Sivut kuvina

Gratian's decree;

the decre

tals of Gregory IX.,

ian monk, animated by the discovery of Justinian's Pandects, reduced the ecclesiastical constitutions also into some method, in three books, which he entitled Concordia Discordantium Canonum, but which are generally known by the name of Decretum Gratiani. These reached as low as the time of Pope Alexander III. The subsequent papal decrees, to the pontificate of Gregory IX., were published in much the same method, under the auspices of that pope, about the year 1230, in five books, entitled Decretalia Gregorii Noni. A sixth book was added by Boniface VIII., about the year 1298, which is called and of Boni- Sextus Decretalium. The Clementine Constitutions, or decrees face VIII.; of Clement V., were in like manner authenticated, in 1317, by the constitu- his successor, John XXII., who also published twenty constituClement V.; tions of his own, called the Extravagantes Joannis: all which, and the ex in some measure, answer to the novels of the civil law. To these have been since added some decrees of later popes, in five books, called Extravagantes Communes. And all these together, Gratian's Decree, Gregory's Decretals, the sixth decretal, the Clementine Constitutions, and the Extravagants of John and his successors, form the Corpus Juris Canonici, or body of the Roman canon law."

tions of

travagantes of John

XXII. and

his success


The legatine and pro


Besides these pontifical collections, which during the times of popery were received as authentic in this island as well as in other parts of Christendom, there is also a kind of national vincial con- canon law, composed of legatine and provincial constitutions, stitutions. and adapted only to the exigencies of this church and king[83] dom. The legatine constitutions were ecclesiastical laws en

acted in national synods held under the Cardinals Otho and Othobon, legates from Pope Gregory IX. and Pope Clement IV., in the reign of King Henry III., about the years 1220 and 1268. The provincial constitutions are principally the decrees of provincial synods held under divers archbishops of Canterbury, from Stephen Langton, in the reign of Henry III., to Henry Chichele, in the reign of Henry V., and adopted also by the province of York, in the reign of Henry VI." At the dawn of the Reformation, in the reign of King Henry VIII., it

* Burn's Eccl. Law, pref., viii.

ries of Charlemagne, and the decrees
and pontifical epistles of Syricus and
Anastasius, who were popes at the end
of the fourth and beginning of the fifth

(21) The origin of the canon law is traced by Gratian from Constantine the Great, the first Christian emperor.

(22) The main design of the entire Roman canon law was to support the despotism and extend the authority of

the Roman pontiffs; but several most learned and eminent writers of the Romish communion acknowledge that it is full of errors and defects. (Mosh., E. H., iii., 35.)

(23) The English constitutions have been commented upon by several English canonists, the chief of whom is Lyndwood, who lived in the beginning of the fifteenth century, and is said by Godolphin to have been dean of the Arches in the reign of Hen. VI.

was enacted in Parliamenty that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. And as no such review has yet been perfected, upon this statute" now depends the authority of the canon law in England.

As for the canons enacted by the clergy under James I., in The canons the year 1603, and never confirmed in Parliament, it has been of 1603 solemnly adjudged, upon the principles of law and the Constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity, whatever regard the clergy may think proper to pay them."

y Statute 25 Hen. VIII., c. 19; revived and confirmed by 1 Eliz., c. 1.

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* Stra., 1057.

(24) The 25 Hen. VIII., c. 19, recites no canon or constitution of the church that the clergy besought the king "that was considered to be generally binding, the constitutions and canons should be unless, by general adoption and usage, it committed to the examination and judg- had become part of the ecclesiastical ment of his highness, and of thirty-two common law of this land. The proviof his highness's subjects, whereof six- sions and objects of these statutes not teen were to be of the clergy; and that having been carried into effect in the such constitutions and canons as should reign of Hen. VIII., the 3 & 4 Edw. VI., be thought and determined by the said c. 11, appointed a new commission, also two-and-thirty persons, or the more part directed to thirty-two persons, to prepare of them, worthy to be abrogated and a complete code of canon law. By a annulled, should be abolished and made committee of eight out of the said thirty of no value accordingly; and such other two commissioners, a work analogous to of the same constitutions and canons as the Roman decretals was composed, by the said two-and-thirty, or the more called "Reformatio Legum Ecclesiastipart of them, should be approved to carum," which is spoken of by Lord stand with the laws of God, and conso- Stowell (1 Hag. Con., 179) "as a work nant to the laws of this realm, should of great authority in determining the stand in their full strength and power, practice of the times, whatever may be the king's most royal assent being first its correctness in matters of law." The had and obtained to the same." This early death of Edw. VI. prevented any ecclesiastical commission was extended steps being taken to ratify this code. In by 27 Hen. VIII., c. 15, beyond the then the reign of Mary all the above acts were session of Parliament, and by 35 Hen. repealed, but in the reign of Elizabeth VIII., c. 16, during the life of the king. they were revived, and extended to the The 25 Hen. VIII., c. 19, also enacted, queen's heirs and successors; but no futhat "until such time as the king and the ture steps were taken to carry the pursaid two-and-thirty persons should have poses of 25 Hen. VIII., c. 19, into pracaccomplished the effects and contents tical execution. Much of the canon law before rehearsed, such canons, constitu- has, however, been virtually adopted tions, ordinances, synodal or provincial, into our system, and has, during many or other ecclesiastical laws or jurisdic- centuries, been accommodated by our tions spiritual, as be yet accustomed and own lawyers to the local habits and cusused here in the Church of England, toms of the country, and these laws owe which necessarily and conveniently are their authority to their being, as described requisite to be put in use and execution in the preamble to the 25 Hen. VIII., for the time, not being repugnant, con- c. 21, "laws which the people have tak trarient, or derogatory to the laws or en at their own free liberty, by their statutes of the realm, nor to the prerog- own consent." (Gibs. Intr. to Cod., 27; atives of the regal crown of the same, 2 Atk., 673; Palm., 458; Vaugh., 21; 3 shall be occupied, exercised, and put in Phill., 162; Hag. Con., 393, 464.) use for the time within this realm;" from which it seems that at that period

