Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/225

 7. SCKUTTON: ROMAN LAW INFLUENCE 211 and Canon law had force in England. It is the lex et con- suetudo parliamenti, he says, that all weighty matters in Parliament be determined by the course of the Parliament, and " not by the Civil law, nor yet by the Common laws of this realm." ^ The Court of Admiralty is always spoken of as " proceeding according to the Civil Law," ^ though Coke gives no reasons for such a procedure. The Court of Chivalry before the Constable and Marshal " proceeds ac- cording to the customs and usages of that Court, and, in cases omitted, according to the Civil law, secundum leges armorum."^ In a case as to ambassadors, the Committee of the Privy Council heard the "counsel learned in the Civil and Common laws ; " * and Coke says of one of their decisions " and this also agreeth with the Civil law." * As to the Ecclesiastical Courts, " which proceed not by the rules of the Common Law," Coke writes with some acerbity, " that the King's laws of this realm do bound the jurisdiction of Ecclesi- astical Courts." ^ The Convocation proceed according to " legem divinam et canones strictae ecclesiae," the ecclesias- tical courts generally by " the laws of Christ." ® As to the authority of this law in England, Coke is very decided : " all canons and constitutions made against the laws of the realm are made void : " " all canons which are against the preroga- tive of the king, the Common law, or custom of the realm are of no force." ' I have only noticed two cases in which the English Common law, as stated by Coke, appears to have been modified by the Civil law otherwise than through Bracton. These are, first, the law as to discontinuance,^ or the alienation made by possidentis. C. ii. 360, 573, et Br. passim "nihil est tarn conveniens naturali aequitati unumquodque dissolvi eo ligamine, quo ligatum est." C. iii. 2, Crimen laesae majestatis. C. iii. 168, Crimen falsi. Coke also cites Bracton's definition of theft. ' C. iv. 14. « C. iv. 134: Duck, ii. 8, 3, 24. » C. iv. 125; Hargreaves' note to i. 74, a, b. Duck, ii. 8, 3, 12-22. " Causas ex Jure Civili Romanorum et consuetudinibus armorum et non ex Jure Municipali Anglorum esse dijudicandas." • C. ii. 487: cf. Duck, ii. 8, 3, 26, et seq. De his omnibus in hoc foro jus dicitur ex Jure Civili, cui porro accessit Jus Canonicum. Ex quibus omnibus constituitur Lex quam nostrates appellant Ecclesiasticam. . . Lex Civile in hoc foro Lex terrae appellatur. ' C. ii. 647, 652. » C. i. 325, a; i. 272.
 * C. iv. 153. »C. iv. 321, 322.