VIII.

In the course of his researches for the _History of English Law_

Maitland had been drawn into the unfamiliar region of ecclesiastical

jurisprudence, a department of knowledge once of the highest importance

throughout Europe, but, save for one exception, fallen into complete

desuetude at the English Universities ever since the study of the

Canon Law was proscribed by Henry VIII. The exception was provided

by William Stubbs. That great master of medieval history had from his

Oxford Chair delivered and subsequently published two lectures upon the

Canon Law in England. A stout patriot and a high Anglican, Stubbs was

concerned to exhibit the continuity of the English Church before and

after the Reformation; and both in his Oxford lectures and in a famous

report drawn up for the Royal Commission on Ecclesiastical Courts he

gave the weight of his authority to the opinion that the Canon Law of

Rome, though held to be of great authority in England during the Middle

Ages, was not recognised to be binding on the Courts Christian of this

country. The verdict of so fine a scholar was eagerly welcomed by men

of High Church opinions. If the Canon Law was not binding, then the

Church of England was never in the full sense ultramontane, and the

changes of the sixteenth century did not amount to revolution. Zealots

went further still. There were those who, as Maitland wittily observed,

seemed to believe that the Church of England was "Protestant before the

Reformation and Catholic afterwards."

In the quarrel between the Highs and Lows Maitland had no interest.

Then, as always, he was a dissenter from all the Churches: but

historical truth was precious to him, and in the course of the summer

of 1895, while engaged in the preparation of a course of lectures upon

the Canon Law, he became gradually aware that the received opinion

could no longer stand. The agent of his conversion, if conversion it

can be called, was the _Provinciale_ of William Lyndwood, a popular

text-book written in 1430 by the principal official of the Archbishop

of Canterbury, and representative of the accepted opinion in the

century preceding the Protestant Reformation. The following letter to

Mr R. L. Poole explains the genesis of a book which has permanently

deflected the current of historical opinion.

* * * * *

HORSEPOOLS,

STROUD.

_15th August, 1895._

I ought to have been writing lectures about the history of the Canon

Law. Instead of so doing I have been led away into a lengthy discourse

on Lyndwood. I have come to a result that seems to be heterodox, but

I do not know exactly how heterodox it is and should be extremely

grateful if you would give me your opinion upon a question which lies

rather within your studies than within mine. It seems to me clear, that

in Lyndwood's view the law laid down in the three great papal law-books

is statute law for the English ecclesiastical courts and overrules

all the provincial constitutions, and further that apart from the law

contained in these books the Church of England has hardly any law--in

short there is next to nothing that can be called _English_ Canon Law.

I must wait until I am again in Cambridge to read what has been written

about this matter in modern times, but any word of counsel that you can

give me will be treasured. From a remark that you once made I inferred

that in your opinion our Church historians have been too patriotic.

I feel pretty sure of this after spending two months with Lyndwood,

and if I find that my conclusions about the law of our ecclesiastical

courts are at variance with the prevailing doctrine, may be I shall

print what I have been writing, that is to say if either _L. Q. R._ or

_E. H. R._, will let me trail my coat through its pages.

* * * * *

_Roman Canon Law in the Church of England_ appeared in 1898. It was a

collection of six essays, one of which--the delightful story of the

Deacon who turned Jew for the love of a Jewess--had been published as

far back as 1886. Of the rest the decisive part consisted of articles

contributed to the _English Historical Review_ in 1896 and 1897. So

far as a case can be demolished by argument, the case for the legal

continuity of the Church in England was demolished by Maitland. He

proved that the Popes' decretals were regarded as absolutely binding

by our English canonists; that throughout Christendom the Pope was

regarded as the Universal Ordinary or supreme source of Jurisdiction;

that a considerable portion of the Canon Law was built out of English

cases; that the provincial constitutions in England were of the

nature of bye-laws and insignificant, while the libraries of our

canonists were filled with foreign treatises; in fine, that the

thirty-two Commissioners who set their names to the opinion that the

ecclesiastical judges in England were not bound by the statutes which

the Popes had decreed for all the faithful would have been condemned

by any English ecclesiastical tribunal in the Middle Ages as guilty

of heresy. No doubt portions of the Canon Law were not as a matter of

fact enforced in England, but this was not because the Courts Christian

rejected them, but because the Temporal power would not permit their

enforcement.

Royal prohibitions did not prove the existence of a national Canon Law.

"To prove that we must see an ecclesiastical judge, whose hands are

free and who has no 'prohibition' to fear, rejecting a decretal because

it infringes the law of the English Church or because that Church has

not received it." Whatever might be the view of a late age, no such

testimony was forthcoming before the breach with Rome. Indeed the "one

great work of our English canonist in the fifteenth century" showed

that the position which had been attributed to the English Church in

the Middle Ages was alien to its whole way of thought. In the age of

the conciliar movement, when men of liberal temperament were urging

that the Pope was subject to a general council, William Lyndwood

evidenced nothing but "a conservative curialism."

The book was necessarily controversial, but written with that complete

absence of the polemical spirit which characterised all Maitland's

work. "I hope and trust," he wrote to Mr Poole, September 12, 1898,

"that you were not very serious when you said that the bishop was

sore. I feel for him a respect so deep, that if you told me that the

republication of my essays would make him more unhappy than a sane man

is whenever people dissent from him, I should be in great doubt what to

do. It is not too late to destroy all or some of the sheets. I hate to

bark at the heels of a great man whom I admire, but tried hard to seem

as well as to be respectful."

