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Arbitration, Delegation, Conservation: Marginalized Mechanisms for Dispute Resolution in the Pre-Reformation English Church

Published online by Cambridge University Press:  15 May 2020

R. N. Swanson
R. N. Swanson*
Affiliation:
Shaanxi Normal University
*
*E-mail: r.n.swanson@bham.ac.uk.
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Abstract

The records of diocesan and peculiar courts of late medieval England have received extensive academic scrutiny, generating a reasonably clear picture of a hierarchical pyramid ultimately headed by the papal curia. However, that picture is an incomplete depiction of the totality of the ecclesiastical mechanisms of dispute resolution. Existing scholarship largely ignores the use of arbitrated extra-curial settlements to avoid litigation (or, alternatively, a formal sentence). Concentration on the provincial court hierarchy also marginalizes the more directly papal courts of judges delegate and assorted local agents with judicial powers, which functioned within England between 1300 and the Reformation and bypassed the normal fora. Drawing on a wide range of scattered source material, this article introduces these neglected elements of the church's legal system, including the resident papal conservators appointed at the request of petitioners to exercise a general delegated papal judicial authority on their behalf, whose existence has been almost completely unnoticed. It suggests the significance of arbitration, delegation and conservation within the wider structure, and the need to give them much more attention if the practical importance of canon law in pre-Reformation England is to be properly understood and appreciated.

Type
Research Article
Information
Studies in Church History , Volume 56: THE CHURCH AND THE LAW , June 2020 , pp. 165 - 181
Copyright
Copyright © Ecclesiastical History Society 2020

Among the forces which shaped and reveal the medieval English church and its place, role and influence in contemporary society, law and litigation were clearly important. Disputes were ubiquitous, repeatedly configuring and reconfiguring institutional and personal ties and relationships. Seemingly congenital litigiousness makes church court records essential sources for investigation and analysis. The records of secular jurisdictions, from manors up to Westminster and Chancery, also offer massive amounts of relevant evidence and information.

The quantity and quality of the surviving court records from the diocesan and peculiar jurisdictions of pre-Reformation England has understandably, and justifiably, generated a scholarly tradition shaped as much by its concentration on those sources as by the formal structures of the church's legal system. Given the quantity, quality, accessibility and rewards of such material (the York Cause Papers or the diocesan court books from Canterbury, London and Hereford), it is perfectly understandable why scholars have not been particularly inclined or tempted to trawl less obviously promising sources.Footnote 1

However, that failure to extend the search may result in distortion and faulty reconstructions or analyses. Potentially significant strands within the church's legal structures and procedures may not have received their due attention. Admittedly, the nature of the available sources may mean that those strands cannot realistically receive that attention; but to ignore them leaves the current view of the church and (its) law incomplete. Two major facets of these neglected or marginalized aspects are considered here. The first is the use of informal and essentially extra-curial processes of dispute resolution through arbitration, seeking either to obviate the need for (or continuance of) litigation or to avoid the ill-will which might result from a formal outcome or implementation of a sentence. The second is decidedly curial, but outside or beyond the hierarchical pattern of local, diocesan and provincial courts reflected in the usually consulted sources. Instead, it demonstrates the continuing existence across the late medieval centuries of an alternative system based on the delegation of papal judicial authority to local agents, a devolution of papal justice which allowed cases to be heard in England rather than at the papal court. Admittedly, each of these strands is occasionally indicated within the standard evidence from the main church courts, but by their nature they are extraneous to them. More often they are revealed in scattered shards of evidence outside those records, their random distribution discouraging deliberate hunting and making their discovery a matter of luck more than expectation. Some of these shards survive as individual documents, obscured within family or institutional collections and deposits in record offices; others, comprising most of those so far noticed, emerge from miscellaneous entries in episcopal registers or as copies transcribed for other purposes into legal and administrative formularies or letter collections.

The goal of this discussion is not a comprehensive overview or a detailed analysis of the social forces behind the use of such mechanisms; it offers a preliminary general comment directed mainly to shaping the framework for consideration of attitudes to, and experiences of, the structures and processes of ecclesiastical law in pre-Reformation England. The narratives of the disputes and court cases which generate the evidence were individually significant to those involved; but most of the available records provide only isolated fragments of the full story. Reconstruction of specific cases therefore gives way here to the simpler and more straightforward goal of drawing attention to the practices, deploying the evidence mainly to illustrate their existence and general operation. The thrust of the argument is that the current lack of attention to arbitration and delegated papal jurisdiction distorts awareness of the mechanisms of ecclesiastical justice in pre-Reformation England, but the nature of the evidence and current state of research unavoidably make this a tentative initial assessment, an extremely sketchy sketch.

