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A Consistory Court in the Middle Ages

Published online by Cambridge University Press:  25 March 2011

Colin Morris
Colin Morris
Affiliation:
Fellow of Pembroke College, Oxford
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Extract

Some years ago Professor Powicke wrote of the possibility that a study of the surviving records of the medieval church courts would ‘reveal unexpected possibilities of insight into the daily lives of men and women in a pre-Reformation diocese as subjects of an active jurisdiction, parallel to that of the common law. That this jurisdiction existed we already knew, but the prospect of seeing it at work is exciting’. Since then, it has become increasingly clear that the exploration of the working of the church courts would throw light on the whole relationship between Church and People in medieval, and indeed post-medieval, England. Unfortunately, the records, although quite voluminous, have survived only in a haphazard and intermittent way, and it is, as yet, impossible to form any general conclusions about the subject as a whole. In the hope of contributing to this process, I propose to examine the working of the consistory court in the diocese of Lincoln, one of the largest and most populous dioceses in pre-Reformation England.

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Articles
Information
The Journal of Ecclesiastical History , Volume 14 , Issue 2 , October 1963 , pp. 150 - 159
Copyright
Copyright © Cambridge University Press 1963

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References

page 150 note 1 Introduction to Woodcock, B. L., Medieval Ecclesiastical Courts in the Diocese of Canterbury, Oxford 1952.Google Scholar

page 150 note 2 Upon Lanfranc's canonical collection see Brooke, Z. N., The English Church and the Papacy, Cambridge 1931, 57–83Google Scholar; Hinschius, , Decretales pseudo-Isidorianae, Leipzig 1863Google Scholar, preface, Ixxiii-lxxvi; and Le Bras, G., ‘Les collections canoniques en Angleterre après la conqufite normande’, Revue historique de droit, 1932, 144.Google Scholar

page 150 note 3 ‘Omnium negotiorum ecclesiasticorum curam episcopus habeat et ea, velut Deo contemplante, dispensed’ (Migne, P.L., cxxx. 18, cap. 39).

page 150 note 4 I Cor. v. gives an example of judgment upon a sinful brother exercised by an aposde in absence, through the local church. Sentence is to be given ‘when you are assembled, and my spirit is present, with the power of our Lord Jesus’.

page 151 note 1 I Cor. vi. 1, 5: ‘When one of you has a grievance against a brother, does he dare to go to law before the unrighteous instead of the saints ? Can it be that there is no man among you wise enough to decide between members of the brotherhood ?’

page 151 note 2 On synods generally, see Cheney, C. R., English Synodalia of the Thirteenth Century, Oxford 1941, 16Google Scholar.

page 151 note 3 Royal documents speak of the curia Christianitatis, or some similar phrase, but the title is rare in church circles. Probable exceptions are J. Raine, The Historians of the Church of York, R.S., iii. 81 and Saltman, A., Archbishop Theobald of Canterbury, London 1956, 499Google Scholar.

page 151 note 4 In the diocese of Lincoln, each archdeacon apparently had a synod. For example, see W. H. Hart, Historia et Cartularium Monasterii Gloucestriae, R.S., ii. 167.

page 151 note 5 The ‘episcopus uel officialis eius’ is to compel certain parishioners to attend synods at the abbey of St. Albans: C. W. Foster, The Registrum Antiquissimum, Lincoln Rec. Soc., ii. 14. I have only been able to find two earlier references to officials in England: 1128 (Haddan, and Stubbs, , Councils and Ecclesiastical Documents, Oxford 1869, i. 325Google Scholar) and 1149/53 (J. R. West, Cartulary of Saint Benet of Holme, Norfolk Rec. Soc, i. 56). The first, which emanates from Rome, is not evidence of English usage.

page 151 note 6 Cheney, C. R., English Bishops' Chanceries, Manchester 1950, 20–1Google Scholar. Some dioceses had two Officials for a time, but the only trace of this at Lincoln is for a short period in 1291–2:R. M. T. Hill, The Rolls and Register of Bishop Sutton, L.R.S., ii. 91, 99.

page 151 note 7 Peter of Blois complained bitterly about the success of the Official in attracting the clergy from the archdeacon's to his own assemblies: Ep. 214 (Petri Blesensis Opera, ed. Giles, I. A., Oxford 1846, ii. 161Google Scholar).

