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having rejected, while those nations have admitted, the Roman law : which is mistaking the effect for the cause. It is not because the English have rejected the Roman laws that they are free; but it is because they were free (or at least because there existed among them causes which were, in process of time, to make them so that they have been able to reject the Roman laws. But even though they had admitted those laws, these same circumstances that have enabled them to reject the whole, would have likewise enabled them to reject those parts which might not have suited them; and they would have seen that it is very possible to receive the decisions of the civil law on the subject of the servitutes urbanæ et rustice, without adopting its principles with respect to the power of the emperors.*
Of this the republic of Holland, where the civil law is adopted, would afford a proof, if there were not the still more striking one of the emperor of Germany, who, though, in the opinion of the people, he is the successor to the very throne of the Cæsars, has not, by a great deal, so much power as a king of England; and the reading of the several treaties which deprive him of the power of nominating the principal officers of the empire sufficiently shows that a spirit of unlimited submission to monarchical power is no necessary consequence of the admission of the Roman civil law.
The laws, therefore, that have taken place in England are what they call the unwritten law (also termed the common law), and the statute law.
The unwritten law is thus called, not because it is only transmitted by tradition from generation to generation, but because it is not founded on any known act of the legis. lature. It receives its force from immemorial custom, and. for the most part, derives its origin from acts of parliament enacted in the times which immediately followed the Conquest (particularly those anterior to the time of Richard the First), the originals of which are lost.
The principal objects settled by the common law are the rules of descent, the different methods of acquiring property, the various forms required for rendering contracts valid ; in
* What particularly frightens the English lawyers is, L. i. Lib. I, Tit. 4, Dig:- Quod principi placuerit legis habet vigorem,
all which points it differs, more or less, from the civil law. Thus, by the common law, lands descend to the eldest son, to the exclusion of all his brothers and sisters; whereas, by the civil law, they are equally divided among the children: by the common law, property is transferred by writing ; but, by the civil law, tradition (or actual delivery) is moreover requisite, &c.
The source from which the decisions of the common law are drawn is what is called præteritorum memoria eventorum, and is found in the collection of judgments that have been passed from time immemorial, and which, as well as the proceedings relative to them, are carefully preserved under the title of records. In order that the principles established by such a series of judgments may be known, extracts of them are, from time to time, published under the name of reports; and these reports reach, by a regular series, so far back as the reign of Edward the Second, inclusively.
Besides this collection, which is pretty voluminous, there are also some ancient writers of great authority among lawyers; such as Glanvil, who flourished in the reign of Henry the Second; Bracton, who wrote under Henry the Third ; Fleta, and Lyttelton.* Among more modern authors, is Sir Edward Coke, Lord Chief Justice of the
* The author might also have added Fortescue, Henry Horn, Hengham, and the Coustumier. It is pretended that the Coustumier de Normandy was compiled long before the time of William the Conqueror, and brought over by him. This is not probable. It contains several passages from Glanville ; although his courts of justice, original writs, &c., are not mentioned in that compilation. It contains many of the laws of Edward the Confessor, and other Saxon princes, mingled with irrelative Norman customs or laws.--Ed.
Rainulph de Glanville was Henry the Second's Chief Justice. He is the reputed author of the “Tractatus de Legibus et Consuetudinibus Regni. Angliæ, &c.” It was first printed, by the advice of Sir William Stamfert, in 8vo. without date, but previous to 1554, when a new edition was printed in London. Each of its fourteen books is appropriated to a special division of the law, and it contains copies of the original writs then in use.—Ed.
John Bracton was Judge itinerant in the reign of Henry III. and Edward I. His work; in five books, “De Legibus et Consuetudinibus Angliæ," first printed in London, 1569, forms a code of our old common law of great value and authority. He often quotes Justinian, with whose laws he appears to have been perfectly familiar.-Ed.
The “ Mirror de Justice," which was written by Andrew Horn in the
King's Bench, under James the First, who has written four books of Institutes, and is at present the oracle of the common law.
The common law moreover comprehends some particular customs, which are fragments of the ancient Saxon laws, escaped from the disaster of the Conquest : such as that called Gavel-kind, in the county of Kent, by which lands are divided equally between or among the sons; and that called Borough-English, by which, in some districts, lands descend to the youngest son.
The civil law, in the few instances where it is admitted, is likewise comprehended under the unwritten law, because it is of force only so far as it has been authorised by immemorial custom. Some of its principles are followed in the Ecclesiastical Courts, in the Courts of Admiralty, and in the Courts of the two Universities; but it is there nothing more than lex sub lege graviori ; and these different courts must conform to acts of parliament, and to the sense given to reign of Edward II., is a very curious work in its view of the duty of judges, and in its quotations from Saxon Rolls and Year Books.- Ed.
Britton, or John Breton, a judge, wrote a “ Manual or Summary of the Laws in Force in the Reigns of Edwards I. and II.," and written in the old French of the 13th century: it is curious and valuable, as running throughout in the name of the king.-Ed.
Sir Rulp de Hengham was Chief Justice of the King's Bench and of the Common Pleas under Edward I. His Hengham Magna and Parva, or Summas, treat of obsolete proceedings in defaults and Essoins. From bad Latin they were translated into worse English; but afterwards rendered into at least intelligible Latin by Selden, and published alone with Fortescue's work with English notes.—Ed.
