collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodofius the younger, by whofe orders a code was compiled, A. D. 438, being a methodical collection of all the imperial constitutions then in force which Theodofian code was the only book of civil law received as authentic in the western part of Europe, till many centuries after; and to this it is probable that the Franks and Goths might frequently pay fome regard, in framing legal conftitutions for their newly erected kingdoms. For Juftinian commanded only in the eastern remains of the empire; and it was under his aufpices, that the present body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533.

THIS confifts of, 1. The inftitutes, which contain the elements or first principles of the Roman law, in four books. 2. The digefts, or pandects, in fifty books, containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions, in twelve books; the lapse of a whole century having rendered the former code, of Theodofius, imperfect. 4. The novels or new constitutions, pofterior in time to the other books, and amounting to a supplement to the code ; containing new decrees of fucceffive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Juftinian; which however fell foon into neglect and oblivion, till about the year 1130, when a copy of the digefts was found at Amalfi in Italy: which accident, concurring with the policy of the Roman ecclefiaftics", fuddenly gave new vogue and authority to the civil law, introduced it into feveral nations, and occafioned that mighty inundation of voluminous comments, [82] with which this fyftem of law, more than any other, is now loaded. (14)

w See § 1. page 18.

(14) See a full, lucid, and elegant account of the civil law in Giannone's Hiftory of Naples, in lib. 3. c. 3. which he thus concludes:

VOL. I.

H

"E vedi

THE canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has or pretends to have, the proper jurifdiction over. This is compiled from the opinions of the antient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy fee. All which lay in the same disorder and confusion as the Roman civil law: till about the year 1151, one Gratian, an Italian monk, animated by the discovery of Juftinian's pandects, reduced the ecclefiaftical conftitutions also 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 published in much the same method, under the aufpices 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 fextus decretalium. The Clementine conftitutions, or decrees of Clement V., were in like manner authenticated in 1317 by his fucceffor John XXII.; who also published twenty conftitutions of his own, called the extravagantes Joannis: all which in fome measure answer to the novels of the civil law. To these have been fince added fome 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 conftitutions, and the extravagants of

"E vedi in tanto le ftrane vicende delle mondane cofe : quefta grand' opera di Giuftiniano con tanta cura, e studio compilata, che per tutti i fecoli avrebbe dovuto correre gloriofa, e immortale, appena mancato il fuo Autore, che restò anch'ella "per lo fpazio di cinque fecoli fepolta in tenebre denfiffime, ed in una profonda oblivione; riforta poi in Occidente à tempi di "Lottario, fu così avventurofa, che alzò i vanni e la fama sopra "tutte l'altre Provincie del Mondo, nè trovò Nazione alcuna "culta, o barbara che foffe, che in fomma ftima, e venerazione non l'aveffe, e che non la preferiffe alle medefime loro proprie leggi, e costumi.”

60

John

John and his fucceffors, form the corpus juris canonici, or body of the Roman canon law.

BESIDES thefe 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 canon law, composed of legatine and provincial conftitutions, and adapted only to the exigencies of this church and kingdom. The legatine conftitutions were ecclefiaftical [ 83 ] laws, enacted in national 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 parliamenty that a review should be had of the canon law; and, till fuch review fhould be made, all canons, constitutions, 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 fuch 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 constitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity"; whatever regard the clergy may think proper to pay them. (15)

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

▾ Statute 25 Hen. VIII. c. 19.; revived

and confirmed by 1 Eliz. c. 1.

* Stra. 1957.

(15) Lord Hardwicke cites the opinion of Lord Holt, and declares it is not denied by any one, that it is very plain all the clergy

[ 84 ]

THERE are four fpecies 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, 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 cuftom; corroborated in the latter inftance by act of parliament, ratifying those charters which confirm the customary law of the universities. 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 present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them."

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 reftrain and prohibit such excess, and (in case of contumacy) to punish the officer who executes, and in some case the judge who enforces, the sentence fo declared to be illegal.

2. THE Common law has reserved to itself the expofition of all fuch acts of parliament as concern either the extent of these courts, or the matters depending before them. And

a Hale Hift. c. 2.

are bound by the canons confirmed by the king only, but they must be confirmed by the parliament to bind the laity. (2 Atk. 605.) Hence it has been decided, that if the Archbishop of Canterbury grants a difpenfation to hold two livings distant from each other more than thirty miles, no advantage can be taken of it by lapfe or otherwise in the temporal courts, for the restriction to thirty miles was introduced by a canon made since the 25 Henry VIII. 2 Bl. Rep. 968.

therefore,

therefore, if these courts either refuse to allow thefe 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.

3. AN appeal lies from all thefe courts to the king, in the laft refort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinfic 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 custom in fome courts, are only subordinate, 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 species of laws, but are inferior branches of the customary 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 us next proceed to the leges fcriptae, the written laws [85] of the kingdom; which are ftatutes, acts, or edicts, made by the king's majesty, by and with the advice and confent of the lords spiritual and temporal, and commons, in parliament affembled. The oldest of these now extant, and printed in our ftatute-books, is the famous magna charta, as confirmed in parliament 9 Hen. 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 these statutes will be better confidered hereafter, when we examine the constitution of parliaments. At prefent we will only take notice of the different