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Execrabilis in the Common Pleas: Further Studies
Published online by Cambridge University Press: 16 January 2009
Extract
Under the above title Professor Maitland gave a characteristic study of the relations of the Common Law Courts to the Canon Law in the reign of Edward the Third. His object was to trace the history of an attempt by the temporal authority to “enforce” (for its own ends) the provisions of the papal Extravagant “Execrabilis” by securing its recognition in the Court of Common Pleas and excluding the spiritual Courts from their claim to the sole cognizance of the matters covered by the Bull. To his treatment of the subject it may be objected, with all due deference, that the Bull Execrabilis, interesting as it is, cannot be regarded as an altogether new factor in English law calling into operation an entirely new set of phenomena that can be isolated and studied alone; on the contrary, when the Bull made its first appearance in the English Courts of Common Law it became immediately involved in a fairly old dispute between the spiritual and temporal jurisdictions. This aspect of the subject received no consideration in Maitland's essay, with the result that his treatment of the matter is incomplete and in one important particular incorrect.
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References
page 60 note 1 Canon Law in the Church of England, pp. 148—157.
page 61 note 2 This exception did not avail, however, if the demandant were the King until the Statute 14 Edw. III, at. 4, c. 2.
page 61 note 3 Cap. un. Extra. Johan. tit. 3.
page 61 note 4 “Notice” has here the technical meaning of the period of two months from the publication of the constitution; Hostiensis, De Const. § Quando, with which compare Nov. LXVI.
page 61 note 5 For the effect of John XXII's legislation in England, see Tout, Edward the Second, 228—235.
page 62 note 6 Maitland, Canon Law, 150; Hil. 10 Edw. III, 3 (continued from Trin. 9 Edw III, 14).
page 63 note 7 Y. B. 14 & 15 Edw. III, 36—38. Parning, C. J., K. B., seems to have given judgment against Thorpe's point. See below, p. 68 for the patron's position.
page 63 note 8 Below, p. 67.
page 63 note 9 If such a pluralist were ojected by the Bishop he could not allege spoliation or obtain restitution, but there is nothing to suggest that the Bishop was bound to eject a pluralist from a benefice which was de jure vacant. See the gloss to Execrabilis, ad v. ipso jure.
page 63 note 10 Claims of this sort are found as early as 9 Edw. II (Fitz. Presentment al Esglise, 11).
page 64 note 1 “Thorpe. J ‘Some people hold that statute to be of no effect to foreclose the King, for it was never put into operation.’ (And so said Scot, C.J.) ‘So now'for your answer over.’” Y. B. 19 Edw. III, 170.
page 64 note 2 Rot. Parl. ii, 244 (58); 25 Edw. III, stat. 6, c. 2 (cf. c. 1).
page 64 note 3 Maitland, Canon Law, 152; Pasch. 26 Edw. III, 3.
page 65 note 4 Rot. Parl. ii, 244 (59).
page 65 note 5 “Si de advocatione contentio habeatur utrum vacat vel non, super hoc erit ordinarius consulendus, episcopus vel alius qui super hoc habeat cognitionem, quia laicus de hoc cognoscere non potest, non magis quam de matrimonio contracto vel soluto,” Bracton, f. 241 b, citing a case of 1220 in Bracton's Note Book, 1428.
page 66 note 6 Fleta, 322, § 9.
page 66 note 7 Y. B. 20 & 21 Edw. I, 283.
page 66 note 8 Y. B. 33 & 35 Edw. 1, 178.
page 66 note 9 Y. B. 4 Edw. II, 182.
page 67 note 10 Y. B. 17 Edw. III, 201 ii.
page 67 note 1 Y. B. 17 & 18 Edw. III. 114.
page 67 note 2 Y. B. 17 & 18 Edw. III, 331.
page 67 note 3 Y. B. 16 Edw. III, ii. 573. The Record printed by the Editor throws interesting light upon the Bishop's method of ascertaining the facts.
page 67 note 4 Y. B. 16 Edw. III. ii, 573.
page 67 note 5 Y. B. 18 Edw. III, 168.
page 67 note 6 Y. B. 19 Edw. III, 64.
page 68 note 7 Y. B. 19 Edw. III, 78. It was at first proposed to include in the issue an allegation that the voidance was due to plurality, but this was not allowed. Compare Y. B. 20 Edw. III, ii, 400—2.
page 68 note 8 Y. B. 20 Edw. III, ii. 396.
page 68 note 9 Fitz. Triall, 70.
page 68 note 10 Y. B. 17 & 18 Edw. III, 264—6.
page 69 note 1 28, X. 3, 5.
page 69 note 2 “Is quoque ad quem prioris [beneficii] spectat donatio, IIIud post receptionem alterius libere conferat.” — De Multo.
page 70 note 3 Y. B. 14 & 15 Edw. III, 38. For another point (raised later in the statute, below, p. 71), see Y. B. 19 Edw. III, 76—8. where the King claimed a presentation to a prebend the vacancy of which he alleged to be due to the prebendary having been created Bishop of Utrecht. “Et ceo fuit chalenge pur ceo qe tiel cause en ceste court ne poet estre trie.—Non allocator, qar voidaunce serra generalment trie.”
page 70 note 4 Above, pp. 61—66.
page 70 note 5 Above, pp. 66—68.
page 70 note 6 Above, pp. 68—70.
page 70 note 7 Above, pp. 64, 65.
page 70 note 8 Rot. Parl. ii, 245.
page 71 note 9 Statute 25 Edw. III, stat. 6, c. 8.
page 72 note 10 That “challenge” is equivalent to “exception” may be seen from Y. B. 6 & 7 Edw. II (Eyre of Kent), i. 176; Y. B. 16 Edw. III, i, 178; Y. B. 20 Edw. III, ii, 161. “Allowing a challenge” is explained from the text quoted above, p. 70, n. 3.
page 72 note 1 Fitz, Triall, 54; this case is being investigated further.
page 73 note 2 Fitz, Issue, 147.
page 73 note 3 30 Lib. Ass. 19.
page 73 note 4 Compare above, p. 67.
page 73 note 5 Doubts on the subject appear under the first Yorkist, Trin. 5 Edw. IV, 1.
page 73 note 6 Mich. 12 Hen. IV, 21.
page 73 note 7 Pasch. 15 Edw. IV, 6.
page 73 note 8 Lynd. f. 144, gl. Ordinariorum.
page 73 note 9 Called a “common case” by Pigot, Y. B. 22 Edw. IV, p. 24; cf. Trin. 5 Edw. IV, 1.
page 73 note 10 6 Rep. 49 a.
page 74 note 1 1 Rolle, 191.
page 74 note 2 Co. Lit. 344 a.
page 74 note 3 Watson v. Baker, 1 Siderf. 390.
page 74 note 4 Codex Juris Ecclesiastici, tit. XXXIV, cap. 1.
page 74 note 5 Above, pp. 61—66.
page 74 note 6 Above, pp. 66—67.
page 75 note 7 Above, pp. 67—68.
page 75 note 8 p. 68.
page 75 note 9 p.69.
page 75 note 10 pp. 70—72.
page 75 note 1 p. 72.
Page 75 note 2 pp. 72—74.