then they owe their validity to the leges fcriptae, or statute fo By the civil law, abfolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprized in the inftitutes, the code, and the digeft of the empe ror Juftinian, and the novel conftitutions of himself and some of his fucceffors. Of which, as there will frequently be occafion to cite them, by way of illuftrating our own laws, it may not be amifs to give a short and general account. THE Roman law (founded firft upon the regal conftitu tions of their antient kings, next upon the twelve tables of the decemviri, then upon the laws or ftatutes enacted by the fenate or people, the edicts of the prætor, and the responsa prudentum, or opinions of learned lawyers, and laftly upon the [81] imperial decrees, or conftitutions of fucceffive emperors) had grown to fo great a bulk, or, as Livy expreffes it', "tam im"menfus aliarum fuper alias acervatarum legum cumulus," that they were computed to be many camels' load by an author who preceded Juftinian ". This was in part remedied by the Taylor's elements of civil law, 17. 4. 3. 4. 34. collections collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodofius the younger, by whose 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 prefent 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, digefted in a systematical method. 3. A new code, or collection of imperial conftitutions, in twelve books; the lapfe of a whole century having rendered the former code, of Theodofius, imperfect. 4. The novels or new conftitutions, pofterior in time to the other books, and amounting to a fupplement to the code; containing new decrees of fucceffive emperors, as new questions happened to arife. Thefe form the body of Roman law, or corpus juris civilis, as published about the time of Justinian; 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 thas concludes: VOL. I. H « E vedi 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 opinions of the antient Latin fathers, the decrees of general councils, and the decretal epiftles and bulles of the holy fee. All which lay in the fame 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 aufpices of that pope, about the year 1230, in five books; entitled decretalia Gregori noni. A fixth book was added by Boniface VIII., about the year 1 298, 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 alfo published twenty conftitutions of his own, called the extravagantes Joannis: all which in fome 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 these together, Gratian's decree, Gregory's decretais, the fixth decretal, the Clementine conftitutions, and the extravagants of "E vedi in tanto le ftrane vicende delle mondane cofe: "quefta grand' opera di Giustiniano con tanta cura, e studio com"pilata, che per tuttii fecoli avrebbe dovuto correre gloriofa, e immortale, appena mancato il fuo Autore, che reftò anch'ella "per lo spazio 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 fopra "tutte 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 coftumi." 44 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 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 [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 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 was enacted in parliament 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 ftill be used and executed. And, as no fuch 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 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 antient canon law, but are introductory of new regulations, they do not bind the laity 2; whatever regard the clergy may think proper to pay them (14). * Burn's eccl. law, pref. viii. Statute 25 Hen. VIII. c. 19.; revived and confirmed by 1 Eliz. c. r. z Stra. 1057. (14) 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 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 deri vative 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 custom; corroborated in the latter inftance by act of parlia[84]ment, ratifying those charters which confirm the customary law of the universities. The more minute confideration of thefe will fall properly under that part of thefe commentaries which treats of the jurifdiction 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". 1. AND, first, the courts of common law have the fuperintendency over thefe courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit fuch excess, and (in cafe of contumacy) to punish the officer who executes, and in fome cafes the judge who enforces, the fentence 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 thefe courts, or the matters depending before them. And 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 diftant from each other more than thirty miles, no advantage can be taken of it by lapse or otherwife in the temporal courts, for the reftriction to thirty miles was introduced by a canon made fince the 25 Henry VIII. 2 Bl. Rep. 968. therefore, |