Читать книгу The History of English Law before the Time of Edward I - Frederic William Maitland - Страница 17

CHAPTER V

Roman and Canon Law

Contact of English with Roman and canon law.In any case the restoration of order after the anarchy of Stephen’s [p.88] reign and the accession to the throne of a prince who would treat England as the buttress of a continental empire must have induced a critical period in the history of English law. But we must add that in any case the middle of the twelfth century would have been critical. Even had Harold held his own, had his sons and grandsons succeeded him as peaceful and conservative English kings, their rule must have come into contact with the claims of the cosmopolitan but Roman church, and must have been influenced, if only in the way of repulsion, by the growth of the civil and canon law. Of all the centuries the twelfth is the most legal. In no other age, since the classical days of Roman law, has so large a part of the sum total of intellectual endeavour been devoted to jurisprudence.

Revival of Roman law.We have told above how Irnerius taught at Bologna.¹ Very soon [p.89] a school had formed itself around his successors. The fame of “the four doctors,” Bulgarus, Martinus, Jacobus, Hugo, had gone out into all lands; the works of Placentinus were copied at Peterborough. From every corner of western Europe students flocked to Italy. It was as if a new gospel had been revealed. Before the end of the century complaints were loud that theology was neglected, that the liberal arts were despised, that Seius and Titius had driven Aristotle and Plato from the schools, that men would learn law and nothing but law.² This enthusiasm for the new learning was not soon spent; it was not spent until in the middle of the thirteenth century Accursius had summed up its results in the Glossa Ordinaria and Azo of Bologna had taught Bracton what a law-book should be.

Cosmopolitan claims of Roman law.The keenest minds of the age had set to work on the classical Roman texts and they were inspired by a genuine love of knowledge. Still they were far from regarding their study as mere historical research; indeed for a critical examination of ancient history they were but ill prepared. The Roman law was for them living law. Its claim to live and rule was intimately connected with the continuity [p.90] of the empire. A vast part, if not the whole, of the civilized world owed obedience to the Caesar for the time being. The German Henries and Fredericks were the successors of Augustus and the Antonines; the laws of their ancestors had not been repealed and therefore were in force. Even in those kingdoms in which it was impossible to press the claims of a German prince, the king might theoretically be regarded as holding the place of an emperor. Our own Henry I. was he not Gloriosus Caesar Henricus?³ But, such theories apart, the Roman law demanded reverence, if not obedience, as the due of its own intrinsic merits. It was divinely reasonable.

Growth of canon law.Another body of jurisprudence was coming into being. From humble beginnings the canon law had grown into a mighty system. Already it asserted its right to stand beside or above the civil law. The civil law might be the law of earth, ius soli; here was the law of heaven, ius poli. The time had now come when the Hildebrandine papacy could insist that, subject to small variations, the universal church had a common law. Many men had been endeavouring to [p.91] state that law, but the fame of earlier labourers was eclipsed by that of Gratian.⁴ A monk of Bologna, that city which was the centre of the new secular jurisprudence, he published between the years 1139 and 1142 (the work used to be ascribed to a somewhat later date) a book which he called Concordia discordantium canonum, but which was soon to become for all mankind simply the Decretum Gratiani, or yet more simply the Decretum.⁵ It is a great law-book. The spirit which animated its author was not that of a theologian, not that of an ecclesiastical ruler, but that of a lawyer. One large section of his work is taken up with the discussion of hypothetical cases (causae); he states the various questions of law (quaestiones) that are involved in these cases; he endeavours to answer the questions by sorting and weighing the various “authorities” (to use our English word) which bear upon them. These authorities consist of canons new and old, decretals new and old, including of course the Isidorian forgeries, principles of Roman law, passages from the fathers and the Bible. The Decretum soon became an authoritative text-book and the canonist seldom went behind it. All the same, it never became “enacted law.” The canonist had for it rather that reverence which English lawyers have paid to Coke upon Littleton than that utter submission which is due to every clause of a statute. A sure base had now been found for the new science. Gratian became the master of a school, a school of lawyers well grounded in Roman law, many of them doctors utriusque iuris, who brought to bear upon the Decretum and the subsequent decretals the same methods that they employed upon Code and Digest. Legists and decretists alike looked to Italy for their teachers; but the papal system was even more cosmopolitan than the imperial; the sway of the Roman church was wider than that of the Roman empire. Gratian, Rufinus, Johannes Faventinus, Pillius, Hostiensis—these names we read in English books, to say nothing of those great canonists who attain to the papal throne, of Alexander III. and Innocent III., Gregory IX. and Innocent IV.

