The History of the Common Law of England
by Matthew Hale
1713

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 Memory.
    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King Richard I and have not since been repealed or altered,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 quite
antiquated.
    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 Parliament.
    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 that matter.
    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 Acts.
    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
Predecessors.
    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 hereafter.

    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 Record.
    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 Rolls.
    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 Chancery.
    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 membr. 16.
    Charta de Foresta. Mag. Rot. Stat. membr. 19 & Rot. Cartar.
28 E. I membr. 26.
    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. 29.
    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 Dorso.
    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
Acceptation.
    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 such Customs.
    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 Laws.
    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 concerning them.
    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 are privileged.
    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 therein.
    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 Sea.
    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 follows, viz.

    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 in
Damages.
    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 102.
    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 observed, viz.

    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 Appeal.
    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 and
derogated.
    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 English Commonwealth.
    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 this Kingdom.
    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 Civil.
    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, viz.

    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 viderit Expederire.

    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 like.
    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. 144.

    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 Persons.
    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 Statutes.
    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 Chapter.
    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 hereafter.


IV. Touching the Original of the Common Law of England

    The Kingdom of England being a very ancient Kingdom, has had
many Vicissitudes and Changes (especially before the coming in of
King William I) under several either Conquests or Accessions of
Foreign Nations. For tho' the Britains were, as is supposed, the
most ancient Inhabitants, yet there were mingled with them, or
brought in upon them, the Romans, the Picts, the Saxons, the
Danes, and lastly, the Normans; and many of those Foreigners were
as it were incorporated together, and made one Common People and
Nation; and hence arises the Difficulty, and indeed Moral
Impossibility, of giving any satisfactory or so much as probable
Conjecture, touching the Original of the Laws, for the following
Reasons, viz.
    First, From the Nature of Laws themselves in general, which
being to be accommodated to the Conditions, Exigencies and
Conveniencies of the People, for or by whom they are appointed,
as those Exigencies and Conveniencies do insensibly grow upon the
People, so many Times there grows insensibly a Variation of Laws,
especially in a long Tract of Time; and hence it is, that tho'
for the Purpose in some particular Part of the Common Law of
England, we may easily say, That the Common Law, as it is now
taken, is otherwise than it was in that particular Part or Point
in the Time of Hen. 2 when Glanville wrote, or than it was in the
time of Hen. 3 when Bracton wrote, yet it is not possible to
assign the certain Time when the Change began; nor have we all
the Monuments or Memorials, either of Acts of Parliament, or of
Judicial Resolutions, which might induce or occasion such
Alterations; for we have no authentick Records of any Acts of
Parliament before 9 Hen. 3 and those we have of that King's Time,
are but few. Nor have we any Reports of Judicial Decisions in any
constant Series of Time before the Reign of Edw. I tho' we have
the Plea Rolls of the Times of Hen. 3 and King John, in some
remarkable Order. So that Use and Custom, and Judicial Decisions
and Resolutions, and Acts of Parliament, tho' not now extant,
might introduce some New Laws, and alter some Old, which we now
take to be the very Common Law itself, tho' the Times and precise
Periods of such Alterations are not explicitely or clearly known:
But tho' those particular Variations and Accessions have happened
in the Laws, yet they being only partial and successive, we may
with just Reason say, They are the same English Laws now, that
they were 600 Years since in the general. As the Argonauts Ship
was the same when it returned home, as it was when it went out,
tho' in that long Voyage it had successive Amendments, and scarce
came back with any of its former Materials; and as Titius is the
same Man he was 40 Years since, tho' Physicians tells us, That in
a Tract of seven Years, the Body has scarce any of the same
Material Substance it had before.
    Secondly, The 2d Difficulty in the Search of the Antiquity of
Laws and their Original, is in Relation to that People unto whom
the Laws are applied, which in the Case of England, will render
many Observables, to shew it hard to be traced. For,
    1st, It is an ancient Kingdom, and in such Cases, tho' the
People and Government had continued the same ab Origine (as they
say the Chinese did, till the late Incursion of the Tartars)