page 152 note 1 An interesting missing link in the process is supplied by a tithe cause of 1192 (H. E. Salter, Cartulary of Oseney Abbey, Oxford Hist. Soc., iv. 431). It was heard by two delegates of the bishop, and shows the continuance of many of the older practices. It was heard on the day after the Michaelmas synod of the archdeaconry, and the sentence was recorded in a charter issued by the judges on the traditional pattern. But it also shows a whole-sale adoption of terminology from the civil law, rarely used by the Church in the past: causa, lis, pars adversa. Similarly, the judges speak in the Roman manner, not as the mouthpiece of an assembly, but as absolute masters of the cause (‘in causa uellemus procedere’, ‘adiudicauimus’).

page 152 note 2 Rotuli Ricardi Gravesend, L.R.S., 94. This text refers to the Norwich consistory, but the word is applied to Lincoln in 1295 (Reg. 1. fol. 140v) and in a late thirteenth-century court paper (Bodleian MS. Dodsworth 97 fol. 82). The evidence for this period is thin, and it is very likely that the word was used earlier than these instances suggest.

page 152 note 3 Lyndwood (Provinciale, Oxford 1679, 98 note s) thus explains the meaning of the title: ‘Differunt enim consistorium, & Tribunal: nam Tribunal est locus in quo sedet Ordinarius inferior … Sed Consistorium est locus in quo sedet princeps ad judicandum’.

page 152 note 4 Reg. 3 fol. 84v.

page 152 note 5 Reg. 5 fols. 474v, 519v.

page 152 note 6 Sext. I. xiii. c. 2 (Friedberg, Corpus Juris Canonici, Leipzig 1879–81, ii. 978Google Scholar).

page 152 note 7 The commission begins: ‘licet per commissionem officii vestri vobis per nos factam excessus subditorum nostrorum corrigere nequeatis de iure’: Reg. 3 fol. 84v.

page 152 note 8 There is a good deal of evidence between 1290 and 1340 of the Official's activity in causes of correction. See, e.g., Reg. 1 fol. 112; Reg. Sutton, iv. 35–6; Lincoln Dean and Chapter MS. (cited hereafter as ‘D & C’) A/I/14 fol. 72. Whenever there was no Official, the bishop would appoint a deputy to act in all causes ‘sive iure accionis inter partes quascumque sive ex officio contra quoscumque in consistorio officialitatis Line’ mods' (Reg. 3 fol. 1v). Similar commissions were issued at fairly frequent intervals between 1293 and 1342.

page 153 note 1 This, at least, appears to be the most satisfactory conclusion from evidence which is difficult to interpret. The evidence that the Official lost the power to act in ex qfficio causes is two-fold. First, the specific mention of the power was dropped from the Officials' commissions. From 1342 they received no second commission of this sort and were, thus, left with a simple notification of appointment, which certainly would not suffice to confer the power to correct (Reg. 7 fol. 15v). From 1363, the commissions contain a grant of authority to exercise the ecclesiastical jurisdiction pertaining to the bishop; it is doubtful whether this was specific enough to cover the power of correction (Reg. 12 fols. 3v, 81v; Reg. 17 fol. 89). Moreover, the one surviving consistory roll (1430–1) contains only instance causes, differing markedly in this respect from similar documents from other dioceses. After the first commission of the new type in 1342, mentions of the hearing of correction in consistory are exceedingly rare. Against this evidence, which appears to me compelling, must be set the awkward occurrence of one commission to an Official, and two to presidents of consistory, which include a specific grant of the power to correct. (Reg. 12 fol. 361v (1389), D & C/Bj/5/18 no. 12 (1390), Reg. 15 fol. 138v (1415)). These specially worded commissions may have been required by temporary causes unknown to us; the fact that those of 1389 and 1390 are so close in time, and were in fact issued to the same man, Mr. John Keele, may suggest this. Alternatively, they may have been intended to guarantee to the Official jurisdiction, which would of course always be necessary, to proceed ex officio against offences committed with regard to causes which he was hearing in his court. Thus in the Paxton tithe cause (D & C/Bj/5/18 no. 12) the Official proceeded ex officio against parties who had obtained a royal prohibition allegedly by misrepresenting the facts of the case.

page 153 note 2 This number does not include Officials sede vacante.

page 153 note 3 The presence of the university of Oxford in the diocese may have increased the national element as against the local.

