by Matthew Hale
(1713)
The History of the Common Law of England
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King Richard I and have not since been repealed or altered,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 ...
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