FRAGMENT.--AN ESSAY TOWARDS AN HISTORY OF THE LAWS OF ENGLAND.
There is scarce any object of curiosity more rational than the origin,
the progress, and the various revolutions of human laws. Political and
military relations are for the greater part accounts of the ambition and
violence of mankind: this is an history of their justice. And surely
there cannot be a more pleasing speculation than to trace the advances
of men in an attempt to imitate the Supreme Ruler in one of the most
glorious of His attributes, and to attend them in the exercise of a
prerogative which it is wonderful to find intrusted to the management of
so weak a being. In such an inquiry we shall, indeed, frequently see
great instances of this frailty; but at the same time we shall behold
such noble efforts of wisdom and equity as seem fully to justify the
reasonableness of that extraordinary disposition by which men, in one
form or other, have been always put under the dominion of creatures like
themselves. For what can be more instructive than to search out the
first obscure and scanty fountains of that jurisprudence which now
waters and enriches whole nations with so abundant and copious a
flood,--to observe the first principles of RIGHT springing up, involved
in superstition and polluted with violence, until by length of time and
favorable circumstances it has worked itself into clearness: the laws
sometimes lost and trodden down in the confusion of wars and tumults,
and sometimes overruled by the hand of power; then, victorious over
tyranny, growing stronger, clearer, and more decisive by the violence
they had suffered; enriched even by those foreign conquests which
threatened their entire destruction; softened and mellowed by peace and
religion; improved and exalted by commerce, by social intercourse, and
that great opener of the mind, ingenuous science?
These certainly were great encouragements to the study of historical
jurisprudence, particularly of our own. Nor was there a want of
materials or help for such an undertaking. Yet we have had few attempts
in that province. Lord Chief Justice Hale's History of the Common Law
is, I think, the only one, good or bad, which we have. But with all the
deference justly due to so great a name, we may venture to assert that
this performance, though not without merit, is wholly unworthy of the
high reputation of its author. The sources of our English law are not
well, nor indeed fairly, laid open; the ancient judicial proceedings are
touched in a very slight and transient manner; and the great changes and
remarkable revolutions in the law, together with their causes, down to
his time, are scarcely mentioned.
Of this defect I think there were two principal causes. The first, a
persuasion, hardly to be eradicated from the minds of our lawyers, that
the English law has continued very much in the same state from an
antiquity to which they will allow hardly any sort of bounds. The second
is, that it was formed and grew up among ourselves; that it is in every
respect peculiar to this island; and that, if the Roman or any foreign
laws attempted to intrude into its composition, it has always had vigor
enough to shake them off, and return to the purity of its primitive
constitution.
These opinions are flattering to national vanity and professional
narrowness; and though they involved those that supported them in the
most glaring contradictions, and some absurdities even too ridiculous to
mention, we have always been, and in a great measure still are,
extremely tenacious of them. If these principles are admitted, the
history of the law must in a great measure be deemed, superfluous. For
to what purpose is a history of a law of which it is impossible to trace
the beginning, and which during its continuance has admitted no
essential changes? Or why should we search foreign laws or histories for
explanation or ornament of that which is wholly our own, and by which we
are effectually distinguished from all other countries? Thus the law has
been confined, and drawn up into a narrow and inglorious study, and that
which should be the leading science in every well-ordered commonwealth
remained in all the barbarism of the rudest times, whilst every other
advanced by rapid steps to the highest improvement both in solidity and
elegance; insomuch that the study of our jurisprudence presented to
liberal and well-educated minds, even in the best authors, hardly
anything but barbarous terms, ill explained, a coarse, but not a plain
expression, an indigested method, and a species of reasoning the very
refuse of the schools, which deduced the spirit of the law, not from
original justice or legal conformity, but from causes foreign to it and
altogether whimsical. Young men were sent away with an incurable, and,
if we regard the manner of handling rather than the substance, a very
well-founded disgust. The famous antiquary, Spelman, though no man was
better formed for the most laborious pursuits, in the beginning deserted
the study of the law in despair, though he returned to it again when a
more confirmed age and a strong desire of knowledge enabled him to
wrestle with every difficulty.
