Front Page Titles (by Subject) 8.: WILLIAM STUBBS, THE HISTORY OF THE CANON LAW IN ENGLAND 1 - Select Essays in Anglo-American Legal History, vol. 1
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8.: WILLIAM STUBBS, THE HISTORY OF THE CANON LAW IN ENGLAND 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 1 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 1.
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THE HISTORY OF THE CANON LAW IN ENGLAND1
IT requires no small amount of moral courage to approach a subject of legal history without being either a lawyer or a philosopher. A lawyer, no doubt, would make short work of it, and pronounce a definitive judgment, without misgiving, on any subject, historical or other, human or divine, on which he had evidence before him; and a philosopher would systematise to his own satisfaction any accumulation of details that could possibly be referred to the categories of cause and effect. The student of history has not, ex officio, any such privilege of infallibility; the highest point to which he can rise is the entire conviction of his own ignorance and incapacity before the vast material of his investigation; the highest approach to infallibility is the willingness to learn and correct his own mistakes. If he wishes to learn something of a subject, his best policy is to write a book upon it, or to deliver two public statutory lectures. Here then you have my motive; wanting to know something of the history of Canonical Jurisprudence, I undertake to lecture upon it. I shall be wiser, that is, more convinced of my own ignorance, before I have done.
If I were a philosopher I should begin thus: The legal history of a nation or institution must be the history of the successive stages by which it develops or adopts laws, according to the stages of its social, or moral, or political, or religious development; or thus: As a nation develops in civilisation, or foreign policy, or in specialised ambitions, or in consciousness of nationality, or in peculiar constitutional identity, it has to develop new branches or systems of law, or to borrow them ready-made from nations whose polity is in advance of its own, who have made themselves representative nations in the particular branch of sociology in which it desires to regulate itself. Hence, in England, on the original superstructure of ancient popular law is superinduced, in the age of the Conquest, the jus honorarium of the royal courts; and, when the royal courts have become the courts of common law, on their rigour is superinduced the moderating influence of Equity and Appeal: on the conversion of the nation to Christianity a religious discipline is a necessity, and on that religious discipline, as the framework of the Church is built up, there is based a canonical jurisprudence; if the nation is in close communication with foreign churches or a great Catholic religion, it naturally adopts, from them or it, its religious legislation; if not in such close intercourse, it develops a system of its own, and, when the intercourse becomes closer, modifies its own until it is more or less in harmony with that of the nations round it, always retaining more or less of its own home growth. Or again, still as the philosopher, I might say: Religion, Law and Morality cover the area of human action with rules and sanctions, and, with different origins, motives, and machinery, regulate regions of common energy, a number of acts that fall within reach of each or all. The fact that they spring from different sources necessitates the formation of distinct systems; the fact that they cover the same ground accounts for the possibility of conflicting operation; the fact that, whilst they overlap one another, their proper areas nowhere coincide, necessitates some sort of definition and limitation of the scope and system of each, which definition and limitation must be supplied either by a concordat between them or by the subordination of one to the other. And once more: within the region of religious activity itself there are provinces which demand varying degrees of distinctness in definition and graduation of discipline; there are matters of doctrine, of discipline proper, of property and of judicature; there are legislation, jurisdiction, administration; there are functions for the theologian, the casuist, the canonist, and the civilian; questions of doctrine for the theologian, of morals for the casuist, of discipline for the canonist, of procedure for the civil lawyer.
Well, philosophical or not, these considerations seem to give us a clue to the method of our investigation, and suggest a division into two heads: first, the tracing of the growth of the ecclesiastical law, including both the material and the scientific study; and secondly, the history of its working in competition with and in general relations to the other systems of law. In such a cursory attempt to examine these heads as is possible in such a lecture as this, it is necessary to limit the field of survey as much as possible. I shall therefore restrict myself chiefly to the history of ecclesiastical jurisprudence in England, taking liberty, where it is necessary, to go beyond, but not attempting any general treatment. I have, you will observe, coupled together four topics under two heads; I propose to take the two heads separately, but to discuss the two topics that fall under each conjointly.
The first head is the growth of ecclesiastical law, and its two branches are the materials and the study. The materials arrange themselves thus: the New Testament contains not only all doctrine necessary to salvation, but all necessary moral teaching, and as much social teaching as was needed for the age in which it was propounded, and for the society which in the first instance was embodied under apostolic government. But in the very nature of things, and you must here recollect that I am trying to look at the subject rather as a philosopher than as a divine, Christianity, as a growing religion, was certain to require an expansion, in expanding circumstances, of the principles which were clearly enough stated in the Gospel, but the application of which had to be regulated by some other process than the will of the individual. The moral teaching had to be expanded authoritatively, the dogmatic teaching had to be fenced by definitions, the administrative machinery had to be framed with some attempt at uniformity, so that, whilst the Christian society remained a simple voluntary society with no power of enforcing its own precepts by material sanctions, it should have a common jurisprudence recognised by the conscience of its members and by their general consent. Hence from the days of the apostles there were councils, and canons, and constitutions, and books of discipline; at first the canons, councils, and books of discipline covered all the ground of which I have spoken—doctrine, discipline, and administration, although some councils may be more famous for their decisions on one point than on another. Not perhaps to speak of the Apostolic Constitutions, take the council of Nicea for an example, and remember that we owe to it not only a formulated creed, but directions about consecration of bishops and ordination of priests, and likewise rules for the treatment of the lapsed and apostates, and the prohibition of usury. The legislation of Constantine added a new element which worked itself into all these three; giving a coercive and material force to rules which had been hitherto matters of conscience and consensus; the church was empowered to enforce her doctrinal decisions, her rules of discipline, and her frame of administration; and that so completely that from this date the ecclesiastical administration in Christian countries under the empire became so wedded to the secular administration as to be at times almost indistinguishable from it except on close investigation. From this date then our materials begin to sort themselves: the doctrinal definitions are embodied in the Creeds, and need not be pursued further than the fourth, or, at the outside, the sixth general council: but the canons of discipline and administration are worked into great detail for a long period and in many countries. And here I must take a new point: the coercive authority given to the churches in matters of morals becomes henceforth a branch of jurisdiction, but there still remain branches of moral discipline which depend on voluntary obedience, in which a powerful offender, or a man who does not choose to confess, may defy law and order. For the latter were invented what may be called manuals of casuistry, the Penitentials; for the jurisdiction proper there remained the canons of the councils, now possessing cogent authority, and the laws of the empire, now framed on a strict conformity between church and state.
Here then we reach the historical materials on which is based the later canon law; and almost at the same time the date at which the conversion of England began. In the middle of the sixth century Dionysius Exiguus, a Roman abbot, compiled the collection of canons which was the germ and model of all later collections. Nearly at the same time, both in the Eastern Church under John the Faster, and in the extreme West under the Irish and other Celtic missionaries, began the compilation of Penitentials; and in the same century the emperor Justinian completed the great body of the civil law. Thus you get the three conjoint systems of jurisprudence: not distinct in fact from each other; overlapping everywhere, and even containing much common matter, but distinct in basis. Take the Penitential first: that was in reality a list of sins and their penances; sins so ticketed and valued as to please even the most abstract philosopher; permutated and combined to mathematical precision. This sort of literature, belonging especially to ages and nations brought into close contact with heathen abominations, was very important in the last converted countries of East and West; Archbishop Theodore of Canterbury, the Venerable Bede, Egbert of York, and among the Celts Columbanus, Cummian, Vinniaus, and Adamnan, founded the penitential system here: from them the Frank and German churches adopted their rules, and by and by, when Anglo-Saxon literature was borrowing from the Continent, our scholars translated back with interest the developed systems which their predecessors had sent abroad. These rules of penance continue to be elaborated in England to the time of the Conquest; and bear some analogy to the early laws of the Anglo-Saxon kings, which consist so largely of definitions of crimes and penalties. It is to be remembered, however, that the Penitentials were private compilations, the authority of which depended on the estimation or dignity of their authors, and not on any legislative sanction; but, notwithstanding that, there is sufficient harmony amongst them to show that they incorporate the rules on which the episcopal jurisdiction pure and simple generally proceeded; they were a sort of customary church law for their own province. But over and above these there were the canons, or authorised church law; and of these also there was a series of important collections. I am unable to say how far the collection of Dionysius Exiguus was received in England and Ireland at first: but from the beginning of the Church History of United England, a series of new canons began to be added to the early collections: Theodore himself added the decisions of Roman and Byzantine councils to the resolutions of his own national synods: a great and important succession of Anglo-Saxon councils issued canons which were received with great respect in all the Western churches, as we know from S. Boniface’s letters and the remains of the canons themselves. From Ireland likewise proceed a great collection of canons—the famous Collatio Hibernica, which, beginning with the edicts of S. Patrick, went on to embody the results of ecclesiastical legislation in West and East, and, by the time of Dunstan, whose copy of it we possess in the Bodleian, had added by successive accretions all that was thought worth preserving even in the capitularies of the Frank kings. The Anglo-Saxon Church possessed no such comprehensive collection of its own; but abroad the codification of church law proceeded rapidly. I have seen in the National Library at Paris some invaluable MS. collections earlier than the date of the forged decretals; and the forged decretals themselves were probably not the work of one man or one generation. Not however to tread again this well-trodden path, pass on to the collectors of genuine or less suspected canons: of whom the most important is Burchard of Worms. He, at the beginning of the eleventh century, got together and arranged systematically all the materials he could find: borrowing authoritative determinations from the penitentials, the canons of councils, articles of the civil law as known to him by the Theodosian code, and the capitularies of the emperors. A century later, Bishop Ivo of Chartres produced the Pannormia, a similar collection, improved on that of Burchard by the use of the Digest and Code of Justinian. Ivo was a contemporary of Henry I of England, and his date carries us past the Norman Conquest and the Hildebrandine period.
