The
opinions
which have drawn the law into such
narrowness, as they are weakly founded, so they are
vary easily refuted.
narrowness, as they are weakly founded, so they are
vary easily refuted.
Edmund Burke
and in reducing to a certainty the reliefs which the king's tenants paid on succeeding to their estate according toi their rank; and, secondly, in taking off some of the!
burdens which had been laid on marriage, whether
compulsory or restrictive, and thereby preventing that
shameful market which had been made in the persons of heirs, and the most sacred things amongst
mankind.
There were other provisions made in the Great
Charter that went deeper than the feudal tenure,
and affected the whole body of the civil government.
A great part of the king's revenue then consisted
in the fines and amercements which were imposed
in his courts. A fine was paid there for liberty to,
commence or to conclude a suit. The punishment.
of offences by fine was discretionary; and this discretionary power had been very much abused. But
by Magna Charta things were so ordered, that a delinquent might be punished, but not ruined, by a
fine or amercement; because the degree of his offence, and the rank he held, were to be taken into
consideration. His freehold, his merchandise, and.
VOL. VII. 30
? ? ? ? 466 ABRIDGMENT OF ENGLISIH HISTORY.
those instruments by which he obtained his livelihood were made sacred from such impositions.
A more grand reform was made with regard to
the administration of justice. The kings in those
days seldom resided long in one place, and their
courts followed their persons. This erratic justice
must have been productive of infinite inconvenience
to the litigants. It was now provided that civil
suits, called Common Pleas, should be fixed to some
certain place. Thus one branch of jurisdiction was
separated from the king's court, and detached from
his person. They had not yet come to that maturity of jurisprudence as to think this might be
made to extend to criminal law also, and that the
latter was an object of still greater importance. But
even the former may be considered as a great revolution. A tribunal, a creature of mere law, independent of personal power, was established; and this separation of a king's authority from his person was
a matter of vast consequence towards introducing
ideas of freedom, and confirming the sacredness and
majesty of laws.
But the grand article, and that which cemented
all the parts of the fabric of liberty, was this, --:that " no freeman shall be taken, or imprisoned, or
disseized, or outlawed, or banished, or in any wise
destroyed, but by judgment of his peers. "
There is another article of nearly as much consequence as the former, considering the state of the
nation at that time, by which it is provided that the
barons shall grant to their tenants the same liberties
which they had stipulated for themselves. This prevented the kingdom from degenerating into the worst
imaginable government, a feudal aristocracy. The
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 467
English barons were not in the condition of those
great princes who had made the French monarchy
so low in the preceding century, or like those who
reduced the Imperial power to a name. They had
been brought to moderate bounds by the. policy of
the first and second Henrys, and were not in a condition to set up for petty sovereigns by an usurpation
equally detrimental to the crown and the people.
They were able to act only in confederacy; and this
common cause made it necessary to consult the common good, and to- study popularity by the equity of
their proceedings. This was a very happy circumstance to the growing liberty.
These concessions were so just and reasonable, that,
if we except the force, no prince could think himself
wronged in making them. But to secure the observance of these articles, regulations were made, which,
whilst they were regarded, scarcely left a shadow
of regal power. And the barons could think of no
measures for securing their freedom, but such as
were inconsistent with monarchy. A council of
twenty-five barons was to be chosen by their own
body, without any concurrence of the king, in order
to hear and determine upon all complaints concerning the breach of the charter; and as these charters
extended to almost every part of government, a tribunal of his enemies was set up who might pass judgment on all his actions. And that force might not be wanting to execute the judgments of this new
tribunal, the king agreed to issue his own writs to
all persons, to oblige them to take an oath of obedience to the twenty-five barons, who were empowered
to distress him by seizure of his lands and castles,
and by every possible method, until the grievance
? ? ? ? 468 ABRIDGMENT OF ENGLISH HISTORY.
complained of was redressed according to their pleasure: hit own person and his family were alone exempted from violence.
By these last concessions, it must be confessed:, he
was effectually dethroned, and with all the circumstances of indignity which could be imagined. He
had refused to govern as a lawful prince, and he
saw himself deprived of even his legal authority.
