disciplina de los clerigos, medieval y moderno

8/12/2019 Disciplina de Los Clerigos, Medieval y Moderno

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DISCIPLINE O F THE CLERGY:MEDIEVAL AN D M OD ERNR. H . H E L M H O L Z *Ruth Wyatt Rosenson Distinguished Service Professor of Law,University of C hicago

Discipline of the clergy is a subject of peren nial interes t both in the po pu lar presswhenever something sensational takes place, and among the clergy and thoughtfullawyers when they are confronted either with the general problem of how best tofashion the church's law or the more imm ediate prob lem of how to deal with offend-ers against the church's law. Th e subject also has a long history. The p urp ose of thisarticle is to bring to light a cha pter from the century or so before the Refo rma tion.Evidence taken from the medieval cano n law and from the court re cords of the laterMiddle Ages may be of interestand perhaps even relevanceto members of theEcclesiastical Law Society. It has been my pleasure and good fortune to discover thatmany of them are not im mu ne to the claims of history.The p resentation of the material falls into three parts . Th e first deals with the formalcanon law of the medieval church. The second deals with practice involving disci-pline of the clergy that took place before the English ecclesiastical courts during theyears before the Refo rmation. Th e third deals with the presen t: bo th w ith recent his-torical interpretations of that period and with today's law about discipline of theclergy.The Canon LawThe s t a r t i ng po in t fo r dea l ing wi th m i sconduc t by the c l e rgy in t he c l ass i ca l canonlaw, fo rm u la t ed in t he twe l f th a nd th i r t e en th cen tu r i es , was tha t t hey were sub jec t t od i sc ip l ine by the i r b i shops . B i sho ps cou ld ca l l t he m to ac co un t befo re a m e e t in g o f as y n o d , b y p e r s o n a l i n t e r v e n t i o n , o r ( l a te r ) i n c r i m i n a l p r o c e e d i n g s b r o u g h t b e f o r e a necc l es i ast i ca l cou r t . Th i s was an ep i scop a l func t ion , a l t ho ug h it cou ld a l so be exer -c i sed by h i s depu t i es . I t was an exc lu s ive ju r i s d i c t i on . U nd er m os t c i r c um stan cesc l e r i ca l d i sc ip l ine was no bus iness o f t he l a i t y . Al though there was som e d i sag ree-m e n t a m o n g t h e c a n o n i s t s , 1 th e communior opinio w a s t h a t n o l a y m a n c o u l d b r i n g ac r im ina l accusa t ion aga in s t a c l e r i c o r even t es t i fy i n one b rough t by som eone e l se .T h i s r u le h a d a n c i e n t a n t e c e d e n t s , a n d G r a t i a n d e v o t e d a l o n g Quaestio t o e x p l o r i n g* This article is a revised version of a talk delivered o n 28 June 2001 before a m eeting of theEcclesiastical Law Society held at the Inner Temple. The following abbreviations are used inthis article:BI Borthwick Institute of Histo rical Rese arch, YorkBL British Library, Lo ndo nCCA Cathedra l Library, Ca nterbu ryCU L Cam bridge University LibraryLJ R O Lichfield Joint Re cord OfficeRO Record OfficeTh e following system of citation to th e texts of theins communeis used:Dist. c. Decretum Gratiani,Distinctio 1, can. 1C. q. c. Ca usa 1, qua estio 1. can. 1X 1.1.1 Deere talesGregoriiIX , Lib. 1. tit. 1. cap. 1Cod. 1.1.1 Codex Justinianus, Lib. 1, tit. 1, lex 1gl.orcl Glossa ordinaria1 For an indication of some of the scholarly disagreements, see Hostiensis, Summa aurea(Venice 1573), Lib. V, tit.De accusationibus,n o. 5.


