Yale Law School
Independent Study—Charles Gray, supervisor
May 1, 1978
During the thirteenth and fourteenth centuries, and indeed until the break with Rome under Henry VIII, king and church agreed that each had a sphere of exclusive jurisdiction that the other could not infringe upon without usurpation. Naturally, problems arose in defining the precise extent of each sphere. Some of these problems were substantive: which disputes were cognizable by which jurisdiction. Others were procedural: how the substantive problems were to be decided, who was to decide them, and how the decisions were to be enforced.
In what follows I will deal primarily with procedural issues, and especially with the means each side used to force the other to accept its view of where one jurisdiction ended and the other began. The main topics will be prohibitions, appeals to Rome at common law, and certain immunities claimed by the king analogous to the ecclesiastical privileges of sanctuary and benefit of clergy. These topics involve situations in which the king used force to establish his jurisdictional claims, applying sanctions in accordance either with the general law of contempt, which apparently rendered punishable any attempt to impede or undermine the workings of the royal system of justice, or with some more specific legal institution, such as prohibition. The church, generally on the defensive and ultimately defeated, used spiritual sanctions in a variety of manners to oppose the king’s claims.
A prohibition was basically an order in the king’s name forbidding some act. The most common prohibitions, and the only ones with which I will be concerned in this section, were those forbidding an ecclesiastical court to take further cognizance of a matter alleged to be in the king’s jurisdiction. The king could issue prohibitions by word of mouth, by proclamation, or by any sort of written order. However, they were normally in the form of writs issued as a matter of course by Chancery, on application by the defendant in a proceeding in Court Christian. After purchasing the writ, the defendant would deliver a copy to the ecclesiastical court and a copy to the plaintiff, and await developments.
Upon receiving the writ, the court and the plaintiff could either obey the prohibition by abandoning the action, or at least by suspending it pending consultation with the king’s justices on the jurisdictional point, or they could proceed in spite of the prohibition. If plaintiff and court chose the latter alternative, they could be attached, on the defendant’s complaint, to appear before the king’s justices to explain their disobedience. If at the hearing they could show to the satisfaction of the king’s justices that the action in Court Christian had really been of ecclesiastical jurisdiction, they would suffer no penalties and would be allowed to proceed with the action. They could also escape punishment, of course, by showing that they had not in fact continued the action after the prohibition had been delivered. Otherwise they would be subject to amercement and assessment of damages.
Obviously this procedure was based on the view of the king and his justices that they were competent to determine on their own sole authority the scope of ecclesiastical jurisdiction, and entitled to enforce their determinations against churchmen who disagreed with them. Other royal acts show that it was the view of the king that a prohibition was not the only means by which the secular power could act to exclude the church from the sphere of jurisdiction it claimed. It could also punish what it determined to be usurpations of royal jurisdiction as contempts without the necessity of previous express prohibition. A case in point is Valence v. Bishop of Worcester.
In that case, someone arrested a robber, claiming the robber had been found and arrested within his liberty. The Bishop of Worcester claimed that the robber had been arrested within his liberty, and demanded that the culprit be handed over. When his demand was refused he excommunicated those involved. Unfortunately for him, it was the royal view that disputes over liberties and over injuries done to liberties were in the king’s jurisdiction. Accordingly, he was called before the king’s council to answer for his action “in contempt of the king and to the hurt of the king’s royal dignity and contrary to his oath made to the king and to his crown.” The king claimed 10,000 marks damages for himself and lesser amounts for the other injured parties. The Bishop put himself on the king’s mercy.
Although there were thus several means by which ecclesiastical usurpation could be attacked, prohibition was the commonest. I will therefore concentrate on it in the following discussion.
The church disagreed with the royal theory of sole secular competence to resolve jurisdictional disputes, and this disagreement, which was never resolved, gave rise to one of the great medieval disputes between king and church. The view of the church was that it alone was competent to determine its own jurisdiction. In 1147 Pope Eugene III had ordered that
“episcopi, abbates, archiepiscopi et alii ecclesiarum prelati de negotiis ecclesiasticis . . . laicorum judicio non disponant, nec propter eorum prohibitionem ecclesiasticam dimittant justitiam exercere.”
Thus a document attributable to Archbishop Pecham sets forth the view that a prohibition should be obeyed only if in the opinion of the ecclesiastical judges it forbade them to proceed in a case outside their jurisdiction.
Even aside from the problem of whether the king’s courts had jurisdiction over the question of the scope of ecclesiastical jurisdiction, there was in the eyes of the church a procedural problem with the manner in which the royal court undertook to exercise this jurisdiction. Calling bishops to answer before lay judges for their exercise of their office, which the prohibition system did, was considered a violation of the privilegium fori, and as such was the target of strong clerical protests. This procedural issue, rather than the substantive one, was quite often the rallying point for clerical resistance to the prohibition system.