Arbitration

The first strand directs attention to resolution of ‘ecclesiastical’ disputes by extra-curial processes which produced a negotiated or mediated settlement. A case from Northamptonshire in 1458 provides a good illustration. Acting as ‘arbiter, arbitrator, sive amicabilis compositor’, John Chedworth, bishop of Lincoln, concluded a case which had been long undecided before his diocesan consistory court. The churchwardens and parishioners of Lamport had sued an inhabitant of Higham Ferrers (roughly thirteen miles away) for an annual payment from a tenement in Lamport to fund the maintenance of lights within their parish church. Having examined the evidence, Chedworth found for the plaintiffs and affirmed the tenement's liability.Footnote 2

Chedworth's mixed designation complicates analysis: formally, the three roles of arbiter, arbitrator or amicabilis compositor (‘intermediary for a friendly agreement’) differed in precise canonical understandings; but practical distinction is often unrealistic. ‘Arbiter’ implies decision accepting the claims of one or other party; ‘arbitration’ suggests mediation with an imposed settlement; while an ‘amicabilis compositor’, perhaps the key term for immediate purposes, sought neither to impose a decision nor to gain grudging acceptance, but to find an equitable resolution which left both parties content. The role required (as Chedworth declared himself to be) acting ‘to bring about the good of peace and concord between the parties themselves’.Footnote 3 In this context mediation and negotiation could work outside or beyond the law, or even as an explicit alternative to it, to produce an acceptable and equitable resolution which itself had legal standing for the future through documentary confirmation which could be invoked should the dispute revive.

How voluntarily the parties participated in such processes can sometimes be questioned; assertions of free will may conceal at least some degree of compulsion or coercion.Footnote 4 There are obvious similarities here with the role of arbitration and negotiated settlements in secular life, and with the search for equity which became the preserve of Chancery. The formalized informality of arbitrated resolutions in the secular sphere has received considerable attention from historians of late medieval England in recent decades, in marked contrast to the silence on its contribution to the resolution of disputes under ecclesiastical jurisdiction. The evolution of the existing scholarship and its emphasis on processes within courts has diverted attention from processes beyond them.Footnote 5

Once noticed, however, such settlements become noteworthy across a range of actions, although with some disputes perhaps excluded by the need for formal determination, such as matrimonial issues.Footnote 6 Obviously, arbitrations which successfully pre-empted litigation would leave virtually no traces, so cannot be assessed.Footnote 7 Rejection of a preliminary offer of negotiation could be the prelude to formal litigation, which would also occur if discussions collapsed or an agreement was rejected.Footnote 8 Where litigation occurred, the costs and inconveniences of a lengthy case could provide a spur to negotiation and compromise (possibly when the personnel changed and cooler heads prevailed, or when others intervened to urge settlement).Footnote 9 Arbiters could be appointed by a court, with the proviso that failure to agree would mean continuance of the case.Footnote 10 Even at the last minute, the judges might swap hats and serve as compositors,Footnote 11 or other intervention might lead to arbitration to avoid ‘ye trobble that is lyke to falle iffe ye sentence hade ben yeven’.Footnote 12 That may explain why so many suits disappear from the official records with no sentence recorded: wise counsel or pragmatism had prevailed, arbitration had been agreed in the background, without formal record, and no formal sentence was now needed. In such circumstances, the regularity of appeals to Rome and for tuition from the archiepiscopal courts of Canterbury or York may also have provided breathing space for negotiations which avoided further action.Footnote 13 That such opportunities for informal ‘out of court’ settlements existed within the system also suggests a reality which would never be recorded, of innumerable disputes resolved by negotiation and arbitration without being brought to court.

Occasional entries in court books do reveal the integration of arbitration into the fuller and formal process of resolution, sometimes with penance being imposed for the spiritual fault, alongside the court's endorsement of negotiation of the material settlement.Footnote 14 Even when a court case did terminate in a sentence, its enforcement might be set aside for an arbitrated arrangement to clear the slate and restore amity. After a married couple from Northamptonshire lost a tithe case brought by their incumbent and the Court of Arches issued its sentence, both sides agreed to an outcome formulated by three local gentry. Setting aside the Arches decree, the incumbent was to accept 3s 4d and a token delivery of willows for all unpaid tithes, the handover presumably a performance to demonstrate compliance and reconciliation. Thereafter, the couple were to make an annual payment for tithes of willow and wood derived from the wife's dower lands from a previous marriage, and to pay equivalent tithes from other specified land, likewise in kind.Footnote 15

Compromises and negotiated out-of-court settlements reflect an extra-judicial system of dispute resolution. Noteworthy in their own right, such settlements are also notable because, while dealing with ecclesiastical concerns, they often entailed significant lay agency, as non-clerics acted as intermediaries and shaped the eventual agreement. The extra-judicial and extra-curial evolution of the outcomes (in an abstract sense, given the frequent active involvement of ecclesiastical judges, and the links to actual court cases) does not make the process and its products extra-legal, but leaves the latter's appearance among legal records accidental rather than systematic. Compromises did not always work, or stand the test of time; they are cited in later proceedings as one or other party sought their reinforcement, or as modified (by the original arbiter or other authority) in response to changing circumstances.Footnote 16 Their existence may be attested only because the attempts to secure adherence had failed: in fidei laesio cases in church courts if oaths to observe the conditions had been breached, or in cases before secular courts to claim sums due by bond for similar non-observance.Footnote 17 That the arrangements were enforced is the important point; but equally important is the point that agreements were actually made, resolving disputes beyond the formal view of the courts. Many did presumably stand, without needing reinforcement by later litigation. Accordingly, assessments of the role of arbitration in secular disputes can reasonably and legitimately be transferred to the ecclesiastical arena, seeing it as

