第16章 IV. (2)

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.