fubmit to the king's prerogative. Therefore, if the king purchafes lands of the nature of gavelkind, where all the fons inherit equally; yet, upon the king's demife, his eldest fon fhall fucceed to thofe lands alone". And thus much for the fecond part of the leges non fcriptae, or those particular customs which affect particular perfons or districts only.

III. THE third branch of them are thofe peculiar laws, which by cuftom are adopted and used only in certain peculiar courts and jurifdictions. And by these I understand the civil and canon laws.

It may feem a little improper at first view to rank thefe laws ander the head of leges non fcriptae, or unwritten laws, feeing they are fet forth by authority in their pandects, their codes, and their inftitutions; their councils, decrees, and decretals; and enforced by an immense number of expofitions, decifions, and treatises of the learned in both branches of the law. But I do this, after the example of fir Matthew Hale, because it is most plain, that it is not on account of their being written laws, that either the canon law, or the civil law, have any obligation within this kingdom: neither do their force. and efficacy depend upon their own intrinfic authority; which is the cafe of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors; were digefted by Juftinian, or declared to be authentic by Gregory. These confiderations give them no authority here: for the legiflature of England doth not, nor ever did, recognize any foreign power, as fuperior or equal to it in this kingdom; or as having the right to give law to any, the meaneft, of it's fubjects. But all the ftrength that either the papal or imperial laws have obtained [80] in this realm (or indeed in any other kingdom in Europe) is only because they have been admitted and received by immemorial ufage and cuftom in fome particular cafes, and fome particular courts; and then they form a branch of the leges non fcriptae, or customary laws; or elfe, because they are in some other cafes introduced by confent of parliament, and

I Co. Litt. 15.

HA. C. L. c. 2.

then

then they owe their validity to the leges fcriptae, or statute law. This is exprefsly declared in those remarkable words of the statute 25 Hen. VIII. c. 21. addressed to the king's royal majefty." This your grace's realm, recognizing no fu"perior under God but only your grace, hath been and is

free from fubjection to any man's laws, but only to fuch ❝as have been devised, made, and ordained within this realm "for the wealth of the fame; or to fuch other as, by suffer"ance of your grace and your progenitors, the people of this "your realm have taken at their free liberty, by their own "confent, to be ufed among them; and have bound them

felves by long ufe and cuftom to the obfervance of the "fame: not as to the obfervance of the laws of any foreign "prince, potentate, or prelate; but as to the customed and "antient laws of this realm, originally eftablithed as laws of "the fame, by the faid fufferance, confents, and custom; and 66 none otherwife.”

By the civil law, abfolutely taken, is generally understood the civil or municipal law of the Roman empire, as com prized in the inflitutes, the code, and the digeft of the emperor 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 fhort and general account.

THE Roman law (founded first upon the regal conftitutions 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 refponfa 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 immenfus 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

66

€ 1.3.6.34.

u Taylor's elements of civil law, 17.

collections

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 conftitutions 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, digested in a sys‐ tematical 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 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.

THE Canon law is a body of Roman ecclefiaftical law, relative to fuch matters as that church either has, or pretends to

See § 1. page 18.

[83]

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 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. Thefe 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 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 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 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 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.

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 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 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

13

bishops 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 ftill be ufed 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 confli tution, 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 to pay them (14).

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

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

Statute 25 Hen. VIII, c. 19; revived

and confirmed by 1 Eliz. c. 1.

z Stra. 1057.

(14) Lord Hardwicke cites the opinion of Iprd Holt, and de clares it is not denied by any one, that it is very plain all the clergy are bound by the canons confirmed by the king only, but they muft be confirmed by the parliament to bind the laity. (2 Atk. 605.) Hence 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 lapfe or otherwife in the temporal courts, for the restriction to thirty miles was introduced by a canon made fince the 25 Hen. VIII. 2 Bl. Rep. 968. VOL. I.

H

courts,