The Decretals.Gratian had collected decretals down to the year 1139. But the time had now come when the popes were beginning to pour out decretals for the whole of western Christendom in great abundance. Under Alexander III. and Innocent III. the flow was rapid indeed. [p.93] From time to time compilations of these were made (compilationes antiquae) and Englishmen in Italy took part in this work;⁶ but they were all set aside by a grand collection published by Gregory IX. in 1234. This was an authoritative statute book; all the decretals of a general import that had not been received into it were thereby repealed, and every sentence that it contained was law. It comprised five books. In 1298 Boniface VIII. added to these the “Sext,” the Liber Sextus, a collection of those decretals issued since the Gregorian codification, which were to be in force for the future. Another collection of decretals known as the Clementines (they had proceeded from Clement V.) was added in 1317, and in 1500 the Corpus Iuris Canonici was completed by yet another collection—this had no statutory authority—known as the Extravagants; but by this time canon law had seen its best days. We must yet say a few more words of its vigorous maturity.⁷

The canonical system.It was a wonderful system. The whole of western Europe was subject to the jurisdiction of one tribunal of last resort, the Roman curia. Appeals to it were encouraged by all manner of means, appeals at almost every stage of almost every proceeding.⁸ But the pope was far more than the president of a court of appeal. Very frequently the courts Christian which did justice in England were courts which were acting under his supervision and carrying out his written instructions. A very large part, and by far the most permanently important part, of the ecclesiastical litigation that went on in this country, came before English prelates who were sitting, not as English prelates, not as “judges ordinary,” but as mere delegates [p.94] of the pope commissioned to hear and determine this or that particular case.⁹ When once the supreme pontiff has obtained seisin of a cause, that cause proceeds under his directions. He bids two or three English prelates try it, but he also tells them by what rules they are to try it, he teaches them, corrects them, reproves them, expresses in a fatherly way his surprise at their ignorance of law. Very many of the decretals are mandates issued to these judges delegate, mandates which deal with particular cases. Others are answers to questions of law addressed to the pope by English or other prelates. These mandates and these answers were of importance, not merely to the parties immediately concerned, but to all the faithful, for the canonist would treat as law in other cases the rules that were thus laid down. His science was to a great degree a science of “case law,” and yet not of case law as we now understand it, for the “dicta” rather than the “decisions” of the popes were law; indeed when the decretals were collected, the particular facts of the cases to which they had reference, the species facti, were usually omitted as of no value. The pope enjoyed a power of declaring law to which but wide and vague limits could be set. Each separate church might have its customs, but there was a ius commune, a common law, of the universal church. In the view of the canonist, any special rules of the church of England have hardly a wider scope, hardly a less dependent place, than have the customs of Kent or the by-laws of London in the eye of the English lawyer.¹⁰ During the time with which we are now dealing, the twelfth and thirteenth centuries, no English canonist attempts to write down the law of the English church, for the English church has very little law save the law of the church Catholic and Roman. When in the next century John de Athona wrote a commentary on the constitutions made by certain papal legates in England, he treated them as part and parcel [p.95] of a system which was only English because it was universal, and brought to bear upon them the expositions of the great foreign doctors, Hostiensis, Durandus and the rest. On the other hand, a large portion of this universal system was in one sense specifically English. England seems to have supplied the Roman curia with an amount of litigation far larger than that which the mere size or wealth of our country would have led us to expect. Open the Gregorian collection where we will, we see the pope declaring law for English cases. The title De filiis presbyterorum ordinandis vel non has eighteen chapters; nine of these are addressed to English prelates. The title De iure patronatus has thirty-one chapters and at least fifteen of them are in this sense English. But if an English advocate made his way to Rome, he was like to be told by the pope that his doctrine was the product of English beer, and might carry home with him a rescript which would give the English bishops a sound lesson in the law of prescription.¹¹

Relation of canon to Roman law.The relation between the two great systems was in the twelfth century very close. The canon law had borrowed its form, its language, its spirit, and many a maxim from the civil law. Of course, however, it had to deal with many institutions which had never come within the ken of the classical Roman lawyers, or had been treated by them in a manner which the church could not approve. Thus, for example, the law of marriage and divorce, a topic which the church had made her own, had to be rewritten. Some elements which we may call Germanic had made their way into the ecclesiastical system; in penal causes the proof by compurgation was adopted, and, wherever the testamentary executor may come from, he does not come from the Roman law. Still the canonist’s debt to the civilian was heavy; he had borrowed, for instance, the greater part of his law of procedure, and he was ever ready to eke out Gratian by an appeal to Justinian. In Richard I.’s day the monks of Canterbury went to law with the archbishop; a statement of their case has [p.96] come down to us; probably it was drawn up by some Italian; it contains eighty citations of the Decretum, forty of the Digest, thirty of the Code. The works of the classical Roman jurists were ransacked to prove that the archbishop’s projected college of canons would be an injury to his cathedral monastery.¹² In the thirteenth century the canon law began to think that she could shift for herself and to give herself airs of superiority. The bishops of Rome began to discourage a system which had only too much to say about the grandeur of emperors and hardly a word of popes. If they could have had their way, the civil law would have been but the modest handmaid of the canon law.¹³ But in the days of our King Stephen the imperial mother and her papal daughter were fairly good friends. It was hand in hand that they entered England.