He became of no sort of consequence in his kingdom; he was held in universal contempt and derision; he fell into a profound melancholy. It was
in vain that he had recourse to the Pope, whose
power he had found sufficient to reduce, but not
to support him. The censures of the Holy See,
which had been fulminated at his desire, were little
regarded by the barons, or even by the clergy, supported in this resistance by the firmness of their
archbishop, who acted with great vigor in the cause
of the barons, and even delivered into their hands
the fortress of Rochester, one of the most important
places in the kingdom. After much meditation the
king at last resolved upon a measure of the most extreme kind, extorted by shame, revenge, and despair,
but, considering the disposition of the time, much
the most effectual that could be chosen. He dispatched emissaries into France, into the Low Countries and Germany, to raise men for his service. He had recourse to the same measures to bring his kingdom to obedience which his predecessor, William, had
used to conquer it. He promised to the adventurers
in his quarrel the lands of the rebellious barons, and
it is said even empowered his agents to make charters of the estates of several particulars. The ut
most success attended these negotiations in an age
? ? ? ? ABRIDGMENT OF' -ENGLISH HISTORY. 469
when Europe abounded:with a warlike and poor nobility, with younger brothers, for whom there was
no provision in regular armies, who seldom entered
into the Church, and never applied'themselves to
commerce, and when every considerable family was
surrounded by an innumerable multitude of retainers and dependants, idle, and greedy of war and pillage. The Crusade had universally diffused a spirit of adventure; and if any adventure had the Pope's
approbation, it was sure to have a number of followers.
John waited the effect of his measures. He kept
up no longer the solemn mockery of a court, in
which a degraded king must always have been the
lowest object. He retired to the Isle of Wight: his
only companions were sailors and fishermen, among
whom he became extremely popular. Never was he
more to be dreaded than in this sullen retreat, whilst
the barons amused themselves by idle jests and vain
conjectures on his conduct. . Such was the strange
want of foresight in that barbarous age, and such
the total neglect of design in their affairs, that the
barons, when they had got the charter, which was
weakened even by the force by which it was obtained
and the great power which it granted, set no watch
upon the king, seemed to have no intelligence of
the great and open machinations which were carrying on against them, and had made no sort of dispositions for their defence. They spent their time in tournaments and bear-baitings, and other diversions suited to the fierce rusticity of their manners.
At length the storm broke forth, and found them utterly unprovided. The Papal excommunication, the
indignation of their prince, and a vast army of law
? ? ? ? 470 ABRIDGMENT OF ENGLISH HISTORY.
less and bold adventurers were poured down at once
upon their heads. Such numbers were engaged ill
this enterprise that forty thousand are said to have
perished at sea. Yet a number still remained sufficient to compose two great armies, one of which,
with the enraged king at its head; ravaged without
mercy the North of England, whilst the other turned
all the West to a like scene of blood and desolation.
The memory of Stephen's wars was renewed, with
every image of horror, misery, and crime. The barons, dispersed and trembling in their castles, waited
who should fall the next victim. They had no army
able to keep the field. The Archbishop, on whom
they had great reliance, was suspended from his functions. There was no hope even from submission:
the king could not fulfil his engagements to his foreign troops at a cheaper rate than the utter ruin of
his barons.
In these circumstances of despair they resolved to
have recourse to Philip, the ancient enemy of their
country. Throwing off all allegiance to John, they
agreed to accept Louis, the son of that monarch, as
their king. Philip had once more an opportunity of
bringing the crown of England into his family, and
he readily embraced it. He immediately
sent his son into England with seven hundred ships, and slighted the menaces and excommunications of the Pope, to attain the same object for which he had formerly armed to support and execute them. The affairs of the barons assumed quite
a new face by this reinforcement, and their rise was
as sudden and striking as their fall. The foreign
army of King John, without discipline, pay, or order,
ruined and wasted in the midst of its successes, was
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 471
little able to oppose the natural force of the country, called forth and recruited by so considerable a
succor. Besides, the French troops who served under John, and made a great part of his army, immediately went over to the enemy, unwilling to serve
against their sovereign in a cause which now began
to look desperate. t'he son of the King of France
was acknowledged in London, and received the homage of all ranks of men. John, thus deserted, had
no other ally than the Pope, who indeed served him
to the utmost of his power, but with arms to which
the circumstances of the time alone can give any
force. He excommunicated Louis and his adherents;
he laid England under an interdict; he threatened
the King of France himself with the same sentence:
but Philip continued firm, and the interdict had little effect in England. Cardinal Langton, by his remarkable address, by his interest in the Sacred College, and his prudent submissions, had been restored to the exercise of his office; but, steady to the cause
he had first espoused, he made use of the recovery
of his authority to carry on his old designs against
the king and the Pope. He celebrated divine service in spite of the interdict, and by his influence
and example taught others to despise it. The king,
thus deserted, and now only solicitous for his personal safety, rambled, or rather fled, from place to
place, at the head of a small party. He was in great
danger in passing a marsh in Norfolk, in which he
lost the greatest part of his baggage, and his most
valuable effects. With difficulty he escaped to the
monastery of Swineshead, where, violently agitated
by grief and disappointments, his late fatigue and
the use of an improper diet threw him into a fever,
? ? ? ? 472 ABRIDGMENT OF ENGLISH HISTORY.
