A paper related to the history of legal education in England seems an apt subject for a lecture established in the name of William Lyndwood. He was a teacher of law as well as a judge before becoming a bishop. The collection of provincial legislation he made and the glosses he added to interpret that legislation have guided generations of English lawyers. Today, Lyndwood's great work also constitutes a significant example of the shared inheritance of Roman Catholic and Anglican ecclesiastical lawyers. Carefully examined and used together with other evidence, the Provinciale retains the power to help teach us many things, not the least of which is a fuller understanding of the history of legal education at the English universities.
CURRENT OPINIONS
Lawrence Stone began his survey of education at Oxford with a confession of ignorance – the ignorance of others as well as his own. ‘Very little’, he wrote, ‘is known about either the contents and significance of the curriculum or the quality of teaching provided’ at the ancient University.Footnote 2 He was stating a fact, one that remains particularly pertinent to legal education. Although the institutional histories of Oxford and Cambridge have been studied in detail, and although we now know a substantial amount about the origins and subsequent careers of their graduates, we know very little about what lecturers in law actually taught.Footnote 3 We know still less about what the students learned.Footnote 4 All the same, even though Professor Stone did not say so, ignorance has not prevented historians of the universities from drawing conclusions based on the evidence that does exist, as some of them have of course been duty bound to do. Quite often historians are required to compile entries for encyclopedias or textbooks covering subjects in which their knowledge is (at best) incomplete. They must write something, and the temptation to write something mildly interesting is not easy to resist.
Their predicament does not mean, however, that their conclusions should be accepted uncritically or that new evidence may not upset them. Most of these historians would say so themselves, and the purpose of this Lyndwood Lecture will be to argue that the accepted descriptions of legal education, though not without plausibility, have nonetheless been incomplete and misleading. The subject needs to be examined in light of the inner nature of the contemporary ius commune, the amalgam of Roman and canon law that long furnished the basic law in the courts of the church. Understanding its character puts the legal education received at Oxford and Cambridge (and indeed at most European universities) in a different and more favourable light than that depicted by most modern historians.
A review of modern accounts of legal education in England between 1400 and 1650 produces three widely accepted conclusions about its character and quality. First, legal study was not demanding. The law faculties were safe havens for unambitious students. John Barton's account of the Oxford law faculty, for example, concludes that these faculties provided ‘a comfortable refuge for a student with a distaste for intellectual exertion’.Footnote 5 Wilfred Prest similarly described it as the ‘soft option’.Footnote 6 Second, instruction in law suffered from the dead hand of the past. Lectures followed the well-worn paths that had first been laid out in the twelfth and thirteenth centuries. No real progress occurred. Rejecting legal humanism and indeed any other change of focus, instruction remained shackled to what another account called ‘the stale repetition of old authors’.Footnote 7 Hastings Rashdall described it as ‘the dreary routine of expiring scholasticism’.Footnote 8 Third, legal education failed to prepare students for the careers most of them would pursue. In England graduates in law commonly spent their professional lives in the courts of the church. To them, it can only have been a hindrance that arcane and obsolete rules drawn from Digest and Codex, rather than study of actual law practice, was what they had learned in the schools. Brian Levack, author of a respected account of the English civilians in the early seventeenth century, put this objection unequivocally, ‘[I]instruction given to students in [the civil law] faculty did not prepare them adequately for their future work’.Footnote 9 Helmut Coing was only slightly more positive than Levack, concluding that students were being prepared for careers as academics rather than as practising lawyers.Footnote 10
These three criticisms point to endemic weaknesses in legal education.Footnote 11 And when one adds to them the abandonment of a separate canon law faculty in the English universities under the Tudors, the widespread uncertainty about the place of the canon law in England that followed the Reformation,Footnote 12 and a decline in the number of law students that occurred in the sixteenth century, the picture of Renaissance legal education in England has looked dark indeed.Footnote 13 The continuing absence of any instruction in the English common law could only have made things worse.
