The History of the Common Law of England II. byHale, Matthew
Concerning the Lex non Scripta, i.e. The Common or
Municipal Laws of this Kingdom
In the former Chapter, I have given you a short Account of that Part of
the Laws of England which is called Lex Scripta, namely, Statutes or Acts of
Parliament, which in their original Formation are reduced into Writing, and are
so preserv'd in their Original Form, and in the same Stile and Words wherein
they were first made: I now come to that Part of our Laws called, Lex non
Scripta, under which I include not only General Customs, or the Common Law
properly so called, but even those more particular Laws and Customs applicable
to certain Courts and Persons, whereof more hereafter.
And when I call those Parts of our Laws Leges non Scriptae, I do not
mean as if all those Laws were only Oral, or communicated from the former Ages
to the later, merely by Word. For all those Laws have their several Monuments
in Writing, whereby they are transferr'd from one Age to another, and without
which they would soon lose all kind of Certainty: For as the Civil and Canon
Laws have their Responsa Prudentum Consilia & Decisions, i.e. their Canons,
Decrees, and Decretal Determinations extant in Writing; so those Laws of
England which are not comprised under the Title of Acts of Parliament, are for
the most part extant in Records of Pleas, Proceedings and Judgments, in Books
of Reports, and Judicial Decisions, in Tractates of Learned Men's Arguments and
Opinions, preserved from ancient Times, and still extant in Writing.
But I therefore stile those Parts of the Law, Leges non Scriptae,
because their Authoritative and Original Institutions are not set down in
Writing in that Manner, or with that Authority that Acts of Parliament are, but
they are grown into Use, and have acquired their binding Power and the Force of
Laws by a long and immemorial Usage, and by the Strength of Custom and
Reception in this Kingdom. The Matters indeed, and the Substance of those Laws,
are in Writing, but the formal and obliging Force and Power of them grows by
long Custom and Use, as will fully appear in the ensuing Discourse.
For the Municipal Laws of this Kingdom, which I thus call Leges non
Scriptae, are of a vast Extant, and indeed include in their Generality all
those several Laws which are allowed, as the Rule and Direction of Justice and
Judicial Proceedings, and which are applicable to all those various Subjects,
about which Justice is conversant. I shall, for more Order, and the better to
guide my Reader, distinguish them into Two Kinds, viz.
First, The Common Law, as it is taken in its proper and usual
Acceptation.
Secondly, Those particular Laws applicable to particular subjects,
Matters or Courts.
1. Touching the former, viz. The Common Law in its usual and proper
Acceptation. This is that Law by which Proceedings and Determinations in the
King's Ordinary Courts of Justice are directed and guided. This directs the
Course of Discents of Lands, and the Kinds; the Natures, and the Extents and
Qualifications of Estates; therein also the Manner, Forms, Ceremonies and
Solemnities of transferring Estates from one to another. The Rules of Settling,
Acquiring, and Transferring of Properties; The Forms, Solemnities and
Obligation of Contracts; The Rules and Directions for the Exposition of Wills,
Deeds and Acts of Parliament. The Process, Proceedings, Judgments and
Executions of the King's Ordinary Courts of Justice; The Limits, Bounds and
Extents of Courts, and their Jurisdictions. The several Kinds of Temporal
Offences, and Punishments at Common Law. and the Manner of the Application of
the several Kinds of Punishments, and infinite more Particulars which extend
themselves as large as the many Exigencies in the Distribution of the King's
Ordinary Justice requires.
And besides these more common and ordinary Matters to which the Common
Law extends, it likewise includes the Laws applicable to divers Matters of very
great Moment; and tho' by Reason of that Application, the said Common Law
assumes divers Denominations, yet they are but Branches and Parts of it; like
as the same Ocean, tho' it many times receives a different Name from the
Province, Shire, Island or Country to which it is contiguous, yet these are but
Parts of the same Ocean.
