The History of the Common Law of
by Matthew Hale
I. Concerning the Distribution of the Law of England
into Common Law, and Statute Law. And First, concerning the Statute Law, or
Acts of Parliament
The Laws of England may aptly enough be divided into two Kinds, viz. Lex
Scripta, the written Law: and Lex non Scripta, the unwritten Law: For although
(as shall be shewn hereafter) all the Laws of this Kingdom have some Monuments
or Memorials thereof in Writing, yet all of them have not their Original in
Writing; for some of those Laws have obtain'd their Force by immemorial Usage
or Custom, and such Laws are properly call'd Leges non Scriptae, or unwritten
Laws or Customs.
Those Laws therefore, that I call Leges Scriptae, or written Laws, are
such as are usually called Statute Laws, or Acts of Parliament, which are
originally reduced into Writing before they are enacted, or receive any binding
Power, every such Law being in the first Instance formally drawn up in Writing,
and made, as it were, a Tripartite lndenture, between the King, the Lords and
the Commons; for without the concurrent Consent of all those Three Parts of the
Legislature, no such Law is, or can be made: But the Kings of this Realm, with
the Advice and Consent of both Houses of Parliament, have Power to make New
Laws, or to alter, repeal, or enforce the Old. And this has been done in all
Succession of Ages.
Now, Statute Laws, or Acts of Parliament, are of Two Kinds, viz. First,
Those Statutes which were made before Time of Memory; and, Secondly, Those
Statutes which were made within or since Time of Memory; wherein observe, That
according to a juridical Account and legal Signification, Time within Memory is
the Time of Limitation in a Writ of Right; which by the Statute of Westminster
1. cap. 38. was settled, and reduced to the Beginning of the Reign of King
Richard I or Ex prima Coronatione Regis Richardi Primi, who began his Reign the
6th of July 1189, and was crown'd the 3d of September following: So that
whatsoever was before that Time, is before Time of Memory; and what is since
that Time, is, in a legal Sense, said to be within or since the Time of
And therefore it is, that those Statutes or Acts of Parliament that were
made before the Beginning of the Reign of King Richard I and have not since
been repealed or altered, either by contrary Usage, or by subsequent Acts of
Parliament, are now accounted Part of the Lex non Scripta, being as it were
incorporated thereinto, and become a Part of the Common Law; and in Truth, such
Statutes are not now pleadable as Acts of Parliament, (because what is before
Time of Memory is supposed without a Beginning, or at least such a Beginning as
the Law takes Notice of) but they obtain their Strength by meer immemorial
Usage or Custom.
And doubtless, many of those Things that now obtain as Common Law, had
their Original by Parliamentary Acts or Constitutions, made in Writing by the
King, Lords and Commons; though those Acts are now either not extant, or if
extant, were made before Time of Memory; and the Evidence of the Truth hereof
will easily appear, for that in many of those old Acts of Parliament that were
made before Time of Memory, and are yet extant, we many find many of those Laws
enacted which now obtain merely as Common Law, or the General Custom of the
Realm: And were the rest of those Laws extant, probably the Footsteps of the
Original Institution of many more Laws that now obtain meerly as Common Law, or
Customary Laws, by immemorial Usage, would appear to have been at first Statute
Laws, or Acts of Parliament.
Those ancient Acts of Parliament which are ranged under the Head of
Leges non Scriptae, or Customary Laws, as being made before Time of Memory, are
to be considered under Two Periods: Viz. First, Such as were made before the
coming in of King William I commonly called, The Conqueror; or, Secondly, Such
as intervened between his coming in, and the Beginning of the Reign of Richard
I which is the legal Limitation of Time of Memory.
The former Sort of these Laws are mentioned by our ancient Historians,
especially by Brompton, and are now collected into one Volume by William
Lambard, Esq; in his Tractatus de priscis Anglorum Legibus, being a Collection
of the Laws of the Kings, Ina, Alfred, Edward, Athelstane, Edmond, Edgar,
Ethelred, Canutus, and of Edward te Confessor; which last Body of Laws,
compiled by Edward the Confessor, as they were more full and perfect than the
rest, and better accommodated to the then State of Things, so they were such
whereof the English were always very zealous, as being the great Rule and
Standard of their Rights and Liberties: Whereof more hereafter.
The second Sort are those Edicts, Acts of Parliament, or Laws, that were
made after the coming in of King William, commonly named, The Conqueror, and
before the beginning of the Reign of King Richard I and more especially are
those which follow; whereof I shall make but a brief Remembrance here, because
it will be necessary in the Sequel of this Discourse (it may be more than once)
to resume the Mention of them; and besides, Mr Selden, in his Book called,
Janus Anglorum, has given a full Account of those Laws; so that at present it
will be sufficient for me, briefly to collect the Heads or Divisions of them,
under the Reigns of those several Kings wherein they were made, viz.
First, The Laws of King William I. These consisted in a great Measure of
the Repetition of the Laws of King Edward the Confessor, and of the enforcing
them by his own Authority, and the Assent of Parliament, at the Request of the
English; and some new Laws were added by himself with the like Assent of
Parliament, relating to Military Tenures, and the Preservation of the publick
Peace of the Kingdom; all which are mention'd by Mr Lambert, in the Tractate
before-mentioned, but more fully by Mr Selden, in his Collections and
Observations upon Eadmerus.
Secondly, We find little of new Laws after this, till the Time of King
Henry I, who besides the Confirmation of the Laws of the Confessor, and of King
William I brought in a new Volume of Laws, which to this Day are extant, and
called the Laws of King Henry I. The entire Collection of these is entered in
the Red Book of the Exchequer, and from thence are transcribed and published by
the Care of Sir Roger Twisden, in the latter End of Mr Lambart's Book
before-mention'd; what the Success of those Laws were in the Time of King
Steven, and King Henry 2 we shall see hereafter: But they did not much obtain
in England, and are now for the most Part become wholly obsolete, and in Effect
Thirdly, The next considerable Body of Acts of Parliament, were those
made under the Reign of King Henry 2 commonly called, The Constitiutions of
Clarendon; what they were, appears best in Hoveden and Mat. Paris, under the
years of that King. We have little Memory else of any considerable Laws enacted
in this King's Time, except his Assizes, and such Laws as related to the
Forests; which were afterwards improv'd under the Reign of King Richard I. But
of this hereafter, more at large.
And this shall serve for a short Instance of those Statutes, or Acts of
Parliament, that were made before Time of Memnory; whereof, as we have no
Authentical Records, but only Transcripts, either in our ancient Historians, or
other Books and Manuscripts; so they being Things done before Time of Memory,
obtain at this Day no further than as by Usage and Custom they are, as it were,
engrafted into the Body of the Common Law, and made a Part thereof.
And now I come to those Leges Scriptae, or Acts of Parliament, which
were made since or within the Time of Memory, viz. Since the Beginning of the
Reign of Richard I and those I shall divide into Two General Heads, viz. Those
we usually call the Old Statutes, and those we usually call the New or later
Statutes: And because I would prefix some certain Time or Boundary between
them, I shall call those the Old Statutes which end with the Reign of King
Edward 2 and those I shall call the New or later Statutes which begin with the
Reign of King Edward 3 and so are derived through a Succession of Kings and
Queens down to this Day, by a continued and orderly Series.
Touching these later Sort I shall say nothing, for they all keep an
orderly and regular Series of Time, and are extant upon Record, either in the
Parliament Rolls, or in the Statute Rolls of King Edward 3 and those Kings that
follow: For excepting some few years in the Beginning of K. Edward 3. i.e. 2,
3, 7, 8 & 9 Edw. 3. all the Parliament Rolls that ever were since that Time
have been preserved, and are extant; and, for the most Part, the Petitions upon
which the Acts were drawn up, or the very Acts themselves.
Now therefore touching the elder Acts of Parliament, viz. Those that
were made between the First Year of the Reign of K. Richard I and the last year
of K. Edward 2 we have little extant in any authentical History; and nothing in
any authentical Record touching Acts made in the Time of K. Rich. I unless we
take in those Constitutions and Assizes mentioned by Hoveden as aforesaid.
Neither is there any great Evidence, what Acts of Parliament pass'd in
the Time of King John, tho' doubtless many there were both in his Time, and in
the Time of K. Rich. I. But there is no Record extant of them, and the English
Histories of those Times give us but little Account of those Laws; only Matthew
Paris gives us an Historical Account of the Magna Charta, and Charta de
Foresta, granted by King John at Running Mead the 15th of June, in the
Seventeenth Year of his Reign.
And it seems, that the Concession of these Charters was in a
Parliamentary Way; you may see the Transcripts of both Charters verbatim in
Mat. Paris, and in the Red Book of the Exchequer. There were seven Pair of
these Charters sent to some of the Great Monasteries under the Seal of King
John, one Part whereof sent to the Abby of Tewkesbury I have seen under the
Seal of that King; the Substance thereof differs something from the Magna
Charta, and Charta de Foresta, granted by King Henry 3 but not very much, as
may appear by comparing them.
But tho' these Charters of King John seem to have been passed in a kind
of Parliament, yet it was in a Time of great Confusion between that King and
his Nobles; and therefore they obtained not a full Settlement till the Time of
King Henry 3 when the Substance of them was enacted by a full and solemn
I therefore come down to the Times of those succeeding Kings, Henry 3.
Edw. I. and Edw. 2. and the Statutes made in the Times of those Kings, I call
the Old Statutes; partly because many of them were made but in Affirmance of
the Common Law; and partly because the rest of them, that made a Change in the
Common Law, are yet so ancient, that they now seem to have been as it were a
Part of the Common Law, especially considering the many Expositions that have
been made of them in the several Successions of Times, whereby as they became
the great Subject of Judicial Resolutions and Decisions; so those Expositions
and Decisions, together also with those old Statutes themselves, are as it were
incorporated into the very Common Law, and become a Part of it.
In the Times of those three Kings last mentioned, as likewise in the
Times of their Predecessors, there were doubtless many more Acts of Parliament
made than are now extant of Record, or otherwise, which might be a Means of the
Change of the Common Law in the Times of those Kings from what it was before,
tho' all the Records of Memorials of those Acts of Parliament introducing such
a Change, are not at this Day extant: But of those that are extant, I shall
give you a brief Account, not intending a large or accurate Treatise touching
The Reign of Henry 3 was a troublesome Time, in respect of the
Differences between him and his Barons, which were not composed till his 51st
year, after the Battle of Evesham. In his Time there were many Parliaments, but
we have only one Summons of Parliament extant of Record in his Reign, viz. 49
Henry 3. and we have but few of those many Acts of Parliament that passed in
his Time, viz. The great Charter, and Charta de Foresta, in the Ninth year of
his Reign, which were doubtless pass'd in Parliament; the Statute of Merton, in
the 20th year of his Reign; the Statute of Marlbridge, in the 52d year. and the
Dictum sive Edictum de Kenelworth, about the same Time; and some few other old
In the Time of K. Edw. I. there are many more Acts of Parliament extant
than in the Time of K. Henry 3. Yet doubtless, in this King's Time, there were
many more Statutes made than are now extant: Those that are now extant, are
commonly bound together in the old Book of Magna Charta. By those Statutes,
great Alterations and Amendments were made in the Common Law; and by those that
are now extant, we may reasonably guess, that there were considerable
Alterations and Amendments made by those that are not extant, which possibly
may be the real, tho' sudden Means of the great Advance and Alteration of the
Laws of England in this King's Reign, over what they were in the Time of his
The first Summons of Parliament that I remember extant of Record in this
King's Time, is 23 Edw. I, tho' doubtless there were many more before this, the
Records whereof are either lost or mislaid: For many Parliaments were held by
this King before that Time, and many of the Acts pass'd in those Parliaments
are still extant; as, the Statutes of Westminster I, in the 3d of Edw. I. The
Statutes of Gloucester, 6 Edw. I. The Statutes of Westminster 2, and of Winton,
13 Edw. I. The Statutes of Westminster 3, and of Quo Warranto, 18 Edw. I. And
divers others in other years, which I shall have Occasion to mention
In the Time of K. Edw. 2, many Parliaments were held, and many Laws were
enacted; but we have few Acts of Parliament of his Reign extant, especially of
And now, because I intend to give some short Account of some general
Observations touching Parliaments, and of Acts of Parliament pass'd in the
Times of those three Princes, viz. Henry 3. Edw. I. and Edw. 2. because they
are of greatest Antiquity, and therefore the Circumstances that atended them
most liable to be worn out by Process of Time, I will here mention some
Particulars relating to them to preserve their Memory, and which may also be
useful to be known in relation to other Things.
We are therefore to know, That there are these several Kinds of Records
of Things done in Parliament, or especially relating thereto, viz. I. The
Summons to Parliament. 2. The Rolls of Parliament. 3. Bundles of Petitions in
Parliament. 4. The Statutes, or Acts of Parliament themselves. And, 5. The
Brevia de Parliamento, which for the most part were such as issued for the
Wages of Knights and Burgesses; but with these I shall not meddle.
First, as to the Summons to Parliament. These Summons to Parliament are
not all entred of Record in the Times of Henry 3 and Edw. I. none being extant
of Record in the Time of Hen. 3. but that of 49 Hen. 3. and none in the Time of
Edw. I. till the 23 Edw. I. But after that year, they are for the most part
extant of Record, viz. In Dorso Claius' Rotulorum, in the Backside of the Close
Secondly, As to the Rolls of Parliament, viz. The Entry of the several
Petitions, Answers and Transactions in Parliament. Those are generally and
successively extant of Record in the Tower, from 4 Edw. 3. downward till the
End of the Reign of Edw. 4. Excepting only those Parliaments that intervened
between the 1st and the 4th, and between the 6th and the 11th, of Edw. 3.
But of those Rolls in the Times of Hen. 3. and Edw. I. and Edw. 2. many
are lost and few extant; also, of the Time of Henry 3. I have not seen any
Parliament Roll; and all that I ever saw of the Time of Edw. I. was one Roll of
Parliament in the Receipt of the Exchequer of 18 Edw. I. and those Proceedings
and Remembrances which are in the Liber placitor' Parliamenti in the Tower,
beginning, as I remember, with the 20th year of Edw. I. and ending with the
Parliament of Carlisle, 35 Edw. I and not continued between those years with
any constant Series; but including some Remembrances of some Parliaments in the
Time of Edw. I. and others in the Time of Edw. 2.
In the Time of Edw. 2. besides the Rotulus Ordinationum, of the Lords
Ordoners, about 7 Edw. 2. we have little more than the Parliament Rolls of 7
& 8 Edw. 2. and what others are interspersed in the Parliament Book of Edw.
I. above mentioned, and, as I remember, some short Remembrances of Things done
in Parliament in the 19 Edw. 3.
Thirdly, As to the Bundles of Petitions in Parliament. They were for the
most part Petitions of private Persons, and are commonly endorsed with
Remissions to the several Courts where they were properly determinable. There
are many of those Bundles of Petitions, some in the Times of Edw. I. and Edw. 2
and more in the Times of Edw. 3. and the Kings that succeeded him.
Fourthly, The Statutes, or Acts of Parliament themselves. These seem, as
if in the Time of Edw. I. they were drawn up into the Form of a Law in the
first Instance, and so assented to by both Houses, and the King, as may appear
by the very Observation of the Contexture and Fabrick of the Statutes of those
Times. But from near the Beginning of the Reign of Edw. 3. till very near the
End of Hen. 6. they were not in the first Instance drawn up in the Form of Acts
of Parliament; but the Petition and the Answer were entred in the Parliament
Rolls, and out of both, by Advice of the Judges, and others of the King's
Council, the Act was drawn up conformable to the Petition and Answer, and the
Act itself for the most part entred in a Roll, called, The Statute Roll, and
the Tenor thereof affixed to Proclamation Writs, directed to the several
Sheriffs to proclaim it as a Law in their respective Counties.
But because sometimes Difficulties and Troubles arose, by this
extracting of the Statute out of the Petition and Answer; about the latter End
of Hen. 6. and Beginning of Edward 4. they took a Course to reduce 'em, even in
the first Instance, into the full and compleat Form of Acts of Parliament,
which was prosecuted (or Entred) commonly in this Form: Item quaedam Petitio
exhibita fuit in hoc Parliamento forman actus in se continens, &c. and
abating that Stile, the Method still continues much the same, namely; That the
entire Act is drawn up in Form, and so comes to the King for his assent.
The ancient Method of passing Acts of Parliament being thus declared, I
shall now give an Account touching those Acts of Parliament that are at this
Day extant of the Times of Henry 3. Edw. I. and Edw. 2. and they are of two
Sorts, viz. Some of them are extant of Record; others are extant in ancient
Books and Memorials, but none of Record. And those which are extant of Record,
are either Recorded in the proper and natural Roll, viz. the Statute Roll: or
they are entred in some other Roll, especially in the Close Rolls and Patent
Rolls, or in both. Those that are extant, but not of Record, are such as tho'
they have no Record extant of them, but possibly the same is lost; yet they are
preserved in ancient Books and Monuments. and in all Times have had the
Reputation and Authority of Acts of Parliament.
For an Act of Parliament made within Time of Memory, loses not its being
so, because not extant of Record, especially if it be a general Act of
Parliament. For of general Acts of Parliament, the Courts of Common Law are to
take Notice without pleading of them; and such acts shall never be put to be
tried by the Record, upon an Issue of Nul tiel Record. but it shall be tried by
the Court, who, if there be any Difficulty or Uncertainty touching it or the
right Pleading of it, are to use for their Information ancient Copies,
Transcripts, Books, Pleadings and Memorials to inform themselves, but not to
admit the same to be put in Issue by a Plea of Niul tiel Record.
For, as shall be shewn hereafter, there are very many old Statutes which
are admitted and obtain as such, tho' there be no Record at this Day extant
thereof, nor yet any other written Evidence of the same, but what is in a
manner only Traditional, as namely, Ancient and Modern Books of Pleadings, and
the common receiv'd Opinion and Reputation, and the Approbation of the Judges
Learned in the Laws: For the Judges and Courts of Justice are, ex Officio,
(bound) to take Notice of publick Acts of Parliament, and whether they are
truly pleaded or not, and therefore they are the Triers of them. But it is
otherwise of private Acts of Parliament, for they may be put in Issue, and
tried by the Record upon Nul tiel Record pleaded, unless they are produced
exemplified, as was done in the Prince's Cafe in my Lord Coke's 8th Rep. and
therefore the Averment of Nul tiel Record was refused in that Case.
The old Statutes or Acts of Parliament that are of Record, as is before
said, are entred either upon the proper Statute Roll, or some other Roll in
The first Statute Roll which we have, is in the Tower, and begins with
Magna Charta, and ends with Edw. 3. and is called Magnus Rotulus Statutor'.
There are five other Statute Rolls in that Office, of the Times of Richard 2.
Henry 4. Hen. 5. Hen. 6. and Edw. 4.
I shall now give a Scheme of those ancient Statutes of the Times of
Henry 3. Edw. I. and Edw. 2. that are recorded in the first of those Rolls or
elsewhere, to the best of my Remembrance, and according to those Memorials I
have long had by me, viz.
Magna Charta. Magno Rot. Stat. membr. 40. & Rot. Cartar. 28 E. I and
Charta de Foresta. Mag. Rot. Stat. membr. 19 & Rot. Cartar. 28 E. I
Stat. de Gloucestre. Mag. Rot. Stat. memb. 47.
Westm. 2. Rot. Mag. Stat. membr. 47.
Westm. 3. Rot. Clauso, 18 E. I. membr. 6. Dorso.
Winton. Rot. Mag. Stat. memb. 41. Rot. Clauso, 8 E. 3. memb. 6. Dorso.
Pars. 2. Rot. Clauso, 5 R. 2. membr. 13. Rot. Paten. 25 E. I. membr. 13.
De Mercatoribus. Mag. Rot. Stat. Membr. 47. In Dorso.
De Religiosis. Mag. Rot. Stat. membr. 47.
Articuli Cleri. Mag. Rot. Stat. membr. 34. Dorso 2 Pars. Pat. E. I. 2.
membr. 34. 2 Pars. Pat. 2 E. 3. membr. 15.
De hiis qui ponendi sunt in Assisis. Mag. Rot. Stat. membr. 41.
De Finibus levatis. Mag. Rot. Stat. membr. 37.
De defensione Juris liberi Parliam. Lib. Parl. E. I. fo. 32.
Stat. Eborum. Mag. Rot. Stat. membr. 32.
De conjunctis infeofatis. Mag. Rot. Stat. membr. 34.
De Escaetoribus. Mag. Rot. Stat. membr. 35. Dorso, & Rot. Claus. 29
E. I. membr. 14. Dorso.
Stat. de Lincolne. Mag. Rot. Stat. membr. 32.
Stat. de Priscis. Rot. Mag. Stat. membr. 33. In Schedula de libertatibus
perquirendis, vel Rot. Claus. 27 E. I. membr. 24.
Stat. de Acton Burnel. Rot. Mag. Stat. membr. 46. Dorso, & Rot.
Claus. II. E. I. membr. 2.
Juramentum Vicecomit. Rot. Mag. Stat. membr. 34. Dorso, & Rot.
Claus. 5 E. 2. membr. 23.
Articuli Stat. Gloucestriae. Rot. Claus. 2 E. 2. Pars. 2. membr. 8.
De Pistoribus & Braciatoribus. 2 Pars, Claus. vel Pat. 2 R 2. membr.
De asportatis Religiosor. Mag. Rot. Stat. membr. 33.
Westm. 4. De Vicecomitibus & Viridi caera. Rot. Mag. Stat. membr.
33. In Dorso.
Confirmationes Chartarum. Mag. Rot. Stat. membr. 28.
De Terris Templariorum. Mag. Rot. Stat. membr. 31. in Dorso, &
Claus. 17 E. 2. membr. 4.
Litera patens super prisis bonorum Cleri. Rot. Mag. Stat. membr. 33. In
De Forma mittendi extractas ad Scaccar. Rot. Mag. Stat. membr. 36. &
membr. 30. In Dorso.
Statutum de Scaccar. Mag. Rot. Stat.
Statutum de Rutland. Rot Claus. 12 E. 1.
Ordinatio Forestae. Mag. Rot. Stat. membr. 30. & Rot. Claus. 17 E.
2. Pars 2. membr. 3.
According to a strict Inquiry made about 30 years since, these were all
the old Statutes of the Times of Hen. 3. Edw. I. and Edw. 2. that were then to
be found of Record; what other Statutes have been found since, I know not.
The Ordinance called Butler's, for the Heir to punish Waste in the Life
of the Ancestor, tho' it be of Record in the Parliament Book of Edw. I yet it
never was a Statute, nor never so received, but only some Constitution of the
King's Council or Lords in Parliament, and which never obtain'd the Strength or
Force of an Act of Parliament.
Now those Statutes that ensue, tho' most of 'em are unquestionable Acts
of Parliament, yet are not of Record that I know of, but only their Memorials
preserved in ancient Printed and Manuscript Books of Statutes; yet they are at
this Day for the most part generally accepted and taken as Acts of Parliament,
tho' some of 'em are now antiquated and of little Use, viz.
The Statutes of Merton, Marlbridge, Westm. I. Explanatio Statuti
Gloucestriae, De Champertio, De visu Frankplegii, De pane & Cervisia,
Articuli Inquisitionis super Stat. de Winton, Circumspecte agatis, De
districtione Scaccarii, De Conspirationibus, De vocatis ad Warrant. Statut. de
Carliol, De Prerogativa Regis, De modo faciendi Homag. De Wardis & Releivis
Dies Communes in Banco. Stat. de Bigamis, Dies Communes in Banco in casu
consimili. Stat. Hiberniae, De quo Warranto, De Essoin calumpniand. Judicium
collistrigii, De Frangentibus Prisonar'. De malefactoribus in Parcis, De
Consultationibus, De Officio Coronatoris, De Protectionibus, Sententia lata
super Chartas, Modus levandi Fines. Statut. de Gavelet, De Militibus, De Vasto,
De anno Bissextili, De appellatis, De Extenta Manerii, Compositio Mensearum vel
Computatio Mensarum. Stat. de Quo Warranto, Ordinatio de Inquisitionibus,
Ordinatio de Foresta, De admensura Terre, De dimissione Denarior. Statut. de
Quo Warranto novum, Ne Rector prosternat arbores in Caemeterio, Consuetudines
& Assisa de Foresta, Compositio de Ponderibus, De Tallagio, De visu Terrae
& servitio Regis, Compositio ulnarum & particarum, De Terris
amortizandis, Dictum de Kenelworth, &c.
From whence we may collect these Two observations, viz.
First, That altho' the Record itself be not extant, yet general Statutes
made within Time of Memory, namely, since 1 Richardi Primi, do not lose their
Strength, if any authentical Memorials thereof are in Books, and seconded with
a general receiv'd Tradition attesting and approving the same.
Secondly, That many Records, even of Acts of Parliament, have in long
Process of Time been lost, and possibly the Things themselves forgotten at this
Day, which yet in or near the Times wherein they were made, might cause many of
those authoritative Alterations in some Things touching the Proceedings and
Decisions in Law: The Original Cause of which Change being otherwise at this
Day hid and unknown to us; and indeed, Histories (and Annals) give us an
Account of the Suffrages of many Parliaments, whereof we at this Time have
none, or few Footsteps extant in Records or Acts of Parliament. The Instance of
the great Parliament at Oxford, about 40th of Henry 3, may, among many others
of like Nature, be a concurrent Evidence of this: For tho' we have Mention made
in our Histories of many Constitutions made in the said Parliament at Oxford,
and which occasioned much Trouble in the Kingdom, yet we have no Monuments of
Record concerning that Parliament, or what those Constitutions were.
And thus much shall serve touching those Old Statutes or Leges Scriptae,
or Acts of Parliament made in the Times of those three Kings, Henry 3. Edw. I.
and Edw. 2. Those that follow in the Times of Edw. 3. and the succeeding Kings,
are drawn down in a continued Series of Time, and are extant of Record in the
Parliament Rolls, and in the Statute Rolls, without any remarkable Omission,
and therefore I shall say nothing of them.
II. Concerning the Lex non Scripta, i.e. The Common or
Municipal Laws of this Kingdom
In the former Chapter, I have given you a short Account of that Part of
the Laws of England which is called Lex Scripta, namely, Statutes or Acts of
Parliament, which in their original Formation are reduced into Writing, and are
so preserv'd in their Original Form, and in the same Stile and Words wherein
they were first made: I now come to that Part of our Laws called, Lex non
Scripta, under which I include not only General Customs, or the Common Law
properly so called, but even those more particular Laws and Customs applicable
to certain Courts and Persons, whereof more hereafter.
And when I call those Parts of our Laws Leges non Scriptae, I do not
mean as if all those Laws were only Oral, or communicated from the former Ages
to the later, merely by Word. For all those Laws have their several Monuments
in Writing, whereby they are transferr'd from one Age to another, and without
which they would soon lose all kind of Certainty: For as the Civil and Canon
Laws have their Responsa Prudentum Consilia & Decisions, i.e. their Canons,
Decrees, and Decretal Determinations extant in Writing; so those Laws of
England which are not comprised under the Title of Acts of Parliament, are for
the most part extant in Records of Pleas, Proceedings and Judgments, in Books
of Reports, and Judicial Decisions, in Tractates of Learned Men's Arguments and
Opinions, preserved from ancient Times, and still extant in Writing.
But I therefore stile those Parts of the Law, Leges non Scriptae,
because their Authoritative and Original Institutions are not set down in
Writing in that Manner, or with that Authority that Acts of Parliament are, but
they are grown into Use, and have acquired their binding Power and the Force of
Laws by a long and immemorial Usage, and by the Strength of Custom and
Reception in this Kingdom. The Matters indeed, and the Substance of those Laws,
are in Writing, but the formal and obliging Force and Power of them grows by
long Custom and Use, as will fully appear in the ensuing Discourse.
For the Municipal Laws of this Kingdom, which I thus call Leges non
Scriptae, are of a vast Extant, and indeed include in their Generality all
those several Laws which are allowed, as the Rule and Direction of Justice and
Judicial Proceedings, and which are applicable to all those various Subjects,
about which Justice is conversant. I shall, for more Order, and the better to
guide my Reader, distinguish them into Two Kinds, viz.
First, The Common Law, as it is taken in its proper and usual
Secondly, Those particular Laws applicable to particular subjects,
Matters or Courts.
1. Touching the former, viz. The Common Law in its usual and proper
Acceptation. This is that Law by which Proceedings and Determinations in the
King's Ordinary Courts of Justice are directed and guided. This directs the
Course of Discents of Lands, and the Kinds; the Natures, and the Extents and
Qualifications of Estates; therein also the Manner, Forms, Ceremonies and
Solemnities of transferring Estates from one to another. The Rules of Settling,
Acquiring, and Transferring of Properties; The Forms, Solemnities and
Obligation of Contracts; The Rules and Directions for the Exposition of Wills,
Deeds and Acts of Parliament. The Process, Proceedings, Judgments and
Executions of the King's Ordinary Courts of Justice; The Limits, Bounds and
Extents of Courts, and their Jurisdictions. The several Kinds of Temporal
Offences, and Punishments at Common Law. and the Manner of the Application of
the several Kinds of Punishments, and infinite more Particulars which extend
themselves as large as the many Exigencies in the Distribution of the King's
Ordinary Justice requires.
And besides these more common and ordinary Matters to which the Common
Law extends, it likewise includes the Laws applicable to divers Matters of very
great Moment; and tho' by Reason of that Application, the said Common Law
assumes divers Denominations, yet they are but Branches and Parts of it; like
as the same Ocean, tho' it many times receives a different Name from the
Province, Shire, Island or Country to which it is contiguous, yet these are but
Parts of the same Ocean.
Thus the Common Law includes, Lex Prerogativa, as 'tis applied with
certain Rules to that great Business of the King's Prerogative; so 'tis called
Lex Forestae, as it is applied under its special and proper Rules to the
Business of Forests; so it is called Lex Mercatoria. as it is applied under its
proper Rules to the Business of Trade and Commerce; and many more instances of
like Nature may be given: Nay, the various and particular Customs of Cities,
Towns and Manors, are thus far Parts of the Common Law, as they are applicable
to those particular Places, which will appear from these Observations, viz.
First, The Common Law does determine what of those Customs are good and
reasonable, and what are unreasonable and void. Secondly, The Common Law gives
to those Customs, that it adjudges reasonable, the Force and Efficacy of their
Obligation. Thirdly, The Common Law determines what is that Continuance of Time
that is sufficient to make such a Custom. Fourthly, The Common Law does
interpose and authoritatively decide the Exposition, Limits and Extension of
This Common Law, though the Usage, Practice and Decisions of the King's
Courts of Justice may expound and evidence it, and be of great Use to
illustrate and explain it; yet it cannot be authoritatively altered or changed
but by Act of Parliament. But of this Common Law, and the Reason of its
Denomination, more at large hereafter.
Now, Secondly, As to those particular Laws I before mentioned, which are
applicable to particular Matters, Subjects or Courts: These make up the second
Branch of the Laws of England, which I include under the general Term of Leges
non Scriptae, and by those particular Laws I mean the Laws Ecclesiastical, and
the Civil Law, so far forth as they are admitted in certain Courts, and certain
Matters allow'd to the Decision of those Courts, whereof hereafter.
It is true, That those Civil and Ecclesiastical Laws are indeed Written
Laws; the Civil Law being contain'd in their Pandects, and the Institutions of
Justinian, &c. (their Imperial Constitutions or Codes answering to our
Leges Scriptae, or Statutes.) And the Canon or Ecclesiastical Laws contain'd
for the most part in the Canons and Constitutions of Councils and Popes,
collected in their Decretum Gratiani, and the Decretal Epistles of Popes, which
make up the Body of their Corpus Juris Canonici, together with huge Volumes of
Councils and Expositions, Decisions, and Tractates of learned Civilians and
Canonists, relating to both Laws; so that it may seem at first View very
improper to rank these under the Branch of Leges non Scriptae, or Unwritten
But I have for the following Reason rang'd these Laws among the
Unwritten Laws of England, viz. because it is most plain, That neither the
Canon Law nor the Civil Law have any Obligation as Laws within this Kingdom,
upon any Account that the Popes or Emperors made those Laws, Canons, Rescripts
or Determinations, or because Justinian compiled their Corpus Juris Civilis,
and by his Edicts confirm'd and publish'd the same as authentical, or because
this or that Council or Pope made those or these Canons or Degrees, or because
Gratian, or Gregory, or Boniface, or Clement, did, as much as in them lie,
authenticate this or that Body of Canons or Constitutions; for the King of
England does not recognize any Foreign Authority as superior or equal to him in
this Kingdom, neither do any Laws of the Pope or Emperor, as they are such,
bind here: But all the Strength that either the Papal or Imperial Laws have
obtained in this Kingdom, is only because they have been received and admitted
either by the Consent of Parliament, and so are Part of the Statute Laws of the
Kingdom, or else by immemorial Usage and Custom in some particular Cases and
Courts, and no otherwise; and therefore so far as such Laws are received and
allowed of here, so far they obtain and no farther; and the Authority and Force
they have here is not founded on, or derived from themselves; for so they bind
no more with us than our Laws bind in Rome or Italy. But their Authority is
founded merely on their being admitted and received by us, which alone gives
'em their Authoritative Essence, and qualifies their Obligation.
And hence it is, That even in those Courts where the Use of those Laws
is indulged according to that Reception which has been allowed 'em: If they
exceed the Bounds of that Reception, by extending themselves to other Matters
than has been allowed 'em; or if those Courts proceed according to that Law,
when it is controuled by the Common Law of the Kingdom: The Common Law does and
may prohibit and punish them; and it will not be a sufficient Answer, for them
to tell the King's Courts, that Justinian or Pope Gregory have decreed
otherwise. For we are not bound by their Decrees further, or otherwise than as
the Kingdom here has, as it were transposed the same into the Common and
Municipal Laws of the Realm, either by Admission of, or by Enacting the same,
which is that alone which can make 'em of any Force in England. I need not give
particular Instances herein; the Truth thereof is plain and evident, and we
need go no further than the Statutes of 24 H. 8. cap. 12. 25 H. 8. c. 19, 20,
21, and the learned Notes of Selden upon Fleta, and the Records there cited;
nor shall I spend much Time touching the Use of those Laws in the several
Courts of this Kingdom: But will only briefly mention some few Things
There are Three Courts of Note, wherein the Civil, and in one of them
the Canon or Ecclesiastical Law, has been with certain Restrictions allow'd in
this Kingdom, viz. 1st. The Courts Ecclesiastical, of the Bishops and their
derivative Officers. 2dly. The Admiralty Court. 3dly. The Curia Militaris, or
Court of the Constable and Marshal, or Persons commission'd to exercise that
Jurisdiction. I shall touch a little upon each of these.
First, The Ecclesiastical Courts, they are of two Kinds, viz. 1st. Such
as are derived immediately by the King's Commission; such was formerly the
Court of High Commission; which tho', without the help of an Act of Parliament,
it could not in Matters of Ecclesiastical Cognizance use any Temporal
Punishment or Censure, as Fine, Imprisoment, &c. Yet even by the Common
Law, the Kings of England, being delivered from Papal Usurpation, might grant a
Commission to hear and determine Ecclesiastical Causes and Offences, according
to the King's Ecclesiastical Laws, as Cawdry's Case, Cook's 5th Report. 2dly.
Such as are not derived by any immediate Commission from the King; but the Laws
of England have annexed to certain Offices, Ecclesiastical Jurisdiction, as
incident to such Offices: Thus every Bishop by his Election and Confirmation,
even before Consecration, had Ecclesiastical Jurisdiction annex'd to his
Office, as Judex Ordinarius within his Diocese; and diverse Abbots anciently,
and most Archdeacons at this Day, by Usage, have had the like Jurisdiction
within certain Limits and Precincts.