In sum, the view of the church was that prohibitions were advisory only, both because the determination of whether a prohibition was justified was a matter for the church and because the procedure used in the king’s courts violated a particular ecclesiastical immunity. Some churchmen, such as Robert Grosseteste, went somewhat farther, at least rhetorically, and denied the right of the king even to issue a prohibition on the grounds that an appeal to a higher church court, not to the king, was the proper remedy when an ecclesiastical court exceeded its jurisdiction. But the distinction between denying the binding force of a prohibition over the person at whom it is directed and denying the power of the king to issue a prohibition seems merely verbal.
The church used a great variety of means in its attempts, ultimately unsuccessful, to establish the right of its courts to determine their own jurisdiction. The first was passive resistance: a refusal to obey prohibitions determined to be invalid coupled with a refusal to answer before the king’s justices for the disobedience. This tactic could be successful. Its value was enhanced by the difficulty during medieval times of procuring an unwilling defendant’s presence in court. This difficulty was exacerbated in the case of clerks since if they had no lay fee to seize the crown was dependent on their bishop to take security for their appearance in court. To be sure, if the bishop failed to do as the king ordered he could himself be cited to appear in the king’s court. But this citation would simply start another lengthy proceeding.
Passive resistance is especially associated with Grosseteste. In 1236 Henry III felt compelled to order him to permit his clergy to answer pleas that they had ignored prohibitions. And in 1242 Grosseteste himself was cited before the king’s court for excommunicating someone as punishment for procuring a prohibition, and refused to appear. The matter was apparently dropped eventually, with no penalty for Grosseteste.
Various minor forms of deception might also be classified as forms of passive resistance, even though with less in the way of principled legal foundation. William of Drogheda in his treatise on procedure in the church courts suggested that the plaintiff use extreme care in setting down the nature of the case in the libel, in order to avoid a writ of prohibition. For example, money damages should not be mentioned, only the necessity of seeking the repentance of the defendant. Since absolution could not be granted without reparation for whatever wrong had been done, the plaintiff could lose nothing by this maneuver.
Another form of trickery is suggested by 2 Henry V, Stat. 1, c. 3, which complains in its preamble that when persons cited before a spiritual court
“appear and demand a libel of that which against them is surmised . . . to purchase a writ of our Lord the King, of prohibition . . . which libel to them is denied by the said spiritual judges, to the intent that such persons should not be aided by any such writ . . .”
Accordingly, parliament provided that the libel be delivered to the party without difficulty.
Although passive resistance could be effective, its effectiveness was dependent on royal weakness of will. Since the royal will was not invariably weak, the church felt the need to take positive action and impose spiritual sanctions on those who threatened its authority. In many cases very little special positive action was required to do this. Spiritual sanctions would be likely to be imposed as a matter of course on the defendant in Court Christian if that court continued its proceedings in spite of the prohibition.
If proceedings continued in Court Christian after prohibition, the defendant would likely not appear and would accordingly at length be excommunicated for contumacy. Sometimes as part of the sentence of excommunication corporal or pecuniary penance would be enjoined. However, these sanctions were not very effective, since the defendant could eliminate the effects of the excommunication by suing an attachment on the prohibition. In the attachment proceeding, if the defendant in Court Christian won, an order could be granting instructing the ordinary to absolve the plaintiff, or, more frequently, instructing the other party in the plea to have his adversary absolved. The fact that the plaintiff in the suit before the king’s court had been excommunicated would also increase the damages due him.
The usual rule that excommunicated persons could not bring suit did not apply in such cases. This exception was part of what apparently was a more general exception to the legal disqualification of excommunicates: excommunicates were not disqualified for the purposes of deciding a particular dispute if the sentence of excommunication had been imposed in the course of the same dispute. For example, a plea that the patron was excommunicated was a defense to a quaere non admisit, except when it was apparent that he had been excommunicated at the instigation of his present adversary.
At times the church would go so far as to use secular process against a defendant in Court Christian who had been excommunicated for contumacy after delivering a prohibition. This was accomplished by means of the royal writ de excommunicate capiendo. This writ issued de cursu from chancery upon signification by a bishop that an excommunicated person had persisted in his contumacy more than forty days. It was an order o the sheriff to arrest the excommunicate and keep him in the king’s prison of the shire until he was ordered to release him, usually by a writ sued by the bishop after absolution.
Of course, this tactic could net be successful in the long run. If the king discovered that the reason for the excommunication was that the person imprisoned had refused to recognize the validity of an ecclesiastical lawsuit after it had been prohibited, he would order the person to be released pending decision of the action on the prohibition in the king’s court. It was the view of the church that the king had no discretion to release imprisoned excommunicates, the royal position was that its obedience to the judgments of the church was discretionary, and royal policy was not to give effect to such judgments if there were strong indications that they were unjust.
