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

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than a fourth part of the tithe of a parish, and pecuniary
penances, prohibitions were to be enforced. In cases of assault
on a clerk the injured person might appeal to the king's courts
on account of the breach of the peace, and likewise to the
bishop's court for sentence of excommunication; and in cases
of defamation the spiritual court might commute penance
for pecuniary payment in spite of prohibition'. The later
statutes of 1316, 1340, and 1344, are amendments and ex-
pansions of the principled here laid down.

402. The jurisdiction of the spiritual courts over spiritual Juriadlction
men embraced all matters concerning the canonical and moral oiersy.
conduct of the clergy, faith, practice, fulfilment of ecclesiastical
obligations, and obedience to ecclesiastical superiors. For these
questions the courts possessed a complete jurisprudence of their
own, regular processes of trial, and prisons in which the con- The bishops'
victed offender was kept until he had satisfied the justice of the
church. In these prisons the derk convicted of a crime, for
which if he had been a layman he would have suffered death,
endured lifelong captivity ^ ; here the clerk convicted of treason
or felony in the secular courts and subsequently handed over

^ Ann. Burton, pp. 354 sq.; 403 sq.; 413 sq. ; 432 sq.
' See M. Paris, p. 727 ; voL il. p. 65 ; and the forms of prohibition in
Prynne's Records, iii. 780 ; Britton, i. 90, ii. 284.
' Statutes, i. 101, 102; above, voL ii. p. 119.
* See Bonifiu)e*8 Constitution of 1261 ; Johnson, Canons, iL 308.



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348 Constitutional History. [chap.

Tendency to to the ordinary, was kept in safe custody. In 1402, when
Henry IV confirmed the liberties of the clergy, the archbishop
undertook that no clerk conyicted of treason, or being a common,
thief, should be admitted to purgation, and that this should be
secured by a constitution to be made by the bishops \ These
prisons, especially after the alarms consequent on the Lollard
movements, were a grievance in the eyes of the laity, who do
not seem to have trusted the good faith of the prelates in their
treatment of delinquent clergy'. The promise of archbishop
Arundel was not fulfilled.

Into the peculiar questions of ecclesiastical jurisdiction we are
not called to inquire, for, in so far as it worked within its own
proper sphere, its proceedings had no bearing on the subject
before us. One further point, and that a most important one,
the question of appeals to Rome, must be likewise briefly
noticed and dismissed.
Barity of 403. Except in the earliest days of Anglo-Saxon Christianity,
peals from when Wilfrid carried his suit to Rome, contrary to the decisions
Borne. of the kings and witan of Northumbria, there are no traces of
appeals to the pope earlier than the Norman Conquest. Re-
course was indeed from time to time had to the holy see for the
determination of points touching the bishops for which insular
history and custom furnished no rules; in the ninth century
a pope interceded to obtain the restoration of a dethroned
king of Northumbria', and king Kenulf of Mercia, who
had obtained papal confirmation of the restored dignity of
Canterbury, is said to have declared that neither for pope
nor for Caesar would he consent to the restoration of arch-
in Anglo- bishop Wulfred*; but on these three occcksions the points at
issue were political rather than legal, and the action of the
papal envoy that of a mediator rather than a judge. Even in
the later days of the West-Saxon dynasty, when intercourse
with the continentid powers was much more frequent than before,
the case of an application to Rome for leave to marry within

* See Wilkins, Cone. iii. 371, 27a.

' See the petition of 1410, above, p. 63 ; and below, p. 360.

» CouDcila, Ac., iii. 561. * Councils, Ac., iii. 587, 588, 602.



