<<

˝˛­. 3
(Ô˝ňŃţ 9)

Đ╬─┼đĂ└═╚┼

>>


Sylvia Thrupp, The merchant class of medieval London, 1300┬±1500 (Chicago,
96

1948) pp. 122, 284. In the county of Surrey alone, the names appearing in the
feet of ┬®nes strongly suggest that a further search and comparison with Patent
rolls will produce more examples of foreign merchants' land acquisition.
However, multiplication of examples is not of vital importance to our argument
that foreigners were under no legal restriction in purchasing and holding land in
medieval England. We approach this topic from a different perspective in the
following chapters.
History
56

about the mixed jury?97 Should we understand that the above-
quoted passage was focused exclusively on the king's court;
and, therefore, the legal remedies of the piepowder court were
irrelevant? Alice Beardwood's work (1931) makes it unneces-
sary for us to go over this ground again. We rely on her
conclusion that foreign merchants were free and able to sue all
manner of personal actions in the king's court as well as in the
Chancery and in the Exchequer until the end of Edward III's
reign.98
What about real actions? Should we follow the universally
accepted opinion that foreigners were unable to bring real
actions in England?99 That would mean that even if they could
acquire houses (burgage tenements), they had no means of
defending or claiming them. Take the passage from the Carta
mercatoria of 1303 which promises a mixed inquest for foreign
merchants `in all cases (in omnibus generibus placitorum) invol-
ving foreign merchants except criminal cases carrying a death
penalty'. Are we to believe that real actions were not among
the omnibus generibus placitorum? Or should we just say ┬± as
many historians do ┬± that foreign merchants were simply not
interested in real property while domestic merchants were
obsessed with land?100
(3) Finally, John Swart's letters patent promise that he shall be as
free and entire (libere et integre) as any of the king's liege-men
originating from this kingdom, unencumbered by distur-

See above, pp. 30┬±1, 38┬±9.
97

Beardwood, Alien merchants, pp. 80ff. See also Select cases in the court of King's
98

Bench under Edward I, vol. I, 55 Selden Society (1936), pp. 78┬±7 (1281).
Beardwood argues as follows: `aliens had practically the same rights in private
99

law as subjects had, excluding, of course, real actions'. See Alien merchants, p.
80. Even though she herself noted that foreigners were bequeathing lands in
London (ibid., p. 61), she did not think it necessary to question the canonical
view that aliens were unable to bring real actions.
Professor Maitland suggested as follows: `they [foreign merchants] do not come
100

here to settle; they do not want land; they would be well content were they
permitted to lodge where they pleased'. Pollock and Maitland, The history of
English law, I, p. 464. Beardwood, Alien merchants, pp. 61┬±2, 78, repeats the
same view: `[foreign merchants] were not likely to be concerned in cases arising
out of the ownership or possession of land'. On the other hand, the over-
whelming importance of land for London merchants is demonstrated by
Thrupp, The merchant class, pp. 122ff. Jacques Le Goff also mentions
`preoccupations terriennes des hommes d'affaires medievaux'. Le Goff, Marc-
├‚ ├‚├‚
hands et banquiers, p. 8.
Foreign merchants 57

bances and demands made by the king, his heirs or his
servants: `adeo libere et integre sicut unus de ligeis nostris
infra dictum regnum nostrum oriundus absque perturbacione
seu impeticione nostri vel heredum nostrorum aut minis-
trorum nostrorum quorumcumque'. The mention of mercan-
tile liberties such as `emere et vendere' or `negotia sua facere
possit' is silently dropped from Swart's letters patent. Instead
of the tedious, but precise enumeration of `thelonio, pontagio,
muragio, etc.', we ┬®nd only the vague expression, `perturba-
cione seu impeticione'. It appears moreover that the `perturba-
cione seu impeticione' referred only to the customs and other
demands made by the king or his of┬®cers. In fact, the mention
of regional tolls was completely deleted. Does it mean that
England suddenly became a `toll-free' zone? Also, instead of
the well-established cliche `the recipient shall be free and quit
├‚
(libere et quiete) of tolls, pontages, etc.', we see a different
expression, `free and entire (libere et integre)'. It is no longer a
question of whether one would or would not have to pay
particular tolls and customs. The question now is whether
one's very existence, one's whole being, is free and entire, or
somehow lacking in perfection and fullness. According to the
letters patent, John Swart was to be as `free and entire' as any
of the natural-born liege-men. Does that mean that all
natural-born liege-men were already `free and entire'? What
about the English-born villeins? Were they also legally free,
complete and entire? Or, legally speaking, were they not
persons?



CONCLUSION

We begin our investigation with these questions in mind. We aim
to solve at least some of these puzzles by the end of this book.
Letters patent appearing from the 1380s onwards, of which John
Swart's were an example, seem to have been composed by a
person who held very different assumptions about mercantile
liberties and exemption from the higher rate of customs duty. The
clauses which we have examined indicate that the drafter was
either completely ignorant of the previous legal development, or
was determined to ignore all that had gone on in the preceding
History
58

centuries. The text was no longer focused on mercantile liberties.
We no longer hear anything about being a free-man of a city.
Previously, the letters patent would enumerate speci┬®c items of
liberties dispassionately bought and sold. John Swart's letters
patent, on the other hand, are full of passionate claims about the
relationship of faith and allegiance which binds the king and his
subjects together. The text leads us to imagine that as long as John
Swart remained faithful to the king, his legal existence would be
complete and entire. He would no longer have to haggle over this
or that item of liberty. The plenitude of his legal existence would
guarantee the ability to enjoy the full range of liberties available.
He would no longer have to pay for the liberties either. The king
would freely give out all the liberties as long as John Swart
ful┬®lled the following conditions:
(1) to do liege-homage to the king (`quod prefatus Johnnes nobis
homagium ligeum faciat'); and
(2) to dissociate himself from his countrymen (`quod non sit de
societate mercatorem alienigenarum').
We have never encountered such requirements before. Perhaps,
from now on, it might not be entirely unreasonable to expect that
every body, as long as he remained faithful to the king, might be
able to claim liberties. Our lord the king seemed to be suddenly
imbued with a new sense of liberality and started to give liberties to
all his beloved subjects (┬®deles) as a matter of grace (gratis). All he
would ask in return was that they be faithful to him. Foreigners,
however, were now running the risk of being `unfree and incom-
plete' as they lacked faith and allegiance to our lord the king.
John Swart was probably no different from other foreign
merchants of the previous reign. He probably did not ask for
something radically different from previous foreign merchants'
usual demand: commercial liberties and exemption from the
higher rate of customs duty. We have no ground to suspect that
the factual circumstances surrounding his application have much
altered. But the response suddenly took on a grandiose tone. It
now contained pointed assertions about general and far-reaching
legal issues (property holding, access to legal remedies and fullness
of legal standing). Exemption from the higher rate of customs
duty ┬± probably the main reason for John Swart's application ┬±
was more or less drowned amidst these powerful statements, most
Foreign merchants 59

of which must have sounded rather odd to this merchant as they
were af┬®rming what he had already been enjoying. Strange as they
may have sounded to the applicant, these lofty statements indicate
that faith and allegiance have now been brought to bear the
awesome weight of the legal edi┬®ce, which the concept of libertas
used to bear for such a long time. John Swart's letters patent
became the model of the letters patent to be issued in the following
centuries.101

For many references and the full text of a few exemplary letters patent of the
101

┬®fteenth century, see Parry, History of naturalization, pp. 25ff. For the
sixteenth century, see Letters of denization and acts of naturalization for aliens in
England, 1509┬±1603, ed. William Page (Lymington, 1893).
3


FOREIGN CLERKS




`Ecclesiastical property', wrote John of Paris in the ┬®rst years of
the fourteenth century, `has been given to communities, not to
individual persons. So therefore, no one person has proprietary
right and lordship over ecclesiastical property. It is the community
concerned which itself has these.' If an individual person has a
right of usage over the property for his maintenance commensu-
rate to his needs and rank, `he has this not as an individual in his
own right but purely as part and member of the community'.1
Professor Maitland also recognises that throughout the Middle
Ages, `it is never forgotten that the bishop who as bishop holds
lands . . . holds these lands as head of a corporation of which
canons or monks are members'. It is not to be doubted either that
the parson of a parish church exercises his right over the church
and its appurtenances in a rather peculiar way.2 Obviously,
churchmen's landholding poses a number of technical and theore-
tical issues which make it distinct from laymen's legal control of
land.3
This, however, is not the topic I propose to discuss in the
present chapter. Whether a person's access to the control of land is
categorised as ownership or usufruct, whether such a control is

John of Paris, On royal and papal power, trans. J. A. Watt (Toronto, 1971)
1

pp. 96┬±7.
F. W. Maitland, `Corporation sole' in Maitland ┬± selected essays, ed. H. D.
2

