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• The Tribal System In Wales 1
• The Murder of Henry Clement 1
• Two Chartularies of the Priory of St Peter At Bath 1
• The History of Marriage, Jewish and Christian 1
• The Origin of the Borough 1
• A Song On the Death of Simon De Montfort 1
• Wyclif On English and Roman Law 1
• “execrabilis” In the Common Pleas 1
• Canon Law 1
• Records of the Honourable Society of Lincoln’s Inn 1
• Magistri Vacarii Summa De Matrimonio 1
• Land-holding In Mediaeval Towns 1
• An Unpublished “revocatio” of Henry Ii 1
• Canon Mac Coll’s New Convocation 1
• Canon Law In England 1
• Elizabethan Gleanings 1
• The Corporation Sole 1
• The Crown As Corporation 1
• The Unincorporate Body 1
• The Body Politic 1
• Moral Personality and Legal Personality 1
• Trust and Corporation 1
• The Teaching of History 1
• Law At the Universities 1
• A Survey of the Century 1
• Lincolnshire Court Rolls and Yorkshire Inquisitions 1
• The Laws of the Anglo-saxons 1
• The Making of the German Civil Code 1
• State Trials of the Reign of Edward I 1
• William Stubbs, Bishop of Oxford 1
• Lord Acton 1
• Sir Leslie Stephen 1
• Henry Sidgwick 1
• Mary Bateson 1

CANON LAW IN ENGLAND1

A Reply to Dr MacColl.

Some opinions which were stated in a book of mine touching the nature of the law that was administered in the English ecclesiastical courts have lately been disputed by Canon MacColl2 . As those opinions originally appeared in this Review, I crave leave to make in these pages a brief reply to a courteous critic.

1. One of my sentences, when detached from its context, has enabled him to represent my main thesis as being less definite than I meant it to be. “In all probability,” so I wrote, “large portions (to say the least) of ’the canon law of Rome’ were regarded by the courts Christian in this country as absolutely binding statute law.” Had no more than this been said I should certainly have laid myself open to the charge of preaching a vague doctrine, and of allowing a judge “to pick and choose ad libitum among the decrees of a code3 .” I thought, however, that some immediately subsequent sentences would sufficiently show what was in my mind when I used a phrase so feeble as “large portions (to say the least).” For reasons that I gave, and think adequate, I proposed to speak of those three law-books which (whatever else we may think of them) were unquestionably issued by popes—namely, the Liber Extra, the Sext, and the Clementines. I did not propose to discuss “the exact measure of authority that was attributed to the Decretum Gratiani” or the number of those post-Clementine extravagants that made their way into England1 . Neither of these matters seemed to be of first-rate importance. On the other hand I hoped to have made it clear that within the three codes there was, in my view, to be no picking and choosing whatsoever, except such as might be involved in the harmonisation of texts that were apparently discrepant or in the rejection of a passage in an older code if a newer code had expressly or impliedly repealed it. An opinion may be definite although it is diffidently held and deferentially stated.

2. Then I wrote the two following sentences:—

But if we turn [from the “Decretum”] to the three collections of decretals that were issued by Gregory IX, Boniface VIII, and John XXII, there can surely be no doubt as to the character that they were meant to bear by those who issued them, or as to the character that they bore in the eyes of those who commented upon them. Each of them was a statute book deriving its force from the pope who published it, and who, being pope, was competent to ordain binding statutes for the catholic church and every part thereof, at all events within those spacious limits that were set even to papal power by the ius divinum et naturale2 .

Perhaps a colon and break should have stood where a full stop stands. I believed that I was attributing a certain doctrine to three popes and to the principal commentators on their decretals, and I was about to argue that the same doctrine prevailed during the later middle ages in the courts of the English church. Canon MacColl, however, having transcribed only the second of these two sentences, makes the following remark:—

Professor Maitland seems here to exclude the Orthodox Church from “the Catholic Church,” for in none of the Oriental Churches was the supremacy of the Pope ever allowed. But his statement does not apply in its integrity even to Catholic countries on the Continent, like France and Austria1 .

