Peculiar laws used in particular courts and jurisdictions. Equity.

It may be convenient, before concluding this section, to notice briefly those peculiar laws which by custom are adopted and used in certain peculiar courts and jurisdictions. Of such laws, Equity, by far the most important, will be separately considered in the third volume of these Commentaries. I shall here accordingly speak only of *the [*78] civil and canon laws. These are set forth in the pandects, the codes, and the institutes; and enforced by councils, decrees, and decretals, as also by Authority of the an immense number of expositions, glosses, decisions, and treatises of the learned in both branches of the law.

civil and canon

laws.

Nevertheless it is not on account of their being written laws, that either the canon law, or the civil law, has any obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority. 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 does not, nor ever did recognise 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 the strength which either the papal or imperial laws have obtained in this realm, is thus far only that they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to our leges scriptæ, or statute law. This is expressly declared in those remarkable words of the statute 25 Henry 8, c. 21, addressed to the king's majesty -"This is your grace's realm, recognising 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."

The Roman or civil law.

[*79]

By the "civil" law, is generally understood the civil or municipal law of the Roman empire, as comprised in the institutes, the code and the 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, it may not be amiss to give a short and general account. The law of Rome (b) (founded first upon the regal constitutions of its 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 responsa prudentum, or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors) had grown to so great (b) of which the constituent parts are well described in Dr. Irving's Introduction to the study of the Civil Law.

nett v. Brandao, 6 Man. & Grang. 630, 665. The law merchant need not be pleaded or proved. Ib. It is binding upon all without proof, as the court will take notice of it judicially. Ib.

VOL. I.-8

code.

a bulk as to render applicable to it the expression of Livy (c), “immensus aliarum super alias ascervatarum legum cumulus." This evil was in part remedied by the collections of two private lawyers, Gregorius and Hermogenes; The Theodosian and then by the emperor Theodosius the younger, by whose orders a code was compiled, A. D. 438, being a methodical collection of imperial constitutions, with emendations and retrenchments; this Theodosian code was promulgated in the western as well as in the eastern empire; and to this it is probable that the Franks and Goths paid much 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 body of civil law was compiled and finished by Tribonian and other lawyers, A.D. 533 (d).

&c., of Jus

tinian.

*This, in its present form, consists of, 1. The institutes, which con[*80] tain the elements or first principles of the Roman law, in four books. The Pandects, 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 of Theodosius imperfect, as well as 4. The novels, or new constitutions; and 5. Certain edicts of Justinian, posterior in time to the other books, and being a supplement to the original compilation. These form, in strictness, the body of Roman law, or Corpus juris civilis, the study of which, however, gradually fell into neglect and oblivion, till it revived about the middle of the twelfth century, when the policy of the Roman ecclesiastics 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, has been loaded.

Not only the Roman law, but also the commentaries upon it, may be cited and appealed to in our courts as containing the opinions of learned persons (e) upon matters which are brought even at this day sub judice. That doctrines. expounded in the Corpus juris civilis, or in the glosses upon it, have become blended and incorporated with our own law-that such doctrines are sought for when needed, and are sometimes applied by our judges, may readily be shown (ƒ), ex. gr. in regard to contracts (g) and the classification of bailments (h), the *law of easements and servitudes (i), the right to sub[*81] terranean water (k) or to land formed by alluvion of the sea (7); and

(c) L. 3, c. 34. Some writers, misapprehending a passage in Eunapius, have estimated that these laws were equal in bulk to many camels' load. See Irving, Introd. Civ. L., 4th ed. 31 (5).

(d) The code contained in this compilation was commenced in the year 528.

(e) In Ryall v. Rowles, 1 Ves. Sen. 370, the work of Domat on Partnership, 1. 1. fo. 155, is cited by Lee, C. J., with the remark that a civil law writer may be cited, not as authority on which a judgment is to be founded in our courts, but as exhibiting the opinions of a learned man.

(f) See the judgments of the late learned Lord Justice Knight Bruce, passim. (g) Vide Dig. 50, tit. 17.

(h) Judgment of Lord Holt, Coggs v. Bernard, 2 Lord Raym. 909.

(i) Smith v. Kenrick, 7 C. B. 565; Baind v. Williamson, 15 C. B. N. S. 376.

(k) Acton v. Blundell, 12 M. & W. 324. See Chasemore v. Richards, 7 H. L. Cas. 387.

(1) Gifford v. Lord Yarborough, 5 Bing. 163, 167, where Best, C. J., after observing that Bracton had quoted, in regard to alluvion, the text of the civil law, remarked that our own law had been much improved by incorporating with it portions of the civil law, and added: "We know that many of

the maxims of the common law are borrowed from the civil law, and are still quoted in the language of the civil law. Notwithstanding the clamour raised by our ancestors

generally, where express authorities in our own law are wanting, precedents or analogies will be sought for in the digest of Justinian (m).