In early times an imprisoned excommunicate who had been excommunicated in the course of a prohibited lawsuit would be released by means of an actual order from the king setting forth what had been represented to him about the circumstances of the excommunication and ordering the sheriff to deliver the prisoner if the representations were true, and to leave him in peace until the plea before the royal judges had been decided. Later the writ de cautione admittenda was used for this purpose. This writ was granted in chancery upon a showing that the excommunication had been imposed while an attachment upon a prohibition was pending. It was also granted upon a showing that an appeal of the sentence to Rome was being prosecuted, a circumstance which also suggested that the sentence might not be just. It appears that anyone opposing the release could argue his case in chancery, although is not clear how often, or indeed whether, such arguments were made, or what the standards for judging the arguments might have been.
A commons petition of 1351 suggests that the writs of prohibition and de cautione admittenda had not entirely ended the problem of secular process being used against persons excommunicated for contumacy in cases tried in ecclesiastical courts which in the crown’s view should have been tried in royal courts. In that year commons requested that before a writ of excommunicato capiendo should be granted a scire facias against the excommunicate ought to be issued to determine whether the case was of royal or church jurisdiction, or alternatively, that after a writ had been granted, the excommunicate ought to have a response to determine whether the case was of church jurisdiction. The first request was denied as contrary to the law of the land as well as that of the church, the second as unreasonable. Apparently the king did not consider abuse of the signification procedure important enough to trouble with.
Since the near-automatic excommunication of the defendant in a suit in Court Christian continued after the prohibition was not sufficient to establish the claims of the church, other means had to be found. Special proceedings based on the offense of interfering with ecclesiastical jurisdiction constituted one weapon in the arsenal of the church.
Legislation of the English church at the Council Merton and Westminster in 1258 and at the Council of Lambeth in 1261 embodied the position of the church that it would appropriate and right for it to impose spiritual sanctions on persons involved in the attachment proceeding as violators of the privilegium fori. This legislation proclaimed the principle that royal writs calling on church officials to explain their actions in connection with such functions as excommunications and trying pleas of tithes, perjury, and breach of faith were to be ignored. If the accused clerk were attached to answer the writ, the offending sheriff, royal officials, and even chancery clerks who had inscribed the writ were to be excommunicated, and any churchmen among them were to be deprived of their livings and disqualified from holding a benefice for five years. If matters didn’t stop there, the lands and residences of the king within the diocese were to be placed under interdict, which might be extended to the entire kingdom if necessary.
In spite of, or perhaps because of, the boldness of these canons, they had very little effect on subsequent developments. I have found no cases in which sanctions were imposed on royal officials involved in attachment proceedings, as these canons require. There are occasional cases in which some of these sanctions were apparently applied to persons involved in the issuance and delivery of the original prohibitions, but not enough to have had much influence on the general course of events. Norma Adams lists two instances of the use of the interdict and one of “excommunication of all parties not excepting the lord king” as punishments following the delivery of writs of prohibition. In 1346 a bishop excommunicated the king’s messenger for delivering a writ of prohibition and was sued, and apparently fined heavily, for the contempt. And Woodcock reports that out of 158 ex officio cases of the consistory court of Canterbury during the year 1474, three were for “obstructing ecclesiastical jurisdiction.”
In spite of the apparent infrequency of proceedings in Court Christian against persons who had caused ecclesiastical actions to be unjustly prohibited, their frequency was sufficient to provoke the king to countermeasures. About 1280 a new form of prohibition appeared which did not give the name of the person who had obtained it: in place of “unde N. queritur” it said simply “ex relatu plurium intelleximus.” The apparent purpose of this change was to shield the person using the prohibition from the wrath of the church, especially if he was a clerk. And during the middle of the fourteenth century a form began to be included among the writs of prohibition in the register specifically designed to cover proceedings in Court Christian against a person who had improperly prohibited an ecclesiastical suit. Fitzherbert says that this last type of writ was sufficient in itself to require the ecclesiastical judges to revoke a sentence of excommunication already issued.
A final way in which spiritual sanctions could be imposed on persons who interfered with ecclesiastical jurisdiction was to declare as the law of the church that all such persons were ipso facto excommunicated. The English church did just that in the canons of the council of Reading in 1279, and, after pressure from the king had forced the retraction of the Reading canons, in the canons of the council of Lambeth in 1281. The same legislation extended to the excommunication ipso facto of royal officials who denied or failed to execute the writ de excommunicato capiendo, and officials who released excommunicates before they had made their peace with the church. These provisions excommunicated offenders without any visible effect, and as far as I can tell, they did it without any historical effect. Of course, it is possible that this legislation caused some people to forego prohibitions that they were entitled to by the king’s law for the sake of their souls’ well-being.
