that 
 portion which had its origin in the decrees and customs 
 of the church was of all tasks the most difficult. No 
 one would say that every precept that could be found in 
 the Bible was an irrepealable ' fundamental law ' of the 
 church. Many of these precepts were to be regarded as 
 ' local and temporary ' laws given to the Jews or the first 
 Christians. 1 Finding no sure foothold in the Bible, the 
 canonists had endeavoured to make a stand at the margin 
 of the his naturale. But this, again, was a line that 
 could never be precisely defined. The play of thought 
 round these matters is interesting to English lawyers, 
 for we have a similar history to tell of our own modern 
 ideas about the omnicompetence of English statutes. 
 Coke would, if he could, have maintained some effective 
 barriers against the advancing flood of acts of parlia- 
 ment. Eong it remained a pious opinion that some- 
 where or other a limit there must be ; but this limit was 
 so far beyond the range of probabilities that no statute 
 ever reached it. At length the very existence of any 
 restraint was denied. But there is some difference 
 between the two cases. We can afford to speak of 
 unjust laws : of laws so unjust that it would be a man's 
 duty to break them. The canonist could hardly do this ; 
 he could hardly admit that a rule could be both a wicked 
 rule and the law of the holy catholic church. And so in 
 speculative discussion the idea of a limit to papal law- 
 making was preserved ; but it was slowly receding into 
 the region of the highly improbable and almost im- 
 possible. As a matter of fact, popes do not attempt to 
 repeal the ten commandments. 
 
 1 Lyndwood, p. 252, gL ad v. imagines : 'Nec obstat Exodi 20, ubi 
 dicitur Non fades tibi imaginem nec sculpt am similitudinem, quia illud 
 pro co tempore erat prohibitum quo Deus humanam naturam non assump- 
 scrat. . . . Secus autem est postquam naturam assumpsit humanam. ' 
 
William Lyndwood 
 
 13 
 
 Having referred to this restriction, John of Ayton 
 proceeds to discuss the question whether the pope is the 
 dominus of all the churches in the world, so that he can 
 take from one and give to another. The archdeacon 
 (Guido de Baysio) in his Rosarium has, so John says, 
 given a negative answer ; but nowadays the other 
 opinion prevails — namely, that the dominium of the 
 churches belongs to the pope by way of reservation and 
 collation ; also the dominium of the goods of the 
 churches belongs to the pope ; for, whereas he is the 
 governor of the whole, he can take from one and give to 
 another, more especially if he has any reason for so doing. 
 
 And this power of the pope we daily feel to the uttermost in his 
 frequent imposition of tenths. But, albeit the pope, while alive on 
 earth, can, as I have said, turn things topsy-turvy, nevertheless, if he 
 errs, his judgment will be the more terrible. Nor do I think that by 
 such words as these I have broken the law against those who slander 
 the pope, for in doubtful cases one is excused from guilt. 1 
 
 John, then, can grumble about papal exactions, and, 
 no doubt, there had been grumbling enough among the 
 English clergy. But a moan, even when fortified by an 
 allusion to the fate that awaits the wicked, is not a legal 
 
 1 John de Athon, p. 76, gl. ad v. summorum pontificum : 'Contrarium 
 tamen modernis temporibus tenetur, scilicet dominium ecclesiarum tarn per 
 reservationem quam per collationem ad papam pertinere, Extra, de praeben. 
 c. 2 in prin. li. 6 [c. 2 in Sexto, 3. 4]. Item et dominium rerum ecclesiae ad 
 papam dicitur spectare : argumentum, 8 dist. quo iure [c. 1, Dist. 8], cum 
 si[milibus] no[tatis] per W[illelmum de Monte Lauduno] Extra, de praeben. 
 si de bcneficio in Cle. [c. 5, Clem. 3. 2]. Nam, cum sit gubernator totius 
 universi, potest uni aufferre et alteri dare, maxime ex causa : argumentum, 
 C. de fiaidis limiirophis. agros. li. 11 [Cod. 11. 60. 3] cum si[milibus]. 
 Quam potestatem papae ad unguem experimur hodie in sua frequenti deci- 
 marum impositione. Sed tamen licet papa vivens in terris, ut praemisi, 
 possit volvere quadrata rotundis, si tamen erret, iudicium sibi terribilius 
 imminebit : ut legitur et notater4o dis. si papa [c. 6, Dist. 40] per Johannem 
 Andreae et Hostiensem, Extra, de conces. praeben. proposuit [c. 4, X. 3. 8], 
 . . . Nec credo quod per huiusmodi verba inciderem in legem Extra, de 
 mat V ■die. c. prim. [c. I, X. 5. 26], quia etiam in dubiis excusatur quis a delicto ; 
 argumentum, ff. de iur.fisci, non puto [Dig. 49. 14. 10].' 
 
Canon Law in England 
 
 principle, and we here see our English canonist citing a 
 decretal which in the boldest language claims that a 
 plenary power of disposing of every church belongs to 
 the Roman pontiff. 1 If John thinks that he is at liberty 
 to pick and choose among the decretals, his taste is 
 strange. If there was a decretal that he might have 
 rejected or passed by in silence, surely it was Unam 
 sanctam, that stupendous edict in which Boniface vin. 
 asserted not only the spiritual but the temporal 
 supremacy of the bishops of Rome. It had gone a little 
 too far even for subsequent popes ; it had been de- 
 signedly omitted from the Clementines ; and yet John 
 must needs appeal to it. 2 
 
 Lyndwood says that the pope may be tried by a 
 council for heresy or for other crimes so gross that they 
 savour of heresy. 3 He also allows that there may be 
 cases in which a specific command given by the pope 
 ought to be disobeyed : for example, a command that a 
 boy should be provided with a benefice that involves a 
 cure of souls. 4 All this, of course, is perfectly compatible 
 with the pope's power of legislation. On the other hand, 
 Lyndwood holds that no general council can be sum- 
 moned without the authority of the apostolic see, 5 and 
 he cites without disapproval the opinion of those doctors 
 who maintain that the pope is above a general council. 
 
 1 c. 2 in Sexto, 3. 4 [Clemens IV. 1265]: 'Licet ecclesiarum, person- 
 atuum, dignitatum, aliorumque beneficiorum ecclesiasticorum plenaria dis- 
 positio ad Ronianum noscatur pontifkem pertinere, ita quod non solum ipsa 
 cum vacant potest de iure conferre, verum etiam ius in ipsis tribuere 
 vacaturis.' 
 
 2 Job. de Athon, p. 122, gl. ad v. a prelatis regni: 'Nam et gladius 
 terrenus gladio caelesti necessarie babet subici. . . . Patet in Extravag. 
 Lonifac. 8, unam sanc/am.' As to the omission of this bull from the 
 Clementines, see Schulte, op. cit. ii. 48. 
 
 3 Lyndwood, p. 95, gl. ad v. se defendant. Even the extreme curialists 
 admitted the possibility of a trial for heresy. 
 
 4 Ibid. p. 91, gl. ad v. teneantur. 
 
 6 Ibid. p. 284, gl. ad x.per ecclesiam ; also p. 16, gl. ad v, authoritate concilii. 
 
William Lyndwood 
 
 '5 
 
 It is the very eve of the Council of Basel, but not a 
 word is said of what happened at Pisa and Constance, 
 not a word of the schism, not a word of Pierre d'Ailly, 
 or Gerson, or our own Robert Hallam. Not a hint is 
 given us that Archbishop Chichele himself, to whom the 
 book is dedicated, has lately incurred the displeasure of 
 Pope Martin. The allusions to current affairs are of 
 quite another kind. Cardinal Beaufort, at the pope's 
 command, is leading a crusade against the Lollards of 
 Bohemia, and by order of the apostolic see the bones of 
 the heresiarch have lately been disinterred at Lutter- 
 worth. 1 Now, Lyndwood was making a text-book for 
 beginners. Those to whom he addressed his work were 
 simp lie iter literati et paucci intelligentes} He was not 
 bound to call their attention to the seamy side of 
 ecclesiastical polity, to speculate in their hearing about 
 a possible conflict between popes and general councils, 
 or to expose to their view the discomfort of the arch- 
 bishop. Still, if we believe that there lived among the 
 English canonists some treasured tradition of Anglican 
 independence, we must admit that an unexampled and 
 irrecoverable opportunity was lost when, in the days 
 between Constance and Basel, the head of the profession 
 wrote a book that was destined to be classical, and 
 hurried past the momentous controversy of the age with 
 a hint, or more than a hint, that the papal was the better 
 opinion. Very recently the archbishop had plucked up 
 courage and had appealed from the pope to a general 
 council. And yet here to all appearance is his learned 
 adviser telling him that any such appeal is vain qtda papa 
 est supra concilium generate? 
 
 1 Lyndwood, p. 284, gl. ad v. Iohannem Wicldiff; p. 300, gl. ad v. remotas. 
 
 2 Ibid. p. 95, gl. ad v. commenta. 
 
 3 Lyndwood, p. 104, gl. ad v. fratrum nos/rorum consilio. The arch- 
 bishop (he says) should not deal with arduous matters without the counsel 
 
1 6 Canon Law in England 
 
 It would seem, therefore, that if we call Lyndwood a 
 papalist, we are using that term in a correctly narrow 
 sense. The question of the hour, the question on which 
 the whole subsequent history of the catholic church must 
 depend, is the question between pope and council, and 
 Lyndwood lets us see that, in his opinion, the law is on 
 the pope's side. This being so, we should be allowing 
 ourselves an ample margin if we inferred that he was 
 prepared to treat the decretals as statute law. It was 
 very possible for men to contend that, though the pope 
 had legislative power, an ecumenical council had a 
 superior legislative power, could repeal papal statutes 
 and establish boundaries which such statutes should not 
 transgress. But we are not driven to inferences about 
 this matter. Whatever may be the power of councils, 
 the pope is the princeps of the church. Quod principi 
 placuit legis habet vigor em} The pope is above the 
 
 of his brethren. So also the pope, who, though he is solnius legibus, yet 
 ought to conform himself to the laws. This is the opinion of Cardinalis 
 [i.e. the French cardinal Jean le Moine, who died in 1313]. ' In hoc tamen 
 contradicunt alii doctores dicentes quod papa potest talia expedire sine eis, 
 quia etiam ipse est supra concilium generate : de elect. significasti, de concess. 
 praebend. proposuit [c. 4, X. 1. 6; c. 4, X. 3. 8j. Et hanc partem tenet 
 Hug'uccio] : 4 di. leges [diet, post c. 3, Di. 4], dicens quod ipse habet pleni- 
 tudinem potestatis : 9. q. 3 conquestus [c. 8, C. 9. q. 3] : et idem dicit de 
 imperatore, ut scilicet possit quaecumque ad eum spectantia sine consilio 
 baronum suorum facere. Nec est credendum Iohanni Monacho qui erat 
 cardinalis et suspectus erat quod voluit sustinere causam propriam, sicut 
 ista notat Dominicus de Sancto Geminiano.' The passage here printed 
 within inverted commas is taken with little change from Geminiano's com- 
 mentary on the Sext, where, however, the important word generate does not 
 occur. At least it does not occur in the Lyons edition of 1520 ; see f. 245 
 dors. Whatever Lyndwood's private opinion may have been (and with that 
 we are not concerned), his public teaching seems to go the full length of 
 setting the pope above a general council. The opposite opinion is repre- 
 sented as being held only by one doctor, who has been dead for upwards of 
 a century, and who is suspected of self-interest. And this after the Council 
 of Constance ! 
 
 1 Lyndwood, p. 28, gl. ad v. cxpresse : ' Et hoc verum puto in alio quam 
 in papa. Secus tamen dicerem in papa : el est ratio, quia papa est supra 
 iura, C. de legi. 1. digna d. 1. 14. 4^, ff. de legibus, 1. princeps [Dig. 1. 
 
William Lyndivood 
 
 i7 
 
 law. 1 Any general constitution made by the pope is 
 binding two months after its publication, even on those 
 who are ignorant of it.' 2 The decretals stand on a level 
 with the canons of councils. 3 To dispute the authority 
 of a decretal is to be guilty of heresy at a time when 
 obstinate heresy is a capital crime. 4 
 
 This last is no private opinion of a glossator ; it is 
 a principle to which the archbishop, bishops, and clergy 
 of the province of Canterbury have adhered by solemn 
 words. Anyone who calls in question the authority of 
 a decretum, of a decretal, or of a provincial or synodal 
 constitution, is a heretic, and, unless he will recant and 
 abjure, must be burnt alive. 5 No doubt this enormous 
 
 3. 31]. Et in eo sufficit pro ratione voluntas, Inst, de iurc natu. § sed et 
 quod principi [Inst. 1. 2, § 6].' 
 
 1 Lyndwood, p. 321, gl. ad v. interdicto : ' Et hoc verum praeterquam in 
 papa qui non subiacet legibus, ff. de legi. 1. princcps [Dig. I. 3. 31].' 
 
 2 Ibid. p. 51, gl. ad v. excommunicationum sententiae : 'Constitutio vera 
 papae generalis post duos menses computandos a tempore publicationis 
 eiusdem generaliter factae in consistorio ligat etiam ignorantes.' So also 
 p. 19, gl. ad v. publicum notionem. The theory about the two months was 
 derived from Nov. 66 (Hinschius, Kin/icnrecht, iii. 777, note 1). 
 
 3 Ibid. p. 297, gl. ad v. decrelalibus : ' Et nota quod decretales sum- 
 morum pontificum sunt eiusdem auctoritatis sicut decreta quae sunt in 
 corpore canonum digesta, 19 Dist. quasi per totum. Parificantur etiam 
 canonibus conciliorum, 20 Dist. per totum.' 
 
 4 Ibid. p. 292, gl. ad v. declarentur : 'Dicitur etiam haereticus qui ex 
 contemptu Romanae ecclesiae contemnit servare ea quae Romana ecclesia 
 statuit, et etiam qui despicit et negligit servare decretales. . . .' Ibid. p. 38, 
 gl. ad v. reluctantes : ' Potest tamen esse quod aliquis violet canones credens 
 quod ecclesia Romana non habet potestatem canones condendi : et talis 
 punitur ut haereticus.' 
 
 5 Const. Tho. Arundel (Wilkins, Concilia, iii. 317): ' Nullus quoque de 
 articulis terminatis per ecclesiam, prout in decretis, decretalibus, constitu- 
 tionibus nostris provincialibus, sive locorum synodalibus continetur, nisi ad 
 habendum verum intellectum eorundem, et hoc expresso, publice vel occulte 
 disputare praesumat, aut auctoritatem eorundem decretorum, decretalium 
 aut constitutionum, potestatemve condentis eadem in dubium revocet, sive 
 contra determinationem eorundem doceat, et praesertim circa adorationem 
 crucis gloriosae. . . . Contrarium autem asserens, docens, praedicans, ac 
 pertinaciter innuens, nisi resipiscat sub modo et forma praedictis, et abiuret, 
 ut supradictum est, poenas haeresis et relapsi in eventum incurrat.' Lynd- 
 
i3 
 
 Canon Lain in England 
 
 declaration went beyond the practical intentions of those 
 who uttered it. It was aimed at men who were rightly 
 or wrongly supposed to be striking at fundamental 
 articles of the catholic faith and worship. We must 
 read it also as subject to explanation, for certainly we 
 may and must dispute and deny the authority of a pro- 
 vincial constitution if it collides with a decretal ; Lynd- 
 wood himself, as we shall soon see, is compelled to do 
 this, or rather does it as a matter of course. But in the 
 most general phrases and by the most terrible ban the 
 sanctity of the decretals is to be upholden. Let us 
 make no mistake about the meaning of this declaration. 
 No conciliar action is necessary for the establishment 
 of those decretals which are to be protected by the 
 flames against all impugners. A decretum, says Lynd- 
 wood, is what the pope has ordained with the counsel 
 of his cardinals when no one has consulted him ; a 
 decretal is what the pope either with or without the 
 cardinals has ordained when anyone has consulted 
 him. 1 There is to be no picking and choosing, no 
 rejection even of the wilder ' extravagants ' ; the decretals 
 are laws. But, further, they are, in Archbishop Arundel's 
 phrase, praeccpta legum et canonum ab aetcrnae vitae et 
 mortis c/avigero, vicem non puri hominis sed veri Dei 
 gererite in terris, et cui ipse Dens caelestis imperii iura 
 commisit, rite edita, canonice promnlgata" 
 
 But we must not catch at a few sentences, uttered, 
 
 wood (p. 298) understood this to extend far beyond matters of faith : ' Si 
 non liceat disputare de his quae per ecclesiam statuta sunt quoad mores 
 hominum, ut hie, multo mayis non hecbit disputare de articulis fidei vel 
 sacramentis ecclesiae.' 
 
 1 Lyndwood, p. 272, gl. ad v. decreti : 'Et dicitur decretum quod statuit 
 papa dc consilio cardinalium suorum ad nullius consultationem. . . . Canon 
 dicitur id quod statuitur in universal! concilio. . . . Decretalis epistola 
 est quam statuit papa vel solus, vel cum cardinalibus ad consultationem 
 alicuius.' 
 
 ■ Wilkins, Concilia, iii. 314. 
 
William Lyndwood 
 
 perhaps, in a moment of terror, for in the presence of 
 heresy the champions of the orthodox tradition will 
 sometimes say more than they mean. Let us look at 
 Lyndwood's method, the scheme and theory of his book. 
 
 Lyndwood has collected and digested the archi- 
 episcopal constitutions of the southern province. 1 He 
 provides them with a gloss. His position is that of 
 a lawyer who is commenting on the edicts issued by 
 a non-sovereign legislator. He has to consider whether 
 and how they can be harmonised with a large body of 
 law which that legislator has no power to repeal or to 
 override. The archbishop may make for his province 
 statutes which are merely declaratory of the ius commune 
 of the church, statutes which recall it to memory, statutes 
 which amplify it and give to it a sharper edge. He may 
 supplement the papal legislation ; but he has no power 
 to derogate from, to say nothing of abrogating, the laws 
 made by his superior. 2 
 
 From this it follows that about any archiepiscopal 
 
 1 He held himself free to reject not only obsolete constitutions, but also 
 what he regarded as obsolete parts of effective constitutions. He modelled 
 his procedure on that of St. Raymond. Perhaps he hoped that Chichele 
 would follow the example of Gregory IX., and give statutory force to the 
 constitutions in their digested form, though, of course, no statutory force 
 would be given to the gloss. 
 
 2 Lyndwood, p. 70, gl. ad v. iuramento : ' Possunt namque achiepiscopi 
 et episcopi constitutiones facere iuris communis declaratorias et revocatorias, 
 et ubi poena deficit in hire possunt poenas apponere et veterem poenam 
 augere. Possunt etiam constitutionibus papalibus addere et eas supplere et 
 ad correctionem morum statuta facere praeceptoria, prohibitoria et poenalia, 
 dum tamen ius commune non subvertant, secundum Hostiensem, qui hoc 
 notat in d. c. /// singulae [c. 4, X. 1. 24j et idem Jo[hannes] in notis post 
 eum. Possunt etiam in his, quae ad ipsorum iurisdictionem pertinent, 
 statuta facere, dum tamen legibus generalibus non obsistant : prout notatur 
 per Jo[hannem] An[drcae] in notis Extra, de offi. h\ c. ultimo in principio 
 [c. 10, X. 1. 30].' A constitution 'revocatory' of the common law is not a 
 constitution that repeals the common law, but one which recalls and restores 
 it. For this use of revocare see Lyndwood's Preface ; he sets about his 
 work because he thinks that the provincial constitutions are pristino studio 
 revocandae. 
 
20 
 
 Canon Law in England 
 
 constitution we may always raise the question whether 
 it be not ultra vires statuentis. Lyndwood sitting as a 
 judge in the provincial court would have held himself 
 bound to allow that question to be raised. He himself 
 has set the example by raising it on more than one 
 occasion. Let us see how he treats it. 
 
 Against ' pluralities ' there had been severe legis- 
 lation. A decree of the fourth Lateran Council ( 1 2 1 5) 
 had declared that in certain cases if a man having one 
 benefice obtained another, he was ipso iure deprived of 
 the first. 1 In 1268 a constitution of the legate Ottobon 
 decreed that the second institution of such a pluralist 
 should be void ipso hire? Then in 1279 Archbishop 
 Peckham dealt with this matter. He remarked that the 
 decree of the Lateran Council deprived the pluralist of 
 the former of his two benefices, and that the legatine 
 constitution deprived him of the latter, and then spoke 
 thus : ' We, being unwilling to heap rigour on rigour, 
 and considering the spirit of these two constitutions, 
 neither of which deprives the pluralist of both benefices, 
 and mixing mercy (inisericordiavi) with rigour, do per- 
 mit (pewnittimus) that the pluralist may retain the latter 
 benefice.' 3 Now this was not a very bold essay in 
 legislation, and the archbishop expressly professed to be 
 giving effect to the spirit of the existing law. Never- 
 theless, Lyndwood held that Peckham's constitution was 
 
 1 c. 28, X. 3. 5. 
 
 - Const. Ottob. Christianae (Joh. de Athona, p. 126). 
 
 3 Const. Jo. Peckham, Audistis : . . . ' praecavere tamen volentes ne 
 rigorem videamur coacervare rigori : mentem etiam constitutionum tarn 
 Concilii Generalis quam etiam Ottoboni clarius advertentes, quarum neutra 
 et praeobtentis et ultimo simul privat. . . . Nos tamen misericordiam cum 
 rigore miscentes, non tarn misericorditer quam prudenter permittimus, ut is 
 qui plura bcneficia curam animarum habentia absque dispensatione apostolica 
 fuerit assecutus, ultimum beneficium sic obtentum retineat, et eodem iuxta 
 tenorem Concilii Generalis de nostra speciali gratia sit contentus. . . See 
 also Wilkins, Concilia, ii. 34. 
 
1 Villi am Lyndwood 
 
 21 
 
 for the more part void. Here is his gloss on the word 
 misericordiam : — 
 
 Note that this mercy should rather be called injustice. For the 
 mercy shown by the author of this decree is expressly contrary to a 
 decree of the second Council of Lyons contained in the Sext, which 
 neither the archbishop nor anyone lower than the pope can repeal or 
 alter. 1 
 
 Then to the word permittimus Lyndwood sets this 
 gloss : — 
 
 This permission can do nothing to prevent the law of the superior 
 [i.e. the pope] from prevailing ; unless, perhaps, you say that it is valid 
 so far as regards the person who gives the permission [i.e. the arch- 
 bishop], so that he cannot impugn the second title of the pluralist ; for, 
 as regards the person to whom the permission is given, we must receive 
 rather what the law says about the matter than what is said by the 
 person who gives, but has no power to give, the permission ; for such a 
 permission, which is really no better than a mere tolerance, cannot excuse 
 him who receives it from being bound by the law of the superior legislator. 2 
 
 And then we learn that any constitution which 
 Peckham may have made is overridden by later law : 
 namely, by John xxii.'s Execrabilis, an 'extravagant' 
 decretal which any champion of national churches would 
 be glad to leave unnoticed, for it contains a startling 
 
 1 Lyndwood, p. 136, gl. ad v. Nos misericordiam: ' Et nota quod ista 
 misericordia potius dici potest iniustitia. Nam misericordia, quam hie 
 ostendit huius decreti auctor, est expresse contra Deere. Ordinarii locori/m, 
 dc offi. ordi. § ult. li. 6 [c. 3 in Sexto, 1. 16, Gregorius x. in generali Concilio 
 Lugdunensi] quam tolleie vel alterare non potest archiepiscopus, nec aliquis 
 papa inferior.' 
 
 2 Ibid. p. 136, gl. ad v. permittimus : ' Ista permissio nihil potest operari, 
 quin locum habeat lex superioris : nisi forsan dicas quod valeat quoad ipsum 
 permittentem, ut scilicet ipse non possit titulum talis impugnare. Ex parte 
 namque eius cui hoc permittitur potius debemus recipere quod in hoc casu 
 a iure statuitur, quam quod ab ipso, qui circa hoc potestatcm non habet, 
 permittitur, iuxta notata per Cardi[nalem] de aeta. et quali. ordi. c. permitti- 
 mus, glo. 1. li. 6 [c. un. in Sexto, 1. 10]. Talis namque permissio, quae nihil 
 aliud est quam quaedam tolerantia, ut notatur 3 di. omnis autem lex [c. 4. 
 Dist. 3] per Io[hannem], non potest excusare cum cui fit talis permissio quin 
 ligetur lege superioris aliud statuentis, ut praedixi.' 
 
22 
 
 Canon Law in England 
 
 'reservation,' but which both Lyndwood and John of 
 Ayton cite as an unquestionable part of the law of the 
 church. 1 This Execrabilis was one of those greedy 
 extravagants against which in Lyndwood's time even 
 the moderate reformers were inveighing ; there was no 
 chance of its being consistently enforced in England ; 
 statutes of ' provisors ' and ' praemunire ' stood in the 
 way ; still, until it should be repealed, it was an unques- 
 tionable part of the law of the church. And, by the 
 way, thanks to Mr. Bliss, we have lately acquired some 
 curious evidence of the clean sweep which this decretal 
 effected in England while it was a very new broom. It 
 was issued in November 1317 ;~ in the summer of 13 18 
 Pope John was giving himself the pleasure of filling up 
 some fifty English benefices that had been vacated by 
 the cession of pluralists. 3 
 
 In the same constitution Peckham declares that 
 certain forms of pluralism are to involve the offender 
 ipso facto in a sentence of excommunication. Lyndwood 
 says that this declaration is new law ; it goes beyond 
 the common law ; therefore its validity must be dis- 
 cussed. The common law forbids a man to hold two 
 benefices by way of institution, or two by way of 
 commendation. Now the archbishop is within his rights 
 in affixing the penalty of excommunication to a breach 
 of this prohibition, for archbishops may add to the 
 constitutions of the Roman pontiffs, provided that the 
 substance is preserved. 4 But Lyndwood suggests (very 
 
 1 Lyndwood, p. 136, gl. ad v. nec ultimo : ' Hodie vero ista poena aucta 
 est per Extrav. execrabilis.' This decretal appears as c. un. Extrav. Ioh. 
 xxii. 3. John of Ayton often refers to it, e.g. pp. 23, 35, 46, 51, 85. 
 
 2 Friedberg, Corp. Iur. Can. ii. col. 1209. 
 
 3 Bliss, Calendar of Papal Letters, ii. 171-1S2. 
 
 4 Lyndwood, p. 137, gl. ad v. innodatus: 'Quoad obtinentes simul sine 
 dispensatione plura beneficia incompatibilia bene potest stare haec poena, 
 de qua alias nihil statutum est, maxime cum archiepiscopi possint ad con- 
 
J Villi am Lyndwood 
 
 23 
 
 unnecessarily, as it seems to me) that Peckham's con- 
 stitution might be read as an endeavour to do more 
 than this, and as an attempt to make illegal what 
 according to the common law is sometimes legal — 
 namely, the simultaneous tenure of one benefice by 
 way of institution and another by way of commendation. 
 Lyndwood thinks that Peckham's constitution does not 
 make this futile attempt ; but he says plainly that if the 
 attempt is made it is futile. A decretal of Gregory ix. 
 stands in the way. It is in some cases lawful for a man 
 
 hold two churches, the one intitulatam, the other 
 commendatam} If Peckham has threatened with excom- 
 munication a man who is doing what the general law per- 
 mits, that threat is void. The constitution of an inferior, 
 albeit a penalty is affixed, cannot repeal or restrict the 
 law decreed by a superior. A right given by papal law 
 must not be impugned even obliquely by provincial law. 2 
 
 There had, again, been frequent legislation directed 
 against the practice of letting churches and sources of 
 ecclesiastical revenue to farm. In 1342 Archbishop 
 Stratford, with the approbation of his provincial council, 
 endeavoured to increase the efficiency of the law. 3 
 Having referred to certain previous constitutions, he 
 
 stitutiones Romanorum pontificum addere, salva ipsarum substantia, ut 
 notatur per Hostiensem et Iohannem Andreae.' 
 
 1 Lyndwood, p. 137, gl. ad v. aliud tttulo commendae: 'Contra istud 
 opponitur de e/ec. c. dudum 2, %fiartibus ergo, ver. insuper [c. 54, X. I. 6] et 
 21, q. 1, qui plures [c. 3, C. 21, q. 1], in quibus patet expresse quod licet 
 unam ecclesiam habere intitulatam et aliam commendatam. Et sic sentiunt 
 doctores communiter, d. c. nemo deinceps, ver. unam, li. 6 [c. 15 in Sexto, 1. 6], 
 unde, secundum praemissa, hoc quod hie dicitur stare non potest, ut videtur.' 
 
 2 Ibid. p. 137, gl. ad v. innodatus : 1 Sed in obtinentes unam ecclesiam 
 intitulatam, aliam commendatam, non posset habere locum haec poena, 
 scilicet excommunicationis latae, nisi ut infra dicam, quia hoc esset restrin- 
 gere potestatem concessam a superiore, saltern per obliquum, quod non licet, 
 de rcg. iic. cum quid li. 6. . . . Non potest ergo constitutio etiam poenalis 
 alicuius inferioris dictam legem superioris tollere vel refrenare.' 
 
 3 Const. Jo. Stratford, Licet bonae (Wilkins, Concilia, ii. 704). 
 
2 4 
 
 Canon Law in England 
 
 says that the religiosi, the professed in religion, assert 
 that those constitutions do not bind them. About this 
 matter Lyndwood takes their side. 1 Then Stratford, 
 with the sanction of the council, ordains that if the 
 religious let their benefices or their portions of tithes to 
 laymen, or (without the consent of the diocesan bishop) 
 to clerks, they are to suffer a certain penalty. Lynd- 
 wood has the gravest doubts as to the validity of this 
 legislation. When first he turns to the constitution, he 
 observes that we do not know whether there were 
 present at the council all those whose presence was 
 necessary for the validity of this statute. ' This I say 
 because several things that are here ordained seem to 
 be repugnant to the common law.' 2 Later on he sug- 
 gests an interpretation of the constitution which may 
 make it harmless, but holds that, if this interpretation 
 be rejected, and if the constitution tries to curtail the 
 rights given to the religious by the his commune, then 
 it must depend for its validity on the consent, express or 
 tacit, of the monks. As to the ' exempt ' religious, they 
 are not bound by this statute unless they expressly 
 consented to it. 3 As to the others, they may perhaps 
 be bound if they were present and raised no objection ; 
 but this is a doubtful point, for what we read in Johannes 
 Andreae would seem to demand an express consent. 
 In short, we may save this statute if we can prove that 
 the religious consented, or if (and this is what Lynd- 
 wood would do) we say that it did not seriously affect 
 them ; but nothing is clearer than that an English pro- 
 
 1 Lyndwood, p. 157, gl. ad v. asserunt non ligarc : ' Et bene ut videtur.' 
 
 2 Ibid. p. 1 54, gl. ad v. j>rovinciali concilio : ' Quae personae interfuerunt 
 in hoc concilio, an videlicet omnes quarum interfuit quoad validationem 
 huius statuti, ignoratur. Haec dico propter ea quae hie statuuntur, et ut 
 melius advertas quae infra dicam : nam plura hie ordinata videntur iuri 
 communi repugnantia.' 
 
 3 Ibid. p. 160, gl. ad v. dc cetcro. 
 
William Lyndwood 
 
 25 
 
 vincial council has no power to restrict a right conferred 
 by a decretal of Innocent m. which is contained in the 
 Gregorian statute-book. 1 
 
 Nor is it merely by papal decretals that the legislat- 
 ive powers of the archbishop are curtailed. The pope, 
 of course, is his superior, but so is a legate sent here 
 a latere. No English prelate, no English council, has 
 any power to repeal or override the statutes set by Otto 
 and Ottobon. 2 Nay, more : no English prelate, no 
 English council, has any power to put a statutory inter- 
 pretation upon those statutes. Archbishop Peckham in 
 his provincial council may have incautiously used words 
 which might seem to claim such a power. Lyndwood 
 meets the possible objector : True it is that, if there 
 is any real room for doubt about the meaning of the 
 statute, then the statute-maker, and none other, can 
 interpret it. But in the case before us the words of the 
 legate Ottobon are unambiguous and plain enough ; so 
 it is lawful for an ' inferior prelate ' (e.g. the archbishop 
 in his provincial council) to declare their meaning. 3 In 
 other words, our doctrine is that the archbishop can set 
 an interpretation on a legatine constitution, provided 
 
 1 Lyndwood, p. 160, gl. ad v. laicis quovismodo : 'Alias autem si intelli- 
 gamus istud statutum loqui de ipsis fructibus beneficiorum vel portionum 
 quovismodo non concedendis laico ad firmam, sic expresse contradiceret 
 dicto c. vestra [c. 2, X. 3. 18], contra cuius tenorem non valeret statutum 
 editum per inferiorem, qui legem superioris tollere non potest.' 
 
 2 Ibid. p. 1 54, gl. ad v. adjicicndo : ' et verum est quod constitutiones 
 legatinas non poterit archiepiscopus tollere, quia inferior non potest tollere 
 legem superioris.' 
 
 3 Ibid. p. 246, gl. ad v. dcclarandum : ' Ubi verba constitutions vel 
 statuti sunt ambigua vel obscura, tunc interpretatio erit ipsius qui statuit : 
 . . . ubi tamen sunt satis clara et aperta, ut est videre in dicta constitutione 
 Othoboni, tunc inferior praelatus potest declarare intellectum talis statuti, 
 sicut alias solet notari per doctores, Extra, de iudi. c. cum venissent [c. 12, 
 X. 2. 1]. Vel die quod ubi declaratio statuti est iuri consona, tunc bene 
 tenet declaratio statuti facta per inferiorem, ut clare patet Extra, de consue. 
 c. cum dilectus [c. 8, X. I. 4]. Ubi vero statutum est adeo obscurum quod 
 non potest haberi congrua expositio, tunc recurrendum est ad statuentem.' 
 
26 
 
 Canon Law in England 
 
 that its words are so plain that they need no interpreter. 
 Then this same John Peckham has used another phrase 
 that is not very apt. He has said, 'We order* that one 
 of Ottobon's constitutions shall be inviolably observed. 
 This, says Lyndwood, is 'executive,' not 'authoritative.' 
 The statute came from one who had a higher authority 
 than the archbishop had, so he could add no authority 
 to it ; still it is a useful practice to draw attention to 
 existing laws, so that they may not be forgotten. 1 
 
 Such is Lyndwood's comment on Peckham's action. 
 Very different indeed is the comment on it which has 
 been made in modern times. ' The provincial law of 
 the Church of England contained, as has been stated, 
 the constitutions of the archbishops from Langton down- 
 wards, and the canons passed in the legatine councils 
 under Otho and Ottobon. The latter, which might 
 possibly be treated as in themselves wanting the sanc- 
 tion of the national church, were ratified in councils held 
 by Peckham.' 2 Now for the time we may leave open 
 the question which of these two explanations is the truer 
 expression of the mind of Peckham and his contem- 
 poraries ; but as to the theory that prevailed in the 
 court of Canterbury during Lyndwood's tenure of office 
 there can be no doubt whatever. Peckham and his 
 councils could not 'ratify' legatine constitutions. In 
 such a context ' the sanction of the national church ' = o. 
 
 That as a matter of fact the English bishops did not 
 enforce some of the decretals, even in cases in which 
 
 1 Lyndwood, p. 1 1, gl. ad v. observari : ' Sed cum dicta constitutio Otho- 
 boni per ipsum qui erat maioris auctoritatis, quia per legatum a latere, erat 
 edita et debite publicata . . . ad quid praecipitur hie dictam constitutionem 
 observari, cum per prius sufficienter ligabat ? Die quod istud est prae- 
 ceptum potius executivum illius quod primo statutum est quam auctori- 
 tativum, videlicet cum istud praeceptum est ad excitandum negligentes 
 observare constitutionem ipsam. . . .' 
 
 2 Report of the Ecclesiastical Courts Commission, vol. i. p. 25. 
 
1 Villi am Lyndwood 
 
 27 
 
 they could not urge the excuse that they were prevented 
 from so doing by the lay power, is highly probable. 
 John of Ayton in his grumbling gloss says that the 
 only constitutions that arc enforced with any alacrity are 
 those which bring profit to episcopal purses. 1 Lynd- 
 wood in his preface says that the provincial constitu- 
 tions have been very generally neglected by prelates, 
 judges, and others. Perhaps there are in our own day 
 some portions of the law ecclesiastical which are not 
 being rigorously executed. Our inquiry, however, is 
 whether English canonists asserted any principle which 
 would justify disobedience to papal constitutions. Let 
 us hear Lyndwood about this matter. 
 
 He gives us a constitution of Archbishop Peckham 
 which prohibits nuns from remaining outside their 
 cloisters, and which declares that those who break this 
 edict are to be excommunicated. It seems, however, to 
 admit certain exceptions. A nun is not to remain at 
 large for more than three days for the sake of recrea- 
 tion, nor for more than six days for any cause, except 
 infirmity, unless it be with the consent of the bishop. 
 A saving clause deals with the case of those who are 
 compelled to beg their bread. Now for the comment. 
 
 ■Whatever this statute may say, the common law is that nuns ought 
 to remain perpetually in cloister, and ought not to go out for any cause 
 except for the two limited in [c. un. in Sexto, 3. 16, a decree which is 
 there ascribed to Boniface vin., and which allows a nun to be outside 
 cloister if she is suffering from sickness, and permits an abbess or 
 prioress to leave the house in order to do homage for a fief]. And 
 therefore [says Lyndwood] this constitution [he means Peckham's] has 
 but little effect, regard being had to the common law, which cannot be 
 abrogated by the constitution of an inferior. If, then, you ask me what 
 effect this constitution has, especially as its author, John Peckham, well 
 knew that Bonifician constitution, I do not see a good answer, unless 
 it be that perchance the constitution of Boniface had not been accepted 
 
 1 J oh. de Athona, p. 37, gl. ad v. et cappis clan sis. 
 
23 
 
 Canon Law in England 
 
 and executed in England, as we may see with our own eyes to-day in 
 many monasteries of nuns in England, and in that case this constitu- 
 tion [namely, Peckham's] may well proceed. 1 
 
 There is more to come ; but, pausing here for a 
 moment, we may observe that Lyndwood is to all seem- 
 ing" dealing out hard measure to Peckham, by charging 
 him with knowledge of a law that was not made until 
 after his death. The decretal in question seems to be, 2 
 as Lyndwood thought it was, a decretal of Boniface vm. ; 
 but whereas Boniface did not become pope until 1 295, 
 Peckham died in 1292. Let us, then, do this tardy act 
 of justice to the memory of a maligned archbishop. He 
 did not presume to reject decretals. That he should 
 have done so can never have seemed very probable to 
 those who read his constitutions, for the words which 
 he used when speaking of the Council of Lyons seem to 
 have been just such as would be expected of an inferior 
 prelate by the strongest papalists of our own day. He 
 told the assembled clergy that ' those whom Peter binds 
 with the chains of his laws are bound in the palace of 
 the supreme and heavenly Emperor.' 3 He then added 
 
 1 Lyndwood, p. 212, gl. ad v. cum soda: ' Quicquid itaque hie statuatur, 
 verum est de iure communi quod moniales remanere debent sub perpetua 
 clausula, nee exire debent quovismodo, nisi in duobus casibus limitatis in 
 c. unico. eo. ti. li. 6. Unus casus est . . . Secundus casus est . . . Et 
 propterea constitutio ista modicam vim obtinet respectu iuris communis, 
 quod tolli non potest per constitutionem inferioris : de elec. c. ne Romani in 
 Cle. [c. 2, Clem. 1. 3I. Si igitur quaeras de quo operatur ista constitutio, 
 maxime cum Io. Peccham auctor huius constitutionis bene noverat consti- 
 tutionem illam Bonificianam, e. ti. 1. 6, responsionem bonam non video, 
 nisi quod ilia constitutio Bonifacii forsan non erat acceptata in Anglia nec 
 executa, prout in pluribus monasteriis monialium in Anglia hodie videmus 
 ad oculum : unde in hoc casu bene procedit ista constitutio, quae disponit 
 circa ipsarum egressum.' See Peckham's decree on this subject in his 
 Register, i. 265, and Wilkins, Concilia, ii. 61. 
 
 2 C.J. Can., ed. Friedberg, ii. col. 1053. 
 
 3 Const. Jo. Peckham, Ab exordio. . . . 'Quippe quos legum suarum 
 Petrus ligat vinculis in summi et caelestis Imperatoris palatio sunt ligati. . . .' 
 See also Wilkins, Concilia, ii. 51. 
 
William Lyndwood 
 
 29 
 
 that the decrees of the recent Council of Lyons were 
 being infringed. Therefore, and that no one might 
 shield himself by a plea of ignorance, he willed that 
 those decrees should be recapitulated ; so that not only 
 might they become known to all, but also, if there should 
 happen to be in them anything incompatible with the 
 custom of this country (which in many points differed 
 from the custom of all other lands), some temperament 
 of them might be humbly implored from the apostolic 
 clemency, since, as holy scripture says, obedience is 
 better than sacrifice, and disobedience was ruining the 
 English church. 1 Then Ottobon's constitutions were to 
 be read, and this the more reverently because Ottobon 
 himself had ordered that they should be recited once 
 a year. Then the constitutions of Archbishop Boni- 
 face's council were to be read, and the question whether 
 they were to be enforced was to be discussed, since it 
 was said that an appeal (an appeal to the pope) had 
 been made against them. 2 Lastly, Peckham was going 
 to add some ordinances of his own. Now, surely all 
 this would be scrupulously correct language in the mouth 
 of a Roman Catholic archbishop at the present time. 
 
 1 ' Et quia Lugdunense concilium ultimo celebratum eo enormius quo 
 recentius infringitur : ne quis possit se de temeritate huiusmodi per igno- 
 rantiam excusare, ipsum volumus in principio recenseri, ut non solum 
 omnibus innotescat, verum etiam si quid in ipso videatur intolerabile istius 
 consuetudini regionis, quae in multis ab omnibus aliis est distincta, circa 
 [al. contra] illud temperamentum apostolicae clementiac humiliter imploretur, 
 quoniam sacro testante eloquio, melior est obedientia quam victima, et quasi 
 peccatum ariolandi est repugnare et quasi scelus [al. zelus] est idolatriae 
 nolle acquiescere. Hanc enim inobedientiam credimus esse causam muta- 
 tionis miserabilis utriusque parictis ecclesiae Anglicanae.' Peckham seems 
 to have made strenuous efforts to enforce the decrees of the Council of 
 Lyons ; see Peckham's Regis/e?; i. 137, 143, 257, etc. 
 