Roman and canon law in England.The history of law in England, and even the history of English law, could not but be influenced by them. Their action, however, hardly becomes visible until the middle of the twelfth century is at hand. If the compiler of the Leges Henrici adopts a sentence which can be ultimately traced to the Theodosian Code through epitomes and interpretations, if the compiler of the Leis Williame seems to have heard a few Roman maxims, all this belongs to the pre-scientific era.¹⁴ If William of Malmesbury, when copying a history of the Roman emperors, introduces into his work a version of the Breviary of Alaric, he is playing the part of the historian, not of the jurist.¹⁵ It is remarkable enough that within a century after Lanfranc’s death, within much less than a century after the death of Irnerius, a well-informed Norman abbot ascribed to them jointly the credit of discovering Justinian’s books at Bologna.¹⁶ The story is untrue, for Lanfranc had left Italy long before Irnerius began to teach; still his name would never have been coupled with that of Irnerius had he known no Roman law. Lanfranc’s pupil Ivo of Chartres, the great canonist, knew much Roman law¹⁷ and becomes [p.97] of importance in English history; it was his legal mind that schemed the concordat between Henry I. and Anselm.¹⁸ More to the point is it that from Burchard of Worms or some other canonist the author of our Leges Henrici had borrowed many a passage while as yet the Decretum Gratiani was unwritten. Yet more to the point, that already in the reign of Rufus, William of St. Calais, Bishop of Durham, when accused of treason in the king’s court, shows that he has the Pseudo-Isidorian doctrines at his fingers’ ends, demands a canonical tribunal, formally pleads an exceptio spolii, appeals to Rome, and even—for so it would seem—brings a book of canon law into court.¹⁹ When Stephen made his ill-advised attack on Roger of Salisbury and the other bishops, once more the exceptio spolii was pleaded, again the demand for a canonical tribunal was urged, and the king himself appealed to the pope.²⁰ The time when Gratian was at work on the Decretum, when the four doctors were flourishing at Bologna, was a time at which the English king had come into violent collision with the prelates of the church, and those prelates were but ill agreed among themselves.

Vacarius.At this time it was that Archbishop Theobald, at the instance perhaps of his clerk Thomas,—Thomas who was himself to be chancellor, archbishop and martyr,—Thomas who had studied law at Bologna and had sat, it may be, at the feet of Gratian²¹—imported from Italy one Vacarius.²² The little that we know of his early life seems to point to Mantua as his home and a short tract on Lombard law has been ascribed to him. It is not unlikely that Theobald [p.98] availed himself of the help of this trained legist in his struggle with Stephen’s brother, Henry Bishop of Winchester, who, to the prejudice of the rights of Canterbury, had obtained the office of papal legate. That Vacarius taught Roman law in England there can be no doubt; a body of students looked up to him as their magister and reverently received his glosses.²³ That he taught in the archbishop’s household, which was full of men who were to become illustrious in church and state, is highly probable. That he also taught at Oxford, where a school was just beginning to form itself, is not so plain, but is asserted by one who ought not to have made a mistake about such a matter.²⁴ That Stephen endeavoured to silence him and to extirpate the books of civil and canon law we are told upon good authority.²⁵ We are told also, and may well believe, that the royal edict was ineffectual. Further, we know that Vacarius wrote a book and have some reason for ascribing this to the year 1149; he wrote it for the use of poor students who could not afford to purchase the Roman texts. That book still exists. It might be described as a condensed version of Justinian’s Code illustrated by large extracts from the Digest.²⁶ It is a thoroughly academic book, as purely academic as would be any lectures on Roman law delivered now-a-days in an English university. In what of it has been printed we can see no practical hints, no allusions to English affairs.²⁷ Besides this, we have from Vacarius a christological pamphlet on the assumption of the manhood, and a little tract on the law of marriage in which he appears as an acute critic of the mischievous doctrine which the canonists and divines were evolving.²⁸ Unless he had a namesake, [p.99] he spent the rest of a long life in England, held some preferment in the northern province, was attached to Becket’s rival, Archbishop Roger of York, and acted as Roger’s compurgator when a charge of complicity in the murder of St. Thomas was to be disproved.²⁹ We do not know that he took any part in the controversy between Henry and Becket; if he did, we must look for him rather among the king’s than among the archbishop’s legal advisers. Perhaps he lived until 1198 or 1200;³⁰ if so, he must have been a very young man when Theobald fetched him from Italy.³¹

