In modern jurisprudence, it is recognized that courts will engage in arbitration, often under the rubric of Alternative Dispute Resolution.Footnote 1 Recourse to arbitration further back in the English past has often been perceived as extra-legal, taking place outside the system of courts, and sometimes intended specifically to avoid those courts. This research has concentrated on the avoidance of secular courts, in particular the king’s courts and common law (see below). By contrast, arbitration in ecclesiastical courts has received less detailed investigation, although many salient aspects have been approached (as indicated below).
One significant contribution has suggested that the development of medieval Scottish law owed much to the arbitration in the Ius Commune, a legal tradition in Europe with roots in Roman civil law, especially to the interpretation in Canon Law, the law of the Church.Footnote 2 Scottish law, of course, differed profoundly from the legal system in England, particularly English common law. Even so, there may be some merit in examining how and how far arbitration was deployed in the ecclesiastical courts south of the border. The discussion here thus focuses on English ecclesiastical courts in the later Middle Ages and how arbitration and mediation were an integral part of the court procedures, if used infrequently by these courts.
First, the context of the current literature on arbitration in medieval England is discussed, in particular, how disputes among the gentry could be resolved outside courts. Before moving to the evidence for arbitration in the courts of Christian England, the background for arbitration in Canon Law, the jurisprudence of the spiritual courts, is explained, including how arbitration evolved in legal thought in Canon Law. Subsequently, the nature of the selected church courts and the hierarchy within which they existed are described. The procedure of arbitration in those courts and their competence is then considered: how arbiters were appointed, how the arbiters proceeded, how the court retained control of the procedure, and how the court imposed sanctions. In the following sections, the status of the arbiters and the litigants at arbitration is illustrated. In the process of arbitration, the court could appoint an “umpire” or mediator if the arbitration was unresolved. Finally, some suggestions are hazarded about the relationship between Canon Law and arbitration, in particular, how arbitration might have deviated from the Natural Law obligation precisely to observe agreements, pacta sunt servanda.
The medieval context
The relationship between law and reconciliation has long interested medieval historians, perhaps first stimulated by Michael Clanchy’s seminal comparison of law and “love.”Footnote 3 One strand in the subsequent discussion concerned the role of arbitration, especially in the fifteenth century (more or less coterminous with the material from ecclesiastical courts discussed below). Previous elucidation of the role of umpires has focused on relationships between parties of a high status, often of gentry stature, and sometimes those integrated into noble affinities. In an important contribution, Ted Powell illustrated how gentry families and those connected with affinities (networks associated with noblemen) managed some of their conflicts outside the arena of the courts, referring the dispute to their peers for negotiation and adjudication.Footnote 4 This arbitration was complementary and parallel to formal litigation in secular courts and remained outside those courts. Matters were resolved without recourse to “law.” Simon Payling expanded on the interpretation of disputes between the larger gentry families in Nottinghamshire, defining some of this arbitration as the action of a “self-regulating community,” again operating outside, but parallel to, the legal forum.Footnote 5 Payling also astutely remarked on the defects of such extra-legal negotiation: the lack of any machinery of enforcement apart from forfeiture through action of debt to recover the conditional penal sum in the agreement and coercion by superior parties such as magnates and affinities.Footnote 6 (Below, the sanctions of the ecclesiastical courts are delineated by comparison). Many of the contentious issues concerned land tenure (by contrast with the actions in ecclesiastical courts below). These instances of arbitration not only involved actors of a fairly high status, but the purpose of the arbitration was to produce a settlement without recourse to the (royal) courts.Footnote 7
Arbitration in ecclesiastical courts: the context
“The canon law endorsed and regulated the use of arbitration in place of full trials.”Footnote 8 Discussion of arbitration in canon law literature extended back to the thirteenth century.Footnote 9 Godfrey suggested that substantive treatment of arbitration in canon law evolved in the late twelfth or early thirteenth century. While Gratian’s Decretum contained only “passing reference” to arbitration, a separate section, De Arbitris, was composed for the Liber Extra of 1234.Footnote 10
The Liber Extra was composed by Raymond de Peñafort, who collected papal legal rulings in decretal and conciliar acts for Pope Gregory IX. The subsequent Liber Sextus of Pope Boniface VIII, promulgated in 1298, also contained a section De Arbitris (Liber I Titulus XXII, CAP. II), which referred to the influence of the lex civilis. Here, the Liber Sextus suggested three arbiters for each party. The intention of arbitration was proposed as compromise (super quo in ipsos exstitit Compromissum). The text, nevertheless, reasserted the prerogative of the judges to pass sentence (Circa iudices vero antiqua iura nolumus immutari).Footnote 11 Discussion of the resort to arbitration became a regular feature of commentaries.