Thus the Common Law includes, Lex Prerogativa, as 'tis applied with
certain Rules to that great Business of the King's Prerogative; so 'tis called
Lex Forestae, as it is applied under its special and proper Rules to the
Business of Forests; so it is called Lex Mercatoria. as it is applied under its
proper Rules to the Business of Trade and Commerce; and many more instances of
like Nature may be given: Nay, the various and particular Customs of Cities,
Towns and Manors, are thus far Parts of the Common Law, as they are applicable
to those particular Places, which will appear from these Observations, viz.
First, The Common Law does determine what of those Customs are good and
reasonable, and what are unreasonable and void. Secondly, The Common Law gives
to those Customs, that it adjudges reasonable, the Force and Efficacy of their
Obligation. Thirdly, The Common Law determines what is that Continuance of Time
that is sufficient to make such a Custom. Fourthly, The Common Law does
interpose and authoritatively decide the Exposition, Limits and Extension of
such Customs.
This Common Law, though the Usage, Practice and Decisions of the King's
Courts of Justice may expound and evidence it, and be of great Use to
illustrate and explain it; yet it cannot be authoritatively altered or changed
but by Act of Parliament. But of this Common Law, and the Reason of its
Denomination, more at large hereafter.
Now, Secondly, As to those particular Laws I before mentioned, which are
applicable to particular Matters, Subjects or Courts: These make up the second
Branch of the Laws of England, which I include under the general Term of Leges
non Scriptae, and by those particular Laws I mean the Laws Ecclesiastical, and
the Civil Law, so far forth as they are admitted in certain Courts, and certain
Matters allow'd to the Decision of those Courts, whereof hereafter.
It is true, That those Civil and Ecclesiastical Laws are indeed Written
Laws; the Civil Law being contain'd in their Pandects, and the Institutions of
Justinian, &c. (their Imperial Constitutions or Codes answering to our
Leges Scriptae, or Statutes.) And the Canon or Ecclesiastical Laws contain'd
for the most part in the Canons and Constitutions of Councils and Popes,
collected in their Decretum Gratiani, and the Decretal Epistles of Popes, which
make up the Body of their Corpus Juris Canonici, together with huge Volumes of
Councils and Expositions, Decisions, and Tractates of learned Civilians and
Canonists, relating to both Laws; so that it may seem at first View very
improper to rank these under the Branch of Leges non Scriptae, or Unwritten
Laws.
But I have for the following Reason rang'd these Laws among the
Unwritten Laws of England, viz. because it is most plain, That neither the
Canon Law nor the Civil Law have any Obligation as Laws within this Kingdom,
upon any Account that the Popes or Emperors made those Laws, Canons, Rescripts
or Determinations, or because Justinian compiled their Corpus Juris Civilis,
and by his Edicts confirm'd and publish'd the same as authentical, or because
this or that Council or Pope made those or these Canons or Degrees, or because
Gratian, or Gregory, or Boniface, or Clement, did, as much as in them lie,
authenticate this or that Body of Canons or Constitutions; for the King of
England does not recognize any Foreign Authority as superior or equal to him in
this Kingdom, neither do any Laws of the Pope or Emperor, as they are such,
bind here: But 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 Laws of the
Kingdom, or else by immemorial Usage and Custom in some particular Cases and
Courts, and no otherwise; and therefore so far as such Laws are received and
allowed of here, so far they obtain and no farther; and the Authority and Force
they have here is not founded on, or derived from themselves; for so they bind
no more with us than our Laws bind in Rome or Italy. But their Authority is
founded merely on their being admitted and received by us, which alone gives
'em their Authoritative Essence, and qualifies their Obligation.
