Except among a small coterie of specialists in mediaeval canon law, the contribution of English ecclesiastical lawyers to the formulation and growth of the law of the Church has never loomed large.Footnote 1 There is an apparent reason for this: English canonists never played a role comparable to that of the leading lights from the Continental universities. Even admitting this, however, the contribution to this great work that was in fact made by English lawyers was not negligible. Some of it should be made visible.
The case for recognising the English contributions is particularly strong for the twelfth century. A once common view, stated forcefully by Maitland and Brooke, held that, during the pivotal era between the completion of Gratian's Decretum in the 1140s and the compilation of the Gregorian Decretals in 1234, the leaders of the English Church lagged behind their Continental brethren in knowledge of, and perhaps even respect for, canon law.Footnote 2 Why else should they have required so much correction at the hand of Pope Alexander III? The preponderance of papal letters addressed to English bishops so conspicuous in the Decretals reflects their need for instruction and correction.
In fact, however, something like the reverse has now been shown to be a more accurate explanation. The large number of decretals sent to England actually shows that twelfth-century Englishmen played a particularly creative part in the movement forward of the ius commune. Indeed, they were in the vanguard. Of this, there are few better examples than the subject of this note, Roger, Bishop of Worcester from 1164 until his death in 1179.
ROGER'S LIFE AND CAREER
The youngest son of Robert, Earl of Gloucester, Robert was born c 1133. He was brought up in the company of his cousin, who would become King Henry II, while Henry was in the care of his uncle Earl Robert. Destined for the Church, Roger studied in the schools in Paris, though we cannot be sure about the subject. Thomas Becket did later once apply the term iurisperitus (jurist) to him, at least in an oblique way,Footnote 3 but it is not certain that the archbishop meant this to refer to an academic qualification. As a bishop, Roger was also commonly addressed as a man familiar with the intricacies of the law,Footnote 4 but again this may reflect only the kind of knowledge that comes from dealing repeatedly with worldly matters.Footnote 5
As Bishop of Worcester, Roger inevitably became involved in the dispute between Henry II and Thomas Becket, somehow managing to retain the good will of both men. Even so, he spent most of the years between 1167 and 1172 in France, ostensibly for the purpose of study.Footnote 6 Upon his return to England after the Settlement of Avranches (1172), his work as diocesan bishop earned high praise among his contemporaries. Nigel of Canterbury called him ‘famous for holy living, faith and nobility’.Footnote 7 Gerald of Wales described him, together with Bartholomew, Bishop of Exeter, as ‘twin candelabra illuminating all Britain’.Footnote 8 Thomas Becket professed his admiration for Roger, albeit in slightly ambiguous circumstances.Footnote 9
If this were the sum of Roger's life and career, he would have no particular importance to England's place in the history of ecclesiastical law, except perhaps to shed some light on the reaction of a sensible participant in the ‘Becket controversy’. In fact, it was to this subject that the entry in the first Dictionary of National Biography devoted almost its entire entry. More recent scholarship – in particular the careful work of Mary Cheney – has allowed us to take a fuller and more balanced look at the whole of Bishop Roger's career.Footnote 10
ROGER AS A PAPAL JUDGE DELEGATE
Roger's work as an ecclesiastical lawyer is most visible in the sources as a papal judge delegate. The twelfth century witnessed a dramatic increase in the number of disputes appealed to the papal court. Even quite trivial causes were brought there. However, these causes were rarely decided in Rome. Most were sent back to be heard where the parties and the witnesses lived. Local judges were appointed to act, according to forms and instructions worked out at the papal court. Many English clerics carried out this role, but few as often as Roger of Worcester. An estimate made 40 years ago put the number at between 60 and 70 instances in which he was appointed or addressed as one of the papal judges delegate,Footnote 11 and Cheney's more energetic efforts have pushed that number to something close to 130.Footnote 12 Considering the survival rate of documents from the mid-twelfth century, 130 is a large number. Of course, by itself the number proves little about Roger's expertise in law. Legal training was not a prerequisite for service as a papal judge delegate.Footnote 13 Prominent men were likely to have been appointed, whatever their qualifications. Here, however, when coupled with Pope Alexander III's high opinion of Roger's probity and knowledge,Footnote 14 the frequency of delegation to him does suggest that he was regarded as a particularly able judge.
The rise of this system of delegated jurisdiction is most commonly used to show the centralisation of power in the hands of the Roman pontiffs in the twelfth century. It does show that, no doubt. But understanding the nature of that system and the way it worked in practice is more important as evidence of how the canon law grew, and Roger of Worcester's part in it shows this with particular clarity. The outlines of the story are familiar. By the mid-twelfth century the study of Roman law had established itself in the nascent European universities. Gratian's Decretum had also been completed and was being taught in the Schools. These were both signs of progress towards a mature ius commune. However, the former could not serve as a statement of the law of the Church, since too many of its texts were out of line with spiritual principles regarded as vital to proper rule of the Church. The Decretum, too, was insufficient for a working system of law, nor was is meant to be. It was a school book, useful in teaching legal skills and in stating general principles of canon law, but of lesser utility for dealing with the questions of law and procedure that arose almost daily in the dioceses of the Western Church. Think, for example, of the law of elections or the law regulating appointments to ecclesiastical benefices. The Decretum contained too many contradictory texts and too few fixed directions to guide the course of litigation. That remained to be done.
