arose may be briefly stated as follows. Under the feudal system real estate was held in fee by the Superior Lord, the King, by the right of conquest. This he parcelled out to his immediate followers to hold upon certain terms of allegiance and aid in case of war; they, in turn by the process of subinfeudation, carved out their respective holdings to subordinates under like service of aid and fealty, in case the Superior Lord demanded assistance in preserving order in the Kingdom or assistance in foreign wars. Personal pro

perty was of little account in those stirring times. The Church succeeded in getting control of personal property of deceased persons for the benefit of their families and relatives. The pressure was felt keenly during the Crusades. Bracton, who wrote his commentaries in the reign of Henry III., laid down the rule, that matters testamentary belonged to the Spiritual Courts, and that the disposition of the goods of intestates was one of the articles confirmed to the Prelates of the Church by Magna Charta. The course of procedure, in these Courts, was very simple, and briefly outlined, as follows: Upon the death of a person, the Bishop or Ordinary took control of his personal effects, within his territorial jurisdiction, and committed its administration to some reliable person or persons, retaining the right to see it properly administered. The jurisdiction was divided into three branches: the probate of the will, if one; the granting of a commission of administration, if the decedent died intestate; the payment of legacies, if any; and the distribution of the surplus, if any, according to the rules of distribution. The proceedings were regulated according to the rules of practice of the Canon and Civil laws. The English parliament, from time to time, intervened to alter the procedure of the Ecclesiastical Courts, as well of the probate of wills as of the distribution of intestate estates. The English Statute of Distributions, according to Chancellor Kent, was borrowed from No. 118 of Justinian's Novels.

Kent remarks, in vol. 1 of his Commentaries, at page 542, as follows:

Lord Holt and Sir Joseph Jekyll declare that the English Statute of Distributions of Intestate Estates was penned by a civilian and is to be construed by the rules of the Civil law; and when we compare the provisions of the English statute with the Roman Novel, the conclusion seems to be very fair and very strong, that the one was borrowed essentially from the other."

See Pett's Case,2 in 1700, in which a mandamus was brought to compel the Spiritual Court to make a distribution under the statute, 22-23 Charles II., there being a difference between the rules of the Civil law and the rules of the Canon law, in the case of intestate estates. Chief Justice Holt, in giving judgment, referred to the case of Mentney v. Petty, in which Sir Joseph Jekyll, Master of the Rolls, held that the statute of Charles II. was grounded upon and construed by the rules of the Civil law. See the case of Mentney v. Petty, Precepts in Chancery, page 593.

In a lecture delivered by the Hon. C. N. Skinner, Q.C., Judge of Probate for the City and County of Saint John, in 1886, is found the following statement: "The practice is founded on the rules of the Civil law, and where there is no statute law or decided cases governing a matter, these rules will prevail."

The introduction of the principles of the jus gentium, through the Edicts of the Praetors, illustrates the influence of natural law or equity on the Roman Civil law. And the introduction of Praetorian equity in England illustrates the influence of Roman Civil law upon the Common law of England.

The decision reached in the struggle between Lord Chief Justice Coke and Lord Chancellor Ellesmere, assisted by Attorney-General Sir Francis Bacon, settled the right of equity to interpose, when an injustice was sought to be done; unler the rules of the Common law.

21 Wms. 26.

An eminent American author, commenting upon this phase of the question, says:—

"By this decision, during the reign of James I., Equity became a recognized concurrent branch of English jurisprudence. It grew side by side with the Common law. With the continued advance of commerce and civilization and the growing necessity for recurrence to the Roman law to solve the many complex problems of human transactions, for which the Common law became daily more and more inadequate, it received a development under several successive Chancellors of great ability, such as Somers, Hardwicke, and Brougham, which has enabled it in modern times greatly to overshadow the Common law branch of the English system. The triumphs of the Court of Chancery, the efforts of Ellesmere and Bacon, was distinctly a triumph of the Civil law over the Common law of England. The Common law had no flexibility; the jurisprudence of Equity readily adapted itself to all the increasing demands of advancing humanity."

