and kingdom. The legatine conftitutions were ecclefiaftical laws, enacted in national fynods, 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 conftitutions are principally the decrees of provincial fynods, 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 alfo by the province of York in the reign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII, it was enacted in parliament' that a review fhould be had of the canon law; and, till fuch review fhould be made, all canons, conftitutions, ordinances, and fynodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should ftill be used and executed. And, as no fuch review has yet been perfected, upon this ftatute 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 folemnly adjudged upon the principles of law and the conftitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity2; whatever regard the clergy may think proper to pay them.

THERE are four fpecies of courts, in which the civil and canon laws are permitted (under different reftrictions) to be used. 1. The courts of the archbishops and bifhops, and their derivative officers, ufually called in our law courts chriftian, curiae chriftianitatis, or the ecclefiaftical 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 cuftom; corroborated in the latter inftance by act of parlia

* Burn's eccl. law, pref. viii.

7 Statute 25 Hen. VIII, c. 19; revived

and confirmed by Eliz. c. 1.

z Stra. 1957.

F 2

ment,

ment, ratifying thofe charters which confirm the customary law of the univerfities. The more minute confideration of thefe will fall properly under that part of these commentaries which treats of the jurifdiction of courts. It will suffice at prefent to remark a few particulars relative to them all, which may ferve to inculcate more ftrongly the doctrine laid down. concerning them3.

1. AND, first, the courts of common law have the fuperintendency over thefe courts; to keep them within their jurifdictions, to determine wherein they exceed them, to restrain and prohibit fuch excefs, and (in cafe of contumacy) to punifh the officer who executes, and in fome cafes the judge who enforces, the sentence fo declared to be illegal.

2. THE common law has referved to itself the expofition of all fuch acts of parliament, as concern either the extent of these courts, or the matters depending before them. And therefore, if these courts either refufe 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 Weftminfter will grant prohibitions to reftrain and control them.

3. An appeal lies from all these courts to the king, in the laft refort; which proves that the jurifdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinfic authority of their own.— And, from these three ftrong marks and enfigns of fuperiority, it appears beyond a doubt, that the civil and canon laws, though admitted in fome cafes by custom in fome courts, are only fubordinate, and leges fub gravieri lege, and that, thus admitted, reftrained, altered, new-modelled, and amended, they are by no means with us a distinct independent fpecies of laws, but are inferior branches of the customary or unwritten laws of England, properly called the king's ecclefiaftical, the king's military, the king's maritime, or the king's academical, laws.

a Hale Hift. c. 2.

LET

LET us next proceed to the leges fcriptae, the written laws of the kingdom; which are ftatutes, acts, or edicts, made by the king's majesty, by and with the advice and confent of the lords spiritual and temporal and commons in parliament affembled. 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 loft, and the determinations of them perhaps at prefent currently received for the maxims of the old common law.

THE manner of making these statutes will be better confidered hereafter, when we examine the conftitution of parliaments. At present we will only take notice of the different kinds of ftatutes; and of fome general rules with regard to their conftruction".

FIRST, as to their feveral kinds. Statutes are either general or special, public or private. A general or public act is an univerfal rule, that regards the whole community: and of

b 8 Rep. 20.

ters, but inferior fections alfo; in imitation of all which we still call fome of our old ftatutes by their initial words, as the ftatute of quia emptores, and that of circumspecte agatis. But the most usual method of citing them, especially fince the time of Edward the fecond, is by naming the year of the king's reign in which the ftatute was made, together with the chapter, or particular act, according to it's numeral order, as, 9 Geo. II. c. 4. For all the acts of one feffion of parliament taken together make properly but one ftatute: and therefore when two feffions have been held in one year, we ufually mention ftat. 1. or 2. Thus the bill of rights is cited, as 1 W. & M. ft. 2. c. 2. fignifying that it is the fecond chapter or act, of the second statute, or the laws made in the fecond feffion of parliament, in the first year of king William and queen Mary.

