2. Mortuary customs

Up until 1530, mortuaries were chattels. If money were paid in lieu, then it was given in commutation, in effect for the redeeming of the item. Mortuaries were divided into animals and objects. Richard Snede provided a good working definition: ‘A mortuary is always called the best beast of the live cattle that the dead man had, and if he did not have live cattle the best of his other goods, such as a chain, jewel or suchlike’.Footnote ¹⁶ The emphasis on ‘the best’ was reflected in an alternative name for a mortuary being a ‘principal’.Footnote ¹⁷ In fact, where a beast was due, the parson often settled for the second-best animal, because the very best was owed to the lord of the manor as a heriot (a duty levied on the estate of a deceased tenant).Footnote ¹⁸ In places such as Reed (Hertfordshire), the parson took third place, behind not only the lord but also the relict of the deceased.Footnote ¹⁹ The animals given as mortuaries were horses, oxen, cows and sheep. Parochial custom might restrict mortuaries to a single species.Footnote ²⁰ Sometimes, the animal was led before the coffin into church. In 1526, an inhabitant of West Wittering (Sussex) recollected how, ‘when olde sodes [Sod's] wif vent [went] to beryng he se a cowe go be fore the corse’.Footnote ²¹ This ritual produced another synonym for a mortuary: ‘foredrove’. One animal per mortuary was the norm. In Thirsk (Yorkshire), however, Newburgh Priory (to which the rectory was appropriated) claimed five sheep from parishioners who had owned no other (more valuable) animal.Footnote ²² Where available, an animal was preferred to an object. This was the rule in the province of Canterbury, but not York. Margaret Harvey has found that, in the dioceses of Durham and Carlisle (though not York itself), both an animal and an object were widely due.Footnote ²³ Two items could also be given to a single individual or institution where they held both the rectory and the lordship, though only one of these was a mortuary (the other being a heriot).Footnote ²⁴ Similarly, in an unappropriated rural parish, tenants of the glebe owed a heriot to the rector as their landlord by virtue of his manorial jurisdiction over the glebe.

If an animal was not handed over, then an object was. The kind of object given as a mortuary was more diverse. The usual specification was that it should be the ‘best thing’ (optima res). Implicitly, this seems to have been confined to something worn or at least closely associated with the individual's person.Footnote ²⁵ The giving of a gun as a mortuary must have been a rarity.Footnote ²⁶ Snede's chains and jewels would have come from well-to-do individuals. In 1514, the abbot of St Mary Graces in London sued for a gold necklace worth the large sum of £20.Footnote ²⁷ The less well-off gave clothing, gowns in particular, or bedding. In the case of Stephen Hunne, it was ‘A Beryng Shete’: here the object was determined not by Stephen's poverty (his father being a wealthy man), but rather by his very young age. When Stephen was only five weeks old, his father had delivered him, wrapped in the sheet, for wet-nursing to a woman who lived in Whitechapel. Stephen died only a matter of months after his arrival and was buried in the parish. The rector's claim was for his ‘best garment, cloth or vestment or other best thing whatsoever’. The term ‘bearing sheet’ commonly described the cloth in which a baby was wrapped, especially after childbirth and at baptism. Of some sentimental significance, such a cloth could be regarded as an heirloom. Stephen's sheet was worth 6s. 8d.: relatively high for a sheet, this sum suggests its fineness and hence its special use.Footnote ²⁸ Stephen's father may have been loath to part with something so meaningful. Overall, mortuaries comprised a wide range of objects and animals. They included items of considerable monetary, practical and likely also emotional value.

Most categories of people were liable for mortuaries. Clergymen were not exempt: in particular, a parochial incumbent who died in post owed a mortuary to his bishop.Footnote ²⁹ Degrees of personal autonomy and economic independence mattered less than we might expect. The adult male householder usually owed a mortuary, although there were privileged exceptions. Membership of a defined group could confer exemption: for instance, citizens of Hereford did not owe mortuaries.Footnote ³⁰ The theory of coverture would imply that married women should have been exempt. But this was a common-law idea, and canon law rejected the absorption of a wife's property-bearing capacity into that of her husband.Footnote ³¹ In practice, mortuaries were widely given for married women. Commonly, the second-best item was due for a wife, rather than the first.Footnote ³² Young people living under the roof and rule of a parent or master (as offspring, household servant or apprentice) were also often liable.Footnote ³³ In certain circumstances, children's mortuaries came out of their ‘filial portion’: that is, the chattels that they had inherited from their deceased father, which were being kept for them until their majority.Footnote ³⁴ An age limit applied in some places: for instance, the under-12s were exempt in Rockhampton (Gloucestershire).Footnote ³⁵ A different criterion for liability could presuppose a minimum age. A parishioner of Hexton (Hertfordshire) acknowledged that he owed a mortuary for his daughter ‘by custom, because she received the Eucharist’, which required her to have been confirmed.Footnote ³⁶ Elsewhere, there was no minimum age. In the parish of Lapford (Devon), children who were not yet old enough to walk owed a different mortuary item from those who could walk.Footnote ³⁷ The church of St Margaret Pattens in London received 3d. for ‘A shirt of A lytell childes’, which sounds like a mortuary.Footnote ³⁸ Thus the rector's expectation of a mortuary for Stephen Hunne was not out of the ordinary.

