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1. De vi laica amovenda: testing the bounds of secular and ecclesiastical jurisdiction in the reign of Henry III

Thus far, the church and ecclesiastical law and administration has not featured prominently in Fine of the Month articles. Here, Philippa Hoskin, Senior Lecturer at the University of Lincoln, an expert on episcopal and ecclesiastical government in the thirteenth century, redresses the balance somewhat. She examines one entry in which a writ is purchased unique in the Fine Rolls of Henry IIIs reign. She reveals the friction that existed between secular and ecclesiastical jurisdiction in matters of the right to ecclesiastical office and property, and highlights the resources clerks could employ to bolster their case.

1.1. C 60/48 Fine Roll 35 Henry III (28 October 1250–27 October 1251), membrane 7

1.1.1. 865

⁋1 Oxfordshire. William, parson of the church of Shipton, gives the king 20s. for having a writ to remove lay force (de vi laica amovenda). Order to the sheriff of Oxfordshire to take etc. [Woodstock, 13 July 1251].

1.2. The Fine.

⁋1The ability to search across the full range of the on-line translations of the fine rolls up to 1272, using Google’s advanced search for a specific website for the period beyond 1242, enables unexpected and individual fines to be identified. The fine above is just one of over 100 entries on the roll for 35 Henry III (1250–1251) which purchase writs. The level of payment is not remarkable amongst such fines. However, this particular entry is striking in requesting an unusual writ: one found nowhere else in the fine rolls up to 1272 and apparently requested relatively rarely in the thirteenth century as a whole. The writ de vi laica amovenda (sometimes called de vi laica removenda) has been little regarded by historians, and the author’s work upon it is still on-going. This short article will examine, briefly, the background and purpose of the writ, and then it will look at what is known of this particular case and the possible background to William’s purchase, before considering how this fits within the broader context of the thirteenth-century issues concerning the use of the secular arm to enforce ecclesiastical law.

⁋2What, then, was it that William purchased? In simple terms it was, as its Latin name says, a writ requiring the sheriff to remove a lay force, one which had taken possession of property. It could also be used against a clerical invasion, although it is not clear whether this was only when accompanied by a lay element. ¹ Through this writ, the sheriff might be given permission to use the County posse for such a removal, or could be expected to make do with a lesser force. ² It was usually issued at ecclesiastical request, and made for the use of the secular arm (that is for royal intervention through the office of the sheriff) and was almost certainly when fully developed a writ de cursu (issued without enquiry into the case) as were the better-known de excommunicato capiendo, requesting the imprisonment of those who remained obdurately excommunicate more than forty days, which was usually sought by a bishop, and de apostata capiendo, issued at the request of a religious superior, for the arrest and return of a runaway religious. ³ Its appearance and cost here, however, are interesting: such de cursu writs were usually available for very small fees and are not reflected in the writs in the fine rolls, for which half a mark or more are offered. ⁴ Possibly it did not begin as a de cursu writ. Certainly it went through a period of uncertain use and process. In its early years the writ was used for lay as well as ecclesiastical property, for example in cases of manorial intrusion, ⁵ and the regular use of the phrase ‘vi et armis’ to describe the lay invasion in thirteenth-century requests for the writ suggests that its early history might well be connected to that of the development of the writ of trespass in the same decades. ⁶ Even from its first appearances, in the 1230s, however, it was focussed largely upon ecclesiastical property and after 1253 no secular use has been discovered. By the second half of the thirteenth century, then, the writ seems to have become what Fitzherbert described it as in 1534, a writ for the removal of a lay force from churches and parsonage houses, the latter used broadly in the thirteenth and fourteenth-centuries to describe any building belonging to the church. Usually requested by bishops, it could be issued following an appeal from ‘him who is grieved’, or directly at the command of the king in churches to which the latter collated. ⁷

