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of them to their first and component principles. We can seldom pronounce that this custom was derived from the Britons; that was left behind by the Romans; this was a necessary precaution against the Picts; that was introduced by the Saxons, discontinued by the Danes, but afterwards restored by the Normans.
Wherever this can be done, it is matter of great curiosity and some use; but this can very rarely be the case, not only from the reason above mentioned, but also from many others. First, from the nature of traditional laws in general, which, being accommodated to the exigencies of the times, suffer by degrees insensible variations in practice ;(6) so that though upon comparison we plainly discern the alteration of the law from what it was five hundred years ago, yet it is impossible to define the precise period in which that alteration accrued, any more than we can discern the changes of the bed of a river which varies its shores by continual decreases and alluvions. Secondly, this becomes impracticable from the antiquity of the kingdom and its government, which alone, though it had been disturbed by no foreign invasions, would make it impossible to search out the original of its laws, unless we had as authentic monuments *410]
thereof as the Jews had by the hand of Moses.(c) Thirdly, *this un.
certainty of the true origin of particular customs must also in part bave arisen from the means whereby Christianity was propagated among our Saxon ancestors in this island, by learned foreigners brought over from Rome and other countries, who undoubtedly carried with them many of their own national customs, and probably prevailed upon the state to abrogate such usages as were inconsistent with our holy religion, and to introduce many others that were more conformable thereto. And this perhaps may have partly been the cause that we find not only some rules of the Mosaical, but also of the imperial and pontifical, laws, blended and adopted into our own system.
À further reason may also be given for the great variety, and, of course, the uncertain original, of our antient established customs, even after the Saxon government was firmly established in this island,-viz., the subdivision of the kingdom into an heptarchy, consisting of seven independent kingdoms, peopled and governed by different clans and colonies. This must necessarily create an infinite diversity of laws, even though all those colonies of Jutes, Angles, AngloSaxons, and the like originally sprung from the same mother country, the great Northern Live, which poured forth its warlike progeny, and swarmed all over Europe, in the sixth and seventh centuries. This multiplicity of laws will necessarily be the case in some aegree where any kingdom is cantoned out into any provincial establishments, and not under one common dispensation of laws, though under the same sovereign power. Much more will it happen where seven unconnected states are to form their own constitution and superstructure of government, though they all begin to build upon the same or similar foundations.
When therefore the West Saxons bad swallowed up all the rest, and king Alfred succeeded to the monarchy of England, whereof his grandfather Egbert was the founder, his mighty genius prompted him to undertake a most great *411]
and necessary work, which he is said to have executed in as *masterly
a manner, no less than to new-model the constitution, to rebuild it on a plan that should endure for ages, and out of its old discordant materials, which were heaped upon each other in a vast and
rude irregularity, to form one uniform and well-connected whole. This he effected by reducing the whole kingdom under one regular and gradual subordination of government, wherein each man was answerable to his immediate superior for his own conduct and that of his nearest neighbours : for to him we owe that master-piece of judicial polity, the subdivision of England into tithings and hundreds, if not into counties, all under the influence and administration of one supreme magistrate, the king; in whom, as in a general reservoir, all the executive authority of the law was lodged, and from whom justice was dispersed to every part of the nation by distinct yet communicating ducts and channels; which wise ir sti() Hal. Hist. C. L. 57.
(*) Ibid. 59.
tation has been preserved for near a thousand years unchanged, from Alfred's to the present time. He also, like another Theodosius, collected the various customs that he found dispersed in the kingdom, and reduced and digested them into one uniform system or code of laws, in his Dom-bec, or liber judicialis. This he compiled for the use of the court-baron, hundred, and county court, the court-leet, and sheriff's tourn, tribunals which he established for the trial of all causes, civil and criminal, in the very districts wherein the complaint arose; all of them subject, however, to be inspected, controlled, and kept within the bounds of the universal or common law by the king's own courts, which were then itinerant, being kept in the king's palace, and removing with his household in those royal progresses, which he continually made from one end of the kingdom to the other.
