Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/266

 252 //. FROM THE llOO'S TO THE 1800'S and in many countries. And here I must take a new point: the coercive authority given to the churches in matters of morals becomes henceforth a branch of jurisdiction, but there still remain branches of moral discipline which depend on voluntary obedience, in which a powerful offender, or a man who does not choose to confess, may defy law and order. For the latter were invented what may be called manuals of casuistry, the Penitentials ; for the jurisdiction proper there remained the canons of the councils, now possessing cogent authority, and the laws of the empire, now framed on a strict conformity between church and state. Here then we reach the historical materials on which is based the later canon law ; and almost at the same time the date at which the conversion of England began. In the middle of the sixth century Dionysius Exiguus, a Roman abbot, compiled the collection of canons which was the germ and model of all later collections. Nearly at the same time, both in the Eastern Church under John the Faster, and in the extreme West under the Irish and other Celtic mission- aries, began the compilation of Penitentials ; and in the same century the emperor Justinian completed the great body of the civil law. Thus you get the three conjoint sys- tems of jurisprudence: not distinct in fact from each other; overlapping everywhere, and even containing much common matter, but distinct in basis. Take the Penitential first: that was in reality a list of sins and their penances ; sins so ticketed and valued as to please even the most abstract philosopher ; permutated and combined to mathematical pre- cision. This sort of literature, belonging especially to ages and nations brought into close contact with heathen abom- inations, was very important in the last converted countries of East and West; Archbishop Theodore of Canterbury, the Venerable Bede, Egbert of York, and among the Celts Columbanus, Cummian, Vinniaus, and Adamnan, founded the penitential system here: from them the Frank and Ger- man churches adopted their rules, and by and by, when Anglo-Saxon literature was borrowing from the Continent, our scholars translated back with interest the developed systems which their predecessors had sent abroad. These