We now know that the scope of the immediate problems can easily be exaggerated. The canon law continued to be studied by students of the civil law even after formal abandonment of a separate canon law faculty.Footnote 14 The ecclesiastical courts weathered the storms of the early sixteenth century. During the second half of the century, they recovered their nerve, and indeed they flourished.Footnote 15 At the universities, the precipitous decline in student numbers in the civil law faculty was reversed. Able students returned in greater numbers. Even so, the three estimations set forth above about the nature of legal education have not been reversed. No evidence has upset them. They have been applied to English legal education from the fifteenth century to the seventeenth and beyond. Only a fresh examination of new evidence can change the picture.
EVIDENCE FROM ENGLISH CIVILIAN SOURCES
Happily, relevant evidence is there to be uncovered. It consists of four related kinds of professional literature.Footnote 16 First are lecture notes in law from Oxford and Cambridge.Footnote 17 They exist. Second are records of disputations in the law faculties.Footnote 18 They exist. Third are notebooks compiled by students in the course of their studies.Footnote 19 They exist. And fourth are commentaries on practice in the ecclesiastical courts which show something of the results of legal education at the Universities.Footnote 20 They too exist. It is true that virtually all of these four kinds of professional literature have remained in manuscript. Deservedly so in most cases, I would say. Not much of it is of enough intrinsic importance to warrant putting it into print, and some of these works – student notebooks for example – can actually be discouraging to read. Nevertheless, taken together the evidence found in these four classes tells a different and more positive story than that contained in most modern accounts of university education in law.
It should be said again that there is a certain plausibility to the view that the law taught at Oxford and Cambridge was backward-looking and abstract. Lectures did follow and comment upon the texts of the Digest, Codex and Institutes.Footnote 21 The same is true mutatis mutandis of canon law lectures during the Middle Ages.Footnote 22 Lecturers did cite the opinions of long-dead jurists. For centuries, the views of Bartolus (d. 1357) and Panormitanus (d. 1445 or 1453), among others, shaped what students were taught.Footnote 23 Law lecturers also covered topics that had not the slightest immediate relevance to contemporary legal practice – the Roman law of slavery in the fifteenth century and the powers and duties of abbesses in the seventeenth, for example.Footnote 24 It is not true that the needs of contemporary practice were completely neglected. Discussion of what a legally valid libel must contain, for example, was a regular feature of student notebooks.Footnote 25 Still it is true that more attention was paid to the classical texts of the Roman and canon laws and to the opinions of commentators on those laws than to the everyday law practice in the courts that would be the venue of most students' careers.
THE UTILITY OF TRADITIONAL METHODS OF INSTRUCTION
This said, it does not follow that English legal education was of little use to students who intended to practice law in the ecclesiastical and maritime courts. The conclusion is wrong on two counts. First, it assumes that the needs of legal practice then were, in their basic character, essentially as they are now. Second, it assumes that legal change – progress if you like – was inconsistent with the ‘backwards looking’ approach of the law lecturers. Neither assumption is warranted.
The centrality of the text
Successful practice in the courts of the church and admiralty depended upon familiarity with and control of the texts of the ius commune. That is exactly what was taught in the universities. Today appellate lawyers – which for most purposes is what most of the English civilians were – normally frame their analysis of a case's facts and then formulate their legal arguments on the basis of a combination of existing precedent, statute law, careful use of reason, and invocation of accepted public policy. The exact mix of these four depends on the circumstances of the case. This method of argument is not identical to the methods used by the civilians of earlier centuries. They required a text – a text taken from the Roman or the canon law – supported by an academic interpretation of that text.Footnote 26 They did not use precedents from prior cases. Statutes rarely determined the outcome of disputes. Reason, even reason based upon natural law, was then normally a tool for interpreting texts rather than an independent source of authority. And social or public policy, if useful at all, had first to be found in the written laws themselves before it could be invoked in litigation.
