Saturday, 23 May 2015

Historical Notes on Clause 5. Excommunicated Persons and Bail

Excommunicati non debent dare vadium ad remanens nec praestare juramentum, sed tantum vadium et plegium standi judicio ecclesiae ubi absolvuntur.

Excommunicates should not be required to give a gage by way of deposit [a financial deposit into the bishop's court], nor take an oath, but only give their "gage and pledge" [surety and promise] that they would come before the ecclesiastical court to be absolved.

The person who had been excommunicated by the Church was only expected to give sufficient caution either by way of a pledge, oath and/or surety as a guarantee that he would at a future time appear before the ecclesiastical court for judgement and seek absolution.

Typically excommunicates were allowed up to forty days from the day of their excommunication to present themselves in the ecclesiastical court in order to make their reconciliation with the Church in order to obtain absolution.

It is thought that Henry II introduced this clause as an anti-corruption clause, as part of his policy to stop the Church from profiting from "caution monies". Archdeacons were renowned for pocketing large sums of money from cases brought in judgement before them. Chaucer's summoner is another clear example describing the kind of racket some members of the Church were indulging in. A summoner was responsible for bringing sinners before the ecclesiastical courts. Chaucer's summoner was ever ready to arrange for a sinner to be forgiven if he was certain of receiving a large bribe, implying that the Church was more interested in the size of a sinner's purse rather than saving his soul, preferring to extort protection monies from sinners by the threat of excommunication.

Archdeacons who sat in judgment in ecclesiastical courts were renowned of being corrupt and grasping. Their job presented many opportunities for making money. John of Salisbury wrote ca 1160 that from archdeacons 'the whole way of salvation is utterly barred' because 'they love gifts, they follow rewards, they give a prize to injustice, they rejoice in false accusations, they feed upon the sins of the people'.


This clause was condemned by the Pope.


Vadium ad Remanens [Bail]
Vadium et Plegium [gage and pledge, old Norman-French gage et plege] Mainprise

Travers Twiss (1895). the history of english law before the time of edward I. Gage [vadium] and Pledge [plegium]: CUP Archive. pp. 185–.


vadium et plegium standi
stand gage and pledge
stand mainprize

Mainprise v. Bail

Duhaime's Law Dictionary

And there is the difference between mainprise and bail: he that is mainprised  is said to be at large, after the day he is set to mainprise, until the day of his appearance.

"But where a man is let to bail by a judge, etc. until a certain day, there he is always accounted by the law to be in their ward for the time.


"And they may, if they will, keep him in prison, so that he that is so bailed shall not be at large or at his own liberty."



Matthew Hale. Historia Placitorum Coronae: The History of the Pleas of the Crown. Chapter XV: Concerning bail and mainprise The Lawbook Exchange, Ltd. pp. 124–. ISBN 978-1-58477-282-8.

Charles Erdman PETERSDORFF (1824). A Practical Treatise on the law of Bail, in civil and criminal proceedings. pp. 475–.

Matthew Hale. Historia Placitorum Coronae: The History of the Pleas of the Crown. The Lawbook Exchange, Ltd. pp. 383–. ISBN 978-1-58477-282-8.

and

John Reeves (1814). History of the English Law, from the Time of the Saxons, to the End of the Reign of Philip and Mary: In Four Volumes. Reed and Hunter. pp. 77–.

Persons excommunicated ought not to. give any security by way of deposit, nor take any oath, but only find gage and pledge to stand to the judgment of the church, in order to absolution. 

The following reference 

Church of England (1851). A collection of the laws and canons of the Church of England, from its first foundation to the conquest, and from the conquest to the reign of King Henry VIII.: Translated into English with explanatory notes ... J.H. Parker. pp. 51–.

suggests that bishops were wont to take monetary deposits in their court together with a promise on oath for good behaviour never more to sin and become excommunicate. This clause was intended to stop this practice.