of which he died in a few days at Newark, not without suspicion of poison, after a reign, or rather a
struggle to. reign, for eighteen years, the most turbulent and calamitous both to king and people of
any that are recorded in the English history.
It may not be improper to pause here for a few
moments, and to consider a little more minutely the
causes which had produced the grand revolution
in favor of liberty by which this reign was distinguished, and to draw all the circumstances which
led to this remarkable event into a single point of
view. Since the death of Edward the Confessor only
two princes succeeded to the crown upon undisputed titles. William the Conqueror established his by
force of arms. His successors were obliged to court
the people by yielding. many of the possessions and
many of the prerogatives of the crown; but they
supported a dubious title by a vigorous administration, and recovered by their policy, in the course of
their reign, what the necessity of their affairs obliged
them to relinquish for the establishment of their power. Thus was the nation kept continually fluctuating between freedom and servitude. But the principles of freedom were predominant, though the thing itself was not yet fully formed. The continual struggle of the clergy for the ecclesiastical liberties laid
open at the same time the natural claims of the people; and the clergy were obliged to show some respect for those claims, in order to add strength to
their own party. The concessions which Henry the
Second made to the ecclesiastics on the death of
Becket, which were afterwards confirmed by Richard
the First, gave a grievous blow to the authority of
the crown; as thereby an order of so much power
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 473
and influence triumphed over it in many essential
points. The latter of these princes brought it very
low by the whole tenor of his conduct. Always
abroad, the royal authority was felt in its full. vigor,
without being supported by the dignity or softened
by the graciousness of the royal presence. Always
in war, he considered his dominions only as a resource for his armies. The demesnes of the crown were squandered. Every office in the state was made
vile by being sold. Excessive grants, followed by
violent and arbitrary resumptions, tore to pieces the
whole contexture of the government. The civil tumults which arose in that king's absence showed that the king's lieutenants at least might be disobeyed with impunity. Then came John to the crown. The arbitrary taxes which he imposed very
early in his reign, which offended even more by the
improper use made of them than their irregularity,
irritated the people extremely, and joined with all
the preceding causes to make his government contemptible. Henry the Second, during his contests with the Church, had the address to preserve the
barons in his interests. Afterwards, when the barons
had joined in the rebellion of his children, this wise
prince found means to secure the bishops and ecclesiastics. But John drew upon himself at once the hatred of all orders of his' subjects. His struggle
with the Pope weakened him; his submission to
the Pope weakened him yet more. The loss, of his
foreign territories, besides what he lost along with
them in reputation, made him entirely dependent
upon England: whereas his predecessors made one
part of their territories subservient to the preservation of their authority in another, where it was en
? ? ? ? 474 ABRIDGMENT OF ENGLISH HISTORY.
dangered. Add to all these causes the personal character of the king, in which there was nothing uniform
or sincere, and which introduced the like unsteadiness into all his government. He was indolent, yet
restless, in his disposition; fond of working by violent methods, without any vigor; boastful, but continually betraying his fears; showing on all occasions such a desire of peace as hindered him from ever enjoying it. Having no spirit of order, he never looked forward, - content by any temporary expedient to extricate himself from a present difficulty.
Rash, arrogant, perfidious, irreligious, unquiet, he
made a tolerable head of a party, but a bad king, and
had talents fit to disturb another's 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. reunited 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 desighs: 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.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 475
CHAPTER IX.
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
? ? ? ? 476 ABRIDGMENT OF ENGLISH HISTORY.
