the history of the common law of england-第6部分
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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； ？ 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 wuch 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 witness。 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 onl