I thought and think it evident that my words about the pope’s power were an attempt to express an opinion held not by me (it is not like my opinions), but by certain persons, who lived long ago and who knew nothing of modern France or modern Austria. Certainly, however, I did not intend to exclude the Greeks or any other baptised persons either from the catholic church or from the scope of my sentence. My statement might have been bolder than it was. The papal claim to obedience, when at its widest, comprised the whole human race. It comprised Jews, Saracens, and other infidels, and in practice the popes took upon themselves to make laws for Jews, though only among the members of the church could the decrees of these spiritual legislators be directly enforced by what were supposed to be “spiritual” pains and penalties2 . As to the eastern Christians, let it be admitted that “in none of the oriental churches was the supremacy of the pope ever allowed.” Considering what happened at Lyons and at Florence, this seems to me somewhat too large a statement; but, albeit I will concede its substantial truth, I cannot perceive its relevance. Dr MacColl does not, I should suppose, suggest that in the eyes of the popes and the leading canonists of the Latin world during the later middle ages (might we not even say from the year 1054 onwards?) the de facto independence of the Greek church was anything else than sinful and unlawful schism. Am I called upon to say what Gregory IX1 or what Raymond of Pennaforte2 thought about this matter? “According to the emergencies of the church and state” (I quote from Gibbon) “a friendly correspondence was sometimes renewed; the language of charity and concord was sometimes affected; but the Greeks have never recanted their errors; the popes have never repealed their sentence3 .” True it is that there could be no serious project of bringing all the Greeks to trial as notorious criminals. A temporal ruler may be negotiating with insurgents in a remote part of the lands that he thinks to be his while he is hanging rebels at home. So the Roman church. Mr Lea has told us that

the inquisitors of the West were accustomed to lay hold of any unlucky Greek who might be found in the Mediterranean ports of France. Their fate (he adds) was doubtless the same in Aragon, for Eymerich does not hesitate to qualify them as heretics.... In 1407 Gregory XII defined that any Greek who reverted to schism after participating in orthodox sacraments was a relapsed, and he ordered the inquisitor Elias Petit to punish him as such, calling in, if necessary, the aid of the secular arm1 .

What was the lawful fate of the “relapsed” we know.

Now if Canon MacColl had shown that in the thirteenth century or the two next following centuries the opinion of the English church, or even the opinions of prominent English divines or prelates, about the canonical position of the Greeks differed in principle from that which I am not unwarrantably ascribing to the issuers of and commentators upon the decretals, then, so I think, he would have made a good point against my book, and, what is more important, a valuable contribution to the discussion of the subject that lies before us. And far be it from me to say in my unfeigned ignorance that this point and contribution will not be made. Meanwhile I observe that Matthew Paris (to whom I turn because he hated, and, as I think, righteously hated, many of the doings of his contemporary popes, and because he thought that the Greeks were being repelled by the vices of the court of Rome) could not find short of Lucifer’s rebellious pride comparable to that of the schismatics of Constantinople who would make the Greek not a daughter but a sister of the Roman church1 .

3. I gladly pass to a definite issue that has been tendered to me by my critic. Of the case of Nicholas Hereford he writes thus2 :—

The soundness of a conclusion, like that of a chain, may sometimes be tested by the soundness of a single link. Let us apply this test to the alleged unquestioned acknowledgment of the Pope’s unlimited supremacy in the ecclesiastical courts in England. One of Professor Maitland’s panegyrists—himself, too3 , claiming to be an expert on this subject—has cited what he considers a decisive proof of the accuracy of Professor Maitland’s views as against Dr Stubbs’s. It happens, however, that this test case proves the exact opposite of what the panegyrist intended. It is the case of Nicholas Hereford, who was condemned for heresy by the Archbishop of Canterbury (A.D. 1382). He appealed to Rome, and managed to escape to the Holy City and lodge his appeal in person. The Pope received the appeal; which proves nothing. Every appeal was ostensibly a proof of his universal jurisdiction. So he heard Hereford’s appeal and confirmed the English Primate’s sentence. But the question is not whether the Pope received Hereford’s appeal and reheard his case, but whether the Archbishop of Canterbury admitted Hereford’s right of appeal. Any tyro knows that when a right of appeal is recognised the appeal suspends ad interim the execution of the judgment of the inferior court1 . Did it do so in Hereford’s case? On the contrary the Archbishop denounced the appeal as “frivolous and pretended” (frivola et pretensa), and manifestly illegal in addition (necnon errorem iuris in se manifestum continentem). The Pope was too acute to reverse Archbishop Courtney’s sentence, and thereby invite a rebuff. But the Archbishop of Canterbury not only denounced Hereford’s appeal as “frivolous,” “pretensed” (to use the old word), and illegal; he proceeded forthwith to execute his own sentence, and excommunicated Hereford for his pains at St Paul’s Cathedral on the first day on which “a very large congregation” could be present to witness it. And this striking repudiation of the pope’s authority in English ecclesiastical courts is made all the more emphatic by the fact that Archbishop Courtney was in other matters what might be called an Ultramontane.... This case alone, it seems to me, suffices to overthrow Professor Maitland’s thesis.