And hence it is, That even in those Courts where the Use of those Laws
is indulged according to that Reception which has been allowed 'em: If they
exceed the Bounds of that Reception, by extending themselves to other Matters
than has been allowed 'em; or if those Courts proceed according to that Law,
when it is controuled by the Common Law of the Kingdom: The Common Law does and
may prohibit and punish them; and it will not be a sufficient Answer, for them
to tell the King's Courts, that Justinian or Pope Gregory have decreed
otherwise. For we are not bound by their Decrees further, or otherwise than as
the Kingdom here has, as it were transposed the same into the Common and
Municipal Laws of the Realm, either by Admission of, or by Enacting the same,
which is that alone which can make 'em of any Force in England. I need not give
particular Instances herein; the Truth thereof is plain and evident, and we
need go no further than the Statutes of 24 H. 8. cap. 12. 25 H. 8. c. 19, 20,
21, and the learned Notes of Selden upon Fleta, and the Records there cited;
nor shall I spend much Time touching the Use of those Laws in the several
Courts of this Kingdom: But will only briefly mention some few Things
concerning them.
There are Three Courts of Note, wherein the Civil, and in one of them
the Canon or Ecclesiastical Law, has been with certain Restrictions allow'd in
this Kingdom, viz. 1st. The Courts Ecclesiastical, of the Bishops and their
derivative Officers. 2dly. The Admiralty Court. 3dly. The Curia Militaris, or
Court of the Constable and Marshal, or Persons commission'd to exercise that
Jurisdiction. I shall touch a little upon each of these.
First, The Ecclesiastical Courts, they are of two Kinds, viz. 1st. Such
as are derived immediately by the King's Commission; such was formerly the
Court of High Commission; which tho', without the help of an Act of Parliament,
it could not in Matters of Ecclesiastical Cognizance use any Temporal
Punishment or Censure, as Fine, Imprisoment, &c. Yet even by the Common
Law, the Kings of England, being delivered from Papal Usurpation, might grant a
Commission to hear and determine Ecclesiastical Causes and Offences, according
to the King's Ecclesiastical Laws, as Cawdry's Case, Cook's 5th Report. 2dly.
Such as are not derived by any immediate Commission from the King; but the Laws
of England have annexed to certain Offices, Ecclesiastical Jurisdiction, as
incident to such Offices: Thus every Bishop by his Election and Confirmation,
even before Consecration, had Ecclesiastical Jurisdiction annex'd to his
Office, as Judex Ordinarius within his Diocese; and diverse Abbots anciently,
and most Archdeacons at this Day, by Usage, have had the like Jurisdiction
within certain Limits and Precincts.
But altho' these are Judices Ordinarii, and have Ecclesiastical
Jurisdiction annex'd to their Ecclesiastical Offices, yet this Jurisdiction
Ecclesiastical in Foro Exteriori is derived from the Crown of England: For
there is no External Jurisdiction, whether Ecclesiastical or Civil, within this
Realm, but what is derived from the Crown: It is true, both anciently, and at
this Day, the process of Ecclesiastical Courts runs in the Name, and issues
under: the Seal of the Biship; and what Practice stands so at this Day by
Virtue of several Acts of Parliament, too long here to recount. But that is no
Impediment of their deriving their Jurisdictions from the Crown; for till 27 H.
8. cap. 24. The Process in Counties Palatine ran in the Name of the Counts
Palatine, yet no Man ever doubted, but that the Palatine Jurisdictions were
derived from the Crown.
Touching the Severance of the Bishop's Consistory from the Sheriff's
Court: See the Charter of King Will. I, and Mr Selden's Notes on Eadmerus.
Now the Matters of Ecclesiastical Jurisdiction are of Two Kinds,
Criminal and Civil.
The Criminal Proceedings extend to such Crimes, as by the Laws of this
Kingdom are of Ecclesiastical Cognizance; as Heresy, Fornication, Adultery, and
some others, wherein their Proceedings are, Pro Reformatione Morum, & Pro
Salute Animae; and the Reason why they have Conuzance of those and the like
offences, and not of others, as Murther, Theft, Burglary, &c. is not so
much from the Nature of the Offence (for surely the one is as much a Sin as the
other, and therefore, if their Cognizance were of Offences quatenus peccata
contra Deum, it would extend to all Sins whatsoever, it being against God's
Law). But the true Reason is, because the Law of the Land has indulged unto
that jurisdiction the Conuzance of some Crimes and not of others.