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.
? ? ? ? . ABRIDGMENT OF ENGLISH HISTORY. 477
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
impussible 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
? ? ? ? 478 ABRIDGMENT OF ENGLISH HISTORY.
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
vary 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,
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 479
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, ac
? ? ? ? 480 ABRIDGMENT OF ENGLISH HISTORY.
cording 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
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 481
of written and permanent laws. -;5The king,* 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 onlyi 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: amolgst 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 legislators 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. 3"' But in
England, the Roman name and language having entirely vanished in the seventh century, the missionzry monks were obliged- to contend with: the diffi* Decreta illi judiciorum juxta exempla Romanorum cum con. silio sapiontium constituit. -- Beda, Eccl. Hist. Lib. II. c. 5.
VOL. VIl. 31
? ? ? ? 482 ABRIDGMENT OF ENGLISH HISTORY.
culty, and to adapt foreign characters to the Englishl
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 byj 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 lbeen 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,
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. '- 483.
having revived, and in all likelihood improved, sev --
eral 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, tilrned 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
ally 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,
? ? ? ? 4847 ABRIDGMENT. OF'ENGLISH HISTORY.
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 confilled 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: * 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
* Leg. AElfred. 38, De Pugna.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 485
meetings for drinking: or businessj 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 controversies. 4th. In regulating the several fraternities of Frankpledges, 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
? ? ? ? 486 ABRIDGMENT OF ENGLISH HISTORY.
there are frequently to be observed particular insti-'
tutions, well and prudently framed; but there is noappearance 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. * There are two maxims t 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 constitu* Justum est ut proles matrem sequatur. - Edric and Lothaire.
t Negatio potior est affirmatione. Possessio proprior est habenti
quam deinceps repetenti. - L. Cnut.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 487
tions; 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, coining 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,
? ? ? ? 488 ABRIDG3MENT OF ENGLISH HISTORY.
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. END OF VOL. VII.
? ? ? The works of the Right Honorable Edmund Burke.
Burke, Edmund, 1729-1797.
Boston : Little, Brown, and company, 1869.
http://hdl. handle. net/2027/miun. aba1206. 0008. 001
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? ? ? THE
WORKS
OF
THE RIGHT HONORABLE EDMUND BURKE.
THIRD EDITION.
VOL. VIII. .
burdens which had been laid on marriage, whether
compulsory or restrictive, and thereby preventing that
shameful market which had been made in the persons of heirs, and the most sacred things amongst
mankind.
There were other provisions made in the Great
Charter that went deeper than the feudal tenure,
and affected the whole body of the civil government.
A great part of the king's revenue then consisted
in the fines and amercements which were imposed
in his courts. A fine was paid there for liberty to,
commence or to conclude a suit. The punishment.
of offences by fine was discretionary; and this discretionary power had been very much abused. But
by Magna Charta things were so ordered, that a delinquent might be punished, but not ruined, by a
fine or amercement; because the degree of his offence, and the rank he held, were to be taken into
consideration. His freehold, his merchandise, and.
VOL. VII. 30
? ? ? ? 466 ABRIDGMENT OF ENGLISIH HISTORY.
those instruments by which he obtained his livelihood were made sacred from such impositions.
A more grand reform was made with regard to
the administration of justice. The kings in those
days seldom resided long in one place, and their
courts followed their persons. This erratic justice
must have been productive of infinite inconvenience
to the litigants. It was now provided that civil
suits, called Common Pleas, should be fixed to some
certain place. Thus one branch of jurisdiction was
separated from the king's court, and detached from
his person. They had not yet come to that maturity of jurisprudence as to think this might be
made to extend to criminal law also, and that the
latter was an object of still greater importance. But
even the former may be considered as a great revolution. A tribunal, a creature of mere law, independent of personal power, was established; and this separation of a king's authority from his person was
a matter of vast consequence towards introducing
ideas of freedom, and confirming the sacredness and
majesty of laws.