But altho' these are Judices Ordinarii, and have Ecclesiastical
Jurisdiction annex'd to their Ecclesiastical Offices, yet this Jurisdiction
Ecclesiastical in Foro Exteriori is derived from the Crown of England: For
there is no External Jurisdiction, whether Ecclesiastical or Civil, within this
Realm, but what is derived from the Crown: It is true, both anciently, and at
this Day, the process of Ecclesiastical Courts runs in the Name, and issues
under: the Seal of the Biship; and what Practice stands so at this Day by
Virtue of several Acts of Parliament, too long here to recount. But that is no
Impediment of their deriving their Jurisdictions from the Crown; for till 27 H.
8. cap. 24. The Process in Counties Palatine ran in the Name of the Counts
Palatine, yet no Man ever doubted, but that the Palatine Jurisdictions were
derived from the Crown.
Touching the Severance of the Bishop's Consistory from the Sheriff's
Court: See the Charter of King Will. I, and Mr Selden's Notes on Eadmerus.
Now the Matters of Ecclesiastical Jurisdiction are of Two Kinds,
Criminal and Civil.
The Criminal Proceedings extend to such Crimes, as by the Laws of this
Kingdom are of Ecclesiastical Cognizance; as Heresy, Fornication, Adultery, and
some others, wherein their Proceedings are, Pro Reformatione Morum, & Pro
Salute Animae; and the Reason why they have Conuzance of those and the like
offences, and not of others, as Murther, Theft, Burglary, &c. is not so
much from the Nature of the Offence (for surely the one is as much a Sin as the
other, and therefore, if their Cognizance were of Offences quatenus peccata
contra Deum, it would extend to all Sins whatsoever, it being against God's
Law). But the true Reason is, because the Law of the Land has indulged unto
that jurisdiction the Conuzance of some Crimes and not of others.
The Civil Causes committed to their Cognizance, wherein the Proceedings
are ad lnstantiam Partis, ordinarily are Matters of Tythes, Rights of
Institution and Induction to Ecclesiastical Benefices, Cases of Matrimony and
Divorces, and Testamentary Causes, and the Incidents thereunto, as Insinuation
or Probation of Testaments, Controversies touching the same, and of Legacies of
Goods and Moneys, &c.
Altho' de Jure Communi the Cognizance of Wills and Testaments does not
belong to the Ecclesiastical Court, but to the Temporal or Civil jurisdiction;
yet de Consuetudine Angliae Pertinet ad Judices Ecclesiasticos, as Linwood
himself agrees, Exercit. de Testamentis, cap. 4. in Glossa. So that it is the
Custom or Law of England that gives the Extent and Limits of their external
Jurisdiction in Foro Contentioso.
The Rule by which they proceed, is the Canon Law, but not in its full
Latitude, and only so far as it stands uncorrected, either by contrary Acts of
Parliament, or the Common Law and Custom of England; for there are divers
Canons made in ancient Times, and Decretals of the Popes that never were
admitted here in England, and particularly in relation to Tythes; many things
being by our Laws privileg'd from Tythes, which by the Canon Law are
chargeable, (as Timber, Oar, Coals, &c.) without a Special Custom
subjecting them thereunto.
Where the Canon Law, or the Stylius Curiae, is silent, the Civil Law is
taken as a Director, especially in Points of Exposition and Determination,
touching Wills and Legacies.
But Things that are of Temporal Cognizance only, cannot by Charter be
delivered over to Ecclesiastical jurisdiction, nor be judged according to the
Rules of the Canon or Civil Law, which is aliud Examen, and not competent to
the Nature of Things of Common Law Cognizance: And therefore, Mich. 8 H. 4.
Rot. 72. coram Rege. when the Chancellor of Oxford proceeded according to the
Rule of tle Civil Law in a Case of Debt, the judgment was reversed in B. R.
wherein the principal Error assigned was, because they proceeded Per Legem
Civilem iubi qiuilibet ligeus Domini Regis Regni sui Angliae in quibusciunque
Placitis & querelis infra hoc Regnum factis & emergentibus de Jure
tractari debt Per Communem Legem Angliae; and altho' King H. 8. 14 Anno Regni
sui, granted to the University a liberal Charter to proceed according to the
Use of the University, viz. By a Course much conform'd to the Civil Law; yet
that Charter had not been sufficient to have warranted such Proceedings without
the Help of an Act of Parliament: And therefore in 13 Eliz. an Act passed,
whereby that Charter was in Effect enacted; and 'tis thereby that at this Day
they have a kind of Civil Law Proceedure, even in Matters that are of
themselves of Common Law Cognizance, where either of the Parties to the Suit
The Coertion or Execution of the Sentence in Ecclesiastical Courts, is
only by Excommunication of the Person contumacious, and upon Signification
thereof into Chancery, a Writ de Excommunicatio capiendo issues, whereby the
Party is imprisoned till Obedience yielded to the Sentence. But besides this
Coertion, the Sentences of the Ecclesiastical Courts touching some Matters do
introduce a real Effect, without any other Execution; as a Divorce, a Vinculo
Matrimonii for the Causes of Consanguinity, Precontract, or Frigidity, do
induce a legal Dissolution of the Marriage; so a Sentence of Deprivation from
an Ecclesiastical Benefice, does by Virtue of the very Sentence, without any
other Coertion or Execution, introduce a full Determination of the Interest of
the Person deprived.
And thus much concerning the Ecclesiastical Courts, and the Use of the
Canon and Civil Law in them, as they are the Rule and Direction of Proceedings
Secondly, The second special Jurisdiction wherein the Civil Law is
allow'd, at least as a Director or Rule in some Cases, is the Admiral Court or
Jurisdiction. This jurisdiction is derived also from the Crown of England,
either immediately by Commission from the King, or mediately, which is several
Ways, either by Commission from the Lord High Admiral, whose Power and
Constitution is by the King, or by the Charters granted to particular
Corporations bordering upon the Sea, and by Commission from them, or by
Prescription, which nevertheless in Presumption of Law is derived at first from
the Crown by Charter not now extant.
The Admiral Jurisdiction is of Two Kinds, viz. Jurisdictio Voluntaria,
which is no other but the Power of the Lord High Admiral, as the King's General
at Sea over his Fleets; or Jurisdictio Contentiosa, which is that Power of
Jurisdiction which the Judge of the Admiralty has in Foro Contentioso; and what
I have to say is of this later Jurisdiction.
The Jurisdiction of the Admiral Court, as to the Matter of it, is
confined by the Laws of this Realm to Things done upon the High Sea only; as
Depredations and Piracies upon the High Sea; Offences of Masters and Mariners
upon the High Sea; Maritime Contracts made and to be executed upon the High
Sea; Matters of Prize and Reprizal upon the High Sea. But touching Contracts or
Things made within the Bodies of English Counties, or upon the Land beyond the
Sea, tho' the Execution thereof be in some Measure upon the High Sea, as
Charter Parties, or Contracts made even upon the High Sea, touching Things that
are not in their own Nature Maritime, as a Bond or Contract for the Payment of
Money, so also of Damages in Navigable Rivers, within the Bodies of Counties,
Things done upon the Shore at Low-Water, Wreck of the Sea, &c. These Things
belong not to the Admiral's Jurisdiction: And thus the Common Law, and the
Statutes of I 3 Rich. 2. cap. 15. 15 Rich. 2. cap. 3. confine and limit their
Jurisdiction to Matters Maritime, and such only as are done upon the High
This Court is not bottom'd or founded upon the Authority of the Civil
Law, but hath both its Power and Jurisdiction by the Law and Custom of the
Realm, in such Matters as are proper for its Cognizance; and this appears by
their Process, viz. The Arrest of the Persons of the Defendants, as well as by
Attachment of their Goods; and likewise by those Customs and Laws Maritime,
whereby many of their Proceedings are directed, and which are not in many
Things conformable to the Rules of the Civil Law; such are those ancient Laws
of Oleron, and other Customs introduced by the Practice of the Sea, and Stile
of the Court.
Also, The Civil Law is allowed to be the Rule of their Proceedings, only
so far as the same is not contradicted by the Statute of this Kingdom, or by
those Maritime Laws and Customs, which in some Points have obtain'd in
Derogation of the Civil Law: But by the Statute 28 Hen. 8. cap. 15. all
Treasons, Murders, Felonies, done on the High Sea, or in any Haven, River,
Creek, Port or Place, where the Admirals have to pretend to have Jurisdiction,
are to be determined by the King's Commission, as if the Offences were done at
Land, according to the Course of the Common Law.
And thus much shall serve touching the Court of Admiralty, and the Use
of the Civil Law therein.
Thirdly, The Third Court, wherein the Civil Law has its Use in this
Kingdom, is the Military Court, held before the Constable and Marshal
anciently, as the Judiciis Ordinarii in this Case, or otherwise before the
King's Commissioners of that Jurisdiction, as Judices Delegati.
The Matter of their Jurisdiction is declared and limited by the Statutes
of 8 R. 2. cap. 5. and 13 R. 2. cap. 2. And not only by those Statutes, but
more by the very Common Law is their Jurisdiction declared and limited as
First, Negatively. They are not to meddle with any Thing determinable by
the Common Law. And therefore, inasmuch as Matter of Damages, and the Quantity
and Determination thereof, is of that Conuzance; the Court of Constable and
Marshal cannot, even in such Suits as are proper for their Conuzance, give
Damages against the Party convicted before them, and at most can only order
Reparation in Point of Honour, as Mendacium sibi ipsi imponere: Neither can
they, as to the Point of Reparation, in Honour, hold Plea of any such Words or
Things, wherein the Party is relievable by the Courts of the Common Law.
Secondly, Affirmatively: Their Jurisdiction extends to Matters of Arms
and Matters of War, viz.
First, As to Matters of Arms (or Heraldry), the Constable and Marshal
had Conuzance thereof, viz. Touching the Rights of Coat-Armour, Bearings,
Crests, Supporters, Pennons, &c. And also touching the Rights of Place and
Precedence, in Cases where either Acts of Parliament or the King's Patent (he
being the Fountain of Honour) have not already determined it, for in such Cases
they have no Power to alter it. Those Things were anciently allowed to the
Conuzance of the Constable and Marshal, as having some Relation to Military
Affairs; but so restrain'd, that they were only to determine the Right, and
give Reparation to the Party injured in Point of Honour, but not to repair him
But, Secondly, As to Matters of War. The Constable and Marshal had a
double Power, viz.
1. A Ministerial Power, as they were Two great ordinary Officers,
anciently, in the King's Army; the Constable being in Effect the King's
General, and the Marshal was employed in marshalling the King's Army, and
keeping the List of the Officers and Soldiers therein; and his Certificate was
the Trial of those whose Attendance was requisite. Vide Littleton, section
Again, 2. The Constable and Marshal had also a Judicial Power, or a
Court wherein several Matters were determinable: As 1st, Appeals of Death or
Murder committed beyond the Sea, according to the Course of the Civil Law.
2dly, The Rights of Prisoners taken in War. 3dly, The Offences and Miscarriages
of Soldiers contrary to the Laws and Rules of the Army: For always preparatory
to an actual War, the Kings of this Realm, by Advice of the Constable, (and
Marshal) were used to compose a Book of Rules and Orders for the due Order and
Discipline of their Officers and Soldiers, together with certain Penalties on
the Offenders; and this was called, Martial Law. We have extant in the Black
Book of the Admiralty, and elsewhere, several Exemplars of such Military Laws,
and especially that of the 9th of Rich. 2. composed by the King, with the
Advice of the Duke of Lancaster, and others.
But touching the Business of Martial Law, these Things are to be
First, That in Truth and Reality it is not a Law, but something indulged
rather than allowed as a Law; the Necessity of Government, Order and Discipline
in an Army, is that only which can give those Laws a Countenance, Quod enim
Necessitas cogit desendi.
Secondly, This indulged Law was only to extend to Members of the Army,
or to those of the opposite Army, and never was so much indulged as intended to
be (executed or) exercised upon others; for others who were not listed under
the Army, had no Colour of Reason to be bound by Military Constitutions,
applicable only to the Army, whereof they were not Parts; but they were to be
order'd and govern' d according to the Laws to which they were subject, though
it were a Time of War.
Thirdly, That the Exercise of Martial Law, whereby any Person should
lose his Life or Member, or Liberty, may not be permitted in Time of Peace,
when the King's Courts are open for all Persons to receive Justice, according
to the Laws of the Land. This is in Substance declared by the Petition of
Right, 3 Car. I. whereby such Commissions and Martial Law were repealed, and
declared to be contrary to Law: And accordingly was that famous Case of Edmond
Earl of Kent; who being taken at Pomsret, 15 Ed. 2. the King and divers Lords
proceeded to give Sentence of Death against him, as in a kind of Military Court
by a Summary Proceeding; which Judgment was afterwards in 1 Ed. 3. revers'd in
Parliament: And the Reason of that Reversal serving to the Purpose in Hand, I
shall here insert it as entered in the Record, viz.
Quod cum quicunq; homo ligeus Domini Regis pro Seditionibus, &c.
tempore pacis captus & in quacunque Curia Domini Regis ductus fuerit de
ejusmodi Seditionibus & aliis Felonius sibi impositis per Legem &
Consuetudine Regni arrectari debet & Responsionem adduci, Et inde per
Communem Legem, antequam fuerit Morti adiudicand' (triari) &c. Unde cum
notorium sit & manifestum quod totum tempus quo impositum fuit eidem Comiti
propter Mala & Facionora fecisse, ad tempus in quo captus fuit & in quo
Morti adiudicatus fuit, fuit tempus Pacis maximae, Cum per totum tempus
praedictum & Cancellaria & aliae plac. Curiae Domini Regis aperte fuer'
in quibus cuilibet Lex Sebatur sicut Seri consuevit, Nec idem Dominus Rex
unquam tempore illo cum vexillis explicatis Equitabat, &c.
And accordingly the Judgment was revers'd; for Martial Law, which is
rather indulg'd than allow'd, and that only in Cases of Necessity, in Time of
open War, is not permitted in Time of Peace, when the ordinary Courts of
Justice are open.
In this Military Court, Court of Honour, or Court Martial, the Civil Law
has been used and allowed in such Things as belong to their Jurisdiction; as
the Rule or Direction of their Proceedings and Decisions, so far forth as the
same is not controuled by the Laws of this Kingdom, and those Customs and
Usages which have obtain'd in England, which even in Matters of Honour are in
some Points derogatory to the Civil Law. But this Court has been long disused
upon great Reasons.
And thus I have given a brief Prospect of these Courts and Matters,
wherein the Canon and Civil Law has been in some Measure allowed, as the Rule
or Direction of Proceedings or Decisions: But although in these Courts and
Matters the Laws of England, upon the Reasons and Account before expressed,
have admitted the Use and Rule of the Canon and Civil Law; yet even herein
also, the Common Law of England has retain'd those Signa Superioritatis, and
the Preference and Superintendence in relation to those Courts: Namely,
1st. As the Laws and Statutes of the Realm have prescribed to those
Courts their Bounds and Limits, so the Courts of Common Law have the
Superintendency over those Courts, to keep them within the Limits and Bounds of
their several Jurisdictions, and to judge and determine whether they have
exceeded those Bounds, or not; and in Case they do exceed their Bounds, the
Courts at Common Law issue their Prohibitions to restrain them, directed either
to the Judge or Party, or both: And also, in case they exceed their
Jurisdiction, the Officer that executes the Sentence, and in some Cases the
Judge that gives it, are punishable in the Courts at Common Law; sometimes at
the Suit of the King, sometimes at the Suit of the Party, and sometimes at the
Suit of both, according to the Variety and Circumstances of the Case.
2dly. The Common Law, and the Judges of the Courts of Common Law, have
the Exposition of such Statutes or Acts of Parliament as concern either the
Extent of the Jurisdiction of those Courts (whether Ecclesiastical, Maritime or
Military) or the Matters depending before them; and therefore, if those Courts
either refuse to allow these Acts of Parliament, or expound them in any other
Sense than is truly and properly the Exposition of them, the King's Great
Courts of the Common Law (who next under the King and his Parliament have the
Exposition of those Laws) may prohibit and controul them.
And thus much touching those Courts wherein the Civil and Canon Laws are
allowed as Rules and Directions under the Restrictions above-mentioned:
Touching which, the Sum of the Whole is this:
First, That the Jurisdiction exercised in those Courts is derived from
the Crown of England, and that the last Devolution is to the King, by Way of
Secondly, That although the Canon or Civil Law be respectively allowed
as the Direction or Rule of their Proceedings, yet that is not as if either of
those Laws had any original Obligation in England, either as they are the Laws
of Emperors, Popes, or General Councils, but only by Virtue of their Admission
here, which is evident; for that those Canons or Imperial Constitutions which
have not been receiv'd here do not bind; and also, for that by several contrary
Customs and Stiles used here many of those Civil and Canon Laws are controuled
Thirdly, That although those Laws are admitted in some Cases in those
Courts, yet they are but Leges sub graviori Lege; and the Common Laws of this
Kingdom have ever obtain'd and retain'd the Superintendency over them, and
those Signa Superioritatis before-mentioned, for the Honour of the King and the
Common Laws of England.
III. Concerning the Common Law of England, its Use and
Excellence, and the Reason of its Denomination
I Come now to that other Branch of our Laws, the Common Municipal Law of
this Kingdom, which has the Superintendency of all those other particular Laws
used in the before-mentioned Courts, and is the common Rule for the
Administration of common Justice in this great Kingdom; of which it has been
always tender, and there is great Reason for it; for it is not only a very just
and excellent Law in it self, but it is singularly accommodated to the Frame of
the English Government, and to the Disposition of the English Nation, and such
as by a long Experience and Use is as it were incorporated into their very
Temperament, and, in a Manner, become the Complection and Constitution of the
Insomuch, that even as in the natural Body the due Temperament and
Constitution does by Degrees work out those accidental Diseases which sometimes
happen, and do reduce the Body to its just State and Constitution; so when at
any Time through the Errors, Distempers or Iniquities of Men or Times, the
Peace of the Kingdom, and right Order of Government, have received
Interruption, the Common Law has wasted and wrought out those Distempers, and
reduced the Kingdom to its just State and Temperament, as our present (and
former) Times can easily witness.
This Law is that which asserts, maintains, and, with all imaginable
Care, provides for the Safety of the King's Royal Person, his Crown and
Dignity, and all his just Rights, Revenues, Powers, Prerogatives and
Government, as the great Foundation (under God) of the Peace, Happiness, Honour
and Justice, of this Kingdom; and this Law is also, that which declares and
asserts the Rights and Liberties, and the Properties of the Subject; and is the
just, known, and common Rule of Justice and Right between Man and Man, within
And from hence it is, that the Wisdom of the Kings of England, and their
great Council, the Honourable House of Parliament, have always been jealous and
vigilant for the Reformation of what has been at any Time found defective in
it, and so to remove all such Obstacles as might obstruct the free Course of
it, and to support, countenance and encourage the Use of it, as the best,
safest and truest Rule of Justice in all Matters, as well Criminal as
I should be too Voluminous to give those several Instances that occur
frequently in the Statutes, the Parliament Rolls, and Parliamentary Petitions,
touching this Matter; and shall therefore only instance in some few Particulars
in both Kinds, viz. Criminal and Civil: And First, in Matters Civil.
In the Parliament 18 Edw. 1. In a Petition in the Lords House, touching
Land between Hugh Lowther and Adam Edingthorp: The Defendant alledges, That if
the Title should in this Manner be proceeded in, he should lose the Benefit of
his Warranty; and also, that the Plaintiff, if he hath any Right, hath his
Remedy at Common Law by Assize of Mortdancestor, and therefore demands
Judgment, Si de libero Tenemento debeat hic sine brevi Respondere; and the
Judgment of the Lords in Parliament thereupon is enter'd in these Words,
Et quia actio de predicto Tenemento petendo & etiam suum recuperare,
si quid habere debeat vel possit eidem Adae per Assisam mortis Antecessoris
competere debet nec est juri consonum vel hactenus in Curia ista usitat' quod
aliquis sine Lege Communi, & Brevi de Cancellaria de libero Tenemento suo
respondeat & maxime in Casu ubi Breve de Cancellaria Locum habere potest,
dictum est praefato Adae quod sibi perquirat per Breve de Cancellaria, si sibi
Rot. Parl. 13 R. 2. No. 10. Adam Chaucer preferr'd his Petition to the
King and Lords in Parliament, against Sir Robert Knolles, to be relieved
touching a Mortgage, which he supported was satisfied, and to have Restitution
of his Lands. The Defendant appeared, and upon the several Allegations on both
Sides, the Judgment is thus entered, viz.
Et apres les Raisons & les Allegeances de l'un party & de
l'autre, y sembles a Seigneurs du Parlement que le dit Petition ne estoit
Petition du Parlement, deins que le mattier en icel comprize dovii estre
discuss per le Commune Ley. St pur ceo agard suit que le dit Robert iroit eut
sans jour & que le dit Adam ne prendroit rien per say suit icy, eins que il
sueroit per le Commune Ley si il luy sembloit ceo faire.
Where we may note, the Words are Dovit estre, and not Poet estre
discusse Per le, &c.
Rot. Parl. 5o Ed. 3. No. 43. A Judgment being given against the Bishop
of Norwich, for the Archdeaconry of Norwich, in the Common Bench, the Bishop
petitioned the Lords in Parliament, that the Record might be brought into that
House, and to be reversed for Error.
Et quoy a luy estoit finalement Respondu per common Assent des ils les
Justices que si Error y fust si ascun a fine force per le Ley de Angleterre
tiel Error fuit voire en Parlement immediatement per voy de Error ains en Bank
le Roy, & en nul part ailhors, Mais si le Case avenoit que Error fust fait
en Bank le Roy adonque ceo serra amendes en Parlement.
And let any Man but look over the Rolls of Parliament, and the Bundles
of Petitions in Parliament, of the Times of Ed. I. Ed. 2. Ed. 3. Hen. 4. H. 5.
& H. 6. he will find Hundreds of Answers of Petitions in Parliament
concerning Matters determinable at Common Law, endorsed with Answers to this,
or the like Effect, viz "Suez vous a le Commune Ley; sequatur ad Communem
Legem; Perquirat Breve in Cancellaria si sibi viderit expedire; ne est Petition
du Parlement, Mandetur ista Petitio in Cancellarium, vel Cancellario, vel
justiciariis de Banco, vel Thesaurario & Baronibus de Scaccario," and the
And these were not barely upon the Bene Placita of the Lords, but were
De jure, as appears by those former Judgments given in the Lords House in
Parliament; and the Reason is evident; First, Because, if such a Course of
extraordinary Proceeding should be had before the Lords in the first Instance,
the Party should lose the Benefit of his Appeal by Writ of Error, according as
the Law allows; and that is the Reason, why even in a Writ of Error, or
Petition of Error upon a Judgment in any inferior Court, it cannot go Per
Saltum into Parliament, till it has passed the Court of King's-Bench; for that
the first appeal is thither. Secondly, Because the Subject would by that Means
lose his Trial Per Pares, and consequently his Attaint, in case of a Mistake in
Point of Issue or Damages: To both which he is entitled by Law.
And although some Petitions of this Nature have been deterwined in that
Manner, yet it has been (generally) when the Exception has not been started, or
at least not insisted upon: And One Judgment in Parliament, that Cases of that
Nature ought to be determined according to the Course of the Common Law, is of
greater Weight than many Cases to the contrary, wherein the Question was not
stirred: Yea, even tho' it should be stirred, and the contrary affirm'd upon a
Debate of the Question, because greater Weight is to be laid upon the Judgment
of any Court when it is exclusive of its jurisdiction, than upon a judgment of
the same Court in Affirmance of it.
Now as to Matters Criminal, whether Capital or not, they are
determinable by the Common Law, and not otherwise; and in Affirmance of that
Law, where the Statutes of Magna Charta, cap. 29. 5 Ed. 3. cap. 9. 25 Ed. 3.
cap. 4. 29 Ed. 3. cap. 3. 27 Ed. 3. cap. 17. 38 Ed. 3. cap. 9. & 40 Ed. 3.
cap. 3. The Effect of which is, That no Man shall be put out of his Lands or
Tenewents, or be imprisoned by any Suggestion, unless it be by Indictment or
Presentment of lawful Men, or by Process at Comwon Law.
And by the Statute of 1 Hen. 4. cap. 14. it is enacted, That no Appeals
be sued in Parliament at any Time to come: This extends to all Accusations by
particular Persons, and that not only of Treason or Felony, but of other Crimes
and Misdemeanors. It is true, the Petition upon which that Act was drawn up,
begins with Appeals of Felony and Treason, but the Close thereof, as also the
King's Answer, refers as well to Misdemeanors as matters Capital; and because
this Record will give a great Light to this whole Business, I will here set
down the Petition and the Answer verbatim. Vide Rot. Parl. I Hen. 4. No.
Item, Supplyont les Commens que desore en avant nul appele de Traison ne
de autre Felony quelconq; soit accept ou receive en le Parlement ains en vous
autres Courts de dans vostre Realm dementiers que en vous dits Courts purra
estre Terminer come ad ote fait & use ancienement en temps de vous noble
Progeniteurs; Et que chescun Person qui en temps a venir serra accuse ou
impeach en vostre Parlement ou en ascuns des vos dits Courts per les Seigniors
& Commens di vostre Realm ou per ascun Person & defence ou Response a
son Accusement ou Empeachment & sur son Response reasonable Record Judgment
& Tryal come de ancienement temps ad estre fait & use per les bones
Leges de vostre Realm, nient obstant que les dits Empeachments ou Accusements
soient faits per les Seigneurs ou Commens de vostre Relme come que de novel en
temps de Ric. nadgarius Roy ad estre fait & use a contrar, a tres grand
Mischief & tres grand Maleveys Exemple de vostre Realm.
Le Roy voet que de cy en avant touts les Appeles de choses faits deins
le Relme soient tryez & terwinez per les bones Leys faits en temps de tres
noble Progeniteurs de nostre dit Seigneur le Roy, Et que touts les Appeles de
choses faits hors du Realm, soient triez & terminez devant le Constable
& Marshal de Angleterre, & que nul Appele soit fait en Parlement desore
en ascun tempts a venir.
This is the Petition and Answer. The Statute as drawn up hereupon, is
general, and runs thus:
Item. Pur plusieurs grands Inconveniencies & Mischeifs que plusieurs
fait ont advenus per colour des plusieurs Appeles faits deins le Realm avant
ces heurs ordain est & establuz, Que desore en avant touts Appeles de
choses faits deins le Realm soient tries & termines per les bones Leys de
le Realm faits & uses en temps de tres noble Progeniteurs de dit nostre
Seigneur le Roy; Etque ils les Appeles de choses faits hors du Realm soient
tries & termines devant le Constable & Marshal pur les temps esteant;
Et ouster accordes est & assentus que nulls Appeles soient desore faits ou
pursues en Parlement en nul temps avenir.
Where we may observe, That thougb the Petition expresses (only) Treason
and Felony, yet the Act is general against all Appeals in Parliament; and many
Times the Purview of an Act is larger than the Preamble, or the Petition, and
so 'tis here: For the Body of the Act prohibits all Appeals in Parliament, and
there was Reason for it: For the Mischief, viz. Appeals in Parliament in the
Time of King Richard 2 (as in the Petition is set forth) were not only of
Treason and Felony, but of Misdemeanors also, as appears by that great
Proceeding, 11 R. 2, against divers, by the Lords Appellants, and consequently
it was necessary to have the Remedy as large as the Mischief. And I do not
remember that after this Statute there were any Appeals in Parliament, either
for Matters Capital or Criminal, at the Suit of any Particular Person or
It is true, Impeachments by the House of Commons, sent up to the House
of Lords, were frequent as well after as before this Statute, and that justly,
and with good Reason; for that neither the Act nor the Petition ever intended
to restrain them, but only to regulate them, viz. That the Parties might be
admitted to their Defence to them, and as neither the Words of the Act nor the
Practice of After-times extended to restrain such Impeachments as were made by
the House of Commons, so neither do those Impeachments and Appeals agree in
their Nature or Reason; for Appeals were nothing else but Accusations, either
of Capital or Criminal Misdemeanors, made in the Lords House by particular
Persons; but an Impeachment is made by the Body of the House of Commons, which
is equivalent to an Indictment Pro Corpore Regni, and therefore is of another
Nature than an Accusation or Appeal, only herein they agree, viz. Impeachments
in Cases Capital against Peers of the Realm, have been ever tried and
determined in the Lords House; but Impeachments against a Commoner have not
been usual in the House of Lords, unless preparatory to a Bill, or to direct an
Indictment in the Courts below: But Impeachments at the Prosecutions of the
House of Commons, for Misdemeanors as well against a Commoner as any other,
have usually received their Determinations and final Judgments in the House of
Lords; whereof there have been numerous Precedents in all Times, both before
and since the said Act.
And thus much in general touching the great Regard that Parliaments and
the Kingdom have had, and that most justly, to the Common Law, and the great
Care they have had to preserve and maintain it, as the Common Interest and
Birthright of the King and Kingdom.
I shall now add some few Words touching the Stiles and Appellations of
the Common Law, and the Reasons of it: 'Tis called sometimes by Way of
Eminence, Lex Terrae, as in the Statute of Magna Charta, cap. 29. where
certainly the Common Law is at least principally intended by those Words, aut
Per Legem Terrae, as appears by the Exposition thereof in several subsequent
Statutes, and particularly in the Statute 28 Ed. 3. cap. 3 which is but an
Exposition and Declaration of that Statute: Sometimes 'tis called, Lex Angliae,
as in the Statute of Merton, cap.... Nolumus Leges Angliae mutare, &c.
Sometimes 'tis called, Lex & Consuetudo Regni, as in all Commissions of
Oyer and Terminer, and in the Statutes of 18 Ed. I. cap.... and De quo
Warranto, and divers others; but most commonly 'tis called, The Common Law, or,
The Common Law of England, as in the Statute of Articuli super Chartas, cap.
15. in the Statute 25 Ed. 3. cap. 5. and infinite more Records and
Now the Reason why 'tis call'd The Common Law, or what was the Occasion
that first gave that Determination to it, is variously assigned, viz.
First, Some have thought it to be so called by Way of Contradistinction
to those other Laws that have obtain'd within this Kingdom; as, 1st. By Way of
Contradistinction to the Statute Law, thus a Writ of Entry ad Communem Legem,
is so call'd in Contradistinction to Writs of Entry in Casu consimili, and Casu
Proviso, which are given by Act of Parliament. 2dly, By Way of
Contradistinction to particular Customary Laws: Thus Discents at Common Law,
Dower at Common Law, are in Contradistinction to such Dowers and Discents as
are directed by particular Customs. And 3dly, In Contradistinction to the
Civil, Canon, Martial and Military Laws, which are in some particular Cases and
Courts admitted, as the Rule of their Proceedings.
Secondly, Some have conceived, that the Reason of this Appellation was
this, viz. In the Beginning of the Reign of Edward 3 before the Conquest,
commonly called, Edward the Confessor, there were several Laws, and of several
Natures, which obtain'd in several Parts of this Kingdom, viz. The Mercian
Laws, in the counties of Gloucester, Worcester, Hereford, Warwick, Oxon,
Chester, Salop and Stafford. The Danish Laws, in the Counties of York, Derby,
Nottingham, Leicester, Lincoln, Northampton, Bedford, Bucks, Hertford, Essex,
Middlesex, Norfolk, Suffolk, Cambridge and Huntington. The West-Saxon Laws, in
the Counties of Kent, Sussex, Surrey, Berks, Southampton, Wilts, Somerset,
Dorset, and Devon.
This King, to reduce the Kingdom as well under one Law, as it then was
under one Monarchical Government, extracted out of all those Provincial Laws,
one Law to be observed through the whole Kingdom: Thus Ranulphus Cestrensis,
cited by Sir Henry Spelman in his Glossary, under the Title Lex, says, "Ex
tribus his Legibus Sanctus Edvardus unam Legem ----" &c. And the same in
totidem verbis, is affirmed in his History of the last Year of the same King
Edward. (Vide ibid. Plura de hoc) But Hoveden carries up the Common Laws, or
those stiled the Confessor's Laws, much further; for he in his History of Henry
2 tell us, "Quod istae Leges prius inventae & constitutae erant Tempore
Edgari, Avi sui," &c. (Vide Hoveden) And possibly the Grandfather might be
the first Collector of them into a Body, and afterwards Edward might add to the
Composition, and give it the Denomination of the Common Law. but the Original
of it cannot in Truth be referred to either, but is much more ancient, and is
as undiscoverable as the Head of Nile: Of which more at large in the following
Thirdly, Others say, and that most truly, That it is called the Common
Law, because it is the common Municipal Law or Rule of justice in this Kingdom:
So that Lex Communis, or Jus Communis, is all one and the same with Lex
Patriae, or Jus Patrium; for although there are divers particular Laws, some by
Custom applied to particular Places, and some to particular Causes; yet that
Law which is common to the generality of all Persons, Things and Causes, and
has a Superintendency over those particular Laws that are admitted in Relation
to particular Places or Matters, is Lex Communis Angliae, as the Municipal Laws
of other Countries may be, and are sometimes called, The Common Law of that
Country,. as Lex Communis Norrica, Lex Communis Burgundica, Lex Communis
Lombardica, &c. So that although all the former Reasons have their Share in
this Appellation, yet the principal Cause thereof seems to be the latter: And
hence some of the Ancients call'd it Lex Communis. others Lex Patriae; and so
they were called in their Confirmation by King William I. Whereof
IV. Touching the Original of the Common Law of
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
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
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
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
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.
V. How the Common Law of England stood at and for some
Time after the coming in of King William I
It is the Honour and Safety, and therefore the just Desire of Kingdoms
that recognize no Superior but God, that their Laws have those two
Qualifications, viz. 1st. That they be not dependent upon any Foreign Power;
for a Dependency in Laws derogates from the Honour and Integrity of the
Kingdom, and from the Power and Sovereignty of the Prince thereof. Secondly,
That they taste not of Bondage or Servitude; for that derogates from the
Dignity of the Kingdom, and from the Liberties of the People thereof.
In Relation to the former Consideration, the Kings of this Realm, and
their great Councils, have always been jealous and careful, that they admitted
not any Foreign Power, (especially such as pretended Authority to improve Laws
upon other free Kingdoms or States) nor to countenance the Admission of such
Laws here as were derived from such a Power.
Rome, as well Ancient as Modern, pretended a kind of universal Power and
Interest; the former by their Victories, which were large, and extended even to
Britain itself; and the later upon the Pretence of being Universal Bishop or
Vicar-General in all Matters Ecclesiastical; so that upon Pretence of the
former, the Civil Law, and upon Pretence of the later, the Canon Law was
introduc'd, or pretended to some Kind of Right in the Territories of some
absolute Princes, and among others here in England: But this kingdom has been
always very jealous of giving too much Countenance to either of those Laws, and
has always shewn a just Indignation and Resentment against any Encroachments of
this Kind, either by the one Law or the other. It is true, as before is shewn,
that in the Admiralty and Military Courts, the Civil Law has been admitted, and
in the Ecclesiastical Courts, the Canon Law has been in some Particulars
admitted. But still they carry such Marks and Evidences about them, whereby it
may be known that they bind not, nor have the Authority of Laws from
themselves, but from the authoritative Admission of this Kingdom.
And, as thus the Kingdom, for the Reasons before given, never admitted
the Civil or the Canon Law to be the Rule of the Administration of Common
Justice in this Kingdom; so neither has it endured any Laws to be imposed upon
the People by any Right of Conquest, as being unsuitable to the Honour or
Liberty of the English Kingdom, to recognize their Laws as given them at the
Will and Pleasure of a Conqueror. And hence it was, that altho' the People
unjustly assisted King Hen. 4 in his Usurpation of the Crown, yet he was not
admitted thereunto, until he had declared, that he claimed not as a Conqueror,
but as a Successor; only he reserved to himself the Liberty of extending a
Pretence of Conquest against the Scroops that were slain in Battle against him;
which yet he durst not rest upon without a Confirmation in Parliament. Vide
Rot. Parl. 1 H. 4. No. 56. & Pars 2. Ibid. No 17.
