Francis Bennion -

So what was the treatment of blasphemy in English law? This question forces us to ask what in this context we mean by English law. The answer is different for different periods. In the Anglo Saxon period there was little distinction between church law and state law. The bishop sat on, and often presided over, the shire court along with the elders. His archdeacon sat on the hundred court. The law administered by these courts was both clerical and secular.

Then came the Norman Conquest. This introduced the feudal system to England. Manorial courts were set up. Towns became important, and were equipped with their own borough courts. William the Conqueror sent round the country his own travelling judges, known as justices in eyre, to try grave crimes and important civil causes. He decreed that church courts must be separated from royal and other state courts. Separation of the church court from the secular court had been emphasized when in about 1072 the Conqueror decreed that no bishop or archdeacon should hold pleas in the hundred court, but in a place named by the bishop. In 1164 the Constitutions of Clarendon had further defined the boundary between church and secular courts. The main provisions were that clergy charged with crimes should be tried in the king's courts, that bishops, abbots and other prelates should be subject to feudal burdens, that the king's courts should try all disputes as to advowsons and presentations to church livings, that clerics should obey the king's summons, that land disputes between clerics and laymen should be tried by the king's judges, and that suits for debt should be tried by those judges even though a trust or other religious obligation was involved. In this way the king asserted his overall power in the realm. If a church court attempted to try a case where it lacked jurisdiction, the king's writ of prohibition was available to prevent it.

The medieval courts were different from each other, and the law administered in them was different. Local courts of the shire and the hundred administered local customary law. The baronial and manorial courts administered feudal law. The church courts administered civil law (derived from the old Roman law) and canon law (the developing law of the Church). The punishment of blasphemy, and other manifestations of heresy, fell within canon law.

Church law could be divided into the special law which regulated the church itself, including its bishops, priests and other orders of varying ranks, and the general law which regulated the whole of the church's flock. Blasphemy fell into the second category, which I shall call the general law of the Church.

The key to understanding these various jurisdictions is that in the Middle Ages each of the magnates (that is earls, barons and knights, bishops and abbots) possessed a power, usually conferred by royal charter or papal decree, to decide disputes among his retainers. A similar power was possessed by borough and other local courts. In Oxford the chancellor of the University possessed such a power by the 1250s. Clerks could be tried by the Chancellor for offences short of homicide or theft, they being prohibited from seditious pacts and factions, night prowling, poaching, loitering after curfew, games which led to quarrels, or the temptations of women of ill fame.

At this time the king’s courts began to develop what came to be known as the common law of England. During the thirteenth century the English common law assumed its lasting shape, the king became accepted as the fount of justice, and the kings' courts began to assert the supremacy they still have over all other courts. The one exception was the High Court of Parliament. Though in the Middle Ages that too was in a sense, as it still is, one of the king's courts, it was "jealous of the royal power, jealous

lest new writs, new forms of procedure, should mean new laws made without its approval" (Maitland). Its growing assertion of the power to make laws provided yet another source of law: statute law.

So we have the situation, in that formative period the thirteenth century, that the king’s courts are coming to control all other courts, including the church courts, and Parliament by its enactments is coming to control even the king’s courts. The enactments are however still very fragmented, covering only a small proportion of the law.

In considering the treatment of blasphemy in this period we must remember that in the Middle Ages the whole of Europe, including the British Isles, constituted what was called Christendom. Under the Pope, backed by the Church Councils he called from time to time, there was an undivided union of faith to which the Jews were the sole exception. The general law of the Church was the same throughout Christendom. It was administered informally by all officers of the Church, from the Pope downwards. Under this church law, blasphemy was regarded as a mortal sin.

Medieval church law: Bishop and Archbishop in Oxford

Here it may be helpful to take a particular place as typical of the position in the Middle Ages. Since we are in Oxford, let us take that. Oxford at this time is a walled city. The spot we are in now is a rough wattle and daub dwelling near the city wall, close to the East Gate. [If you enter St Edmund Hall by the lodge gate and keep walking straight ahead as far as you can go you will come to a fragment of the old city wall.] The walled city is divided into twelve parishes, each with its church. This spot is in the parish of St Peter in the East. Its church is now the library of St Edmund Hall. There was a Saxon church on the site, though the church was first recorded in 1086, when it was held by Robert D'Oilly. The timber church was then replaced by a stone building, which Wood says was 'the first church of stone that appeared in these parts'. The present crypt, attributed to St Grymbald, is early 12th century. The present chancel is also 12th century. In medieval times it was the wealthiest parish in Oxford.

