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. Ineed 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 Ispend 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.