If Dr MacColl had said not “overthrow,” but “illustrate,” I could have agreed with him, for to me it seems that Courtenay did precisely what an archbishop who “was in other matters what might be called an ultramontane” was not merely entitled but bound to do by the canon law of Rome.

First let us set straight the facts1 . Hereford was not “condemned for heresy.” He was sentenced and excommunicated for an utterly different offence—namely, for contumacy, or, in other words, for failing to appear in court. For popular purposes it might be sufficiently true to speak of him as a condemned heretic. The case was going against him: no choice was left to him save that between condemnation for heresy and an acceptance of (among other things) the three decretals which the archbishop had been employing as a standard of eucharistic doctrine2 . Then he failed to keep his day in court, and was sentenced for his contumacy, and for nothing else. Then he tendered an appeal1 .

Next we ought to set straight the law. That I cannot profess to do. The only advantage that I should at this point claim over Canon MacColl is that, having wetted the soles of my feet on the shore of the mediaeval oceanus iuris, I know a little of the profundity and immensity of a flood that exceeds my depth and my gaze. Also I may remark that, so far as I am aware, Hereford’s “appeal” (a written document) has not come down to us, and that he may have had more to say for himself—for example, about the fact of contumacy—than we are apt to suppose. But I am well content to accept the archbishop’s statement of the case, and to submit to the judgment of those whose judgment is worth having that Archbishop Courtenay (the iudex a quo) did what was required of him by the canon law of Rome if he declined to “defer to” but “refuted” as vain, frivolous, and manifestly contrary to law an appeal tendered by a contumax from the sentence passed upon him for his contumacy. It may be sufficient for the present if at this point I vouch as my warrantors the Code2 , the Decretum1 , Speculator2 , William Lyndwood3 , and Dr Paul Hinschius4 .

If any one has said that the iudex a quo (or “judge of the court below”) was always bound to defer to an appeal or to “stay execution,” I am not he, and I think that he has made a considerable mistake. I see that the Speculator, by jumbling together matters of form and matters of substance, contrives to make above thirty exceptions to the general rule. I see that Dr Hinschius, speaking of criminal causes, mentions four exceptions of great importance: these are the case of the contumax, the case of one who has been condemned on his own confession, the case of one who has been condemned on the ground of “notoriety,” and the case of a definitive sentence against a heretic1 . Had a Lollard appealed from a definitive sentence against him, he would have found that a decretal of Boniface VIII forbad any deference to his appeal2 , and in accordance with the canon law of Rome that appeal might have been stigmatised as frivolous3 . The pope, so I understand, was regarded as being competent to decide appeals in all causes, and, if he heard the appeal of Nicholas Hereford4 , he did not exceed the powers which were attributed to him5 ; but none the less there were important cases in which the duty of the inferior judge was to “refute” or refuse the appeal, and to proceed to execution. In the case of an appeal against a definitive condemnation for obdurate heresy he would forthwith deliver the appellant to the secular arm, and death by fire would follow before the pope heard anything about the matter. The procedure against the suspects was in the highest degree stringent and summary; the condemned was allowed no second chance. If the pope seldom or never revised an English sentence in a case of heresy, that, so I think, was due to a cause of which no church should boast—a deadly determination to root out heresy sine strepitu et figura iusticiae. I see no reason for accusing the English bishops of inhumanity; but the weapons which they wielded when they sat as “inquisitors of heretical pravity” were masterpieces of cruelty.

