R.H. Helmholz
No one has done more to enlighten us about the history of the legal profession in the courts of the medieval church than the scholar in whose honor this volume is being published. James Brundage first studied the canonistic literature on the subject and explored the records of the ecclesiastical courts. Then, in a series of first-rate articles, he illuminated one aspect after another of the history of “the ecclesiastical bar” in England. In them he promised, and later he produced, a justly acclaimed book drawing together these various aspects and placing them in the larger context of European legal history.1
Among the merits of his work has always been an ability to draw revealing connections between this medieval subject and some of the problems that beset the legal profession today. One of the questions that faced the medieval legal profession is also a matter of current interest: Who should be admitted to the practice of law? How many lawyers does society need?2 We are apt to think of this as a new problem. We hear it discussed, frequently in disquieting tones. In these discussions, it is commonly assumed that the admission of overly large numbers of young lawyers to the bar has been a recent development. Many people suppose it would be better to return to an earlier and happier time— when there were fewer lawyers and less litigation. However, in fact this subject has a long and more complicated history. The assumptions, the assertions, and even some of the general grousing about an “over-supply” of lawyers are not unprecedented. Professor Brundage has shown the topicality of his research in the history of the legal profession, and I hope this tribute to him may support and augment his efforts.
The occasion for raising this particular question grows out of a happy find: the discovery in the Bodleian Library of a manuscript directly related to the subject. It is a short English tract about law and ecclesiastical lawyers written during the reign of Henry VIII (1509–1547). It was later copied in a seventeenth-century manuscript devoted to varied aspects of ecclesiastical jurisdiction.3 The tract was there given the simple title: “Touching the Number of Proctors etc.” The manuscript itself has no outward indication of provenance, and no other copies of it have so far been discovered. It is written in English throughout.
The tract’s immediate attention was confined to the principal ecclesiastical courts that then existed in the City of London: the Court of Arches, the Archbishop of Canterbury’s Court of Audience, and the Prerogative Court of Canterbury. Focusing on the proper size of the legal profession within those courts, the treatment discussed only the proctors, the men who (roughly speaking) performed the same role that attorneys did in the English common law.4 It had nothing to say, at least overtly, about the advocates, the more learned half of the profession. The original tract must have been written in the years very shortly after 1528. It was motivated by an ecclesiastical statute promulgated in that year, and it also states that there were then two papal legates (Warham and Wolsey) in England. The latter died in 1530. The Bodleian’s copy of the tract seems to have been made in the seventeenth century, perhaps because its subject remained timely.
This original tract was also timely in a broader sense. The 1520s and ’30s were years of controversy—one might even say agitation—about the proper status and future of the canon law and the ecclesiastical courts in England. Proposals for amendment and reform were being made.5 Some of them called for quite dramatic change. The controversy led up to the “Supplication of the Commons against the Ordinaries” (1532) and the nomination of a commission to reformulate the canon law applied in the courts of the English church.6 This particular document was, therefore, only one among many proposals dealing with the spiritual courts, although at least as far as I know, it was the only one to take up in any detail the merits of having a larger or smaller number of lawyers serving in them.
Its author, who unfortunately remains anonymous, stood somewhat outside the world of practicing ecclesiastical lawyers. He advocated a “secular” solution to the problem that concerned him, and he made no show of learned citations drawn from the ius commune, as a professional civilian would more likely have done. One might suppose, therefore, that he was a common lawyer. However, he clearly knew something of the canon law, and he did not advocate curtailment of ecclesiastical jurisdiction and expansion of the common law’s sphere of competence at the expense of the church, as would have been natural for a common lawyer. In terms of pure self-interest, he might even have been an aspiring proctor, who had been excluded from practice by the 1528 statute.
The tract itself is too long to print here, and it may not be important enough to warrant printing in any other venue. However, its contents are certainly worth describing, because it raised a question of both historical and modern importance. Attempts to control the number of lawyers serving in the ecclesiastical courts were not infrequent in medieval and early modern times, but for the most part, historians have had to guess about their background and the reasons that lay behind them. Here we need not guess at all. The author worked through the applicable arguments in detail. Along the way, he also provided valuable information about the legal profession and even the canon law more generally.