Where someone died made more of a difference to liability than who they were. This was because mortuary customs were local. Where a mortuary was required in one parish, in the next-door parish it might not be: this was apparently true of Loddon and Chedgrave in Norfolk.Footnote ³⁹ The will made in 1510 by Katherine Langley of Rickling (Essex) stated that ‘whersoeuer I dy if it be the custome ther that a mortuary muste be paid then I will the mortuary or principall be aftur the custome of the said place in that behalf’.Footnote ⁴⁰ Because mortuaries depended entirely upon custom, a custom not to give mortuaries was just as valid as one to give them. Mortuaries thus differed from tithes, which were mandated by divine law: custom dictated how tithes should be paid (the modo decimandi), but not whether they were paid (the jus decimandi).Footnote ⁴¹ In determining liability for mortuaries, location interacted with two other factors: holding burghal or civic freedom and being resident. Citizens of York were exempt. One case revolved around the question of whether a man who had once been free of the city but no longer lived there, only visiting it to trade, had thereby forfeited his citizenship and so, having died in York, was now liable for a mortuary.Footnote ⁴² Elsewhere, residency in a parish incurred liability, commonly depending upon its duration: a year and a day was one criterion.Footnote ⁴³ Mortuary dues were held to be incurred for the rendering of spiritual services: justifications in church courts stated that the deceased had received the sacraments and sacramentals. Nevertheless, travellers who died somewhere they did not normally live might owe a mortuary there. Hence the deceased could be liable for two mortuaries: one in their own parish, the other in their place of death.Footnote ⁴⁴ This duplication was possible because mortuaries were not, strictly speaking, given for burial. Theoretically, even someone who could not be buried (because they had drowned at sea or killed themselves) was liable.Footnote ⁴⁵ In practice, mortuaries must commonly have been elided with burial fees, which were, however, discrete dues. In 1518, Sir Adrian Fortescue gave a mortuary for his wife to the vicar of Pyrton (Oxfordshire) in whose chancel she was buried, and then, seven years later, having moved her body to his new tomb at Bisham Priory (Berkshire), gave another mortuary to the vicar there.Footnote ⁴⁶ Quite understandably, modern scholars have sometimes struggled to distinguish mortuary dues and burial fees.Footnote ⁴⁷

Location, civic freedom and duration of residency affected liability within London. Richard Snede referred to the city as having a ‘special custom’.Footnote ⁴⁸ This custom was that freemen (and, by extension, their families and households) were exempt, but that ‘foreigners’ (forensici) were liable.Footnote ⁴⁹ Thus the rector of All Hallows on London Wall received the gown of ‘a young scholar from university’, who had happened to die within his parish.Footnote ⁵⁰ On 2 December 1513, in the parish of St Matthew Friday Street where he had fallen sick, Richard Cokkes from Somerset made his will, leaving ‘Unto the curet or person there for my mortuari my beste gowne or my hors, after the custome usyd’.Footnote ⁵¹ A citizen of London, by contrast, would have expected to be exempt; hence very few of them made mortuary bequests.Footnote ⁵² Had Stephen Hunne died within his father's home parish (St Margaret Bridge Street) within the city gates, then most likely no mortuary would have been demanded. But Whitechapel (that is, the parish of St Mary Matfelon), where Stephen did die, lay outside the city's franchises in the suburbs.Footnote ⁵³ According to the rector, the custom there was that anyone who died within a year of their arriving in the parish owed a mortuary.Footnote ⁵⁴ Hackney appears to have had a similar custom.Footnote ⁵⁵ Both places were outside the city proper, lying in the county of Middlesex, albeit within the wider metropolitan area. Hence the parish of St Mary Matfelon appears also to have diverged from London's tithing custom.Footnote ⁵⁶ The discrepancy between a suburban mortuary custom and the civic mortuary custom may have meant that the rector of Whitechapel and Richard Hunne both felt themselves to be upholding correct local usage. The perceived legitimacy of a mortuary claim thus depended primarily on a combination of circumstances, rather than on an overarching principle.

3. Lay attitudes to mortuary dues

On one level, mortuaries were given simply because custom required so doing. Testamentary bequests left what custom or law required (the two terms being used interchangeably), sometimes without specifying the item.Footnote ⁵⁷ The self-validating character of custom meant that no other justification was needed. A mortuary was due whether or not it had been bequeathed, wherever custom required one. Since bequests were supererogatory, we might therefore wonder why they were so often made. Churchmen held that mortuaries benefited the soul of the deceased.Footnote ⁵⁸ The bequeathing of mortuaries seems to indicate that many laypeople accepted this idea, even if only implicitly. When it came to making a will, the first call on someone's goods and chattels (or personalty) was their own soul, which is why goods and chattels passed to executors or administrators rather than to heirs, who inherited the lands (or realty).Footnote ⁵⁹ Of course, such bequests reflected the influence that priests exercised over the composition of wills. Yet family members also prompted testators on their deathbeds and elderly individuals spontaneously identified the items that would be their own and their wives’ mortuaries.Footnote ⁶⁰ Formally, designation as a bequest did not dictate what item was due as a mortuary. The occasional testator acknowledged that the parson was not obliged to accept what they had nominated.Footnote ⁶¹ A bequest might supplement, but not diminish, the mortuary due. Exceptionally, one testator gave a mortuary ‘notwithstanding the local custom’.Footnote ⁶² The vast majority of mortuary bequests, however, followed custom. People left mortuaries because they expected to and because they wanted to.

