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for another, without being guilty of felony himself, as has been formerly said (m) *405] It is held also by Sir Edward Coke(n) and Sir Matthew Hale(o) that even the king cannot change the punishment of the law by altering the hanging or burning into beheading; though when beheading is part of the sentence the king may remit the rest. And, notwithstanding some examples to the contrary, Sir Edward Coke stoutly maintains that judicandum est legibus, non exemplis." But others have thought,(p) and more justly, that this preroga tive, being founded in mercy, and immemorially exercised by the crown, is part of the common law. For hitherto, in every instance, all these exchanges have been for more merciful kinds of death; and how far this may also fall within the king's power of granting conditional pardons-viz., by remitting a severe kind of death, on condition that the criminal submits to a milder-is a matter that may bear consideration. It is observable that when lord Stafford was executed for the popish plot in the reign of king Charles the Second, the then sheriffs of London, having received the king's writ for beheading him, petitioned the house of lords for a command or order from their lordships how the said judgment should be executed; for, he being prosecuted by impeachment, they entertained a notion (which is said to have been countenanced by lord Russel) that the king could not pardon any part of the sentence.(g) The lords resolved (r) that the scruples of the sheriffs were unnecessary, and declared that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified(s) to the house of commons, by one of the members, that they were not satisfied as to the power of the said writ. That house took two days to consider of it, and then(t) sullenly resolved that the house was content that the sheriff do execute lord Stafford, by severing his head from his body. It is further related, that when afterwards the same lord Russel was condemned for high treason upon indictment, the king, while he remitted the ignominious part of the *sentence, observed "that his lordship would
*406] now find that he was possessed of that prerogative which in the case of lord Stafford he had denied him."(u) One can hardly determine (at this distance from those turbulent times) which most to disapprove of, the indecent and sanguinary zeal of the subject, or the cool and cruel sarcasm of the sovereign.
To conclude: it is clear that if, upon judgment to be hanged by the neck till he is dead, the criminal be not thoroughly killed, but revives, the sheriff must hang him again.(w) 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,(x) such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm; out 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 length. But he cannot dismiss the student, for whose use alone these rudiments were originally compiled, without endeavouring 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.
See page 179.
(") 3 Inst. 52.
2 Hal. P. C. 412.
Fost. 270. F. N. B. 244, h. 19 Rym. Fod. 284.
2 Hume, Hist of 9. B. 328.
(9) Com. Jour. Dec. 21, 1680.
() Ibid. Dec. 23, 1680.
) 2 Hume, 360.
2 Hal. P. C. 412. 2 Hawk. P. C. 463.
(V) Fitz. Abr. tit. Corone, 33. Finch, L. 407.
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, [*407 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 cannot be expected that I should reexamine 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 our 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 polity are the following six: 1. From the earliest times to the Norman conquest; 2. From the Norman conquest 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 antient Britons, the aborigines of our island, we have so little handed down to us concerning them with any tolerable cer tainty that our inquiries here must needs be very fruitless and defective. However, from Cæsar's account of the tenets and discipline of the antient Druids in Gaul, in whom centred 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 bar 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 VIII., is undoubt. edly of British original. So likewise is the antient 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, [*409 and after them the various clans of Saxons 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, (a) 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 resʊ ation
(a) Hal. Hist. C. L. 62.
'But this is now altered, by 9 Geo. IV. c. 31. See ante, p. 204.—CHRISTIAN
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 afterwards 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 *410] thereof as the Jews had by the hand of Moses.(c) 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 also be given for the great variety, and, of course, the uncertain original, of our antient established customs, even after the Saxon government was firmly established in this island,-viz., the subdivision of the kingdom into an 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, AngloSaxons, 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 any 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 *411] and necessary 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 old 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 neighbours: 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 ir sti
tution 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 Dom-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 antient law, retaining, however, some few of the customs of their late visitants, which went *under the name of DaneLage: as the code compiled by Alfred was called the West-Saxon-Lage; [*412 and the local constitutions of the antient kingdom of Mercia, which obtained in the countries 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 military merit, as founder of the English navy, was also a most excellent civil governor,) observing the ill effects of three dis tinct bodies of laws prevailing at once in separate parts of his dominions, projected and begun what his grandson king Edward the Confessor afterwards 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 bestsupported 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 name of the common law, as extending its authority universally over all the realm, and which is doubtless of Saxon parentage.
