The History of the Common Law of England [18]
in Casu consimili, and Casu Proviso, which are given by Act of Parliament. 2dly, By Way of Contradistinction to particular Customary Laws: Thus Discents at Common Law, Dower at Common Law, are in Contradistinction to such Dowers and Discents as are directed by particular Customs. And 3dly, In Contradistinction to the Civil, Canon, Martial and Military Laws, which are in some particular Cases and Courts admitted, as the Rule of their Proceedings. Secondly, Some have conceived, that the Reason of this Appellation was this, viz. In the Beginning of the Reign of Edward 3 before the Conquest, commonly called, Edward the Confessor, there were several Laws, and of several Natures, which obtain'd in several Parts of this Kingdom, viz. The Mercian Laws, in the counties of Gloucester, Worcester, Hereford, Warwick, Oxon, Chester, Salop and Stafford. The Danish Laws, in the Counties of York, Derby, Nottingham, Leicester, Lincoln, Northampton, Bedford, Bucks, Hertford, Essex, Middlesex, Norfolk, Suffolk, Cambridge and Huntington. The West-Saxon Laws, in the Counties of Kent, Sussex, Surrey, Berks, Southampton, Wilts, Somerset, Dorset, and Devon. This King, to reduce the Kingdom as well under one Law, as it then was under one Monarchical Government, extracted out of all those Provincial Laws, one Law to be observed through the whole Kingdom: Thus Ranulphus Cestrensis, cited by Sir Henry Spelman in his Glossary, under the Title Lex, says, "Ex tribus his Legibus Sanctus Edvardus unam Legem ----" &c. And the same in totidem verbis, is affirmed in his History of the last Year of the same King Edward. (Vide ibid. Plura de hoc) But Hoveden carries up the Common Laws, or those stiled the Confessor's Laws, much further; for he in his History of Henry 2 tell us, "Quod istae Leges prius inventae & constitutae erant Tempore Edgari, Avi sui," &c. (Vide Hoveden) And possibly the Grandfather might be the first Collector of them into a Body, and afterwards Edward might add to the Composition, and give it the Denomination of the Common Law. but the Original of it cannot in Truth be referred to either, but is much more ancient, and is as undiscoverable as the Head of Nile: Of which more at large in the following Chapter. Thirdly, Others say, and that most truly, That it is called the Common Law, because it is the common Municipal Law or Rule of justice in this Kingdom: So that Lex Communis, or Jus Communis, is all one and the same with Lex Patriae, or Jus Patrium; for although there are divers particular Laws, some by Custom applied to particular Places, and some to particular Causes; yet that Law which is common to the generality of all Persons, Things and Causes, and has a Superintendency over those particular Laws that are admitted in Relation to particular Places or Matters, is Lex Communis Angliae, as the Municipal Laws of other Countries may be, and are sometimes called, The Common Law of that Country,. as Lex Communis Norrica, Lex Communis Burgundica, Lex Communis Lombardica, &c. So that although all the former Reasons have their Share in this Appellation, yet the principal Cause thereof seems to be the latter: And hence some of the Ancients call'd it Lex Communis. others Lex Patriae; and so they were called in their Confirmation by King William I. Whereof hereafter. IV. 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