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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 2

THE CANON LAW OF THE CHURCH

We have already casually referred to the growth of Church organisation which accompanied the decline of the Roman Empire.1 For a time it seemed as though the Church was the only body which could carry on the ancient tradition of universal law. The sources, both official and unofficial, for ecclesiastical law, grew steadily in quantity and variety and at last proved overwhelming, not only in their bulk but also in the difficulty of assigning to each its proper value and sometimes even of determining its authenticity.

THE EARLY COLLECTIONS

The forces of feudalism had compelled the Church as well as the State to decentralise, and the result was a large mass of local ecclesiastical law. When the worst days were passed and the Church began to reorganise itself on the basis of the papal monarchy, it was a prime necessity to bring some sort of order into ecclesiastical law. In the eleventh century systematic research was undertaken in order to find authorities in canon law which were ancient and universally recognised; libraries were searched, and it has been plausibly suggested that the discovery of the Florentine manuscript of Justinian’s Digest may have been one of the results. Even so, the mass even of admissible material was enormous and its interpretation particularly difficult. A number of scholars attempted to collect the more important texts, to reconcile them with one another, and to unite them in one coherent commentary. One of the more successful of these attempts was that of Ivo of Chartres, whose Decretum appeared about 1095.2 Ivo developed a distinction which assisted considerably in reconciling the discordant mass of material which lay before him. Some rules, in his opinion, were fundamental, and must be preserved at all costs; others were more local, particular, or accidental, and although there might be reasons for their validity in particular cases, they must not be regarded as limitations upon fundamental rules of law. With this sensible notion a great deal could be done, for although it allowed plenty of room to legitimate exceptions, it nevertheless kept its eye firmly fixed upon broad principle.

THE DECRETUM OF GRATIAN

At the same time the study of civil law based upon the newly discovered texts of Justinian was likewise flourishing, and all through the middle ages the canonists and the civilians were at odds. The two systems tended more and more to separate: the civilians looked to antiquity and were often tempted to become mere theorists or antiquaries, while the canonists were more concerned in adapting Roman law with great freedom to contemporary conditions, and in replacing its paganism by a Christian spirit. The civilians, too, were apt to take the side of the Emperor against the Pope. The study of civil law was forbidden to monks in 1180 and to priests in 1219; Henry III in 1234 ordered the sheriffs of London to close the schools of civil law. These measures were ineffective in suppressing the study of civil law, but they succeeded in establishing the right of the canonists to develop their law in accordance with current needs as they understood them, without being bound by ancient authority. The systematisation of canon law was carried still further by the great work of Gratian whose Decretum appeared very soon after 1140. Its general character is admirably expressed by the title which he gave it, “The Concordance of Discordant Canons”. So well did Gratian do his work that his results were accepted as being virtually final, and although his Decretum was unofficial and never received legislative force, yet in practice it was treated with great respect, and indeed has taken an undisputed place as the first portion of the Corpus Juris Canonici. It is also highly significant that just at this moment the famous Peter Lombard was publishing his Sentences which attempted something like the same task for theology; the appearance of these two books, the Decretum and the Sentences, marks the definite separation of canon law from theology.

THE CORPUS JURIS CANONICI

The papacy became increasingly active and a series of great councils added considerably to the body of universal canon law; thus the Third Lateran Council of 1179 established a system of cathedral schools and severely punished usury; the Fourth Lateran Council (1215) forbade clergy to take part in judicial ordeals,1 and passed seventy chapters of reforming canons. The Pope also legislated by means of decretal letters which decided particular law cases and at the same time laid down general rules of law. Many unofficial collections of these Decretals were made, and at length an official compilation was published in 1234 with statutory authority by Gregory IX. The texts in this collection were arranged in five books, and when in 1298 another collection of those Decretals which were issued since 1234 became necessary, it was published as a sixth book and is therefore called The Sext. The last few pages are of interest to common and equity lawyers, for they contain a collection of maxims some of which became well known in the English courts. The Decretum of Gratian, the Decretals of Gregory IX, the Sext, and a few smaller collections, form the Corpus Juris Canonici.1 At the same time there arose a host of commentators, text-book writers and experts on procedure who have left us an immense literature.

