Book Review

The author, one of the foremost historians of English common law and a Cambridge University professor, has collected together in this volume a series of "non-technical" (his designation) essays printed originally between 1988–1997 in the Ecclesiastical Law Journal. These studies primarily concentrate on the more important English authors in ecclesiastical law from the late middle ages down to the late nineteenth century and provide an intriguing view of a vanished separate profession of Romano-canonical lawyers.	1
In the introductory essay Baker notes several developments already in place before 1400. Prominent English canonist authors had written important books on procedure, and canon law faculties at Oxford and Cambridge were in full operation. Practitioners could choose to work in a highly articulated system of church courts, prominent among them the Court of the Arches in London. Unfortunately, the author provides here no further brief explanation, especially for the non-British reader, regarding how the various courts were interrelated or how they operated.	2
The following chapters proceed in chronological order, each concentrating wholly or mostly on a single individual. Such an incremental approach is helpful, for we may observe thereby how each generation of legal authors built upon the works of its predecessors. While the constraints of space in this review preclude detailed discussion of each personality, it is worthwhile just to summarize the achievements of the most prominent among them. William Paull (de Pagula) was an early fourteenth-century author of manuals on confessional and pastoral matters that greatly assisted humble parish clergy in their everyday work. William Bateman (+1355), on the other hand, was an important personage whose career well exemplified the links between the academic, judicial, diplomatic, and administrative worlds of his day. Under his patronage the first surviving court reports of the Rota (the pope's own audience court where Bateman served as judge) were written by his protégé Thomas Fastolf (Decisiones novae, antiquae et antiquiores).	3
The next two canonists of note, John Ayton or Acton and William Lyndwood, were the most important late medieval English authors of this law. The former's Constitutiones legitime seu legatine regionis anglicanae was written during the middle of the fourteenth century; it constituted the first major treatise on English canon law, for it collected together the legislation promulgated at two councils of the entire English church convoked during the previous century by papal legates. In his valuable commentary Ayton not only indicated his awareness of the great continental canon law commentators of the recent past but also provided instructive observations regarding contemporary religious practices. Like Bateman, William Lyndwood (+1446) was also a man of affairs, very active in both ecclesiastical and royal government. His canonistic achievement was the Provinciale, a glossed collection of conciliar legislation in Canterbury province from 1222 to his own day. Like Ayton's work, which it complemented, the Provinciale was extremely popular; many manuscripts are still extant and it became one of the first books printed in England (Oxford, ca. 1483). Lyndwood's gloss proved to be a reliable guide to regional peculiarities of English canon law by explaining how this conciliar legislation fitted into the law of the Universal Church.	4
Baker notes how the fifteenth century was a time wherein canon lawyers in London began to form a society around their practice named Doctors' Commons. In later essays it will become clear that this society will form the main institutional bulwark of the Romano-canonical legal profession. Unfortunately, the author again presumes too much here on his readers' knowledge, for he omits helpful information regarding the purpose and activity (both professional and social) of this organization.	5
Recent research has stressed continuity of canon law content and procedure in the pre- and post-Reformation church in England. Practitioners like Henry Swinburne (+1624) now earned civil law degrees because the canon law faculties at England's two universities had been abolished by royal order. He composed the first important canon law treatises in English: A Briefe Treatise of Testaments and Last Wills (1590–1591) and the unfinished A Treatise on Spousals or Matrimonial Contracts. The former remained the classic treatment of probate for two hundred years. Swinburne supplied the gist of Latin texts, summarized potential positions of argument, and ranged through more than two hundred authors of civil, canon, and common law, as well as of literature.	6
From the late sixteenth through early eighteenth centuries scholars of Romano-canonical law were very active in writing procedural works and abridgements, for the most part still in Latin: Francis Clarke's Praxis of the Court of Arches (ca. 1594–1596); the Puritan John Godolphin's two canon law abridgements, one on succession (The Orphan's Legacy, or a Testamentary Abridgement, 1674) and one on the rest of canon law (Repertorium Canonicum, 1678); and Thomas Oughton's Ordo iudiciorum . . . in foro Ecclesiastico-Civili Britannico et Hibernico (1728). Nonlawyers also had an impact: the historian Edmund Gibson's Codex juris ecclesiastici anglicani (1713), a digest of statutes, constitutions, canons, rubrics, and articles of Church of England glossed by the author; and the German-born philologist and theologian David Wilkins's monumental Concilia Magnae Britanniae et Hiberniae a Synodo Verolamensi A.D. 446 ad Londinensem A.D. 1717 (1737), a collection of English conciliar canons both predating and postdating those compiled by Lyndwood.	7
One other eighteenth-century legal author deserves mention: in 1763 the country vicar and doctor of civil law Richard Burn published Ecclesiastical Law, a ready reference of alphabetically arranged topics treated discursively in an elegant and graceful manner. Burn relied heavily on Gibson's Codex, and the resultant work made much hitherto arcane lore accessible to a wide readership. In the face of such a successful book (eight subsequent editions in the next sixty years), it was becoming more difficult to justify the need for a separate profession of ecclesiastical lawyers.	8
The final third of the book deals with the century-long twilight of the Romano-canonical legal profession that ended with the dissolution of Doctors' Commons (1857–1865). Baker lavishes considerable attention upon two practitioners who stood out among their colleagues: Stephen Lushington and Robert Phillimore. Both served successively as Dean of the Arches, both expended considerable energy in defending the continued existence of the Romano-canonical bar, both adjudicated cases regarding ritual, theological dispute, and the privileges of the Established Church in a time of considerable religious ferment and change. From Baker's perspective, Lushington suffered from a kind of juristic schizophrenia. As a liberal member of the 1830–1832 Ecclesiastical Courts Commission, he supported several radical suggestions for the overhaul of ecclesiastical courts and procedures that Parliament did not see fit to enact. Nonetheless, as a judge he felt duty-bound to defend a legal system whose flaws he clearly discerned, and thus his judgments from the bench on a variety of matters (church rates, divorce jurisdiction, probate formalities, oral confession, heresy, church ornaments, eucharistic doctrine) often lacked consistency and were overturned on appeal. Phillimore also defended the conservative practices of ecclesiastical courts and the privileged status of its practitioners. His work in revising the ninth edition of Burn's Ecclesiastical Law prompted him to compose the massive Ecclesiastical Law of the Church of England (1873). In contrast to Lushington, however, Phillimore was a moderate judge intent on bridging differences between viewpoints of both high church and low church partisans. In some theological matters (for instance, eucharistic theology) he proved more tolerant than the Judicial Committee of the Privy Council and thus was also often overturned.	9
In any event, the game was up for Doctors' Commons: 1857 parliamentary legislation created new probate and divorce courts, and over the next few years the society was dissolved and its assets sold. Baker concludes that nothing in these final years had argued strongly for the maintenance of a specialized Romano-canonical legal profession. On the other hand, he also notes that the loss of a practicing bar operating within a cosmopolitan continental European legal culture was a not-inconsiderable price to pay for reform, especially given current efforts for European integration. In sum: Baker's collected essays are not only elegantly written and provide enjoyable reading, but they also invite and facilitate further investigation of the "other" legal profession in England's past.	10
Robert C. Figueira Lander University

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