By Anne J. Duggan, King's College London

Even after a century of debate following the controversy between William Stubbs and F. W. Maitland in the late nineteenth century, historians of English law are still divided in their assessment of the effect of ‘continental’ influences on the development of English law in the twelfth century. There is no denying the employment of legal terminology borrowed from Romano-canonical sources but there is much disagreement about the significance of that borrowing. Was it substantive; did it imply the importation of new definitions or processes or were the Romano-canonical terms, as van Caenegem argued for Glanvill, merely superficial borrowings by authors eager to demonstrate their learning?1

Although the Old English kingdom had not been isolated from its continental neighbours before 1066, there is no doubt that the consequences of the Norman Conquest multiplied the contacts. For the English church this meant greater exposure to the latest intellectual and legal movements. Archbishop Lanfranc’s introduction of Pseudo-Isidore,2 one of the most influential collections of canon law then available, was only the first step in the creation of what Patrick Wormald called a ‘scholarly fraternity’ linking Norman England with cross-Channel ‘Neustrian schools’ in the first decades of the twelfth century.3 This explains the hybrid character of the so-called Leges Henrici Primi, which combined Old English material with extracts from the Frankish Lex Ribuaria, Pseudo-Isidore (in a version different from Lanfranc’s) and the more recently completed Decretum (after 1093) and Panormia (1095) of or attributed to Ivo of Chartres. The Leges Henrici Primi had little discernible influence, but the Pseudo-Isidore and Ivonian materials circulated widely and independently, providing Anglo-Norman ecclesiastics with the same law books used by their colleagues across Europe. In both they encountered legal definitions, processes, and concepts of legal propriety that could be adapted to current needs. As early as 1088, for example, William of St. Calais (bishop of Durham) had relied on Pseudo-Isidore to present in the royal court a defence which anticipated the canonical exceptio spolii, and he appealed to the written law ‘which I have here in writing (quam hic scriptam habeo)’.4

In the course of the following generation the establishment of the academic study of Roman and canon law transformed the way law was perceived, studied and practised. First came the recovery of Justinian’s Corpus iuris (Institutes, Codex, Digest + Latin version of 134 novellae), studied in Bologna, Arles and elsewhere;5 then Master Gratian’s updating of canon law in his Concordia discordantium canonum (Decretum: late 1120s to 1141–5), which assimilated many important definitions and procedures from the Corpus iuris. The extraordinary success of the new jurisprudence is explained by its utility and adaptability. Roman law provided forms of action which enabled an injured person to summon his adversary before a court in defence  of his right. As the Institutes defined it (4.6pr.), an action (actio) was ‘the right of suing before a court for that which is due to one (jus persequendi judicio quod sibi debetur)’, and it had to be conducted according to standard judicial procedures (ordine iudiciario). The practice of formulating the claim in a written charge sheet (libellus), the employment of trained advocates, and the organization of the case as a dialectical exchange between charge and defence allowed the professional evaluation of oral and written evidence. Because of their utility these procedures were widely adopted in Septimania, Provence, Lombardy and Tuscany in secular and ecclesiastical jurisdictions, and in the papal court.6 Bernard of Clairvaux’s complaint to Pope Eugenius III (1145–53) that ‘every day the laws make a great clamour in the [papal] palace, but they are Justinian’s laws, not the Lord’s (quotidie perstrepunt in palatio leges, sed Justiniani, non Domini)’7 may have been rhetorical exaggeration but it pointed to the substantive changes in jurisprudence, personnel and procedure that were taking place with consequences that became apparent in regions far removed from Rome.

From the 1130s, cases about rights and jurisdiction, contested marriages, possession and ownership of property began to be appealed from English ecclesiastical courts to the papal court. This made it imperative that bishops and abbots employed trained clerks who were au fait with advances in law and jurisprudence and capable of presenting cases before the learned personnel of the Curia. It is hardly coincidental that in c.1143 Theobald of Canterbury recruited Master Vacarius, a Roman lawyer from Bologna, a year after he had himself been appealed to Pope Innocent II by St. Augustine’s abbey. Controversy and obscurity surround Vacarius’s abbreviation of Justinian’s Codex and Digest, later known as the Liber pauperum (variously dated c.1149, 1160s, 1170s–1180s), but it was certainly used as an aid to the study of Roman law at Oxford in the 1180s and 1190s. Another civilian, Master Peter de Melide (from Meleti, near Lodi), was employed in Lincoln (c.1148–81) and a third, Master Ambrose, served the abbots of St. Albans and others in the 1150s and 1160s. Both were later consulted in the Anstey case (1158–61).8 A particularly telling example of the two-way correspondence between England and the papal Curia is provided by the Stetchworth case  (1150–3) between Henry, son of William le Breton and the monks of Ely about ownership of the manor of Stetchworth (Cambs.). Not only does it show the application of the distinction between possessio and proprietas but it demonstrates English mastery of the technical vocabulary of the learned law as practised in the papal Curia.9

