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Ecclesiastical Lawyers and the English Reformation

Published online by Cambridge University Press:  31 July 2008

R. H. Helmholz
Affiliation:
Professor of Law in the University of Chicago

Extract

Too little is known about the history of the profession of ecclesiastical law. It is a good subject for research. The Prefect of the Vatican Library once described the medieval English ecclesiastical lawyers as a ‘much-maligned class’ that has commonly been held responsible for a great many of the ills that afflicted the English Church. He was restating a not uncommon judgment among historians who have been obliged by their subject to say something about ecclesiastical lawyers. But it is a statement about public perception rather than actual conditions among these lawyers. There needs to be somewhat more of the latter. We do know something about the top of the profession, the advocates and judges of Doctors' Commons. The rest of the landscape is almost wholly terra incognita. About the diocesan registrar, the backbone of the profession, there is only one article – a good article to be sure – but only one: that published in 1976 by Rosemary O'Day. There is much more to be done.

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Articles
Copyright
Copyright © Ecclesiastical Law Society 1995

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References

1. Boyle, Leonard, ‘The Summa summarum and some other English Works of Canon Law’, in Pastoral Care, Clerical Education and Canon Law, 1200–1400 (1981) XV, pp.415-16.Google Scholar

2. E.g., Davies, C., ‘A Reformation Dilemma’, Journal of Ecclesiastical History 39 (1988) p.63CrossRefGoogle Scholar: ‘rusty and it was held in general disrepute’.

3. See also the pioneering article about the income of the clergy more generally: Kümin, Beat, ‘Parish finance and the early Tudor clergy’, in The Reformation of the Parishes, Pettegree, Andrew ed. (1993) p.44.Google Scholar

4. Squibb, G. D., Doctors’ Commons: a History of the College of Advocates and Doctors of Law (1977)Google Scholar is the principal study. Also valuable are: Coquilette, Daniel R., The Civilian Writers of Doctors' Commons, London (1988)Google Scholar; Levack, Brian P., The Civil Lawyers in England 1603–1641 (1973)Google Scholar; Senior, W., Doctors’ Commons and the Old Court of Admiralty (1922)Google Scholar; Logan, F. Donald, ‘Doctors' Commons in the Early Sixteenth Century: a Society of Many Talents’, Historical Research 61 (1988) pp.151–65.CrossRefGoogle Scholar

5. This can be appreciated by reading a valuable review essay, which is almost totally devoid of treatment of legal practice: Allmand, C. T., ‘The Civil Lawyers’, in Profession, Vocation, and Culture in Later Medieval England, Clough, Cecil H. ed. (1982) pp.155–80Google Scholar. Brundage, James A. has recently made a start; see his ‘The Bar of the Ely Consistory Court in the Fourteenth Century: Advocates, Proctors, and Others’, Journal of Ecclesiastical History 49 (1992) pp.541-60CrossRefGoogle Scholar. He reached the conclusion that in the late fourteenth century at least, ‘the lawyers and judges of the Ely consistory court constituted a well-defined and relatively prosperous upwardly mobile professional elite’.

6. The role of the registrar in diocesan administration’, in Continuity and Change: Personnel and Administration of the Church in England 1500–1642 (1976) pp.7794Google Scholar. There is also useful information to be found, albeit for a later period and for one court only, in Duncan, G. I. O., The High Court of Delegates (1971) pp. 190-96.Google Scholar

7. I agree entirely with the view on this point expressed in MacCulloch, Diarmaid, The Later Reformation in England 1547–1603 (1990) pp.67.Google Scholar

8. The story is well worked out by Houlbrooke, Ralph, ‘The Decline of Ecclesiastical Jurisdiction under the Tudors’, in Continuity & Change: Personnel and Administration of the Church in England 1500–1642, O'Day, Rosemary & Heal, Felicity eds. (1976) pp.239–57.Google Scholar

9. E.g., Ingram, Martin, Church Courts, Sex and Marriage in England, 1570–1640 (1987) pp.1215Google Scholar; Ritchie, Carson I. A., The Ecclesiastical Courts of York (1956) pp.6264.Google Scholar

10. Levack, Brian P., ‘The English Civilians, 1500–1750,’ in Lawyers in Early Modern Europe and America, Prest, Wilfrid ed. (1981) p. 109.Google Scholar

11. See Houlbrooke, Ralph, Church Courts and the People during the English Reformation 1520–1570 (1979) p.28.Google Scholar

12. Conset, Henry, The Practice of the Spiritual or Ecclesiastical Courts (1685) Part VI §§36.Google Scholar

13. ‘William Colman's Precedent Book’, in Suffolk Record Office, Bury St. Edmund's, MS.E 14/11/2, no. 129 (early 17th century).

14. Taken from Act book B/C/2/1, Jt. Record Office, Lichfield, , and Neve, John Le, Fasti Ecclesiae Anglicanae 1300–1541, Coventry & Lichfield Diocese, B. Jones comp. (1964) p.3.Google Scholar

15. Hampshire Record Office, Winchester, Act books C 2/2 (1526–30) and C 2/3/1 (1541–49). He was not the sole judge, however. Edmund Steward also acted as official principal.

16. ibid. The other proctor, John Southwood, seems to drop out in the Act book during the course of the 1520s.

17. See, e.g., Kitching, Christopher, ‘The Prerogative Court of Canterbury from Warham to Whitgift’, above note 8, pp. 191213.Google Scholar

18. See, e.g., Brown, Sandra, The Medieval Courts of the York Minster Peculiar (York 1984) 29Google Scholar and, more generally, the discussion in Barber, Paul, ‘What is a Peculiar’ (1995) 3 Ecc.L.J. pp.299312.CrossRefGoogle Scholar

19. Precontracts and Degrees of Consanguinity 1540, 32 Hen. 8 c.38; Restoration of Jurisdiction to the Crown 1558–59, 1 Eliz. 1 c. 1 § 3.

