Front Page Titles (by Subject) EXECRABILIS IN THE COMMON PLEAS 1 - The Collected Papers of Frederic William Maitland, vol. 3
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“EXECRABILIS” IN THE COMMON PLEAS 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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“EXECRABILIS” IN THE COMMON PLEAS1
Towards the middle of Edward III’s reign, just when the national movement against papal “provisors” was coming to a climax, the king’s legal advisers and the justices of the Court of Common Pleas took upon themselves to enforce a certain papal constitution, though to enforce it in an odd, lopsided fashion, favourable to their royal lord. The pope’s weapons were to be wrested from his hand and used against him. The king was going to take possession of a great deal of ecclesiastical patronage which the pope had destined for himself. This clever move is partially revealed to us by certain discussions in the Year Books, which have never, I believe, been fully explained because they have never been compared with the plea rolls.
The constitution in question was none other than the famous Execrabilis, which fills a prominent place in the constitutional history of the Catholic Church. It is one of the stock examples of those covetously fiscal “extravagants” which are characteristic of the Avignonese papacy. For some time past popes and councils had been legislating against pluralism, that is, against the simultaneous tenure by one clerk of more than one benefice involving a cure of souls1 Among the laws striking at this evil was a canon of the Fourth Lateran Council (1215), which began with the words De multa2 This canon is here mentioned merely because a tradition among English lawyers taught, and perhaps still teaches, that a reference was made to it in the cases which are to come before us; but we shall hereafter see that this tradition has its origin in a mistake. Legislation, however, was futile. The popes themselves made it futile by their dispensations, and those who do not like popes tell us that the laws were made in order that they might be dispensed with. At last, in November, 1317, John XXII issued a long and stringent constitution whose first word was Execrabilis.3 It was stringent; it was retrospective; it attacked those clerks who were already holding several “incompatible” benefices, even though they had obtained dispensations. Such a clerk was, within one month after notice of this constitution, to resign all but one of his benefices, or else they were all to be vacant ipso iure. There were prospective besides retrospective clauses, and finally there was a clause in which we may, if we like, discover the legislator’s main motive. All the benefices vacated by the “cession” of the pluralists were “reserved” to the pope, or, in other words, it was for him to fill the vacancies. This constitution was no idle word in England. In the next year we can see Pope John busily at work collating clerks to English benefices which have been vacated by the force of Execrabilis.1 The English king was weak and worthless, and apparently the Holy Father was allowed to have his way.
A little later Edward III was on the throne, and the outcry against “provisors” was swelling. At this moment some of the king’s lawyers seem to have caught at the idea that two could play at Execrabilis, and that, while the “reservation” was studiously disregarded, the main provisions of the bull might be enforced with advantage. It will be remembered that the amount of patronage that fell to the king’s share was very large. To say nothing of the churches that were all his own, he exercised the patronage of infants who were in ward to him, and also the patronage annexed to bishoprics that were vacant. So any measure which emptied churches might do him a good turn and enable him to pay his servants.
In 1335 the king brought a Quare impedit against the bishop of Norwich for the deanery of Lynn2 The king stated in his count that John, late bishop of Norwich [that is John Salmon who died in 1325], had conferred the deanery on one Master Roger of Snettisham, who was already parson of the church of Cressingham, and who continued to hold both benefices for more than a month after his installation in the deanery, “per quod per constitucionem de pluralite predictus decanatus vacavit ipso iure,” and remained vacant until the temporalities of the bishopric of Norwich came into the hand of Edward II upon the death of bishop John. To this declaration the bishop demurred in that polite form in which we demur to the pleadings of kings. He said that he did not understand that the king desired an answer to the said declaration, “for therein he does not allege that the said deanery was vacant de facto in such wise that this Court might take cognizance of the vacancy, but merely alleges that it was vacant by the constitution against plurality, which does not fall within the cognizance of this Court.” So the bishop craved judgment. The king replied that by the constitution against plurality the deanery must be adjudged to have been vacant de iure just as though the dean had been deprived thereof by sentence. So the king craved judgment. Here the record ends, and no more of the case has been found.
So much from the roll. In the Year Book we have discussion1 After some little fencing over the question whether the king ought to say that a “bishopric,” or merely that the “temporalities of a bishopric” are in his hand when there is no bishop, the serjeants come to the main matter. For the bishop it is said, “Sir, you see how the king takes as the cause of the voidance the constitution touching plurality, and shows nothing that lies in any fact which would give cognizance to this Court, such as resignation, privation, death or succession.” Parning, who is arguing for the king, replies, “The constitution touching plurality was made by a general judgment that all should be deprived who held their beneficia curata for more than a month after the constitution, and this binds them more firmly as regards privation than a judgment that some certain person should be deprived, for the one might be afterwards annulled upon appeal; not so the other.”
