The History of the Common Law of England

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King Richard I and have not since been repealed or altered,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