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Roman Canon Law in Reformation England.

Richard Helmholz's many contributions to legal history and especially his important work on marriage litigation in late medieval England are well known. Roman Canon Law in Reformation England is an expanded and revised version of his Maitland Lectures, delivered at Cambridge University in 1987, and the great scholar whose name those lectures honor in a general sense posed the question to which this study is devoted. In his well-known collection of essays entitled Roman Canon Law in the Church of England (1898), William Maitland wrote (94), "Of the English civilians of the sixteenth century too little has yet been written...." Helmholz's lectures help to fill that gap by investigating the thought and practice of the English civil and canon lawyers--Maitland's "civilians"--during and in the decades following the Reformation. The book in fact covers a period substantially broader than the title indicates, treating developments before and after as well as during the sixteenth-century Reformation, spanning the reigns of the Tudor monarchs and of James I, i.e., 1485-1625. Not only does a picture emerge of the civilians' activity during the split between the English and the Roman Churches, but the longer span gives a perspective for assessing continuity as well as divergence of practice in English ecclesiastical courts from before that upheaval into the seventeenth century.

The famous debate between Maitland and Bishop Stubbs over the relationship between medieval canon law in England and the Roman canon law in use throughout the remainder of Western Europe has been a staple of legal historians for decades, and of necessity stands as background to this work. Helmholz does not "enter at length into this by now ancient controversy," although Maitland's stance, which argued for the English Church's dependence on the traditions of papal law, would be the one to follow "if put to choose" between the two. Helmholz proposes "that the choice need not be made, at least in the stark form the original controversy took" (5). The first chapter then sets the medieval period and hence the English Reformation in a clearer light than offered by the terms of that debate by considering two issues: the relationship of pre-Reformation English canon law to Continental practice, on the one hand, and its relationship to English common law on the other.

The result in the first instance is that late medieval Church law in England functioned no differently than elsewhere in Western Europe, employing a nuanced modus operandi which allowed freedom in interpreting and developing the law according to local traditions and needs even where papal decretals might rule differently. "We may see questions of papal power inevitably lurking in every corner of the Roman canon law" (20), although the civilians educated in the traditions of that law and who practiced in the anti-papal atmosphere of Reformation England did not. The relationship between England's medieval ecclesiastical courts and the courts of the common law is perhaps even more complicated. Despite areas of agreements about jurisdiction and applicable laws, even before the Reformation "as the Tudor age began, it looked as though the settled compromises and agreed rules that had long defined the Church's de facto jurisdictional rights might well be overthrown" (27). At the beginning of the sixteenth century, therefore, English ecclesiastical courts were under attack, but how far those attacks would go cannot have been clear.

Examining the records of Church courts (which by the sixteenth century survive extensively for virtually all of the English dioceses), and also delving into what is termed the "working literature" of civilian practice (chap. 4), reveals a great deal about ecclesiastical jurisprudence in Reformation England, and shows repeatedly how the civilians viewed their work in the context of the wider tradition of European canon law. In the process the question "was there continuity in legal practice, or did the abolition of papal jurisdiction cause upheaval and fundamental change?" (195) vanishes. The core of the book revolves essentially around two more complicated queries. How did the particular situation of the English Reformation affect the substance of Roman canon law and the tendency of the civilians to continue its use? And what aspects of that law would prove most useful in treating the new circumstances and problems of the reign of Henry VIII and later monarchs? The discussion is laid out in four chapters which deal with i) the fortunes of ecclesiastical jurisdiction from the early Tudors through the reigns of Elizabeth I and James I; ii) legal developments in five specific areas of post-Reformation court practice--defamation, marriage and divorce, testaments and probate, tithes, and ex officio proceedings (i.e., "the enforcement of the Church's rules relating to morality and personal conduct" [104]); iii) discussion of the ature which the civilians produced for their own law practice; iv) the civilians and English common law. The story which emerges in each case is of complexity not simplicity, revealing the ways in which the forms and traditions of Roman canon law did and did not remain viable in a world of new ecclesiastical presuppositions and problems.

In the chapter on the civilian's literature Helmholz writes (144) that "the very existence of this English literature of practice and its continued dependence upon the literature of the continental [canonical tradition] are easily the most significant findings to emerge from the research" undertaken for that section. That evidence in turn necessitated rethinking about the intellectual world of the civilians after the Reformation, and an alteration of Maitland's conclusion that the links had been cut. This example is cited in conclusion for two reasons. It exemplifies, in the first place, a significant instance of the theme found throughout this study of continuity and adaptability in the world of the English civilians. Secondly, it again cites the work Maitland, and by his own admission Helmholz' lectures and book "track the path Maitland laid out" (viii). That said, the reformulations and conclusions are very much the author's own, and no one concerned with late medieval canon law or English legal history of the pre-modern age should ignore them.

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Author:Somerville, Robert
Publication:Renaissance Quarterly
Article Type:Book Review
Date:Mar 22, 1994
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