The mediaeval situation is illustrated by what Ayliffe understood to be the law of the English church in the eighteenth century. In a cause of heresy the archbishop was competent to revise the sentence of the bishop, but an appeal did not suspend the bishop’s power: he could proceed, unless an inhibition came to him from above1 . However, as already said, it was not for heresy that Hereford was condemned by Courtenay. His, to all appearance, was a perfectly plain case falling under an elementary rule of law.

Substantially in the right as I think that the archbishop must have been in declining to defer to the appeal of the contumacious, he proceeded to put himself formally in the right by issuing the document upon which Canon MacColl has commented. That document, as I understand it, is an example of what were known as “refutatory” apostoli1 . Apostoli of one sort or another the iudex a quo was bound to give. If he was deferring to the appeal in the ordinary way, he issued “dimissory” apostoli; he would issue “reverential” apostoli if he deferred merely out of reverence for the iudex ad quem, while “refutatory” apostoli were in place if the inferior judge was declining to defer at all2 . Canon MacColl presses me with another case3 : a case in which Archbishop Islip “refuted” an appeal made by his suffragan the bishop of Lincoln, and issued refutatory apostoli. Now which of these two English prelates was in the wrong I do not know, nor, so far as I am aware, have we in printed books nearly sufficient material for deciding that question. Certainly we must not condemn the bishop unheard. Also we may notice that this was one of those cases, common in the middle ages, in which an ecclesiastical judge had a personal interest in the validity of his own sentence, and that even impartial judges sometimes make mistakes and sometimes become irritable when there is talk of an appeal. However, as I read the documents, the archbishop by his commissary had pronounced the bishop contumacious, and the bishop in his appeal declared that he had not been contumacious, as he had never been properly summoned. Thereupon the archbishop did what the law required of him: he issued apostoli. His apostoli were of the refutatory kind, and this was the proper and, as I understand, the only proper kind if he was still of opinion that the bishop had been summoned and was contumax1 . To stop the bishop’s appeal he was utterly powerless, unless he resorted to lawless force. Professor Tout says that Clement VI decided in Islip’s favour1 , and before Canon MacColl suggests the dread of “a rebuff” as a ground for the decision he should consider whether, had the supreme pontiff’s judgment been favourable to the bishop, there would have been no room for a hint that the popes were at their old policy of humbling the metropolitan in the eyes of his suffragans. Be this as it may, the appearance of refutatory apostoli will do nothing whatever towards proving the non-Roman character of the law administered by the court of Canterbury unless we see appeals refuted, and systematically refuted, in cases in which “the canon law of Rome,” or, as I prefer to say, the ius commune of the catholic church, commanded their acceptance. As it is, I cannot think that Canon MacColl’s efforts have been felicitous.

4. “In the year 1414 the University of Oxford,” so Dr MacColl says2 , “presented to King Henry V certain articles for the reformation of the universal church3 .” He is right in adding that the seventh of these articles protested “against the reservation of firstfruits, authorised by no written law, “and he may be right in giving to a remarkable phrase the prominence of italic type. But when without argument he assumes that by the term ius scriptum the university meant some “national law” of England he seems to me to be hasty. Why, we may ask, did these learned doctors and masters use this phrase of one of those many grievances proceeding from Rome of which they complained? Was it not because in the set of books which already had gained the name of “corpus Iuris Canonici” there was no law reserving the firstfruits, or, in other words, no law prescribing the payment of annates1 ? It seems to me that this was the point that they desired to make, and in 1414, when the council of Constance was meeting, it was an effective point that others were making. This petition proceeded, as we may see if we read it, from reformers of a very moderate kind, and in the matter of papal “reservations” a return to the ius scriptum or corpus iuris had become the project of a moderate party which would be content with changes that were not radical2 . No doubt, as has been remarked by historians, this use of the term ius scriptum implied an opinion that uncodified extravagants did not stand upon one level with the three old codes. I hope that I have said nothing implying that such an opinion was not entertained by many Englishmen in the early years of the fifteenth century, when the conciliar movement was strong and hopeful, though I believe that a short time afterwards Lyndwood would have rejected the distinction. Indeed I feel in no way concerned to dispute the interpretation that Dr MacColl has put upon the text, for the whole scheme of papal “reservations” was opposed not only to the unwritten law of the English temporal courts, but to written statutes of the English parliament1 ; nevertheless I venture to think that not this but something else was in the minds of the petitioners at Oxford who desired a conciliar reformation of the universal church. The way in which they thought of ecclesiastical law may be illustrated by their expressed desire for a settlement of the controversy between the seculars and the friars as to whether “the statute of the lord Clement, cap. ’Dudum,’ or the statute of the lord John, cap. ’Vas electionis,’ had derogated from the ancient statute ’Omnis utriusque sexus2 .’”

