A.D. 1313. Constitutions of Clement V. A.D. 1483. Extravagantes Communes, consisting of decrees of popes from Urban VI. to Sixtus IV. Thus, as Arthur Duck says (De Auth. Furis. 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 Furis 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 (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 controversy, however, has been to throw a clear light on much of the path, and to reduce the questions which are still unsettled to a few of slight importance. The provinces which from time immemorial were said to be governed by Roman law and which were called pays de droit écrit were either those bordering on Italy or those first conquered by the Romans and last conquered by the Franks. To this number belonged Guienne, Provence, Dauphiny, and Aquitaine. They were said to include all those districts which depended on the Parliaments of Toulouse, Bordeaux, Grenoble, Aix, Pau; and some which depended on the Parliament of Paris, such as le Lyonnois, le Forêt, le Beaujolais, and a great part of Auvergne. As to the history of this distribution of provinces, it was customary at one time to attribute its origin to nothing more noticeable than the imperfect conquests made by the Franks in some parts of the country in which the Roman law, during an occupation of five hundred years, had taken a deep root, and the feebler hold which Roman law had as against feudal institutions in the countries farthest removed from the Italian border. Heineccius, however, has ably criticized this theory, and pointed out that,—considering that Roman law was the only legal system which for hundreds of years together was habitually administered. throughout the whole of Gaul, while the competing customs. were different for different provinces, and at the same time uncertain and only to be ascertained by positive evidence, -the sharp distinction between the Roman-law provinces and the customary provinces must have been due to some positive historical events which occurred long after the Roman dominion had passed away. This period he fixes at the end of the ninth century, when the centralization introduced by the Carlovingian dynasty was relaxed, and the feudal lords kept up a constant and successful resistance to the claims of the Crown. In the troubles of the times might, rather than right, law, or justice, held sway. The administration of law was loose and irregular. Customary usages easily held their own when asserted on behalf of the "Historia Juris Gallicani Epitome," § vii. strong and the rich. It became, indeed, the interest of the feudal potentates to encourage differences of practice and usage in order to prevent combination among vassals. This account, though it does not explain the lines of separation between the two classes of provinces, yet discovers the existence of causes capable of enabling local usages to compete, under favourable circumstances, with the ancient and familiar principles of Roman law. The account seems all the more plausible when it is considered how Roman law has always played a part, even in the customary provinces, in all cases in which no appropriate custom could be cited. That the distinction between the customary and the Roman-law provinces was well marked in the thirteenth century appears from casual allusions in State documents, as when Honorius III., writing in 1220 (Heineccius, loco cit., §7), says, "Quia tamen in Francia" (that is, in the isle of France) "et non nullis provinciis laici Romanorum imperatorum legibus non utuntur;" and again, when Philip the Fair, in an ordonnance of 1312, relating to the study of the civil and canon law at Orleans, says, “ Regnum nostrum consuetudine moribusque præcipue non jure scripto regitur licet in partibus ipsius Regni quibusdam subjecti, ex permissione nostrorum progenitorum et nostrâ juribus scriptis utantur in pluribus." It remains to be seen in what sense Roman law actually prevailed before and after the thirteenth century in the provinces to which it was held especially to belong, and how far it has held a place even in the legal system of the customary provinces. Dr. Arthur Duck,-whose treatise, De usu et authoritate Juris Civilis Romanorum per dominia Principum Christianorum, printed in London in 1689, has, perhaps, more repute than any other treatise on this class of subjects by an Englishman, excepting, perhaps, Selden's Fleta,-has attempted (lib. ii. cap. v.) to mark the limits within which Roman law has, in historical times, really been applied in the "countries of written law." In those provinces he points out, and establishes by proofs, that a reference to royal ordinances was only admissible in a judicial argument so far as those ordinances supplemented and facilitated the application of the Roman law, and did not purport to override it. According to the language of French lawyers royal ordinances were to be observed in Præparatoriis Judiciorum, but Roman law obtained in Decisoriis. In other words, the surrounding procedure might be varied by positive legislation from time to time, but the substantial issue was to be referred always to principles of Roman law. When an appeal took place from a Roman-law province to the supreme Parliament of Paris, which place was subject to customary law, the decision on appeal was, by a special enactment of Philip the Fair, to be in accordance with Roman law. On the occasion of provinces being detached from the Parliament of Bordeaux, which presided over Roman-law provinces, and annexed to a Parliament such as that of Paris, usually cognizant of customary law only, the Roman law was to be applied in all matters affecting that province. Thus, in these provinces, even after the annexation, Wills were to be made, contracts made and executed, and justice administered acording to Roman-law rules. Up to the time of Francis I. the Latin language was still in use for law proceedings in the provinces. The practical consequences of the prevalence of Roman law in a province were of an important and sometimes beneficial kind. Thus it was that, in the case of high treason, a criminal's property was confiscated to the State. The father's power extended for some purposes of property over a daughter, even after marriage. Contracts were allowable, feudal usages were received in evidence, and appeals were conducted on principles at once more liberal and more systematic than in the customary provinces. A significant distinction was that in a Roman-law province foreigners-including, of course, Burgundians and Flemings, who were close neighbours, and constantly passing to and fro-could make Wills, or could have their property pass in case of intestacy to their natural heirs, which was not possible in a customary province. |