without the Mixture of other People, or Laws; yet it were an
impossible Thing to give any certain Account of the Original of
the Laws of such a People, unless we had as certain Monuments
thereof as the Jews had of theirs, by the Hand of Moses, and that
upon the following Accounts, viz.
    First, We have not any clear and certain Monuments of the
original Foundation of the English Kingdom or State, when, and by
whom, and how it came to be planted. That which we have
concerning it, is uncertain and traditional; and since we cannot
know the Original of the planting of this Kingdom, we cannot
certainly know the Original of the Laws thereof, which may be
well presum'd to be very near as ancient as the Kingdom itself.
Again, 2dly, Tho' Tradition might be a competent Discoverer of
the Original of a Kingdom or State, I mean Oral Tradition, yet
such a Tradition were incompetent without written Monuments to
derive to us, at so long a Distance, the original Laws and
Constitutions of the Kingdom, because they are of a complex
Nature, and therefore not orally traducible to so great a
Distance of Ages, unless we had the original or authentick
Transcript of those Laws as the People the Jews had of their Law,
or as the Romans had of their Laws of the Twelve Tables engraven
in Brass. But yet further, 3dly, It is very evident to every
Day's Experience, that Laws, the further they go from their
original Institution, grow the larger, and the more numerous: In
the first Coalition of a People, their Prospect is not great,
they provide Laws for their present Exigence and Convenience: But
in Process of Time, possibly their first Laws are changed,
altered or antiquated, as some of the Laws of the Twelve Tables
among the Romans were: But whatsoever be done touching their Old
Laws, there must of Necessity be a Provision of New, and other
Laws successively answering to the Multitude of successive
Exigencies and Emergencies, that in a long Tract of Time will
offer themselves; so that if a Man could at this Day have the
Prospects of all the Laws of the Britains before any Invasion
upon them, it would yet be impossible to say, which of them were
New, and which were Old, and the several Seasons and Periods of
Time wherein every Law took its Rise and Original, especially
since it appears, that in those elder Times, the Britains were
not reduced to that civiliz'd Estate, as to keep the Annals and
Memorials of their Laws and Government, as the Romans and other
civiliz'd Parts of the World have done.
    It is true, when the Conquest of a Country appears, we can
tell when the Laws of conquering People came to be given to the
Conquered. Thus we can tell that in the Time of Hen. 2 when the
Conquest of Ireland had obtain'd a good Progress, and in the Time
of K. John, when it was compleated, the English Laws were settled
in Ireland: But if we were upon this Inquiry, What were the
Original of those English Laws that were thus settled there; we
are still under the same Quest and Difficulty that we are now,
viz. What is the Original of the English Laws. For they that
begin New Colonies, Plantations and Conquests; if they settle New
Laws, and which the Places had not before, yet for the most Part
(I don't say altogether) they are the Old Laws which obtain'd in
those Countries from whence the Conquerors or Planters came.
    Secondly, the 2d Difficulty of the Discovery of the Original
of the English Laws is this, That this Kingdom has had many and
great Vicissitudes of People that inhabited it, and that in their
several Times prevail'd and obtain'd a great Hand in the
Government of this Kingdom, whereby it came to pass, that there
arose a great Mixture and Variety of Laws: In some Places the
Laws of the Saxons, in some Places the Laws of the Danes, in some
Places the Laws of the ancient Britains, in some Places, the Laws
of the Mercians, and in some Places, or among some People
(perhaps) the Laws of the Normans: For altho', as I shall shew
hereafter, the Normans never obtain'd this Kingdom by such a
Right of Conquest, as did or might alter the established Laws of
the Kingdom; yet considering that K. Will. I brought with him a
great Multitude of that Nation, and many Persons of great Power
and Eminence, which were planted generally over this Kingdom,
especially in the Possessions of such as had oppos'd his coming
in, it must needs be suppos'd, that those Occurrences might
easily have a great Influence upon the Laws of this Kingdom, and
secretly and insensibly introduce New Laws, Customs and Usages;
so that altho' the Body and Gross of the Law might continue the
same, and so continue the ancient Denomination that it first had,
yet it must needs receive diverse Accessions from the Laws of
those People that were thus intermingled with the ancient
Britains or Saxons, as the Rivers of Severn, Thames, Trent, &c.
tho' they continue the same Denomination which their first Stream
had, yet have the Accession of divers other Streams added to them
in the Tracts of their Passage which enlarge and augment them.
And hence grew those several Denominations of the Saxon,
Merician, and Danish Laws, out of which (as before is shewn) the
Confessor extracted his Body of the Common Law, and therefore
among all those various Ingredients and Mixtures of Laws, it is
almost an impossible Piece of Chymistry to reduce every Caput
Legis to its true Original, as to say, This is a Piece of the
Danish, this of the Norman, or this of the Saxon or British Law:
Neither was it, or indeed is it much material, which of these is
their Original; for 'tis very plain, the Strength and Obligation,
and the formal Nature of a Law, is not upon Account that the
Danes, or the Saxons, or the Normans, brought it in with them,
but they became Laws, and binding in this Kingdom, by Virtue only
of their being received and approved here.
    Thirdly, A Third Difficulty arises from those accidental
Emergencies that happened, either in the Alteration of Laws, or
communicating or conveying of them to this Kingdom: For first,
the Subdivision of the Kingdom into small Kingdoms under the
Heptarchy, did most necessarily introduce a Variation of Laws,
