mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded. THE canon law is a body of Roman ecclesiastical 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, the decretal epistles and bulles of the holy fee. All which lay in the same 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 at Amalfi, reduced them 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 subsequent papal decrees, to the pontificate of Gregory IX, were published in much the same 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 constitutions, or decrees of Clement V, were in like manner authenticated in 1317 by his fucceffor John XXII; who also published twenty constitutions of his own, called the extravagantes Joannis: all which in some measure anfwer to the novels of the civil law. To these have been fince added some 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 successors, form the corpus juris canonici, or body of the Roman canon law. BESIDES these pontificial collections, which during the times of popery were received as authentic in this ifland, 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 ecclefiaftical laws, enacted in national fynods, held under the cardinals Otho and Othobon, legates from pope Gregory IX and pope Adrian IV, in the reign of king Henry III about the years 1220 and 1268. The provincial constitutions are principally the decrees of provincial fynods, held under divers arch-bishops 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 fuch 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. held * Burn's eccl. law, pref. viii. 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 constitution, 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 them. 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 arch-bishops and bishops and their derivative officers, usually called in our law courts christian, curiae christianitatis, 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 intirely 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 confideration of these will fall properly under that part of these commentaries which treats of the jurifdiction 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 a. Statute 25 Hen. VIII. c. 19; revived and confirmed by 1 Eliz. c. 1. * Stra. 1057. 1. AND, first, the courts of common law have the fuperintendency over these courts; to keep them within their jurifdictions, to determine wherein they exceed them, to restrain and prohibit fuch excess, and (in case of contumacy) to punish the officer who executes, and in some cafes the judge who enforces, the fentence so declared to be illegal. 2. THE common law has referved to itself the expofition of all such acts of parliament, as concern either the extent of these courts or the matters depending before them. And therefore if these courts either refuse 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 restrain and control them. 3. An appeal lies from all these 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 strong marks and ensigns of fuperiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only fubordinate and leges fub graviori lege; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species 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. Hale Hift. c. 2. LET LET us next proceed to the leges fcriptae, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king's majesty by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled b. The oldest of these 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 lost, and the determinations of them perhaps at present 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 constitution of parliaments. At present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction . FIRST, as to their several kinds. Statutes are either general or fpecial, public or private. A general or public act is an univerfal rule, that regards the whole community; and of these the courts of law are bound to take notice judicially and ex officio; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns; such as the Romans intitled fenatus-decreta, in contradistinction to the fenatus-confulta, which regarded the whole community: and of these the judges are not bound to take notice, unless they be formally shewn and pleaded. Thus, to shew the distinction, the statute 13 Eliz. c. 10. to prevent spiritual persons from making leases for longer terms than twenty one years, or three lives, is a public act; it being a rule prescribed to the whole body of fpiritual persons in the nation: but an act to enable the bishop of Chefter to make a lease to A. B. for fixty years, is an exception to this rule; it concerns only the parties and the bishop's fuccessors; and is therefore a private act. b 8 Rep. 20. The method of citing these acts of parliament is various. Many of our antient statutes are called after the name of the place, where the parliament was held that made them: as the statutes of Merton and Marlbridge, of Westminster, Glocester, and Winchester. Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the articuli cleri, and the praerogativa regis. Some are diftin. guished by their initial words, a method of citing very antient; being used by the Jews in denominating the books of the pentateuch; by the chriftian church in diftinguishing their hynins and divine offices; by the Romanists in defcribing their papal bulles; and in thort by the whole body of antient civilians and canonifts, among whom this method of citation generally prevailed, not only with regard to chapters, but infe rior sections also: in imitation of all which we still call fome of our old statutes by their initial words, as the statute of quia emptores, and that of circumspecte agatis. But the most usual method of citing them, especially since the time of Edward the second, is by naming the year of the king's reign in which the statute was made, together with the chapter, or particular act, according to it's numeral order; as, 9 Geo. II. c. 4. For all the acts of ore session of parliament taken together make properly but one ftatute; and therefore when two sessions have been held in one year, we usually mention ftat. 1. or 2. Thus the bill of rights is cited, as 1 W & M. ft. 2. c. 2. fignifying that it is the second chapter or act, of the second statute or the laws made in the second fessions of parliament, held in the first year of king William and queen Mary. verfal STATUTES also are either declaratory of the common law, or remedial of fome defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which cafe the parliament has thought proper, in perpetuum rei teftimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2. doth not make any new species of treasons; but only, for the benefit of the fubiect, declares and enumerates those several kinds of offence, which before were treason at the common law. Remedial statutes are those which are made to fupply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. And, this being done either by enlarging the common law where it was too narrow and circumscribed, or by red Gravin. Orig. 1. §. 24. straining |