The History of English Law before the Time of Edward I. Frederic William Maitland

between the king and the officers of his exchequer, could impair, or for a while destroy, all such concentration as there was. In the woful days of Stephen, the future of English law looks very uncertain. If English law survives at all, it may break into a hundred local customs, and if it does so, the ultimate triumph of Roman law is assured.⁸⁴

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