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The constitutional history of England in its origin and development, Volume 3 online

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or the pope should rule the church through the bishop, but
whether the king and nation should accept, at the pope's dic-
tation, the nomination of so large a portion of the House of
Lords as the bishops really formed. When the average num-
ber of lay lords was under forty, the presence of twenty bishops
nominated by the pope, and twenty-six abbots elected under
Boman influence, would have placed the decision of national
policy in foreign hands. The kings had no easy part to play,
to avoid quarrelling with the clergy and yet to maintain a hold
upon them. Nor had they to struggle with the pope alone, but
with a great body of European opinion which he could bring to
bear upon them. The English reformation, by itself, would
have been impossible unless the unity of that European con-
sensus had been already broken.
Theappoint- 387. It might have been expected that the right of appoint-
abbota less ment to the twenty-six parliamentary abbacies would have been
than that to the pope and to the king an object of not less importance

of bishops*

than the nomination to bishoprics ; and, as the process of elec-
tion was much the same in the two cases, it offered the same
opportunities for interference. The forms of licence to elect,
the modes of election, assent, and restitution to temporalities
were exactly parallel in all monasteries of royal foundation,
although in such of them as were, like S. Albans, exempt from
all spiritual jurisdiction but that of the pope, the action of the
archbishops was excluded, and the abbots elect sought con-
firmation, if not benediction also, at Kome. Neither the king
however nor the pope attempted much interference in this
quarter^. The monasteries were the stronghold of papal in-

^ There are some few ingtanoes; for example, Edmund Bromfield obtained
a provision to the abbey of S. Edmund's in 1579 contnrj to the Statute of

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XIX.] Convocations. 319

fluence, which they supported as a counterpoise to that of the

diocesan bishops ; the pontiffs were too wise to overstrain an

authority which was so heartily supported, and they trusted the

monks. The kings let them alone for other reasons : the abbots

were not so influential as the bishops in public affairs, nor was

the post equally desirable as the reward for public service ; with

a very few exceptions the abbacies were much poorer than the

bishoprics, and involved a much more steady attention to local

duties, which would prevent attendance at court But probably Danger of
., , . - i. .1 • . .^1. 1 .. ii touching the

the chief cause of their immumty from royal usurpation was the pnvUeges

certainty that any attempt to infringe their liberties would have convents.
armed against the aggressors the whole of the monastic orders,
with their widespread foreign organisation and overwhelming
influence at Rome. One result of this immunity was that
scarcely any abbot during the later middle ages takes any con-
spicuous part in English politics ; the registers of the abbeys
are no longer records of national history, but of petty law-suits ;
the monastic life separates itself more widely than ever from the
growing life of the nation ; the temporalities of the monasteries
are offered to the king by the religious reformers as a ready
source of revenue, by the confiscation of which no one can lose ;
when the great shock of the Reformation comes at last, the
whole system falls at one blow, and, vast as the ruin is at the
time, it is forgotten before the generation that witnessed it has
passed away.

388. The convocations of the two provinces, as the recognised The consti-

. , «. 1 -n 1. 1 1 1 1 tutionof

constitutional assemblies of the English clergy, have undergone, convocation
except in the removal of the monastic members at the dissolu- changed in
tion, no change of organisation from the reign of Edward I down ages.
to the present day. The clergy moreover are still summoned in
the parliamentary writ of the bishops, to attend by their proctors
at the session of parliament. On both these points enough has
been said in former chapters ^ ; and here it is necessary only to
mention the particulars in which external pressure was applied to

Proviflora; Cont. Murim. p. 235. And in 1347 the conunons petitioned
against papal provisions to abbeys and priories ; Rot. ParL ii. 171.
* VoL ii. pp. 194-200.

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320 Constitutional History. [chap.

multiply meetings or accelerate proceedings. The clergy from
the very first showed great reluctance to obey the royal sum-
mons under the praermmientes clause, and accordingly during a
great part of the reigns of Edward II and Edward III, from the
year 1314 to tlie year 1340^, a separate letter was addressed to
the two archbishops at the calling of each parliament, urging

FaUure of them to compel the attendance of the clerical estate. This was

attempts to , *

compel the ineffectual ; and after the latter year the crown, having acquiesced

of the clergy in the rule that the clerical tenths should be granted in the pro-
m parlia- ... o jr

ment. vincial convocations, seems to have cared less about the attend-

ance of representative proctors in parliament. On two or three
critical occasions the clerical proctors were called on to share the
responsibilities of parliament ^ but their attendance ceased to be
more than formal, and probably from the beginning of the fif-
teenth century ceased altogether.

