Published online by Cambridge University Press: 26 April 2011
Most recent historians have expressed a negative opinion of the quality of legal education at the English universities between 1400 and 1650. The academic study of law at Oxford and Cambridge, they have stated, was easy, antiquated and impractical. The curriculum had not changed from the form it assumed in the thirteenth century, and it did little to prepare students for their careers. This article challenges that opinion by examining the inner nature of the ius commune, the law that was applied in the courts of the church, and also by examining some of the works of practice compiled by English civilians during the period. Those works show that the negative opinion rests in part upon a misunderstanding of the nature of legal practice during earlier centuries. In fact, concentration on the texts of the Roman and canon laws, as old-fashioned as it seems to us, was well suited for the tasks advocates and judges would face once they left the academy. It also provided the stimulus needed for advance in the law of the church itself; their legal education made available to potential advocates and judges skills that would permit a sophisticated application of the ius commune, one better suited to their times. The article provides evidence of how this happened.1
1 This is the text of the Eighth Lyndwood Lecture delivered at the Church of St Lawrence Jewry, Guildhall, London on 23 November 2010 under the auspices of the Ecclesiastical Law Society and the Canon Law Society of Great Britain and Ireland.
2 Stone, L ‘The size and composition of the Oxford student body, 1580–1910’ in Stone, L (ed), The University in Society (Princeton, NJ, 1974)Google Scholar, I, p 3; Allmand, C, ‘The Civil Lawyers’ in Clough, C (ed), Profession, Vocation and Culture in Later Medieval England (Liverpool, 1982), pp 155–180Google Scholar.
3 An English language periodical established in 1981 devoted to the subject has had only one article related to legal education in its thirty year history. That exception was a useful one: Morrissey, T, ‘The Art of Teaching and Learning Law: a late medieval tract,’ (1989) 8 History of Universities 27–74Google Scholar. An up–to–date survey covering the medieval period is provided in Brundage, J, The Medieval Origins of the Legal Profession: canonists, civilians, and courts (Chicago, 2008), pp 219–282CrossRefGoogle Scholar.
4 This is not a peculiarly English problem. Some of the difficulties of the subject are discussed for the medieval period in Belloni, A, ‘L'insegnamento giuridico nelle università Italiane’, in Gargan, L and Limone, O (eds), Luoghi e metodi di insegnamento nell'Italia medioevale (Galatina, 1989), pp 143–152Google Scholar.
7 Hobbins, D, ‘The Schoolman as Public Intellectual,’ (2003) 108 American Historical Review 1308–1337, at p 1313Google Scholar. See also Fletcher, J, ‘Change and resistance to change: a consideration of the development of English and German universities during the sixteenth century,’ (1981) 1 History of Universities 1–36Google Scholar; Maitland, F, Roman Canon Law in the Church of England (London, 1898), pp 97–98Google Scholar, describing the law faculties of Oxford and Cambridge as ‘singularly unproductive of anything that could be called original work’.
8 Rashdall, H, The Universities of Europe in the Middle Ages (Oxford, 1936)Google Scholar, III, p 168.
10 Coing, H, ‘L'ensegnamento del diritto nell'Europa dell'Ancien Régime’ in (1970) 82 Studi Senesi 179–193Google Scholar, at 180.
11 See, eg, Worby, S, Law and Kinship in Thirteenth-century England (London, 2010), pp 28–29Google Scholar.
12 The potential effects of ‘aggression’ by the common lawyers on aspiring students of the civil law are apparent in Scott, E (ed), Letter-Book of Gabriel Harvey, AD 1573–1580 (Camden Society, ns, 33, 1884), p 164Google Scholar.
13 See Braun, A, Giudici e Accademia nell'esperienza inglese (Bologna, 2006), pp 36–39Google Scholar; Curtis, M, Oxford and Cambridge in Transition 1558–1642 (Cambridge, 1959), pp 158–159Google Scholar; Costello, W, The Scholastic Curriculum at Early Seventeenth-century Cambridge (Cambridge, MA, 1958), pp 135–141CrossRefGoogle Scholar; Mullinger, J, A History of the University of Cambridge (London, 1888), pp 106–107Google Scholar.
14 See, eg, Wijffels, A, ‘A seventeenth century English commentary “De regulis iuris” (D. 50.17)’, in Condorelli, O (ed), Panta rei. Studi dedicati a Manlio Bellomo V (Rome, 2004), pp. 473–96Google Scholar.
15 The evidence is summarised by Outhwaite, R, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (Cambridge, 2006), pp 15–22Google Scholar.
