Professor Richard Helmholz (University of Chicago) is not only the most important living historian of the place of canon law in England; he is its most important historian ever. Outstanding among his many publications is the monumental volume for ‘The Oxford History of the Laws of England’, entitled The Canon Law and the Ecclesiastical Jurisdiction from 597 to the 1640s (2004). He considers it a deficiency in that volume that it left people out. His new book allows him to put some of them back.
The nature of the Common Law, the effects of the Reformation, and legislation by Parliament have played their part, sometimes decidedly unfavourably, in shaping both the practice and the study of canon law in England. In more recent times, the establishment in 1987 of the Ecclesiastical Law Society and its Ecclesiastical Law Journal has generated and sustained an intellectual renaissance and also, perhaps, the slow reconstituting of some kind of corporate professional identity for those engaged with the law of the Church of England. A milestone was the series of articles in that journal by John Baker, published in 1998 as Monuments of Endlesse Labours: The English Canonists and their Work 1300-1900. A further milestone is now published by Helmholz, based in part on his series of biographical studies in the same journal, adding to and complementing Baker's volume.
By means of a wide-ranging knowledge of the relevant legal concepts and procedures and original research, Helmholz presents first a conspectus of the profession of ecclesiastical lawyers and then illustrates it by 18 succinct biographies. These range chronologically from Roger of Worcester (d.1179) to Henry Charles Coote (d.1885). The sources listed and the bibliography show the range and depth of Helmholz's scholarship. His hallmark familiarity with archives is brought out, even poignantly so, in the chapter on William Somner (d.1669). Somner, a notary public and ecclesiastical registrar, considered the Civil War and Interregnum as ‘an unhappy and destructive’ time, yet he kept the last Act book from before the Civil War, its entries petering out by 1643. With the restoration of the monarchy the situation altered. Somner entered on record acta for 1660 in the same Act book, only half a folio away from the last entry in 1643. This really is legal history close up. There are numerous other instances of Helmholz's illuminating deployment of details.
‘The Profession Described’ presents the law concerning the legal profession, in particular as it regulated advocates and proctors, and the education of ecclesiastical lawyers. The rest of Part I is given over to two of the three most dramatic moments for the profession and its legal system, presented as: the Protestant Reformation and the approach of the Civil War. Helmholz gives some scattered indications of the third dramatic moment, the radical impact of Victorian reforms, and H.C.Coote illustrates this impact. Coote had been admitted to Doctors’ Commons as a proctor, yet by the time of his death in 1885 Doctors’ Commons had been wound up and he had become a solicitor.
Given the complexities and at times controversial nature of the subject he deals with, Helmholz recognises that he might be thought to paint a rosier picture of the world of ecclesiastical lawyers than other historians have. Here we can simply note his conclusion that the surviving evidence shows that the majority of English ecclesiastical lawyers in practice in the church's courts stuck to their posts and to their profession despite the changes in religion that occurred in the 16th century. As for the years from 1600 to the 1640s, they were indeed testing times for the English ‘civilians’. Some of Helmholz's well-founded observations will challenge readers used to rather different narratives: efforts to rewrite the church's law in the Reformatio legum ecclesiasticorum were indeed begun under Henry VIII and extended under Edward VI yet it never became law; admission to study law at the universities recovered in numbers during the reign of Elizabeth and her immediate successors; and it is easy to exaggerate the effects of the threats to church courts posed by the Common Lawyers. Not that Helmholz would wish to deny either the reality or the importance of religious change. (How and by whom Roman Catholic canon law has been studied and applied in England since the Reformation is a separate and even more submerged story).
The 18 biographies in Part II are of intrinsic interest as well as making specific the conspectus presented in Part I. One can select so as to give some idea of what is to be found. Helmholz champions Roger of Worcester as an ecclesiastical lawyer and his contribution to collecting and arranging papal decretals as significant. The biography of Gilbert Foliot (d.1187), like Roger a bishop and a papal judge delegate, adds a possible nuance to Roger's achievements. Then there is Helmholz's positive evaluation of the Pupilla oculi by John de Burgh, printed in England and on the Continent long after his death in 1398. The treatment of Richard Zouche (d.1661) makes the point that his Descriptio provided a straightforward exposition of ecclesiastical jurisdiction in contemporary England, yet its citations were more often continental than they were local. Another significant focus is on what appear to have been the lecture notes by Francis Dickins (d.1755) as Regius Professor of Civil Law at Cambridge, and Helmholz derives a surprising amount from the Notebook of Clement Colmore (d.1619), long-time judge. Daniel Dun (d.1617) illustrates the general point that most lawyers do not write treatises, and for historians to ignore this feature of professional life may cause them to misjudge the importance of ecclesiastical lawyers such as Dun. Lawyers act. They represent clients in court; give advice; administer organisations; they serve governments.
Helmholz concluded many years ago that legal history is winner's history, and at the end of the day the ecclesiastical courts were losers. The relative neglect of the study of the ecclesiastical legal profession and its juridical world has been distorting, and this makes Helmholz's contributions to redressing the imbalance all the more necessary and impressive.