The differences between law practice today and law practice during the Renaissance are readily apparent in the many accounts of arguments made before the courts of the church. These arguments virtually always rested upon a specific text found in the body of the two laws. What standard of proof applied in summary proceedings? That depended upon a text from the Digest and commentaries on it by Bartolus and Jacobus Menochius.Footnote 27 What level of violent behaviour by a husband was sufficient to permit a divorce a mensa et thoro? That depended upon a text from the Gregorian Decretals and a commentary upon the subject by the canonist known as Praepositus.Footnote 28 What words spoken in fatal illness will amount to an expression of testamentary intent sufficient to dispose of a man's property at death? That depended upon a text in the Institutes and a commentary on it by Joachim Mynsinger.Footnote 29 If other factors mattered – as well they could in modern practice – they were not brought up in argument before the courts.
In other words, to make an effective argument in the ius commune required a somewhat different approach than we use today. Prior cases, reasoning from first principles, and invocation of social policy were not then sources of law. Of course, a civilian lawyer might use something like all of them in framing his interpretation of a text found in the Corpora iuris. It was also true that texts from both the canon and Roman laws were subject to desuetude or contrary custom. They could be rendered obsolete.Footnote 30 But lawyers rarely advanced arguments without a base in the texts themselves, and the possibilities for deviation from them were limited by their habitual approach to law. As one sixteenth century lawyer put it in a testamentary cause, where ‘the text is express’, no contrary interpretation should be admitted.Footnote 31 What mattered most for civilians of the time was the existence of a text and a sophisticated understanding of that text's meaning.
This pattern describes the point of departure for the advocates and judges who served in England's ecclesiastical courts. Where the civilians had no choice, of course they did the best they could. They branched out. However, the text-based approach was the norm. It is important to understand this, because among other things, it means that criticism of university education as out-of-touch with then current practice in the courts is misleading. To have devoted attention in lectures to an examination of past cases, an exposition of then current court practice, or the implications of ‘public policy’ would not have prepared the students for the part they were actually to play in litigation. Concentration on the texts did.
It should be said that education of the proctors who served as the day-to-day representatives of litigants in court was a different matter. And in fact, most proctors did not attend university.Footnote 32 For them, the annotated book of forms was a better preparation for practice, and many such books have survivied. But as to the upper half of the profession, the common criticism is mistaken. Working carefully through the texts is what they needed in preparation for their careers.
Traditional education and legal change
The common criticism also overlooks an important development within the ius commune itself. This is the so-called Usus modernus pandectarum, a movement that had an impact on English ecclesiastical law. Its aim was to make a fuller use of the resources of the Corpus iuris civilis to bring practice into greater congruity with local laws and with then current needs.Footnote 33 The starting point remained the same – the texts. The ending point, however, could be new. In some sense, it was simply a shift of emphasis; the potential for development within the traditions of the ius commune can in fact be seen in Lyndwood's Provinciale itself.Footnote 34 More fully exploited, the traditional method permitted change and could even encourage reform in the practice of the courts. This happened in England. The development rested upon both knowledge of the existing texts and inventiveness in their use.Footnote 35
The implication of this movement for the history of legal education is a principal theme of this lecture. It is also something that has been missed by most accounts of the subject. The character of the movement is probably best illustrated by concrete examples. Here are three, each including a little detail.
The first example comes from one of the more difficult questions about practice that arose in Elizabethan England: whether or not a layman could lawfully act as a judge in an ecclesiastical court. A statute allowed doctors of law to serve,Footnote 36 but its terms did not cover men who held lesser degrees or no university degree at all. Where a mere bachelor had been a judge, should a sentence given by him be treated as a nullity, in light of the canon law's rule that laymen were ordinarily incompetent to hear spiritual causes? The question was particularly troublesome because the situation had occurred more than once.Footnote 37 Was there a way to defend it under the law?
