The Laws of England may aptly enough be divided into two Kinds, viz. Lex Scripta, the written Law: and Lex non Scripta, the unwritten Law: For although (as shall be shewn hereafter) all the Laws of this Kingdom have some Monuments or Memorials thereof in Writing, yet all of them have not their Original in Writing; for some of those Laws have obtain'd their Force by immemorial Usage or Custom, and such Laws are properly call'd Leges non Scriptae, or unwritten Laws or Customs.
Those Laws therefore, that I call Leges Scriptae, or written Laws, are such as are usually called Statute Laws, or Acts of Parliament, which are originally reduced into Writing before they are enacted, or receive any binding Power, every such Law being in the first Instance formally drawn up in Writing, and made, as it were, a Tripartite lndenture, between the King, the Lords and the Commons; for without the concurrent Consent of all those Three Parts of the Legislature, no such Law is, or can be made: But the Kings of this Realm, with the Advice and Consent of both Houses of Parliament, have Power to make New Laws, or to alter, repeal, or enforce the Old. And this has been done in all
Succession of Ages. Now, Statute Laws, or Acts of Parliament, are of Two Kinds, viz. First, Those Statutes which were made before Time of Memory; and, Secondly, Those Statutes which were made within or since Time of Memory; wherein observe, That according to a juridical Account and legal Signification, Time within Memory is the Time of Limitation in a Writ of Right; which by the Statute of
Westminster 1. cap. 38. was settled, and reduced to the Beginning of the Reign of King Richard I or Ex prima Coronatione Regis Richardi Primi, who began his Reign the 6th of July 1189, and was crown'd the 3d of September following: So that whatsoever was before that Time, is before Time of Memory; and what is since that Time, is, in a legal Sense, said to be within or since the Time of Memory.
And therefore it is, that those Statutes or Acts of Parliament that were made before the Beginning of the Reign of King Richard I and have not since been repealed or altered, either by contrary Usage, or by subsequent Acts of Parliament, are now accounted Part of the Lex non Scripta, being as it were incorporated thereinto, and become a Part of the Common Law; and in Truth, such Statutes are not now pleadable as Acts of
Parliament, (because what is before Time of Memory is supposed without a Beginning, or at least such a Beginning as the Law takes Notice of) but they obtain their Strength by meer immemorial Usage or Custom. And doubtless, many of those Things that now obtain as Common Law, had their Original by Parliamentary Acts or Constitutions, made in Writing by the King, Lords and Commons; though those Acts are now either not extant, or if extant, were made before Time of Memory; and the Evidence of the Truth hereof will easily appear, for that in many of those old Acts of Parliament that were made before Time of Memory, and are yet extant, we many find many of those
Laws enacted which now obtain merely as Common Law, or the General Custom of the Realm: And were the rest of those Laws extant, probably the Footsteps of the Original Institution of many more Laws that now obtain meerly as Common Law, or Customary Laws, by immemorial Usage, would appear to have been at first Statute Laws, or Acts of Parliament.
Those ancient Acts of Parliament which are ranged under the Head of Leges non Scriptae, or Customary Laws, as being made before Time of Memory, are to be considered under Two Periods: Viz. First, Such as were made before the coming in of King
William I commonly called, The Conqueror; or, Secondly, Such as intervened between his coming in, and the Beginning of the Reign of Richard I which is the legal Limitation of Time of Memory. The former Sort of these Laws are mentioned by our ancient Historians, especially by Brompton, and are now collected into one Volume by William Lambard, Esq; in his Tractatus de priscis Anglorum Legibus, being a Collection of the Laws of the Kings, Ina, Alfred, Edward, Athelstane, Edmond, Edgar, Ethelred,
Canutus, and of Edward te Confessor; which last Body of Laws, compiled by Edward the Confessor, as they were more full and perfect than the rest, and better accommodated to the then State of Things, so they were such whereof the English were always very zealous, as being the great Rule and Standard of their Rights and Liberties: Whereof more hereafter.