But the grand article, and that which cemented
all the parts of the fabric of liberty, was this, --:that " no freeman shall be taken, or imprisoned, or
disseized, or outlawed, or banished, or in any wise
destroyed, but by judgment of his peers. "
There is another article of nearly as much consequence as the former, considering the state of the
nation at that time, by which it is provided that the
barons shall grant to their tenants the same liberties
which they had stipulated for themselves. This prevented the kingdom from degenerating into the worst
imaginable government, a feudal aristocracy. The
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 467
English barons were not in the condition of those
great princes who had made the French monarchy
so low in the preceding century, or like those who
reduced the Imperial power to a name. They had
been brought to moderate bounds by the. policy of
the first and second Henrys, and were not in a condition to set up for petty sovereigns by an usurpation
equally detrimental to the crown and the people.
They were able to act only in confederacy; and this
common cause made it necessary to consult the common good, and to- study popularity by the equity of
their proceedings. This was a very happy circumstance to the growing liberty.
These concessions were so just and reasonable, that,
if we except the force, no prince could think himself
wronged in making them. But to secure the observance of these articles, regulations were made, which,
whilst they were regarded, scarcely left a shadow
of regal power. And the barons could think of no
measures for securing their freedom, but such as
were inconsistent with monarchy. A council of
twenty-five barons was to be chosen by their own
body, without any concurrence of the king, in order
to hear and determine upon all complaints concerning the breach of the charter; and as these charters
extended to almost every part of government, a tribunal of his enemies was set up who might pass judgment on all his actions. And that force might not be wanting to execute the judgments of this new
tribunal, the king agreed to issue his own writs to
all persons, to oblige them to take an oath of obedience to the twenty-five barons, who were empowered
to distress him by seizure of his lands and castles,
and by every possible method, until the grievance
? ? ? ? 468 ABRIDGMENT OF ENGLISH HISTORY.
complained of was redressed according to their pleasure: hit own person and his family were alone exempted from violence.
By these last concessions, it must be confessed:, he
was effectually dethroned, and with all the circumstances of indignity which could be imagined. He
had refused to govern as a lawful prince, and he
saw himself deprived of even his legal authority.
He became of no sort of consequence in his kingdom; he was held in universal contempt and derision; he fell into a profound melancholy. It was
in vain that he had recourse to the Pope, whose
power he had found sufficient to reduce, but not
to support him. The censures of the Holy See,
which had been fulminated at his desire, were little
regarded by the barons, or even by the clergy, supported in this resistance by the firmness of their
archbishop, who acted with great vigor in the cause
of the barons, and even delivered into their hands
the fortress of Rochester, one of the most important
places in the kingdom. After much meditation the
king at last resolved upon a measure of the most extreme kind, extorted by shame, revenge, and despair,
but, considering the disposition of the time, much
the most effectual that could be chosen. He dispatched emissaries into France, into the Low Countries and Germany, to raise men for his service. He had recourse to the same measures to bring his kingdom to obedience which his predecessor, William, had
used to conquer it. He promised to the adventurers
in his quarrel the lands of the rebellious barons, and
it is said even empowered his agents to make charters of the estates of several particulars. The ut
most success attended these negotiations in an age
? ? ? ? ABRIDGMENT OF' -ENGLISH HISTORY. 469
when Europe abounded:with a warlike and poor nobility, with younger brothers, for whom there was
no provision in regular armies, who seldom entered
into the Church, and never applied'themselves to
commerce, and when every considerable family was
surrounded by an innumerable multitude of retainers and dependants, idle, and greedy of war and pillage. The Crusade had universally diffused a spirit of adventure; and if any adventure had the Pope's
approbation, it was sure to have a number of followers.
John waited the effect of his measures. He kept
up no longer the solemn mockery of a court, in
which a degraded king must always have been the
lowest object. He retired to the Isle of Wight: his
only companions were sailors and fishermen, among
whom he became extremely popular. Never was he
more to be dreaded than in this sullen retreat, whilst
the barons amused themselves by idle jests and vain
conjectures on his conduct. . Such was the strange
want of foresight in that barbarous age, and such
the total neglect of design in their affairs, that the
barons, when they had got the charter, which was
weakened even by the force by which it was obtained
and the great power which it granted, set no watch
upon the king, seemed to have no intelligence of
the great and open machinations which were carrying on against them, and had made no sort of dispositions for their defence. They spent their time in tournaments and bear-baitings, and other diversions suited to the fierce rusticity of their manners.