These processes of arbitration worked in the fifteenth century through lay networks. By comparison, the ecclesiastical courts had an institutional predilection for compromise. This preference was expressed by William Lyndwood (c.1375–1446) in his Provinciale, completed about 1430.Footnote 12 Referring specifically to causes (actions) between parties (hoc est in Causa civili), Lyndwood specified the first duty of the judge to bring the parties to compromise, even at the initiation of the proceedings: “In quibus omnibus pater, quod Judex primo & ante omnia debet partes inducere ad concordiam si possit. Potest etiam illud intelligi, & si absque Judice partes voluerint inter se componere.”Footnote 13
Even when the cause had progressed, the judge should still endeavor to bring the parties to agreement. “Revocantes Hoc enim ad officium Praelati spectat ut discordantes sive Clericos sive Laicos magis ad pacem quam ad Judicium cocreant … discordantes ad concordiam revocare. Exigant … Ipsi Judices, pro bono pacis inter hujusmodi litigantes, partes suas interposuerint ad ipsos concordandum.”Footnote 14
Lyndwood’s treatise was informed by two considerations: a review of all the previous canonical injunctions by English bishops in their councils and synods and the impact of the universal canon law, which was part of the ius commune and which obtained throughout the western Catholic Church (largely “decretal law” but not exclusively).Footnote 15 The rhetorical content of Lyndwood, however, might not have been consistent with the intentions of litigants.
How the action of arbitration worked in ecclesiastical courts has received less attention.Footnote 16 The actors in the Church courts were also frequently of lower social status than in secular arbitration. The discussion here concerns the resort to arbitration during the proceedings in ecclesiastical courts. More specifically, the analysis is of instance causes, not office causes (cause is the terminology of the Canon Law, not case). The distinction is that office causes were initiated by the authority of the court for transgressions of matters within the purview of the court (approximately the “criminal” side involving sin), whereas instance causes were brought by parties against parties (loosely, civil pleas).Footnote 17
The ecclesiastical courts had competence over matters pertaining to the dues to and privileges of the Church (tithes, mortuaries (payments at death), and the like), but also a sphere reserved to the English Church (Ecclesia Anglicana) officially since the late twelfth century, comprising matrimonial and testamentary disputes and, less completely, defamation.Footnote 18 Additionally, the ecclesiastical courts became involved in matters of debt in the later Middle Ages through the action of fidei laesio.
The selected ecclesiastical courts
The detailed analysis below is based on three ecclesiastical jurisdictions, each representing different levels in the hierarchy of ecclesiastical courts, with additional references to published work on other ecclesiastical fora (such as Canterbury and London). At the apex of the three selected courts was the consistory court for the diocese of Coventry and Lichfield.Footnote 19 Since it convened only and always at Lichfield, it is simply designated the Lichfield court here. The second court operated for the archdeaconry of Buckingham within the large diocese of Lincoln.Footnote 20 The final court, at the lowest level, comprised the forum for litigation in the deanery of Wisbech.Footnote 21 All relate to the later fifteenth century. The two registers for the Lichfield diocese extend from 1464 to 1478, the Buckingham material from 1485 to 1505, and the Wisbech content from 1458 to 1484.
The courts represent the hierarchy of ecclesiastical jurisdictions. The deanery of Wisbech comprised the parishes in Wisbech and the parishes of Leverington, Elm, Elmneth, Newton, and Tydd St Giles. It was geographically compact. The archdeaconry of Buckingham was coterminous with the county of Buckinghamshire. By contrast, the diocesan consistory court of Lichfield had jurisdiction at the higher level through the counties and archdeaconries of Stafford and Derby, Arden Warwickshire (the archdeaconry of Coventry), and part of Shropshire (the archdeaconry of Shrewsbury).
The differences were not simply geographical, however. The intention that Canon Law be imposed uniformly certainly applied in office causes, but there might have been some variance in instance causes. Canon Law was deliberative, written law in terms of procedure and offenses initiated by the court.Footnote 22 The records of the courts of Wisbech and Buckingham have few references to the appointment of proctors in the courts, although the absence in the record is not conclusive. In the consistory court of Lichfield, with few exceptions of actors pleading personaliter, proctors were normally selected by the parties in dispute. The decision to contract proctors did not simply depend on the distances involved to court. Certainly, proctors initiated the pleading so that personal appearance was not necessary in the early stages, but parties (and their witnesses) were expected to appear in the mesne process (the subsequent, intermediary proceedings once the cause had been initiated and before its conclusion). The point is that employment of proctors added to the expense of litigation in the consistory court. That expense might have cut both ways. Litigants might have had an incentive to reduce their costs by compromise. On the other hand, having invested in some expense already, they might have wished to pursue the action to the definitive sentence in the expectation of recovering costs. Since arbitration was invoked only after some process in the courts, how much the costs were reduced by arbitration is moot. After arbitration, the parties were still required to return to court (see below).