Mortuary bequests reflected the Church's teaching that testators should discharge their debts, spiritual as well as temporal.Footnote ⁶³ Three months before the Reformation Parliament would open, John Front of Colmworth (Bedfordshire) left his mortuary ‘in redemption of my greveys offencys to Godward’.Footnote ⁶⁴ Mortuaries could be conceived as compensation for forgotten tithes. Lyndwood acknowledged the currency of this notion, even if he thought it problematic (chiefly because someone whose mortuary was worth less than their outstanding tithes had not given satisfaction and thus their sin could not be remitted).Footnote ⁶⁵ Yet mortuaries and forgotten tithes were seldom explicitly associated in wills. Few testators related the one to the other; many more bequeathed both a mortuary and a sum to the high altar for forgotten tithes.Footnote ⁶⁶ That some testators did think of mortuaries as assisting in the afterlife nevertheless seems probable. In 1525, John Arden of Aston (Warwickshire) gave a mortuary so ‘that Almighty God may the rather take my soul unto his mercy and grace’.Footnote ⁶⁷ A mortuary could be seen to oblige the recipient to intercede for the deceased through prayer. Richard Snede suggested that this was the reason why someone who died in a strange parish, where they had owed no tithes, still gave a mortuary there.Footnote ⁶⁸ In some testators’ minds, mortuaries rewarded their own parson for past pastoral care as well as for future intercession.Footnote ⁶⁹ Valuable mortuaries procured a long-lasting spiritual benefit and served a commemorative function. In the abbey of St Mary Graces, a silver necklace that William Burton had possessed now hung around the head of the statue of St Anne that was borne in procession on feast-days, and a gilt standing cup that had once belonged to William Belknap was known by his name decades later.Footnote ⁷⁰ The spiritual value attached to mortuaries may be part of the reason why they survived in the legislation of 1529.

Yet people also did not want to give mortuaries, or at least the specific mortuaries demanded of them for the deceased. In 1532, the common lawyer Christopher St German claimed that ‘fewe thynges within this realme … caused more varyaunce among the people’.Footnote ⁷¹ Assessing this contention is difficult. The explicit evidence of legal cases needs to be balanced against the implication that many more people gave mortuaries without being taken to court. The depositions provided in such cases actually produced copious testimony of that fact, as witnesses recollected mortuaries presented over previous decades. How willingly these mortuaries had been given was another matter. Defending himself before the church court around 1519, William Taylor maintained that several of Thirsk's parishioners had only surrendered five sheep ‘because they did not dare litigate with the prior [of Newburgh] on account of his power’.Footnote ⁷² Such an assertion was intended to counteract unhelpful precedents, which does not mean that Taylor was wrong. The prior himself pointed out that his servants who had taken mortuaries had never been accused of any trespass at the quarter sessions or local court.Footnote ⁷³ Even the father of a current chaplain had ‘somewhat impugned’ the custom, until (so he implied) he had been better instructed.Footnote ⁷⁴ For an individual parishioner, religious houses were formidable opponents; Taylor, however, had the support of a local gentleman, Roger Lascelles. Local government might also assist defendants: a meeting had been organised in the tolbooth at Malton (Yorkshire), so the prior there suspected.Footnote ⁷⁵ Dover's mayor was allegedly leading the town's resistance.Footnote ⁷⁶ In Kingston-upon-Thames (Surrey), 126 burgesses issued a formal protest against their vicar in the name of the whole town.Footnote ⁷⁷

Such resistance nevertheless also affirmed customs of giving mortuaries. The very act of opposing a particular claim could serve to vindicate another one. In Halifax (Yorkshire), it was maintained, no mortuary was due from unmarried women whose fathers were still alive: ergo a mortuary was due from wives and spinsters.Footnote ⁷⁸ According to the burgesses, Kingston's vicar ‘wrongfuly hathe takyne and dayly takethe and withholde the olde Avuncione [ancient] Custume with vs in takynge of mortuarijs’. Laypeople had a proprietorial attitude to a mortuary custom, seeing it not as imposed upon them, but rather as belonging to them. To the modern eye, the surprising feature of Kingston's declaration is its failure to specify the very thing that it set out to defend: the borough's mortuary custom. Custom did not depend on documentation, but resided in collective memory. It was shared within communities between generations. The evidence of inhabitants, the older and the longer resident the better, proved a custom. A 60-year-old man from Moreton Pinkney (Northamptonshire) declared that ‘he woll depose in euery court spirituell or temporell that it hathe byne Alwey vsed in his tyme And Also before his tyme[,] that is to sey in his ffaders tyme of long seasone dwellyng’ there, as he went on to say what the local custom for heriots and mortuaries was.Footnote ⁷⁹ In his case against Hunne, the rector of Whitechapel produced four male witnesses to testify to the parish's custom.Footnote ⁸⁰ One of them, Robert Kylton, had identified himself the previous year as a haberdasher, aged 67, who had lived in St Mary Matfelon for the past 24 years.Footnote ⁸¹ Thus the custodians of custom were a community's inhabitants. But they did not always agree. Asked what was commonly believed to be the custom at Thirsk, a chaplain resisted the propensity of other deponents to assert categorically: some say one thing, some another, he replied.Footnote ⁸²