One might suppose that the practice would have been defended by pointing to the arrival of Protestantism in England. Or one might think that the royal supremacy could somehow have been invoked to argue that this aspect of the canon law had been tacitly abolished as inconsistent with the laws and customs of England. These natural suppositions, however, would be off the mark.Footnote 38 When the case arose in Durham in the 1580s, the advocates involved said not a word about the priesthood of all believers or the royal prerogative.Footnote 39 The practice was defended instead by invocation of an opinion of Ulpian from the first book of the Digest.Footnote 40 Ulpian held that the edicts of a runaway slave who had passed himself off as a freeman, standing successfully for the praetorship in the process, were to be treated as valid. What benefit would have been to anyone, Ulpian asked, to treat his decrees as nullities? The man could certainly have been freed, and would have been, had his condition been known at the time. Whatever his true condition, his decrees as praetor must stand as valid.
It may seem that this precedent was irrelevant, or (at best) easily distinguishable. One's reaction is that more authority would have been needed than Ulpian's dictum. In fact, there was just a little more in the report of the case: invocation of the civilian maxim communis error facit ius. But there was no more. These were the two authorities used to justify a practice that had become too common to ignore. In the context of this talk about legal education, the important point is that it was only a thorough grounding in the texts of the Corpus iuris civilis that allowed an advocate to produce these two texts. And it turned out that they furnished the winning argument. It may be, of course, that the ‘real reason’ for the outcome was simple necessity. We do not know. All the same, from the perspective of an Elizabethan ecclesiastical lawyer, the winning arguments were based upon the civilian texts. That is what he needed.
A second example comes from the medieval law of defamation. Suppose Bertha defames Titia, saying that she is ‘a strongwhore’ and ‘a miserable cheat’. Suppose further that shortly after saying this Bertha comes to her senses, either regretting what she had said or considering that Titia might successfully sue her for slander. So Bertha takes back her words. Can Titia nonetheless sue Bertha for defamation on the basis of the words that were unquestionably spoken? This question must have arisen with some frequency in English court practice because it figured in the notebooks of several of the civilians.Footnote 41 The words of the provincial constitution upon which the law of defamation depended said nothing about it one way or the other.Footnote 42 It merely condemned ‘malicious’ utterances – not a foolproof guide.
Today we deal with the problem – though not very well – by means of retraction statutes and by allowing the subsequent statement to be considered by a jury in the award of damages.Footnote 43 Neither of these was available to English civilians. What they had instead were two texts, one from the Digest, the other from Gratian's Decretum. They stated that the effect of what had been done or said in anger depended upon whether the actor persevered in the same intent or instead withdrew it. Thus, the Digest's text concluded, ‘a wife who returns [to her husband] after a short time is not regarded as having divorced [him]’. Here the parallel seems pretty close. Divorce in Roman society may appear to have little connection to slander in seventeenth century England, but where a person's intent matters, as it did in the law of defamation, the hurried action of a moment is often not the best test. Considered action is the better gauge. Whatever one thinks of the parallel, however, the point is that the response to an otherwise unanswered question in court practice came from two texts, one canonical, the other civilian. Texts rather than policy, statute law or past precedent made the difference. At most, the texts were the necessary condition for applying reason's lessons and looking to common usages to determine the outcome of the case.
A third example comes from the penal law of the church. It raised a question that was often asked: Could a defendant in a criminal cause be represented by a lawyer? Was it lawful for a proctor to represent him and his interests in an ex officio prosecution? The rule under the ius commune, long observed in the English ecclesiastical courts, held that a person accused of a crime could not be so represented. The person must turn up in person and defend himself as best he could. Much modern puzzlement and criticism has met this same rule in the English royal courts, where a man could be hanged for felony without having a lawyer defend him. The rule was the same in the courts of the church; it has seemed more defensible there primarily because the penalties in the spiritual forum were less severe. Only in heresy trials were they comparably harsh.
Whatever we think now, by the sixteenth century at least, there was a current of thought in favour of extending the right to legal representation to defendants under some circumstances. It had a limited but real success in the courts.Footnote 44 The merits of that development are not the subject of this lecture. Its object is simply to show how the change was accomplished. The change did not take place by citation of public sentiment newly awakened to the injustice of the traditional rule. Nor did it happen through repeated assertions, made by jurists, that public policy or fundamental fairness required the rule's amendment. It happened through discovery and exploitation of a text in the Digest (D 3.3.33.2).Footnote 45 That text read:
It is in the public interest that someone should be able to defend absentees, for the right to a defence is granted even in capital crimes. Therefore, in all cases where a person can be condemned in his absence, it is right to give a hearing to someone speaking on his behalf and defending his innocence.