Hazeltine et al. (Cambridge, 1936) pp. 82┬±9. The situation in medieval France is
discussed by P.-C. Timbal, `La vie juridique des personnes morales ecclesiastiques
├‚
en France aux XIIIe et XIVe siecles' in Etudes d'histoire du droit canonique de ├‚es
├‚die
Á
Á
a Gabriel Le Bras (Paris, 1965) pp. 1425┬±45.
For a useful guide on this subject, see Janet Coleman, `Property and poverty' in
3

The Cambridge history of medieval political thought, c. 350┬±c. 1450, ed. J. H.
Burns (Cambridge, 1987) pp. 604┬±48. Coleman, `Medieval discussions of
property: Ratio and Dominium according to John of Paris and Marsilius of
Padua', 4 History of Political Thought (1983) 209┬±28.
60
Foreign clerks 61

exercised by the person in his own right or in right of a commu-
nity: these are questions which do not have immediate relevance
to our argument. Categorisation of a person's legal position has no
doubt the effect of determining the variety and range of the legal
remedies the person can have recourse to in protecting and
promoting his interests. But as long as all relevant remedies are
suf┬®ciently reliable and effective, which category they belong to is
of little importance to us. Ownership or usufruct is not an end in
itself. It is merely a means ┬± a legal device with practical
procedural consequences ┬± to satisfy one's needs and desires.
Churchmen, whether English or foreign, were not in a position to
make use of all the legal devices which lay landholders had at their
disposal. But they were using other remedies suited to their
particular legal position. The question which I pose in this
chapter is whether foreign clerks were denied all or some of the
remedies which English clerks were allowed to use in securing an
access to ecclesiastical property in England. I propose to discuss
this question with particular reference to the distribution and
conferment of ecclesiastical bene┬®ces in the thirteenth and four-
teenth centuries.
It is tempting to present this narrow topic in a sweeping
language of the `struggles' between the Church and the State, or
the `con¯icts' between the universalism of the medieval Catholic
Church and the localism of a `national' church, or the `tension'
among the papacy, lay magnates and secular rulers. The tempta-
tion is even greater for the fourteenth century because papal
provisions were then playing a decisive role in regulating church-
men's access to ecclesiastical property and it has been a long-
standing interpretative tradition to see in the mechanism of papal
provision a con¯ict structure generating the momentum for the
constitutional changes of the late-medieval Western Church.4 But
the broadly sketched `con¯icts' and `struggles' are not entirely
suited to an analysis of the legal framework within which ecclesias-


See, for example, the excellent works of Colin Morris, The papal monarchy, the
4

western Church from 1050 to 1250 (Oxford, 1989); Kenneth Pennington, Pope and
bishops, the papal monarchy in the twelfth and thirteenth centuries (Pennsylvania,
1984); Jean-Philippe Genet and Bernard Vincent, eds., Etat et Eglise dans la
Áse
gene de l'e ├‚tat moderne (Madrid, 1986); Stuart Mews (ed.) Religion and national
identity (Oxford, 1982).
History
62

tical bene┬®ces were distributed. A brief explanation is necessary to
clarify this point.
Examples of con┬»ict over ecclesiastical bene┬®ces are not lacking,
of course. Patent rolls for the years 1343┬±5, for instance, show
that the church of St Peter, Staunford became vacant while the
priory of St Fromund was seized in the king's hands due to the
war with the French king. The king presented his candidate
Richard Martyn to ┬®ll the vacancy. The king's claim was presum-
ably that if the vacancy occurred while the priory was seized in his
hands, he should be entitled to present in right of the prior. The
prior disagreed and appointed Simon Benet, a papally provided
candidate, to the vacant church. A lawsuit between the king and
the prior ensued and, upon the judgment in the king's court in
favour of the king, the king's writ was issued to arrest those who
were pursuing Simon's claim in derogation of that judgment.
Simon's brother, John Benet, who was himself a notary public
and was probably involved in securing his brother's appointment,
was arrested by the king's of┬®cers. But Stephen Benet, another
brother of Simon, and several other supporters of the Benet
brothers fought against the king's of┬®cers and managed to rescue
John Benet.5
Another example of con¯ict may be mentioned. The prebend of
Bere and Cherministre in the diocese of Salisbury was simulta-
neously claimed by Thomas de Hat┬®eld, the king's clerk, and
William de Veyraco and Robert de Turre de Adria, both of whom
were papally provided candidates. The case was brought to the
king's court and a judgment was entered in favour of the king's
appointee. But the papally provided candidates would not give in,
and made a number of appeals to Court Christian. Thomas de
Hat┬®eld was therefore repeatedly cited to papal curia. But the
king's beloved clerk would not capitulate either. He appealed to
the king, and the king issued his letters close on 10 May 1343
prohibiting the bishop of Durham, who was involved in pursuing
the claims of William de Veyraco, from doing anything in deroga-
tion of the judgment of the king's court favouring Thomas de
Hat┬®eld. The king's letters close were delivered to the bishop on

Calendar of patent rolls, 1343┬±1345, pp. 406, 426┬±7, 579, 584┬±5. More examples
5

of violent struggles for bene┬®ces are to be found in F. Cheyette, `Kings, courts,
cures, and sinecures: the statute of provisors and the common law', 19 Traditio
(1963) 295┬±349 at 334┬±5.
Foreign clerks 63

13 May, who then found himself in London on another business.
On 15 May, if we are to believe the bishop's account of the event,
the king' of┬®cers, with bludgeons in their hands, confronted the
bishop and demanded of him with rough, loud voices immediately
to stop meddling with the judgment of the king's court.6
As far as the question of con¯ict is concerned, what can safely
be stated with regard to these cases is that a con¯ict existed
between contending claimants. Whether, on the other hand, John
Benet in our ┬®rst example can be described as seeing himself
engaged in a struggle between the Church and the State, and
whether the bishop of Durham in our second example believed
that he was caught up in a con¯ict between the centralising papacy
and the resilient English king, or between the local church
hierarchy and the secular power structure, are questions which
cannot be answered unless one commits oneself to a particular
methodological stance requiring a lengthy, but not necessarily
convincing, explanation. There are, no doubt, examples of im-
mediate personal confrontation between the pope and a secular
prince, or between the king and the bishops. The strained
relationship between Philip the Fair and Boniface VIII is well
enough known. The dealings between the popes and the Holy
Roman Emperors in the fourteenth century would be dif┬®cult to
describe if one is not at all to use the image of con¯ict. England
was no exception to this trend. The clash of opinions regarding
taxation of the property of the clergy led Edward I to outlaw all
prelates of his realm. But the legal framework for the regulation of
churchmen's access to ecclesiastical bene┬®ces remained unaffected
by these sensational events. What mattered to individual claimants
was the routine legal procedures, not the impressive con¯icts and
sensational struggles between high pro┬®le ┬®gures.
For quite some time already, historians have attempted to bring
to light aspects of compromise and co-operation among major
players of medieval church politics to complement the images of
con¯ict and struggle which have characterised the historiography

Richard d'Aungerville of Bury, Fragments of his register and other documents, ed.
6

G. W. Kitchin (London, 1910) 30┬±3 (`nonnulli praedicti domini Regis nostri
servientes ad arma clavas suis tenentes in manibus coram nobis personaliter
constituti, nobis dixerunt alta voce . . .'). Calendar of entries in the papal registers
relating to Great Britain and Ireland, Papal letters, vol. III (1342┬±62) pp. 79, 86,
88, 149, 257. Calendar of close rolls, 1343┬±1346, pp. 118┬±19.
History
64

for centuries. Such an effort will no doubt contribute to our
understanding of medieval history in general and the history of
church politics in particular.7 But it does not seem to be of much
help to an analysis of the technical legal arguments, which still
remain largely unexplored. This is not at all to suggest that
historians in general should abandon the task of identifying and
describing general trends and macroscopic forces underlying the
contemporaries' actions and arguments. But legal historians, parti-
cularly those wishing to investigate foreign clerks' access to
ecclesiastical property in medieval England, would need more
than an appreciation of large-scale confrontations and compro-
mises. Crucial to an investigation of this kind is an understanding
of how individual clerks sought and fought for the control of
ecclesiastical property in various legal forums.
Legal argument is perhaps not the most convenient means of
expressing one's overall outlook or the urgent issues of the time.
Legal argument has to be presented under the formal constraints
imposed by the accepted practice of the profession. Lawyers and
judges do not have the liberty to have a free-style conversation in
court where any and every issue that may interest the parties can
be raised in an unstructured manner. The parties' claims need ┬®rst
to be formulated according to the formal requirements currently
recognised by the profession. These formal requirements show a
great deal of stability and are not necessarily affected by the short-
lived con¯icts and compromises. If materials relating to foreign
clerks in the thirteenth and fourteenth centuries are approached

