[24] The leading characteristics of the system had been pointed out as early as 1821 by the Danish scholar, O. C. Olufsen, and received much further illustration from the labours of Georg Hanssen of Göttingen, whose papers [collected in 1880-4 under the title Agrarhistorische Abhandlungen] date back to 1835.
[VIII.]
In the course of his researches for the History of English Law Maitland had been drawn into the unfamiliar region of ecclesiastical jurisprudence, a department of knowledge once of the highest importance throughout Europe, but, save for one exception, fallen into complete desuetude at the English Universities ever since the study of the Canon Law was proscribed by Henry VIII. The exception was provided by William Stubbs. That great master of medieval history had from his Oxford Chair delivered and subsequently published two lectures upon the Canon Law in England. A stout patriot and a high Anglican, Stubbs was concerned to exhibit the continuity of the English Church before and after the Reformation; and both in his Oxford lectures and in a famous report drawn up for the Royal Commission on Ecclesiastical Courts he gave the weight of his authority to the opinion that the Canon Law of Rome, though held to be of great authority in England during the Middle Ages, was not recognised to be binding on the Courts Christian of this country. The verdict of so fine a scholar was eagerly welcomed by men of High Church opinions. If the Canon Law was not binding, then the Church of England was never in the full sense ultramontane, and the changes of the sixteenth century did not amount to revolution. Zealots went further still. There were those who, as Maitland wittily observed, seemed to believe that the Church of England was "Protestant before the Reformation and Catholic afterwards."
In the quarrel between the Highs and Lows Maitland had no interest. Then, as always, he was a dissenter from all the Churches: but historical truth was precious to him, and in the course of the summer of 1895, while engaged in the preparation of a course of lectures upon the Canon Law, he became gradually aware that the received opinion could no longer stand. The agent of his conversion, if conversion it can be called, was the Provinciale of William Lyndwood, a popular text-book written in 1430 by the principal official of the Archbishop of Canterbury, and representative of the accepted opinion in the century preceding the Protestant Reformation. The following letter to Mr R. L. Poole explains the genesis of a book which has permanently deflected the current of historical opinion.
Horsepools,
Stroud.
15th August, 1895.
I ought to have been writing lectures about the history of the Canon Law. Instead of so doing I have been led away into a lengthy discourse on Lyndwood. I have come to a result that seems to be heterodox, but I do not know exactly how heterodox it is and should be extremely grateful if you would give me your opinion upon a question which lies rather within your studies than within mine. It seems to me clear, that in Lyndwood's view the law laid down in the three great papal law-books is statute law for the English ecclesiastical courts and overrules all the provincial constitutions, and further that apart from the law contained in these books the Church of England has hardly any law—in short there is next to nothing that can be called English Canon Law. I must wait until I am again in Cambridge to read what has been written about this matter in modern times, but any word of counsel that you can give me will be treasured. From a remark that you once made I inferred that in your opinion our Church historians have been too patriotic. I feel pretty sure of this after spending two months with Lyndwood, and if I find that my conclusions about the law of our ecclesiastical courts are at variance with the prevailing doctrine, may be I shall print what I have been writing, that is to say if either L. Q. R. or E. H. R., will let me trail my coat through its pages.
Roman Canon Law in the Church of England appeared in 1898. It was a collection of six essays, one of which—the delightful story of the Deacon who turned Jew for the love of a Jewess—had been published as far back as 1886. Of the rest the decisive part consisted of articles contributed to the English Historical Review in 1896 and 1897. So far as a case can be demolished by argument, the case for the legal continuity of the Church in England was demolished by Maitland. He proved that the Popes' decretals were regarded as absolutely binding by our English canonists; that throughout Christendom the Pope was regarded as the Universal Ordinary or supreme source of Jurisdiction; that a considerable portion of the Canon Law was built out of English cases; that the provincial constitutions in England were of the nature of bye-laws and insignificant, while the libraries of our canonists were filled with foreign treatises; in fine, that the thirty-two Commissioners who set their names to the opinion that the ecclesiastical judges in England were not bound by the statutes which the Popes had decreed for all the faithful would have been condemned by any English ecclesiastical tribunal in the Middle Ages as guilty of heresy. No doubt portions of the Canon Law were not as a matter of fact enforced in England, but this was not because the Courts Christian rejected them, but because the Temporal power would not permit their enforcement.