beginning of the possessory lien, were allowed to come next. The next place was occupied by the owner of the dock exercising his possessory lien (1). A few words must be added in conclusion on the important subject of costs. The costs of all proceedings in the Admiralty Division, as in the other Divisions of the High Court, are now by the R. S. C. 1883, Order LXV., and the Judicature Act, 1890 (ante, p. 803), in the discretion of the Court. It follows from this that the former general rule of practice in the Admiralty Court as to the costs of references, namely, that when more than a fourth is struck off a claim each party paid his own costs, and when more than a third the claimant paid the other party's costs, is now obsolete (2). In the case in which this point was decided, the Master of the Rolls in delivering judgment, said:"When a Court has such a discretion, it is intended that it should exercise it in each individual case. The moment, therefore, that a hard and fast rule is laid down as to costs, the judge's discretion is fettered. With all deference to that eminent judge, Dr. Lushington, the moment he laid down as a general rule, that if, on a reference the plaintiff did not obtain a certain proportion of his claim, he was to be deprived of, or to pay costs, he did what was wrong. For he tried to fetter his own discretion, and that of his successors, which he had no legal power to do. As to the rule, if it could be made, I doubt if it would be a good rule, and in many cases it must work injustice. But since the judge of the Admiralty Court must exercise his discretion in any case, it is is any rule by which he can be bound." wrong to there say The general rule, however, which prevails in the other Divisions of the High Court of Justice that costs follow the event, is followed in the Admiralty. In a case decided in 1889, in the Court of Appeal, where it was contended that the defence of inevitable accident having succeeded in an action for collision, the old practice of the Admiralty Court dismissing the case without costs, ought to be followed, the following judgment was delivered: "Under the Judicature Acts, the Court of Admiralty has become a Division of the High Court of Justice. There should be a uniform practice in all the divisions of the Court on the subject of costs. The existing rule in all other branches of the (1) The Immacolata Concezione, 9 P. D. 37, 42. (2) The Friedeberg, 10 P. D. 112, overruling The Empress Eugenie, Lush, 140. High Court is that, in the absence of special circumstances, Costs. costs follow the event. In this case, the defence relied on from the first was inevitable accident. There are here no special circumstances arguing a departure from the above-mentioned rule; therefore the defendants having set up the defence of inevitable accident, and having succeeded, on appeal, in establishing that defence, are entitled to the costs both in this Court and below." (1) () The Monk Seaton, 14 P. D. 52. See as to costs, The Batavier, 15 P. D. 37. BOOK XII. ECCLESIASTICAL LAW. Definition. 1. Common law. 2. English canon law. CHAPTER I. ECCLESIASTICAL LAW: ITS SOURCES, &c. Ecclesiastical Law (jus ecclesiasticum) is defined by Sir Robert Phillimore as the rules and laws which relate to the ministrations and government, rights and obligations of a church established in a state (1). The sources of the Ecclesiastical Law of England are— 2. The English Canon Law, so far as it has been adopted. 4. Statute Law. 1. The common law, when considered with regard to the Church of England, falls under two heads. There is (1) the general common law of England which governs all Courts, and in addition to this there is, (2) the common law peculiar to the Church of England, " running side by side with the statute law and assisting in its construction." There is, as Justice Whitlock said, a jus commune ecclesiasticum as well as a jus commune laicum, a common law ecclesiastical as well as the ordinary common law of the realm (2). 2. A statute of Henry VIII., the "Act of Submission," which gave power to draw up a new body of Ecclesiastical law, provided that the canon law should be reviewed, and that until such review, all canons, then existing and not repugnant to the law of the land or the king's prerogative, should still be used and executed (3). This review was never made, and accordingly all canons made previously to that Act are binding on laity and clergy. Canons made since the Act, and not sanctioned by statute, are of no force as regards the laity. In 1603, the first year of the reign of King James I., 141 canons were collected out of the preceding canons, and these constitute () Phillimore, Ecc. Law. p. 12. 