The opinions which have drawn the law into such narrowness, as they are
weakly founded, so they are very easily refuted. With regard to that
species of eternity which they attribute to the English law, to say
nothing of the manifest contradictions in which those involve themselves
who praise it for the frequent improvements it has received, and at the
same time value it for having remained without any change in all the
revolutions of government, it is obvious, on the very first view of the
Saxon laws, that we have entirely altered the whole frame of our
jurisprudence since the Conquest. Hardly can we find in these old
collections a single title which is law at this day; and one may venture
to assert, without much hazard, that, if there were at present a nation
governed by the Saxon laws, we should find it difficult to point out
another so entirely different from everything we now see established in
England.
This is a truth which requires less sagacity than candor to discover.
The spirit of party, which has misled us in so many other particulars,
has tended greatly to perplex us in this matter. For as the advocates
for prerogative would, by a very absurd consequence drawn from the
Norman Conquest, have made all our national rights and liberties to have
arisen from the grants, and therefore to be revocable at the will of the
sovereign, so, on the other hand, those who maintained the cause of
liberty did not support it upon more solid principles. They would hear
of no beginning to any of our privileges, orders, or laws, and, in
order to gain them a reverence, would prove that they were as old as the
nation; and to support that opinion, they put to the torture all the
ancient monuments. Others, pushing things further, have offered a still
greater violence to them. N. Bacon, in order to establish his
republican, system, has so distorted all the evidence he has produced,
concealed so many things of consequence, and thrown such false colors
upon the whole argument, that I know no book so likely to mislead the
reader in our antiquities, if yet it retains any authority. In reality,
that ancient Constitution and those Saxon laws make little or nothing
for any of our modern parties, and, when fairly laid open, will be found
to compose such a system as none, I believe, would think it either
practicable or desirable to establish. I am sensible that nothing has
been, a larger theme of panegyric with, all our writers on politics and
history than the Anglo-Saxon government; and it is impossible not to
conceive an high, opinion of its laws, if we rather consider what is
said of them than what they visibly are. These monuments of our pristine
rudeness still subsist; and they stand out of themselves indisputable
evidence to confute the popular declamations of those writers who would
persuade us that the crude institutions of an unlettered people had
reached a perfection which the united efforts of inquiry, experience,
learning, and necessity have not been able to attain in many ages.
But the truth is, the present system of our laws, like our language and
our learning, is a very mixed and heterogeneous mass: in some respects
our own; in more borrowed from the policy of foreign, nations, and
compounded, altered, and variously modified, according to the various
necessities which the manners, the religion, and the commerce of the
people have at different times imposed. It is our business, in some
measure, to follow and point out these changes and improvements: a task
we undertake, not from any ability for the greatness of such a work, but
purely to give some short and plain account of these matters to the very
ignorant.
The Law of the Romans seems utterly to have expired in this island
together with their empire, and that, too, before the Saxon
establishment. The Anglo-Saxons came into England as conquerors. They
brought their own customs with them, and doubtless did not take laws
from, but imposed theirs upon, the people they had vanquished. These
customs of the conquering nation were without question the same, for the
greater part, they had observed before their migration from Germany. The
best image we have of them is to be found in Tacitus. But there is
reason to believe that some changes were made suitable to the
circumstances of their new settlement, and to the change their
constitution must have undergone by adopting a kingly government, not
indeed with unlimited sway, but certainly with greater powers than their
leaders possessed whilst they continued in Germany. However, we know
very little of what was done in these respects until their conversion to
Christianity, a revolution which made still more essential changes in
their manners and government. For immediately after the conversion of
Ethelbert, King of Kent, the missionaries, who had introduced the use of
letters, and came from Rome full of the ideas of the Roman civil
establishment, must have observed the gross defect arising from a want
of written and permanent laws. The king,[83] from their report of the
Roman method, and in imitation of it, first digested the most material
customs of this kingdom into writing, without having adopted anything
from the Roman law, and only adding some regulations for the support and
encouragement of the new religion. These laws still exist, and strongly
mark the extreme simplicity of manners and poverty of conception of the
legislators. They are written in the English of that time; and, indeed,
all the laws of the Anglo-Saxons continued in that language down to the
Norman Conquest. This was different from the method of the other
Northern nations, who made use only of the Latin language in all their
codes. And I take the difference to have arisen from this. At the time
when the Visigoths, the Lombards, the Franks, and the other Northern
nations on the continent compiled their laws, the provincial Romans were
very numerous amongst them, or, indeed, composed the body of the people.