The nature of custom is the reason why a diversity of opinion arose. What validated custom was long and uninterrupted usage: pleadings in church courts invoked both the canon-law idea of prescription over several decades and the common-law phrase ‘from a time whereof men's memory does not exist to the contrary’ (a tempore cuius contrarii memoria hominum non existit). Of course, customs did change, but tacitly, because they lost legitimacy through doing so. To the opponents of Newburgh Priory, the demand for five sheep was a ‘newly usurped’ custom; to the priory, it had existed time out of mind.Footnote ⁸³ One explanation proffered was that over the last half-century the number of sheep in Thirsk had greatly increased, thereby encouraging the priory's farmer to raise his demand.Footnote ⁸⁴ At Malton, the dispute in 1528 concerned single horses. The issue was whether burgesses owed just the animal or its harness together with their arms and armour as well. In one version, the horse alone was due, but burgesses in their testaments had chosen also to bequeath the accoutrements, whereby the priory had come to expect these as mortuaries too.Footnote ⁸⁵ The custom in Malton hints at the possibility of there being some kind of evolutionary link between the original military heriot, the mortuary duty and the display of arms and armour over tombs.Footnote ⁸⁶ St German was at pains to sever any association between the latter two practices. He referred to a case before the King's Bench in 1469, in which the widow of a former mayor of London had sued the parson of St Margaret Lothbury for taking her husband's coat of armour, banner and sword, which had been hanging beside his tomb.Footnote ⁸⁷ In sum, St German was right in the sense that mortuaries did cause ‘variances’ in many places. What seems less clear is the degree to which such episodes, being spaced out geographically and over time, would have induced a general critique of this widespread yet also highly localised duty.

4. Clerical attitudes to mortuary dues

Mortuaries ought to be understood from the perspective of the clergy who received them. The recipient's identity depended on a parish's organisation. Where a church had been appropriated to a religious house, university college or cathedral chapter, mortuaries might either be owed to the institutional rector, or be reserved for the ordained vicar, or be divided between them.Footnote ⁸⁸ Where a benefice had been leased, mortuaries were given to the farmer, who could be the vicar, another cleric (such as a chaplain), or a layman. Mortuaries were a right belonging to a church that it was the responsibility of an incumbent to pass on intact to his successors.Footnote ⁸⁹ The mayor of Southampton was assured that a mortuary being sought for a Venetian galleyman ‘is my dewte & iff itt wher nott my dewte I wolld nott hafe itt for J[esu]s C[hris]te’.Footnote ⁹⁰ Title occasionally needed to be defended against other clergymen. A priest who ministered to members of another parish threatened the right of that parish's priest to their mortuaries.Footnote ⁹¹ The abbot of St Mary Graces had disliked the fact that, though John Whittington had lived within the monastery's precinct, he had preferred to worship and take communion in the church of St Peter ad Vincula at the Tower, where he worked; as the abbot might have feared, Whittington's executors withheld his mortuary for that reason.Footnote ⁹² Rights also had to be maintained when parishioners would not settle claims. Clergy would probably have tried informal negotiation or formal arbitration before resorting to the courts.Footnote ⁹³ Two years before he prosecuted Hunne, the rector of Whitechapel had pressed a case in the commissary court for a mortuary that was due ‘according to the custom of the foresaid parish’.Footnote ⁹⁴ Mortuaries might disappear in the future if they were not demanded in the present.

Mortuaries were a source of income. How much they were worth in a particular parish will have fluctuated year on year depending upon the death rate. Population growth in the early sixteenth century may have increased their overall value.Footnote ⁹⁵ Only an intensive quantitative study, which is not attempted here, could test this hypothesis. A long series of institutional accounts, such as those of Durham Priory, would be required.Footnote ⁹⁶ An obstacle is that accounts may not give a complete record of mortuaries received. The officer responsible for collecting mortuaries due to the dean and chapter of Wells (Somerset) was apparently allowed to omit some of them from his accounts.Footnote ⁹⁷ The number of mortuaries entered can seem small and their value low in comparison with other receipts. At Bishop's Lynn (Norfolk) in the year 1510–1511, only 4s. were received from mortuaries sold.Footnote ⁹⁸ Robert Swanson has suggested that many accounts may have included only mortuaries quickly converted into money through commutation or sale.Footnote ⁹⁹ That might explain the evidence in the accounts kept by Richard Goodman, rector of Helmingham (Suffolk), for the year 1509–1510. Goodman recorded payments received for burials and his income from the lights around coffins, oblations of the deceased, and legacies to the high altar. His accounts show that, over the year, while Goodman buried perhaps 24 people, he received a mortuary (worth 4d.) for only 1 of them, Alexander Stogy, together with 5½d. for his burial and oblation.Footnote ¹⁰⁰ Stogy was certainly not the wealthiest parishioner, for that year the rector also buried the lord of the manor.Footnote ¹⁰¹ Yet Goodman's accounts do not indicate that he expected any other mortuaries, whereas he did note that a parishioner's personal tithes were outstanding.Footnote ¹⁰² Parish priests were unlikely to have been negligent about pursuing their dues. The turn-of-the-century vicar of Halifax had the mortuaries that he had received entered into a book, thereby generating both a written record and a memorable affirmation of his entitlement for himself and his successors.Footnote ¹⁰³ In general, mortuaries probably appeared to the clergy as a valuable but potentially vulnerable right. What they meant to a particular priest would have depended on the nature of his benefice and on his position within the parish, as the following example suggests.