20. 25 Hen. 8 c. 19.

21. The standard edition is The Reformation of the Ecclesiastical Laws, Cardwell, E. ed. (1850)Google Scholar; it has recently been translated in Spalding, James C., The Reformation of the Ecclesiastical Laws of England, 1552 (1992).Google Scholar

22. E.g., 23 Hen. 8 c. 9, enacting that no person should be cited out of the diocese where he lived at the time of citation was interpreted by the civilians to authorise appointment of someone within a diocese to receive process in the name of the person cited, despite the person's absence from the diocese.

23. They were John Rokebye and George Palmer. Taken from the headings of consistories in act books, Borthwick Institute of Historical Research, York, Cons.AB.14, Cons. AB.18, Cons. AB.21, and Cons.AB.22.

24. He acted initially as official to the archdeacon of Canterbury; see Woodcock, Brian, Medieval Ecclesiastical Courts in the diocese of Canterbury (1952) p. 120Google Scholar. For appearances in the commissary courts, see Canterbury Cathedral Library, Act book Y.2.16, f.72 (1547) and Act book Y.2.19, f. 105 (1559).

25. They were Richard Farley, Reginard Beysley and William Turnbull.

26. They were Thomas Standevin, John Todde, Christopher Beisley, John Wright and John Shellito.

27. They were John Dornell and Roger Lewes. Taken from Hereford County Record Office, Hereford, Act books 1/6 and 1/7; there is a lacuna for the years 1538–52.

28. Taken from Hampshire Record Office, Winchester, Act books C2/3/1, C2/4 and C2/5.

29. Besides the examples given below, see Houlbrooke, Ralph, Church Courts and the People, above note 12, p.26Google Scholar, with references to ‘long serving chancellors at York, Chester, Chichester, and Gloucester’, to which he adds Miles Spencer, also archdeacon of Sudbury, who served as official at Norwich from 1531 to 1570.

30. See Fasti 1541–1857, York Diocese, p. 13.Google Scholar

31. Fasti 1541–1857, Canterbury, Rochester and Winchester Dioceses, p.15.Google Scholar

32. ibid. p.84.

33. Fasti 1541–1857, Salisbury Diocese p. 18Google Scholar, stating merely that he had been deprived by 1564.

34. Fasti 1541–1857, Canterbury, Rochester and Winchester Dioceses, p. 104.Google Scholar

35. The two continuing were John Pottinger and Gilbert Mather; the three who had died were Nicholas Hooker (or Hocker), Robert Raynold and John Lichfield; the deprived cleric was Nicholas Harpsfield, who had become archdeacon of Canterbury in 1554. Taken from act books listed above in note 28. For Harpsfield, see Fasti 1541–1857, Canterbury, Rochester and Winchester Dioceses, p. 15.Google Scholar

36. They were Michael Brown and Simon Beare. Taken from Devon County Record Office, Exeter, Act books, Chanter MSS. 778 and 779. The disappearance of the act books from the twenty-five year period before 1560 prevents description of what happened to the other four men.

37. Taken from Joint Record Office, Lichfield, Act books B/C/2/4 and B/C/2/5.

38. See the judicious comments in Smith, Lacey Baldwin, Tudor Prelates and Politics 1536–1558 (1953) pp. 4447.Google Scholar

39. The Reformation and the English People (1984) p. 162.Google Scholar

40. E.g., Decretum Gratiani Dist. 63 c. 12; Dist. 62 c. 2.

41. E.g., Panormitanus, , Commentaria in libros decretalium (1617) ad X 1.6.2 (Osius)Google Scholar, no. 4, dealing with episcopal elections and stating the standard canonical rule against lay participation; Joannes Bertachinus, Repertorium (1590) tit. Blasphemia, dealing with the definition of blasphemy and rejecting the argument that custom among the people could legitimize otherwise blasphemous language; Mascardus, Josephus, Conclusiones omnium probationum (1593), Lib. II. Concl. 749Google Scholar, detailing the safeguards against allowing public opinion to constitute proof in the ius commune.

42. For what follows, see Friedberg, Emil, De finium inter ecclesiam et civitatem regundorum judicio (1861) pp. 87154Google Scholar; Eichmann, Eduard, Der recursus ab abusu nach deutschem Recht (1903)Google Scholar; Poudret, Jean-François, ‘Un concordat entre Amédée et le clergé Savoie au sujet des compétences des cours d'Église et des censures eccclésiastiques,” in Mélanges offertes à Jean Dauvillier (1979) pp.655-75Google Scholar; Blanco, Antonio Martínez, Introducción al derecho canónico (1991) pp.139-46.Google Scholar

43. For a contemporary example, see Francisco Salgado de Somoza (d. 1664), Tractatus de regia potestate (Lyons 1647), Pt. 1, c. 1, prae. 1, no. 56.

44. I have tried to describe the various forms of this literature in Roman Canon Law in Reformation England (1990) pp. 121-57.Google Scholar

45. The origins and a full description of this development remain to be worked out; for a general description see Clarke, Francis, Praxis in foro ecclesicastico (Dublin 1666) tits. 9293.Google Scholar

46. Marchant, Ronald A., The Church under the Law: Justice Administration and Discipline in the Diocese of York 1560–1640 (1969) pp.229-30Google Scholar; Roman Canon Law in Reformation England, above note 44, pp. 104-17.Google Scholar

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