Roman Canon Law in Reformation England.

Rodes, Robert E., Jr.

This book, a revision and expansion of the Maitland Lectures that Professor Helmholz delivered at Cambridge in 1987, explores what we might have thought was familiar territory in the light of material that is not familiar at all. First, Helmholz has examined a broad range of ecclesiastical court records from the period between the Reformation and the Civil War. While he claims to have only sampled the available material, he lists thirty different sets of local records he has looked at. Others have examined these records, but not on nearly this scale. In addition, Helmholz has looked at a number of practitioners' manuscript treatises explaining the nuts and bolts of their work in the ecclesiastical courts.

Supported by so much material, Helmholz can address with authority topics that other works have addressed only tentatively or not at all. He shows that the ecclesiastical judges and lawyers, far from going their own way after the Reformation, were using Continental canon law texts more learnedly and more creatively than ever had before. Although the university faculties of canon law had been abolished, students and teachers of civil law ("civilians") made canon law a major part of their subject-matter. Despite the Reformation, they did not hesitate to cite contemporary Roman Catholic literature, as well as medieval works, when the occasion arose. Helmholz finds a persuasive analogy in the use of English legal material by American lawyers and judges after the independence of the United States.

Of particular interest to students of the common law is Helmholz's detailed analysis of the use of writs of prohibition. We have not previously had such an analysis from the standpoint of the people doing the prohibiting. It sheds considerable new light. We get a much clearer picture of the distinction between cases where the church courts took the initiative in refusing prohibitable cases even though no prohibition was served, and cases in which they proceeded unless stopped with a specific writ. We also learn that the threat of prohibition led to many cases being compromised when it was not certain how the prohibition proceeding would come out. It also appears that some church courts evaded potential prohibitions by requiring litigants to post bond in large penalty sums that would be forfeited if they did not obey the ecclesiastical judgement. The penalty sum would have to be sued for in a royal court, and I doubt if any such suit would have been successful, but the bonds evidently had a significant in terrorem effect.

In breaking so much new ground, Helmholz has naturally given occasion for a few queries and caveats. I have no space to develop them here, but I will list the most important of them, so that anyone building on the fine foundation laid in this book may take them into account:

1. The reference to severed tithes as "lay chattels" (p. 31) is the exact opposite of the terminology used in the Year Books: the discrepancy needs some explanation.

2. Medieval lay courts paid a good deal of attention to charities. It is not quite true (p. 53) that they were the exclusive concern of the church.

3. I do not believe that jactitation of marriage (p.61) was ever a common law action.

4. My reading of Croke's Reports suggests that the interference of the lay courts with the probate of mixed wills of realty and personalty was more limited than Helmholz (pp. 81-82) indicates.

5. The common law would not recognize a custom unless it was immemorial, whereas the canon law was often content with forty years or less. Burn (1763) mentions this among reasons for not letting church courts try questions of custom; Helmholz (pp. 99-100) does not. It would be interesting to know whether this rationale figured in the earlier debate, and, if not, why not.

The slimness of this list and the pettiness of the items on it give further indication of how well Helmholz has accomplished the task of examining and digesting this new body of material. Maitland has been worthily commemorated in this book.