Legists and canonists in England.From Stephen’s reign onwards, the proofs that Roman and canon law are being studied in England become more frequent. The letters of Archbishop Theobald’s secretary, John of Salisbury, the foremost scholar of the age, are full of allusions to both laws; many of these occur in relation to English ecclesiastical law-suits of which John is forwarding reports to the pope. In his Polycraticus he has given a sketch of civil procedure which drew high praise from Savigny.³² The epistles ascribed to Peter of Blois, archdeacon of Bath and of London, are stuffed with juristic conceits. Giraldus Cambrensis is by way of lamenting that literature is being obliterated by law, while students of jurisprudence neglect its elements.³³ Maxims out of the Institutes or the Digest become part of the stock in trade of [p.100] the polite letter writer, the moralist, and the historian. Manuscripts are being copied. Abbot Benedict of Peterborough has in his monastery the whole Corpus Iuris Civilis in two volumes, besides various parts of it, the Summa of Placentinus and the Summa—this, it is said, may be the work of a Norman or an Englishman—that is known as Olim; he has also the Decretum, a collection of Decretals and the canonical text-books of Rufinus and Johannes Faventinus.³⁴ Thomas of Marlborough, who became monk, prior, Abbot at Evesham, had taught law at Oxford and, for so it would seem, at Exeter, and he brought with him to his monastery a collection of books utriusque iuris.³⁵ It is plain that a flourishing school of Roman and canon law had grown up at Oxford.³⁶

Scientific work in England.But the Italians had been first in the field and easily maintained their preeminence. During the rest of the middle ages hardly a man acquires the highest fame as legist or decretist who is not Italian, if not by birth, at least by education. The second place must be conceded to the French universities; in particular to the school of Orleans. There are some signs of original work in England. The scholars of Vacarius glossed his glosses. Some manuals of procedure have been preserved which good critics have ascribed to the England or the Normandy of the twelfth century.³⁷ Of these the most interesting to us is one which has been attributed to no less a man than William Longchamp. A clerk of Norman race, he became for some years, as all know, King Richard’s viceroy and the true ruler of England. Even after his fall he was still the king’s chancellor.³⁸ Another lawyer who for a while controls the destiny of our land is Cardinal Guala Bicchieri,³⁹ but it were needless to say that he was no Englishman. Probably that one of our countrymen who gains most fame in the cosmopolitan study is Ricardus [p.101] Anglicus.⁴⁰ He has been somewhat hastily identified with Richard le Poore, who became Dean of Salisbury, Bishop of Chichester, of Salisbury, of Durham.⁴¹ In the next century the most prominent name is that of William of Drogheda, who taught at Oxford and wrote a Summa Aurea.⁴² But the Roman Catholicism—we need no better term—of the canon law made against the development of national schools. All the great cases, the causes célèbres, went to Rome, and the English litigant, if prudent and wealthy, secured the services of the best Italian advocates. In their dispute with the archbishop, the monks of Canterbury retain the illustrious Pillius and the illustrious Ugolino, who will be Gregory IX.⁴³ Thomas of Marlborough, prior of Evesham, despite his having taught law at Oxford, attended the lectures of Azo, “master of all the masters of law,” before he trusted himself to plead the cause of his abbey at the threshold of the Apostles.⁴⁴ It was not from any English civilian but from Azo himself that our Bracton borrowed. Henry III. kept in his pay Henry of Susa, [p.102] who was going to be cardinal Bishop of Ostia, and who, for all men who read the law of the church, will be simply Hostiensis.⁴⁵ Edward I. had Franciscus Accursii at his side.⁴⁶ The great “prizes of the profession” were beyond the reach of the Englishman; “the leaders of the profession” whose books, he had to read, whose opinions he had to quote, were Italians.

The civilian in England finds little to do.As to Roman law, it led to nothing. For a while in their enthusiasm men might be content to study for its own sake this record of human wisdom, of almost superhuman wisdom, so it must have seemed to them. But it soon became plain that in England there would be no court administering Roman law, unless it were the court of a learned university. And then, as already said, the church, or at any rate a powerful party in the English church, began to look askance at the civilian. Theology was to be protected against law. Beneficed clerks were no longer to study the secular jurisprudence. In the year 1219 Honorius III. forbad that the civil law should be taught in the university of Paris,⁴⁷ and when we read how in 1234 our Henry III. ordained that the leges should no longer be taught in the London schools—probably this refers to the schools of St. Paul’s Cathedral—it is by no means certain that we ought not to connect this with a movement in favour of ecclesiastical reform, rather than with that “Nolumus leges Angliae mutare” which the barons were about to utter.⁴⁸ Matthew Paris has handed down to us what purports to be the text of a papal bull which goes much further.⁴⁹ Innocent [p.103] IV., perhaps the greatest lawyer among all the popes, is supposed to decree in the year 1254 that in France, England, Scotland, Wales and Hungary—in short almost everywhere save in Italy and Germany—the imperial laws shall not be read, unless the kings of those countries will have it otherwise. In those countries, he is made to say, the causes of the laity are decided, not by the imperial laws, but by customs, while for ecclesiastical causes the constitutions of the holy fathers will suffice. Strong reasons have been shown for the condemnation of this would-be bull as a forgery, or as the manifesto of English divines who will make believe that the pope has done what he ought to do.⁵⁰ Genuine or spurious, it is an instructive document, for it tells us that in England the civilian is between two fires. The best churchmen do not love him; ecclesiastical reformers are coming to the aid of national conservatism. This did not destroy the study of the Roman books. Oxford and Cambridge gave degrees as well in the civil as in the canon law.⁵¹ The one considerable work produced by an English canonist of the fourteenth century, the gloss of John de Athona on the legatine constitutions, is full of references to Code and Digest. But the civilian, if he was not a canonist, had no wide field open to him in England. He might become a diplomatist; there was always a call in the royal chancery for a few men who would be ready to draw up treaties and state-papers touching international affairs, and to meet foreign lawyers on their own ground. Nor must it be forgotten that so long as the English king was endeavouring to govern Guienne from Westminster, he was obliged to keep in his employ men who could write fluently about such romanesque institutions as emphyteusis, “active and passive testamenti factio” and the like,⁵² for Guienne was in theory a country of the written law. But except as a diplomatist, a chancery clerk, or a teacher, the civilian would find little to do in England. The court of admiralty, the courts of the universities, even [p.104] when they had come into existence, could not provide employment for many practitioners.