The English ecclesiastical courts had emerged as regular, professional institutions by the second half of the thirteenth century. In 1295, Archbishop Winchelsey had issued ordinances regulating the most important of these, the Court of Canterbury.7 Among them was a provision specifying that there should be 16 advocates and ten proctors serving in the Court.8 How these two numbers were selected we do not know, but it is a reasonable assumption that they were regarded as suitable for the amount of litigation being heard at the time. However, over the course of years between then and the sixteenth century, the limitation to ten proctors must have come to seem inadequate. In practice, the number of serving proctors had been allowed to increase upon nomination by the archbishops. The tract asserted that currently 21 men were authorized to act as proctors in the London courts, more than twice the number permitted under the original statutes.9 To some, this seemed like too many, quite apart from the violation of the statute’s terms. Prominent among the objectors were the men serving as proctors at the time. They had managed to convince the archbishop that their number should be cut back.10 His new statute of 1528 had therefore sought to restrain the multitudo numerosa of proctors and return to the older, statutory level.11 The statute could not reasonably have deprived those who were presently acting as proctors of their livelihood, but it could and did require that no more men be appointed until the number had been reduced to ten by attrition. Only when the numbers fell below that level would new proctors be named. In the meantime it excluded entry into the profession.
We know something about the historical developments leading up to the problem. Over the course of the fourteenth and fifteenth centuries, the amount of litigation in the English ecclesiastical courts had grown. The records for the London courts have not survived from the medieval period, probably the result of the Great Fire of 1666, but evidence from the records of other English ecclesiastical courts clearly indicates an expansion in amounts of litigation between the late thirteenth century and the fifteenth.12 More causes were being heard. More lawyers were needed. However, starting in the 1470s, this situation had begun to change. An expanded use of actions based upon the statutes of Praemunire earlier enacted in Parliament was being directed against litigants in the courts of the church. It had brought the increase to a halt.13 Indeed a marked decline set in. Although the English ecclesiastical courts had long been able to maintain their jurisdiction in a few areas which the common lawyers claimed were outside the proper scope of ecclesiastical jurisdiction, this permissive regime had come to an effective end by the first quarter of the sixteenth century. The old common law rules were made effective in new ways, and their substantive reach was given an expanded scope. Other, less tangible, factors may also have played a part in this movement, but in any event the accustomed amount of ecclesiastical litigation had shrunk substantially by the 1520s.14
Because the livelihood of proctors depended largely upon the fees they received in each cause, their incomes would also have declined during these years.15 By 1528, many of them would have been earning significantly less than their counterparts had half a century before, some of them less than what they themselves had earned only a few years earlier. It cannot have been coincidental that they were unhappy with this situation. Nor is it surprising that they made their unhappiness known to Archbishop Warham. The presence of a larger supply of proctors than the number called for in Winchelsey’s statutes may have been tolerable to them in 1475; 50 years later it had apparently become the cause of a substantial loss in income. There was less litigation to go around. Hence followed an attempt to “turn the clock back” to 1295. It was about this attempt that the tract was written. It opposed the changes called for by the 1528 statute.
This tract was a work of controversy. Its author brought up what appear to have been all the arguments he could think of against the restriction in the number of proctors contained in the new statute. Although he did try to be fair—at least he made a show of objectivity—it is clear that his primary purpose was simply to attack the statute and allow the larger number of proctors to continue to practice. We should not, therefore, expect that all the arguments he brought forward would prove equally convincing, or even wholly consistent one with the other. But any one of them might be enough to persuade. He made six different points:
The tract began its analysis of the statute with a short description of the motivation that lay behind it. The author was in no doubt about this. Although issued in the name of the Archbishop, the statute was the result of the initiative of the existing proctors. He did not blame the aged Warham. The proctors had “abused his Grace’s benignity,” inducing him to issue the statute limiting the number of proctors in order to fulfill their own “covetous intent.”16 This point permitted the author to make the first of his arguments, a legal one: action taken by what he called an “incorporation of men” joined together to protect their economic interests, was inherently suspect. Such a “confederacy” among them was unlawful under English law, at least without the consent of the monarch. That applied here. The London proctors were acting in concert and they were motivated exclusively by self-interest. As a matter of principle, and particularly where justice was at stake, such a confederacy should not be allowed to dictate policy.
