The History of the Common Law of England [63]
for the King, there the King may make his Suit in any of the Courts here, especially in the Court of King's-Bench: For Instance, in a Quare Impedit brought by the King in B. R. here for a Church in those Islands; so in a Qiuo Warranto for Liberties there; so a Demand of Redemption of Lands sold by the King's Tenant within a Year and a Day according to the Custom of Normandy; so in an Information for a Riot, or grand Contempt against a Governor deputed by the King. These and the like Suits have been maintained by the King in his Court of King's-Bench here, tho' for Matters arising within those Islands: This appears, Paschae 16 E. 2. coram Rege, Rot. 82. Mich. 18 E. 2. Rot. 123, 124, 125. & Pas. I E. 3. Rot. 59. And for the same Reason it is, that a Writ of Habeas Corpus lies into those Islands for one imprisoned there, for the King may demand, and must have an Account of the Cause of any of his Subjects Loss of Liberty; and therefore a Return must be made of this Writ, to give the Court an Account of the Cause of Imprisonment; for no Liberty, whether of a County Palatine, or other, holds Place against those Brevia Mandatoria, as that great Instance of punishing the Bishop of Durham for refusing to execute a Writ of Habeas Corpus out of the King's Bench, 33 E. I. makes evident. And as Pleas arising in the Islands regularly, ought not in the first Instance to be deduced into the Courts here, (except in the King's Case;) so neither ought they to be deduced into the King's Courts here in the second Instance; and therefore if a Sentence or Judgment be given in the Islands, the Party grieved thereby, may have his Appeal to the King and his Council to reverse the same if there be Cause. And this was the Course of Relief in the Dutchy of Normandy, viz. by Appeal to the Duke and his Council; and in the same Manner, it is still observed in the Case of erroneous Decrees or Sentences in those Islands, viz. To appeal to the King and his Council. But the Errors in such Decrees or Sentences are not examined by Writ of Error in the King's-Bench, for these Reasons, viz. 1st. Because the Courts there, and those here, go not by the same Rule, Method, or Order of Law. And 2dly, Because those Islands, though they are Parcel of the Dominion of the Crown of England, yet they are not Parcel of the Realm of England, nor indeed ever were; but were anciently Parcel of the Dutchy of Normandy, and are those Rewains thereof which the Power of the Crown and Kingdom of France have not been able to wrest from the Kings of England. X. Concerning the Communication of the Laws of England unto the Kingdom of Scotland Because this Inquiry will be of Use, not only in itself, but also as a Parallel Discovery of the Transmission of the English Laws into Scotland, as before is shewn they were into Normandy; I shall in this Chapter pursue and solve their several Queries, viz. 1st, What Laws of Scotland hold a Congruity and Suitableness with those of England. 2dly, Whether these be a sufficient Ground for us to suppose, that that Similitude or Congruity began with a Conformation of their Laws to those of England. And, 3dly, What might be reasonably judged to be the Means or Reason of the Conformation of their Laws unto the Laws of England. As to the First of these Inquiries; It is plain, beyond all Contradiction, that many of the Laws of Scotland hold a Congruity and Similitude, and many of them a perfect Identity with the Laws of England, at least as the English Laws stood in the Times of Hen. 2. Richard I. King John, Henry 3. and Edw. I. And altho, in Scotland, Use hath always been made of the Civil Law, in point of Direction or Guidance, where their Municipal Laws, either Customary or Parliamentary failed; yet as to their particular Municipal Laws, we shall find a Resemblance, Parity and Identity, in their Laws with the Laws of England, anciently in Use; and we need go no further for Evidence hereof, than the Regiam Majestatem, a Book published