Under the most natural reading of this language, a very limited right to legal representation was being conceded. If the accused could not be present in person, someone should be allowed to speak for him – to assert his innocence and to explain his absence. So it had long been understood. If, however, one laid stress on words of the text that asserted an accused person's right to a defence and therefore treated the case of absence as merely an example of one particular circumstance in which the principle could be implemented, then a broader scope for allowing intervention by a lawyer was opened up. That is exactly what happened. The jurists began to distinguish intervention by a lawyer ‘in order to defend the innocence of the defendant’ from intervention to conduct the case in the defendant's place.Footnote 46 The first might be permissible, even if the second was not. To buttress this distinction as a legitimate reading of the text, they cited the accepted natural law principle that no person should be condemned without being given the chance to offer a defence. Even Adam in the Garden of Eden had been allowed to do this. Of course there were no lawyers present in the Garden of Eden, and Adam had little enough innocence to demonstrate, but circumstances change and the Digest's text could be used to announce and justify a more lenient rule without overturning the traditional practice or contradicting settled law. One of the established texts was actually the vehicle for defending the practice of allowing a lawyer to appear, and in the context of this lecture, that really is the point. The supposedly backwards-looking curriculum at Oxford and Cambridge in fact gave students the ability to find and make use of texts like these.
The importance of an exact familiarity with the contents of the Corpus iuris civilis and the Corpus iuris canonici is evident in virtually all the significant changes in the internal practice of the English ecclesiastical courts that took place before the civil war. The gradual acceptance of the holographic will – that is an unwitnessed testament written entirely in the testator's own hand – depended largely upon a text from the Codex involving comparison of handwriting in determining the authenticity of commercial documents.Footnote 47 The ecclesiastical lawyers did not argue that because a greater segment of the population could read and write, the change should be made.Footnote 48 They looked to an analogy from an existing text in a different area of the law, and they found one. The creation of a law of jactitation of marriage – a ‘cause of action’ used when one person boasted untruly that he had contracted marriage with another, with the consequence that the other's chances for an advantageous marriage alliance were harmed – arose out of a text from the Roman law that stated it was a wrong to impute an unfree status to a freedman.Footnote 49 Contemporary lawyers did not argue that women's rightful claims required the creation of new law. They drew an analogy with an existing text. The enlargement of the ecclesiastical law of defamation to encompass injurious words that feel short of the medieval requirement of imputations of prosecutable crimes grew out of a familiarity with the Roman law of iniuria. The English civilians did not talk about the needs of society or the serious harm to reputations created by untrue statements. They looked first to Roman law texts. In these situations as in others like them, the underlying basis for legal development may of course have been changing social mores. I do not deny this. But from the perspective of a practising lawyer, all of them required first a text from the Roman or canon law, a text that had attracted commentary from one of the many learned men who had lectured upon those texts. Without that legal foundation, changing social mores or the march of precedent counted for nothing or little. It is this feature of law practice that rendered the lectures delivered in the law faculties of Oxford and Cambridge more than exercises in legal theory. It is this that made them relevant to contemporary law practice.
Progress in law thus grew from the exploitation of the potential that commentators found in the traditional sources of law. To take an ancient text dealing with the status of a former slave and to see within it a principle that could enlarge the legal rights of a woman whose marriage prospects had been harmed by a false claim that she was already married is not a natural talent. It has to be learned. It requires a student to hear the possible connection being made and to develop his own powers of analysis and imagination to a point where they are capacious enough to make that connection himself. That was a continuing goal of legal education at Oxford and Cambridge, and in some measure it succeeded.