This was the same argument that would surface more prominently during the seventeenth-century controversies about monopolies.17 Monopolies were regarded as inherently likely to cause harm and inconvenience to the realm. The proctors who were responsible for the 1528 statute had, the tract asserted, worked for “the advancement of their singular weal only” rather than for the “common weal.” The proper business of the legal profession should be to promote the public interest, not to line the pockets of existing practitioners.18 The statute went in the wrong direction.
The tract’s author was not naïve about the difficulties inherent in dealing with the concentration of power in the hands of one of these confederacies. The entrenched group of proctors would not be easy to unseat. Few individuals had either the necessary interest or the resources to challenge this statute. No litigant would “suppose the same to touch him so much that he should … put himself to business against so many and so rich a company as the said Proctors be.”19 Righting this wrong posed what economists call a “collective action problem.” The author did not suppose that the Archbishop would do anything himself, at least immediately, because he had been the immediate source of the statute and because he would have had to secure the assent of the cathedral chapter at Canterbury in any event. The tract’s author therefore proposed that the King take action, and that he do so in Parliament. This “unreasonable statute” should be abrogated by the authority of Parliament. It was a proposed measure that ante-dated by several years the Henrician use of Parliament to bring the clergy to heel, though it would by no means have been the first Parliamentary statute to affect and change the law of the church.20
If confederated and self-interested action lay behind the statute, making it inherently suspect, that was not the statute’s only fault. The author of the tract did not stop with it. He also condemned its likely effects in practice. Most notably, he asserted, the statute would cause greater delays in litigation. If put into effect, inevitably it would become “the occasion of prolix suits and superfluous delays” in the courts in London.21 He reminded his readers that there were several ecclesiastical courts in the city, and delays were bound to ensue in all of them. Among the ten proctors, he reasoned, three or four would be “always impotent or absent” from one or another of these tribunals. In order to keep up with their work, the rest would be “driven to take oft and many delays and prorogations.”22 The office of a proctor was “laborious and required much busyness.” It was therefore sure to occur, the tract asserted, that unfortunate delays would follow the statute’s enforcement. Indeed, he asserted that proctors would no longer be able even to remember the names of their clients, much less attend promptly to the exigencies of litigation.
No doubt there was a fair measure of hyperbole in this argument. However, the theme of unnecessary delay was a continuing concern on the part commentators within the ius commune; this argument was neither an idiosyncrasy nor an invention of the author.23 Earlier introduction of summary procedure in the courts of the church and the approval given to it in the formal law stand as reminders of the law’s concern to promote the efficiency of the courts and put an end to needless delay.24 The medieval canonists worried constantly about the problem of combating unnecessary delay. It does not detract from the sincerity of their efforts that these efforts were never crowned with entire success. They always hoped for improvement. Modest betterment might, at least, be possible. And in the view of the author of this tract, the result of the 1528 statute was a retrograde step. Clients would lose legitimate legal rights because of the statute’s effects in practice. It stood to reason: the fewer the proctors there were, the more delays there would be. And the more delays, the less justice. This author’s criticism fit within an established tradition of the ius commune, and it also made some sense.
The tract’s author believed that the problem of confederacy infected the origins of the 1528 statute; this had been his first point. The third was related to it. He also believed this evil would raise its head in the continuing work of individual proctors. This was not simply a matter of legality or legal theory. It was also a matter of practicality. A smaller group of men would find it easier than a large one to advance their own interests, usually at the expense of those of their clients.25 Justice would inevitably suffer. There was such a thing as “cross-sufferance” among the proctors, the tract asserted.26 Each proctor would tolerate the faults, the negligence, and perhaps even the fraud of the other proctors in return for similar tolerance of his own shortcomings. Who does not recognize an element of truth in this? Perhaps more than an element. The author thought greater scope would be given to such “cross-sufferance” by restricting the number of proctors available to litigants.