We must revert to the third element of church law, the religious laws of the kings. Of these the history in England is straightforward enough. The Anglo-Saxon sovereigns, acting in the closest union with their bishops, made ecclesiastical laws which clothed the spiritual enactments with coercive authority, and sometimes seemed to ignore the lines which separate the two legislatures; such sacred laws of Alfred, Canute, and Ethelred only affect our subject so far as they operated on the common law of the country in such matters as tithes, observance of holy days, and the like; they do not become by themselves a part of the later church law. On the Continent there is this difference:—the Theodosian code had to a great extent won its way over Western Europe; it enters into the codes of the barbarians, into the law of the Pays du droit écrit, and into the canon law of France; the capitularies of Charles the Great and his successors, even to a greater extent than the Anglo-Saxon laws, combine ecclesiastical with secular dooms; and such of them as are accepted find their way into the Church law. But, over and above this infiltration, comes the necessary requirement of developing jurisprudence. The New Testament, the canons of the General Councils, the Penitentials, the Decretals, did not invent new systems of procedure. Where the Roman courts existed they became the model of the Church courts, and where they did not the ecclesiastical procedure followed the lines of the national and customary tribunals. Hence, wherever the Theodosian code spread, it carried the Roman procedure as a part of church administration; where, as in England, only faint scintillæ of the civil law were to be found, the Church courts must have proceeded on much the same rules as the popular courts. And this is a matter to be seriously noted as we reach the critical point of the Norman Conquest. It is true we know very little about ecclesiastical procedure before this date, and what we do know is not very clear; we may however affirm pretty confidently that there was, over and above the strictly private discipline of the Confessional, a system of church judicature with properly designated judges, and a recognised though not well-defined area of subject-matter in persons and things. To put it very briefly, sacred persons and sacred things, men in orders, monks and nuns, sacred places, churches and churchyards, sacred property, lands, books and the furniture of churches, were under the special protection, and, as protection implied jurisdiction, under the jurisdiction of the bishops, who likewise had authority in matrimonial and like causes. There was a territorial episcopate, and the bishops exercised their judicial powers with the help of archdeacons and deans. But, it would appear, these judicial matters were transacted in the ordinary gemots of the hundred and the shire. Just as the court baron, court leet, and court customary of a manor are held together, so the court spiritual and the hundred or county court were held together; and the proceedings were probably in strict analogy. Just as suretyship was the rule in the hundred court, it was in the bishop’s court; so also compurgation and ordeal, the law of witness, and the claim of the mundborh over the person of the litigant. I am not prepared to say that through intercourse with the French Church some portions of the Roman procedure may not already have crept in, but, so far as I can see, I am inclined to the belief that, whilst there was a customary canonical law and a substantially canonical judicature, the character of the procedure was customary and primitive, and differed in nothing materially from the lay procedure. The bishop declared the ecclesiastical law as the ealdorman did the secular, the assessors determined the point on which evidence or oaths were to be taken, and the suitors were technically the judges. Of course all this is stated subject to correction: but this I suppose to be the case at the Conquest, and more or less the case until the close of the reign of Henry I, for the changes introduced by the Conqueror were not instantaneous in their effects.
And we come now to the consideration of the effects of the Conquest on this branch of our constitutional system. Here we have to remember two things: first, that the Norman Conquest coincided in time with the Hildebrandine revival; and secondly, that the Conqueror carried through his most important measures of change by the work of Norman ecclesiastics, many of them lawyers rather than theologians; of whom Lanfranc, the representative of a family of Lombard lawyers, was the chief. These two points enable us at once to estimate the importance of the act by which William separated the work of the bishops’ courts from the work of the sheriffs’ courts, and promised the assistance of the royal or secular justice in carrying into effect the sentences of the episcopal laws. In the first place he had substituted for the native bishops, used to national law and customary procedure, foreign bishops learned in the Hildebrandine jurisprudence and the Roman procedure; and in the second he had liberated the Church judicature from its association with the popular judicature. But, you will observe, much still remained to be done; for not yet had either Ivo or Gratian collected the Decretum, nor had Irnerius and the Bolognese lawyers begun to lecture on the Pandects; there was not as yet a recognised canon law or a complete civil law procedure.
One immediate result more I will notice, the breaking up of the dioceses into archdeaconries; for up to this time the bishops had done most of their own work. Dunstan had sat at the south door of Canterbury Cathedral and had administered supreme justice; and one archdeacon, generally in deacon’s orders, had been a sufficient eye for the bishop where he could not be personally present. The Norman bishops wanted more than one eye, and, almost immediately after the Conqueror’s legislative separation of the courts, we find that the archidiaconal service is formed on the plan of that of the sheriffs; the larger dioceses, such as Lincoln and London, being broken up into many archdeaconries; and the smaller ones, such as Norwich, following the example. There was a vast increase in ecclesiastical litigation, great profits and fees to be made out of it; a craving for canonical jurisprudence and reformed judicature analogous to the development of constitutional machinery; and with it the accompanying evils of the ill-trained judges and an illunderstood system of law. This continued to be the case throughout the twelfth century, and very conspicuously so in the earlier part of it. The archdeacons were worldly, mercenary, and unjust; the law was uncertain and unauthoritative; the procedure was hurried and irregular. The evils were not confined to England, although they were here intensified by the fact of the novelty of the system.
On this condition of things a new light arose in the middle of the century; the resuscitation of the jurisprudence of Justinian and the codification of the canons by Gratian. The one supplied the necessary procedure, the other the necessary law. I place them together, because their operation reaches England nearly at the same time; more minutely, the civil law revival precedes the canon law revival by about forty years. I must say also that, when I speak of the civil law as remodelling procedure, I do not mean that it introduced any sudden changes, but that it supplied principles and precedents for the due development of the older Roman procedure, which had become as much a matter of custom as that of the popular jurisprudence was. The real founder of the medieval canon law jurisprudence in England was Theobald, Archbishop of Canterbury, who was consecrated in 1139 and ruled the Church until 1161; he is best known popularly as the rival of Henry of Blois, Bishop of Winchester, and as the patron of Thomas Becket; but his real importance is irrespective of personal matters. He saw the mischief which the maladministration of the archdeacons was doing, and instituted a nearer official of greater authority and more direct responsibility. John of Salisbury, the philosopher and historian, was, as secretary to Archbishop Theobald, the ancestor of the diocesan chancellors, officials and vicar-generals, who begin to execute with more regularity and intelligence the law of the Church. Henry of Blois when legate had, as we are told, greatly encouraged the practice of appeals; and an immense proportion of John of Salisbury’s letters, written in the name of Theobald, are concerned with questions of appeal, on the rights of advowsons, and other branches of clerical discipline. But that was not all. In the year 1149 Theobald brought from Lombardy and settled at Oxford as a teacher Master Vacarius, who had given himself to the study of the Code and Digest, and drawn up handbooks of procedure sufficient to settle all the quarrels of the law schools. Stephen, the reigning king, set himself stedfastly against this new teaching and expelled Vacarius; he had on his side the unintelligent dislike of foreign manners, the prudent conservatism of the elder prelates, and the personal jealousies of his brother Henry, whose opponent in political matters Theobald was. Accordingly the civil law was for the time banished. In the year 1151 Gratian completed the Decretum, the concordance of the canon laws; and they shortly found their way to England, where however they were scarcely more warmly received than the civil laws had been, but were not directly banished. It is curious that both Prynne and Selden, not to mention Coke, have confounded the teaching of Vacarius with the attempt to introduce canon law. It is certain that what Vacarius taught was the Corpus Juris of Justinian; but the two systems are thus closely joined together both in time and in essential character. And from this time dates in England that extremely close connexion between the two systems which is recognised in the ‘Utriusque juris doctoratus’ and in the fact that every great canonist throughout the middle ages in England was also a great civilian.