The Latin, language was yet far from extinguished; so that, as the
greatest part of those who could write were Romans, they found it
difficult to adapt their characters to these rough Northern tongues, and
therefore chose to write in Latin, which, though not the language of the
legislator, could not be very incommodious, as they could never fail of
interpreters; and for this reason, not only their laws, but all their
ordinary transactions, were written in that language. But in England,
the Roman name and language having entirely vanished in the seventh
century, the missionary monks were obliged to contend with the
difficulty, and to adapt foreign characters to the English language;
else none but a very few could possibly have drawn any advantage from
the things they meant to record. And to this it was owing that many,
even the ecclesiastical constitutions, and not a few of the ordinary
evidences of the land, were written in the language of the country.
This example of written laws being given by Ethelbert, it was followed
by his successors, Edric and Lothaire. The next legislator amongst the
English, was Ina, King of the West Saxons, a prince famous in his time
for his wisdom and his piety. His laws, as well as those of the
above-mentioned princes, still subsist. But we must always remember that
very few of these laws contained any new regulation, but were rather
designed to affirm their ancient customs, and to preserve and fix them;
and accordingly they are all extremely rude and imperfect. We read of a
collection of laws by Offa, King of the Mercians; but they have been
long since lost.
The Anglo-Saxon laws, by universal consent of all writers, owe more to
the care and sagacity of Alfred than of any of the ancient kings. In the
midst of a cruel war, of which he did not see the beginning nor live to
see the end, he did more for the establishment of order and justice than
any other prince has been known to do in the profoundest peace. Many of
the institutions attributed to him undoubtedly were not of his
establishment: this shall be shown, when we come to treat more minutely
of the institutions. But it is clear that he raised, as it were, from
the ashes, and put new life and vigor into the whole body of the law,
almost lost and forgotten in the ravages of the Danish war; so that,
having revived, and in all likelihood improved, several ancient
national regulations, he has passed for their author, with a reputation
perhaps more just than if he had invented them. In the prologue which he
wrote to his own code, he informs us that he collected there whatever
appeared to him most valuable in the laws of Ina and Offa and others of
his progenitors, omitting what he thought wrong in itself or not adapted
to the time; and he seems to have done this with no small judgment.
The princes who succeeded him, having by his labors enjoyed more repose,
turned their minds to the improvement of the law; and there are few of
them who have not left us some collection more or less complete.
When the Danes had established their empire, they showed themselves no
less solicitous than the English to collect and enforce the laws:
seeming desirous to repair all the injuries they had formerly committed
against them. The code of Canute the Great is one of the most moderate,
equitable, and full, of any of the old collections. There was no
material change, if any at all, made in their general system by the
Danish conquest. They were of the original country of the Saxons, and
could not have differed from them in the groundwork of their policy. It
appears by the league between Alfred and Guthrum, that the Danes took
their laws from the English, and accepted them as a favor. They were
more newly come out of the Northern barbarism, and wanted the
regulations necessary to a civil society. But under Canute the English
law received considerable improvement. Many of the old English customs,
which, as that monarch justly observes, were truly odious, were
abrogated; and, indeed, that code is the last we have that belongs to
the period before the Conquest. That monument called the Laws of Edward
the Confessor is certainly of a much later date; and what is
extraordinary, though the historians after the Conquest continually
speak of the Laws of King Edward, it does not appear that he ever made a
collection, or that any such laws existed at that time. It appears by
the preface to the Laws of St. Edward, that these written constitutions
were continually falling into disuse. Although these laws had
undoubtedly their authority, it was, notwithstanding, by traditionary
customs that the people were for the most part governed, which, as they
varied somewhat in different provinces, were distinguished accordingly
by the names of the West Saxon, the Mercian, and the Danish Law; but
this produced no very remarkable inconvenience, as those customs seemed
to differ from each other, and from the written laws, rather in the
quantity and nature of their pecuniary mulcts than in anything
essential.
If we take a review of these ancient constitutions, we shall observe
that their sanctions are mostly confined to the following objects.
1st. The preservation of the peace. This is one of the largest titles;
and it shows the ancient Saxons to have been a people extremely prone to
quarrelling and violence. In some cases the law ventures only to put
this disposition under regulations:[84] prescribing that no man shall
fight with another until he has first called him to justice in a legal
way; and then lays down the terms under which he may proceed to
hostilities. The other less premeditated quarrels, in meetings for
drinking or business, were considered as more or less heinous, according
to the rank of the person in whose house the dispute happened, or, to
speak the language of that time, whose peace they had violated.
