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

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the sum of £160,000 as having been paid on this account to
the pope between i486 and 1531^

396. The history of the steps by which ecclesiastical property Taxation of
was made to contribute its share towards the national income, ibrmttiouai
and of the methods by which the process of taxation was con- P^'****®**
ducted, has been traced in our earlier chapters up to the time

* Wilk. Cone. iii. 514. • lb. iii. 541-553.

* Ann. Burton, p. 390.

* Rot Pari. i. 221 ; the claim is there spoken of as unheard of. Edward
allowed it to be enforced ; p. 32a. In the parliament of 1376 it is said to
be a new usurpation ; ib. ii. 339. On the general history of Annates see
Gieseler (Engl, ed.), vol. iv. pp. 86, 102-108.

' Gieseler, Eocl. Hist. voL ii. p. 86; see also Extrav. Comm. lib. iii.
tit. 2. c. II.

* Gieseler, Eccl. Hist. vol. iii. p. 102.

^ The act 6 Hen. IV, e. i, declares that double and treble the amount
formerly paid under this name was then exacted, and restricts it to the
ancient customary sums.

* 33 Hen. Vin, c. ao; Stotutes, iu. 386.

TOL. UI. Z



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338 Constitutional History. [chap.

at which right of the provincial conyocations to self-taxatioa
became so strongly established that the king saw no use in con-
testing it. This right was a survival of the more anci^it
methods by which the contributions of individuals, communities
and orders or estates, were requested by separate commissicMis

Self-taxation or in separate assemblies. It was in full exercise from the
of the clergy*

early years of Edward I, and accordingly was strong enough

in prescriptive force to resist his attempts to incorporate the
clergy as an estate of parliament by the pra^nunientes clause.
Although in some of the parliaments of the earlier half of the
fourteenth century the report of the clerical vote was brought
up in parliament by the clerical proctors, and the grants may
have been in some cases made by the parliamentary assembly
of the clergy \ the regular and permanent practice was, that they
should be made by the two convocations. In 13 18 the parlia-
mentary estate of the clergy refused the king money without a
grant of the convocations; in 1322 the parliamentary proctors
made a grant, but the archbishops had to call together the con-
vocations to legalise it. In 1336 the representatives of the
spiritualty granted a tenth in parliament, but this seems to have
been an exception to the rule', for in 1344 they merely an-
nounced the grant which the provincial convocations had made.
In fact, from the period at which the records of the convoca-
tions begin the gi^ants were so made. With the convocations
the kings very prudently abstained from direct interference.
Processed When money was wanted the king requested the archbishops
der^. to collect their clargy and ask for a grant; the archbishops,
through their provincial deans, summoned their provincial
synods, as they might do for any other purpose, and the clergy
assembled without the pressure of a royal writ or such direct
summons as would derogate from their spiritual independence.
When they met, the king, either through the archbishop or
through special commissioners, acquainted them with his neces-
sities, and the votes were made either conditionally on the

> See vol. ii. pp. 339, 344, 353. 380, and espedally p. 395 ; the derical
grants are genendly mentioned in ^e notee.
* See voL ii. pp. 378, 379.



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XIX.] Taxation of the Clergy. 339

granting of petitions, or nnconditionallj, in much the same
way as they were made in parliament. The clerical yotecieriaJ
usually took the form of a tenth or a portion of a tenth,
or a numher of tenths, of spiritual property, assessed on the
valuation of pope Nicolas in 1291; the parochial clergy
shared with the towns the hurden of a heavier rate of
taxation than the counties and the baronial lands, which paid
a fifteenth ; the latter were of course subject to feudal services
from which the former were exempt. The produce of an eccle- Amoant of
siastical tenth seems to have been a diminishing quantity, owing tenth,
probably to the multiplication of exemptions, especially the
exemption of livings under ten marks value; under the full
valuation of 1291 it ought to have amounted to £20,000^;
we learn, however, from a letter addressed by Henry YII
to the bishop of Chichester, that in his reign it was estimated
at no more than X 10,000. The lay tenth and fifteenth had
at the same time sunk to £30,000 ^ The history of the two The old
forms of grant is the same ; as the spiritual tenth was levied
on the assessment of 1291, the lay tenth and fifteenth was paid
according to an assessment of 1334', the counties and their
subdivisions being expected to account for the sums which they
had furnished in that year, and the particular incidence being
regulated by local assessments. Both were unelastic, and re-
quired to be supplemented as time went on. Accordingly, just New (bnos
when the parliaments are found introducing new forms of sub- tioai impoet.
sidy, income tax, poU tax, or alien tax, the clergy have to
provide some corresponding methods of increasing their grants.
The stipendiary clergy were brought under contribution by
archbishop Arundel, who, as we have seen, had some difficulty
in reconciling with justice the collection of the priests' noble,
by a vote of convocation, firom a class of clergy which was not

* See above, toI. iL p. 549.

