« VorigeDoorgaan »
scriptae, or customary laws; or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the leges scriptae, or statute law. This is expressly declared in those remarkable words of the satute 25 Hen. VIII. c. 21. addressed to the king's royal majesty. "This your grace's realm, recognising no superior under God "but only your grace, hath been and is free from subjection to ❝ any man's laws, but only to such as have been devised, made, ❝ and ordained within this realm for the wealth of the same; ❝or to such other as, by sufferance of your grace and your "progenitors, the people of this your realm have taken at their "free liberty, by their own consent, to be used among them; "and have bound themselves by long use and custom to the "observance of the same: not as to the observance of the laws "of any foreign prince, potentate, or prelate; but as to the "customed and ancient laws of this realm, originally established "as laws of the same, by the said sufferance, consents, and "custom; and none otherwise."
By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprised in the institutes, the code, and the digest of the emperor Justinian, and the novel constitutions of himself and some of his successors. Of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account.
THE Roman law (founded first upon the regal constitutions of their ancient kings, next upon the twelve tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the prætor, and the responsa prudentum, or opinions
of learned lawyers, and lastly upon the imperial decrees,  or constitutions of successive emperors) had grown
to so great a bulk, or, as Livy expresses itt, « tam im"mensus aliarum super alias acervatarum legum cumulus," that they were computed to be many camels' load by an author who preceded Justinian". This was in part remedied by the
t l. 3. c. 34.
u Taylor's elements of civil law, 17.
collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius 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 Theodosian 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 some regard, in framing legal constitutions for their newly erected kingdoms. For Justinian commanded only in the eastern remains of the empire; and it was under his auspices, that the present body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533.
THIS Consists of, 1. The institutes, which contain the elements or first principles of the Roman law, in four books. 2. The digests, 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 Theodosius, imperfect. 4. The novels or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Justinian; which however fell soon into neglect and oblivion, till about the year 1130, when a copy of the digests was found at Amalfi in Italy: which accident, concurring with the policy of the Roman ecclesiastics, suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with  which this system of law, more than any other, is now loaded (14).
w See sec. 1. page 18.
(14) See a full, lucid, and elegant account of the civil law in Giannone's History of Naples, in lib. 3. c. 3, which he thus con
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 jurisdiction over. This is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulles of the holy see. 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 Justinian's pandects, reduced the ecclesiastical constitutions also into some method, in three books; which he entitled concordia discor. dantium canonum, but which are generally known by the name of decretum Gratiani. These 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 same method under the auspices of that pope, about the year 1230, in five books; entitled decretalia Gregorii noni. A sixth 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 successor John XXII; who also published twenty constitutions of his own, called the extravagantes Joannis: all which in some measure answer to the novels of the civil law. To these have been since added some 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 constitutions, and the extravagants of
cludes: "Evedi in tanto le strane vicende delle mondane cose: questa grand' opera di Giustiniano con tanta cura, e studio compilata, che per tutti i secoli avrebbe dovuto correre gloriosa, e immortale, appena mancato il suo Autore, che restò anch'ella per lo spazio di cinque secoli sepolta in tenebre densissime, ed in una profonda obli"vione; risorta poi in Occidente à tempi di Lottario, fu così avventu"rosa, che alzò i vanni, e la fama sopra tutte l' altre Provincie del "Mondo, nè trovò Nazione alcuna culta, o barbara che fosse, che in "somma stima, e venerazione non l'avesse, e che non la preferisse "alle medesime loro proprie leggi, e costumi.”
John and his successors, 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, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church and kingdom. The legatine constitutions were  ecclesiastical laws, enacted in national synods, 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 constitutions are principally the decrees of provincial synods, 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 parliamenty that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals 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 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 solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity; whatever regard the clergy may think proper to pay them (14).
x Burn's eccl. law, pref. viii.
y Statute 25 Hen. VIII, c. 19; revived
and confirmed by 1 Eliz. c. 1.
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 are bound
THERE are four species 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, usually called in our law courts christian, curiae christianitatis, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom; corroborated in the latter
instance by act of parliament, ratifying those charters  which confirm the customary law of the universities.
The more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning thema.
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 restrain and prohibit such excess, and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.
2. THE Common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts, or the matters depending before them. And
a Hale Hist. c. 2.
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 dispensation to hold two livings distant from each other more than thirty miles, no advantage can be taken of it by lapse 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.