… an integral part of the informal machinery of dispute settlement which existed alongside the courts. [Its] … procedures … remained independent of court supervision in most cases, and continued to perform functions to which the courts could not aspire: they could settle feuds, make peace and restore harmonious social relations between disputing neighbors. … [L]itigation and arbitration were not mutually exclusive processes … but … might complement one another and be combined in an overall strategy for the resolution of a dispute.Footnote 18

At the same time, the ostensibly voluntary and informal or extra-judicial character of arbitrated or mediated resolutions may obscure a harsher reality shaped by circumstances and institutions. The language of mutuality in the resolution contributes to creation of ‘a false dichotomy between formal and informal means of resolution’; yet ‘we should not be seduced into thinking that community forms of dispute resolution [which would include many of these ecclesiastical arbitrations] were intrinsically fairer and less coercive than legal judgements’.Footnote 19

Delegation

However binding and legally enforceable their outcomes might be, arbitration and negotiation removed dispute resolution from the procedural, institutional and archival normalities and requirements of formal canon law; that extraction, and the resulting documentary lacunae, largely explains the marginalization of the processes in current mainstream scholarship. A similar line of reasoning may explain the lack of discussion of delegated papal jurisdiction which, while clearly integrated into the judicial structures of the universal church, in its local English and Welsh manifestations lay outside the standard court hierarchy of dioceses and peculiar jurisdictions linked to the provincial courts of Canterbury and York, and thence to the courts of the papal curia.

Realistic assessment of the place of the pope as universal ordinary and the papal courts as courts of first instance or appeal within England's medieval ecclesiastical history and national tradition of practical canon law or, conversely, of the integration of the English courts and litigation into the papal judicial system, remains a challenge. That England was part of that system, one which operated alongside and above the provincial arrangements, cannot be denied; but a historiographical tradition which privileges examination of the local courts within the national or provincial hierarchy, and archival losses which preclude extensive analysis of disputes dealt with at the curia, combine to discourage investigation. Limiting the present discussion to the activities within England of papal courts and judges implementing a delegated papal jurisdiction treats only one aspect of the way in which litigants sought justice from the Vicar of Christ. English cases fought at the central papal courts, whether or not they had begun in England, generated a complex and potentially extensive bureaucratic and documentary footprint, of which little trace now survives in local documents.

The actual mechanisms of papal judicial delegation varied; but the key point is that it notionally operated outside the local pyramidical norm. Delegation of papal powers to local agents was not in itself unusual, and could be considered pervasive by the fourteenth century. Beyond its integration into litigation, in England delegation is perhaps most frequently visible in the powers conferred on confessors to grant absolution and indulgences by papal authority; in the devolution to diocesan bishops of the authority to determine whether facts reported to the curia justified confirmation of dispensations granted by the papal penitentiary; and in the actions of local executors when implementing papal provisions to benefices, instituting and inducting outside the normal diocesan administrative channels.Footnote 20 Three different formats for judicial delegation to resolve disputes merit consideration here, again somewhat sketchily, because the nature of the sources makes comprehensive commentary impractical.

Of these three variants the first and most significant was the appointment of judges delegate, holding their own ‘ad hoc courts’ to determine specific cases.Footnote 21 They fit fairly straightforwardly into the broad pattern of a top-down structural conception of the late medieval church in which papal authority and headship was an all-pervasive given.

The courts of the papal judges delegate have been described as ‘[t]he most fully studied, and probably the most important, institutions of ecclesiastical justice [in England] … between 1150 and 1250’;Footnote 22 but they are largely ignored in studies of the subsequent pre-Reformation centuries.Footnote 23 While the assertion that ‘[p]apal judges delegate became less important in the later Middle Ages’ may be right,Footnote 24 that does not mean that they became unimportant. The elaboration and consolidation of England's system of church courts after 1250 doubtless reduced the need to request appointments of delegates; the expansion of diocesan and provincial court business and the greater availability and accessibility of such court archives directs attention towards them while smothering the evidence for papal delegates. That, with the ad hoc nature of the delegates’ appointments and lack of centralized retention of their archives, leads to their marginalization in discussions of the church's legal system in the late medieval centuries. The current situation remains as Jane Sayers put it in the 1980s, that ‘a complete picture of what records there are for the judge delegate courts between 1300 and 1500 must await detailed investigation in many places and in many collections’.Footnote 25 Arguably, until those courts are integrated into the total picture (as far as they can be) evaluation of the working and exploitation of the ecclesiastical legal system in pre-Reformation England will suffer from a real lacuna.

