CHARACTERISTICS OF THE COMMON LAW 281 



vouches the laws of Edward I and of William II, Rolls of Court 

 and of Parliament, Book of Entries, Skeene, Bacon, Law of Nature, 

 Broke's Abridgment, Doctor and Student, Virgil, Tully, Romans, 

 and the Acts of the Apostles. An interesting picture is suggested 

 where in his report he says, " and Coke, Chief Justice of the Court 

 of Common Pleas, cited a ruled case but of Hingham's report, 

 tempore E. 1, which in his argument he showed in court written in 

 parchment in the ancient hand of that time" (7 Rep. 9b), "which 

 afterwards the Lord Chancellor and the Chief Justice of the King's 

 Bench, having copies of the said ancient report, affirmed in their 

 arguments." (7 Rep. lOa.) Authenticity of report counted as part 

 of its authority. And again where he says " and so it was in Perkin 

 Warbeck's Case and this appeareth in the book of Griffith, At- 

 torney General, by an extract out of the book of Hobart, Attorney 

 General to King Henry 7." (7 Rep. 6b.) 



A sixth characteristic of the common law is seen in its judgments 

 when contrasted with legislation proper. 



The judgment in Calvin's Case in the Exchequer Chamber was 

 that the plea of alienage was not sufficient in law to bar the plaintiff, 

 and that defendant further answer. This judgment by indirection 

 had all the effect of an act of Parliament, naturalizing all the post- 

 nati of Scotland. If any other post-natus had brought a similar 

 action, the Court of King's Bench would have followed Calvin's 

 Case, and so on indefinitely. The same result followed as would have 

 been accomplished if Parliament had enacted the proposed bill 

 naturalizing the post-nati. 



It remains to- contrast judgments in common law with legislation 

 proper in the time of Lord Coke. Legislation then was not strictly con- 

 fined to the King and Parliament. Other competitors were the King 

 in Council, Resolutions of either House of Parliament, Electors 

 of Parliament by vote, and the law courts themselves. (See Dicey, 

 Constitution, pp. 48-58.) This in part explains the absence from the 

 Statutes of the Realm of much of that general legislation which 

 afterwards made acts of Parliament so voluminous. But speaking 

 of Parliament by way of contrast with the courts, the former was 

 composed of representatives interested in the subject-matter of 

 legislation. The courts were operated by officers who were disin- 

 terested and impartial. Representatives in Parliament were chosen 

 from the country at large. The " properties a Parliament man should 

 have," as given by Coke, show the difference in theory between legis- 

 lative function in his day and in modern times. He should be, Lord 

 Coke says, without malice, rancor, heat, or envy; he should be con- 

 stant, inflexible, and not to be bowed or turned from the right either 

 for fear, reward, or favor, nor in judgment respect any person; and, 

 third, of a ripe memory, that they remembering perils passed, 