The example the tract’s author picked out to demonstrate the truth of this claim was an interesting one from a modern perspective—far from the one most modern critics of the legal profession would choose. His example was an oath, the iuramentum calumniae, commonly taken in the opening stages of each case. Today, we should more likely choose high fees as likely to be the product of collusion. This author did mention increased fees, but he focused greater attention on the statute’s effect upon this oath. Perhaps this reflected an emphasis found in the law itself. Both the Gregorian Decretals and the Codex Justinianus contained titles devoted to it.27 The oath required the parties to swear that they were not acting for an unjustifiable purpose; and they swore (in the words of Gaius) they were not taking part in the suit “merely in order to annoy the other party, trusting for success to some mistake or injustice on the part of the judge rather than to the true merits of his cause.”28 They also swore (in the words of the tract’s author) that they would “use no unnecessary delays,” that they would “answer truly to everything that was asked of them,” and that they would not “procure any false witness.”29
The tract’s argument here was that in litigation between parties, proctors were permitted to take this oath as a representative of their clients. However, the oath also could be omitted by agreement of the parties and with the permission of the judge.30 To the author of this tract, this was exactly the problem. A small group of proctors could tacitly agree among themselves to omit the oath. Its omission could then become a matter of course. And that is what they inevitably would do. In fact he asserted it was what they were doing already. Smaller numbers enabled them to be “haughty, arrogant, negligent, and loath to take pains” in their conduct of litigation,31 in no instance more so than in routinely dispensing with the oath of calumny. If not required to take that oath, their faults would the more easily be ignored. Ensuring that there would be a larger number of practicing proctors might not guarantee there would be no such “cross-sufferance” at all, but at least it would discourage the practice. It would make what was happening harder to hide. The 1528 statute was therefore a mistake.
The tract’s fourth argument related to the power of the judges to intimidate the lawyers serving in the courts. The author took the position that the judges would have an easier time keeping proctors “in subjection and fear of them” if there were only a few of them.32 He was quick to add that the current judges in London’s ecclesiastical courts were impartial arbiters, decent lawyers, and honest men. They did not browbeat the existing proctors. But he worried about what might happen in the future. There could always be a change for the worse among the judges, and if one took place, litigants would be better off if they had a larger list of proctors from which to choose. They would not be required to pick one whom the judges disliked. The unintended effect of the 1528 statute was thus to open up the possibility of greater judicial tyranny. If there were fewer proctors in practice, they would stand in fear of losing their lucrative posts by standing up to the judges.
It is difficult to take this argument seriously. The author cited no real evidence to back it up. However, the tract’s author did note that the judges had the power to exclude proctors from practice before the courts, and instances have survived in which this happened.33 The proctors did have something to fear from the judges. Perhaps it is true that litigants would profit from having a larger choice, particularly when some among the serving proctors might have incurred the enmity of a particular judge. Knowing that an unfriendly judge might seize an opportunity to strike at him, a proctor might fear to advocate his clients’ causes vigorously.
Partiality among judges was not an imaginary problem. It was a greater problem in the ecclesiastical courts than in the common law, as the author of the tract pointed out, because the absence of juries in the former meant that “all dependeth upon the judge’s hands.”34 Perhaps a small group of proctors would in fact have had more to fear from tyrannical judges. Safety in numbers is an old adage. Still, there was an element of fancy in supposing that more and poorer proctors would necessarily have been much better protectors of the rights of their clients than a smaller and richer class of lawyers, as the author felt obliged to argue.
The author of this tract was not blind to the motivations of ordinary lawyers or their clients. Most men did not become lawyers out of a simple love of learning. They expected to be paid for their services, as they were entitled to be paid under existing law.35 Equally, most clients were not interested in advancing the fortunes of lawyers as a group. They expected to pay for the services of lawyers, and probably also to pay more for the services of “diligent and learned” lawyers. This willingness was in their own interest. Money was not a factor to be ignored.
One way in which the ecclesiastical courts dealt with this reality was in the adoption of formal fee schedules. They set in advance the amounts to be paid for particular legal services. The idea was to regulate disparities and avoid the necessity for bargaining. But the author of the tract knew that such schedules could not altogether eliminate variations in what clients would pay their own lawyers. There was enough room left for this common practice under the law. And he knew it would make a difference to what proctors would do.
