The History of the Common Law of England [8]
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