Cambridge Studies in English Legal History Roman Canon Law in Reformation England
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CAMBRIDGE STUDIES IN ENGLISH LEGAL HISTORY ROMAN CANON LAW IN REFORMATION ENGLAND In this book one of the world's foremost legal historians draws upon the evidence of the canon law, court records and the English common-law system to demonstrate the extent to which, contrary to received wisdom, Roman canon law survived in England after the upheavals of the Protestant Reformation. R. H. Helmholz provides an extensive examination of the manuscript records of the ecclesiastical courts and professional literature of the English civilians. Rebutting the views of Maitland and others, he shows how the lawyers in English ecclesiastical courts continued to look to the writers of the Continent for guidance and authority in administering the system of justice they had inherited from the Middle Ages. Intellectual links between England and the Continent are shown to have survived the Reformation and the abolition of papal jurisdiction. The extent to which papal material was still used in England during the sixteenth and seventeenth centuries will interest all readers and surprise many. Clearly and elegantly written, this book is both a companion to and development of Maitland's celebrated Roman Canon Law in Medieval England. It will be of great interest not only to legal and ecclesiastical specialists but to any reader seeking a wider understanding of the consti- tutional and intellectual context in which the English Reformation developed. R. H. HELMHOLZ is Ruth Wyatt Rosenson Professor of Law at the University of Chicago. His previous publications include Marriage Litigation in Medieval England, also published (1975) in Cambridge Studies in English Legal History. CAMBRIDGE STUDIES IN ENGLISH LEGAL HISTORY Edited by J. H. BAKER Fellow ofSt Catharine's College, Cambridge The Law of Treason in England in the Later Middle Ages J. G. BELLAMY Marriage Litigation in Medieval England R. H. HELMHOLZ The Common Lawyers of Pre-Reformation England Thomas Kebell: A Case Study E. W.IVES William Sheppard, Cromwell's Law Reformer NANCYL.MATTHEWS The English Judiciary in the Age of Glanvill and Bracton, c.1176-1239 RALPH V. TURNER Pettyfoggers and Vipers of the Commonwealth: The 'Lower Branch' of the Legal Profession in Early Modern England C. W. BROOKS Sir William Scott, Lord Stowell HENRY J. BOURGUIGNON Sir Henry Maine: A Study in Victorian Jurisprudence R. C. J. COCKS ROMAN CANON LAW IN REFORMATION ENGLAND R. H. HELMHOLZ Ruth Wyatt Rosenson Professor in the University of Chicago CAMBRIDGE UNIVERSITY PRESS PUBLISHED BY THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE The Pitt Building, Trumpington Street, Cambridge, United Kingdom CAMBRIDGE UNIVERSITY PRESS The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcon 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org © Cambridge University Press 1990 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 1990 Reprinted 1994 First paperback edition 2004 A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication data Helmholz, R. H. Roman canon law in Reformation England / by R. H. Helmholz. Expanded and revised version of the Maitland lectures, delivered in Cambridge during the Lent term of 1987 - Pref. Includes index. 1. Ecclesiastical law - Great Britain - History. 2. Canon law - History. I. Title. KD8605.H45 1990 262.9'0942'09031-dc20 89-35785 CIP ISBN 0 521381916 hardback ISBN 0 52152605 1 paperback Transferred to digital printing 2004 CONTENTS rrejace page vn List of abbreviations X Table of statutes xiii Table of cases xvi THE MEDIEVAL INHERITANCE 1 English ecclesiastical law and the papal law books 4 Canon law and medieval English common law 20 THE FORTUNES OF ECCLESIASTICAL JURISDICTION 28 The early Tudor years 30 The middle years of the sixteenth century 34 The reigns of Elizabeth and James I 41 DEVELOPMENTS IN LAW AND LEGAL PRACTICE 55 Defamation 56 Marriage and divorce 69 Testaments and probate 79 Tithes 89 Ex officio proceedings 104 Conclusions 119 THE LITERATURE OF CIVILIAN PRACTICE 121 Proctors' books 124 Advocates' treatises 131 Ecclesiastical reports 137 Opinions of counsel 142 General characteristics of civilian literature 144 Sources of knowledge of Roman canon law 149 Conclusion 154 vi Contents 5 THE CIVILIANS AND ENGLISH COMMON LAW 158 Civilians and English statutes 159 Civilians and the common law courts 171 Conclusion 194 Appendix 1: Manuscript copies ofClerke's Praxis 196 Appendix 2: Ecclesiastical reports, 1580-1640 198 Index 200 PREFACE The pages which follow attempt to describe the history of the canon law and the ecclesiastical courts in England during the era of the Reformation. That 