s. For the civil
and canon laws, considered with respect to any intrinsic obligation,
have no force or authority in this kingdom; they are no more binding
in England than our laws are binding at Rome. But as far as these
foreign laws, on account of some peculiar propriety, have in some
particular cases, and in some particular courts, been introduced and
allowed by our laws, so far they oblige, and no farther; their
authority being wholly founded upon that permission and adoption. In
which we are not singular in our notions; for even in Holland, where
the imperial law is much cultivated and it's decisions pretty
generally followed, we are informed by Van Leeuwen[i], that, "it
receives it's force from custom and the consent of the people, either
tacitly or expressly given: for otherwise, he adds, we should no more
be bound by this law, than by that of the Almains, the Franks, the
Saxons, the Goths, the Vandals, and other of the antient nations."
Wherefore, in all points in which the different systems depart from
each other, the law of the land takes place of the law of Rome,
whether antient or modern, imperial or pontificial. And in those of
our English courts wherein a reception has been allowed to the civil
and canon laws, if either they exceed the bounds of that reception, by
extending themselves to other matters, than are permitted to them; or
if such courts proceed according to the decisions of those laws, in
cases wherein it is controlled by the law of the land, the common law
in either instance both may, and frequently does, prohibit and annul
their proceedings[k]: and it will not be a sufficient excuse for them
to tell the king's courts at Westminster, that their practice is
warranted by the laws of Justinian or Gregory, or is conformable to
the decrees of the Rota or imperial chamber. For which reason it
becomes highly necessary for every civilian and canonist that would
act with safety as a judge, or with prudence and reputation as an
advocate, to know in what cases and how far the English laws have
given sanction to the Roman; in what points the latter are rejected;
and where they are both so intermixed and blended together, as to form
certain supplemental parts of the common law of England, distinguished
by the titles of the king's maritime, the king's military, and the
king's ecclesiastical law. The propriety of which enquiry the
university of Oxford has for more than a century so thoroughly seen,
that in her