In the end, the church’s sanctions against persons who violated what it saw as its jurisdiction by means of the writ of prohibition failed. The greatest temporary successes were gained against clerics who had used these writs, who were more vulnerable to ecclesiastical censures than other people since their livelihoods, as well as their souls, were in the keeping of the church. But even this measure of success was lost with the introduction of the ex relatu plurium writ and the associated procedure of suing the attachment on the prohibition in the name of the king, often with the clerk who had in fact obtained the writ acting as the king’s attorney.
By the end of the thirteenth century the great battles over the power of the king to determine authoritatively the limits of ecclesiastical jurisdiction had all been fought. Thereafter this power was generally recognized in practice, even though the theoretical claims of the church remained unchanged, and a occasional churchman still acted on these claims. Redress for interference with ecclesiastical jurisdiction by means of prohibitions was thereafter obtained by presentation of grievances to the king and by the practice of consultation with the king’s justices, in which the justices had the final say on jurisdictional questions. Serious questions of conflicting jurisdiction came to be settled by royal declarations such as the Circumspecte Agatis of 1285 and the Articuli Cleri of 1315 in practice, as well as in royal claim.
The prohibition did not, however, completely drive the ecclesiastical courts out of the jurisdiction that the king claimed for his own; by its nature the writ could be effective only if the defendant in an ecclesiastical lawsuit was ready, willing, and able to use it. Woodcock found that throughout the middle ages the courts of the diocese of Canterbury were handling a great deal of business, especially debt litigation, which in royal theory should have been handled in the king’s courts. There was virtually no interference from prohibitions. Most of the claims were small, under 40s., but judgments of up to 19, 5s. have been found. The volume of this litigation actually increased during the fifteenth century.
Reasons for the failure of litigants to use prohibitions in these cases may include the summary nature of the proceedings in most debt cases in the church courts, which may have made prohibitions useless by the time they could be obtained. According to Fitzherbert, the writ of indicavit, a prohibition dealing with suits over tithes, was void after judgment given in spiritual court. A similar procedural limitation may have existed in the context of debt litigation. Failure to use prohibitions may have also been due to a commercial practice of using the more efficient church courts, or the view that interfering with the jurisdiction of the church over breach of faith was a sin, worthy of ipso facto excommunication. Some evidence for the former cause is provided by the practice of including clauses renouncing recourse to prohibition in contracts of debt. These clauses were apparently ineffectual in the secular courts, but may have been viewed as morally binding.
No doubt there were a number of concurring causes for the failure of the church, despite the variety of weapons at its command, to make good on its claims. The frequency and familiarity of sentences of excommunication fulminated by the church during the middle ages without question reduced the awe in which that sanction was held. In addition, the church may not have been sufficiently united and principled in its actions. Thus, Flahiff lays much of the blame for the failure of the thirteenth century church to hold its own to the uneven quality of the English episcopate, to the resolution of the secular authorities, and to the failure of the pope to back up the English clergy. Pope Urban IV, for example, refused to ratify the Lambeth statutes of 1261 purely out of deference to the king, who had protested the failure of the bishops to get his permission before publishing them. While the pope naturally supported the English clergy in principle, he had more important things, such as revenues and sinecures, to consider when he dealt with the English king.
Much of the defeat of the church, however, was undoubtedly due simply to the weight of the sanctions imposed by the crown on those who infringed what the king saw as his jurisdiction. For example, in 1205 the abbot of Malmesbury was amerced 100 marks and the abbot of Stanley 50 marks for judging an action in defiance of a prohibition. In addition to these amercements, of course, they had to pay damages. It should be noted that these penalties, large as they were, were smaller than the penalties that could be assessed in cases of serious contempt, and that undoubtedly would have been assessed if the church had seriously challenged the king’s jurisdiction, for example by excommunicating the royal officials involved in attachments on the prohibition. (See the section on protected persons, functions, and places below.)
Appeals Abroad at Common Law
We have seen (or at least speculated) that a major reason for the inability of the church courts in England to impose their view of the respective jurisdictions of regnum and sacerdotum on the king was the ability of the king to impose heavy penalties on ecclesiastical judges who tried to invade what he saw as his jurisdiction. Accordingly, one would think that the universality of the church and the territoriality of the English state should have been important circumstances of the dispute over who should determine the boundaries of the two jurisdictions. The universality of the church should have given it an advantage since it could claim jurisdiction over all English royal courts, while the king of England could not possibly claim any jurisdiction over proceedings in foreign ecclesiastical courts. Thus it should have been possible for church courts abroad to decide cases within the jurisdiction claimed by the king and to enforce their judgments on English litigants and on the royal courts by means of spiritual sanctions imposed abroad but valid in England, while remaining immune to secular retaliation. In so thinking one would be wrong.