5. “And how would Professor Maitland reconcile the deposing power claimed and exercised by the popes with his theory3 ?” Very easily. As the deposition of a king was not, at least obviously, a spiritual punishment, and as the substitution of one prince for another was not, at least obviously, an act of ecclesiastical jurisdiction, even those men who made the pope a monarch within the church were logically free to say that neither by laws nor by judgments could popes or ecclesiastical councils dispose of temporal lordships. Those two questions should be kept apart: the question touching the delimitation of the fields of worldly and spiritual affairs, and the question touching the pope’s power within the spiritual domain. Then I am challenged to say what I think of those famous words in what Lyndwood knew and often cited as the canon “Excommunicamus1 ,” those words, translated by Canon MacColl, which threaten that the pope will discharge from their oath of fealty the subjects of a prince who does not purge his land of heresy. Surely (so my adversary seems to argue) the English church was never committed to this nonsense. My answer can be short. I am not persuaded that the words in question would have been regarded by the generality of Englishmen in the fourteenth and fifteenth centuries as a valid part of the law of the church. It is even possible that some Englishmen, without risk of condemnation, would have said that this clause infringed the law of God, since the regnum proceeded immediate a Deo. The question lay outside the domain of practicable law, and even beyond the limit of easily imaginable events. But at the same time we ought to be very cautious at this point. If the low-church theory (so we might call it) which co-ordinates the state with the church was known in England, the high-church theory2 which concedes to the pope utrumque gladium was also known in a country which had given to the world not only William of Ockham, but John of Salisbury. And heresy was still hideous. I do not feel sure of Lyndwood, who was very familiar with the useful parts of “Excommunicamus”; I do not feel sure of Arundel1 . And, turning from the clergy to the laity, I fear that Chief Justice Sir John Fortescue, that apostle of English constitutionalism, held extravagantly papalistic opinions concerning the subserviece of temporal princes, and would have allowed that if (per impossibile) the English king failed to deal faithfully with heretics the pope might punish him and legitimately declare that the contract of fealty was dissolved2 .

Nor must it be forgotten that the canon “Excommunicamus” was not merely a chapter in the decretals of Gregory IX. A professional canonist might perhaps say that when once it stood in that statute book its earlier history became unimportant. But we, if we wish to know whether its issue shocked mankind, must remember that it was a decree of the Lateran council of 1215. Not only were hundreds of patriarchs, primates, archbishops, bishops, and other prelates assembled, some from England, some even from the orient, but an eastern emperor, a western emperor elect, and the kings of France, England, Hungary, Aragon, Sicily, Cyprus, and Jerusalem were represented. I fear that “Excommunicamus” when it appeared did not shock the short-sighted princes of the world. Perhaps by that time nothing that the church could have done would have shocked Count Raymond or the hunted heretics.

[1]English Historical Review, Jan. 1901.

[2]Maitland, Roman Canon Law in the Church of England, 1898; MacColl, The Reformation Settlement, ed. 8, 1900.

[3]MacColl, p. 760.

[1]Maitland, pp. 3, 9.

[2]Maitland, p. 3.

[1]MacColl, p. 755.

[2]See the title De Iudaeis, Sarracenis et eorum servis, X. 5, 6, and Langton’s Constitutions, in the appendix to Lyndwood’s Provinciale (ed. 1679), p. 6. As the ecclesiastical legislator had no direct hold upon the Jew, he was compelled at this point to look for aid to the temporal prince, but seems to have regarded such aid as a matter of right.

