ftitutions of fucceffive emperors) had grown to fo great a bulk, or, as Livy expreffes it ', " tam immenfus aliarum fuper al as acer“vatarum legum cumulus," that they were computed to be many camels' load by an author who preceded Juftinian". This was in part remedied by the collections of three private lawyers, Gre gorius, Hermogenes, and Papirius; and then by the emperor Theodofius the younger, by whofe orders a code was compiled, 2. D. 38, being a methodical collection of all the imperial contitutions then in force: which Theodofian code was the only bɔɔk 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 ele ments 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 fyftematical method. 3. A new code, or collection of imperial conftitutions; 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 o the code; containing new decrees of fucceffive emperors, as new queftions happened to arife. These 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 Romish ecclefiaftics", fuddenly gave new vogue and authority to the civil law, introduced it into feveral nations, and occafioned that L mighty

t l. 3. 6. 34.

n Taylor's elements of civil law. 17.

w See §. 1. pag. 18.

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 jurisdiction over. This is compiled from the opinions of the antient Latin fathers, the decrees of general councils, 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 discovery 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. Thefe 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 fame 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 anfwer 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 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.

BELIDES these pontifical collections, which during the times of popery were received as authentic in this ifland, as well as in other parts of chriftendom, there is also 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 constitutions were ecclefiaftical laws, enacted in national fynods,

held

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 arch-bifhops 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' that a review fhould be had of the canon law; and, till fuch review fhould 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 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 conftitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity2; whatever regard the clergy may think proper to pay them.

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 arch-bifhops 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 cuftomary law of the univerfitics.

< Eurn's eccl. law, pref. vin.

Stoute as few Vilt c. 19:

L2

The

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',

I. AND, first, the courts of common law have the fuperintendancy over thefe courts; to keep them within their jurifdictions, to determine wherein they exceed them, to reftrain and prohibit fuch excefs, 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 referved 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 therefore if these courts either refufe 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 reftrain and control them.

3. AN appeal lies from all thefe courts to the king, in the last refort; which proves that the jurifdiction 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 some cafes by custom 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 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.

a Hala Hift. c. z.

LET

LET us next proceed to the leges feriptae, 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 oldest of theic now extant, and printed in our statute books, is the famous magna carta, as confirmed in parliament 9 Hen. III. though doubtless there were many acts before that time, the records of which are now loft, and the determinations of them perhaps at prefent 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 conftitution of parliaments. At present we will only take notice of the different kinds of ftatutes and of fome general rules with regard to their conftruction".

FIRST, as to their feveral kinds.

Statutes are either general

or fpecial, public or private. A general or public act is an uni

verfal

b. 8 Rep 29.

rior fcctions alfo in imitation of all which c The method of citing thefe acts of we still call fome of our old flatutes by their parliament is various. Many of our antient initial words, as the ftatute of quia emptores. ftatutes are called after the name of the and that of circumfpete agatis. But the most place, where the parliament was held that ufual method of citing them, efpecially made them; as the ftatutes of Merton and fince the time of Edward the fecond, is by Marieberge, Westminster, Gloucester, and naming the year of the king's reign in Winchester. Others are denominated en- which the ftatute was made, together with tirely from their subject; as the ftatutes of the chapter, or particular act, according to Wales and Ireland, the articuli cleri, and its numeral order; as, 9 Gcv. II. c. 4. the praerogativa regis. Some are diftin- For all the acts of one feffion of parliament guished by their initial words, a method of taken together make properly but one staciting very antient: being nfed by the Jews tute: and therefore, when two feffions have in denominating the books of the penta- been held in one year, we ufually mention teuch; by the chriftian church in diftin- ftat. 1. or 1. Thus the bill of rights is ciguishing their hymns and divine offices; by ted, as 1 W. and M. ft. 2. c. 2. fignifying the Romanifts in defcribing their papal that it is the fecond chapter or act, of the bulles; and in thort by the whole body of fecond statute or the laws made in the feantient civilians and canonifts, among whom cond feftons of parliament, held in the first this method of citation generally prevailed, year of king William and queen Mary. not only with regard to chapters, but infe