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 [*81] lastly upon the imperial decrees, or constitutions of successive em perors,) had grown to so great a bulk, or, as Livy expresses it (u), "tam immensus aliarum super alias acervatarum legum cumulus," that they were computed to be many camels' load by an author who preceded Justinian (v). 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 Justinían 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 (w), suddenly gave new vogue and authority to the civil law, introduced it into several na[*82] tions, and *occasioned that 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 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 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. sixth book was added by Boniface VIII. about the year 1298, which is (u) 1. 3, c. 34. (v) Taylor's Elements of Civil Law, 17. (w) See 1, page 18. A 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. 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 natural canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church and kingdom. The legatine constitutions were eccle- [*83] siastical 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 (x) in the reign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII., it was enacted in parliament (y) 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 (z), whatever regard the clergy may think proper to pay them (19). 2. 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, curiæ Christianitatis, or the ecclesiastical courts. 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 [*84] charters which confirm the customary law of the universities. The more minute consideration of these will fall properly under that part (z) Burn's Eccl. Law, pref. viii. (y) Statute 25 Hen. VIII. c. 19, revived and con (19) 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 by the canons confirmed by the king only, but they must be confirmed by the parhament to bind the laity. (2 Atk. 605.) Hence, if the archbishop of Canterbury grants a dis firmed by 1 Eliz. c. 1. pensation 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 Hen. VIII. 2 Bl. Rep. 968.-CH. 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 them (a). 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 (20). 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 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 resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own.-And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate, and leges sub 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 ecclesiastical, the king's military, the king's maritime, or the king's academical laws. [*85] *Let us next proceed to the leges scripte, 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 charta, 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 considered 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 (c). (a) Hale, Hist. c. 2. (b) 8 Rep. 20. (c) The method of citing these acts of parliament is various. Many of our ancient statutes are called after the name of the place where the parliament was held that made them; as the statutes of Merton and Marleberge, of Westminster, Gloucester, and Winchester. Others are denominated entirely from their subject, as the statutes of Wales and Ireland, the articuli cleri, and the prærogativa regis. (20) See 2 Stra. 1067. 1 Dowl. and R. 460. 1 Bar. and C. 655. An action on the case may be maintained against a judge of the ecclesiastical court who excommunicates a party for refusing to obey an order which the court has Some are distinguished by their initial words, a method of citing very ancient, being used by the Jews in denominating the books of the Pentateuch; by the Christian church in distinguishing their hymns and divine offices; by the Romanists in describing their papal bulles: and, in short, by the whole body of ancient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also; in imitation of all which we no authority to make; or where the party has not been previously served with a citation or monition, nor had due notice of the order. 3 Campb. Rep. 388. 16 Ves. Jun. 346. 2 Inst. 623. 3 Bl. Com. 101. First, as to their several kinds. Statutes are either general or special, public or private. A general or public act is an "universal [*86] rule, that regards the whole community; and of this 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 entitled senatus-decreta, in contradistinction to the senatus consulta, which regarded the whole community (d); and of these (which are not promulgated with the same notoriety as the former,) 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 spiritual persons in the nation: but an act to enable the bishop of Chester to make a lease to A. B. for sixty years is an exception to this rule; it concerns only the parties and the bishop's successors; and is therefore a private act (21). Statutes also are either declaratory of the common law, or remedial of some defects therein (22). Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case still call some 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 its numeral order, as 9 Geo. II. c. 4. for all the acts of one session of parliament taken together make (21) See other cases upon the distinction between public and private acts, Bac. Ab statute F. The distinction between public and private acts is marked with admirable precision by Mr. Abbot (the present lord Colchester), in the following note, in the printed report from the committee for the promulgation of the statutes :-PUBLIC AND PRIVATE ACTS. -IN LEGAL LANGUAGE, 1. Acts are deemed to be public and general acts which the judges will take notice of without pleading, viz. acts concerning the king, the queen, and the prince; those concerning all prelates, nobles, and great officers; those concerning the whole spirituality, and those which concern all officers in general, such as all sheriffs, &c. Acts concerning trade in general, or any specific trade; acts concerning all persons generally, though it be a special or particular thing, such as a statute concerning assizes, or woods in forests, chases, &c. &c. Com. Dig. tit. Parliament. (R. 6.) Bac. Ab statute F. 2. Private acts are those which concern only a particular species, thing, or person, of which the judges will not take notice without pleading of them, viz. acts relating to the bishops only; acts for toleration of dissenters; acts relating to any particular place, or to divers particular towns, or to one or divers particular counties, or to the colleges only in the universities. Com. Dig. tit. Parliament. (R. 7.) 3. In a general act there may be a private clause, ibid. and a private act, if recognized by a pub properly but one statute; and therefore, when lic act, must afterwards be noticed by the courts as such. 2 Term Rep. 569. 2. ÎN PARLIA MENTARY LANGUAGE, 1. The distinction between public and private bills stands upon different grounds as to fees. All bills whatever from which private persons, corporations, &c. derive benefit, are subject to the payment of fees, and such bills are in this respect denomi nated private bills. Instances of bills within this description, are enumerated in the second volume of Mr. Hatsel's Precedents of Proceedings in the House of Commons, edit. 1796, p, 267, &c. 2. In parliamentary language, another sort of distinction is also used; and some acts are called public general acts, others public local acts, viz. church acts, canal acts, &c. To this class may also be added some acts, which though public are merely personal, viz. acts of attainder, and patent acts, &c. Others are called private acts, of which latter class some are local, viz. enclosure acts, &c. and some personal, viz. such as relate to names, estates, divorces, &c. In many statutes which would otherwise have been private, there are clauses by which they are declared to be public statutes. Ab statutes F. Bac. (22) This division is generally expressed by declaratory statutes, and statutes introductory of a new law. Remedial statutes are generally mentioned in contradistinction to penal statutes. See note 19, p. 88.-Cн. the parliament has thought proper, in perpetuum rei testimonium, 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 subject, declares and enumerates those several kinds of offence which before were treason at the common law (23). Remedial statutes are those which are made to supply 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 (or even learned) 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 re[*87] straining it *where it was too lax and luxuriant, hath occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason: clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law; therefore it was thought expedient, by statute 5 Eliz. c. 11, to make it high treason, which it was not at the common law so that this was an enlarging statute (24). At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. before mentioned: this was, therefore, a restraining statute (25). Secondly, the rules to be observed with regard to the construction of statutes are principally these which follow (26): : 1. There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy (e). Let us instance again in the same restraining statute of 13 Eliz. c. 10: By the common law, ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors; (e) 3 Rep. 7. Co. Litt. 11. 42. (23) So the statute 46 Geo. III. c. 37. declares, that a witness cannot by law refuse to answer a question relevant to the matter in issue, the answering which has no tendency to accuse himself, or expose him to penalty or forfeiture, though his answer may subject him to a civil action. This statute does not profess to introduce a new law, but only declares what is the existing law, in consequence of the contrariety of opinions delivered by the judges. So also 2 R. S. 405, 71. (24) This statute against clipping the coin hardly corresponds with the general notion either of a remedial or an enlarging statute. In ordinary legal language remedial statutes are contradistinguished to penal statutes. An enlarging or an enabling statute is one which increases, not restrains, the power of action, as the 32 Hen. VIII. c. 28, which gave bishops and all other sole ecclesiastical corporations, except parsons and vicars, a power of making leases, which they did not possess before, is always called an enabling statute. The 13 Eliz. c. 10, which afterwards limited that power, is, on the contrary, styled a restraining or disabling statute. See this fully explained by the learned commentator, 2 Book, p. 319.-CH. (25) In legal language a remedial statute has a further signification, viz. a statute giving a party a mode of remedy for a wrong where he had none or a different one before. (26) Where there are conflicting decisions upon the construction of a statute, the court must refer to that which ought to be the source of all such decisions, that is, the words of the statute itself, per lord Ellenborough. 16 East, 122. The power of construing a statute is in the judges of the temporal courts, who, in cases of doubtful construction, are to mould them according to reason and convenience, to the best use. Hob. 346. Plowd. 109. 3 Co. 7. 7 |