Canon Law in England: some Reflections on the Stubbs-Maitland Controversy

J. W. Gray

doi:10.1017/S0424208400004447

Canon Law in England: some Reflections on the Stubbs-Maitland Controversy

Published online by Cambridge University Press: 21 March 2016

J. W. Gray

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J. W. Gray*: Affiliation:
Reader in History, Queen’s University, Belfast

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In March 1851, both archbishops and twenty bishops of the Anglican Church issued a public statement in which they asserted the ‘undoubted identity of the English Church before and after the Reformation’—and we do not have to look far for an explanation of this manifesto; in 1850 the steady trickle of Anglican recruits to Roman Catholicism had been complemented by the so-called ‘Papal Agression’ which re-established Roman Catholic titular sees in England. Undoubtedly, historical conscience played a large part in secessions to Rome, as more and more Anglicans came to feel that the whole constitution of the medieval Ecclesia Anglicana had been fundamentally changed by the abrogation of papal authority in the sixteenth century, and in these circumstances all shades of Anglican opinion were bound to welcome any historical argument which tended to show that the pre-Reformation Church had not been unconditionally subject to Rome, and that its acceptance of the canonical ius commune and papal authority had been free, selective, and discriminating.

Type: Research Article
Information: Studies in Church History , Volume 3: Papers read at the third winter and summer meetings of the Ecclesiastical History Society , 1966 , pp. 48 - 68

DOI: https://doi.org/10.1017/S0424208400004447 [Opens in a new window]
Copyright: Copyright © Ecclesiastical History Society 1966

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References

^{Page 48 of note 1} R. Phillimore, The Ecclesiastical Law of the Church of England (1895 edn.), 3.

^{Page 49 of note 1} For a good general account of the implications of the Gorham case, see A. O. J. Cockshut, Anglican Attitudes, c. 3. The post-Reformation line of descent of ecclesiastical jurisdiction in England is traced in the Report of the Royal Commission on The Constitution and Working of the Ecclesiastical Courts (1883), xxxvi seq., 44 seq.

^{Page 49 of note 2} R. Phillimore, op. cit., 14.

^{Page 49 of note 3} 1761 edn., I, xxvii.

^{Page 49 of note 4} See, for example, the references to the pre-Reformation autonomy of ‘the clergy of this realm’ and the ‘spiritualty’ in the Act for the Submission of the Clergy (25 Henry VIII c. 19) and the Act in Restraint of Appeals (24 Henry VIII c. 12).

^{Page 50 of note 1} 1878 edn., para. 389.

^{Page 50 of note 2} Seventeen Lectures (1900 edn.), 351, 354-5, and Report (Appendix I), 21, 25.

^{Page 51 of note 1} William of Drogheda, Summa Aurea (ed. L. Wahrmund, Innsbruck 1914).

^{Page 51 of note 2} John of Ayton, Constitutiones Legatinæ, and William Lyndwood, Provinciale, printed by H. Hall, Oxford 1679.

^{Page 51 of note 3} Maitland, F. W., op. cit., 2, 31 seqGoogle Scholar.

^{Page 51 of note 4} Ibid., 101 seq.

^{Page 51 of note 5} A. Ogle, Canon Law in Medieval England.

^{Page 51 of note 6} The Canon Law of the Church of England, 1947, 38.

^{Page 52 of note 1} Seventeen Lectures (1900 edn.), 336.

^{Page 52 of note 2} At the end of his brief preface to Roman Canon Law in the Church of England Maitland disclaimed any intention of acting as an advocate of the ‘English’ or ‘Roman’ churches, and added that he was ‘a dissenter from both, and from other churches.’ See also the interesting comments by his daughter Ermengard, in F. W. Maitland, a Child’s-Eye View (Seiden Society Pamphlet) 1957, 9-10.

^{Page 52 of note 3} From a letter to R. Lane Poole, dated April 1901 (Cambridge Historical Journal, X, 331).

^{Page 52 of note 4} J. Hopwood in Dublin Review, 126.

^{Page 52 of note 5} A point which, as his prefatory remarks show, provided the motivation for Canon Ogle’s counter-attack (op. cit., vii seq.).

^{Page 53 of note 1} C. 834-5.

^{Page 53 of note 2} C. 6 of 1215 (M. XXII, 991).

^{Page 53 of note 3} This system is well described by J. R. H. Moorman in cc. III-V of Church Life in England in the Thirteenth Century, and shrewdly discussed by W. A. Pantin on pp. 179-82 of Robert Grossefeste (ed. D. A. Callus).