And upon the like Reason it was, That King William I tho' he be called
the Conqueror, and his attaining the Crown here, is often in History, and in
some Records, called Conquestus Angliae; yet in Truth it was not such a
Conquest as did, or could alter the Laws of this Kingdom, or impose Laws upon
the People Per Modum Conquestus, or Jure Belli: And therefore, to wipe off that
false Imputation upon our Laws, as if they were the Fruit or Effect of a
Conquest, or carried in them the Badge of Servitude to the Will of the
Conqueror, which Notion some ignorant and prejudiced Persons have entertain'd;
I shall rip up, and lay open this whole Business from the Bottom, and to that
End enquire into the following Particulars, viz.
1. Of the Thing called Conquest, what it is, when attained, and the
2. Of the several Kinds of Conquest, and their Effects, as to the
Alteration of Laws by the Victor.
3. How the English Laws stood at the Entry of King William the
4. By what Title he entred, and whether by such a Right of Conquest as
did, or could, alter the English Laws.
5. Whether De Facto there was any Alteration of the said Laws, and by
what Means after his coming in.
First, Touching the first of these, viz. Conquest, what it is, when
attain'd, and the Rights thereof. It is true, That it seems to be admitted as a
kind of Law among all Nations, That in Case of a Solemn War between Supream
Princes, the Conqueror acquires a Right of Dominion, as well as a Property over
the Things and Persons that are fully conquered; and the Reasons assign'd are
Principally these, viz.
1st. Because both Parties have apealed to the highest Tribunal that can
be, viz. The Trial by War, wherein the great Judge and Sovereign of the World,
The Lord of Hosts, seems in a more especial Manner than in other Cases to
decide the Controversy. 2dly. Because unless this should be a final Decision,
Mankind would be destroy'd by endless Broils, Wars and Contentions; therefore,
for the Preservation of Mankind, this great Decision ought to be final, and the
conquer'd ought to acquiesce in it. 3dly. Because if this should not be
admitted, and be by, as it were, the tacit Consent of Mankind accounted a
lawful Acquisition, there would not be any Security or Peace under any
Government: For by the various Revolutions of Dominion acquired by this Means,
have been, and are to this Day the Successions of Kingdoms and States
preserved. What was once the Romans, was before that the Graecians, and before
them the Persians, and before the Persians, the Assyrians; and if this just
Victory were not allowed to be a firm Acquest of Dominion, the present
Possessors would be still obnoxious to the Claim of the former Proprietors, and
so they would be in a restless State of Doubts, Difficulties and Changes upon
the Pretention of former Claims: Therefore, to cut off this Instability and
Unsettledness in Dominion and Property, it would seem that the common Consent
of all Nations has tacitly submitted, that Acquisition by Right of Conquest, in
a Solemn War between Persons not Subjects of each other by Bonds of Allegiance
or Fidelity, should be allowed as one of the lawful Titles of acquiring
Dominion over the Persons, Places and Things so conquer'd.
But whatever be the real Truth or Justice of this Position, yet we are
much at a Loss touching the Things in Hypothesi, viz. Whether this be the
Effect of every Kind of Conquest? Whether the War be Just or Unjust? What are
the Requisites to the Constituting of a just War? Who are the Persons that may
acquire? And what are the Solemnities requisite for that Acquest? But above
all, the greatest Difficulty is, when there shall be said, Such a Victory as
acquires this Right? Indeed, if there be a total Deletion of every Person of
the Opposing Party or Country, then the Victory is compleat, because none
remains to call it in Question. But suppose they are beaten in one Battle, may
they not rally again? Or if the greater Part be subdued, may not the lesser
keep their Ground? Or if they do not at the present, may they not in the next
Age regain their Liberty? Or if they be quiet for a Time, may they not as they
have Opportunity, renew their Pretentions? And altho' the Victor, by his Power,
be able to quell and suppress them, yet he is beholden to his Sword for it, and
the Right that he got by his Victory before, would not be sufficient without a
Power and Force to establish and secure him against new Troubles. And on the
other Side, if those few subdu'd Persons can by Force regain what they once had
a Pretence to, a former Victory will be but a weak Defence; and if it would,
they would have the like Pretence to a Claim of Acquest by Victory over him, as
he had over them.
It seems therefore a difficult Thing to determine in what indivisible
Moment this Victory is so compleat, that Jure Belli the Acquest of Dominion is
fully gotten, and therefore Victors use to secure themselves against Disputes
of that Kind, and as it were to under-pin their Acquest Jure Belli, that they
might not be lost by the same Means, whereby they were gained by the
Continuation of eternal Forces of Standing Armies, Castles, Garrisons,
Munitions, and other Acts of Power and Force, so as thereby to over-bear and
prevent an ordinary Possibility of the Prevailing of the conquered or subdued
People, against the Conqueror or Victor. He that lays the Weight of his Title
upon Victory or Conquest, rarely rests in it as a compleat Conquest, till he
has added to it somewhat of Consent or Faith of the conquered, submitting
voluntarily to him, and then, and not till then, he thinks his Title secure,
and his Conquest compleat: And indeed, he has no Reason to think his Title can
be otherwise secure; for where the Title is meerly Force or Power, his Title
will fail, if the conquered can with like Force or Power over-match his, and to
regain their former Interest or Dominion.
Now this Consent is of Two Kinds, either Express'd, or Imply'd. An
express Consent is, when after a Victory the Party conquered do expresly submit
themselves to the Victors, either simply or absolutely, by Dedition, yielding
themselves, giving him their Faith and their Allegiance; or else under certain
Pacts, Conventions, Agreements, or Capitulations, as when the subdued Party,
either by themselves, or by Substitutes, or Delegates by them chosen, do yield
their Faith and their Allegiance to the Victor upon certain Pacts or Agreements
between them; as for holding or continuing their Religion, their Laws, their
Form of Civil Administration, &c.
And thus, tho' Force were perhaps the Occasion of this Consent, yet in
Truth 'tis Consent only that is the true proximate and fix'd Foundation of the
Victor's Right; which now no longer rests barely upon external Force, but upon
the express Consent and Pact of the subdu'd People, and consequently this Pact
or Convention is that which is to be the immediate Foundation of that Dominion;
and upon a diligent Observation of Most Acquests gotten by Conquest, or so
called, we shall find this to be the Conclusion of almost all Victories, they
end in Deditions and Capitulations, and Faith given to the Conqueror, whereby
oftentimes the former Laws, Privileges, and Possessions are confirmed to the
Subdued, without which the Victors seldom continue long or quiet in their New
Acquests, without extream Expence, Force, Severity and Hazard.
An implied Consent is, when the Subdued do continue for a long Time
quiet and peaceable under the Government of the Victor, accepting his
Government, submitting to his Laws, taking upon them the Offices and
Employments under him, and obeying and owning him as their Governor, without
opposing him, or claiming their former Right. This seems to be a tacit
Acceptance of, and Assent to him; and tho' this is gradual, and possibly no
determinate Time is stinted, wherein a Man can say, this Year, or this Month,
or this Day, such a tacit Consent was compleated and concluded: For
Circumstances may make great Variations in the Sufficiency of the Evidence of
such an Assent; yet by a long and quiet Tract of peaceable Submission to the
Laws and Government of the Victor, Men may reasonably conjecture, that the
conquered have relinquished their Purpose of regaining by Force what by Force
But still all this is intended of a lawful Conquest by a Foreign Prince
or State, and not an Usurpation by a Subject, either upon his Prince or Fellow
Subject; for several Ages and Discents do not purge the Unlawfulness of such an
Secondly. Concerning the several Kinds of Conquests, and their Effects,
as to the Alteration of Laws by the Victor. There seems to be a double kind of
Conquest, which induces a various Consideration touching the Change of Laws,
viz. Victoria in Regem & Populum, & Victoria in Regem tantum. The
Conquest over the People or Country, is when the War is denounced by a Prince
or State Foreign, and no Subject, and when the Intention and Denunciation of
the War is against the King and People or Country, and the Pretention of Title
is by the Sword, or Jure Belli; such were most of the Conquests of ancient
Monarchs, viz. The Assyrian, Persian, Graecian, and Roman Conquests; and in
such Cases, the Acquisitions of the Victor were absolute and universal, he
gain'd the Interest and Property of the very Soil of the Country subdued; which
the Victor might, at his Pleasure, give, fell or arrent: He gain'd a Power of
abolishing or changing their Laws and Customs, and of giving New, or of
imposing the Law of the Victor's Country. But although this the Conqueror might
do, yet a Change of the Laws of the conquered Country was rarely universally
made, especially by the Romans: Who, though in their own particular Colonies
planted in conquered Countries, they observed the Roman Law, which possibly
might by Degrees, without any rigorous Imposition, gain and insinuate
themselves into the conquered People, and so gradually obtain, and insensibly
conform them, at least so many of them as were conterminous to the Colonies and
Garrisons to the Roman Laws; yet they rarely made a rigorous and universal
Change of the Laws of the conquered Country, unless they were such as were
foreign and barbarous, or altogether inconsistent with the Victor's Government:
But in other Things, they commonly indulged unto the conquered, the Laws and
Religion of their Country upon a double Account, viz.
First. On Account of Humanity, thinking it a hard and oversevere Thing
to impose presently upon the conquered a Change of their Customs, which long
Use had made dear to them. And, 2dly. Upon the Account of Prudence; for the
Romans being a wise and experienced People, found that those Indulgences made
their Conquests the more easy, and their Enjoyments thereof the more firm, when
as a rigorous Change of the Laws and Religion of the People would render them
in a restless and unquiet Condition, and ready to lay hold of any Opportunity
of Defection or Rebellion, to regain their ancient Laws and Religion, which
ordinary People count most dear to them; (though at this Day the Indulgence of
a Paganish Religion is not used to be allowed by any Christian Victor, as is
observed in Calvin's Case in the Seventh Report;) and to give One Instance for
all, it was upon this Account, That though the Romans had wholly subdued Syria
and Palestina, yet they allow'd to the Inhabitants the Jews, &c. the Use of
their Religion and Laws, so far forth as consisted with the Safety and Security
of the Victor's Interest: And therefore, though they reserved to themselves the
Cognizance of such Causes as concern'd themselves, their Officers or Revenues,
and such Cases as might otherwise disturb the Security of their Empire, as
Treasons, Insurrections, and the like; yet 'tis evident they indulged the
People of the Jews, &c. to judge by their own Law, not only of some
Criminal Proceedings, but even of Capital in some Cases, as appears by the
History of the Gospels, and Acts of the Apostles.
But still this was but an Indulgence, and therefore was resumable by the
Victor, unless there intervened any Capitulation between the Conqueror and the
Conquered to the contrary. which was frequent, especially in those Cases, when
it was not a compleat Conquest, but rather a Dedition upon Terms and
Capituiations, agreed between the Conqueror and the Conquered; wherein usually
the yielding Party secured to themselves, by the Articles of their Dedition,
the Enjoyment of their Laws and Religion; and then by the Laws of Nature and of
Nations, both which oblige in the Observation of Faith and Promises, those
Terms and Capitulations, were to be observed. Again, 2dly. When after a full
Conquest, the conquered People resumed so much Courage and Power as began to
put them into a Capacity of regaining their former Laws and Liberties. This
commonly was the Occasion of Terms and Capitulations between the Conquerors and
Conquered. Again, 3dly. When by long Succession of Time, the Conquered had
either been incorporated with the conquering People, whereby they had worn out
the very Marks and Discriminations between the Conquerors and Conquered; and if
they continued distinct, yet by a long Prescription, Usage and Custom, the Laws
and Rights of the conquered People were in a Manner settled, and the long
Permission of the Conquerors amounted to a tacite Concession or Capitulation,
for the Enjoyment of their Laws and Liberties.
But of this more than enough is said, because it will appear in what
follows, That William I never made any such Conquest of England.
Secondly, Therefore I come to the Second Kind of Conquest, viz. That
which is only Victoria in Regem: And this is where the Conqueror either has a
real Right to the Crown or chief Government of a Kingdom, or at least has, or
makes some Pretence of Claim thereunto; and, in Pursuance of such Claim, raises
War, and by his Forces obtains what he so pretends a Title to. Now this Kind of
Conquest does only instate the Victor in those Rights of Government, which the
conquered Prince, or that Prince to whom the Conqueror pretends a Right of
Succession, had; whereby he becomes only a Successor Jure Belli, but not a
Victor or Conqueror upon the People; and therefore has no more Right of
altering their Laws, or taking away their Liberties or Possessions, than the
conquered Prince, or the Prince to whom he pretends a Right of Succession, had;
for the Intention, Scope and Effect of his Victory extends no further than the
Succession, and does not at all affect the Rights of the People. The Conqueror
is, as it were, the Plaintiff, and the conquered Prince is the Defendant, and
the Claim is a Claim of Title to the Crown; and because each of them pretends a
Right to the Sovereignty, and there is no other competent Trial of the Title
between them, they put themselves upon the great Trial by Battle; wherein there
is nothing in Question touching the Rights of the People, but only touching the
Right of the Crown, and that being decided by the Victory, the Victor comes in
as a Successor, and not Jure Victoriae, as in relation to the Peoples Rights;
the most Sacred whereof are their Laws and Religion.
Indeed, those that do voluntarily assist the conquered Prince, commonly
undergo the same Hazard with him, and do, as it were, put their Interest upon
the Hazard and Issue of the same Trial, and therefore commonly fall under the
same Severity with the conquered, at least de facto; because, perchance the
Victor thinks he cannot be secure without it: But yet Usage, and indeed common
Prudence, makes the Conquerors use great Moderation and Discrimination in
relation to the Assistants of the conquered Prince; and to extend this Severity
only to the eminent and busy Assistants of the Conquered, and not to the
Gregarii, or such as either by Constraint or by Necessity were enforced to
serve against him; and as to those also, on whom they exercise their Power, it
has been rarely done Jure Belli aut Victoriae, but by a judiciary Proceeding,
as in Cases of Treason, because now the great Title by Battle has pronounced
for the Right of the Conqueror, and at best no Man must dare to say otherwise
now, whatsoever Debility was in his Pretension or Claim. We shall see the
Instances hereof in what follows.
Thirdly, As to the Third Point, How the Laws of England stood at the
entry of King William I and it seems plain, that at the Time of his Entry into
England, the Laws, commonly call'd, The Laws of Edward the Confessor, were then
the standing Laws of the Kingdom. Hoveden tells us, in a Digression under his
History of King Henry 2 that those Laws were originally put together by King
Edgar, who was the Confessor's Grandfather, viz.
Verum tamen post mortem ipsius Regis Edgari usq; ad Coronationem Sancti
Regis Edvardi quod-Tempus Continet Sexaginta & Septem Annos prece (vel
pretio) Leges sopitae sunt & Jus praetermissae sed postquam Rex Edvardus in
Regno fuit sublimatus Concilio Baronum Angliae Legem Annos Sexaginta &
Septem Sopitam, excitavit & confirmavit, & ea lex sic confirmata vocata
est Lex Sancti Edvardi, non quod ipse prius invenisset eam sed cum praetermissa
fuisset & oblivioni penitus dedita a morte avi sui Regis Edgari qui primus
inventor ejus fuisse dicitur usque ad sua Tempora, viz. Sexaginta & Septem
And the same Passage in totidem Verbis is in the History of Litchfield,
cited in Sir Robert Twisden's Prologue to the Laws of King William I. But
although possibly those Laws were collected by King Edgar, yet it is evident,
by what is before said, they were augmented by the Confessor, by that Extract
of Laws beforementioned, which he made out of that Threefold Law, that obtain'd
in several Parts of England, viz. The Danish, the Mercian, and the West-Saxon
This Manual (as I may call it) of Laws, stiled, The Confessor's Laws,
was but a finall Volume, and contains but few Heads, being rather a Scheme or
Directory touching some Method to be observed in the Distribution of Justice,
and some particular Proceedings relative thereunto, especially in Matters of
Crime, as appears by the Laws themselves, which are now printed in Mr Lambart's
Saxon Laws, p. 133. and other Places; yet the English were very jealous for
them, no less or otherwise than they are at this Time for the Great Charter;
insomuch, that they were never satisfied till the said Laws were reinforced and
mingled for the most Part with the Coronation Oath of King William I and some
of his Successors.
And this may serve shortly touching this Third Point, whereby we see
that the Laws that obtain'd at the Time of the Entry of King William I were the
English Laws, and principally those of Edward the Confessor.
Fourthly, The Fourth Particular is, The Pretensions of King William I to
the Crown of England, and what kind of Conquest he made; and this will be best
rendered and understood by producing the History of that Business, as it is
delivered over to us by the ancient Historians that lived in Or near that Time:
The Sum, or Totum whereof, is this.
King Edward the Confessor having no Children, nor like to have any, had
Three Persons related to him, whom he principally favoured, viz. 1st. Edgar
Aetheling, the Son of Edward, the Son of Edmond Ironside, Mat. Paris, Anno
1066. Edmundus aiutem latus serreum Rex naturalis de stirpe Regum genuit
Edwardum & Edwardus genuit Edgarum cui dejure debebatur Regnum Anglorum.
2dly. Harold, the Son of Goodwin, Earl of Kent, the Confessor's Father-in-Law,
he having married Earl Goodwin's Daughter: And 3dly, William Duke of Normandy,
who was allied to the Confessor thus, viz. William was the Son of Robert, the
Son of Richard Duke of Normandy, which Richard was Brother unto the Confessor's
Mother. Vide Hoveden, sub initio Anni primi Willielmi primi.
There was likewise a great Familiarity, as well as this Alliance,
between the Confessor and Duke William; for the Confessor had often made
considerable Residencies in Normandy. And this gave a fair Expectation to Duke
William of succeeding him in this Kingdom: And there was also, at least
pretended, a Promise made him by the Confessor, That Duke William should
succeed him in the Crown of England; and because Harold was in great Favour
with the King, and of great Power in England, and therefore the likeliest Man
by his Assistance to advance, or by his Opposition to hinder or temperate the
Duke's Expectation, there was a Contract made between the Duke and Harold in
Normandy in the Confessor's Lifetime, That Harold should, after the Confessor's
Death, assist the Duke in obtaining the Crown of England. (Vide Brompton,
Hoveden, &c.) Shortly after which the Confessor died, and then stepp'd up
the Three Competitors to the Crown, viz.
1. Edgar Aetheling, who was indeed favoured by the Nobility, but being
an Infant, was overborn by the Power of Harold, who thereupon began to set up
for himself: Whereupon Edgar, with his Two Sisters, fled into Scotland; where
he, and one of his Sisters, dying without Issue, Margaret, his other Sister and
Heir, married Malcolm, King of Scots; from whence proceeded the Race of the
2. Harold, who having at first raised a Power under Pretence of
supporting and preserving Duke William's Title to this Kingdom, and having by
Force suppress'd Edgar, he thereupon claimed the Crown to himself; and
pretending an Adoption or Bequest of the Kingdom upon him by the Confessor, he
forgot his Promise made to Duke William, and usurped the Crown, which he held
but the Space of 9 Months and 4 Days. Hoveden.
3. William, Duke of Normandy, who pretended a Promise of Succession by
the Confessor, and a Capitulation or Stipulation by Harold for his Assistance;
and had, it seems, so far interested the Pope in Favour of his Pretensions,
that he pronounced for William against both the others.
Hereupon the Duke makes his Claim to the Crown of England, gathered a
powerful Army, and came over, and upon the 14th of October, Anno 1067, gave
Harold Battle, and overthrew him at that Place in Sussex, where William
afterwards founded Battle-Abby, in Memory of that Victory; and then he took
upon him the Government of the Kingdom, as King thereof, and upon Christmas
following was solemnly crown'd at Westminster by the Archbishop of York; and he
declared at his Coronation, That he claimed the Crown not Jure Belli, but Jure
Successionis; and Brompton gives us this Account thereof, Cum nomen Tyranni
exhorresceret & nomen legitimi principis induere vellet petiit consecrari;
and accordingly, says the same Author, the Archbishop of York, in respect of
some present incapacity in the Archbishop of Canterbury, Munus hoc adimplevit
ipsumque Gulielmum Regem ad jura Ecclesiae Anglicanae tuenda & conservanda
populumque suum recte regendum, & Leges rectas Statuendumi, Sacramento
Solemniter adstrinxit; and thereupon he took the Homage of the Nobility.
This being the true, though short Account of the State of that Business,
there necessarily follows from thence those plain and unquestionable
First, That the Conquest of King William I was not a Conquest upon the
Country or People, but only upon the King of it, in the Person of Harold, the
Usurper; for William I came in upon a Pretence of Title of Succession to the
Confessor; and the Prosecution and Success of the Battle he gave to Harold was
to make good his Claim of Succession, and to remove Harold, as an unlawful
Usurper upon his Right; which Right was now decided in his Favour, and
determined by that great Trial by Battle.
Secondly, That he acquired in Consequence thereof no greater Right than
what was in the Confessor, to whom he pretended a Right of Succession; and
therefore could no more alter the Laws of the Kingdom upon the Pretence of
Conquest, than the Confessor himself might, or than the Duke himself could have
done, had he been the true and rightful Successor to the Crown, in Point of
Descent from the Confessor; neither is it material, whether his Pretence were
true or false, or whether, if true, it were available or not, to entitle him to
the Crown; for whatsoever it was, it was sufficient to direct his Claim, and to
qualify his Victory so, that the Jus Belli thereby acquired could be only
Victoria in Regem, sed non in Populum, and put him only in the State, Capacity
and Qualification of a Successor to the King, and not as Conqueror of the
Thirdly, And as this his antecedent Claim kept his Acquest within the
Bounds of a Successor, and restrained him from the unlimited Bounds and Power
of a Conqueror; so his subsequent Coronation, and the Oath by him taken, is a
further unquestionable Demonstration, that he was restrain'd within the Bounds
of a Successor, and not enlarged with the Latitude of a Victor; for at his
Coronation he binds himself by a solemn Oath to preserve the Rights of the
Church, and to govern according to the Laws, and not absolutely and unlimitedly
according to the Will of a Conqueror.
Fourthly, That if there were any Doubt whether there might be such a
Victory as might give a Pretension to him, of altering Laws, or governing as a
Conqueror; yet to secure from that possible Fear, and to avoid it, he ends his
Victory in a Capitulation; namely, he takes the ancient Oath of a King unto the
People, and the People reciprocally giving or returning him that Assurance that
Subjects ought to give their Prince, by performing their Homage to him as their
King, declared by the Victory he had obtain'd over the Usurper, to be the
Successor of the Confessor: And consequently, if there might be any Pretence of
Conquest over the People's Rights, as well as over Harold's, yet the
Capitulation or Stipulation removes the Claim or Pretence of a Conqueror, and
enstates him in the regulated Capacity and State of a Successor. And upon all
this it is evident, That King William I could not abrogate or alter the ancient
Laws of the Kingdom, any more than if he had succeeded the Confessor as his
lawful Heir, and had acquir'd the Crown by the peaceable Course of Descent,
without any Sword drawn.
And thus much may suffice, to shew that King William I did not enter by
such a Right of Conquest, as did or could alter the Laws of this Kingdom.
Therefore I come to the last Question I proposed to be considered, viz.
Whether de Facto there was anything done by King William I after his Accession
to the Crown, in Reference either to the Alteration or Confirmation of the
Laws, and how and in what Manner the same was done: And this being a Narrative
of Matters of Fact, I shall divide into those Two Inquiries, viz. 1st. What was
done in Relation to the Lands and Possessions of the English: And 2dly, What
was done in Relation to the Laws of the Kingdom in general; for both of these
will be necessary to make up a clear Narrative touching the Alteration or
Suspension, Confirmation or Execution of the Laws of this Kingdom by him.
First, Therefore touching the former, viz. What was done in Relation to
the Lands and Possessions of the English. Those Two Things must be premised,
viz. First, a Matter of Right, or Law; which is this, That in Case this had
been a Conquest upon the Kingdom, it had been at the Pleasure of the Conqueror
to have taken all the Lands of the Kingdom into his own Possession, to have put
a Period to all former Titles, to have cancelled all former Grants, and to have
given, as it were, the Date and Original to every Man's Claim, so as to have
been no higher nor ancienter than such his Conquest, and to hold the same by a
Title derived wholly from and under him. I do not say, that every absolute
Conqueror of a Kingdom will do thus, but that he may if he will, and have Power
to effect it.
Secondly, The Second Thing to be premised is, a Matter of Fact, which is
this; That Duke William brought in with him a great Army of Foreigners, that
would have expected a Reward of their Undertaking, and therefore were doubtless
very craving and importunate for Gratifications to be made them by the
Conqueror. Again, it is very probable, that of the English themselves, there
were Persons of very various Conditions and Inclinations; some perchance did
adhere to the Duke, and were assistant to him openly, or at least under-hand,
towards the bringing him in; and those were sure to enjoy their Possessions
privately and quietly when the Duke prevailed. Again, some did, without all
question, adhere to Harold, and those in all Probability were severely dealt
with, and dispossess'd of their Lands, unless they could make their Peace.
Again, possibly there were others who assisted Harold, partly out of Fear and
Compulsion; yet those, possibly, if they were of any Note or Eminence, fared
little better than the rest. Again, there were some that probably stood
Neuters, and medled not; and those, though they could not expect much Favour,
yet they might in Justice expect to enjoy their own. Again, it must needs be
supposed, That the Duke having so great an Army of Foreigners, so many
ambitious and covetous Minds to be satisfied, so many to be rewarded in Point
of Gratitude; and after so great a Concussion as always happens upon the Event
of a Victory, it must needs, upon those and such like Accounts, be evident to
any Man that considers Things of this Nature, that there were great Outrages
and Oppressions comwitted by the Victor's Soldiers and their Officers, many
false Accusations made against innocent Persons, great Disturbances and
Evictions of Possessions, many right Owners being unjustly thrown out, and
consequently many Occupations and Usurpations of other Men's Rights and
Possessions, and a long while before those Things could be reduced to any quiet
and regular Settlement.
These general Observations being premised, we will now see what de Facto
was done in Relation to Men's Possessions, in Consequence of this Victory of
First, It is certain that he took into his Hands all the Demesn Lands of
the Crown which were belonging to Edward the Confessor at the Time of his
Death, and avoided all the Dispositions and Grants thereof made by Harold,
during his short Reign; and this might be one great End of his making that
noble Survey in the fourth year of his Reign, called generally Doomsday-Read,
in some Records, as Rot. Winton, &c. thereby to ascertain what were the
Possessions of the Crown in the Time of the Confessor, and those he entirely
resumed: And this is the Reason why in some of our old Books it is said,
Ancient Demesn is that which was held by King William the Conqueror; and in
others 'tis said, Ancient Demesn is that which was held by King Edward the
Confessor, and both true in their Kind; and in this Respect, viz. That
whatsoever appeared to be the Confessor's at the Time of his Death, was assumed
by King William into his own Possession.
Secondly, It is also certain, That no Person simply, and quatenus an
English Man, was dispossess'd of any of his Possessions, and consequently their
Land was not pretended unto as acquired Jure Belli, which appears most plainly
by the following Evidences, viz.
First, That very many of those Persons that were possessed of Lands in
the Time of Edward the Confessor, and so returned upon the Book of Doomsday,
retain'd the same unto them and their Descendants, and some of their
Descendants retain the same Possessions to this Day, which could not have been,
if presently Jure Belli ac Vicioriae universalis, the Lands of the English had
been vested in the Conqueror. And again,
Secondly, We do find, that in all Times, even suddenly after the
Conquest, the Charters of the ancient Saxon Kings were pleaded and allowed, and
Titles made and created by them to Lands, Liberties, Franchises and Regalities,
affirm'd and adjudg'd under William I. Yea, when that Exception has been
offered, That by the Conquest those Charters had lost their Force, yet those
Claims were allowed as in 7 E. 3. Fines, as mentioned by Mr Selden, in his
Notes upon Eadmerus, which could not be, if there had been such a Conquest as
had vested all Mens Rights in the Conqueror.
Thirdly, Many Recoveries were had shortly after this Conquest, as well
by Heirs as Successors of the Seisin of their Predecessors before the Conquest.
We shall take one or two Instances for all; namely, that famous Record apud
Pinendon, by the Archbishop of Canterbury, in the Time of King William I of the
Seisin and Title of his Predecessors before the Conquest: See the whole Process
and Proceedings thereupon in the End of Mr Selden's Notes upon Eadmerus; and
see Spelman's Glossary, Title Drenches. Upon these Instances, and much more
that might be added, it is without Contradiction, That the Rights and
Inheritances of the English qua Tales, were not abrogated or impeach'd by this
Conquest, but continued notwithstanding the same; for, as is before observ'd,
it was Jure Belli quoad Regem, sed non quoad Populum.
But to descend to some Particulars: The English Persons that the
Conqueror had to deal with, were of Three Kinds, viz. First, Such as adhered to
him aginst Harold the Usurper; and, without all Question, those continued the
Possession of their Lands, and their Possessions were rather increased by him,
than any way diminished. Secondly, Such as adhered to Harold, and opposed the
Duke, and fought against him; and doubtless, as to those, the Duke after his
Victory used his Power, and dispossess'd them of their Estates: Which Thing is
usual upon all Conclusions and Events of this Kind, upon a double Reason; 1st,
To secure himself against the Power of those that oppos'd him, and to weaken
them in their Estates, that they should not afterwards be enabled to make Head
against him. And, 2dly, To gratify those that assisted him, and to reward their
Services in that Expedition; and to make them firm to his Interest, which was
now twisted with their own: For it can't be imagined, but that the Conqueror
was assisted with a great Company of Foreigners, some that he favour'd, some
that had highly deserved for their Valour, some that were necessitous Soldiers
of Fortune, and others that were either ambitious or covetous: All whose
Desires, Deserts, or Expectations, the Conqueror had no other Means to satisfy,
but by the Estates of such as had appeared open Enemies to him; and doubtless,
many innocent Persons suffered in this Kind, under false Suggestions and
Accusations, which occasioned great Exclamations by the Writers of those Times
against the Violences and Oppressions which were used after this Victory. And,
Thirdly, Such as stood Neuters, and meddled not on either Side during the
Controversy: And doubtless, for some Time after this great Change, many of
those suffered very much, and were hardly used in their Estates, especially
such as were of the more eminent Sort.
Gervasius Tilburiensis, who wrote in the Time of Hen. 2. Libro I. Cap.
Quid Murdrum & quare sic dictum, gives us a large Account of what he had
traditionally learned touching this Matter, to this Effect, viz. "Post Regni
Conquisitionem & Perduellium Subjectionem, &c. Nomine autem
Successionis a temporibus subactae Gentis nihil sibi Vendicarent," &c. i.
e. After the Conquest of the Kingdom, and Subjection of the Rebels, when the
King himself and his great Men had surveyed their new Acquisitions; and strict
Inquiry was made, who there were that, fighting against the King, had saved
themselves by Flight; From these, and the Heirs of such as were slain in
Battle, fighting against him, all Hopes of Succession, or of possessing their
Estates, were lost; for the People being subdued, they held their Lives as a
But Gervase, as he speaks so liberally in Relation to the Conquest, and
the Subacta Gens, as he terms us; so it should seem, he was in great Measure
mistaken in this Relation: For it is most plain, That those that were not
engaged visibly in the Assistance of Harold, were not, according to the Rules
of those Times, disabled to enjoy their Possessions, or make Title of
Succession to their Ancestors, or transmit to their Posterity as formerly, tho'
possibly some Oppressions might be used to particular Persons here and there to
the contrary. And this appears by that excellent Monument of Antiquity, set
down in Sir H. Spelman's Glossary, in the Title of Drenches or Drenges, which I
shall here transcribe, viz.
Edwinus de Sharborne, Et quidam alii qui ejecti fuerunt & Terris
suis abierunt ad conquestorem & dixerunt ei, quod nunquam ante conquestum,
nec in conquestum, nec post, fuerunt contra Regem ipsum in Concilio, aut in
auxilio sed tenuerunt se in pace, Et hoc parati sunt probare qualiter Rex
vellet Ordinare, Per quod idem Rex facit Inquiri per totam Angliam si ita fuit,
quod quidem probatum fuit, propter quod idem Rex praecepit ut omnes illi qui
sic tenuerunt se in pace in forma praedicta quod ipsi rehaberent omnes Terras
& Dominationes suas adeo integre & in pace ut unquam habuerent vel
tenuerunt ante conquestum suum, Et quod ipsi in posterum vocarentur
But it seems the Possessions of the Church were not under this
Discrimination, for they being held not in Right of the Person, but of the
Church, were not subject to any Confiscation by the Adherence of the Possessor
to Harold the Usurper: And therefore, tho' it seems Stigand Archbishop of
Canterbury, at the coming in of William I had been in some Opposition against
him, which probably might be the true Cause why he perform'd not the Office of
his Coronation, which of Right belonged to him, tho' some other Impediments
were pretended, Vide Eadmerus in initio Libri, and might also possibly be the
Reason why a considerable Part of his Possessions were granted to Odo Bishop of
Bayonne, but were afterwards recovered by Lanfrank, his Successor, at Pinendon,
in pleno Comitatu, ubi Rex praecepit totum Comitatum absque mora considere,
& homines Comitatus omnes Francigenos & praecipue Anglos in antiquis
Legibus & Consuetudinibus peritos, in unum convenire.
To this may be added those several Grants and Charters made by King
William I mentioned in the History of Ely, and in Eadmerus, for restoring to
Bishopricks and Abbies such Lands, or Goods, as had been taken away from them,
Willielmus Dei gratia Rex Anglorum, Lanfranco Archiepiscopo Cantuar'
& Galfrido Episcopo Constantiarum & Roberto Comiti de ou & Richardo
filio Comitis Gilberti & Hugoni de Monteforti, suisque aliis proceribus
Regni Angliae salutem. Summonete Vicecomites meos ex meo praecepto, & ex
parte mea eis dicite ut reddant Episcopatibus meis & Abbatiis totum
Dominium omnesque Dominicas terras quas de Domino Episcopatuum meorum, &
Abbatiarum, Episcopi mei & Abbates eis vel lenitate timore vel cupiditate
dederunt vel habere consenserunt vel ipsi violentia sua inde abstraxerunt,
& quod hacteuus injuste possiderunt de Dominio Ecclesiarum mearum. Et nisi
reddiderint sicut eos ex parte mea summonebitis, vos ipsos velint nolint,
constringite reddere; Et quod si quilibet alius vel aliquis vestrum quibus hanc
Justitiam imposui ejusdem querelae fuerit reddat similiter quod de Domino
Episcopatuum vel Abbatiarum mearum habuit ne propter illud quod inde aliquis
vestrum habebit, minus exerceat super meos Vicecomites vel alios, quicunque
teneant Dominium Ecclesiarum mearum, quod Praecipio, &c.
Willielmus Rex Anglor' omnibus suis fidelibus suis & Vicecomitibus
in quorum Vicecomitatibus Abbatia de Heli Terras habet salutem. Praecipio ut
Abbatia pred. habeat Omnes consuetudines suas scilicet Saccham & Socham
Toll & Team & Infanganetheof, Hamsocua, & Grithbrice Fithwite &
Ferdwite infra Burgum & extra & omnes alias forisfacturas in terra sua
super suos homines sicut habuit Die qua Rex Edwardus fuit vivus & mortuus,
& sicut mea jussione dirationatae apud Keneteford per plures Scyras ante
meos Barones, viz. Galfridum Constantientem Ep. & Baldewine Abbatem,
&c. Teste Rogero Bigot.