⁋3The 1251 purchase recorded in this fine puts William’s writ amongst the first surviving: only thirteen earlier uses of the writ are known. It is found in August 1236, when a copy was enrolled in the Close Rolls addressed to the sheriff of Gloucester concerning the lay force in Wotton church. ⁸ Specific requests for it only first survive from 1260, and it may be that this reflects the date at which it came to be considered a de cursu writ. ⁹ From the thirteenth century we know of 122 instances in which de vi laica amovenda was used, requested or said to have been issued. ¹⁰ Of these only 42 are from Henry III’s reign, three from the 1230s, seven from the 1240s, nine (including this reference in the fine roll) from the 1250s and 22 from the 1260s with the remaining two dated to the early 1270s. Its use increased in Edward I’s reign: after 1272, there are 17 survivals from the later 1270s then 35 from the 1280s and 25 from the 1290s, with two undatable beyond the broad dates of this king. Its development thus fits within the date-span of the development of de excommunicato capiendo, found from the early thirteenth-century, and de apostata capiendo which is first known from 1257. The writ was never, judging by the surviving documentation, very extensively used. Fewer than 250 writs or requests have been identified in total so far for the period up to 1540. In contrast Logan has found 402 petitions for the use of de apostata capiendo (despite its later first appearance) and 7,600 significations of excommunication, 2,800 of them from the thirteenth-century. ¹¹ The limited use of the writ might be explained by the fact that lay invasion was not that common, or that it was known not to be a particularly effective remedy, for which see below. ¹² It was, however, common enough to have developed a standard form for both the request for the writ and the writ itself by the end of the century: in 1293 a request for ejection of a lay force from Thame, made by the bishop of Lincoln, was rejected for incorrect wording, ¹³ and de vi laica amovenda appears in a writ register of the early 1270s. ¹⁴ This writ also differs from the two other de cursu writs noted here in being returnable, at least in some circumstances. Both de apostata capiendo and de excommunicato capiendo were non-returnable writs. ¹⁵ Fitzherbert, however, refers to de vi laica amovenda as a writ which was returnable or not ‘by his pleasure who shall sue the writ’. ¹⁶ This seems to have been the practice by the end of the thirteenth century. There is one direct reference from this century to return being made, in the dispute concerning the church of Thame in Oxfordshire, ¹⁷ and the few surviving originals now in The National Archives, or known to have once been held there, must also have been returned. ¹⁸ The survival of many more requests for the writ’s issue than actual writs amongst the archives of royal government suggests, however, that non-return was the usual practice.

⁋4William’s purchase of this writ implies, then, a violent incursion into the church of Shipton. What can we know about the circumstances of this particular seizure? The William, parson of Shipton, recorded here is William de Greynvill’, rector of the parish of Shipton-on-Cherwell, to which he was presented in 1245 x 1246 by Roger de Paulton, layman. The Paultons and the Greynvills were both families local to the diocese of Wells, with the Paulton family having extensive holdings in Wiltshire and Somerset whilst the Greynvill family was also from the Wiltshire area. ¹⁹ William was no doubt related to the Adam de Greinville who was itinerant justice in the 1260s and justice of the Jews, and who paid a fine of 40 marks for the bailiwick of the forest of Selwood, Wiltshire, in this same fine roll of 1250–1251. ²⁰ He was thus a member of a family of some influence. The entry of William’s institution in the bishop’s rolls both records that he had a benefice in another, unspecified, diocese and includes the marginal note ‘Dubitatur de hac institutione’. ²¹ On what grounds could such doubts have arisen? They were unlikely in this instance to be connected to a dispute between prospective patrons concerning the advowson. Shipton descended with the manor, although there were some complications of patronage in the early thirteenth century, in particular in 1222 x 1223 when Walter, chaplain of St George’s, Oxford, was instituted as rector of the church at the presentation of Ralph son of Robert, chief lord of the fief, as the direct patron, Roger son of Ralph, was excommunicate, ²² and twelve years later, when the next rector was presented by a Guy son of Robert rather than a son of Roger. ²³ In the 1240s, however, the manor was granted by Guy to John of Paulton and this seems to have led to no formal, future disputes. ²⁴ A more probable issue was William’s apparent lack of the necessary dispensation to hold in plurality, a dispensation he only received in April 1248 when the papal registers recorded permission to hold more than one benefice with cure of souls for William de Greynvill, rector of Farmborough, in the diocese of Bath and Wells – a benefice in Wiltshire and in the patronage of Monkton Farleigh priory – who then held two benefices. ²⁵ Until at least 1248, then, uneasiness about William’s position must have remained. By 1251 the rector’s dispensation should have eased this concern but counter-claims to the rectory may well have developed in the period of uncertainty and these could have remained areas of dispute in the next years, as occurred in other cases of lay invasion.

