submit to the king's prerogative. (10) Therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone. And thus much for the second part of the leges non scriptae, or those particular customs which affect particular persons or districts only.

III. THE third branch of them are those peculiar laws which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws.

IT may seem a little improper at first view to rank these laws under the head of leges non scriptae, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. But. I do this, after the example of sir 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

(10) This sentence is so worded, that it might lead to the erroneous notion of the king's being able by his prerogative to controul the enjoyment of the special customs, to which any of his subjects may have a legal right. In the sense in which the position is true, it is equally true of the general customs or law of the land. It would have been better to treat this as part of a separate law, the jus coronæ, and as applicable to property in the crown; the sum of it is, that wherever either a general or a special custom of descents would operate so as to sever lands before held by the king, jure coronæ from the person of the new king, there that custom cannot prevail, “for the crowne, and the lands, whereof the king is seised in jure corona, are concomitantia." Thus, if the king dies, leaving two sons by different wives, and the elder having succeeded, and having been seised of lands in fee, dies without issue, the younger will, with the crown, inherit these lands, though of the half-blood to the person last seised. So if the king dies, leaving two daughters, the eldest will, with the crown, take all the lands whereof he was seised in jure coronæ alone, and not as coparcener with her sister. These are two instances where the general custom as regards subjects, will not prevail against the jus corona. See Co.

Litt. 15.-6.

obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority; which is the case 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 digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here: for the legislature of England doth not, nor ever did, recognize any foreign power as superior or equal to it in this kingdom; or as having the right to give law to any, the meanest of its subjects. But all the strength 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 usage and custom in some particular cases, and some particular courts; and then they form a branch of the leges non 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 statute 25 Hen. VIII. c.21. addressed to the king's royal majesty.

"This your grace's realm, recognizing no superior under "God but only your grace, hath been and is free from sub"jection 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, poten"tate, or prelate; but as to the customed and antient 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 comprized 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

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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 antient 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 it', "immensus "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 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, [82] with which this system of law, more than any other, is now loaded.

man

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 bulls of the holy see. All which lay in the same disorder and confusion as the Rocivil 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 discordantium 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 John and his successors, form the corpus juris canonici, or body of the Roman canon law.

w See § 1. page 18.

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 [83] 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 parliament 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. (11)

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

y Statute 25 Hen. VIII. c.19.; revived and confirmed by 1 Eliz. c.1.

(11) It is questionable whether this is correctly laid down. The 25 H.8. c. 19. s. 2. and 7th., which are the clauses referred to by the author, appear to relate only to such canons, constitutions, and ordinances as had theretofore been made by the clergy of this realm. The second empowered the king to appoint thirty-two commissioners, to view, search, and examine, the said canons, &c.; and the seventh provides that such canons, constitutions, ordinances, and synodals provincial, which be not contrariant, &c. to the laws, &c. of this realm, nor to the damage, &c. of the king's prerogative royal, shall now be still used, &c. as they were afore the making of this act, till such time as they be viewed, &c. by the said thirty-two persons. The word such in this clause, is equivalent only to said, for the canons referred to are to be used only till the review made by the commissioners, which review was only to extend to the canons made by the English clergy. It should seem, then, that this statute did not provide even for the temporary use of the Roman ecclesiastical law; but the 35 Hen. 8. c. 16. did, for in a similar clause to the one just cited, it men

tions