Charles I., declaring compulsory "loans" and "benevolences " secret imposts contravening law; prohibiting arbitrary imprisonment and the resort to military law, and abolishing the court of "High Commission" and the "Star Chamber," are merely a ratification of the ancient law of the land. The "Bill of Rights,' originating from the Revolution (1688) did not create any substantially new law. There are statutes, however, which have really infringed upon the law of the land, laying down entirely new principles not derived from the common law; amongst which may be enumerated : 1. The introduction of the forty shilling census under Henry VI., by parliamentary enactment. 2. The Septennial Act under George I. 3. The East India Bill of Pitt, and that of 1858; and, 4. The Reform Bill. Ministerial regulations and orders are only sources of law within the limits prescribed by the law conferring the authority, and are always subject to judicial determination. Orders in council and royal proclamations can only carry out existing law, but have no power to create any new law. Within their own sphere certain corporations are empowered to pass so-called "bye-laws," or local statutes, which affect the respective corporations, but must not contravene the municipal law. CHAPTER II. EQUITY. Judicial Equity.-Prætorian law.-The Prussian Code.-The English Chancellor.Equitable Jurisdiction. In the Roman law a distinction is drawn between the "quitas" which the judge exercises in the interpretation of the law and the "Equitas" of judge in establishing the principles of law. "Pure law" is so constituted as to harmonize with the inherent claims of individual good, without establishing consequences; it is an equal law, "æquum jus," for equity is the taking account of individual differences and their claims.* Wherever courts and laws exist, this kind of equity prevails: it is not peculiar to any one country. Every system of law exhibits, in the development of its social bearings, certain inequalities which the judge has to fill up. In the Roman law a prætor peregrinus was appointed to decide controversies between Roman subjects and foreigners; and, as the latter could not share the jus civile, their relations were determined by the jus gentium. Wherever the Roman law failed to meet the wants of society, the prætor introduced by his edict new principles. Without such suppletory action, even a legal decision based on the most elaborately-contrived code, may not be readily appreciable; hence sect. 49-50 of the introduction to the old Prussian code directed-" If the judge find no enactment which may serve to determine the case in dispute, he shall, in accordance with the principles generally prevailing in the code, and the precedents existing in regard to such cases, decide to the best of his judgment. He is, however, required to report without delay the seeming deficiency in the law to the "chief of justice." Substituting here for the Prussian "chief of justice" "the King of England," the meaning of "equity" will perhaps be apprehended. The English courts of common law are courts delegated by the king, the jurisdiction being always determined by the common Puchta, Pandecten, § 21; Gluck, + Bl. iii. 426. Pandecten, i. 194. law. Civil procedure first became their domain, and in two of the courts, of "Exchequer " and " Queen's Bench," only by assuming certain fictions. Within the sphere of their operation, they afforded relief only in accordance with the common law; should legal relations arise not known to the common law, the party suing-and, during the middle ages, the judges themselves-turned to the source of law, viz., the sovereign, who, instead of fashioning a new law, refered the matter to his Council, which assigned to the chancellor the decision of private and certain public suits. The chancellor was generally an ecclesiastic, and frequently also the king's confessor. He decided either from the analogy of philosophical natural law, or according to the so-called "raison écrite," in other words, the Roman or the canon law, from which he, as a cleric, further borrowed his mode of procedure. An ordinary common-law jurisdiction, though of an unimportant nature, was coincidently transferred to the chancellor. In his capacity of prætorian judge, and supreme official of the crown, he might of course also order contentious suits, which especially pertained to the courts of the common law, to be referred to his court as not being subordinate to the common law courts, but having with them co-ordinate jurisdiction. Thus, in many instances, he was able to soften the rigour of the law. The Court of Chancery gradually acquired fixed rules, fashioned on recognized precedents there prevailing. Equity is not, therefore, what seems equitable to the mind of the chancellor, but that which is based on the rules and legal usages of the Court of Chancery* (See Bl. v. c. 7). The meaning of " equity" should hence be taken negatively. Wherever the common law and its respective courts afford no remedy, relief may still be attainable in Equity. * Thomas Smith, Elements of the Laws. Philadelphia, 1853. CHAPTER III. THE ROMAN AND THE CANON LAW. Introduction of the Roman and the Canon Law.-Subordination to the Common Law.-Distrust of the Roman Law.-The Continental Development of Law not appreciable in English Legal Learning. WILLIAM THE CONQUEROR sought to uphold his throne by establishing a strict alliance with the Sovereign Pontiff. The canon law, as practised on the Continent, accordingly made its way into England, and, as was everywhere the case in the ecclesiastical courts, the Roman law followed in its train.* In the reign of Stephen, a learned Bolognese named Vacarius visited England, but his lectures were speedily put under ban.† When in the 14th century the upholders of the Roman and the canon law held the professorial chairs at Oxford and Cambridge, the supporters of the national law founded the "Inns of Court" as a bulwark against the foreign law, which was ever regarded as the handmaid of despotism. In matters wherein the courts of law have jurisdiction, the Roman or canon law never influences the judgment arrived at. In cases where the courts of law have supervision, or power to determine on appeal from the ecclesiastical courts, account is taken of the Roman and canon law, but they have only efficacy in subsidio, when the common and statute law are silent, and, whenever found to contravene the native laws, are disregarded. They are followed both in the ecclesiastical courts and the universities, but their application is kept within due limits by the common law courts. "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 * Warnkönig, Jur. Encyclopädie, 370. + Hallam, M. A. III., 417. D will grant prohibitions to restrain and withhold them. An appeal lies from all these courts to the king in the last resort."* "These laws of themselves," says Lord Hale, "have no binding efficacy, since they issue from foreign legislators; but all the strength that either the papal or imperial laws have obtained in this kingdom, is only because they have been received and admitted either by the consent of parliament, and so are part of the statute laws of the kingdom, or else by immemorial usage and custom in some particular cases and courts, and not otherwise."+ Hence the ecclesiastical courts can only apply the Roman and canon law in those cases where its application is expressly sanctioned by statute or custom. But they are leges sub graviori lege, i. e., under control of the common law of England.§ The Lords Chief Justices Holt and Coke were not more favourably minded to the "foreign laws" than Hale himself.|| The prejudices obtaining in England against Roman law are manifestly of a political rather than scientific nature; the Roman law of the imperial type is regarded as the creature of despotism, and with canon law is associated the recollections of pontifical jurisdiction. As a matter of course, little scientific attention is bestowed on the study of Roman law. At Oxford, only one College, and that but sparsely frequented, professes to teach the Roman law, and the elementary books published are of a most meagre description. The assiduous culture of legal learning in Germany has exercised scarcely any influence in England,¶ but continental influences upon legal learning in England have not hitherto resulted so beneficially as to cause us to desire any further intellectual development in that direction. * Bl. i. 84. + Hale's Hist. of Com. Law, 27. Burns, E. LA § Hale's Hist., 33, 41. Burns, E. L. ii. 30. pädie, 137. |