The History of the Common Law of England.txt

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 King Richard I and have not since been repealed or altered,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 Histo...