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5. CUSTOMS ought to be certain. A cuftom, that lands fhall defcend to the moft worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to defcend to the next male of the blood, exclufive of females, is certain, and therefore good. A cuftom to pay two pence an acre in lieu of tithes, is good; but to pay sometimes two pence and sometimes three pence, as the occupier of the land pleases, is bad for it's uncertainty. Yet a custom to pay a year's improved value for a fine on a copyhold estate, is good; though the value is a thing uncertain: for the value may at any time be afcertained; and the maxim of law is, id certum eft, quod certum reddi poteft.

6. CUSTOMS, though established by confent, must be (when established) compulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants fhall be rated toward the maintenance of a bridge, will be good; but a cuftom, that every man is to contribute thereto at his own pleasure, is idle and abfurd, and indeed no cuftom at all.

7. LASTLY, cuftoms must be confiftent with each other: one custom cannot be set up in oppofition to another. For if both are really cuftoms, then both are of equal antiquity, and both established by mutual confent: which to fay of contradictory customs is abfurd. Therefore, if one man prefcribes 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 thofe 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 (b).

NEXT, as to the allorvance of special customs. Customs, in derogation of the common law, must be conftrued ftrictly. Thus, by the cuftom of gavelkind, an infant of fifteen years 1 Roll. Abr. 565. P 9 Rep. 58.

(b) [See the cafe of Wiglefworth against Dallifon and another, reported in Douglas, 190.]

may

may by one fpecies of conveyance (called a deed of feoffment) convey away his lands in fee fimple, or for ever. Yet this cuftom does not impower him to use any other conveyance, or even to lease them for seven years: for the custom must be ftrictly purfued. And, moreover, all fpecial cuftoms must submit to the king's prerogative. Therefore, if the king purchafes lands of the nature of gavelkind, where all the fons inherit equally; yet, upon the king's demise, his eldest fon fhall fucceed to those lands alone'. And thus much for the fecond part of the leges non fcriptae, or those particular customs which affect particular perfons or districts only.

III. THE third branch of them are thofe peculiar laws, which by cuftom are adopted and ufed only in certain peculiar courts and jurifdictions. And by thefe I understand the

civil and canon laws.

It may feem a little improper at first view to rank these laws under the head of leges non fcriptae, or unwritten laws, seeing they are fet forth by authority in their pandects, their codes, and their inftitutions; their councils, decrees, and decretals; and enforced by an immenfe number of expofitions, decifions, and treatises of the learned in both branches of the law. But I do this, after the example of fir Matthew Hale', 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 theirown intrinfic authority; which is the cafe 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 Juftinian, or declared to be authentic by Gregory. These confiderations give them no authority here: for the legislature of England doth not, nor ever did, recognize any foreign power, as fuperior or equal to it in this kingdom; or as having the right to give law to any, the meaneft, of it's fubjects. But all the

9 Co. Cop. §. 33

r Co. Litt. 15.

Hift. C. L. c. 2.

ftrength

ftrength that either the papal or imperial laws have obtained in this realm (or indeed in any other kingdom in Europe) is only because they have been admitted and received by immemorial usage and cuftom in fome particular cafes, and fome particular courts; and then they form a branch of the leges non fcriptae, or customary laws: or elfe, because they are in fome other cafes introduced by confent of parliament, and then they owe their validity to the leges fcriptae, or statute law. This is exprefsly declared in those remarkable words of the ftatute 25 Henry VIII. c. 21. addressed to the king's royal majesty." This your grace's realm, recognizing no fu"perior under God but only your grace, hath been and is "free from fubjection to any man's laws, but only to fuch "as have been devised, made, and ordained within this realm "for the wealth of the fame; or to such other as, by suffer"ance of your grace and your progenitors, the people of this "your realm have taken at their free liberty, by their own "confent, to be used among them: and have bound them"felves by long ufe and cuftom to the obfervance of the "fame: not as to the obfervance of the laws of any foreign "prince, potentate, or prelate; but as to the cuffomed and "antient laws of this realm, originally established as laws of "the fame, by the said sufferance, confents, and custom; and "none otherwise."