The first result perhaps of these novelties, so far as English law is concerned, was the improvement in legal education. Although Bologna and Pavia could not be suffered to come to England, England might go to Bologna; and a stream of young archdeacons, at the age at which in England a boy is articled to an attorney, poured forth to the Italian law schools. Many and varied were their experiences; but invariably they get into debt and write home for money; some of them fall in love and become the quasi-husbands of Italian ladies; some get a bad character for learning the Italian art of poisoning; some are killed in frays with the natives; some remain abroad and become professors; all more or less illustrate the scholastic question which John of Salisbury propounds, Is it possible for an archdeacon to be saved? There are some few exceptions, but they seem to be generally of the men who stuck to theology and went for their education no further than Paris. The scrapes of the archdeacons however I have spoken of before; they are a really amusing feature of the epistolary correspondence of the time. I pass on to something more important.
Great as the advantages might be of an improved code of laws and system of procedure, neither the canon law nor the civil law was accepted here; they were rejected not only by the stubborn obscurantism of Stephen, but by the bright and sagacious intellect of Henry II. Now, considering the close political connexion between Theobald and the Plantagenet party, it is not at all impossible that Henry II may have been among the pupils of Vacarius: certainly he was more of a lawyer than mere empirical education could make him, and, as certainly, he was awake to the difficulties to which too ready acceptance of the reformed jurisprudence would expose him. How great a lawyer he was I need not tell you; how directly his difficulties were owing to the new doctrines of the canon lawyers we know from the history of Becket. I will only mention two points that illustrate his permanent relation to the subject: first, his Assize of Darrein Presentment removed all questions of advowsons and presentations from the ecclesiastical courts where they were the source of constant appeals to Rome; and secondly, by the Constitutions of Clarendon he did his best to limit the powers of the ecclesiastical lawyers in criminal matters and in all points touching secular interests. Against this must be set the fact that to his days must be fixed the final sliding of testamentary jurisdiction into the hands of the bishops, which was by the legislation of the next century permanently left there, in a way which, however accordant with the policy of the papacy, was an exception to the rule of the rest of Christendom. Henry, although not by any known assize or constitution, must have restrained the ecclesiastical judicature from interfering in secular matters, except in the two points of matrimony, which was closely connected with a sacramental theory, and of testamentary business. These two, however, furnished matter sufficiently remunerative for a school of church lawyers; and the more distinctly ecclesiastical jurisdiction over spiritual things and persons provided much more. A thoroughly learned class of civil and canon lawyers is required over and above the thoroughly learned class of common law and (to anticipate a little) chancery lawyers of the royal courts.
Here then we begin to mark signs of increasing divergence. The common lawyers of England, the men who tread in the steps of Glanville, who are closely allied with the baronage and with the customary theories of prerogative, are opposed to the introduction of either branch of the Roman law. Glanville, anticipating the decision of the Statute of Merton on the question of legitimisation of children by the subsequent marriage of their parents, speaks of the ‘canones legesque Romanorum’ with the same tone of aversion. The ecclesiastics who followed the common law were as adverse to the Roman law as were the knights and barons who learned secular jurisprudence in the discharge of executive office: and very rarely do we find a great judge of the courts of Westminster taken from the ranks of canonists or civilians. Yet the educational influence of these two great systems was making itself felt very early indeed. Not only does Glanville, in the preface to his manual, cite from the Institutes the language in which he addresses his master, but large importations from the civil law procedure must have come in as the jurisprudence developed; and Bracton, who wrote a century after Glanville, makes direct citations from the compilations of Justinian. If I were not afraid of the lawyers, I should venture to say that the whole theory of Appeals and the whole subject of Equity are strange to the national growth of the common law, and, although widely differing in details, far more akin to the civil law, the practice of which in ecclesiastical causes was steadily before men’s eyes whilst they were developing the new systems. But I dare not venture to say this without more authority.
As we proceed, however, we are struck more and more with the prominence of the scientific element in legal education. The great compilations are not received as having any authority in England, but they are the sole legal teaching which is to be obtained in the schools where Englishmen go to learn law. The common law judges may not be canonists or civilians, but the statesmen, in many cases at least, are; certainly archbishops Langton and Boniface and Peckham and Winchelsey. And even of the common lawyers it must be affirmed that their teaching, such as they had, was not merely empirical, not the mere knowledge of customs and the few statutes that were as yet incorporated in the common law code; but scientific, that is, learned from the writings of jurists who treated not merely of the letter or the case, but of the spirit and reason of legislation. Glanville’s is indeed but a book of procedure, but Bracton, Fleta, and Britton are jurists, and whilst they illustrate and explain the common law, bring to the interpretation an intelligence and authority that look to something far higher than precedent. We see how long the old doctrine of the authority that is in the mouth of the judge stands out against the new doctrine that is in the letter of the law. Like the ‘decretum,’ like the ‘responsa prudentum’ of the Pandects, the work of Bracton is a scientific rather than an authoritative text-book. But I am anticipating what I ought to put in proper order somewhat later.
Whilst the study of these foreign systems was becoming increasingly important and increasingly common, the popular dislike of foreign law was not in the least diminished. I must here couple the two Roman systems together, for to all purposes of domestic litigation they were inseparable: the ‘canones legesque Romanorum’ were classed together and worked together, mainly because it was only on ecclesiastical questions that the civil law touched Englishmen at all, but also because without the machinery of the civil law the canon law could not be worked; if you take any well-drawn case of litigation in the middle ages, such as that of the monks of Canterbury against the archbishops, you will find that its citations from the Code and Digest are at least as numerous as from the Decretum. Moreover the accretions of the Decretum, the Extravagants as they were called, that is the authoritative sentences of the Popes which were not yet codified, were many of them conveyed in answers to English bishops, or brought at once to England by the clergy with the same avidity that lawyers now read the terminal reports in the Law Journal. The famous decision which Glanville quotes about legitimation is embodied in what then was an Extravagant of Alexander III, delivered to the bishop of Exeter in 1172, founded no doubt on a Novel of Justinian but not till now distinctly made a part of church law. And this point further illustrates what I was saying: for it is the point on which the great dictum of the council of Merton turns in 1236. The English hatred of the foreigners was in that year fanned to white heat by the importation of the king’s half-brothers and the new queen’s uncles: it was an unlucky moment for Grosseteste and the bishops to press that the English law of bastardy should be altered to suit the canon and civil law of Rome. The murmurs were already rising that William of Valence was going to change the constitution. Notwithstanding the influence of Grosseteste, the king and the barons declared ‘Nolumus leges Angliae mutari.’ That is a well-known story; but it is perhaps not equally well known that the king had just a year before issued an order which stands in close parallelism with the banishment of Vacarius. By a letter to the Lord Mayor of London, dated Dec. 11, 1234, he had directed that no one should be allowed to hold law schools in the city of London or teach the Laws. What laws were these? Coke thought that the king referred to Magna Carta and the Carta de Forestis; but Selden, and Prynne after him, pointed out that this was inconceivable; and that doubtless the Laws were the canon laws. I think that under the term Leges both civil and canon law were intended, but certainly at the moment the danger from the canon law was greater. In the year 1230 Gregory IX had approved of the five books of Decretals codified by Raymund of Pennafort from the Extravagants of the recent Popes and added to the Decretum of Gratian. In 1235 Matthew Paris tells us the Pope was urging the adoption of them throughout Christendom. But they were not received in England, although they continued to be the code by which English causes were decided at Rome, and began to be an integral part of the education of English canonists. And here again we have to distinguish between the scientific or implicit and the explicit authority of these books. Great as the influence of Justinian’s code has been, there are very few countries in Europe where it has been received as more than a treasury of jurisprudence; the ‘Siete partidas’ of Alfonso the Wise was a book of jurisprudence, not a code of law; the independence of the Gallican Church turns, as a historical question, on the non-reception of Roman decrees, the acceptance of the council of Basel, and the non-reception of portions of the Tridentine canons, the incidental working of which must, notwithstanding, have been irresistible and undeniable. So in England neither the civil law nor the canon law was ever received as authoritative, except educationally, and as furnishing scientific confirmation for empiric argument; or, in other words, where expressly or accidentally it agrees with the law of the land. Nay, the scientific treatment itself serves to confuse men’s minds as to the real value of the text; and in both laws the opinions of the glossers are often cited as of equal authority with the letter of the law or canon.
