W&L Law Professor’s New Book Explores Church-State Conflict in Medieval Courts

Lexington, VA • Wednesday, December 22, 2010


Prof. David Millon

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David Millon, the J.B. Stombock Professor of Law at Washington and Lee University, recently completed a project nearly thirty years in the making. What began in 1982 as dissertation for a Ph.D. in history from Cornell is now a published volume in a distinguished British legal history series published by the Selden Society.

In the interim, Millon earned a J.D. from Harvard, practiced law with Hale and Dorr in Boston, and after entering academia, became a highly respected corporate law scholar. But whenever his schedule would allow, Millon returned to this project, and his conclusions now challenge several debates scholars thought settled regarding an important period in the development of the British legal system.

The book, titled Select Ecclesiastical Cases from the King's Courts 1272-1307, explores the relationship between the Catholic Church's court system and the King's common law courts during the reign of Edward I. In medieval times, these two fully developed court systems operated in parallel, the church court responsible for cases that involved sacraments, such as marriages, oaths, and tithes, and the King's courts handling criminal, property, and other secular matters.

Millon says that these court systems were supposed to operate separately, but many cases fell into a gray area where court jurisdiction was unclear.

"For example, a marriage dispute where the father of the bride had given land to the groom would involve both a sacrament and a property issue, and the courts would have to determine who had jurisdiction over the matter," explains Millon. "The book is in part about the procedure by which these jurisdictional conflicts get resolved by the king's courts and also about the substantive rules that defined the boundaries between the two jurisdictions."

Millon's laborious research involved examining case records called plea rolls, which courts in England began maintaining around 1200.  These 3 foot by 1 foot sheets of parchment, bound together in volumes and stored in archives in England, are un-indexed and hand-written in Latin. Millon estimates he reviewed several miles' worth of parchment to find interesting cases that exposed and resolved these jurisdictional conflicts. His book contains the case records in the original Latin and his translation, along with a lengthy explanation of the significance of the cases. (For examples of these documents, see sidebar.)

The period covered in the book was a time of significant church-state conflict in England and elsewhere in Europe, and scholars had assumed this would be reflected in the king's courts' handling of these jurisdictional controversies. However, Millon's research shows that these high-level political conflicts did not work their way into the day-to-day operations of the court systems. In particular, Millon found that the purpose of the 1285 statute known as Circumspecte agatis had largely been misunderstood by British legal history scholars as a power grab by Edward I.

"Scholars had assumed this would be a period of great innovation in the legal system with the King's courts attempting to expand their jurisdiction," says Millon. "But it turns out that the courts applied the law in a way that was fairly consistent with what had been done in the past."

The power grab would come later of course, with the Reformation and the creation of the Church of England by Henry VIII. Though still in existence today, most of what church courts did in the past has been taken over by secular legal institutions.

As a corporate law scholar who has written about some of the most pressing issues of the day, from corporate social responsibility to the Enron collapse to the ramifications of the recent Citizens United decision, Millon believes there is great value in studying the evolution of our common law legal system.

"It's interesting to see 700 years ago a court system very different from ours nevertheless working in a regular way, using regular procedures and establishing rules that were applied consistently," says Millon. "It reminds us that the legal system we often take for granted today is only one of any number of different ways to organize a legal system."

The book's publisher, the Selden Society, was founded over 100 years ago by Frederic William Maitland, the first, and still very influential, scholar to encourage the serious study of English legal history. Millon's book is the 126th annual volume the Society has published in its support of this field, and Millon is keenly aware of what it means to be a part of this tradition.

"I hope this book will be around in libraries long after my more contemporary work has faded from memory."

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