though the reason of it cannot be assigned, provided no good legal reason can be assigned against it.1

5thly, and lastly.

Customs must be consistent with each other; for two contradictory customs cannot have been established by common consent, but one must be void.

We come now to the third species of unwritten law which prevails in England; that is to say, the law which is followed in certain particular matters, and administered by special courts of a subordinate and confined jurisdiction. Under this head are included the civil law and the canon law. Those systems of jurisprudence form part, not of the written, but of the unwritten law in England; because they do not derive their authority here from the power by which they were originally promulgated, but from the English law, which has invested them with a restricted jurisdiction within this kingdom.2

The civil law, emphatically so called (for that expression sometimes designates all that is not criminal law), is the law of the Roman empire, comprised in the Corpus Juris Civilis, which is composed of Justinian's Institutes, his Digest or Pandects, his Code, and the Novella Constitutiones, which are the imperial laws enacted after the publication of the Code.

The Gregorian and Hermogenean Codes (compiled by

1 Thus, in the civil law, Julianus says, " Non omnium quæ a majoribus constituta sunt ratio reddi potest." Lib. xx. Pand. t. de leg. 2 Hale, Hist. of Com. Law, c. ii. p. 27. "All the strength that either the papal or imperial laws have obtained in this kingdom is only because they have been received and admitted either by the consent of parliament, and so are part of the statute-law of the kingdom, or else by immemorial usage and custom in some particular cases and courts, and no otherwise." ... And see Arthur Duck De Us. et Author. Jur. Civ. lib. ii. cap. 7. par. 3. per tot. See also on this subject Selden, Dissertatio ad Fletam.

two jurisconsults whose names they bear), the Code promulgated by the Emperor Theodosius, and the Constitutions of the emperors from the time of that prince to the reign of Justinian, included a great mass of imperial laws,1 which, by their frequent inconsistency with each other, and their multiplicity, increased by the numerous enactments of Justinian himself, rendered the administration of justice both embarrassed and slow.

That mass of Constitutions was arranged in twelve books by the celebrated Trebonian, with nine most eminent magistrates and lawyers, under the authority of a commission from the emperor Justinian. They not only compiled and classified the laws under separate heads, but expunged repetitions and superfluities, set aside the obsolete or abrogated laws, and by choice or amend

1 Terrasson, Hist. de la Jur. Rom. par. iii. § xi. &c. Gravina, Hist. c. xxxiv. It is as well to take the earliest opportunity of informing the reader of the mode of reference to the Corpus Juris Civilis. The most usual way of referring to the Pandects is thus: L. 1. ff. de just. et jur. : viz. Law first,-ff. signifying the Pandects or Digest,―title de justitia et jure. The number of the book is not referred to, because the heading of the title is found at once by reference to the table of rubrics. Sometimes the letters pand. or dig., or ПI., are used instead of the sign ff. English writers are apt to refer to the Pandects and Code by the number of the book, title, and law. When a paragraph of a law is cited, it is designated by the mark §, followed by its number; thus: L. 5. § 3. ff. de jurejur., signifies paragraph 3 of the law 5, in the title de jurejurando of the Pandects. The Code is cited similarly, only the letters cod. or c. are substituted for ff. pand., or II. The Institutes are cited by marking, first, the words commencing the paragraph, then the letters inst., and then the heading of the title. Thus, § Si adversus, inst. de nupt., signifies the paragraph beginning Si adversus, of the Institutes,― title de nuptiis. Sometimes the number of the paragraph is inserted; thus: § Si adversus, 12. inst. de nupt. English writers usually cite the Institutes by the number of the book, title, and paragraph. The first paragraph in each title is not numbered, and is designated by the letters pr.

ment purified the statute-law of the empire from inconsistencies.

The result of their labours was Justinian's first code, which he promulgated in the year 529, by a constitution directed to Menna, prefect of the prætorium, whereby he gave to it force of law, abrogating all constitutions not comprehended therein.

But the task of Justinian still remained incomplete. The great body of Roman jurisprudence was to be found in the works of the jurisconsulti, which, indeed, comprehended the whole science of equity.1

A commission was accordingly issued by the emperor, in the year 530, empowering Trebonian to choose among the learned professors of the law, as well as the magis trates and advocates of the supreme courts, a sufficient number of persons to consolidate the most valuable portions of the writings of the great jurisconsulti into one body or volume.

