Seventeen lectures on the study of medieval and modern history and kindred subjects/The History of the Canon Law in England (1)
THE HISTORY OF THE CANON LAW IN ENGLAND.
(April 19, 1882.)
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, hut 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 proceeded 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 Pannoilnia, 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 feint seintillæ 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 count, 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 ill-trained judges and an ill-understood 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 ia 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 doetoratus' 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, yon 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 i172j 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 1330 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 1335 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 annalists, 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 1337; 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 1381, 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 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 utilitabe 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.