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.
