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The History of the Common Law of England
III.
by Hale, Matthew


Concerning the Common Law of England, its Use and Excellence, and the Reason of its Denomination

I Come now to that other Branch of our Laws, the Common Municipal Law of this Kingdom, which has the Superintendency of all those other particular Laws used in the before-mentioned Courts, and is the common Rule for the Administration of common Justice in this great Kingdom; of which it has been always tender, and there is great Reason for it; for it is not only a very just and excellent Law in it self, but it is singularly accommodated to the Frame of the English Government, and to the Disposition of the English Nation, and such as by a long Experience and Use is as it were incorporated into their very Temperament, and, in a Manner, become the Complection and Constitution of the English Commonwealth.

Insomuch, that even as in the natural Body the due Temperament and Constitution does by Degrees work out those accidental Diseases which sometimes happen, and do reduce the Body to its just State and Constitution; so when at any Time through the Errors, Distempers or Iniquities of Men or Times, the Peace of the Kingdom, and right Order of Government, have received Interruption, the Common Law has wasted and wrought out those Distempers, and reduced the Kingdom to its just State and Temperament, as our present (and former) Times can easily witness.

This Law is that which asserts, maintains, and, with all imaginable Care, provides for the Safety of the King's Royal Person, his Crown and Dignity, and all his just Rights, Revenues, Powers, Prerogatives and Government, as the great Foundation (under God) of the Peace, Happiness, Honour and Justice, of this Kingdom; and this Law is also, that which declares and asserts the Rights and Liberties, and the Properties of the Subject; and is the just, known, and common Rule of Justice and Right between Man and Man, within this Kingdom.

And from hence it is, that the Wisdom of the Kings of England, and their great Council, the Honourable House of Parliament, have always been jealous and vigilant for the Reformation of what has been at any Time found defective in it, and so to remove all such Obstacles as might obstruct the free Course of it, and to support, countenance and encourage the Use of it, as the best, safest and truest Rule of Justice in all Matters, as well Criminal as Civil.

I should be too Voluminous to give those several Instances that occur frequently in the Statutes, the Parliament Rolls, and Parliamentary Petitions, touching this Matter; and shall therefore only instance in some few Particulars in both Kinds, viz. Criminal and Civil: And First, in Matters Civil.

In the Parliament 18 Edw. 1. In a Petition in the Lords House, touching Land between Hugh Lowther and Adam Edingthorp: The Defendant alledges, That if the Title should in this Manner be proceeded in, he should lose the Benefit of his Warranty; and also, that the Plaintiff, if he hath any Right, hath his Remedy at Common Law by Assize of Mortdancestor, and therefore demands Judgment, Si de libero Tenemento debeat hic sine brevi Respondere; and the Judgment of the Lords in Parliament thereupon is enter'd in these Words, viz.

Et quia actio de predicto Tenemento petendo & etiam suum recuperare, si quid habere debeat vel possit eidem Adae per Assisam mortis Antecessoris competere debet nec est juri consonum vel hactenus in Curia ista usitat' quod aliquis sine Lege Communi, & Brevi de Cancellaria de libero Tenemento suo respondeat & maxime in Casu ubi Breve de Cancellaria Locum habere potest, dictum est praefato Adae quod sibi perquirat per Breve de Cancellaria, si sibi viderit Expederire.

Rot. Parl. 13 R. 2. No. 10. Adam Chaucer preferr'd his Petition to the King and Lords in Parliament, against Sir Robert Knolles, to be relieved touching a Mortgage, which he supported was satisfied, and to have Restitution of his Lands. The Defendant appeared, and upon the several Allegations on both Sides, the Judgment is thus entered, viz.

Et apres les Raisons & les Allegeances de l'un party & de l'autre, y sembles a Seigneurs du Parlement que le dit Petition ne estoit Petition du Parlement, deins que le mattier en icel comprize dovii estre discuss per le Commune Ley. St pur ceo agard suit que le dit Robert iroit eut sans jour & que le dit Adam ne prendroit rien per say suit icy, eins que il sueroit per le Commune Ley si il luy sembloit ceo faire.

Where we may note, the Words are Dovit estre, and not Poet estre discusse Per le, &c.

