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The History of the Common Law of England|
by Hale, Matthew
| Concerning the settling of the Common Law of
England in Ireland and Wales: And some Observations touching the Isles of Man,
Jersey, and Guernsey, etc.|
The Kingdom of Ireland being conquered by Hen. 2. about the Year 1171.
He in his Great Council at Oxon, constituted his younger Son, John, King
thereof, who prosecuted that Conquest so fully, that he introduced the English
Laws into that Kingdom, and swore all the great Men there to the Observation of
the same, which Laws were, after the Decease of King John, again reinforc'd by
the Writ of King Hen. 3. reciting that of King John, Rot. Claus. 10 H. 3. Memb.
8. & 10. Vide infra, & Pryn. 252, 253, &c.
And because the Laws of England were not so suddenly known there, Writs
from Time to Time issued from hence, containing divers Capitula Legum Angliae.
and commanding their Observation in Ireland, as Rot. Parl. 11 H. 3. the Law
concerning Tenancy by Curtesy, Rot. Claus. 20 H. 3. Memb. 3. Dorso. The Law
concerning the Preference of the Son born after Marriage, to the Son born of
the same Woman before Marriage, or Bastard eigne & Mulier puisne, Rot.
Clauf. 20 H. 3. Memb. 4. in Dorso: So the Law concerning all the Parceners
inheriting without doing Homage, and several Transmissions of the like
For tho' King Hen. 2. had done as much to introduce the English Laws
there, as the Nature of the Inhabitants or the Circunmstances of the Times
would permit; yet partly for want of Sheriffs, that Kingdom being then not
divided into Counties, and partly by reason of the Instability of the Irisb, he
could not fully effect his Design: And therefore, King John, to supply those
Defects as far as he was able, divided Leinster and Munster into the several
Counties of Dublin, Kildare, Meath, Uriel, Catherlogh, Kilkenny, Wexford,
Waterford, Cork, Limerick, Tiperary, and Kerry; and appointed Sheriffs and
other Officers to govern 'em after the Manner of England; and likewise caused
an Abstract of the English Laws under his Great Seal to be transmitted thither,
and deposited in the Exchequer at Dublin: And soon after, in an Irish
Parliament, by a general Consent, and at the Instance of the Irish, he
ordain'd, That the English Laws and Customs should thenceforth be observ'd in
Ireland; and in order to it, he sent his Judges thither, and erected Courts of
Judicature at Dublin.
But notwithstanding these Precautions of King John, yet for that the
Brehon Law, and other Irish Customs, gave more of Power to the great Men, and
yet did not restrain the Common People to so strict and regular a Discipline as
the Laws of England did. Therefore the very English themselves became corrupted
by them, and the English Laws soon became of little Use or Esteem, and were
look'd upon by the Irish and the degenerate English as a Yoke of Bondage; so
that King Hen. 3. was oftentimes necessitated to revive. em, and by several
successive W rits to join the Observation of them. And in the Eleventh Year of
his Reign, he sent the following Writ, viz.
Henrici Rex, &c. Baronibus Militibus & aliis liberi Tenentibus
Lageniae, salutem, &c. Satis ut credimus vestra audivit discretio, quod cum
bonae memoriae Johannes, quondam Rex Angliae Pater noster venit in Hiberniam,
ipse duxit secum viros discretos & Legis peritos, quorum Communi Consilio,
& ad instantiam Hiberniensium Statuit & praecepit Leges Anglicanas
teneri in Hibernia, ita quod Leges easdem in scriptis readactas reliquit sub
sigillo suo ad Scaccar. Dublin. Cum igitur Consuetudo & Lex Angliae fuerit,
quod si aliquis desponsaverit aliquam Mulierem, sive Viduam sive aliam
haereditatem habentem, & ipse postmodum ex ea prolem suscitaverit cujus
clamor auditus fuerit infra quatuor parietes idem Vir si supervixerit ipsam
uxorem suam, habebit tota vita sua Custodiam Haereditatis uxoris suae, licet ea
forte habuerit Haeredem de primo viro suo qui fuerit Plenae aetatis vobis
Mandamus injungentes quatenus in loquela quae est in Curia Willi. Com. Maresc.
inter Mauritium Fitz Gerald Petent. & Galfridum de Marisco Justiciarium
nostrum Hiberniae tenentem, vel in Alia Loquela quae fuerit in Casu praedicto
nullo modo Justitiam in contrar' facere praesumatis.
