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


H. W. C. Davis,

It is laudable and to the advantage of the church that
in England the parishioners should undertake the responsi-
bility, elsewhere left to the rector, of keeping the nave in
repair. The same apology can be made for the custom by
which testamentary causes are, in England, reserved to the
courts-Christian. That the Use of Sarum should be followed
in the Southern province, is consonant with the rule of Gre-
gory IX.; it is a custom of old standing, and it is reasonable
since the Bishop of Salisbury is ex officio the precentor
of Canterbury Cathedral. In England the procurations of
archdeacons are fixed by custom at a lower figure than the
decretal Vas Electionis l) allows; but the tariff of Vas Elec-
tionis is a maximum tariff. It may be anomalous that in
England the feast-day of St. Sylvester-is usurped by Thomas
the Martyr. But this is hardly a revolution, since in any
case the day is observed with the same honour. The Decretal
Conquestus2) leaves to the bishop of every diocese a con-
siderable libertv in settling major feast-days. More serious
perhaps is the custom under which, if an English rector dies
between Ladyday and Michaelmas, the tithes that are due
at Michaelmas may go to the payment of his legacies. But
a custom of this kind is admitted and tolerated by the
decretal Suscepti Regiminis3); Lyndwood's chief doubt
is whether the English custom had obtained long enough
to be legitimate. He thinks it should hold good, so long
as it is interpreted in accordance with that Decretal. And
this appears to be the common sense decision.
I do not wish to underrate the multiplicity or the value
of the customs which the English Church enjoyed before
the Reformation. “The custom of this realm”, says Peckham4)
“is distinet from all others in many points”; so distinet that
the Pope may well be asked to modify his legislation, to
suit the special case of England. John de Stratford, in like
manner, states that Popes and Kings have endowed the
English Church with many special Privileges, liberties and
immunities.5) Some of these Privileges were extremely
x) c. 1 Extrav. comm. III, 10. — *) c. 5 X. II, 9. — *) c. 2 Extrav.
Joh. XXII, 1. — *) Council ofLambeth, 1281. — ®) Council of London,


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