' In 1497 the convocation of Canterbury granted ^40,000 to the kinff,
payable in two moieties. Henry excnaes the payment of £10,000, 'which k
aa we understand to the value of one hole duone.* The laity had granted .
a tenth and fifteenth amounting to £30,000. The king's debts were
£58,000; W. Stephens, Memorials of Chichester, pp. 178, 179.

' Coke, 4 Inst. p. 34; Brady, Boroughs, p. 39; Blackstone, Comm.
i. 308 \ Madox, Firma Borgi, pp. no sq.

z a

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340 Constitutional History. [chap.

represented in convocation *. The difficulty was probably over-
come by a diocesan visitation or gome other proceeding of the
individual bishops.
ij>rbearwice 397. Of this liberty of convocatiom the kings were carefully
in deaiS^ observant ; and the parliaments not Ifess so. Frequently as the
tuaiities. knights of the shire proposed to seize the temporalities of the
clergy, they never threatened the spiritualities ; they attacked
the position of the bishops and religious orders, but not that
of the parochial clergy. And the clergy were generally willing
to make a virtue of the necessity which lay upon them ; they
never, or only in the rarest cases, refused their tenth when the
The king parliament had voted its proper share. On one occasion, in-
commons to deed, we have seen the commons taking the derical grant into
pendiwy ' account and presuming upon the gift of the priests' noble in a
*'®'^* way that called for the king's interposition'. He reminded
them that it was not for them but for the convocations to decide
that that tax should be voted. But although the clergy had
thus retained the power to consent or to refuse, they had no
direct voice in the disposal of the grants they bestowed; the
sums collected went to the general fund of the revenue, and
were appropriated to special purposes by the commons or by the
council. In all these points the period on which we have been
last employed witnessed no important change ; but the disuse
of the attendance of the clergy in parliament, their constant
complaisance in supplementing the parliamentary grants, and
the increasing tendency to regard convocation as a constitu-
Generalao- tional Supplement of parliament, are all signs of a progress
quieaoence. ^^^^g ^^ s\a\a of things in which it became possible for
Henry YIU to effect the great constitutional change that marks
his reign.
Clerical 398. Of attempts by the clergy, except under papal autho-

the laity not rity, to tax the laity, or to enforce any general payments from
or unsuc- them, English history has no trace. The cases in which tithes
were claimed for underwood, in which the nearest approach seems
to be made to such a proceeding, have been already noticed.
Other attempts made in provincial synods to extend the area

* See above, pp. 45, 47, " Above, p. 143,



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XIX.] Ecclesiastical Judicatme. 341

of titbeable property seem to have failed^ Indirect exactions,
in the form of fees or fines in the spiritual courts, mortuaries
and customary payments, scarcely come within the scope of our
consideration, except as part of a very general estimate of the
causes which alienated the laity from the clergy.

399. We thus come to the last of our constitutional inquiries. Jurisdiction
that of judicature ; the subject of jurisdiction of, by, and for tioai mat?*'
the clergy, which has been through the whole period of English
history one of the most important influences on the social con-
dition of the nation, the occasion of some of its most critical
experiences, and one* of its greatest administrative difficulties.
In the very brief notice which can be here given to it, it will
be necessary to arrange the points which come before us under
the following heads: firsts the jurisdiction exercised by the Division of
secular courts over ecclesiastical persons and causes ; secondly, *" ^^ '
the jurisdiction exercised by the spiritual courts over laymen
and temporal causes; thirdly, the jurisdiction of the spiritual
courts over the clergy; and fourthly, the judicial claims and
recognised authority on judicial matters of the pope of Rome.

AH suits touching the temporalities of the clergy were sub-Bpyaijuris-
ject to the jurisdiction of the king's courts, and against so the tempo* ,
reasonable a rule scarcely any traces of resistance on the part the otergy.
of the clergy are found. Yet it is not improbable that during
the quarrels of the twelfth century some question on the right
of the bishops to try such suits may have arisen. Glanvill
gives certain forms of prohibition in which the ecclesiastical
judges are forbidden to entertain suits in which a lay fee is
concerned'; and Alexander III, in a letter addressed to the
bishops in 11 78, directed them to abstain from hearing such
causes, the exclusive jurisdiction of which belonged to the king'. Lands held
In reference to lands held in frankalmoign, disputes between lomoign.

