7. Lastly, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom. (p)

Next, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly. Thus, by the custom of gavelkind, an infant of fifteen years *may, by one species of conveyance, called a deed of feoffment,) convey away his lands in fee simple, or forever. Yet this custom [*79] does not impower him to use any other conveyance, or even to lease them for seven years for the custom must be strictly pursued. (q) And, moreover, all special customs must submit to the king's prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone. (r) 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. (8)

It may seem a little improper at first view to rank these laws under the head of leges non scriptæ, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. But I do this, after the example of Sir Matthew Hale, (t) because it is most plain, that it is not on account of their being written laws that either the canon law, or the civil law, have any obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority, which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors; were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here; for the legislature of England doth not, nor ever did, recognize any foreign power as superior or equal to it in this kingdom, or as having the right to give law to any, the meanest, of its subjects. But all the *strength that either the papal or imperial laws have obtained in this realm, or indeed in any other kingdom in Europe, is only because they [*80] have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the leges non scriptæ, or customary laws; or else because they are in some other cases introduced by consent of parliament, and they owe their validity to the leges scriptæ, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. VIII, c. 21, addressed to the king's royal majesty: "This your grace's realm, recognizing no superior under God but only your grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained within this realm, for the wealth of the same; or to such other as, by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same; not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the customed and ancient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise."

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 (p) 9 Rep. 58. (q) Co. Cop. 33. (r) Co. Litt. 15. (8) Hist. C. L. c. 2.

VOL. I. 7

(t) Hist. C. L. c. 2.

49

digest of the emperor Justinian, and the novel constitutions of himself and some of his successors. Of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account.

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 [*81] responsa prudentum, or opinions of learned lawyers, *and lastly upon the imperial decrees, or constitutions of successive emperors,) had grown to so great a bulk, or, as Livy expresses it, (u) "tam immensus aliarum super alias ascervatarum 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 Justinian 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 aniounting 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 nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now

[*82]

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 bulls 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. A sixth book was added by Boniface VIII, about the year 1298, which is 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

(u) l. 3. c. 34.

(v) Taylor's Elements of Civil Law, 17.

(w) See 1, page 18.
50

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 pontificial 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 [*83] 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 (c) in the reign of Henry VÍ. 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. (11)

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. 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 [*84] 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. (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. (12)

(x) Burn's Eccl. Law, pref. viii. (y) Statute 25 Hen. VIII, c. 19, revived and confirmed by 1 Eliz. c. 1. (z) Stra. 1057. (a) Hale, Hist. c. 2.

(11) [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 parliament to bind the laity. 2 Atk. 605. Hence, if the archbishop of Canterbury grants a dispensation 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.]

(12) The ecclesiastical courts cannot be allowed conclusively to determine for themselves what matters fall within their jurisdiction. Rex v. Eyre, Stra. 1067. Parties in custody under their orders made without authority will be set at liberty by the common law courts: Jenkins ex parte, 1 B. and C. 655; Boraine's Case, 16 Ves. 346; and a prohibition will issue to the ecclesiastical courts when a want of jurisdiction appears on the face of the proceedings, or

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-modeled, 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 king[*85] dom, 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)

First, as to their several kinds. Statutes are either general or special, public [*86] or private. A general or 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. 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 show 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

(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. 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 Christain church in distinguishing their hymns and divine offices: by the Romanists in describing their papal bulls; 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 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 chap. ter, or particular act, according to its numeral order, as 9 Geo. II. c. 4, for all the acts of one session of Parlia ment 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. and 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. (d) Gravin, Orig. i. § 24.

is shown aliunde by affidavit. Full v. Hutchins, Cowp, 424; Roberts v. Humby, 3 M. and W. 120; Griffiths v. Anthony, 5 Ad. and E. 623.

this rule; it concerns only the parties and the bishop's successors; and is therefore a private act. (13)

Statutes also are either declaratory of the common law, or remedial of some defects therein. (14) Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case 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. 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,

(13) 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. Abbott (afterwards Lord Colchester), in the following note, in the printed report from the committee for the promulgation of the statutes:-PUBLIC AND PRIVATE ACTS. I. 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 spírituality, 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 public act, must afterwards be noticed by the courts as such. 2 Term Rep. 569. II. IN PARLIAMENTARY 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 denominated 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.]

It is probable that some of the acts enumerated by Mr. Abbot as private would be properly classified as public under late decisions. An act extending only to sheriff's was at one time held to be a private act, but it is now ruled otherwise. Lovell v. Plomer, 15 East. 320. It is not essential in order to constitute a statute a public act, that it be applicable to all parts of the state. It is sufficient if it extend to all persons doing or omitting to do an act within the territorial limits described therein. Pierce v. Kimball, 9 Greenl. 54. Thus, an act regulating the taking of fish in a particular river in a certain town is a public act. Burnham v. Webster, 5 Mass. 268. So acts for the establishment of towns and counties, and fixing their boundaries, and for the erection of public buildings for the use thereof, and for public highways and fences, are public acts. Commonwealth v. Springfield, 7 Mass. 9; East Hartford v. Hartford Bridge Co., 10 How. 511; Mills v. St. Clair Co., 8 How. 569; Gorham v. Springfield, 8 Shep. 58; Stephenson v. Doe, 8 Blackf. 508; Rex v. Paulding, Sid. 209. So semble an act incorporating a turnpike company, where it contains a provision that the road in a certain event shall revert to the people. Jenkins v. Union Turnpike Co., 1 Caines' Cas. 86. So the act incorporating the United States Bank: Rogers's Case, 2 Greenl. 303; and the act incorporating the Bank of Missouri. Douglass v. Bank of Mo., 1 Mo., 24. So it seems any act chartering a bank is to be deemed a public act. Bank of Utica v. Smedes, 3 Cow. 662; Crawford v. Planters and Merchants' Bank, 6 Ala. 289. So an act, otherwise private, if it contain provisions for forfeitures to the state, or for the punishment of public offences. Roger's Case, 2 Greenl. 303; Heridia v. Ayres, 12 Pick. 344. So a private act which is recognized by a subsequent public act. Rogers's Case, 2 Greenl. 303. So an act otherwise private which is declared therein to be a public act. Brookville Ins. Co. v. Records, 5 Blackf. 170. See further, Dawson v. Paver, 5 Hare, 434; Cock v. Gent, 12 M. and W. 234. Fees are not payable in America on private bills.

(14) [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.]