The history of Roman and canon law as studied and administered in England deserves to be written at length. We have said of it but enough to serve our immediate purpose; for we have now to note in the first place that a large tract in the field of law was made over to the ecclesiastical courts and their canonical jurisprudence, and secondly that this canonical jurisprudence affected the development of our English temporal law.

The province of ecclesiastical law.The demarcation of the true province of ecclesiastical law was no easy task; it was not to be accomplished in England, in France, in Germany, without prolonged struggles.⁵³ The Conqueror, when he ordained that “the episcopal laws” were not to be administered as of old in the hundred courts, left many questions open. During the first half of the twelfth century the claims of the church were growing, and the duty of asserting them passed into the hands of men who were not mere theologians but expert lawyers. Then, as all know, came the quarrel between Henry and Becket. In the Constitutions of Clarendon (1164) the king offered to the prelates a written treaty, a treaty which, so he said, embodied the “customs” of his ancestors, more especially of his grandfather. Becket, after some hesitation, rejected the constitutions. The dispute waxed hot; certain of the customs were condemned by the pope. The murder followed, and then Henry was compelled to renounce, though in carefully guarded terms, all his innovations.⁵⁴ But his own assertion all along had been that he was no innovator; and though the honours and dishonours of the famous contest may be divided, the king was left in possession of the greater part of the field of battle. At two points he had been beaten:—the clerk suspected of felony could not be sentenced by, though he might be accused before, a lay court; appeals to Rome could not be prohibited, though in practice the king could, when he chose, do much to impede them. Elsewhere Henry had maintained his ground, and from his time onwards the lay courts, rather than the spiritual, are the aggressors and the victors in almost every [p.105] contest. About many particulars we shall have to speak in other parts of our work; here we may take a brief survey of the province, the large province, which the courts Christian retain as their own.

The church claims cognizance of a cause for one of two reasons:—either because the matter in dispute is of an ecclesiastical or spiritual kind, or because the persons concerned in it, or some of them, are specially subject to the ecclesiastical jurisdiction.⁵⁵

Matters of ecclesiastical economy.I. (a) In the first place, she claims an exclusive cognizance of all affairs that can fairly be called matters of ecclesiastical economy, the whole law of ecclesiastical status, the ordination and degradation of clerks, the consecration of bishops, all purely spiritual functions such as the celebration of divine service, also the regulation of ecclesiastical corporations and the internal administration of their revenues. In this region the one limit set to her claims is the principle asserted by the state that the rights of the patrons (advocati) of churches are temporal rights, that the advowson (advocatio ecclesiae) is temporal property.⁵⁶ To start with, the majority of churches had been owned by the landowners who built them.⁵⁷ The spiritual power had succeeded in enforcing the rule that the “institution” of the clerk lies with the bishop; the choice of the clerk still lay with the landowner. Henry II. maintained, Becket controverted, Alexander condemned this principle; but, despite papal condemnation, it seems to have been steadily upheld by the king’s court, which prohibited the courts Christian from interfering with the right of patronage;⁵⁸ and very soon we may find two prelates in litigation about an advowson before the royal justices.⁵⁹ In this instance the clergy seem to have given way somewhat easily;⁶⁰ both parties were at one in treating the advowson as a profitable, vendible right. Henry’s victory at this point was of the utmost importance in after ages. It distinguishes England from other countries, and provides a base for anti-papal statutes.⁶¹ As regards other matters falling under the present head there was little debate; but it behoves us to notice that our temporal lawyers were thus excluded from some fruitful fields of jurisprudence. The growth of our law of corporations is slow, because our courts have nothing to do with the internal affairs of convents and chapters—the only institutions, that is, which seem to require treatment as fictitious persons; and we might have come by a law of trusts sooner than we did, if the justices had been bound to deal with the administration of revenues given to prelates or convents as a provision for particular purposes, such as the relief of the [p.106] poor or the maintenance of fabrics.⁶²

