the civil law, introduced it into feveral nations, and occafioned that mighty inundation of voluminous comments, with which this fyftem of law, more than any other, is now loaded.

The canon law is a body of Roman ecclefiaftical law, relative to fuch matters as that church either has, or pretends to have, the proper jurifdiction over. This is compiled from the opinious of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy fee. All which lay in the same diforder and confufion as the Roman civil law: Till, about the year 1151, one Gratian an Italian monk, animated by the difcovery of Juftinian's pandects, reduced the ecclefiaftical conftitutions alfo into fome method, in three books; which he entitled Concordia Difcordantium Canonum, but which are generally known by the name of Decretum Gratiani. These reached as low as the time of Pope Alexander III. The fubfequent papal decrees, to the pontificate of Gregory IX, were publifhed in much the fame method, under the auspices of that pope, about the year 1230, in five books; entitled Decretalia Gregorii noni. A fixth book was added by Boniface VIII, about the year 1298, which is called Sextus Decretalium. The Clementine constitutions, or decrees of Clement V, were in like manner authenticated in 1317 by his fucceffor John XXII; who alfo publifhed twenty conftitutions of his own, called the Extravagantes Joannis: All which in some measure anfwer to the novels of the civil law. To thefe have been fince added, fome decrees of later popes in five books, called Extravagantes Communes. And all thefe together, Gratian's decree, Gregory's decretals, the fixth decretal, the Clementine conftitutions, and the extravagants of John and his fucceffors, form the corpus juris canonici, or body of the Roman canon law.

Befides these pontifical collections, which during the times of popery were received as authentick in this ifland, as well as in other parts of Chriftendom, there is alfo a kind of national canon law, compofed of legatine and provincial conftitutions, and adapted only to the exigencies of this church and kingdom. The legatine conftitutions were ecclefiaftical laws, enacted in na

tional

tional fynods, 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 conftitutions are principally the decrees of provincial fynods, 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 alfo 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 was enacted in parliament y that a review fhould be had of the canon law; and, till fuch review should be made, all canons, conftitutions, ordinances, and fynodals 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 ftatute now depends the authority of the canon law in England.

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

them.

Ꮓ

There are four fpecies of courts, in which the civil and canon laws are permitted (under different reftrictions) to be used. 1. The courts of the archbishops and bishops, and their derivative officers, ufually called in our law Courts Chriftian, Curiae Chriftianitatis, or the ecclefiaftical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two univerfities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon

x Burn's eccl. law, pref. viii.

y Statute 25. Henry VIII. c. 19; revived and confirmed by 1. Eliz. C. I.

z Stra. 1057.

upon custom; corroborated in the latter inftance by act of parliament, ratifying thofe charters which confirm the customary law of the univerfities. The more minute confideration of these will fall properly under that part of these Commentaries which treats of the jurisdiction of courts. It will fuffice at prefent to remark a few particulars relative to them all, which may ferve to inculcate more ftrongly the doctrine laid down concerning them a

1. And, firft, the courts of common law have the fuperintendency over these courts; to keep them within their jurifdictions, to determine wherein they exceed them, to restrain and prohibit fuch excefs, and (in case of contumacy) to punifh the officer who executes, and in fome cafes the judge who enforces the sentence so declared to be illegal.

2. The common law has referved to itself the expofition of all fuch acts of parliament as concern either the extent of thefe courts or the matters depending before them. And, therefore, if these courts either refufe to allow thefe acts of parliament, or will expound them in any other fenfe than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to restrain and control them.

3. An appeal lies from all thefe courts to the king, in the laft refort; which proves, that the jurifdi&tion exercifed in them is derived from the crown of England, and not from any foreign potentate, or intrinfick authority of their own. And, from these three ftrong marks and enfigns of fuperiority, it appears, beyond a doubt, that the civil and canon laws, though admitted in fome cafes by cuftom in fome courts, are only fubordinate, and leges fub graviori lege; and that, thus admitted, reftrained, altered, new modelled, and amended, they are by no means with us a diftinct independent fpecies of laws, but are inferior branches of the cuftomary or unwritten laws of England, properly called the king's ecclefiaftical, the king's military, the king's maritime, or the king's academical, laws.