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XIX.] Appeals to Rome. 349

the prohibited degrees seems to be the only recorded instance
of a judicial resort thither; and in that case Dunstan is found
resisting the papal mandate ^. There can be no doubt that the
Norman kings, influenced by continental usage, and not in the
first instance unwilling to extend the authority of the papacy
to which they knew themselves to be indebted, allowed the
introduction of the practice of referring cases to the successor
of S. Peter as supreme judge, although they did, as much as
they could, restrain the practice by making their own licence
an absolutely necessary preliminary. Anyhow, even in the reign introduc-
of the Conqueror, disputed questions were carried to Rome forappeaOs.
decision. WiHiam had before the Conquest been a suitor there
in the matter of his marriage. The questions at issue between
the sees of York and Canterbury were debated there. The
bishop of Durham in his quarrel with William B.ufus^ threatened
to appeal to the pope in a tone that shows the idea of such
an appeal to be ^miliar to the persons to whom he spoke:
and one of Anselm's charges against that king was that he
hindered the prosecution of appeals'. It would seem certain
from these facts that thus early, in matters which the royal
tribunal was incompetent to decide, a right of appeal under
royal licence was recognised. That Henry of Blois, whilst he Legation
filled the office of legate, from 1 139 to 1144, introduced the Blois.
practice, is an unwarranted conclusion from the words of the
contemporary writer, which seem to refer rather to appeals to
his own legatine jurisdiction than to that of the court of Rome *.
But although the custom was older, the frequency of appeal
much increased under Stephen. In a legatine council held
by archbishop Theobald in the king's presence, in 1151, three
appeals were made to the pope '. We have noted the cases of
disputed elections that occurred in his reign. Early in the next Muitiplica-
reign we find a matrimonial cause, that of Richard of Anesty, peals.
referred to Rome, and the correspondence of John of Salisbury
shows that in almost every department of ecclesiastical jurisdic-
tion the system was in full working before the election of

1 Memorials of S. Dunstan, p. 67. ' See above, vol. i p. 440.

' See above, p. 323. * H. Hunt. f. aa6. * Ibid.



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, 350 Constitutional History. [chap.

Becket to the primacy*. By the Constitutions of Clarendon
Porbidden Henry attempted to stop or at least to control it. He forbade
in the Con- beneficed ecclesiastics to quit the realm without licence, and.
Clarendon, haying proYided a regular succession of appellate courts from
that of the archdeacon to that of the archbishop, ordered that
without royal assent controversy should proceed no farther^.
This restriction of the liberty of appeal was one of the great
points of the struggle with Becket, and, when the king was
forced to abandon the Constitutions, he was made to swear in
a special clause that he would not impede nor allow others
to impede the free exercise of the right of appeals in ecclesias-
tical causes, provided that the appellants might, if they were
suspected, be called upon to give security that they would not
Prohibition 86ek to harm the king or the kingdom ^. Bat although the king
^ ^^ was thus obliged to surrender one of the most important of
the points for which he had contended, and to allow, as the
later records of his reign show, constant reference to the pope
in cases which the national church was competent to decide,
he was able to limit the appeals to strictly ecclesiastical ques-
Appeals tions, in some cases to defeat the purpose of the appellants,
evaded. and in others to avoid giving formal recognition to the decisions
of the foreign court. In the two &mous causes of the next
reign, that of the monks of Canterbury against archbishop
Hubert, and that of the election to S. David's, the king relied
rather on the means which he took to persuade or force the
appellants to withdraw the appeal, than on any constitutional
right to prohibit it; and in the Canterbury case Richard I
showed no small skill in prevailing on the parties to accept
an arbitration even when the Roman l^(ate was waiting to
determine the appeal^. The church history of the thirteenth
century, after the collapse of John's attempt to resist Innocent III,
Apoeaif is full of appeals. Falkes de Breaut^ appealed against his out-
1^1^ ni. lawry and banishment, archbishops Richard and Edmund ap-
pealed against their monks; almost every new bishop had to

* Feed. i. 20. ' * Select Charters, p. 133.
' Hoveden, ii. 35 ; Bened. i. 3a.

* Epistolie Cantuarienses, pp. 322, 323.



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XIX.] Appeals to Borne. 351

fight a battle at Rome before be could obtain bis see; Henry III
himself sought in a papal sentence of absolution a release from
the solemn obligations by which he had bound himself to his
people. With the reign of law which was restored tmder his improfe-
son, the practice was discouraged and restricted but not for-EdwaidL
bidden ; its exercise was limited by the certainty that in most
cases safer and cheaper justice could be found at home. Yet
appeals did not cease, and the custom of seeking dispensations,
fiaculties, and priyileges in matrimonial and clerical causes,
increased. Archbishop Winchelsey had a suit with the monks
of S. Augustine's which lasted for eight years ^ Even theopontioiiof
statutes of praemunire did not prevent the suing for justice of prae-
in the papal court, in causes for which the English common™
law provided no remedy. But from the date of this 1^^-
lation this particular practice became less historically impor-
tant: the collusion, so to call it, between the crown and the
papacy, as to the observance of the statute of provisors, ex-
tended also to the other dealings with the Curia. No attempt pf minution
was made to prevent the sale of dispensations, and when an ber ud im-
appeal was carried to Eome, and the pope had on the usual Sauwere^
plan appointed judges-delegate to hear the parties in England, Borne,
the royal veto was rarely if ever interposed. Probably however
such appeals were not numerous, and, in comparison with the
sums raised by dispensations, the pecuniary results were in-
considerable. Still so great was the influence which the Roman
court possessed in all political and social matters, that every
bishop had his tuMredited agent at Rome, and by presents and
pensions had to secure the good offices of the several cardinals
and other prelates. It is a pitiful thing to read the letters
of archbishop Ghicbele to the great ecclesiastics of the P<>x^^i-^^^^
fical court, or to trace in those of bishop Beckington theutigation.
paltry intrigues which determined the action of the supreme
tribunal of Christendom. In the fifteenth century, notwith-
standing the bold policy of Martin Y and the somewhat sub-