The second Sort are those Edicts, Acts of Parliament, or Laws, that were made after the coming in of King William, commonly named, The Conqueror, and before the beginning of the Reign of King Richard I and more especially are those which follow; whereof I shall make but a brief Remembrance here, because it will be necessary in the Sequel of this Discourse (it may be more than once) to resume the Mention of them; and besides, Mr Selden, in his Book called, Janus Anglorum, has given a full Account of those Laws; so that at present it will be sufficient for me, briefly to collect the Heads or Divisions of them, under the Reigns of those several Kings wherein they were made, viz.
First, The Laws of King William I. These consisted in a great Measure of the Repetition of the Laws of King Edward the Confessor, and of the enforcing them by his own Authority, and the Assent of Parliament, at the Request of the English; and some new Laws were added by himself with the like Assent of Parliament, relating to Military Tenures, and the Preservation of the publick Peace of the Kingdom; all which are mention'd by Mr Lambert, in the Tractate before-mentioned, but more fully by Mr Selden, in his Collections and Observations upon Eadmerus.
Secondly, We find little of new Laws after this, till the Time of King Henry I, who besides the Confirmation of the Laws of the Confessor, and of King William I brought in a new Volume of Laws, which to this Day are extant, and called the Laws of King Henry I. The entire Collection of these is entered in the Red Book of the Exchequer, and from thence are transcribed and
published by the Care of Sir Roger Twisden, in the latter End of Mr Lambart's Book before-mention'd; what the Success of those Laws were in the Time of King Steven, and King Henry 2 we shall see hereafter: But they did not much obtain in England, and are now for the most Part become wholly obsolete, and in Effect quite antiquated.
Thirdly, The next considerable Body of Acts of Parliament, were those made under the Reign of King Henry 2 commonly called, The Constitiutions of Clarendon; what they were, appears best in Hoveden and Mat. Paris, under the years of that King. We have little Memory else of any considerable Laws enacted in this
King's Time, except his Assizes, and such Laws as related to the Forests; which were afterwards improv'd under the Reign of King Richard I. But of this hereafter, more at large. And this shall serve for a short Instance of those Statutes, or Acts of Parliament, that were made before Time of Memnory; whereof, as we have no Authentical Records, but only Transcripts, either in our ancient Historians, or other Books and Manuscripts; so they being Things done before Time of Memory, obtain at this Day no further than as by Usage and Custom they are, as it were, engrafted into the Body of the Common Law, and made a Part thereof.
And now I come to those Leges Scriptae, or Acts of Parliament, which were made since or within the Time of Memory, viz. Since the Beginning of the Reign of Richard I and those I shall divide into Two General Heads, viz. Those we usually call the Old Statutes, and those we usually call the New or later Statutes: And because I would prefix some certain Time or
Boundary between them, I shall call those the Old Statutes which end with the Reign of King Edward 2 and those I shall call the New or later Statutes which begin with the Reign of King Edward 3 and so are derived through a Succession of Kings and Queens down to this Day, by a continued and orderly Series.
Touching these later Sort I shall say nothing, for they all keep an orderly and regular Series of Time, and are extant upon Record, either in the Parliament Rolls, or in the Statute Rolls of King Edward 3 and those Kings that follow: For excepting some few years in the Beginning of K. Edward 3. i.e. 2, 3, 7, 8 & 9 Edw. 3. all the Parliament Rolls that ever were since that Time have been preserved, and are extant; and, for the most Part, the Petitions upon which the Acts were drawn up, or the very Acts themselves.
Now therefore touching the elder Acts of Parliament, viz. Those that were made between the First Year of the Reign of K. Richard I and the last year of K. Edward 2 we have little extant in any authentical History; and nothing in any authentical Record touching Acts made in the Time of K. Rich. I unless we take in those Constitutions and Assizes mentioned by Hoveden as
aforesaid. Neither is there any great Evidence, what Acts of Parliament pass'd in the Time of King John, tho' doubtless many there were both in his Time, and in the Time of K. Rich. I. But there is no Record extant of them, and the English Histories of those Times give us but little Account of those Laws; only Matthew Paris gives us an Historical Account of the Magna Charta, and Charta de Foresta, granted by King John at Running Mead the 15th of June, in the Seventeenth Year of his Reign.