How did this fact of legal life relate to the total number of proctors permitted? According to the tract’s author, it did so in two ways. First, the richer clients might monopolize the services of the better lawyers. They were permitted to hire more than one proctor at a time, as long as they did not hire all of those who were qualified. Obviously where one party had a quasi-monopoly on available legal talent, this would affect the outcome of litigation. Equally obviously, it would be an obstacle to justice. With more lawyers available, however, the chances of this possibility becoming a fact were less. Even very rich clients would hesitate to “corner the market” if they had to employ a very large number of lawyers. With larger numbers of lawyers there would thus be fewer attempts to “monopolize” the bar. Second, a potential monopoly among a small number of proctors would present a “great discouragement” to the study of ecclesiastical law among young men. Fewer openings in the profession inevitably meant there would be fewer students. It also meant that those who did study law would be less serious about it. “[How] should they study to excel others in learning and diligence,” he asked, when they “see themselves nothing frequent with causes?”36 The statute’s plan, gradually reducing the number of proctors in the London courts by prohibiting any new entries until the figure ten had been reached, would have been an absolute disincentive to the best men. Very likely, they would slip away into other pursuits and other professions.
Somewhat surprisingly, the author of the tract left the formal law for last. But he did come to it. And it appeared to support his argument. Under the ius commune, any person who was not disqualified from acting in a court of justice could serve as a proctor.37 A few men were disqualified—the insane, the excommunicate, and minors for instance. But this was because, for one reason or another, they did not hold the legal status that qualified them to sue in their own right (persona standi in iudicio). Otherwise, clients were free to choose whomever they liked to represent them. This was what the law said. The contrast between the law on this point and the 1528 statute, maintained the tract, could not be clearer. Where the canon law “doth except and repel very few,” the statute did just the opposite. It “prohibited all … but only a few that are specially admitted” to serve as proctors. The London proctors had therefore caused a law to be an enacted that was “plain contrary to their own law, civil and canon.”38
The author did not argue that the 1528 statute was “unconstitutional” in the modern sense of being invalid because it was contrary to the general law of the church. That is not how the canon law worked. But the disparity invited comparison between the statute and the ius commune. It meant that evaluation of the statute should be undertaken with a critical eye. Which was the more consonant with reason? That was the question, and the tract’s author thought the answer to it was obvious. The canon law on this point had been made “long ago,” and by “many great and wise clerks and holy men.” It had been “afterwards approved by continual usage of divers countries and long succession of time.” It had proved to be “wholesomely ordained for the common weal.”39 By contrast, the new statute was “lately made by the procurement of a few private persons for their singular advantage.” It had been “approved by no tract of time.”40 It was a mistake.
The author did not, however, read the canon law as admitting no limitation whatsoever on the number of proctors. Such a mechanical approach to the Decretals or the Corpus iuris civilis was not the ordinary approach of the medieval jurists. In this instance, exact and immediate enforcement of the formal law would have invited a “confused tumult” in the ecclesiastical courts. That could not have been the intent of the law. What the permissible number should be, the tract’s author did not venture to say. It depended upon other factors, most especially the number of causes that arose. But the severe limitation contained in the statute went too far. In his view, the situation should be remedied by a contrary statute enacted by the English Parliament. It would be preferable to have too many proctors than too few, “for better it were that some of them should want causes than causes should want them.”41
It cannot be claimed that the anonymous tract was a success. Parliament did not respond to its call to action. No apparent notice of it was taken by the English civilians or in the courts of the church. However, neither can it be said that the 1528 statute was itself a success. The number of proctors did not reach ten. In 1541 Archbishop Cranmer felt required to issue a statute that contained the identical limitation to ten in the number of proctors. The new statute also adopted the identical plan for reaching that lower number.42 And it too failed. A list of the men who had been admitted to practice as proctors before the Court of Arches compiled in the 1560s stood at 22.43
Twenty-five years after compilation of that list, Archbishop Whitgift was still trying to reduce the number of proctors in the London courts. By then, however, he had to lower his sights. He could only hope to reduce the number to 20.44 Getting back down to ten was, it seems, no longer thinkable. His own statute set the higher figure as the permissible number of proctors.45 No doubt this result had much to do with a rising level of contemporary litigation in the ecclesiastical courts,46 but it is also tempting in the present context to suppose that the arguments advanced in the early Tudor tract played a part in this continuing story. That would, of course, be speculation. Its real importance is simply that it opens a window on some of the realities of litigation in the spiritual forum.