because the several Parts of the Kingdom, were not under one
common Standard, and so it will soon be in any Kingdoms that are
cantonized, and not under one common Method of Dispensation of
Laws, tho' under one and the same King. Again, The Intercourse
and Traffick with other Nations, as it grew more or greater, did
gradually make a Communication and Transmigration of Laws from us
to them, and from them to us. Again, The Growth of Christianity
in this Kingdom, and the Reception of Learned Men from other
Parts, especially from Rome, and the Credit that they obtained
here, might reasonably introduce some New Laws, and antiquate or
abrogate some Old ones that seem'd less consistent with the
Christian Doctrines, and by this Means, not only some of the
Judicial Laws of the Jews, but also some Points relating to, or
bordering upon, or derived from the Canon or Civil Laws, as may
be seen in those Laws of the ancient Kings, Ina, Alphred,
Canutus, &c. collected by Mr. Lambard.
    Having thus far premised, it seems, upon the whole Matter, an
endless and insuperable Business to carry up the English Laws to
their several Springs and Heads, and to find out their first
Original; neither would it be of any Moment or Use if it were
done: For whenever the Laws of England, or the several Capita
thereof began, or from whence or whomsoever derived, or what Laws
of other Countries contributed to the Matter of our Laws; yet
most certainly their Obligation arises not from their Matter, but
from their Admission and Reception, and Authorization in this
Kingdom; and those Laws, if convenient and useful for the
Kingdom, were never the worse, tho' they were desumed and taken
from the Laws of other Countries, so as they had their Stamp of
Obligation and Authority from the Reception and Approbation of
this Kingdom by Virtue of the Common Law, of which this Kingdom
has been always jealous, especially in relation to the Canon,
Civil, and Norman Law, for the Reasons hereafter shewn.
    Passing therefore from this unsearchable Inquiry, I shall
descend to that which gives the Authority, viz. The formal
Constituents, as I may call them, of the Common Law, and they
seem to be principally, if not only, those three, viz. 1st. The
Common Usage, or Custom, and Practice of this Kingdom, in such
Parts thereof as lie in Usage or Custom. 2dly. The Authority of
Parliament, introducing such Laws; and, 3dly. The Judicial
Decisions of Courts of Justice, consonant to one another in the
Series and Successions of Time.
    1. As to the first of these, Usage and Custom generally
receiv'd, do Obtinere vim Legis, and is that which gives Power
sometimes to the Canon Law, as in the Ecclesiastical Courts;
sometimes to the Civil Law, as in the Admiralty Courts; and
again, controuls both, when they cross other Customs that are
generally receiv'd in the Kingdom. This is that which directs
Discents, has settled some ancient Ceremonies and Solemnities in
Conveyances, Wills and Deeds, and in many more Particulars. And
if it be enquired, What is the Evidence of this Custom, or
wherein it consists, or is to be found? I answer, It is not
simply an unwritten Custom, not barely Orally deriv'd down from
one Age to another; but it is a Custom that is derived down in
Writing, and transmitted from Age to Age, especially since the
Beginning of Edw. I to whose Wisdom the Laws of England owe
almost as much as the Laws of Rome to Justinian.
    2. Acts of Parliament. And here it must not be wonder'd at,
that I make Acts of Parliament one of the Authoritative
Constituents of the Common Law, tho' I had before
contradistinguished the one from the other; for we are to know,
that although the Original or Authentick Transcripts of Acts of
Parliament are not before the Time of Hen. 3 and many that were
in his Time are perish'd and lost; yet certainly such there were,
and many of those Things that we now take for Common Law, were
undoubtedly Acts of Parliament, tho' now not to be found of
Record. And if in the next Age, the Statutes made in the Time of
Hen. 3 and Edw. I were lost, yet even those would pass for Parts
of the Common Law, and indeed, by long Usage and the many
Resolutions grounded upon them, and by their great Antiquity,
they seem even already to be incorporated with the very Common
Law; and that this is so, may appear, tho' not by Records, for we
have none so ancient, yet by an authentical and unquestionable
History, wherein a Man may, without Much Difficulty, find, That
many of those Capitala Legum that are now used and taken for
Common Law, were things enacted in Parliaments or Great Councils
under William I and his Predecessors, Kings of England, as may be
made appear hereafter. But yet, those Constitutions and Laws
being made before Time of Memory, do now obtain, and are taken as
Part of the Common Law and immemorial Customs of the Kingdom; and
so they ought now to be esteem'd tho' in their first Original
they were Acts of Parliament.
    3. Judicial Decisions. It is true, the Decisions of Courts of
Justice, tho' by Virtue of the Laws of this Realm they do bind,
as a Law between the Parties thereto, as to the particular Case
in Question, 'till revers'd by Error or Attaint, yet they do not
make a Law properly so called, (for that only the King and
Parliament can do); yet they have a great Weight and Authority in
Expounding, Declaring, and Publishing what the Law of this
Kingdom is, especially when such Decisions hold a Consonancy and
Congruity with Resolutions and Decisions of former Times; and
tho' such Decisions are less than a Law, yet they are a greater
Evidence thereof than the Opinion of any private Persons, as
such, whatsoever.
    1st. Because the Persons who pronounce those Decisions, are
Men chosen by the King for that Employment, as being of greater
Learning, Knowledge, and Experience in the Laws than others.
2dly. Because they are upon their Oaths to judge according to the
Laws of the Kingdom. 3dly. Because they have the best Helps to
inform their Judgments. 4thly. Because they do Sedere Pro
Tribunali, and their Judgments are strengthen'd and upheld by the
Laws of this Kingdom, till they are by the same Law revers'd or
avoided.

