ſpecies of conveyance (called a deed of feoffment) convey away his lands in fee-ſimple, or for ever. Yet this cuſtom does not impower him to uſe any other conveyance, or even to leaſe them for ſeven years: for the cuſtom muſt be ſtrictly purſued[1]. And, moreover, all ſpecial cuſtoms muſt ſubmit to the king’s prerogative. Therefore, if the king purchaſes lands of the nature of gavelkind, where all the ſons inherit equally; yet, upon the king’s demiſe, his eldeſt ſon ſhall ſucceed to thoſe lands alone[2]. And thus much for the ſecond part of the leges non ſcriptae, or thoſe particular cuſtoms which affect particular perſons or diſtricts only.
III. The third branch of them are thoſe peculiar laws, which by cuſtom are adopted and uſed only in certain peculiar courts and juriſdictions. And by theſe I underſtand the civil and canon laws.
It may ſeem a little improper at firſt view to rank theſe laws under the head of leges non ſcriptae, or unwritten laws, ſeeing they are ſet forth by authority in their pandects, their codes, and their inſtitutions; their councils, decrees, and decretals; and enforced by an immenſe number of expoſitions, deciſions, and treatiſes of the learned in both branches of the law. But I do this, after the example of ſir Matthew Hale[3], becauſe it is moſt plain, that it is not on account of their being written laws, that either the canon law, or the civil law, have any obligation within this kingdom; neither do their force and efficacy depend upon their own intrinſic authority; which is the caſe of our written laws, or acts of parliament. They bind not the ſubjects of England, becauſe their materials were collected from popes or emperors; were digeſted by Juſtinian, or declared to be authentic by Gregory. Theſe conſiderations give them no authority here: for the legiſlature of England doth not, nor ever did, recognize any foreign power, as ſuperior or equal to it in this kingdom; or as having the right to give law to any, the meaneſt, of it’s
