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

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