Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/239

 7. SCRUTTON: ROMAN LAW INFLUENCE 225 of the civil and clerical courts under William I., ensured for the latter a peculiarly Roman and canonical law and pro- cedure ; the Conqueror's law provided, " secundum canones ct episcopales leges rectum Deo et Episcopo suo faciat,''^ and the procedure was that of the Roman Consistory. This tended to create a feeling of hostility on the part of the Courts of Common law and the English people towards Courts not ruled by the Common law of England. The present ecclesiastical law consists of three portions:^ I. Statutes, and enactments made in pursuance of, or ratified by, statutes. II. Certain portions of the Canon law, and certain constitutions and canons issued by competent author- ities. III. The Ecclesiastical Common law; ecclesiastical usages, not embodied in writing, except in some judicial de- cisions, but recognized as binding and supposed to be known by the Courts. The Canon law as such is a body of Roman ecclesiastical law ; but only such parts of it as are contained in the pro- vincial constitutions,^ and in the general usages of the church, and are recognized in the Courts of this realm, are binding in England.* No canon contrary to the Common or Statute law or to the Prerogative is of any force; and no canons made since the reign of Henry VIII., and not sanc- tioned by Parliament, are binding on the laity: nor are canons binding made before that reign, unless adopted by the English church.^ The position of Ecclesiastical law in England has been well described by Tindal, L. C. J. as follows ; ^ " The ques- tion depends upon the Common law of England, of which the Ecclesiastical law forms a part. . . . The law by which the spiritual Courts of this kingdom have from the earliest times been governed and regulated, is not the general Canon »Stubbs, S. C. p. 85. clesiastical Law, London, 1873: i. pp. 12-19. Coote, Ecclesiastical Prac- tice, London, 1847. •Collected in Lyndwood's Provinciate sen Constitutione* Angliat, Paris, 1505; Oxford, 1679. ^Martin v. Mackonochie, L. B. 2 Adm. and Eccl. 116, 153. ^Bishop of Exeter v. Marshall, L. B. 3 H. L. 17, 47, 65. •iB. V. Millis (1844), 10 CI. and Fin. 534, 671, 678, 680.
 * Brice, Public Worship, London, 1875, pp. 1-10. Phillimore On Ec-