The method of citing these acts of parliament is various. Many of our antient ftatutes are called after the name of the place where the parliament was held that made them; as the ftatutes of Merton and Marleberge, of Weftminfter, Glocefter, and Winchefter. Others are denominated entirely from their fubject; as the ftatutes of Wales and Ireland, the articuli cleri, and the praerogativa regis. Some are diftinguished by their initial words, a method of citing very antient being used by the Jews in denominating the books of the pentateuch; by the chriftian church in diftinguishing their hymns and divine offices; by the Romanists in defcribing their papal bulles; and in short by the whole body of antient civilians and canonifts, among whom this method of citation generally prevailed, not only with regard to chap

this the courts of law are bound to take notice judicially and ex officio; without the ftatute being particularly pleaded, or formally fet 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: fuch as the Romans entitled fenatus-decreta, in contradiftinction to the fenatus confulta, which regarded the whole community: and of these (which are not promulgated with the fame notoriety as the former) the judges are not bound to take notice, unless they be formally shewn and pleaded. Thus, to fhew the distinction, the statute 13 Eliz. c. 10. to prevent spiritual perfons from making leafes for longer terms than twenty-one years, or three lives, is a public act; it being a rule prescribed to the whole body of fpiritual perfons in the nation': but an act to enable the bishop of Chester to make a lease to A. B. for fixty years, is an exception to this rule; it concerns only the parties and the bishop's fucceffors; and is therefore a private act.

STATUTES also are either declaratory of the common law, or remedial of fome defects therein. Declaratory, where the old cuftom of the kingdom is almost fallen into disuse, or become difputable; in which cafe the parliament has thought proper, in perpetuum rei teftimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the ftatute of treafons, 25 Edw. III. cap. 2. doth not make any new species of treasons; but only, for the benefit of the fubject, declares and enumerates thofe feveral kinds of offence, which before were treafon at the common law. Remedial ftatutes are those which are made to fupply fuch defects, and abridge fuch fuperfluities, in the common law, as arife either from the general imperfection of all human laws, from change of time and circumftances, from the mistakes and unadvifed determinations of unlearned (or even learned) judges, or from any other caufe whatsoever. And this being done, either by enlarging the common law where it was too narrow and circumfcribed, or by

d Gravin. Orig. 1. §. 24.

reftraining

restraining it where it was too lax and luxuriant, hath occafioned another fubordinate divifion of remedial acts of parliament into enlarging and restraining ftatutes. To inftance again in the case of treafon. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law: so that this was an enlarging statute. At common law alfo fpiritual corporations might leafe out their eftates for any term of years, till prevented by the ftatute 13 Eliz. before-mentioned: this was therefore a restraining statute.

SECONDLY, the rules to be observed with regard to the conftruction of statutes are principally these which follow.

1. THERE are three points to be confidered in the conftruction of all remedial ftatutes; the old law, the mischief, and the remedy: that is, how the common law ftood at the making of the act; what the mifchief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mifchief. And it is the bufinefs of the judges fo to conftrue the act, as to fupprefs the mischief and advance the remedy. Let us inftance again in the fame restraining statute of 13 Eliz. c. 10. By the common law, ecclefiaftical corporations might let as long leases às they thought proper: the mifchief was, that they let long and unreasonable leafes, to the impoverishment of their fucceffors: the remedy applied by the ftatute was by making void all leases by ecclefiaftical bodies for longer terms than three lives or twenty-one years. Now in the conftruction of this ftatute it is held, that leafes, though for a longer term, if made by a bishop, are not void during the bishop's continuance in his fee; or, if made by a dean and chapter, they are not void during the continuance of the dean: for the act was made for the benefit and protection of the fuccefforf. The mischief is therefore fufficiently fuppreffed by vacating them after the determination of the intereft of the grantors; f Co. Litt. 45. 3 Rep. 60. 10 Rep. 58. F 4 but

R

3 Rep. 7.

Co. Litt. 11. 42.