 - ' Tertio vero recitari volumus concilium de Lambeth, quod sanctae 
 memoriae praedecessor noster Honifacius cum fratribus et coepiscopis sui 
 temporis noscitur [salubritur] edidisse, ut circa [al. contral ipsum, quod 
 dicitur fuisse appellatione suspensum, qualiter procedi debeat videatur.' 
 
30 
 
 Canon Law in England 
 
 When Blessed Peter makes laws for England which do 
 not seem to be suited to our climate, it is the right and 
 duty of his subordinates in this country ' humbly to 
 implore the apostolic clemency for a temperament.' But 
 if Blessed Peter will not temper his laws, then ' obedi- 
 ence is better than sacrifice.' 1 
 
 No, Lyndwood was hasty, and Peckham was the 
 last man against whom he ought to have brought this 
 accusation. In a letter addressed to Edward i., 2 which 
 breathes the spirit of the as yet unissued Unam sanctam, 
 the archbishop told the king that the Emperor of all has 
 given authority to the decrees of the popes, and that all 
 men, all kings, are bound by those decrees. Boniface 
 vin. could add little to this letter when he declared, 
 affirmed, and defined that it is necessary to the salva- 
 tion of every human being to be subject to the Roman 
 pontiff. 
 
 But, to return to the nuns, whatever Peckham may 
 have done or wished to do, Lyndwood holds that the 
 law must now be found in the Sext. The nuns, it 
 seems, are not observing even Peckham's too indulgent 
 rule. Why so ? 'I cannot tell,' says Lyndwood, 'unless 
 
 1 ' It may be that the legislature legislating for the whole catholic world 
 may command a something that would not be adapted to the circumstances 
 of every country. The bishops of those countries would be at liberty to 
 lepresent respectfully to the holy father that the constitution did not suit 
 the circumstances of their country, and in all such cases he would give an 
 exemption ; that is what he would ordinarily do. . . . But if he insisted, if 
 he said, " I have received your representations, and I do not think them of 
 sufficient weight to exempt your country ; I require you to put this consti- 
 tution in force," they would have no alternative but to accept it and put it 
 in force.' This conies from the evidence given in 1873 by the Archbishop 
 of Cashel in the O'Keeffe case ; see Report, by H. C. Kirkpatrick (Long- 
 mans, 1874), at p. 502. See also Hinschius, Kirchenrecht, iii. 7S5. By 
 Roman Catholic canonists of our own century it has been asserted and 
 denied that in such a case a bishop would be justified in declining to 
 enforce the new rule while the pope was being consulted. 
 
 2 Peckham's Register, i. 239. 
 
William Lyndwood 
 
 3i 
 
 this be clue to the lukewarmness of the bishops. You 
 ought to consider,' he adds, 'that the injunction in the 
 Sext is directed to the bishops who have nuns under 
 them, also to the abbots, exempt and non-exempt, to 
 whom some nuns are subject. But in truth in England 
 those nuns who are ruled by the "religious" are cloistered, 
 whilst those who are immediately under the bishops are 
 not cloistered, and so it is apparent that the negligence in 
 this matter lies with the bishops ; and the bishops cannot 
 aid themselves against this law by prescription, as the 
 archdeacon (Guido de Baysio) notes.' In short, if the 
 law laid down in the Sext is not being enforced, the 
 bishops are to blame, for this is not one of the limited 
 class of rules which can be deprived of their power by 
 long-continued non-observance. 1 
 
 Occasionally the canonists will use language which 
 at first sight may seem to imply that a law derives its 
 binding force from its ' acceptance ' by those to whom it 
 is addressed, and that therefore a statute which has not 
 been thus accepted 'does not bind.' The canonists, most 
 unfortunately for them, have started with some muddled 
 definitions which apparently teach that a lex is confirmed 
 moribus utentium? But when they come to practical 
 questions their talk about acceptance and approbation 
 seems to mean no more than that in certain cases a 
 judge ought to hold that a statute has lost its force by 
 non-observance and has thus fallen into desuetude. 
 There is a constitution of Ottobon declaring that the 
 
 1 Lyndwood, p. 212, gl. ad v. cum socio, : 1 Considerare enim debes quod 
 iniunctio illius capituli ficrictdoso dirigitur episcopis quibus subsunt huius- 
 modi moniales . . . et sic apparet quod negligentia circa hoc remansit in 
 episcopis, nec potest contra illud ius praescribi, prout ibi notat Archidia- 
 conus.' 
 
 - Dictum Gratiani post c. 3, Dist. 4 : ' Leges instituuntur cum promul- 
 gantur, firmantur cum moribus utentium approbantur. Sicut enim moribus 
 utcntium in contrarium nonnullae leges hodie abrogatae sunt, ita moribus 
 utentium ipsae leges confirmantur.' 
 
32 
 
 Canon Law in England 
 
 archbishops and bishops are not to delegate causes 
 except to men holding certain official positions in the 
 church. There is a constitution of Otto about the dress 
 of the clergy. Both John of Ayton and Lyndwood are 
 for holding that these constitutions are not binding, 
 because they have not been accepted. 1 By this they 
 seem to mean no more than that these old laws have 
 been so much ignored that they are no longer to 
 be enforced. This doctrine of desuetude is limited in 
 various ways. It will only be applied to a law about 
 matters that are morally indifferent, to a law that does 
 not execute itself by means of a sententia lata, and to 
 a law that does not expressly prohibit the contrary of 
 that practice which it enjoins ; and far from our canonists 
 is the thought that the subjects of the legislator may 
 lawfully conspire to refuse the statutes that he sets upon 
 them. 
 
 We have been speaking as though the provincial 
 legislation proceeded from the archbishop, not from the 
 provincial council. This is Lyndwood's strain through- 
 out his book. The archbishop makes statutes for his 
 suffragans and his other subjects (subditi).* True that 
 he should undertake no ardua negotia without the 
 counsel of his brethren ; consilio fratrum nostrorum, or 
 some similar phrase, should occur in his constitutions. 3 
 Still he is the legislator. Thus a collision between a 
 provincial constitution and a decretal would not be a 
 collision between two ' churches,' an English church and 
 a foreign church; it would be simply a collision between an 
 'inferior' and a 'superior,' between subditus and princeps. 
 
 1 J oh. de Athon, p. 37, gl. ad v. et cappis clausis ; p. 123, gl. ad v 
 committantur. Lyndwood, p. 80, gl. ad v. viris discretis ; p. 1 18, gi. ad v. 
 cappis clausis. 
 
 2 See, e.g., Lyndwood, p. 32, gl. ad v. nostrae iitrisdictioni. 
 
 3 Lyndwood, p. 104, gl. ad v. fratrum nostrorum consilio. See also Job. 
 de Athon, p. 5, gl. ad v. el consensu. 
 
William Lyndwood 
 
 33 
 
 As we should expect, it is rarely that Lyndwood finds 
 any discrepancy between the archiepiscopal constitutions 
 and the system of the ius commune. It is, we may say, 
 his duty to harmonise them. The statutes of the inferior 
 legislator ought to be so construed that they may not 
 conflict with the statutes of the superior. For example, 
 a decretal of Boniface viil, which stands in the Sext, 
 ordains that a monk is not to act as a testamentary 
 executor without the consent of his superior — that is, his 
 abbot. But Archbishop Peckham has said that a monk 
 is not to act as a testamentary executor without the 
 consent of the ordinary. These two precepts may well 
 be read together ; both consents must be obtained. 
 Lyndwood, however, cannot tell us this without repeat- 
 ing once more that provincial legislation cannot derogate 
 from that ius papale which is the common law of the 
 church. 1 A natural desire to magnify his office would 
 have led him to expand rather than to contract the 
 sphere allowed to the legislation of the metropolitan 
 whose representative he was ; but to all seeming, this 
 impulse he does not feel, or resists. It cannot prevail 
 against his science, and his science is cosmopolitan and 
 papal. If there be conflict, or apparent conflict, the 
 words of the provincial statute must be whittled away, 
 not the words of the decretal. 
 
 There are other cases in which Lyndwood expresses 
 an outspokenly unfavourable opinion touching some of 
 the archiepiscopal statutes, and this in a book which 
 
 1 Lyndwood, p. 168, gl. ad v. ordinariorum : ' Requiritur enim licentia 
 abbatis, ut patet in d. c. Religiosus [c. 2 in Sexto, 3. 11]. . . . Requiritur 
 etiam licentia ordinarii ex vigore Indus statuti, quod in hoc non derogat iuri 
 papali sed accumulat, et hoc satis licet, ut notant Hostiensis et Iohannes.' 
 GL ad v. permittatur : 'Quod capitulum [c. 2 in Sexto, 3. 11] cum ius 
 commune contineat, huic constitution!, in quantum per earn illi iuri obviari 
 posset, debet praeferri, maxime cum inferior legi superioris derogare non 
 poterit.' It seems possible that here again Lyndwood has forgotten Peck- 
 ham's date. 
 3 
 
34 
 
 Canon Law in England 
 
 with many pretty words he will dedicate to Archbishop 
 Chichele. Of one statute he says that he thinks it 
 cannot be a provincial, but can only be a synodal con- 
 stitution, ' because in several points, so it seems to me, 
 it is contrary to the fundamental principles of law.' 1 On 
 another occasion he tells us that he is going to examine 
 one of Peckham's constitutions carefully, for Peckham 
 was a friar and may be suspected of unduly favouring 
 his fellow friars. 2 In a third case Stratford has decreed 
 that his suffragans are not to have more than a certain 
 number of apparitors, and has seemingly added that any 
 apparitors appointed in breach of this rule are ipso facto 
 suspended from the office of apparitor for ever. Where- 
 upon Lyndwood says : ' It seems to me that this punish- 
 ment is irregular, for an apparitor entering on the office 
 by the appointment of his superior commits no offence, 
 and where there is no offence there ought to be no 
 punishment.' 3 If there is any passage in which Lynd- 
 wood speaks in a similar tone of a decretal, I have 
 missed it. 4 It is not for a lawyer who is writing a 
 practical law-book to criticise the edicts of a sovereign 
 legislature, however bad they may be ; but the edicts 
 of a non-sovereign legislature he must criticise, for they 
 may well be so bad as to be invalid. 
 
 Lyndwood's task, however, is not very hard. On 
 the whole the archbishops have kept their statutes well 
 
 1 Lyndwood, p. 19, gl. ad v. synodali: 'Nec puto hanc [constitutional!] 
 processisse de decreto provincialis [conciliij, quia in pluribus, ut mihi 
 videtur, est contra fundamenta legum et iurium.' 
 
 2 Ibid. p. 228, gl. ad v. socios sacerdotes. 
 
 3 Ibid. p. 226, gl. ad v. perpetuo : ' Mihi videtur quod ilia poena est 
 irregularis.' 
 
 1 In quoting from an old writer he sometimes gives a passage which 
 tells of a time when the school of canonists still spoke of decretals with 
 some freedom ; e.g. p. 297, gl. ad v. ordinarii : ' Nec obstat secundum eum 
 [Hostiensem] quod textus ibi dicit a Sede Apostolica delegatis, quia hoc 
 dixit papa ut placeret exemptis, secundum eum.' 
 
William Lyndwood 
 
 35 
 
 within the limits that are set by the catholic system. 
 The series of provincial constitutions on which he com- 
 ments covers a period of two centuries. But we have 
 here no great bulk of law. It is a small thing to put 
 beside the Sext, which represents some sixty years of 
 papal activity. When, as Lyndwood does, we have cut 
 away from the constitutions their preambles or harangues, 
 what is left is by no means a weighty mass. Be it granted 
 that the importance of a law is not to be measured by 
 its length ; but, if we turn from quantity to quality, the 
 more carefully we examine these constitutions from 
 Lyndwood's point of view, the lower will be our estimate 
 of their importance. They are essentially 'bye-laws' in 
 the modern sense of that term. In Lyndwood's eyes 
 some of them do nothing at all, or very little ; they are but 
 the provincial publication of law that was already binding 
 on all the faithful. This publication of existing rules, if 
 humble, is still useful work ; it deprives the offender of 
 any hope that he may have of pleading his ignorance of 
 the edict that he infringes. Also in the middle ages 
 even the canons of a general council will but slowly 
 penetrate to country rectories, unless the provincial 
 prelates bestir themselves. There are, again, special 
 reasons for re-enacting old law which might not occur 
 to the mind of a modern layman. Whereas a secular 
 legislator is content if he can punish those who break 
 his edicts, the church desires to legislate not only for 
 the fortim externum but for the forum internum also. 
 She does not merely want to punish those who break 
 her laws ; she wishes to be able to say that they 
 have sinned in breaking them. She can control the 
 procedure of her public courts, but she can also control 
 the procedure of the confessional. Now in the forum 
 internum we can hardly assert that ignorance of a rule 
 is never an excuse for breaking it. Hence a more than 
 
36 
 
 Canon Law in England 
 
 usually strong desire on the part of ecclesiastical legis- 
 lators to deprive their subjects of the plea of ignorance. 1 
 In the second place, an archbishop by re-enacting an old 
 law as a provincial constitution is, as Lyndwood explains 
 to us, amplifying his jurisdiction. If a subject of one of 
 the suffragan bishops breaks a provincial constitution, 
 the archbishop can punish the offender, and a case 
 which under the common law would have gone to the 
 diocesan court may thus be brought before the arch- 
 bishop's official. 2 
 
 Then, again (to recur to the character of the 
 constitutions), there are numerous cases in which the 
 breakers of some rule of common law are threatened 
 with a new statutory punishment. This is legitimate 
 work for provincial councils. They ought to enforce the 
 ins commune, and, if need be, to arm it with new penal- 
 ties. Energy enough has been spent by Boniface of 
 Savoy and his suffragans in proclaiming against the 
 state the liberties of the church. This, when regarded 
 from the canonist's standpoint, is laudable energy ; but 
 Lyndwood has to confess that it has been spent in vain. 
 The constitutions of Boniface are so little observed that 
 they are hardly worthy of a gloss. 3 For the rest, very 
 little has been done ; for very little could be done. We 
 should be exceedingly unjust to Peckham and Winchel- 
 sea if we set their constitutions beside the statutes of 
 Edward i. It was not for them to be trenchant or 
 drastic ; it was not for them to be original. They could 
 
 1 See, e.g., the discussion by Lyndwood, p. 1 1, gL ad v. obscrvari, of the 
 question whether a man sins mortally by infringing a constitution. 
 
 2 Lyndwood, pp. 239, 240, g\. ad v. comfielenieni. 
 
 3 Ibid. p. 92, gl. ad v. contingit aliquando : ' Istud est statutum lionifacii 
 archiepiscopi, prout sunt plura alia in hoc libra inserta : et pro maiori parte 
 constitutiones ipsius Bonifacii sunt poenales et concernunt libertatem ecclesi- 
 asticam et eius violationem. Sed quia in paucis servantur hae constitu- 
 tiones, ideo circa earum glossationem brevius pertranseo.' 
 
William Lyndwood 
 
 37 
 
 not imitate Quia emptores or the Statute of Mortmain. 
 They were ' inferior ' legislators, and this at a time when 
 their superiors were legislating profusely. That many 
 of these provincial constitutions did good, that they were 
 the outcome of a zealous desire to correct faults and 
 remove abuses, we may be very ready to admit ; but, 
 when we look at them through the eyes of the English 
 canonist, we see that they contain little that is new, and 
 are only a brief appendix to the common law of the 
 universal church. 
 
 If for a moment we were to regard these provincial 
 constitutions as forming the whole or the main part of 
 the ecclesiastical law that was administered in England, 
 we should stand amazed at their meagreness. This 
 would be forced upon our notice by Lyndwood's pro- 
 cedure. He arranges them according to the plan 
 adopted by Bernard of Pavia in the Compilatio Prima 
 and sanctioned by Gregory ix. Of course we must 
 have five books, no more, no less — iudex, indicium, 
 clems, sponsalia, crimen. Then in each book we must 
 have as many as possible of the Gregorian titles. Thus 
 we shall begin with De Summa Trinitate, and end with 
 De Verborum Signijicatione, since our constitutions will 
 not afford us even one little text that would bear the 
 title De Regulis Juris. This is the convenient arrange- 
 ment for a book that is to be ancillary to the Decretals. 
 Lyndwood will try to make as many titles as possible. 
 But, do all he can, he can make only 75, while Gregory 
 has 185. In other words, the commentator finds that 
 nothing has been said by English legislators touching 
 more than half of the recognised topics of ecclesiastical 
 jurisprudence. Yet he does his best to multiply titles. 
 Thus he will have a rubric De Homicidio ; it will look 
 well. But what can be put under it? First, a constitu- 
 tion of Archbishop Edmund which enjoins that the 
 
38 Canon Law in England 
 
 living child shall be cut from the body of the dead 
 mother ; secondly, a constitution which merely declares 
 that a certain rule has been established by the fourth 
 Lateran Council, and is to be frequently proclaimed in 
 church — namely, the rule that if the patron of a church 
 kills or mutilates the rector, vicar, or clerk, he is to 
 forfeit the patronage, and his posterity to the fourth 
 generation are not to be received into a religious 
 house. 1 This is poor stuff of which to make a title 
 De Homicidio, poor stuff to set beside the parallel 
 title in Pope Gregory's book, which contains a wealth 
 of texts about voluntary and involuntary homicide. 
 Yet an English ecclesiastical court may any day 
 have before it a clerk accused of having slain his 
 neighbour, and will have to decide whether he is 
 punishable or no. One thing is clear : such a clerk 
 will not be judged out of the provincial constitu- 
 tions. 
 
 Then let us look at the fourth book, the book on 
 marriage. That book contains in all four chapters. 
 The parallel book in the Decretals contains 166. Now 
 marriage is not a matter that can be left to judicial 
 discretion or natural equity. It is pre-eminently a 
 matter about which there must be hard and fast rules. 
 In the middle ages the rules were but too numerous, but 
 too intricate. Suppose that we want to know the 
 English marriage law. We shall certainly not find it, 
 or any appreciable part of it, in the four texts that 
 Lyndwood has collected. The first draws attention to 
 the legislation of the fourth Lateran Council concerning 
 banns, 2 makes it a little more precise, and adds that 
 priests are to enjoin the faithful not to enter into secret 
 marriage engagements. The second, which deals with 
 the espousals of children, is simply an old decretal em- 
 'c 12, X. 5. 37. *c. 3, X. 4. 3. 
 
William Lyndwood 
 
 39 
 
 bodying a text from the Decretum. 1 The third returns 
 to the subject of banns, and directs the bishops to cause 
 the decretal Cum inhibitio (a canon of the fourth Lateran 
 Council 2 ) to be expounded in the vulgar tongue, and 
 observed by all priests, whether they be parish priests 
 or no, under pain of suspension for three years. In 
 several respects the rules about this matter seem to have 
 been made a little more severe against the priests ; but 
 the substance of the marriage law is left untouched. 
 The fourth constitution adds the greater excommunica- 
 tion to all the other penalties incurred by men or women 
 who contract marriage when they are aware of an impedi- 
 ment, and by priests who, without due licence, celebrate 
 marriage between non-parishioners, or who celebrate 
 clandestine marriages procured by force or fear. Now 
 all this may be very useful, but it is not the law of 
 marriage ; it is a little penal supplement to the law of 
 marriage. No one knew that better than Lyndwood, 
 and so he has told us where to look for the law of 
 marriage. At the opening of his fourth book he writes 
 thus : — 
 
 Here we might discuss what is marriage, whence it derives its name, 
 how it is contracted, where it was instituted, what are the causes of its 
 institution, what good flows from it, and what impediments there are to 
 it. Of all these matters Innocentius has treated, and yet more fully 
 Johannes Andreae. 3 
 
 In other words, there is no English law of marriage. 
 If you want to know whether you are old enough 
 to marry, whether you may marry your late wife's 
 second cousin or your godmother's daughter, whether 
 a religious ceremony is essential to a marriage, 
 whether you have good cause for a divorce, you will 
 
 1 c. un. C. 30. qu. 2 ; c. 2, X. 4. 2. The slight variations in the language 
 (such as urgente for urgentissima) are probably not intentional. 
 
 2 c. 3, X. 4. 3. 3 Lyndwood, p. 271, gl. ad v. matrimonii!))). 
 
40 Canon Law in England 
 
 find your answer in the his commune of the church, 
 and, in order to start you upon your investigations, 
 I refer you to the works of two Italian canonists of 
 high repute, one of whom was a layman, the other a 
 pope. 
 
 The general notion that we obtain from Lyndwood's 
 book about the theory of law dominant in our English 
 courts will be strengthened if we turn to the Pupilla 
 Octili} That little manual seems to have been compiled 
 by John de Burgh in 1385, at a time when he was 
 chancellor of the university of Cambridge. It was meant 
 to be an elementary book ; it was designed rather for 
 priests than for professed students of the law. There is 
 not much argument in it. The main rules of ecclesi- 
 astical law are briefly and dogmatically expounded. 
 Notice is taken of the legatine and of the provincial 
 constitutions, but a subordinate position is assigned to 
 them. For example, John first states all the cases that 
 he can remember in which a man is excommunicated by 
 the general law of the church, and then turns to the 
 cases in which the legatine and provincial constitutions 
 impose that penalty. 2 The idea which seems to govern 
 his procedure is that the his commune, the general law 
 of the church, is eked out at a few points by purely 
 English ordinances. About many of the topics that he 
 touches, notably the elaborate law of marriage, these 
 English ordinances are absolutely silent. There is no 
 talk of setting English practice against Italian theory. 
 About many a matter, great and small, there is no law 
 except the law that is to be found in the decretals. 
 Even the purely practical knowledge which will be 
 
 1 Pupilla Ocicli . . . edita impensis . . . Wilhelmi Bretton, with a pre- 
 fatory letter, dated prid. kal. Feb. 1 5 10. The book purports to have been 
 written in 1385. In 1384 John de Burgh was confirmed as chancellor of 
 the university (Cooper, Annals 0/ Cambridge, i. 128). 
 
 2 Pupilla Oculi, f. 55. 
 
William Lyndwood 
 
 4i 
 
 useful to the parish priest must be a knowledge of 
 rules which have no other source than the legislative 
 power of the popes. 
 
 And if the English provinces had but little enacted 
 law that was all their own, they had also but little 
 customary law that derogated from the ins commune. 
 Of custom the canonist, like every other medieval 
 lawyer, will speak civil words ; but when it comes to a 
 practical question he is by no means willing to admit 
 that a custom excludes those general rules which he is 
 in the habit of applying. Like his brethren of the 
 temporal courts he has been engaged in a grand work of 
 unification and centralisation ; and so he is wont to 
 throw on the custom a duty of strict proof. In the first 
 place, it must show itself to be a consuetudo praescripla, 
 one that has gained its right to exist by existing for a 
 long space of time. 1 Secondly, it must be reasonable, 
 and its reasonableness will be judged by men who are 
 professionally convinced of the reasonableness of the 
 rule from which it purports to be an exception. In the 
 details of divine service there was, indeed, a considerable 
 room for variety. 2 A long-continued custom, says Lynd- 
 wood, sanctions ' the use ' of Salisbury throughout the 
 province of Canterbury, though according to the ius 
 commune ' the use ' of the metropolitan church should be 
 the model. 3 But the possibility of disputes about ritual 
 did not fill any large space in the mind of the canonist, 
 who had many other things to think about, and outside 
 the ritualistic sphere we read of little law that has its 
 base in distinctively English custom. It is not an im- 
 portant rule that after Lady Day a rector has power to 
 
 1 Lyndwood, p. 25, gl. ad v. dc consuetudinc : 'Nam verbum con- 
 suetudinis simpliciter prolatum intelligitur de praescripta . . . maxime cum 
 sit contra ius commune.' 
 
 - Ibid. p. 102, gl. ad v. Thomae Martyris. 
 
 3 Ibid. p. 104, gl. ad v. Us urn Sarum, 
 
4 2 
 
 Canon Law in England 
 
 dispose of the tithes which will become due at the next 
 harvest ; but, as this English rule conflicts with the 
 common law, Lyndwood has to argue that it is not 
 unreasonable, to cite the doctors and allege an analogous 
 rule that is to be found in the feudal law of Lombardy. 1 
 The two really important English customs of which we 
 hear are that which, diverging from the ius commune, 
 imposes on the parishioners, and not on the rector, the 
 burden of maintaining the nave of the parish church, 2 
 and that which assigns to the spiritual courts an exclus- 
 ive jurisdiction in testamentary causes, and thus gives 
 the canonist more than he can ask for in the name of his 
 his commune? It were needless to say that he thinks 
 these customs eminently reasonable. On the other 
 hand, a custom to pay no tithes would be bad, 4 and, 
 when the temporal judges begin to talk of custom in 
 defence of their usurpations, then is brought into play 
 the text in the Decretum which tells us how Christ said 
 not ' I am the custom,' but ' I am the truth.' 5 But (to 
 leave the ground that is debated between church and 
 state) it will be sufficiently plain that the ecclesiastical 
 law that Lyndwood administered in his court was only 
 in a very slight measure law which in his eyes traced 
 its source to English customs, and that an advocate 
 would hardly have persuaded him to enforce any usage 
 which departed from ' the common law ' unless some 
 words of Innocentius or Hostiensis or Johannes Andreae 
 which expressly left room for such a custom could have 
 been produced. 
 
 It is probable enough that in the inferior courts, 
 
 1 Lyndwood, p. 25, gl. ad v. de consuetudine. He cites ' Auth. hie finitar 
 /c'.r, § si vasallus, col. decima.' The reference is to Feud. lib. 2, tit. 28, § 2. 
 - Ibid. p. 53, gl. ad v. rcparationc. 
 
 3 Ibid. p. 1 70, gl. ad v. insinuationem. 
 
 4 Ibid. p. 190, gl. ad v. arbitrantur ; p. 192, gl. ad v. consuetitdines. 
 
 5 c. 5, Dist. 8. 
 
William Lyndwood 
 
 43 
 
 the courts of archdeacons and rural deans, a law was 
 administered that might in some sort be called customary, 
 since its main rule was the rule of thumb. Lyndwood 
 tells us that the rural deans are usually ignorant of the 
 law, 1 and that the officials of the archdeacons are but 
 moderately learned. 2 He thinks that a three years' 
 study of the law may perhaps be enough to qualify a 
 man to practise as an advocate in the petty courts, 
 since important cases are not heard there. 3 Ruridecanal 
 law may have stood on a level with crowner's quest law, 
 and no doubt the church had her Shallows and her 
 Silences. In inferior courts you will get inferior law. 
 But crowner's quest law did not profess a right to be 
 something other than king's bench law ; to the best of 
 its poor ability it would attempt to be the law of West- 
 minster Hall. Even so we may believe that the archi- 
 diaconal and episcopal officials, though their libraries 
 would be very small when compared with the store of 
 ancient and modern books that Lyndwood perused, did 
 the best they could to make their law as good as that 
 which prevailed in the metropolitan court. In most 
 cases their sentences were subject to appeal, and, if they 
 were ambitious men, they might hope that some day a 
 reputation for learning would secure their promotion to 
 a higher seat. But at any rate of an endeavour to set 
 up a schismatical law of their own we must hold them 
 guiltless, until so serious a charge has been seriously 
 made. We must concern ourselves rather with the 
 ideal that our spiritual judges kept before their minds 
 than with the results that they achieved. For ignor- 
 
 1 Lyndwood, p. 79, gl. ad v. andire praesumant : 'quia, ut communiter, 
 tales decani rurales sunt imperiti et iuris ignari.' 
 
 2 Ibid. p. 81, gl. ad x. committatur : 'tales officiales modicam peritiam 
 in iure habent.' In the previous sentence Archiepiscopus should be 
 Archidiaconus. 
 
 3 Ibid. p. 76, gl. ad v. per triennium. 
 
44 
 
 Canon Law in Englana 
 
 ance, stupidity, perversity, some allowance, and perhaps 
 a large allowance, must be made ; but that judges 
 should be ignorant, stupid, perverse, can never be a 
 legal principle. 
 
 Again, we shall not find in Lyndwood's book any 
 English ' case law,' any ' case law ' of our English ecclesi- 
 astical courts. If any decisions are referred to, they will 
 be decisions of the Rota. 1 Had his glosses come down 
 to us without the text that they enshrine, we might have 
 read page after page without finding any proof of his 
 Englishry. What his predecessors in the provincial court 
 may have done has no interest for him ; their judgments 
 are not for one moment to be set beside the Sext or 
 the Clementines, or even beside the opinions of 'the 
 doctors,' the French and Italian doctors, William de 
 Montlezun and Henry de Bohic, Petrus de Ancharano 
 and Antonius de Butrio. His science was a science 
 to which for two centuries past Englishmen had added 
 next to nothing, but which they had dutifully accepted 
 at the hands of foreigners. And yet he belonged to a 
 nation which was producing the Year Books and the 
 most thoroughly national system of temporal law that 
 the medieval world could show. But whereas the 
 English state was an independent whole, the English 
 church was in the eyes of its own judges a dependent 
 fragment whose laws had been imposed upon it from 
 without. 
 
 It seems to me, then, that if Lyndwood had been 
 
 1 Lyndwood, p. 78 : ' Et hoc modo procedit dictum Dominorum de Rota 
 in conclusione 63 et 64' ; p. 82 : ' Et hoc tenent Domini de Rota sua con- 
 clusione 328 et sua conclusione 309'; p. 118: ' Et haec est conclusio 
 Dominorum de Rota conclusione 562 ' ; p. 144 : ' Sed Domini de Rota con- 
 clusione 168 (til. 188) dicunt ' ; p. 147 : ' Dominicus [de Sancto Geminiano] 
 . . . dicit quod sic, et hoc tenent, ut asserit, Domini de Rota conclusione 
 301.' Joh. de Athona, p. 17: ' Et sic fertur determinatum per omnes 
 auditores palatii contra religiosos Sancti Bartholomaei Londinensis.' 
 
William Lyndwood 
 
 45 
 
 asked whether ' the canon law of Rome ' was binding 
 upon him and the other ecclesiastical judges in England, 
 he would in the first place have excepted to the form 
 of the question. He would have said something of 
 this kind : — 
 
 I do not quite understand what you mean by ' the canon law of 
 Rome.' If you mean thereby any rules which relate only to the 
 diocese of which the pope is bishop, or to the province of which the 
 pope is metropolitan, then it is obvious enough that we in England 
 have not to administer the canon law of Rome. But even if this be 
 your meaning, you must be careful to avoid a mistake. I, whatever 
 else I may be, am the official of a papal legate ; the archiepiscopal 
 court, over which I preside, is the court of a papal legate. It is the 
 duty of a legatine court to copy as nearly as may be the procedure of 
 the Roman court. The mos et stylus Curiae Romanae are my models. 
 They are my excuse, or rather my warrant, if, for example, I cite any 
 of the archbishop's subditi to appear before him ' wheresoever he shall 
 be within hfs province,' without naming any particular place for their 
 appearance. In so doing, I am exercising a legatine and Roman 
 privilege, and am administering specifically Roman rules. 1 However, 
 I very much fear that this is not your meaning, that what you call the 
 canon law of Rome is what I call the ius commune of the church, and 
 that you are hinting that I am not bound by the statutes that the popes 
 have decreed for all the faithful. If that be so, I must tell you that 
 your hint is not only erroneous but heretical. That you will withdraw 
 it I hope and believe, for otherwise, though we are sincerely sorry 
 when we are driven to extremities, the archbishop may feel it his painful 
 duty to relinquish you to the lay arm, and you know what follows 
 relinquishment.' 2 Your case, though sad, is not unprecedented. The 
 test that I must exact of you and others suspected of Lollardy has 
 
 1 Lyndwood, p. 82, gl. ad v. loco : ' Pro investigatione veritatis huius 
 quaesiti debes scire quod archiepiscopus Cantuariensis est legatus sedis 
 apostolicae natus, sicut legitur [c. I, X. 1. 30]. Et ad legatos dicti sedis 
 spectat ut in citationibus et aliis formis sequantur stylum curiae Romanae 
 . . . et quod mos curiae Romanae sequendus est notatur bene per Hosti- 
 [ensem] . . . et ad legatum pertinet in citationibus se conformare stylo 
 curiae Romanae, quod ad instar papae, cuius vices gerit, poterit ad locum 
 indeterminatum citare.' 
 
 2 Lyndwood, p. 296, gl. ad v. sententialiier declarelur, sliows an honour- 
 able desire to save even the relapsed heretic from the flames. Hut still 
 1 aw is law. 
 
4 6 
 
 been already formulated. It is this : you must declare that every 
 Christian is bound to obey all the constitutions and ordinances con- 
 tained in the Decretum, the Decretals, the Sext, and the Clementines, 
 in such wise as obedience is demanded for them by the Roman 
 Church. 1 
 
 Though even as an exercise of historical imagina- 
 tion, we have no wish to see divers reverend, noble, and 
 learned commissioners playing the passive part in an 
 ' act of faith,' we must look at one more sentence in the 
 famous Report : — 
 
 The constitutions of the archbishops, from Stephen Langton down- 
 wards, and the canons passed in legatine councils under Otho and 
 Ottobon, ratified by the national church under Archbishop Peckham, 
 were finally received as the texts of English church law, under the 
 hands of the commentators, John of Ayton and William Lyndwood. 
 These commentators introduced into their notes large extracts from 
 and references to both the canon and civil law of Rome, but these 
 were not a part of the authoritative jurisprudence. 2 
 
 That this may be true of what happened ' finally ' is 
 very possible, for the world did not come to an end at 
 the Reformation. Nor can anyone dispute that the 
 legatine and provincial constitutions were the most im- 
 portant 'texts of English church law,' if by English 
 church law be meant that part of the law administered 
 in the English church courts which was merely English. 
 Nor, again, is any statutory authority to be attributed 
 to the notes of our two glossators ; they are but the 
 notes of learned men. Lastly, I believe that they would 
 have been quite content to put the civil law of Rome, 
 the law of Justinian's books, on a pretty low level. 
 Lyndwood advises the young canonist to study only 
 
 1 See the test applied to Richard Wyche, Fasciculi Zisaniorum, 504. 
 As to his trial, see Report of the Ecclesiastical Courts Commission, 1883, 
 vol. i. p. 61. 
 
 - Report of the Ecclesiastical Courts Commission, 1883, vol. i. p. xviii. 
 
William Lyndwood 
 
 such portions of the ius civile as are referred to in the 
 gloss on the canon law j 1 and John of Ay ton lays down 
 what seems to have been the orthodox doctrine when 
 he says that a lex imperialis which favours the church 
 is to be received, unless it has been rejected by the 
 apostolic see, while a lex imperialis which makes 
 against the church is to be rejected, unless the apostolic 
 see has approved it. 2 But, for all this, the contrast 
 between the royal commissioners and Lyndwood is start- 
 ling. The last is put first and the first last ; the inferior 
 prelate takes the place of the pope. In Lyndwood's 
 view the decretals are not merely ' a part of the authori- 
 tative jurisprudence,' but its supremely authoritative part. 
 Next in order of rank stand the legatine constitutions. 
 To the third place we admit the provincial constitutions, 
 provided that they do not contravene the laws enacted 
 by popes or legates a latere. If Lyndwood had supposed 
 that the Provinciate would serve as a manual for those 
 who had inverted this natural order, he would have said 
 — so it seems to me — that the end not merely of all 
 sound theology, but of all rational jurisprudence, was 
 at hand, and sooner than take an unwilling part in 
 the impending catastrophe, he would have burnt his 
 book. 
 
 Those, therefore, who maintain that the English 
 ecclesiastical courts held themselves free to accept or 
 reject the laws that were found in corpore Decretorum 
 et Decretalium? should be prepared to treat Lyndwood's 
 book as an exception, an aberration ; for what we find 
 there is a stark papalism, which leaves little enough 
 
 1 Lyndwood, p. 76, gl. ad v. et civile : 1 Puto quod sufficit quod talis 
 audiverit ius civile secundum remissiones quae ponuntur in glossa iuris 
 canonici, et sine quibus iura canonica, praesertim in iudicialibus, non 
 possunt bene intelligi nec sciri.' 
 
 2 Joh. de Athon, pp. 76, 77. 
 
 3 Lyndwood uses this phrase on p. 147, gl. ad v. primitus amoveri. 
 
4 8 
 
 Canon Law in England 
 
 room for local custom, and absolutely no room for any 
 liberties of the Anglican church which can be upheld 
 against the law-giving power of the pope. Now we 
 must not judge a school by a single book, even though 
 it be almost the only book that the school produces, 
 and we must not judge a long age by one critical 
 moment. The extremest of Lyndwood's opinions may 
 perhaps have been shared by few. We may believe 
 that in 1430 there were many Englishmen, and some 
 English canonists, who would openly and as a matter 
 of principle have taken the part of a general council 
 against a pope. Also it may be true that, owing to 
 one cause and another, the time at which Lyndwood 
 wrote was the time of all times at which orthodox 
 Englishmen were papally minded. A discussion of 
 these matters might take us far afield, and would, so 
 I think, be irrelevant in the present context. Let us 
 lay very little stress upon anything in Lyndwood's book 
 that bears on the great open question of his day. About 
 such a question a man's opinion, a nation's opinion, will 
 be determined by multifarious forces and, it may be, 
 by motives that are none the less urgent because they 
 are not avowed — by international jealousies, party 
 struggles, court intrigues. 1 Also we may remember 
 that in the fifteenth century a lawyer might prostrate 
 himself before the papal omnipotence and yet mean but 
 little by the more extravagant of his phrases. The 
 less the popes could do in the world of fact, the larger 
 were the powers that might be safely attributed to 
 them by theorists who were in search of that juristic 
 desideratum, an all-competent sovereign. Our canonists 
 
 1 Gascoigne {Loci e Libro Veritatum, p. 17) charges with inconsistency 
 the bishops wlio supported Chichele in his resistance. They had been 
 saying that every pope is above a general council ; then they turned round 
 and said plainly that a general council is above the pope. 
 
William Lyndwood 
 
 49 
 
 obtain an intellectual luxury at a cheap rate when they 
 place the plenitudo potestatis in a pope whose bulls, if 
 like to be troublesome, will never reach their hands, 
 but will be impounded by a secular power for whose 
 doings they are not responsible. But what we ought 
 to study if we would know our ecclesiastical courts, is 
 the method and scheme of Lyndwood's book, more 
 especially the theory that it applies when it determines 
 the comparative authority of provincial constitutions and 
 papal decretals. Here, if anywhere, we ought to see 
 professional tradition, the tradition of the court over 
 which Lyndwood presides ; for questions about the 
 relation borne to each other by the various sources of 
 law must be frequently taking concrete shapes and 
 crying aloud for decision. Of course it is just possible 
 that even here Lyndwood is innovating, that he is 
 attacking the general opinion of his predecessors or 
 turning it inside out. If so, he is accomplishing his 
 revolutionary design in a marvellously cool and dis- 
 passionate manner. The Provinciale does not wear the 
 air of a book that is assailing old beliefs or a rooted 
 course of practice. Nothing could be less polemical. 
 It seems even to shirk the burning points of current 
 controversy. Lyndwood is writing an elementary law- 
 book for beginners, and it is not in any argumentative 
 disquisitions about legislative power but in the practical 
 solution of everyday problems that his absolute sub- 
 mission to the ius papale becomes patent. He does 
 not set himself to demonstrate in solemn form that an 
 English council cannot derogate even from a legatine 
 constitution ; it does not seem to enter his head that 
 anyone will dispute so self-evident a proposition. 
 
 But the time for a defence of Lyndwood's legal 
 orthodoxy will have come when his heterodoxy — that 
 is, his departure from an established Anglican tradition 
 
5o 
 
 Canon Law in England 
 
 — has been asserted. In the meantime I cannot but 
 think that his work casts a heavy burden of proof upon 
 the theory which would paint our English ecclesiastical 
 courts selecting the decretals that they will accept, or 
 which would ascribe to the three papal law-books ' great 
 authority ' indeed, but no statutory force. Has that 
 burden of proof ever been borne? Has an attempt 
 been made to bear it ? 
 
II. CHURCH, STATE, AND DECRETALS 
 
 In much of what has been written by historians and 
 said by judges touching the fate of ' the Roman ' or 
 'the foreign' canon law in England there seems to me 
 to be a tendency towards the confusion of two proposi- 
 tions. The first is this : that in England the state did 
 not suffer the church to appropriate certain considerable 
 portions of that wide field of jurisdiction which the 
 canonists claimed as the heritage of ecclesiastical law. 
 The second is this : that the English courts Christian 
 held themselves free to accept or reject, and did in 
 some cases reject, ' the canon law of Rome.' The truth 
 of the first proposition no one doubts ; the truth of the 
 second seems to me exceedingly dubious. At any rate 
 we have here two independent propositions, and we do 
 not prove the second by proving the first. The one 
 deals with the extent of the field occupied and cultivated 
 by ecclesiastical justice, the other with the course of 
 agriculture. By proving that at the present time and 
 in our own country the bishops of the Roman church 
 have nothing that ought to be called jurisdiction, we 
 should not prove that they do not think themselves 
 bound by the canon law of Rome, nor even should we 
 prove that they arc not inducing their flocks to obey 
 that law. To take another illustration, we must neither 
 praise nor blame the English church for the law of 
 divorce that is being administered to-day in the High 
 Court of Justice, though not very long ago all matri- 
 
52 
 
 monial causes belonged to the spiritual forum. We 
 must not attribute to the church what is clone by the 
 state. Is it not even possible that the submissiveness 
 of the ecclesiastical courts to the canon law of Rome 
 varied directly rather than inversely with the strength 
 and aggressiveness of their secular rivals ? 
 
 An example of the facile transitions that are made 
 from the one to the other proposition I will take from 
 the first place to which we should all look if we would 
 learn anything about the law of the English church in 
 the middle ages. I need not say that I mean the 
 Historical Appendix which Ur. Stubbs added to the 
 ' Report of the Ecclesiastical Courts Commission,' nor 
 need I say that I regard that discourse with reverence 
 and admiration. In it there is a section entitled The 
 Lazv Administered in the Courts of the English Church 
 between the Conquest and the Reformation} That is the 
 very matter about which we would fain know something; 
 but we mentally underline the word Church. For a 
 while all goes well. We find a strong statement of 
 my second proposition. The papal law-books were 
 regarded 'as manuals, but not as codes of statutes.' 
 ' Attempts to force on the church and nation [again we 
 underline the word church\ the complete canon law of 
 the middle ages were always unsuccessful.' No doubt, 
 we say to ourselves, some proof, some illustration of 
 this will come. We approach yet nearer to the focus. 
 