⁋5Although the majority of the surviving writs de vi laica amovenda and requests for it give no background to individual cases, where these are given or can be surmised from other sources, the most probable cause of a lay invasion was a dispute concerning the advowson of the church between prospective patrons or over the possession of a church between two clerks: disputes which were closely interlinked. ²⁶ The references to the seizure of a church by lay force in thirteenth-century English ecclesiastical legislation all assume a dispute between rival claimants to a benefice. In 1237 the papal legate Otto, at the Council of London, spoke of the problems which arose when a too-trusting bishop accepted common report or unsubstantiated claims about a rector’s death or resignation with the result that when the supposedly dead rector was found to be resurrected there were two claimants. This, he said, was a danger with an absentee clergyman (and the pluralist William, with his strong Wiltshire links attaching him to his benefice there, may well have been such an absentee) but could also occur when an incumbent who was actually present was removed by lay force. ²⁷ In 1258 the Provisions of the Council of Westminster noted that a number of clergy had been intruded in parish churches and prebends by lay power and that those involved should be declared to be under anathema. Both the intruded clerk and his henchmen – lay or ecclesiastical – were to be excommunicated if they proved obdurate in this. ²⁸ The subject continued to exercise the bishops when they drew up the canons of the Council of Lambeth in 1261. ²⁹ No mention of the possible use of the secular arm was made, however. ³⁰ Papal and royal provisions could precipitate such disputes. In August 1236, the first reference to the writ involves a lay force keeping one Master Martin, a member of the papal camera, from entering a church he had received through papal provision. ³¹ In the parish of Clopton, during the pontificate of Oliver Sutton as bishop of Lincoln, a request for the writ noted that the bishop had provided the papal candidate as he had been requested to but that he had been unable to enter the church. ³² This continued in the next century; in 1318, Archbishop Melton of York instructed the archdeacon of the East Riding to excommunicate a force holding the church of Kirkby Underdale which was opposing a papal provision. ³³ Royal provision was also protested against to a prebend at Crantock in Cornwall, ³⁴ and was specifically mentioned in 1258 and 1261. ³⁵

⁋6Other disputes over presentations were not connected to such provision, or only incidentally. At Kirkby Kendal a dispute which resulted in a request for de vi laica amovenda in 1295 had begun in 1285. ³⁶ From 1291 on, the issue was of Walter of Maidstone’s presentation to the church by the bishop, with papal permission, but the papal right of provision existed only because of a long vacancy in the church, and this vacancy had begun with the bishop’s removal of Master Alan of Easingwold from the church to which the latter had claimed the right to present himself. ³⁷ Other cases were more straightforward. To give but a few examples, in the 1290s at St. Ishmaels in Wales, when the bishop of St. Davids requested the writ he described the issue as one of patronage disputed between St. Peter’s abbey Gloucester and Henry of Lancaster. ³⁸ In 1294, at Pakefield, the writ was the end result of a case between two laymen at the King’s Bench over the advowson there and at Mendlesham, and Professor Harper-Bill has noted in his forthcoming volume of late Norwich acta that the dispute was very probably the result of a quarrel over patronage. ³⁹ This was also the issue in the second earliest known reference to the writ in August 1238 where it was requested by the papal legate, Otto, as the result of a dispute heard before him concerning the patronage of the church of Tonbridge. ⁴⁰ Clearly in this fine William was seeking a writ some years after his institution, and the dispute may not have been a new one. It is not common for a request for the writ to give the length of time for which the church has been occupied, no thirteenth-century request does so, ⁴¹ and a number of requests give at least the impression of a recent incident, but as the case of Kirby Kendal has demonstrated, disputes could continue over a number of years before the writ was requested.