The reason one would be wrong is that although the church court might be abroad and thus outside the king’s reach, the litigants, the process servers, and generally speaking the other persons involved in or affected by the suit were in England. Such persons were subject both in fact and in royal law to orders from the king and the king’s courts not to participate in foreign lawsuits, and not to act in recognition of judgments obtained therein.
The fundamental legal basis for forbidding suits abroad and nullifying foreign judgments in England was that if the foreign suit was of the sort which was in the king’s view cognizable only by the royal courts, any judgment reached in the suit was invalid on jurisdictional grounds, and anyone suing such a suit or recognizing the validity of the judgment obtained therein was guilty of a contempt of the king, and liable to very heavy penalties.
Usually there were additional and more specific grounds for forbidding or punishing suits abroad. In the thirteenth century, at least, the king claimed that he had a special indulgence from the apostolic see that his subjects could not be drawn out of England in lawsuits. And very often part of the basis for punishing someone for contempt was that the defendant had done something he had been specifically forbidden to do, by the king or otherwise. Indeed, most King’s Bench cases dealing with papal intrusion were simple attachments on the prohibition.
One special feature of the prohibitions issued regarding suits abroad is that they tended to be de precepto rather than de cursu, that is, they were specifically designed to deal with the facts of a particular case, rather than copied from chancery forms. They also tended to be issued on behalf of someone other than a private party. These features may reflect the complexity and sensitivity of the king’s relations with Rome, and the corresponding difficulty of establishing a bureaucratic routine for use in dealing with foreign ecclesiastical courts.
An example of such a prohibition was one in the name of the king delivered to a clerk forbidding him “to cross to parts overseas without leave of our lord the king, or to attempt anything which would be in prejudice of our lord the king or his laws . . . ” In spite of the prohibition, the clerk went to Rome and complained about temporal wrongs done him by other clerks. When he returned to England he delivered bulls to summon the offending clerks to Rome and to excommunicate anyone who interfered, for example by means of prohibition. The king sued the clerk for contempt before the King’s Bench, asking a thousand pounds damages. The offender put himself on the king’s grace.
Another example was that of a justice of the Bench in Dublin, who admitted letters of excommunication from Rome into the king’s court, and acted on them there,
“contrary to the prohibition of the justiciary, thus drawing away the king’s jurisdiction to the Court Christian, for which contempt he was by judgment of the court committed to prison, and dismissed from office”
and fined 500 marks. This offender was later pardoned.
As one might expect from the pecuniary value of benefices, the bulk of forbidden suits in foreign courts dealt with patronage disputes. For the purposes of the contempt sanction, the provision of a benefice by the pope was treated like a judgment from Rome that the benefice was in the gift of the pope. If the judgment of the king or the king’s court was otherwise, and especially if a provision conflicted with a presentation by the king, the penalties for giving effect to the provision could be heavy indeed. Two incidents involving the Archbishop of York illustrate the power and effectiveness of the sanctions the king could bring to bear when his view of the extent of his jurisdiction was thwarted.
In 1304 the king granted a clerk a prebend which he considered to be in his gift on account of the recent voidance of the archbishopric of York. When the Archbishop refused to admit the clerk the king sued him for contempt before the King’s Bench, claiming l0,000 pounds damages. The Archbishop’s excuse that the prebend had already been filled by the pope was not accepted, and the court awarded that the temporalties which the Archbishop held of the king be taken into the king’s hands until the clerk should be admitted and satisfaction made to the king for the contempt and disobedience. In addition the court prohibited on the king’s behalf all persons within the king’s realm or dominions from becoming involved in any way (the language of the prohibition is extraordinarily broad) in any suit in any foreign court which might contravene crown rights or the royal dignity, or cause discord between the king and Rome. The penalty for disobeying the prohibition was to be forfeiture of everything the offender could forfeit. Five years after this forceful action and proclamation of royal principle, we find the next Archbishop of York excusing himself to the pope for failing to execute a papal mandate by citing the punishments imposed on his predecessors for disobedience to the king.
However free a hand the king had within England, relations with the pope, who was beyond the reach of the king’s power and whose willing cooperation was valuable to the king, were naturally handled in a less peremptory manner. Nonetheless, the king was able to get what he wanted. Thus, a respectful but firm letter from Edward I to Pope Boniface, preserved in the Close Rolls, explains why a particular papal provision hadn’t been put into effect. The king had already conferred it on someone, when someone else applied to the pope for it, “suppressing any mention of the king’s royal right and the collation and possession aforesaid.” Thus it would be improper to execute the provision. Even if the king himself felt inclined to indulge the pope in this matter, his people, bound by their oaths of homage to support the king’s rights, would object. I have found no instance in which a provision from Rome prevailed over opposing royal claims, or in which a serious attempt was made to impose sanctions on the royal government for its interference with suits to foreign ecclesiastical courts. The pope, apparently, thought he could get more by cooperation than by conflict.