The Civil Causes committed to their Cognizance, wherein the Proceedings
are ad lnstantiam Partis, ordinarily are Matters of Tythes, Rights of
Institution and Induction to Ecclesiastical Benefices, Cases of Matrimony and
Divorces, and Testamentary Causes, and the Incidents thereunto, as Insinuation
or Probation of Testaments, Controversies touching the same, and of Legacies of
Goods and Moneys, &c.
Altho' de Jure Communi the Cognizance of Wills and Testaments does not
belong to the Ecclesiastical Court, but to the Temporal or Civil jurisdiction;
yet de Consuetudine Angliae Pertinet ad Judices Ecclesiasticos, as Linwood
himself agrees, Exercit. de Testamentis, cap. 4. in Glossa. So that it is the
Custom or Law of England that gives the Extent and Limits of their external
Jurisdiction in Foro Contentioso.
The Rule by which they proceed, is the Canon Law, but not in its full
Latitude, and only so far as it stands uncorrected, either by contrary Acts of
Parliament, or the Common Law and Custom of England; for there are divers
Canons made in ancient Times, and Decretals of the Popes that never were
admitted here in England, and particularly in relation to Tythes; many things
being by our Laws privileg'd from Tythes, which by the Canon Law are
chargeable, (as Timber, Oar, Coals, &c.) without a Special Custom
subjecting them thereunto.
Where the Canon Law, or the Stylius Curiae, is silent, the Civil Law is
taken as a Director, especially in Points of Exposition and Determination,
touching Wills and Legacies.
But Things that are of Temporal Cognizance only, cannot by Charter be
delivered over to Ecclesiastical jurisdiction, nor be judged according to the
Rules of the Canon or Civil Law, which is aliud Examen, and not competent to
the Nature of Things of Common Law Cognizance: And therefore, Mich. 8 H. 4.
Rot. 72. coram Rege. when the Chancellor of Oxford proceeded according to the
Rule of tle Civil Law in a Case of Debt, the judgment was reversed in B. R.
wherein the principal Error assigned was, because they proceeded Per Legem
Civilem iubi qiuilibet ligeus Domini Regis Regni sui Angliae in quibusciunque
Placitis & querelis infra hoc Regnum factis & emergentibus de Jure
tractari debt Per Communem Legem Angliae; and altho' King H. 8. 14 Anno Regni
sui, granted to the University a liberal Charter to proceed according to the
Use of the University, viz. By a Course much conform'd to the Civil Law; yet
that Charter had not been sufficient to have warranted such Proceedings without
the Help of an Act of Parliament: And therefore in 13 Eliz. an Act passed,
whereby that Charter was in Effect enacted; and 'tis thereby that at this Day
they have a kind of Civil Law Proceedure, even in Matters that are of
themselves of Common Law Cognizance, where either of the Parties to the Suit
are privileged.
The Coertion or Execution of the Sentence in Ecclesiastical Courts, is
only by Excommunication of the Person contumacious, and upon Signification
thereof into Chancery, a Writ de Excommunicatio capiendo issues, whereby the
Party is imprisoned till Obedience yielded to the Sentence. But besides this
Coertion, the Sentences of the Ecclesiastical Courts touching some Matters do
introduce a real Effect, without any other Execution; as a Divorce, a Vinculo
Matrimonii for the Causes of Consanguinity, Precontract, or Frigidity, do
induce a legal Dissolution of the Marriage; so a Sentence of Deprivation from
an Ecclesiastical Benefice, does by Virtue of the very Sentence, without any
other Coertion or Execution, introduce a full Determination of the Interest of
the Person deprived.
And thus much concerning the Ecclesiastical Courts, and the Use of the
Canon and Civil Law in them, as they are the Rule and Direction of Proceedings
therein.