Rot. Parl. 5o Ed. 3. No. 43. A Judgment being given against the Bishop of Norwich, for the Archdeaconry of Norwich, in the Common Bench, the Bishop petitioned the Lords in Parliament, that the Record might be brought into that House, and to be reversed for Error.

Et quoy a luy estoit finalement Respondu per common Assent des ils les Justices que si Error y fust si ascun a fine force per le Ley de Angleterre tiel Error fuit voire en Parlement immediatement per voy de Error ains en Bank le Roy, & en nul part ailhors, Mais si le Case avenoit que Error fust fait en Bank le Roy adonque ceo serra amendes en Parlement.

And let any Man but look over the Rolls of Parliament, and the Bundles of Petitions in Parliament, of the Times of Ed. I. Ed. 2. Ed. 3. Hen. 4. H. 5. & H. 6. he will find Hundreds of Answers of Petitions in Parliament concerning Matters determinable at Common Law, endorsed with Answers to this, or the like Effect, viz "Suez vous a le Commune Ley; sequatur ad Communem Legem; Perquirat Breve in Cancellaria si sibi viderit expedire; ne est Petition du Parlement, Mandetur ista Petitio in Cancellarium, vel Cancellario, vel justiciariis de Banco, vel Thesaurario & Baronibus de Scaccario," and the like.

And these were not barely upon the Bene Placita of the Lords, but were De jure, as appears by those former Judgments given in the Lords House in Parliament; and the Reason is evident; First, Because, if such a Course of extraordinary Proceeding should be had before the Lords in the first Instance, the Party should lose the Benefit of his Appeal by Writ of Error, according as the Law allows; and that is the Reason, why even in a Writ of Error, or Petition of Error upon a Judgment in any inferior Court, it cannot go Per Saltum into Parliament, till it has passed the Court of King's-Bench; for that the first appeal is thither. Secondly, Because the Subject would by that Means lose his Trial Per Pares, and consequently his Attaint, in case of a Mistake in Point of Issue or Damages: To both which he is entitled by Law.

And although some Petitions of this Nature have been deterwined in that Manner, yet it has been (generally) when the Exception has not been started, or at least not insisted upon: And One Judgment in Parliament, that Cases of that Nature ought to be determined according to the Course of the Common Law, is of greater Weight than many Cases to the contrary, wherein the Question was not stirred: Yea, even tho' it should be stirred, and the contrary affirm'd upon a Debate of the Question, because greater Weight is to be laid upon the Judgment of any Court when it is exclusive of its jurisdiction, than upon a judgment of the same Court in Affirmance of it.

Now as to Matters Criminal, whether Capital or not, they are determinable by the Common Law, and not otherwise; and in Affirmance of that Law, where the Statutes of Magna Charta, cap. 29. 5 Ed. 3. cap. 9. 25 Ed. 3. cap. 4. 29 Ed. 3. cap. 3. 27 Ed. 3. cap. 17. 38 Ed. 3. cap. 9. & 40 Ed. 3. cap. 3. The Effect of which is, That no Man shall be put out of his Lands or Tenewents, or be imprisoned by any Suggestion, unless it be by Indictment or Presentment of lawful Men, or by Process at Comwon Law.

And by the Statute of 1 Hen. 4. cap. 14. it is enacted, That no Appeals be sued in Parliament at any Time to come: This extends to all Accusations by particular Persons, and that not only of Treason or Felony, but of other Crimes and Misdemeanors. It is true, the Petition upon which that Act was drawn up, begins with Appeals of Felony and Treason, but the Close thereof, as also the King's Answer, refers as well to Misdemeanors as matters Capital; and because this Record will give a great Light to this whole Business, I will here set down the Petition and the Answer verbatim. Vide Rot. Parl. I Hen. 4. No. 144.

