government, not to support his own. A most striking contrast presents itself between the conduct and fortune of John, and his adversary Philip. Philip came to the crown when many of the provinces of France, by being in the hands of too powerful vassals, were in a manner dismembered from the kingdom: the royal authority was very low in what remained. He re-united to the crown a country as valuable as what belonged to it before; he reduced his subjects of all orders to a stricter obedience than they had given to his predecessors. He withstood the papal usurpation, and yet used it as an instrument in his designs; whilst John, who inherited a great territory and an entire prerogative, by his vices and weakness, gave up his independency to the pope, his prerogative to his subjects, and a large part of his dominions to the king of France.

CHAPTER IX.

FRAGMENT.-AN ESSAY TOWARDS AN HIS

TORY 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 entrusted 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 favourable circumstances, it has worked itself into clearness :

the laws, sometimes lost and trodden down in the confusion of wars and tumults, and sometimes over-ruled 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?

But

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. 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 antient 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 vigour 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 welleducated minds, even in the best authors, hardly any thing 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 pation governed by the Saxon laws, we should und it difficult to point out another so entirely different from every thing we now see established in England.

This is a truth which requires less sagacity than candour 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 antient 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 colours 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 antient 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 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 a 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.

in more,

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; 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

his labours 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 favour. 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 Confessour, 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 any thing essential.

If we take a review of these antient 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 antient Saxons to have been a people extremely prone to quarrelling and violence. In some cases the law ventures only to put this disposi

tion under regulations; 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 dignity 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 controversy.

4th. In regulating the several fraternities of frankpledges, by all which the people were naturally bound to their good behaviour to one another, and to their superiours; 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

* Leg. Alfred. 39, de pugna.

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. There are two maximst 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 among them, who were most remark able 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 consider ably, improved by foreign communication. However, we can plainly discern its three capital sources:-First, the antient traditionary customs of the north, which, coming upon this and the other civilized parts of Europe with

Justum est ut proles matrem sequatur. Edric and Lothair.

Negatio potior est affirmatione. Possessio propior est habenti quam deinceps repetenti. Canut.

the impetuosity of a conquest, bore down all the antient 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 a 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 jurispru dence, which hitherto had 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 grest measure changed.