ROMAN LAW

The idea that one must pay for legal advice and representation in order to secure one's rights has never had wide appeal, save to those equipped to provide these services – and even some of them have occasionally voiced reservations about the practice. “How glad I am that I have always kept clear of any contracts, presents, remunerations, or even small gifts for my conduct of cases”, wrote the younger Pliny (61/62-113). He added: “It is true that one ought to shun dishonesty as a shameful thing, not just because it is illegal; but, even so, it is a pleasure to find an official ban on a practice one would never have permitted oneself.”

This last remark refers, of course, to the Lex Cincia, a plebiscite of 204 bce, which forbade advocates to accept remuneration for pleading in the courts. Although the measure was apparently seldom enforced, Augustus (r 27 bce-14 ce) persuaded the Senate to re-enact the Lex Cincia and to bolster it with a fourfold penalty for violations. Enforcement remained lax, however, and Claudius (r 31-54 ce) yielded to arguments put to him by a group of senators who were also advocates. They insisted that it was only fair that they receive compensation for using their skill and knowledge on behalf of others. In response Claudius agreed to abrogate the earlier law and to permit advocates to receive remuneration, but only up to a maximum of 10,000 sesterces for each case.

The century between the accession of Henry II in 1154 and the provisions of Oxford in 1258 witnessed momentous changes in the governance of the English kingdom, of which the baronial discontent that led to Magna Carta and its reissues were, of course, one part. This paper will address another of those momentous changes, namely the takeover of leadership in the church by lawyers. This managerial revolution, to use Colin Morris's phrase, profoundly altered the way in which the church conducted its business during the centuries that followed.

The lawyers involved in this revolution were not the ones who worked in the common law courts, but rather clerics trained in the two learned laws, Roman and canon, that contemporaries described as utrumque ius or ius commune. All priests were supposed to know some canon law of course, but for many that knowledge was decidedly elementary. By 1258 formal legal training had become normal, even commonplace, among English bishops and archbishops. Lesser prelates, too, could by that point often boast some legal training and sometimes law degrees as well.

This change was, to be sure, hardly peculiar to England. By the end of the twelfth century the college of cardinals was already dominated by men trained in Roman and canon law. Two of those cardinals became popes before the end of the century, while at least five of the thirteenth-century popes were full-fledged lawyers. Substantial numbers of bishops and archbishops in France and the Low Countries likewise had serious legal credentials.

Although these developments were not uniquely English, nonetheless English churchmen played a central role in what was happening. It is significant, for example that more than half of the 713 decretals of Pope Alexander III (r. 1159–1181) that found their way into the Church's law books were addressed to English recipients. Critics complained that the increasing prominence of jurists among the episcopate detracted from the spiritual life not only of members of the hierarchy, but also among the faithful at large. ‘Formerly the Church used to be governed in peace by the canons,’ complained an anonymous Paris preacher, ‘but now it is ruled by advocates who do more evil than heretics.’

¶ Teaching of ius commune by Englishmen

No one is born a lawyer. Lawyers are formed in law schools, not in their mother's womb.