W

killed, but revives, the sheriff must hang him again. For the former hanging was no execution of the sentence; and if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. Nay, even while abjurations were in force, such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm; but his fleeing to sanctuary was held an escape in the officer.y

And, having thus arrived at the last stage of criminal proceedings, or execution, the end and completion of human punishment, which was the sixth and last head to be considered under the division of public wrongs, the fourth and last object of the laws of England; it may now seem high time to put a period to these Commentaries, which, the author is very sensible, have already swelled to too great a length. But he can not dismiss the student, for whose use alone these rudiments were originally compiled, without endeavoring to recall to his memory some principal outlines of the legal constitution of this country, by a short historical review of the most considerable revolutions that have happened in the laws of England, from the earliest to the present times. And this task he will attempt to discharge, however imperfectly, in the next or concluding chapter.

2 Hal., P. C., 412; 2 Hawk., P. C., 463. See page 326.

y Fitz. Abr., t. Corone, 33; Finch, L., 467.

455

407

CHAPTER XXXIII.

OF THE RISE, PROGRESS, AND GRADUAL IMPROVEMENTS OF the
LAWS OF ENGLAND.

BEFORE we enter on the subject of this chapter, in which I propose, by way of supplement to the whole, to attempt an historical review of the most remarkable changes and alterations that have happened in the laws of England, I must first of all remind the student that the rise and progress of many principal points and doctrines have been already pointed out in the course of these Commentaries, under their respective divisions these having, therefore, been particularly discussed already, it can not be expected that I should re-examine them with any degree of minuteness, which would be a most tedious undertaking. What I, therefore, at present propose, is only to mark out some outlines of an English juridical history, by taking a chronological view of the state of our laws, and their successive mutations at different periods of time.

The several periods under which I shall consider the state of our legal policy are the following six: 1. From the earliest times to the Norman Conquest; 2. From the Norman Conquest [408] to the reign of King Edward the First; 3. From thence to the Reformation; 4. From the Reformation to the restoration of King Charles the Second; 5. From thence to the revolution in 1688; 6. From the revolution to the present time.

I. And, first, with regard to the ancient Britons, the aborigines of our island, we have so little handed down to us concerning them with any tolerable certainty, that our inquiries here must needs be very fruitless and defective. However, from Cæsar's account of the tenets and discipline of the ancient Druids in Gaul, in whom centered all the learning of these western parts, and who were, as he tells us, sent over to Britain (that is, to the Island of Mona or Anglesey) to be instructed, we may collect a few points which bear a great affinity and resemblance to some of the modern doctrines of our English law. Particularly, the very notion itself of an oral, unwritten law, delivered down from age to age, by custom and tradition merely, seems derived from the practice of the Druids, who never committed any of their instructions to writing, possibly for want of letters; since it is remarkable that in all the antiquities, unquestionably British, which the industry of the moderns has discovered, there is not in any of

them the least trace of any character or letter to be found. The partible quality, also, of lands by the custom of gavelkind, which still obtains in many parts of England, and did universally over Wales till the reign of Henry VII., is undoubtedly of British original. So, likewise, is the ancient division of the goods of an intestate between his widow and children, or next of kin, which has since been revived by the statute of distributions. And we may also remember an instance of a slighter nature mentioned in the present volume, where the same custom has continued from Cæsar's time to the present, that of burning a woman guilty of the crime of petit treason by killing her husband.'

The great variety of nations that successively broke in upon and destroyed both the British inhabitants and constitution, the Romans, the Picts, and after them the various clans of Saxons [409] and Danes, must necessarily have caused great confusion and uncertainty in the laws and antiquities of the kingdom, as they were very soon incorporated and blended together, and, therefore, we may suppose, mutually communicated to each other their respective usages in regard to the rights of property and the punishment of crimes. So that it is morally impossible to trace out, with any degree of accuracy, when the several mutations of the common law were made, or what was the respective original of those several customs we at present use, by any chemical resolution of them to their first and component principles. We can seldom pronounce that this custom was derived from the Britons; that was left behind by the Romans; this was a necessary precaution against the Picts; that was introduced by the Saxons, discontinued by the Danes, but afterward restored by the Normans.

Wherever this can be done, it is matter of great curiosity and some use; but this can very rarely be the case, not only from the reason above mentioned, but also from many others. First, from the nature of traditional laws in general, which, being accommodated to the exigencies of the times, suffer by degrees insensible variations in practice ;b so that, though upon comparison we plainly discern the alteration of the law from what it was five hundred years ago, yet it is impossible to define the precise period in which that alteration accrued, any more than we can discern the changes of the bed of a river which varies its shores by continual decreases and alluvions. Secondly, this becomes impracticable from the antiquity of the kingdom and its government, which alone, though it had been disturbed by no foreign invasions, would make it impossible to search out the original of its laws, unless we had as authentic monuments thereof as the Jews had by the hand of Moses.

a Hal., Hist. C. L., 62.

b Ibid., 57.

e Ibid., 59.

