clerum Sanctæ Romanæ Ecclesiæ ornari decernimus. The notion which prevails throughout, that the chief of the religious society must be in every point conformed to his prototype, the chief of the civil, is the key to all the thoughts and acts of the Roman clergy; not less plainly seen in the details of the papal ceremonial than it is in the gigantic scheme of papal legislation. The Canon law was intended by its authority to reproduce and rival the imperial jurisprudence. A correspondence was traced between its divisions and those of the Corpus Juris Civilis; and Gregory IX., who was the first to consolidate it into a code, sought the fame and received the title of the Justinian of it." It was, however, Gratian who, nearly a century before Gregory IX., wrote the Institutes of the Canon law.

The Decretum of Gratian is divided into three parts. The first part is divided into 101 distinctiones. The first twenty of these distinctiones are concerned with law in general and Canon law in particular. Afterwards the different orders of the clergy, their qualifications, ordinations, duties, and powers are treated of. The second part is distributed into thirty-six canons, each embracing several questions which are treated of in one or more questions. This part deals with the rules and principles of proceedings in ecclesiastical courts. The third part is much shorter than either of the preceding. It is divided into five distinctiones, and treats of the consecration of churches, public worship, the sacraments, fasts, festivals, and images.

In estimating the influence exercised by this treatise on the perpetuation of the civil law, it is important to notice such passages as those in the first distinctio, which explain what is meant by jus naturale, jus gentium, and jus civile. Jus Quiritium is said to be "proprium Romanorum, quod nulli tenent nisi Quirites, id est Romani. In quo agitur de legitimis hæreditatibus, vel curationibus, vel de contractibus, de tutelis, de usucapionibus, quæ apud nullum alium populum referuntur sed propria sunt Romanorum et in eos solos constituta."

In the second distinction it is said that "Jus Quiritium constat ex legibus et plebiscitis et senatus consultis et constitutionibus principum sive responsis prudentum."

These several sources of the Fus Quiritium are then defined in the language of the classical writers on Roman law, and examples of laws called after their authors are taken from the Leges Cornelia and Leges Julia. Thus it is obvious that the republication of the canon law could not but operate as a fresh recognition of the lasting validity, within its own limits, of the Roman civil law, while the language and forms of the new Canon law codes tended to reproduce and preserve the ancient legal phraseology and logical forms of thought.

The pontifical patronage, soon extended to this process of codification, secured its influence. Heineccius (Hist. Furis Germ., lib. ii. cap. iii.) recounts that, in A.D. 1151, after completing his work, Gratian begged the Archdeacon. of Bologna to send it to the Pope to be confirmed by his authority and to be commended as an authoritative academical text-book. The Pope acceded to the request; and in the following year (A.D. 1152) Gratian, who previously seems to have publicly taught philosophy and other subjects of general knowlege, was constituted by the Pope professor of the Canon law. In fact, two public expounders of the law were nominated by the Pope, of whom Gratian

was one.

Afterwards, by a further decree in 1153, Eugenius III. established academical degrees in the Canon law of the same sort as those hitherto appropriated to the civil law and to arts. The study of the Decretum was also portioned out by the Pope among the five years of study in the same way in which Justinian had distributed the study of his compilations. Thus, it was to take three years to study the first third of the Decretum and to qualify for the bachelor's degree; one year more to study the second part, and to qualify for the licentiate; and another year to study the third part of the Decretum, and to qualify for the doctor's degree.

Other compilations followed that of Gratian, and in the

reign of Innocent III. (A.D. 1198), as many as five are said to have been constructed.

It was less than a hundred years after this solemn papal authorization of Gratian's treatise and institution of the Canon law as a subject of academic study, that Pope Gregory IX., by the help of Raymondus de Penna-forti, his chaplain, published a new digest of the Canon law, comprising an abbreviated summary of the whole law and the decretals of Gregory IX. One reason of this fresh publication is said to have been the constant recourse which was still had to Justinian's works in order to explain and supplement Gratian's Decretum. This new treatise was specially commanded by the Pope to be exclusively used in judicial proceedings and in education. Gregory writes "Ut hac tantum compilatione universi utantur in judiciis et in scholis." Not, however, that the authority of the Decretum was impugned, and, indeed, it continued to be used and cited by the popes themselves. (See for instances Heinecc., Hist. Juris Germ., lib. ii. cap. iii. § 69, note 8.)

