To include a man whose name identifies him with Ireland in a series devoted to English civilians may seem a stretch, but William of Drogheda has normally been treated in this fashion – and not without good reason. Everything that is known today about his life and work took place in England. He held the benefice of Grafton Underwood in Northamptonshire, and he sought to be buried (together with his parents) in the priory church at Monk Sherborne in Hampshire. He was a teacher of law in Oxford, an association called to mind by the existence of ‘Drawda Hall’ in the High Street. Nothing but his name places him across the Irish Sea.
WILLIAM OF DROGHEDA'S REPUTATION
At least when compared with many other English ecclesiastical lawyers, William's life and career have not been neglected by historians: his name and work figure among those mentioned in the standard encyclopaedic guides to the history of canon law.Footnote 1 What has survived of his principal contribution to the development of the procedural law of the church, the Summa aurea, was published in a scholarly edition by Ludwig Wahrmund in 1914,Footnote 2 and several treatments touching upon William's career and historical importance have also appeared over the years.Footnote 3
English legal historians have made use of William's career and work for their own purposes. The greatest among them, FW Maitland, invoked the Summa aurea to show that the claims to power of the medieval papacy were fully acknowledged in England in the early thirteenth century.Footnote 4 HG Richardson relied upon the text of William's treatise to assess the extent of civilian influences on the thirteenth-century treatise on English law known as Bracton.Footnote 5 More recently, Jane Sayers drew on his work to help provide information about the ways in which the jurisdiction of papal judges delegate was exercised in England during the early thirteenth century.Footnote 6
Accounts of William's career have often been enlivened by comments assessing the quality of his work and character – most of them distinctly negative. Hermann Kantorowicz, for instance, felt moved to single out the Summa aurea as ‘one of the worst products of medieval legal literature’ of which he was aware.Footnote 7 An earlier and equally learned German critic agreed: ‘There is little good that can be said of it’.Footnote 8 Maitland himself added a more directly personal criticism: some of the suggestions that William made for use by ecclesiastical lawyers, he thought, were ‘none too honest’.Footnote 9 It has been easy to think it no great loss to the legal profession that William was murdered by one of his servants in 1245.
There are, however, good reasons for pausing before dismissing William's contribution to ecclesiastical law, particularly since the writers who lived nearer to his own time held a more favourable opinion of him. Joannes Andreae (c 1270–1348), the most famous canonist of the fourteenth century, described William's work as praiseworthy and productive.Footnote 10 Alberico Gentili (1552–1608), the great Italian jurist who himself found a home in Oxford after being driven from the land of his birth, also praised the merits of his predecessor's work.Footnote 11 A late thirteenth-century compiler of a basic collection of works on the procedural law of the Church thought highly enough of William's Summa to include it with the admired works of Geoffrey of Trani and Tancred of Bologna.Footnote 12 The existence of these opinions at least suggests the possibility of a more positive assessment of William's work than he has received from modern historians. So does the recent discovery of two additional manuscripts of the Summa aurea, one from across the Channel in Bruges.Footnote 13 Four of the previously known six manuscripts were also located in Continental archives.Footnote 14 Evidently, he had a following outside England.
Other recent scholarship has also opened the door to a fresh look at the evidence. Substantial work, both books and articles, devoted to the development of procedural law in the ius commune has now been done,Footnote 15 and a useful research paper on the nature and sources of William's treatise has been written: a valuable, though unfortunately still unpublished, paper by Professor Rudi Lindner of the University of Michigan.Footnote 16 Arriving at a more balanced judgment of William's merits as a jurist is easier than it was one hundred years ago.
THE SUMMA AUREA
William planned a treatise divided into six separate parts. They were to be devoted to: jurisdiction, the parties and preparation for trials; from the litis contestatio to the sentence; sentences and their consequences; appeals; matrimonial causes; and criminal prosecutions and canonical elections. These six subjects were specifically named in his Prologue.Footnote 17 However, if he completed more than the first of these before his untimely death, none of them has come down to us. We must use what there is to estimate what there might have been. Luckily, what remains is sufficient for us to form a good idea of the intent and the place of the work in the larger history of the law of the Church. Five features deserve particular attention, and all of them require us to consider the date of composition: the Summa was written in the 1230s, almost contemporaneously with the appearance of the Gregorian Decretals in 1234.
Use of Roman law
Like most works of the ius commune, the text of the Summa aurea was filled with citations to legal authorities. Later on, a similar effort would have included citations to the great commentators – Bartolus or Panormitanus, for example. In the first half of the thirteenth century, however, references were more commonly limited to the texts of the Roman and canon laws, sometimes without even mention of the glossa ordinaria that accompanied the texts. The great treatises lay in the future. In William's work, Professor Lindner has established the dominance of citations to the Corpus iuris civilis. There were citations to the Gregorian Decretals and Gratian's Decretum, even a very occasional mention of another jurist.Footnote 18 By Lindner's count, however, there were 4.7 times as many citations to Roman law texts as there were to canonical texts.Footnote 19 This preponderance takes the reader back to the days when the canon law was very much the junior partner to the elder of the two laws. Vacarius, a teacher of Roman law, had been the dominant figure in England. Even the law of marriage, which increasingly fell within the Church's jurisdiction, was built mostly from the Roman law, except occasionally where a specific ecclesiastical decision asserted the necessity of altering the law.Footnote 20 William's approach to law in this treatise therefore provides a sharp reminder of the civil law's initial dominance in the formation of the ius commune. That dominance was overcome, but only gradually.