Here is an example of how church law was operated by the bishops. St Hugh, bishop of Lincoln 1186 1200, punished by excommunication a young Oxford wife, daughter of one of the burgesses, who committed adultery. The story is told in the Life of St Hugh of Lincoln. The wronged husband appealed to the bishop, on one of his visitations to Oxford (which was then in the Lincoln diocese). Within a crowded church (we are not told which), the bishop earnestly appealed to her to give her husband the kiss of peace and return to his roof. Her reply was to spit in her husband's face, although he was standing near the altar. The bishop sternly said 'As you have spurned my blessing and have desired my curse, my curse shall fall upon you' and at once excommunicated her. The chronicle continues

"She went home still stubborn and during the few days vouchsafed to her by the divine mercy to come to a better frame of mind, her heart became more hardened and not in the least repentant. Then being suddenly strangled by the devil, her illicit and temporary delights were exchanged for perpetual torments as she richly deserved."

This is an example of church law being administered by the bishop, who kept a prison for the purpose. His court was known as a Consistory court, and normally the Chancellor of the diocese presided over it. There was a right of appeal to the court of the Archbishop, as the following example, connected in a way with St Edmund Hall, shows.

St Edmund Hall takes its name from St Edmund of Abingdon, Archbishop of Canterbury 1234 40, who traditionally resided and taught at a house in the western end of the present front quadrangle when he was a regent master of arts in the 1190s. Early in the thirteenth century the site of the front quadrangle was owned by John de Bermingham, Rector of Iffley, whose relatives in 1261 2 sold part of it to Thomas of Malmesbury, perpetual vicar of Cowley. In 1271 2 Thomas granted his part of the site to the great Abbey of Augustinian canons known as Osney Abbey. This was founded by Robert D'Oilly's son, also named Robert. The earliest surviving reference to the name Auli Sancti Edmundi is in a rentroll of Osney Abbey for 1317 1318, but it may be considerably older.

At the western end of the town was the Castle built by Robert D’Oilly senior at the behest of the Conqueror. Outside the city wall, just beyond the Castle, was Osney Abbey. In the year 1222 a provincial council of the Church was held at Osney Abbey. We know this from surviving written records, which is where most of our knowledge of the period comes. This was a council of the province of Canterbury (the other English province is York). It was presided over by the Archbishop of Canterbury, Stephen Langton. One of its duties was to hear appeals from persons convicted of grave offences against church law.

Among the appellants was a young man. We do not know his name, but I shall call him John. What offence had John committed? He had fallen in love with a young Jewess of Oxford. Again we do not know her name, but I shall call her Judith. To obtain the pleasure of this young woman's embraces, John found it necessary to obey her wish that he desert his faith and adopt her's. Therefore he circumcised himself, renounced the Christian religion, and became a Jew. This constituted the offence of apostasy, for which there was only one punishment. The council excommunicated John. Then they delivered him to the lay power in the shape of the Sheriff of Oxfordshire, the dreaded Fawkes de Breaute, whose soldiers immediately burnt him to death, probably at a site outside consecrated ground near Osney abbey. This illustrates how the state came to the aid of the Church, which was not allowed to inflict the penalty of death. Where the Church's penalty was excommunication, and the delinquent remained defiant, the bishop could apply to the king's chancery for a writ of Significavit, by which the sheriff would be ordered to imprison the excommunicated person.

Another heretic punished by this church council at Osney was an unbelieving youth who refused to enter any church building or obey his priest, but masqueraded as Jesus Christ. He had marked his body, head and hands with signs of crucifixion. Together with a woman who called herself Mary Mother of Christ, and presumed to celebrate mass, the youth was ordered to be kept in close confinement (or possibly walled up alive).

Continued . . . . . .