(1) But see now the 9 Geo. IV., c. 31, s. 2, ante, p. 204, n. (27).

[410] Thirdly, this uncertainty of the true origin of particular customs must also in part have arisen from the means whereby Christianity was propagated among our Saxon ancestors in this island; by learned foreigners brought over from Rome and other countries, who undoubtedly carried with them many of their own national customs, and probably prevailed upon the state to abrogate such usages as were inconsistent with our holy religion, and to introduce many others that were more conformable thereto. And this, perhaps, may have partly been the cause that we find not only some rules of the Mosaical, but also of the imperial and pontifical laws, blended and adopted into our own system.

A further reason may be given for the great variety, and of course the uncertain original, of our ancient established customs; even after the Saxon government was firmly established in this island, viz., the subdivision of the kingdom into a heptarchy, consisting of seven independent kingdoms, peopled and governed by different clans and colonies. This must necessarily create an infinite diversity of laws, even though all those colonies of Jutes, Angles, Anglo-Saxons, and the like, originally sprung from the same mother country, the great northern hive, which poured forth its warlike progeny, and swarmed all over Europe in the sixth and seventh centuries. This multiplicity of laws will necessarily be the case, in some degree, where any kingdom is cantoned out into provincial establishments, and not under one common dispensation of laws, though under the same sovereign power. Much more will it happen where seven unconnected states are to form their own constitution and superstructure of government, though they all begin to build upon the same or similar foundations.

When, therefore, the West Saxons had swallowed up all the rest, and King Alfred succeeded to the monarchy of England, whereof his grandfather, Egbert, was the founder, his mighty genius prompted him to undertake a most great and necessary [411] work, which he is said to have executed in as masterly a manner; no less than to new-model the constitution; to rebuild it on a plan that should endure for ages, and out of its discordant materials, which were heaped upon each other in a vast and rude irregularity, to form one uniform and well-connected whole. This he effected by reducing the whole kingdom under one regular and gradual subordination of government, wherein each man was answerable to his immediate superior for his own conduct and that of his nearest neighbors; for to him we owe that master-piece of judicial polity, the subdivision of England into tithings and hundreds, if not into counties: all under the influence and administration of one supreme magistrate, the king; in whom, as in a general reservoir, all the executive authority of the law was lodged, and from whom justice was dispersed to every part of the nation by distinct yet

communicating ducts and channels; which wise institution has been preserved for near a thousand years unchanged, from Alfred's to the present time. He also, like another Theodosius, collected the various customs that he found dispersed in the kingdom, and reduced and digested them into one uniform system, or code of laws, in his Som-bec, or liber judicialis. This he compiled for the use of the court baron, hundred, and county court, the court leet, and sheriff's tourn, tribunals which he established for the trial of all causes, civil and criminal, in the very districts wherein the complaint arose; all of them subject, however, to be inspected, controlled, and kept within the bounds of the universal or common law, by the king's own courts, which were then itinerant, being kept in the king's palace, and removing with his household in those royal progresses which he continually made from one end of the kingdom to the other. The Danish invasion and conquest, which introduced new foreign customs, was a severe blow to this noble fabric; but a plan so excellently concerted could never be long thrown aside. So that, upon the expulsion of these intruders, the English returned to their ancient law, retaining, however, some few of the customs of their late visitants, which went under the name [412] of Dane Lage; as the code compiled by Alfred was called the West Saxon Lage, and the local constitutions of the ancient kingdom of Mercia, which obtained in the counties nearest to Wales, and probably abounded with many British customs, were called the Mercen Lage. And these three laws were, about the beginning of the eleventh century, in use in different counties of the realm, the provincial polity of counties and their subdivisions having never been altered or discontinued, through all the shocks and mutations of government, from the time of its first institution, though the laws and customs therein used have (as we shall see) often suffered considerable changes.

For King Edgar (who, besides his military merit as founder of the English navy, was also a most excellent civil governor), observing the ill effects of three distinct bodies of laws prevailing at once in separate parts of his dominions, projected and begun what his grandson, King Edward the Confessor, afterward completed, viz., one uniform digest or body of laws to be observed throughout the whole kingdom, being probably no more than a revival of King Alfred's code, with some improvements suggested by necessity and experience, particularly the incorporating some of the British, or, rather, Mercian customs, and also such of the Danish as were reasonable and approved, into the West Saxon Lage, which was still the groundwork of the whole. And this appears to be the best supported and most plausible conjecture (for certainty is not to be expected) of the rise and original of that admirable system of maxims and unwritten customs which is now known by the