Procedural focus
The extent of the attention that was commonly paid to procedural law during the twelfth and thirteenth centuries is also an important point. The proliferation of ordines iudiciarii and works similar to William's responded to a need. Part of the need was caused by the character of the classical texts, since the Roman jurists had not adequately separated procedure from substantive law. The procedure used at the time when the texts in the Digest were written was also quite different from that which had come to prevail by Justinian's time. Applicable texts were scattered throughout the Digest and Codex; they had not been put into titles of their ownFootnote 21 and there was a consequent need for more usable presentations. William responded to it.
Another reason for the need for procedural works was caused by new ways of thinking about settling disputes and trying criminals.Footnote 22 Ordeals were being abandoned; permanent courts of law were coming into existence; the search for workable rules of evidence was underway; and the compilation of written records of court proceedings was beginning to be required.Footnote 23 William's work should be understood in the context of these fundamental developments in Western law. His contributions were overtaken in due course – notably by the elephantine treatise compiled by Willelmus Durantis (1231–1296), the Speculum iudiciale: filled with forms and miscellaneous information, some of it seemingly compiled at random, it became the standard resource of ecclesiastical lawyers. That was one reason why William's Summa aurea was not printed before modern times, but, if seen in context, it should be admired as one part of a great and largely successful development in the law.
Prolixity
Drogheda has been criticised for disorganisation and loquaciousness in the presentation of his material.Footnote 24 At one point, even the usually even-tempered Professor Lindner described him as ‘a windbag’. That characterisation is not without support in the treatise: for example, the Summa aurea contains 43 different forms for the appointment of proctors,Footnote 25 and the Prologue is excessive in discursiveness even by the elastic standards of the time. Some of the many libels for which forms are given – for instance one complaining against an impeder of the complainant's use of a privy – cannot have been in common use.Footnote 26 It is hard to explain, much less to justify, the multiplicity of forms found in the treatise. What can be said in partial mitigation is that the treatise was written at a time when jurisdictional boundaries were more fluid than they later became. It was also a period open to development in the received law.Footnote 27 There was room for experiment, and William seized the opportunity. He may have gone too far, but he could have believed that full discussion with illustrations would be useful, and this would not necessarily have been obvious self-deception. He was also not the only author who could be charged with verbal excess. In attention to the virtues of clarity and conciseness, he stands somewhere between the economical Tancred of BolognaFootnote 28 and the truly unstoppable Durantis.
Scholasticism
A large part of the Summa aurea is taken up by quaestiones, a standard method of presenting information in the thirteenth century. Gratian had used it, and Thomas Aquinas honed it into a repetitive art form in the Summa theologica. In William's work, to take one example, titles 400–426, which deal with judicial treatment of papal rescripts of justice, are split into 26 separate quaestiones. Some are quite short, but most of them are divided into statements of an affirmative opinion, followed by a contrary opinion, ending with William's solution. So, for example, it was asked: if a papal rescript contained a suggestio falsi, could the judge proceed to hear and determine the cause nonetheless. Authorities for and against were presented. Then the jurist ‘solved’ the problem, in this case by distinguishing between judges with ordinary jurisdiction and judges with delegated jurisdiction. In other words, the quaestio and the solutio came out of the Schools. We cannot lay blame at William's door for this feature of his work, though it is far from certain that his solution to the problem carried the day and it is true that most of the medieval jurists did not adopt this artificial way of presenting the subject. It is also worth noting that some (though not all) of the ‘none too honest’ tips to which Maitland took exception resulted from the scholastic habit of advancing arguments pro and con.Footnote 29
Practicality
Despite its connection with the Schools, the Summa aurea was not a purely academic effort. William himself took an active role as a lawyer in the forum externum, and his treatise was filled with observations about what commonly happened in courts and with advice about how to proceed in them. For instance, he advised advocates to make sure that they received their professional fee before the end of a proceeding.Footnote 30 He tackled this touchy subject with good sense, not allowing himself to get caught up in speculation about how to deal with the ancient prohibition against lawyers demanding any payment for their services.Footnote 31 Similarly, he advised his readers to avoid the use of the civilian aestimatio of damages in the spiritual forum.Footnote 32 To do so, he noted, would risk the introduction of a royal writ of prohibition that would bring the case to an unnecessary halt. This was the identical advice given two centuries later under similar circumstances by William Lyndwood.Footnote 33 If William of Drogheda sometimes went too far in this concern for practicality, as he did in advising lawyers to use deliberate and unnecessary delay in litigation as a tactic to wear down any opponent who had a meritorious case,Footnote 34 one can only concede that Maitland's estimate was not wholly wrong. In its favour, however, the Summa aurea provides an early example of one of the continuing admirable features of the profession of ecclesiastical law in England – a preference for success in result over purity in theory.