2d. In proportioning the pecuniary mulcts imposed by them for all, even
the highest crimes, according to the dignify of the person injured, and
to the quantity of the offence. For this purpose they classed the people
with great regularity and exactness, both in the ecclesiastic and the
secular lines, adjusting with great care the ecclesiastical to the
secular dignities; and they not only estimated each man's life according
to his quality, but they set a value upon every limb and member, down
even to teeth, hair, and nails; and these are the particulars in which
their laws are most accurate and best defined.
3d. In settling the rules and ceremonies of their oaths, their
purgations, and the whole order and process of their superstitious
justice: for by these methods they seem to have decided all
controversies.
4th. In regulating the several fraternities of Frank-pledges, by which
all the people were naturally bound to their good behavior to one
another and to their superiors; in all which they were excessively
strict, in order to supply by the severity of this police the extreme
laxity and imperfection of their laws, and the weak and precarious
authority of their kings and magistrates.
These, with some regulations for payment of tithes and Church dues, and
for the discovery and pursuit of stealers of cattle, comprise almost all
the titles deserving notice in the Saxon laws. In those laws there are
frequently to be observed particular institutions, well and prudently
framed; but there is no appearance of a regular, consistent, and stable
jurisprudence. However, it is pleasing to observe something of equity
and distinction gradually insinuating itself into these unformed
materials, and some transient flashes of light striking across the gloom
which prepared for the full day that shone out afterwards. The clergy,
who kept up a constant communication with Rome, and were in effect the
Saxon legislators, could not avoid gathering some informations from a
law which never was perfectly extinguished in that part of the world.
Accordingly we find one of its principles had strayed hither so early as
the time of Edric and Lothaire.[85] There are two maxims[86] of civil
law in their proper terms in the code of Canute the Great, who made and
authorized that collection after his pilgrimage to Rome; and at this
time, it is remarkable, we find the institutions of other nations
imitated. In the same collection there is an express reference to the
laws of the Werini. From hence it is plain that the resemblance between
the polity of the several Northern nations did not only arise from their
common original, but also from their adopting, in some cases, the
constitutions of those amongst them who were most remarkable for their
wisdom.
In this state the law continued until the Norman Conquest. But we see
that even before that period the English law began to be improved by
taking in foreign learning; we see the canons of several councils mixed
indiscriminately with the civil constitutions; and, indeed, the
greatest part of the reasoning and equity to be found in them seems to
be derived from that source.
Hitherto we have observed the progress of the Saxon laws, which,
conformably to their manners, were rude and simple,--agreeably to their
confined situation, very narrow,--and though in some degree, yet not
very considerably, improved by foreign communication. However, we can
plainly discern its three capital sources. First, the ancient
traditionary customs of the North, which, coming upon this and the other
civilized parts of Europe with the impetuosity of a conquest, bore down
all the ancient establishments, and, by being suited to the genius of
the people, formed, as it were, the great body and main stream of the
Saxon laws. The second source was the canons of the Church. As yet,
indeed, they were not reduced into system and a regular form of
jurisprudence; but they were the law of the clergy, and consequently
influenced considerably a people over whom that order had an almost
unbounded authority. They corrected, mitigated, and enriched those rough
Northern institutions; and the clergy having once, bent the stubborn
necks of that people to the yoke of religion, they were the more easily
susceptible of other changes introduced under the same sanction. These
formed the third source,--namely, some parts of the Roman civil law, and
the customs of other German nations. But this source appears to have
been much the smallest of the three, and was yet inconsiderable.
The Norman Conquest is the great era of our laws. At this time the
English jurisprudence, which, had hitherto continued a poor stream, fed
from some few, and those scanty sources, was all at once, as from a
mighty flood, replenished with a vast body of foreign learning, by
which, indeed, it might be said rather to have been increased than much
improved: for this foreign law, being imposed, not adopted, for a long
time bore strong appearances of that violence by which it had been first
introduced. All our monuments bear a strong evidence to this change. New
courts of justice, new names and powers of officers, in a word, a new
tenure of land as well as new possessors of it, took place. Even the
language of public proceedings was in a great measure changed.
FOOTNOTES:
[83] Decreta illi judiciorum juxta exempla Romanorum cum consilio
sapientium constituit.--Beda, Eccl. Hist. Lib. II. c. 5.
[84] Leg. Ælfred. 38, De Pugna.
[85] Justum est ut proles matrem sequatur.--Edric and Lothaire.
[86] Negatio potior est affirmatione. Possessio proprior est habenti
quam deinceps repetenti.--L. Cnut.
END OF VOL. VII.