Swanson has drawn attention to the notes made by Richard Gosmer, vicar of Basingstoke (Hampshire).Footnote ¹⁰⁴ Entered into the front- and end-leaves of a copy of the sermons of Jacobus de Voragine, these notes were begun around 1502 and spanned almost a decade.Footnote ¹⁰⁵ They convey the intimacy of a resident parson's economic relationship with his parishioners. For instance, they disclose Gosmer's vigilance in keeping track of tithes, through monitoring the movement of flocks of sheep in and out of the parish. (Thus they reveal the kernel of truth behind Tyndale's jibe that mortuaries were redundant because, though a parishioner might forget their tithes, their parson would never have done so.Footnote ¹⁰⁶) Gosmer reminded himself that he was owed two mortuaries, one for a parishioner's wife and the other for a wife's relative; that both entries have been crossed out implies that he did receive them.Footnote ¹⁰⁷ Gosmer also negotiated with two fellow executors a mortuary payment of 20s. to himself.Footnote ¹⁰⁸ Gosmer preserved evidence of his rights, noting how, at the Angel Inn on 31 May 1503, Henry Horn had stated publicly that a previous vicar had received Nicholas Draper's best horse (worth 33s. 4d.) as a mortuary. Presumably, Gosmer wrote down the six witnesses’ names so that, if need be, he could call upon their testimony to prove his entitlement.Footnote ¹⁰⁹ Gosmer's relationship to the parochial economy was not only extractive: he doubled as a producer, consumer, hirer, employer and lender. When settling accounts, Gosmer treated mortuaries as credits to balance his debits. In 1504, the mortuary (worth 8s. 4d.) for which Edward Clerke was responsible was added to his tithes, offset by Clerke's services to Gosmer, evened up through an exchange of coins, and finally quitted.Footnote ¹¹⁰ A mortuary demanded on behalf of an absentee or an appropriator seems more likely to have been resented than one sought through this kind of face-to-face settling of accounts. In stark contrast, none of the local people who deposed in a mortuary case brought by the rector of Bolton Percy (Yorkshire) knew him.Footnote ¹¹¹

5. Jurisdiction over mortuary dues

By hearing cases in its courts, the Church facilitated the exercise of mortuary rights. In judging claims, it deferred to custom. In 1507, the farmer of Broadwater (Sussex) sought mortuaries for two unmarried sisters (aged 16 and 17); their father responded that ‘the custom is contrary’, whereupon the court told the farmer to prove the custom he alleged.Footnote ¹¹² This reliance on custom arose because canon law regarded death duties as morally suspect. As Helmholz has emphasised, mortuaries looked like payments to priests for a spiritual service and thus risked being a form of simony.Footnote ¹¹³ The way out of this dilemma was to defer to custom: this had been the formal position since the Fourth Lateran Council of 1215.Footnote ¹¹⁴ As a consequence, ecclesiastical legislation on mortuaries curtailed itself. For centuries, mortuaries had been the subject of diocesan and provincial constitutions; without a canon-law principle to apply, however, these regulations bowed to convention even as they hoped to reform it. If prelates’ injunctions were adhered to, then the poor family forced to give up its only cow should have been a rural myth; but they need not have been followed.Footnote ¹¹⁵ No mandatory minimum threshold for liability applied. The nature of Lyndwood's work dictated that he gloss a piece of provincial legislation; otherwise, he might not have chosen to base an analysis of mortuaries around one. Revealingly, the law that he selected was both inconclusive (since it disavowed any intention of changing the status quo) and unauthoritative (since it looked, he thought, to be merely a synodal constitution, in which case it applied only to the diocese of Canterbury).Footnote ¹¹⁶ For Lyndwood, the solution to the intractable conundrums that mortuaries presented in law was ‘to have recourse to custom used for a very long time’.Footnote ¹¹⁷ Hence in 1529, when MPs turned the Church's ‘awne lawes and constitucions’ against current mortuary practices, spiritual peers fell back on ‘prescripsion and vsage’ as their defence.Footnote ¹¹⁸ Custom cut the Gordian knot.

Therefore, when mortuaries were contested in church courts, the rules that applied were general ones. Because executors assumed responsibility for administering the goods and chattels of the deceased, they were answerable for mortuaries. Mortuary claims thus ran in tandem with probate proceedings (such as requirements to produce a testament, prepare an inventory, or render an account).Footnote ¹¹⁹ Testamentary regulations also applied. A deathbed disposal of assets that had been designed to deprive creditors ought to be reversed: the same went for an alienation intended to defeat a mortuary claim.Footnote ¹²⁰ Two Londoners pleaded that disputed objects were their own property: one that he had loaned his garment to the deceased, the other that the deceased had given him his garment.Footnote ¹²¹ The latter kind of transfer, however, was suspicious. A prior action that prevented a mortuary being handed over was presumed fraudulent, unless it could be shown that a sound motive (such as immediate want) had existed.Footnote ¹²² This principle extended to will-making: you could not bequeath to somebody else an item that would be due as your mortuary.Footnote ¹²³ The question of ownership was complex. Lyndwood held that the deceased had to have been the sole owner of a mortuary, rather than someone who had merely enjoyed the use of it (the usufructuary).Footnote ¹²⁴ Hunne's objection, that the bearing sheet belonged to him rather than to his son, was thus potentially valid; if accepted, it could, however, have barred many mortuary claims.Footnote ¹²⁵ Mortuaries therefore raised questions about possession and title that were the domain of the common law and for that reason, primarily, they engaged the royal courts.