In determining, however, the extent of our obligations to the Roman law, we must not solely be influenced by the number of direct references to it, which we may find in the reports; nor must we rest satisfied with extracting from them cases which may have been expressly decided in accordance with the opinions of lawyers collected and classified in the digest; we must regard also the general influence which so refined a body of law as that of Rome may have exercised when the cruder notions of jurisprudence, derived from Teutonic nations, had become gradually capable of being systematised, polished, and improved. We must, in short, regard the broad principles discernible in certain branches of our laws, and compare them with such as in corresponding portions of the more ancient code may be apparent. We shall thus probably conclude not that sagacious intellects have at *distant epochs and [*82] upon independent reasoning applied fortuitously to similar states of facts similar or identical rules of law-but rather that our modern jurists have largely benefited by the laborious researches of their predecessors - that the fruit of "collective wisdom" has not been put aside untasted (n).

Yet whilst acknowledging that we have largely borrowed from the Roman law, we must not ascribe to it any direct intrinsic authority binding on our courts; for instance, in Ball v. Herbert (o), the question was: Have the public at common law (irrespective of custom) a right to tow vessels on either bank of an ancient navigable river? Does any such right exist at common law as evidenced by the judgments of our courts and the opinions of learned writers? In support of an affirmative answer to this question, a passage was cited from Bracton, who, speaking of navigable rivers, says, Riparum etiam usus publicus est, jure gentium, sicut ipsius fluminis. This passage from Bracton (quoted by Callis, the great authority on the law of sewers), "plainly appears," said Buller, J., "to have been taken from the Roman law (p), and whether or not that has been adopted by our common law is to be seen by looking into our books-and there it is not to be found." Accordingly, the Court of Queen's Bench decided, in Ball v. Herbert, against the existence of the right which was asserted.

The canon law.

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. It is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal [*83] epistles and bulls of the holy see. About the year 1151, Gratian, an Italian monk, reduced these ecclesiastical constitutions into some method, in

for the restoration of the laws of Edward the Confessor, I believe that these, and all the Norman customs which followed, would not have been sufficient to form a system of law sufficient for the state of society in the time of Henry III. (when Bracton wrote.) Both courts of justice and law writers were obliged to adopt such of the rules of the Digest as were not inconsistent with our principles of jurisprudence."

(m) See, for instance, Humphries v. Brogden, 12 Q. B. 739; Rowbotham v. Wilson, 8 H. L. Cas. 348; Buckhouse v. Bonomi, 9 Id. 503.

(n) Ante, p. 56. In deciding a case upon principle where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion come to, if it proves to be supported by the civil law," the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe." Per Tindal, C. J., 12 M. & W. 353. (0) 3 T. R. 253.

(p) Inst. 1. 2, tit. 1, s. 4.

Gratian's decree.

Gregory IX.,

and of Boniface VIII.,

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 The decretals of books; entitled decretales, or decretalia Gregorii noni. A sixth book was added by Boniface VIII. about the year 1298, which is called liber sextus decretalium. The Clementine constitutions, or decretals of Clement V., were in like manner authenticated in the constitutions 1317 by his successor John XXII.; who also published twenty of Clement V., constitutions of his own, called the extravagantes Joannis XXII.: and the extrava- all which in some measure answer to the novels of the civil gantes of John XXII. and his law. To these have been since added some decrees of later popes, successors. 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.

provincial constitutions.

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, The legatine and 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 are principally the decrees of provincial synods, held under divers archbishops of Canterbury, from Stephen Langton in the *reign of Henry III. to arch[*84] bishop Chichele in the reign of Henry V.; and adopted also by the province of York (g) in the reign of Henry VI.(r). 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 by a commission composed of ecclesiastics and laymen, with power to abrogate and confirm, and that such portion as should be approved and found consistent with the law of England, should be valid and in force; and further, that until such commission should have accomplished the work assigned to it, the existing canon law, in so far as

(g) Burn's Eccl. Law, pref. viii.

(r) 2 Reeves, Hist. Eng. L. 78. The English constitutions have been commented upon by several English canonists, the chief of whom is Lyndwood, who lived in the beginning of the 15th century.