The Year Book, like the roll, tells of no judgment. Probably the king and the bishop came to terms. We can, I think, see that the king’s advocates had rather a difficult course to steer. They were proposing to enforce a papal constitution directly and without any certificate from the English ordinary. What might they not have on their hands if they once began to administer the “extravagants” of Avignon? Parning’s argument seems to be explicable by the restrospective character of Execrabilis. This, he urges, is “a general judgment.” If a particular judgment of deprivation were given against a clerk and were certified to this Court, you would hold that the benefice was vacant. Well, here is a general judgment and one that is subject to no appeal. That the constitution in question was Execrabilis and not one of the earlier decrees (for example De multa) would, I believe, be clear even from this case, because of the mention made of the one month which is given to the pluralist for the resignation of his superabundant benefices. Happily, however, this is put beyond all doubt by the enrolled record of the next case, though it is left dubious in the Year Book.
In 1351, John of Gaunt, on behalf of the king, brought a Quod permittat against Simon Islip, archbishop of Canterbury, for a presentation to the church of Wimbledon in the county of Surrey1 The king’s declaration stated that Robert of Winchelsea, archbishop of Canterbury, being seised of the advowson, collated John of Sandale in the eleventh year of the reign of Edward II, and that because Pope John, in the second year of his pontificate (Sept. 5, 1317-1318) and the ninth year of the said reign (July 8, 1315-1316)2 , made a certain constitution called Execrabilis, to the effect that no clerk should occupy two beneficia curata beyond one month after the publication of the said constitution without being deprived ipso iure of both benefices, which constitution was published in the said year of Edward II, and because the said John of Sandale occupied the church of Wimbledon and various other churches [which are named] for days and years after the said publication, the said church of Wimbledon by virtue of the said constitution became vacant, and remained vacant until the temporalities of the archbishopric came into Edward II’s hands by the death of archbishop Robert, and so the right to present a clerk pertained to Edward II, from whom it descended to the now king.
Pausing here for a moment, we may remark that to us who are blessed with books of reference, the king’s story is obviously false, for Robert Winchelsea was dead, and Walter Reynolds had succeeded him at Canterbury some time before the publication of Execrabilis. But we must not allow this brutal matter of fact to spoil a discussion of matter of law. We learn from the Year Book1 that the counsel for the archbishop were at first inclined to demur. The king, they said, founds his action on a matter that does not lie in the cognizance of this Court, and we do not think that this Court will take cognizance of a matter which ought to be pleaded in Court Christian. This was a very intelligible line of defence: it is not for the Court of Common Pleas to enforce directly a law against plurality. However, we are told that the archbishop’s counsel dared not demur at this point, since if the Court was against them they would be allowed no other defence. So they, as both the report and the record show, traversed the king’s statement that the church of Wimbledon fell vacant while the temporalities of the archbishopric were in the hands of Edward II. This is the plea that is upon the roll, where no notice is taken of the abortive demurrer. A jury was summoned and gave the king a verdict. The jurors said upon their oath that after the publication in England of the constitution called Execrabilis, for some six weeks and more, John of Sandale held the church of Wimbledon and certain other churches that they named, that thereby the said church became vacant, and that it remained vacant until by the death of archbishop Robert the temporalities of the archbishopric came into the hands of Edward II. Judgment was given that the king should recover his presentation and that the archbishop was in mercy2
On the roll this judgment is followed by a remarkable writ dated April 22, 1352. Much to our surprise the king confesses that he is now informed that the title to the presentation which he had successfully urged was feigned and untrue (fictus et non verus), and that the church did not become vacant while the temporalities of the archbishopric were in his father’s hand. Therefore he revokes his presentation of a certain William of Cheston, declares that the judgment is not to be enforced, and forbids that the archbishop should be further molested. This writ comes to us as a surprise, for though, as already said, we happen to know that the jurors’ verdict must have been false when it supposed that Winchelsea’s death occurred after the publication of Pope John’s constitution, still we are hardly prepared to see Edward III quietly resigning the fruits of a judgment. The interesting feature of the case, however, is the proof that the Court of Common Pleas was prepared to put in force one half of the notorious extravagant, and this without requiring any sentence of deprivation pronounced by an English ecclesiastical court. The pope had said that in a certain event a benefice was to be void; void therefore it was, for the pope had power to make laws and even retrospective laws against pluralism. On the other hand, no word is said in record or report of the other half of the bull, for a “reservation” is plainly an attempt to touch that right of patronage which is a temporal right given by the law of the land, and such an attempt is ultra vires statuentis. The pope’s law may turn an incumbent out, but, the church being vacant, the patron can exercise his right of presentation. A very pretty plan! But what would the English prelates say?