The central common-law courts did not hear mortuary claims; however, some local courts did. In 1500, the prior of Lenton (Nottinghamshire) brought an action of detinue for his mortuary in the borough court of Nottingham.Footnote ¹²⁶ Manor courts may have had more of a role in dealing with mortuaries because of the interface with heriots. In 1508, the abbot of Whalley (Lancashire) sued for his mortuary as a debt in the manor court of Ightenhill.Footnote ¹²⁷ But it was mainly those resisting mortuary claims who involved royal courts, and Robert Palmer has identified several such cases.Footnote ¹²⁸ A dispute at the beginning of the sixteenth century in the London parish of All Hallows Barking shows how several different jurisdictions could become engaged. The vicar's chaplain had demanded a parishioner's ‘violet gowne furred with blak lambe’ from his widow (also his executrix). The widow had the vicar cited to the diocese's consistory court, where the judge found against her. She then brought an action of detinue (asserting the detention of the gown) against the chaplain in the mayor's court. Alleging that the jurors trying this case would be partial against him, the chaplain petitioned the lord chancellor (who happened also to be the bishop of London) for relief.Footnote ¹²⁹ Around the same time, a complaint was made to the diocese's commissary court against the vicar, for having refused to bury the parishioner ‘until he had received and extorted a mortuary, although none was due to him in this case, according to custom in the city of London’.Footnote ¹³⁰ The vicar had doubly offended, because he had demanded the mortuary before burial, thereby (in canonists’ eyes) committing simony.Footnote ¹³¹ Laypeople were thus willing to contest demands in church courts. A counter-suit in a secular court might follow when the ecclesiastical forum proved unreceptive.

Before the 1530s, it was not argued that the common law should adjudicate mortuary claims as a matter of principle.Footnote ¹³² The royal ordinance Circumspecte Agatis of 1286 had established that such claims were reserved for church courts.Footnote ¹³³ Disputes came before lay courts because one party re-described the issue in another way. Usually, this was as the trespass of forcibly taking someone else's goods and chattels.Footnote ¹³⁴ (The supposedly forcible nature of the trespass was ‘colour’, that is, only for form's sake.Footnote ¹³⁵) Trespass was how the executor of two parishioners of Ewell (Surrey) presented the seizing of their horse and ox by the farmer of Guildford Priory.Footnote ¹³⁶ Common lawyers compared mortuaries to heriots, since neither was required by law or general custom, but both might be due by local custom.Footnote ¹³⁷ Hence the parson, like the lord, was entitled to seize his duty without waiting for its delivery by the executor.Footnote ¹³⁸ The order of priority between heriots and mortuaries caused litigation in the lay courts. Whether the rector or the lord was entitled to the best beast was contested at Kennington (Berkshire) in 1529.Footnote ¹³⁹ The difference between heriot custom and heriot service mattered: in the former, only one item was due to the lord; in the latter, as many items as the number of tenancies.Footnote ¹⁴⁰ Thus, if the deceased held two tenancies, then the mortuary could have been the third-best, rather than the second-best, beast: on that basis, the prior of Canons Ashby (Northamptonshire) had to defend taking the deceased's second-best animal (an ox) at Moreton Pinkney.Footnote ¹⁴¹ The purpose of the pleadings in court was to reduce the dispute to a single issue that could be tried by a jury. That issue could be the correct mortuary custom, as in the case from Moreton Pinkney.Footnote ¹⁴² An alternative was the ownership of an item. A jury was asked to determine whether the cow in dispute at Huttoft (Lincolnshire) had belonged at the time of her death to the deceased or to the plaintiff.Footnote ¹⁴³

The common law allowed the Church's jurisdiction to be contested. A writ of prohibition enabled this to be done while a case was in progress, on the basis that the church court was improperly hearing a temporal matter (that is, a plea concerning goods and chattels). The common-law judges were then able to grant a ‘consultation’, by which the case could resume in the church court once it had been demonstrated that a mortuary was in dispute.Footnote ¹⁴⁴ In 1517, the vicar of Preston on Wye appeared in the King's Bench to seek such a consultation so that his suit before the sub-dean of Hereford Cathedral for the second-best animal of a parishioner's wife could proceed.Footnote ¹⁴⁵ Mortuary cases could also be disputed after a church court had given its verdict. In 1507, Cumberland's quarter sessions presented the vicar of Aspatria for having obtained an award in the diocesan court of Carlisle for a mortuary that was properly the manorial lord's heriot, thereby bringing the lay fee into question.Footnote ¹⁴⁶ Hunne's praemunire action was likewise brought after the church court (the archiepiscopal court of audience) had delivered its judgment. The rival pleadings did not resolve into an issue that could be put to a jury and, for eight terms, the King's Bench declined to rule on their sufficiency, until the action was terminated by Hunne's death.Footnote ¹⁴⁷ In bringing a provocative action that raised a sensitive jurisdictional question, Hunne appears to have overbid. He might have fared better had he sued for trespass and taken the issue of the sheet's ownership to a jury. Since the chaplain of All Hallows Barking had feared that in his case he would ‘vndoubtedly be condempned’ by a jury of Londoners, Hunne might well have obtained a favourable verdict.Footnote ¹⁴⁸ The court, however, resiled from his direct assault on the Church's jurisdiction. In sum, neither common law nor ecclesiastical law would reform mortuary dues. This was because both laws interpreted their role as identifying and upholding local custom.