 The laws which guided the English courts up to the time of the 
 Reformation may, then, be thus arranged : ( i ) the canon law of Rome, 
 comprising the decretum of Gratian; the decretals of Gregory ix., 
 published in 1230: the Sext, added by Boniface vm. ; the Clemen- 
 tines, issued in 1318 ; and the Extravagants, or uncodified edicts, of 
 the succeeding popes. A knowledge of these was the scientific 
 equipment of the ecclesiastical jurist, but the texts were not authori- 
 tative. . . . 
 
 1 Ecclesiastical Courts Commission , 1883, i. 24. 
 
Church, State, and Decretals 53 
 
 That is the exact point ; these texts ' were not authori- 
 tative.' We eagerly turn to the next sentence, assured 
 that the proof or the illustration is coming. ' The 
 English barons and the king at the Council of Merton 
 refused to allow the national law of marriage to be 
 modified by them [i.e. by these papal texts], and it was 
 held that they were of no force at all when and where 
 they were opposed to the laws of England.' So no 
 more need be said of the canon law of Rome. 
 
 It would seem, then, that, after all, we have been 
 misunderstanding our guide. He has been thinking of 
 one thing, we of another ; he of the extent of the field, 
 we of the course of agriculture ; he of the state, we of 
 the church. 
 
 For what is the good old story? 1 In the twelfth 
 century the church in England and elsewhere became 
 definitely committed to the doctrine that a marriage 
 between two persons might legitimate their already 
 born children. This doctrine was unacceptable to the 
 king's court. As a general rule, when in that court a 
 question arose as to a person's legitimacy, it was sub- 
 mitted to the ecclesiastical judge for his decision. Owing 
 to the divergent theories of the two courts, difficulties 
 arose. The temporal justices, in order to protect their 
 own rule, took to asking the bishops to answer in ex- 
 press words the narrow question whether a person was 
 born before or after the marriage of his parents. Then 
 at Merton the bishops, urged on by Grosseteste, said 
 that they would not and could not answer this question, 
 since so to do would be contrary to the common form 
 of the church : in other words, by so doing they would 
 be participating in the administration of a rule that was 
 opposed to the church's teaching. Thereupon they 
 
 1 It is excellently told by Ur. Makower, Const. Hist, of the Church of 
 England, pp. 422, 423. 
 
54 
 
 asked the barons to change the English law of inherit- 
 ance, and received the well-known reply. The baronial 
 Nohimus was preceded by an episcopal Nolumus ct non 
 possuimis. The result was that each party maintained 
 its own ground. In a short while, however, the state 
 discovered that in this instance it could do well enough 
 without the bishops' help, and, instead of sending the 
 objectionable question to them, sent it to a jury of lay 
 folk. The honours were divided ; but the state, as by 
 this time its habit was, took the odd trick. 
 
 Here, then, we may see a collision between the 
 claims of the church and the claims of the state ; but 
 there was no collision between the law of the church of 
 England and the law of the church of Rome. Quite 
 the contrary. The principle for which the English 
 bishops struggled was part and parcel of the canon law 
 of Rome. That they conceived it to be the law of the 
 church merely because one supreme pontiff had decreed 
 it and another had included it in his brand-new statute 
 book I am not saying ; still, as a matter of fact, the rule for 
 which they contended was the rule laid down in a famous 
 decretal. 1 Therefore this episode in the border warfare 
 between church and state throws no ray of light on the 
 nature of the law administered by the courts of the 
 English church, except in so far as it shows that at one 
 particular point the law of that church did not differ 
 from the law of the church of Rome. Of course, if any- 
 one were to prove that after the day at Merton the 
 courts Christian, when acting within the sphere in which 
 they were free to act, rejected the theory of legitimation 
 by subsequent marriage, then indeed proof would have 
 been given of a case in which the Anglican swerved from 
 the Roman canon law. Now there was a sphere within 
 
 1 Tan/a est vis, c. 6, X. 4. 17 : Alexander ill. to the bishop of Exeter. 
 Grosseteste cites this decretal in his letter to Raleigh (Epistolae, p. 78). 
 
Church, State, and Decretals 55 
 
 which the English church was at liberty to administer 
 a law of legitimacy without coming into contact with the 
 secular power. A man who was not legitimate could not 
 be ordained without a dispensation. What did the 
 English bishops in this case? It seems hardly doubtful 
 that they continued to administer that canonical and, if 
 we please so to call it, Roman rule which the English 
 barons had refused. John of Ayton treats legitimation 
 by subsequent marriage as an important practical matter. 1 
 He has a long discussion of a particular case. A clerk 
 in minor orders marries the woman who has already 
 borne him a son. Is that son legitimated, or are we to 
 say that fornication, when committed by a clerk, is so 
 grave a crime that the progeny of this damnatus coitus 
 are not naturales fitii, but mere spurii, who are incap- 
 able of legitimation ? Such a question would have no 
 meaning in England were it not that, despite all that 
 happened at Merton, the English church within the 
 province that is conceded to her is retaining a rule which, 
 however dissonant it may be from the law of the English 
 temporal courts, is in perfect harmony with the decretals. 
 John of Ayton does not stand alone. John de Burgh 
 more than once tells us how bastards are legitimated by 
 the marriage of their parents. 2 Unless, then, these 
 English canonists mislead us, the old ecclesiastical rule 
 was enforced in England until the Reformation or some 
 yet later time. 3 And here it may not be impertinent to 
 ask whether the law which excluded bastards from 
 orders has ever been definitely repealed, and whether 
 our English bishops are actually enforcing it. If a 
 
 1 Joh. de Athona, p. 38, gl. ad v. contractu fnisse. 
 
 2 Pupilla Oculi, ed. 1 5 10, ff. 76, 1 1 1 d. 
 
 8 Late in the seventeenth century Godolphin, Repertorium Canonicum 
 (ed. 1680), p. 487, wrote thus : ' If a man hath issue by a woman, and after 
 marry the same woman, the issue by the common law is bastard, and mttlier 
 [i.e. legitimate] by the ecclesiastical law.' 
 
56 Canon Law in England 
 
 negative answer must be given to both these questions, 
 then I think that we have here a valuable hint as to 
 some of the less obvious among the effects of the pro- 
 testant Reformation. An old rule of catholic canon law 
 was forgotten or ignored, though no one could have 
 laid his finger on any text by which it was expressly 
 abrogated. 1 
 
 But, to return to the middle ages, this tale of ' special 
 bastardy' I take to be a typical tale, illustrative of a 
 common course of events. Of that debatable land which 
 is neither very spiritual nor very temporal the state 
 seizes a portion. The portion that it seizes it cultivates 
 after its own fashion, with but little regard for the canon 
 law of Rome, or for canon law of any sort or kind. 
 The portion that is left to the church is cultivated by 
 the church after its own fashion, with little, if any, regard 
 for the secular law, but with great regard for — nay, in 
 obedience to — the papal statute books. 
 
 Never in England, nor perhaps in any other country, 
 did the state surrender to the ecclesiastical tribunals the 
 whole of that illimitable tract which was demanded for 
 them by the more reckless of their partisans. Every- 
 where we see strife and then compromise, and then 
 strife again, and at latest after the end of the thirteenth 
 century the state usually gets the better in every com- 
 bat. The attempt to draw an unwavering line between 
 ' spiritual ' and ' temporal ' affairs is hopeless. Such it 
 will always be if so-called ' spiritual courts ' are to exer- 
 
 1 Ayliffe, Parergon, pp. 41, 208, still speaks as though bastardy were a 
 disability. Blackstone, Commentaries, i. 459, says : ' But this doctrine seems 
 now obsolete.' The modern text-books of ecclesiastical law seem to treat it 
 as obsolete, but I cannot find that it has been repealed or judicially rejected. 
 In recent times the document which described a bishop's confirmation stated 
 that the elect had been found to be ' of a free condition, born in lawful wed- 
 lock, of due age, and an ordained priest.' See the report of The Queen v. 
 Archbishop of Canterbury, State Trials, New Series, vi. 414. 
 
Church, State, and Decretals 57 
 
 rise any power within this world of time. So ragged, 
 so unscientific was the frontier which at any given 
 moment and in any given country divided the territory 
 of secular from the territory of ecclesiastical law that 
 ground could be lost and won by insensible degrees. In 
 France, for example, under cover of some pretty fictions 
 the clergy were slowly deprived of the privilegium fori, 
 and the office of deciding whether a marriage was valid 
 passed in fact, though not in theory, into the hands of 
 the secular courts. We have only to consider the in- 
 curable vagueness of such phrases as ' testamentary 
 causes' and 'matrimonial causes,' and we shall under- 
 stand how easily one small annexation might follow 
 another without any pitched battle, any shout of triumph 
 or wail of defeat. The rulers of the church, therefore, 
 had to tolerate much that they could not approve, or at 
 any rate much that they could not approve in the name 
 of the church. They could give and take without any 
 sacrifice of first principles. No doubt there were prin- 
 ciples for which they would have professed a willingness 
 to die after the fashion of St. Thomas ; but they were not 
 called upon to shed their blood for every jot and tittle of 
 a complex and insatiable jurisprudence. Popes, and 
 popes who were no weaklings, had taught them by 
 precept and example that when we are dealing with 
 temporal power we may temporise. 
 
 If, therefore, we find, as we easily may, that the 
 English secular courts are keeping to themselves certain 
 matters which, according to a decretal, should be left to 
 the spiritual courts, and if we find, as we easily may, 
 that the English bishops are not persistently protesting 
 against this usurpation, we must neither at once accuse 
 them of a neglect of duty nor at once credit them with 
 an Anglican canon law which differs from the Roman. 
 The Roman catholic bishops in modern England have 
 
58 
 
 Canon Law in England 
 
 to ' tolerate ' (is not that the correct phrase ?) many legal 
 arrangements that they cannot approve. They still, so 
 I read, hold it to be the law of the church that clerks 
 should not be sued in secular courts, and in this country 
 no concordat has suspended this rule ; but they make no 
 endeavour to enforce it in all its generality. 1 If we either 
 blamed them as careless shepherds or praised them for 
 an incipient Anglicanism, I feel sure that in either case 
 we should do them an injustice. Dominus papa scit et 
 tolerat. But this is no new state of affairs. In every 
 century from the twelfth onwards there has been a good 
 deal of ecclesiastical law that has not been enforced. At 
 times a good deal of temporal law has been in no better 
 case, as witness certain English statutes about ' pro- 
 visors.' The rudiments of the art of bargaining have 
 long been familiar to church and state. More is de- 
 manded than is expected, and what is obtained is taken 
 upon account. 2 
 
 Were we to institute a comparison between the 
 bargain struck in England and the bargains struck else- 
 where, and to suppose this comparison to be made in 
 the year 1300 or thereabouts, we should find that at two 
 points the English church had been singularly success- 
 ful. In the first place, the sentence of excommunication, 
 when pronounced by the ecclesiastical courts, was en- 
 forced by the secular power with mechanical regularity 
 and almost as a matter of course. The excommunicate 
 was disabled from suing in the temporal courts : the 
 
 1 Kirkpatrick, The O Kccffe Trial, pp. 390, 397, 530. Cardinal Cullen : 
 ' In countries where there is no concordat ... the holy see has declared 
 that breaches of ecclesiastical immunity are to be overlooked.' Mr. Purcell : 
 ' Tolerated and winked at ?' The Cardinal : ' Yes.' 
 
 2 Some words of Innocent III. (c. 18, X. 3. 5), which Lyndwood (p. 208) 
 quotes, put us at the right point of view : ' Quum multa per patientiam 
 tolerentur, quae, si deducta fuerint in iudicium, exigente iustitia non de- 
 beant tolerari.' 
 
Church, State, and Decretals 59 
 
 contumacious excommunicate was thrown into gaol. 1 In 
 the second place, the canonists had acquired what they 
 hardly aspired to elsewhere : namely, an exclusive juris- 
 diction over testamentary causes and over the distribu- 
 tion of the goods of intestates. On the other hand, 
 there were two points at which the English church had 
 been singularly unsuccessful. The privilegium fori was 
 confined within unusually narrow bounds, and secular 
 justice kept a tight hold over all disputes that touched 
 ecclesiastical patronage. About these two points a few 
 words should be said. W e are concerned to see whether 
 there has been simply a struggle between church and 
 state, or whether the church of England has been 
 departing from the church of Rome and evolving a 
 jurisprudence of her own. 
 
 The full extent of the immunity from secular justice 
 that was claimed for the clergy was this : that no criminal 
 charge was to be made and no ' personal ' action brought 
 against a clerk in any temporal court. We need not 
 here discuss the exact meaning of the term ' personal ' 
 when used in this context. The contrast to it is 'real,' 
 and the canonists admitted that actions in which the 
 ownership of land was directly in debate, at all events if 
 the land was not claimed by a church as free alms, were 
 within the cognisance of the secular forum. It is un- 
 necessary for us to attempt an exact delimitation of the 
 personal from the real (Bishop Grosseteste found that 
 this task was not easy), for in Edward i.'s day the king's 
 justices had for some time past persistently traversed 
 the assertion that in personal actions clerks enjoy the 
 privilegium fori? What had been conceded to them 
 
 1 Hinschius, Kirche?irecht, v. 391 ff., for Germany; Viollet, Bibl. de 
 VEcole des chartes, xxxi. 174 ff., for France. 
 
 2 Grosseteste, Eftistolae, 222, would allow the secular court to entertain 
 a possessory action for land, e.g. the novel disseisin, against a clerical de- 
 
6o 
 
 was a 'benefit of clergy' in cases of felony. In our 
 eyes this may seem a large, to the high churchmen of 
 the thirteenth century it seemed an unduly small, con- 
 cession. The list of felonies was brief, and if there was 
 a charge of any minor offence, or if there was a civil 
 action arising from contract or delict, the clerical de- 
 fendant was to enjoy no privilege. In this respect the 
 English differed markedly from the French settlement. 
 In France nearly the whole of the ecclesiastical claim to 
 a privilegiwm fori was allowed, though with admirable 
 ingenuity the French lawyers of a later day practically 
 withdrew what they nominally granted, and brought both 
 the serious and the petty offences of the clergy within 
 the range of the state's law. 
 
 The English settlement was the result of a severe 
 struggle in the thirteenth century. To all seeming the 
 high churchmen had on their side the letter of what 
 might have been called a concordat, or at any rate the 
 letter of the concession which Henry n. had been com- 
 pelled to make after Becket's death. 1 Nevertheless we 
 soon find that clerks are being sued in personal actions 
 before the royal court, and Bracton tells us that this is 
 being done every day. 2 Towards the middle of the 
 century a storm that had long been brewing burst in 
 vehement protest. A large party among the clergy 
 complained that the church was deprived of her liberties. 
 Grosseteste seems to have been their leader and spokes- 
 man. It is not unlikely that smouldering discontent 
 had been fanned into flame by the appearance of Pope 
 Gregory's book, just as a hundred years before a similar 
 
 fendant. The classification of such an action as 'real' is in harmony with 
 English ideas. The ' reality ' of the novel disseisin was one of the points 
 disputed between Pierre de Cugnieres and the bishop of Autun (Biblioih. S 
 Pa/rum, Paris, 1589, vol. iv. col. 121 1). 
 
 1 Diceto, i. 410. 
 
 2 Bracton, f. 401/; : ' secundum quod videri poterit tota die.' 
 
C Jut nil, State, and Decretals 61 
 
 movement was stimulated by the Decretum. 1 At length 
 a serious measure was taken ; at least for a moment it 
 looked serious. Archbishop Boniface and his suffragans 
 uttered their mind in canons which were meant to be 
 strong and in truth were noisy. They demanded the 
 privilegium fori in all its amplitude. If a clerk was 
 sued in a personal action before the bishop's court, the 
 bishop was to refuse to appear before the king's judges 
 and give an account of his doings, and the thunders of 
 the church were to be dispensed in defence of his re- 
 fusal. 2 But our bishops were reckoning without their 
 pope. They sent their canons to him for confirmation. 
 He thought this a very proper request, and urged the 
 king to give way, but he would not confirm the canons. 3 
 A few years afterwards Archbishop Peckham was in 
 the sorry plight of not knowing whether these canons 
 were or were not in force, since 'it was said' that an 
 appeal to Rome had been made against them. 4 Thence- 
 forth the loudest of them were useless canons ; the state 
 ignored them, and Lyndwood could hardly bring him- 
 self to give them a gloss. 5 
 
 Now we may see here a victory won by the state 
 over the church. One of the main claims that have 
 been put forward in the name of the church is repudi- 
 
 1 Ann. Burton. 254, 362, 424 ; Mat. Par. Chron. Mai. vi. 357; Grosse- 
 teste, Epist. 214-220. 
 
 - Const. Bonifacii, Wilkins, Concilia, i. 747 ; Lyndwood, Appendix, 
 p. 15. 
 
 3 Foedcra, i. 424. For the king's appointment of proctors who are to 
 urge his appeal against the constitutions, see Prynne, Records, ii. 9S3, 990. 
 
 4 Const. Jo. Peckham, Wilkins, Concilia, ii. 51 ; Lyndwood, Appendix, 
 p. 26: 'Tertio vero recitari volumus concilium de Lambeth, quod . . . 
 Bonifacius cum fratribus et coepiscopis sui temporis noscitur salubriter 
 edidisse, ut circa ipsum, quod dicitur fuisse appellatione suspensum, qualiter 
 procedi debeat videatur. 1 
 
 5 Lyndwood, p. 92. The passage is quoted above, p. 36. Some bishops 
 of Edward i.'s day were still maintaining the old claim ; see Prynne, Records, 
 iii. 367 ; but the battle had been decided. 
 
62 
 
 Canon Law in England 
 
 ated by the state for good and all. It was none the 
 less a victory because it was secured by the inaction 
 of the pope at a critical moment, nor because that in- 
 action may have been induced by means that were none 
 too creditable. Neither Henry nor Urban are we de- 
 fending. As to the English bishops, let us find some 
 pity for them, some pity even for the blustering Boniface. 
 They tried to do their duty, but were snubbed by their 
 official superior. They tried to put in force ' the canon 
 law of Rome,' or, as they would have said, the law of 
 the universal church, and were taught that if there is a 
 time for speech there is also a time for silence, and that 
 zeal, even though it be a zeal for decretals, should be 
 tempered by political discretion. Here, then, we have 
 one eminent instance in which the canon law of Rome 
 failed to obtain a home in England ; but surely there is 
 no reason why we should accuse our national church of 
 being party or privy to the slight that was thus put 
 upon the ins papale} 
 
 The fight for the advowson had been lost and won 
 at a much earlier time. While it lasted it must have 
 been sharp. About half those texts in the Gregorian code 
 that deal with the right of patronage are decretals 
 sent in the twelfth century to English bishops, and the 
 classical passage which tells how a cause which touches 
 this rio-ht belongs exclusively to the ecclesiastical forum 
 is a decretal addressed by Alexander m. to our 
 Henry n. 2 But, in spite of Alexander and Becket, 
 Henry established as English law the very opposite of 
 
 1 Among the Decisioncs Dominorum de Rota (ed. Aug. Taurin, 1579, p. 
 364) is a strong condemnation of the English 'custom,' which for many 
 reasons is pronounced invalid. This decision is quoted by Hotman in the 
 tract of his that is included among the Traitez des droits ct liberies de 
 P Eglisc Gallicane, 1651, p. 292. He argues that France, with all its Galli- 
 canism, had allowed the clergy an immunity which England refused. 
 
 2 c. 3, X. 2. 1. 
 
Church, State, and Decretals 63 
 
 this proposition. 1 In a short while our temporal courts 
 had a whole scheme of remedies at the disposal of those 
 who claimed advowsons or presentations, and a writ of 
 prohibition was forbidding the courts Christian to 
 meddle or make with this matter. 2 Anyone who has 
 glanced at the plea rolls and the Year Books will 
 know that a vast volume of litigation was thus diverted 
 from the ecclesiastical forum, to the impoverishment of 
 the canonists and the enrichment of the Serjeants. 
 
 Neither Henry nor Becket can have been fully aware 
 of the extreme importance of the question that was at 
 stake, for they could not foresee the limitless claims over 
 all ecclesiastical preferments that were to be made by 
 the popes of a later age. Nevertheless there are some 
 who will think that the true Magna Carta of the 
 'liberties of the English church' is Henry's assertion 
 that advowsons are utterly beyond the scope of the 
 spiritual tribunals. This is the foundation of all subse- 
 quent legislation against 'provisors.' The advowson is 
 temporal property. ' Our lord the king,' said the parlia- 
 ment of Richard 11., 
 
 and all his lieges are accustomed from of old and of right ought to sue 
 in the court of our lord the king for the recovery of their presentations 
 to churches, prebends, and other benefices of holy church, whereto 
 they have right to present : the cognisance of plea of which presenta- 
 tions belongeth only to the court of our said lord the king by the 
 ancient right of his crown, used and approved in all time by all his 
 progenitors, kings of England." 
 
 The advowson is temporal property ; the laws of the 
 church and the courts of the church cannot touch it. 
 
 1 See Makower, Const. Hist. p. 435. As Henry did not admit that this 
 was an innovation, it did not fall within the renunciation of Avranches. 
 
 2 For prohibitions against dealing with advowsons, see Prynne, Records, 
 passim; Bractoiis Note Book, \. 187. A good example occurs in Prynne, 
 Records, iii. \obb : the bishop of St. David's claims an exemption from the 
 general law. See also the case of the bishop of Tuam, ibid. ii. 858. 
 
 3 Stat. 16 Ric. II. c. 5. 
 
64 Canon Law in England 
 
 When the matter is thus stated, even the bishops of 
 Richard n.'s day can, with certain reservations, publicly 
 protest against the pope's behaviour. ' The crown of 
 England' has been 'peaceably seised' from all time 
 of the right to hold plea of advowsons. This imme- 
 morial seisin the holy father is disturbing. In so doing he 
 is infringing, not the constitution of the catholic church, 
 nor the rights of a provincial church (for of all this 
 nothing is said), but the 'regality' of the English crown. 1 
 To all seeming the maintenance of this principle by 
 Henry n.'s successors aroused little opposition among 
 the English clergy. They soon began to see that here 
 lay their one bulwark against the invading army of 
 Italians. They protest, but they protest in parentheses 
 and half-hearted phrases. Grosseteste in the middle of 
 his diatribe against the invaders of ecclesiastical liberties 
 attacks a certain corollary that has been drawn from the 
 main principle. The men of the court, he says, will 
 argue that this corollary is fairly drawn : I am content 
 for the moment to meet them on their own ground, and 
 to dispute their minor rather than their major premiss ; 
 still I deny that laymen can be patrons of churches ; I 
 deny that secular judges can lawfully determine a suit 
 about patronage. 2 Archbishop Boniface's council took 
 up a similar position : de facto the king's court enter- 
 tains suits touching the right of patronage ; we will 
 waive the question whether this is rightful or no, but 
 now that court is going a little too far. 3 The zealous 
 
 1 Rolls of Parliament, iii. 304. 
 
 2 Grosseteste, Epistolae, p. 228 : ' Sed dicunt curiales, Frustra iudicaret 
 dominus rex de iure patronatus, nisi posset facere iudicii sui executionem. 
 Ad quod respondendum est quod licet contra iustitiam habeantur laici 
 ecclesiarum patroni, et iudices saeculares contra iustitiam determinent 
 causas de iure patronatus ; posito tamen quod haec fierent, ecclesia per- 
 mittente sive dissimulante iudicium saeculare. . . . ' 
 
 3 Const. Bonifacii, Wilkins, Concilia, i. 748 ; Lyndwood, Appendix, p. 
 16 : 'tunc intiment ei praelati praedicti quod non de iure patronatus, cuius 
 
Church, State, and Decretals 65 
 
 Peckham, we are told, was minded to reclaim the ground 
 that was being lost. He desired, says a chronicler, to 
 'annul' the 'liberties' which the king had enjoyed 
 from a remote time, but drew back in fear. 1 John of 
 Ayton opposes law to practice : the king's court keeps 
 to itself disputes relating to the advowsons of rectories, 
 albeit this is contrary to the canonical laws. 2 So Lynd- 
 wood : as a matter of fact the king of England holds 
 plea of the right of patronage, and says that this matter 
 belongs to his forum, though according to the canon 
 law the contrary is true, as we read in the decretal ad- 
 dressed to Henry 11. 3 The doctrine of our canonists 
 seems to be that the church is, to use Grosseteste's 
 phrase, ' permitting and dissimulating ' this invasion of 
 her rights. But there is no opposition of the law of 
 the church of England to the law of the church of 
 Rome. The king infringes the ius canonicum ; he in- 
 fringes the leges canonicas. In secret we may rejoice 
 that he does so ; but we must keep our joy to ourselves, 
 unless, indeed, we say that long-continued usurpation 
 has generated a prescriptive right. 4 
 
 In modern days we wax very wroth with the bishop 
 of Rome for his reservations, collations, and provisions ; 
 
 cognitionem rex de facto exercet . . . cognoscere intendunt.' See also 
 An >i. Hurt. p. 424. 
 
 1 Ann. Osn. p. 285. 
 
 2 Joh. de Athon, p. 96, gl. ad v. collatio: 'licet secus sit de cognilione 
 huiusmodi secundum leges canonicas, Extra, de iudi. quanto [c. 3, X. 2. 1, 
 Alexander to Henry II.]. 1 
 
 3 Lyndwood, p. 281, gl. ad v. regia : ' quantum de facto rex Angliae cog- 
 noscitur [sic] in causa iuris patronatus et dicit hanc causam ad forum suum 
 pertinere, cum tamen contrarium sit verum de iure canonico, per ea quae 
 leguntur et notantur, Extra, de iudi. c. quanto.' 
 
 * Ibid. p. 316, gl. ad v. iure patronatus : 'cuius cognitionem ad se 
 pertinere vendicat curia regia licet causa iuris patronatus sit annexa 
 spiritualibus et sic pertineat ad forum ecclesiasticum : de iudi. c. quanto. 
 Sed consuetudo dat cognitionem foro temporali, et hoc fateri videtur haec 
 constitutio [Honifacii archiepiscopi] in hoc loco.' 
 
 5 
 
66 
 
 Canon Law in England 
 
 and no doubt we do well to be angry with him, for 
 sometimes he was shamefully nepotic. But do we 
 always apportion the blame with equity ? The bishop 
 of Rome lived at Rome or Avignon, or elsewhere be- 
 yond the high seas. In strictness we cannot accuse him 
 of having done any act in England. His reservations, 
 collations, and provisions did not execute themselves. 
 For the more part they were executed by English pre- 
 lates. But we must not be prodigal of hard words. 
 By infmitesimally small degrees those prelates had been 
 taught that all ecclesiastical benefices are at the disposal 
 of the supreme pontiff. That many of the English 
 clergy sincerely held this doctrine we can hardly doubt. 
 Grosseteste had proclaimed it in the strongest words. 
 Scio, et veraciter scio do mini pap ae et sanctae Romanae 
 ecclesiae hanc esse potestatem, 7it de omnibus beneficiis 
 ecclesiasticis libere possit ordinarc} Clement iv. could 
 not improve upon this statement of the principle when 
 in a notorious decretal he said, Licet ecclesiamm, per- 
 sonatuum, dignitatum aliorumque beneficiorum ecclesiasti- 
 corum plenaria dispositio ad Romanum noscatnr pontificem 
 pertinere? The more we make of Grosseteste's heroism 
 in withstanding Innocent iv., the worse we think of his 
 logical position. And bad enough it was. He had 
 conceded to the apostolic see a power of freely dealing 
 out ecclesiastical benefices all the world over, and then 
 had to contend that this power should be used, but not 
 abused. Instead of the simple statement that the pope 
 cannot lawfully provide clerks with English benefices, 
 and has no more right to appoint a canon of Lincoln 
 than the bishop of Lincoln has to appoint a patriarch of 
 Antioch, we find this indefensible distinction between 
 use and abuse, and are at once led on to discuss the 
 demerits of the nepotes. How can such a discussion 
 
 1 Grosseteste, Epistolae, p. 145. 2 c. 2 in Sexto, 3. 4. 
 
Church, State, and Decretals 67 
 
 end ? If the bishop disputes the ' idoneity ' of a nephew, 
 an appeal lies to the pope. The bishop who makes a 
 stand against the pope at the line between use and 
 abuse is indeed heroic ; but his is the heroism of despair. 1 
 Then the complaints of the commons led to some 
 anti-ecclesiastical legislation. Perhaps when we are 
 reading the statutes against ' provisors ' we think too 
 exclusively of the elective benefices, more particularly 
 the bishoprics. They were, no doubt, an important 
 matter, but of almost equal importance were the present- 
 ative and collative benefices. All the patronage that was 
 in the hands of the clergy, in the hands of ' the men 
 of holy church,' was subject to the control of the pope. 
 He did not in principle scruple to interfere with the 
 rights of lay patrons, but in practice he dealt much more 
 freely with the rights of the bishops and abbots. 2 Every 
 such interference was from of old a breach of English 
 temporal law : that is to say, the papal ' provisor ' would 
 have had no defence to a Quarc impedit. But the 
 spiritual patrons did not dare or did not think it right to 
 sue. That is the situation which is put before us in the 
 famous petition of 1344. And now let us observe the 
 remedy that is prayed for by the commons and accorded 
 by the king, earls, barons, and justices. If a benefice, 
 the patronage whereof belongs to any spiritual patron, 
 falls vacant, and a ' provisor ' appears upon the scene, 
 the presentation is to lapse to the king or to other the 
 
 1 Whether Grosseteste wrote the most famous of the letters attributed to 
 him is not here the question. Without it there is quite enough evidence, as 
 Jourdain admitted {Excursions historiqucs, p. 164), of his having- withstood 
 certain appointments thrust on him by papal legates. 
 
 - This seems clear in the Calendars of Papal Registers. Often the pope 
 disposes of a named church, and then we cannot tell who the patron is. 
 But very often he decrees that a certain man is to have 'a benefice' from 
 some bishop or abbot. I cannot find that similar attacks are made upon 
 the patronage held by laymen. Canonries were the staple commodity of 
 the papal market, and these could be given without hurt to lay patrons. 
 
68 
 
 Canon Law in England 
 
 lord of whom the advowson is immediately holden, 
 albeit the patron is doing his best to present or collate. 
 The laity say to the clergy : ' We cannot trust you in 
 this matter ; we must protect you against yourselves. 
 If a papal provision is made to any of your benefices, 
 and the provisor attempts to put it in force, you must 
 forfeit for that occasion your right of presentation.' 1 
 
 The statute of 1351 was not drawn in quite so 
 offensive a form. It perhaps gives the spiritual patrons 
 a chance of fighting the pope, ' if they dare and will ' ; 
 but still it maintains a distinction between the lay and 
 the spiritual patron. 2 There is no talk of a lay patron 
 having to forfeit a presentation to which he is entitled 
 as the owner of a parochial advowson. Laymen think 
 that they are strong enough. 3 Also what is said of the 
 elective benefices is remarkable. If the pope makes 
 provision of a bishopric, the king is to collate : in other 
 
 1 Rolls of Parliament, ii. 153 : ' Pleise a nostre seignur le Roi establer 
 qe si nul Ercevesqe, Evesqe, Abbe, Priour ou autre Patron espirituel des 
 benefices, apres lavoidance des tieux benefices acceptez par provisours et 
 occupez, ou par la Court de Rome reservez, ne presentent ou facent collation 
 deinz les quatre mois, qe adonqes au Roi a eel foitz, si tiel patronage de lui 
 soit tenuz, ou a autre de qi il soit tenuz, accresce action et title de presenter. 
 Et tut soit il qe defaute ne soit trovez en tielx . . . patrons espirituels, par 
 tant qils presentent ou font collations deinz les quatre mois a tiels benefices, 
 jadumeyns sils soient destourbez par provisions ou reservations de la 
 Court de Rome, enqore nientcontresteant qils font ce qen eux est daver 
 tieux prcsenlementz ou collations, qe droit de presenter accresce au Roi, 
 ou as autres, come desus est dit, a eel foitz. 1 The patron's right to present 
 or collate on a subsequent avoidance is then saved. 
 
 8 25 Edw. ill. stat. 4 ; Statutes of t/ie Realm, p. 317. As the reader will 
 see, if he studies the statute closely in the Commissioners' edition, a little 
 difficulty is occasioned by an ambiguous ou. 
 
 3 This is written advisedly. There is a clause which deals with another 
 case. A layman (A. B.) is patron of a monastery ; if a papal provision be 
 made either to the abbacy of the house or to the rector)' of a parochial 
 church appropriated to that house, then A. B. will have six months wherein to 
 present. Even in this case the lay patron has the usual six months. The 
 case in which a layman owns the advowson of a parish church is not dealt 
 with. 
 
Church, State, and Decretals 
 
 words, the chapter is to lose for that occasion its normal, 
 if shadowy, right of election. An excuse for this dis- 
 franchisement is given. The theory is propounded that 
 of old the kings used to collate to bishoprics, and that 
 they only granted the right of election upon a condition 
 that has been broken. Now legislation which deprives 
 chapters of the right to elect, bishops of the right to 
 collate, spiritual patrons of the right to present, seems to 
 me to deserve the name that I have ventured to give to 
 it : it is anti-ecclesiastical legislation. No wonder, then, 
 that the English bishops carefully abstained from taking 
 any public part in the enactment of this statute. 1 
 
 The statute put too much power into the hands of a 
 king who had always some object to gain by chaffering 
 with the court of Rome. But no statute could have 
 been thoroughly successful, for no statute could effect a 
 radical change in the opinions that men held touching 
 the constitution of the Christian church. In 1409 there 
 came before the king's court a cause in which the king 
 sought to oust Henry Chichele, then bishop of St. 
 David's, and afterwards archbishop of Canterbury, from 
 a prebend in the church of Salisbury which he was 
 retaining by virtue of a papal dispensation. Seemingly 
 by way of afterthought, the king's advocates had 
 recourse to the statute of 135 1. Chichele's counsel 
 asserted that the statute had never yet been put in 
 
 1 In the interesting case of The Kings. Chichele, which is thrice reported 
 in the Year Book of 1 1 Hen. IV., we have (f. 77) this statement : ' In cases 
 where provisions were made upon bishops, abbots, or other patrons, they 
 might well, by our law, sue a quare impedil or a praemunire facias, at their 
 election, for the Statute of Provisors was not made because there was any 
 lack of an action for the patrons, since they had an .action by our law 
 (which well proves that by the law of the land the pope cannot oust anyone 
 from the right that is given to him by the law of the land in case he will 
 sue for it), but the Statute of Provisors was made because the spiritual 
 patrons were in some sort disturbed, and dared not, because of the pope, sue 
 for their right in the king's court.' 
 
7 o 
 
 Canon Law in England 
 
 force, 1 and we have good reason for believing that this 
 statement, if exaggerated, was not very far from the 
 truth. So, too, the Year Books seem to show that the 
 praemunire statutes were rarely brought into court until 
 the temporal lawyers discovered that they had here a 
 new weapon which could be used against the English 
 ecclesiastical tribunals. Whether this use of them was 
 foreseen by their framers is a moot point ; but the 
 petition of 1344, which is the root of all the subsequent 
 legislation, prayed that suits, in which the judgments of 
 the king's court were called in question, might not be 
 brought in the court of Rome ' or other court Christian ' ; 
 and it is by no means improbable that the English 
 ecclesiastical judges had pronounced the censures of the 
 church upon laymen, or at any rate ecclesiastics, who 
 availed themselves of the law of the land as a defence 
 agaist papal provisors. 2 Be that as it may, such pro- 
 tection as English clergymen enjoyed against ' the 
 sovereign patron of holy church' 3 was due to Henry n.'s 
 
 1 Y. B. 11 Hen. IV. f. 38. 
 
 2 Rolls of Parliament, ii. 152 : ' Por ce qe avant ces heures ne fut pas 
 ordeignez ccrteyne penance ne punissement contre ceux qi pursuent en la 
 court de Rome pur anientir et adnuller le juggementz renduz par dues 
 processes en la court de roi sur presentementz des esglises . . . ou autre 
 quecumqe juggementz renduz illoeques . . . par qoi prie la communaltee 
 du roialme qe accordez soit et establi qe si nul mes face tiels seutes en la 
 court de Rome ou autre court Cristiene . . . eit perpetuele prisone . . .' I 
 find it hard to believe that so general a phrase as 'or other court Christian,' 
 was introduced merely because the Curia Romana might be at Avignon or 
 elsewhere. Then in stat. 27 Edw. III. c. 1, we have a punishment denounced 
 against such as impeach the judgments of the king's court 'en autri court.' 
 In stat. 16 Ric. II. c. 5, we have, ' en la courte de Rome ou aillours.' The 
 complaints of the clergy (Wilkins, Concilia, iii. 533, 555) against the misin- 
 terpretation of the statutes may have been well founded ; but we cannot 
 estimate their justice until the cases to which they referred are in print. If 
 the English ecclesiastical courts were, e.g., excommunicating those who 
 contested the validity of papal provisions, this case would fall within the 
 spirit as well as within the letter of the statutes. 
 
 3 So called by Chief Justice Thirning in Y. B. 1 1 Hen. IV. f. 78. 
 
Church, State, and Decretals 71' 
 
 victory, to the numerous writs of prohibition which 
 taught the ecclesiastical courts that they had nothing to 
 do with advowsons, to the establishment of a principle 
 which Grosseteste condemned, and which Lyndwood 
 treated as contrary to the canon law. This becomes 
 plain when we contrast England with other countries. 
 At the Council of Constance, the Germans and the 
 Romance nations were glad to obtain by temporary and 
 precarious concordats far less than was secured from of 
 old by the temporal law of England to all English 
 patrons who had the courage to sue for their rights. 1 
 
 The story of papal ' provisions,' however we may tell 
 it, will always be dismal ; but it will be an incredible 
 tale of cowardice and imbecility if it has not for its back- 
 ground a widespread persuasion that, whatever may be 
 said against this or that appointment, the general prin- 
 ciple upon which the pope relies is warranted by the 
 law of the church. Adam of Murimuth, chronicler and 
 canonist, has told us that at Avignon Englishmen were 
 reputed to be ' good asses ' ; he has told us that ' they 
 suffered wise men gladly, seeing that they themselves 
 were fools.' 2 Adam himself was one of the wise, for he 
 had accepted a modest 'provision' at Hereford, 3 and 
 yet, perhaps, one of the fools, for he had been the 
 'executor' of many a papal mandate. But such words 
 as fools and asses are too feeble to describe the English- 
 men, and more especially the English bishops, of the 
 fourteenth century, if they regarded the pope's action as 
 
 1 Hiibler, Die Constanzer Reformation (Leipzig, 1876), pp. 78, 115. It 
 became an article of the Gallican liberties that ' le juge royal connoist du 
 possessoire des benefices.' See Preuves dcs libertez, p. 699. But in 
 England, from century xii. onwards, the royal court claimed an exclusive 
 cognisance as well of the pctitorium (writ of right of advowson), as of the 
 possessorium (darrein presentment, quare impedit, etc.). 
 
 2 A. Murimuth, pp. 28, 175. 
 
 3 Calendar of Papal Registers, ii. 123. 
 
7 2 
 
 Canon Law in England 
 
 utterly wrongful and lawless. Mixed with much that was 
 base and selfish, there was something that was yet more 
 dangerous, because it was more honourable, a faith, a 
 creed, a principle. Very unwilling were even the laity 
 to admit that fault could be found with this creed. 
 When an act of parliament suggests that the holy father 
 cannot know what he is about, but is being deceived by 
 the lies of avaricious suitors, there is less of intentional 
 irony in this apology than we are quick to detect. 1 How 
 deep-set was the belief in the pope's legal right to deal 
 freely with ecclesiastical benefices and with the property 
 of the churches we may learn from the querulous Gas- 
 coigne. He was fully convinced that most of the 
 enormous mischiefs which he saw around him, and 
 which in his view were rapidly ruining the church of 
 England, were due to the action of the popes ; that the 
 popes were weak or wicked men ; that the only excuse 
 that could be urged for them was, that if for a moment 
 they lapsed into wisdom and virtue they would be 
 poisoned by their cardinals. His dissatisfaction was not 
 the less unfeigned because the conscious merit of a cer- 
 tain chancellor of the university of Oxford had never 
 met with a becoming reward. And yet the only two 
 remedies that he can propose are a prayer that the popes 
 may be brought to a better frame of mind, and a sugges- 
 tion that, instead of abusing, they should now begin 
 worthily to use their rights, as, for example, by a 
 measure of disendowment, a transfer of property from the 
 religious houses to the parish churches. It is the old 
 hopeless tale. The powers that were given for edifica- 
 tion are being employed for demolition ; the sheep are 
 flayed, not fed ; nevertheless the powers were given, the 
 flock was committed to the shepherd. Let us hope and 
 pray that the plenitudo potestatis will some day be 
 
 1 38 Edw. 111. stat. 2. 
 
Churchy State, and Decretals 73 
 
 wielded, as once it was, for righteous ends. 1 Meanwhile 
 there is nothing for it but impotent ejaculation : Hcu / 
 Hen / 0 domine dens / 0 papa Romae ! 0 Symon ! 
 Heu / Hetc ! The story of papal ' provisions,' however 
 we may tell it, must be dismal ; but it need not be 
 disgusting, and yet, unless we make it disgusting, we 
 shall never make it compatible with the supposition that 
 our ecclesiastical courts were freely criticising decretals 
 and rejecting what was unsuited to English ideas. 
 
 At this point a few words of explanation may be 
 necessary. When we contrast the action of the English 
 church with that of the English state (and to do this we 
 are compelled), we are not of necessity contrasting the 
 behaviour of the clergy with the behaviour of the laity. 
 Even at any one moment the clergy was a miscellaneous 
 mass, and few generalities about its thoughts or its 
 doings would be true. It is very possible that at times 
 many or most of the clerks in England wished well in 
 their heart of hearts to certain anti-ecclesiastical efforts 
 of the temporal power, and rejoiced at the issue of pro- 
 hibitions. But more than this can be said of that early 
 age, the twelfth century, which drew the principal lines 
 that were to separate the two jurisdictions. It was a 
 time when the king's court was full of bishops and 
 archdeacons, and we may well believe that it was with 
 their right good will that the advowson was handed over 
 to the temporal power, and thus withdrawn from the 
 
 1 Loci e Libra Veritatum, pp. 147, 148, 150: 'Dominus enim papa dis- 
 pensator est bonorum quae committuntur ecclesiae, unde ea in illos usus 
 potest papa conferre et illis hominibus qui melius possunt, sciunt et volunt 
 bona ecclesiae ad laudem Dei et ad animarum salutem melius expendere. 
 . . . Dominus papa, Christi vicarius, potest terras et redditus qui dantur 
 caeteris [certis ?] locis et monasteriis alienare et conferre aliis locis et 
 ecclesiis parochialibus. . . . Sic Christi vicarius, dominus papa, qui est 
 dispensator et minister bonorum ecclesiae auctoritate Christi, potest in Dei 
 cultum augmentandum et lucrum animarum, res datas in usus alicuius 
 ecclesiae disponere et prudentiae alicuius viri in commendam tradere. . . .' 
 