⁋7Although the specific cause of the dispute at Shipton-on-Cherwell must remain unknown, this fine does provide evidence for the broader context of ecclesiastical administrative development and the tensions between ecclesiastical and secular authority in the thirteenth century. The writ’s appearance and development must be seen in the context of the growth and consolidation of the diocesan consistory courts, which began to appear as established bodies in England around 1250. ⁴² As with requests for the writ de excommunicato capiendo, de vi laica amovenda these often – although not always – seem to have arisen out of failed attempts at imposing ecclesiastical authority. Several requests mention that individuals holding the churches have been excommunicated, ⁴³ an ecclesiastical censure which would have arisen automatically when a member of the clergy had been assaulted or church property seized or damaged, but which could also be formally pronounced against specific individuals by the bishop or have arisen from contumacy in the Church Courts as was often the case with significations of excommunicates. ⁴⁴ Indeed the writ, although it first appears in thirteenth-century writ registers in a selection of miscellaneous writs, ⁴⁵ is, in a fourteenth-century collection, amongst those connected to the Church Courts. ⁴⁶ Although classified following a different system by its editors, and not thus considered in its printed edition in this context, de vi laica amovenda was placed by the register’s compiler with writs about the capture and release of excommunicates, with documents relating to the appointment of judges and proctors in the Church Courts, as well as with those writs which the court might have received concerning the prohibition of cases such as those involving advowsons. Cases of dispute between two clerics claiming a rectory would have been agreed to be within ecclesiastical jurisdiction and instances of this writ arising from such disputes could certainly have followed cases in the Church Courts. What, however, if the case was deemed to be specifically about the advowson? Such disputes were claimed by secular jurisdiction but some certainly found their way to the bishops’ courts. Although there were continued thirteenth-century episcopal protests about these secular claims, ⁴⁷ such cases appeared regularly before secular judges. Indeed two particular cases which later gave rise to instances of this writ came before the secular courts at some point, the case of the Hospital of St. Julian in Southampton, some time between 1282 and 1289, ⁴⁸ and the dispute concerning the church of Pakefield between John of Drayton and Hugh of Cressingham in 1294. ⁴⁹ However, it is clear from other thirteenth-century documentation that such cases did continue to appear in the ecclesiastical courts, particularly if one party was a religious house, ⁵⁰ and it is notable that amongst the identified thirteenth-century requests for writs of de vi laica amovenda 65% concerned churches whose advowsons are otherwise known to have belonged to religious houses or to bishops. In the fourteenth-century similar requests make specific reference to advowson disputes in ecclesiastical courts resulting in lay force invasions. ⁵¹