And it was done. Many things contributed to the evolution of a workable system of canon law – the creation of a system of consistory courts, the enactment of constitutions in Church councils, the work of generations of canonists and commentators. But the regular use of delegated jurisdiction was the primary contributor during the twelfth century, and Roger of Worcester's role shows with particular clarity the advances in canon law that it made possible. He was not simply a recipient of orders from Pope Alexander III. Much of the law was new, and Roger was active in framing the legal issues, sometimes suggesting one solution or another on the basis of his own experience. Cheney speaks of ‘interplay’ between the two men in deciding what to do.Footnote 15
Exchanges of views seem to have arisen out of Roger's own experience in dealing with difficult questions – the abuses associated with the appropriation of parish churches to monastic houses, for example. The monks had sometimes imposed such unrealistic monetary burdens upon the vicars whom they appointed to serve their parochial churches that the vicars could not sustain the responsibilities of hospitality or fulfil the duties of their office. Roger consulted the Pope about the problem, and the papal response, requiring that a congrua portio be assigned to the vicar, at length found its way into the Gregorian Decretals.Footnote 16
Similar dilemmas recurred in the correspondence between the two men. Another decretal letter that ended in a statement of the general law of the Church forbade the imposition of annual pensions on benefices without the consent and supervision of the diocesan bishop.Footnote 17 It was an attempt to preserve parochial revenues for spiritual purposes. Roger had applied to Rome for instructions and support in one such matter – he needed help in dealing with local opposition on the part of monastic houses. And he seems to have played an active role in formulating what would become the general law of the Church.
What Cheney called a ‘veil of obscurity’ surrounds many of the causes dealt with by Roger as judge delegate,Footnote 18 but when that veil is lifted we see a process beginning with a statement of the difficulties and possible solutions; the consultation produced a working out of the most realistic solution. The difficulties of securing the appearance of litigants, for example, led gradually to the development of a law of expenses, imposing progressive fines for delay on parties who refused to come before a competent judge.Footnote 19 It was worked out by consultation and experiment. It was not, of course, a perfect remedy. But it was better than the alternatives.
In these situations, the Pope had the final say. No matter his esteem for Roger, Alexander did not always follow the desires of the English bishop. When Roger suggested ways of curbing some of the appeals that were being made to the papal court in matters of little significance, for example, Alexander replied that ‘it was necessary to defer to appeals made on trivial questions … no less than in those concerning greater matters’.Footnote 20 The right to appeal was a matter of principle for Alexander, but the number of appeals and the abuses that the right fostered were problems that would continued to fester. The title De appellationibus in the Decretals was one of the longest and it was followed by similar titles in the Liber sextus (1298) and the Clementines (1317).Footnote 21 The routine delegation of causes appellatione remota never worked very well to stem appeals, and ‘trivial matters’ can be hard to define. One man's trivial cause is another's question of principle. That Roger chose to raise the problem speaks of its difficulty as well as of his practical-mindedness. Even his failures give evidence of that quality.
ROGER AND DECRETAL COLLECTIONS
One of the results of the interest in canon law among the English clergy was the collection of papal decretals, and it is this habit of preservation that best explains the preponderance of English sources in the Gregorian Decretals, not a need for correction of the English clergy. These decretals, stating some of the most recent legal rules, called out for collection and organisation. Roger had a hand in the process, although it is rarely possible to ascribe any specific collection to one individual or another. At any rate, three of the early surviving decretal collections had a connection with the see of Worcester and, in the judgment of specialists, a connection between them and Roger's initiative therefore seems highly probable.Footnote 22
The connection is important. It was through the process of collecting papal decretals and arranging them in a usable form that the law of the Church was advanced. The papal chancery made no systematic record of the letters sent to the far corners of Europe. True, there were earlier collections, but much of what was being done was new. If not legislation, the instructions to papal judges delegate entered areas where decision was needed. As the number of letters of justice coming from the papal court increased, the result was a ‘forest’ of decretals – stating the law in particular cases, but unusable without organisation. That was the function served by the English collection of papal decretals. Once arranged by subject matter, they passed into general circulation, eventually ending as the Quinque compilationes antiquae and then the Gregorian Decretals edited by Raymond of Peñafort.Footnote 23 It was neither accident nor policy that English decretals figured so prominently in the process. It was a result of English work of collection. In this activity, Roger took a part. His work as a judge delegate was both a means of and a spur to the process. It made them more widely available. We cannot penetrate the details of this process, but that he played a role in its encouragement is so likely that it would be foolish to allow academic caution to reject it out of hand. By all accounts, Roger was a practical man. In his time, this was probably the most practical step for an ecclesiastical lawyer to take.