74 
 
 Canon Law in England 
 
 sphere of ecclesiastical law, Roman influence, and beg- 
 ging letters that were almost ' provisions.' Some of these 
 prelates were in all likelihood far more at home when 
 they were hearing assizes as iusticiarii domini regis than 
 when they were sitting as indices ordinarii, and they 
 were already leaving the canon law to their schooled 
 officials. For a compromise which bartered the ad- 
 vowson against the testament, there was much to be 
 said. Even at a later time, when ordained clerks had 
 forsaken the bench, they still peopled the chancery. 
 Those writs of prohibition against which the clergy 
 protested in their assemblies must often have been 
 drawn by ordained clerks, settled by ' masters ' who 
 were doctors of the canon law holding abundant pre- 
 bends, and sealed with a seal whose custodian was a 
 bishop. There never was wanting a supply of persons 
 duly qualified and somewhat eager to serve the state 
 and hold the benefices of the church. Many a medi- 
 eval bishop must have wished that, besides having two 
 capacities, he had been furnished with two souls, unless, 
 indeed, the soul of one of his subordinates would serve 
 as an anima damnanda. Parties and partisans there 
 have always been. If Grosseteste was a clergyman, 
 so also was Bracton ; they held diametrically opposite 
 opinions about the privilegium fori} We, however, 
 are concerned, not with classes, but with institutions. 
 We must not attribute to the state the acts of this or 
 that baron ; we must not attribute to the church the 
 opinions of this or that bishop. It is of the constitutions 
 that were promulgated in ecclesiastical councils, and the 
 rules that were enforced by ecclesiastical courts, that we 
 
 1 This must be my apology, if any be needed, for carrying back the 
 term high church into the middle ages. By a high churchman I mean one 
 who presses the more extreme claims that are made in the name of the 
 church against the secular power. 
 
Church, State, and Decretals 75 
 
 make our question. Laws, it may be remembered, are 
 often obeyed and administered by those who have little 
 love for the laws or the lawgiver, but are persuaded 
 that he has the right, or at least the power, to bind and 
 to loose. 
 
 And now, returning to our main theme, we must 
 remark that when the state has appropriated any tract 
 of the debatable land, it imposes its own law upon that 
 tract. The king's justices, even when they were dealing 
 with affairs which were, or had been, claimed by the 
 canonists, did not profess to administer the law of the 
 church. Had they made any such profession, they 
 would have added insult to injury. They administered, 
 in all cases that came before them, not the law of the 
 church, but the law of the realm, and in so doing they 
 paid little regard to canons and decretals. It must be 
 allowed that during an age which extends from Henry 
 11. 's to Edward i.'s reign, they were learning a good 
 deal from the church's lawyers. A class of professional 
 canonists is older than a class of men professionally 
 expert in English temporal law, and the secular courts 
 adopted many suggestions from without. Still here we 
 have no more than the acceptance of hints, and after 
 the middle of the thirteenth century the temporal lawyers 
 were becoming deeply and confessedly ignorant of la 
 ley de seinte csglise. It is true that they were in general 
 willing to co-operate with the canonists in producing an 
 harmonious result. The man who is legitimate enough 
 to be ordained, but bastard enough to be excluded from 
 an inheritance, is a rare example of those inelegant 
 results of a conflict of laws which have usually been 
 avoided. For all this, there are numerous instances in 
 which we may be sure that the king's courts decided 
 in one way a question which would have been decided 
 in another could it have come before an ecclesiastical 
 
7 6 
 
 Canon Law in England 
 
 tribunal. John of Ayton mentions one which may serve 
 as an example. An abbot borrows money, and gives a 
 bond under the abbey's seal for its repayment. The 
 canonist, before deciding that the abbey was bound, 
 would be inclined to discuss the manner in which the 
 borrowed money was expended. But the law of the 
 realm is not so subtle ; it has an archaic reverence for 
 sealed parchment, and, says John, will hold the abbey 
 bound, ' even though the money were thrown into the 
 sea.' 1 The clerical defendant who was sued in a per- 
 sonal action before the secular court, would, at a hundred 
 points, have found there a law different from that which 
 would have awaited him had he enjoyed the privilegium 
 fori. The two procedures, for one thing, were radically 
 different. And so, when once the advowson had been 
 securely captured by the royal court, it became the sub- 
 ject of temporal law. Already in Bracton's day a large 
 mass of rules had grown up around it ; about hardly 
 any other subject does he cite so many precedents. 
 This mass of rules was English temporal law. V ery 
 curious law some of it was, and very unlike anything 
 that a canonist would have written de iurc patronatus. 
 That it was English temporal law I must repeat, for, so 
 it seems to me, misleading phrases have been used in 
 this context. 
 
 It is well known, and often it is boastfully said, that 
 the law about the ' lapse ' of presentations that was en- 
 forced in England differed in a good many details from 
 the classical 'canon law of Rome.' In particular, while 
 the one gives to the patron, be he hallowed or be he 
 lay, a term of six months wherein to present his clerk, 
 the other will have no equality between clergy and laity, 
 but allows the clerical patron six and the lay patron but 
 four months. Now this seems to be one of those cases 
 
 1 Joh. de Athon, p. 150, gl. ad v. quam ecclesiis. 
 
Church, State, and Decretals 77 
 
 in which the king's justices desired to effect in a general 
 way the laudable objects of the law ecclesiastical. 
 Obviously it is undesirable that a church should be for 
 any long time void of a pastor. So a law of 'lapse' 
 or 'devolution' is wanted. How the divergence was 
 caused, it would be difficult to say. The classical canon 
 law about this matter is not to be found plainly stated 
 upon the face of the Decretales Gregorii, but can only 
 be obtained by a somewhat elaborate combination of 
 texts. The third Lateran Council had allowed the 
 patron no more than three months ; but certain decretals 
 were supposed to give the clerical patron six, while the 
 layman's three were extended to four. The interpre- 
 tation set upon these texts was confirmed by Boniface 
 viii. in the Sext. 1 But before the days of the Sext, the 
 English justices seem to have established the rule which 
 gives six months in every case. Whether they thought 
 that they were adopting the law of the church in its 
 entirety, or whether they deliberately overruled it in 
 the interests of equality and lay patrons, is a very diffi- 
 cult question, which I must not take upon me to decide. 2 
 But in any case, the rule that they established was a 
 
 1 See Hinschius, Kirchenrecht, iii. 46. The texts are cc. 3. 22. 27, X. 3. 
 38 ; c. 2, X. 3. 8 ; c. un. in Sexto, 3. 19. I have seen in a manuscript belong- 
 ing to Caius College, Cambridge (No. 54), a treatise by an Italian lawyer 
 who lived under Gregory IX., in which the question between four and six 
 months is debated at length, and the solution that became orthodox is not 
 even proposed. This treatise begins thus : ' Super accionibus communibus 
 compositi sunt libelli per gratiam Iesu Christi.' I take it to be the work 
 of Roffredus. 
 
 - B radon's Note Book, pi. 205, 308, 438, 515,883, 1389, 1570. These 
 cases seem to show both a belief that the Concilium Lateranense is being 
 enforced, and at the same time a practice of allowing six months in all 
 cases. So Bracton, f. 241, Britton, ii. 176, Fleta, p. 321, speak as if the 
 decree of the council always gave six months. It seems possible that our 
 courts were misled by Cone. Lai. III. 8 (c. 2, X. 3. 8), and overlooked Cone. 
 Lat. III. 17 (c. 3, X. 3. 38). Selden, Hist, of Tythes, ch. 12, § 5, could offer 
 no more than ' a roving conjecture' about this matter. 
 
78 
 
 rule of English temporal law, not a rule of English 
 ecclesiastical law. The only ecclesiastical law about 
 lapse that Lyndwood knew was the classical ins com- 
 mune of the church, which gave the clergyman six and 
 the layman four months. 1 He indulges in a discussion 
 of the question how long the bishop must wait when 
 the advowson is disputed between two would-be patrons, 
 one of whom is, while the other is not, a layman. He 
 is inclined to hold with some of his foreign doctors 
 that in this case there will be no lapse until six months 
 have expired. And this, he says, is the more probable 
 opinion in England, where causes touching patronage 
 belong to the royal forum. 2 This last remark seems to 
 stamp as academic the whole of the preceding discussion. 
 In England the king's court has grasped the advowson, 
 and the practical law relating to it is English temporal law. 3 
 There was perfect reciprocity. If the temporal 
 courts were incompetent to administer la ley de seinte 
 csglise, the spiritual courts were incompetent to administer 
 la ley de la terre. The English temporal ' common 
 law ' and the statutes of the English kings set limits to 
 the doings of the spiritual courts, but did not prescribe 
 what those courts should do, nor the judgments that 
 they should pronounce. We should hardly guess from 
 
 1 Lyndwood, p. 215, gl. ad v. devolvatur : 'scilicet per lapsum sex men- 
 sium in patronatu clerici. Alias quatuor mensium ubi laicus est patronus. 
 Extra, e.c. cum propter [c. 27, X. 3. 38].' 
 
 - J bid. p. 216, gl. ad v. neutri. 
 
 ■ In the version of the Provincial Constitutions, printed at the end of the 
 Oxford edition of Lyndwood's book (p. 2), one of Langton's ordinances is 
 made to end thus : ' Et licet de iure canonico clericus semestre, laicus vero 
 quadrimcstre tempus habeat praesentandi, tamen de statuto domini regis 
 Angliae hodie uterque habet tempus semestre.' This (see Wilkins, Con- 
 cilia, i. 586) seems to be no part of the constitution, but a lawyer's note, 
 and we may well doubt whether there had been any royal statute touch- 
 ing this matter. But observe that the contrast is not between English 
 and Roman canon law ; it is between the ius canonicum and a royal 
 statute. 
 
Church, State, and Decretals 79 
 
 Lyndwood's book that secular England already had a 
 good deal of written and enacted law. If by chance 
 he mentions a statute, he will be careful not to pledge 
 his professional reputation to its existence. Statuta 
 regia non sunt de mea facilitate, he seems to say. 1 He 
 did, indeed, include among the provincial constitutions 
 the document which we know as Circumspecte agatis ; 
 it was for him an important document, because it 
 stated the king's opinion as to the whereabouts of 
 the line which divides spiritual from temporal juris- 
 diction ; but he expressly tells us that textus iste non 
 este authenticus, and he must not be taken to have 
 admitted that the king can legislate for the church, 
 or give to his courts what of right belongs to the 
 officialities. 2 
 
 A good instance of his indifference to merely tem- 
 poral arrangements we shall obtain if we ask him under 
 what law heretics are being burnt in England. Were 
 we to put that question to the modern historian, he 
 would tell us that they were being burnt under the 
 statute of 1 40 1. Lyndwood's answer is very different. 
 His answer is that death by burning is the punishment 
 prescribed by a decretal contained in the Sext. Heresy 
 was in his view a spiritual crime, and it was for the 
 church, not for the state, to say what should be done 
 
 1 Lyndwood, p. 241, gl. ad v. clericus : 'quare autem non fuit idem 
 statutum quoad laicos, potest esse ratio : quia contra laicos in eadem 
 materia emanavit statutum regium etium poenale, editum {ut audivi) in 
 parliamento Glocestriae, ubi etiam facta fuit haec constitutio 16 die Novem- 
 bris a.d. 1368 [at. 1378].' The statute of which Lyndwood 'has heard' 
 seems really to be 36 Edw. in. stat. 1, c. 8 (a.d. 1362). 
 
 2 Ibid. p. 97, gl. ad v. vel consuelas. As a matter of fact, it seems 
 that no ' authentic text ' of Circumspecte agatis has descended to us, if to 
 satisfy this term we require a document bearing the king's seal or an 
 officially preserved record. But I do not think that this is what Lyndwood 
 means. He means that this royal declaration does not bind a spiritual 
 court. 
 
8o 
 
 Canon Law in England 
 
 with heretics. If a lay prince would not execute the 
 church's law concerning this crime, he was to be excom- 
 municated. Here in England the secular power had of 
 late made due provision for the fulfilment of its duty ; 
 but the law that sent the heretic to the flames was a 
 decretal of Boniface viii., not a statute of Henry iv. 1 
 This view of the case was by no means perverse. 
 Henry's statute authorised the burning of those heretics, 
 and those only, who, according to ' the canonical sanc- 
 tions,' ought to be relinquished to the secular court. 
 What were those canonical sanctions ? They were the 
 titles de haereticis in the three papal law-books. We 
 should not gather from Lyndwood's pages that any such 
 statute as that of 1401 had ever been issued. Of a 
 later statute — namely, that of 14 14 — he does take notice. 
 According to a constitution of Innocent iv., he says, the 
 heretic's goods should be divided into three parts, one 
 of which should be given to the secular power which 
 executes the judgment, another to the city (civitas) in 
 which the heretic is condemned, and a third to the 
 judge ; but nowadays in England, under a royal statute, 
 all such goods are applied to the king's use. 2 Ap- 
 parently he regards this as an infringement of the ius 
 canonicum ; but it would be graceless to squabble over 
 the wretched chattels that the heretic has left behind 
 him when we have secured the main matter, the in- 
 cineration of his body 'according to the canonical 
 sanctions.' 
 
 For more than three centuries past our spiritual 
 courts have been required to administer, and have con- 
 stantly administered, certain acts of parliament. We 
 
 1 Lyndwood, p. 293, gl. ad v. fioenas in itire exprcssas, referring to c. 18 
 in Sexto 5. 2, a decretal which declares how the pope wills that certain con- 
 stitutions of Frederick II. shall be enforced. 
 
 - Ibid. p. 293, gl. ad v. occupcntur. 
 
Church, State, and Decretals 81 
 
 too easily forget that this is the result, the not unim- 
 portant result, of the Reformation. Though much has 
 been done for the history of the medieval church, we 
 still may detect traces of Cawdry's case and ' the king's 
 ecclesiastical law,' where we hardly thought to meet 
 them. To Lyndwood, ' the king's ecclesiastical law ' 
 would have been a contradiction in terms. Kings and 
 parliaments and secular justices had it in their power 
 to narrow the province of the law ecclesiastical, and 
 might hedge it round about with writs of prohibition 
 which, as a matter of fact, the bishops and their officials 
 would not transgress ; but it was not for kings or 
 parliaments or secular justices to make or to declare 
 the law of the church, or to dictate the decisions of 
 the church's courts. 
 
 We have been trying to clear away the irrelevant 
 matter that has collected round an interesting question. 
 What was the theory of the decretals that prevailed in 
 the English courts Christian during the later middle 
 ages ? Were the decretals regarded as statute law, or 
 did the English church exercise any right of accepting 
 some and rejecting others? In modern books and 
 judgments we may see an assertion, more or less em- 
 phatic, that this right was exercised, that ' the foreign 
 canon law ' was only applied in England when it had 
 been sanctioned by English custom, or had met with 
 the approbation of the rulers of the English church. 
 We may find also the assertion or assumption that all 
 this is proved and no longer dubitable. But when we 
 look for the proof, it evades us. Such, at all events, 
 has been my experience. 
 
 It is with many hopes that we turn to the learned 
 Gibson. In the following passage he seems to approach 
 our question, and yet to leave it unanswered. He has 
 been speaking of the theory put forward by Henry vin. 
 6 
 
82 
 
 Canon Law in England 
 
 in the Act concerning Peter's Pence and Dispensations, 1 
 and then writes as follows : 2 — 
 
 Here we have a plain declaration that foreign laws become part of 
 the law of England by long use and custom. And as the church of 
 England, in many cases both of voluntary and contentious jurisdiction, 
 had no other rule by which to proceed, so in admitting and practising 
 the rules which they found there they had no restraints upon them, 
 save these two, that they were adapted to the constitution of this 
 church, and so were proper rules, and were not contradicted by the 
 law of the land, and so were legal rules. Which last was the condition 
 of their being received and practised here, as well before the Reforma- 
 tion as since : witness the canon for the legitimation of children born 
 before marriage, which was openly rejected as contrary to the laws of 
 England ; together with the reckoning of the six months lapse by 
 weeks and the allowance of four months only to a lay patron, neither 
 of which could obtain here against the contrary usages of reckoning 
 by calendar months 3 and allowing the full six months to the laity as 
 well as clergy. 
 
 Now at the present day we shall not set much store 
 by any statement about the medieval law of the church 
 of England made in the preamble of a statute in which 
 King Henry already appears as that church's supreme 
 head, even though the imperious document has the 
 decency to allow that it is 'for many years' that the 
 bishop of Rome, 'called the pope,' has abused and 
 beguiled his majesty's subjects. As to the remainder of 
 Dr. Gibson's argument, though it may not have flown 
 
 1 Stat. 25 Hen. VIII. c. 21. 
 
 a Gibson, Codex Juris Ecclesiastid (1713). vol. i. p. xxviii. 
 
 3 This is a trifling detail ; but is there any good warrant for the state- 
 ment made in English books that the allowance of calendar months is an 
 English peculiarity? Hinschius, Kirchenrecht, iii. 47: 'Die Frist wird 
 kalendarmassig ohne Rucksicht auf die Zahl der Monatstage berechnet.' 
 All that Coke proves in 6 Reports, 62, is that in Edward il.'s day a bishop 
 of Lincoln adopted the lunar reckoning and got into a scrape by so doing. 
 A similar case of Edward i.'s day may be found in Prynne, Records, i. 1220 ; 
 on the other hand, in a case of Henry VH.'s reign (Keilwey, 88), the lunar 
 reckoning was adopted. 
 
Church, State, and Decretals 83 
 
 wide of his mark, it assuredly flies wide of ours. The 
 rule that a bastard cannot by the marriage of his parents 
 be made capable of inheriting- English land is simply a 
 rule of English temporal law ; it is a rule evolved and 
 enforced by our secular courts, and with it our spiritual 
 courts have absolutely nothing to do. The rule about 
 the lapse of presentations is in some sense rather more 
 ecclesiastical, for the bishops are required to take notice 
 of it and to obey it. Nevertheless it is a rule enforced 
 by our secular courts. If the bishops tried to act upon 
 a different rule, and, for example, behaved as though a 
 lay patron had only four months wherein to present, 
 they would soon find themselves defending actions in 
 the Court of Common Pleas. If these instances are 
 adduced merely for the purpose of showing that certain 
 rules of the ' foreign ' canon law were inoperative in 
 England, well and good : that thesis is proved. But 
 they are irrelevant to any inquiry touching the measure 
 of authority or binding force that English ecclesiastical 
 judges attributed to the decretals. Did they or did 
 they not put in force only such papal ordinances as 
 were supported by ' long use and custom ' ? Did they 
 or did they not hold that the decretals were to be 
 obeyed because they emanated from one who by 
 divine right could legislate for the catholic church ? 
 We shall get no answer to these questions by study- 
 ing the doings of the Court of Common Pleas, or 
 by noting that in England, as elsewhere, the field 
 conceded to ecclesiastical justice by secular power is 
 not so wide as popes and canonists would wish it 
 to be. 
 
 The other instances to which an appeal is commonly 
 made seem to me to be equally irrelevant. Thus it is 
 remarked that tithe was not paid in England of certain 
 things that were tithable by the general canon law, in 
 
84 
 
 Canon Law in England 
 
 particular of coal and other minerals. 1 But here, again, 
 what we see if we go back to the fourteenth century is 
 that the ecclesiastical courts were doing their best to 
 give the law of tithes as large a scope as possible, that 
 the laity were complaining of these efforts, and that the 
 secular justices were issuing prohibitions. 2 By means of 
 these prohibitions the king's courts were acquiring the 
 power to decide what matters were and what were not 
 tithable, and of this power, when they had acquired it, 
 they made an unstinted use. 3 No, the instances that are 
 to prove the existence of a national canon law must be 
 instances of another kind. We must see an ecclesi- 
 astical judge, whose hands are free and who has no 
 ' prohibition ' to fear, rejecting a decretal because it 
 infringes the law of the English church, or because that 
 church has not ' received ' it. 4 
 
 1 Hale, History of the Common Law (ed. 1820), p. 28: 'For there are 
 divers canons made in ancient times and decretals of the popes, that never 
 were admitted here in England, and particularly in relation to tithes, many 
 things being by our laws privileged from tithes, which by the canon law are 
 chargeable (as timber, ore, coal, etc.) without a special custom subjecting 
 them thereunto.' 
 
 2 This had begun as early as 1237 (Ann. Burton, p. 254). 
 
 s Selden, History of Tythes, c. 8, § 29-35. Registrant Brevium Origin- 
 alium, f. 54 b : ' Nota que les justices dient que dismes ne serront dones 
 forsque des choses que profitent d'an en an, et ceo per memorie [corr. 
 manurance] de home, mes c'est encounter decretall. . . . Et auxi de car- 
 bonibus nec de quarera et auters semblables, ils s'accordent en nul maner a 
 consultation, pur ceo que parsons prent disme del blee que crest sur les 
 carbons, per qui il ne prendra de eux. ! Fitzherbert, Nat. Brcv. f. 53 ; Rolls 
 of Parliament, ii. 370, iii. 591. 
 
 4 The longest list that I have met with of 'canons that were not received 
 here' occurs in Stillingfieet's Ecclesiastical Cases (1698), p. 356. We have 
 (1) the Merton story, (2) the story of the bigami, (3) investiture by the lay 
 hand, (4) the privilegium fori, (5) the immunity of clerks from taxation, 
 (6) laws against provisors, and (7) various points in the law of presentation 
 to benefices. In none of these cases do we see an ecclesiastical court or 
 council refusing of its own free will to enforce a decretal. If it were proved 
 that in the later middle ages those courts held that there could be no 
 marriage except ' in the presence of an ordained clergyman,' this indeed 
 would be a case in point ; but I cannot think that this is proved or probable. 
 
Churchy State, and Decretals 85 
 
 In a certain polemical context it was perhaps legiti- 
 mate, and if legitimate it was highly expedient, to ignore 
 the difference between the acts of the state and the acts 
 of a national church. The pope of the counter-refor- 
 mation was pressing his claims. The reply to him was 
 that never at any time — no, not in the golden age of 
 faith and papacy — had his laws been integrally enforced 
 among us. The national ranks were to present an 
 unbroken front to the enemy ; church and state were 
 to stand, and were always to have stood, shoulder to 
 shoulder. To France we must look if we would see 
 this manoeuvre dexterously executed. The illustrious 
 lawyers who formulated the creed of Gallican liberties 
 were as adroit as they were learned. Still for all their 
 learning and all their adroitness there is a weak point in 
 their case which is not to be concealed. The liberties 
 for which they plead ought to be liberties of the Gallican 
 church and not merely liberties of the French kingdom. 
 They would like to say that the Gallican church (and let 
 the word church be underlined) has never accepted the 
 papal statute books, but has always maintained some 
 tradition of an older and less Roman canon law. 1 From 
 a very remote age they can produce satisfactory evidence, 
 and again from a modern age there is testimony to be 
 had ; but as we cast our eyes over the famous catalogue 
 of pretives we cannot help seeing that there is an inter- 
 mediate period lying (to name its narrowest limits) 
 between the date of the Decretum and the date of the 
 
 1 But just at this point concessions had to be made. Leschassier, 
 whose work is in the Traiiez des droits et libertez, 1651, p. 444, says : ' Mais 
 le decret de Gratian suiuy des liures des decretales ayans este leu en 
 escoles instituces expres, glose, commente, les hommes graduez en iceluy, 
 et ces degrez pris pour capacitez aux benefices, et les saincts decrets 
 alleguez aux sieges de iustice, selon qu'ils sont couchez en ce liure, l'impres- 
 sion venue apres luy, les escoles de Theologie et la doctrine scolastique 
 instituee et dressee en quelques choses depuis luy et sur luy, on ne pense 
 pas que iamais l'Eglise ait eu autre droit que cestuy la.' 
 
86 Canon Law in England 
 
 schism, in which the chain, even when it has been 
 strengthened by the spurious 1 ' Pragmatique ' of St. 
 Louis, is tenuous and brittle. Certain preuves, indeed, 
 are still forthcoming ; but are they proofs of the liberties 
 of the Gallican church ? They consist in the main of 
 acts of a secular power which was controlling and cur- 
 tailing the jurisdiction of the ecclesiastical courts, and 
 was encroaching upon what the French prelates of that 
 age held to be the liberties of the church in general 
 and of the Gallican church in particular. Just as the 
 compilers of Anglican liberties, when they tell the story 
 of Merton, expect us to take the side of the barons, so 
 the compilers of Gallican liberties, when they tell the 
 story of Vincennes, expect us to take the side of Pierre 
 de Cugnieres. Now it may be true that the one real 
 hope for a national church which should be wholly or 
 mainly independent of Rome lay in the victory of the 
 lay courts and the state-made laws at every point along 
 the debated frontier line. But for obvious reasons this 
 argument was not open to all controversialists, for it is 
 apt to make the national church look like a spendthrift 
 who must be ' interdicted ' or forcibly confined to his 
 house, lest he waste his patrimony and subject himself 
 to the dominant will of some designing rogue. Unless, 
 however, we have some such argument as this at the 
 back of our minds, a glorification of the appel comme 
 (Tabus or our own writs of prohibition must seem a 
 grotesque incident in a proof of the liberties of the 
 Gallican or Anglican church. At any rate in the pre- 
 sent day we, whose object is not to silence the papist, 
 but to understand a certain tract of old history, are 
 surely concerned to see whether such practical protest 
 against the Roman theory as our ancestors were making 
 
 1 Tardif, Histoire des sources du droit canonique, p. 276 ; Yiollet, Bibl. de 
 F Ecole des chartes, xxxi. 162 ; Esmein, Histoire du droit francais, p. 639. 
 
Church, State, and Decretals 87 
 
 was being- made in the name and by the organs of the 
 church or in the name and by the organs of the state. 
 
 Just on the eve of the Reformation the doctrine that 
 papal laws are not binding unless and until they have 
 been ' received ' becomes audible in the case of Dr. 
 Standish. Once more that bird of evil omen, the 
 criminal clergyman, was fluttering before the storm. 
 Once more the blood of St. Thomas was liquefying. 
 Henry vm. had already invaded by a temporary and 
 tentative statute the compromise which for some cen- 
 turies past had settled the treatment of clerks accused 
 of felony. 1 Clerks in minor orders, if accused of some 
 of the very worst crimes, were no longer to enjoy the 
 wonted immunity. This invasion was resented, and, as 
 I read the story that is told by the anonymous law- 
 reporter, some of the clergy, fired by the abbot of 
 Winchcombe's sermon, were for reopening the whole 
 of the old question. It was against the law of God, 
 they said, that clerks should be ' convented ' before the 
 secular judges, though no one could deny that through- 
 out the last three hundred years the indictment and 
 arraignment of clerks in our courts of common law had 
 been an extremely common event. In the debate that 
 followed Friar Henry Standish argued the cause of the 
 secular power, and asserted that the decrees which ex- 
 empted clerks from lay justice had never been 'received' 
 in England, and therefore were not binding. About the 
 matter of fact he was in the right, for even in cases of 
 felony our temporal courts had not allowed to the crimin- 
 ous clerk that full measure of immunity which the decretals 
 claimed on his behalf. Then Standish was summoned 
 before the convocation of the clergy to answer for his 
 opinions. Among the erroneous doctrines charged 
 against him was one which is stated in two ways : 
 
 1 Stat. 4 Hen. VIII. c. 2. 
 
88 Canon Law in England 
 
 Constitutio per papain et clerum ordinata non ligat 
 regionem cuius contrario semper usa est : 1 Iura positiva 
 ecclesiastica non alios ligare quam recipientes. He 
 stood his ground ; he repeated quod iura ecclesiastica, 
 quorum contrarium practicattim est per consuehidinem 
 per 300 annos, non ligant nisi recipientes. It seems 
 clear that, though this may not have been the worst of 
 his opinions, it was ill received by the assembled clergy. 
 Then the king's justices began to talk of praemunire. 
 Wolsey knelt before the king, protested that no attack 
 on royal rights was intended, but protested also that the 
 practice of bringing clerks before the temporal forum 
 was contrary to the law of God and the liberties of holy 
 church. He begged that the matter might be laid before 
 the pope and his council in the court of Rome. Henry 
 would not yield ; he threw back in the face of the clergy 
 the charge that they themselves were always trans- 
 gressing the decreta. Now we must not manufacture 
 arguments out of a story which is told by a nameless 
 reporter, and which at a few points does not fit in very 
 well with some other evidence. Also it should be noted 
 that part of the high-church contention was that the 
 immunity of criminal ecclesiastics was secured to them, 
 not merely by the his positivum ecclesiasticum, but also 
 by the imprescriptible ius divinum, which contained that 
 apposite text, Nolite tangere Christos meos. And by the 
 way we must notice that very recently Pope Leo in the 
 fifth Lateran Council had declared that according to the 
 law of God as well as human law, laymen have no power 
 over ecclesiastics, so that Wolsey's was an appeal to a 
 foregone judgment, and indeed it is likely enough that 
 the English clergy's renewed and belated demand for 
 the privilegmm fori was the outcome of this papal 
 
 1 In the report this statement takes an interrogative form. Standish 
 was asked an constitutio . . . ligat regionem, etc. 
 
Church, State, and Decretals 89 
 
 manifesto newly brought from Rome by the abbot of 
 Winchcombe. 1 But still Dr. Standish's assertion that 
 the his positivum was not binding in a country which 
 had not ' received ' it seems to have met, to say the 
 least, with little approbation among those who, if our 
 current theory be true, maintained it as a primary rule 
 in their ecclesiastical courts. ' What shoulde one poor 
 frier doe alone against all the bishops and the clergie of 
 England?' exclaimed the doctor. No doubt, as men 
 will in such cases, he was exaggerating his isolation, but 
 certainly he defended himself very ill if he had only 
 been repeating a commonplace of the English canonists. 
 Time, however, was on his side ; his doctrine was soon 
 to become a commonplace, a statutory commonplace, of 
 the ecclesiastical courts. 2 
 
 The proof of which we are in search must be found, 
 if anywhere, before the breach with Rome. To rely 
 upon testimony which comes from a later date would be 
 to beg the whole question. At this point in the argu- 
 ment we must become painfully aware that the problem of 
 legal history with which we have been busying ourselves 
 will, at least in some eyes, become merged in a much 
 
 1 Bull of 5 May 1514: Lateranense Concilium Novissimum, Rome, 1521, 
 f. 133; Labbe et Cossart, xiv. 228; Hefele-Hergenrother, Concilienge- 
 schichte, viii. 610. On 4 Feb. 1512 the abbot of Winchcombe (Richard 
 Kidderminster) was commissioned to attend the council as one of the 
 English representatives {Letters and Papers, Hen. VIII., 1509-14, pp. 320, 
 341). For more of him see Wood, Atlienae (ed. Bliss), i. 62. I have not 
 seen positive proof that he was present at the council. 
 
 2 For this story see Keilwey's Reports, ed. 1688, f. \%ob ; also Letters 
 and Papers, Henry VIII., 1515-18, pp. 351-54, and Mr. Brewer's Introduc- 
 tion, p. ccxxiii ff. Almost at the same moment the bishop of London was 
 saying that his chancellor, Dr. Horsey, who was accused of murdering Hun 
 in the Lollards' Tower, could not obtain a fair trial, ' for assured am I if my 
 Chauncellor be tryed by any xii. men in London, they be so maliciously set 
 infauorein heretice prauitatis that they wyll cast and condempne any clerke, 
 though he were as innocent as Abell' : Hall's Chronicle, ed. 1809, p. 579 ; 
 Letters and Papers, 1515-18, p. 1. 
 
go 
 
 Canon Law in England 
 
 wider problem, or rather, it is to be feared, in a general 
 controversy over the continuity and discontinuity of 
 English ecclesiastical affairs. Let us, as far as may be, 
 stick to our legal last. Our question must be whether 
 one particular strand is continuous. Are we entitled to 
 suppose that the treatment which ' the foreign canon 
 law' received in our courts Christian before England 
 had renounced the authority of the Roman bishop was 
 substantially the same as the treatment that the aforesaid 
 law received in those courts after that event ? I cannot 
 believe that this or anything like this is true. 
 
 The few words that will here be said about the effect 
 of the Reformation will not be taken as an argument to 
 prove that, had it not been for the absolute rejection of 
 the papal primacy, our ecclesiastical courts would never 
 have come by a theory which made the validity of 
 decretals depend upon their ' reception.' The develop- 
 ment of Gallicanism would be a sufficient warning 
 against any such assertion, though, if we were to specu- 
 late about what might have happened, and were to 
 compare England with France, we should have to re- 
 member once more that the one great work of an 
 English canonist of the fifteenth century shows no liberal 
 tendencies, no interest in the conciliar movement, nothing 
 but a conservative curialism. However, with what 
 might have been we have not to deal ; we must speak of 
 what happened, and the danger of any inferences drawn 
 from the courts of the reformed to those of the unre- 
 formed church will be manifest. 
 
 In the first place, we have come upon what must be 
 called a sudden catastrophe in the history of the spiritual 
 courts. Henceforth they are expected to enforce, and 
 without complaint they do enforce, statutes of the tem- 
 poral legislature, acts of the English parliament. Hence- 
 forth not only is their sphere of action limited by the 
 
Church, State, and Decretals 91 
 
 secular power — that is a very old phenomenon — but 
 their decisions are dictated to them by acts of parliament 
 — and that is a very new phenomenon. To take but one 
 example, from 1 540 onwards the marriage law that they 
 administer is in great measure law dictated by an act of 
 parliament which has at one stroke and with many 
 opprobrious words consigned to oblivion vast masses of 
 intricate old canon law relating to consanguinity and 
 affinity. 1 
 
 In the second place, these acts of parliament which 
 the ecclesiastical courts must now administer are impos- 
 ing upon them not merely new law but a theory about 
 the old law, and it is in substance just that theory the 
 truth of which is here in question. Henceforth a statu- 
 tory orthodoxy will compel all judges to say that it was 
 only ' by their own consent ' that the people of this realm 
 ever paid any regard to decretals or other laws proceeding 
 from any 'foreign prince, potentate, or prelate.' 2 What 
 is more, these same statutes will eloquently inculcate a 
 free criticism of the old law — nay, a contempt for and a 
 righteous indignation against certain portions of it. The 
 bishop of Rome (called the pope) has during some 
 indefinitely lengthy age been 'abusing and beguiling,' 
 ' intangling and troubling ' the king's lieges ' by making 
 unlawful what by God's word is lawful both in marriages 
 
 1 Stat. 32 Hen. vm. c. 38. A few medieval statutes perhaps crossed 
 the line, e.g. by (i.) fixing probate fees, (ii.) directing that a defendant in the 
 ecclesiastical court should receive a copy of the libel, so that he might sue 
 for a prohibition, (iii.) endeavouring by more or less indirect means to secure 
 the institution of vicarages, and (iv.) bidding the bishops take measures for 
 the punishment of clerical offenders. Hut the exceptions are of the rule- 
 proving order. In the first case the ecclesiastical claim could be based on 
 no higher title than 'custom.' In the second the secular power was pro- 
 tecting its own jurisdiction. In the third the state could fairly assert a right 
 to dictate the terms upon which a licence to 'appropriate' should issue from 
 the chancery. In the fourth the state dared not go beyond admonition and 
 vague threats. 
 
 2 Stat. 25 Hen. VIII. c. 21. 
 
9 2 
 
 Canon Law in England 
 
 and other things.' And now the king, who ' is otherwise 
 by learning taught than his predecessors in times past of 
 long time have been,' 1 has discovered the fraud, and is 
 going to annul and extirp much that has passed for law. 
 Ecclesiastical judges who are expected to put in force 
 these statutes will, without doubt, be ' otherwise by 
 learning taught than their predecessors in times past of 
 long time have been.' Some of these ecclesiastical 
 judges will be laymen, who would have been incapable 
 of sitting on the judgment seat to declare the law of the 
 church, were it not for a statute which has swept away 
 divers constitutions of the bishop of Rome and 'his 
 adherents' the bishops of England, and at the same time 
 has proclaimed that ' by the word of God ' the king has 
 and has always had full power and authority to exercise 
 ecclesiastical jurisdiction. 2 It seems to me, therefore, 
 that if we suppose that in the reign of Henry vm. a new 
 doctrine about the decretals began to prevail in the 
 spiritual courts of this country, we are not supposing a 
 change for which no adequate cause can be assigned. 
 
 But the great breach of continuity has yet to be 
 noted. The academic study of the canon law was pro- 
 hibited. No step that Henry took was more momentous. 
 He cut the very life thread of the old learning. The 
 ecclesiastical judges in time to come might administer 
 such of the ancient rules as were not contrariant nor 
 repugnant to the laws (newly interpreted) of God and 
 
 1 Stat. 32 Hen. VIII. c. 38. 
 
 2 Stat. 37 Hen. VIII. c. 17 : 'Nevertheless the bishop of Rome and his 
 adherents, minding utterly as much as in them lay to abolish, obscure, and 
 delete such power given by God to the princes of the earth, whereby they 
 might gather and get to themselves the government and rule of the world, 
 have in their councils and synods provincial made . . . divers ordinances 
 and constitutions . . . lest their false and usurped power, which they pre- 
 tended and went about to have in Christ's church, should decay, wax vile, 
 and be of no reputation, as by the said councils and constitutions provincial 
 appeareth. 1 
 
Church, State, and Decretals 93 
 
 the statutes of our lord the king ; but they would not 
 have been, like their predecessors in time past, steeped 
 and soaked for many a year in the papal law-books and 
 their ultra-papal glosses. And, as if this were not 
 enough, Henry encouraged and endowed the study of 
 'the civil law,' and the unhallowed civilian usurped the 
 place of the canonist on the bench. The significance of 
 this change is sometimes overlooked. Owing to the 
 rapid development of our own English system of tem- 
 poral law, the civilian who was only a civilian had never 
 found much to do in this country, and ' the civil law ' 
 seems to have been chiefly studied as a preparation for 
 the canonist's more lucrative science. 1 The consequence 
 is that we in England are apt to lump the legists and 
 decretists together, and contrast them with ' the common 
 lawyers.' Thus we are in danger of forgetting that in 
 other parts of the world the legists and decretists had 
 not always dwelt together in unity, and that just about 
 those questions which were coming to the front in Henry 
 viii. 's day there was like to be open war between them. 
 The rulers of the church had long known this : had long 
 known that the jurisprudence of Justinian's books, if it 
 was a useful handmaid, would be a terrible mistress. 
 What else should it be ? The first lesson that we learn 
 if we open the Code is the very lesson that Henry was 
 teaching, namely, that an emperor can legislate De epis- 
 copis et clericis, De sacrosanctis ecclesiis, nay, for the 
 matter of that, De summa trinitate et fide catliolica. 
 What does the first chapter of the first title of the first 
 book teach us ? That the emperor fixed the faith of his 
 subjects by reference to the standard orthodoxy of the 
 
 1 In the England of the fourteenth century the unordained civilian was 
 not unknown. Murimuth (pp. 17 r, 229) describes John of Shoreditch as 
 ' doctor legum, advocatus et miles de concilio regis existens,' ' miles sapiens 
 et iuris professor.' Also there were even among the bishops men who were 
 doctores legum, and not to all seeming doctores trtriusque iuris. 
 
94 
 
 Canon Law in England 
 
 bishops of Rome and Alexandria. What an emperor 
 did, a king who had ' the dignity and royal estate of an 
 imperial crown ' could undo. The theory of church and 
 state which the civilian found in his books was the 
 imperial papalism, the Cdsaro-Papismus, of Byzantium, 
 and now what had been the one known antidote to this 
 theory was to be placed out of reach : the schools of 
 canon law were closed. If Henry was minded to be 
 ' the pope, the whole pope, and something more than 
 pope,' 1 he might trust the civilians to place the triple 
 and every other crown upon his head. In the eyes of 
 'the common lawyers,' whose traditions were medieval, 
 the church might still have appeared as a power co- 
 ordinate with the state, a power with which the state 
 could treat, co-operate, quarrel ; but the civilian, whose 
 sacred texts were shaking off the dust of the middle ages, 
 would, if he were true to his Code and Novels, find his 
 ideal realised when, and only when, the church had 
 become a department of the state. The most superbly 
 Erastian of all Henry's grandiose preambles (we might 
 call it the Unam sanctam of the royal supremacy) intro- 
 duces a statute that benefits the doctors of the civil law. 
 They would not be ungrateful. 2 
 
 Of the English civilians of the sixteenth century too 
 little has yet been written ; but we may know something 
 of the doctrines that were being taught in the Oxford 
 law-school about the year 1600 by the able and erudite 
 occupant of the chair that Henry had founded. From 
 Professor Alberico Gentili the young men who were 
 preparing themselves for practice in our spiritual courts 
 might learn a great deal about the old canon law (for 
 
 1 Stubbs, Seventeen Lectures, 1886, p. 262. 
 
 2 It is not an accident that the Protector Somerset desires 'a civil law- 
 college ' in Cambridge ; it is not an accident that his project is resisted by 
 Stephen Gardiner. 
 
