The conflict of common law and canon law in early sixteenth-century England: Richard Hunne revisited

The conflict of common law and canon law in early sixteenth-century England: Richard Hunne revisited The object of this article is to re-examine the legal circumstances of the courts and law involved in the most well-known case of conflict between church and laity in Pre-Reformation London, that of Richard Hunne. In the hands of the later protestant reformers, like John Foxe, it became a critical example of the evil ways of the unreformed church and as such it is cited in most standard text-books. On the other hand, catholic apologists have sought to minimise its significance, and to adopt Thomas More's account by which Hunne was both vainglorious and heretical and above all had no good legal case. The case had a considerable impact on the course of political events. It led more or less directly to a major confrontation between the ecclesiastical authorities who were anxious to protect clerical immunities and privileges and the secular who sought to curb them. In all of this, the secular powers had a major weapon in the writ (strictly speaking, writs) of praemunire. The relevant statutes (27 Edward III and 16 Richard II) spoke of "any subject who shall draw out of the realm in plea whereof the cognizance pertaineth to the king's court or which do sue in any other court to defeat or impeach the judgements given in the king's court". This meant that courts, especially ecclesiastical courts, were exceeding their jurisdiction when there was a remedy at common law. The courts in question did not necessarily have to be physically outside the kingdom. This was the weapon that Hunne was eventually to try and use against the most powerful ecclesiastics in the land. Briefly, and to get the chronology straight since it is often given inaccurately, on 29 March 1511 Hunne's infant son, Stephen, died while at nurse in the parish of St Mary Matfellon, Whitechapel. The local parish priest thereupon, according to custom, became entitled to the mortuary payment of the child's best gown, the christening robe. Strictly speaking, a mortuary was demanded on every death but there is some reason to doubt that it was always collected. It was understandably unpopular, and Hunne certainly did not pay it. He was then, some considerable time later, on 26 April 1512 sued in the archbishop's court at Westminster by Henry Marshall, the chaplain and parish priest at Whitechapel, on behalf of the rector, Thomas Dryffeld. Hunne was summoned on 28 April and on 13 May appeared before Cuthbert Tunstall, the archbishop's chancellor. He denied the charge but Tunstall found for Dryffeld. After a six month gap during which, perhaps not fortuitously, Parliament was in session and pressing anti-clerical bills, on 13 or 27 December Marshall excluded Hunne from a service at St Mary Matfellon saying that he was excommunicated, the implication being that he had not obeyed Tunstall's order. As soon as the new legal term opened, on 25 January 1513, Hunne sued Marshall for slander in the King's Bench and at 132 S.M. Jack approximately the same time sued a praemunire against Dryffeld and all involved in the case up to and including the judge. In Easter term the defendants replied saying that the King's Bench had no jurisdiction in the case. Either in November/December 1513 or at the beginning of Hilary 1514 Hunne demurred saying the defendants' reply was not good in law. On 23 January Parliament and Convocation started their Session and Warham was said to have sought to have Hunne cited before Convocation for heresy but he could not be found. In October Hunne was arrested for heresy and sent to the Bishop of London's prison, the Lollard's Tower in St Paul's. On 2 December he went to Fulham palace for examination by Fitzjames, bishop of London. He was returned to the Lollard's Tower where he was found hanging on 4 December. The church promptly held a post-mortem heresy trial on 1116 December, and having found him guilty, had the body burned on 20 December. Although the church' claimed Hunne had committed suicide...