Page:William Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol I).djvu/31

imperial law is much cultivated and it’s deciſions pretty generally followed, we are informed by Van Leeuwen^[1], that, “it receives it’s force from cuſtom and the conſent of the people, either tacitly or expreſſly given: for otherwiſe, he adds, we ſhould no more be bound by this law, than by that of the Almains, the Franks, the Saxons, the Goths, the Vandals, and other of the antient nations.” Wherefore, in all points in which the different ſyſtems depart from each other, the law of the land takes place of the law of Rome, whether antient or modern, imperial or pontificial. And in thoſe of our Engliſh courts wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themſelves to other matters, than are permitted to them; or if ſuch courts proceed according to the deciſions of thoſe laws, in caſes wherein it is controlled by the law of the land, the common law in either inſtance both may, and frequently does, prohibit and annul their proceedings^[2]: and it will not be a ſufficient excuſe for them to tell the king’s courts at Weſtminſter, that their practice is warranted by the laws of Juſtinian or Gregory, or is conformable to the decrees of the Rota or imperial chamber. For which reaſon it becomes highly neceſſary for every civilian and canoniſt that would act with ſafety as a judge, or with prudence and reputation as an advocate, to know in what caſes and how far the Engliſh laws have given ſanction to the Roman; in what points the latter are rejected; and where they are both ſo intermixed and blended together, as to form certain ſupplemental parts of the common law of England, diſtinguiſhed by the titles of the king’s maritime, the king’s military, and the king’s eccleſiaſtical law. The propriety of which enquiry the univerſity of Oxford has for more than a century ſo thoroughly ſeen, that in her ſtatutes^[3] ſhe appoints, that one of the three queſtions to be annually diſcuſſed at the act by the juriſt-inceptors ſhall relate to the common law; ſubjoining this reaſon, “quia juris civilis ſtudioſos decet haud imperitos eſſe juris municipalis, et differentias ex-

1. Dedicatio corporis juris civilis. Edit. 1663.
2. Hale. Hiſt. C. L. c. 2. Selden in Fletam. 5 Rep. Caudrey’s caſe. 2 Inſt. 599.
3. Tit. VII. Sect. 2. §. 2.

“teri