^ Pryime, Records, iii. 8j{6. See also a form of appeal by Godfrey bishop
of Woroeiter against archbishop Peckham, Thomas. Worcester, App. p. 38 ;
and cases of appeal mentioned in the Rolls of Parliament, i. 50, ao8 ;
ii. 8a.



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^^2 Constilutional History. [chap.

missiye attitude of the Lancaster kings, the direct influence

exerted by the papacy in legal proceedings in England had

become very small : questions which had once been bitterly

Gradual contested had become matters of compromise ; the papal juris-

of import- diction in minor matters had become a thing of course, and



ance.



in greater matters it was seldom heard of. The kings, who
freely availed themselves of the powers which they obtained
by good understanding with Rome, were tolerant of pretensions
which, except in one point, were little more than pretensions.
That one point, the drawing of revenue from England, was
indeed contested, and now and then was the subject of some
sharp recriminations in which the parliament as well as the
king had to speak the mind of the nation. But most of the
mischiefs caused by the old system of appeal, a system which
at once crushed the power of the diocesan and defied the
threats of metropolitan and king, were extinguished by the
growth of sound principles in the courts of law, by the deter-
mined policy of the statute of praemunire, and by the general
conviction that the decisions purchased at Eome could not be
executed or enforced except with the leave of the courts at
home. The papal policy had become obstructive rather than
aggressive; its legal machinery was becoming subservient to
royal authority, not a court of refuge or of remedy: and, had not
the doctrinal reformation given to the remodelled Curia a new
standing ground, which on any theory was higher than the old
position of territorial and pecuniary adventure into which it
was rapidly sinking, the action of the papacy in Englsmd might
have altogether ceased. It was a curious coincidence that the
great breach between England and Eome should be the result
of a litigation in a matrimonial suit, one of the few points in
which the Curia had continued to exercise any real jurisdiction.
Thequeetion In the foregoing outline of the legislative and judicial rela-
andita tions of church and state, the subject of heresy has been set
aside for more particular treatment. It is a subject which comes
into prominence as the older constitutional questions between the
two powers become less important ; and its interest is, from the
point at which we have arrived, mainly prospective. It has



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XIX.] Iiegislation on Heresy, 353

however great importance both legally and socially, and the
history of the legislation concerning it, so far as we can now
follow it, famishes most valuable illustrations of tbe curious
interlacing of the spiritual and temporal polities on which we
have had again and again to remark.

404. The English church had up to the close of the fourteenth Immunity
century been singularly free from heresy^: it had escaped all fh)m"Eereti-
such horrors as those of the Albigensian crusade, and had
witnessed with but slight interest the disputes which followed
the preaching of the spiritual Franciscans. Misbelief and
apostasy were indeed subjelbts of inquest at the sherifiTs toum,
and the punishment of *■ mescreauntz apertement atteyntz' was
burning*. If however there was any persecution of heresy in
England before the year 1382, it must have taken the ordinary
form of prosecution in the spiritual court; the heretic when Beoc^niaed
found guilty would after his forty days of grace be committed to Sod^isti.
prison by the writ ' de excommunicato capiendo/ or * significavit/ ^'
until he should satisfy the demands of the church '. But it is
highly improbable that if any such cases had occurred the scrutiny
of controversial bistoi^ms and of legal antiquaries should have
alike failed to discover them.