[1]See the two letters in Matthew Paris, Chron. Maiora, III. 460, 466.

[2]Lea, History of the Inquisition, III. 616: “The Greeks were not only schismatics but heretics, for, as St Raymond of Pennaforte proved, schism was heresy.”

[3]Decline and Fall, ch. lx., speaking of the year 1054.

[1]Lea, III. 620.

[1]Mat. Par. Chron. Mai. III. 446-7, ann. 1237: “Visa igitur tanta malitia et oppressione, erigitur Graeca ecclesia contra Romanam, imperatorem suum expellendo, et soli archiepiscopo suo Constantinopolitano, nomine Germano, obediendo. Qui procaciter Graecorum errores, non tantum veteres, immo novos et adinventos defendens, enormiter a religione catholica delirat. Eorum enim haec est desipientia: asserunt Spiritum Sanctum...Praeterea conficiunt de fermentato...Constituit igitur sedem suam, quasi alter Lucifer, in Aquilone, scilicet in Constantinopoli, Graecorum civitate metropolitana, filius scilicet degener et Antipapa, vocans ecclesiam suam et asserens digniorem, et ecclesiam Romanam sororem eius dicens esse, non matrem.” See also ibid. VI. 336: an error of the abbot Joachim. Also the account of the council of Lyons given by Wykes (Ann. Monast. IV. 258): “Graeci...spreta superstitione schismatica qua usque hactenus utebantur....” Walsingham, II. 230, ann. 1399: the pope orders a collection to be made in England for the defence of Constantinople, “attendens quod licet imperator esset schismaticus, Christianus tamen esset.” That Manuel in England and elsewhere was suffered to hear mass according to the Greek rite is, I fear, but poor testimony to the prevalence of tolerant opinions. Compare the privileges that Roman catholic ambassadors enjoyed in later times.

[2]MacColl, p. 755.

[3]I feel fairly sure, from what Mr MacColl is good enough to say elsewhere, that this “too” does not imply that I claimed to be an expert. My “panegyrist” is, I believe, Mr. Round. His opinions are always weighty with me whether they agree with mine or no. But it will be understood that I am not presuming to undertake his defence against Dr MacColl.

[1]It is more than possible that what is known to tyros is unknown to me, but I fancy that at this point the tyro should have a list of exceptions ready. See, for instance, Gul. Durandi, Speculum Iuris, 2, 3, de appell. § 11 [ed. Basil. 1574, p. 865]: “De effectu appellationis est videndum. Et quidem effectus is est, ut ea pendente nil innovetur sed omnia in eo statu permaneant in quo erant tempore appellationis emissae.... Excipiuntur tamen quidam casus in quibus aliquid innovatur...Primus...Secundus...Tertius...Quartus...Quintus est: nam si excommunicatus appellat a sententia excommunicationis, post appellationem potest denunciari excommunicatus: Extra, de appell. pastoralis. de hoc. [c. 53, X. 2, 28]...Sextus...Decimussextus....”

[1]The materials known to me consist of the documents printed by Wilkins, Concilia, III. 158 ff., and the story told by Knighton, Chron. II. 172-4. See also Fascic. Zizan. pp. 319-29.

[2]Namely, Firmiter credimus, c. 1, X. 1, 1; Quum Marthae, c. 6, X. 3, 41; and Si Dominum, c. un. Clem. 3, 16.

[1]Concilia, III. 165: “Nos W.... archiepiscopus...primas...legatus...inquisitor...magistros N. H. et P. R. sacrae paginae professores, habentes hos diem et locum ex praefixione nostra ad audiendum decretum nostrum in negotio haereticae pravitatis, praeconizatos, diutius expectatos, et nullo modo comparentes, pronunciamus contumaces: et in poenam huiusmodi contumaciae ipsos et eorum utrumque excommunicamus in his scriptis.” This sentence is the act of excommunication. What followed some days after in St Paul’s Cathedral was a “denunciation” of an excommunicate.