6. Parliamentary reform

The early sixteenth century established that mortuary dues could be changed through parliament. St German held up the statute of 1529 as an ex post facto demonstration of parliament's competence over matters hitherto considered to fall under the Church's jurisdiction.Footnote ¹⁴⁹ Yet a draft petition (of unknown provenance) among the State Papers suggests that legislation was being sought in advance of the Reformation Parliament.Footnote ¹⁵⁰ Censuring the ‘cruell and vncharitable’ behaviour of some parish priests, this petition proposed exempting from liability the regular clergy, married women, children (defined in an emendation as those under 14), anyone else lacking discretion, and those without goods in the parish. Three criteria for exemption were thus implied: immaturity, inability to own property (through coverture or profession), and non-residence. The rationale may have been that only people who owed tithes and oblations to the parish should be liable. It was presumably on account of the Hunne affair that, in the nineteenth century, this petition was dated to 1514 or 1515.Footnote ¹⁵¹ The petition's contents do not clinch the connection. Although they would have exempted anyone of Stephen Hunne's age, children were not singled out for greater notice than any other group. The petition additionally would have required curates to bring the sacrament to the sick and to bury anyone who had died within their parish. The concern expressed about the risk of infection from corpses left unburied might have been a response to the epidemic that had struck London in 1513.Footnote ¹⁵² Even so, the petition remains of uncertain date and cannot be proven to have ever been presented to parliament. It does indicate, however, that the possibility of nationwide regulation of mortuary customs through legislation had already been recognised.

The statute of 1529 has also been thought to have originated with the city of London. On 15 October, preparing for parliament's opening in a few weeks’ time, the Mercers’ Company complained ‘howe the kynges poore subgiectes, pryncipally of London, been polled and robbed without reason or conscience by th'ordenarys in probatyng of testamentes and takyng of mortuarys’.Footnote ¹⁵³ On the basis of such evidence, Christopher Haigh has argued that the legislation, over probate fees as well as mortuaries, voiced the grievances of particular sections of society that were not universally shared.Footnote ¹⁵⁴ In the case of mortuaries, the mercers’ complaint is surprising because of the exemption of London's citizens from liability. This civic custom had been acknowledged in February 1529, when seven parish priests presented to the city's common council 18 articles, most of which concerned tithes.Footnote ¹⁵⁵ Article nine requested, on the authority of custom and of an old constitution, ‘all Persons which do not enjoy the Liberties and Freedom of the City to pay a Mortuary’. However, the next article may have given a particular ground for the mercers’ complaint: it asked, on the basis of the same constitution and as an exception to the general rule, ‘That every Alderman pay a Mortuary’.Footnote ¹⁵⁶ At that time, 7 of the city's 25 aldermen were mercers, more than for any other livery company.Footnote ¹⁵⁷ So a select group of citizens might have raised a very specific objection to mortuary obligations. Given how little is known about the statute's development, however, the significance of the mercers’ grievance for the subsequent enactment cannot be evaluated. Memories of the Hunne affair, which Richard's family had recently been stoking, might also have informed parliament's deliberations.Footnote ¹⁵⁸ Yet the role of Londoners in promoting the legislation in no way precludes others from having advocated reform. As we have seen, mortuary dues provoked objections across the country, and, while most remained individualised, some disputes did involve members of the gentry and borough communities who were well represented in the Commons.

The mortuaries legislation underwent modification during its progress through parliament in November and December 1529.Footnote ¹⁵⁹ According to the MP Edward Hall, the bill prepared by the Commons could not pass the Lords, whereupon the king caused a new bill to be drafted, which was ‘so resonable’ that the spiritual peers had to assent.Footnote ¹⁶⁰ The tenor of the Commons’ bill must have been less favourable to the clergy than the supposedly temperate measure that took its place. Since the first bill has not survived, only the contents of the final act can be analysed. According to the preamble, the principal problem to be alleviated was the ‘over excessyve’ value of mortuaries, which was recognised as having a disproportionate effect on the poor. The statute therefore capped the value of mortuaries on a sliding scale based on the deceased's moveable goods. At the bottom end, people whose goods were worth less than £6 13s. 4d. were exempted; at the top, the maximum value of any mortuary was to be 10s. By implication, the statute commuted mortuaries into money. It also exempted married women, children and non-householders (that is, domestic servants and apprentices). It made mortuaries due only in the primary place of residence, thereby protecting those who died on the road and also those domiciled in more than one parish. Nevertheless, the statute did not change the geographical component of liability: wherever custom had previously required them, mortuaries were still obligatory and remained enforceable in church courts. Local custom thus continued to be the primary determinant of liability. The clergy were free to receive bequests, not only as money offered to the high altar, but also as other things. Overall, the statute moderated mortuaries. Its provisions brought together the different ideas surrounding the duty: qualified endorsement of local custom, appropriate kinds of liability (conforming to notions about property ownership and personal autonomy), the principles of charity and reciprocity, and beliefs about the afterlife. The statute superseded prior ecclesiastical legislation; it would have replaced the provincial constitutions in the new canons drafted for the English Church.Footnote ¹⁶¹ Thus the statute put mortuary dues on a new footing, but without changing everything about them, for it could only be interpreted in the light of pre-existing practices.

