Full text: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte / Kanonistische Abteilung (3 (1913))

The Canon Law in England.

345

also accused his opponent (with good reason) of misrepre-
senting the character of those parts of the Corpus Juris
Canonici which are posterior to the Decretum. It was
erroneous to represent the Decretals, the Sext and the Cle-
mentines as „unauthoritative text-books“. Moreover the
real question at issue was the attitude of English eccle-
siastical judges towards an admittedly authentic pronounce-
ment of the Pope. Stubbs hardly attempted to answer this
attack, although he took notice of it in the second edition
of his Lectures (1900). Admitting that Maitland had con-
victe d him of certain errors, he nevertheless pleaded for
further consideration of his main hypothesis.
There are in fact two lines of argument by which Mait-
land’s criticisms might be parried. We might argue that
the English canonists were insincere in their exaltation of the
Papal power, that their principies were not faithfully applied
in the courts of the English Church, and that the clergy
were always sympathetic to the lay power when the latter
resisted Papal usurpations. This view might be supported
by reference to the controversial writings of the York Ano-
nymus (lately edited by H. Böhmer)1), and of Robert Grosse-
teste; but it is a view which, if methodically tested, will be
found to rest upon isolated scraps of evidence, sheer misinter-
pretations and unwarrantable conjectures.2) Or, secondly,
the defence might take this form: the customs of the me-
dieval English Church were so numerous, so important, so
contrary to the Jus Commune, that while the supremacy of
the Jus Commune was recognised in principle, in fact it
contributed only a small element to the body of rules which
governed the life of the English Church. Both lines of
argument have been followed by the latest partisan of Stubbs,
the Rev. Arthur Ogle, whose work has attracted some atten-
tion chiefly because he accuses Maitland of handling the
English canonists too superficially, and of ignoring their ex-
cessive respect for English custom.3) To the subject of
*) Libelli de Lite, III, 642—687; Kirche und Staat in England
und in der Normandie (Leipzig 1899), pp. 177—269, 436—497. — •) See
my article, England and Rome in the Middle Ages in the Church
QuarterlyReview, 1903, pp. 118—142. — *) The Canon Law in Mediae-
val England (London 1912).

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