The Danish invasion and conquest, which introduced new foreign customs, was a severe blow to this noble fabric; but a plan so excellently concerted could never be long thrown aside. So that upon the expulsion of these intruders the English returned to their antient law, retaining, however, some few of the customs of their late visitants, which went *under the name of Dane
[*412 Lage: as the code compiled by Alfred was called the West-Saxon-Lage; and the local constitutions of the antient kingdom of Mercia, which obtained in the countries nearest to Wales, and probably abounded with many British customs, were called the Mercen-Lage. And these three laws were, about the beginning of the eleventh century, in use in different counties of the realm, the provincial polity of counties and their subdivisions having never been altered or discontinued through all the shocks and mutations of government from the time of its first institution, though the laws and customs therein used have (as we shall see) often suffered considerable changes.
For king Edgar, (who, besides military merit, as founder of the English navy, was also a most excellent civil governor,) observing the ill effects of three distinct bodies of laws prevailing at once in separate parts of his dominions, projected and begun what his grandson king Edward the Confessor afterwards completed,—viz., one uniform digest or body of laws to be observed throughout the whole kingdom; being probably no more than a revival of king Alfred's code, with some improvements suggested by necessity and experience, particularly the incorporating some of the British or rather Mercian customs, and also such of the Danish as were reasonable and approved, into the West-Saxon-Laye, which was still the groundwork of the whole. An.l this appears to be the bestsupported and most plausible conjecture (for certainty is not to be expected) of the rise and original of that admirable system of maxims and unwritten customs, which is now known by the name of the common law, as extending its authority universally over all the realm, and which is doubtless of Saxon parentage.
Among the most remarkable of the Saxon laws we may reckon,-1. The constitution of parliaments, or, rather, general assemblies of the principal and wisest men in the nation; the wittena-gemote, or commune consilium, of the antient Germans, which was not yet reduced to the forms and *distinctions of our modern parliament, without whose concurrence, however, no new
[*413 law could be made or old one altered. 2. The election of their magistrates by the people,-originally even that of their kings, till dear-bought experience evinced the convenience and necessity of establishing an hereditary succession to the crown. But that of all subordinate magistrates, their military officers or heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeves, (since changed into mayors and bailiffs,) and even their tithingmen and borsholders at the leet, continued, some till the Norman conquest, others for two centuries after, and some remain to this day. 3. The descent of the crown, when once a royal family was established, upon nearly the same hereditary principles upon which it has ever since continued; only that per haps, in case or minority, the next of kin of full age would ascend the throne as king, and not as protector, though after his death the crown immediately reverted back to the heir. 4. The great paucity of capital punishments for the
first offence, even the most notorious offenders being allowed to commute it for a fine or weregild, or, in default of payment, perpetual bondage; to which our benefit of clergy has now in some measure succeeded. 5. The prevalence of certain customs, as heriots and military services in proportion to every man's land, which much resembled the feodal constitution, but yet were exempt from all its rigorous hardships; and which may be well enough accounted for by supposing them to be brought from the continent by the first Saxon invaders, in the primitive moderation and simplicity of the feodal law, before it got into the hands of the Norman jurists, who extracted the most slavish doctrines and oppressive consequences out of what was originally intended as a law of liberty. 6. That their estates were liable to forfeiture for treason, but that the doctrine of escheats and corruption of blood for felony, or any other cause, was utterly unknown amongst them. 7. The descent of their lands to all the males equally, without any right of primogeniture; a custom which obtained among the Britons, was agreeable to the Roman law, and continued among the Saxons
till the Norman conquest : *though really inconvenient, and more espe*414]
cially destructive to antient families, which are in monarchies necessary to be supported, in order to form and keep up a nobility or intermediate state between the prince and the common people. 8. The courts of justice consisted principally of the county courts, and, in cases of weight or nicety, the king's court held before himself in person, at the time of his parliaments, which were usually holden in different places, according as he kept the three great festivals of Christmas, Easter, and Whitsuntide; an institution which was adopted by king Alfonso VII. of Castile, about a century after the conquest, who at the same three great feasts was wont to assemble his nobility and prelates in his court, who there heard and decided all controversies, and then, having received his instructions, departed home.(d) These county courts, however, differed from the modern ones in that the ecclesiastical and civil jurisdiction were blended together, the bishop and the ealdorman or sheriff sitting in the same county court; and also that the decisions and proceedings therein were much more simple and unembarrassed : an advantage which will always attend the infancy of any laws, but wear off as they gradually advance to antiquity. 9. Trials among a people who had a very strong tincture of superstition were permitted to be by ordeal, by the corsned, or morsel of execration, or by wager of law with compurgators, if the party chose it; but frequently they were also by jury: for, whether or no their juries consisted precisely of twelve men or were bound to a strict unanimity, yet the general constitution of this admirable criterion of truth and most important guardian both of public and private liberty we owe to our Saxon ancestors. Thus stood the general frame of our polity at the time of the Norman invasion, when the second period of our legal history commences.