Thus, even before the various statutes of provisors and praemunire, the common law gave the king powerful weapons to use against attempts to invade what he saw as his jurisdiction by means of suits in foreign ecclesiastical courts. The question of the purpose of the series of anti-papal statutes thus arises. These statutes have been interpreted variously—as declaratory of the common law, as political manifestos, and as procedural rather than substantive. I will not deal with such tangled issues. However, I would like to suggest that the passage of the first of this series of statutes was occasioned by a wave of papal provisions in the 1340’s. The Calendar of Patent Rolls for that period shows a flurry of orders for royal officers to arrest persons taking proceedings in derogation of the king’s right to present to numerous benefices “by pretext of a provision by the apostolic see.” They likewise contain a prohibition of such proceedings, and a proclamation by the king and council prohibiting the execution of graces to aliens of benefices in England upon pain of forfeiture of all the offender could forfeit.
Protected Persons, Functions, and Places
Contempt of the king could include anything that tended to render the operations of the king’s justice ineffective. It was thus much more extensive than what remains of it today, the modern concept of contempt of court. In medieval times conduct that we would classify as a contempt of court, such as violently insulting and threatening an opponent in open court, was punishable as a “contempt of the lord king,” but a wide range of other conduct was also so punishable. The concept of contempt thus extended its protection to royal officers, functions of the royal government, and places that were particularly important to the functioning of royal justice. One can speculate that the broad scope given the concept of contempt is related to the medieval tendency to regard government as essentially judicial, enforcing justice in accordance with pre-existing law. In any event it is interesting to note that the particular branch of the law of contempt under discussion is quite analogous to the ecclesiastical privileges of sanctuary and benefit of clergy.
With respect to the king’s officers and functions of the royal government, the royal claims were well set forth in an order issued in 1303 to the Archbishop of Canterbury to revoke any sentences of excommunication against certain of the king’s men who had under royal orders “caused to be removed the armed lay force from the churches of St. Paul . . . ” The justification given for the order was that
“it is manifestly contrary to the king’s crown and dignity that his ministers or any others should be drawn into pleas in Court Christian because they have executed the king’s orders or should be in any other manner molested or aggrieved without the king’s being consulted.”
This principle, of course, is similar to that set forth in the Constitutions of Clarendon that the king’s ministers and tenants-in- chief (who at that time, presumably, were in fact in the service of the king by virtue of their holding lands of him) could not be excommunicated without the king’s consent.
The principle was applied in varied connections and varied manners. In 1240 the king ordered one of his sheriffs to persuade the bishop of Coventry to revoke a sentence of excommunication that had been fulminated against a local rector, one of the king’s ministers. To increase the sheriff’s persuasive power, he was authorized to tell the bishop that the king intended to seize the bishop’s temporalties as punishment for the breach of feudal obligation if he did not give in.
The principle also underlay the writ of prohibition de transgressione, which originally was used to forbid suits in Court Christian against the king’s servants for using force again clerks in the course of their duty. A prohibition could, of course, take the form of something other than a chancery writ. The Calendar of Close Rolls for 1297 contains an order of the king and council prohibiting the Archbishop of Canterbury
“under pain of forfeiture of all that he holds of the king, from promulgating any sentence of excommunication against the king’s ministers, clerk or lay, who are employed in [collecting a tax] as the king understands that the Archbishop intends to pronounce such sentence against the king’s ministers thus engaged.”
Violations of the royal immunities could be dealt with either by the king and his council or by the ordinary courts. Thus an abbot came before the king’s council in 1358
“saying that he was indicted before the king’s justices . . . for having pronounced against the king’s ministers certain sentences prejudicial to the king and the rights of England . . . and for other attempts in contempt of the king and his crown, and submitted himself to the king’s grace . . . “
The penalties for excommunicating the king’s servants varied widely. Sometimes there was merely an order to revoke the sentence, as in the first two cases mentioned above. Other times, as the prohibition to the Archbishop of Canterbury quoted above suggests, the penalties could be very heavy indeed. In one case the king sued the Archbishop of York for Z20,000 because he had excommunicated through his commissary the Bishop of Durham while the Bishop was “in the northern parts in the king’s service and by his side by the king’s order and under the king’s protection.” The Archbishop eventually made fine with the king for 4000 marks. It should be noted, however, that the Archbishop was actually found guilty of usurping the king’s jurisdiction in a more ordinary way, since it was agreed that the sentence had been imposed for a temporal offense properly triable only in the king’s courts. The decision to base the conviction on the usurpation of royal jurisdiction rather than the violation of royal immunity may show that the former principle was more widely accepted than the latter, especially where, as here, the person excommunicated was the canonical subordinate of the person accused of contempt.