The author of Fleta occasionally transcribes Bracton literally. He treats of the Pleas of the Crown, of the King's Household (very curious), the practice of the courts, forms of writs, &c. The title is said to be derived from the author having written it in the Fleet Prison ?-Ed.
Sir John Fortescue was Chief Justice of the King's Bench in the reign of Henry VI. His Latin dialogues between himself and the king, entitled “De Laudibus Legum Angliæ,” consist chiefly of an eulogy of the common law. It is a very instructive book; the first rude translation, by Mulcaster, was revised by Selden, and published with notes and with the Summas Hengham. In the reign of Edward IV., the voluminous reports of the Year Books were abbreviated under short: heads by Nicholas Statham, one of the Barons of the Exchequer.- Edo
Sir Thomas Littleton was a Justice of Common Pleas in the reign of Edward IV. His “Book of Tenures” is of inestimable value. Coke's “ Institutes,” and “ Complete Copy-Holder," are commentaries on Littleton.-Ed.
COURT OF COMMON PLEAS.
them by the courts of common law, being moreover subjected to the control of the latter.
Lastly, the written law is the collection of the various acts of parliament, the originals of which are carefully preserved, especially since the reign of Edward the Third. Without entering into the distinctions made by lawyers with respect to them—such as public and private acts, declaratory acts, or such as are made to extend or restrain the common law, &c.,- it will be sufficient to observe that, being the result of the united wills of the three constituent parts of the legislature, they in all cases supersede both the common law and all former statutes; and the judges must take cognizance of them, and decide in conformity to them, even though they had not been alleged by the parties. *
The different courts for the administration of justice in England are,
I. The Court of Common Pleas. It formerly made a part of the Aula Regis (the king's hall or court); but as the latter was bound by its institution always to follow the person of the king, and private individuals experienced great difficulties in obtaining relief from a court that was ambulatory and always in motion, it was made one of the articles of the Great Charter, that the Court of Common Pleas should thenceforward be holden in a fixed place ;t and since
* Unless they be private acts.
f Communia placita non sequantur curiam nostram, sed teneantur in aliquo loco certo.—Magna Charta, cap. 17.
Sir Edward Coke gave his opinion that the Court of Common Pleas was distinct from the Aula Regis, before the Conquest, and not originally created by Magna Charta ; although all original writs might have been returnable in the Banco Regis, where Common Pleas might also have been held.-Preface to Eighth Report and First Institute. Maddox assigns a much later period to the erection of this Court.- See History of the Erchequer.- Ed.
The Court of Common Pleas is now presided over by one Chief Justice and four puisne judges. Its jurisdiction extends over all Eng. land; previously to 1830 it had no original jurisdiction peculiar to itself. “Its authority was, until after the Act'1 Will. IV. c. 70, and the Act 11 Will. IV. c. 39, as the king's mandate, issued out of the Court of Chancery, to proceed in the determination of causes therein mentioned.-Ed.
The Common Pleas has power to grant writs of Habeas Corpus in all
that time it has been seated at Westminster. It is composed of a Lord Chief Justice, and three other judges; and appeals from its judgments, usually called writs of error, are brought before the Court of King's Bench.
II. The Court of Exchequer. It was originally established to determine those causes in which the king, or his servants, or accomptants, were concerned, and has gradually become open to all persons. The confining the power of this court to the above class of persons is therefore now a mere fiction ; only a man must, for form's sake, set forth in his declaration that he is debtor to the king, whether he be so or no. This court is composed of the Chief Baron of the Exchequer, and three other judges.* cases, to punish its own officers and ministers and others for contempt against the rules and orders of the court.
When the original Aula Regis was dissolved, the Court of Queen's Bench had the cognizance of all trespasses against the king's peace, and a control over all inferior courts.
The Exchequer holds jurisdiction over all revenue cases. Both the Queen's Bench and Exchequer, by fictitious proceedings, contrived to appropriate a great share of the jurisdiction of the Common Pleas, to which were carried all causes of a purely civil nature between private persons. Nearly all causes between plaintiffs and defendants may be indiscriminately tried in each of the three courts. Before the passing of 3 and 4 William IV. c. 27, the Court of Common Pleas held exclusive jurisdiction in all actions called real, as they concerned “Freeholds or Reality,” including common assurances of recoveries and fines; but, since the passing of this act, the Common Pleas does not possess the same exclusive jurisdiction, except in the forms of actions of Dower and Quare impedit. By 6 Vict. c. 18, appeals from the decisions of the Revising Barristers, in regard to disputed claims to vote for Members of Parliament, are to be made to this court. Since the passing of 2 Wil. IV. c. 39 (Lord Tenterden's Bill), an uniformity of process in the three courts of law, in all personal actions, has been provided by writs of summons and capias. By 11 Geo. IV. and 1 Will. IV. c. 70, appeals from the Common Pleas, which were previously, by writ of error, made to the Justice of the King's Bench, have been discontinued, and a Court of Error in the Exchequer Chamber established, where appeals are carried from the three courts, and whence an appeal may still lie to the House of Peers.--Ed.
* Polidore Virgil, in his History, book ix. p. 154, says, that when William I. instituted the Exchequer in England, it was “corruptly called Scaccarium," but that "it should be called Statarium, as it was the firm support of the crown or kingdom, nothing being of greater force to establish a kingdom than revenue.”—Ed.
Maddox says that the Exchequer took its name from the chequered