Ogle, p. 28; Stubbs (1st ed.),

p. 303.

Stubbs (3rd ed.), p. 349. 'Great as the advantages might be of an improved code of laws and system of procedure, neither the Canon Law nor the Civil Law was welcomed here; they were re

'Great as the advantages might be of an improved code of laws and system of procedure, neither the Canon Law nor the Civil Law was accepted here; they were rejected not only by the stub-pulsive not only to the stubborn obscurantism of Stephen, but by the bright and sagacious intellect of Henry II.'

born obscurantism of Stephen, but to the bright and sagacious intellect of Henry II.'

Stubbs (3rd ed.), p. 351.

'As we proceed, however, we are struck more and more with the prominence of the scientific element in legal education. The great compilations are not formally and explicitly received as having authority in England, but they are the sole legal teaching which is to be obtained in the schools where Englishmen go to learn law.'

I have altered my words here; it is too much to say that they are "not received as having any authority." The reception may have been a matter of course.'

Stubbs (3rd ed.), p. 354. 'But we hear of no formal acceptance † although they continued to be the code by which English causes were decided at Rome, and began to be an integral part of the education of English canonists.'

As a part of the canon law they had practical acceptance; and may be held to have passed into use as a matter of course. But see note, p. 336.'

*

Stubbs (3rd ed.), p. 354.

'So in England neither the civil law nor the canon law was ever received as authoritative but rather as peremptorily furnishing scientific confirmation for professional or empiric argument; or, in other words, where expressly or accidentally it agrees with the law of the land.'

I said "as authoritative except educationally," but if I were writing this now, I should use different words; or rather should put the distinction more guardedly: cf. the note at the beginning of the lecture. No doubt the canon law was regarded as an authoritative interpretation and application of Ecclesiastical Justice.'

Stubbs (3rd ed.), p. 356.

Footnote to 'realm.'

'That is for the sections of law which they comprised: they did not supersede the action of the canon law proper, from which they were largely derived and more largely illustrated. See note, p. 336.'

Stubbs's alterations and the prefatory note to which he refers speak for themselves; and they corroborate Mr Carter's statement † (strangely dealt with by Mr Ogle, p. 25 note) that the Bishop intimated to him that he was not prepared to dissent from Prof. Maitland's view.' In the light of this evidence we are justified in affirming that Stubbs and Maitland were agreed that Roman Canon Law

*Note on Lectures XIII and XIV' (Stubbs's Lectures, 3rd ed., pp. 335-6). See ante, pp. 417, 424.

·

History of English Legal Institutions,' p. 232 note.

(subject to State prohibition and to custom) was binding in the Church courts; and that they differed only as to the mode in which it bound those courts, Maitland holding that Decretals were statute-law, Stubbs holding that they were 'peremptorily furnished' materials in accordance with which the judgment of the court had to be framed. Does Mr Ogle dissent from this conclusion? We cannot find in his book a clear statement that in his opinion an English archbishop could enact a provincial constitution which would be valid in the Church courts as against a papal Decretal, in a case not affected by either State law or custom. On the contrary he declares that

'She [the English Church] asserts no general right to pick and choose among the decretals, or to accept or reject, at her mere will and pleasure, the "canon law of Rome"' (p. 102);

and again (p. 193):

To the men of Lyndwood's day, the Church . . . was the hierarchy, the great ubiquitous corporation of ecclesiastics... [over which] the Pope presided as supreme lawgiver: his decretals, apart from authentic custom to the contrary, are the last word of law.'

When therefore we read such sentences as this (p. 195)— and Mr Ogle's book abounds with them-'The English Church possessed in her provincial legislation a body of national Canon Law of substantive authority and valid, on occasion, even against the Decretals,' we must be careful not to misunderstand Mr Ogle. He seems to be traversing Maitland's main contention; but, when we examine more closely, we find it is not so.

