The History of the Common Law of England [14]
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