Willielmus Rex Angl. Lanfranco Archiepo', & Rogero Comiti
Moritoniae, & Galfrido Constantien Epo. salutem. Mando vobis &
Praecipio ut iterum faciatis congregari omnes Scyras quae interfuerunt placito
habito de Terris Ecclesia de Heli, antequam mea conjux in Normaniam novissime
veniret, cum quibus etiam sint de Baronibus meis, qui competenter adesse
poterint & praedicto placito interfuerint & qui terras ejusdem
Ecclesiae tenent; Quibus in unum congregatis eligantur plures de illis Anglis
qui sciunt quomodo Terrae jacebant praefatae Ecclesiae Die qua Rex Edwardus
Obiit, & quod inde dixerint ididem jure jurando testentur; quo facto
restituentur Ecclesiae terrae quae in Dominico suo erant die obitus Regis
Edwardi; Exceptis his quas homines clamabant me sibi dedisse; illas vero
Literis mihi significate quae sint, & qui eas tenent; Qui autem tenent
Theinlandes quae proculdubio debent teneri de Ecclesia faciant concordiam cum
Abbate quam Meliorem poterint, & si nolurunt terrae remaneant ad Ecclesiam,
Hoc quoque detinentibus Socham & Saccam fiat, &c.
Willielmus Rex Anglorum, Lanfranco Archiepisc', & G. Episc. & R.
Comiti M. salutem, &c. Defendite ne Remigius Episcopus novas consuetudines
requirat infra Insulam de Heli, Nolo enim quod ibi habeat nisi illud quod
Antecessor ejus habebat Tempore Regis Edwar.di Scilicet qua die ipse Rex
mortuus est. Et si Remig. Episcopus inde Placitare voluerit placitet inde sicut
fecisset tempore Regis Edw. & placitum istum sit in vestra praesentia; De
custodia de Norguic Abbatem Simeonem quietum esse demittite; Sed ibi municionem
suam conduci faciat & custodiri. Facite remanere placitum de Terris quas
Calumniantur Willielmus de ou, & Radulphus filius Gualeranni, &
Robertus Gernon; si inde placitare noluerint sicut inde placitassent temPore
Regis Edwardi, & sicut iu eodem tempore Abbatia consuetudines suas habebat,
Volo ut eas omnio faciatis habere sicut Abbas per Chartas sUas, & per
Testes suos eas deplacitare poterit.
I might add many more Charters to the foregoing, and more especially
those famous Charters in Spelman's Councils, Vol. 2. Fol. 14. & 165,
whereby it appears, That King William I. Communi Concilio, & Concilio
Archiepiscoporum, Episcoporum & Abbatum, & omnium Principum &
Baronum Regni, instituted the Courts for holding Pleas of Ecclesiastick Causes,
to be separate and distinct from those Courts that had Jurisdiction of Civil
Causes. Sed de his plusquam fatis.
And thus I conclude the Point I first propounded, viz. How King William
I after his Victory, dealt with the Possessions of the English, whereby it
appears that there was no Pretence of an Universal Conquest, or that he was a
Victor in Populum; neither did he claim the Title of English Lands upon that
Account, but only made Use of his Victory thus far, to seize the Lands of such
as had oppos'd him: Which is universal in all Cases of Victories, tho' without
the Pretence of Conquest.
Secondly, Therefore I come to the Second general Question, viz. What was
done in Relation to the Laws? It is very plain, that the King, after his
Victory, did, as all wise Princes would have done, endeavour to make a stricter
Union between England and Normandy; and in order thereunto, he endeavoured to
bring in the French instead of the Saxon Language, then used in England:
"Deliberavit" (says Holcot) "quomodo Linguam Saxonicam possit destruere, &
Anglicam & Normanicam idiomate concordare & ideo ordinavit quod nullus
in Curia Regis placitaret nisi in Lingua Gallica, &c." From whence arose
the Practice of Pleading in our Courts of Law in the Norman or French Tongue,
which Custom continued till the Statute of 36 E. 3. c. 15.
And as he thus endeavoured to make a Community in their Language, so
possibly he might endeavour to make the like in their Laws, and to introduce
the Norman Laws into England, or as many of 'em as he thought convenient; and
it is very probable, that after the Victory, the Norman Nobility and Soldiers
were scattered through the whole Kingdom, and mingled with the English, which
might possibly introduce some of the Norman Laws and Customs insensibly into
this Kingdom: And to that End the Conqueror did industriously mingle the
English and Normans together, shuffling the Normans into English Possessions
here, and putting the English into Possessions in Normandy, and making
Marriages among them, especially between the Nobility of both Nations.
This gave the English a Suspicion, that they should suddenly have a
Change of their Laws before they were aware of it. But it fell out much better:
For first, there arising some Danger of a Defection of the English,
countenanced by the Archbishop of York in the North, and Frederick, Abbot of
St. Albans in the South; the King, by the Perswasions of Lanfrank, Archbishop
of Canterbury, "Probonopacis apud Berkhamstead juravit super Animas reliquias
Sancti Altani tactisque Sacrosanctis Evangelis (ministrante juramento Abbate
Frederico) ut bonas & approbatas antiquas Regni Leges quas sancti & pii
Angliae Reges ejus Antecessores, & maxime Rex Edvardus statuit
inviolabiliter observaret; Et sic pacificati ad propria laeti recesserunt."
Vide Mat. Paris, in Vita Frederici Abbatis Sancti Albani.
But altho' now, upon this Capitulation, the ancient English Laws were
confirm'd, and namely, the Laws of St. Edward the Confessor; yet it appeared
not what those Laws were: And therefore, in the Fourth Year of his Reign, we
are told by Hoveden, in a Digression he makes in his History under the Reign of
King Hen. 2 and also in the Chronicle of Lithfield.
Willielmus Rex, Anno quarto Regni sui Consilio Baronum suorum fecit
Summonari per Universos Consulatos Angliae, Anglos Nobiles & Sapientes
& sua Lege eruditos ut eorum jura & consuetudines ab ipsis audiret,
Electis igitur de singulis totius Patriae Comitatibus viri duodecim,
jurejurando confirmaverunt ut quoad possint recto tramite neque ad Dextram
neque ad Sinistram partem divertentes Legum suarum consuetudinem & sancitam
patef acerent. nihil praetermittentes nihil addentes, nihil praevaricando
And then sets down many of those ancient Laws approv'd and confirm'd by
the King, and Communi Concilium,. wherein it appears, that he seems to be most
pleased with those Laws that came under the Title of Lex Danica, as most
consonant to the Norman Customs.
Quo auditu mox universi compatrioti qui Leges dixerint Tristes effecti,
uno ministerio deprecati sunt quatenus permitteret Leges sibi proprias &
consuetudines antiquas habere in quibus vi%erunt Patres, & ipsi in iis nati
& nutriti sunt, quia durum Valde sibi foret suscipere Leges ignotas, &
judicare de iis quae nesciebant; Rege vero ad flectendum ingrato existente,
tandem eum persecuti sunt deprecantes quatenus pro Anima Regis Edvardi qui es
sub diem suum eis concesserat Barones & Regnum & cujus orant Leges non
aliorum extraneorum cogere quam sub Legibus perseverare patriis; Unde Consilio
habito Praecatui Baronem tandem acquievit, &c.
Gervasius Tilburiensis, who lived near that Time, speaks shortly, and to
the Purpose, thus: "Propositis Legibus Anglicanis secundum triplicitam earum
Distinctionem, i.e. Merchenlage, Westsaxon-lage, & Dane-lage quasdam autem
approbans illis transmarinas Legis Neustriae quas ad Regni Pacem tuendam
efficasissime videbantur adjecit."
So that by this, there appears to have been a double Collection of Laws,
First, The Laws of the Confessor, which were granted and confirmed by
King William, and are also called the Laws of King William, which are
transcribed in Mr Selden's Notes upon Eadmerus, Page 173. the Title whereof is
thus, viz. "Hae sunt Leges & Consuetudines quas Willielmus Rex concessit
universo populo Angliae post subactam Terram eadem sunt quas Edvardus Rex
cognatus ejus observavit ante eum": And these seem to be the very same that
Ingulfus mentions to have been brought from London, and placed by him in the
Abbey of Crowland in the fifteenth year of the same King William, attuli eadem
Vice mecum Londini in meum Monasterium Legum Volumen, &c.
Secondly, There were certain additional Laws at that Time establish'd,
which Gervasius Tilburiensis calls, Leges Neustriae quae ifficacissimae
vidibantur ad tuendam Regni Pacim; which seems to be included in those other
Laws of King William transcribed in the same Notes upon Eadmerus, Pag. 189,
193, &c. which indeed were principally designed for the Establishment of
King William in the Throne, and for the securing of the Peace of the Kingdom,
especially between the English and Normans, as appears by these Instances,
The Law de Murdro, or the Common Fine for a Norman or Frenchman slain,
and the offender not discovered: The Law for the Oath of Allegiance to the
King: The Introduction of the Trial by single Combat, which many Learned Men
have thought was not in Use here in England before Will. 1. And the Law
touching Knights Service, which Bracton, Lib. 2 supposes to be introduced by
the Conqueror, viz.
Quod omnes Comites Milites & Servientes & universi liberi
homines totius Regni habeant & teneant se semper bene in Armis & in
Equis ut decet & quod sint semper prompti & bene parati ad Servitium
suum integrum nobis explendum & peragendum cum semper Opus affuerit
secundum quod nobis de Fœodo debent & Tenementis suis de Jure facere
& sicut illis statuimus per Commune Concilium totius Regini praedicti,
& illis dedimus & concessimus in Fœodo jure haereditario.
Wherein we may observe, that this Constitution seems to point at Two
Things, viz. The assizing of Men for Arms, which was frequent under the Title
De assidenda ad Arma, and is afterwards particularly enforc'd and rectified by
the Statute of Winton, 13 Ed. I and next of Conventional Services reserved by
Tenures upon Grants made out of the Crown or Knights Service, called in Latin,
Forinsecum, or Regale Servitium.
And Note, That these Laws were not imposed ad Libitum Regis, but they
were such as were settled Per Commune Concilium Regni, and possibly at that
very Time when Twelve out of every County were return'd to ascertain the
Confessor's Laws, as before is mentioned out of Hoveden, which appears to be as
sufficient and effectual a Parliament as ever was held in England.
By all which it is apparent, First, That William I did not pretend, nor
indeed could he pretend, notwithstanding this Nominal Conquest, to alter the
Laws of this Kingdom without common Consent in Communi Concilio Regni, or in
Parliament. And, Secondly, That if there could be any Pretence of any such
Right, or if in that turbulent Time something of that Kind had happened; yet by
all those solemn Capitulations, Oaths, and Concessions, that Pretence was
wholly avoided, and the ancient Laws of the Kingdom settled, and were not to be
altered, or added unto, at the Pleasure of the Conqueror, without Consent in
In the Seventeenth Year of his Reign, (or as some say, the Fifteenth) he
began that great Survey, recorded in Two Books, called, The Great Doomsday
Book, and Little Doomsday Book, and finished it in the Twentieth year of his
Reign, Anno Domini 1086, as appears by the learned Preface of Mr Selden to
Eadmerus, and indeed by the Books themselves. The Original Record of which is
still extant, remaining in the Custody of the Vice-Chamberlains of his
Majesty's Exchequer. This Record contains a Survey of all the ancient Demesn
Lands of the Kingdom, and contains in many Manors, not only the Tenants Names,
with the Quantity of Lands and their Values, but likewise the Number and
Quality of the Residents or Inhabitants, with divers Rights, Privileges, and
Customs claimed by them; and being made and found by Verdict or Presentment of
Juries in every Hundred or Division upon their Oaths, there was no receeding
from, or avoiding what was written in this Record: And therefore as Gervasius
Tilburiensis says, Page 41. "Ob hoc nos eundem Librum Judiciarium Nominamus;
Non quod in eo de propositis aliquibus dubiis seratur sententia, sed quod ab eo
sicut ab ultimo Die Judicii non licet ulla ratione descedere."
And thus much shall suffice touching the Fifth General Head; namely, of
the Progress made after the Coming-in of King William, relating to the Laws of
England, their Establishment, Settlement, and Alteration. If any one be minded
to see what this Prince did in reference to Ecclesiasticks, let him consult
Eadmerus, and the learned Notes of Mr. Selden upon it, especially Page 1 67,
168, &c. where he shall find how this King divided the Episcopal Consistory
from the County Court, and how he restrain'd the Clergy and their Courts from
exercising ecclesiastical Jurisdiction upon Tenants in Capite.
VI. Concerning the Parity or Similitude of the Laws of
England and Normandy, and the Reasons thereof
The great Similitude that in many Things appears hetween the Laws of
England, and those of Normandy, has given some Occasion to such as consider not
well of Things, to suppose that this happened by the Power of the Conqueror, in
conforming the Laws of this Kingdom to those of Normandy; and therefore will
needs have it, that our English Laws still retain the Mark of that Conquest,
and that we received our Laws from him as from a Conqueror; than which
Assertion, (as it appears even by what has before been said) nothing can be
more untrue. Besides, if there were any Laws derived from the Normans to us, as
perhaps there might be some, yea, possibly many; yet it no more concludes the
Position to be true, that we received such Laws Per Modum Conquestus, than if
the Kingdom of England should at this Day take some of the Laws of Persia,
Spain, Egypt, or Assyria, and by Authority of Parliament settle them here.
Which tho' they were for their Matter Foreign, yet their obligatory Power, and
their formal Nature or Reason of becoming Laws here, were not at all due to
those Countries, whose Laws they were, but to the proper and intrinsical
Authority of this Kingdom by which they were received as, or enacted into,
Laws: And therefore, as no Law that is Foreign, binds here in England, till it
be received and authoritatively engrafted into the Law of England; so there is
no Reason in common Prudence and Understanding for any Man to conclude, that no
Rule or Method of Justice is to be admitted in a Kingdom, tho' never so useful
or beneficial, barely upon this Account, That another People entertain'd it,
and made it a Part of their Laws before us.
But as to the Matter itself, I shall consider, and enquire of the
following Particulars, viz.
1. How long the Kingdom of England and Dutchy of Normandy stood in
Conjunction under one Governor.
2. What Evidence we have touching the Laws of Normandy, and of their
Agreement with ours.
3. Wherein consists that Parity or Disparity of the English and Norman
4. What might be reasonably judged to be the Reason and Foundation of
that Likeness, which is to be found between the Laws of both Countries.
First, Touching the Conjunction under one Governor of England and
Normandy, we are to know, That the Kingdom of England and Dutchy of Normandy
were de facto in Conjunction under these Kings, viz. William I, William 2,
Henry I, King Stephen, Henry 2, and Richard I who, dying without Issue, left
behind him Arthur Earl of Britain, his Nephew, only Son of Geoffry Earl of
Britain, second Brother of Richard I and John the youngest Brother to Richard I
who afterward became King of England by usurping the Crown from his Nephew
Arthur. But the Princes of Normandy still adhered to Arthur, "sicut Domino
Ligeo suo dicentes Judicium & Consuetudinem esse illarum Regionum ut
Arthurus Filius, Fratris Senioris in Patrimonio sido debito & haereditate
Avunculo suo succedat eodem jure quod Gaulfridus Pater ejus esset habiturus si
Regi Richardo defuncto supervixisset."
And therein they said true, and the Laws of England were the same,
Witness the Succession of Richard 2 to Edward 3 also the Laws of Germany, and
the ancient Saxons were accordant hereunto; and it was accordingly decided in a
Trial by Battle, under Otho the Emperor, as we are told by Radulphus, de Diceto
sub Anno 945. And such are the Laws of France to this Day, Vide Chopimus de
Domanio Franciae, Lib. 2. Tit. 12. and such were the ancient Customs of the
Normans, as we are told by the Grand Contumier, cap. 99. And such is the Law of
Normandy, and of the Isles of Jersey and Guernsey (which some Time were Parcel
thereof) at this Day, as is agreed by Terrier, the best Expositor of their
Customs, Lib. 2. cap. 2. And so it was adjudg'd within my Remembrance in the
Isle of Jersey, in a Controversy there, between John Perchard and John Rowland,
for the Goods and Estate of Peter Perchard.
But nevertheless, John the Uncle of Arthur came by Force and Power, Et
Rotomagum Gladio Diucatus Normanniae accinctus est Per Ministerium Kotomagensis
Archiepiscopi, as Mat. Paris says; and shortly after also usurped the Crown of
England, and imprisoned his Nephew Arthur, who died in the year 1202, being as
was supposed murthered by his said Uncle, Vide Mat. Paris, in fine Regni Regis
Rici' Primi, and Walsingham in his Ypodigma Neustriae sub eodem Anno 1202.
And to countenance his Usurpation in Normandy, and to give himself the
better Pretence of Title, he by his Power so far prevailed there, that he
obtained a Change of the Law there, purely to serve his Turn, by transferring
the Right of Inheritance from the Son of the elder Brother to the younger
Brother, as appears by the Grand Contumier, cap. 99. But withal, the Gloss
takes Notice of it as an Innovation, and brought in by Men of Power, tho' it
mentions not the particular Reason, which was aforesaid.
The King of France (of whom the Dutchy of Normandy was holden) highly
resented the Injury done by King John to his Nephew Arthur, who, as was
strongly suspected, came not fairly to his End. He summoned King John as Duke
of Normandy into France, to give an Account of his Actions, and upon his
Default of appearing, he was by King Philip of France forejudged of the Said
Dutchy, Vide Mat. Paris, in initio Regni Johannis; and this Sentence was so
effectually put in Execution, that in the year 1204, Mat Paris tells us, "Tota
Normannia, Turania Andegavia, & Pictavia cum Civitatibus & Castellis
& Rebus aliis praeter Rupellam, Toar, & Mar Castellam sunt in Regis
Francorum Dominium devoluta."
But yet he retained, tho' with much Difficulty, the Islands of Jersey
and Guernsey, and the uninterrupted Possession of some Parts of Normandy for
some Time after, and both he and and his Son King Hen. 3 kept the Stile and
Title of Dukes of Normandy, &c. 'till the 43d year of King Hen. 3 at which
Time for 3000 Livres Tournois, and upon some other Agreements, he resigned
Normandy and Anjou to the King of France, and never afterwards used that Title,
as appears by the Continuation of Mat. Paris, sub Anno 1260, only the four
Islands, some Time Parcel of Normandy, were still, and to this Day, are enjoyed
by the Crown of England, viz. Jersey, Guernsey, Sarke, and Aldernay, tho' they
are still governed under their ancient Norman Laws.
Secondly, As to the Second Enquiry, What Evidence we have touching the
Laws of Normandy: The best, and indeed only common Evidence of the ancient
Customs and Laws of Normandy, is that Book which is called, The Grand Contumier
of Normandy, which in later years has been illustrated, not only with a Latin
and French Gloss, but also with the Commentaries of Terrier, a French
This Book does not only contain many of the ancienter Laws of Normandy,
but most plainly it contains those Laws and Customs which were in Use here in
the Time of King Hen. 2, King Rich. I and King John, yea, and such also as were
in Use and Practice in that Country after the Separation of Normandy from the
Crown of England; for we shall find therein, in their Writs and Processes,
frequent Mention of King Rich. I and the entire Text of the 110th Chapter
thereof is an Edict of Philip King of France, after the Severance of Normandy
from the Crown of England. (I speak not of those additional Edicts which are
annex'd to that Book of a far later Date.) So that we are not to take that Book
as a Collection of the Laws of Normandy, as they stood before the Accession or
Union thereof to the Crown of England; but as they stood long after, under the
Time of those Dukes of Normandy that succeeded William I and it seems to be a
Collection made after the Time of K. Hen. 3 or at least after the Time of K.
John, and consequently it states their Laws and Customs as they stood in Use
and Practice about the Time of that Collection made, which observation will be
of Use in the ensuing Discourse.
Thirdly, Touching the Third Particular, viz. The Agreement and Disparity
of the Laws of England and Normandy. It is very true, we shall find a great
Suitableness in their Laws, in many Things agreeing with the Laws of England,
especially as they stood in the Time of King Hen. 2 the best Indication whereof
we have in the Collection of Glanville; the Rules of Discents, of Writs, of
Process, of Trials, and some other Particulars, holding a great Analogy in both
Dominions, yet not without their Differences and Disparities in many
First, Some of those Laws are such as were never used in England; for
Instance, There was in Normandy a certain Tribute paid to the Duke, called
Monya, i. e. a certain Sum yielded to him (in Consideration that he should not
alter their Coin) payable every three years, Vide Contumier, cap. 15. But this
Payment was never admitted in England; indeed it was taken for a Time, but was
ousted by the first Law of King Hen. 1 as an Usurpation. Again, by the Custom
of Normandy, the Lands descended to the Bastard Eigne, born before Marriage of
the same Woman, by whom the same Man had other Children after Marriage,
Contumier, cap. 27. But the Laws of England were always contrary, as appears by
Glanville, Lib. 7. cap. 13. And the Statute of Merton, which says, Nolumus
Leges Anglicans Mutare, &c. Again, by the Laws of Normandy, if a Man died
without Issue, or Brother, or Sister, the Lands did descend to the Father,
Contumier, cap. 15. Terrier, cap. 2. But in England, this Law seems never to
have been used.
2dly, Again, Some Laws were used in Normandy, which were in Use in
England long before the supposed Norman Conquest, and therefore could in no
Possibility have their original Force, or any binding Power here upon that
Pretence: For Instance, it appears by the Custumier of Normandy, that the
Sheriff of the County was an Annual Officer, and so 'tis evident he was
likewise in England before the Conquest: And among the Laws of Edward the
Confessor, it is provided, "Quod Aldermanni in Civitatibus eandem habeant
Dignitatem qualem habent Ballivi hundredorum in Ballivis suis sub Vicecomitem":
Again, Wreck of the Sea, and Treasure Trove was a Prerogative belonging to the
Dukes of Normandy, as appears by the Contumier, cap. 17, & 18. and so it
was belonging to the Crown of England before the Conquest, as appears by the
Charter of Edward the Confessor to the Abby or Ramsey of the Manor of
Ringstede, cum toto ejectu Maris quod Wreccum dicitur, and the like, vide ibid.
of Treasure Trove, & vide the Laws of Edward the Confessor, cap. 14. So
Fealty, Homage, and Relief, were incident to Tenures by the Laws of Normandy,
Vide Contumier, cap. 29. And so they were in England before the Conquest, as
appears by the Laws of Edward the Confessor, cap. 35. and the Laws of Canutus,
mentioned by Brompton cap. 8. So the Trial by Jury of Twelve Men was the usual
Trial among the Normans in most Suits, especially in Assizes, & Juris
Utrums, as appears by the Contumier, cap. 92, 93, & 94. and that Trial was
in Use here in England before the Conquest, as appears in Brompton among the
Laws of King Elthred, cap. 3. which gives some Specimen of it, viz. "Habeant
placita in singulis Wapentachiis & exeant Seniores duodecim Thani vel
Praepositus cum iis & jurent quod neminem innocentem accusare nec Noxium
3dly, Again, In some Things, tho' both the Law of Normandy and the Law
of England agreed in the Fact, and in the Manner of Proceeding, yet there was
an apparent Discrimination in their Law from ours: As for Instance, The Husband
seized in Right of the Wife, having Issue by her, and she dying, by the Custom
of Normandy he held but only during his Widowhood, Contiumier, cap. 119. But in
England, he held during his Life by the Curtesy of England.
4thly, But in some Things, the Laws of Normandy agreed with the Laws of
England, especially as they stood in the Times of Hen. 2 and Rich. I so that
they seem to be as it were Copies or Counterparts one of another; tho' in many
Things, the Laws of England are since changed in a great Measure from what they
then were? For Instance, at this Day in England, and for very many Ages past,
all Lands of Inheritance, as well Socage Tenures, as of Knights Service,
descend to the eldest Son, unless in Kent and some other Places where the
Custom directs the Descent to all the Males, and in some places to the
youngest; but the ancient Law used in England, though it directed Knights
Services and Serjeanties to descend to the eldest Son, yet it directed
Vassalagies and Soccage Lands to descend to all the Sons, Glanvil. Lib. 7. cap.
3. and so does the Laws of Normandy to this Day. Vide Contumier, cap. 26. &
post hic, cap. 11.
Again. Leprosy at this Day does not impede the Descent; but by the Laws
in Use in England, in the elder Times, unto the Time of King John, and for some
Time afterwards, Leprosy did impede the Descent, as Placito Quarto Johannis, in
the Case of W. Fulch, a Judge of that Time, and accordingly were the Laws of
Normandy. Vide Le Contumier, cap. 27.
Again. At this Day, by the Law of England, in Cases of Trials by Twelve
Men, all ought to agree, and any one dissenting, no Verdict can be given; but
by the Laws of Normandy, tho' a Verdict ought to be by the concurring Consent
of Twelve Men, yet in Case of Dissent or Disagreement of the Jury, they used to
put off the lesser Number that were Dissenters, and added a kind of Tales equal
to the greater Number so agreeing, until they had got a Verdict of Twelve Men
that concurred, Contumier, c. 95. And we may find some ancient Footsteps of the
like Use here in England, tho' long since antiquated, Vide Bracton, Lib. 4.
cap. 19. where he speaks thus,
Contingit etiam multotiens quod Juratores in veritate dicenda sunt sibi
contrarii ita quod in unam concordare non possunt sententiam, Quo casu de
Consilio Curiae affortietur Assisa, ita quod apponantur alii juxta numerum
majoris partis quae dissenserit, vel saltem quatuor vel sex & adjungantur
aliis, vel etiam per seipsos sine aliis, de veritate discutiant & judicent,
& per se respondeant & eorum veredictum allocabitur & tenebitur cum
quibus ipsi convenirent.
Again. At this Day, by the Laws of England, a Man may give his Lands in
Fee-simple, which he has by Descent, to any one of his Children, and disinherit
the rest: But by the ancient Laws used here, it seems to be otherwise; as Mich.
10. Johannis Glanv. Lib. 7. cap. 2. the Case of William de Causeia. And
accordingly were the Laws of Normandy, as we find in the Grand Contumier, cap.
36. "Quand le Pere avoit plusieurs fills, ils ne peut fairde de son Heritage le
un Meillenr que le auter"; and yet it seems to this Day, in England, it holds
some Resemblance in Cases of Frank-Marriage, viz. That the Doness, in Case she
will have any Part of her Father's other Lands, ought to put her Lands in
Again, By the Law of England, the younger Brother shall not exclude the
Son of the elder, who died in the Life-time of the Father: And this was the
ancient Law of Normandy, but received some Interruption in Favour of King
John's Claim, Vide Contumier. cap. 25. & hic ante; and indeed, generally
the Rule of Descents in Normandy was the same in most Cases with that of
Descents with us at this Day; as for Instance, That the Descent of the Line of
the Father shall not resort to that of the Mother, Et e converso; and that the
Course was otherwise in Cases of Purchases. But in most Things the Law of
Normandy was consonant to the Law with us, as it was in the Time of King
Richard I and King John; except in Cases of Descents to Bastard eigne,
excluding Mulier Puisne, as aforesaid.
Again, at this Day there are many Writs now in Use which were anciently
also in Use here, as well as in Normandy: As Writs of Rights, Writs of Dower,
Writs De novel Desseisin, de Mortdancestor, Juris utrum, Darrein presentment,
&c. And some that are now out of Use, though anciently in Use here in
England; as Writs De Feodo vel Vado, De Feodo vel Warda, &c. All which are
taken notice of by Glanville, Lib. 13. cap. 28, 29. And the very same Forms of
Writs in Effect were in Use in Normandy, as appears by the Contumier Per Totum,
and the Writ De Feodo vel Vado, (ibid. cap. 11.) according to Glanville, Lib.
13. cap. 27. runs thus, viz.
Rex Vicecomiti salutem: Summone per bonos summonitores duodenim liberos
& legales homines de vicineto quod sint coram me vel Justiciis meis eo die
parati Sacramento Recognoscere utrum N. teneat unam Carucatem Terrae in illa
villa quae R. clamat versus eum per Breve meum in Feodo an in vadio, invadiatem
ei ab ipso R. vel ab H. antecessore ejus, (vel aliter si sit Feodam vel
haereditas ipsius N. an in vadio invadiata ei ab ipso R. vel ab H. &c. Et
interim terram illam videant, &c. (Vide ibid.)
And according to the Grand Contumier, that Writ runs thus, viz.
Si Rex fecerit te securum de clamore suo prosequend' summoneas
Recognitores de Viceneto quod sint ad primas Assisas Ballivae, ad cognoscendum
utrum Carucata Terrae in B. quod. G. deforceat R. sit Feodum tenentis vel
vadium novum dictum per manus G. post Coronationem Regis Richardi & pro
quanta, & utrum sit propinquior Haeres ad redimendum vadium, & videatur
interum Terrae, &c.
So that there seems little Variance, either in the Nature or in the Form
of those Writs used here in the Time of Henry 2. And those used in Normandy
when the Contumier was made.
Again, The Use was in England, to limit certain notable Times, within
the Compass of which those Titles which Men design'd to be relieved upon, must
accrue: Thus it was done in the Time of Henry 3 by the Statute of Merton, cap.
8. at which Time the Limitation in a Writ of Right was from the Time of King
Henry I and by that Statute it is reduced to the Time of King Henry 2 and for
Assizes of Mortdancestor they were thereby reduced from the last Return of King
John out of Ireland, which was 12 Johannis, and for Assizes of Novel Disseisin,
a Prima Transfretatione Regis in Normanniam, which was 5 Hen. 3 and which
before that had been Post ultimum redditum Henricus 3 de Britannia, as appears
by Bracton. And this Time of Limitation was also afterwards, by the Statutes of
Westm. I. cap. 39. and West. 2. cap. 2. 46. reduced unto a narrow Scantlet, the
Writ of Right being limited to the First Coronation of King Richard I.
But before the Limitation set by that Statute of Merton, there were
several Limitations set for severals Writs; for we find among the Pleas of King
John's Time, the Limitation of Writs, De Tempore quo Rex Henricus avus noster
fuit vivus & Mortuus; and in a Writ of Aile, Die quo Rex Henricus obiit in
the Time of Henry 2. as appears by Glanville, Lib. 13. cap. 3. there were then
divers Limitations in Use, as in Moridancestors, Post Prima Coronationem
nostram, viz. Henrici secundi, Glanvil. Lib. I. cap. I and touching Assizes of
Novel Disseisin, Vide ibid. cap. 32. where he tells us, Cium quis intra
Assisam, &c. And the Time of Limitation in an Assize, was then post ultimdm
meam Transfretationem, (viz. Henrici Primi) in Normanniam, Lib. 13. cap. 33.
But in a Writ of Right, as also in a Writ of Customs and Services, it was de
Tempore Regis Henrici avi mei, viz. Hen. I. vid. ib. Lib. 12. cap. 10, 16. and
it seems very apparent, that the Limitations anciently in Normandy, for all
Actions Ancestral was Post Primam Coronaiionem Regis Henrici fecundi, as
appears expresly in the Contumier, cap. 111. De Feofe & Gage.
So that anciently the Time of Limitation in Normandy was the same as in
England, and indeed borrowed from England, viz. In all Actions Ancestrel from
the Coronation of Henry 2. And thus in those Actions wherein the Limitation was
anciently from the Coronation of King Richard I was substituted as in the Writ
De Feofe & Gage, in the Contumier, cap. 111. De Feofe & Forme, cap.
112. In the Writ De Ley Apparisan, ib. cap. 24. & cap. 22. "Ascun Gage ne
peut estre requise en Normandy, si il ne suit engage post le Coronement de Roy
Richard ou deins quarante annus": So that the old Limitation, as well for the
Redemption of Mortgages, as for bringing those Writs above-mentioned, was post
Coronationem Regis Henrici Secundi; but altered, as it seems, by King Philip,
the Son of Lewis King of France, after King John's Ejectment out of Normandy,
and since the Time from the Coronation of King Richard I is estimated to bear
Proportion to 40 years. It is probable this Change of the Limitation by King
Philip of France, was about the Beginning of the Reign of King Henry 3 or about
30 or 40 years after the Coronation of Richard I from whose Coronation about 30
years were elapsed, 5 aut. 6 Henrici 3 for anciently the Limitation in this
Case was 30 years.
Fourthly, I now come to the Fourth Inquiry, viz. How this great Parity
between the Laws of England and Normandy came to be effected; and before I come
to it, I shall premise Two Observables, which I would have the Reader to carry
along with him through the whole Discourse, viz. First, That this Parity of
Laws does not at all infer a Necessity, that they should be imposed by the
Conqueror, which is sufficiently shewn in the foregoing Chapters; and in this
it will appear that there were divers other Means that caused a Similitude of
both Laws, without any Supposition of imposing them by the Conqueror. Secondly,
That the Laws of Normandy were in the greater Part thereof borrowed from ours,
rather than ours from them, and the Similitude of the Laws of both Countries
did in greater Measure arise from their Imitation of our Laws, rather than from
our Imitation of theirs, though there can't be denied a Reciprocal Imitation of
each others Laws was, in some Measure at least, had in both Dominions: And
these Two Things being premised, I descend to the Means whereby this Parity or
Similitude of the Laws of both Countries did arise, as follow, viz.
First, Mr Camden and some others have thought, there was ever some
Congruity between the ancient Customs of this Island and those of the Country
of France, both in Matters Religious and Civil; and tells us of the ancient
Druids, who were the common Instructors of both Countries. Gallia Causidicos
docuit facunda Britannos: And some have thought, that anciently both Countries
were conjoined by a small Neck of Land, which might make an easier Transition
of the Customs of either Country to the other; but those Things are too remote
Conjectures, and we need them not to solve the Congruity of Laws between
England and Normandy. Therefore,
Secondly, It seems plain, that before the Normans coming in Way of
Hostility, there was a great Intercourse of Commerce and Trade, and a mutual
Communication, between those Two Countries; and the Consanguinity between the
Two Princes gave Opportunities of several Interviews between them and their
Courts in each others Countries: And it is evident by History, that the
Confessor, before his Accession to the Crown, made a long Stay in Normandy, and
was there often, which of Consequence must draw many of the English thither,
and of the Normans hither; all which sight be a Means of their mutual
Understanding of the Customs and Laws of each others Country, and gave
Opportunities of Incorporating and ingrafting divers of them into each other,
as they were found useful or convenient; and therefore the Author of the
Prologue to the Grand Custumier thinks it more probable, That the Laws of
Normandy were derived from England, than that ours were derived from
Thirdly, 'Tis evident, that when the Duke of Normandy came in, he
brought over a great Multitude, not only of ordinary Soldiers, but of the best
of the Nobility and Gentry of Normandy; hither they brought their Families,
Language and Customs, and the Victor used all Art and Industry to incorporate
them into this Kingdom: And the more effectually to make both People become one
Nation, he made Marriages between the English and Normans, transplanting many
Norman Families hither, and many English Families thither; he kept his Court
sometimes here, and sometimes there; and by those Means insensibly derived many
Norman Customs hither, and English Customs thither, without any severe
Imposition of Laws on the English as Conqueror: And by this Method he might
easily prevail to bring in, even without the Peoples Consent, some Customs and
Laws that perhaps were of Foreign Growth; which might the more easily be done,
considering how in a short Time the People of both Nations were intermingled;
they were singled in Marriages, in Families, in the Church, in the State, in
the Court, and in Councils; yea, and in Parliaments in both Dominions, though
Normandy became, as it were, an Appendix to England, which was the nobler
Dominion, and received a greater Conformity of their Laws to the English, than
they gave to it.