And it seems, that the Concession of these Charters was in a Parliamentary Way; you may see the Transcripts of both Charters verbatim in Mat. Paris, and in the Red Book of the Exchequer. There were seven Pair of these Charters sent to some of the Great Monasteries under the Seal of King John, one Part whereof sent to the Abby of Tewkesbury I have seen under the Seal of that King; the Substance thereof differs something from the Magna Charta, and Charta de Foresta, granted by King Henry 3 but not very much, as may appear by comparing them.
But tho' these Charters of King John seem to have been passed in a kind of Parliament, yet it was in a Time of great Confusion between that King and his Nobles; and therefore they obtained not a full Settlement till the Time of King Henry 3 when the
Substance of them was enacted by a full and solemn Parliament. I therefore come down to the Times of those succeeding Kings, Henry 3. Edw. I. and Edw. 2. and the Statutes made in the Times of those Kings, I call the Old Statutes; partly because many of them were made but in Affirmance of the Common Law; and partly because the rest of them, that made a Change in the Common Law, are yet so ancient, that they now seem to have been as it were a Part of the Common Law, especially considering the many
Expositions that have been made of them in the several Successions of Times, whereby as they became the great Subject of Judicial Resolutions and Decisions; so those Expositions and Decisions, together also with those old Statutes themselves, are as it were incorporated into the very Common Law, and become a Part of it.
In the Times of those three Kings last mentioned, as likewise in the Times of their Predecessors, there were doubtless many more Acts of Parliament made than are now extant of Record, or otherwise, which might be a Means of the Change of the Common Law in the Times of those Kings from what it was before, tho' all the Records of Memorials of those Acts of Parliament introducing such a Change, are not at this Day extant: But of those that are
extant, I shall give you a brief Account, not intending a large or accurate Treatise touching that matter. The Reign of Henry 3 was a troublesome Time, in respect of the Differences between him and his Barons, which were not composed till his 51st year, after the Battle of Evesham. In his Time there were many Parliaments, but we have only one Summons of Parliament extant of Record in his Reign, viz. 49 Henry 3. and we have but few of those many Acts of Parliament that passed in his Time, viz. The great Charter, and Charta de Foresta, in the Ninth year of his Reign, which were doubtless pass'd in Parliament; the Statute of Merton, in the 20th year of his Reign; the Statute of Marlbridge, in the 52d year. and the Dictum sive Edictum de
Kenelworth, about the same Time; and some few other old Acts. In the Time of K. Edw. I. there are many more Acts of Parliament extant than in the Time of K. Henry 3. Yet doubtless, in this King's Time, there were many more Statutes made than are now extant: Those that are now extant, are commonly bound together in the old Book of Magna Charta. By those Statutes, great Alterations and Amendments were made in the Common Law; and by those that are now extant, we may reasonably guess, that there were considerable Alterations and Amendments made by those that are not extant, which possibly may be the real, tho' sudden Means of the great Advance and Alteration of the Laws of England in this King's Reign, over what they were in the Time of his
Predecessors. The first Summons of Parliament that I remember extant of Record in this King's Time, is 23 Edw. I, tho' doubtless there were many more before this, the Records whereof are either lost or mislaid: For many Parliaments were held by this King before that Time, and many of the Acts pass'd in those Parliaments are still extant; as, the Statutes of Westminster I, in the 3d of Edw. I. The Statutes of Gloucester, 6 Edw. I. The Statutes of Westminster 2, and of Winton, 13 Edw. I. The Statutes of
Westminster 3, and of Quo Warranto, 18 Edw. I. And divers others in other years, which I shall have Occasion to mention hereafter.