Of all the agencies that assisted in the development of Roman Civil law, that of the Praetorian system seems to have been the most effective. The advantage of legislation through the Edicts of Praetors over laws by the Assemblies was great, being less cumbersome and far more concise. It was possible to experiment with such a remedy. If a mistake, it could last but one year, in which it could receive trial and its repeal by the next Praetor in the succeeding year. By such a process of sifting and testing," law soon became an entity instinct with life. The constant effort for its improvement gave it more flexibility and stimulated growth. Adapted to meet every exigency, it was ever progressing towards betterment along the lines of least resistance in the direction of perfection.

Such

a system followed through many centuries by a practical and original people, guided by the greatest jurisconsults of any age or any nation, each Praetor, for his short term of office, striving to surpass his predecessor, by a generous and ennobling rivalry, in laying down sound principles of law, administered under rules of procedure as free from complexity as possible, could lead but to one result, a Code of laws pronounced by a great authority to be," Such as excites never failing admiration and receives the homage of scholars as a singular monument of wisdom.”

Contrast such a system with what obtained in. English Courts, a little over one hundred year ago, when members of the profession revelled in all the glories of Special Pleading. A mastery of the mysteries of Special Pleading was considered the first condition of success. A reputable authority has said: "No one who has read the reports of that period can fail to be struck how the cases, nine times out of ten, turn on technicality of the pleadings, in which substance, too often, is sacrificed for form."

These were the days when Special Pleaders strove to excel each other by spreading on the record such uncouth terminology as Negative Pregnant, absque hoc, Replicatio de Injuria, Rejoinder, Sur-Rejoinder, Rebutter, Sur-Rebutter, et hoc genus omne, more for the purpose, it is to be feared, of enmeshing a less skilful brother in the toils of technicality, than in settling the issue of the case under trial.

Lord Chancellor Cairns, in a speech delivered in the House of Lords in 1867, said: "The change effected by the Judicature Acts has satisfied me of the wisdom of Parliament in introducing that great measure. There has been found, in their working, a degree of flexibility, of simplicity, of uniformity, and of economy of judicial time, which has secured the best results."

Connected with the Corpus Juris Civilis is another Code, to which reference may be made, called the Corpus Juris Canonici (body of the Canon law). It has already been seen how the Church, during the rule of feudalism, had succeeded in getting control of the personal property, for the benefit of the wife and children, on the death of the occupant of real estate, whose holding reverted to the feudal lord. In addition to this, the disposition of property granted to the Church for its uses, the civil conduct of its subordinates and officials, the subject of matrimony and divorce, International law and Admiralty and other nalogous matters were, likewise, withdrawn from

feudal authority and brought within the control of the Ecclesiastical Courts. The rules of the Canon law having become voluminous, it was found a codification was necessary. Consequently Gratian, a professor of the Civil law, in the University of Bologna, in the year 1150, published a treatise or codification of the Canon law of great value. At that time this was the most famous University of Europe, having over 10,000 students. Henceforth students from all quarters flocked to Bologna, where both the Civil and Canon laws were taught. Bologna was the first to confer the degree of LL.D.: Doctor both of the Roman Civil and of the Roman Canon law. An American author, in referring to the last named degree, calls it:—“That now much abused degree of LL.D."

One hundred years ago jurisprudence in England consisted of Common law, Statutory law, Chancery, Admiralty, Probate, Divorce, and International law; coupled with a large measure of Roman Civil and Roman Canon law, adjusted to English ideas and exigencies. The most of these were administered in the Ecclesiastical Courts held at Doctors' Commons, near St. Paul's Cathedral. The rapid advance henceforth made in the dispensation of justice, is largely due to three eminent jurists, Lord Chief Justice Mansfield, the Right Hon. Stephen Lushington, and Sir Robert Phillimore, all great admirers of the Roman

Civil law.

The Right Hon. Stephen Lushington, it is said, was equally versed in Ecclesiastical, Probate, Matrimonial, Admiralty, and International law. He has been styled a master-builder of law. How fortunate he presided, for so many years, over the Admiralty, Probate and Divorce and International Courts! His judgments are masterpieces of elegant diction and judicial wisdom. He shaped and moulded the law to meet the changed conditions of commerce and advancing civilization. His judgments, growing out of questions arising during the Crimean war, such as the rights