England, yet the English law in the time of Bracton and the earliest writers was largely made up of extracts and adaptations from the summaries of that law then current among learned men in all countries.1 Though Coke and others resolutely maintained, that the English common law was indigenous, this view is opposed to the common knowledge and habits of international intercourse which prevailed in the twelfth, thirteenth, and fourteenth centuries.2 England partook of the common heritage of the age. Yet in modern times even Bracton's authority is not conclusive evidence of what was the ancient law of England, unless it further appears from subsequent writers or reports, that the courts had acted upon it. Thus in the case as to the right of the public to go along the banks of navigable rivers and use them as towing_paths, though Bracton, using the same language as the Roman law, said the right existed, and Holt, Č. J., in a dictum approved of it, yet the court on second thoughts and fuller consideration found that the rule was nowhere referred to or acted on in subsequent times, and rejected the claim altogether. And for a like reason, in the memorable case in 1821 where the public claimed a right to pass over any private part of the sea-shore to get at the sea for purposes of bathing, and the dicta of Bracton and the Roman law were relied on for the public right, the court held that there was no evidence that such a rule had ever been adopted in this country, that it was in conflict with other admitted rules, and the public claim was accordingly rejected. The Roman law was, however, followed in the solution of novel and perplexing questions which have arisen in our courts as to the mutual rights of owners of lands through

twentieth part of the Roman law survives, and of that not onetenth can now be of any utility.-2 Hallam, Lit. H. 172.

THIBAUT.-The Romans cannot be said to have done much towards systematising law.-Thibaut's Syst. d. Pandek. part i. ch. i.

GIBBON says "the public reason of the Romans has been silently or studiously transfused into the domestic institutions of Europe. It has exhausted many learned lives, and clothed the walls of spacious libraries."-Decl. Rom. Emp. ch. xliv. And Milman says the Roman mind had a genius for law.—2 Milman, Lat. Christ. 11.

1 See Guterbock's Bracton, by B. Coxe. Tiraboschi, Hist. Lit.

♦ Blundell v Catterall, 5 B. & Ald. 304.

3 Rall v Herbert, 3 T.R. 253.

which underground water flows;1 as to easements: 2 as to alluvium of the sea: 3 and as to bailments. And the principle of the civil law was adopted and acted on, that when the performance of a contract depends on the continued existence of a thing or person, the perishing of such person or thing excuses the contractor from performance.5

The canon law. Another species of law, which is to some extent more closely connected with the law of England than the civil law, is the canon law, or that body of Roman ecclesiastical law which had grown up in the middle ages. This law is a digest of the opinions of Latin fathers, the decrees of general councils and the decretal epistles and bulls of the holy see. It borrowed many of its principles and rules of proceeding from the Roman law. It was collected by Ivo in 1114, and afterwards methodised by an Italian monk named Gratian, about the year 1151, and hence generally called the Decretum Gratiani. Collections of later decrees were published under Pope Gregory IX. and Boniface VIII., Clement V. and John XXII. All these form a body of law called the Corpus Juris Canonici. Besides these, there were laws of a like kind local to England. Certain legatine constitutions were enacted in national synods, held under the Cardinals Otho and Othobon, legates from the Popes in the reign of Henry III., about the years 1220 and 1268. Certain provincial constitutions were also enacted in provincial synods, held under the Archbishops of Canterbury between the reigns of Henry III. and Henry V., and adopted in the province of York in the reign of Henry VI.6

At the time of the Reformation Parliament contemplated that a review of the canon law should be made, and enacted that until such review all canons, constitutions, ordinances, and synodals provincial, then already made and not repugnant to the law of the land or the king's prerogative,

Acton Blundell, 12 M. & W. 324; Chasemore v Richards, 7 H. L. C. 387.

2 Smith v Kenrick, 7 C. B. 565; Baird v Williamson, 15 C. B., N.S. 376; Humphries v Brogden, 12 Q. B. 239; Rowbotham v Wilson, 8 H. L. C. 348.

3 Gifford v Yarborough, 5 Bing. 163. Raym. 909.

L. R. 2 C.P. 661.

4 Coggs v Bernard, 2 L.

Taylor Caldwell, 3 B. & S. 826; Appleby v Meyers,

61 Bl. Com. 82.

should be still used and executed.1 This statute has often been supposed to have introduced to England to some extent the canon law as it then existed, and as the contemplated review has never taken place, the authority of such laws as existed before that date has been treated as continuing. There were canons enacted by the clergy under James I. in 1603, which were never confirmed by parliament, though approved by the king, and as to these Holt, C. J., and L. Hardwicke thought that, though binding on the clergy, they are not binding on the laity. The provincial constitutions, however, collected by Lyndewode have always been recognised by the ecclesiastical and also the common law courts as having authority, where they relate to the general usages of the Church.3

The usage which has prevailed under the joint operation of the statutes and of the provincial constitutions, founde as these were on the general common law, has long been appealed to as a part of the law of England, in questions that have from time to time been raised with reference to matters of ecclesiastical law. Hence it is not unusual to speak of this as the ecclesiastical common law.* And while our courts have often repudiated the authority of the canon law so far as it is a system emanating from the Pope, yet that modification of it which has prevailed in these provincial constitutions has been as expressly recognised. Hale observed, that it was only by an act of the supreme civil power of this country, that any authority could be given to the law prevailing in other parts of the world; and by no other authority could the canon law of Europe come to be part of the law of England."