At this point, however, aspirations and practicalities collide. Detailed investigation of the delegated courts remains a desideratum; but the exiguous sources may make its achievement a pipe-dream. Despite that, continuity of practice is evident right through to the 1530s. How frequently judges delegate were used cannot be established, and a drop is likely after 1300; but appointments were still made, and there is scattered surviving evidence of actual cases.Footnote 26 If a single case is indicative of wider practice, it is possible that judges delegate were increasingly sought so that appellants could avoid the costs of, and obstacles to, completing an appeal to Rome within the canonical year.Footnote 27

Among the reasons for fewer appointments was the emergence of a subsidiary form of delegation, to judges identified as papal ‘conservators’ (conservatores), who form the second category of judicial delegates. Appointed in response to petitions, they received judicial powers as papal delegates to protect the interests and privileges of beneficiaries ranging from complete religious orders to individual houses and colleges, and even individual clerics. Some appointments were perpetual, others for only a few years, with petitioners sometimes seeking lengthier terms than the papacy was willing to concede.Footnote 28 Conservators attract almost no notice in the current scholarship on English church courts; indeed, their existence seems to be almost completely ignored.Footnote 29 While their jurisdictional competence may have been limited by their role, a change in the extent of their powers reflected in a standard papal bull of appointment established by Pope Clement V at the Council of Vienne greatly expanded the range of their jurisdiction, making them more assuredly equivalent to other judges delegate.Footnote 30 Their appointments doubtless diverted some of the demand for such judges.Footnote 31 Evidence of their activities is scarce, even though many of the appointees were bishops, archbishops and other prelates: their role as conservators may have evaded the structural and archival nets of diocesan administration, as the post was not technically diocesan and not exclusively episcopal. As the nominated conservators probably normally sub-delegated their duties to lesser officials, archival traces are further eradicated. As with ordinary judges delegate, a dribble of evidence attests to their continued existence and activity, but how much is concealed currently remains guesswork.Footnote 32 As conservators were widely sought by the exempt religious orders, it is quite possible that they provided the courts through which those orders acted as plaintiffs in disputes over matters where direct action through the normal diocesan system might have been seen as undermining their exempt status, probably (given the explicitly protective nature of the conservator's role) with an expectation, but no guarantee, of a favourable outcome.Footnote 33

Archival eradication has also affected the third variant form of papal judicial delegation, to the legates, nuncios and other papal agents active in England during the period, which again attracts little comment.Footnote 34 The concern here is with the powers delegated to individual appointees as legates and nuncios, not the legatine judicial authority, whatever its content, which the archbishops of Canterbury and York exercised within their provinces as legatos natos. Despite its duration and penetration of the English church, Wolsey's early sixteenth-century legation leaves limited traces of his judicial activity. His courts certainly functioned, and attracted appeals; but any central records of their proceedings no longer survive.Footnote 35 The judicial activities of his precursors as legates and nuncios are similarly obscure. The rare evidence includes a few documents which mention courts held by Luigi Aliotti as papal collector and nuncio in first years of the fifteenth century, a combination of posts which each had their own delegated judicial functions.Footnote 36 In one case, royal justices upheld a writ of prohibition against Aliotti's jurisdiction, barring further action by him. While imposing the ban, the judges nevertheless acknowledged his legitimate ex officio authority to hold courts.Footnote 37 Just over a decade later Walter Medford, whose delegated powers were solely those of papal collector, acted as judge in response to a querela after a proposed exchange of benefices had become contentious.Footnote 38

Positioned outside the normal hierarchical structure of diocesan and provincial courts, the courts of these various types of papal delegate invite attention as oddities, partitioned off from the regular pattern as a separate category with little overlap. Such segregation would be misleading. Rather, their invocation must be seen as an additional strategic option for those engaged in ecclesiastical litigation in pre-Reformation England, an additional route to ‘justice’ which complemented and supplemented the normal structural hierarchy. As such, they added to the flexibility and potentially labyrinthine complexity of litigation, offering additional ways to defeat, obstruct or exhaust opponents. Accordingly, delegated jurisdiction is often only one element in the overall narrative of cases in which it was invoked. In the 1360s, for instance, Merevale abbey, a Cistercian house, took action before the abbot of Evesham, acting as sub-conservator of Cistercian privileges in England, when the rector of Halsall (Lancashire) took tithes from their grange at Altcar, which he claimed lay within his parish. Merevale claimed their order's exemption from such liability. The rector secured royal writs of prohibition to obstruct the conservatorial action, then initiated his own case in the matter through the hierarchy of diocesan courts, starting with those of the archdeacon of Chester, and subsequently in the provincial Court of Arches. In the intricacies of these contradictory processes, Merevale itself eventually appealed from the abbot of Evesham to Arches, seeking that court's protection in a process which could have taken the issue through to the papal curia but seems to have terminated in the English court.Footnote 39

Conclusion

Church court archives are essential and invaluable sources for understanding the legal culture and social functions of England's pre-Reformation church. In general, the records of diocesan and provincial courts offer sufficient evidence to extract an adequate overview of both the culture and the functions. Yet full appreciation of the place of the church and its law within the society requires attention to expand beyond the standard pyramid, to alternative or supplementary features. Arbitration and amicabilis compositio provided both justice without litigation (in a format capable of becoming legally binding), and a justice which, while generated through litigation, mitigated the partisanship of an adversarial system and made formal defeat tolerable. Continued recourse to papal delegation, in all its formats, created local courts as alternative means of access to, and exploitation of, the papacy's supreme judicial authority. These can be imagined as officially authorized ‘pop-up’ venues which facilitated litigation without the complexity and expense of fighting a case at the papal curia, but with the benefits of doing so.

