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 a 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.

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, curia 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 them.

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 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 kings, court at Westminster will grant prohibitions to restrain and controul 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.

Let us next proceed to the leges scriptæ, 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. The oldest of these now extant, and printed in our statute books, is the famous Magna Charta, as confirmed in parliament 9 Henry 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.

Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon a general principle of universal law; that "leges posteriores priores contrarias abrogant:" consonant to which it was laid down by a law of the twelve tables at Rome, that "quod populus postremum jussit, id jus ratum esto."

These are the several grounds of the laws of England; over and above which, EQUITY is also frequently called in to assist, to moderate, and to explain them.

Besides the liberality of sentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind, there are also peculiar courts of equity established for the benefit of the subject; to detect latent frauds and concealments, which

the process of the courts of law is not adapted to reach to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognisable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business of our courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.

QUESTIONS.

What are the two kinds into which the municipal law of England is divided?

What does the lex non scripta include ?

Where are the evidences and monuments of our legal customs to be looked for?

What is the force and reason of the expression" leges non scriptæ ?"

What does Lord Bacon say about the mixed character of our laws?

Did Alfred do anything towards collecting together the customs and laws of the country? What did he do?

What caused the code of Alfred to fall into disuse?

What were the three systems of law prevailing in this country about the beginning of the eleventh century?

What was the Mercen lage?—The West Saxon lage?—The Dane lage?

Who reduced them into one uniform code or digest of laws? To whom are the titles "Legum Anglicanarum conditor" an “Legum Anglicanarum restitutor" applied, and why?

What is the origin of the COMMON LAW?

On what does the validity of a custom depend?

How many kinds are there of the lex non scripta, or common law?

Explain what is a general custom, and a particular custom?

Who ascertains and decides upon the validity of these customs and maxims?

How are judicial decisions preserved ?

What are precedents?

What is the doctrine of the law concerning the following precedents?

What are Records? What are "Reports?"

Who was Coke? What is the character of his legal writings? How are particular customs prepetuated, and why?

What is the third branch of the leges non scriptæ ?

How do the civil and canon law form a part of the leges non scriptæ?

What is the civil law? What was its origin?

What did Livy say concerning its bulk?

What was the Theodosian code, and when was it drawn up, and where was it in force?

When was the present body of civil law compiled, and by whose order?

What are the "Institutes?" The "Digests, or Pandects?" The "New code?" The "Novels?"

What became of the code of Justinian?

When, and where, and under what circumstances did the civil law suddenly revive?

What is the canon law?

On what does the authority of the canon law depend?

In what courts are the civil and canon laws permitted to be used in England.

How do the great common law courts controul the courts where the civil and canon law is used?

What is the lex scripta, and what does it include?

What is the oldest statute extant?

If a statute differs from the common law, which prevails, and on what principle?

What are the functions and duties of courts of equity?

ON THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.

THE kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.

Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Cæsar and Tacitus ascribe to Britain in general, for many centuries: even from the time of the hostile invasions of the Saxons, when the ancient and christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were over-run by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length, in the reign of Edward the First, who may justly be styled the conqueror of Wales, the line of their ancient princes, was abolished, and the king of England's eldest son became as a matter of course, their titular prince; the territory of Wales being then entirely re-annexed, by a kind of feodal resumption, to the dominion of the crown of England; or, as the statute of Rhudlan expresses it, "terra