There was one special advantage in these authoritative publications of the decretals and in the public teaching of the Canon law in the universities; it was the check given to the circulation of false decretals and bulls. In the absence of printing the prevalent ignorance, coupled with the growing importance attached to papal utterances, made the temptations to forgery enormous; and we hear of papal bulls, such as the one of Innocent III., specially directed against falsifiers of papal documents.

The complete Corpus Furis Canonici comprises some decretals of Gregory IX.'s successors up to the end of the fifteenth century, and thus includes the ecclesiastical legislation of more than two centuries and a half, and a summary of the legislation during earlier centuries. The usual editions contain the following collections:

A.D. 1234. Five books of the decretals of Gregory IX. and summary of other decretals and canons.

A.D. 1298. Sixth book, containing decretals of Boniface VIII. [This was not received in France because of differences between the Pope and Philip the Fair.]

A.D. 1313.

Constitutions of Clement V.

A.D. 1340.

Extravagantes of John XXII.

A.D. 1483. Extravagantes Communes, consisting of decrees of popes from Urban VI. to Sixtus IV.

Thus, as Arthur Duck says (De Auth. Juris. Civ., lib. i. cap. 7, § 8), "The Roman pontiffs effected that in the Church which Justinian effected in the Roman Empire. They caused Gratian's decree to be compiled in imitation of the pandects; the decretals in imitation of the code; the sixth book, the Clementine constitutions, and the 'Extravagantes,' after the fashion of Justinian's Novells; and, that nothing should be wanting, Paul IV. (A.D. 1555), ordered John Paul Launcelott, in 1580, to prepare Institutes of the Canon law, which were added to the Corpus Juris in the time of Gregory XIII."

It is important to notice the respective provinces and mutual relations of the canon law and the civil law in countries in which they were both recognized.

It was admitted that if, on a matter of mere interpretation, either system expressed itself ambiguously or uncertainly, it was allowable to have recourse to the other, whatever the court or the case in hand. The same rule prevailed if either system was entirely silent on a question in dispute. Where there was a conflict, the canon law rule prevailed in Church courts and in the dominions of the Church, while the civil law rule prevailed in secular courts and in the dominions of secular sovereigns.

In any case that presented itself, whatever the court, the civil law gave way to the canon law whenever the matter in hand seemed to touch the safety of souls or the commission of sin. Thus, in prescriptions, while the civil law allowed a term of lengthened prescription to give a title even to a malâ fide possessor, the canon law did not, and this latter rule prevailed. So in usury cases, the canon law rules were followed. In marriage questions, the canon law prevailed, the consequence being that a marriage might be held good even in the absence of the requisite consent of parents; and a wife who had survived her husband might

marry again within the year, the canon law removing the penalties imposed by the civil law. So also in matters of moral justice, if the canon law was more favourable to a benign and equitable view of the situation than the civil law, the canon law principle prevailed. The influence of this maxim in the establishment of the equitable jurisdiction of the English Court of Chancery is well known.

§ 4-The Civil Law in Modern States before the
French Revolution.

(1) THE CIVIL LAW IN FRANCE.

The remarkable place which France has occupied in the preservation and revival of Roman law through the construction of the Code Napoléon, renders it of some importance to trace the steps by which the copious Roman law elements in that code were handed down on the French soil from the days of the Roman dominion in Gaul. It is true that much of the wording and arrangement of the code is copied almost verbatim from the commentaries of Pothier or the works of Justinian. But it was the opposition of the two systems of law which prevailed severally in the Roman-law provinces (pays de droit écrit) and in the customary provinces (pays de droit coutumier) which mainly enforce the necessity of having such a code, while the rules and interpretations of the Roman law, as announced in the writings of Pothier and transferred to the code, may be said to have been of indigenous growth.

The first problem to be solved in tracing the history of Roman law in France as a native growth coeval with the monarchy, and independently of university teaching and foreign influences, relates to the nature, history, and extent of the opposition between the law of the Roman-law provinces and that of the customary provinces. The problem has given rise to much controversy in France, as might be expected from the dark period of history to which its earlier phases have reference. The result of this