By the civil law, abfolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprized in the institutes, the code, and the digeft of the emperor Juftinian, and the novel conflitutions of himself and fome of his fucceffors. Of which, as there will frequently be occafion to cite them, by way of illuftrating our own laws, it may not be amifs to give a fhort and general account.

THE Roman law (founded first upon the regal conftitutions of their antient kings, next upon the twelve tables of the decemviri, then upon the laws or ftatutes enacted by the fenate or people, the edicts of the praetor, and the refponfa prudentum or opinions of learned lawyers, and laftly upon the imperial

imperial degrees, or conftitutions of fucceffive emperors) had grown to fo great a bulk, or, as Livy expreffes it', "tam im"menfus aliarum fuper alias acervatarum legum cumulus," that they were computed to be many camels' load by an author who preceded Juftinian". This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodofius the younger, by whofe orders a code was compiled, A. D. 438, being a methodical collection of all the imperial constitutions then in force: which Theodofian 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 fome regard, in framing legal constitutions for their newly erected kingdoms. For Juftinian commanded only in the eastern remains of the empire; and it was under his aufpices, that the prefent body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533.

THIS Confists of, 1. The inftitutes; 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, digefted in a systematical method. 3. A new code, or collection of imperial constitutions, in twelve books; the lapfe of a whole century having rendered the former code, of Theodofius, imperfect. 4. The novels, or new conftitutions, pofterior in time to the other books, and amounting to a fupplement to the code; containing new decrees of fucceffive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Juftinian; which however fell foon into neglect and oblivion, till about the year 1130, when a copy of the digefts was found at Amalfi in Italy: which accident, concurring with the policy of the Roman ecclefiaftics", fuddenly gave new vogue and authority to the civil law, introduced it into feveral nations, and

t 1. 3. c. 34.

Taylor's elements of civil law. 17. VOL. I.

F

w See §. 1. page 18.

occafioned

occafioned that mighty inundation of voluminous comments, with which this fyftem of law, more than any other, is now loaded.

THE canon law is a body of Roman ecclefiaftical law, relative to such matters as that church either has, or pretends to have, the proper jurifdiction over. This is compiled from the opinions of the antient Latin fathers, the decrees of general councils, and the decretal epiftles and bulles of the holy fee. All which lay in the fame disorder and confufion as the Roman civil law: till, about the year 1151, one Gratian an Italian monk, animated by the difcovery of Juftinian's pandects, reduced the ecclefiaftical conftitutions alfo into fome method, in three books; which he entitled concordia difcor dantium canonum, but which are generally known by the name of decretum Gratiani. These reached as low as the time of pope Alexander III. The fubfequent papal decrees, to the pontificate of Gregory IX, were published in much the fame method under the aufpices of that pope, about the year 1230, in five books; entitled decretalia Gregorii noni. A fixth book was added by Boniface VIII, about the year 1298, which is called fextus decretalium. The Clementine conftitutions, or decrees of Clement V, were in like manner authenticated in 1317 by his fucceffor John XXII; who also published twenty conftitutions of his own, called the extravagantes Joannis: all which in fome measure answer to the novels of the civil law. To these have been fince added fome decrees of later popes in five books, called extravagantes communes. And all thefe together, Gratian's decree, Gregory's decretals, the fixth decretal, the Clementine conftitutions, and the extravagants of John and his fucceffors, form the corpus juris canonici, or body of the Roman canon law.

BESIDES thefe pontifical collections, which during the times of popery were received as authentic in this ifland, as well as in other parts of chriftendom, there is alfo a kind of national canon law, compofed of legatine and provincia, conftitutions, and adapted only to the exigencies of this church

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