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.
