Book contents
- Frontmatter
- Contents
- Preface
- List of abbreviations
- Table of statutes
- Table of cases
- 1 THE MEDIEVAL INHERITANCE
- 2 THE FORTUNES OF ECCLESIASTICAL JURISDICTION
- 3 DEVELOPMENTS IN LAW AND LEGAL PRACTICE
- 4 THE LITERATURE OF CIVILIAN PRACTICE
- 5 THE CIVILIANS AND ENGLISH COMMON LAW
- Appendix 1 Manuscript copies of Clerke's Praxis
- Appendix 2 Ecclesiastical reports, 1580–1640
- Index
5 - THE CIVILIANS AND ENGLISH COMMON LAW
Published online by Cambridge University Press: 24 November 2009
- Frontmatter
- Contents
- Preface
- List of abbreviations
- Table of statutes
- Table of cases
- 1 THE MEDIEVAL INHERITANCE
- 2 THE FORTUNES OF ECCLESIASTICAL JURISDICTION
- 3 DEVELOPMENTS IN LAW AND LEGAL PRACTICE
- 4 THE LITERATURE OF CIVILIAN PRACTICE
- 5 THE CIVILIANS AND ENGLISH COMMON LAW
- Appendix 1 Manuscript copies of Clerke's Praxis
- Appendix 2 Ecclesiastical reports, 1580–1640
- Index
Summary
When he composed a litany, the Caroline civilian Robert Aylett included a plea: ‘That we may be preserved from the jurisdiction of temporal lawyers.’ His fellow civilians would have added a heartfelt ‘Amen'. They desired to continue in the traditions of the European ius commune and were endeavouring to do so. Their adherence to those traditions, however, was being made ever more difficult by aggressive common lawyers. Numerous statutes and scores of prohibition cases in the royal courts were purporting to change, define, and limit ecclesiastical jurisdiction. Some of this interference the civilians could brush aside. But by no means all. The common law judges had mighty resources to hand. In most instances the civilians had no choice but to respond to the temporal law where it touched their own. They had to take active steps to combat what they correctly considered a vital threat to their independence. They could not rest their fate waiting for an answer to Dr Aylett's prayer.
Regular patterns of response to the English temporal law are to be found among the surviving court records and other literature of the practising civilians. The ecclesiastical lawyers developed several ways of avoiding writs of prohibition, and they hit upon expedients for dealing with some of the common law encroachments on their jurisdiction. However, at least on the surface, the clearest pattern found in the surviving records is the distinction the civilians drew between English statutes and the case law emanating from the Courts of Common Pleas and King's Bench.
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- Chapter
- Information
- Roman Canon Law in Reformation England , pp. 158 - 195Publisher: Cambridge University PressPrint publication year: 1990
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