An accident of friendship drew Maitland still further into the

tormented sea of controversial church history. Lord Acton was appointed

Regius Professor of Modern History at Cambridge in 1895, and, despite

radical differences of creed and outlook, soon discovered in Maitland

a spirit as ardent and disinterested as his own. Outwardly there was

a great contrast between the two men, Maitland frail and delicate,

his pale eager face a lamp of humour and curiosity, Acton massive,

reserved, deliberate; but they understood one another, and soon came

to share a common interest in a great literary enterprise. One day

Acton propounded to Maitland the scheme for a great Cambridge history

written upon the combined plan which was already familiar in France

and Germany. It was to be a Universal History, a history of the whole

world from the first beginnings to the present day, written by an army

of specialists, and concentrating the latest results of special study.

Maitland suggested that a more modest plan, a history of modern Europe

since the Reformation, would prove to be more practical, and in this

view Acton concurred.

The _Cambridge Modern History_ covered a period which did not properly

fall within Maitland's special range of study; but he was taken into

counsel as to the general execution of the plan, and persuaded to

contribute a chapter upon the Anglican Settlement and the Scottish

Reformation. That Acton should have chosen Maitland for this particular

piece of work may cause some surprise. The ground was intricate,

sown with pitfalls and clouded with controversy, and Maitland had

made no special study of the sixteenth century upon the political

or religious side. On the other hand he could bring to the task a

cool, dispassionate judgment, a fine power for appraising historical

evidence, and a singular and exact felicity in the expression of

delicate shades of certainty and doubt. That he stood outside the

Churches might have been a disqualification, had devotional impulses

been the staple consideration in the question, or if the banners of

rival confessions were not already waving on the battle field; but

the age of Elizabeth was theological rather than religious, and it

was of the first importance to obtain the verdict of a thoroughly

impartial mind upon a subject which could never be treated by a

churchman without some suspicion of partisanship attaching to his

results. Maitland accepted the task with misgivings, and discharged it

with characteristic thoroughness. In an astonishingly short space of

time his mind filled itself up with the reports of French and Spanish

ambassadors, with the theological treatises and the political intrigues

of sixteenth century Europe. A month or so after he had taken the

plunge he was talking of Caraffa and Cecil as if he had known them all

his life, and seemed to have gathered up the whole complicated web

of European policy into his hands. He did not content himself with

mastering and reproducing the voluminous literature of the subject;

some pretty little discoveries, some "Elizabethan gleanings" were

contributed to the _English Historical Review_, and gave evidence of

refined investigations which did not stop at printed material. Results

which might have furnished the theme for a substantial volume were

packed into a chapter of forty pages. Critics complained of obscurity

not of thought but of allusion; others, imperfectly versed in Tudor

history, of a defective sympathy with religious emotion. The first

charge is true; for Maitland was undoubtedly over-allusive, not from

ostentation but from absorption and from a tendency common to learned

and modest men to credit the general reader with more knowledge than he

is likely to possess. To the second allegation it is some reply that

Maitland was inclined to attribute the most decisive act in the period,

Elizabeth's resolve to reject the Roman overtures, to religious rather

than to political motives.

With habitual modesty Maitland disclaimed the possession of the gift

of narration. He would say that he could not tell a story; and the

character of his historical work was not adapted to exercise the

story-telling gift. But if his narrative has not the liquid flow of

some accredited masters of the art, it is entirely devoid of some

common defects. It is never indefinite, flabby or verbose, on the

contrary it is full of pith and fire, proceeding by a series of brief

vivid touches which take root in the memory and ripen there. It would

be easy to select from the chapter upon the Scottish Reformation and

the Anglican settlement a _florilegium_ of passages which, for keenness

of insight and terseness of expression, could not easily be surpassed.

It is a style which gives the impression not only of clairvoyance and

watchfulness as to small details, transient motives and ephemeral

phases of opinion, but also of a sense of the fundamental significance

of things and of their relevance in the general march of progress.

Every stroke is made to tell. In general nothing is so tedious as a

history constructed upon severe philosophical principles. The argument

swallows up the life; the characters become faint and evanescent; the

colour put upon one event is shaded by the reflection of events which

follow, and an oft repeated major premise leads through an appropriate

selection of devitalised incidents to a familiar conclusion. Maitland's

fragment of Reformation history is philosophical in the best sense.

It is alive to the ultimate principles of belief and conduct which

governed men and women in the years when the Thirty-Nine Articles

were in the making; but it is also very vivid and concrete. The tale

has been told more fully, more comfortably, with a greater display of

picturesque circumstance, but never with more intellect, or with so

exact an appreciation of the chronological order in which successive

phases of belief and opinion revealed themselves. Instead of history

ready-made Maitland gave us history in the making, antedating nothing

and excluding with a care no less scrupulous than Gardiner's the

world's knowledge of to-morrow from the world's knowledge of to-day.

More than one fairy story dissolved at his touch, among others the

tale of a Convocation summoned in 1559 to consent to the Act of

Uniformity. The parent of the legend, an Anglican Canon, with a comical

misapprehension of his antagonist's resources, ventured to measure

swords with Maitland who had exposed his shortcomings in a Magazine.

The encounter was amusing and decisive. It was also characteristic

of some English peculiarities. We are a nation of bold amateurs. A

German pastor who had been corrected by Savigny upon some points of

history would hardly have returned to the charge without betraying some

suspicion that his enterprise was unpromising if not forlorn.