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their impo rt in Cau sa two of theD ecretum.It also appeared in the Gregorian Decre-tals.Two famous decretals of Pope Alex ande r III (d. 1181),Cum P. ManconellaandDe caetero,stated the rule plainly: In criminal m atters, 'laymen are not to be admit-ted either in accusing or testifying against the clergy'. 2 This prohibition became acommonplace of the classical canon law.'Several justifications were advanced in favour of the prohibition. One was drawnfrom a biblical example. When Jesus cleansed the Temple of money chang ers, he didso himself He did not employ other men to do the work for him. So the church, fol-lowing his example, should do its cleansingitself 4Other s rested on analogies to basicprinciples and texts of the canon and civil laws. Just as a son was prohibited frombring ing a public criminal a ccusation against his own father, so should the sp iritualsons of the church be prohibited from accusing their spiritual fathers. It pervertedthe right order of society for sons to set themselves up injud gm ent over their fathers.The same reasoning applied to complaints by inferiors against superiors, and thiswas tho ug ht to ba r the laity from takin g legal action against the clergy.5Still othe r justifications for the rule rested u po n some basic assu m ption s underlyingthe canon law. Ancient principles held that the clergy and the laity were two distinctand separ ate o rders of society. Insofar as possible a distance was to be kept betweenthem.6 Thus clerics should not accuse laymen before temporal courts, and laymenshou ld n ot accuse clerics before spiritual co urts. A more utilitarian reaso n given forthe rule depe nde d o n wh at might be called utilitas ecdesiae, that is promotion of theinterests of religion and the church. The laity should be taught to love their pastorsand to obey them.7 Although pastors sometimes made mistakes, in the long run itwas preferable to keep the sheep from reproaching them. It would not do to havethem call their ma ster's every action into qu estion. N o flock pros pers thereby, and inaddition it could be said that the virtue of humility was taught by this rule. A finaljustification rested upon legal presumptions about probable intent. Accusationsshould be not be accepted from a person's enemies. What the canonists had beentaug ht to regard as a trad ition al h ostility of the laity against the clergy created a pre-sum ption that accu sations m ade by the former were being made ou t of enmity for thelatter.8Such accu sations oug ht therefore to be excluded und er the law.All of these justification s now seem like var iations on a theme. It was the avowed aimof the canon lawyers of the twelfth and thirteenth centuries to secure the indepen-dence and strength of the chur ch's pos ition in society. TheDecretumgrew out of thegreat movement for reform of church and society, one of the aims of which wasthe increase of sacerdotal power in the world.9 The rule against accusations beingbrought against the clergy by the laity served that aim. This was not a matter of: X2.20 .14 :X5.1 .10 .3 See, e.g., An gelus de Clavasio , Summa Angelica (Nuremberg 1492), s.v. Teste.no.18.,stating the rule plainly an d citing C. 2 q. 7 c. 38; Willelmus Du rantis, Speculumiudiciale (Basel 1574, repr. 1975), Lib. Ill, Pt. 1, tit. De accusations 3, no. 2; Pan-ormitanus. Com mentaria in libros Decretalium(Venice 1617), ad X 5.1.12, nos. 5-6.4 C . 2 q . 7c 15.5 C. 2q . 7 c. 9. See alsogl ord.ad X5 7 12s.v.quisque tenetur.6 C. 12 q. c. 7: 'Duo sunt genera Christianorum . See alsogl ord.ad C. 2 q.7c. 6:'qu ia sicut discreti et separati sunt laici a conversatione clericoru m'.7 C . 2 q . 7 c . 8 .8 C . 2q .7c 5.9 Stanley Chodorow, Christian Political Theory and Church Politics in the Mid-Twelfth Century(Berkeley and Los Ang eles 1972), pp. 89-9 2.