At length the storm broke forth, and found them utterly unprovided. The Papal excommunication, the
indignation of their prince, and a vast army of law
? ? ? ? 470 ABRIDGMENT OF ENGLISH HISTORY.
less and bold adventurers were poured down at once
upon their heads. Such numbers were engaged ill
this enterprise that forty thousand are said to have
perished at sea. Yet a number still remained sufficient to compose two great armies, one of which,
with the enraged king at its head; ravaged without
mercy the North of England, whilst the other turned
all the West to a like scene of blood and desolation.
The memory of Stephen's wars was renewed, with
every image of horror, misery, and crime. The barons, dispersed and trembling in their castles, waited
who should fall the next victim. They had no army
able to keep the field. The Archbishop, on whom
they had great reliance, was suspended from his functions. There was no hope even from submission:
the king could not fulfil his engagements to his foreign troops at a cheaper rate than the utter ruin of
his barons.
In these circumstances of despair they resolved to
have recourse to Philip, the ancient enemy of their
country. Throwing off all allegiance to John, they
agreed to accept Louis, the son of that monarch, as
their king. Philip had once more an opportunity of
bringing the crown of England into his family, and
he readily embraced it. He immediately
sent his son into England with seven hundred ships, and slighted the menaces and excommunications of the Pope, to attain the same object for which he had formerly armed to support and execute them. The affairs of the barons assumed quite
a new face by this reinforcement, and their rise was
as sudden and striking as their fall. The foreign
army of King John, without discipline, pay, or order,
ruined and wasted in the midst of its successes, was
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 471
little able to oppose the natural force of the country, called forth and recruited by so considerable a
succor. Besides, the French troops who served under John, and made a great part of his army, immediately went over to the enemy, unwilling to serve
against their sovereign in a cause which now began
to look desperate. t'he son of the King of France
was acknowledged in London, and received the homage of all ranks of men. John, thus deserted, had
no other ally than the Pope, who indeed served him
to the utmost of his power, but with arms to which
the circumstances of the time alone can give any
force. He excommunicated Louis and his adherents;
he laid England under an interdict; he threatened
the King of France himself with the same sentence:
but Philip continued firm, and the interdict had little effect in England. Cardinal Langton, by his remarkable address, by his interest in the Sacred College, and his prudent submissions, had been restored to the exercise of his office; but, steady to the cause
he had first espoused, he made use of the recovery
of his authority to carry on his old designs against
the king and the Pope. He celebrated divine service in spite of the interdict, and by his influence
and example taught others to despise it. The king,
thus deserted, and now only solicitous for his personal safety, rambled, or rather fled, from place to
place, at the head of a small party. He was in great
danger in passing a marsh in Norfolk, in which he
lost the greatest part of his baggage, and his most
valuable effects. With difficulty he escaped to the
monastery of Swineshead, where, violently agitated
by grief and disappointments, his late fatigue and
the use of an improper diet threw him into a fever,
? ? ? ? 472 ABRIDGMENT OF ENGLISH HISTORY.
of which he died in a few days at Newark, not without suspicion of poison, after a reign, or rather a
struggle to. reign, for eighteen years, the most turbulent and calamitous both to king and people of
any that are recorded in the English history.
It may not be improper to pause here for a few
moments, and to consider a little more minutely the
causes which had produced the grand revolution
in favor of liberty by which this reign was distinguished, and to draw all the circumstances which
led to this remarkable event into a single point of
view. Since the death of Edward the Confessor only
two princes succeeded to the crown upon undisputed titles. William the Conqueror established his by
force of arms. His successors were obliged to court
the people by yielding. many of the possessions and
many of the prerogatives of the crown; but they
supported a dubious title by a vigorous administration, and recovered by their policy, in the course of
their reign, what the necessity of their affairs obliged
them to relinquish for the establishment of their power. Thus was the nation kept continually fluctuating between freedom and servitude. But the principles of freedom were predominant, though the thing itself was not yet fully formed. The continual struggle of the clergy for the ecclesiastical liberties laid
open at the same time the natural claims of the people; and the clergy were obliged to show some respect for those claims, in order to add strength to
their own party. The concessions which Henry the
Second made to the ecclesiastics on the death of
Becket, which were afterwards confirmed by Richard
the First, gave a grievous blow to the authority of
the crown; as thereby an order of so much power
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 473
and influence triumphed over it in many essential
points. The latter of these princes brought it very
low by the whole tenor of his conduct. Always
abroad, the royal authority was felt in its full. vigor,
without being supported by the dignity or softened
by the graciousness of the royal presence. Always
in war, he considered his dominions only as a resource for his armies. The demesnes of the crown were squandered. Every office in the state was made
vile by being sold. Excessive grants, followed by
violent and arbitrary resumptions, tore to pieces the
whole contexture of the government. The civil tumults which arose in that king's absence showed that the king's lieutenants at least might be disobeyed with impunity. Then came John to the crown. The arbitrary taxes which he imposed very
early in his reign, which offended even more by the
improper use made of them than their irregularity,
irritated the people extremely, and joined with all
the preceding causes to make his government contemptible. Henry the Second, during his contests with the Church, had the address to preserve the
barons in his interests. Afterwards, when the barons
had joined in the rebellion of his children, this wise
prince found means to secure the bishops and ecclesiastics. But John drew upon himself at once the hatred of all orders of his' subjects. His struggle
with the Pope weakened him; his submission to
the Pope weakened him yet more. The loss, of his
foreign territories, besides what he lost along with
them in reputation, made him entirely dependent
upon England: whereas his predecessors made one
part of their territories subservient to the preservation of their authority in another, where it was en
? ? ? ? 474 ABRIDGMENT OF ENGLISH HISTORY.
