the history of the common law of england-第4部分
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hich 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。 I st。 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 Cri