Those are simplistic and over-optimistic characterizations, but adequate to summarize the aspirations. Reality was frequently different. Despite the benefits of arbitration, negotiated or arbitrated solutions could simply break down if one or other side refused to comply, in some instances generating a series of successive arbitrations which did not hold.Footnote 40 The structural and procedural intricacies of the canonical system and the loophole-hunting of those embroiled in it (not least the lawyers) often made litigation in the ecclesiastical courts a ‘sophisticated tangle’ of ‘paralyzing complexity’.Footnote 41 The search for a definitive sentence (even one issued appelatione remota, supposedly without appeal) was often frustrated. Yet the search for justice, for equitable and charitable outcomes, continued. Disputes needed resolutions, preferably ones which would last in law. The ‘normal’ system of church courts was the usual route to that end, but not the only one. At conceptually opposite ends of the spectrum the formalized informality of arbitration and negotiation, or the appeal to papal authority through delegation, offered alternative or supplementary mechanisms. As such, they may be marginalized in the extant sources, and in the historiography based on them. Yet their presence demands acknowledgement and appreciation as a factor in the dynamic and evolving relationships between church and law and church and people in late medieval England, and within broader examinations of the anthropology and resolution of disputes within society as a whole.

Footnotes

This article is an offshoot from my current research on the late medieval English parish, drawing on and continuing work supported in 2013–16 by a Leverhulme Trust Major Research Fellowship (MRF-2012-016).

I am extremely grateful to the trust for its generous support, without which this article and much other recent and anticipated work would not have been possible. The comments of the reviewers of the original version of this article were extremely valuable for its subsequent development.

References

1 For the church courts in late medieval England, their competence and procedures, see now R. H. Helmholz, OHLE, 1: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004). Most surviving court records are surveyed in Charles Donahue Jr, ed., The Records of the Medieval Ecclesiastical Courts, 2: England, Comparative Studies in Continental and Anglo-American Legal History / Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte 7 (Berlin, 1994). The main York Cause Papers are held at York University, BIA; images are now available online at: <http://dlibcausepapers.york.ac.uk/yodl/app/home/index>, with a searchable catalogue (but incomplete set of images) at: <https://www.dhi.ac.uk/causepapers/>, both accessed 9 September 2018.

2 Northampton, Northamptonshire RO, IL.730. From memory, this is the only surviving original text of such a document that I have seen, suggesting their general rarity. For an almost parallel case, see Forrest, Ian, Trustworthy Men: How Inequality and Faith made the Medieval Church (Princeton, NJ, 2018), 57Google Scholar.

3 ‘[P]ro bono pacis et concordie inter partes ipsos componendi’ (similar phrasing regularly occurs): Linda Fowler, ‘Forms of Arbitration’, in Stephan Kuttner, ed., Proceedings of the Fourth International Conference of Medieval Canon Law, Toronto, 21–25 August 1972, Monumenta iuris canonici, Series C: Subsidia 5 (Vatican City, 1976), 133–47. See also Ziegler, Karl-Heinz, ‘Arbiter, arbitrator und amicabilis compositor’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 84 (1967), 376–81CrossRefGoogle Scholar; Karl S. Bader, ‘Arbiter, arbitrator seu amicabilis compositor’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung 77 (1960), 239–76.

4 Some processes are terminated by rulings which, while declaring that the parties had agreed to submit the case to the determination of the arbiter after earlier protracted negotiations, nevertheless leave open the possibility that the ruling itself was the outcome of authoritarian intervention rather than voluntary submission: see, for example, The Register of Henry Chichele, Archbishop of Canterbury, 1414–43, ed. E. F. Jacob, vol. 4, CYS 47 (London, 1947), 226–32, headed as a ‘compositio’, in which the parties ‘se subjecerunt et submiserunt … ordinacioni, laudo, statuto, diffinicioni, sentencie nostris’: ibid. 227. The archbishop declares that he had been involved in working towards a solution as an intermediary (ibid.), but the authoritarian vocabulary is used throughout, leaving it unclear how much he was acting as amicabilis compositor rather than imposing his own resolution. See also n. 19 below.

5 Powell, Edward, ‘Arbitration and the Law in England in the later Middle Ages’, TRHS 5th series 33 (1983), 49–67Google Scholar; idem, ‘Settlement of Disputes by Arbitration in Fifteenth-Century England’, LHR 2 (1984), 21–43; Anthony Musson, ‘Arbitration and the Legal Profession in Late Medieval England’, in Matthew Dyson and David Ibbetson, eds, Law and Legal Process: Substantive Law and Procedure in English Legal History (Cambridge, 2013), 56–76, especially 62 (arbiters in a secular case identified as amicabiles compositores). Arbitration receives only passing acknowledgement in Helmholz, OHLE, 1: 328, 446. Forrest, Trustworthy Men, 53–61, pertinently incorporates ecclesiastical arbitrations into a broader examination of trust and the mechanics of dispute resolution (this work became available to me only after presenting the original paper).

