mes, tom. i. p. 201, that monarch directs his judges,

y

if any difference should arise between the administrators of the revenues of that church and person whatever, not to summon the administrators to appear in mallo publico; but first of all to meet with them, and to endeavour to accommodate the difference in an amicable manner. This indulgence was in process of time improved into a legal exemption; which was founded on the same superstitious respect of the laity for the clerical character and function. A remarkable instance of this occurs in a charter of Frederic Barbarossa, A. D. 1172, to the monastery of Altenburg. He grants them judicium non tantum sanguinolentis plagæ, sed vitæ & mortis; he prohibits any of the royal judges from disturbing their jurisdiction; and the reason which he gives for this ample concession is, nam quorum, ex Dei gratia, ratione divini ministerii onus leve est, & jugum suave; nos penitus nolumus illos oppressionis contumeliâ, vel manu Laica, fatigari. Mencken Script. rer. Germ. vol. iii. p. 1067.

IT is not necessary for illustrating what is contained in the text, that I should.describe the manner in which the code of the canon law was compiled, or shew that the doctrines in it most favourable to the power of the clergy, are founded on ignorance, or supported by fraud and forgery. The reader will find a full account of these in Gerard. Van Mastricht. Historia Juris Ecclesiastici, & in Science de Government par M. Real, tom. vii. c. 1 & 3. § 2, 3, &c. The history of the

progress and extent of ecclesiastical jurisdiction, with an account of the arts which the clergy em ployed in order to draw causes of every kind into the spiritual courts, is no less curious, and would throw great light upon many of the customs and institutions of the dark ages; but it is likewise foreign from the present subject. Du Cange in his Glossary, voc. Curia Christianitatis, has collected most of the causes with respect to which the clergy arrogated an exclusive jurisdiction, and refers to the authors, or original papers, which confirm his observations. Giannonè in his Civil History of Naples, lib. xix. § 3. has ranged these under proper heads, and scrutinizes the pretensions of the church with his usual boldness and discernment. M. Fleury observes, that the clergy multiplied the pretexts for extending the authority of the spiritual courts with so much boldness, that it was soon in their power to withdraw almost every person and every cause from the jurisdiction of the civil magistrate. Hist. Eccles. tom. xix. Disc. Prelim. 16. But how ill-founded soever the jurisdiction of the clergy may have been, or whatever might be the abuses to which their manner of exercising it gave rise, the principles and forms of their jurisprudence were far more perfect than that which was known in the civil courts. It seems to be certain that ecclesiastics never submitted, during any period in the middle ages, to the laws contained in the codes of the barbarous nations, but were governed entirely by the Roman law. They regulated all their transactions by such of its maxims as were preserved by tradi

tion, or were contained in the Theodosian code, and other books extant among them. This we learn from a custom which prevailed universally in those ages. Every person was permitted to

chuse among the various codes of laws then in force, that to which he was willing to conform. In any transaction of importance, it was usual for the persons contracting to mention the law to which they submitted, that it might be known how any controversy that should arise between them was to be decided. Innumerable proofs of this occur in the charters of the middle ages. But the clergy considered it as such a valuable privilege of their order to be governed by the Roman law, that when any person entered into holy orders, it was usual for him to renounce the code of laws to which he had been formerly subject, and to declare that he now submitted to the Roman law. Constat me Johannem clericum, filium quondam Verandi, qui professus sum, ex natione meâ, lege vivere Langobardorum, sed tamen, pro honore ecclesiastico, lege nunc videor vivere Romana.. Charta, A. D. 1072. Farulfus presbyter qui professus sum, more sacerdotii mei, lege vivere Romana. Charta, A. D. 1075. Muratori Antichita Estensi. vol. i. p. 78. See likewise Houard Anciennes Loix des François, &c. vol. i. p. 203.

THE code of the canon law began to be compiled early in the ninth century. Mem. de l'Acad. des Inscript. tom. xviii. p. 346, &c. It was above two centuries after that before any collection was made of those customs, which were the rule of

judgments in the courts of the barons. Spiritual judges decided, of course, according to written and known laws; Lay judges, left without any fixed guide, were directed by loose traditionary customs. But besides this general advantage of the canon law, its forms and principles were more consonant to reason, and more favourable to the equitable decision of every point in controversy, than those which prevailed in lay courts. It appears from Notes XXI. and XXIII. concerning private wars, and the trial by combat, that the whole spirit of ecclesiastical jurisprudence was adverse to those sanguinary customs which were destructive of jus tice; and the whole force of ecclesiastical authori ty was exerted to abolish them, and to substitute trials by law and evidence in their room. Almost all the forms in lay courts, which contribute to establish, and continue to preserve order in judicial proceedings, are borrowed from the canon law. Fleury Instit. du droit canon. part iii. c. 6. p. 52 St. Louis, in his Establissemens, confirms many of his new regulations concerning property, and the administration of justice, by the authority of the canon law, from which he borrowed them. Thus, for instance, the first hint of attaching moveables for the recovery of a debt, was taken from the canon law. Estab. liv. ii. c. 21 and 40. And likewise the cessio bonorum, by a person who was insolvent. Ibid. In the same manner, he established new regulations with respect to the effects of persons dying intestate, liv. i. c. 89. These and many other salutary regulations the Canonists had borrowed from the Roman law. Many other ex*

amples might be produced of more perfect jurisprudence in the canon law than was known in lay courts. For that reason it was deemed an highr privilege to be subject to ecclesiastical jurisdiction. Among the many immunities, by which men were allured to engage in the dangerous expeditions for the recovery of the Holy Land, one of the most considerable was the declaring such as took the Cross to be subject only to the spiritual courts, and to the rules of decision observed in them. See Note XIII. and Du Cange, voc. crucis privilegia.

NOTE XXV. SECT. I. p. 78. [BB].

THE rapidity with which the knowledge and study of the Roman law spread over Europe is amazing. The copy of the Pandects was found at Amalphi, A. D. 1137. Irnerius opened a college of civil law at Bologna a few years after. Giann. Hist. book xi. c. 2. It began to be taught as a part of academical learning in different parts of France before the middle of the century. Vaccarius gave lectures on the civil law at Oxford, as early as the year 1147. A regular system of feudal law, formed plainly in imitation of the Roman code, was composed by two Milanese-lawyers about the year 1150. Gratian published the code of canon law, with large additions and emendations, about the same time. The earliest collection of those customs, which served as the rules of decision in the courts of justice, is the Assises de Jerusalem. They were compiled, as the preamble in