page 153 note 4 Often in both canon and civil law. Of the remaining 7, I have been unable to trace the qualifications of 2; 2 were prominent at Oxford, but are not actually described as doctors; 2 are found as licenciates in civil law; and 1 is described simply as iurisperitus. For details of Officials mentioned in the text, see Emden, A. B., A Biographical Register of the University of Oxford, Oxford 1957–9.Google Scholar

page 154 note 1 Successive, that is, except for the five-week pontificate of Thomas Bradwardine. Stratford was Official 1317–20 and Islip 1334—c. 1339.

page 154 note 2 He is found as advocate in the consistory court, sequestrator, and official of the archdeacon of Leicester.

page 154 note 3 D. Wilkins, Concilia Magnae Britanniae, 1737, ii. 571.

page 154 note 4 In 1291 and later, the Official of Canterbury wrote to the Official of Lincoln or his commissary-general (Reg. Sutton, iii. 72f., 89). The bishop speaks of a session ‘officialis nostri vel commissarii sui’ (ibid., iv. 119). The title commissary-general would imply a permanent, not an occasional, appointment, but its use by Canterbury may not reflect the Lincoln practice. Until 1347, when there was no Official, it was the bishop's practice to appoint presidents for each separate session of consistory, and this may suggest by analogy that the Official's deputy would similarly be appointed for each occasion. General appointments to hear causes in consistory appear in 1360, when Mr. John de Belver and Mr. William Spaldwick were commissioned to hear all causes there in the absence of the Official (Reg. 8 fol. 146v). In 1368, Mr. John of Longdon received a still more general commission to preside over consistory at any time (Reg. 12 fol. 60), as did Mr. John Keele in 1389 (ibid., 361v). The existence of a permanent president appears to have been common in English dioceses at the time; at Exeter the president of consistory received a stipend of 13s. 4d. each month (Hingeston-Randolph, F. C., Register of Thomas Brantyngham, 1901–6, 216Google Scholar).

page 154 note 5 Among some citations to the court surviving from 1420, the president issued most, but several emanated from the Official (D & C/A/I/14).

page 155 note 1 Probably the first was Mr. Thomas Hutton, c. 1480 (Reg. 22 fol. 55 and Form. 3 fol. 92). By the early sixteenth century a general process of amalgamation had been completed, and the offices of official, chancellor, commissary-general and vicar-general were habitually united in the hands of one man, who was usually mentioned as magister Cancellarius.

page 155 note 2 The position was vastly more complicated than this summary suggests, however, because there was a complex set of peculiars enjoying varying degrees of exemption from bishop and archdeacon, and the rural deans also had certain powers of jurisdiction.

page 155 note 3 On this office, see my article ‘The Commissary of the Bishop in the Diocese of Lincoln’ in this Journal, x (1959), 50Google Scholar. In the late fifteenth century, the tendency towards amalgamation which is apparent at the centre was also active within the archdeaconry, and it became quite common to unite in one hand the offices of archdeacon's official and bishop's commissary.

page 155 note 4 D & C/A/I/14, 155. Unfortunately this poem is of school-magazine calibre, and gives no useful information.

page 155 note 5 F. C. Hingeston-Randolph, Register of Bishop Stapledon, Exeter 1892, 115. No visitation returns exist for the Lincoln consistory, although there are mentions of visitations in 1334 (Reg. 5 fol. 476), 1412 (Reg. 15 fol. 62) and 1473 (Vj/4, inside cover). It may be safely presumed that visitation of the consistory was a normal part of the routine of an episcopal visitation of Lincoln archdeaconry.

page 155 note 6 In 1430–1 the court sat on 4–5 July, 27–28 July, 3–4 October, 7–8 November, 19–20 December, 20–21 March, 18–19 April, 16–17 May, and 26–27 June. A meeting called for February was cancelled because of the bishop's death. The customary times of meeting seem to have varied little over a century, for, in 1333–4, when the Officiality was vacant, the bishop's register shows much the same frequency of sessions.

page 155 note 7 In the early fourteenth century we find meetings at Lincoln, Stamford, Northampton, Huntingdon and Leicester.

page 155 note 8 In 1430, the Official held all the sessions there, but after the death of bishop Fleming the Official sede vacante held the court at Lincoln. In 1473 a day was fixed on visitation ‘apud Stamford pro decanatu de Stamford et consistorio’ (Vj/4, inside cover).