[2]l. 1, C. 7, 65: “Eius qui per contumaciam absens, cum ad agendam causam vocatus esset, condemnatus est negotio prius summatim perscrutato, appellatio recipi non potest.”

[1]c. 41, § 11, C. 2, qu. 6: “Sunt etiam quorum appellationes non recipiuntur. Non enim potest recipi eius appellatio qui per contumaciam absens cum ad agendam causam negotio prius summatim perscrutato vocatus esset, condemnatus est.” See also c. 6, C. 24, qu. 3.

[2]Spec. 2, 3, de appell. § 2 [ed. Basil. 1574, p. 830]: “In quibus autem casibus et ex quibus causis appellari possit, et quando appellatio teneat vel non, est videndum. Et quidem in omni causa et ex omni gravamine appellari potest nisi ubi sit prohibita appellatio...Videamus ergo ubi sit prohibita...Primo igitur prohibita est appellatio, quia contumax non auditur appellans...quod verum est in vero contumace, secus in ficto seu praesumptivo....”

[3]Lyndwood, de appell. c. frequens, gl. ad v. appellatum [ed. Oxon. 1679, p. 114]: “Nam vere contumax non auditur appellans, et intelligo verum contumacem illum qui inventus et personaliter citatus, cessante impedimento legitimo, non comparet in termino.”

[4]Hinschius, Kirchenrecht, VI. 130 [sub tit. “Die Strafgewalt—Geltendes Recht—Appellation—Der Ausschluss der Appellation”]: “Die an sich statthafte Appellation wird demjenigen versagt, welcher in der früheren Instanz trotz ordnungsmässiger Ladung contumax gewesen ist.” This is a statement of the existing law, but the authorities cited in its support (besides references to Schmalzgrueber, Hergenröther, and a decree of Clement VIII) are mediaeval.

[1]Hinschius, l.c.

[2]c. 18 in Sexto, 5, 2: “Non obstantibus appellationibus seu proclamationibus praedictorum nequitiae filiorum, quum...appellationis et proclamationis beneficium expresse sit haereticis...interdictum.”

[3]When Canon MacColl (p. 757) urges that “an appeal on a question of heresy cannot be described as frivolous” I cannot agree with him. This was the right word to use in any case in which the law bade the judge disregard the appeal. See Lyndwood’s gloss on the word “frivole,” on p. 115: “Vel potest dici appellatio frivola quando nulla causa est expressa, vel non legitima, dato quod sit vera, vel, licet sit legitima, est tamen manifeste falsa.” The “contumax” and the condemned heretic have no legitimate causes of appeal.

[4]Knighton’s account of the matter is hardly precise enough to warrant a decision as to the exact nature of the proceedings at Rome.

[5]Hinschius, Kirchenrecht, V. 467, VI. 130, 363, 381. I understand that from an acquittal and from an interlocutory sentence an appeal was possible. Occasionally even Spanish inquisitors were deprived of their prey by the pope. See also Lea, History of the Inquisition, I. 361, 451; Tanon, Histoire des tribunaux de l’inquisition, 1893, pp. 434-8.

[1]Ayliffe, Parergon, 1726, p. 77: “In a cause of heresy by the Canon Law every judge proceeds appellatione remota; but if the person condemn’d of heresy may (on a pretence of an unjust sentence) appeal from the sentence of the bishop, who is the ordinary in this case, unto the archbishop, such archbishop may examine the matter and see whether the sentence of heresy be unjust or not. Yet this appeal does not suspend the jurisdiction of the judge a quo, unless it be from the time that the judge ad quem receiv’d the appeal and sent his inhibition to the judge a quo.”

[1]Wilkins, Concilia, III. 165. Observe the attestatory clause, “In cuius dationis apostolorum testimonium....”

[2]For the practice in this matter see Spec. Iuris, 4, 2, de appell. § 3 [ed. cit. pp. 195 ff.]. It will be remembered that apostoli, and indeed the whole scheme of appeals, had been transferred to the ecclesiastical field from the Roman imperial system, in which the “iudex a quo” would be very distinctly the inferior of the “iudex ad quem,” and all judges would be the officials of the princeps.

[3]MacColl, p. 757.