Church property. (b) The ecclesiastical tribunals would much like to claim the decision of all causes which in any way concern those lands that have been given to a church, at all events if given by way of “alms.” Henry himself was willing to make what may seem to us a large concession at this point. If both parties agreed that the land had been given in alms, litigation about it was to proceed in the ecclesiastical forum; if they did not agree, then the preliminary question, which would decide where the case should be tried, was to be settled by the verdict of a jury. Here he was successful and much more than successful. The courts of his successors insisted on their exclusive right to adjudge all questions relating to the possession or ownership of land, albeit given in alms; the spiritual judges could in this province do no more than excommunicate for sacrilege one who invaded soil that had been devoted to God in the strictest sense by being consecrated.⁶³

Ecclesiastical dues. (c) The courts Christian claimed the exaction of spiritual dues, tithes, mortuaries, oblations, pensions. The justice of the claim was not contested, but it was limited by the rule that a question about the title to the advowson is for the lay court. From century to century there was a border warfare over tithes between the two sets of lawyers, and from time to time some curious compromises were framed.⁶⁴

Matrimonial causes. (d) More important is it for us to notice that the church claims marriage, divorce, and consequently legitimacy, as themes of ecclesiastical jurisdiction. This claim was not disputed by Henry II. or his successors. However, the church in the twelfth century became definitely committed to the doctrine that children who were born out of wedlock are legitimated by the marriage of their parents.⁶⁵ As [p.107] regards the inheritance of land, a matter which lay outside the spiritual sphere, the king’s courts would not accept this rule.⁶⁶ The clergy endeavoured to persuade the lay power to bring its law into harmony with the law of the church, and then in the year 1236, as all know, the barons replied with one voice that they would not change the law of England.⁶⁷ Thenceforward the king’s justices assumed the right to send to a jury the question whether a person was born before or after the marriage of his parents, and it might well fall out that a man legitimate enough to be ordained or (it may be) to succeed to the chattels of his father, would be a bastard incapable of inheriting land either from father or from mother. But except when this particular question about the retroactive force of marriage arose, it was for the ecclesiastical court to decide the question of legitimacy, and, if this arose incidentally in the course of a temporal suit, it was sent for trial to the bishop and concluded by his certificate.⁶⁸

Testamentary causes. (e) Yet more important to us at the present day was another claim of the church, which has had the effect of splitting our English law of property into two halves. She claimed as her own the testament, that “last will” of a dead man which was intimately connected with his last confession. She claimed not merely to pronounce on the validity of wills, but also to interpret them, and also to regulate the doings of her creature the testamentary executor, whom she succeeded in placing alongside of the English heir. In the course of the thirteenth century the executor gradually becomes a prominent figure in the king’s courts; he there sues the testator’s debtors and is sued by his creditors; but the legatees who claim under the will must seek their remedies in the courts of the church. In this instance the common lawyers seem to have suffered the canonists to gradually enlarge a territory which was to be very valuable in the future. As a general rule, land could not be given by testament, and our king’s court was concentrating its attention on land and crime. Meanwhile the church extends her boundaries,⁶⁹ and at last succeeds [p.108] in compassing the whole law of succession to movables ab intestato. The process whereby this was accomplished is very obscure; we shall speak of it upon another occasion; but here we may say that a notion prevailed that intestacy, if it be not exactly a sin,⁷⁰ is often God’s judgment on sin, for so closely is the last will connected with the last confession, that to die intestate is to die unconfessed.⁷¹ And so “the law of personal property” falls apart from “the law of real property” and we at this day are suffering the consequences.

Pledge of faith. (f) With great difficulty were the courts Christian prevented from appropriating a vast region in the province of contract. They claimed to enforce—at the very least by spiritual censures—all promises made by oath, or by “pledge of faith.” The man who pledges his faith, pawns his Christianity, puts his hopes of salvation in the hand of another.⁷² Henry II. asserted his jurisdiction over such cases; Becket claimed at least a concurrent jurisdiction for the church. Henry was victorious. From his day onwards the royal court was always ready to prohibit ecclesiastical judges from entertaining a charge of breach of faith, unless indeed both parties to the contract were clerks, or unless the subject-matter of the promise was something that lay outside the jurisdiction of the temporal forum.⁷³ All the same, there can be no doubt that during the whole of the next century the courts Christian were busy with breaches of faith. Very often a contractor expressly placed himself under their power and renounced all right to a prohibition. Such a renunciation was not fully effectual, for the right to issue the prohibition was the right of the king, not of the contractor; still, as Bracton explains, [p.109] a man commits an enormous sin by seeking a prohibition when he has promised not to seek one and may very properly be sent to prison.⁷⁴ In practice ecclesiastical judges were quite willing to run the risk of being prohibited; indeed the law of the church compelled them to take this hazard. A certain jurisdiction over marriage settlements of money or movable goods, the church had as part of its jurisdiction over marriage.⁷⁵