Teste Rege apud Westm.
10 Decemb. Anno 110 Regni Nostri.
And Note, In the same Year another Writ was sent to the Lord Justice,
commanding him to aid the Episcopal Excommunications in Ireland with the
Secular Arm, as in England was used.
And about this Time, Hubert de Burgo, the Chief Justice of England, and
Earl of Kent, was made Earl of Connaught, and Lord Justice of Ireland during
Life; and because he could not personally attend, he on March the 10th, 1227,
appointed Richard de Burgo, to be his Deputy, or Lord Justice, to whom the King
sent the following Writ:
Rex dilecto & fideli suo Richardo de Burgo Justiciario suo Hiberniae
salutem. Mandamus vobis firmiter praecipientes, quatenus certo die & loco
faciatis venire coram vobis, Archiepiscopos, Episcopos, Abbates, Priores,
Comites & Barones, Milites & libere Tenentes & Ballivos singulorum
Comitatuum, & coram eis publice legi faciatis Chartam Domini Johannis Regis
Patris nostri, cui sigillum suum appensum est, quam fieri fecit, & jurari a
Magnatibus Hiberniae de Legibus & consuetudinibus Anglorum observandis in
Hibernia, & Praecipiatis eis ex parte nostra, quod Leges illas &
consuetudines in Charta praedicta contentas de cetero firmiter teneant &
observent. Et hoc idem per singulos Comitatus Hiberniae clamari faciatis, &
teneri prohibentes firmiter ex parte nostra & forisiacturam nostram, ne
quis contra hoc Mandatum nostrum, venire praesumat. Eo excepto quod nec de
morte nec de catallis Hibernensium occisorum nihil statuatur ex parte nostra
citra quindecim dies a Sancti Michaelis, Anno Regni Nostri 12? Super quo
respectum dedimus Magnat. nostri de Hib. usque ad Terminum praedict' Teste
Meipso apud Westm. 8° die Maii, Anno Regni Nostri 12?
And about the 20th Year of Hen. 3. several Writs were sent into Ireland,
especially directing several Statutes which had been made in England to be put
in Use, and to be observed in Ireland; as the Statute of Merton in the Case of
But yet it seems by the frequent Grants that were made afterwards to
particular Native Irish Men, quod legibus utantur Anglicanis, That the Native
Irish had not the full Privilege of the English Laws, in Relation at least to
the Liberties of English Men, till about the Third of Edw. 3. Vide Rot. Claus.
2 E. 3. Memb. 17.
As the Common Law of England was thus by King John and Hen. 3.
introduced into Ireland, so in the Tenth of Hen. 7. all the precedent Statutes
of England were there settled by the Parliament of Ireland. 'Tis true, many
ancient Irish Customs continued in Ireland, and do continue there even unto
this Day; but such as are contrary to the Laws of England are disallow'd Vide
Davis's Reports, the Case of Tanistry.
