Law and the Church

The ecclesiastical courts, although not directed by the crown, were part of the English legal system. In addition to the courts of the seventeen bishops, archdeacons’ courts multiplied the effect that canon law had in England. This system of ecclesiastical courts was hierarchically arranged in a way that the king’s various courts were not, with the papal court in Rome or Avignon as its jurisdictional apex. While theoretically and, in significant part, in fact separate from the king’s law, these church courts were also part of it. Time and necessity had forged links between the courts; they operated in tandem in the same society and on the same populace. They could and did disagree, at times routinely, at times seriously, but the overall effect was that each relied on the other. By the fourteenth century the king and the common law had established a moderate superiority, capable of enforcing jurisdictional limitations on the ecclesiastical courts; the common law itself handled a wide variety of cases and persons that were ecclesiastical in nature. By the late fourteenth century the king and the king’s court could, when it so chose, decisively regulate the church and its courts.

The church in England developed its courts into a hierarchical system beginning in the reign of Stephen, with the basic settlement of power determined by the outcome thereafter of the conflict between Henry II and Becket. Ecclesiastical courts handled substantive matters that concerned salvation and church order: sexual misconduct, determinations of marriage and annulment of marriage, blasphemy, breach of faith, sacrilege, discipline of ecclesiastics, enforcement of church rules in parishes, defamation. Church courts likewise operated according to the forms of Roman law, with an inquisitorial judge, without common law-style juries, with witnesses and the imposition of oaths on the parties to tell the truth: the same kind of procedures that the chancellor’s court of conscience would adopt in the late fourteenth century. The king’s law maintained some control over ecclesiastics who committed felonies, control over advowson rights that preserved a large measure of lay activity in church appointments, the ability to handle ecclesiastical parties in an extremely wide sphere of litigation as long as the subject matter was not explicitly defined as ecclesiastical, and the ability to police the jurisdictional boundaries. On both sides those boundaries were porous: the policing mechanisms only worked at the request of a party. Moreover, since people actively used the courts, litigation in one was often part of a larger social or legal complex that included litigation in the other, particularly in regard to questions of marriage, because such questions also involved property settlements. Even though the formal law saw two different legal systems, from the user’s perspective there was only one. The people concerned had access to a wide array of courts including the variety of the king’s courts at Westminster, the ecclesiastical courts throughout the country, the county, hundred, manor and borough courts; those courts meshed and created a larger system of opportunities for the resolution of conflicts, management of wealth and maintenance of order.23

Source: Curia Regis Rolls, 1: 172-253 (adjusted for consistency); CP40/10; CP40/156; CP40/502; CP40/816; CP40/1051. Before the late thirteenth century status was only irregularly entered, except with magnates. The figures here do not indicate different people, but numbers of entries with such plaintiffs.

Advowsons and jurisdictional boundaries constituted major points of friction between the ecclesiastical courts and the common law. The common law considered the advowson (the right to nominate the person the bishop would appoint to an ecclesiastical, revenue-producing position, such as a rectory) an ordinary property right that could stand alone or pass by inheritance with other property. Control over those positions was vital for bishops, pope, king and magnates, because those positions were sources of ensured revenue that could provide support for administrators and general patronage. Defendants could use the royal writ of prohibition to prevent church courts from handling matters concerning advowsons. As early as the reign of Edward I, the crown developed ways to police papal expedients designed to gain control over such sources of patronage. After the Black Death Edward III solidified in the Statutes of Provisors and Praemunire the procedures that would thereafter be the most serious mechanisms that policed the boundaries between the church and the common law courts. Praemunire could punish not only offending plaintiffs in church courts, but also the judges, lawyers, summoners and even the supporters of the plaintiff, treating all as enemies of the king. The device was generally used to procure submission instead of judgement, but it stood as the ultimate statement about the king’s ability to supervise an essential part of the English legal system that was admittedly not totally subject to his authority.24

Conflict was important, but coordination was dominant. Many, and at times most, bishops arrived at their post by royal service; ecclesiastics had ties not only to the crown but often to the magnates: they were not in fact isolated from the society in which they lived. Moreover, ecclesiastics themselves made extensive use of the king’s court, constituting a significant portion of plaintiffs in the court of common pleas. How large a percentage is difficult to determine before the late fourteenth century, when the status of plaintiffs was enrolled much more regularly. What is clear, however, is that, even in a social context that seemed to require less litigation because of governance mechanisms like performance bonds, ecclesiastics became markedly less willing to sue at common law during the fifteenth century in comparison to their lay countrymen. Conceivably they felt more comfortable in the chancellor’s court; conceivably likewise the continuing demand to be a separate order became internalized in their decisions about whether to sue at all (see table 13.2). Up until the fifteenth century, however, ecclesiastics litigated vigorously at common law. The subject matter of litigation brought by clerics at common law included tithes, mortuary fees, parish boundaries, annual rents that supported or impoverished churches, assault on clerics, and the taking of church goods such as vestments and chalices. Particularly after the Black Death, common law leaseholding protections encouraged rectors and vicars to lease out their parishes, surrendering often to laymen the management of the parish, including the hiring of the parish priest, the collection of tithes and mortuary fees and the maintenance of the parish buildings.25 Jurisdictional boundaries were porous, and the users of the law defined their suits or situated themselves to secure the greatest advantage. Most individuals felt little allegiance to abstract jurisdictional rules and pragmatically found ways to use the complex of king’s and church courts to structure their society.