Contumacy Costs
James Thomas Law (1844). Forms of Ecclesiastical Law; Or, The Mode of Conducting Suits in the Consistory Courts: Being a Translation of the First Part of Oughton's Ordo Judiciorum, with Large Additions from Clarke's Praxis, Conset on Practice, Ayliffe's Parergon, Cockburn's Clerk's Assistant, Gibson's Codex, &c. W. Benning & Company. pp. 141–4.

An excommunicated party was not to be absolved until he has produced and deposited the contumacy costs, and the sums decreed by the ecclesiastical court and has taken an oath to obey the ecclesiastical law, and submit to the mandates of the Church.

References

Hugh M. Thomas (2014). The Secular Clergy in England, 1066-1216. Oxford University Press. pp. 149–. ISBN 978-0-19-870256-6.

James Thomas Law (1844). Forms of Ecclesiastical Law; Excommunication: W. Benning & Company. pp. 123–47.

Nathaniel Bacon (1739). An Historical and Political Discourse of the Laws and Government of England. pp. 182–.

James Endell Tyler (1834). Oaths; their origin, nature, and history. 

Sir Matthew Hale (1792). The history of the common law. Printed for James Moore, 45, College-Green. pp. 160–.

David Charles Douglas (28 December 1995). English Historical Documents, 1042-1189. Psychology Press. pp. 838–. ISBN 978-0-415-14367-7.

Nathaniel Bacon; John Selden (1739). An Historical and Political Discourse of the Laws and Government of England D. Browne and A. Millar. pp. 113–.

S.J. Fitzjames. A History of the Criminal Law of England. Рипол Классик. pp. 69–. ISBN 978-5-87904-421-8.

John Reeves (1814). History of the English Law, from the Time of the Saxons, to the End of the Reign of Philip and Mary: In Four Volumes. Reed and Hunter. pp. 457–.

Thomas Walter Williams (1808). The Whole Law Relative to the Duty and Office of a Justice of the Peace, Comprising Also the Authority of Parish Officers. Bail: on persons who have been excommunicated and taken at the request of the bishop ...: W. Clarke. pp. 257–.


Henry Charles Lea (1869). Studies in Church History: The Rise of the Temporal Power.-Benefit of Clergy.-Excommunication.-The Early Church and Slavery. Henry C. Lea's son & Company. pp. 384–.

Charles Viner (1792). A General Abridgment of Law and Equity: Alphabetically Digested Under Proper Titles, with Notes and References to the Whole. pp. 532–.

The Ecclesiastical Law: 2. London. 1842. pp. 243–.

Travers Twiss (1895). the history of english law before the time of edward I. Gage [vadium] and Pledge [plegium] CUP Archive. pp. 185–.

Richard Burn (1792). A New Law Dictionary: Intended for General Use as Well as for Gentlemen of the Profession. Excommunication: Brett Smith. pp. 279–. 

The Soul of Wit: Eccentricity, Absurdity and Other Ecclesiastical Treasures. Hymns Ancient and Modern Ltd.  2002. p. 101. ISBN 978-1-85311-496-0. 


Thomas Wood (1745). An Institute of the Laws of England pp. 643–.

The Surety
William H. Loyd
University of Pennsylvania Law Review and American Law Register
Vol. 66, No. 1/2 (Dec., 1917), pp. 40-68
Published by: The University of Pennsylvania Law Review
Article DOI: 10.2307/3314322
Stable URL: http://www.jstor.org/stable/3314322
https://archive.org/details/jstor-3314322

Pledge
Kate Morris (2006). History. Lotus Press. pp. 162–. ISBN 978-81-89093-37-2.
http://users.trytel.com/~tristan/towns/glossary.html

Gage and Pledge
https://archive.org/stream/calendarplearol00britgoog#page/n12/mode/1up


Trust. 
In Teutonic law trust was symbolized by a gage and pledge (token of security and forfeiture of property) and in Norman England by a bailment of actual monetary value.

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