To cite but a few, Peter Heath, Church and realm, 1272┬±1461: con┬»ict and
7

collaboration in an age of crises (London, 1988); J. R. Wright, The Church and the
English crown, 1305┬±1334 (Toronto, 1980); W. A. Pantin, The English church in
the fourteenth century (Cambridge, 1955); J. R. L. High┬®eld, `The relations
between the Church and the English crown from the death of Archbishop
Stratford to the opening of the Great Schism, 1349┬±1378', Oxford Univ. D.Phil.
thesis, 1951; Robert N. Swanson, `Universities, graduates, and bene┬®ces in later
medieval England', 106 Past and Present (1985) 28┬±61; E. F. Jacob, `On the
promotion of English university clerks during the later Middle Ages', 1 Journal
of Ecclesiastical History (1950) 172┬±186; Margaret Harvey, `The bene┬®ce as
property: an aspect of Anglo-Papal relations during the ponti┬®cate of Martin V,
1417┬±1431' in The church and wealth, ed. W. J. Sheils and Diana Wood (Oxford,
1987) pp. 161┬±73; Jane Sayers, Papal government and England, during the
ponti┬®cate of Honorius III, 1216┬±1227 (Cambridge, 1984); Jean Gaudemet, `Un
point de rencontre entre les pouvoirs politiques et l'eglise: le choix des eveques'
├‚├â
├‚
Áse
in Etat et Eglise dans la gene de l'e ├‚tat moderne, ed. J.-P. Genet and B. Vincent
(Madrid, 1986) pp. 279┬±93.
Foreign clerks 65

without knowledge of the formal constraints under which the late
medieval lawyers operated, it would be dif┬®cult to obtain a
balanced assessment of the vehement rhetorical claims of their
contemporaries.
By shifting the focus from the broad pictures of gigantic
struggles and shrewd compromises to individual claimants actu-
ally involved in concrete disputes, one can investigate more closely
how the parties composed their arguments deploying various
rhetorical elements. There is, after all, scope for treating the
persistent pleas to uphold the `dignity and rights of the crown',
`laws of the realm' or the `liberties of the Church' as rhetorical
elements parading in a person's argument rather than as factual
descriptions narrating genuine historical clashes. It will also be
possible, I hope, to show that these rhetorical elements and the
way they were deployed were, for a long time, manifestly unsuited
to give rise to a legal argument for systematic discrimination
against foreign clerks.



FOREIGN CLERKS AND THE CANON LAW

The ┬®erce attack often repeated against foreigners holding eccle-
siastical bene┬®ces in England is certainly not a reliable guide to the
precise scale of foreign in¯ux in the late medieval English Church.
But the existence of such complaints demonstrates beyond doubt
that there were foreign clerks holding ecclesiastical bene┬®ces in
England, and that they were the frequent target of bad publicity.8
To this extent, one is justi┬®ed in believing that the category of
`foreign clerks' is not a mere historiographical contrivance, but a
category which has some historical basis; but only to this extent.
For, as it will be argued, a more detailed analysis of the relevant
texts will show that there was hardly any legal ground to separate
foreign clerks from English clerks. In so far as conferment of an
ecclesiastical bene┬®ce is concerned, `foreign clerks' were a non-
category for both Canon lawyers and English common lawyers of
the time. This is one of the areas where the discrepancy between


Many of the anti-papal or anti-foreign petitions of the thirteenth and fourteenth
8

centuries are conveniently gathered and printed in Johannes Haller, Papsttum
und Kirchenreform vol. I (Berlin, 1903) pp. 543┬±52.
History
66

popular polemical argument and technical legal argument was
most striking. We shall begin with Canon lawyers' argument ┬®rst.
Ecclesiastical bene┬®ces, Canon lawyers would explain, may be
acquired in one of the following manners: (1) election, (2)
collation, (3) presentment and institution, (4) papal provision.9
Another way of explaining the same topic is to say that the
conferment of an ecclesiastical bene┬®ce is carried out through
procedures governed by the Canon law and the common law of
the country. Although the borderline between the two systems of
law was often blurred by jurisdictional disputes between Canon
lawyers and secular lawyers, it is still convenient to maintain a
distinction for the purpose of exposition. Regarding ecclesiastical
bene┬®ces, the main concerns of Canon lawyers were the proce-
dures of election, collation, papal provision, examination and
institution. In England, disputes arising from presentment of
candidates were dealt with by common lawyers in the king's
court.10
The canonical position on foreigners' access to ecclesiastical
bene┬®ces has already been studied in detail, and we need only to
add a few general remarks. Part of what follows is based on the
conclusions of Laprat who has demonstrated that throughout the
fourteenth century, there was no Canon legal obstacle to foreign
clerks' access to ecclesiastical bene┬®ces.11 As far as Canon lawyers
were concerned, foreign provenance of the claimant of an eccle-
siastical bene┬®ce was a matter subsumed under the question of the
clerical candidate's quali┬®cation (i.e., whether the foreign prove-

Petri Rebuf┬®, Praxis bene┬®ciorum absolutissima acquirendi, conservandique illa, ac
9

amittendi, modos continens (Lyons, 1570) pp. 29ff. For modern works giving a
Á
concise outline of this topic, see Jean Gaudemet, Le gouvernement de l'e ├‚glise a
l'e
├‚poque classique, vol. II, Le gouvernement local (Paris, 1979) pp. 68┬±76. For a
fuller treatment, see Geoffrey Barraclough, Papal provisions (Oxford, 1935);
Á
G. Mollat, La Collation des be ├‚┬®ces eccle
├‚ne ├‚siastiques sous les papes a Avignon,
1305┬±1789 (Paris, 1921); G. Mollat, `Bene┬®ces ecclesiastiques en occident' in
├‚├‚ ├‚
Dictionnaire de droit canonique, vol. II (Paris, 1937) cols. 406┬±49; Bernard
Guillemain, La Politique be ├‚┬®ciale du pape Beno├µ├ât XII, 1334┬±1342 (Paris,
├‚ne
1952); K. Ganzer, Papsttum und Bistumsbesetzungen im der Zeit von Gregor IX.
bis Bonifax VIII.: ein Beitrag zur pa ├łpstlichen Reservationen (Cologne, 1968);
Louis Caillet, La Papaute d'Avignon et l'e
├‚ ├‚glise de France ┬± la politique be ├‚┬®ciale
├‚ne
du pape Jean XXII en France, 1316┬±1334 (Paris, 1975).
J. W. Gray, `The Ius praesentandi in England from the Constitutions of
10

Clarendon to Bracton', 67 English Historical Review (1952) 481┬±509.
R. Laprat, `Incapacite bene┬®ciale des aubains' in Dictionnaire de droit canonique,
├‚ ├‚├‚
11

ed. A. Villien et al. (Paris, 1924┬±65) vol. I (1935) cols. 1332┬±80.
Foreign clerks 67

nance constituted a legitimate cause for disqualifying a candidate).
The Canonical requirements for the clerical candidate's quali┬®ca-
tion were often summarised as follows: (1) maturity of age; (2)
good moral character; and (3) suf┬®cient learning.12 The basic
principle that the candidate must be able and suitable (habilis &
idoneus) for the post can hardly accommodate the suggestion that
foreign candidates must systematically be rejected because of their
foreign provenance. The decretal Ad decorum of Innocent III
(1206) contains an explicit statement which supports my argu-
ment. The main thrust of the text is that the churches of
Constantinople, especially that of St Sophia, must be served by
`learned and suitable candidates, regardless of their provenance
(litterati et alias idonei, undecumque originem duxerint)'.13 One of
the rules of papal chancery (regulae cancellariae) in the late four-
teenth century gives a more speci┬®c content to this broad principle
of suitability (idoneity). According to the rule ┬± commonly
referred to as De idiomata ┬± parish churches and other ecclesias-
tical bene┬®ces with cure of souls must be given to candidates well
versed in the local language.14 For one thing, this shows that
bene┬®ces without cure of souls were open to all suitable candidates
regardless of their command of the local language. For bene┬®ces
with cure of souls, the rule indicates that all quali┬®ed candidates,
regardless of their provenance, would be considered as long as
they met the linguistic requirement.15
The principle of idoneity was generally applicable regardless of
whether the ecclesiastical bene┬®ce was to be conferred through
election, collation, papal provision or institution upon present-
ment. Bishop Grosseteste of Lincoln left us vivid examples
indicating how the principle was at work. A few cases may be
mentioned. The bishopric of Chichester became vacant in 1244.
Robert Passelew was elected to ┬®ll the vacant post. According to
Matthew Paris, Bishop Grosseteste undertook the examination of
the elected candidate. The candidate was found un┬®t for the post

