[of gavelkind, an infant of fifteen years may, by one species of conveyance (called a feoffment), convey away his lands in fee simple. But that does not empower him to use any other conveyance; for the custom must be strictly pursued. And yet, if there be a custom that a man may convey his copyhold in fee simple, this will enable him to convey for life, or any other estate; for the less is implied in the greater. And though customs must be strictly, yet they need not in every case be literally construed (f). And thus much for the second part of the leges non scriptæ, 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 scriptæ, or unwritten laws, seeing that they are set forth by authority in their Pandects, their Codes, and their Institutes; in their Decrees, Decretals, and treatises. But we do this, after the example of Sir Matthew Hale, because it is most plain, that it is not on account of being a written law, that either the civil law, or the canon law, has any obligations within this kingdom. Such authority as they have is derived from their immemorial acceptance and usage in some particular cases, and some particular courts; though in rare instances this adoption has been expressly recognized by Act of Parliament. They are, therefore, properly part of the leges non scriptæ, or customary law.

By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprised in the Institutes, the Code, and the Digest (or Pandects) of the Emperor Justinian, and the Novel

(f) Co. Cap. 33.

[Constitutions of himself and of some of his successors. And of this body of law, the following is a short and general account.

The Roman Law, founded, first upon the regal constitutions of the 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 so greatly in bulk, that they were almost impossible to either master or to harmonize. This evil was in part remedied by the private collections of Papirius, Gregorius, and Hermogenes; and then by the Emperor Theodosius the younger, by whose orders there was compiled in 438 A.D., a Code, or methodical collection of all the imperial constitutions then in force. The Theodosian Code was the only book of civil law received as authentic in the western part of Europe till many centuries after (i). For Justinian commanded only in the eastern portion of the empire; and it was under his auspices that the now accepted body of civil law was compiled, by Tribonian and other lawyers, and published in the year 533 A.D.

This consists of, 1, The Institutes, which contain the elements or first principles of the Roman law, in four books (k); 2. The Digest, 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

(i) This is at least true of the western part of Europe generally, where the legislation of Justinian was not recognised till the twelfth century. But his Code seems to have been recognised by the Roman Church, much earlier.

(k) The Institutes of Justinian are chiefly founded on those of Gaius, and on the fragments of Ulpian. The manuscript of Gaius was discovered accidentally by Niebuhr, in the year 1816, while at work in the library at Verona.

[of Theodosius imperfect (1). 4. The Novels, or new Constitutions, posterior in time to the other books, and amounting to a supplement to the Code. These form the body of Roman Law, or the corpus juris civilis.

The Canon law is a body of ecclesiastical law, relative to matters over which the Church assumes, or formerly assumed, jurisdiction (m). It is compiled from the opinions of the antient 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 civil law, till, about the year 1140, Gratian, an Italian monk, in imitation 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. They embodied the constitutions down to the time of Pope Alexander the Third. The subsequent decrees down to the pontificate of Gregory the Ninth were published under the auspices of that pope, in or about the year 1234, in five books, entitled Decretalia Gregorii Noni. A sixth book, called Sextus Decretalium, was added by Boniface the Eighth, in or about the year 1298. The Clementine Constitutions, or decrees of Clement the Fifth, were in like manner authenticated in 1317 by his successor John the Twentysecond, 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

(7) It is called the "New Code," not in reference to the Theodosian code, but to a code which was promulgated by Justinian in the year 529 A.D., and suppressed by him on publication of the New Code, in 534 A.D.

(m) A brief account of this system, and its position in England, will be found in a recently published work by Professor Maitland, Roman Canon Law in the Church of England.

[Decretals, the Sixth Decretal (or "Sext "), the Clementine Constitutions (or " Clementines "), and the Extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law.

The

Besides these pontifical collections which, until the Reformation, were received as authentic in this island, there is also a kind of national canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of our own Church and kingdom. legatine constitutions were enacted in national synods held under the Cardinals Otho and Othobon, legates of Gregory the Ninth and Clement the Fourth, in the reign of Henry the Third, 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 the Third, to Henry Chichele in the reign of Henry the Fifth. They were adopted also by the province of York in the reign of Henry the Sixth (n).

Immediately prior to the Reformation of Religion, viz., in the year 1534, it was provided by the Act for the Submission of the Clergy, which was revived in the year 1559 by the Act of Supremacy, that a review should be had of the canon law, and that, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, then already made, and which were not repugnant to the laws, statutes, and customs of the realm, or to the hurt of the king's prerogative, should still be used and executed. And, inasmuch as no such review has yet been perfected, upon this enactment now depends the authority of the old canon law in England.

As for the canons enacted under James I., in 1603, and at subsequent times, in pursuance of the authority contained in the Act for the Submission of the Clergy, they are, doubtless, binding on the clergy. But, inasmuch

(n) Lyndwode's Provinciale is the chief work of authority on the provincial constitutions.

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[as they have never been confirmed in Parliament, they have been held, upon the principles of law and the constitution, not to bind the laity (o).

Postponing, until we come to deal with the jurisdiction of courts, the enumeration of the tribunals, and the cases, in which the civil and canon laws prevail, we may here 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 king's superior courts have the superintendence of all the tribunals in which these laws are applied; 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 the sentence so declared to be illegal.

2. The king's superior judges have reserved to themselves 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 king's judges put upon them, the latter will grant prohibitions to restrain and control them.

3. An appeal lies from all these courts, in the last resort, to the king in council, i.e., to the Judicial Committee of the Privy Council; which proves that the jurisdiction exercised in them is derived from the Crown of England.

And from these three strong marks of superiority it appears beyond doubt, that the civil and canon laws are not a distinct, independent species of laws, but a branch of the customary or unwritten laws of England.

Let us next proceed to the leges scriptæ, or written laws of the kingdom, which are the statutes of the realm, made by the King's Majesty, by and with the advice and (0) Crofts v. Middleton (1737), 2 Atk 650.