In the Time of K. Edw. 2, many Parliaments were held, and many Laws were enacted; but we have few Acts of Parliament of his Reign extant, especially of Record. And now, because I intend to give some short Account of some general Observations touching Parliaments, and of Acts of Parliament pass'd in the Times of those three Princes, viz. Henry 3. Edw. I. and Edw. 2. because they are of greatest Antiquity, and therefore the Circumstances that atended them most liable to be worn out by Process of Time, I will here mention some
Particulars relating to them to preserve their Memory, and which may also be useful to be known in relation to other Things. We are therefore to know, That there are these several Kinds of Records of Things done in Parliament, or especially relating thereto, viz. I. The Summons to Parliament. 2. The Rolls of Parliament. 3. Bundles of Petitions in Parliament. 4. The Statutes, or Acts of Parliament themselves. And, 5. The Brevia de Parliamento, which for the most part were such as issued for the Wages of Knights and Burgesses; but with these I shall not meddle. First, as to the Summons to Parliament. These Summons to Parliament are not all entred of Record in the Times of Henry 3 and Edw. I. none being extant of Record in the Time of Hen. 3. but that of 49 Hen. 3. and none in the Time of Edw. I. till the 23 Edw. I. But after that year, they are for the most part extant of Record, viz. In Dorso Claius' Rotulorum, in the Backside of the Close Rolls.
Secondly, As to the Rolls of Parliament, viz. The Entry of the several Petitions, Answers and Transactions in Parliament. Those are generally and successively extant of Record in the Tower, from 4 Edw. 3. downward till the End of the Reign of Edw. 4. Excepting only those Parliaments that intervened between the 1st and the 4th, and between the 6th and the 11th, of Edw. 3. But of those Rolls in the Times of Hen. 3. and Edw. I. and Edw. 2. many are lost and few extant; also, of the Time of Henry 3. I have not seen any Parliament Roll; and all that I ever saw of the Time of Edw. I. was one Roll of Parliament in the Receipt of the Exchequer of 18 Edw. I. and those Proceedings and
Remembrances which are in the Liber placitor' Parliamenti in the Tower, beginning, as I remember, with the 20th year of Edw. I. and ending with the Parliament of Carlisle, 35 Edw. I and not continued between those years with any constant Series; but
including some Remembrances of some Parliaments in the Time of Edw. I. and others in the Time of Edw. 2. In the Time of Edw. 2. besides the Rotulus Ordinationum, of the Lords Ordoners, about 7 Edw. 2. we have little more than the Parliament Rolls of 7 & 8 Edw. 2. and what others are interspersed in the Parliament Book of Edw. I. above mentioned, and, as I remember, some short Remembrances of Things done in Parliament in the 19 Edw. 3. Thirdly, As to the Bundles of Petitions in Parliament. They were for the most part Petitions of private Persons, and are commonly endorsed with Remissions to the several Courts where they were properly determinable. There are many of those Bundles of Petitions, some in the Times of Edw. I. and Edw. 2 and more in the Times of Edw. 3. and the Kings that succeeded him.
Fourthly, The Statutes, or Acts of Parliament themselves. These seem, as if in the Time of Edw. I. they were drawn up into the Form of a Law in the first Instance, and so assented to by both Houses, and the King, as may appear by the very Observation of the Contexture and Fabrick of the Statutes of those Times. But from near the Beginning of the Reign of Edw. 3. till very near the End of Hen. 6. they were not in the first Instance drawn up in the Form of Acts of Parliament; but the Petition and the
Answer were entred in the Parliament Rolls, and out of both, by Advice of the Judges, and others of the King's Council, the Act was drawn up conformable to the Petition and Answer, and the Act itself for the most part entred in a Roll, called, The Statute Roll, and the Tenor thereof affixed to Proclamation Writs,
directed to the several Sheriffs to proclaim it as a Law in their respective Counties. But because sometimes Difficulties and Troubles arose, by this extracting of the Statute out of the Petition and Answer; about the latter End of Hen. 6. and Beginning of Edward 4. they took a Course to reduce 'em, even in the first Instance, into the full and compleat Form of Acts of Parliament, which was
prosecuted (or Entred) commonly in this Form: Item quaedam Petitio exhibita fuit in hoc Parliamento forman actus in se continens, &c. and abating that Stile, the Method still continues much the same, namely; That the entire Act is drawn up in Form, and so comes to the King for his assent.