Rebuf┬®, Praxis bene┬®ciorum, pp. 34┬±7. See also Gray, `The Ius praesentandi',
12

p. 509.
Laprat, `Incapacite bene┬®ciale', col. 1337 (Decr. 3. 7. 5).
├‚ ├‚├‚
13

Ibid., cols. 1340┬±2.
14

See also William Watson, The clergy-man's law, or the complete incumbent
15

(London, 1701) pp. 147ff. (If the presentee does not understand the English
language, the bishop may lawfully refuse the candidate. `But if he doth under-
stand our language, altho' he be an Alien born, he is not to be refused.')
History
68

and the election was annulled.16 Two years later, the same
Passelew, the king's clerk and a forest judge, was presented by the
king to the vacant church of St Peter, Northampton. Passelew was
again examined by Bishop Grosseteste, found un┬®t for the post,
and was refused to be instituted.17 Bishop Grosseteste is well
known also for his resolute opposition to a number of papally
provided candidates. By far the most celebrated case is where the
bishop refused to admit Frederick di Lavagna, nephew of Pope
Innocent IV, to a canonry in Lincoln. The story obtained
notoriety because of a stormy letter which Matthew Paris attrib-
uted to the bishop. But, as pointed out by Henry Luard, who
edited the bishop's letters, Grosseteste's refusal was not because
the candidate was a foreigner, nor because he was a papally
provided candidate. The refusal was due to the fact that the
candidate was too young and un┬®t for the post. Henry Luard
summarised Bishop Grosseteste's attitude to ecclesiastical
appointment in the following terms: `Englishmen and foreigners,
if he knows them to be un┬®t persons, are alike rejected; and this is
the case with all indiscriminately however great their patrons may
have been. The nominees of English noblemen, Roman Cardinals,
the king, and the Pope met with the same fate.'18
Whether one sees in Bishop Grosseteste's many refusals and
equally numerous acceptances of recommended candidates an
image of confrontation and/or compromise between big players of
medieval church politics, or a portrait of an outspoken, steadfast,
heroic ┬®gure standing out from a troubled time in English church
history, the point which must not be missed is that there existed
well-established Canon legal criteria for clerical candidates' quali-
┬®cation. This means that all considerations regarding the choice of
candidate had to be expressed using these criteria. Those who


Matthew Paris, Chronica majora, Rolls series, 7 vols., ed. H. R. Luard
16

(1872┬±83) IV, pp. 358, 401. Robert Grosseteste, Epistolae, Rolls series, ed.
H. R. Luard (1861) pp. lx┬±lxi.
Grosseteste, Epistolae, p. lxvi. See also Grosseteste's Letter CXXIV (`quod ei
17

justitiario Forestae, fungenti hujusmodi justitiariae of┬®cio, curam animarum
non traderemus'). The king's vexation on this refusal is mentioned in Letter
CXXV. Grosseteste defends his decision to refuse Passelew in a letter (CXXVI)
to the Archbishop of Canterbury.
Grosseteste, Epistolae, pp. xviii┬±xix. Grosseteste's refusal of F. Lavagne is also
18

discussed at length by A. L. Smith, Church and State in the Middle Ages
(Oxford, 1913) pp. 111┬±13.
Foreign clerks 69

compose their argument wishing to rely ultimately on the
authority of the Canon law (Bishop Grosseteste was no doubt one
of them) must accept and conform to the argument structure
recognised by the Canon law of the time. No matter how strong
was the anti-papal or anti-foreign sentiment (the above-mentioned
letter attributed for some time to Bishop Grosseteste does show
that such sentiment existed), when it comes to the question of a
candidate's suitability, Canon law allowed no other varieties of
argument than maturitas etatis (age), morum honestas (conduct)
and scientia litterarum (learning) of the candidate. Unless a radical
change is made to this argument structure, there is no room for an
argument for rejecting foreign clerical candidates merely because
of their foreign provenance. Exclusion of foreign clerks must
therefore remain an unful┬®lled wish of some (such as Matthew
Paris) who unleashed bitter complaints whenever and wherever
they could. But in ecclesiastical forums, their complaints found no
ready advocates.
The mechanism of papal provision con┬®rms again that foreign
provenance of the candidate had no role to play in canonical
disposal of ecclesiastical bene┬®ces. The so-called papal `bull' of
provision set in motion elaborate canonical proceedings where
interested parties were given ample opportunity to dispute and
challenge the candidate's claim to the bene┬®ce in question. If, for
example, it was stated in the papal rescript that the impetrant was
a graduate of a university or that he had knowledge of the local
language, one can expect that should any doubt exist as to these
points, it would be raised by an interested party. But, as observed
by Louis Caillet, nationality or political allegiance of the impetrant
was never mentioned in papal rescripts for provision. If geogra-
phical provenance of the impetrant was sometimes mentioned,
that was for identi┬®cation purposes only.19 We have no evidence
suggesting that the impetrant's foreign provenance was in itself
regarded as relevant to his suitability for the post. Examples
pointing to the opposite (i.e., where foreign candidates were
deemed suitable and were given the ecclesiastical bene┬®ce) do not
seem to be lacking.
Geoffrey Barraclough has shown that canonical procedures
through which an ecclesiastical bene┬®ce was conferred were aimed

L. Caillet, La Papaute d'Avignon et l'e
├‚ ├‚glise de France, pp. 290┬±5.
19
History
70

at establishing whether the candidate had the right (ius) to claim
and enjoy the bene┬®ce. The procedural arrangement in the
ecclesiastical forums was heavily in¯uenced by medieval Roman
law jurisprudence; just as in the ordinary civil litigation, the
highest goal of the canonical procedures de bene┬®ciis was the
prevention of injury to the rights of the individual. There was no
room for consideration of public interest as opposed to private
rights of the parties. As far as medieval lawyers were concerned,
there existed no means of promoting public interest except by
upholding private persons' rights and privileges to the utmost
degree permitted in law. The following remarks of Geoffrey
Barraclough are worth quoting at length:
the canonical rules of civil procedure were marked, from the second half
of the twelfth century onwards, by an excessive attention to the rights of
the parties, by the formulation of the minutest regulations for maintaining
impartiality and by exaggerated regard for forms, which justify us in
expressing their spirit in the words, no prejudice, no injury to the parties,
though the heavens fall!20
Perhaps we may add, `though the kingdom might also be impover-
ished and threatened by foreign clerks!'. Exclusion of foreign
clerks was manifestly an argument based on public interest.
Indeed, the very basis of the modern law of alien status is that
consideration of public interest must override private persons'
interests and their narrowly de┬®ned legal rights. To study the
emergence of the claim that a candidate's foreign status should in
itself be a suf┬®cient ground for denying his access to an ecclesias-
tical bene┬®ce is no less than to study how the law of personal
status came to incorporate questions of public interest.



FOREIGN CLERKS AND THE COMMON LAW

If Canon law procedures were thus focused on the clerical
candidate's right, common law procedures show a striking contrast
in the sense that they were marked by a singular disregard of the
clerical candidate's right. Common law procedures revolved
around the notion of advowson. Advowson was a right, not of a
clerical candidate, but of a patron. In the ecclesiastical court,

Barraclough, Papal provisions, p. 80.
20
Foreign clerks 71

patrons had no say except to the extent that their claims touched
on the clerical candidate's right to the bene┬®ce (ius bene┬®ciale). In
the king's court, the situation was reversed. Clerical candidates
were involved only to the extent that they affected the patron's
right (ius patronatus) ┬± usually as an obstacle to the patron's
exercise of advowson. Apart from this limited involvement,
clerical candidates had no legal right which the king's court could
recognise and enforce. A brief examination of some of the original
writs would clarify this point.
Take the example of the writ Quare impedit. Suppose a church in
lay patronage became vacant and somehow the bishop happened to
┬®ll the vacancy with a papally provided candidate. Since papal
provision was not deemed effective with regard to churches in lay
patronage, the patron might attempt to recover his advowson (the
right to present a candidate of his choice to ┬®ll the vacant post).21
The writ Quare impedit can be used in this case. The writ contains
an allegation that the defendant(s) (the bishop and/or his ap-
pointee) unjustly impede the plaintiff's (the patron's) exercise of
advowson. The allegation leads to a demand that the defendant(s)
must permit the plaintiff, as the one who claims to have the
advowson, to present a suitable person to the church in question
which is vacant and within the plaintiff's gift (que vacat et ad suam
spectat donacionem).22 This rather bland statement has the effect of
delimiting the range of arguments which the parties may put
forward during the course of the trial. The pleadings in the case
will be focused exclusively on whether the church is vacant and
whether the plaintiff has the advowson. Other points are irrelevant.
The same original writ can be used in a number of different
factual situations. During the vacancy of a bishopric, the tempor-
alities of the episcopal see are in the hands of the king. If a minor
bene┬®ce belonging to such an episcopal see becomes vacant during

On (ineffective) papal provisions to bene┬®ces in lay patronage, see Pantin, The
21

English church in the fourteenth century, pp. 54, 58; Heath, Church and realm,
p. 127. Sometimes, however, lay patrons might be harassed by papally provided
candidates. See Ann Deeley, `Papal provisions and royal rights of patronage in
the early fourteenth century', 43 English Historical Review (1928) 505; Calendar
of patent rolls, 1343┬±1345, p. 150. See also A. D. M. Barrell, `The effect of papal
provisions on Yorkshire parishes, 1342┬±1370', 28 Northern History (1992)
92┬±109 at 93.
Early thirteenth-century registers of writs, 87 Selden Society (1970), CA 52, CC
22