Correction of sinners. (g) There remains the indefinitely wide claim to correct the sinner for his soul’s health, to set him some corporeal penance. The temporal courts put a limit to this claim by asserting that, if the sin be also an offence which they can punish, the spiritual judges are not to meddle with it. There are some few exceptions; the bodies of the clergy are doubly protected; you may be put to penance for laying violent hands upon a clerk besides being imprisoned for the breach of the peace and having to pay damages for the trespass.⁷⁶ But, even though this rule be maintained, much may be done for the correction of sinners. The whole province of sexual morality is annexed by the church; she punishes fornication, adultery, incest; and these offences are not punished by the king’s court, though the old local courts are still exacting legerwites and childwites, fines for fornication. So also the province of defamation is made over to the spiritual jurisdiction, for, though the local courts entertain actions for slander and libel, the king’s court, for some reason or another, has no punishment for the defamer, no relief for the defamed.⁷⁷ Usury is treated as a mere sin while the usurer is living; but if he dies in his sin, the king seizes his goods.⁷⁸ Simony naturally belongs to the church courts; perjury, not always well distinguished from the breach of a promissory oath, would come before them upon many occasions, though with perjured jurors the royal court could deal. Of heresy we need as yet say nothing, for England had hardly been troubled by heretics. No doubt the church courts were quite prepared to deal with heresy should it raise its head, and had they called upon the state to burn or otherwise punish the heretic, [p.110] it is not likely that they would have called in vain.⁷⁹

Jurisdiction over clerks.II. (a) But the church had opened a second parallel. She claimed cognizance of all personal causes, criminal or civil, in which a clerk was the accused or the defendant. The story of “the benefit of clergy” we shall tell elsewhere. On the whole, save in one particular, the state had its way. The clerk accused of felony was to be tried in the ecclesiastical court and was to suffer no other punishment than that which the ecclesiastical court could inflict; it could inflict lifelong imprisonment. But whatever may have been the case in the twelfth century, the clerk of the thirteenth can be tried and punished for all his minor offences as though he were a layman. Then again, in Bracton’s day the clerk has no privilege when he is defendant in a civil action, though in the past clerks have been allowed to sue each other for debts and the like in court Christian.⁸⁰ It should be well understood that “the benefit of clergy” as allowed by English law was but a small part of that general immunity from lay justice which was claimed for the ordained by canonists in England as well as elsewhere.⁸¹

Miserabiles personae. (b) On the continent of Europe the church often claimed as her own the suits of the miserabiles personae, as they were called, of widows and orphans.⁸² Of any such claim we hear little or nothing in England, though some tradition of it may affect the later history of the Court of Chancery. In England it is the king who sets feudal rules aside in order that summary justice may be done to the widow.⁸³

The sphere of canon law.Large then is the province of ecclesiastical law; but it might have been much larger. Despite the many advantages that Henry II. gave to his antagonists by his rages and his furies, he handed down to his successors a larger field of purely temporal justice than was [p.111] to be found elsewhere.⁸⁴ Even in Normandy Richard had to consign to the ecclesiastical forum all questions about broken oath or broken faith.⁸⁵ But we are here concerned with the fact that from the middle of the twelfth century onwards a very large mass of litigation, of litigation too which in no very strict sense can be called ecclesiastical, was handed over to tribunals which administered the canon law, tribunals which were often constituted by a papal rescript, and from which there lay an appeal to the Roman curia.