1 James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, IL, 2008).
2 See James A. Brundage, “The Cambridge Faculty of Canon Law and the Ecclesiastical Courts of Ely,” in Patrick Zutshi (ed.), Medieval Cambridge: Essays on the Pre-Reformation University (Woodbridge, Suffolk, 1993), pp. 21–45.
3 Bodl. MS. Rawl. B.202, fol. 98v–103v [hereafter cited as Rawl. MS.].
4 For relevant material on proctors during this period, see Rosemary O’Day, The Professions in Early Modern England, 1450–1800 (Harlow, 2000), pp. 156–157; Brian Levack, “The English Civilians, 1500–1750,” in Wilfrid Prest (ed.), Lawyers in Early Modern Europe and America (London, 1981), pp. 110–112; Robert Peters, Oculus Episcopi: Administration in the Archdeaconry of St. Albans 1580–1625 (Manchester, 1963), pp. 60–62; Martin Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge, 1987) pp. 61–63.
5 See J.H. Baker, Introduction to The Reports of Sir John Spelman, Selden Society, 94 (2 vols, London, 1977), vol. 2, p. 70, n. 3.
6 The former is printed in: English Historical Documents V, 1485–1558, ed. C.H. Williams (London, 1967), no. 94. The latter was first authorized by 27 Hen. VIII, c. 15 (1535), and at length it produced the Reformatio legum ecclesiasticarum, a collection which, however, never became law. See its text in Gerald Bray, Tudor Church Reform: The Henrician Canons of 1535 and the Reformatio legum Ecclesiasticarum, Church of England Record Society, 8 (Woodbridge, Suffolk, 2000), pp. 145–734.
7 About these courts, see Irene Churchill, Canterbury Administration: The Administrative Machinery of the Archbishopric of Canterbury Illustrated from Original Records (2 vols, London, 1933), vol. 1, pp. 424–499; F. Donald Logan, The Medieval Court of Arches, Canterbury and York Society, 95 (York, 2005), pp. xv–xxxviii.
8 David Wilkins, Concilia Magnae Britanniae et Hiberniae (London, 1737), vol. 2, pp. 204–213, at p. 205 and Logan, The Medieval Court of Arches, pp. 7–8. Whether this was a novel restriction is discussed in Paul Brand, The Origins of the English Legal Profession (Oxford, 1992), pp. 149–151.
9 Rawl. MS., fol. 98v.
10 It is worthy of note that in 1511, when proctors were still permitted to become members of Doctors’ Commons, ten were in fact listed as members. See G.D. Squibb, Doctors’ Commons: A History of the College of Advocates and Doctors of Law (Oxford, 1977), p. 18.
11 Wilkins, Concilia, vol. 3, pp. 710–711; Logan, The Medieval Court of Arches, p. 62. A similar attempt was made in the consistory court at Lichfield in 1639, on the occasion of the admission of three new proctors, see Act book B/C/2/73, s.d. August 14 (Lichfield Joint Record Office). There were to be no more until the old number had been reached. The proctors obviously did not realize there would be no proctors needed at all after the start of the Civil War the next year.
12 Brian Woodcock, Medieval Ecclesiastical Courts in the Diocese of Canterbury (Oxford, 1952), p. 84.
13 16 Ric. II, c. 5 (1392); the later “offensive” against ecclesiastical jurisdiction is described in Baker, Introduction to Spelman, pp. 66–70, and R.N. Swanson, Church and Society in Late Medieval England (Oxford, 1989), pp. 184–190.
14 The evidence on this point is explored more fully in R.H. Helmholz, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, Oxford History of the Laws of England (Oxford, 2004), vol. 1, pp. 229–234.
15 Their income would not have declined quite as precipitously as the amount of litigation itself declined, however, since the loss of breach of faith causes, which dealt with enforcement of small contracts, accounted for a large percentage of the loss. Proctors would not have been required in most of them. See generally Ralph Houlbrooke, Church Courts and the People during the English Reformation (Oxford, 1979), pp. 50–51.