The ancient Method of passing Acts of Parliament being thus declared, I shall now give an Account touching those Acts of Parliament that are at this Day extant of the Times of Henry 3. Edw. I. and Edw. 2. and they are of two Sorts, viz. Some of them are extant of Record; others are extant in ancient Books and Memorials, but none of Record. And those which are extant of Record, are either Recorded in the proper and natural Roll, viz. the Statute Roll: or they are entred in some other Roll,
especially in the Close Rolls and Patent Rolls, or in both. Those that are extant, but not of Record, are such as tho' they have no Record extant of them, but possibly the same is lost; yet they are preserved in ancient Books and Monuments. and in all Times have had the Reputation and Authority of Acts of Parliament. For an Act of Parliament made within Time of Memory, loses not its being so, because not extant of Record, especially if it be a general Act of Parliament. For of general Acts of
Parliament, the Courts of Common Law are to take Notice without pleading of them; and such acts shall never be put to be tried bythe Record, upon an Issue of Nul tiel Record. but it shall be tried by the Court, who, if there be any Difficulty or Uncertainty touching it or the right Pleading of it, are to use for their nformation ancient Copies, Transcripts, Books, Pleadings and Memorials to inform themselves, but not to admit the same to be put in Issue by a Plea of Niul tiel Record.
For, as shall be shewn hereafter, there are very many old Statutes which are admitted and obtain as such, tho' there be no Record at this Day extant thereof, nor yet any other written Evidence of the same, but what is in a manner only Traditional, as namely, Ancient and Modern Books of Pleadings, and the common receiv'd Opinion and Reputation, and the Approbation of the
Judges Learned in the Laws: For the Judges and Courts of Justice are, ex Officio, (bound) to take Notice of publick Acts of Parliament, and whether they are truly pleaded or not, and therefore they are the Triers of them. But it is otherwise of private Acts of Parliament, for they may be put in Issue, and tried by the Record upon Nul tiel Record pleaded, unless they are produced exemplified, as was done in the Prince's Cafe in my Lord Coke's 8th Rep. and therefore the Averment of Nul tiel Record was refused in that Case.
The old Statutes or Acts of Parliament that are of Record, as is before said, are entred either upon the proper Statute Roll, or some other Roll in Chancery. The first Statute Roll which we have, is in the Tower, and begins with Magna Charta, and ends with Edw. 3. and is called Magnus Rotulus Statutor'. There are five other Statute Rolls in that Office, of the Times of Richard 2. Henry 4. Hen. 5. Hen. 6. and Edw. 4.
I shall now give a Scheme of those ancient Statutes of the Times of Henry 3. Edw. I. and Edw. 2. that are recorded in the first of those Rolls or elsewhere, to the best of my Remembrance, and according to those Memorials I have long had by me, viz.
Magna Charta. Magno Rot. Stat. membr. 40. & Rot. Cartar. 28 E. I and membr. 16. Charta de Foresta. Mag. Rot. Stat. membr. 19 & Rot. Cartar. 28 E. I membr. 26.
Stat. de Gloucestre. Mag. Rot. Stat. memb. 47. Westm. 2. Rot. Mag. Stat. membr. 47. Westm. 3. Rot. Clauso, 18 E. I. membr. 6. Dorso. Winton. Rot. Mag. Stat. memb. 41. Rot. Clauso, 8 E. 3. memb. 6. Dorso. Pars. 2. Rot. Clauso, 5 R. 2. membr. 13. Rot. Paten. 25 E. I. membr. 13. De Mercatoribus. Mag. Rot. Stat. Membr. 47. In Dorso. De Religiosis. Mag. Rot. Stat. membr. 47. Articuli Cleri. Mag. Rot. Stat. membr. 34. Dorso 2 Pars. Pat. E. I. 2. membr. 34. 2 Pars. Pat. 2 E. 3. membr. 15. De hiis qui ponendi sunt in Assisis. Mag. Rot. Stat. membr. 41. De Finibus levatis. Mag. Rot. Stat. membr. 37. De defensione Juris liberi Parliam. Lib. Parl. E. I. fo. 32. Stat. Eborum. Mag. Rot. Stat. membr. 32. De conjunctis infeofatis. Mag. Rot. Stat. membr. 34. De Escaetoribus. Mag. Rot. Stat. membr. 35. Dorso, & Rot. Claus. 29 E. I. membr. 14. Dorso. Stat. de Lincolne. Mag. Rot. Stat. membr. 32. Stat. de Priscis. Rot. Mag. Stat. membr. 33. In Schedula de libertatibus perquirendis, vel Rot. Claus. 27 E. I. membr. 24. Stat. de Acton Burnel. Rot. Mag. Stat. membr. 46. Dorso, & Rot. Claus. II. E. I. membr. 2.