[1]For this case see the documents in Wilkins, Concilia, III. 3-8, noting (p. 4) the commissary’s judgment that the bishop is “contumax,” and the bishop’s (p. 6) declartion that he was never summoned: “ad hoc non vocato aliqualiter vel praemunito, sed absente non per contumaciam.” The archbishop’s judgment would not prevent the bishop contesting the fact of contumacy in the court above. Hinschius, Kirchenrecht, VI. 130, n. 5: “Wohl aber kann deswegen appellirt werden, weil das Vorhandensein der contumacia zu Unrecht vom Richter angenommen worden ist.” See also Lyndwood, c. frequens, tit. de appell. (2, 7), gl. ad v. “appellatum” (p. 114). For more of this quarrel over the election and confirmation of a chancellor at Oxford see Wood, Historia et Antiquitates, I. 172; Lyte, Hist. Univ. Oxford, p. 169; Rashdall, Universities, II. (2), 446.

[1]Dict. Nat. Biogr. xxix. 76.

[2]MacColl, p. 758.

[3]Wilkins, Concilia, III. 360-5.

[1]Besides art. 7 the term “ius scriptum” occurs in art. 24 (relating to the excessive fees demanded by bishops) and in art. 25 (relating to the excessive retinues of archdeacons). In the last of these instances I see an allusion to c. 6, X. 3, 39, which was treated as law in one of Langton’s constitutions: Lyndwood, p. 220, gl. ad v. “evectionis numerum.” I admit, however, that neither of these two instances is decisive. For a contemporary use of the term by Archbishop Arundel see Lyndwood, p. 289, and the gl. ad v. “limitata in eo.”

[2]Hübler, Die Constanzer Reformation, 1867, pp. 49 ff., 82 ff.; Schulte, Geschichte der Quellen und Literatur des canonischen Rechts, II. 56.

[1]Maitland, Roman Canon Law, pp. 62-73.

[2]In other words, what is the relation between c. 12, X. 5, 38 (a decree of Conc. Lat. IV.), and c. 2, Clem. 3, 7 (a decree of the Council of Vienne), and c. 2, Extrav. Comm. 5, 3 (an extravagant of John XXII)? Compare the heretical opinions of Henry Crompe, Fascic. Zizan. 343 ff.

[3]MacColl, p. 759.

[1]c. 13, X. 5, 7.

[2]For the two theories see Gierke, Genossenschaftsrecht, III. 519 ff.

[1]Surely it were difficult to find in the middle ages a much stronger statement of the papal supremacy over the church than the following: “Christ ordained St Peter the apostle to be his vicar here in earth; whose see is the church of Rome; ordaining and granting the same power that he gave to Peter should succeed to all Peter’s successors, the which we call now popes of Rome. By whose power in churches particular, special been ordained prelates, as archbishops, bishops, curates, and other degrees, to whom Christian men ought to obey after the laws of the church of Rome. This is the determination of holy church.” Yet this comes in writing from Archbishop Arundel on a solemn occasion when he is trying Oldcastle (Fascic. Zizan. p. 442, spelling modernised). See also Lyndwood, p. 292, gl. ad v. “declarentur": “Nam omnino censetur haereticus qui non tenet id quod docet Sancta Romana Ecclesia.... Dicitur etiam haereticus qui ex contemptu Romanae Ecclesiae contemnit servare ea quae Romana Ecclesia statuit.”

[2]Fortescue, Works, ed. Clermont, p. 535: “All kings and princes are subjects to the pope in their persons as in their temporalities. He ought to punish them for their negligence and defaults. Thus have popes punished emperors and kings when they have misruled their subjects, as we read in the chronicles of old days. Christ is King of all kings, and Lord of all the world, having in the hands of the pope, his vicar, both swords, for which he is called ’Rex et Sacerdos,’ and compelleth all princes, as well spiritual as temporal, to come to his great councils.” See also Mr Plummer’s remarks in his edition of Fortescue’s Governance of England, p. 103. Fortescue seems to have held in germ that combination of opinions which, so I am told, is characteristic of some of the great Jesuits: the king derives his power from the people; the pope derives from God a power which in principle hardly falls short of omnipotence, though in temporal matters it should only be exercised upon extraordinary occasions.