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 by the violence they had suffered; enriched even by those foreign conquests which threatened their entire destruction; softened and mellowed by peace and religion; improved and exalted by commerce, by social intercourse, and that great opener of the mind, ingenuous science?
These certainly were great encouragements to the study of historical jurisprudence, particularly of our own. Nor was there a want of materials or help for such an undertaking. Yet we have had few attempts in that province. Lord Chief Justice Hale's History of the Common Law is, I think, the only one, good or bad, which we have. But with all the deference justly due to so great a name, we may venture to assert that this performance, though not without merit, is wholly unworthy of the high reputation of its author. The sources of our English law are not well, nor indeed fairly, laid open; the ancient judicial proceedings are touched in a very slight and transient manner; and the great changes and remarkable revolutions in the law, together with their causes, down to his time, are scarcely mentioned.
Of this defect I think there were two principal causes. The first, a persuasion, hardly to be eradicated from the minds of our lawyers, that the English law has continued very much in the same state from an antiquity to which they will allow hardly any sort of bounds. The second is, that it was formed and grew up among ourselves; that it is in every respect peculiar to this island; and that, if the Roman or any foreign laws attempted to intrude into its composition, it has always had vigor enough to shake them off, and return to the purity of its primitive constitution.
These opinions are flattering to national vanity and professional narrowness; and though they involved those that supported them in the most glaring contradictions, and some absurdities even too ridiculous to mention, we have always been, and in a great measure still are, extremely tenacious of them. If these principles are admitted, the history of the law must in a great measure be deemed, superfluous. For to what purpose is a history of a law of which it is impossible to trace the beginning, and which during its continuance has admitted no essential changes? Or why should we search foreign laws or histories for explanation or ornament of that which is wholly our own, and by which we are effectually distinguished from all other countries? Thus the law has been confined, and drawn up into a narrow and inglorious study, and that which should be the leading science in every well-ordered commonwealth remained in all the barbarism of the rudest times, whilst every other advanced by rapid steps to the highest improvement both in solidity and elegance; insomuch that the study of our jurisprudence presented to liberal and well-educated minds, even in the best authors, hardly anything but barbarous terms, ill explained, a coarse, but not a plain expression, an indigested method, and a species of reasoning the very refuse of the schools, which deduced the spirit of the law, not from original justice or legal conformity, but from causes foreign to it and altogether whimsical. Young men were sent away with an incurable, and, if we regard the manner of handling rather than the substance, a very well-founded disgust. The famous antiquary, Spelman, though no man was better formed for the most laborious pursuits, in the beginning deserted the study of the law in despair, though he returned to it again when a more confirmed age and a strong desire of knowledge enabled him to wrestle with every difficulty.
The opinions which have drawn the law into such narrowness, as they are weakly founded, so they are very easily refuted. With regard to that species of eternity which they attribute to the English law, to say nothing of the manifest contradictions in which those involve themselves who praise it for the frequent improvements it has received, and at the same time value it for having remained without any change in all the revolutions of government, it is obvious, on the very first view of the Saxon laws, that we have entirely altered the whole frame of our jurisprudence since the Conquest. Hardly can we find in these old collections a single title which is law at this day; and one may venture to assert, without much hazard, that, if there were at present a nation governed by the Saxon laws, we should find it difficult to point out another so entirely different from everything we now see established in England.
This is a truth which requires less sagacity than candor to discover. The spirit of party, which has misled us in so many other particulars, has tended greatly to perplex us in this matter. For as the advocates for prerogative would, by a very absurd consequence drawn from the Norman Conquest, have made all our national rights and liberties to have arisen from the grants, and therefore to be revocable at the will of the sovereign, so, on the other hand, those who maintained the cause of liberty did not support it upon more solid principles. They would hear of no beginning to any of our privileges, orders, or laws, and, in order to gain them a reverence, would prove that they were as old as the nation; and to support that opinion, they put to the torture all the ancient monuments. Others, pushing things further, have offered a still greater violence to them. N. Bacon, in order to establish his republican, system, has so distorted all the evidence he has produced, concealed so many things of consequence, and thrown such false colors upon the whole argument, that I know no book so likely to mislead the reader in our antiquities, if yet it retains any authority. In reality, that ancient Constitution and those Saxon laws make little or nothing for any of our modern parties, and, when fairly laid open, will be found to compose such a system as none, I believe, would think it either practicable or desirable to establish. I am sensible that nothing has been, a larger theme of panegyric with, all our writers on politics and history than the Anglo-Saxon government; and it is impossible not to conceive an high, opinion of its laws, if we rather consider what is said of them than what they visibly are. These monuments of our pristine rudeness still subsist; and they stand out of themselves indisputable evidence to confute the popular declamations of those writers who would persuade us that the crude institutions of an unlettered people had reached a perfection which the united efforts of inquiry, experience, learning, and necessity have not been able to attain in many ages.
But the truth is, the present system of our laws, like our language and our learning, is a very mixed and heterogeneous mass: in some respects our own; in more borrowed from the policy of foreign, nations, and compounded, altered, and variously modified, according to the various necessities which the manners, the religion, and the commerce of the people have at different times imposed. It is our business, in some measure, to follow and point out these changes and improvements: a task we undertake, not from any ability for the greatness of such a work, but purely to give some short and plain account of these matters to the very ignorant.
The Law of the Romans seems utterly to have expired in this island together with their empire, and that, too, before the Saxon establishment. The Anglo-Saxons came into England as conquerors. They brought their own customs with them, and doubtless did not take laws from, but imposed theirs upon, the people they had vanquished. These customs of the conquering nation were without question the same, for the greater part, they had observed before their migration from Germany. The best image we have of them is to be found in Tacitus. But there is reason to believe that some changes were made suitable to the circumstances of their new settlement, and to the change their constitution must have undergone by adopting a kingly government, not indeed with unlimited sway, but certainly with greater powers than their leaders possessed whilst they continued in Germany. However, we know very little of what was done in these respects until their conversion to Christianity, a revolution which made still more essential changes in their manners and government. For immediately after the conversion of Ethelbert, King of Kent, the missionaries, who had introduced the use of letters, and came from Rome full of the ideas of the Roman civil establishment, must have observed the gross defect arising from a want of written and permanent laws. The king,[83] from their report of the Roman method, and in imitation of it, first digested the most material customs of this kingdom into writing, without having adopted anything from the Roman law, and only adding some regulations for the support and encouragement of the new religion. These laws still exist, and strongly mark the extreme simplicity of manners and poverty of conception of the legislators. They are written in the English of that time; and, indeed, all the laws of the Anglo-Saxons continued in that language down to the Norman Conquest. This was different from the method of the other Northern nations, who made use only of the Latin language in all their codes. And I take the difference to have arisen from this. At the time when the Visigoths, the Lombards, the Franks, and the other Northern nations on the continent compiled their laws, the provincial Romans were very numerous amongst them, or, indeed, composed the body of the people. The Latin, language was yet far from extinguished; so that, as the greatest part of those who could write were Romans, they found it difficult to adapt their characters to these rough Northern tongues, and therefore chose to write in Latin, which, though not the language of the legislator, could not be very incommodious, as they could never fail of interpreters; and for this reason, not only their laws, but all their ordinary transactions, were written in that language. But in England, the Roman name and language having entirely vanished in the seventh century, the missionary monks were obliged to contend with the difficulty, and to adapt foreign characters to the English language; else none but a very few could possibly have drawn any advantage from the things they meant to record. And to this it was owing that many, even the ecclesiastical constitutions, and not a few of the ordinary evidences of the land, were written in the language of the country.