Secondly, there appears to have been more incentive in the very localized court of Wisbech to apply discretion to conclude causes. The court record is littered with the culmination which implies compromise: Concordatus est cum parte and juravit concordare.Footnote 23 Sometimes, the promise to agree was extracted by a more specific oath: et juraverunt tactis sacrosanctis quod concordantur cum parte (they swore on oath that they will come to an agreement with the other party); et promisit fide prestita concordare cum parte. Footnote 24 These arrangements applied to debt (fidei laesio) as well as, for example, defamation.Footnote 25 These situations seem to have been allowing space for further bilateral discussion between the parties, for which a date for concluding was set: et juravit concordare cum parte infra quindenam (he swore to make an agreement with the other party within a fortnight); juravit concordare cum parte infra ij septimanas proximas sequentes (within the next two weeks).Footnote 26 Presumably, if no agreement was achieved outside the court, the cause was reinstituted in the court in its original condition. There is no recorded evidence in the Buckingham and Lichfield court proceedings that such arrangements were entertained. It is possible that the official of the very localized court of Wisbech felt a greater interest in restoring harmony for the sake of local social integration and cohesion.Footnote 27
The Wisbech court did not abandon the causes, however, but established parameters for further discussion outside the court. Ultimately, the cause was drawn back into the court for ratification or continuance. All ecclesiastical courts had some interest in reconciliation for the sake of the souls of the litigants. In referring causes to arbitration (see further below), the Lichfield court introduced the phrase pro bono pacis et concordie. Although, of course, the court had an interest in settlement and harmony, the litigants did not necessarily share this sentiment.Footnote 28
The Buckingham record rarely provides information about the precise nature of the causes. It simply relates: “AB at the motion of CD. Peace and dismissed.” The register for Lichfield is more detailed in this respect. Twenty-six percent of all the causes pursued in the court (not just those compromised) involved fidei laesio, another five percent perjurium, which might also involve debt, and two percent usury. Disputes over marriage, “divorce” (separation), and the breaking of marital vows accounted for twenty percent. Testamentary issues comprised fourteen percent, as did causes about defamation. The remainder of the instance causes concerned matters of the Church: laying violent hands on clergy; withholding of tithes and mortuaries (payments on death); detention of Church goods; and infraction of Church privileges.
The critical aspects of the consistory court were that it was a magisterial court, not one involving a jury; that is, it could not be really construed as a “public interest” or “community-involved” court in the way that manorial and borough courts might be (to whatever extent); and finally that at its heart in Canon Law it concerned the moral welfare of the soul.Footnote 29 Those determining “secondary” rules (perhaps) influenced it towards definitive sentences in many causes.Footnote 30 Arbitration temporarily suspended those rules.
These sources (registers) are concerned only with process, and there are no extant accompanying cause papers (particular instance papers such as the interrogatories by the proctors representing the parties and witness depositions) that provide intermediate details. It is unlikely, however, that cause papers would materially add to the information available, since the arbitration occurred outside the remit of the court. (This assumption is also based on a perusal of the York cause papers).Footnote 31 The Wisbech court, however, does include the details of the adjudication of the arbitration in a number of causes [see below]).
The ethos of the Christian courts might have been to restore harmony, but in fact causes taken to a conclusion would result in a sentence for one party. The only method for arresting discord, if possible, was either to encourage the parties to compromise at the first pleading or to transfer the cause for an interim period outside the court to arbitration. That was the essence, the salient angle of the approach: the dispute was temporarily passed outside the court but brought back into the court for ratification of the agreement induced by the arbitrators. (Occasionally, and rarely, the court decided to defer proceedings in the hope that the parties might reach a compromise. In 1332, in the wife of de Totyngton’ c. the wife of Coppyng’, the consistory court of Rochester adjourned in the hope that the parties might agree [pendet sub spe pacis—is postponed for hope of settlement]).Footnote 32
The court, although contained within the ecclesiastical (or spiritual) forum and the application of canon law, yet outsourced the arbitration to laymen. That referral seems, on the face of it, paradoxical and incongruous. In this instance, too, the Church relied on the actions of “trustworthy (lay) men.”Footnote 33
Some numbers may provide a context for the apparent irregularity of recourse to arbitration. In the court of the archdeacon of Buckingham, 430 causes were brought to a conclusion in the two decades between 1485 and 1505. The number is obtained from including those that have the final clause: pax et dimissus (and variants) est (peace and it is dismissed); that method avoids any possibility of double counting causes.Footnote 34 (This conclusion (Pax) occurs rarely in the Lichfield register).Footnote 35 The Buckingham court clerk was fairly diligent in recording the causes. The record in the Lichfield consistory court is more complicated. It is necessary to follow a cause from its initiation in the court to the final reference in the register. Since the register is concerned mostly about procedure and the stages of progress of a cause, there is often little detail about the final sentence. A LibreOffice Base (database) has thus been compiled for the causes to prevent multiple counting of the same cause.