Trebonian and his seventeen colleagues completed in four years the enormous task, for which ten had been

1 Terrasson, Hist. p. iii. § xii. Præf. Dig. de Correp. Dig. Cod. Const. de Vet. Jur. Enucl. Gravin. de Orig. c. xxxii. Const. Tanta. Pothier, Præf. de Op. Justin. The Constitutions which precede the Pandects and Code are cited by their rubric or heading, or their first word: thus, Cod. Const. de vet. jur. enucl. signifies the code, constitution de veteri jure enucleando; and Const. Tanta designates the Constitution preceding the Pandects, and commencing with the words, Tanta circa nos, &c., viz. the constitution de confirmatione digestorum ad senatum et omnes populos. The reader will find, that though the English way of citing the Corpus Juris, mentioned in the preceding note, is the plainest, the old method is the best, because it conveys at once an idea of the subject to which the law cited relates. Thus D. 33. I. 14. conveys no distinct idea; but L. 14. ff. de ann. legat. shews at once that the law in question regards legacies of annuities. And reference to the table of rubrics speedily shews in what page the title de annuis legatis is to be found.

allotted by Justinian. They condensed into the fifty books of the Pandects the most valuable portions of two thousand volumes, consisting of three millions of verses; and arranged those select extracts, composed of a hundred and fifty thousand verses, according to the method of the celebrated perpetual edict, by which Salvius Julianus digested the prætorian edicts into one body, under the authority of the emperor Hadrian.

Such are Justinian's Pandects or Digest. One month before the publication of that great work, which received force of law in the year 533, the four books of Institutes drawn up by Trebonian, Dorotheus, and Theophilus, were published, with equal authority. They were framed on the Institutes of the great lawyers, Gajus or Cajus, Ulpian, and Marcian,' especially the former.2

The Institutes contain the elements of the jurisprudence comprised in the Pandects, arranged under the three heads of persons, things, and actions. That little book is the key to the whole civil law. In the constitution giving force of law to the Pandects, Justinian abrogates all law not contained in his Code, Pandects, and Institutes.3

He, however, soon found it necessary to break the symmetry of his body of laws, by publishing the fifty decisions, whereby as many important points, on which the ancient jurisconsulti differed in opinion, were decided by Justinian, under the advice of the eighteen commissioners.

The publication of these decisions, as well as the promulgation of several new constitutions, rendered a revision of the Code requisite.4 That task the emperor confided to the five commissioners, Trebonian, Doro

1 Gravin. c. xxxii. Terrasson, par. iii. § xiii.

2 Prooem. Instit. § vi.

4 Terrasson, par. iii. § xiv.

3 Const. Tanta, § xxiii. xxiv.

theus, Menna, Constantine, and Johannes, who expunged several constitutions, added the new laws, and distributed the fifty decisions among the twelve books of the Code.1

The legislative activity of Justinian was not exhausted by these labours. Numerous laws, under the name of Novella Constitutiones, were promulgated in the Greek language, translated into Latin by imperial authority, and published under the name of the Authentica. They were compiled under Justin the Second, by a professor of Constantinople, from whom that collection acquired the name of the Authentica of Julian.2

The doctrine of Hale and Blackstone, that the canon law has no force in this kingdom, except so far as it has been admitted by the municipal law of England, must be understood with certain qualifications.

Some things therein are of divine right, and therefore require no sanction from any human power to render them binding. Such are the three holy orders of bishops, priests, and deacons, and the functions essential to those orders. Such is the spiritual jurisdiction of the bishops.

Other things belong to the discipline and polity of the Church. Such are divers rites, ceremonies, and regulations, established by decrees of councils or synods, or handed down by tradition from the first ages of the Church.

The temporal law may refuse to sanction or enforce either of these two species of ordinances, whether of

Cod. Const. Cordi nobis.

* Gravin. c. xxxv. Pothier, Præf. de Op. Justin. § iv. Cod. Const. Cordi nobis, § v. The Authentica of Julian must not be confounded with the Authentics of the Code, which are extracts from the novels inserted therein, to shew the changes or additions which the novels made in the law of the Code. Terrasson, par. iii. § xiv. p. 347. The novels are cited by their number, chapter, and paragraph, and designated by the letters Nov.