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embarrassment to the clergy. The rule's purpose was not concealed in the justifica-tions given for the rule, and it was never simply a m atte r of pro ced ur al efficacy. M or ewas involved than the technical restrictions on the right to bring criminal accusa-tions found in the first title of the nin th b oo k of theC odex Justinianus.' The clergy'srightful place in society was at stake.As with most rules of the ius commune, the prohibition against lay accusationsagainst clerics admitted of exceptions. It would have been both impossible and un-wise to insist on the rule in all circumstances, and theglossa ordinariato A lexanderIll 's decretal listed two principal situations where the prohibition did not apply.First, the rule was inapplicable where the layman was prosecu ting an injury to h im-self or to his own property. If, for example, a clergyman feloniously took a layman'schattels, the layman injured thereby had every right to bring an accusation againstthe clericalthief But this rationale would not justify an a ccusation of neglect of dutyor adultery, for instance, except perhaps where the layman's wife was involved. Sec-ond, some crimes(crimina excepta) were regarded as so heinous in nature that theirpunishm ent was more imp ortant than uph olding the rule. Simony, heresy and trea-son were the textbook examples. In them, sons were in fact encouraged to accusetheir fathers, and the laity were permitted to accuse the clergy. In such cases, theargument from utilitasecclesiaecut the oth er way.Un der the classical canon law laymen co uld also play a subsidiary role in the vind i-cation of the criminal law. The inquisitorial procedure that was introduced, or atleast confirmed, by Pope Innocent III (d. 1216) was normally initiated by the exis-tence ofjamapublic a against a person.12 Widely held suspicion held by persons ofgood repute took the place of an accuser. The procedure did not spare men in holyorders , and pub lic fame sufficient to warr ant starting crimin al proceeding s against acleric migh t easily circulate am on g the laity. So could inqu isitorial crim inal proce ed-ings be brought against individual clerics. But the law held that such a role on thepar t of the laityreally as carriers of inform ation m ore tha n an ything elsedid notam ou nt to the right to initiate, or even to testify in, criminal proceedings. Th at rightand duty rested with the bishop.Medieval Court ProceedingsFor a lawyer and h istorian con cerned with app lication of the law of the chu rch, state-ment of the academic law leads naturally to examination of evidence found in therecords of the ecclesiastical courts. In particular it leads to the Act Books of thefifteenth century and the first years of the sixteenth, the first period for which suchrecords survive in any qu antity for the English chu rch. W hat they show is surprising .It turns ou t to be the opposite of what on e expects from having perused the writingsof the canonists. So far as I know, this evidence has n ot b een exam ined before in th elight of the canon law,13and quite ap art from its relevance in the mo der n c ontext, it111E.g., Cod. 9.1.12. restricting the right of women to bring criminal accusations.1' Gl ordadX5 1 10s v laicus.12 X 5.1.19. See generally, Richar d A . Fraher, 'The Theoretical Justification for the New Crim i-nal Law of the High Middle Ages: Rei Publicae Interest, Ne criminaremaneant impunita', 1984 University of Illinois Law Review, pp. 577-595 ; H enry A. Kelly, 'In-quisition and the Prosecu tion of Heresy: Miscon ceptions and Abuses', Churc h H istory 58 (1989),pp. 439-451.15 A considerable amount of scholarship has been devoted to assessing the conduct of theclergy in the years prior to the Reformation. Among them: Margaret Bowker, The SecularClergy in the D iocese of Lincoln 1495-1520 (Cambridge 1968), pp. 85-128; Peter Heath, Th eEnglish Parishclergy on the Eve of the Reformation (London a nd Toronto 1969); Ralph H oul-brooke,ChurchC ourts andthe Peopleduring the English Reformation 1520-1570 (Oxford 1979),pp. 173-213; Peter Marshall, The Catholic Priesthood and the English Reformation (Oxford1994).


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deserves to be known for what it has to say about the history of the ecclesiastical lawin England.In the fifteenth century, the records demonstrate clearly that many ex qfficioprose-cutions were in fact being brought against the clergy for alleged failures to live up totheir spiritual obligations. Many were begun at the initiative of the laity. Prosecu-tions against the clerics who presided over the home parish of the laymen involvedwere particularly frequent. These proceedings, whether initiated by the churchwar-dens or by other parishioners, appear to have violated the canonical prohibitionsagainst criminal accusations being made by laymen against clerical order. Indeed,they did violate the spirit of the pr ohib itions. Th ere were, itistrue, ways in which per-m itting these accu sations could be rationalised in formal term s unde r existing canonlaw. But surely more important is the substance: clerical discipline was being en-forced by lay men and women who had no apparent direct personal interest in thema tters at issue.A significant portion of these proceedings were brought for sexual offences, suchas the prosecution of John Payn, vicar of St Olave's in London, who was unluckyenough to have been 'caught in the fields committing adultery with a certainwoman' .14 or the apparently libidinous Robert Hag, beneficed in the city of York,who, it was claimed, 'lives so dishonestly th at he sends no w om an away unviolated'.1-The mo st consistent offender of these I have come upo n was the subject of a prose-cution brought in 1443 in the diocese of Hereford. The vicar of Clone was accusedof having lived in concubinage with Margaret ap Dod over an eight-year period andfathering four children by her.16 Perhaps there on the Welsh marches, clerical mar-riage still held on as an old cus tom , desp ite cen turies of effort to erad icateit It is hardto be sure. N or can on e be certain ho w best to evaluate many of the prosecutions in-volving looser allegations of acting suspiciously with a wom an that w ere initiated byparishioners. The allegations that were made, even iftrue, did not necessarily meanthat sexual relations had occurred between them . One should also keep in mind howmuch gossip there was in medieval parishes an d how me an spirited much of it was.Allegations of sexual impropriety are not. in any event, the most significant or evennecessarily the most numerous of the prosecutions that were undertaken against theclergy in the fifteenth century. The most significant from the modern vantage pointwere those for not up ho ldin g the religious and financial stan da rds ap prop riate to theclerical order. Admittedly, there is an element of anachronism present in drawingthis distinction. Clerical celibacy was a religious standard. However, assessing thelegal role of the laity, and their opinions towards church and clergy during thefifteenth century, requires m oving bey ond sexual peccadilloes.How to describe the na ture of these entries involving the clergy being bro ugh t beforethe cour ts at the behest of the laity? N o catego rization from the time exists and noneI could devise would be air tight, but probably one does not go too far wrong bytreating them under three headings: failures involving the sacraments: failures in-volving church property; and failures in other personal conduct. In all of them, lay-men were being allowed to invoke the church's disciplinary jurisdiction in thecentury or so before the Reformation.14 Ex officioc Payn (London 1470). Guildhall Library. London. Act BookMS.9064/1.f. 3v. Ex officioc Hag (London 1489), Guildhall Library, London. Act BookMS.9064/2. f. 206:inhoneste vivit quia nullam feminam dimittit inviolatam.'16 Ex officioc Dayo (Hereford 1443).Hereford RO.Act Book O/2.p.53.


