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[26] Thomas More and the Canon Law R. H. Helmholz n Introduction How much did English common lawyers know of the Roman and canon laws? What use did they make of what they knew? These are questions of perennial interest to legal historians.1 This paper makes a small contribution to the subject, taking a famous lawyer as its focus. I hope it will interest the honoree of this volume. It might. The interaction between canon law and secular law has been among the many subjects his own work has illuminated.2 In this hope, the paper appraises the role of the canon law in the life and work of Thomas More (1478–1535), the famous humanist, common lawyer, Chancellor to King Henry VIII, and canonized martyr for the Catholic cause in Tudor England. The paper has three objectives. The first is to discover how much of the law of the church More knew; that is, to make a reasonable estimate of how familiar he was with the vast ocean of the medieval ius commune. The second is to uncover any possibilities to suggest a means by which More, a common lawyer by training and profession, learned 375 1. See, e.g., J. H. Baker, ‘Roman Law at the Third University of England’, Current Legal Problems 55 (2002) 123– 50; A. Lewis, ‘What Marcellus Says Is Against You: Roman Law and Common Law’, in: The Roman Legal Tradition , ed. A. D. E. Lewis and D. J. Ibbetson (Cambridge 1994) 199–208; D. Seipp, ‘The Reception of Canon Law and Civil Law in English Common Law Courts before 1600’, Oxford Journal of Legal Studies 13 (1993) 388–420; D. R. Coquillette, ‘Legal Ideology and Incorporation IV: The Nature of Civilian Influence on Modern Anglo-American Commercial Law’, Boston University Law Review 67 (1987) 877–970; P. Stein, Roman Law and English Jurisprudence Yesterday and Today (Cambridge 1969); P. Vinogradoff, Roman Law in Medieval Europe (Cambridge 1929, repr. 1968) 97–118; T. E. Scrutton, The Influence of Roman Law on the Law of England (Cambridge 1885). 2. See, e.g., K. Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley and Los Angeles 1993); idem, ‘Innocent until Proven Guilty: The Origins of a Legal Maxim’, in: A Ennio Cortese (3 vols.; Rome 2003) 3.59–73; idem, ‘The ius commune, Suretyship and Magna Carta’, RIDC 11 (2001) 255–74. what he did know about the canon law. The third is to describe his attitude towards the canon law, making some judgment about what, if any, influence Christian humanism had upon his attitude towards the law of the medieval church. Before turning directly to these topics, however, a remark about the status quaestionis is in order. It can be brief. Not much has been written on this subject. Most of the few scholars who have dealt with it at all have done so only in passing. They have assumed that More’s familiarity with the ius commune was very slight, if indeed it existed at all.3 There is certainly evidence to support this negative conclusion. His career and education were in the English common law, not the canon or Roman laws, and gaining a familiarity with the medieval ius commune requires spending more than the odd free hour. It requires books and time. It seems unlikely that he had enough of either to turn himself into a civilian. Moreover, More himself wrote, ‘I neither understand the doctors of the law nor well can turn their book’.4 His disavowal appears to bring the inquiry to a close. However, it does not. Two scholars have taken the trouble to go further, and they both have concluded that more can be said. On the basis of the available evidence, J. D. M. Derrett concluded that More ‘almost certainly had more than a smattering of legal knowledge on the Roman side’, but that he had ‘no intimate knowledge’ of the canon law half of the ius commune.5 By contrast, R. J. Schoeck reached a conclusion close to the reverse of Derrett’s.6 He described More as ‘more than ordinarily interested and competent in the canon law’ even though he was not an actual canonist.7 Their conclusions invite a closer look. One more introductory word: The question is more complicated than it may seem. It is a mistake to equate the canon law with defense of the medieval church against the rise of Protestantism. The...

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