2 A. & E. 195, 196. (3) 25 Hen. 8, c. 19, repealed by 1 & 2 Ph. & M. Ch. 8, but revived by 1st Eliz. cap. 1. See further on this subject: Blunt's Book of Church Law, p. 10, et seq. the present standard of the English Church, and are binding on the clergy (1). It was laid down by Lord Hardwick (more than 150 years ago, in a very celebrated judgment, the authority of which has since been repeatedly relied upon), as law then universally admitted, that the canons of 1603 did not bind the laity for want of a parliamentary confirmation. "I say proprio vigore by their own force and authority; for there are many provisions contained in these canons which are declaratory of the ancient usage and law of the Church of England, received and allowed here, which, in that respect, and by virtue of such ancient allowance, will bind the laity; but that is an obligation antecedent to, and not arising from, this body of canons" (2). 3. It must be remembered that that part only of the foreign 3. Foreign canon law, which has been adopted by Parliament or by the canon law. Courts of this country, is regarded as a part of the ecclesiastical law of this country. "The peculiar character of the English people and the English church is strongly shewn in their determination not to admit the general body of the canon law into these realms, but only such portions of it as were consistent with the Constitution, the common law, and the peculiar usages of the Anglican church. The rules of the general canon law were principally introduced into this country and considerably modified in their introduction, through the medium of provincial constitutions passed by the authority of the metropolitans of England ” (3). (1) Dale's Clergyman's Legal Handbook, p. 4, which see as to the canons which have been altered. (2) Middleton v. Croft, 2 Atkyns Rep. 650, 653, cited with approval in Marshall v. Bishop of Exeter, 3 E. & I. 17, where it is described as a prodigy of industry and learning, and in the recent case of The Queen v. Archbishop of York, 20 Q. B. D. 740–748. "In England the authority of the canon law was at all times much restricted, being considered, in many points, repugnant to the law of England, or incompatible with the jurisdiction of the Courts of Common Law; so much of it as has been received, having obtained by virtual adoption, has been for many centuries accommodated by our Own lawyers to the local habits and customs of the country; and the ecclesiastical laws may be now described, in the language of our statutes, as The difference between the common (3) Martin v. Mackonochie, L. R. 2 A. & E. 116, 153. 4. Statute law. Ecclesiasti cal law of England. 4. The fourth source of the Ecclesiastical Law of England is the statute law, consisting of a vast and complicated body of legislation, extending over many centuries. The question what is the Ecclesiastical Law of England was considered by Lord Blackburn, in delivering judgment in the House of Lords, in an important case, and answered as follows: "The ecclesiastical law of England is not a foreign law. It is a part of the general law of England-of the common law-in that wider sense which embraces all the ancient and approved customs of England which form law, including not only that law to which the term common law is sometimes in a narrower sense confined, but also that law commonly called Equity, and also that law administered in the Courts Ecclesiastical; that last law consisting of such canons and constitutions ecclesiastical as have been allowed by general consent and custom within the realm and form, as is laid down in Caudre's Case, the King's ecclesiastical law.' All these laws may be, and are, altered by statutes. When the question arises, what is the English Ecclesiastical Law, it is not ascertained by calling witnesses to prove it, as if it were a foreign law, but by taking judicial notice of what the law is" (1). In the same case, Lord Blackburn expressed an opinion that, in determining the question what the English Ecclesiastical Law is upon any subject, the Court ought to proceed upon the following rules, as to the relative values of the various classes of authorities: 1. Very little weight ought to be given to treatises so modern as not to have yet been sanctioned by the judges of the Ecclesiastical Courts. 2. Some weight was to be given to foreign jurists who treat of the law ecclesiastical as practised in foreign countries, but "much less weight, for it may well be that they are treating of ecclesiastical constitutions which have never been accepted and received in England." 3. Great weight ought to be attributed to the practice of the Ecclesiastical Courts of which the forms of writs are very strong evidence. 4. Great weight ought also to be attributed to the principles of the ecclesiastical law laid down by those ancient writers on the Ecclesiastical Law of England, whose treatises have been accepted by the judges in the Ecclesiastical Courts as of authority. (1) Mackonochie v. Lord Penzance, 6 App. Cas. 424, 446. |