Among the most remarkable of the Saxon laws we may reckon,-1. The constitution of parliaments, or, rather, general assemblies of the principal and wisest men in the nation; the wittena-gemote, or commune consilium, of the antient Germans, which was not yet reduced to the forms and *distinctions of [*413 our modern parliament, without whose concurrence, however, no new law could be made or old one altered. 2. The election of their magistrates by the people, originally even that of their kings, till dear-bought experience evinced the convenience and necessity of establishing an hereditary succession to the crown. But that of all subordinate magistrates, their military officers or heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeves, (since changed into mayors and bailiffs,) and even their tithingmen and borsholders at the leet, continued, some till the Norman conquest, others for two centuries after, and some remain to this day. 3. The descent of the crown, when once a royal family was established, upon nearly the same hereditary principles upon which it has ever since continued; only that per haps, in case or minority, the next of kin of full age would ascend the throne as king, and not as protector, though after his death the crown immediately reverted back to the heir. 4. The great paucity of capital punishn.ents for the
*Denied, 1 Spence, 61 n. See ante vol. 1, p. 65, n.
first offence, even the most notorious offenders being allowed to commute it for a fine or weregild, or, in default of payment, perpetual bondage; to which our benefit of clergy has now in some measure succeeded. 5. The prevalence of certain customs, as heriots and military services in proportion to every man's land, which much resembled the feodal constitution, but yet were exempt from all its rigorous hardships; and which may be well enough accounted for by supposing them to be brought from the continent by the first Saxon invaders, in the primitive moderation and simplicity of the feodal law, before it got into the hands of the Norman jurists, who extracted the most slavish doctrines and oppressive consequences out of what was originally intended as a law of liberty. 6. That their estates were liable to forfeiture for treason, but that the doctrine of escheats and corruption of blood for felony, or any other cause, was utterly unknown amongst them. 7. The descent of their lands to all the males equally, without any right of primogeniture; a custom which obtained among the Britons, was agreeable to the Roman law, and continued among the Saxons till the Norman conquest: *though really inconvenient, and more espe*414] cially destructive to antient families, which are in monarchies necessary to be supported, in order to form and keep up a nobility or intermediate state between the prince and the common people. 8. The courts of justice consisted principally of the county courts, and, in cases of weight or nicety, the king's court held before himself in person, at the time of his parliaments, which were usually holden in different places, according as he kept the three great festivals of Christmas, Easter, and Whitsuntide; an institution which was adopted by king Alfonso VII. of Castile, about a century after the conquest, who at the same three great feasts was wont to assemble his nobility and prelates in his court, who there heard and decided all controversies, and then, having received his instructions, departed home. (d) These county courts, however, differed from the modern ones in that the ecclesiastical and civil jurisdiction were blended together, the bishop and the ealdorman or sheriff sitting in the same county court; and also that the decisions and proceedings therein were much more simple and unembarrassed: an advantage which will always attend the infancy of any laws, but wear off as they gradually advance to antiquity. 9. Trials among a people who had a very strong tincture of superstition were permitted to be by ordeal, by the corsned, or morsel of execration, or by wager of law with compurgators, if the party chose it; but frequently they were also by jury: for, whether or no their juries consisted precisely of twelve men or were bound to a strict unanimity, yet the general constitution of this admirable criterion of truth and most important guardian both of public and private liberty we owe to our Saxon ancestors. Thus stood the general frame of our polity at the time of the Norman invasion, when the second period of our legal history com
II. This remarkable event wrought as great an alteration in our laws as it did in our antient line of kings; and though the alteration of the former was effected rather by the *consent of the people than any right of conquest, *415] yet that consent seems to have been partly extorted by fear, and partly given without any apprehension of the consequences which afterwards ensued. 1. Among the first of these alterations we may reckon the separation of the ecclesiastical courts from the civil, effected in order to ingratiate the new king with the popish clergy, who for some time before had been endeavouring all over Europe to exempt themselves from the secular power, and whose demands the Conqueror, like a politic prince, thought it prudent to comply with, by reason that their reputed sanctity had a great influence over the minds of the people, and because all the little learning of the times was engrossed into their hands, which made them necessary men and by all means to be gained over to his interests. And this was the more easily effected, because the disposal of al the episcopal sees being then in the breast of the king, he had taken care to fill them with Italian and Norman prelates.
2 Another violent alteration of the English constitution consisted in the
(d) Mod. Un. Hist. xx 114.