Session "Consonance and Divergence in English Canon and Common Law, c. 1150-1300"

  • David De Concilio (Organiser)

Activity: Participating in or organising an event typesParticipation in or organising a conference


Paper #1: Verona 1187. Pillius and the monks of Canterbury
Presenter: Prof. Emanuele Conte
The dispute between the monks of Canterbury and the archbishop Baldwin, which took place in 1187, was a cause célèbre of his age.
The case is well known: in 1186 the archbishop Baldwin, backed by the king Henry II, established a collegiate church at Hackington, a suburb of Canterbury, in honour of S. Thomas Beckett and S. Stephen. The new church would have been a menace to the prestige of the ancient Christ Church of Canterbury, because it had to be funded with some of the revenues of the rich Benedictine convent, and because the archbishop and the king would be in absolute control the composition of the new fraternity. The case was discussed before the Pope Urban III at Verona in 1187 and opposed two among the most learned men of their times: Pillius de Medicina was the lawyer of the monks, while the archbishop was represented by Peter of Blois. The case has left a number of witnesses in practical and scholastic literature. This paper aims at reconstructing the legal arguments mobilized by the two parties at the trial.

Paper #2: Exceptions in English Ecclesiastical and Common Law
Presenter: Dr. Sarah White
My paper focuses on the treatment of exceptions in Romano-canonical treatises “Scientiam,” “Olim,” and the ordo of Ricardus Anglicus, and the Common law treatise known as Glanvill. The ordines devote substantial sections to the bringing of exceptions, that is, reasons why a claim or accusation was incorrect in this particular case and therefore proceedings should cease; very revealing not only of courtroom argument but of legal norms more generally. An interest in exceptions has often been considered a particularly “English” element in procedural writing and even used as an identifying feature. For example, the extensive treatment of exceptions in “Olim” (second only to “Scientiam”) has been suggested as a reason for the popularity of the treatise in England (Fowler Magerl, p. 94) and even as an indication of English authorship (Gouron, p. 94). The pleading of exceptions is less prominent in Glanvill, although they do appear. For example, knowledge of ecclesiastical practice is indicated by the statement that exceptions can be made to Grand Assize jurors in the same ways in which witnesses are justly rejected in church courts. (Glanvill, ed. Hall, p. 32)
With this in mind, an examination of exceptions in Glanvill in comparison with the Romano-canonical treatises from the same decades may shed further light on the conversation between ecclesiastical and secular law in the twelfth century. As most of Common Law procedure will not accord in form to the Romano-canonical procedure, this analysis will attempt to identify points of influence rather than compare procedural frameworks. The purpose is not to look for conscious borrowings, but instead for parallels, similarities of language, and coincidences that seem too striking to be coincidental.

Paper #3: A Romano-canonical connection with common law? Fama creating presumption in the medieval English criminal jury procedure.
Presenter: Kim Thao Le
In the long twelfth century, Romano-canonical law transformed itself into an inquisitorial system, based on ex officio procedure. England took a different path as its criminal procedure relied mainly on jury which evolved to take the shapes of the presentment jury and the trial jury. Nevertheless, trial records showed that both procedure shared the similarity of relying largely on testimonies, whether they came from witnesses or from jurors, on fama of facts and of persons.
In order to contribute to a better understanding of these changes in common law, my paper starts from this point of similarity to examine any patterns of influence. Through a comparative study between ecclesiastical treatises, ex officio trial records and royal justice records, my paper analyses the nature and the impact of fama on how the thirteenth century’s English criminal jury carried out its functions of accusation and adjudication, especially through the notion of “suspicion”, to see whether it was systematised as a form of proof as in Romano-canonical law. Specifically, it examines the interactions between reputation and procedure. The results show some similarities with the ex officio procedure: mala fama in common law also creates a presumption of guilt for the jurors.
By examining the nature and the extent of the links, whether conjunctional or causal, between these sources, my study on fama goes beyond the simplistic distinction between civil law and common law, as it evaluates the impact of these links on the development of the English medieval common law.

Paper #4: The argumentative use Romano-canonical sources in late twelfth-century Anglo-Norman world and continental Europe.
Presenter: David De Concilio
The irreconcilable opposition between Romano-canonical law and Common law traditions lies in the idea that both are conceived mainly as alternative systems of substantive law. If instead we consider the Romano-canonical sources not as a systematic picture, but as repositories of legal arguments to mobilise case by case, we can find a strong analogy between how they are used on the two sides of the Channel.
This is particularly evident in the genesis of the twelfth-century collections of brocards; this paper aims at showing this analogy by focusing on one of the oldest of these collection, the canonical work known as ‘Perpendiculum’, which today is believed to have an Anglo-Norman origin (Gouron, 2000).
In this perspective, this paper aims at shading some light on the Perpendiculum and at reconsidering the studies on this work, by presenting the planned edition of its text and by analysing again the issue of its origin on the light of the most recent findings.
Finally, this study aims to suggest how the textual history and the origin of the Perpendiculum shows a similar use of the Romano-canonical sources as repositories of arguments, both in England and on the continent: collections of arguments like this work are firstly produced in the Anglo-Norman area, tapping into Canon law, and successively in the rest of Europe, opening to arguments of Roman law. Furthermore, this pattern of legal translation underlines the existence of a twelfth-century common European learned legal culture, which connected together Anglo-Norman England and continental Europe.
Period19 Jul 202025 Jul 2020
Event typeOther
LocationSaint Louis, Missouri, United StatesShow on map
Degree of RecognitionInternational