51, R 83┬±6.
History
72

the period, the king, as the lawful custodian of the temporalities,
may present a suitable person of his choice to the vacant post
(regalian right).23 But the exact duration of the king's custody of
the episcopal see is often dif┬®cult to establish, especially if the old
bishop's removal or the new bishop's appointment is contested. It
may also be that the news of the vacancy of the minor bene┬®ce
does not reach the king until after the temporalities have been
restored to the new bishop. The bishop may, upon recovery of the
temporalities, ┬®ll the vacant post with a papally provided candi-
date. But the king could come in at this stage and present a
candidate of his choice, disregarding the bishop's appointment.
The idea is that once the bene┬®ce became vacant while the
advowson was in the king's hands, whether it was ┬®lled afterwards
simply did not matter to him (no time runs against the king). If
the bishop turned out to disagree with this idea, the king could
rely on a Quare impedit.24
Quite a few churches belonged to religious houses. Some of the
religious houses were deemed to be under the power of the French
king (the so-called `alien priories'). They were frequently taken
into the king's hands while the king was at war with the French
king. If minor bene┬®ces belonging to these religious houses


M. Howell, Regalian right in medieval England (London, 1962). Regarding the
23

situation in France, see G. Mollat, `L'Application du droit de regale spirituelle
├‚
en France du XIIe au XIVe siecles', 25 Revue d'Histoire Eccle ├‚siastique (1929)
Á
425┬±46, 645┬±76; Jean Gaudemet, La Collation par le roi de France des be ├‚┬®ces ├‚ne
Ás Á Ácle
vacants en re├‚gale, de origines a la ┬®n du XIVe sie (Paris, 1935); Gaudemet,
`Regale' in Dictionnaire de droit canonique, vol. VII (Paris, 1960) cols. 494┬±532,
├‚
cols. 514┬±19 for the situation in the fourteenth century.
Pantin, The English church, pp. 31, 80. Calendar of patent rolls, 1343┬±1345, p. 78
24

(king's presentment during the vacancy of the see of York), p. 84 (the same
during the vacancy of the see of Ely), p. 87 (during the vacancy of the see
of Coventry and Lich┬®eld), p. 178 (vacancy of the see of York in the time of
Edward I), p. 399 (vacancy of the see of Ely), p. 419 (vacancy of the see of
Worcester). These are only a handful of examples out of a vast number of cases.
Some attempts were made to limit the king's claims. The Statute 14 Edward III
st. 4, c. 2 provided that the king should not present in another's right except
within three years after the vacancy occurred. See Year Book 14 Edward III,
Rolls series (1883┬±1911) pp. 122┬±3. This limit, however, was considered
injurious to the king in the Statute 25 Edward III st. 6 (Ordinance for the
clergy). By this statute, the king's right to present to bene┬®ces in right of
another was extended, but limited to vacancies which occurred during his own
reign. Since then, therefore, the king's ancestor's time could run against the
king. For a detailed discussion, see Cheyette, `Kings, courts, cures, and
sinecures', pp. 313┬±15.
Foreign clerks 73

became vacant during the period of seizure, the king could present
his candidate to ┬®ll the vacancy. As soon as the war was over and
peace was signed, however, the seizure must end.25 The abbots
and priors who have been thus reinstated may get on with their
usual business and ┬®ll the vacant posts with suitable candidates of
their choice. But these appointments often proved to be precarious
because, here also, the king could recover the advowsons which he
omitted to exercise. Numerous cases demonstrate that the king's
appointee and a papally provided candidate often ended up in
various courts of law hopelessly entangled in all kinds of legal
proceedings. The writ Quare impedit was the usual means in these
cases to bring the parties to the king's court.26 Factual details of
the contesting candidates may be of in┬®nite variety. The king's
appointee may be a rich foreign cardinal greedily accumulating a
breathtaking number of ecclesiastical bene┬®ces. The bishop's
appointee may be a poor, honest and competent English candi-
date. The prior may have been trying to support the well-educated
university graduates from Oxford and Cambridge. But all these
stories must remain outside of the king's court. The writ Quare
impedit did not allow any means of bringing these details into
consideration. All that mattered was whether the church was
vacant and who had the advowson.
Other original writs which were employed to resolve disputes
relating to ecclesiastical bene┬®ces (Darrein presentment, writ of
right for advowsons, Quare non admisit, etc.) also indicate that

Benjamin Thompson, `The statute of Carlisle, 1307 and the alien priories', 41
25

Journal of Ecclesiastical History (1990) 560; Donald Matthew, The Norman
monasteries and their English possessions (Oxford, 1962) pp. 85ff.; and Marjorie
M. Morgan (Chibnall), `The suppression of the alien priories', 26 History, NS
(1941) 209. A more detailed discussion of this topic will be attempted in the next
chapter.
Patent rolls reveal the existence of numerous cases of this nature. For example,
26

Calendar of patent rolls, 1343┬±1345, p. 73 (king's presentment while the priory
of Brustall is in the king's hands), p. 86 (while the priory of Derhurst is in the
king's hands), p. 178 (church of Fen Drayton), p. 406 (priory of St Fromond in
the king's hands), p. 499 (priory of Otriton in the king's hands), p. 582 (priory
of Lenton in the king's hands). A quick survey of some of the printed year book
case reports (Rolls series, 1883┬±1911) from the reign of Edward III reveals the
following: Year Book 11┬±12 Edward III, pp. 550┬±4; Year Book 13┬±14 Edward
III, pp. 286┬±8; Year Book 14┬±15 Edward III, pp. 340┬±54; Year Book 15
Edward III, pp. 146┬±52; Year Book 16 Edward III, part 2, pp. 226┬±32, 300┬±10;
Year Book 17 Edward III, pp. 158┬±82; Year Book 17┬±18 Edward III,
pp. 126┬±36, 266┬±78; Year Book 19 Edward III, pp. 58┬±65, 164┬±75.
History
74

questions regarding clerical candidates' quality or provenance had
no relevance to the outcome of the proceedings. The writ of
Darrein presentment, for example, is designed to obtain the verdict
to the following question: `which patron in time of peace pre-
sented the last parson, who is now dead, to the [church in
question] which is vacant and the advowson of which the [plain-
tiff] asserts to belong to him?'.27
Year book case reports, of course, maintain a complete silence as
to the identity of the incumbent or the contesting candidate. This
is not surprising because these reports were generally not inter-
ested in the parties' identity anyway. But we can ┬®nd one excep-
tional case where the following remark was made in reporting a
Quare impedit case brought by the king: `Note that the parson was
Ã
a provisor and this suit was undertaken ex cautela in order to oust
28
him.' It is of crucial importance that the remark did not come
from those who were engaged in the arguing of the case, but rather
from the compiler of the report. This con┬®rms again that the
parties' arguments in the king's court were not designed to
provide any clue to the personal attributes of the parson or the
contesting candidate. It is only from an external source of infor-
mation (the compiler) that readers of the report can know ┬± should
they wish to know ┬± that the parson was a provisor. Indeed, there
was a good reason why common lawyers did not, and probably
could not, discuss who the parson or the contesting candidate was.
Such a discussion would inevitably lead to the question of the
clerical candidate's suitability for the post. And that was a
canonical matter over which common lawyers never seem to have
attempted to claim jurisdiction.29
The parties in the king's court thus had to remain silent as to
the personal attributes of the contesting candidates. Common
lawyers were, therefore, not in a position to distinguish English
candidates from foreign candidates and favour the ones at the
expense of the others. It is against this background that a series of

Early thirteenth-century registers of writs, CA 40, CC 47┬±9, R 79, Hib9.
27

Year Book 11┬±12 Edward III, Rolls series, pp. 654┬±6 at 655 (`Nota qe cestui qe
28

fuit persone fut un provisour et ceste seute ordine per cautelam de lui ouster').
See in this connection Year Book 20 Edward III, part 1, Rolls series, pp.
29

