[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 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 (q) 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 (r) in the reign of Henry VI. At the dawn of the reformation, in the reign of King Henry VIII., it was enacted in parliament (s) 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,

:

(4) On this subject Lyndwode's Provinciale is the chief work of authority see the account of it in Reeves' Hist. Eng. Law, 4th vol. p. 117, p. 2. (r) Burn's Eccl. Law, pref. (s) Stat. 25 Hen. 8, c. 19, (revived

and confirmed by 1 Eliz. c. 1); 27 Hen. 8, c. 15; 35 Hen. 8, c. 16; and 3 & 4 Ed. 6, c. 11; (vide Middleton v. Croft, Stra. 1060; 2 Atk. 659, 669.) The three last statutes however were temporary ones.

[should still be used and executed.] And, as no such review has yet been perfected (t), upon this enactment now depends the authority of the canon law in England, the limitations of which appear upon the whole to be as follows, that no canon, contrary to the common or statute law, or the prerogative royal, is of any validity; that subject to this condition, the canons made anterior to the parliamentary provision above mentioned, and adopted into our system (for there are some which have had no reception among us) are binding both on clergy and laity; but that canons made since that period, and having no sanction from the parliament, are, as regards the laity at least, of no force (u).

As for those canons in particular which were enacted by the clergy in convocation under James I. in the year 1603, and which were never confirmed in parliament, but sanctioned by the king's charter only (x), [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 be bound to pay them (y).

[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

(t) Vide Watson's Cl. Law, ch. iii. p. 17, 3d ed.; Burnet's Hist. Reform. vol. ii. p. 197.

(u) 25 Hen. 8, c. 19, s. 2, 7; Caudrey's case, 5 Rep. xxxii.; 12 Rep. 72; Co. Litt. 344 a; Pref. to Burn's Ecc. Law; Wolferstan v. Bishop of Lincoln, 2 Wils. 174; Middleton v. Croft, Stra. 1056; 2 Atk. 669; Alston v. Atlay, 7 Ad. & El. 305.

(x) Middleton v. Croft, Stra. 1057; 2 Atk. 650.

(y) Middleton v. Croft, Stra. 1056, per Lord Hardwicke, More v. More, 2 Atk. 158; Bishop of St. David's v. Lucy, Carth. 485; Rex v. Bishop of Litchfield, 2 W. Bla. 968; Pref. to Burn's Ecc. Law.

[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 (a).

2. The common law has reserved to itself a paramount authority in [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 controul them (b).

3. An appeal lies from all these courts to the sovereign, in the last resort (c); 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,

(a) 2 Inst. 623; Ex parte Jenkins,

1 Barn. & Cress. 655; vide Beaurain v. Sir W. Scott, 3 Camp. 388.

(b) Hall v. Maule, 7 Ad. & El. 721. VOL. I.

F

(c) As to the appeal from the ecclesiastical and maritime courts, vide 2 & 3 Will. 4, c. 92; 3 & 4 Will. 4, c. 41.

[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 ecclesiastical, the military, the maritime and the academical laws of this realm (d).

[Let us next proceed to the leges scripta, the written laws of the kingdom; which are statutes, acts, or edicts, made by the sovereign, by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled (e). The oldest of these now extant, and printed in our statute books, is the famous magna charta, as confirmed in parliament 9 Hen. III.(ƒ); 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 parliament. At present we will only take notice of the different kinds of statutes; and of the rules of law with regard to their effect and construction (g).

(d) Hale, Hist. C. L. c. .2; 1 Bl. Com. 84. As to these several courts, vide 4 Inst. 123, 134, 321.

(e) The Prince's case, 8 Rep. 20.

(f) The statutes from Magna Charta down to the end of Edw. 2, inIcluding also some which (because it is doubtful to which of the three reigns of Hen. 3, Edw. 1, or Edw. 2 to assign them) are termed incerti temporis, compose what have been called the Vetera Statuta; those from the beginning of the reign of Edw. 3, being contra-distinguished by the appellation of the Nova Statuta. Dwarris on Statutes, 626.

(g) 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 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. Some are distinguished by their initial words, a method of citing very antient; 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 bulls; and in short by the whole body of antient civilians and

First, as to their several kinds.

Statutes are either

public or private. A public act is an universal 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 (h). 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 (i): and of these the judges are not bound to take notice, unless they be formally shown and pleaded. Thus, to show the distinction, the statute 13 Eliz. c. 10, which prevents the master and fellows of any college, the dean and chapter of a cathedral, or any other person having a spiritual living, from making leases for longer terms than twenty-one years, or three lives, is a public act (k); it being a rule prescribed to spiritual persons in general but an act to enable the Bishop of Chester to make a lease to A. B. for sixty years, which is otherwise beyond a bishop's power (l), concerns only the parties and the bishop's successors, and is therefore a private act.

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 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 II., 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 properly but one statute; and therefore when two sessions have

been held in one year, we usually mention stat. 1. or 2. Thus the bill of rights is cited, as 1 W. & M. st. 2, c. 2, signifying that it is the second chapter or act, of the second statute, or the laws made in the second session of parliament, in the first year of King William and Queen Mary.

(h) Lord Cromwell's case, 4 Rep. 13 a; Holland's case, ibid. 76 a; Kirk v. Nowill, 1 T. R. 125; Samuel v. Evans, 2 T. R. 569.

(i) Gravin. Orig. 1. § 24.
(k) Holland's case, ubi supra.

(1) By 1 Eliz. c. 19, a bishop can grant only for twenty-one years or three lives.