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The first of these appears with surprising frequency, and the cases tend to showalthough they do not prove the importan ce of the church's services and sacramen tsto the fifteenth century laity. For exam ple, there is a case from 1447 brou gh t again stthe vicar of Mailing in the diocese of Rochester. Asked to come to the bedside ofTho ma s Draper to administer the Eucharist and the sacrament of extreme unction,he went instead to a tavern with a widow n am ed Joan Sa nd hu rst, saying that D rap erwas sure to live to the next day. Drap er did no t, an d the vicar found himself the de-fendan t in anex officiocase broug ht before the consistory co urt. Purposeful as wellas negligent failure to provide the sacr am en ts to the laity was also the subject of pros-ecutions begun by the laity. For instance, the 1470 Act Book of the CommissaryCourt of London contains the allegation that the rector of St Katherine Coleman refused to give the sacrament of the Eucharist to John White because he [White]would not let the rector have fifty pence.' 18Why the rector refused, the record is notfull enough to say. Perhaps White owed him the money. But withholding the sacra-ment from a parishioner was not a legitimate way of collecting a debt, and the eccle-siastical courts provided a forum for m akin g that p oin t. The sam e could be said of asuit initiated by the churchwardens of the parish of Emneth in Norfolk against thecurate there. They alleged that he 'refused to visit those of his [female] parishionerswho were ill before their purification'.1'9 Perhaps this curate's refusal was a not verysubtle way of encouraging them to come for the ceremony known as 'churching ofwomen', but it also landed him in a disciplinary case before his ecclesiastical court.The sick women had, it appears, something like a right to spiritual ministrations athis hands.Probably the most frequent of the cases involving the sacra me nts were those actionsbroug ht by a group of parishioners against either a monastic hou se or the incum bentofaparish church for failure to provide religious services. A fifteenth century prece-dent book from the diocese of Salisbury provides an example of the common form.The incoli or inhabitants of the hamlet of W. brought a causa subtractionis diviniservicii siveinrentionis capellaniagain st the vicar of G. It alleged tha t he had violatedthe duty to provide a clergyman for them acco rding to the term s u nder w hich his vic-arage had been established.2 It is worthy of par ticula r note that theseincoliweren otdepe nden t upon the diocesan bishop 's discretion or even his aid in seeking a remedy.They were given a direct right to sue in the ecclesiastical courts. Nor can the formu-lary be dismissed as mere theory. Th e Act B ooks con tain n um erou s cases brou gh t bylaymen to secure adequate spiritual ministrations of one sort or another. 21Suits brou ght to protect ecclesiastical pro perty against the clergy themselves a sec-ond categorypoint to an important aspect of parish government in the fifteenthcentury. Mu ch of it was put in to the h an ds of the laity, typically the elected chu rch-wardens. The mo st frequent of the suits involving ecclesiastical pro perty were thosebrought by the churchwardens against parsons for failing to keep chancels and vic-r Ex officioc Vicar of Mailing (Rochester 1447), Kent Archives Office. Act Book DR b Pa. 2,f.62.Seealso Ex officioc Vicar of Hollingbourne (Canterbury 1451), CCA. Act Book X .I .I .f.27:'dimisit vicariamsuaminofficiatamet indefectueiuspuer Thome Totman iacuit periidiesnon baptizatus'. Guildhall Library, London, Act BookMS.9064/1.f.5'Rector ibidem recusavit dare sacra-mentum Eukaristie Johanni Whiteexhoc quod non potuit habere ab eo d.'11Ex officioc Ade (Ely 1465), CUL, EDR LiberB,f. 24v: 'recusat visitare infirmas parochi-anas ante purificationem earundem'.: WiltshireRO..Trowbridge,MS.Dl/45/1,f. 1710.: i E.g., Ex officioc Pope, vicar of Aldeburgh (York 1441), BI, Act BookD/C.AB1,f. 99: Exofficio c. Warde (London 1484), Guildhall Library, London. Act Book MS. 9064/2. f. 94v(withholding chantry services); Parishioners of Overton c. Bruce (Hereford 1492), HerefordRO.Act Book I/I,p.30v: 'causa subtractionis divini officii'.


