For this in itself is probably an old Saxon institution. And in 1164
came the great Constitutions of Clarendon, the principal object of
which was to free the people from the church law and subject
the priests to the ordinary common law as in times before the
Conquest--for now, "as the influence of the Italian lawyers
increased,"[1] all the priests and clergy were above it. It was the
first great statute which clearly subjected the church--which, of
course, was the Church of Rome--to the common secular law. There was a
vast jurisdiction of church law ("Doctors commons" courts lasted until
a generation ago in England); some of it still remains. But in these
early days all matters concerning marriage, divorce, guardianship of
children, ownership of property after death, belonged to church law.
It is hard to see why, except that the mediaeval church arrogated
to itself anything that concerned _sin_ in any way--anything that
concerned the relation of the sexes, that concerned the Holy
Sacraments, and marriage is a sacrament. Consequently the mediaeval
church claimed that it had jurisdiction over all marriage, and over
all divorce; and also took jurisdiction over a man's children at his
death, and over his property, now exercised by our courts of probate.
This they got out of the notion that when a man was dead, there was
something, in a sense, that went beyond this life in looking after his
property and children. And down until twenty or thirty years ago all
jurisdiction in England in matters which concerned a man's property,
after death, belonged to the church courts and their successors. The
church law was based on the Roman law, but was called _canon_ law,
the technical word, because it is the "canons" of the church. It is a
convenient term to distinguish it from the ordinary civil law of the
Continent. So that the Constitutions of Clarendon began what was
completed only under Henry VIII; they very clearly asserted the claim
of the king to be supreme over the Church of England. The Bishop of