6 For a matrimonial case in which the ancillary financial elements were put to arbitration but the main issue (not clarified in the record) would progress through to formal judgment, see Stafford, Staffordshire RO, B/C/1/1, Lichfield consistory court book, 1464–71, fol. 248r.

7 But see ibid., fol. 62v. Although entered in a consistory court act book, this note of an agreement to go to arbitration is not explicitly tied to an identified court case. Nothing indicates its motivation, but it may reflect an agreement made on the very brink of litigation.

8 For one collapsed set of negotiations, even though compromise had been suggested by the court (in this case actually the Council of Constance), see Crowder, C. M. D., ‘Four English Cases determined in the Roman Curia during the Council of Constance, 1414–1418’, Annuarium historiae conciliorum 12 (1980), 315–411Google Scholar, at 372–3, 376–80. For other litigation when one side resorted to law despite lay-engineered arbitration, see Legge, M. Dominica, ed., Anglo-Norman Letters and Petitions from All Souls MS 182, Anglo-Norman Texts 3 (Oxford, 1941)Google Scholar, nos 74, 327. See also Cambridge, Gonville and Caius College, MS 588/737, fol. 66r–v, in which a rector accuses his opponents (seeking funding from him for a permanent chaplain at their local chapel) of reneging on an agreement negotiated before the case was brought (but not explicitly arbitrated, and while called a compositio, not designated an amicabilis compositio).

9 For litigation abandoned and followed by a negotiated settlement, after the chantry priest who began the process had been replaced, see Oxford, Lincoln College Archives, OAS/135–136. For an amicabilis compositio proposed when the litigants had already taken their dispute to the curia, see London, BL, Add. MS 32089, fols 154r–155v.

10 Staffordshire RO, B/C/1/1, fol. 97v.

11 BL, MS Harley 2179, fols 131r–133v.

12 Cambridge, UL, MS Ll.1.18, fol. 88v.

13 For tuition, see comments in Helmholz, R. H., ‘Local Ecclesiastical Courts in England’, in Hartmann, Wilfried and Pennington, Kenneth, eds, The History of Courts and Procedure in Medieval Canon Law (Washington DC, 2016), 345–91Google Scholar, at 353–4. The proposed leap to Rome and loss of appropriate English records usually makes it impossible to detect whether a successful appeal for tuition did actually go to the curia. Documents scattered through BL, Add. MS 32089 make it clear that tuition did not end matters, challenging the suggestion that ‘a tuitorial appeal may often have been an empty gesture, from which no result was expected’: Dorothy M. Owen, ‘The Practising Canonist: John Lydford's Notebook’, in Kuttner, ed., Proceedings, 45–51, at 50; repeated in eadem, ed., John Lydford's Book, Devon and Cornwall Record Society Publications 19 / HMC Joint Publication 22 (London, 1974), 20. For one dispute meant to be terminated by discussion and agreement following an appeal for tuition, see Lutgens, Christine, ‘The Case of Waghen vs. Sutton: Conflict over Burial Rights in Late Medieval England’, Medieval Studies 38 (1976), 145–84CrossRefGoogle Scholar, at 165 (especially the quotation in n. 125), 179–80. Further litigation soon followed: ibid. 149.

14 See, for example, Staffordshire RO, B/C/1/1, with arbitrations noted at fols 62v (see n. 7), 80v, 97v, 118v, 140v, 142r (submission to episcopal laudum, with penances imposed), 248r, 281v, 282v, 283r. See also ibid., B/C/2/1, Lichfield consistory court book, 1524–6, fols 5v, 8v, 12v, 103r, 104r, 114v, 121v.

15 Northamptonshire RO, YZ.8252, 10 February 1519.

16 For a papal bull issued in response to an appeal from Taunton priory for modification because of the (alleged) impossibility of meeting the conditions, see CPReg, 6: 486. As this was confirmed in 1499, its provisions were presumably still considered relevant: CPReg, 17/1: 114 (no. 174). For modification by Archbishop Thomas Arundel of an earlier declaration he had issued as arbiter, arbitrator, sive amicabilis compositor, see London, LPL, Reg. Arundel I, fols 377r–378r. Bishops and other prelates perhaps normally reserved the power to amend their decrees, hoping to limit future disputes and maintain diocesan authority.

17 For fidei laesio, see Helmholz, R. H., Canon Law and the Law of England (London, 1987), 268Google Scholar: all the awards cited in his n. 29 actually originated in secular disputes, but the principle holds for ecclesiastical disputes. As demonstrated in BIA, CP.E.132 (not cited by Helmholz, but invoking an ecclesiastical compromise), such cases might involve full denial by the defendant of the existence, or terms and conditions, of the earlier settlement. Aspects of this case are discussed in Forrest, Trustworthy Men, 45. For bonds in secular courts, see Robert C. Palmer, Selling the Church: The English Parish in Law, Commerce, and Religion, 1350–1550 (Chapel Hill, NC, 2002), 35–6, 44 (and n. 54), 51, 132.