(25) As the canons of 1603 were rep.

The courts

which receive the

peculiar laws

There are four species of courts in which the civil and canon laws are permitted (under different restrictions) to be used. 1. The courts of the archbishops and bishops, and their derivative officers, usually called, in our law, courts Christian, curiæ Christianitatis, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two Universities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom; corroborated, in the latter instance, by act of Parlia

resented to be a careful selection of the best from the ancient law, and are the most modern ecclesiastical code of any pretense to authority in this country, a short analysis of them will be useful to the reader.

The 1st of them directs all ecclesiastical persons having care of souls, "to the uttermost of their wit, knowledge, and learning, purely and sincerely, and without any color or dissimulation, to teach, manifest, open, and declare, four times every year at the least, in their sermons, &c., the doctrine of the king's supremacy.' By the 2d, all persons who "affirm that the king's majesty hath not the same authority in causes ecclesiastical that the godly kings had among the Jews and Christian emperors of the primitive Church, are declared ipso facto excommunicate;" and by the 3d to the 12th, all impugners of the services, articles, or ceremonies of the Church of England, all schismatics, maintainers of conventicles, &c., are visited with the same punishment. From the 13th to the 30th, provision is made for the decent and solemn performance of divine service and administration of the sacraments; from the 31st to the 76th, for the qualifications, ordination, duties, functions, behavior, and garments of ministers; from the 80th to the 88th, for Bibles, fonts, communion-tables, and for cleaning and repairing churches. Some of these are rather characteristic of the reign of James I. Thus, the 72d directs that "no minister shall attempt to cast out any devil or devils without license under the hand and seal of the bishop of the diocese;" and the 74th, that "archbishops, deans, priests, and other ecclesiastical persons shall not wear coifs, or wrought nightcaps, but only plain nightcaps of black silk, satin, or velvet, and that they shall not go out in their doublet and hose without coats or cassocks, nor wear any light-colored stockings." From the 89th to the 138th, the duties of churchwardens and parish clerks; the mode of proceeding in the ecclesiastical courts; the offices of the judges,


proctors, surrogates, registrars, doorkeepers, &c., are regulated. By one of these (the 133d), proctors are censured and commanded "to refrain loud speech and babbling, and to behave themselves quietly and modestly in court." The 77th, 78th, and 79th relate to the licensing of schoolmasters; on which see Douse's case, 1 Lord Raym., 672; Davison's case, 1 Salk., 105; Burdett's case, 2 Salk., 672; Cox's case, 1 P. Wms., 29, and 6 T. R., 490. The 139th excommunicates those who shall affirm that "the sacred synod" is not the true Church of England by representation, a canon the authority of which depends on a palpable petitio principii. 140th excommunicates those who shall deny that these canons have authority over laity as well as clergy; an excommunication which might include, besides Blackstone, Lord Coke and all the judges of England (2 Inst., 599; 5 Rep.); Lord C. J. Holt (1 Salk., 134); Lordkeeper Wright, and Justices Treby and Powell (1 P. Wms., 32); Lord-chancellor Hardwicke and the other judges (Str., 1056); and, again (2 Atk., 158); and every other judge who has had occasion to consider the authority of ecclesiastical canons; for it has always been held by the temporal judges that those of 1603 do not bind the laity. (See, also, Carth., 485; 1 Lord Raym., 447, 539.) The last of these canons (the 141st) constitutes and ordains that all persons who shall maintain that this synod "was a company of such persons as did conspire together against godly and religious professors of the Gospel, and that they and their proceedings ought to be despised and contemned, &c., shall be excommunicated, and not restored until they repent and publicly revoke that their wicked error;" an excommunication which, if we may judge from the Puritan writings of the time, as completely failed to terrify the antago nists of the synod into respectful lan guage, as the ipso facto excommunications failed to produce submission and uniformity.

ment, ratifying those charters which confirm the customary [ 84 ] law of the Universities. The more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them.a

1. And, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess," and (in case of contumacy) to punish the officer who executes, and in some cases the judge who en forces, the sentence so declared to be illegal."

are controll


2. The common law has reserved to itself the exposition of and guided all such acts of Parliament as concern either the extent of of common by the courts these courts, or the matters depending before them. And, law, therefore, if these courts either refuse to allow these acts of Parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to restrain and control them.28

from them.