II. This remarkable event wrought as great an alteration in our laws as it did in our antient line of kings; and though the alteration of the former was *415]
effected rather by the *consent of the people than any right of conquest,
yet that consent seems to have been partly extorted by fear, and partly given without any apprehension of the consequences which afterwards ensued.
1. Among the first of these alterations we may reckon the separation of the ecclesiastical courts from the civil, effected in order to ingratiate the new king with the popish clergy, who for some time before had been endeavouring all over Europe to exempt themselves from the secular power, and whose demands the Conqueror, like a politic prince, thought it prudent to comply with, by reason that their reputed sanctity had a great influence over the minds of the people, and because all the little learning of the times was engrossed into their hands, which made them necessary men and by all means to be gained over to bis interests. And this was the more easily effected, because the disposal of ab the episcopal sees being then in the breast of the king, he had taken care to fill them with Italian and Norman prelates. 2. Another violent alteration of the English constitution consisted in the
(4) Mod. Un. Hist. xx. 114.
depopulation of whole counties for the purposes of the king's royal diversion, and subjecting both them and all the antient forests of the kingdom to the unreasonable severities of forest-laws imported from the continent, whereby the slaughter of a beast was made almost as penal as the death of a man. In the Saxon times, though no man was allowed to kill or chase the king's deer, yet he might start any game, pursue and kill it upon his own estate. But the rigour of these new constitutions vested the sole property of all the game in England in the king alone;' and no man was entitled to disturb any fowl of the air, or any beast of the field, of such kinds as were specially reserved for the royal amusement of the sovereign, without express license from the king by a grant of a chase or free-warren; and those franchises were granted as much with a view to preserve the breed of animals as to indulge the subject. From a similar principle to which, though the forest-laws are now mitigated, and by degrees *grown entirely obsolete, yet from this root has sprung a bas
[*416 tard slip, known by the name of the game-law, now arrived to and wantoning in its highest vigour: both founded upon the same unreasonable notions of permanent property in wild creatures, and both productive of the same tyranny to the commons, but with this difference, that the forest-laws established only one mighty hunter throughout the land, the game-laws have raised a little Nimrod in every manor. And in one respect the antient law was much less unreasonable than the modern; for the king's grantee of a chase or free-warren might kill game in every part of his franchise; but now, though a freeholder of less than 1001. a year is forbidden to kill a partridge upon his own estate, yet nobody else (not even the lord of the manor, unless he hath a grant of free-warren) can do it without committing a trespass and subjecting himself to an action.