dangered. Add to all these causes the personal character of the king, in which there was nothing uniform
or sincere, and which introduced the like unsteadiness into all his government. He was indolent, yet
restless, in his disposition; fond of working by violent methods, without any vigor; boastful, but continually betraying his fears; showing on all occasions such a desire of peace as hindered him from ever enjoying it. Having no spirit of order, he never looked forward, - content by any temporary expedient to extricate himself from a present difficulty.
Rash, arrogant, perfidious, irreligious, unquiet, he
made a tolerable head of a party, but a bad king, and
had talents fit to disturb another's 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. reunited 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 desighs: 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.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 475
CHAPTER IX.
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
? ? ? ? 476 ABRIDGMENT OF ENGLISH HISTORY.
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.
? ? ? ? . ABRIDGMENT OF ENGLISH HISTORY. 477
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
impussible 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
? ? ? ? 478 ABRIDGMENT OF ENGLISH HISTORY.
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
vary 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,
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 479
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, ac
? ? ? ? 480 ABRIDGMENT OF ENGLISH HISTORY.
cording 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
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 481
of written and permanent laws. -;5The king,* 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 onlyi 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: amolgst 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 legislators 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. 3"' But in
England, the Roman name and language having entirely vanished in the seventh century, the missionzry monks were obliged- to contend with: the diffi* Decreta illi judiciorum juxta exempla Romanorum cum con. silio sapiontium constituit. -- Beda, Eccl. Hist. Lib. II. c. 5.
VOL. VIl. 31
? ? ? ? 482 ABRIDGMENT OF ENGLISH HISTORY.
culty, and to adapt foreign characters to the Englishl
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 byj 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 lbeen 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,
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. '- 483.
having revived, and in all likelihood improved, sev --
eral 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, tilrned 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
ally 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,
? ? ? ? 4847 ABRIDGMENT. OF'ENGLISH HISTORY.
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 confilled 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: * 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
* Leg. AElfred. 38, De Pugna.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 485
meetings for drinking: or businessj 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 controversies. 4th. In regulating the several fraternities of Frankpledges, 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
? ? ? ? 486 ABRIDGMENT OF ENGLISH HISTORY.
there are frequently to be observed particular insti-'
tutions, well and prudently framed; but there is noappearance 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. * There are two maxims t 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 constitu* Justum est ut proles matrem sequatur. - Edric and Lothaire.
t Negatio potior est affirmatione. Possessio proprior est habenti
quam deinceps repetenti. - L. Cnut.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 487
tions; 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, coining 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,
? ? ? ? 488 ABRIDG3MENT OF ENGLISH HISTORY.
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. END OF VOL. VII.
? ? ? The works of the Right Honorable Edmund Burke.
Burke, Edmund, 1729-1797.
Boston : Little, Brown, and company, 1869.
http://hdl. handle. net/2027/miun. aba1206. 0008. 001
Public Domain
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? ? ? THE
WORKS
OF
THE RIGHT HONORABLE EDMUND BURKE.
THIRD EDITION.
VOL. VIII. .