Secondly, The second special Jurisdiction wherein the Civil Law is
allow'd, at least as a Director or Rule in some Cases, is the Admiral Court or
Jurisdiction. This jurisdiction is derived also from the Crown of England,
either immediately by Commission from the King, or mediately, which is several
Ways, either by Commission from the Lord High Admiral, whose Power and
Constitution is by the King, or by the Charters granted to particular
Corporations bordering upon the Sea, and by Commission from them, or by
Prescription, which nevertheless in Presumption of Law is derived at first from
the Crown by Charter not now extant.
The Admiral Jurisdiction is of Two Kinds, viz. Jurisdictio Voluntaria,
which is no other but the Power of the Lord High Admiral, as the King's General
at Sea over his Fleets; or Jurisdictio Contentiosa, which is that Power of
Jurisdiction which the Judge of the Admiralty has in Foro Contentioso; and what
I have to say is of this later Jurisdiction.
The Jurisdiction of the Admiral Court, as to the Matter of it, is
confined by the Laws of this Realm to Things done upon the High Sea only; as
Depredations and Piracies upon the High Sea; Offences of Masters and Mariners
upon the High Sea; Maritime Contracts made and to be executed upon the High
Sea; Matters of Prize and Reprizal upon the High Sea. But touching Contracts or
Things made within the Bodies of English Counties, or upon the Land beyond the
Sea, tho' the Execution thereof be in some Measure upon the High Sea, as
Charter Parties, or Contracts made even upon the High Sea, touching Things that
are not in their own Nature Maritime, as a Bond or Contract for the Payment of
Money, so also of Damages in Navigable Rivers, within the Bodies of Counties,
Things done upon the Shore at Low-Water, Wreck of the Sea, &c. These Things
belong not to the Admiral's Jurisdiction: And thus the Common Law, and the
Statutes of I 3 Rich. 2. cap. 15. 15 Rich. 2. cap. 3. confine and limit their
Jurisdiction to Matters Maritime, and such only as are done upon the High
Sea.
This Court is not bottom'd or founded upon the Authority of the Civil
Law, but hath both its Power and Jurisdiction by the Law and Custom of the
Realm, in such Matters as are proper for its Cognizance; and this appears by
their Process, viz. The Arrest of the Persons of the Defendants, as well as by
Attachment of their Goods; and likewise by those Customs and Laws Maritime,
whereby many of their Proceedings are directed, and which are not in many
Things conformable to the Rules of the Civil Law; such are those ancient Laws
of Oleron, and other Customs introduced by the Practice of the Sea, and Stile
of the Court.
Also, The Civil Law is allowed to be the Rule of their Proceedings, only
so far as the same is not contradicted by the Statute of this Kingdom, or by
those Maritime Laws and Customs, which in some Points have obtain'd in
Derogation of the Civil Law: But by the Statute 28 Hen. 8. cap. 15. all
Treasons, Murders, Felonies, done on the High Sea, or in any Haven, River,
Creek, Port or Place, where the Admirals have to pretend to have Jurisdiction,
are to be determined by the King's Commission, as if the Offences were done at
Land, according to the Course of the Common Law.
And thus much shall serve touching the Court of Admiralty, and the Use
of the Civil Law therein.
Thirdly, The Third Court, wherein the Civil Law has its Use in this
Kingdom, is the Military Court, held before the Constable and Marshal
anciently, as the Judiciis Ordinarii in this Case, or otherwise before the
King's Commissioners of that Jurisdiction, as Judices Delegati.
The Matter of their Jurisdiction is declared and limited by the Statutes
of 8 R. 2. cap. 5. and 13 R. 2. cap. 2. And not only by those Statutes, but
more by the very Common Law is their Jurisdiction declared and limited as
follows, viz.
First, Negatively. They are not to meddle with any Thing determinable by
the Common Law. And therefore, inasmuch as Matter of Damages, and the Quantity
and Determination thereof, is of that Conuzance; the Court of Constable and
Marshal cannot, even in such Suits as are proper for their Conuzance, give
Damages against the Party convicted before them, and at most can only order
Reparation in Point of Honour, as Mendacium sibi ipsi imponere: Neither can
they, as to the Point of Reparation, in Honour, hold Plea of any such Words or
Things, wherein the Party is relievable by the Courts of the Common Law.