(8) Stat. 25 Hen. 8, c. 19, which recites that the clergy besought the king that the constitutions and canons should be committed to the examination and judgment of his highness and of thirty-two of his highness' subjects, whereof sixteen were to be of the clergy; and that such constitutions and canons as should be thought and determined by the said two-and-thirty persons, or the more part of them, worthy to be abrogated and annulled, should be abolished and made of no value accordingly; and such other of the same constitutions and canons as by the said two-and

thirty, or the more part of them, should be approved to stand with the laws of God, and consonant to the laws of this realm, should stand in their full strength and power, the king's most royal assent being first had and obtained to the same. This ecclesiastical commission was extended by 27 Hen. 8, c. 15, beyond the then session of parliament, and by 35 Hen. 8, c. 16, during the life of the king. The 25 Hen. 8, c. 19, s. 7, also enacted that "such canons, constitutions, ordinances, and synodals provincial, being already made, which be not contrariant or repugnant to the laws, statutes, and customs of this realm, nor to the danger or hurt of the king's preroga tive royal, shall now still be used and executed as they were afore the making of this act," until otherwise ordered by the commissioners.

it was not repugnant to the laws of the realm, should be exercised. This statute of Henry was confirmed by the 1 Eliz. c. 1. Intermediately, however, between the passing and confirmation of that statute, viz., in the third year of Edward VI., commissioners, composed of members as well lay as ecclesiastical, had been appointed to frame new canons, but the completion of their [*85] work was prevented by the king's death(t). The review thus projected of the canon law never having been effected, its authority in England depends mainly upon the statutes which have been cited.

It is doubtless true that at the commencement of the reign of James I. certain constitutions and canons were made in convocation and ratified by the king(u). With regard to which Lord Hardwicke (x) declared, that "not having been confirmed by parliament, they do not proprio vigore bind the laity." There are, nevertheless, many provisions contained in these canons which are declaratory of the ancient usage and law of the church of England received and allowed here which, in that respect and by virtue of such ancient allowance, will bind the laity; but that is an obligation antecedent to, and not arising from this body of canons(y).

*The opposition of the judges to the Articuli Cleri, presented by [*86] archbishop Bancroft on behalf of the clergy, A. D. 1605, and to the pretensions of the ecclesiastics in their attempted infringements on the common law, was very resolute(z); and the statute of Merton, already cited(a), with Lord Coke's commentary upon it, shows that at a much earlier date the doctrines of the canon law had not been allowed to prevail against the law of England, yet sometimes our courts have expressly appealed to the canon, as they have done to the civil, law, to guide them under peculiar circumstances(b); and where the Roman law and the canon law differ, our common law holds

(t) The provisions and objects of the statutes (cited supra (8)) not having been carried into effect in the reign of Henry VIII., the 3 & 4 Edw. 6, c. 11, appointed a new commission, also directed to thirty-two persons, to prepare a code of canon law. By a committee of eight out of the said thirty-two commissioners, a work analogous to the Roman decretals was composed, called " Reformatio Legum Ecclesiasticarum," which is spoken of by Sir W. Scott in Hutchins v. Denziloe, 1 Hag. Con. 179, "as a work of great authority in determining the practice of these times, whatever may be its correctness in matters of law." In the reign of Mary all the above acts were repealed, but in the reign of Elizabeth they were revived, and extended to the queen's heirs and successors; but no future steps were taken to carry the purposes of 25 Hen. 8, c. 19, into practical execution.

(u) These canons are set out in Burn's Eccles. L., 9th ed. iv. 630, et seq.

(x) Middleton v. Crofts, 2 Atk. App. 653. (y) Cited Judgm., Marshall v. Bishop of Exeter, 29 L. J. C. P. 354; S. C. 7 C. B. N. S. 653; 6 Id. 716. "If canon law be made part of the law of this land, then is it as much the law of the land, and as well and by the same authority, as any other part of the law of the land. And if it be not made the law of the land, then it hath no more effect than a law of Utopia; therefore the canon law in force here is the law of the land." Judgm.,

Edes v. Bishop of Oxford, Vaugh. 21. Sec also the preamble to stat. 25 Hen. 8, c. 21.

(z) 2 Inst. 599; Hall. Const. Hist. Eng., 8th ed. i. 324.

(a) Ante, p. 13. The peculiar doctrine of the canonists as to the effect of a subsequent marriage upon the condition and heritable qualifications of the ante-natus, came under the notice of the Court of Q. B., A. D. 1826, in the case of Doe v. Vardill, 5 B. & C. 438; 2 Cl. & F. 571; 7 id. 895, where the question was mooted, whether a child born in Scotland of unmarried parents, who subsequently intermarried, was capable of inheriting land in England? He was held not to be so. "One rule," said Littledale, J., "applicable to every course of descent is, that the heir must be born in lawful matrimony. That was settled by the Statute of Merton, and we cannot allow the comity of nations to prevail against it."

(b) In Rennell v. Bishop of Lincoln, 3 Bing. 272, 273, Best, C. J., observes: If it be asked what have the judges of the common law, when giving judgment in an action of quare impedit, to do with the canon law, I answer, that where the right of presentation is derived from the church [as it was in the case sub judice], it can only be decided by that law. Ecclesiastical presentations hav ing no connection with lay property, but existing only as rights of the church, are governed by the laws of the church. The