Fourthly, But the greatest Means of the Assimilation of the Laws of both
Kingdoms was this: The Kings of England continued Dukes of Normandy till King
John's Time, and he kept some Footing there notwithstanding the Confiscation
thereof by the King of France, as aforesaid; and during all this Time, England,
which was an absolute Monarch, had the Prelation or Preference before Normandy,
which was but a Feudal Dutchy, and a small Thing in respect of England; and by
this Means Normandy became, as it were, an Appendant to England, and
successively received its Laws and Government from England; which had a greater
Influence on Normandy than that could have on England; insomuch that oftentimes
there issued Precepts into Normandy to summon Persons there to answer in Civil
Causes here; yea, even for Lands and Possessions in Normandy; as Placito 1
Johannis, a Precept issued to the Seneschal of Norsandy, to summon Robert
Jeronymus, to answer to John Marshal, in a Plea of Land, giving him 40 Days
Warning; to which the Tenant appeared, and pleaded a Recovery in Normandy: And
the like Precept issued for William de Bosco, against Jeoffry Rusham, for Lands
in Corbespine in Normandy.
And on the other Side, Trin. 14 Johannis, in a Suit between Francis
Borne and Thomas Adorne, for certain Lands in Ford. The Defendant pleaded a
Concord made in Normandy in the Time of King Richard I upon a Suit there before
the King, for the Honour of Bonn in Normandy, and for certain Lands in England,
whereof the Lands in Question were Parcel, before the Seneschal of Normandy,
Anno 1099. But it was excepted against, as an insufficient Fine, and varying in
Form from other Fines; and therefore the Defendant relied upon it as a
By these, and many the like Instances, it appears as follows, viz.
First, That there was a great Intercourse between England and Normandy
before and after the Conqueror, which might give a great Opportunity of an
Assimilation and Conformity of the Laws in both Countries. Secondly, That a
much greater Conformation of Laws arose after the Conqueror, during the Time
that Normandy was enjoyed by the Crown of England, than before. And Thirdly,
That this Similitude of the Laws of England and Normandy was not by
Conformation of the Laws of England to those of Normandy, but by Conformation
of the Laws of Normandy to those of England, which now grew to a great Height,
Perfection and Glory; so that Normandy became but a Perquisite or Appendant of
And as the Reason of the Thing speaks it, so the very Fact itself
attests it. For
First, It is apparent, That in Point of Limitation in Actions Ancestral,
from the Time of the Coronation of King Henry 2 it was anciently so here in
England in Glanville's Time, and was transmitted from hence into Normandy; for
it is no way reasonable to suppose the contrary, since Glanville mentions it to
be enacted here, Concilio procerum; and though this be but a single Point, or
Instance, yet the Evidence thereof makes out a Criterion, or probable
Indication, that many other Laws were in like Manner so sent hence into
Secondly, It appears, That in the Succession of the Kings of England,
from King William I to King Henry 2 the Laws of England received a great
Improvement and Perfection, as will plainly appear from Glanville's Book,
written in the Time of King Henry 2 especially if compared with those Sums or
Collections of Laws, either of Edward the Confessor, William I or Henry I
So that it seems, by Use, Practice, Commerce, Study and Improvement of
the English People, they arrived in Henry 2d's Time to a greater Improvement of
the Laws; and that in the Time of King Richard I and King John, they were more
perfected, as may be seen in the Pleadings, especially of King John's Time: And
tho' far inferior to those of the Times of Succeeding Kings, yet they are far
more regular and perfect than those that went before them. And now if any do
but compare the Contumier of Normandy, with the Tract of Glanville, he will
plainly find that the Norman Tract of Laws followed the Pattern of Glanville,
and was writ long after it, when possibly the English Laws were yet more
refined and more perfect; for it is plain beyond Contradiction, that the
Collection of the Customs and Laws of Normandy was made after the Time of King
Henry 2, for it mentions his Coronation, and appoints it for the Limitation of
Actions Ancestrel, which must at least be 30 years after; nay, the Contumier
appears to have been made after the Act of Settlement of Normandy in the Crown
of France; for therein is specified the Institution of Philip King of France,
for appointing the Coronation of King Richard I for the Limitation of Actions
which was after the said Philip's full Possession of Normandy.
Indeed, if those Laws and Customs of Normandy had been a Collection of
the Laws they had had there before the coming in of King William I, it might
have been a Probability that their Laws, being so near like ours, might have
been transplanted from thence hither; but the Case is visibly otherwise, for
the Contumier is a Collection after the Time of King Richard I, yea, after the
Time of King John, and possibly after Henry 3d's Time, when it had received
several Repairings, Amendments and Polishings, under the several Kings of
England, William I, William 2, Henry I, King Steven, Henry 2, Richard I, and
King John; who were either knowing themselves in the Laws of England, or were
assisted with a Council that were knowing therein.
And as in this Tract of Time the Laws of England received a great
Advance and Perfection, as appears by that excellent Collection of Glanville,
written even in Henry 2's Time, when yet there were near 30 years to acquire
unto a further Improvement before Normandy was lost; so from the Laws of
England thus modelled, polished and perfected, the same Draughts were drawn
upon the Laws of Normandy, which received the fairest Lines from the Laws of
England, as they stood at least in the Beginning of King John's Time, and were
in Effect in a great Measure the Defloration of the English Laws, and a
Transcript of them, though mingled and interlarded with many particular Laws
and Customs of their own, which altered the Features of the Original in many
VII. Concerning the Progress of the Laws of England
after the Time of King William I, until the Time of King Edward 2
That which precedes in the Two foregoing Chapters, gives us some Account
of the Laws of England, as they stood in and after the great Change which
happened under King William I commonly called The Conqueror. I shall now
proceed to the History thereof in the ensuing Times, until the Reign of King
William I having Three Sons; Robert the eldest, William the next, and
Henry the youngest, disposed of the Crown of England to William his second Son,
and the Dutchy of Normandy to Robert his eldest Son; and accordingly William 2
commonly called, William Rufus, succeeded his Father in this Kingdom. We have
little memorable of him in relation to the Laws, only that he severely press'd
and extended the Forest Laws.
Henry I, Son of William I and Brother of William 2 succeeded his said
Brother in the Kingdom of England, and afterwards expelled his eldest Brother
Robert out of the Dutchy of Normandy also. He proceeded much in the Benefit of
the Laws, viz.
First, He restored the Free-Election of Bishops and Abbots, which before
that Time he and his Predecessors invested, Per Anniulum & Bacculum; yet
reserving those Three Ensigns of the Patronage thereof, viz. Conge d'Eslire,
Custody of the Temporalties, and Homage upon their Restitution. Vide Hoveden,
in Vita sua.
But Secondly, The great Essay he made, was the composing an Abstract or
Manual of Laws, wherein he confirm'd the Laws of Edward the Confessor, Cum
illis Emendationibus quibus eam Pater meus emendavit Baronum suorum Concilio;
and then adds his own Laws, some whereof seem to taste of the Canon Law. The
whole Collection is transcribed in the Red Book of the Exchequer; from whence
it is now printed in the End of Lambard's Saxon Laws; and therefore not
needfull to be here repeated.
They, for the most Part, contain a Model of Proceedings in the County
Courts, the Hundred Courts, and the Courts Leet; the former to be held Twelve
Times in the Year, the latter twice; and also of the Courts Baron. These were
the ordinary usual Courts, wherein Justice was then, and for a long Time after,
most commonly administred; also they concern Criminal Proceedings, and the
Punishment of Crimes, and some few Things touching Civil Actions and Interests,
as in Chapter 70, directing Descents, viz.
Si quis sine Liberis decesserit Pater aut Mater ejus in Hereditatem
succedant, vel Frater vel Soror, si Pater & Mater desint; si nec hos
habeat, Frater vel Soror Patris vel Matris, & deinceps in quintum
Genetalium, qui cum propiores in parentela sint hereditario Jure succedant; Et
dum virilis sexus extiterit & haereditas ab inde sit Femina non
haereditetur; primum Patris Feodum primogenitus Filius habeat. Emptiones vero
& deinceps Acquisitiones det cui magis velit, sed si Bockland habeat quam
ei Parentes dederint, Mittat eam extra cognationem suam.
I have observ'd and inserted this Law, for Two Reasons, viz. First, To
justify what I before said, That the Laws of Normandy took the English Laws for
their Pattern in many Things; Vide le Contumier, cap. 25, 26, 36, &c. And
Secondly, To see how much the Laws of England grew and increased in their
Particularity and Application between this Time and the Laws of William I which
in Chapter 36, has no more touching Descents but this, viz. Si quis intestatus
obierit, liberi ejus haereditatem equsliter dividant. But Process of Time
grafted thereupon, and made particular Provisions for particular Cases, and
added Distributions and Subdivisions to those General Rules.
These Laws of King Henry I are a kind of Miscellany, made up of those
ancient Laws, called, The Laws of the Confessor, and King William I and of
certain Parts of the Canon and Civil Law, and of other Provisions, that Custom
and the Prudence of the King and Council had thought upon, chosen, and put
King Stephen succeeded, by Way of Usurpation, upon Maud the sole
Daughter and Heir of King Hen. I. The Laws of Hen. I grew tedious and
ungrateful to the People, partly because new, and so not so well known, and
partly because more difficult and severe than those ancient Laws, called, The
Confessor's; for Walsingham, in his Ypodigma Neustriae, tells us, That the
Londoners petitioned Queen Maud, ut liceret eis uti Legibus sancti Edvardi
& non legibus Patris sui Henrici, quia graives erant,. and that her Refusal
gave Occasion to their Defection from her, and strengthened Stephen in his
Usurpation; who according to the Method of Usurpers, to secure himself in the
Throne, was willing and ready to gratify the Desires of the People herein; and
furthermore, took his Oath, 1st, That he would not retain in his Hands the
Temporalties of the Bishops: 2dly, That he would remit the Severity of the
Forest Laws; and 3dly, That he would also remit the Tribute of Danegelt: But he
His Times were troublesome, he did little in relation to the Laws; nor
have we any Memorial of any Record touching his Proceedings therein, only there
are some few Pipe Rolls of his Time, relating to the Revenue of the Crown.
Henry 2, the Son of Maud, succeeded Stephen, he reigned long, viz. about
Thirty Five Years; and tho' he was not without great Troubles and Difficulties,
yet he built up the Laws and the Dignity of the Kingdom to a great Height and
First, In the Entrance of his Government he settled the Peace of the
Kingdom; he also reformed the Coin, which was much adulterated and debased in
the Times and Troubles of King Stephen, Et Leges Henrici avi sui praecepit per
totum Regnum inviolabiliter observari. Hoveden.
Secondly, Against the Insolencies and Usurpations of the Clergy. he by
the Advice of his Council or Parliament at Clarendon, enacted those Sixteen
Articles mentioned by Mat. Paris, sub Anno 1164. They are long, and therefore I
remit you thither for the Particulars of them.
'Tis true, Thomas Becket, Archbishop of Canterbury, boldly and
insolently took upon him to declare many of those Articles void, especially
those Five mentioned in his Epistle to Suffragans, recorded by Hoveden, viz.
1st, That there should be no Appeal to the Bishop without the King's Licence.
2dly, That no Archbishop or Bishop should go over the Seas at the Pope's
Command without the King's Licence. 3dly, That the Bishop should not
excommunicate the King's Tenants in Capite without the King's Licence. 4thly,
That the Bishop should not have the Conuzance of Perjury, or Fidei Laesionis.
And, 5thly, That the Clergy should be convened before Lay Judges, and that the
King's Courts should have Conuzance of Churches and of Tythes.
Thirdly, He raised up the Municipal Laws of the Kingdom to a greater
Perfection, and a more orderly and regular Administration than before; 'tis
true, we have no Record of judicial Proceedings so ancient as that Time, except
the Pipe Rolls in the Exchequer, which are only Accounts of his Revenue: But we
need no other Evidence hereof than the Tractate of Glanville, which tho'
perhaps it was not written by that Ranulphus de Glanvilla, who was Justitiarius
Angliae under Hen. 2, yet it seems to be wholly written at that Time; and by
that Book, tho' many Parts thereof are at this Day antiquated and altered, and
in that long Course of Time, which has elapsed since that King's Reign, much
enlarged, reformed, and amended; yet by comparing it with those Laws of the
Confessor and Conqueror, yea, and the Laws of his Grandfather King Hen. I which
he confirmed; it will easily appear, that the Rule and Order, as well as the
Administration of the Law, was greatly improved beyond what it was formerly,
and we have more Footsteps of their Agreement and Concord herein with the Laws,
as they were used from the Time of Edw. I and downwards, than can be found in
all those obsolete Laws of Hen. I which indeed were but disorderly, confused
and general Things, rather the Cases and Shells of directing the Way of
Administration than Institutions of Law, if compared with Glanville's Tractate
of our Laws.
Fourthly, The Administration of the Common Justice of the Kingdom, seems
to be wholly dispensed in the County Courts, Hundred Courts, and Courts Baron,
except some of the greater Crimes reformed by the Laws of King Hen. I and that
Part thereof which was sometimes taken up by the Justitiarius Anglicae: This
doubtless bred great Inconvenience, Uncertainty, and Variety in the Laws,
First, by the Ignorance of the Judges, which were the Freeholders of the
County: For altho' the Alderman or Chief Constable of every Hundred was always
to be a Man learned in the Laws; and altho' not only the Freeholders, but the
Bishops, Barons, and great Men, were by the Laws of King Hen. I appointed to
attend the County Court; yet they seldom attend there, or if they did, in
Process of Time they neglected the Study of the English Laws, as great Men
Secondly, Another Inconvenience was, That this also bred great Variety
of Laws, especially in the several Counties: For the Decisions or Judgments
being made by divers Courts, and several Independent Judges and Judicatories,
who had no common Interest among them in their several Judicatories, thereby in
Process of Time every several County would have several Laws, Customs, Rules,
and Forms of Proceeding, which is always the Effect of several Independent
Judicatories administred by several Judges.
Thirdly, A Third Inconvenience was, That all the Business of any Moment
was carried by Parties and Factions: For the Freeholders being generally the
Judges, and Conversing one among another, and being as it were the Chief
Judges, not only of the Fact, but of the Law; every Man that had a Suit there,
sped according as he could make Parties; and Men of great Power and Interest in
the County did easily overbear others in their own Causes, or in such wherein
they were interested, either by Relation of Kindred, Tenure, Service,
Dependance, or Application.
And altho' in Cases of false Judgment, the Law, even as then used,
proved a Remedy by Writ of false Judgment before the King or his Chief Justice;
and in Case the Judgment was found to be such in the County Court, all the
Suiters were considerably amerced, (which also continued long after in Use with
some Severity) yet this proved but an ineffectual Remedy for those
Therefore the King took another and a more effectual Course; for in the
22d Year of his Reign, by Advice of his Parliament held at Northampton, he
instituted Justices itinerant, dividing the Kingdom into Six Circuits, and to
every Circuit allotting Three Judges, Knowing or Experienced in the Laws of the
Realm: These Justices with their several Circuits are declared by Hoveden, sub
eodem Anno, i. e. 22 H. 2. viz.
1. Hugo Cressy, Walterus filius Roberti, & Robertus Maunsel, for
Norfolk, Suffolk, Cambridge, Huntingdon, Bedford, Buckingham, Essex, and
2. Hugo de Gundevilla, W. filius Radulphi, & W. Basset, for Lincoln,
Nottingham, Derby, Stafford, W arwick, Northampton, and Leicester Counties.
3. Robertus filius Bernardi, Richardus Giffard, & Rogerus filius
Ramfrey, for Kent, Surrey, Sussex, Hampshire, Berks, and Oxon Counties.
4. W. filius Stephani, Bertein de Verdun, & Turstavi filius Simonis,
for Hereford, Gloucester, Worcester, and Salop Countries.
5. Radulphus filius Stephani, W. Ruffus, & Gilbertus Pipard, for the
Counties of Wilts, Dorset, Somerset, Devon, and Cornwall.
6. Robertus deWatts, Radulphus de Glanvilla, & Robertus Picknot, for
the Counties of York, Richmond, Lancaster Copland, Westmorland, Northumberland,
Hi, (Consilio Archiepiscoporum, Episcoporum, Comitum & Baronum
Regni, &c. apud Nottingham existentium) missi sunt per singulos Angliae
Comitatus & juraverunt quod cuilibet jus suum conservarent illae sum.
Hoveden fo. 313. & Mat. Paris, in Anno 1176.
And that these Men were well known in the Law, appears by their
Companion Radulphus de Glanvilla, who seems to be the Author of the Treatise De
Legibus Angliae, and was afterwards made Justitiarius Angliae.
To those Justices, was afterwards committed the Conuzance of all Civil
and Criminal Pleas happening within their Divisions, and likewise Pleas of the
Crown, Pleas touching Liberties, and the King's Rights; and the better to
acquaint them with their Business, there were certain Assises which were first
enacted at Clarendon, and afterwards confirmed at Northampton; they were not
much unlike the Capitula ltineris mentioned in our old Magna Charta, but not so
perfect, and are set down by Hoveden iubi supra, and are too long to be here
inserted: I shall only take Notice of this one, viz. Establishing Descents,
because I shall hereafter have Occasion to use it, Si quis obierit Francus
Tenens haeredes ipsius remaneant in talem Seisina qualem Pater suus,
But besides those Courts in Eyre, there were two great standing Courts,
viz. The Exchequer, and the Court of Kings-Bench, Vel Curiam coram ipso Rege,
vel ejus Justiciario; and it was provided by the above-mentioned Assisae, "Quod
Justiciae faciant omnes Justicias & Rectitudines Spectantes ad Dominium
Regis, & ad Coronam suam, per breve Domini Regis vel illorum qui in ejus
Loco erunt de Feodo dimidii Militis & infra, Nisi tam grandis sit quaerela
quod non possit deduci sine Domino Rege vel talis quam Justiciae ei reponunt
pro dubitatione sua, vel ad illos qui in Loco ejus erunt," &c.
Neither do I find any distinct Mention of the Court of Common Bench in
the Time of this King, tho' in the Time of King John there is often mention
made thereof, and the Rolls of that Court of King John's Time are yet extant
upon Record, & vide post. sub Richardi Primi.
The Limitation of the Assise of Novel Disseisin, is by those Assises
appointed to be, a tempore quo Dominus Rex venit in Angliam proximam post Pacis
factam inter ipsum, & Regem filium suum.
The same King afterwards, in the Twenty fifth Year of his Reign, divided
the Limits of his Itinerant Justices into Four Circuits or Divisions, and to
each Circuit assigned a greater Number of Justices, viz. Five at least, which
are thus set down in Hoveden, Folio 337. viz.
Anno 1179, 25 H. 2. Magno Concilio celebrato apud Windeshores, Communi
Consilio Archiepiscoporum Comitum & Baronum & coram Rege Filio Suo, Rex
divisit Angliam in quatuor Partes, & unicuique partium praefecit viros
sapientes ad faciendum Justitiam in Terra sua in hunc Modum.
1. Ricardus-Episcopus Winton, Ricardus Thesaurarius Regis, Nicholaus
filius Turoldi, Thomas Basset & Robertus de Whitefield, for the Counties of
Southampton, Wilts, Gloucester, Somerset, Devon, Cornwall, Berks and Oxon.
2. Galfridus Eliensis Episcopus, Nicholaus Capellanus Regis, Gilbertus
Pipard, Reginald de Wisebeck Capellanus Reges & Gaulfridus Hosce, for the
Counties of Cambridge, Huntingdon, Northampton, Leicester, Warwick, Winchester,
Hereford, Stafford and Salop.
3. Johannes Episcopas Norwicensis, Hugo Murdac Clericus Regis, Michael
Bellet, Richardus de le Pec, & Radulphus Brito, for Norfolk, Suffolk,
Essex, Hartford, Middlesex, Kent, Surrey, Sussex, Bucks and Bedford.
4. Galfredus de Luci, Johannes Comyn, Hugo de Gaerst, Radulphus de
Glanvilla, W. de Bendings, Alanus de Furnellis, for the Counties of Nottingham,
Derby, York, Northumberland, Westmorland, Cumberland, and Lancaster.
Isti sunt Justiciae in Curia Regis constituti ad audiendum clamores
This Prince did these Three notable Things, viz.
First, By this Means, he improved and perfected the Laws of England, and
doubtless transferred over many of the English Laws into Normandy, which, as
before is observed, caused that great Suitableness between their Laws and ours;
so that the Similitude did arise much more by a Conformation of their Laws to
those of England, than by any Conformation of the English Laws to theirs,
especially in the Reigns of King Hen. 2 and his Two Sons, King Richard, and
King John, both of whom were also Dukes of Normandy.
Secondly, He check'd the Pride and Insolence of the Pope and the Clergy,
by those Constitutions made in a Parliament at Clarendon, whereby he restrained
the Exorbitant Power of the Ecclesiasticks, and the Exemption they claimed from
Secular Jurisdiction. And,
Thirdly, He subdued and conquered Ireland, and added it to the Crown of
England, which Conquest was begun by Richard Earl of Stigule or Strongbow, 14
H. 2. But was perfected by the King himself in the Seventeenth Year of his
Reign, and for the greater Solemnity of the Business, was ratified by the
Fealties of the Bishops and Nobles of Ireland, and by a Bull of Confirmation
from Pope Alexander, who was willing to interest himself in that Business, to
ingratiate himself with the King, and to gain a Pretence for that arrogant
Usurpation of disposing of Temporal Dominions, Vide Hoveden, Anno 14 H. 2.
Richard I eldest Son of King Henry 2 succeeded his Father. I have seen
little of Record touching the Juridicial Proceedings, either of him, or his
said Father, other than what occurs in the Pipe-Rolls in the Exchequer, which
both in the Time of Hen. 2, Rich. I, and King John, and all the succeeding
Kings, are fairly preserved; and the best Remembrances that we have of this
King's Reign in relation to the Law, are what Roger Hoveden's Annals have
delivered down to us, viz.
First, He instituted a Body of Naval Laws in his Return from the Holy
Land, in the Island of Oleron, which are yet extant with some Additions; De
quibus, Vide Mr Selden's Mare Clausum, Lib. 2. cap. 24. and I suppose they are
the same which are attributed to him by Mat. Paris, Anno 1196. and he
constituted Justices to put them in Execution.
Secondly, He observed the same Method of distributing Justice as his
Father had begun, by Justices Itinerant per singulos Angliae Comitatus, to whom
he deliver two Kinds of Extracts or Articles of Inquiry, viz. Capitula Coronae,
much reformed and augmented from what they were before, and Capitula de
Judaeis; the whole may be read in Hoveden, fo. 423. sub Anno 5 R. I. and by
those Articles it appears, That at that Time there was a settled Court for the
Common-Pleas, as well as for the King's Bench, tho' it seems that Pleas of Land
were then indifferently held in either, as appears by the first and second
Articles thereof, where we have, Placita Per breve Domini Regis, vel Per breve
Capitalis Justiciae, vel a Capitali Curia Regis coram eis (Justiciis) missa:
The former whereof seems to be the Common-Pleas, which held Pleas by Original
Writ, which Writ was under the King's Teste when he was in England; but when he
was beyond the Seas, it was under the Teste of the Justiciarius Angliae, as the
Custos Regni in the King's Absence.
The Power which the Justices Itinerant had to hold Pleas in Writs of
Right, or the Grand Assize, was sometimes limited, as here by the Articuli
Coronae under Hen. 2. to half a Knight's Fee, or under: For here in these
Articles it is, De Magnis Assisis quae sunt de centum Solidis & infra. But
in the next Commissions, or Capitula Coronae, it is, De Magnis Assisis usque ad
decem Libratas Terre & infra.
In his eighth Year, he established a Common Rule for Weights and
Measures throughout England, called Assisa de Mensuris, wherein we find the
Measure of Woollen Cloths was then the same with that of Magna Charta, 9 H. 3.
viz. De diuobus ulnis infra Lisuras.
In the Year before his Death, the like Justices Errant went through many
Counties of England, to whom Articles, or Capitiuls Placitorium Coronae, not
much unlike the former were delivered. Vide Hoveden, sub Anno 1198. fo.
And in the same Year, he issued Commissions in the Trent, Hugh de
Neville being Chief Justice; and to those were also delivered Articles of
Inquiry, commonly called Assisae de Foresta, which may be read at large in
Hoveden, sub eodem Anno. These gave great Discontent to the Kingdom, for both
the Laws of the Forest, and their Execution were rigorous and grievous.
King John succeeded his said Brother, both in the Kingdom of England,
and Dutchy of Normandy; the Evidence that we have, touching the Progress of the
Laws of his Time, are principally Three, viz. First. His Charters of Liberties.
2dly, The Records of Pleadings and Proceedings in his Courts; And 3dly, The
Course he took for settling the English Laws in Ireland.
1. Touching the first of these, his Charters of the Liberties of
England, and of the Forest, were hardly, and with Difficulty, gained by his
Baronage at Stanes, Anno Dom. 1215. The Collection of the former was, as Mat.
Paris tells us, upon the View of the Charter or Law of King Hen. I. which says,
he contained "quasdam Libertates & Leges a Rege Edvardo Sancto, Ecclesiae
& Magnatibus concessas, exceptis quibusdam Libertatibus quas idem Rex de
suo adjecit"; and that thereupon the Baronage fell into a Resolution to have
those Laws granted by King John. But as it is certain, that the Laws added by
King Hen. I to those of the Confessor were many more, and much differing from
his; so the Laws contained in the Great Charter of King John, differed much
from those of King Hen. I. Neither are we to think, that the Charter of King
John contained all the Laws of England, but only or principally such as were of
a more comprehensive Nature, and concerned the Common Rights and Liberties of
the Church, Baronage and Commonalty which were of the greatest Moment, and had
been most invaded by King John's Father and Brother.
The lesser Charter, or De Foresta, was to reform the Excesses and
Encroachments which were made, especially in the Time of Rich. I and Hen. 2 who
had made New Afforestations, and much extended the Rigour of the Forest Laws:
And both these Charters do in Substance agree with that Magna Charta, & de
Foresta, granted and confirm'd 9 Hen. 3. I shall not need to recite them, or to
make any Collections or Inferences from them; they are both extant in the Red
Book of the Exchequer, and in Mat. Paris, sub Anno 1215, and the Record and the
Historian do Verbatim agree.
As to the Second Evidence we have of the Progress of the Laws in King
John's Time, they are the Records of Pleadings and Proceedings which are still
extant: But altho' this King endeavoured to bring the Law, and the Pleadings
and Proceedings thereof, to some better Order than he found it; for saving his
Profits whereof he was very studious, and for the better Reduction of it into
Order and Method, we find frequently in the Records of his Time, Fines imposed,
Pro Stultiloquio, which were no other than Mulcts imposed by the Court for
barbarous and disorderly Pleading: From whence afterwards that Common Fine
arose, Pro Pulchre Placitando, which was indeed no other than a Fine for want
of it; and yet for all this, the Proceeding in his Courts were rude, imperfect,
and defective, to what they were in the ensuing Times of Edw. I. &c. But
some few Observables I shall take Notice of upon the Perusal of the Judicial
Records of the Time of King John, viz.
1 st. That the Courts of King's-Bench and Common-Pleas were then
distinct Courts, and distinctly held from the Beginning to the End of King
2dly, That as yet, neither one nor both of those Courts dispatch'd the
Business of the Kingdom, but a great Part thereof was dispatch'd by the
Justices Itinerant, which were sometimes in Use, but not without their
Intermissions, and much of the Publick Business was dispatch'd in the County
Courts, and in other inferior Courts; and so it continued, tho' with a gradual
Decrease till the End of King Edw. I, and for some Time after: And hence it
was, That in those elder Times, the Profits of those County Courts for which
the Sheriff answered in his Farm, de Proficuis Comitatus; also Fines were
levied there, and post Fines, and Fines Pro licentia concordandi, and great
Fines there answered; Fines Pro lnquisitionibus habendi, Fines for
Misdeameanors, tho' called Amerciaments, arose to great Sums, as will appear to
any who shall peruse the ancient Viscontiels.
But, as I said before, the Business of Inferior Courts grew gradually
less and less, and consequently their Profits and Business of any Moment came
to the Great Courts, where they were dispatch'd with greater Justice and
Equality. Besides, the greater Courts observing what Partiality and Brocage was
used in the inferior Courts, gave a pretty quick Ear to Writs of false
Judgment, which was the Appeal the Law allowed from erroneous Judgments in the
County Courts; and this, by Degrees, wasted the Credit and Business of those
3dly, That the Distinction between the King's-Bench and Common-Bench, as
to the Point of Communia Placita, was not yet, nor for some Time after,
settled; and hence it is, that frequently in the Time of King John, we shall
find that Common Pleas were held in B. R. yea, in Mich. & Hill. 13
Johannis, a Fine is levied coram iPso Rege, between Gilbert Fitz Roger and
Helwise his Wife, Plaintiffs, and Robert Barpyard Tenant of certain Lands in
And again, whereas there was frequently a Liberty granted anciently by
the Kings of England, and allowed, Quod non implacitetur nisi coram Rege, I
find inter Placita de diversis Terminis secundo Johannis, That upon a Suit
between Henry de Rochala, and the Abbot of Leicester before the Justices de
Banco, the Abbot pleaded the Charter of King Richard I. Quod idem Abbas pro
nullo respondeat nisi coram ipso Rege vel Capitali Justitiario suo; and it is
ruled against the Abbot, Quia omnia Placita quae coram Justic. de Banco
tenentur, coram Domino Regi vel ejus Capitali Justitiario teneri intelliguntur.
But this Point was afterwards settled by the Statute of Magna Charta, Quod
Communia Placita non sequantur Curiam nostram.
4thly. That the four Terms were then held according as was used in
After-times with little Variance, and had the same Denominations they still
5thly. That there were oftentimes considerable Sums of Money, or Horses,
or other Things given to obtain Justice; sometimes 'tis said to be, Pro habenda
Inquisitione ut supra, and inter Placita incertitemporis Regis Johannis. The
Men of Yarmouth against the Men of Hastings and Winchelsea, Afferunt Domino
Regi tres Palsridos, & sex Asturias Narenses ad Inquisitionem habendam Per
Legales, &c. and frequently the same was done, and often accounted for in
the Pipe-Rolls, under the Name of Oblata; and to remedy this Abuse, was the
Provision made in King John's and King Hen. 3d's Charters, Nulli Vendemus
Justitiam ivel Rectum. But yet Fines upon Originals being certain, having
continued to this Day, notwithstanding that Provision; but those enormous
Oblata before mentioned, are thereby remedied and taken away.
6thly, That in all the Time of King John, the Purgation Per Ignem &
Aquam, or the Trial by Ordeal, continued as appears by frequent Entries upon
the Rolls; but it seems to have ended with this King, for I do not find it in
Use in any Time after: Perchance the Barbarousness of the Trial, and
Persuasions of the Clergy, prevailed at length to antiquate it, for many Canons
had been made against it.
7thly, In this King's Time, the Descent of Socage as well as Knight's
Service Lands to the eldest Son prevailed in all Places, unless there was a
special Custom, that the Lands were partible inter Masculos;. and therefore,
Mich. secundo Johannis, in a rationabili Parte Bonorum, by Gilbert Beville
against William Beville his elder Brother for Lands in Gunthorpe, the Defendant
pleaded, Quod Nunquam Parita Vel Partibilia fuere; and because the Defendant
could not prove it, Judgment was given for the Demandant: And by Degrees it
prevail'd so, that whereas at this Time the Averment came on the Part of the
Heir at Law, that the Land nunquam Parita Vel Partibilis extetit; in a little
Time after the Averment was turn'd on the other Hand, viz. That tho' the Land
was Socage, yet unless he did aver and prove that it was Partita &
Partibilis, he failed in his Demand.
Thirdly, The third Instance of the Progress of King John's Reign, in
Relation to the Common Law, was his settling the same in Ireland, which he made
his more immediate and particular Business: But hereof we shall add a
particular Chapter by itself, when we have shewn you what Proceedings and
Progress was made therein in the Time of Edw. I. The many and great Troubles
that fell upon King John and the whole Kingdom, especially towards the latter
End of his Reign, did much hinder the good Effect of settling the Laws of
England, and consequently the Peace thereof, which might have been bottom'd,
especially upon the Great Charter. But this Unfortunate Prince and Kingdom were
so entangled with intestine Wars, and with the Invasion of the French, who
assisted the English Barons against their King, and by the Advantages and
Usurpations that the Pope and Clergy made by those Distempers, that all ended
in a Confusion with the King's Death.
I come therefore to the long and troublesome Reign of Hen. 3 who was
about nine Years old at his Father's Death; he being born in Festo sancti,
Remigii 1207, and King John died in Festo sancti Lucae, 1216, and the young
King was crown'd the 28th of October, being then in the tenth Year of his Age,
and was under the Tutelage of William Earl-Marshal.
The Nobility were quick and earnest, notwithstanding his Minority, to
have the Liberties and Laws of the Kingdom confirm'd; and Preparatory thereto,
in the Year 1223, Writs issued to the several Counties to enquire, by twelve
good and lawful Knights, Que fuerunt Libertates in Anglia tempore Regni Henrici
avi sui, returnable quindena Paschae. What Success those Inquisitions had, or
what Returns were made thereof, appears not: But in the next Year following,
the young King standing in Need of a Supply of Money from the Clergy and Laity,
none would be granted, unless the Liberties of the Kingdom were confirm'd, as
they were express'd and contain'd in the two Charters of King John; which the
King accordingly granted in his Parliament at Westminster, and they were
accordingly proclaim'd, Ita quod Chartae utrorumque Regum in nulla inveniatur
dissimiles. Mat. Paris. Anno 1224.
In the Year 1227, The King holding his Parliament at Oxford, and being
now of full Age; by ill Advice, causes the two Charters he had formerly granted
to be cancell'd, "Hanc occasionem praetendens, quod Chartae illae concessae
fuerunt & Libertates scriptae & signatae dum ipse erat sub Custodia,
nec sui Corporis aut sigilli aliquam potestatem habuit, unde viribus carere
debuit," &c. Which Fact occasion'd a great disturbance in the Kingdom: And
this Inconstancy in the King, was in Truth the Foundation of all his future
Troubles, and yet was ineffectual to his End and Purpose; for those Charters
were not avoidable for the King's Nonage, and if there could have been any such
Pretence, that alone would not avoid them, for they were Laws confirm'd in
But the Great Charter, and the Charter of the Forest, did not expire so;
for in 1253, they were again, seal'd and publish'd: And because after the
Battle of Evesham, the King had wholly subdued the Barons, and thereby a
Jealousy might grow, that he again meant to infringe it; in the Parliament at
Marlbridge, cap. 5. they are again confirm'd. And thus we have the great
Settlement of the Laws and Liberties of the Kingdom establish'd in this King's
Time: The Charters themselves are not every Word the same with those of King
John, but they differ very little in Substance.
This Great Charter, and Charta de Foresta, was the great Basis upon
which this Settlement of the English Laws stood in the Time of this King and
his Son; there were also some additional Laws of this King yet extant, which
much polish' d the Common Law, viz. The Statutes of Merton and Marlbridge, and
We have likewise two other principal Monuments of the great Advance and
Perfection that the English Laws attain'd to under this King, viz. The Tractate
of Bracton, and those Records of Plea, as well in both Benches, as before the
Justices Itinerant, the Records whereof are still extant.
Touching the former, viz. Bracton's Tractate, it yields us a great
Evidence of the Growth of the Laws between the Times of Henry 2, and Hen. 3. If
we do but compare Glanville's Book with that of Bracton, we shall see a very
great Advance of the Law in Writings of the latter, over what they are in
Glanville. It will be needless to instance Particulars; some of the Writs and
Process do indeed in Substance agree, but the Proceedings are much more regular
and settled, as they are in Bracton, above what they are in Glanville. The Book
itself in the Beginning seems to borrow its Method from the Civil Law; but the
greatest Part of the Substance is either of the Course of Proceedings in the
Law known to the Author, or of Resolutions and Decisions in the Courts of
King's-Bench and Common-Bench, and before Justices Itinerant, for now the
inferior Courts began to be of little Use or Esteem.
