The History of the Common Law of England [9]
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. I need 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 I spend 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. But altho' these are Judices Ordinarii, and have Ecclesiastical Jurisdiction annex'd to their Ecclesiastical Offices, yet this Jurisdiction Ecclesiastical in Foro Exteriori is derived from the Crown of England: For there is no External Jurisdiction, whether Ecclesiastical or Civil, within this Realm, but what is derived from the Crown: It is true, both anciently, and at this Day, the process of Ecclesiastical Courts runs in the Name, and issues under: the Seal of the Biship; and what Practice stands so at this Day by Virtue of several Acts of Parliament, too long here to recount. But that is no Impediment of their deriving their Jurisdictions from the Crown; for till 27 H. 8. cap. 24. The Process in Counties Palatine ran in the Name of the Counts Palatine, yet no Man ever doubted, but that the Palatine Jurisdictions were derived from the Crown. Touching the Severance of the Bishop's Consistory from the Sheriff's Court: