Page:Encyclopædia Britannica, Ninth Edition, v. 5.djvu/31

Rh that international questions should be decided according to law and Christian morality, and that war, when inevitable, should be conducted according to recognized rules laid down in the interests of humanity. The system of church administration served as a model for that of the state, which in mediaeval times was frequently controlled by Constitu- ecclesiastics. The constitutional duties of a sovereign to tional law. j^ g p e0 pj e W ere boldly aaserted by the church. Kings were taught that there were obligations for discharging which they were responsible to God, and that if these were neglected their subjects might be absolved from their allegiance. In after times the enemies of the church borrowed some of their most effective weapons from her own armoury. The writers on the law of nature and of nations, who headed the rebellion against the encroachments of ecclesiastical jurisdiction, adopted many principles which are to be found in the Corpus Juris Canonici, where we may also trace the germs of some leading doctrines of the French Revolution. The canon law suited the civilization of the Middle Ages. It was natural that a system, claiming to regulate the most important concerns of practical life, administered by courts which, though belonging to different nations, were under the control of one central authority, and developed under the direction of a succession of able legislators, such as Hildebrand and Innocent III., should take the lead in forming the character and reconciling the conflicting interests of the rising nationalities. The canon law was not so much an independent system of law as a method of selecting what was best from the existing systems, and transforming it, by the help of Christian morality and feeling, into one homogeneous, eclectic whole. Much of the Roman element in the common laws of Europe at the present day has descended indirectly through the canon law, though modern jurists are too apt to ignore this and express their obligations to the ancient sources alone. The decline of the canon law kept pace with that of the church from which it sprang. The strife of popes and antipopes, the increased strength of national feeling prompt ing the prelates to take their sovereign s part in his quarrels with the papacy, the arrogance of the ecclesiastical courts, the Reformation, the French Revolution, in short, all those causes that weakened the church s power and influence, were prejudicial to the authority of the canon law. And now that every country in Europe possesses, if not a code, at all events a matured system of national law, the Corpus Juris Canonici possesses little more than an historical and scientific interest.

IV. .—Germany.—The Canon Law is still the common law of both sections of the Christian church of Germany, and in purely religious and eccle siastical questions affecting their internal affairs it is applicable, so far as not altered by modern church standards. Such are, for the Roman Catholics, the canons of the Tridentine (1545-1563) and Vatican (1869) councils, and the various concordats with the temporal power ; for the Protestants, the evangelical confessions (Augsburg, &amp;lt;tc.) and the Condusa Corporis Evangelicorum (1653-1806). The relations of the different churches with the state are regulated exclusively by the law of the land. In a ques tion of private law the canon law has no validity as an independent source. Till the end of last century both the civil and canon laws were by custom received as authoritative in Germany. They were applied universally in the civil courts, and the canon law as the lex posterior was preferred in case of conflict. These two systems, along with the feudal customs, were the three constituent elements of the common law or Gemeines Recht. The jurisdiction of the latter is now confined by the provisions of the modern codes to about one-third cf Germany. Within that area the Corpus Juris Canonici may be quoted to aid in interpreting a doubtful point of common law. In other words, it is of historical but not of legislative authority.

France.—The Constituent Assembly, after abolishing tithes and religious orders and secularizing church property, superseded the canon and all other laws for the government of the church by the Constitution Civile du Clerge, enacted in 1790. Finally, in 1793 the Convention suppressed altogether the Christian religion and its institutions. Since the restoration of the Church in the beginning of this century, both its internal government and external relations have been regulated exclusively by civil enactment, based on the concordat between Napoleon I. and Pope Pius VII. (1801), and the Articles Organiques which followed in 1802.

England.—The Canon Law is of no intrinsic obligation in England. The English people have in all ages shown a firm determination that neither the national church nor the national law should be subject to the Papal legislation or jurisdiction. As early as 1138 Archbishop Theobald of Canterbury brought over Vacarius and other learned ecclesiastics from Italy to introduce the study of civil and canon law into England. The bishops and clergy vigor ously supported the new system so favourable to their order ; but the nobility and laity generally adhered to the old common law with great pertinacity. The contest was practically decided when in the 13th century the Court of Common Pleas was fixed at Westminster. This brought together the practitioners in municipal law who had been, while the court was ambulatory, dispersed throughout the kingdom, and shortly afterwards the victory of common law was made secure by the establishment of the Inns of Court and Chancery for the education of youth in municipal law. The system administered in the spiritual courts is known as &quot; the king s ecclesiastical law.&quot; It is based on the canon law, a knowledge of which is highly useful to the English ecclesiastical lawyer. But only such portions of the canon law have been adopted as have been sanc tioned by the national legatine and provincial constitutions, the statutes of the realm, and immemorial church usage. The canon law, though not binding proprio vigore, is one of the sources of the common law of England. The rules for the descent of land, for instance, are borrowed wholly from that system. But England assimilated less of it than other countries, or than might have been adopted by herself with advantage. It was not that the English people considered the provisions of the canon law inferior to their own customs ; they were as a rule entirely ignorant of it. But their struggles against appeals to Rome and other claims of ecclesiastical jurisdiction roused the feeling of the nation. They stoutly stood up for their common law, cumbrous and even barbarous in some respects as it was, not because they thought it perfect, but because they were resolved to manage their own concerns after their own fashion. At the parliament of Merton (1236) when the bishops proposed that legitimation by subsequent marriage should be legalized, alleging that holy church (that is, the canon law) sanctioned such legitimation, all the earls and barons, we are told, with one voice answered, &quot; Nolumus leges Angliae mutari.&quot; This incident shows that even at that early date canon law was of no authority unless sanctioned by the law of the land, for the decretal (c. 6, X. qui filii sint legitimi, iv. 17) alluded to by the bishops was addressed by Pope Alexander III. to the bishop of Exeter in 1172, and was incorporated in the Decretals of Gregory promulgated in 1234, two years before the parliament of Merton.

Scotland.—Several causes conduced to the provisions of the canon law being extensively adopted by the law of 