Question of With regard to the constitution of the Convocations the only

the relation ,,

of convoca- question which has taken its place in political history is that of

parliament, their relation to parliament : and this question affects only those

sessions of convocation which were held in consequence of a

request or a command issued by the king with a view to a grant

^ In June 131 1 the clergy were gnmmoned, to the parliament in which
the OrdiDances were published, by the usual prciemunientes clause. Under
the guidance, probably, of Win<mel8ey, who was anxious to extend their
immunities, they demurred to electing proctors, and, when in October
the king called another meeting of parliament for November 18, he wrote
to the two metropolitans urging them to compel the attendance of the
proctors. Winch^sey took offence at the wozding of this writ, and on
October 24, the king issued another in which he said that nothing offensive
was intended, and that the writ should be amended in parliament ; Pari.
Writs, II. i. 58; Wake, State of the Charch, pp. a6o, 261. In 131 4,
March 27, the king summoned the archbishops to meet the royal com-
missioners in their respective convocations to discuss an aid. The dei^gy
immediately protested against the royal citation, and having met^ recorded
their protest and broke up; Pari. Writs, II. i. 123. When then on
July 29 the king summoned a new parliament, he wrote special letters
to the arohbishqw urging them to enforce attendance under the prae-
munientes clause; ib. p. 128. This practice was followed down to 1340.
On the 1st of December 1 314 the prior and convent of Canterbury protested
affainst the archbishop^s citation under the premunition, first, ' in eo quod
ad curiam secularem, puta domini regis parliamentum quod in camera
ejusdem domini regis niit inohoatum et per dies aliquos oontinuatum ; '
secondly, because &e abbots and priors were not summoned; ib. p. 139;
they complied however with the sununons. See above, vol. ii. pp. 328, 331.

* See above, vol. iL 347, 494, 495.

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XTX.] Church Assemilies. 321

of money. The organisation of the two proyincial assemhliesThepro*
was applicahle to all sorts of public business, and the arch- councils or
bishops seem tp have encountered no opposition from the king tions.
on any occasion on which they thought it necessary to call their
clergy together. The means to be taken for the extirpation of
heresy, for the reform of manners, for the dealings with foreign
churches and general councils, might be, and no doubt were,
generally concerted in such assemblies. Archbishop Arundel
and his successors held many of these cooncils, which are not to
be distinguished from the convocations called at the king^s
request in any point except that they were called without any
such request As however parliaments and convocations had Meetings of

^ 1 • 1 . 1.1 <* <• . . •• it convocation

this much in common, that the need of pecuniary aid was the correspond

king's chief reason for summoning them, it might naturally be not regularly

expected that, when a parliament was called, the convocations parliaments.

would at no great distance of time be summoned to supplement

its liberality with a clerical gift We have seen how regularly

this function was discharged during the fifteenth century, and

how the clerical grant followed in due proportion the grant of

the laity. But although in nearly every case there is a session

of convocation to match the session of parliament, the session of

convocation cannot be regarded as an adjunct of parliament.

Archbishop Wake, in his great controversy with Atterbury,

showed from an exhaustive enumeration of instances that, even

where the purpose of the two assemblies was the same, there was

no such dose dependence of the convocation upon the parliament

as was usual after the changes introduced by Henry YIII. ^^^^^^^^

kinff very seldom even suggests the day for the meeting of con- convocations
. . . , ,. 11. or provincial

vocation: its sessions and adjoumments take place quite councils

. - , -,, ,. \^ ± ^ little Inter-

irrespective of those of the parliament; very rare attempts are f^ured with,
made to interfere with its proceedings even when they are
unauthorised by the royal writ of request; and after th^
accession of the house of Lancaster, they are not interfered with
at all. On the side of the papacy interference could scarcely be
looked for. As a legate could exerdse no jurisdiction at all
without royal licence, a l^^tine council could not be held in
opposition to the king's will; but the days of legatine councils
VOL. m. Y

