Full text: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte / Kanonistische Abteilung (3 (1913))

The Canon Law in England.

where the rule tliat no ordinary save a bishop might deal
with a criminous clerk was set aside by custom.* 1) A place
had to be found for custom in the Papal jurisprudence.
The growth of custom was inevitable, and on the whole it
was best to tolerate all local customs which were not fla-
grantly against general principies, or flagrantly inimical to
the Pope’s prerogative. No custom, it was held, could
avail against a decretal: but from any decretal there might
be a dispensation. Boniface TUT. goes to the length of
saying that, as the Pope is very likely to be ignorant of
the customs and Privileges of particular places and indivi-
duals, he must not be presumed to have annulled thein by
a law in which they are not expressly mentioned.2)
I cannot find that the English canonists go beyond their
Continental brethren. or beyond the Popes, in their toi er an co
of custom. Lyndwood is severe on law-breakers, real or
supposed, not sparing even Peckham. Both he and John
de Athona mention sorne curious cases of leges non accep-
tatae: a legatine Constitution about clerical costume: another
about judges-delegate; and two laws, one legatine the other
papal, providing for the strict seclusion of nuns.3) In all
these cases it is clearly their view that non-acceptance is
pure disobedience, and that the offenders have only gone
free through the negligence of the bishops who should en-
forcc the law. John de Athona discusses the general question;
under what circumstances may a law be disobeyed. He
answers: only when observance would lead to scandal or to
greater sin.4) His attitude could not be more correct.
But are they always willing to Stretch a point in favour
of a custom which they find established, and to prove, at
any cost, by any kind of sophistry, that it agrees with the
Jus Commune? This seems to be the view of Mr. Ogle.
I cannot see, however, that his examples prove his point*
Of the customs peculiar to England which are justified by
Lyndwood, some obviously fall under the rule of Innocent III.
Lyndwood Provinciale, p. 17, s. v. Inquirere. — *) c. 1 in YI°.
I, 2. — 3) Ayton, p. 37 s. v. Cappis Clausis; p. 55 s. v. Faciant Ob-
servari; p. 123 s. v. Committantur; Lyndwood, p. 212 s. v. Cum
Socia. — *) Ayton p. 37 s. v. Cappis Clausis.


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