THE SPIRIT OF THE CANON LAW

Throughout all this period the canonists were constantly endeavouring to make their system correspond as closely as possible with the ideal of Christian conduct, and to reduce to a minimum the divergence between law and morals.2 A great danger was that—

THE SCOPE OF CANON LAW

Although a great deal of the Church’s law was naturally concerned with its world-wide organisation, the powers and duties of the various ranks of clergy, and the spiritual discipline of churchmen, regular, secular and lay, nevertheless a great deal of it did affect the daily life of the laity in a variety of ways, and in the end exerted profound influence upon the development of national laws. The most important, no doubt, is the law of marriage, which is of fundamental importance in every society. In the law of wills the Church succeeded in greatly simplifying the civil law on the subject, while it also influenced the law of intestate succession. On this latter subject the views of the Church were singularly modern, for she opposed the feudal notions which excluded women from the inheritance of land, and urged that land and chattels should descend along similar lines. As we shall see later, the Church also took up the idea of protecting possession as such, and developed a series of possessory remedies. Although the theory of possession and ownership was no part of the English law of land, yet the canonical idea was easily adapted and a recent disseisin was protected by Henry II’s Assize in the same way as a recent dispossession in canon law. In connection with the theory of possession the Church also modified the Roman law of prescription by insisting that good faith was absolutely necessary not only at the commencement but all through the period upon which the prescription was founded. “The civil law punished the negligence of the owner who did not possess; the canon law reproved the sin of one who sought to prescribe without good faith.”1

In the field of contract the Church’s contribution was most notable, for here again the Christian conception of good faith was employed to great effect. As many of the greatest fairs and their courts were owned by churches, there was ample opportunity to free the law of contract from formalism, and finally the canonists declared, in spite of the Roman maxim ex nudo pacto actio non oritur, that a simple promise was enforceable. It must have needed a great deal of courage to reach this position when against it was all the authority of Roman law and the custom and practice of most of the other systems of secular law.2

ECONOMIC VIEWS OF THE CANONISTS

The Church also attempted—and here she was, for the time being, less successful—to impose her view upon economic life. The attempts to suppress usury are well known; they are in fact part of a general theory of wages and profits which looked with favour upon the products of labour while it regarded as suspect the profits of speculation, banking, and finance. Acting from the same point of view, the Church discountenanced the fluctuations in wages and prices caused by the law of supply and demand, and attempted to maintain fixed standards of value. On the other hand, the liberal and equitable view which the canon lawyers took of contract considerably aided the development of commerce in other directions, for it did not confine contract within the limits of the civil law of a remote age; insurance and the assignability and negotiability of debts are striking examples of matters which the canonists developed on the basis of good faith, but which the civilians refused to touch. Similarly the canonists developed a summary procedure which was widely copied by other systems (defined in the famous decretal Saepe in 1306), and here again the canonists broke with formalism in an earnest attempt to do speedy and substantial justice.1

THE CHURCH AND CRIME

In the field of criminal law the Church also made a notable contribution by insisting that crime should be treated from the point of view of sin, and consequently the theories of the moral theologians concerning the place of intention in sin became part of the law of crime. Mediaeval punishments were frequently cruel, and in many cases capital, but the Church introduced the idea of imprisonment in an endeavour to bring the offender to repentance through solitary contemplation. As part of her criminal procedure she adopted and modified the civilian criminal procedure, and here again a great deal of formalism was abandoned and much was left to the discretion of the judge in examining witnesses and weighing their evidence. Even after the Reformation had struck a seemingly heavy blow at the canon law, its influence was still powerful, for the Bartolists had been glad to embody in their system of civil law a good many ideas drawn from the canonists, and so the Reception was often as much a reception of canon as of civil law.

THE CANONISTS’ CONTRIBUTION

During the middle ages the Church was the one body which exercised universal jurisdiction, and which therefore could act as a bond of union between the divergent forces of the day, and the unity which she achieved has had lasting results upon law. As it has been admirably expressed by Professor Le Bras:

[1]Above, pp. 4-5.

[2]For the sources and literature of both civil and canon law see Hazeltine, Roman and Canon Law in the Middle Ages, in Cambridge Mediaeval History, v. 697-764. For very valuable accounts of their general influence, see Meynial, Roman Law, and Le Bras, Canon Law, both in Crump and Jacob, Legacy of the Middle Ages.

[1]See above, p. 118.

[1]An excellent short introduction is F. Cimetier, Les Sources du droit ecclésiastique (Paris, 1930).

[2]A brief account of the Church’s view of law will be found in Sertillanges, La philosophie des lois (Paris, 1946).

[3]Le Bras, Canon Law (in Crump and Jacob, Legacy of the Middle Ages), 328, 329.

[1]Le Bras, op. cit., 351.

[2]A useful collection of material is available in Spies, Observation des simples conventions en droit canonique (Paris, 1928).

[1]For the text and some comments see Engelmann (ed. Millar), History of Continental Civil Procedure, 495.

[1]Legacy of the Middle Ages, 361.