第15章 IV. (1)

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.