The Buckingham clerk recorded only thirty causes passed to arbitration, about seven percent. In the Lichfield consistory court, the forum of the bishop of Coventry and Lichfield, 1261 causes were registered between 1464 and 1478; of these, the clerk only noted eighteen (just more than one percent) being transferred to arbitration. There remains some ambiguity here. The register is somewhat dilatory, and the clerk might have been erratic in his recording of arbitration. Even so, the low number seems plausible. Between 1458 and 1484, the deanery court of Wisbech referred three dozen causes to arbitration. In the diocese of London from 1470 to 1520, defamation causes referred to arbitration fluctuated between five and fifteen percent per annum.Footnote 36 By comparison, the ecclesiastical courts in the diocese of Canterbury devolved a much smaller number of causes to arbitration: more in the early fifteenth century and comparatively few in the later fifteenth century, and only a couple in the early sixteenth century. Woodcock, indeed, commented that “Later [in the late fifteenth century], arbitration is very rare.”Footnote 37
There are some probable reasons for this minimal number of referrals outside the court. The small number of causes passed to arbitration may accord with the intentions of the litigants. Since they had already had to employ proctors to introduce the cause and for the initial proceedings, such as the introduction of witnesses for acceptance by the court, the litigants possibly had an incentive to progress the pleadings. That position might also have accorded with the interests of the proctors who depended on fees. On the other hand, the probability of incurring further fees might have been a counter-incentive to move to compromise.
The procedure of arbitration
The Buckingham court record furnishes little detail about the process of arbitration. Fortunately, the Lichfield register contains more information. The clerk records that the parties agreed to refer to, for example, four men (sic) (compromiserunt in quatuor viros) as arbitrators who are named in the record, but without any affix (identifying description after their name) of their occupation or status, except in the case of clerics and gentry. Nor does the information often include their place of abode, although it was obviously local. The four men are “elected” (but in fact selected by the parties) (electi), two for each party. Sometimes qualified as “neutrally” (inter ipsos Indiferentes electos or impar), it might be suspected that they were supporters. The parties agreed to respect the judgment of the arbitrators, for which they swore on the gospels with a corporal oath, and to honor the arbitrators’ conclusion in every way (in alto et in basso—literally, high and low). A fine was then reserved if any party defaulted, at its highest £20, half to be directed to the party not at fault and half to the fabric fund of the cathedral. The arbitrators are prescribed a date to bring their judgment. If the arbitrators cannot agree, then the action should return to the court in its original status.
Referral to the arbiters thus relied on an oath to respect the decision but also a penal sum. In the Lichfield causes, half was destined for the fabric fund, but the non-delinquent party also received a “cut.” In the case of arbitration in the Wisbech courts, the parties were bound by a penal sum, half to the bishop’s alms and half to the fabric fund of the parish church. The fine here was intended purely for charitable purposes with no forfeiture to a party.
The court thus allowed the parties an opportunity to come to an agreement through arbitration, but it did not relinquish control of the proceedings. The arbitrators had to bring their compromise into court for ratification. Here, there may be the issue of the costs of the court to be defrayed, but also, more significantly, the authority of the court and its responsibility for the souls of the parties who have expressed a corporal oath on the gospels. If the arbitrators could find no solution, then the cause should return to the court to begin as it was originally presented, that is, without prejudice. It can be seen then that the process of arbitration was not complementary or parallel to the Canon Law but an interim and integral stage in the proceedings and process.
Who were the arbitrators?
One of the conundra of arbitration in the ecclesiastical jurisdiction is the status of the arbitrators. In the arbitration between gentry families in affinities, the status of the arbitrators is usually apparent, as they were peers of status. Retrieving information about the arbiters of disputes in the ecclesiastical courts is more difficult. Inevitably, this is this so in the absence of subsidy (taxation) lists in the fifteenth century.Footnote 38 Rarely is it possible to identify the arbiters in the Lichfield consistory court and the Buckingham archdeaconry court.
The Wisbech deanery court provides a more likely prospect since the court record also includes the details of the churchwardens and jurors who made bills of presentments at the courts. In the three dozen causes referred to arbitration, sixty-two men were (s)elected as arbiters. A dozen were in clerical orders, seven of whom were identified as magistri (MA). The successive vicars of Wisbech were each involved as arbiters in five causes, Sir William Gybbe and Mag. William Stanley (also sometime rector of Elm). Gybbe was (s)elected as the parochial chaplain there before preferment to the vicarage. Like Mag. William Stanley, several of the magistri had livings in the locality, including Mag. William Dak (BCL, Cambridge, 1454–5) at Meldreth and Mag. Richard Bole at Balsham, but he also acted as the bishop’s commissary between 1467 and 1477. Paul Cavill has demonstrated that clerical incumbents in the fifteenth century acquired copies of Lyndwood’s Provinciale and marked the leaves relating to composing libels (written pleas) in ecclesiastical courts.Footnote 39 Of the lay arbiters, nine had acted as churchwarden and several others on the jury of presentment at the court. John Thurstan, churchwarden of Tydd, and John Souther, holding the same office at Wisbech St Peter, were each involved in three occasions for arbitration.Footnote 40 As well as being men of local status, these men, because of their spiritual and secular office, were familiar with the operation of the court, attending and observing regularly.