Mr Ogle explains himself thus (p. 80): 'What we deny is that it [Roman Canon Law] was operative as against good English law and custom to the contrary.' In other words, Mr Ogle does not dispute the statement that Roman Canon Law was operative against Provincial Constitutions standing alone and unsupported. Maitland would, of course, deny as strongly as Mr Ogle that Decretals could override 'good English law and custom.' Everything therefore turns on what these words include. Mr Ogle's real quarrel with Maitland is, if we mistake not, that the latter treats statutes which barred parts of the Canon Law, as acts of the State as contrasted with the Church; Vol. 217.-No. 433. 2 G

and secondly that he has unduly minimised the extent to which custom or prescription superseded the Roman Canon Law in England. According to Mr Ogle, because bishops were judges and ministers of State in Plantagenet times, we must not distinguish between English State law and English Church law in that age. It is assumed that Maitland ignored his own teaching as to the gradual growth of the modern conception of Church and State, which he provided for English students in his translation of and notes upon Gierke's Political Theories of the Middle Age.' When we read such sentences as this (Ogle, p. 106),

'It is true that the Statutes of Provisors and Præmunire were Acts of Parliament and not of Convocation; but it is strange that the distinction should appear practical and important to an intellect of any keenness and power,'

we begin to wonder whether historical theory has not for the moment overwhelmed the writer's common-sense. It may be wrong to apply to medieval conditions these large abstractions of Church and State' (see Ogle, pp. 63, 64); but it is not less wrong to ignore the difference between the temporal or lay and the spiritual or clerical power, even in the Middle Ages. As we turn over the pages of our earliest statutes we are confronted with instances of their frequent antagonism. We may be sure, for example, that when at Merton 'all the Bishops instanted the Lords that they would consent' to alter the law of bastardy because it was against the common order of the Church' and all the Earls and Barons with one voice' refused, the conflict, quite consciously to both sides, was between the English temporalty on the one hand and the English spiritualty, no less than the Church of Rome, on the other. Mr Ogle (p. 68) thinks that the Statutes of Provisors and Præmunire were 'the work of the Lord King in his character of patron and defender of Anglicana Ecclesia, the English Church.' But, if they may be allowed to speak for themselves, they were designed as a remedy to the open disherison of the said Crown, the destruction of the regality of our said Lord the King, his Law and all his Realm' by the papal encroachments (16 Rich. II, ch. 5). It seems, therefore, a rather topsyturvy view of the case to treat the restrictive action of

kings and parliaments which, for example, annexed the trial of rights of advowson to the King's court and jealously confined the privileges of the clergy and the jurisdiction of the Church courts within narrow limits, as if it were all done by or on behalf of the Church itself in defence of its liberties. But it is a harmless view so long as it is understood that, when Mr Ogle says the Roman Canon Law was not operative against 'good English law,' he is thinking not of Provincial Constitutions but of Acts of Parliament.

But Mr Ogle's second ground of criticism of Maitland, namely, his inadequate appreciation of the effect of English custom in modifying and superseding the papal laws, is more serious. Maitland (p. 41) writes:

'And if the English provinces had but little enacted law that was all their own, they had also but little customary law that derogated from the jus commune. Of custom the canonist, like every other medieval lawyer, will speak civil words; but, when it comes to a practical question, he is by no means willing to admit that a custom excludes those general rules which he is in the habit of applying. . . . . In the first place, it must show itself to be a consuetudo præscripta, one that has gained its right to exist by existing for a long space of time. Secondly, it must be reasonable; and its reasonableness will be judged by men who are professionally convinced of the reasonableness of the rule from which it purports to be an exception.'

Mr Ogle discusses a considerable number of instances noted by Lyndwood where English custom prevailed against the Jus Commune. Several of them Maitland had himself cited. As Mr Ogle points out (p. 63), 'the facts are not in dispute, but only their due interpretation and expression.' The importance of these cases of prescription superseding decretal is a matter of opinion; but, if we may venture to express our own, we agree with Mr Ogle that such matters as liability for the repair of churches and the power of incumbents to make wills are far too considerable to merit Maitland's slighting description. But the point which, at the risk of repetition, we desire to emphasise is that, with the exception of the affair of Peckham and pluralities, all the instances which Mr Ogle adduces of so-called 'collision 'between the papal