7. Epilogue: mortuary dues after 1529

The statute's makers presumed that it would lower the value of mortuaries. A quantitative study of the changing contribution of mortuaries to clerical incomes could establish whether the legislation did indeed lead to a net reduction. Anecdotal evidence of individual clergymen's reactions is suggestive. The vicar of Halifax, who had vindicated his right to receive mortuaries from household servants as recently as April 1529, purportedly said that the act had cost him more than £50 a year and so wished the king a short reign.Footnote ¹⁶² To the prior of Alvecote (Warwickshire), mortuaries had been ‘one of the gretest profittes & avauntages commyng or growyng’ out of the deanery of the collegiate church of Tamworth, which he had been farming.Footnote ¹⁶³ The vicar of Haverhill (Suffolk) supposedly questioned the legitimacy of a law made without the clergy's consent; St German wrote to refute that view.Footnote ¹⁶⁴ In his church on 3 May 1531, the same vicar of Aspatria who had been troubled two decades earlier allegedly cursed parishioners who refused to give mortuaries in the old manner.Footnote ¹⁶⁵ In 1532, the Commons complained that clergy had responded to the statute by increasing the tithes that they demanded and by suing for mortuaries without asking for them first (in order to recover legal costs as well).Footnote ¹⁶⁶ A bill that would have replaced mortuaries with fixed annual payments possibly represented the proposed solution.Footnote ¹⁶⁷ However reluctantly, the clergy did comply with the statute, in part because of the deterrence of prosecution. Juries at assizes and quarter sessions were possibly charged with presenting offending clergymen.Footnote ¹⁶⁸ Priests were occasionally sued by those from whom they had allegedly sought mortuaries in the traditional form. Two cases were brought in the court of the Exchequer during the first five years of the statute's operation.Footnote ¹⁶⁹ The vicar of Hinxton (Cambridgeshire) was prosecuted in Common Pleas for having demanded a gown worth 20s. three weeks after the legislation came into force.Footnote ¹⁷⁰ The vicar of Loddon (Norfolk) admitted that he was ‘not perfightly knowynge the contents of the said estatute’ when he requested a mortuary for a man who had been buried in his own church, but whose principal residence had been in another parish.Footnote ¹⁷¹ In 1538, the prior of Launceston (Cornwall) maintained that he had seized a stranger's horse as his heriot, rather than as a mortuary.Footnote ¹⁷² By the end of the decade, the new rules seem to have been generally observed.

Presumably, many laypeople welcomed the new limitations. In the Lindsey area of Lincolnshire, they supposedly appreciated being relieved from ‘mortuaries in ther ould ffassyone’.Footnote ¹⁷³ Some allegedly took advantage: at South Hill (Cornwall), a leading parishioner wilfully misconstrued the statute by ‘sayng that they be not bound to paye any mortuaryes’.Footnote ¹⁷⁴ But mortuaries did not instantly lose their spiritual value to every layperson. Albeit in smaller numbers, testators continued to bequeath mortuaries: some explicitly complied with the statute, others silently applied its terms, and a few gave more than was required, availing themselves of the proviso in the legislation.Footnote ¹⁷⁵ St German complained that priests were getting around the law by telling dying parishioners that they ‘can nat be saued, but they restore them as moche as the olde mortuarie wolde haue amounted to’.Footnote ¹⁷⁶ So long as testators remained convinced that it was in their own interest to give mortuaries, however, they would not have needed much persuading. What put paid to the bequeathing of mortuaries may thus not have been the statute, but rather the fundamental change in beliefs about the afterlife that would take hold during the Reformation.Footnote ¹⁷⁷ Mortuaries lost their reciprocal character: they ceased to benefit the donor spiritually as well as the recipient materially. Protestant dissenters who objected to their superstitious (‘popish’) antecedents were now answered that mortuaries had been preserved solely ‘for maintenance of the Ministerie’.Footnote ¹⁷⁸ Mortuaries could survive because they were not only religious offerings but also customary duties. Statutory sanction helped to ensure that they did survive. Mortuary dues remained property rights. Hence early modern parsons continued to receive their mortuaries, while lay impropriators claimed those that had been owed to the dissolved religious houses.Footnote ¹⁷⁹ The church courts absorbed the statute into their proceedings and went on judging cases. The common-law courts intervened, as they had before 1529, when the nature of a local custom was disputed. Opinion was divided over whether, under the statute, actions of debt could be brought for mortuaries in these courts.Footnote ¹⁸⁰

In point of fact, mortuaries would be paid long after they had become unenforceable. In 1882, a parliamentary committee found that in ‘the great majority of parishes’ the duty had lapsed. The last mortuary at Beaconsfield (Buckinghamshire) had been presented in 1797 for the statesman Edmund Burke. Nevertheless, in some places mortuaries carried on being given roughly in accordance with the legislation. In the 1530s, inhabitants of Lindsey had welcomed the new rate; in the 1880s, some of them were still paying it. The current vicar of Wootton (Hampshire), the committee heard, collected the statutory 10s., but then chose to return the money. At Frome (Somerset), people were still observing ‘the custom of the parish’ by giving the same amount. Such evidence came as a surprise to senior members of the Church of England, who had assumed that the duty was obsolete.Footnote ¹⁸¹ Although the committee recommended it, the repeal of the Henrician statute would be delayed until 1963.Footnote ¹⁸² Mortuaries had lasted for such a length of time because of the legislation supporting local usage. This longer chronology alters our perspective on the statute of 1529. The short-term contexts for the legislation were negative: Hunne's case, Protestant criticism and the king's matrimonial difficulty. At close hand, it is the objections to current mortuary practices, which the statute went on to remedy, that loom large. Surveyed at a greater distance, however, the early sixteenth century appears also to have sustained mortuary dues. The statute had reflected the basic acceptance of mortuaries at the time, and it would prolong that view even after the original rationale for giving them no longer held. Mortuaries evolved according to multiple historical tempos. Different kinds of law – jurisprudence, litigation, legislation and also custom – blended to support a remarkably long-lived social practice. Though the balance tipped in the early sixteenth century towards positive law, mortuary dues retained this historic eclecticism. Custom remained constitutive of law and so what emerged was a new kind of synthesis between them.