Juramentum Vicecomit. Rot. Mag. Stat. membr. 34. Dorso, & Rot. Claus. 5 E. 2. membr. 23. Articuli Stat. Gloucestriae. Rot. Claus. 2 E. 2. Pars. 2. membr. 8. De Pistoribus & Braciatoribus. 2 Pars, Claus. vel Pat. 2 R 2. membr. 29. De asportatis Religiosor. Mag. Rot. Stat. membr. 33. Westm. 4. De Vicecomitibus & Viridi caera. Rot. Mag. Stat. membr. 33. In Dorso. Confirmationes Chartarum. Mag. Rot. Stat. membr. 28. De Terris Templariorum. Mag. Rot. Stat. membr. 31. in Dorso, & Claus. 17 E. 2. membr. 4. Litera patens super prisis bonorum Cleri. Rot. Mag. Stat. membr. 33. In Dorso. De Forma mittendi extractas ad Scaccar. Rot. Mag. Stat. membr. 36. & membr. 30. In Dorso.
Statutum de Scaccar. Mag. Rot. Stat. Statutum de Rutland. Rot Claus. 12 E. 1. Ordinatio Forestae. Mag. Rot. Stat. membr. 30. & Rot. Claus. 17 E. 2. Pars 2. membr. 3.
According to a strict Inquiry made about 30 years since, these were all the old Statutes of the Times of Hen. 3. Edw. I. and Edw. 2. that were then to be found of Record; what other Statutes have been found since, I know not.
The Ordinance called Butler's, for the Heir to punish Waste in the Life of the Ancestor, tho' it be of Record in the Parliament Book of Edw. I yet it never was a Statute, nor never so received, but only some Constitution of the King's Council or Lords in Parliament, and which never obtain'd the Strength or Force of an Act of Parliament.
Now those Statutes that ensue, tho' most of 'em are unquestionable Acts of Parliament, yet are not of Record that I know of, but only their Memorials preserved in ancient Printed and Manuscript Books of Statutes; yet they are at this Day for the most part generally accepted and taken as Acts of Parliament, tho' some of 'em are now antiquated and of little Use, viz.
The Statutes of Merton, Marlbridge, Westm. I. Explanatio Statuti Gloucestriae, De Champertio, De visu Frankplegii, De pane & Cervisia, Articuli Inquisitionis super Stat. de Winton, Circumspecte agatis, De districtione Scaccarii, De Conspirationibus, De vocatis ad Warrant. Statut. de Carliol, De Prerogativa Regis, De modo faciendi Homag. De Wardis & Releivis Dies Communes in Banco. Stat. de Bigamis, Dies Communes in Banco in casu consimili. Stat. Hiberniae, De quo Warranto, De Essoin calumpniand. Judicium collistrigii, De Frangentibus Prisonar'. De malefactoribus in Parcis, De Consultationibus, De Officio
Coronatoris, De Protectionibus, Sententia lata super Chartas, Modus levandi Fines. Statut. de Gavelet, De Militibus, De Vasto, De anno Bissextili, De appellatis, De Extenta Manerii, Compositio Mensearum vel Computatio Mensarum. Stat. de Quo Warranto, Ordinatio de Inquisitionibus, Ordinatio de Foresta, De admensura Terre, De dimissione Denarior. Statut. de Quo Warranto novum, Ne Rector prosternat arbores in Caemeterio, Consuetudines & Assisa de Foresta, Compositio de Ponderibus, De Tallagio, De visu Terrae & servitio Regis, Compositio ulnarum & particarum, De Terris amortizandis, Dictum de Kenelworth, &c.