^ Especially the demand of a tithe of personalty ; see on this subject
Gibson, Codex, pp. 690 sq. ; Prynne. Records, iii. 332 sq. In H37 the
clergy petitioned that secular judges may not be allowed to determine
'utrum dandae sint decimae de lapidicinis vel silvicaediis, vel herbagiis
vel pasturis vel de aliis decimis non consuetis ; ' Ann. Burton, p. 354. In
archbishop Gray's Constitutions, dr. a.d. 1250, the obligation to pay tithe
of personalty is strongly urged ; Johnson, Canons, ii 179.

> GlanviU, lib. zii. oc. ai, 32, 35. * B. Diceto, i. 437.



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34^ Constitutional History. [chap.

clergymen belonged to the ecclesiastical courts ; but the ques-
tion whether the land in dispute was held by this tenure or as
a lay fee, was decided by a recognition under the king's writ ^.
Questions The jurisdiction as to tithes was similarly a debatea1)le land
tithS between the two jurisdictions; the title to the ownership, as

in questions of advowson and presentation ^ belonging to the
secular courts, and the process of recovery belonging to the court
Christian *. The right of defining matters titheable was claimed
by the archbishops in their constitutions, but without much
success, the local custom and prescription being generally re-
Questions of ceived as decisive in the matter. The right of patronage was
patronage, ^gj^gj^^jj^^ {j^ \^q king's courts. In each of these departments,
however, some concert with the ecclesiastical courts was in-
dispensable; many issues of fieu^t were referred by the royal
tribunals to the court Christian to be decided there, and the
Coopemtion interlacing, so to speak, of the two jurisdictions was the occa-
judicatures, sion of many disputes both on general principle and in parti-
cular causes. These disputes, notwithstanding the legislative
General activity of the kings and the general good understanding which
work^f^ subsisted between them and the prelates, were not during the
middle ages authoritatively and finally decided. It is enough
for our present purpose to state generally the tendency to draw
all causes which in any way concerned landed property into, the
royal courts, and to prevent all attempts at a. rival jurisdiction.
Personal The same interlacing of judicatures, similar disputes, and a

tween clerk like tendency, are found in the treatment of personal actions
*" ^' between laymen and clergymen; the fifteenth Constitution of
Clarendon ^ which insists that the cognisance of debts, in
which the faith of the debtor has been pledged, belongs to the
king^s jurisdiction, was contravened by the canon of archbishop

^ Const. Clar. no. 9; Glanvill, lib. la. 0. 15; against this the clei^
petitioned in 1237; Awi, Burton, p. 254.

' Gknvill, Ub. 4.

* The prooeases for recovery of tithe, and the jorisdiction in subtractiom
of tithe, have a long history of their own which does not concern us mndi.
The statement in the text u Blackstone's conclusion, 'Comm. vol. iii. p. 88 ;
but the details may be found in Reeves's History of English Law, iv. 85 sq. ;
cf. Prynne, Records, iii. 333 ; Gibson, Codex, pp. 690 sq. ; and Ann ,
Burton, p. 355. * Select Chatters, p. 134.



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XIX.] Ecclesiastical Judicature. 343

Boni&ce, who^ in 1 261, attempted to draw all such pleas into the
ecclesiastical courts^; but there is no reason to suppose that
such a canon was observed, still less that it was incorporated
into the received jurisprudence of the realm. A still larger Claims of
claim was made in 1237^ when the clergy denianded that a clerk not allowed,
should never be suitanoned before the secular judge in a personal
action in which real property is untouched^; but this, with
many other gravamina presented on the same occasion, could
never find a favourable hearing notwithstanding the high autho-
rity of Grosseteste, who maintained them ; and after the reign
of Edward I they are heard of no more except as theoretical
grievances.

