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The History of the Common Law of England
IV.
by Hale, Matthew


Touching the Original of the Common Law of England

The Kingdom of England being a very ancient Kingdom, has had many Vicissitudes and Changes (especially before the coming in of King William I) under several either Conquests or Accessions of Foreign Nations. For tho' the Britains were, as is supposed, the most ancient Inhabitants, yet there were mingled with them, or brought in upon them, the Romans, the Picts, the Saxons, the Danes, and lastly, the Normans; and many of those Foreigners were as it were incorporated together, and made one Common People and Nation; and hence arises the Difficulty, and indeed Moral Impossibility, of giving any satisfactory or so much as probable Conjecture, touching the Original of the Laws, for the following Reasons, viz.

First, From the Nature of Laws themselves in general, which being to be accommodated to the Conditions, Exigencies and Conveniencies of the People, for or by whom they are appointed, as those Exigencies and Conveniencies do insensibly grow upon the People, so many Times there grows insensibly a Variation of Laws, especially in a long Tract of Time; and hence it is, that tho' for the Purpose in some particular Part of the Common Law of England, we may easily say, That the Common Law, as it is now taken, is otherwise than it was in that particular Part or Point in the Time of Hen. 2 when Glanville wrote, or than it was in the time of Hen. 3 when Bracton wrote, yet it is not possible to assign the certain Time when the Change began; nor have we all the Monuments or Memorials, either of Acts of Parliament, or of Judicial Resolutions, which might induce or occasion such Alterations; for we have no authentick Records of any Acts of Parliament before 9 Hen. 3 and those we have of that King's Time, are but few. Nor have we any Reports of Judicial Decisions in any constant Series of Time before the Reign of Edw. I tho' we have the Plea Rolls of the Times of Hen. 3 and King John, in some remarkable Order. So that Use and Custom, and Judicial Decisions and Resolutions, and Acts of Parliament, tho' not now extant, might introduce some New Laws, and alter some Old, which we now take to be the very Common Law itself, tho' the Times and precise Periods of such Alterations are not explicitely or clearly known: But tho' those particular Variations and Accessions have happened in the Laws, yet they being only partial and successive, we may with just Reason say, They are the same English Laws now, that they were 600 Years since in the general. As the Argonauts Ship was the same when it returned home, as it was when it went out, tho' in that long Voyage it had successive Amendments, and scarce came back with any of its former Materials; and as Titius is the same Man he was 40 Years since, tho' Physicians tells us, That in a Tract of seven Years, the Body has scarce any of the same Material Substance it had before.

Secondly, The 2d Difficulty in the Search of the Antiquity of Laws and their Original, is in Relation to that People unto whom the Laws are applied, which in the Case of England, will render many Observables, to shew it hard to be traced. For,

1st, It is an ancient Kingdom, and in such Cases, tho' the People and Government had continued the same ab Origine (as they say the Chinese did, till the late Incursion of the Tartars) without the Mixture of other People, or Laws; yet it were an impossible Thing to give any certain Account of the Original of the Laws of such a People, unless we had as certain Monuments thereof as the Jews had of theirs, by the Hand of Moses, and that upon the following Accounts, viz.