The first person against whom any severe measures were Wyolifife the
taken was John Wycliffe himself. He had risen to eminence as tant pe^
a philosophic teacher at Oxford. Although he was in the main ^r'^esy.
a Realist, he had adopted some of the political tenets of the
Franciscan Nominalists, and, hating the whole policy of the
mendicant orders, had formed views on the temporal power of



^ The early caries of medieyal heresy in England are these; (i) the
appearance of certain * pravi dogmatis disseminatores ' in 1 165 or 1 160 ; they
were 'Pnblicani/ and spoke G^man ; they were condemned in a council held
at Oxford to be branded, flogged and excommunicated, and were proscribed by
the Assize of Clarendon. 'Diey quitted England after making one convert ;
K. Diceto. i. 318 ; Will. Newb. lib. ii c. 13. (2) In 1222 a deacon who had
apostatised to Judaism was condemned in a council at Oxford and burned ;
Ann. Wykes, p. 63; or hanged, M. Paris, p. 315. (3) In the troubles of
the Franciscans, some of the unfortunate friars are said to have perished
in Engluid ; Ann. Mels. ii. 323 ; but the authority for the statement is
insufficient. See above, vol. ii. p. 470.

* Britton, i. 42, 179 ; cf. Fletaj). 113.

' Gibson, Ck)dez, p. i loa ; Rot. Glaus, (ed. Hardy), ii. 166 ; Rot. Pari ill. 1 28.

VOL. III. A a ^

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354 (Joiistitutional History. [chap.

the papacy akin to those of Marsilius and Ockham, blending
with them the ideal of apostolic poverty as the model of clerical
menf ofhi ^^^* ^ ^^ opinions in the later years of his life developed
views. rapidly, it is not surprising that he came to look on the
sacramental system of the medieval church with suspicion and
dislike, as the real basis on which papal and clerical authority
rested. Speculations on philosophical dogmas, and a certain
amount of loose thought on doctrinal matters, the age of
Edward III easily tolerated ; archbishop Sudbury, if he were
not afraid of Wycliffe, was not actively hostile to him ; he had
friends at court, and his reputatioir was so high that he was
employed by the king in the negotiations with the pope which
were held at Bruges in 1374. It was his share in the anti-
clerical policy broached by the earl of Pembroke in 1371, and
by John of Gaunt in 1376, which drew down upon him the
First at- hostility of the bishops \ The convocation which met Feb. 3,
tryWrn. 1377, insisted on the restoration of bishop Wykeham, on whom
John of Gaunt had avenged the humiliation which he had
received in the Good Parliament, and urged the prelates to
attack WyclifFe, whom they regarded m the chief counsellor
of their great enemy. He was accordingly on the 19th brought
before the bishops at S. Paul's; but the affray between his
noble protectors and the citizens of London, provoked by the
insult offered to bishop Courtenay, prevented the trial from
proceeding, and thas a temporary expedient, whether the ^"^
Lollard knights procured its suppression, or the archbishop
had seen the impolicy of confusing the spiritual and temporal
jurisdictions, or whether it was not a premature attempt of the

» Above, p. 353 ; Britton, i. 42. « Rot. Pari. iii. 583, 584.

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360



Consfitutional History.



[chap.



prince to legislate on the principle which he adopted after the
death of Arundel and when he was king himself, it is not
Different possible to decide. Opinions have been divided as to the pur-
proposed port of the petition, and it has even been maintained that it
meaaure. ^^ intended to substitute for the ecclesiastical persecution
a milder form of repression over which the parliament could
exert more direct authority *. But the language of the petition
carefully considered seems to preclude any such conclusion ;
and it seems best to refer the disappearance of the statute
either to a jealousy between the prince and the archbishop,
of which there are other traces at a later time, or tO' a feeling
of distrust eiisting between the spiritual and secular courts.
The patent rolls of the ninth year of the reign contain several
commissions issued by the king's authority for the suppression
of heresy and the arrest of Lollard preachers after royal inhi-
bition ^ ; it is possible that these measures may have been taken
under this statute.