In the arbitration causes in the Lichfield consistory court, fifty-two different men acted as arbiters, only five of whom were clerics. Only three men acted as arbiters more than once, and each of these only twice. Identification of the lay arbiters is difficult.
The exception was an important cause concerning the Wakebridge chantries in Crich (Derbyshire).Footnote 41 In 1474, Henry Punt, who was selected by Sir William Wodrufe, chaplain, was perhaps the Henry Punt of Littleover (Derbyshire) who made his testament/will in late 1489, which was attested by Sir Henry Radford, his confessor, Sir William Caldwall, chaplain, and John Tytesley, notary.Footnote 42 Wodrufe, alias Woderowe, acted as the chantry priest for the chantry of St. Nicholas and St. Katharine from 1459 to 1490.Footnote 43 In that same arbitration, two members of the gentry were recruited as arbiters. Henry Columbel of Darley (Derbyshire) belonged to a minor gentry family.Footnote 44 With an estate at Hopwell and Snitterton (Derbyshire), Ralph Sacheverel belonged to the Hastings affinity, and the family was strongly represented on the Derbyshire bench of justices of the peace.Footnote 45
In fact, Wodrufe selected two lay arbitrators, so he was ostensibly not required to appoint an arbitrator from his peers; another cleric. Sir William Flecher, vicar of Curdworth, proceeded in the same fashion, selecting lay arbitrators (Appendix). The most important aspects of selection were probably local influence and local knowledge.
Another ambiguity is why these specific causes were selected for referral to arbitration. One reason might be that there were multiple issues involved and counterclaims. This rationale is perhaps reflected when, although one cause seems to have prompted the litigation, the record of transfer to arbitration refers to concluding all causes of dissent between the parties, although its inclusion may have simply been pro forma. The protracted nature of the dispute is an obvious component. A dispute over payment of tithes was directed to arbiters because of the length of time of the issue (de longo tempore erant inter eos discordes—for a long time, there were conflicts between them).Footnote 46
The referral of complicated causes to arbitration is confirmed, perhaps by Wodrufe c. Stafford (Sir William Wodrufe, chaplain, against John Stafford the younger of Crich, Derbyshire). The immediate complaint was laying violent hands on the chaplain, but the arbitration perhaps also referred to other disputations between the parties (omnibus causis que dependent in lege et que sunt extra legem; Appendix; cause 2, cited in full). Indeed, battery against a cleric usually only occurred when other grievances were at issue.
Complications of multiple issues and counter-pleas were certainly reasons for devolving to arbitration in Freeman, Minstrel, and his wife c. Baron and his wife in the Wisbech court: several malicious issues, disagreements, and disturbances having erupted between them.Footnote 47 Such intractable causes demanded court time and, by their complex nature, were better resolved through mediation.
The causes that were most likely to be referred to arbitration, however, concerned debt (fidei laesio (et perjurium) and testamentary disputes, the latter almost certainly also involving debt). Occasionally, a cause of defamation might be delegated. These causes could be resolved by a compromise by acknowledging at least part of the debt, which might satisfy the initiating party.
The status of the litigants
Plaintiffs (partes actrices) in the higher level of ecclesiastical courts might have been less interested in compromise. The distance involved, the costs, and the hiring of proctors might represent a determination to receive a judgment. On the other hand, litigants in the most local court, the deanery court, might have been more mindful of agreement.
In the Lichfield court, the cause of Gesnoke c. Hunt in defamation was introduced into the court on 9 November 1473. It was submitted to arbitration on 13 March 1473/4. On 14 June 1474, the court established the costs as 40s. The testamentary cause in Henley c. Smyth commenced on 17 February 1471/2 and was deputed to arbiters on 14 April 1472. The costs were assessed at 26s 8d on 19 January 1472/3. In this cause, the dispute was protracted even after referral to arbitration. In another defamation cause, Toffte c. Joan, the wife of Henry Hordren, the reference to arbitration occurred a considerable time after the plea was initiated, almost a year and a half. In a dispute about a debt (fidei laesio), Haryson c. Hochyns, the arbiters, was appointed in July 1469, and the cause concluded on 15 January 1470/1. Except for August, the consistory court was convened to hear these causes every three weeks on Tuesdays.