As touching Wales, That was not always the Feudal Territory of the
Kingdom of England; but having been long governed by a Prince of their own,
there were very many Laws and Customs used in Wales, utterly strange to the
Laws of England, the Principal whereof they attribute to their King Howell
After King Edw. I had subdued Wales, and brought it immediately under
his Dominion; He first made a strict Inquisition touching the Welsh Laws within
their several Commotes and Seigniores, which Inquisitions are yet of Record:
After which, in the 12th of Edw. I. the Statute of Rutland was made, whereby
the Administration of Justice in Wales was settled in a Method very near to the
Rule of the Law of England. The Preamble of the said Statute is notable,
Edvardus Dei gratia Rex Angliae Dominus Hiberniae & Dux Acquitaniae
omnibus Fidelibas suis de Terra sua de Snodon & de aliis terris suis in
Wallia Salutem in Domino. Divina Providentia quae in sua Dispositione non
fallitur, inter alia suae Dispensationis Munera, quibus nos & Regnum
nostrum Angliae decorari dignata est, Terram Walliae cum incolis suis prius
nobis juri Feodali subjectam, tam sui gratia in proprietatis nostrae Dominium,
obstaculis quibuscunque cessantibus, totaliter & cum integritate convertit,
& Coroniae Regni praedicti tantum partem corporis ejusdem annexuit &
univit. Nos, &c.
According to the Method in that Statute prescribed, has the Method of
Justice been hitherto administred in Wales, with such Alterations and additions
therein as have been made by the several subsequent Statutes of 27 and 34 H. 8.
Touching the Isle of Man. This was sometimes Parcel of the Kingdom of
Norway, and governed by Particular Laws and Customs of their own, tho' many of
them hold Proportion, or bear some Analogy, to the Laws of England, and
probably were at first and originally derived from hence; seeing the Kingdom of
Norway as well as the Isle of Man have anciently been in Subjection to the
Crown of England. Vide Legis Willi. Primi, in Lambard's Saxon Laws.
Berwick was sometimes Parcel of Scotland, but was won by Conquest by
King Edw. I, and after that lost by King Edw. 2, and afterwards regained by
Edw. 3. It was governed by the Laws of Scotland, and their own particular
Customs, and not according to the Rules of the Common Law of England, further
than as by Custom it is there admitted, as in Liber Parliamenti, 21 E. I. in
the Case of Moyne and Bartlemew, Pro Dote in Berwick; yet now by Charter, they
send Burgesses to the Parliament of England.
Touching the Islands of Jersey, Guernsey, Sark, and Alderney; They were
anciently a Part of the Dutchy of Normandy, and in that Right, the Kings of
England held them till the Time of King John; but although King John, as is
before shewn, was unjustly deprived of that Dutchy, yet he kept the Islands;
and when after that, they were by Force taken from him, he by the like Force
regained them, and they have ever since continued in the Possession of the
Crown of England.
As to their Laws, they are not governed by the Laws of England, but by
the Laws and Customs of Normandy. But not as they are at this Day; for since
the actual Division and Separation of those Islands from that Dutchy, there
have been several New Edicts and Laws made by the Kings of France which have
much altered the old Law of Normandy, which Edicts and Laws bind not in those
Islands, they having been ever since King John's Time at least under the actual
Allegiance of England.
And hence it is, that tho' there be late Collections of the Laws and
Customs of Normandy, as Terrier and some others, yet they are not of any
Authority it those Islands; for the Decision of Controversies, as the Grand
Contumier of Normandy is, which is (at least in the greatest Part thereof) a
Collection of the Laws of Normandy as they stood before the Disjoining of those
Islands from the Dutchy, viz. before the Time of King Hen. 3. tho' there be in
that Collection some Edicts of the Kings of France which were made after that
Disjunction; and those Laws, as I have shewn before, tho' in some Things they
agree with the Laws of England, yet in many Things they differ, and in some are
And hence it is, that regularly Suits arising in those Islands are not
to be tried or determined in the King's Courts in England, but are to be heard,
tried, and determined in those Islands, either before the ordinarY Courts of
Jurats there, or by the Justices Itinerant there, commissioned under the Great
Seal of England, to determine Matters there arising; and the Reason is, because
their Course of Proceedings, and their Laws, differ from the Course of
Proceedings and the Laws of England.