In criminal suits the position of the clergy was more de-Crimin«i
fensible. The secular courts were bound to assist the spiritual
courts in obtaining redress and vindication for clergymen
who were injured by laymen; in cases in which the clerk
himself was accused, the clerical immunity from trial by the
secular judge was freely recognised. If the ordinary claimed
the incriminated clerk, the secular court surrendered him for
ecclesiastical trial : the accused might claim the benefit of clergy Benefit of
either before trial or after conviction in the lay court ; and it ^'^^
was not until the fifteenth century that any very definite regu-
lation of this dangerous immunity was arrived at '. We have Jorisdiction
seen the importance which the jurisdiction over criminous clerks nous clerks,
assumed in the first quarrel between Becket and Henry II. It
was with the utmost reluctance that the clergy admitted the
decision of the legate Hugo Pierleoni, that the king might
arrest and punish clerical offenders against the forest law\

' Johnson, CSanons, ii. 196.

' Ann. Barton, p. 254 : ' item petnnt qnod cleric! no9 oonveniantur in
ftctione persooali quae non sit super re immobili coram judioe saeculari, sed
coram judice.ecclesiastioo, et quod prohibitio regis non conat quo minus
hoc fieri non poedt.'

' Blackstone, Gomm. iv. 365 sq.

* R. Diceto, i. 410. In a letter addressed to the pope Heniy states the
concessions which he has made to the lei^ate ; ' videlioet quod derious de
ceteio non trahatur ante judicem saecularem in persona sua de aliquo
criminali neque de aliquo forisfiu^ excepto forisfacto forestae meae, et ex-
cepto laioo feodo unde mihi vel alii domino saeculari debetur servitium ; '
he will not retain vacant sees or abbeys in band for more than a year ;



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344 Constitutional History. [chap-

The ordinary, moved by a sense of justice, or by a natural dis-
like to acknowledge the clerical character of a criminal, would
not probably, except in times of political excitement, interfere
to save the convicted clerk ; and in many cases the process of
retributive justice was too rapid to allow of his interposition.
Prelates It is not a little curious, however, to find that Henry IV, at
with the the time of his closest alliance with Arundel, did not hesitate
of treason, to threaten archbishops and bishops with condign punishment
for treason^; that on one famous occasion he carried the threat
into execution ^ and that the hanging of the mendicant friars,
who spread treason in the earlier years of his reign, was a sum-
mary proceeding which would have endangered the throne of
a weak king even in less tumultuous times. Into the legal
minutiae of these points we are not called on to enter : as to
their social and constitutional bearing it is enough to remark

infiuenoe of that, although in times when class jealousies are strong, clerical

class immu- , ,, ., i>i ^

nities. immunities are m theory, but in theory only, a safeguard of

society, their uniform tendency is to keep alive the dass
jealousies ; they are among the remedies which perpetuate
the evils which they imperfectly counteract. In quiet times
such immunities are unnecessary; in unquiet times t^ey are
disregarded.
Ecdesiasti- 400. Of the temporal causes which were subject to the
diction in cognisance of the ecclesiastical courts the chief were matrimonial
temporal, and testamentary suits, and actions for the recovery of ecdlesiasti-
niai.andtes-cal payments, tithes and customary fees. The whole jurisdic-
tion in questions of marriage was, owing to tibe sacramental
character ascribed to the ordinance of matrimony, throughout
Christendom a spiritual jurisdiction. The ecclesiastical juris-
diction in testamcQtary matters and the administration of the
goods of persons dying intestate was peculiar to England and
the sister kingdoms, and had its origin, it would appear, in
times soon after the Conquest. In Anglo-Saxon times there

the murderers of clerks are subjected to perpetual forfeiture besides the
customary lay punishment; and clerks are exempted from trial by battle.
On the later phases of this dispute see Ann. Burton, pp. 425 sq., where
is a tract by Robert de Marisco on the privileges of the clergy.
* Bymer, viii. 123. « Above, pp. 50, 51.

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XIX.] EcclesiaMical Judicature. 345

seems to have been no distinct recognition of the ecclesias- Growth of
tical character of these causes, and even if there had beenmentary
they would have been tried in the county court. Probate^ °°'

of wills is also in many cases a privilege of manorial courts,
which have nothing ecclesiastical in their composition, and
represent the more ancient moots in which no doubt the wills
of the Anglo-Saxons were published. As however the testa-
mentary jurisdiction was regarded by GlanvilP as an undisputed
right of the church courts, the date of its commencement cannot
be put later than the reign of Henry I, and it may possibly be

as old as the division of lay and spiritual courts. The ' subtrac- Subtraction

. . . oftithe.

tion of tithe' and refusal to pay ecclesiastical fees and perquisites

were likewise punished by spiritual censures which the secular

power undertook to enforce.

