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I.

The arrangement and codification of the Civil CHAP. law by Justinian without doubt suggested the same course with respect to the Canon law, which was ultimately reduced to the Corpus Juris Canonici after Justinian's model. This consists of

three parts:

1. The Decretum. 2. The Decretals. Extravagants of John XXII.

3. The 1. The Decretum is a collection of Ecclesias- Decretum. tical constitutions made by the Pope, or by the Pope and Cardinals at no man's suit-mero motu. They were given Urbi et Orbi. These were collected by Gratian, a monk of Bologna, about the year 1140. They were afterwards revised, and received the formal recognition of Pope Gregory XIII. in the year 1580: these correspond with the Digest of Justinian.

John

2. The Decretals are canonical epistles written Decretals. by the Pope, or by the Pope and Cardinals, for determining some matter in controversy; they constitute the second part of the Corpus Juris Canonici, and correspond with Justinian's Code. To these must be added the Extravagants of John ExtravaXXII. which hold the place of the Novells. The gants of title Extravagants was originally given to the De- XXII. cretals, as being the first collection that wandered beyond the Decretum, and was afterwards confined to the Decretals of John XXII. With the sanction of Paul IV. John Lancellott compiled the Institutes of the Canon law in four books. We thus have the Corpus Juris Canonici consisting of Institutes in four books.

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2. Decretum like the Digest.

3.

Decretals like the Code.

4. Extravagants of John XXII. like the

Novels.

Corpus Juris Canonici.

BOOK
I.

Canon law of England.

Legatine constitutions.

Provincial constitu

tions.

THE CANON LAW OF ENGLAND.

I. While the English Church as a part of the church universal, was governed before the Reformation by the Canon law of Rome, there arose also within the kingdom the English Canon law which sprung from the polity of the English Church; this consisted of the legatine and provincial constitutions.

The legatine constitutions were made in national councils, held within the realm, the Pope's legate presiding, in the time of Otho, legate of Gregory IX., in the year 1220; and of Othobon who was legate under Clement IV., in the year 1268. Their authority extended to both provinces of Canterbury and York.

The provincial constitutions were made in convocations of the clergy of the province of Canterbury, the Archbishop presiding; they commence in the reign of Hen. III. and ended in that of Hen. V. Although made only for the province of Canterbury, they were adopted by the province of York in convocation in the year 1463'.

It may be asked what is now the force and authority of the Canon law in England?

Henry VIII. considering the Canon law at the Reformation as "much prejudicial to the king's prerogative royal, and repugnant to the laws and statutes of this realm," obtained an Act of Parliament, which is 25 Hen. VIII. c. 19, empowerAuthority ing him to appoint a commission of thirty-two non law. persons to revise the Canon law. Henry never exercised the power.

of the Ca

In the following reign an Act passed (3 and 4 Ed. VI. c. 11) conferring upon the king the same

1 They who wish to pursue this subject more deeply may consult the article "Čanon law," in the Encyclopedia Metropolitana.

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power, and Edward named thirty-two Commis- CHAP. sioners, who compiled the reformatio legum ecclesiasticarum. This act of Edward, together with the Statute 25 Hen. VIII. c. 19, was repealed by 1 and 2 Phil. and Mary, c. 8, but was revived by I Eliz. c. 1, and is now in force. It declares that "the Canons, Constitutions, Ordinances, and Synodals Provincial, are law, so far as they are not contrary and repugnant to the Common law, the Statute law, and the Royal Prerogative." This defines the authority of the Canon law.

THE CANONS OF THE CHURCH OF ENGLAND.

the Church

These were passed in the Convocation of the Canons of Clergy of the province of Canterbury in the year of Eng1603, in the reign of James I. They are 141 in land. number, and concern the rights, order, and discipline of the Church; they were ratified by the king for himself and successors; and were afterwards received and passed in the province of York. It was decided by Lord Hardwick in the case of Middleton v. Croft (Strange's Reports, 1056), that as far as they are agreeable to the ancient Canon law they bind the laity, where that Their aulaw can be said to be binding; but inasmuch as they never received the sanction of Parliament they do not bind the laity proprio vigore, even in matters ecclesiastical.

thority.

THE FATE AND FORTUNES OF THE CIVIL LAW
IN EUROPE, AND PARTICULARLY

IN ENGLAND.

Justinian.

Soon after Justinian's death the whole of Italy The Civil became overrun by barbarian conquerors, and in law after the year A.D. 752 was separated by the Franks from the Eastern empire; after which period the

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BOOK laws of Justinian fell into obscurity, still however maintaining an existence alongside the law of the conquerors. Rome was taken by the Goths in the year A.D. 546. After they were expelled by Justinian he published his laws at Rome; and established a school of law there in 554.' When the barbarian rule had become complete in Italy the Roman law still survived. The municipal towns established under the Romans continued to be governed by the Roman law; and generally Romans used the Roman, and the barbarians the barbaric Code. When any one went to law it was usual to make the professio legis before the judge, which was a declaration as to the law by which the party chose his case to be tried". Besides, the clergy always used the Roman law: hence we may conclude that it was never exCauses of tinct in Europe. Its sudden revival in the middle of the 12th century instead of being attributed solely to the accidental discovery of the Digest at Amalfi, and the Code at Ravenna, is rather to be accounted for by the sudden rise of commerce in Northern Italy at that period. An abstract love of the science of law could not account for the diligence and energy with which it began to be studied at the close of the twelfth century.

revival.

The Civil law in England.

With regard to the Civil law in England, it was first introduced by Theobald, a Norman archbishop of Canterbury, who placed Roger Vacarius, a Lombard, at Oxford, to teach it. The English lawyers of that period were much opposed to the Civil law, so they contended that it was hostile to the liberties of England, though it would be difficult, if not impossible, to shew this. The Norman nobility were hostile to it; and King Stephen, who was completely in the power of his barons, issued an order against the study of it, and altogether prohibited it. The two parties however

1 Warnk. Com. I. 75.

2 Savigny, 11. 197-260; Warnk. Com. 1. 75-78.

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still continued to exist-the common lawyers, who CHAP. were laymen, and the civilians, the clergy; the one arranged against the other. This is apparent by reference to the Statute of Merton, 20 Hen. III. c. 9, which declares that "he is a bastard Statute of who is born before the marriage of his parents."

The clergy on that occasion endeavoured to introduce the Legitimatio per subsequens matrimonium' of the Civil law. This was the last direct attempt made to introduce the principles of the Civil law into England.

At the same time, although the Civil law was never directly adopted in any of its parts as the law of England, its indirect influence has been very great. The divisions of the "year-books" (the early law reports), all shew how much they were influenced by the Civil law. All the early chancellors were ecclesiastics, and they drew largely from the Corpus Juris. By these means our Common law has become full of the principles of the Civil law.

The Civil law is used in (1) the Courts of Admiralty; (2) the Ecclesiastical Courts; and (3) the Courts of the two Universities of Oxford and Cambridge; but in all these the Common law has reserved to itself a paramount authority. An appeal lies from all of them to the Sovereign in the last resort2.

1 See ch. 7, post.

2 Stephen's Black. 1. 66.

Merton.

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