362┬±71. The defendant (the bishop) in a Quare non admisit case claimed that the
king's presentee was a layman and was not acquainted with letters (non able nien
lettre). It seems that the court, per Willoughby, held that the matter should be
tried by Court Christian (p. 370).
Foreign clerks 75

parliamentary bans on papal provision, ┬®rst appearing in 1343,
must be analysed.
Soon after the ponti┬®cate of Clement VI began, the following
ban on papal provision was introduced in Parliament:
1. No one, regardless of his condition, whether alien or denizen
(soit il Alyen ou Denzein), shall carry or cause to be carried
documents relating to papal provisions and reservations which
are prejudicial to the king or to his people;
2. No one shall, by virtue of such provisions or reservations,
receive any ecclesiastical bene┬®ce;
3. No one shall receive documents concerning provisions or
reservations; nor shall anyone, by virtue of these documents,
carry out institution or induction; and
4. No one shall do or allow to be done anything that can prejudice
the king or his people or weaken the rights of his crown.
The ban was accompanied by an order that a diligent search be
carried out to arrest (1) those who carry the above-mentioned
documents; (2) those who, by virtue of such documents, receive or
claim any bene┬®ce; (3) those who, by the authority of such
documents, make or cause to be made, appeals citations or
proceedings against patrons of such bene┬®ce, presentees or any
other persons in any court.30 In spite of the clear language which
leaves little doubt that the ban was general and indiscriminate,
there seems to be a persistent interpretative tradition which sees
that the ban was in fact directed against foreigners. Such an
interpretation is at odds with our argument that the contemporary
common lawyers had no means of discriminating against foreign
clerical candidates. It is therefore necessary to examine the rele-
vant texts in some detail.
The parliamentary ban was followed by a number of writs and
letters issued by the king. On 20 July 1343, for example, Edward
III issued letters close to all prelates reminding them of the ban
and giving relevant instructions. The editor who calendared this
document obviously thought that foreigners were under attack.
We ┬®nd the following passage in Calendar of close rolls,
1343┬±1346: `[the king's] order not to admit any alien persons or
other proctors or envoys to any bene┬®ces of the realm by virtue of

Rotuli Parliamentorum, 6 vols. (London, 1767┬±77) II, pp. 144┬±5.
30
History
76

any provisions of the apostolic see . . . or to provide aliens with
such bene┬®ces, nor promulgate any ecclesiastical censures against
those resisting such aliens'.31 The same letters close are recorded
in the register of John Kirkby, bishop of Carlisle (1332┬±52).
Professor R. L. Storey calendared the register, and he also
described the letters close as a `writ of Edward III ordering the
bishop not to admit alien provisors to bene┬®ces'.32
On the same day, the king's letters patent were issued to those
likely to be involved in papal provisions. The excerpt translation
in Calendar of patent rolls, 1343┬±1345 shows that the document
was again seen as an anti-alien measure. According to the transla-
tion, the prohibition applied to `delegates, sub-delegates, execu-
tors and sub-executors of graces to aliens' and to `such aliens and
their proctors and envoys and notaries public and others'.33 Three
days later, another round of the king's letters close was sent to all
the sheriffs of the realm regarding the ban. A description of one of
these letters can be found in Calendar of close rolls. According to
the description, the ban was applicable to `all-delegates, sub-
delegates, executors, sub-executors and commissaries [who]
execute favours to alien persons'. The ban, it is also stated,
required that `no alien shall pursue favours or make provisions or
process'.34 Continuing this unchallenged interpretative tradition,
A. D. M. Barrell has suggested again in a recent article that
foreigners were probably the main target of the parliamentary ban
on papal provision of 1343.35
However, a closer examination of the relevant manuscript texts
will reveal a rather different picture. For example, the letters
patent of 20 July 1343 were addressed not only to `delegates, sub-
delegates, executors and sub-executors of graces to aliens . . .' but

Calendar of close rolls, 1343┬±1346, pp. 215┬±16.
31

The register of John Kirkby, bishop of Carlisle, 1332┬±1352 and the register of John
32

Ross, bishop of Carlisle, 1325┬±1332, ed. R. L. Storey, 2 vols. (Woodbridge, 1993,
1995) I, p. 154, no. 734.
Calendar of patent rolls, 1343┬±1345, pp. 164┬±5.
33

Calendar of close rolls, 1343┬±1346, p. 220.
34

A. D. M. Barrell, `The ordinance of provisors of 1343', 64 Historical Research
35

(1991) 264┬±77 at 266┬±7 (`The operative word throughout this letter [Edward
III's letters close of 20 July 1343 recorded in the archbishop's register in York]
is ``alienigenae'', and it does not appear that Zouche [the then archbishop of
York] was asked to apply the ordinance any more widely than to prevent
provisions to aliens from taking effect'). Also Barrell, `The effect of papal
provisions', p. 107, note 124.
Foreign clerks 77

also to `all the king's subjects'.36 This point is obscured by the
opaque English rendering in Calendar of patent rolls, `such aliens
. . . and others'. Few would guess that these `others' correspond to
`omnibus ┬®delibus suis' in the manuscript text. Also, towards the
end of the text, the letters patent reproduce the sweeping ban
introduced in Parliament prohibiting the addressees (which
include all the king's subjects) from doing or attempting to do
anything whatsoever that may prejudice the dignity and right of
the king and weaken the patronage rights and advowsons of the
king and of his subjects.37
The king's letters close of the same date sent to the prelates pose
a rather more delicate problem of interpretation. The tone of the
document, it is true, is milder because the king's instruction
begins with a clause which speci┬®cally concerns `foreigners, their
attorneys and nuncios (personas aliquas alienigenas vel eorum
procuratores aut nuncios)'. The lack of an explicit reference to `all
subjects of the king' could give an impression that the ban would
apply only to provisions for foreigners, which were never nu-
merous in England.38 The ecclesiastical hierarchy would certainly
feel less threatened if such a wording could lead them to believe
that papal provisions for English clerical candidates would be
tolerated, because that would mean that the main bulk of their
appointments would be safe from the king's intervention. But
towards the end of the letters close, the same sweeping clause as
used in the letters patent discussed above appears again and
prohibits anything whatsoever done or attempted in this connec-
tion publicly or secretly by the archbishop or others that could
otherwise redound to the prejudice of the dignity and right of the
king, and to the disregarding, weakening and diminution of the

Public Record Of┬®ce, Patent roll, 17 Edward III, part 2, m. 32v (`Rex delegatis
36

subdelegatis executoribus & subexecutoribus gratiarum personis alienigenis de
bene┬®ciis ecclesiasticis regni nostri Angliae vacantibus vel vacaturis per sedem
Apostolicam concessarum ac ipsis alienigenis & procuratoribus & nunciis eorum
& eorum substitutis ac notariis publicis & omnibus ┬®delibus suis salutem').
Ibid. (`nec vos vel aliquis vestrum per vos seu alios quicquam in hac parte
37

faciatis vel attempte[re]tis per vos seu alios publice vel occulte quod in
preiudicium dignitatis et iuris nostri regii ac enervacionem iuris patronatus &
advocacionis nobis et ┬®delibus nostris contemptum possit aliqualiter redun-
dare'). The author wishes to thank Professor J. H. Baker for his help in the
reading of the manuscript text.
Pantin, The English church, pp. 62┬±3. Cf. Barrell, `The effect of papal provi-
38

sions', pp. 92┬±109.
History
78

patronage rights and advowsons of the king and his subjects.39
The Calendar of close rolls, for some reason which is not known to
us, omits precisely this clause. Similar editorial discretion is
exercised in calendaring the same letters close recorded in the
register of Ralph of Shrewsbury, bishop of Bath and Wells
(1329┬±63). There, the editor chose to print the full text of the
relevant part of the letters close. But the patience of the editor
seems to have worn out where the ┬®nal sweeping clause begins.
The ┬®rst three clauses concerning foreigners are carefully tran-
scribed in full. But the last clause is reduced to `etc.'.40
The full text of the king's letters close of 23 July 1343 sent to all
the sheriffs of the realm is printed in Foedera, conventiones, literae
et . . . acta publica. The inadequacy of the summary translation
given in the Calendar of close rolls is easily discernible when it is
compared with the printed full text. It is true that the letters close
contain passages speci┬®cally directed to foreigners and their proc-
tors, substitutes or nuncios. Nevertheless, there is no doubt that
the ban was after all applicable to both foreigners and Englishmen
(`Prohibuerimus . . . ipsis alienigenis . . . et omnibus aliis ┬®delibus
nostris' . . .).41
To believe that Edward III's letters patent and close, unlike the
parliamentary ordinance, were aimed only against foreigners is to
suppose that the king, of his own accord, has somehow drastically
reduced the scope of the sweeping ban introduced in Parliament
(papal provisions for foreigners were far less numerous than
provisions for English candidates). Such a move ┬± if there was one
┬± might well be regarded as not wholly inconceivable. One may
even speculate that it would have been `politic' of the king to tone
down the blunt aggressiveness of the parliamentary ban. But the

Public Record Of┬®ce, Close rolls, 17 Edward III, part 2, m. 29v. I have also
39

consulted the letters close of the same date recorded in the registers of the
archbishop of York, bishop of Carlisle and bishop of Ely. They all contain this
sweeping clause. Borthwick Institute, York, Reg. 10, fo. 255v; Cumbria County
Record Of┬®ce, Carlisle, DRC/1/1, fo. 240; Cambridge University Library,
G/1/1 (Ely diocesan records), fo. 89v. The scribe of the York register chose to
add the following title in the margin of the text: `Breve regium super non
admissione alienigenarum ad aliqua bene┬®cia'. This title, however, does not
appear in the other MSS.
The register of Ralph of Shrewsbury, bishop of Bath and Wells, 1329┬±1363, ed.
40

Thomas S. Holmes, 2 vols. (London, 1896) I, p. 405.
Foedera . . ., ed. T. Rymer, Records Commission, 4 vols. (London, 1816┬±69)
41