18 Powell ‘Settlement of Disputes’, 24.

19 Forrest, Trustworthy Men, 53 (quotations), 57–8.

20 For indulgences and confessors, see Swanson, R. N., Indulgences in Late Medieval England: Passports to Paradise? (Cambridge, 2007), 27, 45, 117–19Google Scholar. For dispensations, see Clarke, P. D., ‘Central Authority and Local Powers: The Apostolic Penitentiary and the English Church in the Fifteenth Century’, HR 84 (2011), 416–42CrossRefGoogle Scholar, at 421–42; see also broader comment in Arnaud Fossier, Le Bureau des âmes. Écritures et pratiques administratives de la Pénitencerie apostolique (XIIIe–XIVe siècle), Bibliothèque des écoles françaises d'Athènes et de Rome 278 (Rome, 2018), 25–8, 59–60, 280–4, 319–21, 481–3. For papal provisions, see Clarke, ‘Central Authority’, 441–2, drawing on Geoffrey Barraclough, ’The Executors of Papal Provisions in the Canonical Theory of the 13th and 14th Centuries’, in Acta congressus iuridicii internationalis Romae 3 (Rome, 1936), 109–53, which I have not seen. For a range of common forms for executorial bulls which are also thereby delegations, see Michael Tangl, Die päpstlichen Kanzleiordnungen von 1200–1500 (Innsbruck, 1894; repr. Aalen, 1959), 312–16, 335–6, 339, 340–1.

21 Quotation from Jane E. Sayers, Papal Judges Delegate in the Province of Canterbury, 1198–1254: A Study in Ecclesiastical Jurisdiction and Administration (Oxford, 1971), 101.

22 Helmholz, ‘Local Ecclesiastical Courts’, 349.

23 The only extensive study of delegation in England remains Sayers, Papal Judges Delegate. Despite its title, Robert Brentano, York Metropolitan Jurisdiction and Papal Judges Delegate (1239–1290), University of California Publications in History 8 (Berkeley, CA, 1959), does not provide a broad discussion of the system, homing in on the specific dispute over diocesan autonomy and archiepiscopal authority between York and Durham. It nevertheless offers a valuable and detailed reconstruction of that case and its convolutions: ibid. 90–2, 115–16, 125–44, 148–64.

24 Charles Duggan, ‘Judges Delegate’, in Hartmann and Pennington, eds, Courts and Procedure, 229–43, at 243.

25 J. Sayers, ‘The Records of the Courts of the Judges Delegate in England’, in Donahue, ed., Records of the Courts, 27–34, at 34. The comment can be extended to the early sixteenth century.

26 One potential obstacle was the praemunire legislation of the later fourteenth century; but clear evidence of its use to obstruct judges delegate has not yet been found. Limited subject indices in the original series of Calendar of Papal Letters, published by HMSO, generally make the detection of matters relating to papal judges delegate (if any were registered) almost a lost cause. The ‘Dublin’ continuations are more rewarding; see, for example, Fuller, ed., CPReg, 17/1: nos 2, 8–9, 28–9, 46, 94, 197, 261, 298, 365, 405, 442, 456, 529, 661, 905–6, 924, 987–8, 990–1. For a papal judge delegate active in the mid-1520s when a long-running dispute revived, see BIA, CP.G.129,133 (image 9); for earlier stages, see Lutgens, ‘Waghen vs. Sutton’, 145–67, 179–84. For a court in session, see Chippenham, Wiltshire and Swindon History Centre, D5/19/1, 1531–2, fols 1r–3v. For a delegation which ended in arbitration, see Staffordshire RO, B/A/1/7, fols 128r–137r; see also Francis Roth, The English Austin Friars, 1249–1538, 2 vols, Cassiciacum: Studies in St Augustine and the Augustinian Order (American Series) 6–7 (New York, 1961–6), 2: 268*–277*. Further indications of activity appear in fragments of legal processes copied into formulary or similar volumes, such as Leeds University, Brotherton Library, MS Dep.1980.1/355, fols 21v–23r, 48r–v, 176r–179v; Gonville and Caius College, MS 588/737, fols 48r–50r, 53r–54v, 72r–v, 74r–76r, 79v–80r, 113r–v, 114r–115v, 180r–v, 189r–v, 190v–191r, 256v, 296v–298r, 347v–350r, 360r–361r, 367r–v, 373r–374r, 375r. See also the case abstracted in Dorothy M. Owen, ed., The Making of King's Lynn: A Documentary Survey, RSEH n.s. 9 (London, 1985), no. 127 (original record not consulted), for which further material is in BL, Add. MS 32089, fols 103r–105r, 122r–125r.

27 BL, Add. MS 32089, fols 146r–149r. From the late 1380s, these documents originate in an action brought by a testamentary executor from York against changes in the provision of probate judges by Archbishop Alexander Neville of York, with Archbishop William Courtenay of Canterbury as judge. The first document (fol. 146r–v) excuses non-completion of the appeal at the curia, and seeks an extension of the deadline into a second year. See also BL, MS Harley 862, fols 258v–259r, a libel of c.1407 in a case before a sub-delegate which clearly substitutes for action in the curia after an appeal to Rome against a process in Arches.