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arage hou ses in rep air. Th e laity of the parish were not co ntent to leave it to the par-son's successor to sue for dilapidations. And a few of these cases were quite pic-turesque, if that is the word, like the attempt in 1467 to require the parson ofWisbech in the diocese of Ely to produce the two surplices the churchwardensclaimed belonged to the parish, not to the parson. 23 In any event, the church's rulesagainst alienation of ecclesiastical property were apparently being enforced in pro-ceedings initiated by parish ione rs or their representatives.The third categorya catch-allconsisted of attempts by parishioners to correctthe m oral c on du ct of the clergy. I have already m ention ed the sexual cases. But alle-gations of consistent drunkenness,

24 sodomy,

25simony,

2'1revealing sec rets learne d inconfession,27holding incompatible benefices,28or habitual non-residence29that werebrought against the clergy are also not hard to find in the Act Books of the centurybefore the Reformation.30 A few of them seem quite fantastic, such as the casebro ug ht against the vicar of Fen ton in Yorkshire in 1518. A m on g othe r misdeeds, hewas alleged to have fathered two illegitimate childre n, to have dressed in female g arbwhile he was saying vespers, and to have heard the confessions of his parishionerswhile he was drinking in a tavern.31 It seems very like some of what one reads intoday's newspapers.

The court records sometimes put disciplinary matters like these under more generalheadings, like cases brought for 'causing dissension among the parishioners' 3 2 orproceedings initiated supposedly 'for the correction of the soul' of the cleric.33Justhow these clerical souls needed co rrection , the formal reco rds do no t alwayssay.On eassumes greater specificity would have been required at trial. But it is evident in anyevent that parishioners were complaining about one sort of failing or another on thepa rt of their own clergy, finding fault w ith men w ho were 'acting mo re like peasantsthan priests' .3 4The resu lts were legal pro secu tion s to discipline the clergy, even som e-22 E.g., Presentment of parish of Wisbech (Ely 1480), EDR, Liber B, f. 30: 'Yconomi presen-tant quod cancellus patitur defectum in fenestris in defectu rectoris et vicarii adeo quod can-delabria et alia ornam enta ecclesie detu rpa ntur et deteriore ntur' . O ther examples: Ex officio c.H am on d (H ereford 1442), Hereford RO , Act Bo ok O/2, p. 67; Ex officio p rom oto c. Twys(Lichfield 1468), LJ RO , Act B ook B/C/l /1, f. 216v; Ex officio c. Brown (Canterbury 1470),CC A, Act BookY.I.11.f. 110.25 Presentme nt of Parish of Wisbech (Ely 1467). CU L, E D R LiberB,f. 26.24 Ex officio c. G oo dg am (W inchester 1523), Ha mp shir e R ecord Office. Act Book21M65/C1/2, f. 8: 'super delicto ebrietatis'.25 Ex officio c. Benet (York, 1410), BI, Act B ook D /C .A B. l, f. 21: 'comm isit peccatumsodom iticum cum diversis hominibus eiusdem ville'.26 Ex officio pr om oto c. Rule (Lichfield 1464), LJR O, Act Book B/C/l /1.f. 2v: 'negotium cor-rectionis sive symoniace pravitatis' .27 Ex officio c. Cok e (C ant erb ury 1469), C CA , Act BookY. 1.11,f. 57v: 'notatur quod revelavitconfessionem Agnetis filie sue spiritualis'.28 Ex officio c. Aunsw ell, Here ford RO , Ac t Book O /27, pp. 93 -4 (1517).29 Ch urchw arde ns of Pedewel c. Pedewich (Bath and Wells 1459), Somerset RO. Tau nton. A ctBook D /D /C a 1, p. 296: causa non residencie .311 See also the many examples in William Hale, A Series of P receden ts anil Procee dings inCriminal Causes, 1475-1640 (3d ed. Edinburgh, 1973). Index (pp. 170-171). s.v. Clerical Mis-conduct .31 BI, Act Book D/C .AB .2, f. 206v.32 Ex officio c. Pecok (Canterbury 1514), CCA, Act Book Z.3.3,f. 6v:Lde communi rixationeet litium suscitatione inter paroch ianos et pom posa ostentation e in locis mercati ' .31 E.g., Ex officio c. Spake (Lichfield 1464), LJRO, Act Book B/C/l /1, f. 5: 'causa correctionisanim ae dom ini Th om e Spake re ctoris ecclesie parochialis de Crayton Basett ex officio ad pro-mo tionem Roberti Gilson de eadem paro chia' .34 Ex officio c. Kay (Arch dea con ry ofStAlbans 1515), Hertford RO, Act Book ASA 7/1.f. 5v:' laborando tam ante missam quam post ad instar rustici potius quam presbiteri ' .