This is the legal context in which Henry II became king of England in December 1154, with the aim of restoring what he claimed were the customs of his grandfather (Henry I). Part of the reconstruction was the provision of more comprehensive royal justice. This drive formed the background to the dispute with Thomas Becket, which turned on Henry’s claims in respect of clerical immunity and royal jurisdiction over property disputes,10 and that acrimonious controversy formed a background to the formalization of the assizes and writs and judicial processes of his reign, described in Glanvill’s Treatise on the Laws and Customs of England.

The conceptualization and in part the structure of Glanvill’s Laws demonstrate both the author’s knowledge of the Roman law and his endeavours to emulate it. Lying behind the statement that it does not seem absurd to call the English laws laws, just because they were not written down,11  is awareness of the authority of the lex scripta, compiled in Justinian’s corpus iuris civilis, and a sense that the customs and processes of the English king’s courts might be deemed deficient and inferior by cocky jurists recently returned from Paris or Bologna – or Oxford. Glanvill’s treatise should be read as an attempt both to remedy that defect and to raise the ‘general rules frequently observed in court’ to the level of the Roman leges.12 Such a purpose was not incompatible with Paul Brand’s suggestion that Glanvill was a kind of ‘conversion kit’, devised to explain the practices of the royal courts to men who were already familiar with the vocabulary of the learned laws, and that it may even have been intended as a teaching book for law students at Oxford.13 Its first paragraph echoes the grandiloquent opening of the Institutes, substituting ‘Regiam potestatem’ for ‘Imperatoriam maiestatem’ to proclaim the majesty of the royal power;14 and the list of the grounds for bringing an action for debt in the king’s court is a simplified abbreviation of the actiones bonae fidei in the Institutes, 4.6.28: ex causa mutui, aut ex uenditionis causa, aut ex commodato, aut ex locato, aut ex deposito, aut ex alia iusta debendi causa.15

More importantly, perhaps, legal scholars see direct borrowings in the distinction between possessio and proprietas in Henry II’s Assizes,16 as well as in the wording of writs,17 the adoption of the Romano-canonical exceptio18 which allowed challenges to writs,19 and even in Magna Carta.20 Exposure to the learned law, Roman and canon, enlarged and enriched the intellectual environment of the evolving English law in the critical years 1160–90. That exposure not only supplied important concepts but accelerated the development of a system of royal jurisdiction open to all free men which replaced within a generation the non-system of royal grace and favour which had preceded it. It is not fanciful to suggest that this development was influenced by the experience of a system of canon law operating across the whole of Latin Christendom. Utilizing written codes, with standardized rules of procedure, written records of cases, trained advocates, delegated jurisdiction and an appeals process, this ecclesiastical ius commune (common or general law), provided a living example of an integrated jurisdiction not seen since the fall of the Roman empire.21

Fuller discussion and bibliography in  Duggan, ‘Roman, canon and common law’.

Select bibliography 

Brand, P., ‘Legal education in England before the inns of court’, in Bush, J. A. and Wijffels, A. (eds.), Learning the Law: Teaching and the Transmission of Law in England (London, 1999), pp. 51–84.

—  The Making of the Common Law (London, 1992).

Cheney, M. G., ‘The litigation between John Marshal and Archbishop Thomas Becket in 1164: a pointer to the origins of novel disseisin’, in Guy, J. A. and Beale, H. G. (eds.), Law and Social Change in British History (London, 1984), pp. 10–26.

—  ‘“Possessio/proprietas” in ecclesiastical courts in mid-twelfth-century England’, in Garnett, G. and Hudson, J. (eds.), Law and Government in Medieval England and Normandy: Essays in Honour of Sir James Holt (Cambridge, 1994), pp. 245–54.

Collectio Lanfranci: N. Álvarez de las Asturias, La ‘Collectio Lanfranci’. Origine e influenza di una collezione della chiesa anglo-normanna (Milan, 2008).

Corpus iuris civilis: see Justinian’s Institutes, trans. P. Birks and G. McLeod (with Latin text of P. Krueger) (Ithaca, NY, 1987), 9a–13b, for summary of its compilation and structure.