Church, State, and Decretals 95 
 
 the professor had read it under good masters), but they 
 might also learn to loathe and despise it as a mass of 
 bad Latin and brutal ignorance, the product of dark 
 ages, in which the sacerdotal lust for power had filched 
 from the kings and princes of the earth their God-given 
 rights. They might learn also that it was the work of 
 antichrist, and would be sent for their theology to Luther 
 and Melanchthon, to Beza and Calvin. Perhaps, though 
 Dr. Gentili called himself a loyal son of the English 
 church, his inmost thoughts about religion were not 
 exactly expressed by his words. In any case, however, 
 he hated the canon law as the thoroughbred civilian 
 should hate it ; the days of servitude were past, and the 
 time for revenge had come. Anything that Coke or 
 Prynne may say in disparagement of the church's justice 
 will seem tame or clumsy if we set it beside the fiery 
 words of this legist, who is training the future expounders 
 of English ecclesiastical law. With strict truth we may 
 say that his words are fiery : Ftammis, flatnmis libros 
 sptircissimos barbarorum, non solum impiisimos anti- 
 christi ! Flammis omnes, flammis ! x 
 
 Professor Gentili would be no fair type of the English 
 civilians of his time. They would not share in any full 
 measure either his feud against, or his knowledge of, the 
 old law of the church. They were no refugees : they 
 were easy Englishmen, and year by year they were 
 becoming more English and less cosmopolitan. So 
 
 1 Gentili was a prolific writer (see Professor Holland's life of him in the 
 Diet, of Nat. Biogr.), and is known to me chiefly through his De Nuptiis 
 (ed. 2, Hanovia?, 1614). The words quoted above come from lib. i. cap. 19. 
 Throughout the chapter he rails at the canon law. I should suppose, from 
 the numerous books cited by him in this and his other works, that he had 
 read a great deal of what had been written by the catholic canonists of all 
 ages. Dr. Holland says that he did not escape the charge of being /talus 
 atheus. I have seen nothing that would bear out an accusation of ' free 
 thinking,' unless this lurks in his well-merited laudation of heathen at the 
 expense of Christian jurists. 
 
9 6 
 
 Canon Law in England 
 
 large a use had been made of the king's supremacy, so 
 acquisitive were the king's justices, that before the end 
 of the seventeenth century a great part of the operative 
 law which the civilians had to learn and administer was 
 to be found in modern acts of parliament and judgments 
 delivered by the secular courts. 1 Our civilians were fast 
 acquiring what we may call the common law mind. If 
 any peculiar mental attributes are to be ascribed to them, 
 we may perhaps see some traditional bent towards 
 monarchy. Gentili's Cambridge colleague was Dr. 
 Cowell of the Interpreter. Also we may see a certain 
 tendency to regard as open some questions that are very 
 grave, questions about the dissolubility of marriage and 
 the like. 2 Papacy was gone, and who could tell how 
 much it had taken with it ? The theory that the pope 
 had never exercised lawful power within this realm was 
 pressed to its uttermost. 3 A few words spoken by a 
 judge in a court of common law were enough to abolish 
 an old canon as unreceived, though the evidence of 
 receipt was overwhelming. 4 All touch with continental 
 thought was being lost. The popes and councils were 
 mixed up in wondrous wise. 5 The glory had departed, 
 
 1 See Godolphin's Repertorium, under such titles as 'Pluralities, 1 'Non- 
 Residence,' 'Tithes,' etc. 
 
 2 (iodolphin, op. cit. p. 501 ; see also Ayliffe, Parergon, p. 49. 
 
 3 The high-water mark may perhaps be seen in the Irish Case of Com- 
 mendatn (Davis's Reports, p. 68). 
 
 4 In Charles I.'s day Mr. Justice Doderidge declares that the rule 
 Filius patri non potest in ecclesia succcdere does not hold in the church of 
 England: 'et issint, come Doderidge dit, fuit l'opinion d'un erudit civil 
 lawyer' (Stoke v. Sykes, Latch's Reports, p. 191). In this case we happen 
 to have singularly full proof that the rule was part of the English ecclesias- 
 tical law of the fourteenth century. Ayliffe, Parergon, p. 41, says that it is 
 not 'safe' for a bishop to refuse a presentee on this ground, but that the 
 archbishop usually grants a dispensation. See Phillimore, Eccles. Law, ed. 
 2, i. 312. 
 
 5 C.odolphin, op. cit. Appendix, p. 2 : 'The third part of the body of the 
 canon law was collected at the command of Boniface VIII., which contains 
 these books : (1) Sexti Deere tali urn ; (2) Clementinarum ; (3) Extravagantes 
 
Church, State, and Decretals 97 
 
 and much of the profit too. Diplomacy had escaped 
 from the civilian's clutch. The court of chancery was 
 beginning to steal what even the old courts had spared. 
 Thomas Fuller, in a happy phrase, tells us that ' although 
 the civilians kept canon law in commendam with their 
 own profession, yet both twisted together are scarce 
 strong enough (especially in our own sad days) to draw 
 unto them a liberal livelihood.' 1 It is not generally 
 believed that the commendator gives much thought to 
 the commended benefice. With the glory and the profit 
 went the learning. That truly learned ' History of 
 Tithes ' was written by one who was proud to call him- 
 self 'a common lawyer.' 2 Lyndwood's text-book was 
 thought to contain about as much canon law as a man 
 need know. In the eighteenth century there was some- 
 what of a renascence, though it was left for a divine to 
 compile a Codex Juris Ecclesiastici. However, at this 
 juncture the British fleet came to the civilian's rescue ; 
 it brought in ' prizes ' for condemnation, and he enjoyed 
 a short St. Martin's summer. A public international 
 law that was intensely, if privately, national, was his 
 chief contribution to the jurisprudence of the world ; for 
 the jurisprudence of the church he did and could do but 
 little. 
 
 One word more, since we have been led to speak of 
 schools and education. There seems to be sufficient 
 proof that during the middle ages the schools of canon 
 law at Oxford and Cambridge were singularly unpro- 
 
 Joh. XXII. et Communes! Ibid. p. 358 : After reading what Innocent III. 
 did in 1200, we read how 'in the second Lateran Council, holden an. n 20,' 
 a decree was made 'by the said Innocent in.' On p. 618 the fifth Lateran 
 Council is put far out of its true place. 
 
 1 Fuller, History of the University of Cambridge, sec. 6 ad fin. 
 
 2 Selden, Preface : ' What hath a common lawyer to do, so they murmur, 
 with writing of tythes. For by that name it pleases them to stile me, and I 
 must confess I have long laboured to make myself worthy of it.' 
 
 7 
 
9 8 
 
 Canon Law in England 
 
 ductive of anything that could be called original work. 
 When we have mentioned John of Ayton, John de 
 Burgh, and William Lyndwood, we have to all appear- 
 ance mentioned almost the only English canonists who 
 after the earliest years of the thirteenth century wrote 
 books that met with any success. There may yet be in 
 manuscript some surprises for us, and certainly the time 
 has come when they should be diligently sought ; but 
 for the present we are compelled to speak of our Eng- 
 lish schools as singularly unproductive. Then, again, 
 there seems to be in our libraries, in old catalogues, in 
 medieval wills, and in university statutes, sufficient proof 
 that our budding canonists were, as I have said, steeped 
 and soaked for many a year in foreign literature, in the 
 Decretum and the Decretals, in the works of Hostiensis 
 and the Archdeacon, of William Durant and Johannes 
 Andreae. Schools which produced so little that was 
 English and absorbed so much that was foreign were 
 not likely to be the nurseries of men who as advocates 
 and judges would freely criticise, dispute, and deny the 
 first principles of the science that they had laboriously 
 acquired. This and no less is what we demand of them 
 if we would see them handling the three papal law- 
 books as mere 'manuals,' and not as 'codes of statutes.' 
 In the Decretum they had been industriously taught that 
 papal edicts stand on a level with the canons of the 
 ecumenical councils, and then come three papal edicts, 
 Rex Pacifiais, Sacrosanctae, and Quondam nulla, drag- 
 ging statute - books in their train. We know that 
 Reginald Pecock (who, however, did not escape prose- 
 cution for heresy) had his doubts about the donation of 
 Constantine ; but it is hardly to be supposed, I fear, that 
 in English universities the lecturers on the Decretum 
 interjected sceptical comments, or said that one canon 
 was forged and another fudged. If such lectures were 
 
Church, State, and Decretals 
 
 delivered, no pains should be spared in the collection of 
 any traces of them that may yet be extant, for at present 
 we have all too little to serve as a counterpoise for 
 John of Ayton's reluctant and Lyndwood's exuberant 
 papal ism. 
 
III. WILLIAM OF DROGHEDA AND THE 
 UNIVERSAL ORDINARY 
 
 Let us change our point of view. The medieval 
 church was a state. Convenience may forbid us to 
 call it a state very often, but we ought to do so from 
 time to time, for we could frame no acceptable definition 
 of a state which would not comprehend the church. 
 What has it not that a state should have ? It has laws, 
 lawgivers, law courts, lawyers. It uses physical force 
 to compel men to obey its laws. It keeps prisons. In 
 the thirteenth century, though with squeamish phrases, 
 it pronounces sentence of death. It is no voluntary 
 society. If people are not born into it, they are bap- 
 tized into it when they cannot help themselves. If they 
 attempt to leave it, they are guilty of the crimen laesae 
 maiestatis, and are likely to be burnt. It is supported 
 by involuntary contributions, by tithe and tax. That 
 men believe it to have a supernatural origin does not 
 alter the case. Kings have reigned by divine right, and 
 republics have been founded in the name of God-given 
 liberty. 
 
 When the medieval church is regarded as a political 
 organism, as a state, it becomes very interesting. As a 
 whole the constitution of this state may be unique, but 
 there is hardly a feature in it for which we may not find 
 analogies elsewhere. At various points it becomes a 
 model for the constitutions of other and secular states, 
 while itself reproduces many traits of the ancient Roman 
 
The Universal Ordinary 
 
 101 
 
 empire. Also the canonists, since they have had Jus- 
 tinian's books before them, have been fostering this 
 resemblance, and applying to the pope whatever has 
 been said of the princeps. 
 
 But the question which will be always in the minds 
 of students of constitutions when they read ecclesiastical 
 history will be the question whether there is to be 
 federalism. The vast extent of the territory that was 
 to be governed, and its division among divers races, 
 each of which had an ecclesiastical history of its own, 
 might lead us to expect that the church would in course 
 of time make itself a model for federal states. No 
 doubt, again, if we look back to remote days and still 
 use the language of politics, we may see what can fairly 
 be called the federation of churches, the federation of 
 bishoprics under metropolitans, of provinces under a 
 primate. An ideal which might under favourable con- 
 ditions have become that of a definite federalism is 
 never wholly absent ; it comes to the front again and 
 again. But when the Hildebrandine age has opened, 
 and the church is in truth becoming a state, the dom- 
 inant note is not that compromise between unity and 
 plurality which is the note of federalism, but absolute 
 and seamless unity. Nor is this wonderful. External 
 warfare has a consolidating effect on internal structure. 
 The church state had begun its prolonged struggle for 
 jurisdiction with the secular states. Those coveted 
 'liberties,' that coveted independence, which could not 
 be won from the temporal power by isolated, by allied, 
 by federated churches, might be won by the church 
 universal, indivisible, and monarchical. The illustrious 
 forger knew it. The Pseudo-Isidore, so we are now 
 taught, had no great wish to aggrandise the pope. 
 That at least was not his primary object. He forges in 
 the interest of Frankish bishops ; but the ' freedom ' of 
 
102 
 
 Canon Law in England 
 
 the bishops can only be secured by the genuine or 
 spurious edicts of St. Peter's successors. 
 
 A single illustration of the close connexion between 
 the two tendencies will be enough. Few legal texts 
 have ever been more famous than the Si quis suadente 
 of the second Lateran Council. 1 If anyone at the 
 instigation of the devil lays violent hands upon a clerk 
 or monk, he is excommunicate. He does not need 
 excommunication ; he is excommunicate, and, except at 
 the hour of death, none but the pope can absolve him. 
 Such a canon as this will be popular among the clergy, 
 and its popularity will increase as the distance from 
 Rome increases and the penitent's journey lengthens. 
 And yet this is a dangerous canon if the churches are to 
 enjoy even a moderate measure of home rule. The 
 central power has an exclusive jurisdiction over a 
 common offence, wherever it be committed, and every 
 clergyman feels that his life and limb are protected, not 
 by his bishop, but by the pope. 
 
 Even if there had been a vigorous sentiment making 
 for federalism, the task of constructing the requisite 
 machinery would have been difficult. There was no 
 handy precedent for a federal state. There was a pre- 
 cedent both handy and imposing for an universal and 
 an absolutely unified monarchy. Federalism, again, 
 with its careful contrivances seems to imply a kind of 
 far-sighted forbearance which was foreign to the middle 
 ages. Also, if we treat the bishoprics as the federating 
 units, the interposition of metropolitans, and in some 
 cases of primates, between these federating units and 
 the federal government would complicate the arrange- 
 ment. Many other difficulties will occur to the mind of 
 anyone who studies ecclesiastical affairs from the pub- 
 licist's point of view. For example, if the popes are 
 
 Concil. Later. II. c. 15 (Mansi, x.xi. 530) ; c. 29, C. 17, qu. 4- 
 
The Universal Ordinary 
 
 103 
 
 allowed to exempt certain religious houses and then 
 whole orders from the power of the diocesan bishops, 
 we shall have upon our hands classes of men who are 
 members of the federal church, but are hardly for any 
 purpose members of any of the federated churches. 
 
 But I would here ask attention to one particular 
 feature in the constitution — namely, to the form which 
 the judicial machinery of the church was assuming in 
 that critical age the twelfth century. Judicial machinery 
 is always important. It was, however, more important 
 in the middle ages than it is now, for the function of 
 declaring law was scarcely to be distinguished from 
 that of making law. But even if we leave out of 
 account the possibility that a power to declare law 
 will become a power of open legislation, still judicial 
 machinery will be important. If, then, for the moment 
 we suppose ourselves to be champions of 'state rights,' 
 or, in other words, of the rights which the federated 
 units have against the federal whole, we must regard 
 with serious anxiety the appellate jurisdiction of the 
 court of Rome. What we shall look for and what we 
 shall not find is any formula, or even any well-directed 
 effort to construct a formula for the delimitation of those 
 causes which, since some federal interest is involved in 
 them, ought to come before a federal court. The curia 
 Romance is not a federal court ; it is an omnicompetent 
 court of appeal. But this is not all. The so-called 
 appellate jurisdiction which is being claimed and 
 exercised is monstrous to the modern eye. It is not 
 content with rectifying erroneous judgments ; it (if we 
 may so speak) anticipates presumably erroneous judg- 
 ments and thence passes on to entertain all manner of 
 complaints which a ' subject ' may have to make of 
 oppressive acts that have been committed or are being- 
 meditated by his 'prelate.' From this practice it was 
 
104 Canon Law in England 
 
 but a short step to the doctrine that the apostolic see 
 is an omnicompetent court of first instance for the whole 
 of Christendom, and this step seemed to be sanctioned 
 by ancient and incontrovertible authority. 1 The jurist 
 could state the matter thus : Normally the competent 
 judge is the judge ordinary of the defendant's domicile ; 
 but Rome is the common fatherland of all men, as 
 we learn from the Digest, and the pope is the judge 
 ordinary of all men, as we learn from the Decretum. 2 
 Now, if any such principle as this can be made good in 
 practice and on a large scale, then any talk of federalism, 
 or of any idea at all similar to that of federalism, will 
 be out of place. For a moment we might suppose that 
 this doctrine, even if it commanded a theoretical assent, 
 would encounter so many obstacles in the world of fact 
 that it would do little harm and little good. In days 
 when no steam engines rushed under the Alps surely 
 the diocesan courts in England had no need to fear 
 the competition of the court of Rome. But we are 
 underrating the resources of the central power. It 
 can delegate jurisdiction. Not only can it delegate 
 jurisdiction in a general way, it can delegate jurisdiction 
 over a particular cause. Thus, though it is true that 
 the plaintiff must send a messenger to Italy for a papal 
 
 1 c. 17, C. 9, qu. 3 : ' Cuncta per mundum novit ecclesia quod sacrosancta 
 Romana ecclesia fas de omnibus habet iudicandi, neque cuiquam de eius 
 liceat iudicare iudicio. Siquidem ad illam de qualibet mundi parte appel- 
 landum est : ab ilia autem nemo est appellare permissus. Sed nec ilia 
 preterimus, quod apostolica sedes sine ulla precedente sinodo et solvendi 
 quos sinodus iniqua damnaverat, et damnandi, nulla existente sinodo, quos 
 oportuit habuerit facultatem, et hoc nimirum pro suo principatu, quem 
 B. Petrus apostolus Domini voce et tenuit semper et tenebit.' See Thiel, 
 Epistolac, p. 399. 
 
 2 Thus, e.g., Tancred, Ordo (MS. Caius Coll. 85, f. 7) : 'Quis debet esse 
 iudex ordinarius alicuius rei ? Respondeo ille est iudex ordinarius rei apud 
 quem ille reus domicilium habet. . . . Item Roma est patria omnium, ut 
 ff. ad munici. 1. Roma [Dig. 50. 1, 33], et dominus papa iudex est ordinarius 
 singulorum, ut ix. qu. iii. cuncta per oi-bem [c. 17, C. 9, qu. 3].' 
 
The Universal Ordinary 
 
 rescript, many of the advantages of central and of local 
 justice can be combined. The court will sit in France 
 or in England, and will be composed of Frenchmen or 
 of Englishmen ; but it will emanate from the supreme 
 court and will wield prerogative powers. 
 
 Maintaining our assumed character as champions of 
 federalism, let us observe how insidiously this procedure 
 will sap the foundation of ' state rights.' The supreme 
 ruler, the president of the federal community, becomes, 
 in his own person or in the person of his commissioners, 
 a judge competent to declare law in all cases and in 
 all countries. And yet that patriotic sentiment which 
 would be fretted by the presence of an Italian legate 
 will lie dormant. English cases will be heard in Eng- 
 land by Englishmen, though by Englishmen who derive 
 their powers and instructions from Rome. It may come 
 to this, that the natural protectors of 'state rights' will 
 be constantly receiving and obeying mandates under 
 which they act as the subordinate officials of the central 
 tribunal. If this is to be so, we may as well give up 
 all thought of federalism. At any rate the kind of 
 jurisprudence which is the outcome of this judicial 
 system is likely to be a centripetal, Romipetal 1 kind. 
 It will not place in each diocesan or metropolitan 
 church any general and indefinite power of declaring 
 and making law within those wide limits that are drawn 
 by federal interests ; far rather it will suppose and con- 
 struct an exhaustive ins commune for all causes in all 
 lands, and merely allow that this ' common law ' may 
 be supplemented by the ordinances of ' inferior ' prelates 
 or varied by such local customs as are prescript and 
 laudable. 
 
 But, to turn from these generalities to the particular 
 case of England, I cannot but think, though there may 
 
 1 D u Cange, s.v. Romipetae. 
 
io6 
 
 Canon Law in England 
 
 be something akin to impudence in my saying, that in 
 the admirable books to which we are in the habit of 
 looking for our English ecclesiastical history certain 
 parts of the long and many-sided story receive too little 
 notice. These happen to be the parts which interest 
 me, for the omitted chapters are those which should 
 deal with law and legal arrangements. In England 
 the ecclesiastical historian is usually but little interested 
 in law and legal arrangements. A meagre footnote will 
 be the most that he will spare for an ecclesiastical code 
 of some two thousand sections. The consequence is 
 that many questions which seem grave to a student of 
 law remain unanswered and even unasked. Is it not, 
 for example, a grave question whether this theory that 
 the pope is every man's ordinary bore fruit in England ? 
 Is it not a grave question whether in the age which 
 saw the publication of the Decretals the ecclesiastical 
 courts of first instance that did justice in this country 
 were very often courts constituted for the occasion by 
 a papal rescript ? Answer these questions I cannot ; 
 ask them I can, and at the same time offer some reasons 
 for thinking that an answer should not be lightly given. 
 
 In the first place, we may be quite certain that 
 the theory which would give the pope an ' ordinary ' 
 jurisdiction in all ecclesiastical cases was well known in 
 the England of Henry iii.'s reign. Bracton has stated 
 it. 1 There might, perhaps, be some force in the remark 
 that Bracton was no canonist, and that, as a strenuous 
 opponent of the claims of contemporary high churchmen, 
 he was concerned to belittle the power of the English 
 bishops in favour of the power of a pope who, provided 
 
 1 Bracton, f. 412: 'In fine notandum de iurisdictione maiorum et 
 minorum : et imprimis sicut dominus papa in spiritualibus super omnibus 
 habeat ordinariam iurisdictionem, ita habet rex in regno suo ordinariam in 
 temporalibus, et pares non habet neque superiores ; et sunt qui sub eis 
 ordinariam habent in multis, sed non ita meram sicut papa vel re.\. ! 
 
The Universal Ordinary 
 
 107 
 
 that he could get money out of England, was willing 
 that King Henry's justices should go their own way. 
 But a much weightier piece of evidence is offered by 
 this same Bracton. He has to speak at length of 
 ' prohibitions ' and to give models for the writs which 
 are used for the purpose of keeping the ecclesiastical 
 courts within their proper bounds. In so doing he 
 habitually assumes that the suit which must be pro- 
 hibited is being prosecuted under the authority of a 
 papal rescript. 1 The records of his time show that this 
 assumption had some warrant. We see one Englishman 
 suing another Englishman before two or three papal 
 delegates per breve domini papae, and we have no reason 
 to believe that in all these instances there had already 
 been an appeal to the pope from some inferior judge. 2 
 The newly published second volume of the Cartulary of 
 St. Frideswide supplies us, if I am not mistaken, with 
 records of no less than seventeen ecclesiastical lawsuits 
 in which the priory was engaged between the years 1 150 
 and 1240; all of them seem to be begun before papal 
 commissioners; the English ordinaries are ignored. 3 
 
 But some new light may be shed upon this matter 
 by what remains to us of the work of William of 
 Drogheda. Of him, therefore, let me say a few words. 
 Little is known of his life, though his memory has been 
 preserved for us by a famous chronicler, a famous 
 canonist, and a house in the High Street of Oxford 
 which still bears the name of Drawda Hall. 4 Johannes 
 
 1 Bracton, ff. 250/', 402/', 403, 403/', 404, 405. 
 
 2 Bractoris Note Book, pi. 62, 490, 536, 1387, 1388 ; Prynne, Records, i. 
 62, 67, 69, io8/;. 
 
 3 There are a few suits of a later time which go to the English courts. 
 
 4 Mr. Hastings Rashdall, who has spoken of this hall in his admirable 
 Universities of Europe, iii. 470, has kindly told me that the transfer of it 
 took place in 1241. This appears from a copy at University College and 
 a register at Queen's College. 
 
io8 
 
 Canon Law in England 
 
 Anclreae, ' the fount and trumpet of the law,' reckons 
 him among the number of those civilians who wrote 
 books on procedure. While lecturing at Oxford he 
 had, says the Bolognese doctor, composed a sufficiently 
 praiseworthy and ample book De Ordine Iudiciorum, 
 which was divided into six parts ; it began by treating 
 of 'impetration ' (what ' impetration ' means we shall 
 see hereafter), and made a considerable use of the 
 canonical sources. 1 From this we should infer that 
 Johannes Andreae had seen the whole of a book of 
 which but a small portion has come to our hands. Now 
 praise from Johannes Andreae was praise indeed, and 
 it has served at various times to awaken a faint interest 
 in Drogheda and his doings. 2 
 
 In the chronicle of Matthew Paris, Drogheda appears 
 for one moment and then vanishes into the darkness. 
 In 1 241 the bishop of Coventry and Lichfield died. 
 William of Montpellier was elected by the monks of 
 the one church, but opposed by some of the canons of 
 the other church and by the king. Litigation followed. 
 Then, under the year 1245, we are told that he went 
 to the pope and resigned his claim, having heard of 
 the lamentable death of one who was his staunchest 
 advocate in England : namely, William of Drogheda. 3 
 
 1 The passage is given by Savigny, Geschichte (ed. 1834), iii. 637, and 
 by Schulte, Geschichte, ii. 553. ' Secundus vero sit Guilielmus de Droreda 
 Anglicanus, qui legens Oxoniae satis commendabilem ct copiosum libellum 
 composuit de iudiciorum ordine, quem in sex partes divisit, et inchoavit ab 
 impetrando ; incipit autem : Cum omnc artificium. In eo autem satis 
 nostris iuribus utitur.' It seems clear from other passages that by 'nostra 
 iura' Johannes meant the canon as distinguished from the civil law. 
 
 2 Albericus Gentilis, Laiuies Academiae (Hanoviae, 1605), p. 39: 'et 
 Guilielmus Uorochius . . . erat doctissimus et illustris academiae huius 
 professor.' 
 
 8 Mat. Par. Chron. Mai. iv. .423 : 'Willelmus coynomento de Monte 
 I'essulano . . . cum audisset quod Magister Willelmus de Drouhedale 
 [al. Uroghedale] lugubriter expirasset, qui suus fuerat diligentissimus 
 advocatus in Anglia . . . doluit quod electus unquam exstitisset.' Whether 
 
The Universal Ordinary 
 
 109 
 
 This seems a high testimony to Drogheda's ability : the 
 elect bishop abandons all hope of success when he 
 learns that his 'leading counsel ' is dead. In the March 
 of this same year Drogheda obtained papal letters 
 suffering him to hold an additional benefice ; therein he 
 is described as rector of Strastun, in the diocese of 
 Lincoln : that is, apparently, of Stratton Audley, in 
 Oxfordshire. 1 That he wrote his book in 1239 or 
 thereabouts is fairly well proved by the dates and the 
 citations that occur in it. 2 
 
 Portions of William's Summa are preserved in two 
 manuscripts now belonging to Caius College, and in 
 others which are at Luxemburg, Tours, and the Vatican. 3 
 We learn from the preface that the Summa consisted of 
 six books. The first dealt with the procedure in an 
 action down to litiscontestation ; the second with matters 
 occurring between litiscontestation and sentence ; the 
 third with sentence and its consequences ; the fourth 
 with appeal ; the fifth with matrimonial causes ; the 
 sixth with criminal procedure and also with election 
 and postulation. None of the manuscripts that I have 
 
 the 'lugubriter' implies an especially tragic death we can hardly say. An 
 Englishman would easily believe that the name Drogheda should end in 
 dale. 
 
 1 Calendar of Papal Registers, i. 214. Here the name appears as 
 Droweda. 
 
 2 Some extracts from it were given in English Historical Review, xii. 
 645. 
 
 3 Of the Caius MSS. tidings were given by Wunderlich in 1842 (Zeit- 
 schrift fiir geschichtl. Rechtswissenscha/t, xi. 79). Bethmann-Hollweg, who 
 had examined the Luxemburg MS. (Stadtbibliothek, No. 105), describes the 
 work in Civilprozess des geineinen Rechts, vi. 123. See also Schulte, 
 Geschichte, ii. 113. For the Tours MS., see Dorange, Catalogue des Manu- 
 scrits de la Bibliotheque de Toitrs, p. 310. For the Vatican MS., see 
 Stevenson, Codices Palatini Latini Bibliothecae Vaticanae, p. 283. Mr. 
 Bliss has kindly given me some information about this Roman codex See 
 also Delisle, Litteraiure latine, p. 67. I owe my best thanks to the 
 master and fellows of Caius College for permitting me to use their manu- 
 scripts. 
 
I IO 
 
 Canon Law in England 
 
 mentioned contains the whole of the treatise thus pro- 
 jected. The longer of the Cambridge mss. breaks off 
 while the defendant is still propounding his 'exceptions,' 
 while the other breaks off at a yet earlier point, when 
 the plaintiff is composing his ' libel.' In neither of these 
 cases, therefore, have we even the whole of the first of 
 the six books. Yet the fragment offered by the longer 
 codex is by no means brief. It fills with double 
 columns a hundred pages of parchment, and there are 
 some fifty lines on the page. The whole treatise, if it 
 was ever finished, must have been ponderous. Its 
 author could be verbose. His one modern critic, Beth- 
 mann-Hollweg, found little good to say of him. 1 
 
 In a certain sense his book is academic : that is, it 
 was meant in the first instance for the Oxford law 
 school. On the other hand, it is intensely practical. 
 He is going to teach his readers to win causes, and begs 
 that a few of the fees that they earn may purchase masses 
 for his soul. His object is to trace an action through 
 all its stages, to solve the questions about procedure 
 which will beset the practitioner, to supply him with 
 useful formulas or models for the various documents 
 which he may have to indite, and to offer him sound 
 advice in the shape of cautelae. This last word we 
 can hardly translate without condescending to the slang 
 of 'tips,' and 'wrinkles,' and 'dodges'; and in truth 
 some of William's cautelae do not deserve very pretty 
 names, for they are none too honest. He was, I sup- 
 pose, according to the standard of his time a learned 
 man. He can finish almost every sentence with an 
 appeal to Digest or Code, Decretum or Decretals ; but, 
 
 1 Bethmann-Hollweg, op. cit. p. 126: 'Von der Schrift selbst ist nicht 
 viel Gutes zu sagen. Die Redseligkeit und Eitelkeit des Verfassers tritt 
 schon darin hervor, dass er sich erst in einem kiirzeren Vorwort und dann 
 in einer langeren Vorrede iiber Absicht und Plan seiner Arbeit hochst 
 weitschweifig auslasst,' 
 
The Universal Ordinary 
 
 except in a few instances, we find none of those citations 
 of other men's opinions which swell and swamp the 
 work of the later canonists. However, it would appear 
 that he took many of his formulas for libelli (or, as we 
 might say, ' statements of claim ') from a certain Roaldus 
 or Redwaldus, whose name has been vainly sought in 
 the histories of Savigny, Schulte, and Bethmann-Hollweg. 
 He is well aware that of some of these formulas no use 
 can be made in England ; any attempt to employ them 
 would at once call down a royal prohibition. In one of 
 his cautelae he tells us that in England you cannot sue 
 a layman for money in the ecclesiastical court, unless the 
 cause be matrimonial or testamentary ; but he goes on 
 to explain that practically you can gain your end by 
 nominally asking that the defendant may be chastened 
 for his soul's health, since he will be unable to obtain 
 absolution until he restores anything that he is wrong- 
 fully withholding. When we look at the large number 
 of formulas for libelli of all sorts and kinds which 
 William gives, we are reminded that he lives at Oxford 
 in the midst of a privileged society. This is brought 
 home to us yet more forcibly when in an amusing catitela 
 he tells how one of his scholars was imprisoned by the 
 mayor of Oxford, and how that miserable townsman 
 found that no less than five actions based on this 
 one rash deed were brought against him before an 
 university which seems to have been both plaintiff and 
 judge. 
 
 What we have of his work is perhaps too fragmentary 
 and too technical to deserve an edition in the England 
 of to-day. But one remarkable feature it has. William 
 assumes that the first step taken by any English litigant 
 will be the ' impetration ' of a papal writ appointing 
 judges delegate to hear his cause. This ' impetration,' 
 he says, is the head and foundation of the whole pro- 
 
I 12 
 
 Canon Law in England 
 
 cedure, and therefore the first formula that he gives us 
 must be a precedent for a letter sent to the court of 
 Rome by a plaintiff who is about to bring an action. 
 This formula supposes that the vicar of a church has 
 a complaint to make about tithes, oblations, or other 
 matters against the rector and certain other persons, and 
 that the plaintiff is desirous that the cause should be 
 delegated to the dean, precentor, and archdeacon of 
 Hereford. Such formulas the practitioner will keep in 
 stock, and he will be careful to insert a ' si non omnes 
 clause' which will empower some of the judges to pro- 
 ceed in the absence of their fellows. The plaintiff is 
 advised to retain a copy of this petition ; also to entrust 
 the petition not to one bearer but to several bearers, 
 since there is a chance that one may die on the road. 
 Moreover, if he has an adversary in the court at Rome, 
 he had better see that he has a friend there also. This 
 is not dolus mains, it is dolus bonus. If his ' impetration ' 
 is successful, then his next step will be to present the 
 papal mandate to the delegates who are named in it, and 
 to obtain from them a sealed memorandum acknowledg- 
 ing their receipt of it. 
 
 This procedure is strikingly similar to that which is 
 open to an Englishman who wishes to bring an action 
 in the English king's court. In either case we begin by 
 ' impetrating ' a writ. 1 In the one case it comes from 
 the English, in the other from the Roman chancery. 
 The same technical term is in use. The English 
 Serjeants will call the writ which starts an action ' the 
 original.' William of Drogheda uses this very phrase. 
 The plaintiff is to present ' the original ' to the judges 
 delegate. 2 Drogheda knows well enough that England 
 
 1 See, e.g., Bracton, f. 253^ : 'facta igitur impetratione.' 
 
 2 ' Deinde videndum est quod ad officium actoris pertineat si velit quod 
 adversarius eius vocetur ad iudicium. Accedat ad iudicem, nec exspectet 
 
The Universal Ordinary 
 
 ii3 
 
 is full of judges ordinary ; but he assumes and steadily 
 maintains the assumption that all the big and remunera- 
 tive litigation, all the litigation in which Oxford doctors 
 are likely to have a professional interest, will be litigation 
 which is brought in the first instance to a court con- 
 stituted for that occasion by a papal breve} 
 
 When we think of high seas and high Alps, and the 
 dangers that beset the medieval wayfarer, we may marvel 
 at the preference thus shown for a procedure which 
 begins with a tedious, toilsome, and perilous journey, 
 undertaken by the two or three bearers of a petition to 
 a foreign prelate. Why not be content with the courts 
 at home, where there was an archdeacon always at hand 
 and the bishop's official was never many miles away ? 
 Part of our answer to this question will probably be 
 that appeals had been so much encouraged that to go to 
 the highest court in the first instance was often a short 
 cut. Sooner or later the cause would be laid before the 
 pope, and therefore time and money might be saved by 
 at once seeking the threshold of the apostles and ' im- 
 petrating ' an appointment of delegates. 
 
 In the second place, it is likely that the geographical 
 limits set to diocesan justice were obstacles which often 
 stood in a litigant's way. You wish to sue as co- 
 defendants a man who lives at Lincoln and another who 
 lives at York. What are you going to do ? No English 
 prelate has power over both these men. In the judicial 
 system Canterbury is a unit and York is a unit ; but 
 
 ut iudex ad eum ueniat, . . . et ostendat originale una cum memorando 
 prius confecto ut supra dictum est, quia aliter iudex non crederet ei.' . . . 
 ' Instruat iudicem de citacione facta per originale rescriptum domini pape et 
 non per eius exemplum.' 
 
 1 Does not this go even beyond the Italian models? Aegidius de 
 Fuscariis (MS. Caius College, No. 54) begins his 'ordo' thus : ' Quoniam 
 actores plerumque omisso ordinario iudice impetrant litteras volentes litigare 
 sub iudice delegato, idcirco videndum est qualiter litterae debeant iudict 
 presentari.' 
 8 
 
ii4 
 
 Canon Law in England 
 
 England is no unit. Too often we speak of ' the church 
 of England,' and forget that there was no ecclesiastically 
 organised body that answered to that name. No tie of 
 an ecclesiastical or spiritual kind bound the bishop of 
 Chichester to the bishop of Carlisle, except that which 
 bound them both to French and Spanish bishops. On 
 the other hand, papal justice knew no geographical 
 bounds, at least in the Occident. Drogheda in some 
 of his formulas supposes that the dean and precentor of 
 Hereford, who are the delegates appointed by the pope, 
 will order the dean of Oxford to do this, that, and the 
 other, as if he were their subordinate officer, and will 
 threaten him with punishment if he does not obey. 
 
 But, thirdly, and this is of great importance, the 
 plaintiff who went to the pope for a writ seems to have 
 enjoyed a large liberty of choosing his own judges. In 
 the letter of ' impetration ' that he sent to Rome he 
 named the persons whose appointment he desired. The 
 pope, no doubt, was free to name other delegates in 
 their stead ; still we may believe that the plaintiff 
 generally got his way unless he asked for something 
 outrageous. And we have to remember that the de- 
 fendant, unless he was one of those great people who 
 kept permanent agents in the court of Rome, had no 
 chance of being heard at this stage of the action, for 
 indeed no action had yet been begun. A plaintiff, it is 
 true, would, if well advised, be cautioned against asking 
 for delegates who would be allied to him by any gross 
 and obvious bonds, for the defendant would be able to 
 ' recuse ' judges against whom a specific charge of pre- 
 sumable partiality could be made ; but still it is an 
 enormous advantage for us to be able to select our 
 judges, even though our choice be limited to those 
 who are open to no 'exception.' About the time when 
 Drogheda was lecturing, England was honoured by 
 
The Universal Ordinary 1 1 5 
 
 the presence of an Italian lawyer who was then serving 
 our king", but was to become in aftertime a very prince 
 amongst canonists, for, though Ostia has had many 
 bishops, he, and only he, was to be ' Hostiensis.' He 
 quitted England. He was going to buy a bishopric 
 with money that he had embezzled, says Matthew Paris, 
 who thought ill of Italians. 1 His own story is different. 
 Our jealousy expelled him. An Englishman who has 
 aught against a foreigner ' impetrates ' from the pope 
 the appointment of English judges, and, this being so, 
 England is no place for foreigners. 2 Archbishop Peck- 
 ham, when he was quarrelling with the bishop of Here- 
 ford, sent to his proctors at Rome a list of the judges 
 who would be 'good,' of those who would be 'better,' 
 of those who would be ' best ' ; and in the eyes of 
 a litigant the most impartial judge will not be the 
 'best.' 3 
 
 This, then, is the legal doctrine which was being 
 taught in Oxford some five or six years after Gregory 
 ix. had issued his code. It was being taught in an 
 Oxford which was full of intellectual life while Edmund 
 of Abingdon ruled at Canterbury and Robert Grosse- 
 teste at Lincoln. It was being taught in an Oxford, an 
 England, which did not love the pope, but growled and 
 grumbled at him and his exactions. The clergy were 
 between the upper and nether millstones, and yet a 
 revolt against the pope was impossible, for a revolt — at 
 
 1 Mat. Par. Chron. Mai. iv. 33, 286, 351, 353. Compare Prynne, Records, 
 ii. 578, 588, 590, 593, 632. 
 
 2 Hostiensis, Summa, tit. ' de recus. hid. del.' (ed. Venet. 1605, col. 308) : 
 ' Consuevit etiam livor invidiae regnare inter indigenas et alienigenas . . . 
 Haec causa et quaedam aliae fecerunt me Angliam elongare. ... Si 
 Anglicus impetrat Anglicum contra alienigenam morantem in Anglia vel 
 alienigenam compatriotam Anglicum, puto quod turn ratione familiaritatis 
 et amicitiae quasi fraternae . . . turn ratione livoris invidiae, nisi sit persona 
 valde honesta, talis iudex poterit recusari.' 
 
 3 Peckham's Register, p. 280, 
 
n6 
 
 Canon Law in England 
 
 all events an ecclesiastical revolt — must have a principle 
 behind it, and will not be the outcome of mere grievances. 
 Every principle that the pope could demand was being 
 conceded to him by those who had the fate of the 
 English church in their hands. Nor must we throw all 
 the blame, if blame there is to be, upon the canonists, 
 upon such men as William of Drogheda. In our own 
 day and country the medieval canonist is defenceless ; 
 he has left no heirs. Some of us do not like lawyers ; 
 some of us do not like priests ; upon the man who was 
 half priest, half lawyer, many dislikes are concentrated. 
 But we must be just to him. He was only drawing 
 practical inferences from premisses that he shared with 
 the theologian. Drogheda merely registers the fact that 
 the pope is the universal ' ordinary ' in order that he 
 may teach his pupils how fame and fees are won. It is 
 Grosseteste, the theologian, the bishop, the immortal 
 Lincolniensis, who will preach with fervour the doctrine 
 that the whole of a bishop's power is derived from, or 
 at all events through, the pope, and thus make all 
 thought of federalism an impiety. The bishop shines 
 with a reflected light which will pale and vanish when- 
 ever the papal sun arises. 1 
 
 To discover how many cases were carried in the first 
 instance before the pope's delegates, and how many 
 
 1 Grosseteste, Epistolac, 389 : ' Quemadmodum igitur sol, quia non potest 
 ubique super terram simul et semel praesentialiter lucere, ad tenebrarum 
 purgationem et terrae nascentium vegetationem, ne aliquando tamen careat 
 aliqua pars orbis terrarum solatio luminis, de plenitudine luminis sui, nullo 
 per hoc sibi diminuto, lunam et Stellas illuminat, ut in eius absentia luceant 
 in firmamento caeli et illuminent terram ; ipsoque sole revertente et suam 
 exhibente praesentiam super terram, ipsa minora luminaria radiis solis ab- 
 scondita solari cedunt lumini : Ita dominus papa, respectu cuius omnes alii 
 praelati sunt sicut luna et stellae, suscipientes ab ipso quicquid habent 
 potestatis ad illuminationem et vegetationem ecclesiae. . . .' Ibid. p. 369 : 
 ' Si dominus papa, qui a Iesu Christo, cuius vicem gerit, recepit plenitudinem 
 postestatis. ... Si episcopus potestatem quam accepit a domino papa et a 
 Iesu Christo per domini papae mediationem. . . .' 
 
The Universal Ordinary 1 1 7 
 
 went to the English ordinaries, would be difficult. We 
 hardly as yet know where to look for the original re- 
 cords {acta) which deal with the doings of the delegates. 
 Apparently there was no reason why such records should 
 be carefully preserved in large numbers, for they were 
 records of courts which had no permanent existence, 
 but were dissolved so soon as a single cause had been 
 decided. The quest, however, would not be hopeless, 
 and anyone who is exploring this tract of history might 
 at the same time explore another and contiguous region 
 of which too little is known. We have good reason to 
 believe that the ' usurpations ' of the court of Rome were 
 reproduced on a diminished scale by the usurpations of 
 the court of Canterbury. What is done by the great 
 pope of Rome is imitated in humble fashion by our own 
 little homely pope, who is indeed alteriits orbis papeilus. 
 If the one would make his court a court of first instance 
 for the whole of the Christian world, the other would 
 make his court a court of first instance for the whole of 
 his province. 
 
 In 1282, as is well known, a fierce dispute broke out 
 between John Peckham, the archbishop of Canterbury, 
 and Thomas Cantilupe, the bishop of Hereford. 1 To 
 all appearance Peckham asserted for himself and his 
 official (1) a general right to entertain in the first in- 
 stance complaints made against his suffragans' subjects 
 (subditi), and (2) a general right to entertain appeals 
 omisso medio : in other words, to hear appeals brought 
 to him directly from the courts of the bishops' sub- 
 ordinates : for example, the courts of the archdeacons. 
 The archbishop excommunicated the bishop. The bishop 
 appealed to Rome, and died in Italy while prosecuting 
 his suit. Forthwith he worked miracles, and in due 
 
 1 Peckham's Register, pp. 269, 271, 278, 290, 299, 30S, 315, 318, 321, 328, 
 334. 337, 382, 393- 
 
Canon Law in England 
 
 course became a saint. From this canonisation of one 
 who very probably was absolved only at the hour of 
 death we may infer that the court of Rome was inclined 
 to take a not unfavourable view of his resistance to the 
 archiepiscopal pretensions. 1 Meanwhile, however, Peck- 
 ham's action had aroused a general opposition among 
 his suffragans. They presented a list of one-and-twenty 
 grievances, each of which consisted in some unjustifiable 
 (so they said) extension of the metropolitan jurisdiction. 2 
 To every article the archbishop returned a haughty and 
 unyielding reply. He was in the right ; his reverend 
 brethren were in the wrong. 3 Soon afterwards, how- 
 ever, he consented to submit some of the disputed ques- 
 tions to five referees chosen by himself as being men 
 exceptionally learned in the rights and customs of the 
 church of Canterbury. 
 