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times to force their deprivation un der the rubric of acausaprivatioms. Mo st of thecases were settled well short of that extreme sanction.' 6 Negotiat ion and accommo-dation were routinely tried. But offending clergy were sometimes requ ired to do p ub -lic penan ce for their offences, and in term ediate sanc tions like sequ estration of theincome ofa benefice or temporary suspension from office were available and in factsometimes applied.'8From a legal point of view what is interesting about all these cases is not the repeti-tion o r the scale of allega tions of clerical m isco nd uc t. It is far from certa in th at all theallegations were true, and in any event the huge clerical army of the fifteenth centurywas bound to contain its share of reprobates. What is interesting from the point ofview of the canon law is that the laity were being perm itted to b ring the allegations,directly or indirectly, before the courts. The practice appears to have been contraryto the intent of the classical canon law, which reserved such accusation s to the bish opor his agents.How was this violation of the can on law justified? Th ere is little explicit discussion ofthe subject to be found in the works of the late medieval canon ists. Simple de suetu deis certainly one possibility. That was the fate of much of the canon law. However, themo re likely answer is that the result was reached by stretch ing the categories an d p ro -cedure available under the law. It could reasonably have been said, for example, thatthe laity were merely serving the function ofbringingfama publicato the attention ofthe bishop's officials inex officiocases. They w ere no t therefore 'accu sers ' in the tech-nical sense of the word . This reasoning wou ld have fitted the inquisitorial pro ced ureauthorised by Pope Inno cent I II. Indeed, this may have been pa rt of a more generalmovement in the church. Ecclesiastical courts in other areas of Europe would alsoseize upon this justification for allowing indiscrim inate accu sations to be bro ug htagain st th e clergy.'''Other justifications could also have been advanced for reaching this result. Forinstance, it might be said ofex officio promote jurisdiction, in which laymen wereallowed to invoke the jurisdic tion of an ecclesiastical cou rt to br ing a c om plain tagainst their clergy, that this was not formally inconsistent with the canonical rule,because in theory pros ecution rested with the jud ge even thoug h in fact the laymencond ucted it. O r it could have been said that the cases involved a n exception for 'p ub -lic crimes'. Wh ere public crimes were involved, laymen were perm itted to invoke thecriminal jurisdiction of the cou rts, and even such 'crim es' as failure to ca re for a p ar-sonage might be defined as one affected with a public interest.40 It was, in effect, an35 E.g., Ex officio c. Ludlow (Lichfield 1464), LJR O, Act Boo k B/C/ l /1 .f. 5v: 'caus a priva tio-nis domini Thome Ludlow, . . . . ex officio et ad promotionem parochianorum ibidem'; Exofficio promoto c. Lawes (Bath and Wells 1528), Somerset RO. Taunton, Act Book D/D/Ca 2,p. 56 .

' In a 1527 letter to Cardinal Wolsey, Richard Fox (d. 1528), successively bishop of Exeter.Durham and Winchester, himself claimed that he had never deprived a man in the more thanforty yea rs he had been a bish op. See Letters of Richard Fox. 1486-152 7, P. S. Allen an d H . M .Allen eds. (Oxford 1929), p. 151.17 E.g., Ex officio c. Grene (York 1443). BI, Act Book D/C.AB.l, f.98: Lquod incedat coramprocessione in ecclesia cathedrali Ebor' nudis tibiis et pedibus. superpellicio suo tantummodoindutus per sex dies do m inc ale s, . . . ' .38 E.g., Preben dal church of Bu gtho rp (York 1434), BI, Act Boo k D /C .A B .l. f. 94 (Sequ estra-tion of revenues at complaint of three parishioners against the vicar).w See Ca rd. Dome nicus Tuschus (d. 1620),Practicarum conclusionum iuris in omni foro fre-quentiorum (Lyons, 1634). Vol. A, Conc l. 160: '[IJstae fallentiae ra ro vel nu nqu am ad m ittu ntu rquia iudices communiter procedunt ex officio et per inquisitionem etiam si nullus accusat'.40 It was so said by Julius Cla rus (d. 1575),Practice/aiminalis (Venice 1595), Qu aes t. 14,no. 21.It is worth noting, however, that Clarus gave the traditional rule and did not qualify it by say-ing it was poorly ob served in practic e, as he in fact did in several othe r instanc es.