3. An appeal lies from all these courts" to the king, in the and an aplast resort; which proves that the jurisdiction exercised in peal lies them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own. And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate, and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modeled, and amended, they are by no means with us a distinct, independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the king's ecclesiastical, the king's military, the king's maritime, or the king's academical laws.


Let us next proceed to the leges scripta, the written laws of [85] the kingdom; which are statutes, acts, or edicts, made by the II. LEGES king's majesty, by and with the advice and consent of the lords SCRIPTE, or spiritual and temporal, and commons, in Parliament assembled.b The oldest of these now extant, and printed in our statute books, is the famous Magna Charta, as confirmed in Parliament, 9

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General or

Henry III.; though, doubtless, there were many acts before that time, the records of which are now lost, and the determinations of them, perhaps, at present currently received for the maxims of the old common law.

The manner of making these statutes will be better considered hereafter, when we examine the constitution of Parliaments. At present we will only take notice of the different kinds of statutes, and of some general rules with regard to their construction.c

First, as to their several kinds." Statutes are either general public acts. or special, public or private." A general or public act is a

The method of citing these acts of Parliament is various. Many of our ancient statutes are called after the name of the place where the Parliament was held that made them; as, the statutes of Merton and Marleberge, of Westminster, Gloucester, and Winchester. Others are denominated entirely from their subject; as, the statutes of Wales and Ireland, the articuli cleri, and the prerogativa regis. Some are distinguished by their initial words, a method of citing very ancient, being used by the Jews in denominating the books of the Pentateuch; by the Christian Church in distinguishing their hymns and divine offices; by the Romanists in describing their papal bulls; and, in short, by the whole body of ancient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections

(30) Statutes of all kinds passed before 33 Geo. III., c. 15, may be correctly described as of the regnal year in which the session of Parliament began, though the session extended into another regnal year, in which the statute was in fact passed (2 M. & S., 123). Thus, the statutes printed in the statute-book as of 29 Eliz. must be recited or pleaded as of the 28 Eliz.; for the session of the Parliament which passed those acts commenced on the 29th October, 1586, which was in the 28th Eliz. (9 Mood., 425; 2 Bing., 255; 3 Camp., 345). On the other hand, statutes passed since 33 Geo. III., c. 15, are incorrectly described as of the regnal year in which the session of Parliament commenced, unless they received the royal assent in that year.

The proper mode to plead or recite
every statute is to describe it as "passed
in the session of Parliament held in the
year (or·
and — years) of the reign
of," &c. (1 A. & E., 377), except in acts
of the reign of Philip & Mary (1 Cowp.,

To describe a statute, whether before

also; in imitation of all which, we still call some of our old statutes by their initial words, as the statutes of quia emptores, and that of circumspecte agatis. But the most usual method of citing them, especially since the time of Edward the Second, is by naming the year of the king's reign in which the statute was made, together with the chapter or particular act, according to its numeral order, as 9 Geo. II., c. 4. For all the acts of one session of Parliament taken together make, properly, but one statute; and therefore, when two sessions have been held in one year, we usually mention stat. 1 or 2. Thus, the Bill of Rights is cited as 1 W. & M., st. 2, c. 2, signifying that it is the second chapter or act of the second statute, or the laws made in the second session of Parliament in the first year of King William and Queen Mary.

or since 33 Geo. III., c. 13, as passed in two regnal years, is always inaccurate, and, in pleading, fatal (8 M. & W., 223.)

(31) In Parliamentary language, these are again subdivided as follows: The public acts are subdivided into general, as the Reform Act, the annual Mutiny Act, &c.; local, as church-building acts, canal and rail-way acts, parish acts, county acts, &c.; and personal, as patent acts, attainder acts, &c. The private acts are subdivided into local, as inclosure acts, &c.; and personal, as estate acts, divorce acts, naturalization acts, &c.; but many private acts, by a special clause, are declared to be public acts, so as not to require to be specially pleaded (Bac., Ab. Stat., F.). The printed statutes are classed under four heads, viz.: public general acts; local and personal acts declared public, and to be judicially noticed; private acts, printed by the queen's printer, and whereof the printed copies may be given in evidence; and private acts not printed.

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