第11章 II. (6)

In this Military Court, Court of Honour, or Court Martial, the Civil Law has been used and allowed in such Things as belong to their Jurisdiction; as the Rule or Direction of their Proceedings and Decisions, so far forth as the same is not controuled by the Laws of this Kingdom, and those Customs and Usages which have obtain'd in England, which even in Matters of Honour are in some Points derogatory to the Civil Law. But this Court has been long disused upon great Reasons.

And thus I have given a brief Prospect of these Courts and Matters, wherein the Canon and Civil Law has been in some Measure allowed, as the Rule or Direction of Proceedings or Decisions:

But although in these Courts and Matters the Laws of England, upon the Reasons and Account before expressed, have admitted the Use and Rule of the Canon and Civil Law; yet even herein also, the Common Law of England has retain'd those Signa Superioritatis, and the Preference and Superintendence in relation to those Courts: Namely, 1st. As the Laws and Statutes of the Realm have prescribed to those Courts their Bounds and Limits, so the Courts of Common Law have the Superintendency over those Courts, to keep them within the Limits and Bounds of their several Jurisdictions, and to judge and determine whether they have exceeded those Bounds, or not; and in Case they do exceed their Bounds, the Courts at Common Law issue their Prohibitions to restrain them, directed either to the Judge or Party, or both: And also, in case they exceed their Jurisdiction, the Officer that executes the Sentence, and in some Cases the Judge that gives it, are punishable in the Courts at Common Law; sometimes at the Suit of the King, sometimes at the Suit of the Party, and sometimes at the Suit of both, according to the Variety and Circumstances of the Case.

2dly. The Common Law, and the Judges of the Courts of Common Law, have the Exposition of such Statutes or Acts of Parliament as concern either the Extent of the Jurisdiction of those Courts (whether Ecclesiastical, Maritime or Military) or the Matters depending before them; and therefore, if those Courts either refuse to allow these Acts of Parliament, or expound them in any other Sense than is truly and properly the Exposition of them, the King's Great Courts of the Common Law (who next under the King and his Parliament have the Exposition of those Laws) may prohibit and controul them.

And thus much touching those Courts wherein the Civil and Canon Laws are allowed as Rules and Directions under the Restrictions above-mentioned: Touching which, the Sum of the Whole is this:

First, That the Jurisdiction exercised in those Courts is derived from the Crown of England, and that the last Devolution is to the King, by Way of Appeal.

Secondly, That although the Canon or Civil Law be respectively allowed as the Direction or Rule of their Proceedings, yet that is not as if either of those Laws had any original Obligation in England, either as they are the Laws of Emperors, Popes, or General Councils, but only by Virtue of their Admission here, which is evident; for that those Canons or Imperial Constitutions which have not been receiv'd here do not bind; and also, for that by several contrary Customs and Stiles used here many of those Civil and Canon Laws are controuled and derogated.

Thirdly, That although those Laws are admitted in some Cases in those Courts, yet they are but Leges sub graviori Lege; and the Common Laws of this Kingdom have ever obtain'd and retain'd the Superintendency over them, and those Signa Superioritatis before-mentioned, for the Honour of the King and the Common Laws of England.