^{Page 54 of note 1} Introduced by c. 29 of 1215 (M. XXII, 1015).

^{Page 54 of note 2} Introduced by c. 3 of 1179 (M. XXII, 219).

^{Page 54 of note 3} C. 834-5.

^{Page 54 of note 4} C. 863.

^{Page 54 of note 5} Though they had protested or appealed against papal legislation on previous occasions (see, for example, C. 243-4, 745-6).

^{Page 55 of note 1} Maitland, F. W., op. cit., 57-8, 73 seqGoogle Scholar.

^{Page 55 of note 2} Ibid. 103.

^{Page 55 of note 3} Naturally, provincial and diocesan legislation itself provides little evidence of such evasive techniques, and in this respect the Coventry legis lation of c. 1224-37 is exceptional (see, for example, c. 12 in C. 212). But the testimony of papal ‘statutes’, canonistic commentaries, and chronicles points decisively to the existence of widespread (and often ‘venal’) non-enforcement; see, for example, c. 7 of 1215 (M. XXII, 994) Ayton, op. cit., f 37a, ad v. cappis clausis, and the Burton annalist’s comment on the Canter bury sede vacante enquiry of 1256 (Annales Monastici, ed. H. R. Luard, I,382).

^{Page 56 of note 1} Op. cit., p. 2.

^{Page 56 of note 2} Ibid., 242-6.

^{Page 56 of note 3} First specified in cc. 3 and 13 of 1179 (M. XXII, 219, 225), the loss of collative rights had recently been emphasised by c. 18 of 1274 (M. XXIV, 92).

^{Page 56 of note 4} This ineffectiveness was no doubt at least partly due to the reluctance of ecclesiastical authorities to proceed to the individual denunciation of offenders, without which such sentences were only binding in foro interno (Lyndwood, op. cit., f 12 ad v. suspensionis, and f 147b ad v. ipso facto). In this connection it is interesting to note that the Winchester statutes of 1224-5 forbade such sentences (in this case, of excommunication) ‘ubi probari potest persona delinquentie’ (C. 137).

^{Page 57 of note 1} Apart from the obvious contrast between his treatment of vicars in c. 10 (C. 249) and of rectors in c. 13 (C. 251), it is significant that Otto procured a papal mandate, as early as December 1238, which sanctioned a policy of non-enforcement ‘si contra dictos clericos sine scandalo procedere non poteritis’ (Potthast no. 10694).

^{Page 57 of note 2} A sequel vividly described by Thomas Wykes (Annales Monastici, ed. H. R. Luard, IV, 215-7).

^{Page 57 of note 3} ‘Licet ad hec omnia comprimenda solius metropolitice jurisdictionis potestas apud nos sufficere dinoscatur ...’ (C. 838).

^{Page 58 of note 1} F. W. Maitland, op. cit., c. 1.

^{Page 58 of note 2} For a good summing-up of this argument, see D. L. Douie, Archbishop Pecham, 98 seq.

^{Page 58 of note 3} A point sufficiently firmly established by Maitland.

^{Page 58 of note 4} Ayton, op. cit., f41 ad v. canonice dispensatum.

^{Page 59 of note 1} For example, the letter which he wrote to Nicholas III in 1280 about Antony Bek (Registrum Epistolarum .. ., ed. C. T. Martin, no. CXVI).

^{Page 59 of note 2} C. 916-7.

^{Page 59 of note 3} The papal rejection of John Blund as archbishop-elect of Canterbury in 1232 is an early (perhaps the first?) example of the ‘promotion-bar’ (see C. H. Lawrence, St Edmund of Abingdon, 127). As Pecham’s register shows, Antony Bek suspected its use against himself, and Pecham certainly used it in the test-case of the Winchester election (Registrum Epistolarum . . ., ed. C. T. Martin, nos. CXXII, CXLIV, CXCI-II;, CCXXIV).

^{Page 59 of note 4} For a good summary of the fourteenth-century situation, see W. A. Pantin in The English Church and the Papacy in the Middle Ages, ed. C. H. Law rence, 183 seq.

^{Page 59 of note 5} C. 843.

^{Page 59 of note 6} X. 1. 6. 34 (A. Friedberg, Corpus Juris Canonici II, 964, and Potthast no. 24634).

^{Page 60 of note 1} William of Drogheda, op. cit., c. CDXII (p. 342)Google Scholar.

^{Page 60 of note 2} A. Ogle, op. cit., 38.

^{Page 61 of note 1} ‘Ad illud autem . .. nos propria ut prediximus invitat utilitas’ (C. 835).

^{Page 61 of note 2} F. W. Maitland, op. cit., 62.