3. A third alteration in the English laws was by narrowing the remedial influence of the county courts, the great seats of Saxon justice, and extending the original jurisdiction of the king's justiciars to all kinds of causes arising in all parts of the kingdom. To this end the aula regis, with all its multifarious authority, was erected, and a capital justiciary appointed, with powers so large and boundless that he became at length a tyrant to the people and formidable to the crown itself. The constitution of this court, and the judges themselves who presided there, were fetched from the duchy of Normandy; and the consequence naturally was, the ordaining that all proceedings in the king's courts should be carried on in the Norman instead of the English language; a provision the more necessary, because none of his Norman justiciars understood English, but as evident a badge of slavery as ever was imposed upon a conquered people. This lasted till king Edward the Third obtained a double victory, over the armies of France in their own country, and their language in our courts here at home. But there was one mischief too deeply rooted thereby, and which this caution of *king Edward came too late to eradicate. Instead of the plain and easy method of determining suits in the county
[*417 courts, the chicanes and subtleties of Norman jurisprudence had taken possession of the king's courts, to which every cause of consequence was drawn. Indeed, that age and those immediately succeeding it were the era of refinement and subtility. There is an active principle in the human soul that will ever be exerting its faculties to the utmost stretch, in whatever employment, by the accidents of time and place, the general plan of education, or the customs and manners of the age and country, it may happen to find itself engaged. The Northern conquerors of Europe were then emerging from the grossest ignorance in point of literature; and those who had leisure to cultivate its progress were such only as were cloistered in monasteries, the rest being all soldiers or peasants. And, unfortunately, the first rudiments of science which they imbibed were those of Aristotle's philosophy, conveyed through the medium of his Arabian commentators, which were brought from the East by the Saracens into Palestine and Spain, and translated into barbarous Latin. So that, though the
materials upon which they were naturally employed in the infancy of a rising state were those of the noblest kind, the establishment of religion and the regulations of civil polity, yet, having only such tools to work with, their execution was trifling and flimsy. Both the divinity and the law of those times were therefore frittered into logical distinctions, and drawn out into metaphysical subtleties, with a skill most amazingly artificial, but which serves no other purpose than to show the vast powers of the human intellect, however vainly or preposterously employed. Hence the law in particular, which (being intended for universal reception) ought to be a plain rule of action, became a science of the greatest intricacy, especially when blended with the new refinements engrafted upon feodal property: which refinements were from time to time gradually introduced by the Norman practitioners, with a view to super. sede as they did in great measure) the more homely, but more intelligible, maxims of distributive justice among the Saxons. And, to say the truth, these
*scholastic reformers have transmitted their dialect and finesses to *418]
posterity so interwoven in the body of our legal polity that they cannot now be taken out without a manifest injury to the substance. Statute after-statute has in later times been made to pare off these troublesome excrescences and restore the common law to its pristine simplicity and vigour: and the endeavour has greatly succeeded; but still the scars are deep and visible; and the liberality of our modern courts of justice is frequently obliged to have recourse to unaccountable fictions and circuities in order to recover that equitable and substantial justice which for a long time was totally buried under the narrow rules and fanciful niceties of metaphysical and Norman jurisprudence.
4. A fourth innovation was the introduction of the trial by combat, for the decision of all civil and criminal questions of fact in the last resort. This was the immemorial practice of all the Northern nations, but first reduced to regular and stated forms among the Burgundii, about the close of the fifth century; and from them it passed to other nations, particularly the Franks and Normans, which last had the honour to establish it here, though clearly an unchristian, as well as most uncertain, method of trial. But it was a sufficient recommendation of it to the Conqueror and his warlike countrymen that it was the usage of their native duchy of Normandy.
5. But the last and most important alteration, both in our civil and military polity, was the engrafting on all landed estates—a few only excepted-the fiction of feodal tenure, which drew after it a numerous and oppressive train of servile fruits and appendages, aids, reliefs, primer seisins, wardships, marriages, escheats, and fines for alienation,--the genuine consequences of the maxim then adopted, that all the lands in England were derived from and holden, mediately or immediately, of the crown.
The nation at this period seems to have groaned under as absolute a slavery *419]
as was in the power of a warlike, an *ambitious, and a politic prince to
creato. The consciences of men were enslaved by four ecclesiastics, devoted to a foreign power, and unconnected with the civil state under which they lived, who now imported from Rome for the first time the whole farrago of superstitious novelties which had been engendered by the blindness and corryption of the times between the first mission of Augustin the monk and the Norman conquest, such as transubstantiation, purgatory, communion in one kind, and the worship of saints and images, not forgetting the universal supremacy and dogmatical infallibility of the holy see. The laws, too, as well as the prayers, were administered in an unknown tongue. The antient trial by jury gave way to the impious decision by battel. The forest-laws totally restrained all rural pleasures and manly recreations. And in cities and town the case was no better, all company being obliged to disperse, and fire and candle to be extinguished, by eight at night, at the sound of the melancholy curfeu. The ultimate property of all lands, and a considerable share of the present profits, were vested in the king, or by him granted out to his Norman farourites, whó, by a gradual progression of slavery, were absolute vassals to