Again, it is from the Wisbech court that details of the arbitration are occasionally available. In many instances, the arbitration seems to elicit a compromise, but not always. In an arbitration over defamation, the arbitrators decided that the cause was vexatious (Partes concordantur per Ricardum Alysandyr capellanum, Willelmum Lydster, et Robertum Cott quia cause erant pure maliciose—the parties agreed through Richard Alysandyr chaplain, William Lydster, and Robert Cott because the cause between them was vexatious).Footnote 48 The “ideal” solution is represented in Roray c. Bunch about the detention of tithes. The vicar of Elm with Emneth, Edmund Roray, introduced a suit against a parishioner of Emneth, Robert Bunch, for non- or under-payment of tithes. The arbiters decided that Bunch should defray some of the arrears of tithes, but the vicar should pardon or condone the remainder. The decision was intended to “nourish love” or amity between them in the future (et precipue ad amorem nutrendum amodo imperpetuum inter eos).Footnote 49
The parties and the arbitrators in the Wisbech deanery court were predominantly, it seems, of peasant status, apart from the clerical litigants. The status was a function of the local and compact nature of the jurisdiction. The Lichfield consistory court, because of the geographical extent of its jurisdiction, attracted more causes involving gentry and esquires. Probably five knights and eighteen esquires (such as Sir Henry Columbel and Ralph Sacheverel) were litigants in this court. Indeed, Richard Cholmeley initiated four causes in this court and defended another. Unsurprisingly, a few gentry and esquires were selected as arbiters, but surprisingly few, as those of higher status seem to have pursued their causes to completion.Footnote 50
“Umpires” and the last resort
Another aspect of the machinery of arbitration in some of the deputed causes was the specification of a backstop, an umpire, if the arbitrators failed to reach a conclusion within the allotted time.Footnote 51 Here, those of higher status were invoked in the Lichfield court to settle the dispute. Four causes in the Lichfield register, which were passed to arbiters, also made provision for an umpire should the arbiters fail to agree. In two of these causes, the court nominated Sir William Harcourt (of Maxstoke, Warwickshire) as one of the umpires. This knight, Harcourt, served as sheriff of Warwickshire and was associated with the affinity of the Earl of Warwick. He probably had some legal understanding as well as social standing.Footnote 52 Also, jurisperitus (King’s Bench) and also sometime sheriff of the same county, Sir Thomas Ferrers (II), was named as an umpire along with Harcourt. This Thomas established the Warwickshire Ferrers household at Tamworth Castle.Footnote 53 In a cause alleging defamation of the cleric, Sir William Flecher, Harcourt was joined as a potential umpire by Mag. Richard Brakyngbrogh, rector of Sutton Coldfield (Warwickshire).
Although referral to arbitration was agreed upon by the parties, complications might nevertheless arise. In 1333, the incumbent of Barling (Kent) refused to adhere to the award of arbitrators in a dispute with his parishioners. His first response was that he did not remember swearing to observe the prospective award, and secondly, that the award was inimical to him. For some reason, the parishioners dropped the litigation.Footnote 54 In the same consistory court of the diocese of Rochester, in Hale c. Salmon, the defendant, refused to accept the award of arbitrators because, if divided, they were supposed to co-opt a seventh to produce a majority decision.Footnote 55
Later changes in personnel
By the early sixteenth century, the procedure of arbitration might have changed, at least in the consistory court of the Bishop of Lincoln. Arbitration was then (1517–19) entrusted to two arbiters and to men of a quite different complexion. In the five instances of arbitration, only two arbiters were involved at each mediation, and their stature is consistent with appointment by the court. Four magistri and two abbots (of Notley and Bardney) conducted the mediation. Magister Edmund Horde was probably the advocate at the Court of Arches and Fellow of All Souls. Two of the causes were testamentary and one sexual misconduct.Footnote 56 Three of the magistri acted as bishop’s commissary in the archdeaconries of the diocese: Bedford (Roston), Buckingham (Cocks), and Oxford (Horde). Arbitration was thus conducted by jurisperiti selected by the consistory court rather than the parties. It is possible that this resort to canon lawyers was a response to the challenge to the courts spiritual in the early sixteenth century.Footnote 57
Arbitration and Canon Law
An interesting issue is the relationship of arbitration to law. The restoration of harmony restored God’s peace and possibly local social relations, but was it good law? It did not necessarily accord with right. Certainly in causes that involved pacta sunt servanda (agreements must be respected), it might have traduced right and natural law.Footnote 58 The denial of rights might not benefit the common good because the common good depended on respecting individual rights.Footnote 59 Ostensibly then, arbitration, mediation, and compromise resemble a functionalist application of the law (to restore harmony and in this instance God’s peace) at the expense of natural law and natural rights expounded by such as Aquinas.Footnote 60 It should be noted here that the concept of a “purely penal law” was not formally conceptualized before the middle of the sixteenth century by de Castro. The interpretation of the “purely penal law” allowed the guilty party to perform the obligation or pay the penalty: the “disjunctive contract.” Even so, the operation of the court had already diverged from natural law, which was primarily concerned with truth. Mediation did not uncover the truth of the issue; rather, it obscured it. The moral content of the law was abrogated.Footnote 61 Implicitly, the forfeiture of a penal sum for not abiding by arbitration permitted disjunctive contracts, although the penalty was so heavy in the Lichfield court that few would elect to defray it. (See also the penalty of twenty marks in case of infraction of arbitration in 1390 in the York diocese).Footnote 62
It is possible that some aspects of clemency and mercy intruded into the process too under the influence of confessors’ manuals, although perhaps more on the office side of the courts.Footnote 63 In these senses, the resort to arbitration at canon law and in the ecclesiastical courts was discordant.Footnote 64
Conclusions
One of the most important points about dispute settlement by arbitration in the ecclesiastical forum is that the arbitration was an integral part of the legal process. Although the arbitration was deputed to arbiters, the final agreement had to be returned to court within a specific time and sanctioned by the court. The ultimate penalty for non-observance was not only the forfeiture of a fine but also the prospect of excommunication, the ultimate deterrent available to the court. Unlike arbitration in gentry disputes, the court had the ultimate sanction for performance.