Ecclesiastical authority attempted to be exercised over the king’s ministers by the pope naturally had to be dealt with in a more tactful way. Thus, in a letter to the pope the king requests that the Archbishop of York, at that time serving as his confidential clerk, be excused from appearing before the pope in person pursuant to a summons. The king needed the services of the Archbishop, he said, and did not believe “that the pope would wish to deprive him of the services of a person so necessary to him.” No doubt the excuse was granted. The pope and king could usually cooperate in this matter. In 1231 Gregory IX had granted the request of Henry iii that his clerks should be immune from excommunication while on the king’s service, thus giving English kings a canon law ground for their claims of immunity.
Cases in which exercising ecclesiastical jurisdiction in a protected place was punished as a contempt are rare. Rex v. Gerdeston was one such case. In that case delivering a citation to the king’s niece while she was in Westminster palace was punished by confinement in the Tower at the king’s pleasure. An aggravating circumstance was that the king was actually holding Parliament in the palace at the time. It is interesting that the claim of immunity for the palace was based both on the king’s dignity and on alleged liberties of the church of Westminster, which made the place “exempt and immune from all jurisdiction of the ordinary.” As in the Bishop of Durham case, there seems to have been a reluctance to rest judgments squarely on claims of royal immunity.
Norma Adams, “The Writ of Prohibition to Court Christian”, 20 Minnesota Law Review 272-293 (1936).
Calendar of the Close Rolls, Public Record Office (London, 1892- ).
Calendar of the Patent Rolls, Public Record Office (London, 1901- ).
Corpus Iuris Canonici, E. L. Richter and E. Friedberg, eds. (Leipzig, 1879-1881).
Councils & Synods with other Documents Relating to the English Church, 1205-1313, F. I4. Powicke and C. R. Cheney, eds. (Oxford, 1964).
Sir John Davies, A Report of Cases and Matters in Law Resolved and Adjudged in the King’s Courts in Ireland (Dublin, 1762).
Anthony Fitzherbert, Natura Brevium, 8th ed. (London, 1755).
G. B. Flahiff, “The Use of Prohibitions by Clerics Against Ecclesiastical Courts in England”, 3 Miediaeval Studies 101-116 (1941).
“The Writ of Prohibition to Court Christian in the Thirteenth Century”, 6 Mediaeval Studies 261-313 (1944).
“The Writ of Prohibition to Court Christian in the Thirteenth Century. II.”, 7 Mediaeval Studies 229-290 (1945).
Edgar B. Graves, “The Legal Significance of the Statute of Fraemunire of 1353”, Anniversarv Essays in Medieval History, C. H. Taylor and J. L. LaMonte, eds. (New York, 1929).
W. R. Jones, “Relations of the Two Jurisdictions; Conflict and Cooperation in Engtand During the Thirteenth and Fourteenth Centuries”, 7 Studies in Medieval and Renaissance History 76-210 (1970).
F. Donald Logan, Excommunication and the Secular Arm in Miedieval Englad (Toronto, 1968).
Sir Frederick Maurice Powicke, The Oxford History of England: The Thirteenth Century, 1216-1307 (Oxford, 1953).
Select Cases before the King’s Council, 1243-1482, I. S. Leadam and J. F. Baldwin, eds., 35 Selden Soc. (Cambridge, 1918).
Select Cases in the Court of King’s Bench under Edward I, G. O. Sayles, ed., 58 Selden Soc. (London, 1939).
Select Cases in the Court of King’s Bench under Edward III, G. O. Sayles, ed., 82 Selden Soc. (London, 1965).
The Statutes at Large, Owen Ruffhead, ed. (London, 1763).
W. T. Waugh, “The Great Statute of Praemunire”, 37 English Historical Review 173-205.
Brian L. Woodcock, Medieval Ecclesiastical Courts in the Diocese of Canterbury (London, 1952).
Year Books of the Reign of Kinq Edward the First, Alfred J. Horwood, ed. (London, 1866-1879).
The Eyre of London, 14 Edward II, Helen M. Cam, ed., 86 Selden Soc. (London, 1969).
Year Books of the Reign of King Edward the Third, Luke Owen Pike, ed. (London, 1883-1911).
1 Flahiff, “The Writ of Prohibition”, 6 Med. Stud., p. 284.
2 ibid., p. 285.