But this same date 1236 brings me to another point; the beginning of the Codex receptus of Canon Law in England; in spite of the Council of Merton and the closing of the law schools of London. Since the Conquest most of the archbishops had held provincial synods and issued provincial canons; but many of these were acts of a temporary character only, and, even when they received support and confirmation from the kings, seldom amounted to more than the enforcement of discipline which had previously been authorised by papal or conciliar decrees. These canons are extant in the pages of the annalist, but remain rather among the Responsa Prudentum than as materials for a code. Just, however, as the statute law of England begins with the reign of Henry III, so does the codification of the national canon law. Archbishop Langton’s Constitutions may be set first, but next in order, and even of greater authority, come the Constitutions of the legate Otho, which were passed in a national council of 1237. After these come Constitutions of the successive archbishops, especially Boniface of Savoy and Peckham, which were drawn up in a very aggressive spirit; Boniface taking advantage of Henry III’s weakness to urge every claim that the English law had not yet cut down, and Peckham going beyond him in asserting the right of the Church against even the statutable enactments of the state. Between Boniface and Peckham in the year 1268 come the Constitutions of Othobon, which were confirmed by Peckham at Lambeth in 1281, and which, with those of Otho, were the first codified and glossed portions of the national church law. In the reign of Edward III, John of Ayton, canon of Lincoln, an Oxford jurist it is said, collected the canons adopted since Langton’s time and largely annotated the Constitutions of Otho and Othobon. Contemporaneously with this accumulation of national materials, the Corpus Juris of the Church of Rome was increasing; Boniface VIII added the sixth book to the five of Gregory IX, and John XXII added the Clementines in 1318; and his own decisions, with those of the succeeding popes, were from time to time added as Extravagants unsystematised. The seventh book of the Decretals was drawn up under Sixtus V as late as 1588; so that practically it lies outside our comparative view. Of course very much of the spirit of both the sixth book and the Clementines found its way into England, but the statute law was increasing in vigour, the kings were increasing in vigilance, and after the pontificate of Clement V the hold of the papacy on the nation was relaxing. Occasionally we find an archbishop like Stratford using the papal authority and asserting high ecclesiastical claims against the king, but the age of the Statutes of Præmunire and Provisors was come, and no wholesale importation of foreign law was possible. Not to multiply details, I will summarily state that in the reign of Henry V, William Lyndwood, the Dean of the Arches, collected, arranged, and annotated the accepted Constitutions of the Church of England in his Provinciale, which, with the collections of John of Ayton generally found in the same volume, became the authoritative canon law of the realm. It of course was proper in the first instance to the province of Canterbury, but in 1462 the Convocation of York accepted the Constitutions of the southern province as authoritative wherever they did not differ from those of York, and from the earlier date the compilation was received as the treasury of law and practice. Nor were any very material additions made to it before the Reformation; for although the Church of England was deeply involved in the transactions of the Council of Basel, and might, if the matter had been broached as distinctly as it was in France, have formally accepted its canons, no such incorporation of those canons ever took place here as was accomplished in the Pragmatic Sanction of Bourges in 1438.
Still, authoritative as Lyndwood’s code undoubtedly was, it was rather as the work of an expert than as a body of statutes that it had its chief force. The study of the canon law was a scientific and professional, not merely mechanical study; and just as much was the study of the civil law also. I think that I am right in repeating that it was mainly as a branch of church law that the civil law was studied at all; but I do not mean that it was so exclusively. In the infancy of international law and the administration of both admiralty and martial law, the English jurists had to go beyond their insular practice, and to no other source could they apply themselves; hence the association which to the present day has subsisted between the curiously unconnected departments of maritime and matrimonial jurisdiction. It is really owing to the distinction between scientifically and empirically trained lawyers. Of the indirect influence of scientific jurisprudence on the common law and chancery I have spoken already.
England has then for at least two centuries before the Reformation a body of law and a body of judges, for ecclesiastical and allied questions, quite apart from the law and judicial staff of the secular courts; and, with the growth of the Universities, she begins to have educational machinery for training her lawyers. In this department of work, however, the scientific study has a long start and advantage over the empirical. The common law has to be learned by practising in the courts, or by attending on their sessions. The apprentices and serjeants of the Inns of Court learn their work in London; their study is in the year books and the statute book, a valuable and even curiously interesting accumulation of material, but thoroughly insular, or less than that, simply English. The canonists and civilians have also their house in London, the ‘Hospitium dominorum advocatorum de arcubus,’ but they are scarcely less at home at Rome and Avignon. The canonist and civilian learn the legal language of entire Christendom; the London lawyer sticks to his Norman-French. The Norman-French of Westminster is unintelligible beyond the Channel and beyond the border. Scotland, the sister kingdom, is toiling without a common law system at all until, in the sixteenth century, James V introduces the law of Justinian as her treasury of common law, and thus gains University training and foreign experience for her lawyers: but England has an ancient system and is content with her own superiority; her common law is of native growth, strengthening with the strength of her people; she sees the nations that have accepted the civil law sinking under absolutism; as distinctly as ever ‘non vult leges Angliæ mutari.’ But she has ceased to banish the skilled jurist. Oxford and Cambridge have their schools of both the faculties. The civil law at Oxford had its schools from the fourteenth century in Cat Street, on the north of S. Mary’s, in Schidyard Street, and in the great civil law school in S. Edward’s parish where Archbishop Warham learned law. The canon law school was in the neighbourhood of S. Edward’s church also, and was rebuilt in 1489 by subscription of the canonists. Wood enumerates no less than seven distinct sets of Scholæ Legum, the majority being for civil law. In the colleges legal study has its proper endowments. At Merton the study of the canon law is by the founder’s statutes permitted to four or five of his scholars, that of the civil law is allowed to the canonists as subsidiary to their proper study, pro utilitate ecclesiastici regiminis. At Oriel five or six fellows, with consent of the seniors, might read the canon law, and by dispensation of the provost, the civil law also. At Exeter, one of Stapledon’s fellows was to study Scripture or the Canon Law. We learn from Mr. Mullinger’s invaluable book on Cambridge, that at Gonville Hall, founded about seventy years after Merton, each fellow was allowed to study canon law for two years. It might be possible to trace in the successive foundations vestiges of the old subsisting and often revived jealousy of the studies; for Merton was founded at a time when, as Roger Bacon tells us, the civil law was looked on with jealousy as a mere professional or money-making study, whilst before the foundation of Gonville Hall the conflict between John XXII and Lewis of Bavaria had made the political tendencies of these studies more important and obvious. At Trinity Hall, which was nearly of the same date as Gonville, ten civilians and seven canonists were seventeen out of the twenty statutory fellows. At New College, out of seventy there were to be ten civilians and ten canonists, but these were reduced by Waynflete to two civilians and four canonists. At All Souls, sixteen out of forty were to be lawyers; at King’s College, Cambridge, out of seventy, two civilians and four canonists; while at Catharine Hall both the canon and civil law were excluded. These variations depend no doubt on the special intentions of the founders to promote scientific study, or to insure the worldly advancement of their pupils, and, to some extent, on the varying relations between theology and law of which I must speak in the next lecture. It is however clear, at the lowest estimate, that abundant encouragement and opportunities for the study could be found in both the seats of learning. Closely allied as the canon and civil laws were, they composed two faculties; with regular schemes of lectures, fees, and exercises; the doctor of the civil law had to prove his knowledge of the Digest and the Institutes; the doctor of the canon law must have worked three years at the Digest and three at the Decretals, and studied theology also for two years. It is, you observe, not the national church law, but the universal or scientific material, on which he is employed. In a great number of cases the degrees were taken at the same time; but as the era of the Reformation approaches, the canonists become more numerous than the civilians at Cambridge, and probably at Oxford also. But these points belong to a view of the subject on which I cannot pretend to enter now; and indeed it is in the conflict of laws rather than the conflict of studies that the present interest of the subject lies. In the next lecture I shall have to recur for some points to the ground which I have attempted to cover in this, for the struggles and jealousies of the rival and allied systems of jurisprudence do not date from the Reformation only. Here, however, I stop now, having in a cursory way traced the history of the materials of the canonical jurisprudence so far down. We shall have to begin by looking at the later history from the theological as well as from the legal side, and to follow it through the Reformation period, steering clear, as much as possible, of questions of modern controversy.