Secondly, Affirmatively: Their Jurisdiction extends to Matters of Arms
and Matters of War, viz.
First, As to Matters of Arms (or Heraldry), the Constable and Marshal
had Conuzance thereof, viz. Touching the Rights of Coat-Armour, Bearings,
Crests, Supporters, Pennons, &c. And also touching the Rights of Place and
Precedence, in Cases where either Acts of Parliament or the King's Patent (he
being the Fountain of Honour) have not already determined it, for in such Cases
they have no Power to alter it. Those Things were anciently allowed to the
Conuzance of the Constable and Marshal, as having some Relation to Military
Affairs; but so restrain'd, that they were only to determine the Right, and
give Reparation to the Party injured in Point of Honour, but not to repair him
in Damages.
But, Secondly, As to Matters of War. The Constable and Marshal had a
double Power, viz.
1. A Ministerial Power, as they were Two great ordinary Officers,
anciently, in the King's Army; the Constable being in Effect the King's
General, and the Marshal was employed in marshalling the King's Army, and
keeping the List of the Officers and Soldiers therein; and his Certificate was
the Trial of those whose Attendance was requisite. Vide Littleton, section
102.
Again, 2. The Constable and Marshal had also a Judicial Power, or a
Court wherein several Matters were determinable: As 1st, Appeals of Death or
Murder committed beyond the Sea, according to the Course of the Civil Law.
2dly, The Rights of Prisoners taken in War. 3dly, The Offences and Miscarriages
of Soldiers contrary to the Laws and Rules of the Army: For always preparatory
to an actual War, the Kings of this Realm, by Advice of the Constable, (and
Marshal) were used to compose a Book of Rules and Orders for the due Order and
Discipline of their Officers and Soldiers, together with certain Penalties on
the Offenders; and this was called, Martial Law. We have extant in the Black
Book of the Admiralty, and elsewhere, several Exemplars of such Military Laws,
and especially that of the 9th of Rich. 2. composed by the King, with the
Advice of the Duke of Lancaster, and others.
But touching the Business of Martial Law, these Things are to be
observed, viz.
First, That in Truth and Reality it is not a Law, but something indulged
rather than allowed as a Law; the Necessity of Government, Order and Discipline
in an Army, is that only which can give those Laws a Countenance, Quod enim
Necessitas cogit desendi.
Secondly, This indulged Law was only to extend to Members of the Army,
or to those of the opposite Army, and never was so much indulged as intended to
be (executed or) exercised upon others; for others who were not listed under
the Army, had no Colour of Reason to be bound by Military Constitutions,
applicable only to the Army, whereof they were not Parts; but they were to be
order'd and govern' d according to the Laws to which they were subject, though
it were a Time of War.
Thirdly, That the Exercise of Martial Law, whereby any Person should
lose his Life or Member, or Liberty, may not be permitted in Time of Peace,
when the King's Courts are open for all Persons to receive Justice, according
to the Laws of the Land. This is in Substance declared by the Petition of
Right, 3 Car. I. whereby such Commissions and Martial Law were repealed, and
declared to be contrary to Law: And accordingly was that famous Case of Edmond
Earl of Kent; who being taken at Pomsret, 15 Ed. 2. the King and divers Lords
proceeded to give Sentence of Death against him, as in a kind of Military Court
by a Summary Proceeding; which Judgment was afterwards in 1 Ed. 3. revers'd in
Parliament: And the Reason of that Reversal serving to the Purpose in Hand, I
shall here insert it as entered in the Record, viz.