First, We have not any clear and certain Monuments of the original Foundation of the English Kingdom or State, when, and by whom, and how it came to be planted. That which we have concerning it, is uncertain and traditional; and since we cannot know the Original of the planting of this Kingdom, we cannot certainly know the Original of the Laws thereof, which may be well presum'd to be very near as ancient as the Kingdom itself. Again, 2dly, Tho' Tradition might be a competent Discoverer of the Original of a Kingdom or State, I mean Oral Tradition, yet such a Tradition were incompetent without written Monuments to derive to us, at so long a Distance, the original Laws and Constitutions of the Kingdom, because they are of a complex Nature, and therefore not orally traducible to so great a Distance of Ages, unless we had the original or authentick Transcript of those Laws as the People the Jews had of their Law, or as the Romans had of their Laws of the Twelve Tables engraven in Brass. But yet further, 3dly, It is very evident to every Day's Experience, that Laws, the further they go from their original Institution, grow the larger, and the more numerous: In the first Coalition of a People, their Prospect is not great, they provide Laws for their present Exigence and Convenience: But in Process of Time, possibly their first Laws are changed, altered or antiquated, as some of the Laws of the Twelve Tables among the Romans were: But whatsoever be done touching their Old Laws, there must of Necessity be a Provision of New, and other Laws successively answering to the Multitude of successive Exigencies and Emergencies, that in a long Tract of Time will offer themselves; so that if a Man could at this Day have the Prospects of all the Laws of the Britains before any Invasion upon them, it would yet be impossible to say, which of them were New, and which were Old, and the several Seasons and Periods of Time wherein every Law took its Rise and Original, especially since it appears, that in those elder Times, the Britains were not reduced to that civiliz'd Estate, as to keep the Annals and Memorials of their Laws and Government, as the Romans and other civiliz'd Parts of the World have done.

It is true, when the Conquest of a Country appears, we can tell when the Laws of conquering People came to be given to the Conquered. Thus we can tell that in the Time of Hen. 2 when the Conquest of Ireland had obtain'd a good Progress, and in the Time of K. John, when it was compleated, the English Laws were settled in Ireland: But if we were upon this Inquiry, What were the Original of those English Laws that were thus settled there; we are still under the same Quest and Difficulty that we are now, viz. What is the Original of the English Laws. For they that begin New Colonies, Plantations and Conquests; if they settle New Laws, and which the Places had not before, yet for the most Part (I don't say altogether) they are the Old Laws which obtain'd in those Countries from whence the Conquerors or Planters came.

Secondly, the 2d Difficulty of the Discovery of the Original of the English Laws is this, That this Kingdom has had many and great Vicissitudes of People that inhabited it, and that in their several Times prevail'd and obtain'd a great Hand in the Government of this Kingdom, whereby it came to pass, that there arose a great Mixture and Variety of Laws: In some Places the Laws of the Saxons, in some Places the Laws of the Danes, in some Places the Laws of the ancient Britains, in some Places, the Laws of the Mercians, and in some Places, or among some People (perhaps) the Laws of the Normans: For altho', as I shall shew hereafter, the Normans never obtain'd this Kingdom by such a Right of Conquest, as did or might alter the established Laws of the Kingdom; yet considering that K. Will. I brought with him a great Multitude of that Nation, and many Persons of great Power and Eminence, which were planted generally over this Kingdom, especially in the Possessions of such as had oppos'd his coming in, it must needs be suppos'd, that those Occurrences might easily have a great Influence upon the Laws of this Kingdom, and secretly and insensibly introduce New Laws, Customs and Usages; so that altho' the Body and Gross of the Law might continue the same, and so continue the ancient Denomination that it first had, yet it must needs receive diverse Accessions from the Laws of those People that were thus intermingled with the ancient Britains or Saxons, as the Rivers of Severn, Thames, Trent, &c. tho' they continue the same Denomination which their first Stream had, yet have the Accession of divers other Streams added to them in the Tracts of their Passage which enlarge and augment them. And hence grew those several Denominations of the Saxon, Merician, and Danish Laws, out of which (as before is shewn) the Confessor extracted his Body of the Common Law, and therefore among all those various Ingredients and Mixtures of Laws, it is almost an impossible Piece of Chymistry to reduce every Caput Legis to its true Original, as to say, This is a Piece of the Danish, this of the Norman, or this of the Saxon or British Law: Neither was it, or indeed is it much material, which of these is their Original; for 'tis very plain, the Strength and Obligation, and the formal Nature of a Law, is not upon Account that the Danes, or the Saxons, or the Normans, brought it in with them, but they became Laws, and binding in this Kingdom, by Virtue only of their being received and approved here.