As to the Judicial Records of the Time of this King, they were grown to
a much greater Degree of Perfection, and the Pleadings more orderly, many of
which are extant: But the great Troubles, and the Civil Wars, that happen'd in
his Time, gave a great Interruption to the legal Proceedings of Courts; they
had a particular Commission and Judicatory for Matters happening in Time of
War, stiled, Placita de Tempore Turbationis, wherein are many excellent Things:
They were made principally about the Battle of Evesham, and after it; and for
settling of the Differences of this Kingdom, was the Dictum, or Edictum de
Kenelworth made, which is printed in the old Magna Charta.
We have little extant of Resolutions in this King's Time, but what are
either remember'd by Bracton, or some few broken and scatter'd Reports
collected by Fitzherbet in his Abridgment. There are also some few Sums or
Constitutions relative to the Law, which tho' possibly not Acts of Parliament,
yet have obtain'd in Use as such; as De districtione Scaccarii, Statiutum Panis
& Cervisiae Dies Communes in Banco Statutum Hiberniae, Stat. de Scaccario,
Judicium Collistrigii, and others.
We come now to the Time of Edw. I, who is well stiled our English
Justinian; for in his Time the Law, quasi Per Saltum, obtained a very great
Perfection. The Pleadings are short indeed, but excellently good and
perspicuous: And altho' for some Time some of those Imperfections and ancient
inconvenient Rules obtain'd; as for Instance, in Point of Descents, where the
middle Brother held of the eldest, and dying without Issue, the Lands descended
to the youngest, upon that old Rule in the Time of Hen. 2. Nemo Potest esse
Dominius & Haeres, mention'd in Glanville, at least if he had once receiv'd
Homage, 13 E. I. Fitz Avowry 235. Yet the Laws did never in any one Age receive
so great and sudden an Advancement, nay, I think I may safely say, all the Ages
since his Time have not done so much in Reference to the orderly settling and
establishing of the distributive justice of this Kingdom, as he did within a
short Compass of the thirty-five Years of his Reign, especially about the first
thirteen Years thereof.
Indeed many Penal Statutes and Provisions, in Relation to the Peace and
good Government of the Kingdom, have been since made. But as touching the
Common Administration of Justice between Party and Party, and accommodating of
the Rules, and of the Methods and Orders of Proceding, he did the most, at
least of any King since William I and left the same as a fix'd and stable Rule
and Order of Proceeding, very little differing from that which we now hold and
practice, especially as to the Substance and principal Contexture thereof.
It would be the Business of a Volume to set down all the Particulars,
and therefore I shall only give some short Observations touching the same.
First, He perfectly settled the Great Charter, and Charta de Foresta,
not only by a Practice consonant to them in the Distribution of Law and Right,
but also by that solemn Act passed 25 E. I. and stiled Confirmationes
Secondly, He established and distributed the several Jurisdictions of
Courts within their proper Bounds. And because this Head has several Branches,
I shall subdivide the same, viz.
1. He check'd the Incroachments and insolencies of the Pope and the
Clergy, by the Statute of Carlisle.
2. He declared the Limits and Bounds of the Ecclesiastical Jurisdiction,
by the Statute of Circumspecte Agatis & Articuli Cleri. For note, Tho' this
later Statute was not publisbed till Edw. 2, yet was compiled in the Beginning
of Edw. I.
3. He established the Limits of the Court of Common Pleas, perfectly
performing the Direction of Magna Charta, Qiuod Communia Placita non sequantur
Curia nostra, in relation to B. R. and in express Terms extending it to the
Court of Exchequer by the Statute of Articuli super Chartas, cap. 4. It is
true, upon my First reading of the Placita de Banco of Edw. I. I found very
many Appeals of Death, of Rape, and of Robbery therein; and therefore I
doubted, whether the same were not held at least by Writ in the Common Pleas
Court: But upon better Inquiry, I found many of the Records before Justices
Itinerant were enter'd or fill'd up among the Records of the Common Pleas,
which might occasion that Mistake.
4. He establish'd the Extent of the Jurisdiction of the Steward and
Marshal. Vide Articuli super Chartas, cap. 3. And,
5. He also settled the Bounds of Inferior Courts, not only of Counties,
Hundreds, and Courts Baron, which he kept within their proper and narrow
Bounds, for the Reasons given before; and so gradually the Common Justice of
the Kingdom came to be administred by Men knowing in the Laws, and conversant
in the great Courts of B. R. and C. B. and before Justices Itinerant; and also
by that excellent Statute of Westminster 1. cap. 35. he kept the Courts of
Great Men within their Limits, under several Penalties, wherein ordinarily very
great Incroachments and Oppressions were exercised.
The Third general Observation I make is, He did not only explain, but
excellently enforc'd, Magna Charta, by the Statute De Tallagio non concedendo,
34 E. I.
Fourthly, He provided against the Interruption of the Common Justice of
the Kingdom, by Mandates under the Great Seal, or Privy Seal, by the Statute of
Articuli super Chartas, cap 6. which, notwithstanding Magna Charta, had
formerly been frequent in Use.
Fifthly, He settled the Forms, Solemnities, and Efficacies of Fines,
confining them to the Common-Pleas, and to Justices Itinerant, and appointed
the Place where they brought the Records after their Circuits, whereby one
common Repository might be kept of Assurances of Lands; which he did by the
Statute De modo levandi Fines, 18 E. I.
Sixthly, He settled that great and orderly Method for the Safety and
Preservation of the Peace of the Kingdom, and suppressing of Robberies, by the
Statute of Winton.
Seventhly, He settled the Method of Tenures, to prevent Multiplicity of
Penalties, which grew to a great Inconvenience, and remedied it by the Statute
of Quia Emptores Terrarum, 18 E. I.
Eighthly, He settled a speedier Way for Recovery of Debts, not only for
Merchants and Tradesmen, by the Statutes of Acton, Burnel, & de
Mercatoribus, but also for other Persons, by granting an Execution for a Moiety
of the Lands by Elegit.
Ninthly, He made effectual Provision for Recovery of Advowsons and
Presentations to Churches, which was before infinitely lame and defective, by
Statute Westminster 2. cap. I.
Tenthly, He made that great Alteration in Estates from what they were
formerly, by Statute Westminster 2. cap. 1. whereby Estates of Fee-Simple,
conditional at Common Law, were turn'd into Estates-Tail, not removable from
the Issue by the ordinary Methods of Alienation; and upon this Statute, and for
the Qualifications hereof, are the Superstructures built of 4 H. 7. cap. 32, 32
H. 8. and 33 H. 8.
Eleventhly, He introduced quite a new Method, both in the Laws of Wales,
and in the Method of their Dispensation, by the Statute of Rutland.
Twelfthly, In brief, partly by the Learning and Experience of his
Judges, and partly by his own wise Interposition, he silently and without Noise
abrogated many ill and inconvenient Usages, both in his Courts of Justice, and
in the Country. He rectified and set in Order the Method of collecting his
Revenue in the Exchequer, and removed obsolete and illeviable Parts thereof out
of Charge; and by the Statutes of Westminster 1. and Westminster 2. Gloucester
and Westminster 3. and of Articuli super Chartas, he did remove almost all that
was either grievous or impractical out of the Law, and the Course of its
Administration, and substituted such apt, short, pithy, and effectual Remedies
and Provisions, as by the Length of Time, and Experience had of their
Convenience, have stood ever since without any great Alteration, and are now as
it were incorporated into, and become a Part of the Common Law itself.
Upon the whole Matter, it appears, That the very Scheme, Mold and Model
of the Common Law, especially in relation to the Administration of the Common
Justice between Party and Party, as it was highly rectified and set in a much
better Light and Order by this King than his Predecessors left it to him, so in
a very great Measure it has continued the same in all succeeding Ages to this
Day; so that the Mark or Epocha we are to take for the true Stating of the Law
of England, what it is, is to be considered, stated and estimated from what it
was when this King left it. Before his Time it was in a great Measure rude and
unpolish'd, in comparison of what it was after his Reduction thereof; and on
the other Side, as it was thus polished and ordered by him, so has it stood
hitherto without any great or considerable Alteration, abating some few
Additions and Alterations which succeeding Times have made, which for the most
part are in the subject Matter of the Laws themselves, and not so much in the
Rules, Methods, or ways of its Administration.
As I before observed some of those many great Accessions to the
Perfection of the Law under this King, so I shall now observe some of those
Boxes or Repositories where they may be found, which are of the following
First, The Acts of Parliament in the Time of this King are full of
excellent Wisdom and Perspicuity, yet Brevity; but of this, enough before is
Secondly, The Judicial Records in the Time of this King. I shall not
mention those of the Chancery, the Close-Patent and Charter Rolls, which yet
will very much evidence the Learning and Judgment of that Time; but I shall
mention the Rolls of Judicial Proceedings, especially those in the King's-Bench
and Common-Pleas, and in the Eyres. I have read over many of them, and do
1. That they are written in an excellent Hand.
2. That the Pleading is very short, but very clear and perspicuous, and
neither loose or uncertain, nor perplexing the Matter either with Impropriety,
Obscurity, or Multiplicity of Words: They are clearly and orderly digested,
effectually representing the Business that they intend.
3. That the Title and the Reason of the Law upon which they proceed
(which many times is expresly delivered upon the Record itself) is perspicuous,
clear and rational; so that their short and pithy Pleadings and judgments do
far better render the Sense of the Business, and the Reasons thereof, than
those long, intricate, perplexed, and formal Pleadings, that oftentimes of late
are unnecessarily used.
Thirdly, The Reports of the Terms and Years of this King's Time, a few
broken cases whereof are in Fitzherbert's Abridgment; but we have no successive
Terms or Years thereof, but only ancient Manuscripts perchance, not running
through the whole Time of this King, yet they are very good, but very brief:
Either the Judges then spoke less, or the Reporters were not so ready handed as
to take all they said. And hence this Brevity makes them the more obscure. But
yet in those brief Interlocutions between the Judge and the Pleaders, and in
their Definitions, there appears a great deal of Learning and Judgment. Some of
those Reports, tho' broken, yet the best of their Kind, are in LincolnsInn
Fourthly, The Tracts written or collected in the Time of this wise and
excellent Prince, which seem to be of Two Kinds, viz. Such as were only the
Tractates of private Men, and therefore had no greater Authority than private
Collections, yet contain much of the Law then in Use, as Fleta the Mirror,
Britton and Thornton; or else, 2dly, They were Sums or Abstracts of some
particular Parts of the Law, as Novae Narrationes, Hengam Magna & Parva,
Cadit assisa Summa, De Bastardia Summa; by all which, compared even with
Bracton, there appears a Growth and a Perfecting of the Law into a greater
Regularity and Order.
And thus much shall serve for the several Periods or Growth of the
Common Law until the Time of Edw. I inclusively, wherein having been somewhat
prolix, I shall be the briefer in what follows, especially feeling that from
this Time downwards, the Books and Reports printed give a full Account of the
ensuing Progress of the Law.
VIII. A Brief Continuation of the Progress of the Laws,
from the Time of King Edward 2 inclusive, down to these Times
Having in the former Chapter been somewhat large in Discoursing of the
Progress of the Laws, and the incidental Additions they received in the several
Reigns of King William 2, King Hen. I, King Stephen, King Hen. 2, King Richard
I, King John, King Hen. 3 and King Edw. I. I shall now proceed to give a brief
Account of the Progress thereof in the Time of Edw. 2 and the succeeding
Reigns, down to these Times.
Edward 2 succeeding his Father, tho' he was an unfortunate Prince, and
by reason of the Troubles and Unevenness of his Reign, the very Law itself had
many Interruptions, yet it held its Current in a great Measure according to
that Frame and State that his Father had left it in.
Besides the Records of judicial Proceedings in his Time, many whereof
are still extant, there were some other Things that occur'd in his Reign which
gave us some kind of Indication of the State and Condition of the Law during
that Reign: As,
First, The Statutes made in his Time and especially that of 17 E. 2.
stiled De Prerogativa Regis, which tho' it be called a Statute, yet for the
most part is but a Sum or Collection of certain of the King's Prerogatives that
were known Law long before; as for Instance, The King's Wardship of Lands in
Capite attracting the Wardship of Lands held of others; The King's Grant of a
Manor not carrying an Advowson Appendant unless named; The King's Title to the
Escheat of the Lands of the Normans, which was in Use from the first Defection
of Normandy under King John; The King's Title to Wreck, Royal Fish, Treasure
Trove and many others, which were ancient Prerogatives to the Crown.
Secondly, The Reports of the Years and Terms of this King's Reign; these
are not printed in any one entire Volume, or in any Series or Order of Time,
only some broken Cases thereof in Fitzherbert's Abridgment, and in some other
Books dispersedly; yet there are many entire Copies thereof abroad very
excellently reported, wherein are many Resolutions agreeing with those of Edw.
1st's Time. The best Copy of these Reports that I know now extant, is that in
Lincoln's-Inn Library, which gives a fair Specimen of the Learning of the
Pleaders and Judges of that Time.
King Edw. 3, succeeded his Father; his Reign was long, and under it the
Law was improved to the greatest Height. The Judges and Pleaders were very
learned: The Pleadings are somewhat more polished than those in the Time of
Edw. I, yet they have neither Uncertainty, Prolixity, nor Obscurity. They were
plain and skilful, and in the Rules of Law, especially in relation to Real
Actions, and Titles of Inheritance, very learned and excellently polished, and
exceeded those of the Time of Edw. I. So that at the latter End of this King's
Reign the Law seemed to be near its Meridian.
The Reports of this King's Time run from the Beginning to the End of his
Reign, excepting some few Years between the 10th and 17th, and 30th and 33d
Years of his Reign; but those Omitted Years are extant in many Hands in old
The Book of Assizes is a Collection of the Assizes that happened in the
Time of Edw. 3, being from the Beginning to the End extracted out of the Books
and Assizes of those that attended the Assizes in the Country.
The justices Itinerant continued by intermitting Vicissitudes till about
the 4th of Edw. 3, and some till the 10th of Edw. 3. Their Jurisdiction
extended to pleas of the Crown or Criminal Causes, Civil Suits and Pleas of
Liberties, and Quo Warranto's; the Reports thereof are not printed, but are in
many Hands in Manuscript, both of the Times of Edw. I, Edw. 2, and Edw. 3, full
of excellent Learning. Some few broken Reports of those Eyres, especially of
Cornwal, Nottingham, Northampton, and Derby, are collected by Fitzherbert in
After the 10th of Edw. 3, I do not find any Justices Errant ad Communia
Placita, but only ad Placita forestae; other Things that concerned those
Justices Itinerant were supplied and transacted in the Common Bench for
Communia Placita, in the King's-Bench and Exchequer for Placita de
Libertatibus, and hefore Justices of Assize, Nisi Prius, Oyer and Terminer, and
Gaol Delivery for Assizes and pleas of the Crown.
And thus much for the Law in the Time of Edw. 3.
Richard 2 succeeding his Grandfather, the Dignity of the Law, together
with the Honour of the Kingdom, by reason of the Weakness of this Prince, and
the Difficulties occurring in his Government, seem'd somewhat to decline, as
may appear by comparing the Twelve last Years of Edw. 3, commonly called
Quadragesms, with the Reports of King Richard 2, wherein appears a visible
Declination of the Learning and Depth of the judges and Pleaders.
It is true, we have no printed continued Report of this King's Reign;
but I have seen the entire Years and Terms thereof in a Manuscript, out of
which, or some other Copy thereof, I suppose Fitzherbert abstracted those
broken Cases of this Reign in his Abridgment.
In all those former Times, especially from the End of Edw. 3, back to
the Beginning of Edw. I, the Learning of the Common Law consisted principally
in Assizes and Real Actions; and rarely was any Title determined in any
Personal Action, unless in Cases of Titles to Rents, or Services by Replevin;
and the Reasons thereof were principally these, viz.
First, Because these ancient Times were great Favourers of the
Possessor, and therefore if about the Time of Edw. 2, a Disseisor had been in
Possession by a Year and a Day, he was not to be put out without a Recovery by
Assize. Again, if the Disseisor had made a Feoffment, they did not countenance
an Entry upon the Feoffee, because thereby he might lose his Warranty, which he
might save if he were Impleaded in an Assize or Writ of Entry; and by this
Means Real Actions were frequent, and also assizes.
Secondly, They were willing to quiet Men's Possessions, and therefore
after a Recovery or Bar in an Assize or Real Action, the Party was driven to an
Action of a higher Nature.
Thirdly, Because there was then no known Action wherein a Person could
recover his Possession, other than by an Assize or a Real Action; for till the
End of Edw. 4, the Possession was not recovered in an Ejectione firmae, but
Fourthly, Because an Assize was a speedy and effectual Remedy to recover
a Possession, the Jury being ready Impannell'd and at the Bar the first Day of
the Return. And altho' by Disusage, the Practisers of Law are not so ready in
it, yet the Course thereof in those Times was as ready and as well known to all
Professors of the Law as the Course of Ejectione firmae is now.
Touching the Reports of the Years and Terms of Hen. 4, and Hen. 5, I can
only say, They do not arrive either in the Nature of the Learning contained in
them, or in the Judiciousness and Knowledge of the Judges and Pleaders, nor in
any other Respect arise to the Perfection of the last Twelve Years of Edw.
But the Times of Hen. 6,as also of Edw. 4, Edw. 5, and Hen. 7, were
Times that abounded with Learning and excellent Men. There is little Odds in
the Usefulness or Learning of these Books, only the first Part of Hen. 6, is
more barren, spending itself much in Learning of little Moment, and now out of
Use; but the second Part is full of excellent Learning.
In the Times of those Three Kings, Hen. 6, Edw. 4, and Hen. 7, the
Learning seems to be much alike. But these Two Things are observable in them,
and indeed generally in all Reports after the Time of Edw. 3. viz.
First, That Real Actions and Assizes were not so frequent as formerly,
but many Titles of Land were determined in Personal Actions; and the Reasons
hereof seem to be,
1st. Because the Learning of them began by little and little to be less
known or understood.
2dly, The ancient Strictness of preserving Possession to Possessors till
Eviction by Action, began not to be so much in Use, unless in Cases of Descents
and Discontinuances, the latter necessarily drove the Demandant to his
Formedon, or his Cui in Vita, &c. But the Descents that told Entry were
rare, because Men preserved their Rights to enter, &c. by continual
3dly, Because the Statute of 8 H. 6. had helped Men to an Action to
recover their Possessions by a Writ of Forcible Entry, even while the Method of
Recovery of Possessions by Ejectments was not known or used.
The Second Thing observable is, That tho' Pleadings in the Times of
those Kings were far shorter than afterwards, especially after Hen. 8, yet they
were much longer than in the Time of King Edw. 3 and the Pleaders, yea and the
Judges too, became somewhat too curious therein, so that that Art or Dexterity
of Pleading, which in its Use, Nature and Design, was only to render the Fact
plain and intelligible, and to bring the Matter to judgment with a convenient
Certainty, began to degenerate from its primitive Simplicity, and the true Use
and End thereof, and to become a Piece of Nicety and Curiosity; which how these
later Times have improved, the Length of the Pleadings, the many and
unnecessary Repetitions, the many Miscarriages of Causes upon small and trivial
Niceties in Pleading, have too much witnessed.
I should now say something touching the Times since Hen. 7 to this Day,
and therefore shall conclude this Chapter with some general observations
touching the Proceedings of Law in these later Times.
And first, I shall begin where I left before, touching the Length and
Nicety of Pleadings, which at this Day far exceeds not only that short yet
perspicuous Course of Pleading which was in the Time of Hen. 6, Edw. 4, and
Hen. 7, but those of all Times whatsoever, as our vast Presses of Parchment for
any one Plea do abundantly witness.
And the Reasons thereof seem to be these, viz.
First, Because in ancient Times the Pleadings were drawn at the Bar, and
the Exceptions (also) taken at the Bar, which were rarely taken for the
Pleasure or Curiosity of the Pleader, but only when it was apparent that the
Omission or the Matter excepted to was for the most part the very Merit and
Life of the Cause, and purposely omitted or mispleaded because his Matter or
Cause would bear no better: But now the Pleadings being first drawn in Writing,
are drawn to an excessive Length, and with very much Labouriousness and Care
enlar ged, lest it might afford an Exception not intended by the Pleader, and
which could be easily supplied from the Truth of the Case; lest the other Party
should catch that Advantage which commonly the adverse Party studies, not in
Contemplation of the Merits or Justice of the Cause, but to find a slip to
fasten upon, tho' in Truth, either not material to the Merits of the Plea, or
at least not to the Merits of the Cause, if the Plea were in all Things conform
Secondly, Because those Parts of Pleading which in ancient Times might
perhaps be material, but at this Time are become only mere Styles and Forms,
are still continued with much Religion, and so all those ancient Forms at first
introduced for Convenience, but now not necessary, or it may be antiquated as
to their Use, are yet continued as Things wonderfully material, tho' they only
swell the Bulk, but contribute nothing to the Weight of the Plea.
Thirdly, These Pleas being mostly drawn by Clerks, who are paid for
Entries and Copies thereof, the larger the Pleadings are, the more Profits come
to them, and the dearer the Clerk's Place is, the dearer he makes the Client
Fourthly, An Overforwardness in Courts to give Countenance to frivolous
Exceptions, tho' they make nothing to the true Merits of the Cause; whereby it
often happens that Causes are not determined according to their Merits, but do
often miscarry for inconsiderable Omissions in Pleading.
But, Secondly, I shall consider what is the Reason that in the Time of
Edw. I one Term contained not above two or three Hundred Rolls, but at this Day
one Term contains two Thousand Rolls or more.
The Reasons whereof may be these, viz.
1st. Many petty Businesses, as Trespasses and Debts under 40s. are now
brought to Westminster, which used to be dispatched in the County or Hundred
Courts; and yet the Plaintiffs are not to be blamed, because at this Day those
inferior Courts are so ill served, and Justice there so ill administred, that
they were better seek it (where it may be had) at Westminster, tho' at somewhat
2dly, Multitudes of Attorneys practising in the Great Courts at
Westminster, who are ready at every Market to gratify the Spleen, Spite or
Pride, of every Plaintiff.
3dly, A great Increase of People in this Kingdom above what they were
anciently, which must needs multiply Suits.
4thly, A great Increase of Trade and Trading Persons, above what there
were in ancient Times, which must have the like Effect.
5thly, Multitudes of new Laws, both Penal and others, all which breed
new Questions, and new Suits at Law, and in particular, the Statute touching
the devising of Lands, cum multis aliis.
6thly, Multiplication of Actions upon the Case, which were rare
formerly, and thereby Wager of Law ousted, which discouraged many Suits: For
when Men were sure, that in case they rested upon a bare Contract without
Specialty, the other Party might wage his Law, they would not rest upon such
Contracts without reducing the Debt into a Specialty, if it were of any Value,
which created much Certainty, and accorded many Suits.
And herewith I shall conclude this Chapter, shewing what Progress the
Law has made, from the Reign of King Edw. I down to these Times.
IX. 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.
X. Concerning the Communication of the Laws of England
unto the Kingdom of Scotland
Because this Inquiry will be of Use, not only in itself, but also as a
Parallel Discovery of the Transmission of the English Laws into Scotland, as
before is shewn they were into Normandy; I shall in this Chapter pursue and
solve their several Queries, viz.
1st, What Laws of Scotland hold a Congruity and Suitableness with those
2dly, Whether these be a sufficient Ground for us to suppose, that that
Similitude or Congruity began with a Conformation of their Laws to those of
3dly, What might be reasonably judged to be the Means or Reason of the
Conformation of their Laws unto the Laws of England.
As to the First of these Inquiries; It is plain, beyond all
Contradiction, that many of the Laws of Scotland hold a Congruity and
Similitude, and many of them a perfect Identity with the Laws of England, at
least as the English Laws stood in the Times of Hen. 2. Richard I. King John,
Henry 3. and Edw. I. And altho, in Scotland, Use hath always been made of the
Civil Law, in point of Direction or Guidance, where their Municipal Laws,
either Customary or Parliamentary failed; yet as to their particular Municipal
Laws, we shall find a Resemblance, Parity and Identity, in their Laws with the
Laws of England, anciently in Use; and we need go no further for Evidence
hereof, than the Regiam Majestatem, a Book published by Mr Skeen in Scotland.
It would be too long to Instance in all the Points that might be produced; and
therefore I shall single out some few, remitting the Reader for his further
Satisfaction to the Book itself.
Dower of the Wife to be the Third Part of her Husband's Lands of
Inheritance; the Writ to recover the same; the Means of forfeiting thereof by
Treason or Felony of the Husband or Adultery of the Wife; are in great Measure
conformable to the Laws of England. Vide Regiam Majestatem, Lib. 2. cap. 16,
17. and Quoniam Attachiamento, cap. 85.
The Exclusion of the Descent to the elder Brother by his receiving
Homage, which tho' now antiquated in England, was anciently received here for
Law, as appears by Glanville, Lib. 7. cap. I. and Vide Regiam Majestatem, Lib.
2. cap. 22.
The Exclusion of Daughters from Inheritances by a Son: The Descent to
all the Daughters in Coparcenary for want of Sons; the chief House allotted to
the eldest Daughter upon this Partition; the Descent to the Collateral Heirs,
for want of Lineal, &c. Ibid. cap. 24, 25, 26, 27, 28, 33, 34. But this is
now altered in some Things Per Stat. Rob. cap. 3.
The full Ages of Males 21, of Females 14, to be out of Ward in Socage
16. Ibid. cap. 42.
That the Custody of Idiots belonged to the King, Ibid. cap. 46.
The Custody of Heirs in Socage belong to the next of Kin, to whom the
Inheritance can't descend. Vide Regiam Majest. cap. 47.
The Son born before Marriage, or Bastard eigne, not to be legitimate by
the Marriage after, nor was he hereditable by the ancient Laws of Scotland,
though afterward altered in Use, as it seems, Regiam Majest. cap. 51.
The Confiscation of Bona Usurariorum, after their Death, conform to the
old Law here used. Ibid. cap. 54. tho' now antiquated.
The Laws of Escheats, for want of Heirs, or upon Attainder. Ibid. cap.
The Acquittal of Lands given in Frank-Marriage, till the fourth Degree
be past, Ibid. cap. 57. Homage, the Manner of making it with the Persons, by,
or to whom, as in England, Ibid. cap. 61, 62, 63, &c.
The Relief of an Heir in Knights Service, of full Age, Regiam
Majestatem, cap. 17.
The Preference of the Sister of the whole Blood, before the Sister of
the half Blood. Quoniam Attachiamento, cap. 89.
The single Value of the Marriage, and Forfeiture of the double Value,
precisely agree with the Statute of Marlbridge. Ibid. cap. 91.
The Forfeiture of the Lord's disparaging his Ward in Marriage, agrees
with Magna Charta, and the Statute of Marlbridge. Quoniam Attachiamento, cap.
The Preference of the Lord by Priority to the Custody of the Ward. Ibid.
The Punishment of the Ravisher of a Ward, by two Years Imprisonment,
&c. as here. Ibid. cap. 90.
The Jurisdiction of the Lord in Infangtheof. Ibid. cap. 100.
Goods confiscate, and Deodands, as here, Liber De Modo tenendi Cur.
Baron. cap. 62, 63, 64.
And the like of Waifs. Ibid. cap. 65.
Widows, not to marry without Consent of the Lord, Statute Mesei. 2. cap.
Wreck of the Sea, defined precisely as in the Statute Westm. 2. Vide
Ibid. cap. 25.
The Division of the Deceased's Goods, one Third to the Wife, another
Third to the Children, and another to the Executor, &c. conformable to the
ancient Law of England, and the Custom of the North to this Day. Lib. 2. cap.
Also the Proceedings to recover Possessions, by Mortdancester, Juris
Utrum, Assise de Novel disseisin, &c. The Writs and Process are much the
same with those in England, and are directed according to Glanville, and the
old Statutes in the Time of Edw. I. and Hen. 3. Vide Regiam Majestat. Lib. 3.
cap. 27 to 36.
Many more Instances might be given of many of the Municipal Laws of
Scotland, either precisely the same with those in England, or very near, and
like to them: Tho' it is true, they have some particular Laws that hold not
that Conformity to ours, which were introduced either by particular or common
Customs, or by Acts of their Parliaments. But, by what has been said and
instanced in, it appears, That like as hetween the Laws of England and
Normandy, so also between the Laws of England and Scotland, there was anciently
a great Similitude and Likeness.
I come therefore to the Second Thing I proposed to enquire into, viz.
what Evidence there is, That those Laws of Scotland were either desumed from
the English Laws, or from England, transmitted thither in such a Manner, as
that the Laws here in England were as it were the Original or prime Exemplar,
out of which those parallel or similar Laws of Scotland were copied or
transcribed into the Body of their Laws: And this appears evident on the
following Reasons, viz.
First, For that Glanville (which, as has been observed, is the
ancientest Collection we have of English Laws) seem to be even transcribed in
many entire Capita of the Laws above-mentioned, and in some others where
Glanville doubts, that Book doubts; and where Glanville follows the Practice of
the Laws then in Use, tho' altered in succeeding Times, at least after the
Reign of Edw. I. there the Regiam Majestatem does accordingly; for Instance,
Glanville, Lib. 7. cap. I. determines, That a Man can't give away part
of the Lands which he held by Hereditary Descent unto his Bastard, without the
Consent of his Heir, and that he may not give all his Purchases from his eldest
Son; and this is also declared to be the Law of Scotland accordingly, Regiam
Majestatem, Lib. 2. cap. 19, 20. Tho' since Glanville's Time, the Law has been
altered in England.
Also Glanville, Lib. 7. cap. I. makes a great Doubt, Whether the second
Son, being enfeoffed by the Father, and dies without Issue; whether the Land
shall return to the Father, or descend to his eldest, or to his youngest
Brother; and at last gives such a Decision as we find almost in the same Terms
and Words recited in the Question and Decisions laid down in Regiam. Majest.
Lib. 2. cap. 22.
Again, Glanville, Lib. 7. cap. I. makes it a difficult Question in his
Time, Whether the eldest Son dying in the Life-time of his Father, having
Issue, the Nephew or the youngest Son shall inherit; and gives the Arguments
Pro & contra: And Regiam Majestatem, cap. 33. seems to be even a Transcript
thereof out of Glanville.
And further, the Tract concerning Assizes, and the Time of Limitation,
the very Form of the Writs, and the Method of the Process, and the Directions
touching their Proceedings are but Transcripts of Glanville, as appears by
comparing Regiam Majestatem, Lib. 3. cap. 36. with Glanville, Lib. 13. cap. 32.
and the Collector of those Laws of Scotland in all the before-mentioned Places,
and divers others, quotes Glanville as the Pattern at least of those Laws.
But Secondly, A second Evidence is, because many of the Laws which are
mentioned in the Regiam Majestatem quoniam Archiamento, and other Collections
of the Scotish Laws, are in Truth very Translations of several Statutes made in
England in the Times of King Hen. 3. and King Edw. I. For Instance; the Statute
of their King Robert 2. cap. I. touching Alienations to Religious Men, is
nothing else but an Enacting of the Statute of Mortmain, 13 E. 1. cap. 13. The
Law above-mentioned, touching the Disparagement of Wards, is desumed out of
Magna Charta, cap. 6. and the Statute of Merton, cap. 6. So the Law abovesaid,
against Ravishers of Wards, is taken out of Westm. 2. cap. 35. So the said Law
of the double Value of Marriage, is taken out of Westm. 1. cap. 22. The Law
concerning Wreck of the Sea, is but a Transcript out of Westm. 1. cap. 4. and
divers other Instances of like Nature might be given, whereby it may appear,
that very many of those Laws in Scotland which are a part of their Corpus
Juris, bear a Similitude to the Laws of England, and were taken as it were out
of those Common or Statute Laws here, that obtain'd in the Time of Edw. I and
before, but especially such as were in Use or Enacted in the Time of Edw. I and
the Laws of England, relative to those Matters, were as it were the Original
and Exemplar from whence those Similar or Parallel Laws of Scotland were
derived or borrowed.
Thirdly, I come now to consider the Third Particular, viz. By what
Means, or by what Reason this Similitude of Laws in England and Scotland
happened, or upon what Account, or how the Laws of England at least in many
Particulars, or Capita Legum, came to be communicated into Scotland, and they
seem to be principally these two, viz. First, The Vicinity of that Kingdom to
this. And Secondly, The Subjection of that Kingdom unto the Kings of England,
at least for some considerable Time.
Touching the former of these; First, It is very well known, that England
and Scotland made but one Island, divided not by the Sea or any considerable
Arm thereof, but only by the Interjacency of the River Tweed, and some Desart
Ground, which did not hinder any easy common Access of the People of the one
Kingdom to the other: And by this Means, First, The Intercourse of Commerce
between that Kingdom and this was very frequent and usual, especially in the
Northern Counties, and this Intercourse of Commerce brought unto those of
Scotland an Acquaintance and Familiarity with our English Laws and Customs,
which in Process of Time were adopted and received gradually into Scotland.
Again, Secondly, This Vicinity gave often Opportunities of transplanting
of Persons of either Nation into the other, especially in those Northern Parts,
and thereby the English transplanted and carried with them the Use of their
Native Customs of England, and the Scots transplanted hither, became acquainted
with our Customs, which by occasional Remigrations were gradually translated
and became diffus'd and planted in Scotland; and it is well known, that upon
this Account some of the Nobility and great Men of Scotland had Possessions
here as well as there: The Earls of Angus were not only Noblemen of Scotland,
but were also Barons of Parliament here, and sate in our English Parliaments,
as appears by the Summons to Parliament, Tempore Edvardi Tertii.
Again, Thirdly, The Kings of Scotland had Feodal Possessions here; for
Instance, The Counties of Cumberland, Northumberland and Westmoreland, were
anciently held of the Crown of England by the Kings of Scotland, attended with
several Vicissitudes and Changes until the Feast of St. Michael, 1237, at which
Time Alexander King of Scotland finally released his Pretensions thereunto, as
appears by the Deed thereof enter'd into the Red-Book of the Exchequer, and the
Parliament Book of 20 E. I. and in Consideration thereof, Hen. 3. gave him the
Lands of Penreth and Sourby, Habend' sibi Heredibus suis Regibus Scotiae, and
by Virtue of that Special Limitation, they came to John the eldest Son of the
eldest Daughter of Alexander King of Scotland, together with that Kingdom; but
the Land of Tindale, and the Manor of Huntingdon, which were likewise given to
him and his Heirs, but without that Special Limitation, Regibus Scotiae, fell
in Coparcenry, one Moiety thereof to the said John King of Scotland, as the
Issue of the eldest Daughter, and the other Moiety to Hastings, who was
descended from the younger Daughter of the said Alexander: But those
Possessions came again to the Crown of England by the Forfeiture of King John
of Scotland, who through the Favour of the King of England he had Restitution
of the Kingdom of Scotland, yet never had Restitution of those Possessions he
had in England, and forfeited and lost by his levying War against the Kingdom
of England, as aforesaid.
And thus I have shewn, that the Vicinity of the Kingdoms of England and
Scotland, and the Consequence thereof, viz. Translations of Persons and
Families, Intercourse of Trade and Commerce, and Possessions obtained by the
Natives of each Kingdom in the other, might be one Means for communicating our
Laws to them.
But Secondly, There was another Means far more effectual for that End,
viz. The Superiority and Interest that the Kings of England obtain'd over the
Crown and Kingdom of Scotland, whereby it is no Wonder that many of our English
Laws were transplanted thither by the Power of the English Kings. This
Interest, Dominion, or Superiority of the Kings of England in the Realm of
Scotland may be considered these Two Ways, viz. 1st. How it stood antecedently
to the Reign of King Edw. I. And 2dly, How it stood in his Time.
Touching the former of those, I shall not trouble myself with collecting
Arguments or Authorities relating thereto; he that desires to see the whole
Story thereof, let him consult Walsingham, sub Anno 18 Edw. I. as also Rot.
Parl. 12 R. 2. Pars secunda, No. 3. Rot. Claus. 29 E. I. M. 10. Dorso, and the
Letter of the Nobility to the Pope asserting it. Ibid.
