similar question was debated in the House of Lords, and was attended with the like success. On the 16th May, 1791, it was moved, that “A Message be sent "to the Commons to inform them that the Lords were ready to proceed on the "Trial of Warren Hastings, Esq." which passed in the affirmative, by a majority of 48-Contents 66-Not Contents 18.-*

dents from 18 Ed. 1. to 3 Geo. 1.--And for a succinct historical account, of the various impeachments, which were referred to, in

the course of this important debate, see the Annual Reg. for 1790, p. 63.

* Id. 30 vol. fo. 189.

CHAP. 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 though the Britons 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. Hence arises the difficulty, and indeed moral impossibility, of giving any satisfactory, or so much as probable conjecture, touching the original of the laws, for the following

reasons:

First, from the nature of laws themselves in general; which being to be accommodated to the conditions, exigencies, and conveniences of the people, for or by whom they are appointed, (a) as those exigencies and conveniences do insensibly grow upon the people, so many times there grows insensibly a variation of laws, especially in a long tract of time. And hence it is, that though for the purpose in some particular part of the common law of England, we may easily say, that the common law, as it is now taken, is otherwise than it was in that particular part, or point, in the time of Henry II. when Glanville wrote; or than it was in the time of Henry III. when Bracton wrote;-yet it is not possible to assign the certain time when the change began. Nor have we all the monuments, or memorials, either of acts of parliament, or of judicial resolutions, which might induce or occasion such alterations. For we have no authentic records of any acts of parliament, before 9 Hen. III. and those we have of that

(a) Inventæ sunt leges ad salutem civium, civitatum que incolumitatem, vitamque hominum & quietam & beatam. Cic. de Leg. 1. 4. See Blac. Com. 1 v. 63. to 92, and 4 v. 409. Summam divinæ mentis rationem, (says

Hopperus, of the law) et vocem cum bonitate et potentia conjunctam, quæ posita in Repub. jubet ea, quæ facienda. sunt, et prohibet contraria. L. 1. de Vera Jurisprud. tit. 20.

king's time, are but few. Nor have we any reports of judicial decisions, in any constant series of time, before the reign of Edward I.; though we have the plea rolls of the times of Henry III. and king John, in some remarkable order. So that use and custom, judicial decisions and resolutions, and acts of parliament, though not now extant, might introduce some new laws, and alter some old, which we now take to be the very common law itself, though the times and precise periods of such alterations are not explicitly, or clearly known. But though those particular variations and accessions have happened in the laws, yet they being only partial and successive, we may with just reason say, they are the same English laws now, that they were six hundred years since, in the general. As the Argonauts ship was the same when it returned home, as it was when it went out; though in that long voyage it had successive amendments, and scarce came back with any of its former materials;—and as Titius is the same man he was forty years since;-though physicians tell us, that in a tract of seven years, the body has scarce any of the same material substance it had before.

Secondly, the second difficulty in the search of the antiquity of laws and their original, is in relation to that people, unto whom the laws are applied; which, in the case of England, will render many observables, to shew it hard to be traced. For,

First, it is an ancient kingdom. And in such cases, though the people and government had continued the same, ab origine, as they say the Chinese did, till the late incursion of the Tartars, without the mixture of other people or laws; (a) yet it were an impossible thing, to give any certain account of the original of the laws of such a people; unless we had as certain monuments thereof, as the Jews had of theirs, by the hand of Moses (6). And that upon the following accounts. First, we have not any clear and certain monuments of the original foundation of the English kingdom, or state; when, and by whom, and how it came to be planted. That which we have concerning it, is uncertain

un

(a) The Chinese are a very singular object for the attention of the world, as well on account of the extraordinary duration of their empire, as an changeable attachment to their maxims. -Attached to their ancient customs from taste, and to their ancient government from habit and from principle; they place their whole happiness in

obedience; unwilling to quit their
station, provided their customs and
their manners, which confirm the con-
stitution of their country, be preserved;
forgetting, however, that a slavish sub-
mission to national customs, not only
perpetuates national errors, but deprives
a nation of numerous advantages.
(4) Blac. Com. 4 v. 409.

and traditional. And since we cannot know the original of the planting of this kingdom, we cannot certainly know the original of the laws thereof, which may be well presumed to be very near as ancient as the kingdom itself (a). Again, secondly, though. tradition might be a competent discoverer of the original of a kingdom or state, I mean oral tradition, yet such a tradition were incompetent without written monuments, to derive to us, at so long a distance, the original laws and constitutions of the kingdom. Because they are of a complex nature, and therefore not orally traducible to so great a distance of ages, unless we had the original, or authentic transcript of those laws, as the Jews had of their law; or as the Romans had of their laws of the Twelve Tables, engraven in brass (b). But yet further, thirdly, it is very evident to every day's experience, that laws, the further they go from their 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 Britons, 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 Britons were not reduced to that civilized estate, as to keep the annals and memorials of their laws and government, as the Romans and other civilized parts of the world have done. It is true, when the conquest of a country appears, we can tell when the laws of a con

(a) The history of past events is immediately lost or disfigured when intrusted to memory, or to oral tradition. The only certain means by which nations can indulge their curiosity, in researches concerning their remote origin, is to consider the language, the manners, and the customs of their ancestors, and to compare them with those of the neighbouring nations. As

to the Inhabitants of this Country, we
have no credible testimony about them
prior to the time of Julius Cæsar. Nó
mention of its name, in Greek, before
Polybius, who wrote about 150 years
before Christ; nor in Latin, b
Lucretius, who wrote about 50
after Polybius.

(b) Blac. Com. 1 v. 80. seq.

quering people came to be given to the conquered. Thus we can tell, that in the time of Henry II. when the conquest of Ireland had obtained a good progress, and in the time of king John, when it was compleated, the English laws were settled in Ireland (a). 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 obtained in those countries from whence the conquerors or planters came.

Secondly, the second 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 prevailed and obtained 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 Britons; in some places, the laws of the Mercians; and in some places, or among some people perhaps, the laws of the Normans. For although, as I shall shew hereafter (b), the Normans never obtained this kingdom by such a right of conquest as did or might alter the established laws of the kingdom; yet, considering that king William 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 opposed his coming in, it must needs be supposed, 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 (c): so that although 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 divers accessions from the laws of those people that were thus intermingled with the ancient Britons or Saxons; as the rivers of Severn, Thames,

(a) Cap. 9.
(b) Cap. 5, 6.

Blac. Com. 4 v. 409.-The Roll of Battle-Abbey, is said to be the foundation of the sur-names of many great

families. It is however of doubtful authority, Warren and Mortimer are accounted as ancient as any sur-names amongst us. Spelm. Rem, 146, 190.Camd. Rem. 90, 91.