IN the first of these two public lectures I attempted to give a sketch of the growth of the Canon Law; its origin and materials, its introduction into England and the limits of authority which it attained here, its relation to the civil law of Rome, and the distinction between the scientific study of the Decretals in the Universities and the professional use of the Provinciale in the Ecclesiastical Courts. The second branch of the subject, as I proposed to treat it in opening the lecture, is the history of its working in competition with and in general relations to other systems of law: a branch of the discussion which compels us at once to go back to the very root of the subject. Canon law as a code, and the civil law of Rome as a treasury of procedure, working together in the hands of ecclesiastical lawyers, may be for the moment looked at together; and the first aspect which our subject then takes is the attitude of the system towards theology on the one side and to the national, or, as lawyers would perhaps call it, municipal law on the other. From the Conquest to the Reformation canon law, proceeding by civilian method and being able to call on the municipal executive to put its sentences in force, is a strong link between theology and national discipline; but a link with so much intricate workmanship employed upon it as to be offensive in many ways both to theology and to the common law. The theologian saw the great commandments of God, and the statutes of the Church, and the voice of conscience, lowered by being made dependent for their cogency on an elaborate system of human invention which fettered freedom of action, and in some respects freedom of thought also; which reduced moral obligations to a system of penances, pecuniary commutations, monitions, and excommunications, and which made use of the sacraments of the Church as the mere means and appliances of a coercion to external good behaviour, which ought to be a free-will offering and the instinctive product of a sincere heart. Do not think that I am exaggerating the attitude of repulsion in which the pure theologian and the pure moralist stood to the ecclesiastical lawyer who was making money out of the practice of the Courts Christian. You remember how John of Salisbury had doubted whether an archdeacon could be saved: Roger Bacon declares that the study of the civil law, attracting the clever men among the clergy, threw the study of theology into a second place, and secularised the clerical character, making the priest as much a layman as the common lawyer; while Richard of Bury, the author of the Philobiblion, and Holcot the great scholastic, declared, the one that the civilian, although he gained the friendship of the world, was an enemy of God; the other, that under existing relations the handmaid Hagar, despising the true wife, was in apt analogy to the contempt under which neglected theology sank in the estimation of the world as compared with the law. It is true that these remarks have a primary reference to the civil law, but, as I showed, the civil law was learned chiefly as the executive of the canon law, and it was by its relations to the canon law that it became practical and remunerative. I need not go into much detail about this, but, if I am speaking to any who attended my lectures on Ockham and Marsilius, they will remember how not only those great writers, but a crowd of minor ones, attack the canon law and its professors as the great enemies, not only of civil government but of vital religion: an exaggeration no doubt, but founded on a true principle. ‘Who,’ says John of Salisbury, himself a canonist, ‘ever rises pricked at heart from the reading of the laws, or even of the canons?’1 The practice of these studies stood to theology, stood to religion itself, in the relation in which the casuistry of the confessional stood to true moral teaching.
When however we turn, as we must do, to consider the attitude of the national law and the national lawyers, we see more distinctly how incompatible were the systems which, for four hundred years, from the Conquest to the Reformation, stood side by side, with rival bodies of administrators and rival or conflicting processes. Look first at the area of matters with which the canon law assumed to deal: it claimed jurisdiction over everything that had to do with the souls of men, and I think there is scarcely a region of social obligation into which, so defined, it would not claim to enter. It claimed authority over the clergy, in matters civil and criminal, in doctrine and practice, in morals and in manners, education and dress, in church and out. It claimed authority over all suits in which clergymen were parties, or in which ecclesiastical property was involved; I say, mark you, claimed, rather than exercised, for some of these are the points in which the struggle with the national law arises. It claimed authority over the belief and morals of the laity, in the most comprehensive way. The whole of the matrimonial jurisdiction, the whole of the testamentary jurisdiction was, we know, specially regarded as a branch of canon law; but by its jurisdiction for correction of life, ‘pro salute animae,’ it entered into every man’s house; attempted to regulate his servants, to secure his attendance at church, to make him pay his debts, to make his observe his oaths, to make him by spiritual censures, which by the alliance with the State had coercive force, by the dread of a writ of capias excommunicatum, to keep all the weightier matters of the law, not only judgment, mercy, and truth, but faith, hope, and charity also. Now the common law of the land was quite competent to deal first with ecclesiastical property, temporalities, advowsons, and the right to tithes; the canon law dealt with the qualifications of presentees and the exaction of tithes: the common law was competent to deal with matters of debt or theft; the canon law claimed to deal with matters of credit or dishonesty in legal and moral as in spiritual obligations: the common law dealt with dower, the canon law with matrimony; the common law with succession to property, the canon law with legitimacy. So over great regions of property law, and over the whole domain of moral delinquency, the medieval world had two sets of courts at which they might sue, and two sets of lawyers to keep alive with fees and retainers. The canonists affirm that a suit may be brought in the ecclesiastical court for every matter which is not cognisable in the courts of secular law, and for a great many matters which are so cognisable. There is surely an ample claim. I do not want to go into detail, but I will just point out one particular; the commissary of the Bishop of London entertained suits exactly analogous to those of the trades unions of the present day, turning on the question how far it is a breach of oath for the sworn member of a guild to impart the art and mysteries of his guild to outsiders.
Here then you see the elements of a pretty conflict; between the jurists as a matter of scientific or empiric lore, between the practising lawyers a conflict for practice and for profits; and you can see how degrading the practical part of the profession was to the theological student, or to the parish priest. Over and above this, there was the natural jealousy of the crown and the parliament. If the canon law had restricted itself to really spiritual questions, matters of belief or of morals for which the national code had no provision, it is not likely that the kings would have been jealous of papal or archiepiscopal enactments, or would have stood on their rights when the exact line was occasionally overstepped. But the extravagance of ecclesiastical claims provoked them to opposition and justified it. When the archbishops of Henry III’s reign claimed exclusive jurisdiction in suits of advowsons, the right to exact personal tithes, and to try all questions of credit granted ‘fide interposita,’ even so gentle a worm as the king turned again; and we find among his letters, and still more among those of his son, constant cautions to the primates and their convocations not to attempt anything to the prejudice of the crown and customs of the land, as well as innumerable prohibitions to ecclesiastical judges against their trying other civil suits than those which touch testamentary or matrimonial matters. Edward II had to prohibit the employment of imperial notaries. In the spiritual matters proper, the kings seldom interfered; only where a political motive was suspected, or where a servant of the crown was attacked, or where the spiritual judge had clearly gone beyond his discretion. The Church history of the thirteenth and fourteenth centuries is full of cautions and prohibitions, and of struggles between the officers who had thus to interfere with one another; and the definitions of the ‘Articuli Cleri’ under Edward II which prescribed the points on which prohibitions were to be granted, and the Statute of Præmunire under Edward III, which forbade the multiplication of appeals to Rome, did little to ameliorate relations. When however heresy became a matter of litigation, the two systems deliberately worked together; and, although there were many hitches, during the whole of the Lancastrian period there was more definite co-operation and less conflict. The common law was really becoming more a matter of scientific treatment, and the greatest judges were men who had had scientific education on both sides. Sometimes there was, as was natural, a little inconsistency and awkwardness; the bowsprit got mixed up with the rudder; as when Morton, at once archbishop and chancellor, allowed his judgment on a fraudulent executor to be modified by the reflexion that he would be ‘damnée in hell.’ But this may have been exceptional.
It must not however be supposed that the fault in this rivalry was altogether to be ascribed to the canonists. The English-trained lawyer was as infallible in that age as in this; and when we find him, and his brethren in the parliament, constantly hampering the legitimate work of the church, we see that there were two sides to the question; when in the fourteenth century the Commons petition that the clergy may not make in their convocation canons to bind the laity, it is rather a relief to find that the canons in question relate to tithe of underwood: but when in 1446 we find the clergy remonstrating that the professional lawyers ‘pretended privilege, by what right,’ they say, ‘we know not, to interpret acts of parliament and explain the mind of the legislature, and by thus practising upon the statutes sometimes ground their opinion on mysterious and unintelligible reasons, and so wrest the laws contrary to the meaning and intention of parliament;’ or petitioning that the judges who showed such strong bias should no longer issue prohibitions, but, when questions arose concerning the limits and jurisdiction of the rival courts, indifferent persons should be pitched upon to judge them; or the lawyers, on the other hand, striking at the root of all ecclesiastical jurisdiction as if it were a transgression of the Statute of Præmunire,—well, when we look at these things, we shall see that there were questions unsettled even before the Council of Trent, and hear opinions and complaints that sound like echoes beforehand of voices with which in these days our ears are too familiar.