⁋8The writ is also linked with de excommunicato capiendo in another sense, for both of them reveal the tensions inherent in the Church’s reliance on secular support and the secular arm in enforcing certain ecclesiastical process and penalties. The issue of signification was one raised only a few years after this, by the bishops as a body, in their gravamina of 1253, ⁵² and then later in their linked gravamina, provisions and canons of 1257, 1258 and 1261 ⁵³ and the gravamina of 1285, ⁵⁴ and which they noted countless times in statutes for individual dioceses. Their specific complaints were that the king ignored requests for caption of excommunicates, as well as ordering the freeing of such excommunicates without request from, or reference to, the bishops, but behind these complaints was the more general issue of authority. This is not to say that the Church was without authority within its jurisdiction and it would be wrong to imply that the exercise of limited ecclesiastical jurisdiction was not valued by the Crown. The State benefitted from the ecclesiastical courts’ control over individuals in the areas of, for example, marriage and testamentary law, and the right of the bishops’ consistory courts to hear cases covering large parts of their parishioners’ lives was becoming increasingly established during the thirteenth century. It is equally true that the two systems were not always in conflict. However, the acceptance of the need for royal authority revealed the Church’s weakness in particularly in dealing with the obdurate. Although the Church attempted to claim that in this sort of situation the temporal power was obliged to come to the aid of the spiritual, ⁵⁵ the 1261 questions put to, and answered by, the king made it clear that whilst the Church attempted to maintain the position that they obtained the de cursu writ for caption by right, the king insisted that it was a matter of royal grace. ⁵⁶ When Peter Quinel, bishop of Exeter, described the process of signification in his statutes of 1285 he expressed the tension, describing the two powers proceeding from one and the same source to rule the world, the sacerdotal and the royal, one wielding the spiritual and one the temporal sword. ⁵⁷ The power of the Church, he claimed, was the greater, yet he admitted that in practical terms, secular authority did what ecclesiastical could not. The same tensions must have arisen over de vi laica amovenda.

⁋9The process for both writs — de vi laica amovenda and de excommunicato capiendo — and the question of who requested them raises another, pertinent issue: that of the individual clergy’s interaction with ecclesiastical and secular authority. Although the Church strove to maintain their jurisdiction over the clergy in all circumstances it was not always successful. Its claim in England, for example, to oversee criminous clerks, those clergy who were accused of a secular crime was eroded under Henry III, when it became standard practice for a cross-examination in the secular courts to be carried out before delivery, despite the assertions of Canon Law. ⁵⁸ In addition, individual rectors and vicars could themselves see the benefits of royal law. The medieval English clergy made use of secular law through writs of prohibition to prevent them being sued in the ecclesiastical courts, a process which was likely to lead them directly into defense of their case in the secular courts. ⁵⁹ The use of royal petitions, instigated in 1275 by Edward I, ⁶⁰ has also been noted as marking a tendency amongst individual clergy to appeal directly to secular authority despite the attempts of canon law to keep separate the lay and ecclesiastical spheres. ⁶¹ Leaving aside religious houses, whose petitions have been the subject of a recent study, ⁶² amongst petitioners in the years 1275 to 1299, 32 ⁶³ men describing themselves as rectors, vicars, chaplains or clerks petitioned the king, some with requests concerning issues clearly involving royal authority, such as the tithe of royal land, but others with plaints where the issue might have been expected, or hoped by the Church, to have been made to ecclesiastical authority, such as assault on clergy and — clearly in recognition of the practical authority of secular courts over criminous clerks — requests to be delivered from secular or ecclesiastical gaols. ⁶⁴ From a total of 1,500 petitions for this period 32 is not a large number, but nor are these men completely insignificant. ⁶⁵