Some qualifications
Of course, one might object – if only they had had a modern legal education, the English civilians would have done even better. They would not have been so closely tied to ancient texts and outmoded methods of argument. They would, in a word, have been more like us. Maybe so. But this objection presupposes a very different climate of thought than the one that existed in 1600. It would have been quite unrealistic – to put it no more strongly – for their legal education to have prepared them for a legal world that was four centuries in the future. The short of it is that the education offered to future English advocates and judges – text-based and traditional as it was – was what they needed if they were to succeed in practice as it then stood. Modern critics of that education have been largely right in describing its salient features, but they have been anachronistic in concluding that those features were simply the product of academic sloth. Far from separating their students from the realities of law practice, the traditional approach that prevailed at the English universities, as it did on the Continent, prepared them for those realities.
Have I exaggerated in making this point? Perhaps I have. Certainly it is true that students would have learned many things at university that were of little practical value in practice before an ecclesiastical or maritime court. The so-called ‘Year of Silence’ required of the civilians when they first moved from university to London (or wherever they would move) certainly supports the conclusion that I have gone too far in making a claim in favour of the worth of existing forms of legal education. Furthermore, it is also true that many of the methods of argument used by the English civilians have modern analogies. The Digest might be thought of as something like a book of precedents or even statutes. Its interpretation, based upon common practice and principles of natural law, might then be regarded as quite similar to current rules of statutory interpretation. There are parallels.Footnote 50
Even conceding the merit of these objections, I do not think my argument is wrong. The analogy to modern practice is no more than that – an analogy. Excerpts taken from Ulpian were not the equivalent of commands from the sovereign. Nor were they treated in practice as if they had been. Some of the tools of legal reasoning may look something like our own, but the preparation of a legal argument today differs in sources and approaches from that used by medieval civilians and canonists. Moreover, although it is true that academic civilians had to learn many details of court practice after they had left university, including learning to draft some of the documents used in litigation, that necessity did not make their academic training useless. A gap between practice and academic training exists today. Academic lawyers say that many practical aspects of becoming a lawyer are best learned in the environment of a law office or a working court. In this, I think there is more than academic self-indulgence. This two-step process has served the legal profession quite well in the States for over a century. Its partial breakdown today is causing unfortunate results in my country, results that happily are not my duty to describe today. Traditionally, what had been learned as a young lawyer in his first years of practice has filled out what students have learned in the Schools, but it has not rendered that learning superfluous. In principle, much the same could be said of legal education in Renaissance England. From 1400 to 1650 and probably beyond, something like the same pattern prevailed. At the universities, English civilians and canonists learned a skill in handling legal texts that was essential for their successful practice before the courts. That was the first but essential step.
CONCLUSION
There is one thing more. Perhaps it would have been more accurate to say: ‘they were supposed to have learned’. Did students at the law faculties of Oxford and Cambridge actually learn much of anything? That question matters. It brings one back to the first criticism commonly made of legal education in the English universities. This was that the study of law represented ‘the soft option’ for students, a refuge for men uninterested in serious academic work. So far, I have said almost nothing about that criticism and in fact, research in the legal literature of the time does not do much (if anything) to answer this criticism. It does not provide reliable information one way or the other. And if this first criticism is sound, even if I am correct in my understanding of the inner nature of the ius commune, I will have made only a theoretical point. If law students are habitually indolent and actually learn very little, the best educational plan in the world will count for little after they leave the academy.
Well then, were they indolent? Were the law faculties at Oxford and Cambridge refuges for men with a distaste for intellectual effort? It is hard to know, but in considering the question we could do worse than to ponder the description given by Richard Graves (1715–1804), a fellow of All Souls during the supposed nadir of legal education at Oxford. Graves wrote that at his College, ‘though there were many very studious young men, there was often a party of loungers in the gateway’.Footnote 51 A fair bet is that these words give an accurate picture of the situation overall. One's conclusion depends upon which group one looks at – the students or the loungers. Both were there. I would only add a point which must be obvious: that for many modern historians, just as for earlier passers-by at the gateway of All Souls, the loungers would have been much the more visible group.