I must, however, now proceed to the Reformation, and endeavour to determine, as strongly and as clearly as I can, the bearing of that most critical era on our subject. Henry VIII had, as early as 1515, seen a struggle between the secular and ecclesiastical jurisdictions in Standish’s case, in the course of which he is said to have expressed himself as determined to endure no division of sovereignty in his own realm. Whether that was really said or merely put into his mouth afterwards, I cannot say; but certainly no scheme of change in the relation between Church and State was set on foot for nearly seventeen years. Then the business of the divorce at Rome, and the discontent of the king with the half-hearted support of the clergy at home, completed his disgust, and he set out in the course of radical change. Having in 1531 compelled the clergy by the threat of præmunire to recognise him as supreme head ‘quantum per Christi legem licet,” he induced the Commons in 1532 to present a petition or remonstrance against the whole theory and practice of the canon law. They attacked the power of the clergy to make canons in convocation, they protested against the exaction of fees and mortuaries, and deliberately impugned the honesty and purity of the episcopal courts in all their branches and with reference both to jurisdiction and to procedure. This petition had two results; the parliament passed bills to limit the benefit of clergy and forbid feoffments to the use of churches. An earlier session in 1529 had attempted to deal with probate and mortuaries; this, by the Statute of Citations, cut down the power of the Archbishop of Canterbury to entertain suits from other dioceses except by appeal or on request, and so struck at the root of the universal jurisdiction enjoyed by the Court of Arches and its advocates. The same term—the second result of the king’s policy—the Convocation was compelled to surrender its right of meeting and legislating, and to consent to a revision of the canon law to be carried into execution by a mixed body of clergy and laity whom the king should appoint. This last concession sealed the fate of the old scientific study of the canon law, which as we have seen, was a distinctly popish study; and, if it had not been accompanied by a limiting clause, allowing the old canons, so far as they were not opposed to the law of the land, to stand until the revision was published, there would have been an entire abolition of ecclesiastical jurisdiction of any kind. In 1535 Cromwell, as the king’s vicegerent, visited the two Universities, and in both issued injunctions, that both the old scholastic teaching of the Sentences should cease, and that the teaching in the Decretals and the conferring of degrees in canon law should be abolished. What the exact legal force of Cromwell’s injunctions was has never been determined; but in these points they were obeyed: the Universities ceased to teach the systematic theology of the Schools and the systematic jurisprudence of the Decretals; and the ancient degrees of bachelor and doctor of the canon law are known, except during the reign of Mary, no more. How did this affect the civil law? you ask: well, just as it might be expected; the scientific study was abolished, the old canons were in abeyance, but the courts continued to practise, the civil law procedure was as lively as ever; and students who intended to practise as advocates took degrees in civil law instead of in both. Oxford dropped the canon law degree altogether; Cambridge, by adopting a more general form, retained a shadowy presentment of the double honour.
And now we come again to an Act which shows the continuity of the inherent rivalry between two systems which, for the sake of mutual profit, had so long worked together. In 1541 a bill was introduced into parliament which enabled married D. C. L.’s to exercise ecclesiastical jurisdiction as chancellors and commissaries; it did not pass in that year, being withdrawn on the request of Convocation, but was reintroduced and passed in 1545. So long as the two degrees were granted together, the D. C. L.’s were, as doctors of decrees, bound by the canon which forbade a married man to act as an ecclesiastical judge; but now the right of the D. C. L. simple, both to marry and to act as a judge, was secured: as the civil doctors of Bologna had done in the thirteenth century, their successors in England now married; before this they were probably, as a rule, in minor orders.
I must pass over the more important of Henry VIII’s other acts, especially the Statutes of Appeals and Submission, except just to recall the fact that in the preamble to the former of those Acts passed in 1533 he had expressed himself confident that the realm of England would, as it always had done, provide a sufficient number of spiritual men to decide spiritual questions, and of secular men to decide secular questions, under his own supreme authority and to the exclusion of any foreign jurisdiction. The other matters in which those statutes affected ecclesiastical jurisdiction lie somewhat deeper than our present speculations.
We are not however to suppose that, when the king practically abolished the canon law, he intended to hand the clergy over to the common lawyers. The procedure was, as we have seen, still kept in the hands of the civilians; but the theologians were a body of men whose functions had been to some extent usurped by the canonists, and who now for some years, under Tudor and Puritan and Laudian influences, were to come to the front. The theologians or divines divided with the canonico-civilians the authority of the ecclesiastical jurisdiction: the character of a bishop in itself was that of a divine, not of a lawyer, and we might almost say that whilst questions of application of law and procedure belonged to the lawyer, the interpretation was claimed for the divine. In cases of heresy, for instance, the theologians formulated the definition, whilst the canonists and civilians examined the teaching of the accused and determined how far he had contravened the definition. So in the question of Henry’s divorce, the divines had been called on to define ‘Can the pope dispense with a marriage with a deceased brother’s wife?’ the canonists had to determine whether the marriage between Arthur and Katharine was such a marriage as precluded the dispensation. This rule of combining theologians with canonists or civilians for commissions on ecclesiastical suits continued long after the Reformation, and ought never to have been disused.
These measures of change, sufficiently drastic one would think, had in this department satisfied Henry VIII; the scheme for revising the canon law hung fire; the powers granted to the king in 1534 were renewed for three years in 1536, and again for his life in 1544, but nothing was done in the matter during the remainder of the reign. But what had sufficed Henry VIII did not suffice Somerset or Northumberland, or the poor boy-king who succeeded him. The second statute of the first year of Edward VI went as near as possible to extinguish the episcopate; there were still to be bishops, but they were to be nominated by the king without any form of election; they were as a matter of fact appointed during good behaviour; and their jurisdiction was henceforth to be exercised in the king’s name. In him all ecclesiastical authority was vested, they were to be his ministers, their writs were to be issued in his name, their seals were to bear the royal arms; and it was only to such of them as he pleased that even such authority was to be intrusted. It was proposed, though not passed, that a Court of Chancery should be erected for ecclesiastical causes. The revision of the canon law was to be urged on, and the Universities were to be further purged from the old leaven. All this was done: in vain the Protestant bishops pleaded in the House of Lords that their position was intolerable and their dignity a mere mockery, that the moral discipline of clergy and people was entirely broken down; no act for rehabilitating them was got through parliament; the dominant interests were opposed to it. The injunctions sent to the Universities prescribed some renewal of studies; the poor canonists of course were left out in the cold, although not treated as if they were illegal or irregular: the civilians were authorised to read the Institutes, and the D. C. L., when he had reached that dignity, was exhorted to devote himself more zealously to the study of the king’s laws, both temporal and ecclesiastical. And work was to be found for him: bills were introduced to lodge ecclesiastical jurisdiction in the hands of students of the Universities, who were admitted by the archbishop. By these, however, all special privileges of the advocates were endangered and the bills dropped after passing most stages: four bills on this point were before the parliament of 1550. But again the revision of the canons was dragging behind. The king’s power of nominating revisers was asserted by an act of 1550 to last for three years, and an abortive attempt was made in the session of 1552 to renew or enlarge it; but whether it was that Cranmer found it impossible to obtain skilled assistants, or that the division of parties prevented a joint effort, it was not until near the end of the reign that the project was carried on: in 1551 and 1552 Edward issued two commissions of thirty-two, composed of equal numbers of bishops, divines, civilians, and common lawyers; the number thirty-two was reduced to eight; practically the work was done by Peter Martyr, the Oxford Professor of Divinity, under Cranmer’s eye, and the result was the compilation known as the Reformation Legum; a curious congeries of old and new material which really pleased no party; showing too much respect for antiquity and divine ordinance to please the Puritan, and too little to satisfy the men who had guided the Reformation under Henry VIII and those who were to do so under Elizabeth.
The legislation and policy of Mary were directed to uproot everything that Edward VI had originated; his bishops appointed ‘quamdiu se bene gesserint,’ were dispossessed without a struggle; his laws were repealed, many of them never to be revived; his advisers, where they would not comply, were exiled or burned: but the efforts to reinstate the old system were not successful; the monastic property could not be restored; the ranks of the lower clergy, reduced to a fraction by the abolition of chauntries and private masses, could not be recruited; and all the restored fabric hung on the life of a woman and a few worn-out old men. For the moment the canon lawyers lifted up their heads, and a few civilians took the doctorate of decrees at Oxford and Cambridge; but the complete extinction of reactionary forces, on Mary’s death, showed that the Papal system, with all that was dangerous to national life contained in it, was, so far as England was concerned, practically extinct: six years of blood and fire, of tears and prayers, of cruel jealousies and heartbreaking divisions, wrought this; and Elizabeth for some years after her accession had before her a task, not certainly easy, but not encumbered with insuperable difficulties.