1 25 Hen. VIII. c. 19, revived by 1 Eliz. c. 1.

5

2 Crofts v Middleton, 2 Atk 650, 2 Str. 1056; R. v Bp. Lichfield, 2 W. Bl. 968; Bp. Exeter v Marshall, L. R. 3 H. L. 17.

3 Martin Maconochie, L. R. 2 Adm. & Ecc. 116, 153. Per Whitelock, Evans v Owen, Godbolt, 432.

5 Per Tindal, C. J., and Abinger, C. B., R. v Millis, 10 Cl. & F. 678, 745; Wilson v McMath, 3 Phillim. 67, 78; Sandars v Head, 3 Curt. 565, 583; Martin v Maconochie, L. R. 2 Adm. & Eccl. 195.

6 HALE, C. J., quoted, Middleton v Crofts, 2 Atk. 669; R. v Millis, 10 Cl. & F. 578.

"The superiority of the ecclesiastical to the temporal, or at least the absolute independence of the former, may be said to be the keyVOL. I.

K

All that part of the law of England which has grown out of the canon law, may now be said to belong to that division of the law entituled "the Security of Public Worship." It is true that the subject of wills and marriages had long been appropriated by the ecclesiastics as their own peculiar domain, but their influence has now been wholly eliminated from these branches of the law, and their administration entrusted to the ordinary courts, as will be explained under the division of the law entituled "Judicature."

In

Distinction of common and statute law. The general nature of all laws being this, that they are the restrictions imposed on the conduct of individuals in a great variety of situations, it is a natural question thence arising, How the courts of justice arrive at a knowledge of what the law is, out of what sources, in what quarters they inquire for it, and what is the form in which it is found? such an inquiry the first thought is, that as there is now a legislature existing, and which is presumed to exist for the sole purpose of altering the preceding law, and creating new laws, so we must assume that there has always been a legislature either in its present form or in a more rudimentary form, but still endowed with substantially the same powers, and standing in the same relation to the changing wants of society.

When the legislature in the present day declares a new law, it does so in the form of a statute, and we can trace a series of such statutes extending back for some centuries. Many of these are deemed the old statutes, before the reign of Edward III., and the new, or later, statutes after that date; one of the older statutes is that which is generally known as Magna Charta, a charter which was granted, as Hale observes, "in a parliamentary way." The old statutes have, indeed, been called by Hale part of the common law. But the series of statutes from Edward III., which is an orderly series, down to the present time, discloses a large and fruitful source of the laws, for the theory is, that a statute, however ancient, remains in full operation and effect until it is altered by some other statute of a subsequent date. This doctrine, according to note which regulates every passage in the canon law."-2 Hallam, Mid. Ag. 204.

Hale, applies at least to all the statutes made subsequent to the accession of Edward III., there being previous to that epoch some uncertainty as to what the constituent elements of a statute then were.

But this long series of statutes, voluminous and detailed though it be, does not account for the whole of the laws under which we live, for there are numerous principles, rules, and maxims, which are found in force at a period antecedent to all existing statutes, and the origin of which cannot easily be traced or accounted for; and yet their influence penetrates all the operations of daily life. This large body of law, which is distinct from the statute law, is called the common law, and where the laws of England are spoken of generally, they mean the sum of these two divisions, which are the complement of each other, neither of them being complete without the other.

Written and unwritten law.-This great division of the law into common law and statute law is sometimes used as synonymous with the division into the unwritten and the written law, because statutes have been, as a matter of course, committed to writing, and latterly to print, and published as the declarations of the legislature addressed to the public at large: while, on the other hand, the common law was not to be found recorded in any systematic code or book, but so far as not embodied in the oldest statutes, has been handed down as a tradition from generation to generation in the form of maxims or customs. And yet, though the common law is in its origin nothing but oral tradition, it is searched for with greatest success in certain well-known repositories, which are printed and published, namely, the decisions of courts of justice, and treatises of great antiquity, as well as in general reasoning upon principles recognised in those two collections.

Origin of the common law. But though the statute law speaks at once to the reason with commanding effect, being the declaration of the sovereign authority of the state, and binding upon all the subjects of the realm, much curious speculation has been spent on the inquiry how the common law came also to be equally binding and of still greater authority at an earlier period-from what source it. sprung, and by what combination of circumstances it has