LAW. 
j T. R. 466. And, moreover, all fpecial cuftoms muft 
firbmit to the king’s prerogative. Therefore, if the king 
purchafes lands of the nature of gavelkind, where all the 
ions inherit equally; yet, upon the king’s denaife, his el- 
deft fon fhall fucceed to thofe lands alone. And thus 
much for the fecond part of the leges non fcripta, or thofe 
particular cuftoms which affett particular perfons or difi- 
trifts only. 
III. The third branch of them are thofe peculiar laws 
which by cuftom are adopted and ufed only in certain pe¬ 
culiar courts and jurifdi&ions. And by thefe are under- 
ftood the civil and canon laws. 
It may feem a little improper, at firft view, to rank thefe 
laws under the head of leges non J'cripUe, or unwritten laws, 
feeing they are fet forth by authority in their pandefts, 
their codes, and their inftitutions ; their councils, de¬ 
crees, and decretals ; and enforced by an immenfe num¬ 
ber of expofitions, decilions, and treatifes of the learned 
in both branches of the law. But this is done after the 
example of fir Matthew Hale, becaufe it is moft 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 their own intrinfic authority; which is the 
cafe of our written laws, or afts of parliament. They 
bind not the fubje&s of England becaufe their materials 
were collected from popes or emperors, were digefted by 
Juftinian, or declared to be authentic by Gregory : thefe 
confiderations give them no authority here; for the legif- 
lature 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 meanelt 
of its fubjefts. But all the ftrenglh that either the papal 
or imperial laws have obtained in this realm (or indeed in 
any other kingdom in Europe) is only becaufe they have 
been admitted and received by immemorial ufage and cuf¬ 
tom in fome particular cafes, and fome particular courts; 
and then they form a branch of the leges non fcriptce, or 
cuftomary law ; or elfe, becaufe they are in fome other 
cafes introduced by confent of parliament, and then they 
owe their validity to the leges fcriptee, or ftatute-law. This 
is exprefsly declared in thofe remarkable words of the fta- 
tute 25 Hen. VIII. c. 21. addreffed to the king’s majefty: 
“This your grace’s realm, recognizing no fuperior under 
God but only your grace, hath been and is free from fub- 
jeffion to any man’s laws, but only to fuch as have been 
devifed, made, and ordained, within this realm, for the 
wealth of the fame; or to fuch other as, by fufferance of 
your grace and your progenitors, the people of this your 
realm have taken at their free liberty, by their own con¬ 
fent, to be ufed among them ; and have bound themfelves 
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 cuftomed and ancient 
laws of this realm, originally eftablifhed as laws of the 
fame, by the faid fufferance, confents, and cuftom ; and 
none otherwife.” 
The hiftory of the Roman law, and of the various de¬ 
grees of favour with which it has been received in dif¬ 
ferent countries, is a curious and entertaining fubject. 
In England, its introduction was attempted by the bi- 
Ihops and clergy, and was refitted by the nobility and 
laity, who never relinquifhed their attachment to the 
common law. When the ecclefiaftics withdrew themfelves 
from the temporal courts in this country, in confequence 
of their averfion to the municipal law, which they were 
unable to fuperfede by the civil and canon law, they in¬ 
troduced the laws of ancient and modern Rome into the 
fpiritual courts of all denominations ; in which, as well 
as in the high courts of Chancery, and in the courts of 
the two univerfities, the proceedings are, even now, con¬ 
formable to the courfe of the civil law. Though it does 
not poflels the force of authority in the courts of Weft- 
minlter-hall, it is frequently followed, when an exprefs 
rule of the common law is wanting; and, when both 
371 
laws concur, fupport and explanation have been received 
from the words of the civil law. Similar, in a great mea- 
fure, are the nature and extent of its incorporation into 
the Scorch code. But we muft fpeak of the two branches 
feparately. 
1. By the civil law, abfolutely taken, is generally under- 
ftood the civil or municipal law of the Roman empire, as 
comprifed in the Inftitutes, the Code, and the Digeft, 
of the emperor Juftinian, and the Novel Conftitutions of 
himfelf and fome of his fucceffors ; of which we have 
given a general account at p. 363-365. This fyftem, fuch 
as we have defcribed it, foon fell into negleft and oblivion, 
till about the year 1130, when a copy of the Digelts 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 occafioned that mighty inunda¬ 
tion of voluminous comments, with which this fyftem 
of law, more than an}' other, is now loaded, and which, 
from their rapid increafe, promife, at no diftant period, to 
acquire a bulk equal to that mafs of legal learning, from 
which Tribonian and his affociates compiled the Inftitutes, 
the Digeft, and the Code. Spence's EJfay, iii. 
2. The canon-law is a body of Roman ecclefiaftical law, 
relative to fuch matters as that church either has, or pre¬ 
tends to have, the proper jurifdiftion over. This is com¬ 
piled from the opinions of the ancient Latin fathers, the 
decrees of general councils, the decretal epiftles and bulls 
of the holy fee. All which lay in the fame diforder and 
confufion as the Roman civil law ; till, about the year 
ii5i,one Gratian, an Italian monk, animated by the dif- 
covery of Juftinian’s Pandects, reduced the Ecclefiaftical 
Conftitutions alfo into fome method, in three books; 
which he entitled Concordia difcordantium Canonurn, but 
which are generally known by the name of Decretum Gra- 
tiani. Thefe reached as low as the time of pope Alex¬ 
ander III. The fubfequent papal decrees, to the ponti¬ 
ficate 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 Sextus Decretalium. The Clemen¬ 
tine Conftitutions, or Decrees of Clement V. were in like 
manner authenticated in 1317 by his fucceffor John XXII. 
who alfo publifhed twenty conftitutions of his own, called 
Extravagantes Joannis ; all which in fome meafure anfwer 
to the Novels of the civil law. To thefe have been flnce 
added fome decrees of latter popes, in five books, called 
Extravagantes Communes. And all thefe together, Gratian’s 
Decree, Gregory’s Decretals, the Sixth Decretal, the Cle¬ 
mentine Conftitutions, and the Extravagants of John and 
his fucceffors, form the corpus juris canonici, or body of the 
Roman canon law. 
Befides thefe pontifical colleftions, which during the 
times of popery were received as authentic in this illand, 
as well as in other parts of Chriftendom, there is alfo a 
kind of national canon-law, compofed of legatine and 
provincial conftitutions, and adapted only to the exigen¬ 
cies of this church and kingdom. The Legatine Confti¬ 
tutions were ecclefiaftical laws, enabled in national fy- 
nods, 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 12*10 and 1268. 
The Provincial Conftitutions are principally the decrees 
of provincial fynods, held under divers archbiffiops 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 tire reign 
of Henry VIII. it was enacted in parliament, that a review 
Ihould be had of the canon-law ; and, till fuch review 
ftiould 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 preroga¬ 
tive, Ihould ftill be ufed .and executed. And, as no fuch 
review % 