Let

a Hale Hift. c. 2.

Let us next proceed to the leges fcriptae, the written laws of the kingdom; which are ftatutes, acts, or edicts, made by the king's majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in parliament affembled. The oldeft of these now extant, and printed in our ftatute books, is the famous magna charta, as confirmed in parliament 9th Henry III: Though doubtlefs there were many acts before that time, the records of which are now loft, and the determinations of them perhaps at present currently received for the maxims of the old common law.

The manner of making thefe ftatutes will be better confidered hereafter, when we examine the conftitution of parliaments. At prefent we will only take notice of the different kinds of ftatutes; and of fome general rules with regard to their construction .

b 8 Rep. 20.

First,

e The method of citing these acts of parliament is various, Many of our ancient ftatutes are called after the name of the place where the parliament was held that made them; as the ftatutes of Merton and Marleberge, of Westminster, Glocefter, and Winchester. Others are denominated entirely from their fubject; as the ftatutes of Wales and Ireland, the articuli cleri, and the praerogativa regis. Some are diftinguished by their initial words, a method of citing very ancient Being ufed by the Jews, in denominating the books of the pentateuch; by the Chriftian church, in diftinguishing their hymns and divine offices; by the Romanifts, in defcribing their pa pal bulls; and, in fhort, by the whole body of ancient civilians and canonifts, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior fections alfo: In imitation of all which, we ftill call fome of our old ftatutes by their initial words, as the ftatute of quia emptores, and that of circumspecte agatis. But the most ufual method of citing them, efpecially fince the time of Edward the second, is by naming the year of the king's reign in which the ftatute was made, together with the chapter, or particular act, according to its numeral order, as, 9. George II. c. 4. For all the acts of one feffion of parliament taken together make properly but one ftatute: And, therefore, when two feffions have been held in one year, we ufually mention ftat. 1. or 2. Thus the bill of rights is cited, as 1. W. and M. ft. 2. c. 2. fignifying, that it is the fecond chapter or act, of the fecond ftatute, or the laws made in the fecond feffion of parliament, in the first year of King William and Queen Mary.

:

First, as to their feveral kinds. Statutes are either general or fpecial, publick or private. A general or publick act is an univerfal rule, that regards the whole community And of this the courts of law are bound to take notice judicially and ex officio; without the ftatute being particularly pleaded, or formally fet forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular perfons, and private concerns: Such as the Romans entitled Senatus decreta, in contradiftinction to the Senatus confulta, which regarded the whole community d: And of these (which are not promulgated with the fame notoriety as the former) the judges are not bound to take notice, unless they be formally fhewn and pleaded. Thus, to fhew the dif tinction, the ftatute 13 Eliz. c. 10. to prevent fpiritual perfons from making leafes for longer terms than twenty one years, or three lives, is a publick act; it being a rule prefcribed to the whole body of fpiritual perfons in the nation: But an act to enable the Bishop of Chester to make a leafe to A. B. for fixty years, is an exception to this rule; it concerns only the parties and the Bishop's fucceffors; and is therefore a private act.

Statutes also are either declaratory of the common law, or remedial of fome defects therein. Declaratory, where the old custom of the kingdom is almost fallen into difufe, or become difputable; in which cafe the parliament has thought proper, in perpetuum rei teftimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the ftatute of treasons, 25 Edw. III. cap. 2. doth not make any new species of treafons; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treafon at the common law. Remedial ftatutes are thofe which are made to fupply fuch defects, and abridge fuch fuperfluities, in the common law, as arife either from the general imperfection of all human laws, from change of time and circumftances, from the mistakes and unadvifed determinations of unlearned (or even learned) judges,

d Gravin. Orig. 1. §. 24.