Duggan, A. J., ‘“Justinian’s laws, not the Lord’s”: Eugenius III and the learned laws’, in  Jotischky, J. and Fonnesberg-Schmidt, I. (eds.), Eugenius III, the Cistercian Pope (Farnham, in press).

—  ‘Roman, canon and common law in Twelfth-Century England: the council of Northampton (1164) re-examined’, Historical Research, 83 (2010), 379–408.

—  Thomas Becket (London, 2004).

C. Duggan: ‘Papal judges delegate and the making of the ‘new law’ in the twelfth century’, in Bisson, T. N. (ed.), Cultures of Power: Lordship, Status, and Process in Twelfth-Century Europe (Philadelphia, Pa., 1995), pp. 172–99 (repr. C. Duggan, Decretals and the Creation of ‘New Law’ in the Twelfth Century: Judges, Judgements, Equity and Law (Aldershot, 1998), no. I)

exceptio spolii: Hinschius, P. (ed.), Decretales Pseudo-Isidorianae et Capitula Angilramni (Leipzig, 1863; repr. Aalen, 1963), pp. 165 (c. 20), 201 (c. 10), 205, 694 and 730; for its use, see H. Fuhrmann, Einfluss und Verbreitung der pseudoisidorischen Fälschungen (3 vols., Schriften der MGH, 24, Munich, 1972–74), ii. 422 n. 37; iii. 648, 662, 670, 672.

Glanvill: Hall, G. D. G. (ed.), The Treatise on the Laws and Customs of the Realm of England commonly called Glanvill (London, 1965; repr. Oxford, 1993).

Gratian, Decretum: Decretum Gratiani in Corpus iuris canonici, ed. E. Friedberg (2 vols., Leipzig, 1879–81), i.

A. Harding, The Law Courts of Medieval England (London, 1973).

R. H. Helmholz, ‘Magna Carta and the ius commune’, University of Chicago Law Review, 56 (1999), 297–371.

J. C. Holt, Magna Carta (2nd edn., Cambridge, 1992).

Ivo of Chartres: L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–1140): a Bibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999), pp. 244–60.

S. Kuttner and E. Rathbone: ‘Anglo-Norman canonists of the twelfth century: an introductory study’, Traditio, 7 (1949–41), 279–358.

Liber Eliensis, ed. E. O. Blake (Camden 3rd series, 92, 1962).

Liber pauperum, ed. F. de Zulueta (Selden Society, 44, London, 1927).

W. P. Müller, ‘The recovery of Justinian’s Digest in the Middle Ages’, Bulletin of Medieval Canon Law, 20 (1990), 1–29.

S. Bernardi Opera, ed. J. Leclercq and H. M. Rochais (9 vols. in 10, Rome, 1957–98).

P. Wormald, The Making of English Law: King Alfred to the Twelfth Century, 1: Legislation and its Limits (Oxford, 1999; repr. 2001).

R. C. van Caenegem, Royal Writs in England from the Conquest to Glanvill (Selden Society, 77, London, 1959).

—  English Lawsuits from William I to Richard I, 1: William I to Stephen; 2, Henry II and Richard I (Selden Society, 106–7, London, 1990–1).

Notes

  1. 1. ^ van Caenegem, Royal Writs, pp. 379–82.
  • 2. ^ Collectio Lanfranci.
  • 3. ^ Wormald, Making of English Law, pp. 236–44, 411–14, 465–73.
  • 4. ^ van Caenegem, English Lawsuits, i. 90–106, no. 134, at p. 97.
  • 5. ^ Müller, ‘Recovery’, p. 3.
  • 6. ^ Duggan, ‘Justinian’s Law’.
  • 7. ^ S. Bernardi opera, iii. 399.
  • 8. ^ Duggan, ‘Roman, canon and common law’; Kuttner and Rathbone; van Caenegem, English Lawsuits, ii. 387–404, no. 408.
  • 9. ^ Liber Eliensis, 344–58, nos. 96–108.
  • 10. ^ Duggan, Thomas Becket, pp. 39–60.
  • 11. ^ Glanvill, Prologue, 2.
  • 12. ^ Cf. Holt, Magna Carta, p. 113.
  • 13. ^ Brand, ‘Legal education’, pp. 54–5.
  • 14. ^ Glanvill, Prologue.
  • 15. ^ Glanvill, x. 3.
  • 16. ^ Cheney, ‘Litigation’.
  • 17. ^ Harding, Law Courts, pp. 48–9.
  • 18. ^ Cf. Institutes, 4.13.
  • 19. ^ Brand, Making, p. 97.
  • 20. ^ Helmholz, ‘Magna Carta’.
  • 21. ^ Duggan, ‘Papal judges delegate’.
  •