page 156 note 1 There is no trace at all of special sessions of consistory for the southern part of the diocese and one can only suppose that its inhabitants were having recourse to the archdeacons' courts. The consistory would then receive only that minority of business which, for one reason or another, was not justiciable before the archdeacon.

page 156 note 2 Wilkins, Concilia, ii. 571. Wilkins has erroneously extended the abbreviation cons' in All Souls MS. 42 fol. 199 to concilium. Neither here nor, as far as I know, elsewhere is there any indication of the use of this word for consistory.

page 156 note 3 Their names are rarely to be found among the beneficed clergy or the diocesan administrators. One or two of them may be identified a little uncertainly with vicars of the cathedral or poor clerks. Probably most of them also acted in the archdeaconry courts and courts of peculiars. The instruction of 1334 to appoint proctors equally from all archdeaconries points to this possibility.

page 157 note 1 In 1430–1 the proctors were commonly absent, some of them attending barely half the sessions. Absent proctors appointed others to act as their substitutes in their causes.

page 157 note 2 In 1361 bishop Gynewell, alleging in flowery language the. example of the imperial palace, ordered advocates to wear long gowns (Reg. 8 fol. 155). This seems to have been part of an attempt to buttress the position of advocates, for, since the recent outbreak of plague, which had presumably reduced the number of advocates, proctors had begun to deal with causes without their presence. Gynewell therefore re-affirmed a ruling of 1334 that no proctor might act in a cause without an advocate, except for the proctor of a defendant, and that for one day only (Reg. 8 fol. 156). In 1392, bishop Buckingham was moved to complain about the disorderly behaviour of proctors who roamed about the court chattering loudly in order to impress their clients, so that sensible men thought that they were in a tavern rather than a consistory: pocius tabernam quam consistorium episcopale non inmerito estiment (Reg. 12 fol. 389).

page 157 note 3 The procedure has often been described and a useful list of books will be found in Woodcock, B. L., Medieval Ecclesiastical Courts in the Diocese of Canterbury, Oxford 1952, 143–4Google Scholar.

page 157 note 4 The subject-matter of the causes may be divided thus:

Probably most of the causes described as ‘breach of faith’ were actions for the recovery of ordinary debts, and an unpaid loan was also often the basis of a testamentary dispute. At the end of the November court day Agnes Fraunceys of Newark appointed proctors in a cause arising from money and cloth which she had lent to John Hoggesthorpe, clerk. John had died, and she was suing his executors for the return of her property.

page 158 note 1 In addition 2 causes had been appealed to a superior court, 1 had been inhibited by Arches, and 3 had disappeared from the roll without explanation.

page 158 note 2 The registrar merely entered Pend'beside these causes, without further detail, but in other courts it was quite common to suspend causes sub spe concordie. Some inhibitions and appeals may be included among the causes suspended.

page 158 note 3 It is very common to find a note that a stage has been postponed to the next session de consensu, by consent of the parties. On other occasions there was some evident cause for lengthy delay. Thus, the cause of breach of faith between the rector of Oundle and Henry Scroty of Benefield had made no progress at all in the whole year covered by the roll; but it was one of a complex group involving the rector, and we may plausibly guess that it was being left in cold storage until some of the other issues were settled.

page 158 note 4 The whole list was postponed by a month when, at the death of bishop Fleming, the Official's commission expired and the February court day had to be cancelled. Between the first and second sessions on the roll, one of the proctors, John Boston, died. All the causes in which he was involved thereby lost one session, until another proctor was appointed.

page 158 note 5 The Rotulus omnium et singulorum suspensorum et ex[communicatorum] in causis in Consistorio Lincolnʼ habitis of 1458–9 includes many names, and it is probable that most of them were the result of non-attendance at the beginning of a suit. After one court day, for example, there are 37 suspensions and 5 excommunications recorded.

page 159 note 1 One suspects that the dust-bin category Pend' must cover a number of such inhibitions on the surviving roll. Only 1 is noted specifically. An example of the delay involved by inhibitions is provided by the Paxton tithe cause (D & C/Bj/5/18). This was begun in consistory in April 1391 and was interrupted by a royal prohibition, which was subsequently withdrawn. The cause was then appealed to Arches, where it was still in progress in July 1397. Of this time almost four years had been lost as a result of the prohibition, although we are unable to say how far the litigants' neglect, and how far the clumsiness of the system, caused the delay.

page 159 note 2 On the question, no less interesting to litigants, of the expense of the court, there is so little evidence from this period that it is better to draw no conclusion.