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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 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 also by the province of York* in the seign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII, it was enacted in parliament that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and fynodals 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 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 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, curiae 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 parlia

* Burn's eccl. law, pref. viii.
y Statute 25 Hen. VIII, c.19; revived

and confirmed by : Eliz. c. 1.

z Stra. 1057.

F 2.

ment,

ment, ratifying those charters which confirm the customary law of the universities. The more minute confideration of these will fall 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 thema.

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 cafes the judge who enforces, the sentence so declared to be illegal.

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 thercfore, 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 Weftminster 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 liges fub graviori lege, and that, thus admitted, restrained, altered, new-modelled, 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 eccle. fiaftical, the king's military, the king's maritime, or the king's academical, laws.

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Let us next proceed to the leges fcriptae, the written laws of the kingdom; 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. 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 conlidered 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.

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

68 Rep. 20.

ters, but inferior sections also; in imi. The method of citing these acts of tation of all which we still call fome of parliament is various. Many of our an- our old statutes by their initial words, as tient statutes are called after the name of the statute of quia empeores, and that of the place where the parliament was circumfpecte agaris. But the most usual held that made them; as the statutes of method of citing them, especially since Merton and Marleberge, of Westmin- the time of Edward the second, is by fter, Glocefter, and Winchester. Others naming the year of the king's reign in are denominated entirely from their sube which the statute was made, together ject; as the statutes of Wales and Ire- with the chapter, or particular act, ac. land, the articuli cleri, and the praeroga. cording to it's numeral order, as, 9 Geo. rva regis. Some are diftinguished by II. C.4. For all the acts of one session their initial words, a method of citing of parliament taken together make provery antient: being used by the Jews in perly but one itatute : and therefore denominating the books of the penta- when two sessions have been held in one teuch; by the christian church in distin- year, we usually mention stat. 1. or 2. guishing their hymns and divine offices; Thus the bill of rights is cited, as i W. by the Romanists in describing their papal & M. ft. 2. c. 2. fignifying that it is the bulles; and in short by the whole body second chapter or act, of the second staof antient civilians and canonists, among tute, or the laws made in the second ferwhom this method of citation generally fion of parliament, in the first year of Prevailed, not only with regard to chap- king William and queen Mary. F 3

this 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 communityd: 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 fhew 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 fixty years, is an exception to this rule ; it concerns only the parties and the bishop's successors; and is therefore a private act.

STATUTES also are either declaratory of the common law, or remedidl of some defects therein. 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 teftimonium, 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 imperfiction of all human laws, from change of time and circum{tances, from the mistakes and unadvised determinations of ụnlcarned (or even learned) judges, or from any other cause whatsoever. And this being done, either by enlarging the common law where it was too narrow and circumscribed, or by

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restraining it where it was too lax and luxuriant, hath occafioned another subordinate division of remedial acts of parlia. ment into enlarging and restraining statutes. To instance again in the case of treason. 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 also fpiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. before-mentioned: this was therefore a restraining statute.

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

1. There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide ; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy. Let us instance again in the same restraining statute of 13 Eliz. C. 10. By the common law, ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their succeffors : the remedy applied by the Itatute was by making void all leases by ecclefiaftical bodies for longer terms than three lives or twenty-one years. Now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop's continuance in his see; 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 successorf. The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the grantors;

* 3 Rep. 7. Co. Litt. 11. 42.

Co. Litt. 45. 3 Rep. 60. 10 Rep. 58.

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