First, 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 (a).

Secondly, 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, for 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 court of the common law, who, next under the king and his parliament, have the exposition of those laws, may prohibit and control them (b).

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 received here, do not bind; and also, for that by several contrary customs and stiles used here, many of those civil and canon laws are controlled and derogated.

(a) Blac. Com. 1 v. 84.

(b) Blac. Com. 1 v. 84.

Thirdly, that although those laws are admitted in some cases in those courts, yet they are but leges sub graviori lege. And the common law of this kingdom has ever obtained and retained the superintendency over them, and those signa superioritatis beforementioned, for the honour of the king and the common law of England (a).

(a) Such laws (says Blackstone,) thus admitted, restrained, altered, new modelled and amended, are by no means with us a distinct independent species of laws, but are inferior branches

of the customary or unwritten laws of England, properly called the king's ecclesiastical, the king's military, the king's maritime, or the king's academical laws. Com. 1 v. 84.

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 allegatious on both sides the judgment is thus entered, viz.

"Et apres les raisons & les allegcances 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;-mande"tur 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 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.

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