and the English statute of mortmain of 1279 (this latter anticipated by
a baronial provision of 1259) forbade new alienations of fiefs to
churches, whereby service for the defence of the realm and escheats of
the lands to overlords were lost, except with the overlords’ permission;
royal licences also became available for such acquisitions, at a price.^229
By the French ordinances churches were allowed to keep unautho-
rized gifts ‘in free alms’ at a lesser cost than lands they bought, and in
England the Prior of Durham is found petitioning the king to be fined
by the justices in eyre ‘according to his state’: not at the punitive level
of a baron, but as one holding his (extensive) lands ‘in pure and per-
petual alms’.^230 The landed wealth and privileges of churchmen were not
exempt from royal regulation on the grounds that they were held for
spiritual purposes. Chapter 41 of Westminster II indeed ordered the
confiscation and return to the king or other lord of lands given by them
or their progenitors ‘in free alms’ for the purpose of founding religious
houses, if their heads ever sold the property ‘contrary to the form of the
gift’ (words reminiscent of the first clause of the statute about entail). It
also extended the penalty of forfeiture for the alienation of lands in
mortmain to the avoidance of feudal services by the erection of crosses
in tenements so as to claim the privileges of the crusading orders of
Templars and Hospitallers.^231 The legal privilege known as ‘benefit of
clergy’, the right of clerks arraigned for crimes in the king’s courts to be
transferred to the custody of their bishops, was watched over carefully
by royal judges to see that they did not escape punishment.^232 Edward I’s
order of 1286 to his justices to ‘go carefully’ (circumspecte agatis) in
their dealings with the bishop of Norwich and his clergy, who had been
resisting what they regarded as encroachment on their jurisdictional
privileges, gave such a precise list of cases belonging to the church
courts (e.g. fornication, adultery, cases between rectors about tithes—
the tenth of all growing things which were owed to the church to
support its spiritual purposes—provided less than a quarter of a church’s
value was in dispute) that it was soon cited as a statute.^233
The demands of the Church on the resources of the laity, and the
reciprocal insistence of kings that clerks must contribute in proportion
to their great wealth to taxes for the defence of the realm did most to
mark off the clerical estate politically. This was true in England as well
as France, though the divisions between estates were blurred in a
parliament of two houses, the Lords including bishops and abbots with
238 Legal Ordering of ‘the State of the Realm’
(^229) Ordonnances des Roys de France, i. 303–7, 322–4, 745; Stubbs, Charters, 393, 451; tr.
EHDiii. 419–20; S. Raban, Mortmain Legislation and the English Church 1279–1500
(Cambridge UP, 1982).^230 RPi. 166b (no. 68).
(^231) EHDiii. 447 (c. 33), 452 (c. 41), 453 (c. 43).
(^232) Harding, Law Courts of Medieval England, 44–5.
(^233) EHDiii. 462–3.