⁋10If we consider how writs for the enforcement of the secular arm were probably requested and issued we can see that this, too, reflects the individual clergy’s relationship with secular jurisdiction. As noted above, de vi laica amovenda, was described by Fitzherbert as being requested by episcopal certificate or without it and by the bishop or by the person who required the remedy. Although a very few requests do survive in the names of individual clergy or their proctors from this century, ⁶⁶ the majority were issued by the bishop, as was the case with significations of excommunication. Or at least, they were requested in the bishop’s name. Recent work on the dating of later thirteenth-century episcopal acta, including significations of excommunication, has suggested that, unsurprisingly, the growth in ecclesiastical administration and process, not least that created by the consistory courts themselves, meant that the majority of such ephemeral documents were probably issued without the bishops’ knowledge of specific cases. ⁶⁷ They must have been either issued by court officials automatically when a contumacious individual remained excommunicate, or more probably requested by the individuals affected, as Logan shows occurring in at least one instance of a signification of excommunication, ⁶⁸ and as almost certainly happened in the 1270s when Roger, rector of Whitfield in Tynedale, was ejected from his cure. ⁶⁹ Many of those requesting significations must have been laymen: an analysis of the 342 fourteenth-century cases for which there are surviving records from the consistory court at York suggests that the clergy (rectors, vicars, chaplains and clerks) made up less than 19% of plaintiffs there, rising to only 21% even if cases brought by religious are included. ⁷⁰ But what of requests for de vi laica amovenda? If these were managed in the same way as significations of excommunication, then, as the clergy were those losing by lay force invasions of ecclesiastical property, we must expect that almost all the requesters were clerics. Some few may have been lay patrons in advowson cases, although many such patrons were religious and could have included some of the bishops themselves, but most of the requests are phrased to imply that the incumbent, rather than the patron, was the one who was, in Fitzherbert’s words, ‘him who is grieved’. Even, therefore, when the request appears to have come from the diocesan, the instigator must usually have been an ejected clergyman. That in the fine considered here William de Greynvill’ is purchasing his own writ reinforces the involvement of the parish clergy in seeking their own secular remedy in such cases: a process perhaps more clearly seen in this early example of the writ, but which remains behind the later episcopal requests.

⁋11How successful was this writ? In the case of Shipton, as in many other instances, we do not have enough evidence to know. Certainly, it was not a universally effective remedy. As Rodes noted, the writ would not have worked against “inaction, locked doors or passive resistance”. ⁷¹ The difficulty would have been increased by the fact that this was intrusion upon ecclesiastical property, usually the consecrated building of the church: the sheriff was not allowed to shed blood here and must, on the whole, have kept to this rule, whilst he was matched against a group of laity who had already desecrated a church and were, therefore, perhaps readier to use violence against him. Repeated requests for a writ to deal with the same property and written admissions of failure reinforce this impression. On more than one occasion writs for the removal of force from the same property were sought several times, perhaps only a few months apart. At Thame, de vi laica amovenda was requested three times (omitting the early, rejected request) ⁷² and at Stoke by Nayland and Buckland it was requested twice. ⁷³ At Harewood in the early fourteenth century the sheriff professed himself outnumbered on arrival. ⁷⁴ The sheriff in this instance seems to have left without acting; other sheriffs did not and experienced armed resistance. In 1284 the king ordered an enquiry into those who had opposed his ministers sent to remove a lay force from Patingham church, in Staffordshire, ⁷⁵ and in 1304 a group who had resisted when the sheriff came to remove them from Bardney church by virtue of this writ were pardoned by the abbot there. ⁷⁶ It was also possible for the writ to be misused. At Market Drayton in 1282 a new writ was requested when it was discovered that a former use had actually removed the legitimate party from the church to the benefit of the usurpers there, ⁷⁷ and on the first occasion on which the writ is mentioned at all, in Gloucestershire, the king reminds the sheriff that his instructions had been to remove a lay force, not to seize the fruits of the church. ⁷⁸ Perhaps, as at Kirkby Kendal, it was often a last resort in a bad situation. But it could be effective: persistence could pay. At Bucknell in 1296 the sheriff declared himself unable to remove the lay force as they moved between the church and the parsonage house. Two years later another version of the writ for the same parish was also declared unenforceable, but on this occasion because the lay force was found to have already gone, perhaps the result of the threat of the sheriff’s arrival. ⁷⁹

⁋12This brief fine hides a story of violence and dispute in the parish of Shipton-on-Cherwell, a parish served by a pluralist churchman in an age of ecclesiastical reform. Many of the exact details and the resolution of the case remain concealed. However, this entry does provide an opportunity to consider how this new writ played its part in negotiating the boundaries of contested jurisdiction between Church and State.