Perhaps surprisingly, given the court’s hypothetical remit to restore God’s peace, only a small proportion of causes was committed to arbitration. There was a difference between the courts. The localized court of Wisbech referred more causes to arbitration perhaps influenced by the needs of an intensely local society. The parties in the Lichfield court might have been more reluctant to accept arbitration since both parties had already invested in the employment of proctors and proceedings had advanced. The disincentive to mediation included protection of personal honor and reputation, particularly in causes about defamation and fidei laesio. No doubt that sentiment lay behind the protracted litigation to the end in Robinson c. Rayner (York) in 1424/1425 in defamation. After all the arguments by the proctors and depositions by witnesses, a definitive sentence was issued but even then contested; an appeal against the sentence to the Papal Curia was denied.Footnote 65 On the other hand, refusal to compromise might have incurred criticism of obduracy. Simply by proceeding in a remote court, however, “plaintiffs” might have expected a decision. Whatever the motives, the resort to arbitration after the initiation of proceedings was only occasional. In the nature of the surviving records, categorical interpretation is impossible, but like in Robinson c. Rayner, reluctance to enter into arbitration might well have been an imperative for some litigants who had little sympathy with the propensity of the court to restore harmony.Footnote 66
Appendix
The documents: Lichfield consistory court
1 Two examples
* sic
<> cancelled (struck through)
^…^ superscript with caret
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Staffordshire Record Office (SRO) Lichfield Diocesan Records (LDR) B/C/1/1 fo. 248r 4 July 1469
Memorandum quod quarto die ^mensis^ Julii Anno Domini Millesimo CCCCmo lxmo nono <comparuerunt> Johannes Haryson’ ^Harys^ de Thomworth’ et <Will> Margareta Parsons ^et Willelmus Hochyns pro at * dicte Margarete Parsons^ de parochia de Sutton’ in Colflyld* in loco Consistorii ecclesie Cathedralis lich’ personaliter comparuerunt <Dictos> coram venerabili viro Magistro Johanne Fox legum Doctore ac Dicti Consistorii officio et pro bono pacis et concordie dictorum Johannis et Margarete compromiserunt in quatuor probos et honestes <vr> viros videlicet Auerey* Marschalld* Thomam Baker Dominum Willelmum Flecher Capellanum de Sutton’ in Colflyd* et Ricardum Malpas arbitratores Inter dictum Johannem et Margaretam electos de et super expensis et denariis temporibus* inter dictos Johannem et Margaretam factis habitis et receptis et quo ad materiam ecclesiasticam eam videlicet causam principalem matrimonii dicti partes debent expectare summam dicti iudicis ^+^ partes quia predicti iurauerunt super sancta Dei Euangelia et per ipsos tacta ^et dictus Willelmus Hochyns pro filia sua ad sancta Dei euangelia et per ipsum tacta iurauit^ de stando laudo et arbitrio ordinacione* in alto et in basso Dictorum arbitrorum <sub pena> in Dictis expensis et denariis sub pena xxs decem solidos soluendos parti presenti a parte non parenti et alterum* decem soluendos fabrice ecclesie Cathedralis lich’ prouiso tamen quod dicti quatuor arbitri infra dictum tempus minime laudauerint <p> tunc partes predicte unanimiter compromiserint in venerabiles viros Dominos Thomam Ferres* et Willelmum Harcowrt … (illegible) ^milites^ imperes indifferentes electos prouiso tamen quod ipsi laudum ferant citra festum Corporis christi proximum futurum et si dicti impares non terminauerint siue laudum tulerint <t> tunc stet causa inter ipsos mota in statu in quo erat tempore huiusmodi compromissi Quo die adueniente quidem Johannes Bradeburne comparuit et certificauit Judici quod Dicti quatuor arbitri siue Abbitratores* ad invicem non ^erant concordati^ <co> concordauerunt Dicte partes eo quod Thomas Baker unus dictorum iiijorum arbitratorum non erat Domi* ex quo materia erat posita Ius compromissi ideo iudex cum consensu procuratorum dictas partes* videlicet Margaretam Parsons dedit longiorem diem videlicet in diem <q> Martis proximum post festum Apostolorum Petri et pauli Quo die adueniente materia est finita <ac> per dictos arbitros de et super denariis et expensis ut promittitur