^{Page 61 of note 3} For some further evidence bearing on this point, see J. W. Gray, ‘Archbishop Pecham and the decrees of Boniface’, in Studies in Church History, II (ed. G. J. Cuming), 215 seq.

^{Page 62 of note 1} Note, for example, the contrast in this respect between the clerical gravamina of 1285 (C. 955-972) and the gravamina which Nicholas IV addressed to Edward I in 1289-90 (Reg. Nicholas IV nos. 2260, 4308, and 4311, and Potthast nos. 23110, 23282, and 23299).

^{Page 62 of note 2} C. 37 Of 1215 (M. XXII, 1023).

^{Page 62 of note 3} ‘Non obstante privilegiis apostolicis sedi nostræ ab olim indultis, ut trahi extra Angliam per literas apostolicas non possumus’ (Registrum Epistolarum . . ., ed. C. T. Martin, no. DCXII). Among various mid-thirteenth-century papal references to the existence of a general English privilege, the following may be noted: Gregory IX (1231) in Reg. Gregory IX nos. 538 and 691; Innocent IV (1248) in Calendar of Papal Letters, II, 25-4; Urban IV (1236) in D. Wilkins, Concilia, I, 760.

^{Page 63 of note 1} I take this point from ‘Hostiensis’, whose eminence as a canonist, and considerable experience of conditions in mid-thirteenth-century England, make his testimony doubly valuable (Henricus de Segusia, Summa Aurea, Lyons 1548 edn. f 258v: ‘hodie magis timetur pena quinque solidorum quam etiam excommunicatio’).

^{Page 63 of note 2} For the absence of any canonical authority for the imprisonment of laymen (except in cases of heresy), and for the difficulties which obstructed the canonical imprisonment of clerks, see Lyndwood, op. cit., f 322a ad v. adiudicetur, and f 264b ad v. custodia carcerali.

^{Page 63 of note 3} See Fowler, R. C., Secular aid for Excommunication, in TRHS, third series, Vol. 8, and Maxwell-Lyte, H. C., The Great Seal, 216 Google Scholar.

^{Page 64 of note 1} When papal nuncios were sent to England with ‘articles of enquiry’ in 1273, the sole reference to caption in their agenda was: ‘de excommunicatis per iudices delegatis capiendis’ (C. 806).

^{Page 64 of note 2} Note, for example, the attitude adopted by Innocent IV to Grosseteste’s dispute with the sheriff of Rutland in 1240 (M. Paris, Chronica Majora ed. H. R. Luard, V, 109, and Annales Monastici, ed. H. R. Luard, I, 423), and the vague terms of Nicholas IV’s references to the question in 1289-90 (p. 62, no 1 above).

^{Page 64 of note 3} In 1278 and 1290 (Rotuli Parliamentorum, I, 4, no. 15 and 51, no. 69.

^{Page 64 of note 4} The examples printed by Prynne, W. in Documents, III, 985, 1039-41, 1085, and 1198 all date from the period 1303-5, and the earliest one known to me dates from 1299 (PRO, Ancient Correspondence, XX/65)Google Scholar. However, the seventh item in the articuli episcoporum of 1285, and the royal answer to it, show that the chancery release-process was already well established at that date (C. 957-8).

^{Page 64 of note 5} ‘Cognitio apellationis huiusmodi vel tuitio non pertineat ad curiam secularem’ (C. 957).

^{Page 65 of note 1} F. W. Maitland, op. cit., 58.

^{Page 66 of note 1} Royal Commission Report (1883), Historical Appendix II.

^{Page 67 of note 1} McKisack, M., The Fourteenth Century, 292, n. 2 Google Scholar, and Lea, H. C., History of the Inquisition, III, 299 Google Scholar.

^{Page 67 of note 2} Lea, H. C., op. cit., I, 332 seqGoogle Scholar.

^{Page 67 of note 3} 24 Henry VIII, c. 19.

^{Page 67 of note 4} ‘If we say that the medieval church was a state, we must add that among medieval states it was not the least anarchical’ (F. W. Maitland, op. cit., p. 120). ‘Any idea that the Church in the thirteenth century was a united and efficient force, smoothly concentrated ... on a single purposeful effort, is soon dispelled by the records of litigation. In these it appears as a sensitive and quarrelsome organism of vested interests and of rights rooted in custom and privilege’ (F. M. Powicke, The Thirteenth Century, 468).

^{Page 68 of note 1} Ayton, op. cit., f 155a ad v. faciant observani.

^{Page 68 of note 2} W. Ullmann, Medieval Papalism, 81.

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