HISTORY AND NATURE OF LAWS. 



German lawyers have taken the lead, and 

 the name of Savigny stands venerated in 

 Europe. 



To give a general outline of the Roman law, 

 would be to describe the common principles of 

 the majority of the codes of civilised mankind. 

 Although the progress of commerce and manu- 

 factures has introduced a number of new transac- 

 tions and forms of creating obligations such, for 

 instance, as insurance and bills of exchange 

 which the Roman lawgivers could never have 

 contemplated, yet their system is the foundation 

 of all the commercial laws of Europe a circum- 

 stance which has probably facilitated the uni- 

 formity so necessary in transactions which involve 

 inhabitants of different countries. From the same 

 source, Scotland and the greater part of conti- 

 nental Europe have derived a marriage law so 

 different from the ceremonious system that pre- 

 vails in England. Its leading principle is, that 

 the consent of the parties alone is necessary to a 

 valid marriage, and that when that is proved, 

 nothing more is necessary ; and that a child born 

 between parties who are subsequently married, 

 becomes legitimate by that act. The law of 

 trusts and of the mutual rights and obligations of 

 guardian and ward, have found their way more or 

 less into every modern system, and even into the 

 statute law of England. Prescription, or the prin- 

 ciple that claims are limited by the lapse of time, 

 has come down to us from the Romans. The law 

 of testaments and the descent of movable prop- 

 erty, is mainly derived from the same quarter. 

 It is in the case of the tenure and transmission of 

 land, indeed, that the person versed in modern 

 systems will find himself least at home in the 

 Roman, from the effect which the feudal institu- 

 tions of the various nations of Europe have pro- 

 duced on that branch of the law. The subjection 

 in which children were placed to their parents is 

 apt to create surprise, even when compared with 

 the strict filial etiquette of our own ancestors. A 

 revolting feature of the corpus juris is the portion 

 of legislation devoted to the subject of slavery and 

 the property in slaves. 



The Roman law may be mentioned as one 

 of the sources of the law of nations, or, as it is 

 more justly called, international law, in modern 

 Europe. This law of nations, or law of the rela- 

 tions of separate communities, has been investi- 

 gated by many ingenious men, and has, since the 

 time of Grotius, taken rank as an independent 

 branch of jurisprudence, though it can scarcely 

 yet be said to have attained to the character of 

 positive law. Great practical difficulties stand 

 in the way of the establishment of an interna- 

 tional legislature, tribunal, and executive ; but till 

 it is furnished with these, which are the organs of 

 all true positive law, the opinion of each indi- 

 vidual state must be the measure of the law of 

 nations, and war the method of its enforce- 

 ment. It is not to be supposed, however, that 

 there are absolutely no courts where what pro- 

 fesses to be the law of nations is enforced. Each 

 country in Europe has generally a court where its 

 own views on the subject are laid down. England 

 has, for instance, the prize jurisdiction of the 

 Court of Admiralty, which, by a misnomer, 

 arising out of the fact that its judges and 

 advocates were civilians, is called a civil-law 

 court. 



THE CANON LAW. 



The Canon (Greek, from kanon, a rule) Law is. 

 properly speaking, the ecclesiastical law of the 

 Roman Catholic Church. In its more limited accep- 

 tation, it may be called the laws of the church as a 

 separate corporation; but its field widened with 

 the influence of the hierarchy. It embraced many 

 subjects of pure civil and municipal law, such 

 as the distribution of property between married 

 persons, succession, &c. by linking them with 

 ecclesiastical matters; and thus the clerical tri- 

 bunals came to rival, if not to excel in importance, 

 those of the state. The canons of the Greek 

 Church, a portion of which were said to be the 

 work of the apostles, added to and explained by 

 general councils, were sanctioned by the Novels 

 of Justinian, and have so been viewed as a portion 

 of the body of civil law. A collection of canons 

 was made in the year 520; and this work, with 

 the papal decrees, and the privileges conceded 

 to the church by Charlemagne, formed the chief 

 subject-matter of the canon law down to the 

 twelfth century. It was then that this law ceased 

 to be the mere regulations of a peculiar body, and 

 became a general system of jurisprudence. About 

 the year 1 1 14, a collection of the decrees of popes 

 and cardinals was commenced by Ivo, bishop of 

 Chartres, and was revised and completed in 1149 

 by Gratian, a Benedictine monk. Another ele- 

 ment in the system consisted of the Decretals, 

 which were rescripts or epistles by the pope, or 

 by the pope and cardinals, deciding how the law 

 of the church stood concerning disputed matters 

 referred to them. These were first collected and 

 edited in 1234 by Raimond de Renafort, chaplain 

 to Gregory IX. This work was divided into five 

 books, to which a sixth was added under the 

 auspices of Boniface VIII. in 1298. These two 

 great works, with some additions made to them 

 by succeeding popes, formed what, in imitation of 

 the collected works in the law of Rome, was 

 called the Corpus Juris Canonicz, or Body of 

 the Canon Law. Besides these general statutes, 

 there were local canon laws passed by the clergy 

 of various countries, at national or provincial 

 assemblies, held under the auspices of papal 

 legates or archbishops. In the reign of Henry 

 III. there were assemblies of the former kind; 

 and under the respective archbishops of England 

 there were frequent provincial synods. In Scot- 

 land, two provincial synods, held at Perth in 1242 

 and 1269, passed some important laws regarding 

 tithes. 



A great rivalry existed between the civil and 

 the canon law ; but it was in the main a friendly 

 rivalry. In the north of Europe the clergy were 

 the repositaries of both systems, and they had to 

 decide how much should be assigned to the one, 

 and how much to the other. The canon law bor- 

 rowed largely from the civil, of which it is some- 

 times considered a mere branch ; it was naturally, 

 indeed, the object of the clergy not so much to 

 change the law itself, as to take the administration 

 of it into their own hands. To be juris utriusque 

 doctor, or doctor of either law, civil and canon, 

 was a common distinction ; and hence has come 

 down to us, though entirely diverted from its 

 original meaning, our modern degree of LL.D. 

 During Henry VlII.'s reign, lectures on the canon 