SRO LDR B/C/1/2, unfoliated leaf 9 August 1474
Memorandum quod ixo die Mensis Augusti Anno Domini Millesimo CCCC lxxiiijor comparuerunt Dominus Willelmus <Wolf> Wodrufe Capellanus et Johannes Stafford ^junior^ de Cryche in Comitatu Derbeie in ecclesia Cathedrali lich’ et pro bono pacis et concordie <int> dicti Dominus Willelmus et Johannes compromiserunt in quatuor ^viros^ videlicet Radulphum Sacheuerll’ Henricum punte arbitratores pro parte dicti Domini Willelmi electos Henricum Columbell’ ^seniorem^ et Ricardum Page arbitratores pro parte dicti Johannis electos et que causa (+) inieccionis manuum violentarum in dictum Dominum Willelmum Capellanum partem actricem ex parte una et dictum Johannem Stafford juniorem partem ream ex altera que adhuc pendet indecisa partes que predicti iurarunt super sancta Dei Euangelia et per ipsos corporaliter tacta de Stando laudo arbitrio ordinacione* in alto et in Basso dictorum quatuor (+) arbitratorum sic inter ipsos electos in omnibus causis que dependent in lege et que sunt extra legem pro se et omnibus suis ac pro Roberto Marchall’ sub pena xcim librorum quinque libras ^parti^ parenti et reliquas quinque libras fabrice ecclesie Cathedralis lich’ soluendas prouiso tamen quod huiusmodi arbitrium siue laudum feratur citra festum natiuitatis beate marie virginis proxime futurum Et si contingat quod dicti quattuor arbitratores infra dictum tempus minime laudauerunt adtunc predicte partes unanimiter concensierunt ut Dicti arbitratores eligunt in se imperam promise quod ipse imper (+) laudum ferat citra dominicam ante festum Matie Apostoli <proxime futurum> proxime ^ex^tunc sequentem et si contingat quod dictus imper non terminauerit seu laudum tulerit tunc set* causa inter ipsos mota in statu in quo erat tempore huiusmodi compromisi
2 Abstract of some other causes
SRO LDR B/C/1/1, fo. 281v Concluded 28 February 1469/70 defamation
Parties: Sir William Flecher vicar of Curdworth (Warwickshire), Richard Ley of Sutton Coldfield (Warwickshire)
Arbitrators: William Segeweke, William Chatteake, Richard Malpas, Thomas Feysy
SRO LDR B/C/1/1, fo. 283r 10 April 1470 The cause ran from 27 September 1468–5 June 1470 defamation
Parties: Thomas Toffte and his wife, Joan, Henry Hordren (both parties of Leek, Staffordshire)
Arbitrators: Thomas Plonte, William Alcoke, Richard Sutton, James Sutton
SRO LDR B/C/1/2, fo, 46v (14 April 1472) Ran from 17 February to 19 January 1472/3 testamentary
Parties: Alice Henley, Ralph Smyth
Arbitrators: William Wytby, John Welbe, Ralph Orchard, Thomas Pase
SRO LDR B/C/1/2, unfoliated leaf [20 October 1473] testamentary
Parties: Helen, Margaret and Sir Thomas Tylston (rector of Drayton Bassett, Staffordshire)
Arbitrators: Sir William Ypers chaplain, Thomas Wyxtyd the elder
SRO LDR B/C/1/2, unfoliated leaf 27 June 1474 Ran from 6 February 1473/4 to 17 October 1474 fidei laesio (debt)
Parties: Roger Segeweke, Richard Ley father of William Ley on behalf of William
Arbitrators: John Sutton, Thomas Feyse, William Depyng of Sutton, John Madoke
SRO LDR B/C/1/2, unfoliated leaf 29 May 1476 testamentary
Parties: Sir Thomas Cownur chaplain of Stafford (Staffordshire), Thomas Frebanke of Denby (Derbyshire) and his wife
Arbitrators: William Offley, John Day, Edmund Robyns, Robert Rowe, John Stepulford, Robert Wendall
SRO LDR B/C/1/2 fo. 272v 22 October 1476 Concluded May 1477 testamentary
Parties: George Bulkeley for his wife Joan Bulkeley, Christopher Dey
Arbitrators: Thomas Nores, George Aston, John Crose, Thomas Lathum
SRO LDR B/C/1/2 fo. 274r 3 December 1476 testamentary
Parties: William Salmon, Roger, Richard and William Drewre
Arbitrators: Roger Whytereson, John Cartewryght, Humphrey Tyttley, William Whetley
SRO LDR B/C/1/2, fo. 316r 20 January 1477/78 fidei laesio
Parties: John Herowod of Kinver (Staffordshire) c. Helen Rowland of Kinver
Arbitrators: Hugh Boland, Roger Byngham,
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