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322 Constitutional History. [chap.

of the whole national church seemed at all events to be over ;
there is no trace of any important meeting of such assembly
between the days of Arundel and those of Wolsey^ ; although,
from the date at which both archbishops acquired the legatine
character, the provincial convocations might both be regarded
as legatine councils.
Varieties of 38^. The history of ecclesiastical legislation, so far as it enters
tioafteSi- ^^^ ^^^ present consideration, comprises three distinct topics ;
lation. ^Yie legislation of the clergy for the clergy, of the clergy for the
laity, and of the laity for the clergy; and under each of these the
several attempts at interference with, and resistance to, such
legislation. Under each head moreover we have to distinguish
in the case of the clergy between the pope and Uie national
church, as regards both attempts at legislation and attempts at
restriction ; whilst in the case of the laity we must not less care-
fully discriminate between the action of the crown, of the
parliament, and of the common law. An exhaustive discussion
of the subject, even thus limited, would be out of all proportion
to the general plan of this work, even if contraversial points
could be treated in it. It is however necessary to attempt to
classify, under some such arrangement, the particular points of
the subject which have an important bearing on our national
history ; and as most of these have been noted in their chrono-
logical order in our narrative chapters, the recapitulation need
not occupy much space.
Laws made ^^ ^^^^ made by spiritual authority for the spiritualty, by
J2^^ the clergy for the clergy, include, so far as medieval history
SSedSw^^ concerned, the body of the Canon Law, published in the
Decretum of Gratian and its successive supplements, such par-
ticular edicts of the popes as had a general operation, the
canons of general councils, the constitutions of the legates and
legatine councils which in the fifteeQth centi;ry were codified by
Lyndwood in the Provinciale, the constitutions publial^ed by the
archbishops and the convocations of their provinces, and those

^ In 1408 the archbishop of Bourdeaux is said to have held a legatine
ootmdl at London to discuss the state of the papacy; Cont. Eulog. iii. 413 ;
but he seems to have merely been the einvoj of the cardinals sent to debate
the matter with the English clergy; see Wilkios, Cono. iii. 308, 311, 31a.

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XIX.] Church Legislation, 323

of Indiyidual bishops made in tbeir diocesan synods. All these OBnon Law^
may be included under the general name of Canon Law ; all were
regarded as binding on the faithful within their sphere of opera-
tion, and, except where they came into collision with the rights of
the cro¥m, common law or statute, they were recognised as
authoritative in ecclesiastical procedure.

In the general legislation of the church, the English church General
and nation had alike but a small share ; the promulgation of the the church,
successive portions of the Decretals was a papal act, to which
Christendom at large gave a silent acquiescence ^ : the crown BSBstnunt on
asserted and maintained the right to forbid the introduction ofsionofpi^
papal bulls without royal licence, both in general and in particular
cases ; and the English prelates had their places, and the am-
bassadors accredited by the king and the estates had their right
to be heard in the general councils of the church. But except in
the rare case of collision with national law, the general legisla-
tion of Christendom, whether by pope or council, was accepted
as a matter of course.

In the acts of the national church, whether legatine, provincial, National
or diocesan, the legislative power was exercised by the presiding lation in
prelate in his own name and in that of his brethren ; the l^fate Otho
made constitutions, ' supported by divine help and by the suffirage
and consent of the present council*;' and Othobon legislated
'with the approbation of the present council'.' The arch-
bishops, who issued constitutions after the organisation of the
provincial convocations was perfected, acted with the advice and
consent of their brethren the bishops and the clergy of their
provinces. The province of York by its convocation accepted
the provincial code of the province of Canterbury*. The
diocesan regulations made by particular bishops were either

* See Blackstone, Comm. i. 79, 80: 'All the strength that either the
napal or imperial laws have obiaiDed in this realm or indeed In any other
kingdom in Europe, is only because they have been admitted and received
by immemorial usage and custom in some particular cases and some
particular courts, ... or else because they are in some other cases intro-
duced by consent of purliament' In the statute de Bigamia (Statutes, i.
44) Edward I recognises and extends the appKcation of a constitution of
the general council of Lyons.