And this might be one Means, whereby the Laws of England in elder Times
might in some Measure be introduced into Scotland.
But I rather come to the Times of King Edw. I who was certainly the
greatest Refiner of the English Laws, and studiously endeavoured to enlarge the
Dominions of the Crown of England, so to extend and propagate the Laws of
England into all Parts subject to his Dominion. This Prince, besides the
ancient Claim he made to the Superiority of the Crown of England over that of
Scotland, did for many Years actually enjoy that Superiority in its full
Extent, and the Occasion and Progress thereof was thus, as it is related by
Walsingham, and consonantly to him appears by the Records of those Times, viz.
King Edw. I. having formerly received the Homage and Fealty of Alexander King
of Scots, as appears Rot. Claus. 5 E. I. M. 5. Dorso, was taken to be Superior
Dominus Scotiae Regni.
Alexander dying, left Margaret his only Daughter, and she dying without
Issue, about 18 E. I. there fell a Controversy touching the Succession of the
Crown of Scotland, between the King of Norway claiming as Tenant by the
Curtesy, Robert de Bruce descended from the younger Daughter of David King of
Scots, and John de Baliol descended from the elder Daughter, with divers other
All the Competitors submit their Claim to the Decision of Edw. I. King
of England as Superior Dominus Regni Scotiae, who thereupon pronounced his
Sentence for John de Baliol, and accordingly put him in Possession of the
Kingdom, and required and received his Homage.
The King of England, notwithstanding this, kept still the Possession,
& Insignia of his Superiority. his Court of King' sBench sate actually at
Roxborough in Scotland, Mich. 20, 21 Ed. I. coram Rege, and upon Complaint of
Injuries done by the said John King of Scots, now restor'd to his Kingdom, he
summoned him often to answer in his Courts, Mich. 21, 22 Edw. I. Northumh.
Scot. He was summoned by the Sheriff of Northumberland to answer to Walbesi in
the King's Court, Pas. 21. E. I. coram Rege. Rot. 34. He was in like wanner
summoned to answer John Mazune in the King's-Bench for an Injury done to him,
and Judgment given against the King of Scots, and that judgment executed.
John King of Scots, being not contented with this Subjection, did in the
24th Year of King Edw. I resign back his Homage to King Edward, and bid
Defiance to him; wherefore King Edw. I the same Year with a powerful Army
entered Scotland, took the King of Scots Prisoner, and the greatest part of
that Kingdom into his Possession, and appointed the Earl Warren to be Custos
Regni, Cressingham to be his Treasurer, and Ormsby his Justice, and commanded
his Judges of his Courts of England to issue the King of England's Writs into
And when in the 27th Year of his Reign, the Pope, instigated by the
French King, interpos'd in the Behalf of the King of Scotland, he and his
Nobility resolutely denied the Pope's Intercession and Mediation.
Thus the Kingdom of Scotland continued in an actual Subjection to the
Crown of England for many Years; for Rot. Claus. 33 E. I. Membr. 13. Dorso, and
Rot. Claus. 34 E. I. Memb. 3. Dorso; several Provisions are made for the better
ordering of the Government of Scotland.
What Proceedings there were herein in the Time of Edw. 2 and what
Capitulations and Stipulations were afterwards made by King Edw. 3 upon the
Marriage of his Sister by Robert de Bruce touching the Relaxation of the
Superius Dominium of Scotland, is not pertinent to what I aim at, which is, to
shew how the English Laws that were in Use and Force in the Time of Edw. I
obtained to be of Force in Scotland, which is but this, viz.
King Edward I having thus obtained the actual Superiority of the Crown
of Scotland, from the Beginning of the Reign until his 20th Year, and then
placing John de Baliol in that Kingdom, and yet continuing his Superiority
thereof, and keeping his Courts of Justice, and exercising Dominion and
Jurisdiction by his Officers and Ministers in the very Bowels of that Kingdom,
and afterwards upon the Defection of this King John, in the 24th of Edw. I
taking the whole Kingdom into his actual Administration, and placing his own
Judges and great Officers there, and commanding his Courts of King's-Bench
(&c.) here, to Issue their Process thither, and continuing in the actual
Administration of the Government of that Kingdom during Life: It is no Wonder
that those Laws, which obtained and were in Use in England, in and before the
Time of this King, were in a great Measure translated thither; and possibly
either by being enacted in that Kingdom, or at least for so long Time, put in
Use and Practice there, many of the Laws in Use and Practice here in England
were in his Time so rivetted and settled in that Kingdom, that 'tis no Wonder
to find they were not shaken or altered by the liberal Concessions made
afterwards by King Edw. 3 upon the Marriage of his Sister; but that they remain
Part of the Municipal Laws of that Kingdom to this Day.
And that which renders it more evident, That this was one of the
greatest Means of fixing and continuing the Laws of England in Scotland, is
this, viz. This very King Edw. I was not only a Martial and Victorious, but
also a very Wise and Prudent Prince, and one that very well knew how to use a
Victory, as well as obtain it: And therefore knew it was the best Means of
keeping those Dominions he had powerfully obtain' d, by substituting and
translating his own Laws into the Kingdom which he had thus subdued. Thus he
did upon his Conquest of Wales; and doubtless thus he did upon his Conquest of
Scotland, and those Laws which we find there so nearly agreeing with the Laws
of England used in his Time, especially the Statutes of Westm. 1 and Westm. 2
are the Monuments and Footsteps of his Wisdom and Prudence.
And, as thus he was a most Wise Prince, and to secure his Acquests,
introduced many other Laws of his Native Kingdom into Scotland; so he very well
knew the Laws of England were excellent Laws fitted for the due Administration
of Justice to the Constitution of the Governed, and fitted for the Preservation
of the Peace of a Kingdom, and for the Security of a Government: And therefore
he was very solicitous, by all prudent and careful Means imaginable, to graft
and plant the Laws of England in all Places where he might, having before-hand
used all possible Care and Industry for Rectifying and Refining the English
Laws to their greatest Perfection.
Again, It seems very evident, that the Design of King Edw. I was by all
Means possible to unite the Kingdom of Scotland (as he had done the
Principality of Wales) to the Crown of England, so that thereby Britain might
have been one entire Monarchy, including Scotland as well as Wales and England
under the same Sceptre; and in order to the accomplishing thereof, there could
not have been a better Means than to make the Interest of Scotland one with
England, and to knit 'em as it were together in one Communion, which could
never have been better done than by establishing one Common Law and Rule of
Justice and Commerce among them; and therefore he did, as Opportunity and
Convenience served, translate over to that Kingdom as many of our English
Customs and Laws as within that Compass of Time he conveniently could.
And thus I have given an Essay of the Reasons and Means, how and why we
find so many Laws in Scotland parallel to those in England, and holding so much
of Congruity and Likeness to them.
And the Reason why we have but few of their Laws that correspond with
ours of a later Date than Edw. I or at least Edw. 2 is because since the
Beginning of Edw. 3 that Kingdom has been distinct, and held little Communion
with us till the Union of the two Crowns in the Person of King James I and in
so great an Interval it must needs he, that by the Intervention and Succession
of new Laws, much of what was so ancient as the Times of Edw. I and Edw. 2 have
received many Alterations: So that it is a great Evidence of the Excellency of
our English Laws, that there remain to this Day so many of them in Force in
that Part of Great Britain continuing to bear Witness, that once that excellent
Prince Edw. I exercised Dominion and Jurisdiction there.
And thus far of the Communion of the Laws of England to Scotland, and of
the Means whereby it was effected; from whence it may appear, That as in Wales,
Ireland and Normandy, so also in Scotland, such Laws which in those Places have
a Congruity or Similitude with the Laws of England, were derived from the Laws
of England, as from their Fountain and Original, and were not derived from any
of those Places to England.
XI. Touching the Course of Descents in
Among the many Preferences that the Laws of England have above others, I
shall single out Two particular Titles which are of Common Use, wherein their
Preference is very visible, and the due Consideration of their Excellence
therein, may give us a handsome Indication or Specimen of their Excellencies
above other Laws in other Parts or Titles of the same also.
Those Titles, or Capitula Legum, which I shall single out for this
Purpose, are these Two, viz. 1st, The hereditary Transmission of Lands from
Ancestor to Heir, and the Certainty thereof: and 2dly, The Manner of Trial by
Jury, which, as it stands at this Day settled in England, together with the
Circumstances and Appendixes thereof, is certainly the best Manner of Trial in
the World; and I shall herein give an Account of the successive Progress of
those Capitula Legis, and what Growth they have had in Succession of Time till
they arriv'd so that State and Perfection which they have now obtain'd.
First, Then, touching Descents and hereditary Transmissions: It seems by
the Laws of the Greeks and Romans, that the same Rule was held both in Relation
to Lands and Goods, where they were not otherwise disposed of by the Ancestor,
which the Romans therefore called Successio ab intestato; but the Customs of
particular Countries, and especially here in England, do put a great
Difference, and direct a several Method in the Transmission of Goods or
Chattels, and that of the Inheritances of Lands.
Now as to hereditary Transmissions or Successions, commonly called with
us Descents, I shall hold this Order in my Discourse, viz.
First, I shall give some short Account of the ancient Laws both of the
Jews, the Greeks, and the Romans, touching this Matter.
Secondly, I shall observe some Things wherein it may appear, how the
particular Customs or Municipal Laws of other Countries varied from those Laws,
and the Laws here formerly used.
Thirdly, I shall give some Account of the Rules and Laws of Descents or
hereditary Transmissions as they formerly stood, and as at this Day they stand
in England, with the successive Alterations, that Process of Time, and the
Wisdom of our Ancestors, and certain Customs grown up, tacitly, gradually, and
successively have made therein.
And First, touching the Laws of Succession, as well of Descent of
Inheritances of Lands, as also of Goods and Chattels, which among the Jews was
the same in both.
Mr Selden, in his Book De Successionibus apud Hebraeos, has given us an
excellent Account, as well out of the Holy Text as out of the Comments of the
Rabins, or Jewish Lawyers, touching the same, which you may see at large in the
5th, 6th, 7th, 12th and 13th Chapters of that Book; and which, for so much
thereof as concerns my present Purpose, I shall briefly comprise under the
Eight following Heads, viz.
First, That in the Descending Line, the Descent or Succession was to all
the Sons, only the eldest Son had a double Portion to any one of the rest, viz.
If there were three Sons, the Estate was to be divided into four Parts, of
which the eldest was to have two Fourth Parts, and the other two Sons were to
have one Fourth Part each.
Secondly, If the Son died in his Father's Life-time, then the Grandson,
and so in lnfinitum, succeeded in the Portion of his Father, as if his Father
had been in Possession of it, according to the Jus Representationis now in Use
Thirdly, The Daughter did not succeed in the Inheritance of the Father
as long as there were Sons, or any Descendants from Sons in Being; but if any
of the Sons died in the Life-time of his Father having Daughters, but without
Sons, the Daughters succeeded in his Part as if he himself had been
Fourthly, And in Case the Father left only Daughters and no Sons, the
Daughters equally succeeded to their Father as in Copartnership, without any
Prelation or Preference of the eldest Daughter to two Parts, or a double
Fifthly, But if the son had purchased an Inheritance and died without
Issue, leaving a Father and Brothers, the Inheritance of such Son so dying did
not descend to the Brothers, (unless in Case of the next Brother's taking to
Wife the Deceased's Widow to raise up Children to his deceased Brother) but in
such Case the Father inherited to such Son entirely.
Sixthly, But if the Father in that Case was dead, then it came to the
Brothers, as it were as Heirs to the Father, in the same Manner as if the
Father had been actually Possess'd thereof; and therefore the Father's other
Sons and their Descendants in Infinitum succeeded; but yet especially, and
without any double Portion to the eldest, because tho' in Truth the Brothers
succeeded as it were in Right of Representation from the Father, yet if the
Father died before the Son, the Descent was de Facto immediately from the
Brother deceased to the other Brothers, in which Case their Law gave not a
double Portion; and in Case the Father had no Sons or Descendants from them,
then it descended to all the Sisters.
Seventhly, If the Son died without Issue, and his Father or any
Descendants from him were extant, it went not to the Grandfather or his other
Descendants; but if the Father was dead without Issue, then it descended to the
Grandfather, and if he were dead, then it went to his Sons and their
Descendants, and for want of them, then to his Daughters or their Descendants,
as if the Grandfather himself had been actually possess'd and had died, and so
miutatis mutandis to the Proavus, Abavus, Atavus, &c. and their
Eighthly, But the Inheritance of the Son never resorted to the Mother,
or to any of her Ancestors, but both she and they were totally excluded from
The double Portion therefore that was Jus Primogeniturae, never took
Place but in that Person that was the Primogenitus, of him from whom the
inheritance immediately descended, or him that represented him; as if A. had
two Sons, B. and C. and B. the eldest had two Sons, D. and E. and then B. died,
whereas B. should have had a double Portion, viz. two Thirds in Case he had
survived his Father; but now this double Portion shall be equally divided
between D. and E. and D. shall not have two Thirds of the two Thirds that
descended from A. to them. Vide Selden, ut supra.
Thus much of the Laws or Rules touching Descents among the Jews.
Among the Graecians, the Laws of Descents in some Sort resemble those of
the Jews, and in some Things they differed. Vide Petit's Leges Attica, Cap. I.
Tit. 6. De Testamentis & Hereditario Jure, where the Text of their Law runs
Omnes legitimi Filii Haereditatem Paternam ex aequo inter se
Haeriscunto, si quis intestatus moritur relictis Filiabus qui eas in Uxores
ducunt haeredes sunto, si nullae supersint, hi ab intestato haereditatem
cernunto: Et primo quidem Fratres defuncti Germani, & legitimi Fratrum
Filii haereditatem simil adeunto; si nulli Fratres aut Fratrum Filii supersint,
iis geniti eadem Lege haereditatem cernunto: Masculi autem iis geniti etiam si
remotiori cognationis sint Gradu, praeferuntor, si nulli supersint, Paterni
proximi, ad sobrinorum usque Filios, Materni defuncti propinqui simili Lege
Haereditatem adeunto; si e neutra cognatione supersint intra definitum Gradum
proximus cognatus Paternus, addito Notho Nothave; superstite Legitima Filia
Nothus Haereditatem Patris ne adito.
This Law is very obscure, but the Sense thereof seems to be briefly
this, viz. That all the Sons equally shall inherit to the Father; but if he
have no Sons, then the Husbands of the Daughters; and if he have no Children,
then his Brothers and their Children; and if none, than his next Kindred on the
Part of his Father, preferring the Males before the Females; and if none of the
Father's Line, ad Sobrinorum usque Filios, then to descend to the Mother's
Line. Vide Petit's Gloss thereon.
Among the Romans it appears, that the Laws of Successions or Descents
did successively vary, for the Laws of the Twelve Tables did exclude the
Females from Inheriting, and had many other Streightnesses and Hardships which
were successively remedied: First, by the Emperor Claudius, and after him by
Adrian, in his Senatus Consultus Tertullianus, and after him hy Justinian in
his Third Institutes, Tit. De Haereditatibus quae ab intestato deseruntur, and
the two ensuing Titles. And again, all this was further explained and settled
by the Novel Constitutions of the said Justinian, stiled the Authenticae
Novellae, cap. 18. De Haereditatibus ab intestato venientibus & agnatorum
Jiure sublato. Therefore omitting the large Inquiry into the Successive Changes
of the Roman Law in this particular, I shall only set down how, according to
that Constitution, the Roman Law stands settled therein.
Descents or Successions from any Person are of Three Kinds, viz. 1st, In
the Descending Line. 2dly, The Ascending Line. 3dly, The Collateral Line; and
this latter is either in Agnatos a Parte Patris, or in Cognatos a Parte
1. ln the Descending Line, These Rules are by the Roman Law directed,
1. The Descending Line, (whether Male or Female, whether immediate or
remote) takes Place, and prevents the Descent or Succession Ascending or
Collateral in infinitum.
2. The remote Descents of the Descending Line succeed in Stirpem, i.e.
in that Right which his Parent should have had.
3. This Descent or Succession is equal in all the Daughters, all the
Sons, and all the Sons and Daughters, without preferring the Male before the
Female; so that if the common Ancestor had three Sons and three Daughters, each
of them had a sixth Part; and if one of them had died in the Life of the
Father, having three Sons and three Daughters, the sixth Part that belonged to
that Party should have been divided equally between his or her six Children,
and so in in finitum in the Descending Line.
2. In the Ascending Line, there are these two Rules, viz.
1. If the Son dies without Issue, or any descending from him, having a
Father and a Mother living, both of them shall equally succeed to the Son, and
prevent all others in the Collateral Line, except Brothers and Sisters, and if
only a Father, or only a Mother, he or she shall succeed alone.
2. But if the Deceased leaves a Father and a Mother, with a Brother and
a Sister, ex utrisque Parentibus conjuncti, they all Four shall equally succeed
to the Son by equal Parts without Preference of the Males.
3. In the Collateral Line, (i.e. where the Person dies without Father or
Mother, Son or Daughter, or any descending from them in the Right Line) the
Rules are these, viz.
1. The Brothers and Sisters, ex utrisque Parentibius conjuncti, and the
immediate Children of them, shall exceed equally without Preference of either
Sex, and the Children from them shall succeed in stirpes; as if there be a
Brother and Sister, and the Sister dies in the Life of the Descendant leaving
one or more Children, all such Children shall succeed in the Moiety that should
have come to their deceased Mother, had she survived.
2. But if there be no Brothers or Sisters, ex utrisque Parentibus
conjuncti, nor any of their immediate Children, then the Brothers and Sisters
of the half Blood and their immediate Children shall succeed in Stirpes to the
Deceased, without any Prerogative to the Male.
3. But if there be no Brothers or Sisters of the wbole or half Blood,
nor any of their immediate Children (for the Grandchildren are not provided for
by the Law) then the next Kindred are called to the Inheritance.
(But by the Author's Leave, I think the Grandchildren are impliedly
provided for, as they succeed their Father or Mother Jure
4. And if the next Kindred be in an equal Degree, whether on the Part of
the Father as Agnati, or on the Part of the Mother as Cognati, then they are
equally called to the Inheritance, and succeeded in Capita, and not in
Thus far of the settled Laws of the Jews, Greeks, and Romans, but the
Particular or Municipal Laws and Customs of almost every Country derogate from
those Laws, and direct Successions in a much different Way. For Instance.
By the Customs of Lombardy, according to which the Rules of the Feuds,
both in their Descents and in other Things, are much directed; their Descents
are in a much different Manner, viz.
Leges Feiudarum, Lib. I. Tit. I. If a Feud be granted to one Brother who
dies without Issue, it descends not to his other Brother unless it be specially
provided for in the first Infeudation: If the Donee dies, having Issue Sons and
Daughters, it descends only to the Sons; whereas by the Roman Law it descends
to both: The Brother succeeds not to the Brother unless specially provided for,
& Ibid. Tit. 50. The Ascendants succeed not, but only the Descendants,
neither does a Daughter succeed nisi ex Pacto, vel nisi sit Feodum Faemineum If
we come nearer Home to the Laws of Normandy, Lands there are of Two Kinds, viz.
Partible, and not Partible; the Lands that are partible, are Valvasories,
Burgages, and such like, which are much of the Nature of our Socage Lands;
these descend to all the Sons, or to all the Daughters: Lands not partible, are
Fiefs and Dignities, they descend to the eldest Son, and not to all the Sons;
but if there be no Sons, then to all the Daughters, and become partible.
The Rules and Directions of their Descents are as follow, viz.
1. For want of Sons or Nephews, it descends to the Daughters; if there
be no Sons or Descendants from them, it goes to Brothers, and for want of
Brothers, to Sisters, (observing as before the Difference between Lands
partible and not partible) and accordingly the Descent runs to the Posterity of
Brothers to the seventh Degree; and if there be no Brothers nor Sisters, nor
any Descendants from them within the Seventh Degree, it descends to the Father,
and if the Father be dead, then to the Uncles and Aunts and their Posterity,
(as above is said in the Case of Brothers and Sisters) and if there be none,
then to the Grandfather.
So that according to their Law, the Father is postponed to the Brother
and Sister, and their Issues, but is preferred before the Uncle: Tho' according
to the Jewish Law, the Father is preferred before the Brother; by the Roman
Law, he succeeds together equally with the Brother; but by the English Law, the
Father cannot take from his Son by an immediate Descent, but may take as Heir
to his Brother, who was Heir to his Son by Collateral Descent.
2. If Lands descended from the Part of the Father, they could never
resort by a Descent to the Line of the Mother; but in Case of Purchases by the
Son who died without Issue, for want of Heirs of the Part of the Father, it
descended to the Heirs of the Part of the Mother according to the Law of
3. The Son of the eldest Son dying in the Life of the Father, is
preferred before a younger Son surviving his Father as the Law stands here now
settled, tho' it had some Interruption, 4 Johannis.
4. On Equality of Degrees in Collateral Descents, the Male Line is
preferred before the Female.
5. Altho' by the Civil Law, Fratres ex utroque Parente conjuncti
Praeferuntur Fratribus consanguineis tantum vel uterinis; yet it should seem by
the Contumier of Normandy, Fratres consanguineis ei ex eodem Patre sed diversa
Matre, shall take by Descent together with the Brothers, ex utroque conjuncti,
upon the Death of any such Brothers. But Quere hereof, for this seems a
Mistake; for, as I take it, the half Blood hinders the Descent between Brothers
and Sisters by their Laws as well as ours.
6. Leprosy was amongst them an Impediment of Succession, but then it
seems it ought to be first solemnly adjudged so by the Sentence of the
Upon all this, and much more that might be observed upon the Customs of
several Countries, it appears, That the Rules of Successions, or hereditary
Transmissions, have been various in several Countries according to their
various Laws, Customs, and Usages.
And now, after this brief Survey of the Laws and Customs of other
Countries, I come to the Laws and Usages of England in relation to Descents,
and the Growth that those Customs successively have had, and whereunto they are
First, Touching hereditary Successions: It seems, that according to the
ancient British Laws, the eldest Son inherited their Earldoms and Baronies; for
they had great Dignities and Jurisdictions annex'd to them, and were in Nature
of Principalities, but that their ordinary Freeholds descended to all their
Sons; and this Custom they carried with them into Wales, whither they wvere
driven. This appears by Statutum Waltiae 12 E. I. and which runs thus, viz.
Aliter usitatum est in Wallia quam in Anglia quoad successionem
haereditatis; eo quod haereditas partibilis est inter haeredes Masculos, &
a tempore cujus non extiterit Memoria partibilis exitit. Dominus Rex non vult
quod consuetudo illa abrogetur: sed quod haereditates remaneant partibiles,
inter consimiles haeredes sicut esse Consueverunt; & fiat partitio illius
sicut fieri consuevit. Hoc excepto Bastardi non habeant de caetero haereditates
& etiam quod non habeant purpartes, cum legitimis nec sine legitimis.
Whereupon Three Things are observable, viz. 1st, That at this Time the
hereditary Succession of the eldest Son was then known to be the common and
usual Law in England. 2dly, That the Succession of all the Sons was the ancient
customary Law among the British in Wales, which by this Statute was continued
to them. 3dly, That before this Time, Bastards were admitted to inherit in
Wales as well as the Legitimate Children, which Custom is thereby abrogated;
and although we have but few Evidences touching the British Laws before their
Expulsion hence into Wales, yet this Usage in Wales seems sufficiently to
evidence this to have been the ancient British Law.
Secondly, As to the Times of the Saxons and Danes, their Laws collected
hy Brompton and Mr Lambard, speak not much concerning the Course of Descents;
yet it seems that commonly Descents of their ordinary Lands at least, except
Baronies and Royal Inheritances, descended also to all the Sons: For amongst
the Laws of King Canutus, in Mr Lambard is the Law, viz. No. 68. "Sive quis
incuria five Morte repentina fuerit intestato mortuus, Dominus tamen nullam
rerum suarum Partem (praeter eam quae jure debetur Hereoti nomine) sibi
assumito. Verum eas Judicio suo Uxori, Liberis & cognatione proximis juste
(pro suo cuique jure) distributio." Upon which Law, we may observe these five
1st. That the Wife had a Share, as well of the Lands for her Dower, as
of the Goods.
2dly, That in reference to hereditary Successions, there then seem'd to
be little Difference between Lands and Goods, for this Law makes no
3dly, That there was a Kind of settled Right of Succession, with
Reference to Proximity and Remoteness of Blood, or Kin, Et cognatione proximis
pro suo cuique jure.
4thly, That in Reference to Children, they all seem'd to succeed alike,
without any Distinction between Males and Females.
5thly, That yet the Ancestor might dispose of by his Will as well Lands
as Goods, which Usage seems to have obtained here unto the Time of Hen. 2 as
will appear hereafter. Vide Glanville.
Thirdly, It seems that, until the Conquest, the Descent of Lands was at
least to all the Sons alike, and for ought appears to all the Daughters also,
and that there was no Difference in the hereditary Transmission of Lands and
Goods, at least in Reference to the Children: This appears by the Laws of King
Edward the Confessor, confirm'd by King William I and recited in Mr Lambard,
Folio 167. as also by Mr Selden in his Notes upon Eadmerus, viz. Lege 36 Tit.
De Intestatorum Bonis; Pag. 184. "Si quis Intestatus obierit, Liberi ejus
Haereditatem aequaliter divident."
But this equal Division of Inheritances among all the Children was found
to be very inconvenient: For,
1st, It weakened the Strength of the Kingdom, for by frequent parcelling
and subdividing of Inheritances, in Process of Time they became so divided and
crumbled, that there were few Persons of able Estates left to undergo publick
Charges and Offices.
2dly, It did by Degrees bring the Inhabitants to a low Kind of Country
living, and Families were broken; and the younger Sons, which had they not had
those little Parcels of Land to apply themselves to, would have betaken
themselves to Trades, or to Civil or Military, or Ecclesiastical Employments,
neglecting those Opportunities, wholly apply'd themselves to those small
Divisions of Lands, whereby they neglected the Opportunities of greater
Advantage of enriching themselves and the Kingdom.
And therefore King William I having by his Accession to the Crown gotten
into his Hands the Possessions and Demesns of the Crown, and also very many and
great Possessions of those that oppos'd him, or adhered to Harold, disposed of
those Lands or great Part of them to his Countrymen, and others that adhered to
him, and reserved certain honorary Tenures, either by Baronage, or in
Knights-Service or Grand Serjeancy, for the Defence of the Kingdom, and
possibly also, even at the Desire of many of the Owners, changed their former
Tenures into Knights-Service, which Introduction of new Tenures was
nevertheless not done without Consent of Parliament; as appears by the
additional Laws before mentioned, that King William made by Advice of
Parliament, mentioned by Mr Selden in his Notes on Eadmerus, Page 191, amongst
which this was one, viz.
Statuimus etiam & firmiter praecipimus ut omnes Comites Barones
Milites & Servientes & universi liberi Homines totius Regni nostri
habeant & teneant se semper in Armis & in Equis ut decet & oportet,
& quod sint semper prompti & bene parati ad Servitium suum integrum
nobis explendendum & peragendum, cum semper opus fuerit secundum quod nobis
de Feodis debent & tenentur Tenementis suis de Jure facere & sicut
illis statuimus per Commune Concilium totius Regni nostri, Et illis dedimus
& concessimus in Feodo Jure haereditario.
Whereby it appears, that there were two Kinds of Military Provisions;
one that was set upon all Freeholds by common Consent of Parliament, and which
was usually called Assisa Armorum; and another that was Conventional and by
Tenure, upon the Infeudation of the Tenant, and which was usually called
Knights Service, and sometimes Royal, sometimes Foreign Service, and sometimes
And hence it came to pass, that not only by the Customs of Normandy, but
also according to the Customs of other Countries, those honorary Fees, or
Infeudations, became descendible to the Eldest, and not to all the Males. And
hence also it is, that in Kent, where the Custom of all the Males taking by
Descent generally prevails, and that pretend a Concession of all their Customs
by the Conqueror, to obtain a Submission to his Government, according to that
Romantick Story of their Moving Wood: But even in Kent itself, those ancient
Tenements or Fees that are held anciently by Knights Service, are descendible
to the Eldest Son, as Mr Lambard has observed to my Hands in his Perambulation,
Page 533, 553. out of 9 H. 3. Fitz. Prescription 63. 26 H. 8.5. and the Statute
of 31 H. 8. cap. 3. And yet even in Kent, if Gavelkind Lands escheat, or come
to the Crown by Attainder or Dissolution of Monasteries, and be granted to be
held by Knights Service, or Per Baroniam, the Customary Descent is not changed,
neither can it be but by Act of Parliament, for it is a Custom fix'd to the
But those honorary infeudations made in ancient Times, especially
shortly after the conquest, did silently and suddenly assume the Rule of
Descents to the Eldest, and accordingly held it; and so altho' possibly there
were no Acts of Parliament of those Elder Times, at least none that are now
known of, for altering the ancient Course of Descents from all the Sons to the
Eldest, yet the Use of the Neighbouring Country might introduce the same Usage
here as to those honorary Possessions.
And because those honorary Infeudations were many, and scattered almost
through all the Kingdom, in a little Time they introduced a Parity in the
Succession of Lands of other Tenures, as Socages, Valvasories, &c. So that
without Question, by little and little, almost generally in all Counties of
England (except Kent, who were most tenacious of their old Customs in which
they gloried, and some particular Feuds and Places where a contrary Usage
prevailed) the generality of Descents or Successions, by little and little, as
well of Socage Lands as Knights Service, went to the eldest Son, according to
the Declaration of King Edw. I in the Statute of Wales above mentioned, as will
more fully appear by what follows.
In the Time of Hen. I as we find by his 70th Law, it seems that the
whole Land did not Descend to the eldest Son, but begun to look a little that
Way, viz. Primum Patris Feudum, Primogenitus Filius habeat. And as to
Collateral Descents, that Law determines thus: "Si quis sine. Liberis
decesserit Pater aut Mater ejus in haereditatem succedat vel Frater vel Soror
si Pater & Mater desint, si nec hos, habeat Soror Patris vel Matris, &
deinceps in Quintum Geniculum; qui cum propinquiores in parentela sint
haereditario jure succedant; & dum Virilis sexus extiterit & haereditas
ab inde sit, Foeminea non haereditetur."
By this Law it seems to appear;
1. The eldest Son, tho' he had Jus Primogeniturae, the principal Fee of
his Father's Land, yet he had not all the Land.
2. That for want of Children, the Father or Mother inherited before the
Brother or Sister.
3. That for want of Children, and Father, Mother, Brother, and Sister,
the Land descended to the Uncles and Aunts to the fifth Generation.
4. That in Successions Collateral, Proximity of Blood was preferred.
5. That the Male was preferred before the Female, i.e. The Father's Line
was preferred before the Mother's, unless the Land descended from the Mother,
and then the Mother's Line was preferred.
How this Law was observed in the interval between Hen. I. and Hen. 2. we
can give no Account of; but the next Period that we come to is, the Time of
Hen. 2. wherein Glanville gives us an Account how the Law stood at that Time:
Vide Glanville, Lib. 7. Wherein, notwithstanding it will appear, that there was
some Uncertainty and Unsettledness in the Business of Descents or Hereditary
Successions, tho' it was much better polished then formerly, the Rules then of
Succession were either in Reference to Goods, or Lands. 1st, As to Goods, one
Third Part thereof went to the Wife, another Third Part went to the Children,
and the other Third was left to the Disposition of the Testator; but if he had
no Wife, then a Moiety went to the Children, and the other Moiety was at the
Deceased's Disposal. And the like Rule if he had left a Wife, but no Children.
Glanv. lib. 7. cap. 5. & Vide lib. 2. cap. 29.
But as to the Succession of Lands, the Rules are these.
First, If the Lands were Knights Service, they generally went to the
eldest Son; and in case of no Sons, then to all the Daughters; and in case of
no Children, then to the eldest Brother.
Secondly, If the Lands were Socage, they descended to all the Sons to be
divided; Si feurit Soccagium & id antiquitus divisum; only the Chief House
was to be allotted to the Purparty of the Eldest, and a Compensation made to
the rest in lieu thereof: "Si vero non fuerit antiquitus divisum, tunc
Primogenitus secundum quorundam Consuetudinem totam Haereditatem obtinebit,
secundum autem quorundam Consuetudinem postnatus Filius Haeres est." Glanville,
lib. 7. cap. 3. So that altho' Custom directed the Descent variously, either to
the eldest or youngest, or to all the Sons, yet it seems that at this Time, Jus
Commune, or Common Right, spoke for the eldest Son to be Heir, no Custom
intervening to the contrary.
Thirdly, As the Son or Daughter, so their Children in infinitum, are
preferred in the Descent before the Collateral Line or Uncles.
Fourthly, But if a Man had two Sons, and the eldest Son died in the
Life-time of his Father, having Issue a Son or Daughter, and then the Father
dies. it was then controverted, whether the Sou or Nephew should succeed to the
Father, tho' the better Opiuion seems to be for the Nephew, Glanvil. lib. 7.
Fifthly, A Bastard could not inherit, Ibid. cap. 13, or 17. And altho'
by the Canon or Civil Law, if A. have a Son born of B. before Marriage, and
after A. marries B. this Son shall be legitimate and heritable; yet according
to the Laws of England then, and ever since used, he was not heritable,
Glanvil. lib. 7. cap. 15.
Sixthly, In case the Purchaser died without Issue, the Land descended to
the Brothers; and for want of Brothers, to the
Sisters; and for want of them, to the Children of the Brothers or
Sisters; and for want of them, to the Uncles; and so onward
according to the Rules of Descents at this Day; and the Father or
Mother were not to inherit to the Son, but the Brothers or Uncles, and
their Children. Ibid. cap. 1. & 4.
And it seems, That in all Things else the Rules of Descents in reference
to the Colateral Line were much the same as now; as namely, That if Lands
descended of the Part of the Father, it should not resort to the Part of the
Mother, or e converso; but in the Case of Purchasers, for want of Heirs of the
Part of the Father, it resorted to the Line of the Mother, and the nearer and
more worthy of Blood were preferred: So that if there were any of the Part of
the Father, tho' never so far distant, it hindred the Descent to the Line of
the Mother, though much nearer.
But in those Times it seems there were two Impediments of Descents or
hereditary Successions which do not now obtain, viz.
First, Leprosy, if so adjudged by Sentence of the Church: This indeed I
find not in Glanville; but I find it pleaded and allowed in the Time of King
John, and thereupon the Land was adjudged from the Leprous Brother to the
Sister. Pasch. 4 Johannis.
Secondly, There was another Curiosity in Law, and it was wonderful to
see how much and how long it prevailed; for we find it in Use in Glanville, who
wrote Temp. Hen. 2. in Bracton Temp. Hen. 3. in Fleta Temp. Edw. I and in the
broken Year of 13 E. I. Fitzh. Avowry 235. Nemo potest esse Tenens &
Dominus, & Homagium repellit Perquisitum: And therefore if there had been
three Brothers, and the eldest Brother had enfeoffed the second, reserving
Homage, and had received Homage, and then the second had died without Issue,
the Land should have descended to the youngest Brother and not to the eldest
Brother, Qiuia Homagium repellit perquisitum, as 'tis here said, for he could
not pay Homage to himself. Vide for this, Bracton, Lib. 2. cap. 30. Glanvil.
Lib. 7. cap. I. Fleta, Lib. 6. cap. I.
But at this Day the Law is altered, and so it has been for ought I can
find ever since 13 E. I. Indeed, it is antiquated rather than altered, and the
Fancy upon which it was grounded has appear'd trivial; for if the eldest Son
enfeoff the second, reserving Homage, and that Homage paid, and then the second
Son dies without Issue, it will descend to the Eldest as Heir, and the
Seigniory is extinct. It might indeed have had some Color of Reason to have
examined, whether he might not have waved the Descent, in case his Services had
been more beneficial than the Land: But there could be little Reason from
thence to exclude him from the Succession. I shall mention no more of this
Impediment, nor of that of Leprosy, for that they both are vanished and
antiquated long since; and, as the Law now is, neither of these are any
Impediment of Descents.
