The History of the Common Law of England [23]
which is the great Substratum that is to be maintain'd; and then Authorities or Decisions of former Times in the same or the like Cases, and then the Reason of the Thing itself. Thirdly, Or they are such as seem to have no other Guide but the common Reason of the Thing, unless the same Point has been formally decided, as in the Exposition of the Intention of Clauses in Deeds, Wills, Covenants, &c. where the very Sense of the Words, and their Positions and Relations, give a rational Account of the Meaning of the Parties, and in such Cases the Judge does much better herein, than what a bare grave Grammarian or Logician, or other prudent Men could do; for in many Cases there have been former Resolutions, either in Point or agreeing in Reason or Analogy with the Case in Question; or perhaps also, the Clause to be expounded is mingled with some Terms or Clauses that require the Knowledge of the Law to help out with the Construction or Exposition: Both which do often happen in the same Case, and therefore it requires the Knowledge of the Law to render and expound such Clauses and Sentences; and doubtless a good Common Lawyer is the best Expositor of such Clauses, &c. Vide Plowden, 122, to 130, 140, &c. V. How the Common Law of England stood at and for some Time after the coming in of King William I It is the Honour and Safety, and therefore the just Desire of Kingdoms that recognize no Superior but God, that their Laws have those two Qualifications, viz. 1st. That they be not dependent upon any Foreign Power; for a Dependency in Laws derogates from the Honour and Integrity of the Kingdom, and from the Power and Sovereignty of the Prince thereof. Secondly, That they taste not of Bondage or Servitude; for that derogates from the Dignity of the Kingdom, and from the Liberties of the People thereof. In Relation to the former Consideration, the Kings of this Realm, and their great Councils, have always been jealous and careful, that they admitted not any Foreign Power, (especially such as pretended Authority to improve Laws upon other free Kingdoms or States) nor to countenance the Admission of such Laws here as were derived from such a Power. Rome, as well Ancient as Modern, pretended a kind of universal Power and Interest; the former by their Victories, which were large, and extended even to Britain itself; and the later upon the Pretence of being Universal Bishop or Vicar-General in all Matters Ecclesiastical; so that upon Pretence of the former, the Civil Law, and upon Pretence of the later, the Canon Law was introduc'd, or pretended to some Kind of Right in the Territories of some absolute Princes, and among others here in England: But this kingdom has been always very jealous of giving too much Countenance to either of those Laws, and has always shewn a just Indignation and Resentment against any Encroachments of this Kind, either by the one Law or the other. It is true, as before is shewn, that in the Admiralty and Military Courts, the Civil Law has been admitted, and in the Ecclesiastical Courts, the Canon Law has been in some Particulars admitted. But still they carry such Marks and Evidences about them, whereby it may be known that they bind not, nor have the Authority of Laws from themselves, but from the authoritative Admission of this Kingdom. And, as thus the Kingdom, for the Reasons before given, never admitted the Civil or the Canon Law to be the Rule of the Administration of Common Justice in this Kingdom; so neither has it endured any Laws to be imposed upon the People by any Right of Conquest, as being unsuitable to the Honour or Liberty of the English Kingdom, to recognize their Laws as given them at the Will and Pleasure of a Conqueror. And hence it was, that altho' the People unjustly assisted King Hen. 4 in his Usurpation of the Crown, yet he was not admitted thereunto, until he had declared, that he claimed not as a Conqueror, but as a Successor; only he reserved to himself the Liberty of extending a Pretence of Conquest