Page:The American Cyclopædia (1879) Volume V.djvu/153

 COMMON LAW 149 involving something of a spiritual nature, as tithes and benefices. So they claimed exclu- sive cognizance of all questions relating to marriage, on the ground that it was a spiritual contract, and this claim involved not merely the power of annulling marriages and granting divorces, but also of determining questions of legitimacy and bastardy. The probate of tes- taments, it appears, had previously belonged to them, and this carried with it the cognizance of legacies. Thus, for a considerable time, any questions relating to either, when inciden- tally involved in a civil court, were referred to the ecclesiastical court for an answer to the particular question, when the civil court pro- ceeded with the determination of the case. Jurisdiction of the estates (that is to say, the personal effects) of persons dying intestate was obtained under a custom which is spoken of in a law of Henry I., that such effects were to be disposed of pro animo, sua. This custom must have grown up after the conquest, for by the Saxon laws both real and personal estate de- scended in the same manner in case of intes- tacy. What would be most for the benefit of the soul of the intestate, it was maintained, the bishops were most competent to decide. In King John's charter (the original Magna Oharta) it was expressly provided that the chattels of an intestate should be disposed of by the next of kin per visum ecclesim. This clause, though it is said to have been also con- tained in the charter of Henry III., was left out in the exemplification on the roll, 25 Edward L, from which the Magna Charta was copied in the statute books. Under this it be- came an admitted right of the ecclesiastical courts to issue letters of administration in cases of intestacy. The law to which eccle- siastical courts had been formerly subject had been first established by a national synod held in 670, and was called the codex canonum vetus ecclesm Romance. Various laws were passed after that time for the regulation of ecclesias- tical matters, all of which, together with the original code, were reviewed by William the Conqueror with the assent of his great coun- cil. There was, therefore, a national canon law which had been prescribed or sanctioned by the legislature, and which did not depend upon pontifical authority. Under the new constitution of ecclesiastical courts, the clergy now, however, sought to introduce the entire canon law as promulgated at Rome. A com- pilation by Ivo de Chartres, in the reign of Henry I., contained many innovations upon the ancient law ; but after the digest of the whole pontifical canon law by Gratian had been adopted at Rome, it became a favorite object with the English clergy to procure its recogni- tion as the basis of their ecclesiastical law. As this compilation was derived chiefly from the Roman or civil law, the latter was also regarded with much favor by ecclesiastics, and they introduced public instruction at Oxford upon both the canon and civil law. Such, however, was the national jealousy, that in 1152 the king prohibited the reading of books of canon law, referring, it may be presumed, to the two compilations by Ivo de Chartres and Gratian. The doctrines of this foreign canon law being in many respects subversive of the authority previously exercised by the civil government over the ecclesiastical courts, a struggle took place in which the whole pon- tifical power was brought to bear in their favor. The constitutions of Clarendon, which were enacted by Henry II. with the assent of the great council, in 1164, and confirmed at a council held at Northampton in 1176, were intended as a final settlement of the disputed points. By these it was determined that ques- tions concerning benefices (that is to say, the right of presentation) should be tried by the king's secular courts ; that ecclesiastics should be bound to come into the king's courts to answer to any matters cognizable there ; that there should be no appeal from the arch- bishop's court except to the king in person ; questions in relation to benefices, when the matter involved was whether the benefice were lay or eleemosynary, were to be deter- mined in the king's court by a recognition of 12 men (a jury) ; lastly, the ecclesiastical courts were excluded from jurisdiction of pleas of debt, which they had lately assumed upon pretence that they were due fide inlerposita. In consequence of the king's remorse for the murder of Becket, these constitutions were not strictly executed during the rest of his reign, but they were not repealed. It would exceed our limits to trace further the history of the ecclesiastical laws of England. It will be suffi- cient to say that by various legatine and pro- vincial constitutions, the former being enacted by national synods, the latter by provincial synods, held either by the archbishop of Can- terbury or of York, the canon law has been settled with sole reference to the exigencies of the church and kingdom of England, and its authority now rests upon a statute of Henry VIII., by which it was declared that all canons, constitutions, &c., then existing, and which were not repugnant to the law of the land or the king's prerogative, should remain in use. An incidental effect of the enlargement of ecclesiastical jurisdiction was that the civil law was referred to for the decision of many questions, and the rules thus adopted were of course recognized by other courts; but in addition to this, the law of England relating to personal property, which was comparatively deficient, received a large accession from the civil law, with which the judges had now become somewhat acquainted. The rules of consanguinity and therefore of descent, except the law of primogeniture, were taken wholly from the canon law, which in this particular differed from the civil. And even as to pri- mogeniture, there was for a time an alternation between the feudal principle, which gave to the eldest son the entire inheritance, and the