And altho' it be true, that in ancient Times, since the Loss of
Normandy, some scattering Instances are of Pleas moved here touching Things
done in those Islands, yet the general settled Rule has been to remit them to
those Islands, to be tried and determined there by their Law; tho' at this Day
the Courts at Westminster hold Plea of all transitory Actions wheresoever they
arise, for it cannot appear upon the Record where they did arise.
Mic. 42 E. 2. Rot. 45. coram Rege. A great Complaint was made by
Petition, against the Deputy Governor of those Islands, for divers Oppressions
and Wrongs done there: This Petition was by the Chancellor delivered into the
Court of B. R. to proceed upon it, whereupon there were Pleadings on both
Sides; but because it appeared to be for Things done and transacted in the said
Islands, Judgment was thus given:
Et quia Negotiam praedict' in Curia hic terminari non potest, eo quod
Juratores Insulae praedict' coram Justitiariis hic venire non possunt, nec de
Jure debent, nec aliqua Negotia infra Insula praedicta emergentia terminari non
debent, nisi secundum Consuet. Insulae Praedictae. Ideo Recordum retro traditur
Cancellario ut inde fiat Commissio Domini Regis ad Negotia praedicta in Insula
praedicta audienda & Terminanda secundum Consuet' Insulae praedictae.
And accordingly 14 Junii, 1565, upon a Report from the Attorney General,
and Advice with the two Chief Justices, a general Direction was given by the
Queen and her Council, That all Suits between the Islanders, or wherein one
Party was an Islander, for Matters arising within the Islands, should be there
heard and determined.
But still this is to be taken with this Distinction and Limitation, viz.
That where the Suit is immediately for the King, there the King may make his
Suit in any of the Courts here, especially in the Court of King's-Bench: For
Instance, in a Quare Impedit brought by the King in B. R. here for a Church in
those Islands; so in a Qiuo Warranto for Liberties there; so a Demand of
Redemption of Lands sold by the King's Tenant within a Year and a Day according
to the Custom of Normandy; so in an Information for a Riot, or grand Contempt
against a Governor deputed by the King. These and the like Suits have been
maintained by the King in his Court of King's-Bench here, tho' for Matters
arising within those Islands: This appears, Paschae 16 E. 2. coram Rege, Rot.
82. Mich. 18 E. 2. Rot. 123, 124, 125. & Pas. I E. 3. Rot. 59.
And for the same Reason it is, that a Writ of Habeas Corpus lies into
those Islands for one imprisoned there, for the King may demand, and must have
an Account of the Cause of any of his Subjects Loss of Liberty; and therefore a
Return must be made of this Writ, to give the Court an Account of the Cause of
Imprisonment; for no Liberty, whether of a County Palatine, or other, holds
Place against those Brevia Mandatoria, as that great Instance of punishing the
Bishop of Durham for refusing to execute a Writ of Habeas Corpus out of the
King's Bench, 33 E. I. makes evident.
And as Pleas arising in the Islands regularly, ought not in the first
Instance to be deduced into the Courts here, (except in the King's Case;) so
neither ought they to be deduced into the King's Courts here in the second
Instance; and therefore if a Sentence or Judgment be given in the Islands, the
Party grieved thereby, may have his Appeal to the King and his Council to
reverse the same if there be Cause. And this was the Course of Relief in the
Dutchy of Normandy, viz. by Appeal to the Duke and his Council; and in the same
Manner, it is still observed in the Case of erroneous Decrees or Sentences in
those Islands, viz. To appeal to the King and his Council.
But the Errors in such Decrees or Sentences are not examined by Writ of
Error in the King's-Bench, for these Reasons, viz.
1st. Because the Courts there, and those here, go not by the same Rule,
Method, or Order of Law.
And 2dly, Because those Islands, though they are Parcel of the Dominion
of the Crown of England, yet they are not Parcel of the Realm of England, nor
indeed ever were; but were anciently Parcel of the Dutchy of Normandy, and are
those Rewains thereof which the Power of the Crown and Kingdom of France have
not been able to wrest from the Kings of England.