* Johnson, Canons, ii. 157. 'lb. ii. 313.

' BUckstooe, Comm. i. 83 ; Wilkkis, Cone. iii. 663 ; Johnson, Canons, ii. 5 1 3.
T 2

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3^4 Constitutional History. [chap,

Diooeaan mere repetitions of general enactments, or rules of the nature of

enactments. i i i* i * .• i

local ordinances, and require no notice here.

Royal ri^ht The calling of the assemblies in which such legislation could be

of rBstraui" <• .

ing legisla- transacted was, as a matter of fact, subject to royal permission or

approval, and the right of the king to forbid such a council or to
limit its legislative powers was during the Norman reigns both
claimed and admitted. William the Conqueror did not allow the
archbishop in a general council of the bishops to ' ordain or for-
bid anything that was not agreeable to his royal will, or had not
been previously ordained by him ^. William Bufus prevented
Royal oon- the holding of such an assembly for thirteen years *. Henry I
acted on his Other's principle, and added his royal confirmation
to the ecclesiastical legislation which he approved'. Stephen
struggled in vain against the claims of the clergy to independent
power of legislation, and retorted by measures of oppression;
but Henry 11 contented himself with aiding the oonciliar
legislation, which he knew himself to be strong enough by fedr

Prohibitioa means to control. Hubert Walter held a * general ' council in
by the

jiutioiar. spito of a prohibition of Qeofirey FitsPeter ^ ; but he was him-
self chancellor at the time, and the protest of the justiciar may
have been only formal. As a rule the later sovereigns, instead
of restricting the liberty of meeting, contented themselves with
WamingB warning the clergy not to infringe the royal rights. In 1 207
by the king fo^ instance John warned the council of S. Alban's not to do
to coancUa. i^^ythiug contrary to the customs of the realm, and to defer
their deliberations until they had conferred with him^. In
1 28 1 again Edward I in the strongest language forbade the
archbishops and bishops, as they loved their baronies, to discuss
any questions touching the crown, the king's person or coundl,

* Above, vol. i. p. a86. ' Aiuehii, Epp. iii. 40.

' ' Sdatia quod aaotoritate regiA et poteatate oonoedo et oonBimo atatota
condlii, a Willehno Cantuarienai archieinaoopo et sanctae Romanaa eodeaiae
legato apud Weetmonasterium oelebrati, et hiterdicta interdico. Si quia
Tero horum decretorum violator vel oontemptor 'exatiterit, ai eodeaiagtioe
diaciplinae humiliter non satisfecerit, noverit ae regia poteatate graviter
ooeroendum, quia divinae diapoaitioid resiatere praeRumpeit;' Foed. i. 8.

* Hoveden, iv. ia8 ; R. Diceto, ii 169. Thia was an attempt made by
Hubert as primate to convene the whole of the EngKah clezgy.

* Bot Pat. i. 72 ; Foed. i 94 ; a aimilar warning of 18 "Bea, JU ia Gited
by Coke upon littleton, a. 137 ; and oth«r inatanoea 4 Inat. pp. 33a, 333.

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XIX.] EecUaiastical Legislation. 325

or to make any cooBtitution against his crown and dignity^.
But these and similar prohibitions were simply cautionary;
80 long as the councils confined their deliberations to matters
of spiritual or ecclesiastical interest the kings either actively
assisted or quietly acquiesced in the freedom of deliberation and
legislation ; nor in later times were the parliaments more than
duly jealous or watchfid in this respect^ so long as the legisla-
tion was such as would bind the clergy alone» or the laity only
inforo eonscienUae.

390. Any attempts made by the spiritualty in council andinstenoesof
convocation, or by the pope and his legates, to bind the laity byi^Sieei^gy
l^islative enactment, must be looked for in those r^ons of ^'