'era' is here taken in an extended sense, as embrac- ing the reigns of all the Tudor monarchs together with that of James I, or from 1485 to 1625. This choice of dates was dictated in the first instance by a desire to tell a fuller story than would be possible by concentrating simply on the years when ties between England and the papacy were cut, and also by a belief that the causes and consequences of constitutional change would be more fairly seen over the course of a longer period. Luckily, later research justified the choice. The evi- dence shows that this part of the history of ecclesiastical jurisdiction in England cannot be adequately described by concentrating on a few years or upon a single event. Behind the description found in these pages lies a continuing investigation of the records of the ecclesiastical courts. By the six- teenth century these records survive in great profusion for virtually every English diocese and archdeaconry. I doubt that anyone can do more than sample this vast store. Certainly that is all I have done. The book is also based, however, on a preliminary examination of another kind of legal literature. It consists of a surprisingly large number of manuscript works written for and used in actual practice by the English civilians, the advocates and proctors who staffed the spiritual tribunals. This 'working literature', described in Chapter 4, permits a more complete look at the substance of the law enforced in the ecclesiastical courts than that afforded by the records alone. It has provided the most surprises and has changed my way of thinking about the legal history of the period in several ways. This book is an expanded and revised version of the Maitland Lectures, delivered in Cambridge during the Lent term of 1987. The title of Maitland's famous work, Roman Canon Law in the Church of viii Preface England, was the obvious source of my own. Probably this was presumptuous on my part, and my original intention was to change the title when I came to commit my findings to print. However, working further on the subject made the title seem all but inevitable. For one thing, it was Maitland who established that the study of the canon law was an essential part of English legal history. It was he who most trenchantly raised many of the themes touched upon by my research. Though I have diverged from his steps in several places, it is his path that I have followed and attempted to enlarge. Also, and probably more important, this book deals primarily with the subject best expressed by his title. The history of ecclesiastical jurisdiction during the Reformation era turns out to revolve mostly around the Roman canon law. Its resilience, its vast store of resources, and the pressures put upon it during this era, furnish the central themes of this study. In one further respect, the Lectures and now the book track the path Maitland laid out. In dealing with this then controversial sub- ject, the great historian cautioned, 'Let us, as far as may be, stick to our legal last.'1 I have tried to take Maitland's words as my invariable guide. Much beyond legal history can be made of the ecclesiastical court records. Social, religious, and even economic historians have found them useful. I have none the less stuck to their legal side, and the story told here may well be thought incomplete on that account. On the other hand, it is important that someone deal with the legal issues. The ecclesiastical courts were courts of law. They did not simply enforce the political or religious preferences of the men who happened to hold office within them at any particular time. Concen- tration on legal aspects of their history has costs, but it also provides an essential part of their history. There remains the pleasant task of thanking the many people who have helped me. To the Managers of the Maitland Memorial Fund, and in particular to Professors S. F. C. Milsom and J. H. Baker, I am deeply grateful for the invitation which led to this book. To the Master and Fellows of Trinity College, and especially to its Vice- Master, Professor Gareth Jones, I also owe a debt of gratitude. By electing me a visiting fellow commoner for 1986-7, they made my stay in Cambridge easy and interesting. In doing the research for the book, I enjoyed support provided by the Gerda Henkel Stiftung's stipend honouring Professor Helmut Coing, and also generous grants from 1 Roman Canon Law 90. Preface ix the Guggenheim Memorial Foundation and the Russell Baker fund administered by the University of Chicago Law School. Professors Gerhard Casper, J. H. Baker, Peter Stein and Dr Dorothy Owen read drafts of several chapters of the book, making corrections and sugges- tions that I have incorporated.