The next parliament was that of Gloucester, in October 1407 ;
nothing however was done respecting the Lollards in that
session. Although Arundel found time to issue a series of con-
stitutions against them in 1409, the condition of the papacy
itself occupied the minds of the bishops too much during
the following years to allow time for the repression of heresy.
Li 1 410 a parliamentary struggle took place, of which some
account has been already given'. The knights of the shire
petitioned, according to Walsingham, that convicted clerks
might not be handed over to the bishops' prisons, and that the
recent statute, according to which the Lollards whenever and
wherever arrested might without royal writ be imprisoned in
the nearest royal prison, might be modified*. A petition of
similar character appears on the rolls ; the purport of which is
that persons arrested under the provisions of the act of 1401
may be admitted to bail and make their purgation in the county
in which they are arrested, such arrests to be henceforward made

* HaUam (Middle Ages, iii. 90) supposes that the clergy prevented it
from appearing on the Statute BolL
» Rot. Pat. Calen I. pp. 254, 256.
» Above, pp. 63, 64. * Wals. ii. 283.



Arurdel's
constitu-
tions.



Petition of
X410.



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XIX.] legulation of Henry F. 361

by the king't officers without violent affray \ To this prayer
the king returned an unfavourable answer, and it is probable
that this was the petition which the commons asked to have
back, so that nothing might be enacted thereupon^. In this Proposal of



oonflscfttKm.

parliament also was first broached the elaborate scheme of con-
fiscation which became a part of the political programme of the
Lollards '. During this session a frightful execution took place Execution of
under the act of 1401, and on this occasion the victim was
a layman : John Badby, a tailor of the diocese of Worcester, had
been excommunicated for heresy by the bishop and had refused
to abjure ; he was brought before the archbishop and clergy in
convocation and, persisting in his refusal, was handed over to
the secular arm with a petition, addressed by archbishop Arundel
to the lords, that he might not be put to death \ Whether the
petition were a piece of mockery or not, the unfortunate man
was burned, the prince of Wales being present at the execution
and making a vain attempt to procure a recantation. This
event took place on the loth of March; it seems to have been
the first execution under the act, and accordingly in the record
of the convocation the whole statute is rehearsed apparently in
justification'. In the following month Sir John Oldcastle'sB^nniMof
church at Cowling was placed under interdict in consequence troubles,
of the contumacy of his chaplain, but the sentence was remitted
within a few days % and Oldcastle as well as his followers had
peace until the death of the king.

On the accession of Henry V Arundel as we have seen re- Legislation

of Henry V

newed his attack on the Lollards : Oldcastle was tried, con- against

heresy,
denmed and allowed to escape from prison. The abortive

attempt at revolution followed^; and Henry Y in the par-
liament of 1 41 4 proceeded to legislate finally and more
fiercely against the remnant of the heretic party. Arundel
was dead, and whatever had been his influence in forward-
ing or in preventing the measures proposed in 1406, the

* Rot. Pari iii. 626. * Rot. Pari. iii. 623 ; above, p. 63.

* Above, pp. 6.^ sq.

* Wilk. Cone. iii. 324-329 ; Foxe. iiL 235-238 ; Wals. ii. 282.

* Wilk. Cone. iii. 328. * lb. iii. 330, 331.
' See above, pp. 78-80.



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^62 Constitutional History, [chaiP.

Develop- king proceeded to legislate on the principle which was then

ment of Timi..., ^i a*

policy. propounded. That principle was to make heresy an offence

against the common law as against the canon law, and not

merely to use the secular arm in support of the spiritual arm,

but to give the temporal courts a co-ordinate power of proceeding

directly against the offenders. If we suppose that Henry V

was now acting under the advice of the Beauforts, as may be

generally assumed when he acted in opposition to the advice

of Arundel, this policy may be described as the policy of the

Beauforts ; and the cardinal's expedition to Bohemia may be

regarded as a later example of the same idea of intolerance.

But it is not necessary to look for the suggestion further than to

the king himself, who, in the full belief ol his duty as maintainer

of orthodoxy, no doubt thought it incumbent upon him to place

Tenoiur of himself in the van of the army of the church. The purport of
the act of . . . r r

1414- the act is as follows : in the view of the recent troubles caused

by the Lollards and their supporters the king, with the advice
of the lords and at the prayer of the commons, enacts that the
chancellor, treasurer, judges, and all officers of justice shall on
their appointment swear to do their utmost to extirpate heresy,
to assist the ordinaries and their commissaries ; all persons con-
victed before the ordinaries, and delivered over to the secular arm,
are to forfeit their lands as in case of felony, the lands which
they hold to the use of others being however excepted ; they are
also to forfeit their chatteb to the king. So far the act is only
an expansion of the law of 1401 ; the following clauses go
further : the justices of the bench, of the peace, and of assize are



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 37 of 68)