16 The following abbreviations to the repositories where the records are now kept have been used:
Borthwick Institute of Historical Research, York
British Library, London
Bodleian Library, Oxford
Cambridge University Library
University of Durham, Palace Green Library
London Metropolitan Archives (records formerly at Guildhall)
Lambeth Palace Library, London
Norfolk and Norwich Record Office, Norwich
Worcestershire Record Office, Worcester
17 The largest collection known to me is that of the lectures of Alberico Gentili in the Bodleian Library; see Simmonds, K, ‘The Gentili manuscripts,’ (1959) 76 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Rom Abt 34–52Google Scholar.
18 See Wijffels, A, ‘Disputations en droit à l'Université de Cambridge sous le règne élisabéthain,’ (2000) 57 Mémoires de la Société pour l'histoire du droit et des institutions des anciens pays bourguignons, comtois et romands 113–130Google Scholar; Baker, J, 750 Years of Law at Cambridge (Cambridge, 1996), pp 6–7Google Scholar.
19 For an overview of medieval literature, see Owen, D, The Medieval Canon Law: teaching, literature and transmission (Cambridge, 1990)Google Scholar.
20 See, eg, Thomas Eden's Notebook (ca 1610), BI, MS Prec Bk 11.
21 Baker, J, Legal Education in London, 1250–1850 (Selden Society Lecture, 2007), p 11Google Scholar.
22 Eg, Lectures on the first book of the Decretals (early 15th century), Bodl, New Coll MS 192.
23 Eg, Lectures of Alberico Gentili (ca 1590), Bodl, D'Orville MS 606, f 4v, citing opinion of Bartolus, and f 10, citing opinion of Panormitanus.
24 Lecture notes of Robert Blemell (17th century), Trinity Hall Library, Cambridge, MS 27, pp 6, 37–40.
25 Eg, Student's Notebook (ca 1600), WORO, 794.093 BA 2470 (Collectanea ‘A’), f 63: ‘Et iste est modus formandi verum libellum’, also including principles and references to commentators. See also Student's Notebook (17th century), BL, Harl MS 3190, f 29, dealing with contents necessary in a libel when the boundary of land from which praedial tithes were due was uncertain.
26 See Gordley, J, ‘Ius quaerens intellectum: the method of the medieval civilians’ in Cairns, J and de Plessis, P (eds), The Creation of the Ius Commune: from casus to regula (Edinburgh, 2010), pp 77–101Google Scholar; Brundage, J, The Medieval Origins of the Legal Profession (Chicago, IL, 2008), pp 249–254CrossRefGoogle Scholar; Michael Stolleis, ‘Corpus iuris civilis par coeur’ in Haferkamp, H and Repgen, T (eds), Usus Modernus Pandectarum: römisches Recht, deutsches Recht und Naturrecht in der frühen Neuzeit (Cologne, 2007), pp 245–269Google Scholar.
27 Archbishop of York c Dean and Chapter of Durham (ca 1580), in Collections of Sir Julius Caesar, BL Lansd MS 135, f 74v, citing C 6.33.3 and Philippus Decius (d 1536 or 1537), Commentaria ad id.
28 Gurling c Gurling (Arches 1597), in Bodl, Tanner MS 427, fols 42–42v, citing X 2.13.13 and Joannes Antonio de Sancto Gregorio (d 1507), Commentaria super quarto decretalium at X 4.19.1.
29 Earl and Countess of Rutland c Alsop (c 1670), All Souls College Library, Oxford, MS 230 (no foliation), citing D 32.1.39(37), and Bartolus, Commentaria ad id, adding also more recent authorities from commentators on the civil law.
30 These sources of were endorsed by the law itself; see D 1.3.32, X 1.2.6, and the commentators thereupon. An example from practice is found in a civilian's notebook, ca 1600, LMA (records formerly at Guildhall), MS 11448, f 41v: ‘By the custome of England a nuncupative will revoketh a written will though the civill texte be otherwise’.
31 BL, Lansd MS 132, f 129: ‘Textus est expressus’, citing D 28.1.20 and rejecting argument that a legatee might serve as a witness to the execution of a last will and testament.
32 A preliminary account of the education of proctors can be found in my ‘The education of English proctors, 1400–1640’ in Bush, J and Wijffels, A (eds), Learning the Law: Teaching and the transmission of law in England 1150–1900 (London and Rio Grande, 1999), pp 191–210Google Scholar.
33 For treatments of the current state of understanding of ths subject, see Wieacker, F, History of Private Law in Europe, Weir, T (trans), (Oxford, 1995), pp 159–167Google Scholar; Eisenhardt, U, Deutsche Rechtsgeschichte (fourth edition, Munich, 2004), pp 171–179Google Scholar; Schioppa, A Padoa, Storia del diritto in Europa: dal medioevo all'età contemporanea (Bologna, 2007), pp 279–281Google Scholar.