The subject which we are treating now contracts its limits; for to attempt anything like circumstantial discussion of the legal history of a period into which ecclesiastical quarrels so largely enter, would be to lose oneself at once in a wilderness of controversy. I must content myself with a few generalisations and a few significant facts. The Elizabethan settlement in Church and State was a compromise, satisfactory to no party, and very unsatisfactory indeed to the constitutional lawyer or historian; but, possibly, the best arrangement compatible with circumstances. She began her reign, of course, by a reversal of her sister’s legislation; but she did not restore the Edwardian system; she did not revive the Act of Henry VIII which had asserted the king’s headship of the Church, or the Act of Edward which deprived the bishops of all original jurisdiction: the doctrine of the headship was opposed both by the Puritans and by the Catholic party; the abolition of all the high functions of the episcopate which was aimed at by Edward’s advisers was a measure which contemporary history was showing to be dangerous. But, whilst she minimised the definition of authority, she retained the virtual exercise of it: her explanation of her supreme governorship might have satisfied every one but the most Tridentine papist, but she re-enacted the most stringent part of her father’s act of supremacy; and, whilst she allowed the continuance of the church jurisdiction, she kept all control over the religious discipline of clergy and laity under the hands of the Court of High Commission. The Court of High Commission, consisting of a large number of lawyers and laymen and a small number of bishops and divines, stands to the Church in much the same relation as the Court of Star Chamber stands to the Courts of Common Law, and the Court of Requests to Chancery, a legal but most unconstitutional relation, and one which, however long it might be tolerated, was sure in the long run to endanger the whole fabric. As for legislation, Elizabeth acted, as we know, on a high principle of supremacy; such measures of church discipline as required coercive authority she allowed the parliaments to pass, but she forbade any interference whatever where that authority was not necessary. As for the ecclesiastical legislation in Convocation, she exercised her veto, i. e. she granted or withheld the consent which would make it valid, according to her own views of high policy. The rulers of the Church, who were not free from the same humiliating bondage of adulation that influenced all around the great queen, tolerated a system which gave them the substance of power, although in an unpopular and unhistorical shape. Their legislative authority was paralysed, but they could exercise a real authority as the queen’s advisers; and the jurisdiction, which they had difficulties in enforcing through their own courts, they could enforce as members of the High Commission Court. But the ecclesiastical law—how did it fare under the circumstances? In the first place the forms of the courts were maintained, and were enough to sustain the civilians who worked in them; the Prerogative Court and the consistory courts lived on the testamentary and matrimonial jurisdiction; and before the spiritual courts were tried the smaller cases of discipline which were not important enough for the High Commission Court. Doctors’ Commons, which had dwelt before in Paternoster Row or at the Queen’s Head, under the auspices of Dr. Henry Harvey, built itself a new home, with hall and library and plate and privileges for importing wine. Knowledge of canon and civil law was in parliament, as in 1585, regarded as a special qualification for service in the House of Commons on committees. In the parliaments of 1559 and 1563 were introduced bills to make a University degree necessary for ecclesiastical judges. And the canon law, as drawn up by Lyndwood, and the civilian procedure, subsisted, for the revision which had been completed by Edward’s commissioners did not approve itself to Elizabeth or her advisers, and after an abortive attempt to carry it through the parliament of 1559, took its place on the shelf of broken projects. Even the Court of High Commission, novel as its functions were and unfettered as it was in the exercise of them, condescended to borrow from the canonical jurisprudence some of its most offensive details, its ex officio oath and the censures by which it would enforce its sentences.
It was a strange composite system, perhaps the only one possible consistently with the retention of historic continuity, but obviously and most certainly tolerable only for a time. What was the attitude of theologians, of common lawyers, and of canonists towards this critically-balanced structure? To the true theologians, whether Catholic or Puritan, the whole was repulsive: we see this in the half-hearted, almost despairing adhesion of Archbishop Parker, and in the strong and justifiable protests of the Puritans; and I mention them with respect here, because this opposition to unconstitutional tyranny is the only point in which I have any sympathy with them; their tenets I hold to be untenable, and their methods of promoting them by calumny, detraction, and coarse ribaldry I think entirely detestable; but I do think they were right in denouncing the Court of High Commission and all its works. Even conservative churchmen like Hooker, in their defence of the ecclesiastical system, are hampered by the consciousness that much of what existed was indefensible. The bishops saw their position as bishops ignored, and the Puritans saw the power which they thought should be exercised by their own ministers exercised through a royal commission: the bishops however had the power and endured the ignominy, the Puritans suffered and waited for their turn to persecute.
The lawyers were not all of one mind; Coke the great lawyer was himself of two minds; he liked the crown better than the episcopate, but he loved the common law better than the crown; and his inconsistency produces some curious results on his teaching. This leads us to two or three facts. From 1587 to 1591 the famous Cawdrey’s case drew its grievous length along. The High Commission had deprived Cawdrey for nonconformity; the question arose, had the Commission under the terms of the Act of the queen’s first year exceeded its authority? The resolution finally adopted by all the judges, and recorded and approved by Coke, affirmed that the ecclesiastical prerogative of the crown was such that the powers of a commission issued by it were not limited by that statute, but covered the whole range of ecclesiastical jurisdiction; and therefore the sentence was good. The judgment in Cawdrey’s case, full of bad law and worse history, is often referred to even now by lawyers with a respect which it does not merit; here it is useful as showing to what lengths the common lawyers under Elizabeth would go in support of the authority of the crown over things ecclesiastical. It stimulated the Puritans in and out of the Church to bitterer action, and disabled the hands of the bishops who, like Andrewes, would rather have taken the responsibility of their own acts. Twenty years later Coke himself declared against the constitutional character of the Court of High Commission, and, by refusing to act upon it, paved the way for its downfall. But Coke was then in opposition to the king’s advisers, and made it his account to be an independent judge. But I am anticipating.
The change of Elizabeth for James I was a critical event in English Church history. James’s dealings with the Church are not among the strongest, but are perhaps among the least reprehensible parts of his administration. He willingly confirmed the canons of 1604, which make a substantive addition to the canonical lore of the clergy. He failed to secure co-operation between the House of Commons and the Convocation, or between the bishops and the Puritan divines. But this is no wonder. A House of Commons which could listen to Sir Herbert Crofts declaring that the Church had declined ever since doctors began to wear boots; or could expel Mr. Sheppard, M. P. for Shaftesbury, for explaining that ‘dies Sabbati’ meant not the Sabaoth as they called it, but Saturday, and suggesting that as David danced before the ark, the legality of dancing was a question on which the bishops might decide before it was altogether forbidden,—such a House of Commons was not likely to impress men like Hooker or Andrewes with respect, or King James either. It is clear I think that, if the Puritan party had been well represented at the Hampton Court Conference, James would have seen justice done to them; but he saw their intolerance and their frivolity, and the balance remained unredressed. One of their minor complaints, against the issuing of ecclesiastical sentences by lay chancellors, touches directly on our subject: their idea was to give all the disciplinary power to the clergy, but to their own clergy: the prelates of the time chose to maintain the status quo which left the power where it was. On this point the civilians were peremptory. Some of the prelates, either wishful to promote their sons or willing to lodge Church discipline in clerical hands, appointed clergymen to be chancellors. The doctors took umbrage at this, petitioned King Charles I in 1625, and obtained from him an order to remove the intruding officials and to substitute qualified civilians.
Another interesting point arises at James’s accession. In the hurry of his first parliament the Act of Mary which repealed the 1 Edw. VI. c. 2, by which the conge d’eslire and the independent jurisdiction of the bishops were abolished, was itself repealed; and the lawyers, or some of them, held that the Edwardian law was revived, that the whole episcopate was intrusive, and the whole of the Church courts illegal. This was long in controversy, and it was only in 1637 that the judges finally resolved that the law of Edward, as contravening a law of Henry VIII which had been formally re-enacted, was not revived by the repeal of the Marian statute. If that resolution had not been accepted, the whole existing fabric of the Church must, so far as secular interests were concerned, have fallen to the ground.
But the opening of James I’s reign is important for a third critical question. In 1605 Archbishop Bancroft presented from Convocation a series of articles against the proceedings of the common law judges in issuing prohibitions and claiming the exclusive right to interpret acts of parliament touching the Church. The long argument on this subject, which is to Coke’s Second Institute what Cawdrey’s case is to the Reports, is of considerably greater weight; no doubt there was much to be said on both sides, and the voice of the Convocation of 1605 was in harmony with that of 1559 and 1446, where the claims of the theologians to interpret acts that touched theology were fairly stated; but Coke embellishes the report with words that have an amusing cogency even in the present day; ‘for judges expounding of statutes that concern the ecclesiastical government or proceedings, it belongeth unto the temporal judges, and we think they have been expounded as much to the clergy’s advantage as either the letter or intention of laws would or could allow of: and when they have been expounded to their liking then they could approve of it, but if the exposition be not for their purpose then they will say as now they do that it appertaineth not unto us to determine of them.’ Anyhow the judges agreed that they were the proper interpreters of the acts of parliament; and as the whole liturgy, and indeed the Bible also, might be brought under those terms, there was practically no limit to their assumption of infallibility; for the common law judges could not, like theologians, afford to leave any question unsolved.
