The Roman, Pictish, and Saxon invasions, with the Heptarchy, filled the country with a general confusion of laws, until the time of Alfred. This great king and man of genius undertook to remodel the whole constitution of the West-Saxon monarchy—a design, for whose execution he has been praised by all the philosophic lawyers, as exhibiting the highest sagacity.
The principle of his reform was, to make every man answerable to an immediate superior for his personal conduct, and that of his neighbourhood. For this purpose, England was divided into tithings and hundreds, and perhaps into counties, all being under a supreme magistrate—the king. He also collected into a volume all the customs of the various districts, which he issued for the guidance of the several country courts. Those in their turn were liable to account to the king’s courts, which were kept in the royal household, and which travelled with this great king, whose life seems to have been chiefly occupied in traversing the kingdom as high minister of law, and teaching its principles to his people.
The Danish invasions shook this code, but had not the power to crush it. It was renewed by King Edgar, a man of vigour and talents. The digest was completed by his grandson, Edward the Confessor—the whole forming the common law, or law common to the whole realm.
The principles of the Saxon law, which were the principles of their fathers in the German forests, and were the principles of truth and nature, were briefly these:—The establishment of the Wittena-gemote, or assembly of wise men—a species of parliament, without which no new law could be made, or old one changed; the election of all magistrates by the people; the hereditary descent of the crown; the commutation of capital punishments, on the first offence, for a fine; military service in proportion to land; forfeiture of land for treason, but not corruption of blood; the descent of lands to all the male’s equally, without right of primogeniture, (a rule unworthy of Saxon wisdom;) the use of county courts in ordinary cases, with courts held before the king in the higher; last, and most important of all, trial by jury (though trial was also held by ordeal.)
Of those principles, some were evidently unfit for subsequent civilisation; and some refined themselves. But the whole system, when compared with the old Roman code, and with many of the codes of Europe which followed it, exhibits an extraordinary evidence of the manliness of feeling, and justness of conception, existing among the Saxon ancestry of England.
In the eleventh century, the Norman Conquest burst in upon the country with the force of an inundation, and swept before it throne, liberty, and laws. The influence of Rome now began to act powerfully on the people. Ecclesiastical courts were formed, separate from the civil, and the Romish priesthood were gradually exempted from the secular power.
Another formidable innovation was in the “royal forests.” The Norman kings were “mighty hunters,” and whole counties were stripped of their population, to give room for beasts of chase. They transplanted the forest laws of the Continent into England, and the penalties of their game laws were terrible. In the Saxon times, though no man was allowed “to kill the king’s deer,” yet every man was allowed to kill the game on his own estate. But the Norman law made the king the proprietor of all game, and no man could kill bird of the air, or beast of the field, without express royal license, by a grant of free-warren, which was more for the purpose of preserving the game than giving a right to the subject.
With one exception, the Norman invasion was an unequivocal calamity. That exception was the right of primogeniture—a right essential to the establishment of a nobility, to the permanence of families in a condition of honour, and to the prevention of a gradual pauperism and degradation of society, as the lands became divided more and more. In all others, it was a sudden and mischievous extinction of all popular rights, and of all the principles of national progress. It made law arbitrary by curtailing the power of the county courts, and giving it to the king’s Norman justiciers, who thus became masters of every thing, and, by their Norman subtleties, altogether confused the national law. It introduced the feudal law, which was tyrannical in its essence. It almost excluded the national language from all public use, Norman-French alone being used in all the courts. It introduced the trial by combat, the origin of that custom which, under the name of duelling, authorises murder, provided the murdered man has previously had formal notice that his murder was intended; and also, that he had a chance of adding the murder of his adversary to his own. And to this Norman tyranny was due the whole long series of ruinous wars, which involved both England and France in infinite wretchedness, for little less than a hundred and fifty years.
The Saxon law continued in this state of humiliation until the reign of John, with slight occasional advances towards freedom. But, in this reign, the severity of the forest laws roused the barons into insurrection, and the King was forced to sign the two famous regulations, the Forest Charter, and the Great Charter. The former diminished some of the cruelties of the forest law, and the latter laid the foundations of the Constitution, by restoring the general principles of the Saxon law. It protected the subject from the severity of royal fines and royal loans, and considerably narrowed the wasteful expenditure of the throne. In private rights, it established the testamentary power of the husband over part of his estates, and the law of dowery. In public police, it established a uniformity of weights and measures, gave protection to commercial strangers, and forbade the alienation of lands by mortmain. In matters of public justice, it forbade all denials and delays of justice, established the court of Common Pleas at Westminster, to relieve the suitor from following the courts round the country; directed assizes and annual circuits to be held, and appointed inquests. It established the liberties of London, and of all the cities, towns, and ports of England. And finally, and by its noblest act of power, it declared the protection of every man in his life, liberty, and property, unless convicted by the judgment of his peers, or the law of the land. This was perhaps the noblest document ever published by a people, and well deserves its name of Magna Charta.
In the Popish controversy of our day, the existence of Magna Charta has been adduced as a proof of the freedom encouraged under Popery. But it is forgotten that the whole proceeding was instantly denounced by the Pope, and laid under anathema. It was a recurrence to the laws of their Saxon ancestors, demanded by the severe necessities of the time, and originating in impulses of human nature too strong for the bondage of the national superstition.