    Now Judicial Decisions, as far as they refer to the Laws of
this Kingdom, are for the Matter of them of Three Kinds:
    First, They are either such as have their reasons singly in
the Laws and Customs of this Kingdom, as, Who shall succeed as
Heir to the Ancestor, what is the Ceremony requisite for passing
a Freehold, what Estate, and how much shall the Wife have for her
Dower? And many such Matters wherein the ancient and express Laws
of the Kingdom give an express Decision, and the Judge seems only
the instrument to pronounce it; and in these Things, the Law or
custom of the Realm is the only Rule and Measure to judge by, and
in reference to those Matters, the Decisions of Courts are the
Conservatories and Evidences of those Laws.
    Secondly, Or they are such Decisions, as by Way of Deduction
and Illation upon those Laws are framed or deduced; as for the
Purpose, Whether of an Estate thus or thus limited, the Wife
shall be endowed? Whether if thus or thus limited, the Heir may
be barr'd? And infinite more of the like complicated Questions.
And herein the Rule of Decision is, First, the Common Law and
Custom of the Realm, which is the great Substratum that is to be
maintain'd; and then Authorities or Decisions of former Times in
the same or the like Cases, and then the Reason of the Thing
itself.
    Thirdly, Or they are such as seem to have no other Guide but
the common Reason of the Thing, unless the same Point has been
formally decided, as in the Exposition of the Intention of
Clauses in Deeds, Wills, Covenants, &c. where the very Sense of
the Words, and their Positions and Relations, give a rational
Account of the Meaning of the Parties, and in such Cases the
Judge does much better herein, than what a bare grave Grammarian
or Logician, or other prudent Men could do; for in many Cases
there have been former Resolutions, either in Point or agreeing
in Reason or Analogy with the Case in Question; or perhaps also,
the Clause to be expounded is mingled with some Terms or Clauses
that require the Knowledge of the Law to help out with the
Construction or Exposition: Both which do often happen in the
same Case, and therefore it requires the Knowledge of the Law to
render and expound such Clauses and Sentences; and doubtless a
good Common Lawyer is the best Expositor of such Clauses, &c.
Vide Plowden, 122, to 130, 140, &c.


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 Rights thereof.
    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 First.
    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 they lost.
    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 Usurpation.
    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 Annos.

    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 Laws.
    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 Scottish Kings.
    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 Consequences,

    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 Kingdom.
    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 the Duke.

    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, Th