The more minute conſideration of theſe will fall properly under that part of theſe commentaries which treats of the juriſdiction of courts. It will ſuffice at preſent to remark a few particulars relative to them all, which may ſerve to inculcate more ſtrongly the doctrine laid down concerning them[1].
1. And, firſt, the courts of common law have the ſuperintendency over theſe courts; to keep them within their juriſdictions, to determine wherein they exceed them, to reſtrain and prohibit ſuch exceſs, and (in caſe of contumacy) to puniſh the officer who executes, and in ſome caſes the judge who enforces, the ſentence ſo declared to be illegal.
2. The common law has reſerved to itſelf the expoſition of all ſuch acts of parliament, as concern either the extent of theſe courts or the matters depending before them. And therefore if theſe courts either refuſe to allow theſe acts of parliament, or will expound them in any other ſenſe than what the common law puts upon them, the king’s courts at Weſtminſter will grant prohibitions to reſtrain and control them.
3. An appeal lies from all theſe courts to the king, in the laſt reſort; which proves that the juriſdiction exerciſed in them is derived from the crown of England, and not from any foreign potentate, or intrinſic authority of their own.—And, from theſe three ſtrong marks and enſigns of ſuperiority, it appears beyond a doubt that the civil and canon laws, though admitted in ſome caſes by cuſtom in ſome courts, are only ſubordinate and leges ſub graviori lege; and that, thus admitted, reſtrained, altered, new-modelled, and amended, they are by no means with us a diſtinct independent ſpecies of laws, but are inferior branches of the cuſtomary or unwritten laws of England, properly called, the king’s eccleſiaſtical, the king’s military, the king’s maritime, or the king’s academical, laws.
- ↑ Hale Hiſt. c. 2.