Item, Supplyont les Commens que desore en avant nul appele de Traison ne de autre Felony quelconq; soit accept ou receive en le Parlement ains en vous autres Courts de dans vostre Realm dementiers que en vous dits Courts purra estre Terminer come ad ote fait & use ancienement en temps de vous noble Progeniteurs; Et que chescun Person qui en temps a venir serra accuse ou impeach en vostre Parlement ou en ascuns des vos dits Courts per les Seigniors & Commens di vostre Realm ou per ascun Person & defence ou Response a son Accusement ou Empeachment & sur son Response reasonable Record Judgment & Tryal come de ancienement temps ad estre fait & use per les bones Leges de vostre Realm, nient obstant que les dits Empeachments ou Accusements soient faits per les Seigneurs ou Commens de vostre Relme come que de novel en temps de Ric. nadgarius Roy ad estre fait & use a contrar, a tres grand Mischief & tres grand Maleveys Exemple de vostre Realm.

Le Roy voet que de cy en avant touts les Appeles de choses faits deins le Relme soient tryez & terwinez per les bones Leys faits en temps de tres noble Progeniteurs de nostre dit Seigneur le Roy, Et que touts les Appeles de choses faits hors du Realm, soient triez & terminez devant le Constable & Marshal de Angleterre, & que nul Appele soit fait en Parlement desore en ascun tempts a venir.

This is the Petition and Answer. The Statute as drawn up hereupon, is general, and runs thus:

Item. Pur plusieurs grands Inconveniencies & Mischeifs que plusieurs fait ont advenus per colour des plusieurs Appeles faits deins le Realm avant ces heurs ordain est & establuz, Que desore en avant touts Appeles de choses faits deins le Realm soient tries & termines per les bones Leys de le Realm faits & uses en temps de tres noble Progeniteurs de dit nostre Seigneur le Roy; Etque ils les Appeles de choses faits hors du Realm soient tries & termines devant le Constable & Marshal pur les temps esteant; Et ouster accordes est & assentus que nulls Appeles soient desore faits ou pursues en Parlement en nul temps avenir.

Where we may observe, That thougb the Petition expresses (only) Treason and Felony, yet the Act is general against all Appeals in Parliament; and many Times the Purview of an Act is larger than the Preamble, or the Petition, and so 'tis here: For the Body of the Act prohibits all Appeals in Parliament, and there was Reason for it: For the Mischief, viz. Appeals in Parliament in the Time of King Richard 2 (as in the Petition is set forth) were not only of Treason and Felony, but of Misdemeanors also, as appears by that great Proceeding, 11 R. 2, against divers, by the Lords Appellants, and consequently it was necessary to have the Remedy as large as the Mischief. And I do not remember that after this Statute there were any Appeals in Parliament, either for Matters Capital or Criminal, at the Suit of any Particular Person or Persons.

It is true, Impeachments by the House of Commons, sent up to the House of Lords, were frequent as well after as before this Statute, and that justly, and with good Reason; for that neither the Act nor the Petition ever intended to restrain them, but only to regulate them, viz. That the Parties might be admitted to their Defence to them, and as neither the Words of the Act nor the Practice of After-times extended to restrain such Impeachments as were made by the House of Commons, so neither do those Impeachments and Appeals agree in their Nature or Reason; for Appeals were nothing else but Accusations, either of Capital or Criminal Misdemeanors, made in the Lords House by particular Persons; but an Impeachment is made by the Body of the House of Commons, which is equivalent to an Indictment Pro Corpore Regni, and therefore is of another Nature than an Accusation or Appeal, only herein they agree, viz. Impeachments in Cases Capital against Peers of the Realm, have been ever tried and determined in the Lords House; but Impeachments against a Commoner have not been usual in the House of Lords, unless preparatory to a Bill, or to direct an Indictment in the Courts below: But Impeachments at the Prosecutions of the House of Commons, for Misdemeanors as well against a Commoner as any other, have usually received their Determinations and final Judgments in the House of Lords; whereof there have been numerous Precedents in all Times, both before and since the said Act.

And thus much in general touching the great Regard that Parliaments and the Kingdom have had, and that most justly, to the Common Law, and the great Care they have had to preserve and maintain it, as the Common Interest and Birthright of the King and Kingdom.