16 Rawl. MS., fol. 99.
17 See Jacob Corré, “The Argument, Decision, and Reports of Darcy v. Allen,” Emory Law Journal, 45 (1996): p. 1261.
18 Rawl. MS., fol. 98v.
19 Rawl. MS., fol. 99v.
20 For examples of earlier statutes purporting to change the canon law, see, 20 Hen. III, Stat. Merton, c. 5 (1235–1236) (usury); 3 Edw. I, c. 22 (1275) (marriage); 13 Edw. I, st. circumspecte Agatis, no. 2 (1285) (churchyards); 31 Edw. III, st. 1 c. 11 (1357) (administration of the estates of decedents); 37 Edw. III, c. 13 (1363) (regulation of clerical dress); 45 Edw. III, c. 3 (1370–1371) (tithe); 4 Hen. IV, c. 12 (1402) (appropriation of parish churches); 2 Hen. V, st. 1, c. 3 (1414) (procedure).
21 Rawl. MS., fol. 99v.
22 Rawl. MS., fol. 99v.
23 See C.H. van Rhee (ed.), The Law’s Delay: Essays on Undue Delay in Civil Litigation (Antwerp, 2004).
24 See Clem. 2.1.2 (Dispendiosam) (1306) and Clem. 5.11.2 (Saepe) (1311) endorsing and defining the use in ecclesiastical tribunals of procedure “simpliciter, de plano ac sine strepitu et figura iudicii.” On this procedure, see James A. Brundage, Medieval Canon Law (London and New York, 1995), pp. 139–140; K.W. Nörr, “Von der Textrationalität zur Zweckrationalität: das Beispiel des summarischen Prozesses,” ZRG Kan. Abt., 81 (1995): pp. 1–25.
25 See James A. Brundage, “Professional Canonists and Their Clients: Problems in Legal Ethics,” in Uta-Renate Blumenthal, Kenneth Pennington, and Atria A. Larson (eds), Proceedings of the Twelfth International Congress of Medieval Canon Law (Vatican City, 2008), pp. 857–874.
26 Rawl. MS., fol. 100v.
27 X 2.7.1–7, and Cod. 2.58(59).1–2.
28 The Institutes of Caius, bk IV § 178, ed. Francis de Zulueta (Oxford, 1946), pt. 1, p. 303.
29 Rawl. MS., fol. 100v.
30 See William Durantis, Speculum iudiciale (Basel, 1574), lib. II, pt 2, tit. De iuramento calumniae § 2, no. 10; Sigismundo Scaccia, De iudiciis causarum civilium, criminalium et haereticalium libri (Venice, 1663), lib. II, c. 1, quaest. 3 (nos 49–54).
31 Rawl. MS., fol. 100. On the place of the oath in canonical thought, see James A. Brundage, “The Calumny Oath and Ethical Ideals of Canonical Advocates,” in Peter Landau and Joergs (recte Jörg) Mueller (eds), Proceedings of the Ninth International Congress of Medieval Canon Law (Vatican City, 1997), pp. 793–805.
32 Rawl. MS., fol. 101v.
33 Ex officio c. Leverton (Ely 1380), Cambridge Univ. Library, Act book D/2/1, fol. 131v.
34 Rawl. MS., fol. 102.
35 See gl. ord. ad C. 11 q. 3 c. 71 s.v. Non licet, distinguishing the old prohibitions against taking fees as applicable only when the lawyer gave advice without himself doing any work.
36 Rawl. MS., fol. 102v.
37 Hostiensis, Summa aurea (Venice, 1574), lib. I, tit. De procuratoribus, no. 8; see also James A Brundage, “Entry to the Ecclesiastical Bar at Ely in the Fourteenth Century: The Oath of Admission,” in Stanley Chodorow (ed.), Proceedings of the Eighth International Congress of Medieval Canon Law (Vatican City, 1992), pp. 532–544.
38 Rawl. MS., fol. 102v.
39 Ibid.
40 Ibid.
41 Rawl. MS., fol. 103v.
42 Wilkins, Concilia, vol. 3, p. 859.
43 See British Library, London, Stowe MS. 570, fols 127–128.
44 c.7 (1587) in Wilkins, Concilia, vol. 4, p. 331.
45 There is thus a parallel here with the number of attorneys practicing in the English royal courts; see C.W. Brooks, Lawyers, Litigation and English Society since 1450 (London and Rio Grande, OH, 1998), pp. 179–186. The amount of litigation in the ecclesiastical courts had also begun to rise again by the latter date.
46 See R.B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (Cambridge, 2006), pp. 15–22.