| Book Review | Law and History Review, 25.1

Book Review

R. H. Helmholz, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, Oxford History of the Laws of England, 1, Oxford: Oxford University Press, 2004. Pp. xxxii + 693. £125 (approximately US$270.00) (ISBN 0-19-825897-6).

This is the first volume (the second to appear) in the massive Oxford History of the Laws of England. The series is planned for twelve volumes, all of which, except this one, cover quite narrow chronological periods, normally of a century or less. This volume is different. Its chronological range is more than a thousand years, from the traditional date of the arrival of the mission of St. Augustine to the Kentings to the dissolution of the ecclesiastical courts during the Long Parliament. The revival of the ecclesiastical courts with the restoration of the monarchy (1660) gets some mention, but the story of those courts' decline into the nineteenth century and their precarious survival today must be treated elsewhere.

The remarkable range of the volume is not only chronological. Helmholz has spent the better part of a long career surveying the surviving records of the English ecclesiastical courts. These begin in the thirteenth century, become more voluminous in the fourteenth and fifteenth, and reach staggering quantities in the sixteenth and early seventeenth. They are scattered all over the kingdom; they can be quite difficult to read, and their organization in modern and not-so-modern archives, while it is improving, still leaves much to be desired. Hence, if Helmholz had done nothing more than summarize what he has found in the archives he would have done a great service.

He has done a great deal more than that. His mastery of canonic literature, particularly that in the poorly explored early modern period, is equally impressive. We are shown how the records relate to doctrines and arguments that are found not only in literature of the canon law printed in the early modern period, but also in English manuscript sources. The whole is placed in the context of the modern literature on the topic, both that written by strictly legal historians and that written by social, political, and church historians. The bibliography is remarkably up-to-date, and the bibliography probably contains less than half of the works that are referred to in the footnotes.

The structure of the work is classical. The first 309 pages (244 if one wants to exclude the material dealing with the period before the Norman conquest) is the "external" history of the canon law in England: the sources of the law, the structure and jurisdiction of the courts, and the relationship of that jurisdiction to that of the courts of the secular law, particularly that practiced in the central royal courts. The remaining 333 pages of text deal with the "internal" history of the canon law in England: civil procedure, monetary obligations and economic regulation, testamentary law and probate jurisdiction, tithes and spiritual dues, churches and the clergy, marriage and divorce, defamation, and crimes and criminal procedure. The order is roughly that of books two through five of the Decretals of Gregory IX (1234), and it has the advantage of putting procedure to the fore, the importance of which historians who are not trained as lawyers tend to forget.

The main themes of the book are clear: First, whatever may be said of the secular law in England, the law practiced in the ecclesiastical courts was part and parcel of the ius commune of western Europe. What was happening in those courts cannot be fully understood if one does not understand how the ius commune was structured and operated, while the latter cannot be fully understood without knowing what was happening in the courts. Second, the nature of English canon law as part of the ius commune did not cease with the Reformation (whenever we date it). The canon lawyers (by now generally called "civilians") of the reigns of Elizabeth, James I, and Charles I were as much practitioners of the ius commune as were their predecessors in the later Middle Ages and their cousins on the Continent. Third, the division between secular and ecclesiastical jurisdiction in England was made along subject-matter lines and not, by and large, on the basis of the personal status of the parties. This meant that there were more lay people appearing in the church courts than was the case in some places on the Continent and made it possible, if it did not dictate, that the jurisdiction of the ecclesiastical courts that affected lay people was wider (notably in the area of testaments and defamation, and, in some periods, contract) than it was in many places on the Continent. It also meant that some subjects (patronage of churches, the contractual obligations of the clergy, and, eventually, tithes) were more often treated in secular courts than they were in some places on the Continent.

A book like this, however, has to be more than its themes. It has to be based on hundreds of individual judgments about what to include, about how to characterize controversial issues, about how to evaluate the successes and failures of the legal system that it is describing, about when to include new material and when to rest on what is already available in the specialized literature. In these tasks Helmholz has set a standard that it is going to be difficult for future authors in the series to match. Among my favorite chapters are those on the Anglo-Saxon period (how to describe a situation in which there were plenty of canons but no canonical legal system as we understand a legal system?) and that on marriage (how to boil down into forty-four pages a topic the literature on which fills my spacious office to overflowing?). The book sparkles with particular insights. On the ecclesiastical lawyers who seemingly without qualms moved from radical Protestant to Catholic to less radical Protestant in the sixteenth century: "Like musicians of the day, their place in the courts of the church separated them in a measure from current controversies over religious doctrine" (236). On the increase in litigation in the ecclesiastical courts in Elizabethan England: "In particular, it should be recognized that the growth in litigation in them does not prove the 'popularity' of the ecclesiastical courts. Too many other factors were at work. 'Popularity' is a strange bedfellow for a system of public courts in any case; litigants invoke them for many reasons" (284).

So many judgments go into making up a book like this that one is bound to disagree with a few. For example, I find the achievement of Gratian (first half of the twelfth century) more impressive than Helmholz seems to (78, 85–86). Cases concerning the impediment of vows (552) are not quite "absent" (e.g., Slyngesby c. Poleyn, York, Borthwick Institute, CP.F.13 [1404–5]), nor does it seem to me that their relative absence is "hard to explain." The law required that the vow be solemn in order for it to be a diriment impediment to marriage, and if someone had taken a solemn vow, it would normally be pretty obvious that they had done so. Of the omissions, the one I found the most disappointing was the absence of any systematic treatment of the influence, not only of canon law but of the ius commune generally, on the English common law. But that is a complicated and highly controversial topic, and the book was already long.

This book is not so path-breaking as some of Helmholz's other books. The purpose of this series is not to open new paths, but to summarize where we are now. This book does it admirably. It provides a full-scale introduction to the canonical legal system of the medieval and early modern periods with particular focus on the instance of that system in an important kingdom. It does not assume what the non-specialist is unlikely to know, but there is much in it that will be new to the specialist. It should hold its premier place in the literature for years to come.

Charles J. Donahue, Jr.

Harvard Law School

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