II, p. 1230.
Foreign clerks 79

surviving manuscripts just do not provide enough textual support
for the imaginative interpretation. The king's letters close issued
on 30 July 1343 to mayors and bailiffs of all ports of England
further demonstrate the impossibility of such an interpretation.
The king's instruction was to search and con┬®scate all bulls and
letters prejudicial to the king or to his lieges. The letters close
show no interest in knowing who the bene┬®ciaries of these bulls
and letters were.42 A few months later, we ┬®nd orders to arrest
Thomas de Askham, John Furnaux de Bereford and Nocolas de
Hethe who apparently sought papal provision to obtain ecclesias-
tical bene┬®ces. There is, of course, no ground to suppose that they
were all foreigners. More importantly, the relevant texts show
complete indifference as to the provenance of these clerks. There
are a few more cases where the arrest order was challenged by
those accused of having violated the ordinance of 1343. The
defence was all based on an argument that their use of papal
provision was anterior to the 1343 ordinance and that the ordi-
nance was not meant to be retroactive. None of the accused clerks
were claiming that they were Englishmen and should therefore be
allowed to use papal provision.43 Should we then conclude that
they were all foreigners?
A. D. M. Barrell lays great emphasis on the recurring phrase
`prejudicial to the king or to his people' and suggests that this
clause must have had the effect of singling out foreigners as the
main target of the seemingly broad ban of 1343.44 He seems to
suppose that papal provisions for English candidates were not
prejudicial, or somehow less prejudicial to the king and his
subjects compared to papal provisions for foreign candidates. This
is where modern historians' prejudice is hampering the analysis of
medieval source materials. On what ground can one suppose that
papal provisions for English candidates were less prejudicial to the
king and his subjects? As I shall argue, the truth may be rather
that papal provisions for English candidates were all the more
detrimental to the rights of the king and his subjects (patrons) just
because they were so much more numerous than papal provisions
for foreign candidates. A. D. M. Barrell was certainly right in

Foedera, II, p. 1230; Calendar of close rolls, 1343┬±1346, pp. 220┬±1.
42

Calendar of patent rolls, 1343┬±1345, pp. 279, 289, 293, 320. See also the
43

references cited in Barrell, `The ordinance of provisors', pp. 266, 268, 270.
`The ordinance of provisors', p. 266.
44
History
80

stressing the clause, `prejudicial to the king or to his people'
because the ban on papal provision was based precisely and wholly
on that ground. The argument in the king's court and in West-
minster Hall had to rely on the `prejudice to the rights of the king
and his subjects' because these rights ┬± the patronage rights
(advowsons) ┬± were the only foothold common lawyers had in
matters of ecclesiastical bene┬®ce. But it is wrong to imagine that
the clause could be used to distinguish English candidates from
foreign candidates and selectively promote the former. All papal
provisions are prejudicial to the rights of the king and other non-
papal patrons. Prejudice to the patronage right is a matter deter-
mined solely by looking at who is entitled to appoint the candi-
date. Who shall be appointed is irrelevant.
The same argument structure underlies the statute 25 Edward
III st. 4 (commonly known as `the statute of provisors'). The
statute mentions, as a matter of principle, free election by the
chapter, free collation by the prelates and free exercise of advow-
sons by religious houses. But the kernel of the statutory remedy
was that if the pope made reservations or provisions for major or
minor bene┬®ces, the privileges of free election, free collation and
free exercise of advowsons would be removed from the Church or
from the religious houses; and the king or other lay patron, as the
case might be, should be entitled to give each such bene┬®ce to a
suitable candidate of his or her choice. The reason was that the
privileges of free election, etc. had originally been granted by the
ancestors of the king and magnates as gifts to the Church and to
religious houses; but the gifts were made under the condition that
the king and his heirs should be entitled to give the licence to elect
and the approval for the appointment. Since such conditions
would be violated by papal provision, the conditional gifts should
revert to the donor and his heirs.45
This statute does not allow any room for arguing that if papal

Rotuli Parliamentorum, II, p. 233 (`dessicome les Elections furent primes
45

grantes par les Progenitours le Roi sur certeins forme et condition, come a
demander du Roi conge d'elire . . . Lesqueles conditions nient gardees, la chosse
doit par reson resorter a sa primere nature'). See also the statute 25 Edward III
st. 4, c. 3 (regarding elective bene┬®ces); c. 4 (bene┬®ces belonging to religious
houses); c. 5 (collative, minor bene┬®ces). The statute of 1351 developed the
theme which had already been put forward in the Carlisle parliament of 1307.
The `patronal attitude' which lies behind these arguments was noticed by
Thompson, `The statute of Carlisle', pp. 546┬±7.
Foreign clerks 81

provision was made for an English candidate, the king and other
patrons would tolerate it.46 Nor is there any promise that the king
and other patrons would use the rights thus recovered to appoint
English clerical candidates only. Nowhere in the statute do we
┬®nd any possibility of differentiating English candidates from
foreign candidates. The central concern of the argument is the
protection of patrons' rights. Any attempt at papal provision,
whether it is for the bene┬®t of an English candidate or for a
foreign candidate, encroaches upon these rights, and is therefore
prejudicial to the king and his subjects who have these rights. It is
unfortunate that the statute is known as the statute of `provisors'
because it is not so much about provisors as about patrons. The
rationale for the strangely archaic claim of this statute is not to be
intelligible from the standpoint of provisors or clerical candidates.
The statute is best understood as an exaltation of patronage right
(advowson). It is about how patrons parted with their advowsons
and how they now asserted to recover them.
Until the end of Edward III's reign, common lawyers' argu-
ment showed no sign of departure from patrons' rights. In the
eyes of the common lawyers, clerical candidates, foreign or
English, had no legal right that could be proven in the king's court
and enforced through the writ system. Clerical candidates merely
had expectations which might be ful┬®lled or frustrated depending
on the patron's success in the king's court. We have seen that
Canon lawyers, in their earnest endeavour to protect the indivi-
dual candidate's right, completely failed to take into account the
question of public interest. Common lawyers were no less earnest
in believing that their noblest mission was to protect and assert
individuals' rights to the fullest degree permitted in law. They
were no more likely to allow the consideration of public interest to
interfere with their rigorously individualistic legal approach. Why
should the king's and other patrons' rights to present a candidate
of their choice be subjected to the restriction that the choice must
only be made from English candidates? Why should the bishop's
right to make appointments through the canonically sanctioned

Not only on the level of legal argument, but also on the level of sentiments, a
46

patron who lost the opportunity to support his favourite candidate because of a
papally provided candidate would not ┬®nd it consoling that the intruder was not
a foreigner but an Englishman. In the vast majority of cases, the struggle was
between English candidates anyway.
History
82

procedures be circumscribed by the condition that only English
candidates should be eligible? Why should the king allow English
candidates to seek papal provisions when his and his other
subjects' rights and advowsons would be thereby infringed upon?
If medieval lawyers offered no argument to promote English
candidates and to discriminate against foreign candidates, it was
not because they could not tell the difference between Englishmen
and foreigners. They were operating under a fundamentally
different system of legal arguments.
One can imagine that the king's court had little sympathy for
the claims of bishops and their candidates even though their
argument may have been well founded from the viewpoint of the
Canon law. The losers in the king's court might therefore turn to
Court Christian where their legitimate claims would not be
ignored. However, the appeal to the authority of ecclesiastical
jurisdiction is, from the viewpoint of common lawyers, an attempt
to obstruct the king's law enforcement mechanism. This must not
be tolerated if the common law system was to function effectively
and reliably. Patent rolls in the fourteenth century are full of
arrest orders directed to those who were pursuing appeals in Court
Christian in derogation of the king's rights and judgments of the
king's court. The statute of Praemunire was rooted in this tradi-
tion.47 As Pantin pointed out, the fact that the papal court came
under attack should not mislead us into exaggerating the moder-
nity of the statute. Appeal to the papal court was condemned not
because it was an alien court, but because it was an ecclesiastical
court.48 It did not matter whether the party resorting to the
ecclesiastical court was a foreigner, an Englishman, a clerk or a
layman. All that mattered was that the king's law enforcement
mechanism should be maintained at the highest possible level of
reliability and effectiveness. The improved dependability of the
king's law enforcement mechanism was for the bene┬®t of anyone
whose claim was duly proven in the king's court. The provenance
of the users of this mechanism remained irrelevant.