28 For petitions for appointments and papal responses, see CPReg: Petitions to the Pope, 1: A.D. 1342–1419, 105, 120, 135, 155, 171–2, 264, 266, 284, 335, 480 (requests for perpetual appointments cut down to six years at 172, 335; other modifications at 135, 264, 284). Repeated grants are indicated by the petition of Simon Islip as newly appointed archbishop of Canterbury for the ‘usual privileges, dispensations and indults’, including ‘letters conservatory for five years’: ibid., 189, cf. 105; see additional evidence at n. 32 below.

29 No obviously relevant index entry was noticed in Hartmann and Pennington, eds, Courts and Procedure; or in Helmholz, OHLE, 1. There is very brief discussion of early conservators (before the Council of Vienne) in Sayers, Papal Judges Delegate, 108–9, cf. 265–6. For later conservators, see the brief remarks of R. W. Hunt, ‘The Abbot and Convent of Merevale v. the Rector of Halsall: A Tuitorial Appeal in the Fourteenth Century before the Court of Arches’, THSLC 101 (1949), 47–61, at 49. The regular appointment of heads of religious houses as conservators is acknowledged in Martin Heale, The Abbots and Priors of Late Medieval and Reformation England (Oxford, 2016), 194–5.

30 For the main form, and a variant, see Tangl, Die päpstlichen Kanzleiordnungen, 321–4. Occasional petitions requesting appointment of conservators ask that they be granted ‘according to the form of the Council of Vienne’: CPReg: Petitions, 1: 15, 89, 138, 155, 264. Where the incipit of the bull of appointment is indicated in the calendared entries from the papal registers (see n. 28 above), it is generally the form in Tangl.

31 Awareness of conservation as a variant of delegation is sometimes indicated by formal designation of judges as ‘conservator and/or judge delegate’, e.g. Gonville and Caius College, MS 588/737, fol. 252r; Brotherton Library, MS Dep.1980.1/355, fol. 164r.

32 For sub-delegations, see A. C. Wood, ed., Registrum Simonis Langham, Cantuariensis archiepiscopi, CYS 53 (London, 1956), 154, 177–8, 189, 204, 213–14 (see also the disciplining of a sub-delegate at 157); Register of Chichele, ed. Jacob, 4: 44–51. Issue of letters is sometimes noted in papal registers, but how fully is untested: see, for example, CPReg, 5: 29, 115–16, 211, 290–1, 397, 425, 558, cf. 547; CPReg, 8: 209, 241; (for an extraordinarily generalized appointment) CPReg, 20: no. 360. For other indications of legal processes, in fragments of cases copied as formulary exemplars and in similar volumes, see Brotherton Library, MS Dep.1980.1/355, fols 6r–8v, 102r, 102v, 164r–167v, 182r–193r (the first three citations all concern the same case, cf. BIA, CP.F.167); Gonville and Caius College, MS 588/737, fols 52r–v, 81r–v, 103r–105r, 111r, 113v–114r, 191r–v, 252v–253r, 314r–v, 347r–v and the following note.

33 Documents at BL, Add. MS 32089, fols 108v–110v are from a conservatorial case of 1374 with the Carmelites as plaintiffs against obstruction by the clergy of one Norwich parish of their privilege of allowing burial to all who so choose and receiving funeral offerings. This suggests a whole class of actions involving the mendicant orders which potentially avoided the diocesan system.

34 Legatine courts are not mentioned in Helmholz, ‘Local Ecclesiastical Courts’.

35 Gwyn, Peter, The King's Cardinal: The Rise and Fall of Thomas Wolsey (London, 1990), 282–4Google Scholar. For appeals and other interventions, see, for example, Staffordshire RO, B/C/2/1, fols 2v, 8r, 28v, 59r–v, 84v, 92v.

36 Kew, TNA, SC 8/145/7224 (I thank Alison McHardy for drawing my attention to this document); Oxford, Queen's College, MS 54, fols 259r–260v; Exeter, Cathedral Archives, 1541. The encompassing case for the last two is examined in A. K. B. Evans [A. K. B. Roberts], ‘Litigation for Proprietary Rights: The Case of the Obstinate Vicar’, in Nigel Saul, ed., St George's Chapel, Windsor, in the Fourteenth Century (Woodbridge, 2005), 117–34, but she is unaware of this (and other) additional material. The dispute eventually terminated with an imposed arbitration: ibid. 131–2.

37 Evans, ‘Litigation’, 125–6. The judges’ discussions are recorded in Year Book, Mich. 2 Henry IV, in Les Reports des cases, 11 vols (London, 1678–80), 6: 9–10 (plea 45).

38 BL, MS Harley 862, fol. 72v.

39 The narrative is most fully reconstructed in Hunt, ‘Merevale v. the Rector of Halsall’; for proceedings in the Lichfield diocesan courts, see Annie Cottam, ‘An Altcar Tithes Dispute in the Fourteenth Century’, THSLC 82 (1930), 136–62. Other documents are in Gonville and Caius College, MS 588/737, fols 66v–67r, 93v–95v, 304r–v, 306v–307v.

40 Lutgens, ‘Waghen vs. Sutton’, 152, 182–3 (note also 162), and n. 13 above.

41 Brentano, York Metropolitan Jurisdiction, 176, 164, commenting specifically on delegate procedure, but the general pattern of entanglement justifies wider application.