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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 c. 19, was repealed by I and 2 Phil. and Mary, c. 8, but was revived by 1 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 1603, 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.' Merton. 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.

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BOOK

I.

Justitia.

Juris.

CHAPTER II.

Of Law in general, and of the divisions and parts of the Civil law.

"JUSTICE is a disposition of mind to render to every one his right. Rights are perfect or imperfect from the idea of right is produced that of obligation."

Justice is defined by Ulpian to be constans et perpetua voluntas jus suum cuique tribuendi1, and Præcepta the three præcepta juris are honeste vivere, alterum non lædere, suum cuique tribuere?. Hence we arrive at rights and obligations, which are the Rights and creatures of the Civil law. In entering upon the obligations. consideration of the rights of persons it is necessary to have a correct understanding as to rights and obligations. Until human society began to be formed they could have no existence, nor could they be perfectly defined until the Jus Civile of How cre- society was established. Rights and obligations can only have a place in civil society, and they arise by the application of law to objects. For example, if I agree to sell my horse to my neighbour for £20, and he having paid into my hands the £20 so agreed on, if I then refuse to deliver to him the horse, the law will compel me. The law of buyer and seller applied to the above-mentioned transaction creates the right, and its reciprocal obligation. I am bound, and may be forced, to satisfy his just claim, his right, by performing my obligation.

ated.

Reciprocal.

From the idea of right is produced that of obligation; that is to say, they are reciprocal; the

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one cannot be established without at the same CHAP. time creating the other. They are also perfect and imperfect. A perfect right is that in which the Perfect law will compel the performance of its reciprocal perfect. obligation; but a right, however perfect in a moral sense, if it do not come within the province of the law is unable to enforce its reciprocal obligation, and is therefore an imperfect right. The law will compel me to pay my just debts: this is a perfect legal obligation. But there is no law to compel me to relieve the beggar, however great his distress; a moral obligation rests upon me, but the law will not help him: there can be no doubt as to his right and my obligation in a moral sense, but inasmuch as they cannot be enforced they are reciprocally imperfect.

We here see the distinction between Jurispru- Ethics. dence and Ethics. Law compels the performance of our duties by public authority, while the science of Ethics only teaches us our duty and the reasons of it.

dence:

2. Particu

Jurisprudentia est divinarum atque humana- Jurispru rum rerum notitia, justi atque injusti scientia'. I. UniverJurisprudence is either universal or particular; sal; the former relates to the science of law in general, ar and investigates those principles which are common to all systems of law alike. Particular jurisprudence refers to the laws of particular states, which have been drawn from the rules and principles of universal jurisprudence, and adopted by those states.

General

Law is a rule of action prescribed by some Law. superior, and which the inferior is compelled to definition. obey. This is the definition of law in its most extensive signification. The solar system will furnish us with an example; or, to test the accuracy of this definition more minutely, place two weights connected together by a cord over a pulley, one of

1 D. I. I. 10. 2.

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