Influence of canon upon English law.The canon law begins to affect our temporal law sometimes by way of repulsion, sometimes by way of attraction. It is in opposition to “the canons and Roman laws”⁸⁶ that (if we may so speak) our English law becomes conscious of its own existence. In the Constitutions of Clarendon we have our first authoritative redaction of hitherto unwritten customs. If our consuetudines are to prevail against the leges and canones, they must be accurately formulated and set in writing. The “Nolumus leges Angliae mutare” of 1236 is no announcement of a purely abstract conservatism; our English rule is to be maintained in opposition to the canons. Repulsion begets emulation. Glanvill will have it that the English laws, at least those made by the king with the counsel of his barons, are leges, just as much leges as any that are studied at Bologna.⁸⁷ But this is not all. In later days, in the fourteenth and fifteenth centuries, the canon law can be administered in England without influencing our common law. The king’s justices, the practitioners in the king’s court, are in all probability profoundly ignorant of the Digest and the Decretals. The learned doctors who practise before the episcopal tribunals are not so ignorant of the temporal law, for it sets limits to their sphere of action; still they would not profess themselves masters of it. But in the twelfth, and even in the thirteenth, century this was not so. Henry’s greatest, his most lasting triumph in the legal field was this, that he made the prelates of the church his justices.⁸⁸ Nothing could be less true than that he quarrelled with the whole mass of bishops and clergy. No doubt his bestowal of the great places of the [p.112] church upon men who had earned, or were to earn, them by fiscal and justiciary labours, has an evil side as well as a good. We are here concerned with its good side. English law was administered by the ablest, the best educated, men in the realm; nor only that, it was administered by the selfsame men who were “the judges ordinary” of the church’s courts, men who were bound to be, at least in some measure, learned in the canon law. At one moment Henry has three bishops for his “archjusticiars.”⁸⁹ The climax is reached in Richard’s reign. We can then see the king’s court as it sits day by day. Often enough it was composed of the Archbishop of Canterbury, two other bishops, two or three archdeacons, two or three ordained clerks who were going to be bishops and but two or three laymen.⁹⁰ The majority of its members might at any time be called upon to hear ecclesiastical causes and learn the lessons in law that were addressed to them in papal rescripts. Blackstone’s picture of a nation divided into two parties, “the bishops and clergy” on the one side contending for their foreign jurisprudence, “the nobility and the laity” on the other side adhering “with equal pertinacity to the old common law” is not true.⁹¹ It is by “popish clergymen” that our English common law is converted from a rude mass of customs into an articulate system, and when the “popish clergymen,” yielding at length to the pope’s commands, no longer sit as the principal justices of the king’s court, the creative age of our medieval law is over. Very characteristic of our thirteenth century is it that when there is talk of legitimation per subsequens matrimonium, the champion of the common law is a canon of St. Paul’s, William Raleigh, who is going to be a bishop and somewhat of a martyr, whose name is to be joined with the names of Anselm and Becket.⁹² These royal clerks have two sides; they are clerks, but they are royal. It would not surprise us to discover that Martin Pateshull, justice of [p.113] the Bench, had prohibited Martin Pateshull, archdeacon of Norfolk, from meddling with lay fee. But as archdeacon he was bound to have a decent acquaintance with the canon law, and as justice he could not forget what he knew as archdeacon. In the second half of Richard’s reign Hubert Walter, the chief justiciar of England, who sat day by day at Westminster, was also the Archbishop of Canterbury. A spiteful tongue has told us that he was no great Latinist, that he could be guilty of “Tres sunt species cautionis, fideiussoriam, iuratoriam, pignoraticiam” and the like;⁹³ still, though we can suppose that this busy primate of England was not deeply read in the Decretum, he must have heard a great deal of Decretum and Code and Digest, even before his prolonged struggle with the Canterbury monks and their Pillius and their Ugolino.

English law administered by ecclesiastics.We attribute to these clerical justices in general no more than a superficial acquaintance with the canon law, an acquaintance with its main principles and with its methods. But this much we must attribute to them, and it means a great deal. Let us conceive a man, whose notion of law and the logic of law is that which is displayed in the Leges Henrici, coming upon a glossed version of the Decretum, or still better upon some Summa such as that attributed to William of Longchamp. His whole conception of what a law-book, what a judgment should be, of how men should state law and argue about law, must undergo a radical change. Viewed therefore from one point, the effect produced on English law by its contact with the romano-canonical learning seems immeasurable, or measurable only by the distance that divides Glanvill’s treatise from the Leges Henrici.

Nature of the canonical influence.Law, it may be said, is one thing and the expression of law another. But we can hardly, even in thought, divorce the matter of law from its form. Old traditional rules must lose their old meaning so soon as men attempt to weave them into a reasonable system. English law, more especially the English law of civil procedure, was rationalized under the influence of the canon law. Here and there we may note a plain case in which the one system has borrowed a [p.114] whole set of rules from the other. Thus Glanvill tells us that the “exceptions,” or as we should say the “challenges,” which can be made against jurors are the same as the exceptions which can be made against witnesses in the courts Christian.⁹⁴ Here a whole chapter of law, which in the hands of the canonists is already becoming a bulky chapter, is borrowed. Such instances, however, are rare, and this instance is typical and instructive. Our English jurors are already very unlike, and are becoming more unlike, the canonical testes; and they will not be made any more like the canonical testes by the application to them of these rules about exceptions or challenges. Another mass of rules is borrowed. The elementary outlines of the science of pleading can only be expressed in terms familiar to civilians and canonists. In any case we must begin by saying that “of exceptions (special pleas) some are dilatory, while others are peremptory.”⁹⁵ But in our lay courts a distinctive form is given to these rules by the mode of trial which prevails there, the trial by jury, and before long the canonist will hardly be able to understand the English lawyer’s doctrine of special pleas. The assize of novel disseisin is suggested by the actio spolii; but it is not the actio spolii. Our English law shows itself strong enough to assimilate foreign ideas and convert them to its own use. Of any wholesale “reception” of Roman law there is no danger. From the day at Clarendon onwards it is plain that we have many consuetudines which must be maintained in the teeth of leges and canones. The king’s justices, more especially those of them who are clerks, become interested in the maintenance of a system that is all their own. From time to time the more learned among them will try to attain a foreign, an Italian, standard of accuracy and elegance; they will borrow terms and definitions, they will occasionally borrow rules; but there must be no dictation from without. The imperial laws as such have no rights in England; the canon law has its proper province and should know its place.