As all these departments closely bordered upon the domain

of the temporal courts, some concert between the two was

indispensable : and there were many points on which the cer- Certificate
,./. . ^ , . .. 1 . .1 , .1 , . , oftheecoio-

tificate of the spiritual court was the only evidence on which siasticai

the temporal court could act : in questions of legitimacy, regu- saiy for

larity of marriage, the full possession of holy orders and thejust^

fact of institution to livings, the assistance of the spiritual court

enabled the temporal courts to complete their proceedings in

questions of title to property, dower and patronage ' ; and the

more ambitious prelates of the thirteenth century claimed the

last two departments for the spiritual courts '. In this however

they did not obtain any support from Kome, and at home the

claim was disregarded. Besides these chief points, there were Minor

other minor suits for wrongs for which the temporal courts oourts

afforded no remedy, such as slander in cases where the evil

report did not cause material loss to the person slandered:

these belonged to the spiritual courts and were punished by

spiritual penalties ^

* GUnvill, lib. vii. 0. 8 ; Hackstone, Oomm. iii. 96 sq. ; Prynne, Beoords,
iii. 140; Gibson, Codex, pp. 551 sq.

' Blackstone, Comm. iii. 335 sq. * See Johnson, Canons, ii. 331.

* Blackstone, Comm. iii. 123, 134. In 1237 the clergy complain that
such suits are withdrawn from them; *ne quis tractet causam in fbro
ecclesiae aive de peijurio, sive de fide laesa, de usura vel simonia vel



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34^ Constitutional History. [chap.

Suits 'pro 401. Besides the jurisdiction in these matters of temporal
animoe/ concern, there was a large field of work for the church coorts
in disciplinary cases ; the cognisance of immorality of different
kinds, the correction of which had as its avowed purpose the
benefit of the soul of the delinquent. In these trials the courts
had their own methods of process derived in great measure from
the Eoman laW| with a whole apparatus of citations, libels, and
witnesses; the process of purgation, penance, and, in de&ult of
proper satisfaction, excommunication and its resulting penalties
Prooen on enforced by the temporal law. The sentence of excommunica-
nicatioii. tion was the ultimate resource of the spiritual courts. If the
delinquent held out for forty days after the denunciation of
this sentence, the king's court, by writ of significavit ^ or some
similar injuDction, ordered the sheriff to imprison him until he
satisfied the claims of the church.
Number of These proceedings furnished employment for a great ma-
oourta. chinery of judicature; the archbishops in their prerogative
courts, the bishops in their consistories, the archdeacons in
some cases, and even the spiritual judges of still smaller dis-
tricts, exercised jurisdiction in all these matters; in some
points, as in probate and administration, co-ordinately, in
others by way of delegation or of review and appeal.
ProhibitioM With the constitution of these courts the secular power
the kin/s meddled little. With their proceedings, whenever due cause was
shown, it might interfere by prohibitions issued by the king's
courts of law or equity ' ; and the claim of the kings that none
of their vassals or servants should be excommunicated without
their leave exempted a large number of persons from the juris-
Complainte diction of the church courts. The prohibitions were a standing
a^aSwtl^ grievance with the clergy, and were probably granted in many
hibitiona. ^^^^^^ without due consideration. They were indeed frequently
a sort of protest made by the temporal courts against the
assumptions and encroachments of the courts Christian. The
councils of the thirteenth century constantly complained ' of

defamatione, nui tantum super testamento vol matrimonio.* Ann. Burton,
p. 356. See too above, vol. ii. pp. 57, 65.

^ Blackstone, Comm. ili. loa ; see below, p. 357.

' Blackstone, Comm. liL iia ; Gibson, Codex, pp. xix, 1064, sq.

f

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XIX.] ProAibUions. 347

these vexatious proceedings ^, although by their own attempts to

extend their jurisdiction they constantly provoked retaliation.

In 1247 Henry III attempted to restrict this branch of eccle* Bestriction

.;..,.. , . . , 1 . . . ofecolesi-

siastical jurisdiction to matrimomal and testamentary causes, asticai juris-

and Edward I acted upon that rule *. The writ of * circum- The writ
specte agatis/ by defining the exercise of the royal power ofspecte^
prohibition, succeeded in limiting the functions of the church
courts. This writ, which was regarded as a statute, directed
that prohibitions should not be issued in cases of spiritual cor-
rection, neglect of churchyards, subtraction of tithes, oblations,
mortuaries, pensions due to prelates, assault of clergymen,
defamation, and breach of oath. In cases which concerned
the right of patronage, tithe suits between parsons for more



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 36 of 68)