 It is hardly too much to say that at every important 
 point they found that the archbishop or his official had 
 been innovating. 4 Two of their decisions are especially 
 worthy of notice. The first of these is as follows : — 
 
 Whereas the official of the court of Canterbury in modern times has, 
 in cases in which no appeal was being made, issued rescripts upon the 
 complaint of the subjects of the suffragans more frequently than was 
 done by the officials of the archbishop's predecessors, since it appears 
 that some of the older officials but rarely and some never at any time 
 issued rescripts upon such complaints, we decide that no rescripts shall 
 be issued upon such complaints in time to come. 
 
 An exception was made for cases of ' perplexity,' — that 
 is, for cases in which the courts of the suffragans could 
 
 1 Acta Sanctorum, 2 Oct. The bull of canonisation (p. 507) says : ' Iura 
 vero suae ecclesiae defensabat indutus iustitia ut lorica.' The opinion of 
 the papal commissaries as to the excommunication will be found at p. 594. 
 At the head of the commission was William Durant, the nephew of the 
 famous Speculator and himself a canonist of repute. 
 
 s Peckham's Register, p. 328. 3 Ibid. p. 332. 
 
 4 Ibid. p. 33 
 
The Universal Ordinary 
 
 119 
 
 not, owing to the geographical limitation of their com- 
 petence, do full justice, — but the general rule seems to 
 mean that the archbishop is not to make his court a court 
 of first instance for the folk who dwell outside his diocese 
 though inside his province. 1 An abuse has been growing 
 up ; its growth must be checked. One of the roots of 
 that abuse is laid bare by another decree of the referees. 
 
 Albeit the archbishop, by virtue of his legation, has, so it seems, 
 power to issue rescripts upon the complaint of [his suffragans' subjects] 
 where there is no appeal, still this power is not extended to the arch- 
 bishop's official, since the extraordinary legatine jurisdiction is not 
 included in the ordinary jurisdiction of the officialty, even though the 
 archbishop when appointing an official has willed that it should be so 
 included. Otherwise we should have the absurdity that a legate could 
 avail himself of the services of an official just as if his power were [not 
 extraordinary, but] ordinary. Therefore we decree that the officials of 
 Canterbury are not to issue rescripts upon such complaints as aforesaid 
 by virtue of the legatine power ; but if the archbishop [himself] desires 
 to issue rescripts in his character as legate he may, so it seems, do this 
 if some reasonable and specially urgent cause requires it, provided that 
 he does not intend to prejudice the rights of his suffragans and their 
 churches. 
 
 Very cautiously and with a repeated ut videtur these 
 learned persons are willing to admit that as legate the 
 archbishop may enjoy some jurisdiction of first instance, 
 but he ought to be chary in his use of it, and he cannot 
 delegate it in a lump to his official. 2 Having received 
 this report, drawn up by men whom he had selected, 
 Peckham in a none too gracious letter told his suffragans 
 that he would make concessions and waive some of his 
 rights. 3 
 
 1 The typical case of ' perplexity ' was that which engendered the doc- 
 trine of 'prerogative probate.' As to this see Lyndwood, p. 174 ; also the 
 bull of Alexander VI. in Wilkins, Concilia, iii. 641. 
 
 2 They would not, I take it, have denied that 'delegatus principis potest 
 delegare,' in case only one particular suit were delegated ; but the sub- 
 delegation of an ' universitas causarum ' was a different matter. 
 
 3 Peckham's Register, p. 334. 
 
120 
 
 Canon Law in England 
 
 If, therefore, as our books teach us, the court of the 
 archbishop had before the end of the middle ages 
 become not only ' the court of appeal from all the 
 diocesan courts of the province,' but also 'a court of 
 first instance in all ecclesiastical matters,' we can hardly 
 escape the inference that since Peckham's day it had 
 gone on usurping and usurping jurisdiction. 1 In such 
 a context the word ' usurpation ' will not of necessity 
 imply anything that is wrong. Many an excellent 
 arrangement has its origin in usurpation. The king's 
 courts of common law were notable usurpers. Were it 
 not for usurpation, England might still be feudal. Only 
 let us not keep one measure for the pope and another 
 for the archbishop. Neither the one nor the other had 
 much regard for the rights of mere bishops. The 
 statutory Reformation of the English church began with 
 an act that was aimed not at Rome but at Canterbury. 2 
 
 Usurpation we see wherever we turn. If we say 
 that the medieval church was a state, we must add that 
 among medieval states it was not the least anarchical. 
 True that in the matter of mere bloodshed it could not 
 compete with the temporal states, but the eternity, the 
 costliness, the rancour of its internal quarrels were un- 
 matched in the annals of secular principalities. In every 
 zone of the hierarchy from the utmost to the inmost 
 
 1 Ecclesiastical Courts Commission, i. p. xx : 'It was the court of appeal 
 from all the diocesan courts of the province, and likewise (whether or not 
 by virtue of the archbishop's legatine capacity) a court of first instance in 
 all ecclesiastical matters.' These words were taken from the paper written 
 by Dr. Stubbs, ibid. p. 31. Lyndwood, pp. 277, 278, urges with some vehe- 
 mence that the archiepiscopal official can wield the legatine as well as the 
 ordinary jurisdiction. This is directly contrary to the award of Peckham's 
 referees. Lyndwood seems to be asserting his right as official against the 
 claims of the archbishop's 'auditors.' 
 
 2 Stat. 23 Hen. vm. c. 9 : 'An Act that no person shall be cited out of 
 the diocese where he or she dwelleth, except in certain cases.' See War- 
 ham's protest, Wilkins, Concilia, iii. 746. 
 
The Universal Ordinary 
 
 121 
 
 there were open questions of constitutional law which, 
 if they were to be closed at all, could only be closed by 
 persistent and relentless usurpation. Claims to juris- 
 dictional superiority were being urged which had behind 
 them no principle except that which recognises the 
 accomplished fact, and they were met by proofs of a 
 resistance in the past which would justify a resistance 
 in the future. It will be enough to refer to the disputes 
 about primacies, of which our own country displays a 
 notorious example. This is but a typical case. In the 
 golden age of ecclesiastical law a man might say : ' Well, 
 I've been in some big affairs in my time. I was counsel 
 for the archbishop of Bourges when he claimed a primacy 
 over the archbishop of Bordeaux. I was counsel for 
 Compostella when it resisted Toledo's claim to a primacy 
 over all Spain. I was counsel for the archbishop of Pisa 
 when he claimed a primacy over Sardinia.' 1 But let us 
 think what this would mean if we translated it into 
 modern and secular terms. Will the North American 
 colonies ever unite in a federal system if through a long 
 age Maine, for example, has been asserting for its court 
 a bitterly contested right to hear appeals from all the 
 courts of New England ? At the growth of the court of 
 Rome's judicial power we cease to wonder when we see 
 how uncertain, how hotly debated are the boundaries 
 
 1 'Vidi tamen contencionem inter Bituricensem et Burdegalensem qui 
 dicebat se primatem Burdegalensis et fui advocatus pro Bituricensi coram 
 domino Gregorio IX. Item dicit se primatem Toletanus tocius Yspanie et 
 vidi contencionem inter ilium et Compostelanum coram domino Gregorio 
 IX. et fui advocatus pro Compostelano. Item dicit se primatem tocius 
 Anglie archiepiscopus Cantuariensis et contendit de hoc cum Eboracensi. 
 Item dicit se archiepiscopus Pisanus tocius Sardinie et fui advocatus pro eo 
 coram domino Gregorio IX.' This comes from a treatise contained in MS. 
 Caius Coll. No. 54, which treatise begins thus: 'Super actionibus com- 
 munibus compositi sunt libelli per graciam Iesu Christi que de iure civili 
 fuerant invente seu de iure pretorio, puta de edictis et interdictis.' This 
 seems to be the work of Roffrcdus (Savigny, cap. 40, § 67 ; Schulte, ii. 75). 
 
22 
 
 Canon Law in England 
 
 which mark off the spheres proper to the other courts. 
 The choice lay between anarchy and the plenittido 
 potcstatis. 
 
 That the English church did less than other churches 
 towards the unification of the universal church, towards 
 the consolidation of the judicial, and therewith the legis- 
 lative, might of the popes, we shall not easily believe if 
 we have glanced at the decretals. Just at the critical 
 moment England seems to have demanded, or at any- 
 rate to have received, a far larger number of papal 
 mandates than would have fallen to her lot, had the 
 supply that was exported from Rome been equitably 
 distributed among the importing countries according to 
 their area or their population. For a reason that de- 
 serves statement, it is difficult for us to arrive at precise 
 figures. The compiler of Pope Gregory's statute book 
 has in most cases endeavoured to preserve, in the form 
 of a superscription to each decretal, not only the name 
 of the pope who issued it, but also the title of the pre- 
 late to whom it was sent. Thus, for example, it is a 
 decretal sent by Alexander in, to the archbishop of 
 York: Alexander 1 1 1. Ebomcensi archiepiscopo. In the 
 course of transcription, however, these titles have suffered 
 badly, as anyone may see who looks at the variants 
 given at the foot of the pages in Friedberg's edition. 
 Thus it will often be doubtful whether a certain rescript 
 was directed to London, to Lund, to Lyons, or to 
 Laon. The copyists take little care about this matter, 
 because in their eyes it is so trivial. What difference 
 can it make whether this decretal was sent to York or 
 to Evreux, to Lincoln or to Langres ? It contains a 
 rule of law, of catholic and supernational law. 
 
 As to the proper names which occur in the decretal 
 itself, these have often been defaced beyond hope of 
 recognition. Here, for example, is a missive which 
 
The Universal Ordinary 
 
 123 
 
 deals with a lawsuit between two English parsons. The 
 parish of the one is variously designated as Sander, 
 Santcr, Santen, Sandeia, Sandria, Sandinia, Sandeta, 
 Sandaia, Fand., Sandola ; that of the other as Pclen, 
 Pele, Pete/, Ploren., Pclin., P eleven., Pelerenen., Posi- 
 tione, Posit ioni, Pon., Pomi, Peieren., Poinone, Portione, 
 Pone, Portino, Porten, Pot ton} Anyone who for his 
 sins has endured the railway journey between Oxford 
 and Cambridge will guess that the one village is Sandy, 
 and the other Potton ; but to the decretist the where- 
 abouts of these places was less than nothing. They 
 might be in Spain ; they might be in Hungary ; they 
 might be nowhere. They were but Blackacre and 
 Whiteacre, and the two quarrelsome parsons were but 
 Titius and Maevius, Styles and Nokes ; but they have 
 succeeded in extracting from Alexander in. a judgment 
 which the Italian lawyers think worthy of preserva- 
 tion, and which, when the partes decisae have been 
 omitted from it, finds a place in the Gregorian law- 
 book. 
 
 Therefore it is easy to make mistakes ; but we shall 
 not go very far wrong if we say that out of the 470 
 decretals of Alexander nr. which received the sanction 
 of Gregory ix., about 180 were directed to England. 2 
 Now it is true that during many years of his pontificate 
 (11 59—1 181) Alexander was not in a position to send 
 effectual decretals to those lands which obeyed the 
 emperor, for Frederick was keeping anti-popes of his 
 own. Also it may be true that the shifty and many- 
 faced policy of our Henry 11. was from time to time not 
 unfavourable to papal interference with English affairs, 
 1 c. 4, X. 2. 13. 
 
 • To take another test, we look at those letters of Alexander to 
 which Jaffe could assign no date. We find about 430 (Nos. 8815-9245) 
 addressed to persons whose names are given. About 212 of these were 
 sent to England. 
 
124 
 
 Canon Law in England 
 
 provided that those affairs were of a purely ecclesiastical 
 kind. Unfortunately the majority of Alexander's de- 
 cretals cannot be, or have not been, precisely dated, 
 and about those which came to England we rarely 
 know for certain whether they were issued before or 
 after the king's quarrel with Becket, before or after the 
 murder of the archbishop, before or after the humiliation 
 at Avranches. But, explain it how we may, the fact 
 that more than a third of Alexander's permanently im- 
 portant decretals have English cases for their subject- 
 matter is, or ought to be, one of the most prominent 
 facts in the history of the English church. As a maker 
 of case law, Alexander is second to no pope, unless it 
 be to Innocent in., and a surprisingly large number of 
 the cases which evoke case law from these two mitred 
 lawyers are English cases. 
 
 A decretal is by no means always the decision of a 
 concrete case ; often it is an abstract answer to an 
 abstract question. The English bishops seem to have 
 been peculiarly fond of submitting such questions to 
 the pope. What, they ask, are we to do about this or 
 that matter? In 1204 the bishop of Ely sent a whole 
 legal catechism to Innocent in. The answering epistle 1 
 has been cut up into no less than thirteen capitula, which 
 are included in the Gregorian book. The bishop wants 
 answers to the following questions : — How is he to tell 
 authentic from spurious decretals ? 2 Can a man who 
 has been received into the subdiaconate without im- 
 position of hands be allowed to minister? Must the 
 rite of confirmation be repeated when by mistake it has 
 been performed with oil instead of chrism? 3 In what 
 cases should a peremptory day be given to a defendant 
 for his dilatory exceptions? 4 In what cases must 
 
 1 Potthast, Regesta, No. 2350 ; ItaucentU Opera (Migne), ii. 478. 
 
 2 c. 8, X. 2. 22. 3 c. 1, X. 1. 16. 4 c. 4, X. 2. 25. 
 
The Universal Ordinary 
 
 125 
 
 litigants appear in person ? 
 
 Can a papal delegate 
 
 compel another person to act as sub-delegate ? Is a 
 partial sub-delegation of a cause possible ? What is to 
 to be done when one set of papal delegates has been 
 overruled by another set, an appeal having been ex- 
 cluded by the commission that appointed the first set, 
 but having none the less been entertained ? Must the 
 ordinary execute a sentence that he knows to be unjust 
 if commanded to do so by the papal delegate who has 
 passed the sentence ? What is to be done if the dele- 
 gate has appointed a day for trial, and one of the parties 
 maliciously procures that the delegate shall be sum- 
 moned elsewhere by the king or the archbishop, so that 
 his absence may cause delay? 2 Who is to decide 
 whether one delegation has been revoked by a later 
 delegation, the first or the second set of delegates ? 3 
 When a cause has come to the archbishop by way of 
 appeal, can he compel a subject of one of his suffragans 
 to act as delegate? If a sentence of excommunication 
 has been pronounced by a papal delegate, and the 
 delegate dies, can anyone absolve the excommunicate 
 without a special mandate from the pope? 4 May a 
 man deduct necessary expenses before he tithes the 
 produce of mills or fisheries? 5 When the religious 
 under papal privilege have been suffered to appropriate 
 a church to their use, and the parson dies, may they 
 take possession without waiting for episcopal induc- 
 tion ? 6 Quid iuris if a lay patron presents a clerk, and 
 the bishop refuses to admit him, and he appeals to the 
 pope, and the patron presents another clerk, whom the 
 bishop institutes? 7 If a bishop, with the consent of 
 the patron, confers a church upon the religious, saying 
 
 1 c. 14, x. 2. 1. 
 <c. 11, X. 1. 31. 
 f c. 29, X. 3. 38. 
 
 - c. 28, X. 1. 29. 
 5 c. 2S, X. 3. 30, 
 
 3 c. 14, X. 1. 3. 
 ,: c 19, X. 5. 33. 
 
126 
 
 Canon Law in England 
 
 simply, 'We grant you that church,' do the religious 
 acquire the church itself or merely the patronage ? 1 
 Can a bishop, without the consent of the pope or of his 
 chapter, confer the obventions of a parish church upon 
 a religious house? 2 When the words of a rescript 
 exclude an appeal, are they to be read as excluding all 
 appeals, or merely such as are frivolous ? 3 
 
 We must admire the patience of Pope Innocent, 
 who, though not without the remark that he had 
 many other things to do, set himself down to answer 
 this lengthy examination paper, and in so doing to 
 declare the law of the universal church. But as 
 Englishmen, we may be more interested in the bishop's 
 questions than in the pope's answers, and they certainly 
 show a docility which, whether praiseworthy or blame- 
 worthy, is remarkable enough, especially if we re- 
 member that Eustace of Ely was an important member 
 of the English state as well as of the English church. 
 If the pope acquired an almost unlimited power of 
 declaring law, if all the important spiritual causes passed 
 out of the hands of the ' ordinary ' judges into the hands 
 of papal delegates, the bishops of England were more 
 responsible for this good or bad result than were the 
 bishops of any other country. 
 
 We may be the more surprised at the frequency with 
 which our prelates went to the pope for their law, if we 
 observe that they sometimes received in return a smart 
 rebuke. Archbishop Richard of Canterbury (i 174-1 184) 
 has taken Pope Alexander's opinion about the absolution 
 of a certain litigant. The answering decretal begins 
 with the cheerful words Qua fronted 
 
 With what face you dare to consult us about questions of law we 
 cannot understand, since you are said to be perverting the order of 
 
 1 c. 7, X. 3. 24. 
 " c. 53, X. 2. 28. 
 
 2 c. 9, X. 3. 10. 
 * c. 25, X. 2. 28, 
 
The Universal Ordinary 
 
 127 
 
 justice in matters which are plain and free of doubt, and are obviously 
 infringing that ecclesiastical liberty for which your predecessor, the 
 glorious martyr Thomas, was not afraid to suffer martyrdom. You are 
 said to be confirming the election of bishops, not in a church, as is 
 canonical and becoming, nor even in your palace or your chamber, 
 but in the very chamber of the king, against the rule of law, and 
 against the dignity of the pontifical office. 
 
 To consult a superior who would speak to you in this 
 fashion cannot always have been a pleasant task, yet 
 apparently it had to be performed. Better this, perhaps, 
 than to have your judgments overruled on appeal, as they 
 would be if they fell behind the last new law that the 
 popes had evolved. The decent pomp of ecclesiastical 
 correspondence will be preserved. All bishops are 
 the pope's 'venerable brothers.' Open threats will 
 rarely be uttered, will rarely be necessary. A quiet 
 ' Don't let us have to write a second time ' will usually 
 be enough. 1 But on occasion a threat will be added. 
 If, says Alexander to the archbishop of Canterbury 
 and his suffragans, you presume to infringe this our 
 command, we, with the Lord's authority, will quash your 
 proceedings, and gravely punish your disobedience. 2 
 
 Already in the twelfth century appeals to Rome had 
 become frequent. It is a common story that English 
 litigants have either by their proctors or in their proper 
 persons made their way to the papal court. But already 
 many of the English causes that are laid before this 
 supreme tribunal seem to be causes that have never 
 come before any lower court. The pope rarely decided 
 them. Far more commonly he delegated them to two 
 or three English prelates. The cause was heard in 
 England ; but in more than one way this arrangement 
 must have brought home to our bishops a consciousness 
 
 1 c. 9, X. 3. 5: 'Alexander III. Cantuariensi archiepiscopo : . . . ita 
 quod . . . nos propter hoc iterato tibi scribere non compellamur,' 
 
 2 c 3. 1. 14. 
 
128 
 
 Canon Law in England 
 
 of their subordinate position. For one thing, they 
 could not refuse to act as delegates ; they could not 
 refuse even to act as sub-delegates. It was a special 
 privilege of the princeps — that is, of the pope — that his 
 delegates could make delegates. Then in many cases 
 they received careful instructions for their procedure. 
 Only the bare question of fact was left to them. They 
 are told that if they find that certain allegations are 
 true, they are to pass a certain sentence. Again, the 
 pope was free to choose such prelates as would give 
 effect to his opinions. Thus, for example, Alexander nr. 
 seems to have been fond of the abbot of Ford, who 
 otherwise would not have stood very high in the roll 
 of English abbots. 1 Lastly, what we may call the 
 natural order of the English church is always being 
 inverted ; the last becomes first, the first last when the 
 pope pleases. A cause which concerns the archbishop 
 of Canterbury will be committed to some of his suf- 
 fragans, or (and this must be still more galling) to the 
 rival primate. 
 
 The same thing happens when there is no mere 
 appeal from the metropolitan, but a complaint of 
 wrongful behaviour against him. Thus is he addressed 
 by Alexander : 2 — 
 
 A certain clerk, R. by name, the bearer of these presents, has 
 complained to us that, while he was studying in the schools, you, not 
 having cited him, despoiled him of the church of W. without judg- 
 ment ; and therefore, because it is not meet that you should despoil 
 
 1 He seems to be addressed in c. 9, X. 2. 13 ; c. 3, X. 2. 14 ; c. 7, X. 
 2. 20; c. 7, X. 3. 38 ; c. 4, X. 4. 17 ; c. 5, X. 4. 17. During Alexander's 
 time Ford had one distinguished abbot, namely, Baldwin, who became 
 bishop of Worcester in 1180, and archbishop of Canterbury in 1 185. In 
 the Guisborough Cartulary, ii. 8i, we have a decretal sent to him by Alex- 
 ander. The bishop of Chichester, the abbot of Evesham, and B., abbot of 
 Ford, are to hear a cause between the canons of Guisborough and the 
 archbishop of York. 
 
 2 c. 7, X. 2. 13. 
 
The Universal Ordinary 
 
 1 29 
 
 the clerks within your jurisdiction of their benefices without reasonable 
 and manifest cause, since you are bound to make paternal provision 
 for them, we by apostolic writ order and command that, if this be so, 
 you restore to the said clerk the said church, with the revenues thence 
 received, and allow him to possess the same in peace ; and, when the 
 restitution has been made, then, if you have anything to urge against 
 him in the matter of the said church, you can in your own person, 
 or by a sufficient representative, bring an action in due form against 
 the said R. before our venerable brother the bishop of Exeter, our 
 delegate, and you are to receive and obey his sentence, for we have 
 committed the cause to the said bishop. 
 
 The metropolitan must plead as plaintiff before the 
 suffragan, the superior before the inferior, if the princeps 
 will have it so. 
 
 All this was happening just at the time when the 
 popes were laying the practical foundation for the 
 gigantic edifice of express statute law that was to be 
 reared in the thirteenth century. The theoretic founda- 
 tion had been laid ; we may see it in Gratian's Decretum. 
 Whether the theory would become fact, that was the 
 question. What was requisite, if the pope was to legis- 
 late on a grand scale, was a settled practical habit of 
 looking to Rome for declarations of the ' common law ' 
 of the church. If that habit were once formed, the fine 
 line which divides the declaration of law from open 
 legislation might easily be crossed. The sharp dis- 
 tinction which nowadays we draw between the function 
 of the judge and the function of the law-maker was but 
 slowly emerging, and was less likely to emerge in the 
 ecclesiastical than in the temporal sphere. That dis- 
 tinction only becomes sharp when the two functions are 
 performed by two organs, and the drift towards monarchy 
 which runs through the history of the church prevents 
 any separation des pouvoirs. What we see in the whole, 
 we see in every part. The bishop is judge, governor, 
 lawgiver. He becomes an inferior judge, an inferior 
 9 
 
130 
 
 Canon Law in England 
 
 governor, an inferior lawgiver ; but all these functions 
 are combined in his hand. What we see in the parts, 
 we see in the whole. There will be no sdparation des 
 pouvoirs ; there will be a plenitudo potestatis. Then, 
 again, the authoritative answer given to abstract ques- 
 tions of law by an almost inspired jurisconsult, who 
 derives from on high his ius respondendi, serves to 
 mediate between the judgment and the statute, and 
 thus his obiter dicta stand on much the same level with 
 the ratio decidendi. If once there be formed a settled 
 practical habit of looking to him for declarations of the 
 law, all else will be easy. One small step will be taken 
 by Innocent in., another small step by Honorius in., — 
 steps so small that only a vigilant criticism can detect 
 them, 1 — and then Gregory ix. will issue a code of some 
 two thousand sections. The Englishmen who gave 
 Alexander in. the opportunity for issuing a hundred and 
 eighty decretals of permanent importance contributed 
 an ample share to the plenitude of power. 
 
 Did they question the binding force of those statute 
 books which in a great measure were the outcome of 
 their own submissiveness ? Did they treat those books, 
 not as statute books, but as reputable ' manuals ' ? I 
 have been giving my reasons for thinking that what 
 most Englishmen would regard as the pleasant answer 
 to these questions is not true. As yet, however, a 
 detailed history of our ecclesiastical courts is impossible. 
 Very few attempts have been made to put in print 
 the records out of which that history must be wrung. 
 They are voluminous. In one which comes from the 
 year 1285, and which is now lying before me, the sixty- 
 fifth witness is giving evidence in a suit about tithes. 2 
 
 1 Schulte, Geschichte, i. 87, 90. 
 
 2 Fragmentary record preserved in the library of Caius College, Prioress 
 of Wroxhall v. Abbot of Reading. 
 
The Universal Ordinary 131 
 
 Still what has been done for the temporal might be 
 done for the spiritual courts, had anybody a mind to 
 do it. Those who achieved the task would have to 
 learn much that has not been taught in England 
 during the past three centuries, and, it may be, to 
 unlearn a good deal that has been taught too often. 
 I have been trying in these papers to suggest that some 
 questions of fundamental importance are still open, and 
 thereby to arouse the spirit which copies legal records 
 and prints them. 1 
 
 1 The issue of the papal law-books is singularly well attested by English 
 chroniclers. Mat. Par. Chron. Mai. iii. 328 : ' His quoque temporibus 
 [1235] Gregorius Papa nonus, videns decretalium taediosam prolixitatem, 
 sub quodam compendio eas eleganter abbreviatas et collectas sollennitcr 
 et autentice per totius mundi latitudinem legi praecepit et divulgari. 
 Illas autem ab auctore ipsarum Gregorianas appellamus, sic incipientes, 
 " Rex pacificus, etc." ' Trivet {Eng. Hist. Sot:), p. 364: 'Papa Bonifacius 
 constitutiones quasdam praedecessorum suorum extravagantes, adiectis 
 quibusdam novis, in unum volumen redigi fecit, hoc anno ; quod tertio die 
 Maii coram consistorio lectum et approbatum constituit Sextum Decre- 
 talium appellari.' (Apparently the date should be 3rd March 1298 ; Schulte, 
 op. cif. ii. 3S-) Walsingham, i. 153: 'Hoc anno dominus Papa Septimum 
 Librum Decretalium a praedecessore suo compositum, et quasi ab ipso 
 deletum, promulgavit, instituit et connrmavit.' Sir John Davies in his 
 Reports (ed. 1674), p. -]\b, tells of a manuscript of the Sext at New College, 
 Oxford, bearing the following inscription: 'Anno Domini 1298, 19 Nov., 
 in ecclesia fratrum praedicatorum Oxoniae fuit facta publicatio lib. 6 De- 
 cretalium.' This seems to show that the book was published in the uni- 
 versity within a few months after its issue. 
 
IV. HENRY II. AND THE CRIMINOUS 
 CLERKS 
 
 If in this essay I venture to write a few words about the 
 quarrel between Henry and Becket, a quarrel which has 
 raged from their day until our own, it is with no inten- 
 tion of taking a side, still less with any hope of acting as 
 a mediator. I have no wish to make myself a judge 
 between the king and the archbishop, or between Free- 
 man and Froude. But, so it seems to me, there is a 
 certain question of fact, about which we are wont to 
 suppose that there is and can be only one opinion, while 
 in truth two different opinions are being entertained. 
 Possibly I may do some good by showing that this is so. 
 Perhaps if we were better agreed about the facts of the 
 case, we should differ somewhat less about the merits 
 of the disputants. At any rate, it is not well that we 
 should think that we agree when really we disagree. 
 
 What did Henry ir. propose to do with a clerk who 
 was accused of a crime ? This is a simple question, and 
 every historian of England must answer it. Generally, 
 so far as I can see, he finds no difficulty and feels no 
 doubt. And yet, when I compare the answers given by 
 illustrious and learned writers, I seem to see unconscious 
 disagreement. The division list, if I were to state it, 
 would be curious. Some of Henry's best friends would 
 find themselves in the same lobby with warm admirers 
 of Becket, and there would be great names on either 
 side of the line. But I will not thus set historian 
 
 132 
 
Henry II. and the Criminous Clerks 133 
 
 against historian, for my purpose is not controversial, 
 and I am very ready to believe that every writer has 
 told so much of the truth as it was advisable that he 
 should tell, regard being had to the scale of his work 
 and the character of those for whom he wrote. Rather 
 I would explain that, without doing much violence to 
 the text, it is possible to put two different interpreta- 
 tions upon that famous clause in the Constitutions of 
 Clarendon which deals with criminous clerks. I may be 
 told that the difference is small, and hardly visible to 
 any but lawyers. Still it may be momentous, for neither 
 Becket nor Henry, unless both have been belied, was 
 above making the most of a small point, or insisting on 
 the letter of the law. 
 
 Let us have the clause before us : — 
 
 Clerici rettati et accusati de quacunque re, summoniti a iusticia 
 regis venient in curiam ipsius, responsuri ibidem de hoc unde videbitur 
 curiae regis quod ibidem sit respondendum ; et in curia ecclesiastica 
 unde videbitur quod ibidem sit respondendum ; ita quod iusticia regis 
 mittet in curiam sanctae ecclesiae ad videndum qua ratione res ibi 
 tractabitur. Et si clericus convictus vel confessus fuerit, non debet de 
 cetero eum ecclesia tueri. 
 
 Now, according to what seems to be the commoner 
 opinion, we might comment upon this clause in some 
 such words as these : — Offences of which a clerk may be 
 accused are of two kinds. They are temporal or they 
 are ecclesiastical. Under the former head fall murder, 
 robbery, larceny, rape, and the like ; under the latter, 
 incontinence, heresy, disobedience to superiors, breach 
 of ceremonial rules, and so forth. If charged with an 
 offence of the temporal kind, the clerk must stand his 
 trial in the king's court ; his trial, his sentence will be 
 like that of a layman. For an ecclesiastical offence, on 
 the other hand, he will be tried in the court Christian. 
 The king reserves to his court the right to decide what 
 
134 
 
 Canon Law in England 
 
 offences are temporal, what ecclesiastical ; also he asserts 
 the right to send delegates to view the doings of the 
 spiritual tribunals. 
 
 The words, perhaps, are patient of this meaning. 
 Nevertheless, if we adopt it, some questions will occur 
 to our minds. Why should Henry care about what 
 goes on in the ecclesiastical courts if those courts are 
 only to deal with breaches of purely ecclesiastical rules ? 
 If he proposed to send his commissioners to watch trials 
 for incontinence, simony, and the like, he inflicted a 
 gratuitous and useless insult upon the tribunals of the 
 church. And then let us look at the structure of the 
 clause. In its last words it says that after a clerk has 
 been convicted or has confessed, the church is no longer 
 to protect him. Has been convicted of what? Has 
 confessed what ? Some temporal crime it must be. But 
 the phrase which tells us this is divorced from all that 
 has been said of temporal crimes. We have a clumsy 
 sentence : ' A clerk, if accused of a temporal crime, is to 
 be tried in the king's court ; but if accused of an eccle- 
 siastical offence, then he is to be tried in a spiritual 
 court ; and when he has confessed or been convicted [of 
 a temporal crime], the church is no longer to protect 
 him.' And what, if this interpretation be correct, is the 
 meaning of the statement, that when he has confessed 
 or been convicted the church is to protect him no 
 longer} If he is to be tried like a layman in a tem- 
 poral court, the church will never protect him at all. 
 
 Let us attempt a rival commentary. The author of 
 this clause, though he may use very general words (de 
 quacunque rc), is not thinking of two different classes of 
 misdeeds. The purely ecclesiastical offences are not in 
 debate. No one doubts that for these a man, be he 
 clerk or lay, will be tried in and punished by the 
 spiritual court. He is thinking of the grave crimes, 
 
Henry II. and the Criminous Clerks 135 
 
 of murder and the like. Now every such crime is a 
 breach of temporal law ; and it is also a breach of the 
 law of the church. The clerk who commits murder 
 breaks the king's peace ; but he also infringes the divine 
 law, and — no canonist will doubt this — ought to be 
 degraded. Very well. A clerk is accused of such a 
 crime. He is summoned before the king's court, and 
 he is to answer there — let us mark this word respondere 
 — for what he ought to answer for there. What ought 
 he to answer for there ? The breach of the king's peace 
 and the felony. When he has answered — when, that is, 
 he has (to use the words of the plea roll) ' come and 
 defended the breach of the king's peace, and the felony, 
 and the slaying, and all of it word by word,' then, 
 without any trial, he is to be sent to the ecclesiastical 
 court. In that court he must answer as an ordained 
 clerk accused of homicide, and in that court there will 
 be a trial {res ibi tractabitur). If this spiritual tribunal 
 convicts him, it will degrade him, and thenceforth the 
 church must no longer protect him. He will be brought 
 back into the king's court — one of the objects of send- 
 ing royal officers into the spiritual court is to prevent 
 his escape — and, having been brought back, no longer a 
 clerk but a mere laymen, he will, be sentenced (probably 
 without any further trial) to the layman's punishment, 
 death or mutilation. The scheme is this : accusation 
 and plea in the temporal court ; trial, conviction, 
 degradation in the ecclesiastical court ; sentence in the 
 temporal court to the layman's punishment. 
 
 This I believe to be the meaning of the clause. 
 The contrary opinion suggests itself to us because we 
 give to the word respondere a sense that it does not 
 necessarily bear. No doubt if nowadays we say that a 
 man must answer for his crime at the Old Bailey, we 
 mean that he can be tried there and sentenced there. 
 
136 Canon Law in England 
 
 But we ought not lightly to give to respondere so wide a 
 meaning when it occurs in a legal document. It means 
 to answer, ' to put in an answer,' to plead, 'to put in a 
 plea.' The words of our clause are fully satisfied if the 
 clerk, instead of being allowed to say, ' I am a clerk and 
 will not answer here,' is driven to 'defend' — that is, to 
 deny in set terms — the breach of the king's peace and 
 the felony, and is then suffered to add, ' But I am a 
 clerk, and can be tried only by the ecclesiastical forum.' 
 According to this opinion, Henry did not propose that 
 a clerk accused of crime should be tried in a temporal 
 court, and he did not propose that a clerk should be 
 punished by a temporal court. The clerk was to be 
 tried in the bishop's court ; the convict who was to be 
 sentenced by the king's court would be no clerk, for he 
 would have been degraded from his orders. 
 
 Even if this clause stood by itself, we should, so I 
 venture to think, have good reason for accepting the 
 second as the sounder of these two interpretations. If 
 we look to the words, it seems the easier ; if we look 
 to the surrounding circumstances, it seems the more 
 probable. But we do not want for contemporaneous 
 expositions of it. In the first place, I will allege the 
 letter addressed to the pope in the name of the bishops 
 and clergy of the province of Canterbury : — 
 
 Qua in re partis utriusque zelus enituit ; episcoporum in hoc stante 
 iudicio, ut homicidium, et si quid huiusmodi est, exauctoratione sola 
 puniretur in clerico ; rege vero existimante poenam hanc non condigne 
 respondere flagitio, nec stabiliendae paci bene prospici, si lector aut 
 acolythus quemquam perimat, ut sola iam dicti ordinis amissione tutus 
 existat. 1 
 
 According to this version of the story, there is no 
 dispute between king and clergy as to the competence 
 of any tribunal ; the sole question is as to whether 
 
 1 Materials for the Hist, of Thomas Becket, v. 405. 
 
Henry II. and the Criminous Clerks 137 
 
 degradation — a punishment which can be inflicted only 
 by the ecclesiastical court — is a sufficient penalty for 
 such a crime as murder. Still more to the point are the 
 words of Ralph de Diceto : — 
 
 Rex Anglorum volens in singulis, ut diccbat, maleficia debita cum 
 severitate punire, et ordinis dignitatem ad iniquum trahi compendium 
 incongruum esse considerans, clericos a suis iusticiariis in publico 
 flagitio deprehensos episcopo loci reddendos decreverat, ut quos epis- 
 copus inveniret obnoxios praesente iusticiario regis exauctoraret, et post 
 curiae trade ret puniendos?- 
 
 Now this is as plain a statement as could be wished 
 that the second of our two interpretations is the right 
 one, and that the accused clerk is to be tried by his 
 bishop. Those therefore who contend for the contrary 
 opinion seem bound to maintain that the Dean of St. 
 Paul's did not know, or did not choose to tell, the truth. 
 Still it may be said of one of these witnesses — the 
 author of the letter to the pope — that he is Gilbert 
 Foliot, Becket's bitter antagonist, and of the other that 
 he may have had his version of the tale from Foliot, and 
 that, though a fair-minded man, he was inclined to make 
 the best case that he could for the king ; and I must admit, 
 or rather insist, that, in the last words of the passage 
 which I have cited from him, Ralph de Diceto is making 
 a case for the king, for he is in effect telling us by the 
 phrase that is here printed in italics, that we ought to 
 read our Gratian and see how strong the king's case is. 
 
 But we may turn to other accounts. In the tract 
 known as Summa Causae the king is supposed to 
 address the bishops thus : — 
 
 Peto igitur et volo, ut tuo domine Cantuariensis et coepiscoporum 
 tuorum consensu, clerici in maleficiis deprehensi vel confessi exauc- 
 torentur illico, et mox curiae meae lictoribus tradantur, ut omni 
 defensione ecclesiae destituti corporaliter perimantur. Volo etiam et 
 
 1 R. de Diceto, i. 313. 
 
138 
 
 Canon Law in England 
 
 peto ut in ilia exauctoratione de meis officialibus aliquem interesse 
 consentiatis, ut exauctoratum clericum mox comprehendat, ne qua ei 
 fiat copia corporalem vindictam effugiendi. 1 
 
 Thereupon ' the bishops,' who in this version take 
 the king's side, urge that the demand is not unreason- 
 able. Episcopi dicebant secundum leges saeculi clericos 
 exauctoratos curiae tradendos et post poenam spiritualcm 
 corporaliter ptiniendos. Thomas replies that this is 
 contrary to the canons — Nec enim Deus iudicat bis in 
 idipsmn. He argues that the judgment of the ecclesi- 
 astical court must put an end to the whole case. It 
 condemns a clerk to degradation. If that is a correct it 
 must also be a complete judgment. It ought not to be 
 followed by any other sentence. 
 
 The story as told by ' Anonymus n.' is to the same 
 effect. The king's demand is thus described : — 
 
 ut in clericos publicorum criminum reos de ipsorum [sc. episcoporum] 
 consilio sibi liceret quod avitis diebus factum sua curia recolebat ; tales 
 enim deprehensos et convictos aut confessos mox degradari, sicque 
 poenis publicis sicut et laicos subdi, tunc usurpatum est.- 
 
 To this the bishops reply, not that a lay tribunal is 
 incompetent to try an accused clerk, but Non iudicabit 
 Deus bis in idipsum. 
 
 Yet more instructive is 'Anonymus I.' The king's 
 officers, instigated by the devil, took to arresting clerks, 
 investigated the charges against them, and, if those 
 charges were found true, committed the accused to 
 gaol. (We must note by the way that even these royal 
 officers, though instigated by the devil, do not condemn 
 clerks to death or mutilation, but merely send them to 
 prison.) The archbishop, however, held that though 
 these men were notoriously guilty, the church ought not 
 to desert them, and he threatened to excommunicate 
 any who should pass judgment upon them elsewhere 
 
 1 Materials, iv. 202. 2 Ibid. iv. 96. 
 
Henry II. and the Criminous Clerks 139 
 
 than in the ecclesiastical court. Thereupon the king, 
 admitting the reasonableness of this assertion {necessitate 
 rationis compuistis), consented that they should be given 
 up to the bishops, upon condition that if they should be 
 degraded by their ecclesiastical superiors they should 
 then be delivered back to the temporal power for con- 
 demnation (ita tamen tit et ipse \archiepiscopus\ eos 
 meritis exigentibus exordinatos suis ministris condem- 
 nandos iraderet). Thereupon Thomas, as is usual, is 
 ready with the Nemo bis in idipsum} This is an in- 
 structive account of the matter, because, as I read it, it 
 distinctly represents Henry as not venturing to make 
 the claim which he is commonly supposed to have 
 made. No doubt he would like to try clerks in his 
 court, but he knows that the church will never consent 
 to this. 
 
 Testimony that could be put into the other scale I 
 cannot find. True, it is often said that the king wants 
 ' to draw clerks to secular judgments {trakere clericos ad 
 saecularia indicia).' This was Becket's own phrase; 8 
 and, though I do not think that it was strictly and 
 technically true, I think that in the mouth of a contro- 
 versialist it was true enough. Henry did propose that 
 clerks should be accused in his court, and he did 
 propose that punishment should be inflicted by the 
 temporal power upon criminals who were clerks when 
 they committed their crimes. The archbishop might 
 from his own point of view represent as a mere sophism 
 the argument that during the preliminary proceedings in 
 the lay court there was no judgment, and that during 
 the final proceedings there was no clerk. But we can 
 hardly set this somewhat vague phrase, ' to draw clerks 
 to secular judgments,' in the balance against the detailed 
 
 1 Materials, iv. 39. 
 
 2 Letter by Thomas to the pope, Materials, v. 38S. 
 
140 
 
 Canon Law in England 
 
 accounts of Henry's proposals which we have had from 
 other quarters, in particular against the plain words of 
 Ralph de Diceto. 
 
