The Doctor and Student (1518)

Christopher St. Germain

What is meant by this term, when it is said, “thus it was at the common law”

The Common law is taken three manner of ways. First, it is taken as the law of this realm of England, dissevered from all other laws. And under this manner taken it is oftentimes argued in the laws of England, what matters ought of right to be determined by the Common law, and what by the admiral’s court, or by the spiritual court: and also if an obligation bear date out of the realm, as in Spain, France, or such other, it is said in the law, and truth it is, that they be not pleadable at the Common law. Secondly, the Common law is taken as the king’s courts, of his Bench, or of the Common Place: and it is so taken when a plea is removed out of ancient demesne, for that the land is frank-fee, and pleadable at the Common law, that is to say, in the king’s court, and not in ancient demesne. And under this manner taken, it is oftentimes pleaded also in base courts, as in Courts-Barons, the County, and the court of Piepowders, and such other, this matter or that, etc., ought not to be determined in that court, but at the Common law, that is to say, in the king’s courts, etc. Thirdly, by the Common law is understood such things as were law before statute made in that point that is in question; so that that point was holden for law by the general or particular customs and maxims of the realm, or by the law of reason, and the law of God, no other law added to them by statute, nor otherwise, as is the case before rehearsed in the first chapter, where it is said, that at the Common law, tenant by the courtesy and tenant in dower were punishable of waste, that is to say, that, before any statute of waste made, they were punishable of waste by the grounds and maxims of the law used before the statute made in that point. But tenant for term of life, ne for term of years, were not punishable by the said grounds and maxims, till by the statute remedy was given against them; and therefore it is said, that at the Common law they were not punishable of waste.

Doct. I pray thee now proceed unto the second question.