From whence we may collect these Two observations, viz.
First, That altho' the Record itself be not extant, yet general Statutes made within Time of Memory, namely, since 1 Richardi Primi, do not lose their Strength, if any authentical Memorials thereof are in Books, and seconded with a general receiv'd Tradition attesting and approving the same.
Secondly, That many Records, even of Acts of Parliament, have in long Process of Time been lost, and possibly the Things themselves forgotten at this Day, which yet in or near the Times wherein they were made, might cause many of those authoritative Alterations in some Things touching the Proceedings and Decisions in Law: The Original Cause of which Change being otherwise at this Day hid and unknown to us; and indeed, Histories (and
Annals) give us an Account of the Suffrages of many Parliaments, whereof we at this Time have none, or few Footsteps extant in Records or Acts of Parliament. The Instance of the great Parliament at Oxford, about 40th of Henry 3, may, among many others of like Nature, be a concurrent Evidence of this: For tho' we have Mention made in our Histories of many Constitutions made in the said Parliament at Oxford, and which occasioned much
Trouble in the Kingdom, yet we have no Monuments of Record concerning that Parliament, or what those Constitutions were.
And thus much shall serve touching those Old Statutes or Leges Scriptae, or Acts of Parliament made in the Times of those three Kings, Henry 3. Edw. I. and Edw. 2. Those that follow in the Times of Edw. 3. and the succeeding Kings, are drawn down in a continued Series of Time, and are extant of Record in the Parliament Rolls, and in the Statute Rolls, without any remarkable Omission, and therefore I shall say nothing of them.
II. 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.
III. Concerning the Common Law of England, its Use and Excellence, and the Reason of its Denomination
I Come now to that other Branch of our Laws, the Common Municipal Law of this Kingdom, which has the Superintendency of all those other particular Laws used in the before-mentioned Courts, and is the common Rule for the Administration of common Justice in this great Kingdom; of which it has been always
tender, and there is great Reason for it; for it is not only a very just and excellent Law in it self, but it is singularly accommodated to the Frame of the English Government, and to the Disposition of the English Nation, and such as by a long
Experience and Use is as it were incorporated into their very Temperament, and, in a Manner, become the Complection and Constitution of the English Commonwealth. Insomuch, that even as in the natural Body the due Temperament and Constitution does by Degrees work out those accidental Diseases which sometimes happen, and do reduce the Body to its just State and Constitution; so when at any Time through the Errors, Distempers or Iniquities of Men or Times, the Peace of the Kingdom, and right Order of Government, have
received Interruption, the Common Law has wasted and wrought out those Distempers, and reduced the Kingdom to its just State and Temperament, as our present (and former) Times can easily
This Law is that which asserts, maintains, and, with all imaginable Care, provides for the Safety of the King's Royal Person, his Crown and Dignity, and all his just Rights, Revenues, Powers, Prerogatives and Government, as the great Foundation (under God) of the Peace, Happiness, Honour and Justice, of this Kingdom; and this Law is also, that which declares and asserts the Rights and Liberties, and the Properties of the Subject; and is the just, known, and common Rule of Justice and Right between Man and Man, within this Kingdom.
And from hence it is, that the Wisdom of the Kings of England, and their great Council, the Honourable House of Parliament, have always been jealous and vigilant for the Reformation of what has been at any Time found defective in it, and so to remove all such Obstacles as might obstruct the free Course of it, and to support, countenance and encourage the Use of it, as the best, safest and truest Rule of Justice in all Matters, as well Criminal as Civil.
I should be too Voluminous to give those several Instances that occur frequently in the Statutes, the Parliament Rolls, and Parliamentary Petitions, touching this Matter; and shall therefore only instance in some few Particulars in both Kinds, viz. Criminal and Civil: And First, in Matters Civil.
In the Parliament 18 Edw. 1. In a Petition in the Lords House, touching Land between Hugh Lowther and Adam Edingthorp: The Defendant alledges, That if the Title should in this Manner be proceeded in, he should lose the Benefit of his Warranty; and al