bind, as a law between the parties thereto, as to the particular case in question, till reversed by error or attaint; yet they do not make a law, properly so called;-for that only the king and parliament can do; yet they have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is; especially when such decisions hold a consonancy and congruity with resolutious and decisions of former times. And though such decisions are less than a law, yet they are a greater evidence thereof than the opinion of any private persons, AS SUCH, whatsoever-(a).

First, because the persons who pronounce those decisions, are men chosen by the king for that employment, as being of greater learning, knowledge, and experience in the laws, than others. Secondly, because they are upon their oaths, to judge according to the laws of the kingdom. Thirdly, because they have the best helps to inform their judgments. Fourthly, because they do, sedere pro tribunali, and their judgments are strengthened and upheld by the laws of this kingdom, till they are by the same law reversed, or avoided (b).

Now judicial decisions, as far as they refer to the laws of this kingdom, are for the matter of them of three kinds.

First, they are either such as have their reasons singly in the laws and customs of the kingdom. As, who shall succeed as heir to the ancestor;-what is the ceremony requisite for passing a freehold;-what estate, and how much shall the wife have for her dower; and many such matters, wherein the ancient and express laws of the kingdom give an express decision, and the judge seems only the instrument to pronounce it. And in these things, the law or custom of the realm, is the only rule and measure to judge by; and in reference to those matters, the decisions of courts are the conservatories and evidences of those laws.

Secondly, or they are such decisions, as by way of deduction and illation upon those laws, are framed or deduced. As for the purpose, whether of an estate thus, or thus limited, the wife shall

(a) An opinion, though erroneous, concluding to the judgment of a court, is a judicial opinion; because it is not only delivered under the sanction of the judge's oath, but on mature deliberation. But an extra-judicial opinion, whether given in or out of court, is no more than the prolatum of him who gives it; it has no legal efficacy. So,

an opinion given in court, if not necessary to the judgment, is extra-judicial. Vaugh. 382.

(b) Blac. Com. 1 v. 69, seq. Id. 267. Fortesc. de Laud. cap. 8. Seld. Review of Tith. cap. 8. 13 W. 3. cap. 2. 1 Geo. 3. cap. 23. and De Lolme, сар. 8.

be endowed;-whether if thus, or thus limited, the heir may be barred; and infinite more of the like complicated questions. And herein the rule of decision is, first, the common law and custom of the realm, which is the great substratum that is to be maintained; and then authorities or decisions of former times, in the same or the like cases; and then the reason of the thing itself (a).

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 man 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, & good common lawyer is the best expositor of such clauses, &c. (b).

(a) This source of decision is called "præteritorum memoria eventorum." (b) Plowd. 122. seq. 140. seq. Thus the practice and decisions of courts acquire the authority of laws; every pro

ceeding is conducted by some fixed and determinate rule; and the best and most effectual precautions are taken for the impartial application of rules to particular cases.

CHAP. V.

How the Common Law of England stood at and for some time after the coming in of King William I.

Ir is the honour and safety, and therefore the just desire of kingdoms that recognize no superior but God, that their laws have these two qualifications. First, 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 impose 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 latter, 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 latter, the canon law, was introduced, 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 incroachments 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 although the people unjustly assisted king Henry IV. in his usurpation of the crown, yet he was not admitted thereunto, until he had declared, that he claimed not as a conqueror (a), but as a successor (b). Only he reserved to himself the liberty of extending a pretence of conquest against the Scroops, that were slain in battle against him; which yet he durst not rest upon without a confirmation in parliament. Vide Rot. Parl. 1 H. 4. No. 56. & Pars 2. ibid. No. 17. (A).

(a) His right as a conqueror was never avowed, it was only insinuated. (6) See Knyghton 2757, Henry patched up a title in the best manner

he could; and in the end, he left himself, in the eyes of men of sense, no foundation of right, but his possession.

(A) Henry IV. did not claim the crown as a conqueror, though he was very much inclined so to do,* but as a successor, by descent, from the right line of the blood royal.

In order to this he set up two titles: one, upon the pretence of being the first of the blood royal, in the entire male line, whereas the duke of Clarence left only one daughter Philippa; from which female branch, by a marriage with Edmond Mortimer, Earl of March, the house of York descended: the other, by reviving an exploded rumour, first propagated by John of Gaunt, that Edmund earl of Lancaster, to whom Henry's mother was heiress, was in reality the elder brother of king Edward I. though his parents, on account of his personal deformity, had imposed him on the world for the younger; and therefore Henry would be entitled to the crown, either as successor to Richard II. in case the entire male line was allowed a preference to the female; or, even prior to that unfortunate prince, if the crown could descend through a female, while an entire male line was existing.

However, as in Edward the Third's time we find the parliament approving and affirming the law of the crown, so in the reign of Henry IV. they actually exerted their right of new settling the succession to it. And this was done by the statute 7 Hen. IV. c. 2. whereby it is enacted, "that the inheritance of the “crown and realms of England and France, and all other the king's dominions,

Seld, Tit. Hon. 1. 3.

1

And upon the like reason it was, that king William I. though he be called the Conqueror (a), and his attaining the crown here, is often in history, and in some records, called CONQUESTUS ANGLIE; yet in truth it was not such a conquest as did, or could alter the laws of this kingdom; or impose laws upon the people per modum conquestús, or jure belli. And therefore, to wipe off that false imputation upon our laws, as if they were the fruit, or effect of a conquest, or carried in them the badge of servitude to the will of the Conqueror, which notion some ignorant and prejudiced persons have entertained, I shall rip up, and lay open this whole business from the bottom, and to that end enquire into the following particulars, viz.

First, of the thing called conquest; what it is when attained; and the rights thereof.

Secondly, of the several kinds of conquest, and their effects, as to the alteration of laws by the victor.

Thirdly, how the English laws stood at the entry of king William I.

Fourthly, by what title he entered; and whether by such a right of conquest as did, or could, alter the English laws.

Fifthly, whether de facto there was any alteration of the said laws, and by what means, after his coming in.

First touching the first of these, viz. Conquest, what it is when attained, and the rights thereof. It is true, that it seems to be

"shall be set and remain in the person of our sovereign lord the king, and in "the heirs of his body issuing;" and prince Henry is declared heir apparent to the crown, to hold to him and the heirs of his body issuing, with remainder to lord Thomas, lord John, and lord Humphrey, the king's sons, and the heirs of their bodies respectively. Which is indeed nothing more than the law would have done before, provided Henry the Fourth had been a rightful king. It however serves to shew, that it was then generally understood, that the king and Parliament had a right to new-model and regulate the succession to the crown. And we may observe, with what caution and delicacy the parliament then avoided declaring any sentiment of Henry's original title. However, sir Edward Coke more than once expressly declares, † that at the time of passing this act, the right of the crown was in descent from Philippa, daughter and heir of Lionel duke of Clarence.

Soit mys et demoerge. † 4 Inst. 37.205.

(a) He is said, never to have surnamed himself Conqueror; nor was ever called so, in his lifetime, in any

Blac. Com. 1 v. 202.

letters patent or grants which he executed.