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actio popularise Or it could even have been claimed in the suits where parish ionerssued in their own name to recover spiritual services, that this was merely giving abroad meaning to the term interest'standing' i t would be called in modern legalparlancebecause the canon law always allowed them to vindicate their own per-sonal rights and interests before an ecclesiastical cou rt. Th e suits were being brou ghtas much to secure adeq uate spiritual min istration s as they were to punish the clericsinvolved. As this was a recognised distinction in the canon law, it might have beenclaimed th at this purp ose justified what might otherwise have seemed to violate thecan on law's pro hibition s. All these justifications are admittedly guessesrationalesonly hinted at by the records themselvesnot reasons that were the subject ofrecorded discussion at the time. But the fact remains: the laity were initiating prose-cutio ns in the ecclesiastical cou rts again st the p aroch ial clergy.Modern Q uestionsA final question is the mo de rn relevance of this evidence. I wan t to raise two points.42The first is its relation to the recent controversy about the attitude of the laity to reli-gion in England prio r to the Reform ation. Ma ny read ers will be familiar w ith it. Theolder viewthough I am myself just old enough to remember when it was itself arevisionist positionis associated with the scholarship of A.G. Dickens.43 It holdsthat fifteenth and early sixteenth century English men and women had a hunger form ore satisfying spiritual fare than the formal, clerically do min ated religion of medi-eval Catholicism, and that, among other things, this spiritual hunger manifesteditself in a kind of anti-clericalism that was its inevitable conseq uence. T he Reforma-tion built upon a base of religious opinion widely held among the English people.They welcomed a l i turgy they could understand. The Reformation was a naturaloutgrowth of the attitudes of the laity, not simply an act of state. The newer, revi-sionist view is associated with the work of J. J. Scarisbrick and Eamon Duffy.44 Itholds that there was widespread, popular support for traditional Catholic devo-tional practice in the centu ry before the Refo rmation , and along w ith it went a gen-eral respect for church and clergy. The Reformation was forced upon an unwillingpop ulace. W hatever anti-clericalism existed in sixteenth centu ry Eng land was likelyto have been the result of the R eform ation, no t its cause. Th e sacram ental pow ers ofthe clergy were objects of veneration , no t indifference or derision, am on g the people.These two positions seem quite inconsistent. At least their proponents have notfound much common ground. Nevertheless it can be said that the evidence fromthe court records provides a measure of support for both sides. Indeed it may sheda little new light on the subject. On the one hand, it supports the revisionist view,because it shows the attachment of the laity to existing ecclesiastical institutions.Parishioners would not have undertaken the expense and trouble of bringing suit tocompel the performance of church services unless they had cared about them. Theywere not indifferent abo ut the su bstan ce of their religion. On the other han d, the evi-dence from cou rt rec ords also su pp orts the older view, because it shows that the laitywere not simply passive and happy recipients of the sacraments at the hands of41 It was so classified, for example, in the notebook of a seventeenth century English civilian:seeComm onplace book. British Library, Add. MS. 72544A, f. 5v.42 Ileave as ideitsrelevanceto the so-called Stubbs-Maitland controversy, because Ihaveal-ready expressed my readingofthe anachronistic charac ter ofthat controversyatsome lengthinRoman Canon Law inReformation England (Cambridge 1990), pp. 4-20.41 See A. G. Dickens. Lollards andProtestants in theDioceseof York:1509-1558 (Oxford1959).44J. J. Scarisbrick.The Reformation and the English People(Oxford 1984): Eamon Duffy,T heStripping of the Altars: Traditional Religion inEngland, C.1480-C.15H0 (New Haven. Conn..1992).


