Tuesday, 3 December 2013

Historical Notes on Clause 7: Excommunication and Interdict without king's consent


Cap. vii. Nullus qui de rege teneat in capite, nee aliquis dominicorum ministrorum ejus, excommunicetur, nee terrae alicujus eorum sub interdicto ponantur, nisi prius dominus
rex, si in terra fuerit, conveniatur, vel Justitia ejus, si fuerit extra regnum, ut rectum de ipso faciat : et ita ut quod pertinebit ad curiam regiam ibidem terminetur, et de eo quod spectabit ad ecclesiasticam curiam, ad eandem mittatur ut ibidem tractetur.

Clause 7: No one who holds of the king in chief or any of the officials of his demesne is to be excommunicated or his lands placed under interdict unless the lord king, if he be in the land, or his justiciar, if he be outside the kingdom, first gives his consent, that he may do for him what is right: yet so that what pertains to the royal court be concluded there, and what looks to the church court be sent thither to be concluded there.
10 Hen II. Constitutions of Clarendon (1164) c.7

Excommunication was a kind of ecclesiastical outlawry. An excommunicate could do no act in law. He was considered to be a spiritual leper. He could not sue, but could be sued. No one could pray with him, talk to him, or eat with him. Becket did not always, when he excommunicated someone, give them an opportunity to face him and answer the charge and say why they ought no to be punished in this manner, which was strictly the right by canon law of someone so accused. Appeals were long and expensive, especially if they had to made in person before the Pope and the Roman Curia. Many of his contemporaries, including clerics, criticized him about this. His subsequent martyrdom whitewashed his reputation of such criticisms.


William I had introduced a principle that tenants-in-chief, the king's ministers, sheriffs and bailiffs were not to be excommunicated without royal consent. This principle was restated in the Constitutions of Clarendon.  The King was supposed to send his officers to capture excommunicates after a 40-day grace period had lapsed, during which time they had the chance to submit to the Church.

In 1194 Archbishop Geoffrey of York was fined heavily for being in contempt of the king for having excommunicated one of his ministers, the Bishop of Durham.

References

Lister M. Matheson (2012). Icons of the Middle Ages: Rulers, Writers, Rebels, and Saints. ABC-CLIO. pp. 75–. ISBN 978-0-313-34080-2.

Christopher Robert Cheney (1982). The Papacy and England, 12th-14th Centuries: Historical and Legal Studies. Ashgate Publishing, Limited. ISBN 978-0-86078-099-1.

S. D. Church (2003). King John: New Interpretations. Boydell & Brewer Ltd. pp. 304–. ISBN 978-0-85115-947-8.

Frederick Pollock (Sir)); Frederic William Maitland (1966). The History of English Law. CUP Archive. pp. 478–80.
https://archive.org/stream/historyenglishl03maitgoog#page/n518/mode/1up

Robert C. Palmer (1 February 2001). English Law in the Age of the Black Death, 1348-1381: A Transformation of Governance and Law: A Transformation of Governance and Law. Univ of North Carolina Press. pp. 322–. ISBN 978-0-8078-6374-9.


Simon Sudbury Oxford DNB


Case Histories
Un J. suyst un brief pur luy et pur le Roy vers W. de R., Commissare Levesqe de Norwiz, de ceo qe

Richard Frisel suist, pur nostre seignur le Roi et pur luy, un brief de Contempte vers Levesqe de Norwiz

Francis James Newman Rogers (1840). A Practical Arrangement of Ecclesiastical Law. Saunders and Benning. pp. 421–.


John Reeves (1814). History of the English Law: From the Time of the Saxons, to the End of the Reign of Philip and Mary [1558]. Reed and Hunter. pp. 42–.

Henry Bettenson; Chris Maunder (29 September 2011). Documents of the Christian Church. Oxford University Press. pp. 2–. ISBN 978-0-19-150151-7.

 





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