I shall now add some few Words touching the Stiles and Appellations of the Common Law, and the Reasons of it: 'Tis called sometimes by Way of Eminence, Lex Terrae, as in the Statute of Magna Charta, cap. 29. where certainly the Common Law is at least principally intended by those Words, aut Per Legem Terrae, as appears by the Exposition thereof in several subsequent Statutes, and particularly in the Statute 28 Ed. 3. cap. 3 which is but an Exposition and Declaration of that Statute: Sometimes 'tis called, Lex Angliae, as in the Statute of Merton, cap.... Nolumus Leges Angliae mutare, &c. Sometimes 'tis called, Lex & Consuetudo Regni, as in all Commissions of Oyer and Terminer, and in the Statutes of 18 Ed. I. cap.... and De quo Warranto, and divers others; but most commonly 'tis called, The Common Law, or, The Common Law of England, as in the Statute of Articuli super Chartas, cap. 15. in the Statute 25 Ed. 3. cap. 5. and infinite more Records and Statutes.

Now the Reason why 'tis call'd The Common Law, or what was the Occasion that first gave that Determination to it, is variously assigned, viz.

First, Some have thought it to be so called by Way of Contradistinction to those other Laws that have obtain'd within this Kingdom; as, 1st. By Way of Contradistinction to the Statute Law, thus a Writ of Entry ad Communem Legem, is so call'd in Contradistinction to Writs of Entry in Casu consimili, and Casu Proviso, which are given by Act of Parliament. 2dly, By Way of Contradistinction to particular Customary Laws: Thus Discents at Common Law, Dower at Common Law, are in Contradistinction to such Dowers and Discents as are directed by particular Customs. And 3dly, In Contradistinction to the Civil, Canon, Martial and Military Laws, which are in some particular Cases and Courts admitted, as the Rule of their Proceedings.

Secondly, Some have conceived, that the Reason of this Appellation was this, viz. In the Beginning of the Reign of Edward 3 before the Conquest, commonly called, Edward the Confessor, there were several Laws, and of several Natures, which obtain'd in several Parts of this Kingdom, viz. The Mercian Laws, in the counties of Gloucester, Worcester, Hereford, Warwick, Oxon, Chester, Salop and Stafford. The Danish Laws, in the Counties of York, Derby, Nottingham, Leicester, Lincoln, Northampton, Bedford, Bucks, Hertford, Essex, Middlesex, Norfolk, Suffolk, Cambridge and Huntington. The West-Saxon Laws, in the Counties of Kent, Sussex, Surrey, Berks, Southampton, Wilts, Somerset, Dorset, and Devon.

This King, to reduce the Kingdom as well under one Law, as it then was under one Monarchical Government, extracted out of all those Provincial Laws, one Law to be observed through the whole Kingdom: Thus Ranulphus Cestrensis, cited by Sir Henry Spelman in his Glossary, under the Title Lex, says, "Ex tribus his Legibus Sanctus Edvardus unam Legem ----" &c. And the same in totidem verbis, is affirmed in his History of the last Year of the same King Edward. (Vide ibid. Plura de hoc) But Hoveden carries up the Common Laws, or those stiled the Confessor's Laws, much further; for he in his History of Henry 2 tell us, "Quod istae Leges prius inventae & constitutae erant Tempore Edgari, Avi sui," &c. (Vide Hoveden) And possibly the Grandfather might be the first Collector of them into a Body, and afterwards Edward might add to the Composition, and give it the Denomination of the Common Law. but the Original of it cannot in Truth be referred to either, but is much more ancient, and is as undiscoverable as the Head of Nile: Of which more at large in the following Chapter.

Thirdly, Others say, and that most truly, That it is called the Common Law, because it is the common Municipal Law or Rule of justice in this Kingdom: So that Lex Communis, or Jus Communis, is all one and the same with Lex Patriae, or Jus Patrium; for although there are divers particular Laws, some by Custom applied to particular Places, and some to particular Causes; yet that Law which is common to the generality of all Persons, Things and Causes, and has a Superintendency over those particular Laws that are admitted in Relation to particular Places or Matters, is Lex Communis Angliae, as the Municipal Laws of other Countries may be, and are sometimes called, The Common Law of that Country,. as Lex Communis Norrica, Lex Communis Burgundica, Lex Communis Lombardica, &c. So that although all the former Reasons have their Share in this Appellation, yet the principal Cause thereof seems to be the latter: And hence some of the Ancients call'd it Lex Communis. others Lex Patriae; and so they were called in their Confirmation by King William I. Whereof hereafter.

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