We can now understand a petition that the clergy presented to the king in the Parliament of 1351.1 Probably it was occasioned by the action directed against the archbishop. “May it please you to grant that henceforth no justice shall hold plea of the vacation of any benefice of Holy Church by reason of insufficient age, consecration as bishop, resignation, plurality, inability, or other voidance de iure, for no such avoidance lies or can be in the cognizance of lay folk; but if our lord the king desires to take advantage of any such avoidance de iure, let a mandate be sent to the archbishop or bishop of the place where the benefice is, bidding him inquire touching this matter in the due manner according to the law of Holy Church as is done in the case of bastardy.” In answer to this prayer the king willed that if title by avoidance came in plea before his justices, whereof the cognizance appertained to Court Christian, the party2 should have his challenge, and the justices should do right. This somewhat enigmatical response was converted into a statute.3 “Whereas the said prelates have prayed remedy because the secular justices accroach to themselves cognizance of the vacation of benefices, whereof the cognizance and discussion belongs to the judge of Holy Church and not to the lay judge, the king wills that the justices shall henceforth receive the challenges made or to be made by any prelates of Holy Church in this behalf, and shall do right and reason in respect of the same.” This statute, like many others which touch the relation of the temporal to the spiritual tribunals, looks very much like an “As you were.” Bishops and justices must fight the matter out: both parties should be reasonable; but the king does not like to decide their quarrels.
I believe that the justices held their ground. The traditional law of Coke’s day was that “by the constitution of the pope” if a clergyman accepts a second benefice “the first is void ipso iure and the patron may present if he will,” although no sentence of deprivation has been passed.1 In other words, the secular court would take direct notice of the ecclesiastical rule that avoids the one beneficium curatum when the other is accepted. Coke thought that the rule in question was the outcome of De multa, the canon of the Lateran Council of 1215. That canon would in fact have justified what was done by our Courts of common law, but when Coke proceeds to say that this is the constitution that is referred to in the cases of Edward III’s day, he is mistaken. He had seen the Year Books, but did not know that the roll spoke expressly of Pope John and his Execrabilis.
Having mentioned John of Sandale and pluralism, it may be worth our while to observe that this distinguished clerk, while working his way upwards through the royal chancery towards the chancellorship of the realm and the bishopric of Winchester, had become a pluralist of the deepest dye. He, when yet a subdeacon, obtained the chancellorship of St Patrick’s at Dublin, the treasurership of Lichfield, seven churches in seven dioceses, and three prebends at Wells, Howden and Beverley, and had leave from the pope to accept additional benefices to the value of £2001 The requisite dispensation he had obtained from Clement V at the instance of the king of England. This is a good illustration of that viciously circular process from which an escape was impossible until the pope’s claims were utterly denied. The king’s “civil service” must be maintained, but, such is the nation’s impatience of taxation, that it can only be maintained out of the revenues of the churches. The only method, however, by which these revenues can be secured for such an object consists in papal dispensations. Therefore the pope’s power to dispense with the laws that he has ordained must be acknowledged. And then when the pope tries to make profit for himself out of the powers that we allow to him, we begin to complain and to pass statues of “provisors” that we dare not enforce, lest the king’s “civil service” should break down. We cannot get on with the pope, and yet we cannot do without him, for rightly or wrongly we believe that he can legislate for the church. It is an intricate and is not a pleasant tale; but it deserves telling, and yet will never be told in full until the Year Books have been properly edited.
Law Quarterly Review, April, 1896.
For a full historical account of the law see Hinschius, Kirchenrecht, III. 243 ff.
Conc. Lat. IV. c. 29; c. 28, X. 3, 5.
c. un. in Extrav. Joan. XXII, 3; c.4 in Extrav. comm. 3, 2.
Calendar of Papal Letters, II. 172-182
De Banco Roll, No. 305, Hilary 10 Edw. III, m. 214 dors. An earlier stage on De Banco Roll, No. 303, Trinity 9 Edw. III, m. 236. I have to thank Miss Salisbury for searching and making extracts from these rolls.
Y.B. 9 Edw. III, f. 22 (Trin. pl. 14); Y.B. 10 Edw. III, f. 42 (Hil. pl. 3).
De Banco Roll, Mich. 25 Edw. III, m. 41 dors.
The slight discrepancy in the dates will be noticed.
Y.B. 26 Edw. III, f. 1 (Pasch. pl. 3).
See also the case against the bishop of Worcester, Y.B. 24 Edw. III, f. 29 (Trin. pl. 21).
Rolls of Parliament, II. 245.
The statute suggests that the word should be prelate not party.
25 Edw. III, stat. 3, cap. 8.
Holland’s case, 4 Rep. 75a; Digby’s case, 4 Rep. 78b.
Register of Papal Letters, 11.9, 27, 88, 119.