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a revered clergy. Laymen had a mind of their own about their religion. They werenot shy about asserting it. They took the initiative. I would not myself call this 'anti-clericalism' on the part of the laity, but neither would I call it 'pro-clericalism'. 45 Itwas a concern for their own spiritual welfare backed by the right to do somethingabout it. This was a prominent feature of religious sentiment in England during thefifteenth and early sixteenth centu ries. One of the merits of the reco rds of the ecclesi-astical courts is that they b ring that feature into the light.The second point involves clerical discipline today. Here it would be an obv ious m is-take to claim a great deal for a study based on records compiled hundreds of yearsago. But the present is worth co nsidering in light of its past. T here are parallels in thelaw of the two eras, though also many differences. I mention two. First, today thechurch is governed by rules designed to prevent irresponsible accusations beingmade against the clergy. Under the Ecclesiastical Jurisdiction Measure 1963, forexample, the consent of six or more persons, all of whom must be on the electoralroll, is required before a complaint against a cleric can be prosecuted. 46 Under theIncumbents (Vacation of Benefices) Measure 1977, the similar requirement is two-thirds of the PCC.47Second, there is the reservation of power of decision in the dio-cesan bishop. Und er the Ecclesiastical Jurisdiction M easu re 1963, up on pro percom plaint being mad e, it is the bisho p who 'shall either decide that no further step betaken' or else 'refer the complaint for inquiry by an examiner', after he has inter-viewed the accused an d the co m plain ant in private. If he decides against proceed ing,'no further action shall be taken by any person in regard thereto'. 4 8 Under theIncum bents (V acation of Benefices) M easu re 1977, it is the bish op w ho, after initialinvestigation and failure of attem pts at med iation, may 'if he thinks fit, direct the sec-retary of the diocesan syn od to institute such enq uiry'. 4 9These rules both have the effect of reserving clerical discipline to the officers of thechurch. That was the same result promised by the rules of the classical canon law.I do not sayindeed I do not thinkthat the motivation is identical. There is lessdivision m ade between the spheres of clergy and laity in today 's law, an d thereisevengreater desire to settle matters thr ou gh m ediation and reconciliation tha n was true inearlier centuries.50Th e similarity in outco m e is none theless striking. In bo th systems,complaints heard before ecclesiastical tribunals against the clergy for immoral andcriminal behaviour are to be chok ed off insofar as possible. That m ay be sensible. Buteven making allowance for the many differences between the fifteenth century andthe twenty-first, the history of what happened to the medieval church's rules standsas a warning against over-confidence on our part in the wisdom of such efforts toavoid litigation. The interests the laity asserted in the ecclesiastical courts in the cen-tury or so before the Reformationand continued to assert afterwardswere realand imp ortan t interests. They w ere vital pa rts of main tainin g the laity's spiritual wel-45 On anti-clericalism and for a review of the literature, see Joseph Block,F actional Politics andthe English Reformation, 1520-1540 (Woodbridge 1993) and Richard A. Cosgrove, 'EnglishAnticlericalism: A Programmatic Assessment , in: Anticlericalism in late mediev al and earlymodern Europe,Peter Dykem a a nd Heiko O berm an eds. (Leiden 1993). pp. 569-581 . The ini-tiative of the laity is also one theme of Lawrence G. D ug gan , 'The Unresponsiveness of the latemedieval Church: A Reconsideration, Sixteenth Century Journal9 (1978), pp. 3- 26, at p. 8.46 Ecclesiastical Jurisdiction Measure 1963,s 19(b), cited in Ma rk Hill,Ecclesiastical Law,2ndedn . (Oxford 2001), p. 346.4 Incum bents (Vacation of Benefices) M easure 1977, s lA(l) (c) (renumbe red by the Incum -bents (Vacation of Benefices) (A me ndm ent) M eas ure 1993, s i ) : see Hill, p. 401.48 Ecclesiastical Jurisdiction M easu re 1963, s 23(1), (2): see Hill, p. 347.49 Incumbents (Vacation of Benefices) Measure 1977, s 3(1) (amended by the Incumbents(Vacation of Benefices) (Am end me nt) M eas ure 1993, s 3(2)): see Hill, p. 403.' Norman Doe,Canon Lau in the Anglican Com munion (O xford 1998), pp. 78-80.


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fare,as the laity them selves saw it. To witness that interest b eing asserted , ap pare ntlyin the teeth of the canon ical rules, is one of the reward s and one of the lessonstobe derived from the study of the law as it was put into practice in England's spiritualcourts.

LON DO N LECTU RES 2002

Date and time Wednesday, 24 April 200 2,5.30 6.30p.m.Speakers The Revd Justin Welby, rector of St Jam es SouthamMrs Isobel Chapman, diocesan secretary for CoventrySubject Business and administration practice in the diocese ofCoventry

Date and time Wednesday 19 June 200 2,5.30 6.30 p.m.Speaker Dr Augur Pearce, Centre for Legal Research and PolicyStudies, O xford Brookes UniversitySubject Episcopacy and the Common Law

Date and time Wednesday 11 September 20 02 ,5.3 06.30 p.m.Speaker Anthony Jeremy, solicitor, research fellow at the Centre forLaw Religion, University of CardiffSubject Incitement to religious hatred

Date and time Wednesday 27 November 20 02 ,5.3 06.30 p.m.Speaker Charles Mynors, chancellor ofthediocese of WorcesterSubject Disability rights and the Church

Th e venue for all lectures isSerle Court, 6 New Square, Lincoln s Inn, LondonWC2A 3Q5. The Ecclesiastical Law Society is grateful to Serle Court forprovidin g its seminar roo m for these lectures.

disciplina de los clerigos, medieval y moderno

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