3 See, e.g., Calendar of Close Rolls, 1237-1242, p. 218.
4 Select Cases before the King’s Council, 1243-1482, pp. 5-8.
5 Flahiff, “The Writ of Prohibition. II.”, 7 Med. Stud., p. 241; Corpus Juris Canonici, Decretals of Gregory IX, c. 2, de judiciis, li. II, tit. 1.
6 Flahiff, “Writ of Prohibition”, p. 287.
7 Councils &__ Synods, Powicke and Cheney, eds., pp.280-4 and 469- 74.
8 Flahiff, “Writ of Prohibition”, p. 288.
9 W. R. Jones, “Relations of the Two Jurisdictions”, 7 Stud. in Med. and Ren. Hist., p. 203.
10 CCR, 1234-1237, p. 360.
ll Flahiff, “Writ of Prohibition”, p. 292.
12 ibid., p. 291.
13 Y. B. 16 Ed. III, Trinity Term, no. 36.
14 Flahiff, “Writ of Prohibition. II.”, p. 246n.
15 See, e.g., Y.B. 20 Ed. I, p. 204; Y.B. 30 Ed. I, p. 270: Y.B. 31 Ed. I, pp. 455-6.
16 Jones, op. cit., p. 119.
17 F. D. Logan, Excommunication and the Secular Arm in Medieval England pp. 72 ff.
18 Jones, op. cit., p. 144.
19 CCR 1237-1242, pp. 428-9: CCR 1247-1251, pp. 104-5.
20 Jones, op. cit., p. 120.
21 Fitzherbert, Natura Brevium, pp. 147-8.
22 Jones, op. cit. 151.
23 Logan, op. cit., pp. 89-90.
24 Jones, op. cit., pp. 92-92; C & S, pp. 582-3, 669-685.
25 Adams, “The Writ of Prohibition to Court Christian,” 20 Minn. Law Rev., p. 299n.
26 Y. B. 20 Ed. III, Michaelmas Term, no. 39.
27 Woodcock, Medieval Ecclesiastical Courts, p. 79.
28 Flahiff, “The Use of Prohibitions,” 3 Med. Stud., p. 109.
29 Flahiff, “Writ of Prohibition. II.”, p. 244.
30 Fitzherbert, op. cit., p. 99.
31Flahiff, “Writ of Prohibition”, p. 94, C & S, pp. 848-50, 905-07.
32 See generally, Flahiff, “Use of Prohibitions”.
33 Flahiff, “Use of Prohibitions”, pp. 214-5; “Writ of Prohibition. II.”, p. 240.
34 Woodcock, op. cit., pp. 88ff., 108.
35 ibid., p. 89.
36 Fitzherbert, op. cit., p. 105.
37 Flahiff, “Writ of Prohibition. II.”, pp. 256-7.
38 ibid. 3.
39 Jones, op. cit., pp. 142-3.
40 Flahiff, “Writ of Prohibition” pp. 298-9. The statutes were nonetheless considcred authoritative legislation of the English church. Jones, op. cit., p. 93.
41 Jones, op. cit., p. 89.
42 Flahiff, “Writ of Prohibition. II”, p. 281.
43 CCR 1247-1251, p. 109; CCR 1259-1261, p. 466.
44 Jones, op. cit., p. 128.
45 Select cases in the Court of King’s bench under Edward III, pp. 16a ff.
46 Calendar of the Patent Rolls, 1327-1330, p. 475., pp. 302-3; Jones, op. cit.
47 Select Cases in the Court of King’s Bench under Edward I, vol. iii, p. 136.
48 Jones, op. cit., p. 128.
49 CCR 1296-1302, p. 309.
50 Davies, A Report of Cases and Matters in Law Resolved and Adjudged in the King’s Courts in Ireland, p. 267.
51 Waught “The Great Statute of Praemunire”, 37 EHR, pp. 169 ff.
52 Graves, “The Legal Significance of the Statute of Praemunire of 1353”, Anniversary Essays in Medieval History, p. 61.
53 See the following notes; also, e.g., CPR 1340-1343, pp. 100, 102, 359, 439, 440, etc.
54 CPR 1343-1345, pp. 73, 78, 84, 86, 87, 94, 95, etc.
55 CPR 1343-1345, p. 165.
56 CPR 1343-1345, p. 284.
57 Yearbooks of Edward II, The Eyre of London, 14 Edward II, p. 228.
58 CCR 1302-1307, p. 90.
59 Powicke, The Thirteenth Century, pp. 466-7.
60 Flahiff, “Writ of Prohibition”, pp. 279-80.
61 CCR 1296-1302, p. 124.
62 CCR 1354-1360, p. 530.
63CCR 1288-1296,_ pp. 330-34.
64 CCR 1296-1302, pp. 309-310.
65 Jones, op. cit., p. 147.
66 Select Cases before the King’s Council, 1243-1482, pp. 27-32.