The History of the Common Law of England [20]
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. 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