Frederick William Maitland, Downing Professor of the Laws of England: A Biographical SketchFisher, H. A. L. (Herbert Albert Laurens)
History
Frederick William Maitland, Downing Professor of the Laws of England: A Biographical Sketch
Fisher, H. A. L. (Herbert Albert Laurens)
Maitland, Frederic William, 1850-1906
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.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account