 But we have yet to consider the story told by 
 Herbert of Bosham. He says that the king was advised 
 that his proposed treatment of criminous clerks was in 
 accordance with the canons, and that this advice was 
 given by men who professed themselves learned in 
 utroque hire. Herbert sneers at these legists and 
 canonists as being scienter inciocti ; still he admits that 
 they appealed to the text of the canon law. He puts 
 an argument about that text into their mouths, and then 
 proceeds to refute it in the archbishop's name. Now 
 if Henry proposed to try criminous clerks in a temporal 
 forum, he had no case on the Decretum Gratiani, and no 
 one would for one moment have doubted but that he 
 was breaking canon after canon. However, we have 
 Herbert's word for it that the king's advisers thought, 
 or at all events said, that the king's scheme was sanc- 
 tioned by the law of the church, and with Herbert's help 
 we may yet find in the Corpus Iuris Canonici the words 
 upon which they relied. It will, I suppose, hardly be 
 questioned that Herbert may be trusted about this 
 matter, for he is making an admission against the 
 interest of his hero, St. Thomas ; he is admitting that 
 the king's partisans professed themselves willing to stand 
 or fall by the canon law. And the story is corroborated 
 by phrases which are casually used by other writers, 
 phrases to which I have drawn attention by italic type. 
 When Ralph de Diceto writes curiae traderet puniendos, 
 when the author of Summa Causae writes curiae meae 
 iicioribtcs tradantur, when Anonymus 11. writes mox 
 degradari, they are one and all alluding to certain 
 phrases in Gratian's book. 
 
 The debate, as I understand it, turned on two 
 
Henry II. and the Criminous Clerks 141 
 
 passages in the Decretum. 1 One of them is the 
 following : — 
 
 Deer. C. 11, qu. i, c. 18 : Clericus suo inobediens episcopo depositus 
 curiae tradatur. 
 
 Item Pius Papa epist. ii. 
 Si quis sacerdotum vel reliquorum clericorum suo episcopo inobe- 
 diens fuerit, aut ei insidias paraverit, aut contumeliam, aut calumniam, 
 vel convicia intulerit, et convinci potuerit, mox [depositus-'] curiae 
 tradatur, et recipiat quod inique gessit. 
 
 The other of the two is introduced by a dictitm Gratiani 
 which ends thus : — 
 
 In criminali vero causa non nisi ante episcopum clericus examin- 
 andus est. Et hoc est illud, quod legibus et canonibus supra diffinitum 
 est, ut in criminali videlicet causa ante civilem iudicem nullus clericus 
 producatur, nisi forte cum consensu episcopi sui ; veluti quando 
 incorrigibiles inveniuntur, tunc detracto eis officio curiae tradendi sunt. 
 Unde Fabianus Papa ait ep. ii. Episcopis orientalibus. . . . 
 
 On this follows Deer. C. 11, qu. i, c. 31 : — 
 
 Qui episcopo insidiatur semotus a clero curiae tradatur. 
 
 Statuimus, ut, si quis clericorum suis episcopis infestus aut insidiator 
 extiterit, mox ante examinatum iudicium submotus a clero curiae trada- 
 tur, cui diebus vitae suae deserviat, et infamis absque ulla spe restitu- 
 tionis permaneat. 
 
 These passages, it will be seen, contain more than once 
 the phrase curiae tradere. What is the true meaning 
 of it ? 
 
 This seems to me an almost unanswerable question, 
 for it amounts to this : By what standard shall we, stand- 
 ing in the twelfth century, construe certain passages 
 which we believe to come from two popes, the one of the 
 
 1 Materials, iii. 266-270. 
 
 2 It will be seen hereafter that this word is not in the text of the Pseudo- 
 Isidore, nor is it in the Decretum Ivonis, p. 5, c. 243. 
 
142 
 
 Canon Law in England 
 
 second, the other of the third century, but which really 
 come from a forger of the ninth, who, it is probable, has 
 been using an imperial constitution of the fifth ? 
 
 Apparently the disputable phrase takes us back in 
 the last resort to a constitution of Arcadius and Honor- 
 ius, which was received into the Theodosian code. 1 It 
 begins thus : — 
 
 Quemcunque clericum indignum officio suo episcopus iudicaverit et 
 ab ecclesiae ministerio segregaverit, aut si qui professum sacrae religionis 
 obsequium sponte dereliquerit, continuo eum curia sibi vindicet, ut 
 liber illi ultra ad ecclesiam recursus esse non possit, et pro hominum 
 qualitate et quantitate patrimonii, vel ordini suo vel collegio civitatis 
 adiungatur ; modo ut quibuscunque apti erunt publicis necessitatibus 
 obligentur, ita ut colludio quoque locus non sit. 
 
 Then having in his mind this text, or rather an epi- 
 tome of the West Goth's interpretation of this text, the 
 Pseudo-Isidore inserted certain clauses into the decretals 
 that he was concocting for Pope Pius 1. and Pope Fabian. 2 
 What he says in the name of Fabian we need not repeat, 
 for it is fairly enough represented by the second of the 
 two passages that are quoted above from Gratian. 3 
 What he says in the name of Pius is this : — 
 
 Et si quis sacerdotum vel reliquorum clericorum suo episcopo 
 inobediens fuerit aut ei insidias paraverit aut calumniam et convinci 
 poterit, mox curiae tradatur. Qui autem facit iniuriam, recipiat hoc 
 quod inique gessit. 4 
 
 There is here enough difference between Gratian and 
 Isidore to make us doubt whether the one fully under- 
 stood the other. But yet a third time did the great 
 
 1 Lib. xvi. tit. ii. 1. 39. 
 
 2 Hinschius would trace these passages to an epitome of the Breviaritwi 
 Alarici, which is represented by the Paris manuscript, sup. lat. 215. See 
 Haenel, Lex Ronuuia Visigothorum, pp. 246-248. 
 
 3 Fabianus, xxi. (ed. Hinschius, p. 165). 
 
 4 Pius, x. (Hinschius, p. 120). 
 
Henry II. and tJie Criminous Clerks 143 
 
 forger return to this theme. To the pen of Pope Stephen 
 he ascribed the following- words : — 
 
 Clericus ergo qui episcopum suum accusaverit aut ei insidiator 
 extiterit, non est recipiendus, quia infamis effectus est et a gradu debet 
 recedere aut curiae tradi serviendus. 1 
 
 Now, of course, the phrase in the Theodosian code, 
 continuo eum curia sibi vindicet, has nothing whatever 
 to do with the point at issue between Henry and Becket. 
 The clerk who has been degraded from, or who has 
 renounced, his holy orders is to become a curialis ; he 
 is to become obnoxious to all those duties and burdens, 
 those munera, by which in the last days of the empire 
 the curiales were being crushed. I suppose that no 
 words of ours will serve as equivalents for the curia and 
 the curialis of the fourth and fifth centuries ; even Ger- 
 man writers, with all their resources, leave these terms 
 untranslated. I suppose that if Henry had wished to 
 substitute for the words of Arcadius and Honorius a 
 phrase which would express their meaning, and be 
 thoroughly intelligible to his English subjects, he would 
 have said : Clericus degradatus debet scottare et lottare 
 aim laicis. It would seem also that Becket and his 
 canonists knew something of the history of the words 
 tradatur curiae, and were prepared to go behind Gratian. 
 But what I am concerned to point out is that on the text 
 of the Decretum Henry had an arguable case. Here, 
 he might say, are words that are plain enough. A clerk 
 disobeys or insults his bishop ; mox depositus curiae 
 tradatur, et recipiat quod inique gessit. What can 
 this mean if it be not that the offender, having been 
 deposed by his bishop, is to be handed over to the curia, 
 the lay court, for further punishment ? Very well, that 
 is what I am contending for. Further punishment after 
 
 1 Stephanus, xii. (Hinschius, p. 1 86). 
 
144 
 
 Canon Law in England 
 
 degradation does not infringe your sacred maxim Nemo 
 bis in idipsum, or, if it does, then you are prepared to 
 infringe that maxim yourselves whenever to do so will 
 serve your turn. 
 
 But more than this can be said. Not very long 
 after Henry's death the greatest of all the popes put an 
 interpretation on the phrase curiae tradere. Innocent 
 in. issued a constitution against the forgers of papal 
 letters. The forgers, if they are clerks, are to be 
 degraded, and then 
 
 postquam per ecclesiasticum iudicem fuerint degradati, saeculari potestati 
 tradantur secundum constitutiones legitimas puniendi, per quam et laici, 
 qui fuerint de falsitate convicti, legitime puniantur [c. 7, X. 5. 20]. 1 
 
 This seems plain enough. Henry, had he been 
 endowed with the gift of prophecy, might have said : 
 ' Here, at any rate, is an exception to your principle, and 
 for my own part I cannot see that the forgery of a 
 decretal — though I will admit, if you wish it,, that it is 
 wicked to forge decretals — is a much worse crime than 
 murder, or rape, or robbery.' 
 
 But this is nothing to what follows. Innocent in. 
 speaks once more (c. 27, X. 5. 40): 2 — 
 
 Novimus expedire ut verbum illud quod et in antiquis canonibus, et 
 in nostra quoque decreto contra falsarios edito continetur, videlicet ut 
 clericus, per ecclesiasticum iudicem degradatus, saeculari tradatur curiae 
 puniendus, apertius exponamus. Quum enim quidam antecessorum 
 nostrorum, super hoc consulti, diversa responderint, et quorundam sit 
 opinio a pluribus approbata, ut clericus qui propter hoc vel aliud flagi- 
 tium grave, non solum damnabile, sed damnosum, fuerit degradatus, 
 tanquam exutus privilegio clericali saeculari foro per consequential! 
 applicetur, quum ab ecclesiastico foro fuerit proiectus ; eius est degra- 
 datio celebranda saeculari potestate praesente, ac pronunciandum est 
 eidem, quum fuerit celebrata, ut in suum forum recipiat degradatum, et 
 sic intelligitur ' tradi curiae saeculari ' ; pro quo tamen debet ecclesia 
 efticaciter intercedere, ut citra mortis periculum circa eum sententia 
 moderetur. 
 
 Reg. Inn. III., ed. Baluze, i. 574. 
 
 3 Ibid. ii. 268. 
 
Henry II. and the Criminous Clerks 145 
 
 Now this, as I understand it, is an authoritative 
 exposition of the true intent and meaning of the phrase 
 tradere curiae contained in those passages from the 
 Decretum which have been printed above. It was a 
 dubious phrase ; some read it one way, some another ; 
 but on the whole the better opinion is not that of St. 
 Thomas, but that of King Henry. And so the king's 
 advisers have this answer to the sneers of Master 
 Herbert of Bosham : — We cannot hope to be better 
 canonists than Pope Innocent in. will be. 
 
 I am not arguing that Henry's scheme ought to have 
 satisfied those who took their stand on the Decretum. 
 From their point of view the preliminary procedure in 
 the king's court, whereby the civil magistrate acquired a 
 control over the case, would be objectionable, and the 
 mission of royal officers to watch the trial in the spiritual 
 court might be offensive. But still about the main 
 question that was in debate, the question of double 
 punishment, Henry had something to say, and some- 
 thing which the highest of high churchmen could not 
 refuse to hear. 
 
 This account of the matter seems to fit in with all 
 that we know of the behaviour of Alexander in. and of 
 the English bishops. Had Henry been striving to sub- 
 ject criminous clerks to the judgment of the temporal 
 forum, the case against him would have been exceed- 
 ingly plain. A pope, however much beset by troubles, 
 could hardly have hesitated about it; no bishop could 
 have taken the king's side without openly repudiating 
 what passed as the written law of the church. But the 
 pope hesitated, and the English bishops, to say the 
 least, did not stubbornly resist the king's proposal. 
 Even Becket's own conduct seems best explained by the 
 supposition that until he grew warm with controversy he 
 was not very certain of the ground that he had to defend. 
 10 
 
146 
 
 Canon Law in England 
 
 Mox depositus curiae tradatur et recipiat quod inique 
 gessit was ringing in one ear : Nec enim Deus itidicat 
 bis in idipstim in the other ear. 
 
 If, then, we were to found our judgment only on the 
 purely English evidence, upon the words of the debated 
 article, and upon the stories that are told by chroniclers 
 and biographers, we should have good reason for holding 
 that Henry 11. did not demand that a clerk accused of 
 crime should be tried by a temporal court. I believe 
 that a little research among foreign books would 
 strengthen us in our conviction, by showing that the 
 scheme which I have attributed to him, the scheme 
 which sends the clerk to and fro between the royal judge 
 and the bishop, had for a long time past been a well- 
 known arrangement, and was one that Henry was likely 
 to regard as ancient and legitimate. 1 Indeed, if I am 
 right about the meaning of the article, then the struggle 
 between the English king and the English prelate will 
 neatly fall into its proper place in the general history of 
 church and state. The dispute will be over a fairly 
 disputable question, though perhaps we shall come to 
 the conclusion that Becket rather than Henry was the 
 innovator. 2 On the other hand, if Henry attempts to 
 abolish the privilegium fori, he is to my mind incredibly 
 before or behind his age. 
 
 I must admit, however, that many things which seem 
 incredible to me have seemed credible to honoured 
 historians of the English church. I will give one ex- 
 ample. In Dr. Hook's Lives of the Archbishops of 
 Canterbury I find the following words : 3 — ' Bracton, 
 indeed, who was made a judge by Henry in. in the 
 
 1 Hinschius, Kirchenrecht, iv. 794 ff., 849 ff., v. 402 ff. 
 
 - Of this something has been said elsewhere, History of English Law, 
 
 i. 432. 
 
 3 Lives of the Archbishops (1872), vol. ix. (Parker) p. 166, footnote. 
 
Henry II. and the Criminous Clerks 147 
 
 thirteenth century, when popery was rampant, expresses 
 himself thus : Rex est vicarius et minister Dei, tarn in 
 spiritualibus quam in temporalibus, Lib. i. cap. 8.' I 
 wish that I could believe Dr. Hook's statement, for, 
 were it true, Bracton would be by far the most remark- 
 able man of his time. However, what Bracton wrote 
 in ' Lib. i. cap. 8 ' was much more commonplace and 
 papistical: ' A pud homines vero est differentia per- 
 sonarum, quia hominum quidam sunt prccellentes et 
 prelati et aliis principantur : dominus papa videlicet in 
 rebus spiritualibus, quae pertinent ad sacerdotium, et sub 
 eo archiepiscopi, episcopi et alii prelati inferiores : item in 
 temporalibus sunt imperatores, reges et principes, in liiis 
 quae pertinent ad reg?tum.' Where Dr. Hook found the 
 words that he quotes I do not know. Protestant lawyers 
 of the sixteenth century sometimes wrote funny things 
 in the margins of their Bractons, and Coke sometimes 
 took Bracton's name in vain. But as to Bracton him- 
 self, though he was for his time a strong opponent of 
 the extremer claims of the ecclesiastical party, he never 
 said that the king was God's vicar in spiritual matters. 
 And even so it is in the case of Henry 11. Whatever he 
 may have wished, I cannot believe that he had any 
 hope of securing the consent of the English bishops to 
 a treatment of accused clerks which was unquestionably 
 condemned by the Decretum. 
 
V. ' EXECRABILIS ' IN THE COMMON 
 PLEAS 
 
 Towards the middle of Edward m.'s reign, just when a 
 national resistance against papal ' provisors ' was being 
 organised, the king's legal advisers and the justices of 
 the court of Common Pleas took upon themselves to 
 enforce a certain papal constitution, though to enforce 
 it in an odd, lopsided fashion, favourable to their 
 royal lord. The pope's weapons were to be wrested 
 from his hand and used against him. The king was 
 going to exercise ecclesiastical patronage which the 
 pope had destined for himself. This clever move 
 is partially revealed to us by certain discussions in 
 the Year Books, which have never, I believe, been 
 fully explained because they have never been com- 
 pared with the plea rolls. The story may be worth 
 telling. 
 
 The constitution in question was none other than the 
 famous Execrabilis, which fills a prominent place in the 
 constitutional history of the catholic church. It is one 
 of the stock examples of those covetously fiscal ' extra- 
 vagants ' which are characteristic of the Avignonese 
 papacy. Perhaps we remember how Rabelais speaks of 
 ' the terrific chapters, Execrabilis, De multa, Si plures 
 . . . and certain others, which draw every year four 
 hundred thousand ducats and more from France to 
 Rome.' 1 For some time past popes and councils had 
 
 1 Works of Rabelais, transl. W. F. Smith, ii. 217. 
 148 
 
' Execrabilis' in the Common Picas 149 
 
 been legislating against pluralism : that is, against the 
 simultaneous tenure by one clerk of more than one 
 benefice involving a cure of souls. 1 Among the laws 
 striking at this evil was a canon of the fourth Lateran 
 Council (12 1 5), which began with the words De multar 
 This canon is here mentioned merely because a tradition 
 among English lawyers taught, and perhaps still teaches, 
 that a reference was made to it in the cases which are 
 to come before us ; but we shall hereafter see that this 
 tradition has its origin in a mistake. Legislation, how- 
 ever, was futile. The popes themselves made it futile 
 by their dispensations, and those who do not like popes 
 tell us that the laws were made in order that they might 
 be dispensed with. At last, in November 1317, John 
 xxii. issued a long and stringent constitution whose first 
 word was Execrabilis? It was stringent; it was retro- 
 spective ; it attacked those clerks who were already 
 holding several ' incompatible ' benefices ; it attacked 
 them even though they had obtained dispensations. 
 Such a clerk was, within one month after notice of this 
 constitution, to resign all but one of his benefices, or 
 else they were all to be vacant ipso hire. There were 
 prospective besides retrospective clauses, and finally 
 there was a clause in which we may, if we like, discover 
 the legislator's main motive. All the benefices vacated 
 by the ' cession ' of the pluralists were ' reserved ' to 
 the pope, or, in other words, it was for him to fill the 
 vacancies. This constitution was no idle word in Eng- 
 land. In the next year we can see Pope John busily at 
 work collating clerks to English benefices which have 
 been vacated by the force of Execrabilis.* The English 
 
 1 For a full historical account of the law see Hinschius, Kirchenrecht, 
 iii. 243 ff. 
 
 2 Cone. Lat. IV. c. 29 ; c. 28, X. 3. 5. 
 
 3 c. un. in Extrav. Joan. XXII. 3 ; c. 4 in Extrav. comm. 3. 2. 
 1 Calendar of Papal Letters, ii. 1 72— 1S2. 
 
Canon Law in England 
 
 king was weak and worthless, and apparently the Holy 
 Father was allowed to have his way. 
 
 A little later Edward in. was on the throne, and 
 the outcry against ' provisors ' was swelling. At this 
 moment some of the king's lawyers seem to have caught 
 at the idea that two could play at Execrabilis, and that, 
 while the ' reservation ' was studiously disregarded, the 
 main provisions of the bull might be enforced with 
 advantage. It will be remembered that the amount of 
 patronage that fell to the king's share was very large. 
 To say nothing of the churches that were all his own, he 
 exercised the patronage of infants who were in ward to 
 him, and also the patronage annexed to bishoprics that 
 were vacant. So any measure which emptied churches 
 might do him a good turn and enable him to pay his 
 servants. 
 
 In 1335 the king brought a Quare imperii t against 
 the bishop of Norwich for the deanery of Lynn. 1 The 
 king stated in his count that John, late bishop of Nor- 
 wich [that is, John Salmon who died in 1325], had con- 
 ferred the deanery on one Master Roger of Snettisham, 
 who was already parson of the church of Cressingham, 
 and who continued to hold both benefices for more than 
 a month after his installation in the deanery, ' per quod 
 per constitucionem de pluralite predictus decanatus 
 vacavit ipso iure,' and remained vacant until the tem- 
 poralities of the bishopric of Norwich came into the 
 hand of Edward 11. upon the death of bishop John. To 
 this declaration the bishop demurred in that polite form 
 in which we demur to the pleadings of kings. He said 
 that he did not understand that the king desired an 
 answer to the said declaration, ' for therein he does not 
 
 1 De Banco Roll, No. 305, Hilary 10 Edw. ill. m. 214 dors. An earlier 
 stage on De Banco Roll, No. 303, Trinity 9 Edw. HI. m. 236. I have to 
 thank Miss Salisbury for extracts from these rolls. 
 
' Execraditis ' in the Common Picas 151 
 
 allege that the said deanery was vacant de facto in such 
 wise that this court might take cognisance of the 
 vacancy, but merely alleges that it was vacant by the 
 constitution against plurality, which does not fall within 
 the cognisance of this court.' So the bishop craved 
 judgment. The king replied that by the constitution 
 against plurality the deanery must be adjudged to have 
 been vacant de iure just as though the dean had been 
 deprived thereof by sentence. So the king craved 
 judgment. Here the record ends, and no more of the 
 case has been found. 
 
 So much from the roll. In the Year Book we have 
 discussion. 1 After some little fencing over the question 
 whether the king ought to say that a ' bishopric ' is (or 
 merely that the ' temporalities of a bishopric ' are) in his 
 hand when there is no bishop, the Serjeants come to the 
 main matter. For the bishop it is said : ' Sir, you see 
 how the king takes as the cause of the voidance the 
 constitution touching plurality, and shows nothing that 
 lies in any fact which would give cognisance to this 
 court, such as resignation, privation, death or succession.' 
 Parning, who is arguing for the king, replies : ' The 
 constitution touching plurality was made by a general 
 judgment that all should be deprived who held their 
 benejicia curat a for more than a month after the con- 
 stitution, and this binds them more firmly as regards 
 privation than a judgment that some certain person 
 should be deprived, for the one might be afterwards 
 annulled upon appeal ; not so the other.' 
 
 The Year Book, like the roll, tells of no judgment. 
 Probably the king and the bishop came to terms. We 
 can, I think, see that the king's advocates were steering a 
 difficult course. They were proposing to enforce a papal 
 constitution directly and without any certificate from the 
 
 1 Y. B. 9 Edw. in. f. 22 (Trin. pi. 14) ; Y. B. 10 Edw. ill. f. 42 (Hil. pi. 3). 
 
152 
 
 Canon Law in England 
 
 English ordinary. What might they not have on their 
 hands if they once began to administer the ' extrava- 
 gants ' of Avignon ? Parning's argument seems to be 
 explicable by the retrospective character of Execrabilis. 
 This, he urges, is a ' general judgment.' If a particular 
 judgment of deprivation were given against a clerk and 
 were certified to this court, you would hold that the 
 benefice was vacant. Well, here is a general judgment 
 and one that is subject to no appeal. That the con- 
 stitution in question was Execrabilis and not one of the 
 earlier decrees (for example, De mulla), would, I believe, 
 be clear even from this case, because of the mention 
 made of the one month which is given to the pluralist 
 for the resignation of his superabundant benefices. 
 Happily, however, this is put beyond all doubt by the 
 enrolled record of the next case, though it is left dubious 
 in the Year Book. 
 
 In 1 35 1, John of Gaunt, on behalf of the king, 
 brought a Quod permit fat against Simon I slip, arch- 
 bishop of Canterbury, for a presentation to the church 
 of Wimbledon in the county of Surrey. 1 The king's 
 declaration stated that Robert of Winchelsea, archbishop 
 of Canterbury, being seised of the advowson, collated 
 John of Sandale in the eleventh year of the reign of 
 Edward n., and that because Pope John, in the second 
 year of his pontificate (Sept. 5, 131 7-1 3 18) and the 
 ninth year of the said reign (July 8, 13 15-13 16), 2 made 
 a certain constitution called Execrabilis, to the effect 
 that no clerk should occupy two beneficia curat a beyond 
 one month after the publication of the said constitution 
 without being deprived ipso hire of both benefices, which 
 constitution was published in the said year of Edward 
 11., and because the said John of Sandale occupied the 
 
 1 De Banco Roll, Mich. 25 Edw. III. m. 41 dors. 
 
 2 The slight discrepancy in the dates will be noticed. 
 
' Execrabilis ' in tlic Common Picas 1 53 
 
 church of Wimbledon and various other churches [which 
 are named] for days and years after the said publication, 
 the said church of Wimbledon by virtue of the said 
 constitution became vacant, and remained vacant until 
 the temporalities of the archbishopric came into Edward 
 n.'s hands by the death of archbishop Robert, and so 
 the right to present a clerk pertained to Edward 11., 
 from whom it descended to the now king. 
 
 Pausing here for a moment, we may remark that to 
 us who are blessed with books of reference, the king's 
 story is obviously false, for Robert Winchelsea was dead, 
 and Walter Reynolds had succeeded him at Canterbury 
 some time before the publication of Execrabilis. But 
 we must not allow this brutal matter of fact to spoil 
 matter of law. We learn from the Year Book 1 that 
 the counsel for the archbishop were at first inclined to 
 demur. The king, they said, founds his action on a 
 matter that does not lie in the cognisance of this court, 
 and we do not think that this court will take cognisance 
 of a matter which ought to be pleaded in court Christian. 
 This was an intelligible line of defence : it is not for the 
 court of Common Pleas to enforce directly a law against 
 plurality. However, we are told that the archbishop's 
 counsel dared not demur at this point, since if the court 
 was against them they would be allowed no other 
 defence. So they, as both the report and the record 
 show, traversed the king's statement that the church of 
 Wimbledon fell vacant while the temporalities of the 
 archbishopric were in the hands of Edward 11. This is 
 the plea that is upon the roll, where no notice is taken 
 of the abortive demurrer. A jury was summoned and 
 gave the king a verdict. The jurors said upon their 
 oath that after the publication in England of the con- 
 stitution called Execrabilis, for some six weeks and 
 
 1 Y. B. 26 Edw. in. f. 1 (I'asch. pi. 3). 
 
154 Canon Law in England 
 
 more, John of Sandale held the church of Wimbledon 
 and certain other churches which they named, that 
 thereby the said church became vacant, and that it 
 remained vacant until by the death of archbishop Robert 
 the temporalities of the archbishopric came into the 
 hands of Edward n. Judgment was given that the king 
 should recover his presentation, and that the archbishop 
 was in mercy. 1 
 
 On the roll this judgment is followed by a remark- 
 able writ, dated April 22, 1352. Much to our surprise 
 the king confesses that he is now informed that the title 
 to the presentation which he had successfully urged was 
 feigned and untrue {fictus et non verus), and that the 
 church did not become vacant while the temporalities of 
 the archbishopric were in his father's hand. Therefore 
 he revokes his presentation of a certain William of 
 Cheston, declares that the judgment is not to be 
 enforced, and forbids that the archbishop should be 
 further molested. This writ comes to us as a surprise ; 
 for though, as already said, we happen to know that the 
 jurors' verdict must have been false when it supposed 
 that Winchelsea's death occurred after the publication of 
 Pope John's constitution, still we are hardly prepared to 
 see Edward nr. quietly resigning the fruits of a judgment. 
 The interesting feature of the case, however, is the proof 
 that the court of Common Pleas was prepared to put 
 in force one half of the notorious extravagant, and 
 this without requiring any sentence of deprivation pro- 
 nounced by an English ecclesiastical court. The pope 
 had said that in a certain event a benefice was to be 
 void ; void therefore it was, for the pope had power 
 to make laws and even retrospective laws against plur- 
 
 1 See also the case against the bishop of Worcester, Y. B. 24 Edw. in. 
 f. 29 (Trin. pi. 21) ; also the earlier cases Y. B. 14-15 Edw. ill. (ed. Pike) 
 36, 70 ; 15 Edw. III. (ed. Pike) 163. 
 
' Execvabilis ' in the Common Pleas 1 55 
 
 alism. On the other hand, no word is said in record or 
 report of the other half of the bull, for a ' reservation 1 is 
 plainly an attempt to touch that right of patronage which 
 is a temporal right given by the law of the land, and 
 such an attempt is tiltra vires statucntis. The pope's 
 law may turn an incumbent out, but, the church being 
 vacant, the patron can exercise his right of presentation. 
 A very pretty plan ! But what would the English 
 prelates say ? 
 
 We can now understand a petition that the clergy 
 presented to the king in the Parliament of 1 35 1. 1 Prob- 
 ably it was occasioned by the action directed against 
 the archbishop. ' May it please you to grant that hence- 
 forth no justice shall hold plea of the vacation of any 
 benefice of Holy Church by reason of insufficient age, 
 consecration as bishop, resignation, plurality, inability, 
 or other voidance de hire, for no such avoidance lies or 
 can be in the cognisance of lay folk ; but if our lord the 
 king desires to take advantage of any such avoidance 
 de hire, let a mandate be sent to the archbishop or bishop 
 of the place where the benefice is, bidding him inquire 
 touching this matter in the due manner according to the 
 law of Holy Church as is done in the case of bastardy.' 
 In answer to this prayer the king willed that if title by 
 avoidance came in plea before his justices, whereof the 
 cognisance appertained to court Christian, the party 2 
 should have his challenge, and the justices should do 
 right. This somewhat enigmatical response was con- 
 verted into a statute. 3 ' Whereas the said prelates have 
 prayed remedy because the secular justices accroach to 
 themselves cognisance of the Aacation of benefices, 
 whereof the cognisance and discussion belongs to the 
 
 1 Rol/s of Parliament, ii. 245. 
 
 2 The statute suggests that the word should be prelate not party. 
 
 3 25 Edw. in. stat. 3, cap. 8. 
 
156 
 
 Canon Law in England 
 
 judge of Holy Church and not to the lay judge, the 
 king wills that the justices shall henceforth receive 
 the challenges made or to be made by any prelates of 
 Holy Church in this behalf, and shall do right and 
 reason in respect of the same.' This statute, like many 
 others which touch the relation of the temporal to the 
 spiritual tribunals, looks very much like an ' As you 
 were.' Bishops and justices must fight the matter out: 
 both parties should be reasonable ; but the king does 
 not like to decide their quarrels. 
 
 I believe that the justices held their ground. The 
 traditional law of Coke's day was that ' by the constitu- 
 tion of the pope ' if a clergyman accepts a second 
 benefice ' the first is void ipso hire and the patron may 
 present if he will,' although no sentence of deprivation 
 has been passed. 1 In other words, the secular court 
 would take direct notice of the ecclesiastical rule which 
 avoids the one beneficium curatum when the other is 
 accepted. Coke thought that the rule in question was 
 the outcome of Dc multa, the canon of the Lateran 
 Council of 12 15. That canon would, in fact, have sanc- 
 tioned what was done by our courts of common law ; but 
 when Coke proceeds to say that this is the constitution 
 that is referred to in the cases of Edward m.'s day, 
 he is mistaken. He had seen the Year Books, but did 
 not know that the roll spoke expressly of Pope John and 
 his Execrabilis. 
 
 Having mentioned John of Sandale and pluralism, 
 it may be worth our while to observe that a clerk 
 of this name, while working his way upwards through 
 the king's service towards the chancellorship of the 
 realm and the bishopric of Winchester, became a 
 pluralist of the deepest dye. He, when yet a sub- 
 deacon, obtained the chancellorship of St. Patrick's at 
 
 1 Holland's case, 4 Rep. 75^ ; Digbys case, 4 Rep. 7§b. 
 
' Execrabilis ' in the Common Picas 1 57 
 
 Dublin, the treasurership of Lichfield, seven churches 
 in seven dioceses, and three prebends at Wells, Howden, 
 and Beverley, and had leave from the pope to accept 
 additional benefices to the value of .£200. 1 The requisite 
 dispensation he had obtained from Clement v. at the 
 instance of the king of England. This is a good 
 illustration of that viciously circular process from which 
 an escape was impossible until the pope's claims were 
 utterly denied. The king's ' civil service ' must be 
 maintained, but can only be maintained out of the 
 revenues of the churches, such is the people's im- 
 patience of taxation. The only method, however, by 
 which these revenues can be secured for such an object 
 must be found in papal dispensations. Therefore the 
 pope's power to dispense with the laws that he has 
 ordained must be acknowledged. And then when the 
 pope tries to make profit for himself out of the power 
 that we allow to him, we begin to complain and to pass 
 'statutes of provisors,' which we dare not enforce lest 
 the king's ' civil service ' should break down. We 
 cannot get on with the pope, and yet we cannot do 
 without him, for rightly or wrongly we think that he 
 can legislate for the church. If only we could say that 
 his laws are not binding on a national church which has 
 not accepted them ! We dare not say that ; we do not 
 believe it ; such independence as our national church 
 enjoys is secured for it by the blessed, if uncanonical, 
 principle that an advowson is temporal property. In 
 the nineteenth century that principle may be out of 
 date and deserve to be whittled away : but Anglicans 
 should speak well of the bridge that carried them over 
 the flood of Extravagants. 
 
 1 Register of Papal Letters, ii. 9, 27, 88, 119. 
 
VI. THE DEACON AND THE JEWESS 
 
 In the year 1222, Archbishop Stephen Langton held 
 at Oxford a provincial council, and of this council one 
 result was that a deacon was burnt, burnt because he 
 had turned Jew for the love of a Jewess. 
 
 I propose here to set in order the scattered evidence 
 that we have for this story. This, so far as I am aware, 
 has not yet been done, and it seems worth doing-. The 
 story became famous, for the passage in which Bracton 
 made mention of it became the main, almost the only, 
 support for the statement that English common (that is, 
 non-statutory) law can and will burn a heretic. We 
 have indeed no warrant for saying that from the death 
 of this deacon until the death of Sautre in 1401 no one 
 in England was burnt for heresy, but we may say with 
 some confidence that during this long period, near two 
 hundred years, if English orthodoxy had a victim, there 
 is no known record of his fate. 1 
 
 Now for just so much of the tale as is told above 
 we have testimony ample in quantity and excellent in 
 quality. But I have purposely used a loose phrase : — 
 the apostate's death was a 'result' of the council. If 
 we strive to be more precise and ask by what authority 
 he was committed to the flames, who passed, who 
 executed the sentence, we have before us a difficult 
 problem. Not only in course of time did the solid 
 
 1 Report of Ecclesiastical Courts Commission, 1883, Historical Appendix, 
 
TJie Deacon and the Jewess 159 
 
 tragic fact attract to itself some floating waifs of legend 
 and miracle, but even our best witnesses have not been 
 so careful of their words as doubtless they would have 
 been had they known that they were writing for an 
 ignorant nineteenth century. We must collate their 
 testimonies, mark what they say, also what they do 
 not say. So doing we shall be drawn into noticing 
 another story about a man and a woman who were 
 immured (whatever 'immured' may mean), and this 
 story also deserves being brought to light, for it is 
 curious. 
 
 That the council was held is certain. The scene 
 and time we can fix. The scene was Oxford, or, to be 
 more particular, the conventual church of Oseney. 1 The 
 day is variously described : the day on which we read 
 in the gospel, ' I am the good Shepherd,' the day on 
 which we sing in the introit, 'The earth is full of the 
 mercy of the Lord ' ; but all descriptions come to this, 
 it was the 17th of April, and the Second Sunday after 
 Easter, in the year 1222. The canons which the 
 council published we have. 2 Naturally enough, being 
 general ordinances, they say nothing of the deacon ; 
 but there are two of them which claim a brief atten- 
 tion. 
 
 It was ordained that no beneficed clerk, or clerk 
 in holy orders, should take any part whatever, even the 
 most mechanical and subordinate, in the judicial shedding 
 of blood. 3 This, even if it stood by itself, would assure 
 us that no sentence of death was pronounced by the 
 council in so many words. It may be that this canon 
 was habitually disobeyed, or obeyed only according to 
 its very letter. At this time, and for some years after- 
 wards, many of the judges in our king's court (to say 
 
 1 Annates Monastics (Oseney), vol. iv. p. 62. 
 
 2 Wilkins, Concilia, vol. i. p. 585. 3 Cap. 9. 
 
i6o 
 
 Canon Law in England 
 
 nothing of bishops, and even abbots sent out as justices 
 in eyre) were ecclesiastics, and the judicial bench was 
 often a step to the episcopal throne. But this was a 
 scandal to churchmen of the straiter sort, and it would 
 be one thing for a beneficed clerk to hold pleas of the 
 crown, leaving to some lay associate the actual uttering 
 of the fatal suspendatur, quite another for an ecclesiastical 
 council to break while in the act of publishing a law for 
 the church. 
 
 Also the council had something to say about the 
 mingling of Jews with Christians, and something which 
 suggests, what indeed seems the truth, that at this time 
 the Jews in England, despite the exactions of their royal 
 protector, and despite occasional outbursts of popular 
 fury, were a prosperous thriving race. Jews are not to 
 have Christian servants, it being contrary to reason that 
 the sons of the free woman should serve the sons of the 
 bond. 1 Again, there being unfortunately no visible dis- 
 tinction between Jews and Christians, there have been 
 mixed marriages or less permanent unions ; for the 
 better prevention whereof, it is ordained that every 
 Jew shall wear on the front of his dress tablets or 
 patches of cloth four inches long by two wide, of some 
 colour other than that of the rest of his garment. 2 
 We might guess that the prelates were moved to this 
 decree by the then recent and shameful crime of the 
 apostate deacon. But there is no need for any such 
 supposition, for the Oxford Council was publishing and 
 endorsing the acts of a more august assembly, the fourth 
 Lateran Council held by Pope Innocent in. in the year 
 1215. 
 
 1 Cap. 39. 
 
 2 Cap. 40. It seems that this regulation was enforced by statute in 1275. 
 See Fiores Historiarum ('Matthew of Westminster') for that year. In 
 Statutes of the Realm (vol. i. p. 221) this appears as a statute of uncertain 
 date. 
 
The Deacon and tJie Jewess 
 
 161 
 
 The Lateran Council had prohibited the clergy from 
 taking part in judgment of blood, 1 also it had ordained 
 that Jews and Saracens should wear some distinctive 
 garb, 2 lest under cover of a mistake there should be an 
 unholy union of those whom God had put asunder. But 
 this was by-work ; the suppression of flagrant heresy 
 had been the main matter in hand. Of heresy England 
 had known little, almost nothing. It is true that in 
 1 1 66 some heretics, Cathari or the like, had been con- 
 demned by an ecclesiastical council (this council also 
 was held at Oxford), had been handed over to the 
 secular power, and then by the king's command whipt, 
 branded, and exiled ; some of them, it seems, miserably 
 perished of cold and hunger. 3 But they were foreigners, 
 and the writer who tells us most about them boasts that 
 though Britain was disgraced by the birth of Pelagius, 
 England, since it had become England, had been un- 
 polluted by false doctrine. He boasts also, and ap- 
 parently with truth, that well-timed severity had been 
 successful. 4 Only one other case is recorded, and of 
 this we know next to nothing. In 1 210 an Albigensian 
 was burnt in London ; we are told just this and no more. 5 
 It must not surprise us, therefore, if English law had no 
 well-settled procedure for cases of heresy ; there had 
 been no heretics. But it was otherwise elsewhere. 
 When the Lateran Council met, the Albigensian war 
 had been raging, and it had been a serious question 
 whether a large tract of France would not be perman- 
 ently lost to the catholic church. So one great object 
 of the council was to impress upon all princes and 
 
 'Cap. 18. 2 Cap. 68. 
 
 3 The original authorities seem to be Rad. de Diceto (ed. Stubbs), vol. i. 
 p. 318 ; William of Newburgh (ed. Howlett), vol. i. p. 131 ; Mapes de Nugis 
 Curialium, p. 63 ; Ralph of Coggeshall, p. 122. 
 
 4 Will. Newburgh, I.e. 
 
 5 Liber dc Anliquis Lcgibus (Camden Society), p. 3. 
 
1 62 Canon Law in England 
 
 potentates the sacred duty of extirpating heretics. A 
 definite method of dealing with them was ordained. 1 
 They were to be condemned by the ecclesiastical powers 
 in the presence of the secular powers or their bailiffs 
 {saecularibus potestatibus praesentibus ant eorum baillivis) 
 and delivered to due punishment, clerks being first de- 
 prived of their orders. Also it was decreed that if the 
 temporal lord, when required and admonished by the 
 church, neglected to purge his land of heresy, he should 
 be excommunicated by the metropolitan and the other 
 bishops of the province. If, then, for the space of a year 
 he should still be contumacious, that was to be signified 
 to the pope, who would thereupon discharge the subjects 
 of this recalcitrant prince from their allegiance. The 
 due punishment for the obstinate heretic was not defined. 
 By this time so many had suffered it that there was little 
 need to name it, and it was one that ecclesiastical councils 
 scrupled to name. From taking part in such legislation 
 as this the English bishops had lately returned when 
 they met at Oxford. The council at Oxford, having 
 recited and republished the Lateran canons, can have 
 had little doubt as to how it and the secular powers 
 ought to deal with a deacon who had turned Jew. 
 
 It will hardly be a digression, and indeed may lead 
 us to the right point of view, if we notice that this same 
 Lateran Council made (or if the word made be objection- 
 able, then let us say caused) a great change in English 
 criminal law. It abolished the ordeal, or rather it made 
 the ordeal impossible by forbidding the clergy to take 
 part in the ceremony. 2 No more remained for the 
 council of the English king (the king himself was yet a 
 boy) than to find some substitute for a procedure which 
 was no longer practicable. 3 We may respect the motives 
 
 1 Cap % 3- This is c. 13, X. 5. 7. 2 Cap. iS. 
 
 8 See the orders issued to the justices in eyre ; Focdcra, vol. i. p. 154. 
 
The Deacon and the Jewess 163 
 
 which urged Blackstone to protest that no change in 
 English law could be made by a body of prelates as- 
 sembled at Rome ; 1 but we shall misread the history of 
 the time unless we understand that the exclusive power 
 of the church to rule things spiritual — and the ordeal, 
 the judgment of God, was a thing spiritual — was un- 
 questioned. And so also in the matter of heresy it was 
 for the church to speak, and her speech might end with 
 an eloquent aposiopesis. 
 
 Though it may delay us from our story, there is yet 
 one question which should be asked and answered before 
 we can fully comprehend the evidence that is to come 
 before us. Who at Oxford in the year 1222 was the 
 natural and proper representative of temporal power : 
 who was the manus laicalis ? Doubtless the sheriff of 
 Oxfordshire. Now it happened that the sheriff of 
 Oxfordshire was one of the most important men in 
 England : more than king in England (plusquam rex in 
 Anglia), some said. 2 He was Fawkes of Breaute, just 
 at the full height of his power, a man not unlikely to act 
 in a high-handed imperious way without much regard for 
 forms and precedents, a man who perhaps was already 
 plotting revolt and civil war, a man somewhat given to 
 disseising and otherwise pillaging the clergy, and there- 
 fore, it may be, not unwilling to do the church a service 
 if that service would cost him nothing. He was soon to 
 find that the church could be a terrible enemy, and that 
 of all his foes Langton was the most resolute. 
 
