CHARACTERISTICS OF THE COMMON LAW 277 



that without delay he render a certain thing to B or do full right to B. 

 Calvin's Case neatly illustrates this adaptability. By a writ of assize 

 and a demurrer the whole matter was capable of consideration and 

 settlement. 



A third characteristic of the common law is its generality. No one 

 was above the law, and every man, whatever his rank, under the same 

 circumstances, was subject to the same law and in the same courts. 

 The ancient law has been stated in the thirteenth century in the 

 Statute of Marlborough (1267) : " All persons as well of high as of low 

 estate shall receive justice in the King's Courts." Of this Coke says 

 (2 Inst. 103), "This is the golden met-wand that the law appointeth 

 to measure the cases of all and singular persons, high and low, to 

 have and receive justice in the King's Courts." His added words, 

 "For the King hath distributed his judicial power to several courts 

 of justice, and courts of justice ought to determine all causes, and 

 that all private revenges bee avoided " (see also 4 Inst. 71), suggest 

 Sir Frederick Pollock's generalization, not wholly in point in this 

 connection, but conveniently noted here, "The King's Courts, at 

 the outset of their career, came under a rule which we shall find to 

 run through the whole of our legal history and never to have been 

 neglected with impunity. It may be expressed thus: Extraordinary 

 jurisdiction succeeds only by becoming ordinary. By this we mean 

 not only that the judgment and remedies which were once matters 

 of grace have become matters of common right, but the right must 

 be done according to the fundamental ideas of English justice." 

 (" Expansion of the C. L." 14 Col. L. Rev. 17.) King James claimed 

 that he had not delegated all his powers as a law-giver. Lord Elles- 

 mere argued that his proclamation controlled Calvin's Case, summariz- 

 ing it as follows: "So now if this question seems difficult, that 

 neither direct law, nor examples, nor precedents, nor application of 

 like cases, nor discourse of reason, nor the grave opinion of the 

 learned and reverend judges, can resolve it, here is a certain rule, how 

 both by the civile law and the ancient common lawe of England it 

 may and ought to be decided; that is, by a sentence of the most 

 religious, learned, and judicious King that ever this kingdom or 

 island had." (2 H. St. L. 693.) Lord Ellesmere again argued on the 

 same line two years later in the Case of Proclamations. (12 Rep. 74.) 



One other point needs to be referred to. James, the year prior 

 to Calvin's Case, had claimed that "the judges were but the delegates 

 of the King, and the King may take what causes he should please 

 to determine, from the determination of the judges and may deter- 

 mine them himself." (12 Rep. 63.) But the common law has settled 

 that the judges are more than delegates, and that power once im- 

 parted to them will not return to the King. 



A fourth characteristic of the common law is that the proceedings 