Thirdly, A Third Difficulty arises from those accidental Emergencies that happened, either in the Alteration of Laws, or communicating or conveying of them to this Kingdom: For first, the Subdivision of the Kingdom into small Kingdoms under the Heptarchy, did most necessarily introduce a Variation of Laws, because the several Parts of the Kingdom, were not under one common Standard, and so it will soon be in any Kingdoms that are cantonized, and not under one common Method of Dispensation of Laws, tho' under one and the same King. Again, The Intercourse and Traffick with other Nations, as it grew more or greater, did gradually make a Communication and Transmigration of Laws from us to them, and from them to us. Again, The Growth of Christianity in this Kingdom, and the Reception of Learned Men from other Parts, especially from Rome, and the Credit that they obtained here, might reasonably introduce some New Laws, and antiquate or abrogate some Old ones that seem'd less consistent with the Christian Doctrines, and by this Means, not only some of the Judicial Laws of the Jews, but also some Points relating to, or bordering upon, or derived from the Canon or Civil Laws, as may be seen in those Laws of the ancient Kings, Ina, Alphred, Canutus, &c. collected by Mr. Lambard.

Having thus far premised, it seems, upon the whole Matter, an endless and insuperable Business to carry up the English Laws to their several Springs and Heads, and to find out their first Original; neither would it be of any Moment or Use if it were done: For whenever the Laws of England, or the several Capita thereof began, or from whence or whomsoever derived, or what Laws of other Countries contributed to the Matter of our Laws; yet most certainly their Obligation arises not from their Matter, but from their Admission and Reception, and Authorization in this Kingdom; and those Laws, if convenient and useful for the Kingdom, were never the worse, tho' they were desumed and taken from the Laws of other Countries, so as they had their Stamp of Obligation and Authority from the Reception and Approbation of this Kingdom by Virtue of the Common Law, of which this Kingdom has been always jealous, especially in relation to the Canon, Civil, and Norman Law, for the Reasons hereafter shewn.

Passing therefore from this unsearchable Inquiry, I shall descend to that which gives the Authority, viz. The formal Constituents, as I may call them, of the Common Law, and they seem to be principally, if not only, those three, viz. 1st. The Common Usage, or Custom, and Practice of this Kingdom, in such Parts thereof as lie in Usage or Custom. 2dly. The Authority of Parliament, introducing such Laws; and, 3dly. The Judicial Decisions of Courts of Justice, consonant to one another in the Series and Successions of Time.

1. As to the first of these, Usage and Custom generally receiv'd, do Obtinere vim Legis, and is that which gives Power sometimes to the Canon Law, as in the Ecclesiastical Courts; sometimes to the Civil Law, as in the Admiralty Courts; and again, controuls both, when they cross other Customs that are generally receiv'd in the Kingdom. This is that which directs Discents, has settled some ancient Ceremonies and Solemnities in Conveyances, Wills and Deeds, and in many more Particulars. And if it be enquired, What is the Evidence of this Custom, or wherein it consists, or is to be found? I answer, It is not simply an unwritten Custom, not barely Orally deriv'd down from one Age to another; but it is a Custom that is derived down in Writing, and transmitted from Age to Age, especially since the Beginning of Edw. I to whose Wisdom the Laws of England owe almost as much as the Laws of Rome to Justinian.