And now passing over the Time of King John and Richard I because I find
nothing of Moment therein on this Head, unless the Usurpation of King John upon
his eldest Brother's Son, which he would fain have justified by introducing a
Law of prefering the younger Son before the Nephew descended from the elder
Brother: But this Pretention could no way justify his Usurpation, as has been
already shewn in the Time of Hen. 2.
Next, I come to the Time of Hen. 3 in whose Time the Tractate of Bracton
was written, and thereby in Lib. 2. cap. 30 & 31 and Lib. 5. cap. It
appears, That there is so little Variance as to Point of Descents between the
Law as it was taken when Bracton wrote, and the Law as afterwards taken in Edw.
I's Time, when Britton and Fleta wrote, that there is very little Difference
between them, as may easily appear by comparing Bracton ubi supra. & Fleta,
Lib. 5. cap. 9. Lib. 6. cap. 1, 2. that the latter seem to be only Transcripts
or Abstracts of the former. Wherefore I shall set down the Substance of what
both say, and thereby it will appear, that the Rules of Descents in Hen. 3. and
Edw. I's Time were very much one.
First, At this Time the Law seems to be unquestionably settled, that the
eldest Son was of Common Right Heir, not only in Cases of Knight Service Lands,
but also of Socage Lands, (unless there were a special Custom to the contrary,
as in Kent and some other Places) and so that Point of the Common Law was fully
Secondly, That all the Descendants in infinitum, from any Person that
had been Heir, if living, were inheritable Jure representationis; as, the
Descendants of the Son, of the Brother, of the Uncle, &c. And also,
Thirdly, That the eldest Son dying in the Life-time of the Father, his Son or
Issue was to have the Preference as Heir to the Father before the younger
Brother, and so the Doubt in Glanville's Time was settled, Glanvil. Lib. 7,
cap. 3. "Cum quis autem moriatur habens Filium postnatum, & ex primogenito
Filio praemortuo Nepotem, Magna quidem Juris dubitatio solet isse uter illorum
preferendus fit alii in illa Successioni, scilicet, utrum Filius aut
Fourthly, The Father, or Grandfather, could not by Law inherit
immediately to the Son.
Fifthly, Leprosy, Though it were an Exception to a Plaintiff, because he
ought not to converse in the Courts of Law, as Bracton, Lib. 5. cap. 20 yet we
no where find it to be an Impediment of a Descent.
So that upon the whole Matter, for any Thing I can observe in them, the
Rules of Descents then stood settled in all Points as they are at this Day,
except some few Matters (which yet soon after settled as they now stand)
First, That Impediment or Hindrance of a Descent from him that did
Homage to him that received it, seems to have heen yet in Use, at least till 13
E. I. and in Fleta's Time, for he puts the Case and admits it.
Secondly, Whereas both Bracton and Fleta agree, that half Blood to him
that is a Purchaser is an Impediment of a Descent from the Common Ancestor,
half Blood is no Impediment. As for Instance; A. has Issue B. a Son and C. a
Daughter by one Venter, and D. a Son by another Venter: If B. purchases in Fee
and dies without Issue, it shall descend to the Sister, and not to the Brother
of the half Blood; but if the Land had descended from A. to B. and he had
entred and died without Issue, it was a Doubt in Bracton and Britton's Time,
whether it should go to the younger Son, or to the Daughter? But the Law is
since settled, that in both Cases it descends to the Daughter, Et. seisina
facit Stipitem & Primum Gradum. Et Possessio Fratris de Feodo simplici
facit Sororem esse haeredem.
Thus upon the whole it seems, That abating those small and
inconsiderable Variances, the States and Rules of Descents as they stood in the
Time of Hen. 3, or at least in the Time of Edw. I were reduced to their full
Complement and Perfection, and vary nothing considerably from what they are at
this Day, and have continued ever since that Time.
I shall therefore set down the State and Rule of Descents in Fee-Simple
as it stands at this Day, without meddling with Particular Limitations of
Entails of Estates, which vary the Course of Descents in some Cases from the
Common Rules of Descents of hereditary Successions; and herein we shall see
what the Law has been and continued touching the same ever since Bracton's
Time, who wrote in the Time of Hen. 3. now above 400 Years since, and by that
we shall see what Alterations the Succession of Time has made therein.
And now to give a short Scheme of the Rules of Descents, or hereditary
Successions, of the Lands of Subjects as the Law stands at this Day, and has
stood for above four hundred Years past, viz.
All possible hereditary Successions may be distinguished into these 3
Kinds, viz, either,
1st, In the Descending Line, as from Father to Son or Daughter, Nephew
or Niece, i.e. Grandson or Grandaughter. Or,
2dly, ln the Collateral Line, as from Brother to Brother or Sister, and
so to Brother and Sisters Children. Or,
3dly, In an Ascending Line, either direct, as from Son to Father or
Grandfather, (which is not admitted by the Law of England) or in the
transversal Line, as to the Uncle or Aunt, Great-Uncle or Great-Aunt, &c.
And because this Line is again divided into the Line of the Father, or the Line
of the Mother, this transverse ascending Succession is either in the Line of
the Father, Grandfather, &c. on the Blood of the Father; or in the Line of
the Mother, Grandmother, &c. on the Blood of the Mother: The former are
called Agnati, the latter Cognati: I shall therefore set down a Scheme of
Pedigrees as high as Great-Grandfather and Great-Grandmothers Grandsires, and
as low as Great-Grandchild; which nevertheless will be applicable to more
remote Successions with a little Variation, and will explain the whole Nature
of Descents or hereditary Successions.
This Pedigree, with its Application, will give a plain Account of all
Hereditary Successions under their several Cases and Limitations, as will
appear by the following Rules, taking our Mark or Epocha from the FATHER and
But first, I shall premise certain general Rules, which will direct us
much in the Course of Descents as they stand here in England: (Viz.)
First. In Descents, the Law prefers the Worthiest of Blood: As,
1st, In all Descents immediate, the Male is preferred before the Female,
whether in Successions Descending, Ascending, or Collateral: Therefore in
Descents, the Son inherits and excludes the Daughter, the Brother is preferred
before the Sister, the Uncle before the Aunt.
2dly, In all Descents immediate, the Descendants from Males are to be
preferred before the Descendants from Females: And hence it is, That the
Daughter of the eldest Son is preferred in Descents from the Father before the
Son of the younger Son; and the Daughter of the eldest Brother, or Uncle, is
preferred before the Son of the younger; and the Uncle, nay, the Great-Uncle,
i.e. the Grandfather's Brother, shall inherit before the Uncle of the Mothers
Secondly, In Descents, the next of Blood is preferred before the more
remote, tho' equally or more worthy. And hence it is,
1st, The Sister of the whole Blood is preferred in Descents before the
Brother of the half Blood, because she is more strictly joined to the Brother
of the whole Blood (viz. by Father and by Mother) than the half Brother, though
otherwise he is the more worthy.
2dly, Because the Son or Daughter being nearer than the Brother, and the
Brother or Sister than the Uncle, the Son or Daughter shall inherit before the
Brother or Sister, and they before the Uncle.
3dly, That yet the Father or Grandfather, or Mother or Grandmother, in a
direct ascending Line, shall never succeed immediately the Son or Grandchild;
but the Father's Brother (or Sisters) shall be preferred before the Father
himself; and the Grandfather's Brother (or Sisters) before the Grandfather: And
yet upon a strict Account, the Father is nearer of Blood to the Son than the
Uncle, yea than the Brother; for the Brother is therefore of the Blood of the
Brother, because both derive from the same Parent, the Common Fountain of both
their Blood. And therefore the Father at this Day is preferred in the
Administration of the Goods before the Son's Brother of the whole Blood, and a
Remainder limited Proximo de Sanguine of the Son shall vest in the Father
before it shall vest in the Uncle. Vide Littleton, Lib. I. fol. 8, 10.
Thirdly, That all the Descendants from such a Person as by the Laws of
England might have been Heir to another, hold the same Right by Representation
as that Common Root f rom whence they are derived; and therefore,
1st, They are in Law in the same Right of Worthiness and Proximity of
Blood, as their Root that might have been Heir was, in case he had been living:
And hence it is, that the Son or Grandchild, whether Son or Daughter of the
eldest Son, succeeds before the younger Son; and the Son or Grandchild of the
eldest Brother, before the youngest Brother; and so through all the Degrees of
Succession, by the Right of Representation, the Right of Proximity is
transferred from the Root to the Branches, and gives them the same Preference
as the next and worthiest of Blood.
2dly, This Right transferred by Representation is infinite and unlimited
in the Degrees of those that descend from the Represented; for Filius the Son,
the Nepos the Grandson, the Abnepos the Great-Grandson, and so in infinitum
enjoy the same Privilege of Representation as those from whom they derive their
Pedigree lhave, whether it be in Descents Lineal, or Transversal; and theref
ore the Great-Grandchild of the eldest Brother, whether it be Son or Daughter.
shall be preferred before the younger Brother, because tho' the Female be less
worthy than the Male, yet she stands in Right of Representation of the eldest
Brother, who was more worthy than the younger. And upon this Account it is,
3dly, That if a Man have two Daughters, and the eldest dies in the Life
of the Father, leaving six Daughters, and then the Father dies; the youngest
Daughter shall have an equal Share with the other six Daughters, because they
stand in Representation and Stead of their Mother, who could have had but a
Fourthly, That hy the Law of England, without a special Custom to the
contrary, the eldest Son, or Brother, or Uncle, excludes the younger; and the
Males in an equal Degree do not all inherit: But all the Daughters, whether by
the same or divers Venters, do inherit together to the Father, and all the
Sisters by the same Venter do inherit to the Brother.
Fifthly, That the last Seisin in any Ancestor, makes him, as it were the
Root of the Descent equally to many Intents as if he had been a Purchaser; and
therefore he that cannot, according to the Rules of Descents, derive his
Succession from him that was left actually seised, tho' he might have derived
it from some precedent Ancestor, shall not inherit. And hence it is, That where
Lands descend to the eldest Son from the Father, and the Son enters and dies
without Issue, his Sister of the whole Blood shall inherit as Heir to the
Brother, and not the younger Son of the half Blood, because he cannot be Heir
to the Brother of the half Blood: But if the eldest Son had survived the Father
and died before Entry, the youngest Son should inherit as Heir to the Father,
and not the Sister, because he is Heir to the Father that was last actually
seised. And hence it is, That tho' the Uncle is preferred before the Father in
Descents to the Son; yet if the Uncle enter after the Death of the Son, and die
without Issue, the Father shall inherit to the Uncle, quia Seisina facit
Sixthly, That whosoever derives a Title to any Land, must be of the
Blood to him that first purchased it: And this is the Reason why, if the Son
purchase Lands and dies without Issue, it shall descend to the Heirs of the
Part of the Father; and if he has none, then to the Heirs on the Part of the
Mother; because, tho' the Son has both the Blood of the Father and of the
Mother in him, yet he is of the whole Blood of the Mother, and the
Consanguinity of the Mother are Consanguinei Cognati of the Son.
And of the other Side, if the Father had purchased Lands, and it had
descended to the Son, and the Son had died without Issue, and without any Heir
of the Part of the Father, it should never have descended in the Line of the
Mother, but escheated: For tho' the Consanguinei of the Mother were the
Consanguinei of the Son, yet they were not of Consanguinity to the Father, who
was the Purchaser; but if there had been none of the Blood of the Grandfather,
yet it might have resorted to the Line of the Grandmother, because her
Consanguinei were as well of the Blood of the Father, as the Mother's
Consanguinity is of the Blood of the Son: And consequently also, if the
Grandfather had purchased Lands, and they had descended to the Father, and from
him to the Son; if the Son had entred and died without Issue, his Father's
Brothers or Sisters, or their Descendants, or, for want of them, his
Great-Grandfather's Brothers or Sisters, or their Descendants, or, for want of
them, any of the Consanguinity of the Great-Grandfather, or Brothers or Sisters
of the Great-Grandmother, or their Descendants, might have inherited, for the
Consanguinity of the Great-Grandmother was the Consanguinity of the
Grandfather; but none of the Line of the Mother, or Grandmother, viz. the
Grandfather's Wife, should have inherited, for that they were not of the Blood
of the first Purchaser. And the same Rule e converso holds in Purchases in the
Line of the Mother or Grandmother, they shall always keep in the same Line that
the first Purchaser settled them in.
But it is not necessary, That he that inherits be always Heir to the
Purchaser; it is sufficient if he be of his Blood, and Heir to him that was
last seised. The Father purchases Lands which descended to the Son, who dies
without Issue, they shall never descend to the Heir of the Part of the Son's
Mother; but if the Son's Grandmother has a Brother, and the Son's
Great-Grandmother hath a Brother, and there are no other Kindred, they shall
descend to the Grandmother's Brother; and yet if the Father had died without
Issue, his Grandmother's Brother should have been preferred before his Mother's
Brother, because the former was Heir of the Part of his Father tho' a Female,
and the latter was only Heir of the Part of his Mother; but where the Son is
once seized and dies without Issue, his Grandmother's Brother is to him Heir of
the Part of his Father, and being nearer than his Great Grandmother's Brother,
is preferred in the Descent.
But Note, This is always intended so long as the Line of Descent is not
broken; for if the Son alien those Lands, and then repurchase them again in
Fee, now the Rules of Descents are to be observ'd as if he were the original
Purchaser, and as if it had been in the Line of the Father or Mother.
Seventhly, In all Successions, as well in the Line Descending,
Transversal, or Ascending, the Line that is first derived from a Male Root has
always the Preference.
Instances whereof in the Line Descending, &c. viz.
A. has Issue two Sons B. and C. B. has Issue a Son and a Daughter D. and
E. D. the Son has Issue a Daughter F. and E. the Daughter has Issue a Son G.
Neither C. nor any of his Descendants, shall inherit so long as there are any
Descendants from D. and E. and neither E. the Daughter, nor any of her
Descendants, shall inherit so long as there are any Descendants from D. the
Son, whether they be Male or Female.
So in Descents Collateral, as Brothers and Sisters, the same Instances
apply'd thereto, evidence the same Conclusions.
But in Successions in the Line Ascending, there must be a fuller
Explication; because it is darker and more obscure, I shall therefore set forth
the whole Method of Transversal Ascending Descents under the Eight ensuing
First, If the Son purchases Lands in Fee-Simple, and dies without Issue,
those of the Male Line ascending, usque infinitum shall be preferred in the
Descent, according to their Proximity of Degree to the Son; and therefore the
Father's Brothers and Sisters and their Descendants shall be preferred before
the Brothers, of the Grandfather and their Descendants; and if the Father had
no Brothers nor Sisters, the Grandfather's Brothers and their Descendants, and
for want of Brothers, his Sisters and their Descendants, shall be preferr'd
before the Brothers of the Great Grandfather: For altho' by the Law of England
the Father or Grandfather cannot immediately inherit to the Son, yet the
Direction of the Descent to the Collateral Ascending Line, is as much as if the
Father or Grandfather had been by Law inheritable; and therefore as in Case the
Father had been inheritable, and should have inherited to the Son before the
Grandfather, and the Grandfather, before the Great-Grandfather, and
consequently if the Father had inherited and died without Issue, his eldest
Brother and his Descendants should have inherited before the younger Brother
and his Descendants; and if he had no Brothers but Sisters, the Sisters and
their Descendants should have inherited before his Uncles or the Grandfather's
Brothers and their Descendants. So though the Law of England excludes the
Father from inheriting, yet it substitutes and directs the Descent as it should
have been, had the Father inherited, viz. It lets in those first that are in
the next Degree to him.
Secondly, The second Rule is this: That the Line of the Part of the
Mother shall never inherit as long as there are any, tho' never so remote, of
the Line of the Part of the Father; and therefore, tho' the Mother has a
Brother, yet if the Atavus or Atavia Patris (i. e. the
Great-Great-Great-Grandfather, or Great-Great-Great-Grandmother of the Father)
has a Brother or a Sister, he or she shall be preferred, and exclude the
Mother's Bother, though he is much nearer.
Thirdly, But yet further. The Male Line of the Part of the Father
ascending, shall in AEternum exclude the Female Line of the Part of the Father
ascending; and therefore in the Case proposed of the Son's purchasing Lands and
dying without Issue, the Sister of the Father's Grandfather, or of his
Great-Grandfather, and so in infinitum shall be preferred before the Father's
Mother's Brother, tho' the Father's Mother's Brother be a Male, and the
Father's Grandfather or Great-Grandfather's Sister be a Female, and more
remote, because she is of the Male Line, which is more worthy than the Female
Line, though the Female Line, be also of the Blood of the Father.
Fourthly, But as in the Male Line ascending, the more near is preferred
before the more remote; so in the Female Line descending, so it be of the Blood
of the Father, it is preferred before the more remote. The Son, therefore
purchasing Lands, and dying without Issue, and the Father, Grandfather, and
Great-Grandfather, and so upward, all the Male Line being dead without any
Brother or Sister, or any descending from them; but the Father's Mother has a
Sister or Brother, and also the Father's Grandmother has a Brother, and
likewise the Father's GreatGrandmother has a Brother: Tho' it is true, that all
these are of the Blood of the Father; and tho' the very remotest of them, shall
exclude the Son's Mother's Brother; and tho' it be also true, that the
Great-Grandmother's Blood has passed through more Males of the Father's Blood
than the Blood of the Grandmother or Mother of the Father; yet in this Case,
the Father's Mother's Sister shall be preferred before the Father's
Grandmother's Brother, or the Great Grandmother's Brother, because they are all
in the Female Line, viz. Cognati (and not Agnati), and the Father's Mother's
Sister is the nearest, and therefore shall have the Preference as well as in
the Male Line ascending, the Father's Brother or his Sister shall he preferred
before the Grandfather's Brother.
Fifthly, But yet in the last Case, where the Son purchases Lands and
dies without Issue, and without any Heir on the Part of the Grandfather, the
Lands shall descend to the Grandmother's Brother or Sister, as Heir on the Part
of his Father; yet if the Father had purchased this Land and died, and it
descended to his Son who died without Issue, the Lands should not have
descended to the Father's Mother's Brother or Sister, for the Reasons before
given in the Third Rule: But for want of Brothers or Sisters of the
Grandfather, Great-Grandfather, and so upwards in the Male ascending Line, it
should descend to the Father's Grandmother's Brother or Sister which is his
Heir of the Part of his Father, who should be preferred before the Father's
Mother's Brother, who is in Truth the Heir of the Part of the Mother of the
Purchaser, tho' the next Heir of the Part of the Father of him that last died
seized; and therefore, as if the Father that was the Purchaser had died without
Issue, the Heirs of the Part of the Father, whether of the Male or Female Line,
should have been preferred before the Heirs of the Part of the Mother; so the
Son, who stands now in the Place of the Father, and inherits to him primarily,
in his Father's Line, dying without Issue, the same Devolution and hereditary
Succession should have been as if his Father had immediately died without
Issue, which should have been to his Grandmother's Brother, as Heir of the Part
of the Father, though by the Female Line, and not to his Mother's Brother, who
was only Heir of the Part of his Mother, and who is not to take till the
Father's Line both Male and Female be spent.
Sixthly, If the Son purchases Lands and died without Issue, and it
descends to any Heir of the Part of the Father, and then if the Line of the
Father (after Entry and Possession) fail, it shall never return to the Line of
the Mother; tho' in the first Instance, or first Descent from the Son, it might
have descended to the Heir of the Part of the Mother; for now by this Descent
and Seisin it is lodged in the Father's Line, to whom the Heir of the Part of
the Mother can never derive a Title as Heir, but it shall rather escheat: But
if the Heir of the Part of the Father had not entred, and then that Line had
failed, it might have descended to the Heir of the Part of the Mother as Heir
to the Son, to whom immediately, for want of Heirs of the Part of the Father,
it might have descended.
Seventhly, And upon the same Reason, if it had once descended to the
Heir of the Part of the Father of the Grandfather's Line, and that Heir had
entred, it should never descend to the Heir of the Part of the Father of the
Grandmother's Line, because the Line of the Grandmother was not of the Blood or
Consanguinity of the Line of the Grandfather's Side.
Eighthly, If for Default of Heirs of the Purchaser of the Part of the
Father, the Lands descend to the Line of the Mother, the Heirs of the Mother of
the Part of her Father's Side, shall be preferred in the Succession before her
Heirs of the Part of her Mother's Side, because they are the more worthy.
And thus the Law stands in Point of Descents or Hereditary Successions
in England at this Day, and has so stood and continued for above four Hundred
Years past, as by what has before been said, may easily appear. And Note, The
most Part of the Eight Rules and Differences above specified and explained, may
be collected out of the Resolutions in the Case of Clare versus Brook, &c.
in Plowden's Commentaries, Folio 444.
XII. Touching Trials by Jury
Having in the former Chapter somewhat largely treated of the Course of
Descents, I shall now with more Brevity consider that other Title of our Law
which I before propounded (in order to evidence the Excellency of the Laws of
England above those of other Nations,) viz. The Trial by a Jury of Twelve Men;
which upon all Accounts, as it is settled here in this Kingdom, seems to be the
best Trial in the World: I shall therefore give a short Account of the Method
and Manner of that Trial, viz.
First, The Writ to return a Jury, issues to the Sheriff of the County:
1st, He is to be a Person of Worth and Value, that so he may be
responsible for any Defaults, either of himself or his Officers. And, 2dly, Is
sworn, faithfully and honestly to execute his Office. This Officer is entrusted
to elect and return the Jury, which he is obliged to do in this Manner: 1.
Without the Nomination of either Party. 2. They are to be such Persons as for
Estate and Quality are fit to serve upon that Employment. 3. They are to be of
the Neighbourhood of the Fact to be inquired, or at least of the County or
Bailywick. And, 4. Anciently Four, and now Two of them at least are to be of
the Hundred. But Note, This is now in great Measure altered by Statute.
Secondly, Touching the Number and Qualifications of the Jury.
1st, As to their Number, though only Twelve are sworn, yet Twenty-four
are to be returned to supply the Defects or Want of Appearance of those that
are challenged off, or make Default. 2dly, Their Qualifications are many, and
are generally set down in the Writ that summons them, viz. 1. They are to be
Probi & legales Homines. 2. Of sufficient Freeholds, according to several
Provisions of Acts of Parliament. 3. Not Convict of any notorious Crime that
may render them unfit for that Employment. 4. They are not to be of the Kindred
or Alliance of any of the Parties. And, 5. Not to be such as are prepossed or
prejudiced before they hear their Evidence.
Thirdly, The Time of their Return.
Indeed, in Assizes, the Jury is to be ready at the Bar the first Day of
the Return of the Writ: But in other Cases, the Pannel is first returned upon
the Venire Facias, or ought to be so, and the Proofs or Witnesses are to be
brought or summoned by Distringas or Habeas Corpora for their Appearance at the
Trial, whereby the Parties may have Notice of the Jurors, and of their
Sufficiency and Indifferency, that so they may make their Challenges upon the
Appearance of the Jurors if there be just Cause.
Fourthly, The Place of their Appearance.
If it be in Cases of such Weight and Consequence as by the Judgment of
the Court is fit to be tried at the Bar, then their Appearance is directed to
be there; but in ordinary Cases, the Place of Appearance is in the Country at
the Assizes, or Nisi Prius, in the County where the Issue to be tried arises:
And certainly this is an excellent Constitution. The great Charge of Suits is
the Attendance of the Parties, the Jury-Men and Witnesses: And therefore tho'
the Preparation of the Causes in Point of pleading to Issue, and the Judgment,
is for the most Part in the Courts at Westminster, whereby there is kept a
great Order and Uniformity of Proceedings in the whole Kingdom, to prevent
Multiplicity of Laws and Forms; yet those are but of small Charge, or Trouble,
or Attendance, one Attorney being able to dispatch forty Mens Business with the
same Ease, and no greater Attendance than one Man would dispatch his own
Business: But the great Charge and Attendance is at the Trial, which is
therefore brought Home to the Parties in the Countries, and for the most Part
near where they live.
Fifthly, The Persons before whom they are to appear.
If the Trial be at the Bar, it is to be before that Court where the
Trial is; if in the Country, then before the Justices of Assizes, or Nisi
Prius, who are Persons well acquainted with the Common Law, and for the most
Part are Two of those Twelve ordinary Justices who are appointed for the Common
Dispensation of Justice in the Three great Courts at Westminster. And this
certainly was a most wise Constitution: For
1st, It prevents Factions and Parties in the Carriage of Business, which
would soon appear in every Cause of Moment, were the Trial only before Men
residing in the Counties, as Justices of the Peace, or the like, or before Men
of little or no Place, Countenance or Preheminence above others; and the more
to prevent Partiality in this Kind, those Judges are by Law prohibited to hold
their Sessions in Counties where they were born or dwell.
2dly, As it prevents Factions and Part-takings, so it keeps both the
Rule and the Administration of the Laws of the Kingdom uniform; for those Men
are employed as Justices, who as they have had a Common Education in the Study
of the Law, so they daily in Term-time converse and consult with one another;
acquaint one another with their Judgments, sit near one another in
Westminster-Hall, whereby their Judgments and Decisions are necessarily
communicated to one another, either immediately or by Relations of others, and
by this Means their Judgments and their Administrations of Common Justice carry
a Consonancy, Congruity and Uniformity one to another, whereby both the Laws
and the Administrations thereof are preserved from that Confusion and Disparity
that would unavoidably ensue, if the Administration was by several
incommunicating Hands, or by provincial Establishments: And besides all this,
all those Judges are solemnly sworn to observe and judge according to the Laws
of the Kingdom, according to the best of their Knowledge and Understanding.
Sixthly, When the Jurors appear, and are called, each Party has Liberty
to take his Challenge to the Array itself, if unduly or partially made by the
Sheriff; or if the Sheriff be of Kin to either Party, or to the Polls, either
for Insufficiency of Freehold, or Kindred or Alliance to the other Party, or
such other Challenges, either Principal, or to the Favour, as renders the Juror
unfit and incompetent to try the Cause, and the Challenge being confess'd or
found true by some of the rest of the Jury, that particular incompetent Person
Seventhly, Then Twelve, and no less, of such as are indifferent and are
return'd upon the principal Pannel, or the Tales, are sworn to try the same
according to their Evidence.
Eighthly, Being thus sworn, the Evidence on either Part is given in upon
the Oath of Witnesses, or other Evidence by Law allowed, (as Records and
ancient Deeds, but later Deeds and Copies of Records must be attested by the
Oaths of Witnesses) and other Evidence in the open Court, and in the Presence
of the Parties, their Attornies, Council and all By-standers, and before the
Judge and Jury, where each Party has Liberty of excepting, either to the
Competency of the Evidence, or the Competency or Credit of the Witnesses, which
Exceptions are publickly stated, and by the Judges openly or publickly allowed
or disallowed, wherein if the Judge be partial, his Partiality and Injustice
will be evident to all By-standers; and if in his Direction or Decision he
mistake the Law, either through Partiality, Ignorance, or Inadvertency, either
Party may require him to seal a Bill of Exception, thereby to deduce the Error
of the Judge (if any were) to a due Ratification or Reversal by Writ of
Ninthly, The Excellency of this open Course of Evidence to the Jury in
Presence of the Judge, Jury, Parties and Council, and even of the adverse
Witnesses, appears in these Particulars:
1st, That it is openly; and not in private before a Commissioner or Two,
and a couple of Clerks, where oftentimes Witnesses will deliver that which they
will be ashamed to testify publickly.
2dly, That it is Ore Tenus personally, and not in Writing, wherein
oftentimes, yea too often, a crafty Clerk, Commissioner, or Examiner, will make
a Witness speak what he truly never meant, by his dressing of it up in his own
Terms, Phrases, and Expressions; whereas on the other Hand, many times the very
Manner of a Witness's delivering his Testimony will give a probable Indication
whether he speaks truly or falsly. and by this Means also he has Opportunity to
correct, amend, or explain his Testimony upon further Questioning with him,
which he can never have after a Deposition is set down in Writing.
3dly, That by this Course of personal and open Examination, there is
Opportunity for all Persons concern'd, viz. The Judge, or any of the Jury, or
Parties, or their Council or Attornies, to propound occasional Questions, which
beats and boults out the Truth much better than when the Witness only delivers
a formal Series of his Knowledge without being interrogated; and on the other
Side, preparatory, limited, and formal Interrogatories in Writing, preclude
this Way of occasional Interrogations, and the best Method of searching and
sifting out the Truth is choak'd and suppress'd.
4thly, Also by this personal Appearance and Testimony of Witnesses,
there is Opportunity of confronting the adverse Witnesses, of observing the
Contradiction of Witnesses sometimes of the same Side, and by this Means great
Opportunities are gained for the true and clear Discovery of the Truth.
5thly, And further, The very Quality, Carriage, Age, Condition,
Education, and Place of Commorance of Witnesses, is by this Means plainly and
evidently set forth to the Court and the Jury, whereby the Judge and Jurors may
have a full Information of them, and the Jurors, as they see Cause, may give
the more or less Credit to their Testimony, for the Jurors are not only Judges
of the Fact, but many Times of the Truth of Evidence; and if there be just
Cause to disbelieve what a Witness swears, they are not bound to give their
Verdict according to the Evidence or Testimony of that Witness; and they may
sometimes give Credit to one Witness, tho' oppos'd by more than one. And
indeed, it is one of the Excellencies of this Trial above the Trial by
Witnesses, that altho' the Jury ought to give a great Regard to Witnesses and
their Testimony, yet they are not always bound by it, but may either upon
reasonable Circumstances, inducing a Blemish upon their Credibility, tho,
otherwise in themselves in Strictness of Law they are to be heard, pronounce a
Verdict contrary to such Testimonies, the Truth whereof they have just Cause to
suspect, and may and do often pronounce their Verdict upon one single
Testimony, which Thing the Civil Law admits not of.
Tenthly, Another Excellency of this Trial is this; That the Judge is
always present at the Time of the Evidence given in it: Herein he is able in
Matters of Law emerging upon the Evidence to direct them; and also, in Matters
of Fact, to give them a great Light and Assistance by his weighing the Evidence
before them, and observing where the Question and Knot of the Business lies,
and by shewing them his Opinion even in Matter of Fact, which is a great
Advantage and Light to Lay-Men: And thus, as the Jury assists the Judge in
determining the Matter of Fact, so the Judge assists the Jury in determining
Points of Law, and also very much in investigating and enlightning the Matter
of Fact, whereof the Jury are Judges.
Eleventhly, When the Evidence is fully given, the Jurors withdraw to a
private Place, and are kept from all Speech with either of the Parties till
their Verdict is delivered up, and from receiving any Evidence other than in
open Court, where it may be search'd into, discuss'd and examin'd. In this
Recess of the Jury they are to consider their Evidence, and if any Writings
under Seal were given in Evidence, they are to have with them; they are to
weigh the Credibility of Witnesses, and the Force and Efficacy of their
Testimonies, wherein (as I before said) they are not precisely bound to the
Rules of the Civil Law, viz. To have two Witnesses to prove every Fact, unless
it be in Cases of Treason, nor to reject one Witness because he is single, or
always to believe Two Witnesses if the Probability of the Fact does upon other
Circumstances reasonably encounter them; for the Trial is not here simply by
Witnesses, but by Jury; nay, it may so fall out, that the Jury upon their own
Knowledge may know a Thing to be false that a Witness swore to be true, or may
know a Witness to be incompetent or incredible, tho' nothing be objected
against him, and may give their Verdict accordingly.
Twelfthly, When the whole Twelve Men are agreed, then, and not till
then, is their Verdict to be received; and therefore the Majority of Assentors
does not conclude the Minority, as is done in some Countries where Trials by
Jury are admitted: But if any one of the Twelve dissent, it is no Verdict, nor
ought to be received. It is true, That in ancient Times, as Hen. 2 and Hen. 3's
Time, yea, and by Fleta in the Beginning of Edw. I's Time, if the Jurors
dissented, sometimes there was added a Number equal to the greater Party, and
they were then to give up their Verdict by Twelve of the old Jurors, and the
Jurors so added; but this Method has been long Time antiquated, notwithstanding
the Practice in Bracton's Time, lib. 4. cap. 9. and Fleta, lib. 4. cap. 9. for
at this Day the entire Number first empanell'd and sworn are to give up an
unanimous Verdict, otherwise it is none. And indeed this gives a great Weight,
Value and Credit to such a Verdict, wherein Twelve Men must unanimously agree
in a Matter of Fact, and none dissent; though it must be agreed, that an
ignorant Parcel of Men are sometimes governed by a few that are more knowing,
or of greater Interest or Reputation than the rest.
Thirteenthly, But if there be Matter of Law that carries in it any
Difficulty, the Jury may, to deliver themselves from the Danger of an Attaint,
find it specially, that so it may be decided in that Court where the Verdict is
returnable; and if the Judge overrule the Point of Law contrary to Law, whereby
the Jury are perswaded to find a general Verdict (which yet they are not bound
to do, if they doubt it,) then the Judge, upon the Request of the Party
desiring it, is bound by Law in convenient Time to seal a Bill of Exceptions,
containing the whole Matter excepted to; that so the Party grieved, by such
Indiscretion or Error of the Judge, may have Relief by Writ of Error on the
Statute of Westminster 2.
Fourteenthly, Altho' upon general Verdicts given at the Bar in the
Courts at Westminster, the Judgment is given within Four Days, in Presumption
that there cannot be any considerable Surprise in so solemn a Trial, or at
least it may be soon espied; yet upon Trials by Nisi prius in the Country, the
Judgment is not given presently by the Judge of Nisi prius, unless in Cases of
Quare Impedits: But the Verdict is returned after Trial into that Court from
whence the Cause issued, that thereby, if any Surprise happened either through
much Business of the Court, or through Inadvertency of the Attorney or Council,
or through any Miscarriage of the Jury, or through any other Casualty, the
Party may have his Redress in that Court from whence the Record issued.
And thus stands this excellent Order of Trial by Jury, which is far
beyond the Trial by Witnesses according to the Proceedings of the Civil Law,
and of the Courts of Equity, both for the Certainty, the Dispatch, and the
Cheapness thereof: It has all the Helps to investigate the Truth that the Civil
Law has, and many more. For as to Certainty,
1st, It has the Testimony of Witnesses, as well as the Civil Law and
2dly, It has this Testimony in a much more advantageous Way than those
Courts for Discovery of Truth.
3dly, It has the Advantage of the Judge's Observation, Attention, and
Assistance, in Point of Law by way of Decision, and in Point of Fact by way of
Direction to the Jury.
4thly, It has the Advantage of the Jury, and of their being de Vicineto,
who oftentimes know the Witnesses and the Parties: And,
5thly, It has the unanimous Suffrage and Opinion of Twelve Men, which
carries in itself a much greater Weight and Preponderation to discover the
Truth of a Fact, than any other Trial whatsoever.
And as this Method is more certain, so it is much more expeditious and
cheap; for oftentimes the Session of one Commission for the Examination of
Witnesses for one Cause in the Ecclesiastical Courts, or Courts of Equity,
lasts as long as a whole Session of Nisi prius, where a Hundred Causes are
examined and tried.
And thus much concerning Trials in Civil Causes. As for Trials in Causes
Criminal, they have this further Advantage, That regularly the Accusation, as
preparatory to the Trial, is by a Grand Jury: So that as no Man's Interest,
according to the Course of the Common Law, is to be tried or determined without
the Oaths of a Jury of twelve Men; so no Man's Life is to be tried but by the
Oaths of Twelve Men, and by the Preparatory Accusation or Indictment by Twelve
Men or more precedent to his Trial, unless it be in the Case of an Appeal at
the Suit of the Party.
Contents | Text Version