See, for example, the statute 27 Edward III st. 1. On the writ of prohibition,
47

which forms the background to this statute, see G. B. Flahiff, `The writ of
prohibition to Court Christian in the thirteenth century', 6, 7 Medieval Studies
(1944┬±5) 261┬±313, 229┬±90.
Pantin, The English church, pp. 84┬±7.
48
Foreign clerks 83

A NEW APPROACH FOR COMMON LAWYERS

One year before the death of Edward III (1376), the Commons in
Parliament demanded exclusion of foreigners from bene┬®ces with
cure of souls.49 They were told that their demand was already met
by the two major statutes on this matter (`Ceste Bille est aillours
responduz, c'est assavoir en les deux autres grosses Billes de ceste
matire'). The `two major statutes' probably referred to the statute
25 Edward III st. 4 (the statute of `provisors') and the statute 27
Edward III st. 1 (the statute of Praemunire). In the Parliament
immediately following the death of Edward III (1377), the
Commons raised the same issue again. A different response came:
`The Lords of the Great Council will ordain due remedy on this
matter (Les Seignors du Grant Conseil ordeigneront due remede sur
la matire).'50 Six years later, it was enacted as follows:
if any alien has purchased, or from henceforth shall purchase any bene┬®ce
of Holy Church, dignity, or other thing, and in his proper person takes
possession of the same, or occupy it himself within the realm, [he shall be
severely punished] whether it be to his own proper use or to the use of
another.51
The argument contained in this statute has a few points which
need to be discussed. First, there was a change of viewpoint. Until
the end of Edward III's reign, the central question for common
lawyers involved in legal disputes over ecclesiastical bene┬®ces was,
`who has the advowson?'. We now see a different question being
posed: `who shall have the bene┬®ce?'. The con┬»ict situation was
now approached from the viewpoint of the clerical candidates,
rather than from the viewpoint of patrons.
Second, the candidate's provenance (whether he is an alien or
not) has become vitally important in the new approach. So far, we
have seen that if a person was lawfully elected or collated and
found to be suitable for the post, he would be given the ecclesias-
tical bene┬®ce regardless of his provenance. Likewise, if a person
was presented and, having satis┬®ed the canonical requirements,
instituted, there was no legal obstacle to his holding of the

Rotuli Parliamentorum, II, p. 341 (`q nul Cardinal, ne Aliene hors de Roialme
49

demorant, avera Bene┬®ce curee deinz les Esglises Cathedralx, ou Dignitez, ou
Of┬®ces, lezqueux requirent residence').
Rotuli Parliamentorum, III, p. 19.
50

Statute 7 Richard II c. 12 (1383). Rotuli Parliamentorum, III, p. 162.
51
History
84

bene┬®ce. The only requirement, according to the contemporary
lawyers' terminology, was that all these steps should be taken `par
deuwe proces' of the Canon law and the common law.52 No one
seems to have asked whether the candidate was an alien or not.
This is not to suggest that the contemporaries were incapable of
drawing a distinction between aliens and non-aliens. Our argu-
ment is simply that such a distinction was not regarded as relevant
to the conferment of an ecclesiastical bene┬®ce. If, for example, a
person was elected or collated to a bene┬®ce by due process of law,
he would receive the temporalities upon doing of homage or fealty
as required by the established law and practice.53 He might not be
an Englishman, but that did not make it impossible for him to
enter into the contractual relationship expressed by homage or
fealty. The person's foreign provenance and his contractually
de┬®ned position as bene┬®ce-holder simply co-existed. The above-
quoted statute indicates that such a situation would no longer be
tolerated. According to the statute, the provenance of the clerical
candidate would ┬®rst have to be examined before deciding
whether he was entitled to hold the land. This is a signi┬®cant
departure from the earlier legal argument structure where the
candidate's provenance was not allowed to be discussed in connec-
tion with the conferment of ecclesiastical bene┬®ces.
Third, the statute offers a good opportunity to see how the
question of public interest was being incorporated in common
lawyers' argument. Unlike the ordinance of 1343 whose sole aim
was to protect the `patronage rights and advowsons of the king
and his subjects (iuris patronatus et advocationis nobis et ┬®delibus
nostris)', the above-quoted statute makes no mention of anyone's
rights. Aliens, according to the statute, should be prohibited from
holding ecclesiastical bene┬®ces. On what ground? We have already
seen that the protection of the king's and his subjects' rights could
provide no ground for discriminating against foreign clerical
candidates. Like any other rights (iura) in medieval jurisprudence,


For the expression `par deuwe proces' in this context, see Anthony Fitzherbert,
52

Graunde Abridgement (c. 1514┬±16), Quare non admisit, pl. 7.
Although the investiture controversy made it unnecessary for consecrated
53

bishops to do homage, the oath of ┬®delity was nevertheless required to receive
the temporalities. Minor bene┬®ce-holders, a fortiori, were not exempted from
the oath. Glanvill, lib. 9, c. 1; Gaudemet, Le gouvernement de l'e
├‚glise, II, p. 154.
Foreign clerks 85

advowson (ius patronatus) knew no barrier of ethnicity or prove-
nance of the rightful claimant. The king and other patrons might,
if they wished, use their advowsons to appoint foreign candidates.
By doing so, they were exercising, not prejudicing, their rights
and privileges. In fact, what the statute 7 Richard II purported to
do was something which the traditional argument based on
individuals' rights could never do: that is, to promote the interest
of English clerical candidates by suppressing foreign candidates'
expectations. That the king and his subjects should all exercise
their rights in a way conducive to the `common utility' was no
doubt an idea which had long existed. But its enforcement seems
to have depended largely on the sense of moral obligation. Now
the statute of 1383, relying on the division between aliens and
non-aliens, could provide a legal means of enforcing the noble
obligation. Surely, the statute would demand the sacri┬®ce of some
of the individual patrons' well-established rights to promote
whomever they saw ┬®t. As any modern lawyer would agree, public
interest requires some sacri┬®ce of individuals' rights.
Parting with advowson and attempting to incorporate public
interest into the legal argument, however, was bound to have a
consequence which few common lawyers of the fourteenth
century would readily accept: they would lose their unique
foothold in matters of ecclesiastical bene┬®ce. Advowson, it must
be recalled, was the only means of justifying common lawyers'
involvement in the distribution of ecclesiastical bene┬®ces. No
wonder the anti-foreign statutes of Richard II's reign were quietly
sti¯ed. Even after the radical constitutional changes introduced in
the reign of Henry VIII, it was still not entirely clear whether
foreigners might be disquali┬®ed from holding ecclesiastical bene-
┬®ces in England.54



Watson, The clergy-man's law, ch. 20 states that an alien priest may be presented.
54

Watson was relying on Henry Rolle (d. 1656), Abridgment des plusieurs cases,
2 vols. (London, 1668) II, p. 348. Edward Coke, on the other hand, claimed
that if an alien was presented, the bishop ought not to admit him but might
lawfully refuse him. The Institutes of the laws of England, IV, p. 338. He offered
a similar opinion in Waller's case (1610), Godbolt 179. Rolle's Abridgment is
generally regarded as not very trustworthy. But we believe that Coke is no more
reliable on this point. Further details should await a separate treatment which is
yet to be undertaken.
History
86

CONCLUSION

There is no need to discuss whether the statute of 1383 had
actually been applied. The mechanisms for the distribution of
ecclesiastical bene┬®ces, the patterns of legal disputes arising there-
from and the methods of resolving them remained unaltered
throughout the fourteenth century and in the ┬®fteenth century.
Also, the statute was focused exclusively on the conferment of
ecclesiastical bene┬®ces. Of course, the problems related to eccle-
siastical bene┬®ces did not end there. Once a bene┬®ce was con-
ferred, there arose another set of problems relating to the
enjoyment of revenues from the bene┬®ce. I have refrained from
discussing the legal dif┬®culty which the non-resident bene┬®ce-
holders (who were often foreigners) had to encounter in receiving
revenues from their bene┬®ces in England. The scope of this
chapter is thus very limited. It only deals with one aspect of
foreign control of English ecclesiastical resources. Admittedly, the
statute of 1383 had little impact even in this narrowly de┬®ned area.
Nevertheless, I believe that the statute is signi┬®cant. The
striking contrast it poses against the previous legal arguments
contributes to a better understanding of the argument structure of
the fourteenth-century lawyers. We also note with interest the
statute's chronological proximity to the radical change of legal
approach regarding foreign merchants (see chapter 2 above). We
shall attempt a fuller discussion of the nature of these legal
changes in the chapters that follow. In the remaining pages, I offer
a few general remarks relevant to this chapter's discussion.
The emergence of the law of alien status has often been
explained in terms of the growth of monarchical power. Professor
Maitland suggested that `an exaggerated generalisation of the
crown prerogative' would explain the development of the English
law of alien status. Professor M. Boulet-Sautel also argued that the
French law of alien status must be studied against the backdrop of
the political changes of the late medieval France which she
characterised as `an episode of the king's reconquest over the
seigneurial authority'.55 However, the actual circumstances in
which lawyers began to rely on the division between foreigners

See ch. 1 above; M. Boulet-Sautel, `L'Aubain dans la France coutumiere du
Á
55

moyen age' in L'Etranger, part 2 (Brussels, 1958) pp. 68, 69, 88.
Ã
Foreign clerks 87

<<

˝˛­. 3
(Ô˝ňŃţ 9)

Đ╬─┼đĂ└═╚┼

>>