 These things premised, we may call the witnesses, 
 and first of all Bracton, not that his testimony is the 
 earliest, but because it is the best known. A lawyer 
 writing for lawyers, he would be likely to see the case 
 in its legal bearings and to speak of it carefully. We 
 
 1 Comment, vol. iv. pp. 344, 345. 
 
 2 Attn. Monast. (Tewkesbury), i. 64. 
 
164 Canon Law in England 
 
 cannot assign a precise date to his evidence, and he may 
 have given it between thirty and forty years after the 
 event. Still it is from round about the year 1222, the 
 year of the Oxford Council, that he collected most of 
 his case law. That was the time when there were great 
 judges whose judgments were worthy of record. Of 
 their successors, his own contemporaries, he seems for 
 some reason or another to have thought meanly. It 
 was to the examination of old judgments, as he ex- 
 pressly says, that he had given his mind. 1 He is speak- 
 ing then, if not of his own time, yet of a time that he 
 has studied. He has been telling us that a clerk con- 
 victed of crime is to be degraded by the court Christian. 2 
 This degraded man is to undergo no further punish- 
 ment ; degradation is punishment enough ; ' unless indeed 
 he is convicted of apostasy, for then he is to be first 
 degraded and then burnt by the lay power {per manum 
 laicaleni), as happened at the Oxford Council holden by 
 Stephen, archbishop of Canterbury, of happy memory, 
 touching a deacon who apostatised for a Jewess, and 
 who, when he had been degraded by the bishop, was at 
 once (statini) delivered to the fire by the lay power.' 
 Two things we remark. In the first place, there is no 
 talk of any sentence of death being pronounced by any 
 court, temporal or spiritual ; there is no talk of any royal 
 writ ; the miscreant was burnt at once, on the spot, so 
 soon as he had been degraded : secondly, the case is 
 good law ; it is a precedent to be followed when occasion 
 shall require. 
 
 But Bracton does not stand alone. If he did, we 
 should perhaps have some cause for doubting his testi- 
 mony. It was an age fertile of chroniclers, and there 
 are some dozen books in which we may hope to find a 
 trustworthy and early, if not quite contemporary, account 
 1 Bracton, f. 1. 8 Bracton, f. 123 b. 
 
The Deacon and tJie Jewess 165 
 
 of an event which took place in 1222, an event which, 
 though neither very marvellous nor of first-rate import- 
 ance, was picturesque and unprecedented. Some of 
 these books are silent. The silence most to be regretted 
 is that of Roger of Wendover. We would gladly have 
 had an account from one so careful and so well-informed. 
 But he is busy with more momentous matters, the loss 
 of Damietta and a serious riot in London, not suppressed 
 without the aid of Fawkes and his soldiery. Beyond 
 this he tells of nothing but tempests. And, indeed, the 
 weather this year was bad ; about this all our authorities 
 are agreed. It is the only fact that the annalist of 
 Margan found worthy of remark. The annals of Burton 
 and of Bermondsey do not mention the council ; those 
 of Winchester, Worcester, and Tewkesbury tell us that 
 the council was held, but tell us no more. The annals 
 of Oseney, to which we look hopefully, merely say that 
 the council was held, and held at Oseney. But this 
 silence cannot be reckoned as negative evidence. The 
 monastic annalist, working with no definite plan, with 
 no consistent measure for the greatness of events, jotted 
 down what might interest his house or had struck his 
 fancy, making sometimes what seems to us a capricious 
 selection of facts. He could pass by the fate of the 
 perverted deacon, but he could pass by many things 
 which, tried by any test, were better worth recording. 
 
 From the Cistercian house of Waverley in Surrey 
 we have this: 1 'In this council an apostate deacon 
 who had married (duxerat) a Jewess was degraded and 
 afterwards burnt. Also a countryman (rusticus) who 
 had crucified himself was immured for ever.' A some- 
 what longer version comes from Dunstable, 2 and it 
 seems to be the version of one who probably was an 
 eye-witness, Prior Richard Morins, who was describing 
 
 1 Ann. Monast, vol. ii. p. 296. 2 Ibid. vol. iii. p. 76. 
 
1 66 Canon Law in England 
 
 events as they happened year by year. He had cer- 
 tainly been at the Lateran Council, and I suppose that 
 it was his duty to be at the Oxford Council also. He 
 must have been a careful man of business, for these 
 Dunstable Annals are a long detailed record of litigation 
 and legal transactions described in technical language. 
 What he says is this : ' In this council there was con- 
 demned to the flames, after his degradation, a deacon 
 who for the love of a Jewess had been circumcised ; and 
 he was burnt with fire outside the town by the king's 
 bailiffs who were present on the spot (ibidem praesentes). 
 There also another deacon was degraded for theft. Also 
 a woman who gave herself out to be Saint Mary, and a 
 youth who had given himself out to be Christ, and had 
 pierced his own hands, side, and feet, were immured 
 at Banbury.' The prior certainly says that the pervert 
 was condemned to the flames in (not by) the council. 
 Could we now draw his attention to these words he 
 would, I think, say (after a grumble about hypercriti- 
 cism) that, of course, the council did not in so many 
 words pronounce a sentence of death, but would add 
 that it did what was for practical purposes the same 
 thing : it convicted the man of apostasy, and handed him 
 over to the secular power. He might add, too, that no 
 one for whom he wrote would have imagined that a 
 indicium sanguinis was uttered by this assembly of 
 ecclesiastics. Of any temporal court he says nothing, 
 and nothing of any royal writ, but the king's bailiffs 
 were present on the spot, as required by the Lateran 
 Council, and they burnt the convict. 
 
 The account which comes to us from the Abbey of 
 Coggeshall in Essex is yet fuller. 1 It is contained in a 
 valuable chronicle, and in all probability was written 
 within some five years after the event. Archbishop 
 
 1 Ralph of Coggeshall, p. 190. 
 
The Deacon and the Jewess 
 
 167 
 
 Stephen held a council at Oxford, and there ' degraded 
 an apostate deacon, who for the love of a Jewess had 
 circumcised himself. When he had been degraded he 
 was burnt by the servants of the lord Fawkes. And 
 there was brought thither into the council a miscreant 
 youth along with two women, whom the archdeacon 
 of the district accused of the most criminal unbelief, 
 namely, that the youth would not enter a church nor be 
 present at the blessed sacraments, nor obey the injunc- 
 tions of the Catholic Father, but had suffered himself to 
 be crucified, and still bearing in his body the marks of 
 the wounds, had been pleased to have himself called 
 Jesus by the aforesaid women. And one of the women, 
 an old woman, was accused of having long been given 
 to incantations, and having by her magic arts brought 
 the aforesaid youth to this height of madness. So both 
 being convicted of this gross crime, were condemned to 
 be imprisoned between two walls until they died (iussi 
 sunt inter dtios mtiros incarcerari quousque dejicerent). 
 But the other woman, who was the youth's sister, was 
 let go free, for she had revealed the impious deed.' We 
 notice the appearance of Fawkes of Breautc;, or rather 
 of his underlings, remembering, however, that the 
 ministri doniini Falconis would also be the ballivi domini 
 Regis mentioned by the prior of Dunstable. We notice 
 also that here there is no sentence of death, and there is 
 no royal writ. 
 
 Of about equal value and of about even date must be 
 the account which, according to Dr. Stubbs, comes from 
 some nameless canon of Barnwell : the account which is 
 preserved in the Memoriale of Walter of Coventry. 1 ' A 
 priest and a deacon were there degraded inside the 
 church before the council by the lord of Canterbury, 
 the priest for homicide, the deacon for sacrilege and 
 
 1 Walter of Coventry, ii. 251. 
 
Canon Law in England 
 
 theft. But another deacon had sinned enormously ; he 
 had renounced the Christian faith ; blaspheming and 
 apostatising, he had caused himself to be circumcised in 
 imitation of the Jewish rite. He was degraded by the 
 lord of Canterbury outside the church and before the 
 people. Relinquished by the clergy, he was as a layman 
 and captured apostate delivered over to be condemned 
 by the judgment of the lay court, and being at once 
 (sfatim) delivered to the flames he died a miserable 
 death. In degrading the priest and the deacons, when 
 the lord of Canterbury had stripped off the chasuble, or 
 stole, or whatever it might be, by lifting it with the end 
 of his pastoral staff, he made use of these words, " We 
 deprive you of authority " [Exatitoramus te). There was 
 brought into the council a layman who had allowed him- 
 self to be crucified, and the scarred traces of the wounds 
 might be seen in his hands and feet, and his pierced side 
 and his head. There was brought also a woman who, 
 rejecting her own name, had caused herself to be called 
 Mary Mother of Christ. She had given out that she 
 could celebrate mass, and this was manifested by some 
 proofs which were found, for she had made a chalice and 
 patten of wax for the purpose. On these two the 
 council inflicted condign punishment, that enclosed within 
 stone walls (inuris lapidcis inclusi) they should there end 
 life.' One peculiarity of this lifelike account is that it 
 says nothing about the Jewess. But we have also to 
 note the mention of the lay court, for of this we have 
 hitherto heard nothing. The deacon was delivered over 
 to be condemned by its judgment. These are the 
 important words : velut laicus et apostata captus traditur 
 iiidicio curiae laicalis condemnandus. Nevertheless we 
 do not read that he was in fact condemned by or brought 
 before any secular tribunal ; on the contrary, he was 
 forthwith committed to the flames. 
 
The Deacon and tJie Jewess 
 
 169 
 
 I believe that I have now stated what may be called 
 the first-rate evidence, and that it is more than sufficient 
 to establish the chief facts. It will not escape the 
 reader's notice that all these early accounts of the matter 
 are sober : strikingly sober when the nature of the story 
 and its subsequent fate are considered. We come to 
 witnesses of a less trustworthy kind. And first there is 
 Matthew Paris, who died in 1259. Roger of Wendover, 
 as already said, does not mention the Oxford Council. 
 When Paris was absorbing Wendover's work into his 
 own Chronica Maiora, he inserted a notice of the 
 council and of the deacon's death. A more elaborate 
 tale he set forth in his Historia Minor or Historia 
 Anglorzt?u y and to this we will turn first since there he 
 cites his authority, and this authority an eye-witness, one 
 Master John of Basingstoke, archdeacon of London. 1 
 Of any such archdeacon of London nothing seems 
 known, but a John of Basingstoke was archdeacon of 
 Leicester. 2 Paris knew him well, and doubtless he is 
 the person meant. He was a friend of Simon de Mont- 
 fort, and died in 1252. Paris, on the occasion of his 
 death, speaks of him as of a very learned man. 3 He 
 had been to Greece, and had learnt Greek, had learnt it 
 from a Greek girl, of whose wonderful accomplishments 
 he had strange things to tell. She could foresee eclipses, 
 pestilences, and even earthquakes, and had taught the 
 archdeacon all that he knew. Perhaps, while seated at 
 her feet, he not only learnt but forgot ; perhaps, as a 
 traveller, he acquired a habit of telling good stories. At 
 any rate the story that he told to Paris was this : 'An 
 English deacon loved a Jewess with unlawful love, and 
 ardently desired her embraces. " I will do what you 
 
 1 Historia Anglorttm, ii. 254. 
 
 2 See Diet. Nat. Biog. s.v. Basing. 
 
 3 Chron. Maj. vol. v. p. 284. 
 
170 
 
 Canon Law in England 
 
 ask," said she, "if you will turn apostate, be circumcised, 
 and hold fast the Jewish faith." When he had done 
 what'she bade him, he gained her unlawful love. But 
 this could not long be concealed, and was reported to 
 Stephen of Canterbury. Before him the deacon was 
 accused ; the evidence was consistent and weighty ; he 
 was convicted, and then confessed all these matters, and 
 that he had taken open part in a sacrifice which the Jews 
 made of a crucified boy. And when it was seen that the 
 deacon was circumcised, and that no argument would 
 bring him to his senses, he solemnly apostatised before 
 the archbishop and the assembled prelates in this 
 manner : — a cross with the Crucified was brought before 
 him, and he defiled the cross, 1 saying, " I renounce the 
 new-fangled law and the comments of Jesus the false 
 prophet," and he reviled and slandered Mary the mother 
 of Jesus, and made against her a charge not to be re- 
 peated. Thereupon the archbishop, weeping bitterly 
 at hearing such blasphemies, deprived him of his orders. 
 And when he had been cast out of the church, Fawkes, 
 who was ever swift to shed blood, at once carried him off 
 and swore, " By the throat of God ! I will cut the throat 
 that uttered such words," and dragged him away to a 
 secret spot and cut off his head. The poor wretch was 
 born at Coventry. But the Jewess managed to escape, 
 which grieved Fawkes, who said, "I am sorry that this 
 fellow goes to hell alone." ' 
 
 Eye-witness and archdeacon though Master John of 
 Basingstoke may have been, we cannot believe all that 
 he said. In the first place, he will have the deacon's 
 head cut off, while all our best witnesses agree about the 
 burning. In the second place, either the charge of 
 crucifying a boy is just the mere ' common form ' charge 
 against the Jews (the Jews were always crucifying boys, 
 
 1 Et minxit super crucem. 
 
The Deacon and the Jewess 171 
 
 as everyone knew, and were now and again slaughtered 
 for it), or else the archdeacon has muddled up the history 
 of the deacon with that of the labourer who was immured 
 for crucifying himself. Nor does it seem likely that the 
 assembled prelates gave the apostate an opportunity of 
 manifesting his change of faith in a fashion at once very 
 solemn and very gross. But what is said of Fawkes of 
 Breaute" deserves consideration. Fawkes, when this 
 story was told, was long since banished and dead, and it 
 may well be that he had become a bugbear, a mythical 
 monster to whom, under Satan, mischief of all sorts 
 might properly be ascribed. But what mischief, what 
 evil doing had there been ? Why should a lawful 
 execution be converted into a hurried and secret act of 
 this cursing and bloodthirsty enemy of mankind, this 
 Fawkes of Breaute, 'ever swift to shed blood,' with 
 imprecations about the throat of God ? Certainly the 
 impression left on the archdeacon's mind seems to have 
 been that of a deed which was indecently hasty. 
 
 What Paris says in his Chronica Maiora 1 is briefer, 
 but it has a new marvel for us, and shows that we are 
 already on treacherous ground. He introduces us to an 
 hermaphrodite. A man has been apprehended who has 
 in his hands, feet, and side the five wounds of the cruci- 
 fixion ; he and an accomplice, a person utriusque sexus, 
 scilicet, Ermofrodittis, confess their offences, and are 
 punished by the judgment of the church. ' Likewise 
 also a certain apostate, who, being Christian, had turned 
 Jew, a deacon, he too was judicially punished (iudicia/itcr 
 punitus) ; and Fawkes at once snatched him away and 
 caused him to be hanged (q:t,em Falco statim arreptum 
 suspendi fecit).' The poor deacon, who has been already 
 burnt and beheaded, is now hanged. This we may pass 
 by, nor will we discuss the question how the old woman 
 
 1 Vol. iii. p. 71. 
 
172 
 
 Canon Law in England 
 
 who called herself St. Mary became an hermaphrodite ; 
 but we again notice that the slaying of the apostate is due 
 to Fawkes, and seems a lawless or at least irregular act. 
 Doubtless the abbey in which Paris wrote was just the 
 place in which stories discreditable to Fawkes would be 
 readily believed and invented, and Paris himself seems 
 to have cherished a bitter hatred for ' the great enemy 
 and despoiler of St. Alban's.' 1 But again we have to 
 ask whether and why there was anything reprehensible 
 in putting to death this degraded clerk, and, if not, why 
 that evil principle, Fawkes of Breaute, should be invoked 
 to account for what was perfectly natural and right ? 
 
 Another ornate version is given by Thomas Wykes, 
 who, it is believed, wrote near the end of the thirteenth 
 century and in the monastery of Oseney, the scene of 
 the council. 2 ' In this council there was presented a 
 deacon who, some time ago, had for the love of a Jewess 
 rejected Christianity, apostatised, and been circumcised 
 according to the Jewish rite. Being convicted of this, 
 he was first degraded, then condemned by a secular 
 judgment {saeculari iudicio condemnatus) and burnt by 
 fire. It was said that this same apostate, in contempt 
 of the Redeemer and of the catholic faith, had even 
 dared to throw away in an ignoble place {in loco ignobili) 
 the Lord's body which had been stolen from a church. 
 A Jew revealed this, and in corroboration of the 
 Christian faith the Lord's body was found unpolluted, 
 uncorrupted, in a fair vessel, prepared for it, as one may 
 well believe, by angel hands. And there was brought 
 into the same council a country fellow (rusticus) who 
 had come to such a pitch of madness that, to the 
 despite of the Crucified, he had crucified himself, assert- 
 ing that he was the Son of God and the Redeemer of 
 
 1 Dr. Luard's Preface to vol. iii. p. xii. 
 
 2 Attn. Monast. vol. iv. p. 62. See Dr. Luard's Preface, pp. x-xv. 
 
The Deacon and tJic Jewess 173 
 
 the world. He was immured by the judgment of the 
 Council, and shut up in prison he ended his life, fed on 
 water and hard bread.' This is, I think, the first and 
 only account which states that the deacon was con- 
 demned by a lay court, and I believe that it comes 
 from too late a time to be trusted ; the legend about 
 the consecrated wafer shows that the story was already 
 being improved by transmission. 
 
 There is not much more to be said. Later writers 
 repeat with more or less accuracy what we have already 
 read. Just one new ornament is added, and a pretty 
 ornament too. Having learnt how the rusticus crucified 
 himself, and how the deacon assisted at the crucifixion 
 of a Christian boy, we may read in the pages of Holin- 
 shed and elsewhere how the council crucified an herma- 
 phrodite : a version of the tale which good Protestants 
 must think very proper and probable. 1 
 
 Such being the evidence, were I to venture a guess 
 as to what really happened, it would be this : — No one 
 in England doubted that this deacon ought to be 
 burnt, except, it may be, the deacon himself and his 
 fellow Jews. It is not necessary here to assume that 
 had his offence been mere heresy, his fate would have 
 been the same, though I believe that of this there can 
 be little doubt. But his crime was enormous, he had 
 piled sin on sin. A deacon of the Christian church he 
 had turned Jew, turned Jew for love and for the love 
 of a Jewess. Excommunication would have awaited 
 the king, interdict the nation, if heresy had gone un- 
 punished, and England had lately had some sad experi- 
 ence of interdicts. But in such a case as this, no 
 
 1 Holinshecl (ed. 1807), vol. ii. p. 251. But the confusion is older; see 
 Polychronicon, viii. 200 ; Knighton (Twysden's Scriptorcs), p. 2429 ; it 
 must, I think, have originated in the clerical blunder of someone who 
 wrote crucijixus instead of immuratus. 
 
i74 
 
 Canon Law in England 
 
 ecclesiastical threat would be needed ; everyone would 
 agree that this self-made Jew must be burnt. It was 
 the duty of the council to degrade him, to demand that 
 he should be punished, to see that he was punished ; 
 but the council could not pronounce upon him any 
 sentence beyond that of degradation. He was degraded 
 then, not inside the church like the manslayer and the 
 thief, but outside the church, before the people, and he 
 was then handed over to the sheriff or his bailiffs. He 
 was at once burnt ; most of our witnesses bring out 
 this fact that he was burnt at once, and without any 
 further formality. Possibly it was intended that there 
 should be some further formality, some sentence pro- 
 nounced by a lay tribunal ; one of our witnesses, the 
 canon of Barnwell, seems to say as much, and the story 
 about the indecorous haste of Fawkes points the same 
 way. Possibly, then, Fawkes or his subordinates acted 
 with unexpected promptitude ; Fawkes, unless he is 
 maligned, was not given to waiting for orders. One 
 writer at the end of the century says that the man was 
 condemned by the lay court. I take this to prove that 
 by that time it was thought that there ought to be, 
 assumed that there must have been, some precept from 
 a lay tribunal, or some writ from the king. But what- 
 ever was expected and omitted was a bare formality, 
 the registration of a foregone conclusion. By an in- 
 formality the deacon gained a speedier release from a 
 painful world. Any notion that he would have been 
 saved, had he been brought before the king's justices, 
 we may dismiss as idle. Those justices, almost to a 
 man, would have been ecclesiastics, and among laymen 
 he would have fared no better. There was no statute, 
 there may perhaps have been no English precedent 
 to the point ; such a case is not foreseen in advance, 
 and when it happens it is unprecedented ; but that a 
 
The Deacon and the Jewess 
 
 175 
 
 deacon who turns Jew for the love of a Jewess should 
 be burnt, needed no proof whatever. Bracton, as I 
 think, knew that there had been no judgment of any lay 
 court (' qui cum esset per episcopum degradatus, statim 
 fuit igni traditus per manum laicalem '), and he fully 
 approved of what had been done, and so far generalised 
 the case as to state for law that an apostate clerk (a 
 layman would have been in no better plight, but Bracton, 
 as it happens, is discussing clerical privileges) is to be 
 delivered to the lay power and burnt. 
 
 The fate of the man and woman who were immured, 
 enthusiasts, fanatics, lunatics, impostors, or whatever 
 they were, is as remarkable as the fate of the deacon. 
 The notion that for breach of monastic vows persons 
 were sometimes bricked up in walls was once current, 
 and may still be entertained by some who take their 
 Marmion too seriously. Scott indeed sanctioned it 
 not only by verse, but by a solemn prose note. Very 
 possibly the main foundation of this notion is some 
 version of the story that has here been before us, for I 
 believe that this is almost all that is to be found about 
 immuration in any English records or chronicles. We 
 see plainly (and this might, I take it, be fully proved 
 from foreign books) that our witnesses do not mean that 
 two persons were suffocated in brick or stone. They 
 were imprisoned for life, and fed on bread and water. 
 Doubtless the imprisonment was very close and strait, 
 otherwise we should not have the same immuratus from 
 writer after writer when incarcerates and imprisonattis 
 lay ready to hand, and one writer says that they were 
 enclosed between two walls, not between four ; but still 
 they were fed, though water and hard bread were their 
 fare. Stephen Langton was copying but too closely 
 the proceedings of foreign inquisitors, who well knew 
 how to ' immure ' those whom they did not burn. 
 
176 
 
 Canon Law in England 
 
 Here our story ends ; but, as is well known, the 
 deacon's case became a precedent. In particular, it 
 became a precedent for the incineration of Arians and 
 Anabaptists when in the days of Edward vi. and Eliza- 
 beth there were no English statutes which commanded 
 or authorised the infliction of that punishment. I am 
 not sure that those who have discussed the fate of 
 these unfortunates have always placed themselves at 
 the right point of view. Heresy is a spiritual crime, 
 and therefore it is for the church and not for the state 
 to decide how heretics shall be punished. The church 
 has decided that obstinate heretics shall be burnt. 
 Whatever may have been the case in 1222, there can 
 be no doubt what was the law of the church a few years 
 later, and before the end of the century the Sext had 
 made the matter quite clear. Frederick 11., 'while still 
 remaining in devotion to the Roman church,' gave the 
 popes an opportunity of decreeing the death of heretics, 
 and at the same time of avoiding all ugly phrases. 
 Under what law, then, were the English Lollards burnt? 
 Lyndwood's answer is : Under Ut inquisitionis negotiimi, 
 c. 18 in Sexto, 5. 2. True, you will not find, nor 
 should you expect to find there any coarse talk of flame 
 and faggot, but you will find there quite enough : the 
 pope wills that Frederick's constitutions be enforced 
 throughout the world. 1 
 
 Then we observe what happened in 1401. Parlia- 
 ment was in the act of making a statute which would 
 direct the sheriff to burn the convicted heretic. William 
 Sautre, however, was done to death before the statute 
 was passed. The question has been raised why Arch- 
 bishop Arundel was in this indecent hurry to burn his 
 man. Readers of Lyndwood will hardly doubt what 
 the reply should be. Arundel had obtained from the 
 
 1 Lyndwood, p. 293, gl. ad v. poenas in iurc cxprcssas. 
 
The Deacon and the Jewess 
 
 177 
 
 king and the lords an admission that, statute or no 
 statute, heretics are to be burnt. They are to be 
 burnt, for divine law and the positive law of the church 
 require it. The aid of a statute was extremely de- 
 sirable. Unless parliament helped them, the bishops 
 would often be unable to procure the arrest and deten- 
 tion of suspects, and there would be frequent friction 
 between spiritual and temporal power. It was equally 
 desirable, however, that at least one Lollard should be 
 burnt, not under any act of parliament, but under Ut 
 inquisitwnis (c. 18 in Sexto, 5. 2), in order that the right 
 of the church to declare that obstinate heresy is a capital 
 crime might be plainly manifested to all men as a right 
 which no statute gave, and no parliament could take 
 away. 
 
 When at the beginning of Edward vi.'s reign the 
 statutes that had been passed against the Lollards, ' and 
 all and every other act or acts of parliament concerning 
 doctrine or matters of religion ' 1 were being repealed, 
 did those who projected this change intend that there 
 should be no more burning ? Their subsequent conduct 
 would make us hope that this had not been their mean- 
 ing ; that conduct is a contauporanea expositio. But 
 also we may suppose them looking at two obvious 
 books to discover what will be the law when all statutes 
 have been repealed. They look at Fitzherbert's Natura 
 Brevium. They see there the writ under which Sautre 
 was burnt ; it is a writ which has no statute behind it ; 
 it is a writ which goes the length of saying that divine 
 as well as human and canonical law sends the obstinate 
 heretic to his painful death. 2 They look at Lyndwood's 
 
 1 Stat. 1 Edw. vi. c. 12. sec. 3. 
 
 2 Natura Brevium, 269 ; Rolls of Parliament, iii. 459: ' haereticos in 
 forma praedicta convictos et damnatos iuxta legem divinam et humanam 
 canonica instituta et in hac parte consuetudinarMa] ignis incendio 
 comburi debere.' 
 
 12 
 
1 7 8 
 
 Canon Law in England 
 
 Provinciate. So much of the old canon law is still in 
 force as is not repugnant to the laws of God and the 
 statutes of our lord the king. We have good reason 
 to fear that in their eyes a law for the burning of 
 Arians and Anabaptists was in full harmony with the 
 word of God, and no one could say that it was con- 
 demned by any English statute. They repealed the 
 Lancastrian edicts. Thereby they made it practically 
 impossible for the bishops to administer the law against 
 heresy, for, as already said, without statutory power of 
 arrest and detention, the bishops could do very little. 
 The prelates of the time were not to be trusted ; they 
 were Henricians; they might burn the wrong people. 
 On the other hand, the legates a latere of the poor 
 little pope-king would wield powers of arrest and deten- 
 tion such as the royal council wielded, and no man in 
 those days was prepared to question its deeds. As 
 to the authors of the Reformatio Legum, I know that 
 a charitable doubt has been raised, and would gladly 
 entertain it ; 1 but where others may see uncertainty, I 
 can see only the traditional hypocrisy of the medieval 
 church, which leaves the nasty word unsaid but 
 thoroughly understood. We sometimes find continuity 
 where we would rather have found a new departure. 
 Not only Arians and Anabaptists, but intractable Roman- 
 ists and intractable Lutherans would have been burnable 
 under the reformed law of the reformed church of 
 England. Would the intractable Romanists have been 
 consoled by the thought that after all they were suffering 
 under Ut inquisitionis (c. 18 in Sexto, 5. 2)? 
 
 At the beginning of Elizabeth's reign it must have 
 been notorious to all that a few heretics had been put 
 to death in the days of her godly brother. Once more 
 parliament was dealing with the matter. Once more 
 
 1 Hallam, Const, Hist., ed. 1832, vol. i. p. 139. 
 
The Deacon and the Jewess 179 
 
 it repealed the Lancastrian statutes which Mary had 
 revived. Once more it abstained from saying that there 
 was to be no more burning ; and a little more burning 
 there was. The old law-books were being put into 
 print. Everyone could read how Arundel burnt Sautre, 
 and how Langton burnt a deacon who turned Jew for 
 love, and the love of a Jewess. 1 
 
 1 For two different views of the manner in which obstinate heresy 
 became a capital crime, see Tanon, Histoirc des tribunaux de V inquisition, 
 Paris, 1893, and Julien Havet, (Ein'rcs, Paris, 1896, vol. ii. p. 1 17 ff. 
 
INDEX 
 
 ACADEMIC study of canon law, 9 
 97- 
 
 Acceptance of laws, 31. 
 
 Acts of Parliament, power of, 12. 
 
 Advowsons, 62, 74, 14S-157. 
 
 Albigensians, 161. 
 
 Alexander III., 62, 122-124, 145. 
 
 Anabaptists, 176-179. 
 
 Ancharano, Petrus de, 5. 
 
 Andreae, Johannes, 7, 39, 108. 
 
 Anti-ecclesiastical legislation, 67. 
 
 Apparitors, 34. 
 
 Appeals to Rome, 103, 113. 
 
 Appcl comme (Tabus, 86. 
 
 Apostasy, 15S, 173. 
 
 Arians, 176-179. 
 
 Arrangement of Provinciate, 37. 
 
 Arundel, Thomas, 17, 18, 176. 
 
 Athona, Johannes de. See Ayton. 
 
 Authority and obedience, 2, 10. 
 
 Ayton, John of, 6, 55, 76, 98. 
 
 Baldwin, Archbishop, 128. 
 Banns of marriage, 39. 
 Basel, Council of, 15. 
 Basingstoke, John of, 169. 
 Bastardy and ordination, 55. 
 
 ,, special, 53. 
 Baysio, Guido de, 8, 13. 
 Beaufort, Cardinal, 15. 
 Becket, Thomas, 60, 62, 132-147. 
 Bethmann-Hollweg, no. 
 Bishop and metropolitan, 1 17-120. 
 
 „ the universal, 1 16. 
 Bishopric and temporalities, 151. 
 Bishoprics, collation to, 69. 
 /Us in idipsum, 1 38. 
 Blood, judgment of, 159-179. 
 Boniface VIII., 14, 28, 77, 80. 
 
 „ of Savoy, 29, 36, 61, 64, 74. 
 Bosham, Herbert of, 140, 147. 
 Bourges, primacy of, 121. 
 Bracton, Henry. 60, 106, 107, 147, 
 
 163, 175- 
 Breaute, \ awkes of, 163-175. 
 Brcviarium Alarici, 142. 
 Burgh, John de, 40, 55, 98. 
 
 , Butrio, Antonius de, 5. 
 Byzantinism, 94. 
 
 Caesaro-papalism, 94, 
 
 Caius College, MSS. at, 109, 121. 
 
 Cambridge, 94, 96, 97. 
 
 Canonists and divines, 116. 
 
 Canterbury, church of, 118. 
 
 Cantilupe, Thomas, 117. 
 
 Cardinalis, 7. 
 
 Case-law, 44. 
 
 Cathari, 161. 
 
 Caittelae, 1 10. 
 
 Cawdry's case, Sr. 
 
 Chappuis, Jean, 10. 
 
 Cliichele, Henry, 15, 34, 48, 69. 
 
 Church of England, 114. 
 
 „ the, as political organism, 
 100. 
 
 Circumspecte agaiis, 79. 
 Civilians, English, 94-97. 
 Civil law, 46, 93. 
 Clarendon, Constitutions of, 133. 
 Clement iv., 66. 
 
 » v., 157. 
 Clementines, 9, 14, 131. 
 Clergy and laity, 68, 73. 
 
 „ benefit of, 59-62, 87, 132-147. 
 Clerical justices, 74. 
 Cloister, 29, 31. 
 Coggeshall, Ralph of, 166. 
 Coke, Sir E., 156. 
 Commendation of benefices, 23. 
 Commentators, 11. 
 Commission, Ecclesiastical Courts, 
 
 2, 26, 46, 120, 15S. 
 Common law, 4. 
 
 lawyers, 75, 93. 
 
 „ Pleas, Court of, 146-157. 
 Compilatio prima, 5. 
 Consent and legislation, 24, 81. 
 Constance, Council of, 15, 16, 71. 
 Constantine, donation of, 98. 
 Constitutions, provincial, 19. 
 Corpus decrctorum, 47. 
 Corpus iuris, 1 o. 
 I Councils, general, 14. 
 
Index 
 
 Councils, provincial, 32. 
 Coventry, Walter of, 167. 
 CowelFs Interpreter, 96. 
 Crucifixion of children, 170. 
 Cugnieres, Pierre de, 60, 86. 
 Cullen, Cardinal, 58. 
 Curiae traderc, 141. 
 Custom, 10, 41. 
 
 Decretales Gregorii, 3, 1 1, 60, 131. 
 Decretals, how made, 18. 
 Decretum Gratiani, 3, 18, 61, 98, 
 129. 
 
 Degradation, 135, 164. 
 Delegates, papal, 105, m. 
 Delegation of causes, 104, 119. 
 De multa, 1 49- 1 56. 
 Deposition of princes, 162. 
 Desuetude of laws, 31. 
 Diceto, Ralph de, 137. 
 Diocesan and provincial law, 36. 
 Doderidge, Justice, 96. 
 Drawda Hall, 107. 
 Drogheda, William of, 107-116. 
 Dunstable, annals of, 165. 
 
 Ecclesiastical law, the king's, 81. 
 
 „ patronage, 62-73, 
 
 146-157. 
 Edward I., 30, 36. 
 „ III., 1 50-1 56. 
 „ vi., 177. 
 Elizabeth, Queen, 178. 
 Ely, Eustace, Bishop of, 124, 126. 
 Excommunication, 40. 
 Execrabilis, 21, 22, 148-157. 
 Executive and authoritative com- 
 mands, 26. 
 „ and legislative, 129. 
 Executor, testamentary, 33. 
 Exempt religious, 24, 103. 
 ' Extravagantes,' 9. 
 
 Fabian, Pope, 142. 
 
 Federal courts, 103. 
 
 Federalism in the Church, 101-105. 
 
 Felonious clerks, 60. 
 
 Feudorum Libri, 42. 
 
 Fitzherbert's Nat urn Brevium, 177. 
 
 Foliot, Gilbert, 137. 
 
 Ford, Abbot of, 128. 
 
 Forfeiture for heresy, 80. 
 
 „ of patronage, 68. 
 Forum internum, 35. 
 France, ecclesiastical law in, 57, 60, 
 85. 
 
 Frederick I., 123. 
 „ II., 80. 
 
 Friedberg, Dr. E., 122. 
 Frideswide, Cartulary of St., 107. 
 Fuller, Thomas, 97. 
 
 Gallican liberties, 85, 90. 
 Gardiner, Stephen, 94. 
 Gascoigne's Liber Veritatum, 72. 
 Gaunt, John of, 152. 
 Gcmeincs Recht, 4. 
 
 Geminiano, Dominicus de Sancto, 
 5, 16. 
 
 Geographical limits of competence, 
 "3-. 
 
 Gentili, Alberico, 95. 
 Gibson's Codex, 81, 97. 
 Gratian, 3, 129, 140. 
 Gregory IX., 19, 23, 37, 60, 121-123, 
 130. 
 
 Grosseteste, Robert, 53, 54, 59, 60, 
 64, 66, 116. 
 
 Hale, Sir M., 84. 
 Hallam, Henry, 178. 
 
 „ Robert, 15. 
 Henry II., 60, 62, 132-147. 
 
 „ III., 62. 
 
 „ iv., 80. 
 
 „ viii., 82, 87, 92. 
 Heresy, 17, 79, 158-179. 
 Hildebrandine age, 101. 
 Hinschius, Dr. P., 17, 30, 59, 82. 
 Holland, Prof. T. E., 95. 
 Homicide, 38. 
 Honorius ill., 130. 
 Hook, Dr. W. F., 146. 
 Horsey, Dr., 89. 
 Hostiensis, 115. 
 Hun, murder of, 89. 
 
 Ignorance of law, 35. 
 Immunity, clerical, 59, 87, 132. 
 Immuration, 166, 168, 175. 
 Imperialism, 94. 
 Imola, Johannes ab, 5. 
 Impetration, 1 1 1, 114. 
 Innocent III., 25, 39, 124, 130, 144, 
 160. 
 iv., 66, 80. 
 Institutions and classes, 74. 
 Interpretation of statutes, 25, 33. 
 Ipso iure vacation, 1 50, 1 56. 
 Italians in England, 64. 
 
 Jews, treatment of the, 160, 161. 
 John XXII., 21, 22, 149-156. 
 Judges, how selected, 114. 
 Judicial organisation, 103. 
 Jus commune, 4. 
 
Index 
 
 183 
 
 Jus divinum, II, 88. 
 Jus naturale, 12. 
 Jus positivum, 88. 
 Justinian's books, 93, 101. 
 
 Kidderminster, Richard, 89. 
 
 Langton, Stephen, 78, 158. 
 Lapse of presentations, 77. 
 Lateran Council II., 107. 
 
 HI., 77- 
 „ IV., 20, 149, 11 
 
 162. 
 V., 88. 
 
 Law and judgment, 129. 
 Lay hand, 163. 
 Legates a latere, 25. 
 Legatine constitutions, 25, 46. 
 Legatus natus, 45, 119. 
 Legists and decretists, 93. 
 Legitimation of bastards, 53. 
 Libelli, 1 1 1 . 
 
 Liberties, ecclesiastical, 101. 
 Lollardy, 15, 45, 176. 
 Lyndwood, 4-6, 65, 78, 81, 97, 1; 
 177- 
 
 Lynn, Deanery of, 150. 
 Lyons, Council of, 21, 28. 
 
 Marriage, 38, 91. 
 Mary, Queen, 179. 
 Merton, Parliament of, 53. 
 Metropolitan power, 36, 1 17-120. 
 Moine, Jean le, 7, 16. 
 Monachus, Johannes, 7. 16. 
 Monarchy, ecclesiastical, 129. 
 Monte Lauduno, Willelmus de, 13. 
 Montpellier, William of, 108. 
 Morins, Richard, 165. 
 Murimuth, Adam of, 71. 
 
 Nepotism, papal, 67. 
 Newton, John, 8. 
 Nolumus leges mulare, 54. 
 Nuns in cloister, 27, 31. 
 
 Obiter dicta, 130. 
 Officials, 43, 74, 1 19. 
 O'Keeffe trial, 30, 58. 
 Omnicompetence, 48. 
 Ordeal, 162. 
 
 Ordinary, the universal, 104. 
 Original writ, 1 12. 
 Oseney, 159. 
 Otto, the legate, 25, 32. 
 Ottobon, the legate, 20, 31. 
 Oxford, 94, 97, 107-111, 115. 
 „ Councils at, 159, 161. 
 
 Papal dominium, 66, 72. 
 Paris, Matthew, 115, 169, 171. 
 Parliament and Church, 91. 
 Parning, Sir R., 151. 
 Patronage, ecclesiastical, 22, 63-73, 
 I I48-I57- 
 
 Pavia, Bernard of, 37. 
 I Pecock, Reginald, 98. 
 Peckham, John, 20-30, 34, 61, 65, 
 115, 1 17-120. 
 I Pelagius, 161. 
 il, Perplexity of causes, 119. 
 Petition of 1344, 67, 70. 
 
 1.351. 155- 
 Petitory action for advowsons, 71. 
 Pius I., 142. 
 
 Pope and Council, 14, 16. 
 
 „ power of, 11, 104. 
 Pletiitudo potestatis, 49. 
 Pluralism, 20, 23, 149-157. 
 Praemunire, 70. 
 ' Pragmatique' of St. Louis, 86. 
 Prelate and Council, 32. 
 Prescription, 41, 65. 
 Primacies, 121. 
 Princeps, 16, 101, 128. 
 Privilegium Jori, 57, 132-147. 
 Procurations, 10. 
 
 Prohibition, writs of, 63, 74, 84, 1 1 1. 
 Provisors, 63-73, 148. 
 Prynne, William, 95. 
 Pseudo-Isidore, 101, 142. 
 Publication of decrees, 17, 131. 
 Pupilla ocult, 40. 
 
 Quare impedit, 67, 150. 
 Questions asked of Pope, 124. 
 Quod permit tat, 152. 
 Quod principi placuit, 16. 
 
 Rabelais, 148. 
 Real and personal, 59. 
 Reasonableness of customs, 41. 
 Reception of laws, 82. 
 Redwaldus, 111. 
 Re-enactment of laws, 35. 
 Rejormatio Legum, 178. 
 Reformation, effects of the, 56, 90. 
 Repair of churches, 42. 
 Reservation of benefices, 22, 149, 
 155- 
 
 Reserved cases, 102 
 Reynolds, Walter, 153. 
 Richard II. , 63. 
 
 „ Archbishop of Canterbury, 
 126. 
 Ritual, 41. 
 Roffredus, 121. 
 
Index 
 
 Roman court, 45. 
 
 „ practice, 45. 
 Roaldus, in. 
 Rosarium, 8, 13. 
 Rota, 44, 62. 
 Rural deans, 43. 
 
 Salisbury, use of, 41. 
 
 Salmon, John, 150. 
 
 Sandale, John, 152. 
 
 Sandy and Potton, 123. 
 
 Sautre, William, 1 58. 
 
 Schulte, J. F. von, 39, 10S. 
 
 Scott, Sir Walter, 175. 
 
 Selden, John, 97. 
 
 Separation of powers, 129. 
 
 Sext, 10, 28, 31, 35, 131, 176. 
 
 Sinon omnes, 112. 
 
 Si quis suadentc, 102. 
 
 Socinus, Marianus, 7. 
 
 Somerset, Protector, 94. 
 
 Spiritual and temporal, 56. 
 
 Standish, Henry, 87. 
 
 State, definition of a, 100. 
 
 Stephen, Pope, 142. 
 
 Stillingfleefs Ecclesiastical Cases, 84. 
 
 Stratford, John, 6, 23, 34. 
 
 Stratton Audley, 109. 
 
 Stubbs, Dr. W., 6, 52. 
 
 Sumtna A urea, 109. 
 
 Supremacy, royal, 147. 
 
 Tancred, 104. 
 Tenths, papal, 13. 
 
 Testamentary causes, 42, 59. 
 Threats, papal, 127. 
 Tithes, 42, 84, 125. 
 Toledo, primacy of, 121. 
 Town and gown, 1 1 1 . 
 Trial of clerks, 136. 
 
 Ui. tra vires statucnlis, 20. 
 Unam sanctam, 1 4, 30, 94. 
 Universitas causarum, 1 19. 
 J Universities, 90, 98. 
 Usurpations, papal and archiepis- 
 
 copal, 1 17, 120. 
 Ut inquisitionis, 176. 
 
 Vas clcclionis, 7, 10. 
 Vicar of God, 147. 
 Vincennes, dispute at, 60, 86. 
 Visitation fees, 10. 
 
 Wimbledon, church of, 152. 
 Winchcombe, Abbot of, 87, 89. 
 Winchclsea, Robert, 152, 153. 
 Wolsey, Cardinal, 80. 
 Writs, papal, 107. 
 Wyche, Richard, 46. 
 Wycliffe, 15. 
 Wykes, Thomas, 172. 
 
 Year-Books, 44, 151-153. 
 York, Books at, 8. 
 
 Zabarellis, Franciscus de, 7. 
 Zenzelinus, 8. 
 
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