Quod cum quicunq; homo ligeus Domini Regis pro Seditionibus, &c.
tempore pacis captus & in quacunque Curia Domini Regis ductus fuerit de
ejusmodi Seditionibus & aliis Felonius sibi impositis per Legem &
Consuetudine Regni arrectari debet & Responsionem adduci, Et inde per
Communem Legem, antequam fuerit Morti adiudicand' (triari) &c. Unde cum
notorium sit & manifestum quod totum tempus quo impositum fuit eidem Comiti
propter Mala & Facionora fecisse, ad tempus in quo captus fuit & in quo
Morti adiudicatus fuit, fuit tempus Pacis maximae, Cum per totum tempus
praedictum & Cancellaria & aliae plac. Curiae Domini Regis aperte fuer'
in quibus cuilibet Lex Sebatur sicut Seri consuevit, Nec idem Dominus Rex
unquam tempore illo cum vexillis explicatis Equitabat, &c.
And accordingly the Judgment was revers'd; for Martial Law, which is
rather indulg'd than allow'd, and that only in Cases of Necessity, in Time of
open War, is not permitted in Time of Peace, when the ordinary Courts of
Justice are open.
In this Military Court, Court of Honour, or Court Martial, the Civil Law
has been used and allowed in such Things as belong to their Jurisdiction; as
the Rule or Direction of their Proceedings and Decisions, so far forth as the
same is not controuled by the Laws of this Kingdom, and those Customs and
Usages which have obtain'd in England, which even in Matters of Honour are in
some Points derogatory to the Civil Law. But this Court has been long disused
upon great Reasons.
And thus I have given a brief Prospect of these Courts and Matters,
wherein the Canon and Civil Law has been in some Measure allowed, as the Rule
or Direction of Proceedings or Decisions: But although in these Courts and
Matters the Laws of England, upon the Reasons and Account before expressed,
have admitted the Use and Rule of the Canon and Civil Law; yet even herein
also, the Common Law of England has retain'd those Signa Superioritatis, and
the Preference and Superintendence in relation to those Courts: Namely,
1st. As the Laws and Statutes of the Realm have prescribed to those
Courts their Bounds and Limits, so the Courts of Common Law have the
Superintendency over those Courts, to keep them within the Limits and Bounds of
their several Jurisdictions, and to judge and determine whether they have
exceeded those Bounds, or not; and in Case they do exceed their Bounds, the
Courts at Common Law issue their Prohibitions to restrain them, directed either
to the Judge or Party, or both: And also, in case they exceed their
Jurisdiction, the Officer that executes the Sentence, and in some Cases the
Judge that gives it, are punishable in the Courts at Common Law; sometimes at
the Suit of the King, sometimes at the Suit of the Party, and sometimes at the
Suit of both, according to the Variety and Circumstances of the Case.
2dly. The Common Law, and the Judges of the Courts of Common Law, have
the Exposition of such Statutes or Acts of Parliament as concern either the
Extent of the Jurisdiction of those Courts (whether Ecclesiastical, Maritime or
Military) or the Matters depending before them; and therefore, if those Courts
either refuse to allow these Acts of Parliament, or expound them in any other
Sense than is truly and properly the Exposition of them, the King's Great
Courts of the Common Law (who next under the King and his Parliament have the
Exposition of those Laws) may prohibit and controul them.
And thus much touching those Courts wherein the Civil and Canon Laws are
allowed as Rules and Directions under the Restrictions above-mentioned:
Touching which, the Sum of the Whole is this:
First, That the Jurisdiction exercised in those Courts is derived from
the Crown of England, and that the last Devolution is to the King, by Way of
Appeal.
Secondly, That although the Canon or Civil Law be respectively allowed
as the Direction or Rule of their Proceedings, yet that is not as if either of
those Laws had any original Obligation in England, either as they are the Laws
of Emperors, Popes, or General Councils, but only by Virtue of their Admission
here, which is evident; for that those Canons or Imperial Constitutions which
have not been receiv'd here do not bind; and also, for that by several contrary
Customs and Stiles used here many of those Civil and Canon Laws are controuled
and derogated.
Thirdly, That although those Laws are admitted in some Cases in those
Courts, yet they are but Leges sub graviori Lege; and the Common Laws of this
Kingdom have ever obtain'd and retain'd the Superintendency over them, and
those Signa Superioritatis before-mentioned, for the Honour of the King and the
Common Laws of England.