34 Lyndwood, W, Provinciale (seu Constitutiones Angliae) (Oxford, 1679), p 347Google Scholar, v crimen, glossing the word crimen to show the possibility of expanding the scope of the English remedy for defamation beyond imputations of crimes commonly prosecuted in the courts. See B Ferme, ‘William Lyndwood and the Provinciale: Canon law in an undivided Western Church’, (1997) 4 Ecc LJ 615–628.
35 For the possibilities, see Schröder, J, Recht als Wissenschaft: Geschichte der juristischen Methode vom Humanismus bis zur historischen Schule (1500–1850) (Munich, 2001), pp 56–74Google Scholar.
36 37 Hen VIII, c 17 (1545).
37 Opinion on the subject was divided among the civilians themselves; see the ‘humble position of the Doctors of the Arches (temp Car II), in Trumbull collection, BL Add MS 24104, f 36, complaining about the appointment of legally unqualified judges to act in the consistory courts.
38 A similar example is nicely described in K Homfray, ‘Sir Edward Coke gets it wrong? A brief history of consecration’, (2009) 11 Ecc LJ 36–50.
39 Handley c Redhead (Durham 1584), in Clement Colmore's Book, DUL, MS DDR/XVIII/3, f 127.
40 D 1.14.3.
41 See Civilian's Notebook (ca 1630), CUL, Collect Adm 38, f 46; Dr Barwell's Case (c 1610), in Thomas Eden's Notebook, BI, Prec Bk 11, f 21, also acknowledging differences of opinion on the subject.
42 Council of Oxford, [c 5] (1222), in F Powicke and C Cheney (eds), Councils & Synods with Other Documents Relating to the English Church II, AD 1205–1313 (Oxford, 1964), I, p 107.
43 See, eg, R Smolla, Law of Defamation (second edition, St Paul, MN, 2010), pp 70–89, at 84.
44 The question was of contemporary moment; see Civilian's Notebook, NNRO, DN/PCD/2/2, f 17; Annotations to Innocent IV, Apparatus in libros Decretalium, Hereford Cathedral Library, MS P.VIII.10, f 172: ‘[I]n quibus casibus criminalibus potest intervenire procurator?’ See also Ex officio c Owen (ca 1600), Bodl, Tanner MS 427, f 11; Anon (ca 1610), BI, Prec Bk 11, f 19; Anon (ca 1600), LMA, MS 11448, f 46.
45 See ‘Adversaria studentis in iure civili’ (17th century), BL, Harl MS 3190, f 47v. Other texts were also used in some arguments: eg, C 9.2.2, allowing a slave owner to intervene when the slave was accused of a capital crime; Decretum Gratiani, C 5 q 3 c3, allowing bishops to appear before a synod by proctor if detained by grave necessity.
46 D 48.1.13: ‘Ad crimen iudicii publici persequendum frustra procurator intervenit; multoque magis ad defendendum: sed excusationes absentium ex Senatus consulto iudicibus allegantur’. See, eg, Simon van Leeuwen (d 1682), Censura forensis (Amsterdam, 1685), Pt II, Lib II, c 2, nos 4–5: ‘[R]ectius alii distinguunt ut procurator admittatur ad innocentiam rei ostendendam, non ad causam legitimo modo peragendam, cum defensio juris sit naturalis, quae nemini est deneganda, arg l 33 §2, ff. de procuratoribus’. The parallel text from the Codex (C 9.2.3) was also cited and treated accordingly.
48 They were quite cautious about accepting holographic wills, notably Henry Swinburne (d 1624), Briefe Treatise of Testaments and Last Willes (London, 1590)Google Scholar, Pt IV §25, nos 8–9. A text from the Authenticum (Coll VIII, tit 3), dealing with imperfect testaments inter liberos, was also relevant and mentioned by Swinburne.
49 C 7.14.5; see, eg, Caesar Contardus (fl 1570), ‘Commentarii in l Diffamari’, c 3, nos 168–70, in Tractatus sive Repetitiones super lex diffamari C de ingenuis manumissis (Cologne, 1593).
50 This point was made to me by Professor Norman Doe, and I thank him for it. He thinks the parallels are more exact than I do.
51 Graves, R, Recollections of Some Particulars in the Life of the Late William Shenstone (London, 1788), p 26nGoogle Scholar. See also Rashdall, Universities (above note 7), III, p 441: ‘The life of the virtuous student has no annals’.