2. Acts of Parliament. And here it must not be wonder'd at, that I make Acts of Parliament one of the Authoritative Constituents of the Common Law, tho' I had before contradistinguished the one from the other; for we are to know, that although the Original or Authentick Transcripts of Acts of Parliament are not before the Time of Hen. 3 and many that were in his Time are perish'd and lost; yet certainly such there were, and many of those Things that we now take for Common Law, were undoubtedly Acts of Parliament, tho' now not to be found of Record. And if in the next Age, the Statutes made in the Time of Hen. 3 and Edw. I were lost, yet even those would pass for Parts of the Common Law, and indeed, by long Usage and the many Resolutions grounded upon them, and by their great Antiquity, they seem even already to be incorporated with the very Common Law; and that this is so, may appear, tho' not by Records, for we have none so ancient, yet by an authentical and unquestionable History, wherein a Man may, without Much Difficulty, find, That many of those Capitala Legum that are now used and taken for Common Law, were things enacted in Parliaments or Great Councils under William I and his Predecessors, Kings of England, as may be made appear hereafter. But yet, those Constitutions and Laws being made before Time of Memory, do now obtain, and are taken as Part of the Common Law and immemorial Customs of the Kingdom; and so they ought now to be esteem'd tho' in their first Original they were Acts of Parliament.

3. Judicial Decisions. It is true, the Decisions of Courts of Justice, tho' by Virtue of the Laws of this Realm they do bind, as a Law between the Parties thereto, as to the particular Case in Question, 'till revers'd by Error or Attaint, yet they do not make a Law properly so called, (for that only the King and Parliament can do); yet they have a great Weight and Authority in Expounding, Declaring, and Publishing what the Law of this Kingdom is, especially when such Decisions hold a Consonancy and Congruity with Resolutions and Decisions of former Times; and tho' such Decisions are less than a Law, yet they are a greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever.

1st. Because the Persons who pronounce those Decisions, are Men chosen by the King for that Employment, as being of greater Learning, Knowledge, and Experience in the Laws than others. 2dly. Because they are upon their Oaths to judge according to the Laws of the Kingdom. 3dly. Because they have the best Helps to inform their Judgments. 4thly. Because they do Sedere Pro Tribunali, and their Judgments are strengthen'd and upheld by the Laws of this Kingdom, till they are by the same Law revers'd or avoided.

Now Judicial Decisions, as far as they refer to the Laws of this Kingdom, are for the Matter of them of Three Kinds:

First, They are either such as have their reasons singly in the Laws and Customs of this Kingdom, as, Who shall succeed as Heir to the Ancestor, what is the Ceremony requisite for passing a Freehold, what Estate, and how much shall the Wife have for her Dower? And many such Matters wherein the ancient and express Laws of the Kingdom give an express Decision, and the Judge seems only the instrument to pronounce it; and in these Things, the Law or custom of the Realm is the only Rule and Measure to judge by, and in reference to those Matters, the Decisions of Courts are the Conservatories and Evidences of those Laws.

Secondly, Or they are such Decisions, as by Way of Deduction and Illation upon those Laws are framed or deduced; as for the Purpose, Whether of an Estate thus or thus limited, the Wife shall be endowed? Whether if thus or thus limited, the Heir may be barr'd? And infinite more of the like complicated Questions. And herein the Rule of Decision is, First, the Common Law and Custom of the Realm, which is the great Substratum that is to be maintain'd; and then Authorities or Decisions of former Times in the same or the like Cases, and then the Reason of the Thing itself.

Thirdly, Or they are such as seem to have no other Guide but the common Reason of the Thing, unless the same Point has been formally decided, as in the Exposition of the Intention of Clauses in Deeds, Wills, Covenants, &c. where the very Sense of the Words, and their Positions and Relations, give a rational Account of the Meaning of the Parties, and in such Cases the Judge does much better herein, than what a bare grave Grammarian or Logician, or other prudent Men could do; for in many Cases there have been former Resolutions, either in Point or agreeing in Reason or Analogy with the Case in Question; or perhaps also, the Clause to be expounded is mingled with some Terms or Clauses that require the Knowledge of the Law to help out with the Construction or Exposition: Both which do often happen in the same Case, and therefore it requires the Knowledge of the Law to render and expound such Clauses and Sentences; and doubtless a good Common Lawyer is the best Expositor of such Clauses, &c. Vide Plowden, 122, to 130, 140, &c.

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