CHAP. III. 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 itself, 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 complexion 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 worn 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; 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 alleges, that if the title should in this manner be proceeded in, he should lose the benefit of his warrantry; 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. The judgment of the lords in parliament thereupon is entered in these words: "Et quia actio de prædicto tenemento petendo & etiam suum recuperare, si quid habere debeat vel possit eidem Adæ per "assisam mortis antecessoris competere debet, nec est juri con"sonum vel hactenus in curia ista usitat' quod aliquis sine lege communi & brevi de cancellaria de libero tenemento suo res"pondeat, & maxime in casu ubi breve de cancellaria locum "habere potest, dictum est præfato Adæ quod sibi perquirat per "breve de cancellaria si sibi viderit expedire." Rot. Parl. 13 R. 2. No. 10. Adam Chaucer preferred his petition to the king and lords in parliament against Sir Robert Knolles, to be relieved touching a mortgage which he supposed 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 dovit estre discuss per le commune ley. Et 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. 50 Edw. 3. No. 43 (a). 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 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 par"lement 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 Edward I. Edward II. Edward III. Henry IV. Henry V. and Henry VI. 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." Sues 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. 46 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 proceedings, should be had before the lords, in the first instance, the party would 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 determined 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 (a) 50 Ed. 3. No. 38. 4 Inst. 22. Cott. Rec. E "determined according to the courts of the common law," is of greater weight than many cases to the contrary, wherein the question was not stirred; yea, even though it should be stirred, and the contrary affirmed 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 were the statutes of Magna Charta cap. 29. 5 Edw. 3. cap. 9. 25 Edw. 3. cap. 4. 29 Edw. 3. cap. 3. 27 Edw. 3. cap. 17. 38 Edw. 3. cap. 9. and 40 Edw. 3. cap. 3; the effect of which is, that no man shall be put out of his lands or tenements, or be imprisoned by any suggestion, unless it be by indictment or presentment of lawful men, or by process at common 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 misdemeanours. 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 misdemeanours, 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. 1 Hen. 4. No. 14. "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 dan vostre "realm dementiers que en vous dits courts purra estre terminer 66 come ad ote fait & use ancienement en temps de vous noble "progeniteurs; et que chescun person qui en temps a venir serra 66 accuse ou impeach en vostre parlement ou en ascuns des vos "dits courts per les seignors & commens di vostre realm ou per "ascun person & defence ou response a son accusement ou empeachment & sur son response reasonable record jugement & tryal come de ancienement temps ad estre fait & use per les "bones leges de vostre realm, nient obstant que les dits empeach"ments ou accusements soient faits per les seigneurs ou commens "de vostre relme come que de novel en temps de Ric. nagdarius ad estre fait & use a contrar, a tres grand mischief & tres grand maleveys exemple de vostre realm." " roy 66 "Le roy voet que de cy en avant toutes les appeles de choses "faits deins le relme soient tryez & terminez per les bones leys faits 46 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 temps " a venir." This is the petition and answer. The statute, as drawn up hereupon, is general, and runs thus: "Item, pur plusieurs grands "inconveniences & mischiefs 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; et que 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" (a). Where we may observe, that though 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 it is 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 misdemeanours also. As appears by that great proceeding, 11 Ric. 2. against divers, by the lords appellants; 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 (a) Vide stat. 1 Hen. 4. cap. 14. in the quarto edit. of stat. at large by Run. ed. 1786. Įv. 397. Cott. Rec. p. 397, See also 3 Inst. 31. 182. 1 Mod. 148. |