ecclesiastical jurisprudence where the state bad placed iiji the
hands of the church, or the church had acquired by prescription,
an ill-defined amount of judicial authority ; or in other words^
in those departments of judicature in which, according to the
charter of William the Conqueror, the ministers of the common
law undertook to compel the execution of ecclesiastical sen-inmatri- .
tences. The most important of these departments during theSmentuy'
early middle ages were the jurisdiction by which matrimonial ^ettumi.
suits were regulated, by which testamentary causes were decided,
and by which the payment of tithes and ecclesiastical fees was
enforced ; from the beginning of the fifteenth century the juris-
diction in cases of heresy was another field for co-operation
between the two powers, and there were besides such cases of
slander, usury, and other minor offences, as could be tried in
the spiritual courts. In each of these points, the baronage
first, and the parliament afterwards, showed some jealousy of
ecclesiastical legislation ; the barons at the council of Merton, in
1236, rejected the proposition, to which the prelates had agreed, ninttntions.
that illegitimate children are made legitimate by the subse-
quent marriage of their parents ; the excessive charges made on
the probate of wills are a frequent subject of complaint in par-
liament; and the constitution framed l^ archbishop Stratford
in 1343 against those who refused to pay tithe of underwood
called forth a petition from the commons, in 1344, that no petition

1 Wilkins, Cone. iL 50 ; see above, voL ii. pp. 113, 114.

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326 Constitutional History. [chap.

made by the clergy to the injury of the laity might be granted
Judicial without examination before the king and the lords ^ Almost
more com- all the examples however, in which the clergy went beyond their
leSsiative recognised rights in regulating the conduct of the laity, come
aasumption. ^^j^j^j. ^^^ j^^^^ q£ judicial rather than of legislative action ; in
that department the common law had its own safeguards, and
could ignore and quash proceedings founded on any canonical
enactment that ran counter to it. Petitions in parliament
against the encroachments of spiritual courts were frequent,
any direct conflict between the two legislatures is extremely
The poution rare. In the normal state of English politics the prelates, who
bifltiops were the real legislators in convocation and also formed the
anydifficulty majority in the house of lords, acted in close alliance with the
ecclesiastical crown, and, under any circumstances, would be strong enough
legislation, to prevent any awkward collision; if their class-sympathies
were with the clergy, their great temporal estates and offices
gave them many points of interest in common with the laity.
Thus, although, as the judicial history shows, the lines between
spiritual and temporal judicature were very indistinctly drawn,
England was spared during the greatest part of the middle
ages any war of theories on the relations of the church to the
state. Even when the great question of heresy arose, few dis-
putes of importance found a hearing in parliament ; and if con-
temporary history testifies to some amount of popular disa£Pection
caused by ecclesiastical laws, the records of parliament show
that such disaffection found little sympathy in the great council
of the nation. All attempts of the pope or general councils to
legislate in matters affecting the laity were limited in their
application, on the one hand by the common law, and on the
other hand by the statute of praemunire. The subject of heresy
may be reserved for a separate section.
LesislatioQ 391. The enactments made by the king in parliament to regu-
ment^touch. hite, restrict, or promote the action of the spiritualty are very
deWf numerous, as might indeed be expected from the general tenour
of a history in which the clerical estate played so great a part.
Under this head it would be possible to range nearly everything

* See above, vol. ii. pp. 396, 596.

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XIX.] LawB again%t Fraviaors. 327

that has here heen classified under all the other departments of
administration. Most points of importance, however, occur in
the history of taxation and judicature, and these will he noticed
separately; as so much has heen said on the topic in the
earlier chapters of this work, a very brief recapitulation will be
sufficient. The claim of William the Conqueror and his sons The king's
to determine, by their recognition, to which of the competitors recognise
for the papacy the obedience of the English Church was due pope,
may stand first in the series of these acts; In 1378 the English
parliament following the same idea declared Urban YI to be the
true pope, in opposition to the antipope supported by France and
Scotland. But such measures are in &ct political rather than Bestriotion
legislative, and in their very nature exceptional. The most sumptions.
prominent place belongs to the statutes by which the papal
usurpations or aggressions were met under the successors of
Henry III, especially the legislation exemplified in the statutes
of provisors and praemunire.

392. The great statute of provisors, passed in 1351, was aLemstation
very solemn expression of the national determination not to
give way to the pope's usurpation of patronage. It was the
result of a series of efforts to throw off the yoke imposed in the
thirteenth century by the successive encroachments on the free
election to bishoprics, the history of which has been already
traced. These efforts had b^un under the influence of the
school of Gbosseteste, who, however mach he may have been
inclined to aid the pope in other ways, was determinedly op-

Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 34 of 68)