Well, Coke was right as to the bishops, as was proved in 1612, when the common lawyers allowed bishops King and Neill to burn two heretics under a common law writ, for which Coke’s authority might be pleaded, although all the earlier legislation against heretical pravity had been abrogated. The invulnerability of the common law which had maintained the High Commission in Cawdrey’s case, now treated the issue of the writ ‘de heretico comburendo’ as a matter of its own, and brought equal shame on theology and jurisprudence. The heretics who were burned were men whom the Puritans did not care to defend; they would have burned them as willingly as they would have done the bishops.
And here let me say by the way, great as the horrors of religious persecution are, they cannot be properly estimated without some consideration of the value set upon human life both at the period in which they occur and at other times: I believe that I could show that all the executions for religious causes in England, by all sides and during all time, are not so many as were the sentences of death passed in one year of the reign of George III for one single sort of crime, the forging of bank-notes.
But I must pass on, leaving the Laudian period altogether out of sight: and indeed it is not, for our purpose, so important as the earlier portion: Laud and Charles were, neither of them, men who were satisfied with such things as the High Commission Court, and the sinking of ecclesiastical discipline in the state administration; but they did not make their way to any better system, and supported that which was to them for the time the only possible system. With the opening of the struggle in 1641 the Court of High Commission fell to the ground, and at the Restoration its abolition was confirmed by the first parliament of Charles II.
During the Elizabethan and Jacobean period the study of church law had not been neglected; for it had shared the benefit of the great historical and antiquarian revival of which Parker was the first leader, to which Spelman belonged, and which reached its climax in Selden and Prynne. Both of these eminent writers studied canon law from antagonistic grounds: Selden regarded it as a philosopher ardent for liberty; Prynne as an enthusiast, who had his own persecution to avenge and the thesis of royal prerogative to defend with all the zeal and learning of a convert. Selden was a real jurist; Prynne an indefatigable searcher of records. But, when at the Restoration the removal of the incubus of the High Commission, and the political education which the Caroline divines had gone through, enabled them to restore the old ecclesiastical jurisdiction with some hope of honest and successful issue, the canonists and civilians showed that life was still in them. The old black-letter Lyndwood was taken down from the shelf, rebound, and annotated. Dr. Sharrock in 1664 abridged the Provincial for the use of students, and in 1679 the Oxford edition, which rapidly displaced the black-letter, was published with all Lyndwood’s commentaries and Ayton’s work on the Constitutions. The study of the civil law needed no revival; it had been kept up by the antiquaries and admiralty in the worst times; and, in the Universities, the faculty fellowships secured at least a languid succession of law degrees. The D. C. L. of Oxford too had achieved the dignity which now belongs to the honorary degrees at Commemoration; and in 1649, at what Antony Wood calls the Fairfaxian Creation, both Fairfax and Cromwell were made doctors of the civil law. According to Wood, in 1659 Nicolas Staughton, of Exeter College, was admitted doctor both of civil and canon law; and it is not impossible that there were other attempts to revive the canon law doctorate as an adjunct to the degree in civil law. Cambridge had always retained the shadow of the double degree, for the Leges or LL. to which she admits her doctors are a possible survival of the ‘Utrumque Jus’ of the old University system; and in 1669, Richard Pearson, brother of Bishop Pearson the commentator on the Creed, claimed to be admitted in distinct terms to both faculties. The Archbishop of Canterbury also, under the Dispensation Act, has the unquestioned right to make a doctor of canon law, although I am not sure that it has ever been exercised. But at Oxford the designation of the degree had latterly come to be restricted to civil law; and when in 1715, or thereabouts, Mr. Charles Browne of Balliol College applied to the Vice-Chancellor, Dr. Gardiner, for leave to proceed as bachelor and doctor of the canon law, he was told that he could not be prevented from doing so if he wished it, but that it would give the University a great deal of trouble; and the poor man died before he achieved the object of his ambition.
These notes are, however, of little importance, except as illustrating the revival of the ancient study, and the attention which the ecclesiastical questions of the day were calling to ancient practice. In point of fact, the whole of the second and last act of the Stewart dynasty was full of ecclesiastical questionings and excitements, which, though they did not directly touch our subject, stimulated the studies most closely connected with it. The struggle under James II, the position of the Nonjurors, the relation of Convocation to Parliament, the Whistonian and Bangorian controversies, all drew in lively partisans to the investigation of legal and ecclesiastical problems. The names of Hody, Kennet, Atterbury, Wake, and Gibson, all leading Oxford men, and men of deep research and minute if not accurate reading, are conspicuous in this regard; and, as for constitutional purposes it may be said that the very dust of their writings is gold, it would be ungrateful indeed to speak of their earnestness in the main object as misplaced. Gibson stands out more distinctly than any of the others as a great canonist, and his Codex or Collection of English Church Statutes is still the standard work and treasury of all sorts of such lore. There were too Johnson, Wilkins, and many other honest and subordinate workers on the theological as well as on the legal side. But the history of this department of law draws quickly to an end. The Hanoverian policy with regard to the Church and Convocation fell on all politico-ecclesiastical life as a blight. The Nonjurors were left out of the pale of the recognised laity, the common lawyers edged the theologians out of the court of delegates, the Convocations were silenced, and the bishops, almost as much as in Elizabeth’s time, made their position in the House of Lords the fulcrum of all the force they ventured to exercise. Except for testamentary causes, and rare occasions of matrimonial and slanderous causes, the Church jurisdiction ceased to exist, and so continued dormant until in our times, in 1849 and in 1850, the Gorham case roused the attention of both lawyers and clergymen to the fact that without knowing it they had let the centre of ecclesiastical gravity become seriously misplaced. Into this region of discussion, for many reasons, I must not attempt now to make my way.
A few years after the Gorham controversy, a change or series of changes set in from another quarter: the matrimonial jurisdiction was remodelled when the facilities for divorce were increased, and the whole testamentary jurisdiction was withdrawn from the nominal superintendence of the archbishops. The Courts, the profits and privileges of which had so long maintained the close corporation of Doctors’ Commons, and had caused the study of canon law in some at least of its branches to be languidly pursued, were radically and fundamentally changed; and, although it was difficult at once to improvise new forms and rules of procedure to take the place of the ancient forms and those which had grown out of them, these forms also were doomed. In the still more recent remodelling of the whole judicial system further changes have forced themselves in; and where the lawyers could find it their policy to acquiesce in the consolidation of the common law and chancery, they could without the slightest reluctance throw the ecclesiastical and admiralty law into the same cauldron. Out of that cauldron arises a new supreme judicature, which requires, every two or three years, to be amended and strengthened. It is supposed that thereby justice is quickened and law made so cheap, that any man, poor or rich, may ruin himself with a light heart. It yet remains to be seen whether this amended system, easier and less intricate than the old, supplies as good material for training or provides as sound schools of lawyers. It is no doubt philosophically more capable of perfection. The lore of Coke and Selden, like the lore of Eldon and Stowell, is for the present at a discount. Of course looking on all this with a historical eye, one is apt to be a little disconsolate; but time will avenge them, and the neo-legal jurisprudence will soon have an array of reports and decisions that will outweigh, physically at least, the Year-books and Institutes. As for the ecclesiastical law, which by its very nature, if it loses continuity, loses identity, in the present changing aspect of the world’s politics, I for my part do not intend to prophesy. No one can investigate the letter and working of the canon law without being struck by the marvellous mixture of lofty and eternal principles of right, with arbitrary and disingenuous evasions of obligation: it reads as if the jurists, finding that the Church could not be ruled by the true principles, were determined to rule by special pleadings and artful circumventions. For the future the theologians must look to the true principles, and let the canonists and civilians pass with their evasions and circumventions into the twilight of archæology. Whether that will be so or not, or how soon, we may some of us live to see.
[1 ]This essay is taken from “Lectures on the Study of Mediæval and Modern History,” 1887, pp. 335-381 (Oxford, Clarendon Press). These two lectures were delivered on April 19 and 20, 1882.
[2 ]1825-1901. A. B., Christ Church College, Oxford; Fellow of Trinity College, 1847; Regius Professor of History at Oxford, 1866; Curator of the Bodleian Library, 1869; Canon of St. Paul’s, 1879; Bishop of Chester, 1884; Bishop of Oxford, 1889.
[1 ]Joh. Salisb. i. 196, epist. 138.