[pirius; 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 (i); 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 amounting 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] the early part of the twelfth century (k), when the policy of the Roman ecclesiastics began to give new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous com

(i) This is at least true of the western part of Europe generally, as the code of Justinian was not recognized there generally till the twelfth century. But that code seems to have been recognized by the Roman Church, at least, much earlier. See

Hallam's Mid. Ag. vol. iii. p. 513; and "Histoire du Droit Romain au Moyen-Age, par M. de Savigny," ch. xxii. ss. 164, 167.

(k) Blackstone says till about the year 1130, viz. the date of the capture of Amalfi: vide sup. p. 11.

ments, with which this system of law, more than any other, is now loaded.

[The canon law (1) 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 antient 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, 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 (m). These reached as low as the time of Pope Alexander the third. The subsequent papal decrees, to the pontificate of Gregory the ninth, 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 the eighth about the year 1298, which is called Sextus Decretalium. The Clementine constitutions, or decrees of Clement the fifth, were in like manner authenticated in 1317 by his successor John the twenty-second, 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 Constitu

(1) A disquisition on this subject, including our national canon law, will be found in Reeves's Hist. Eng. Law, 4th vol. chapters xxiv., XXV. ; and see Robertson's Chas. V. vol. i. n. 24.

(m) It is said by Dr. Burn, in the VOL. I.

Preface to his "Ecclesiastical Law," p. xx., that the "decrees" of the canon law, having first been collected by Ivo in the year 1114, were afterwards "polished and perfected by Gratian, a monk of Bononia, in the year 1149."

F

[tions, 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 (n). The legatine constitutions (o) were ecclesiastical laws, enacted in national synods, held under the Cardinals Otho and Othobon, legates from Pope Gregory the ninth and Pope Clement the fourth, in the reign of king Henry the third, about the years 1220 and 1268. The provincial constitutions (p) 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; and adopted also by the province of York (q) in the reign of Henry the sixth. At the dawn of the Reformation, in the reign. of king Henry the eighth, it was enacted in parliament (r), 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 (s), upon

(n) See Reeves's Hist. Eng. Law, vol. ii. p. 78.

(0) On these constitutions Athon is the chief commentator. See Pref. to Burn's Ecclesiastical Law, p.xxii.

(p) On this subject Lyndwode's Provinciale is the chief work of authority see the account of it in Reeves's Hist. Eng. Law, 4th vol. p. 117.

(q) Burn's Eccl. Law, pref. ubi sup.

(r) 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 Edw. 6, c. 11; (see Middleton v. Croft, Stra. 1060; 2 Atk. 659, 669). The three last statutes however were temporary ones.

(s) Vide Watson's Cl. Law, ch. iii. p. 17, 3rd ed.; Burnet's Hist. Reform. vol. ii. p. 197; Adam's Relig. World, vol. i. p. 411.

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, as they have had no sanction from the parliament, are, as regards the laity at least, of no force (t).

As for those canons in particular which were enacted by the clergy in convocation under James the first, in the year 1603, and which were never confirmed in parliament, but sanctioned by the king's charter only (u), [it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity, whatever regard the clergy may be bound to pay them (v).]

There are three 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

(t) See 25 Hen. 8, c. 19, ss. 2,7; Caudrey's case, 5 Rep. xxxii.; 12 Rep. 72; Co. Litt. 344a; 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. 289.

(u) Middleton v. Croft, ubi sup. These are 141 in number, and are a collection out of the several preceding canons. They are intituled "Constitutions and Canons Ecclesiastical treated upon by the Bishop of London, President of the Convo

cation, &c., and agreed upon with the King's Majesty's licence, in their Synod begun at London, A.D. 1603, in the first year of King James." They constitute the present standard of the Church both of England and Ireland.

(v) Middleton v. Croft, ubi sup., More v. More, 2 Atk. 158; Bishop of St. David's v. Lucy, Carth. 485; Rex v. Bishop of Lichfield, 2 W. Bla. 968; see also the recent case of Marshall v. The Bishop of Exeter, 7 C. B. (N. S.) 653.

[courts.] 2. [The courts of admiralty.] 3. The Chancellor's Court of the University of Cambridge (w). [In all, their reception in general, and the different degrees of their reception, are grounded entirely upon custom, corroborated in the last instance by act of parliament, ratifying those charters which confirm the customary law of the university. The more minute consideration of these will fall properly under that part of these Commentaries which treats of the jurisdiction of courts (x). 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 (y).

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 superior courts at Westminster will grant prohibitions to restrain and control them (≈).]

(w) Cambridge University Commission Report, p. 5. As to this court see post, vol. 111. p. 469. Blackstone enumerates among the courts where the civil and canon laws are permitted to be used, the courts of the two universities (meaning Cambridge and Oxford); but as to the court of the Vice-chancellor of Oxford, see 25 & 26 Vict. c. 26, s. 12. Blackstone also adds a fourth species

of courts, viz., the courts military. But these are now disused (vide post, vol. III. p. 459).

(x) As to courts ecclesiastical and maritime, vide post, vol. 111. p. 436 et seq. As to the university courts, ib. p. 469.

(y) 2 Inst. 623; see Beaurain v. Scott, 3 Camp. 388; Ex parte Jenkins, 1 Barn. & Cress. 655.

(z) Hall v. Maule, 7 Ad. & El. 721.