how foreign nations have legislated, or what individuals, eminent for their reason, have thought; and he will properly consult the natural dictates of his own understanding, corrected and matured by reflection and experience: but it appears to be a dangerous principle, on any occasion, to abandon the plain sense of the Common Law, as handed down by received tradition, or the intentions of the Legislature, as collected by an interpretation of its language, consonant as well to good sense as to grammatical accuracy, for precepts extracted from the Code of Nature, in the tables of whose law, persons will be apt to believe that they can read whatever they wish to discover.

CHAP. XVII.

THE realm of England was first inhabited by the Britons; afterwards it was ruled and civilized under the government of the Romans; then the Britons prevailed again; next, it was possessed by the Saxons, who changed the name of Britain into England. After the Saxons, the Danes lorded it over us, and then the Saxons prevailed a second time; at last, the Normans came in, whose descendants obtain the kingdom at this day: and, during all that time, wherein those several nations and their kings prevailed, England has nevertheless been constantly governed by the same customs, as it is at present: which if they were not above all exception good, no doubt but some or other of those kings, from a principle of justice, in point of reason, or moved by inclination, would have made some alteration or quite abolished them, especially the Romans, who governed all the rest of the world in a manner by their own laws. Again, some of the aforesaid kings, who only got and kept possession of the Realm by the sword, were enabled by the same means to have destroyed the laws and introduced their own. Neither the laws of the Romans which are cried up beyond all others for their antiquity; nor yet the laws of the Venetians, however famous in this respect, their Island being not inhabited so early as Britain; (neither was Rome itself at that time built;) nor in short, are the laws of any

other kingdom in the world so venerable for their antiquity. So that there is no pretence to say, or insinuate to the contrary, but that the laws and customs of England are not only good, but the very best.

This Chapter is quoted with great respect by Sir E. Coke in a Preface to his Reports, where he assents implicitly to every thing contained in it, and supports the opinion in the text by additional authorities. But Dr. Hickes has shewn that the great oracle of the law is not entitled to much deference in questions connected with the Saxon period: and Spelman in his Treatise upon Terms, controverts the notions of Fortescue upon this subject and treats them with ridicule. He refers to the laws of Hoel Dha, as exhibiting a model of the British customs which appear from thence to be inconsistent with our own. Some antiquarians, however, have found the rudiments of several of our institutions among the British Laws. (See Tracts by Mr. Jones and Mr. Tate, in Hearne's Collection.) In a Tract written by Mr. Hakewell, in which a passage in the text respecting the origin of our Laws, is cited, and said to be destitute of proof, the introduction of the Danish Law is much insisted upon, and, in that Gentleman's opinion, the Danish Law mingled with some points of the Saxon Law, and fewer of the Norman Law, constitute the Common Law now in use. On the other hand, Sir W. Temple, in the Introduction to his History, denies that any change of our Laws happened by the Danes. In the same place he makes mention of Fortescue having affirmed that our customs have been preserved through five Governments, and he observes that it is doubtful whether it can be so easily proved as affirmed, though it may be with more certainty of the three last. Selden in his Dissertation upon Fleta, has exhibited the extent to which the influence of the Roman Law prevailed in England, from the conquest of this Country by that Nation, to the reign of Edward III. (See also Duck de Ortu et Progressu Juris Civilis. Dr. Pettingal on Juries. Hallifax's Civil Law. Hurd's Dial. on the Constitution.) The frequent reference to the books of the Civil Law by our early writers upon legal subjects, has been noticed in a preceding page. And in the present day these valuable records of legal wisdom are occasionally consulted, with a view to the determination of judicial questions. (Burnet's Life of Hale, p. 24. Lord Ellesmere's Case of the Postuati. Blackstone's Introduction. 3 Burr. 1670. Comyn's Rep. p. 738. Eunomus, Notes to Dial. i.) It is difficult to point out that precise portion of the Law, which existed in this country anterior to the Norman

conquest.

conquest. Burke refers to that event as the great æra of our Laws; but Sir W. Temple on a consideration of what the country lost, what it preserved, and what it gained by the Norman conquest, is of opinion that the forms of our Government and Institutions were not materially changed at that time; and this agrees with what Sir Matthew Hale has written in his History of the Common Law. We read of four different species of law which are said to have been in force in the Saxon times, but the existence of this division of the laws has been much doubted by eminent legal antiquarians; and but little light can now be obtained respecting those compilations, called the "Dombocs," which are known to have been made before the conquest: The Saxon Laws which compose the modern collections of Lambard and Wilkins have not all the same degree of credit for genuineness; and the contrast which their contents present, with those of Glanville's Treatise, shew the establishment of very different principles of law in the time of Henry the Second, from any which they contain. A discussion concerning the laws that existed in this Country anterior to the conquest, has been warmly agitated in the enquiry respecting the antiquity of Juries; in the celebrated question relative to the introduction of feudal tenures into this country; and in the more important controversy regarding the origin of Parliament. Some investigations respecting other points involving a research into the changes introduced by the Normans in the Saxon Institutions, will be seen in Madox's History of the Exchequer, and Hickes's Prefatory Dissertation to his Thesaurus; and much valuable information explanatory of the connection existing between the Laws of England and those of Normandy, may be gathered from Hoüard's Treatise entitled "Anciennes loix des François conservées dans les contumes Angloises." Some historical facts in the reign of William the Conqueror, shew that he professed on several occasions a respect for the national Institutions of the Saxons, and for the laws of Edward the Confessor: and perhaps the account given in the Dialogue of the Exchequer, respecting his proceedings in regard to the legislation of the country, will be received as being most probably authentic. Propositis legibus Anglicanis, quasdam reprobavit, quasdam autem approbans, illis transmarinas Neustriæ leges quæ ad regui pacem tuendam efficacissimæ videbantur, adjecit." Burke has remarked in his Introduction to English History, the evil consequences that are to be ascribed to an opinion, which he says is hardly to be eradicated from the minds of our lawyers "that the English Law has been formed and grown up among ourselves; is quite peculiar to this Island; and has continued in much the same state from an antiquity to which they hardly allow any bounds." It is true that Sir E. Coke in several parts of his writings, speaks of the English

people

people as being as well in respect of their Civil Institutions as of their insular situation, "toto divisos orbe Britannos." But Bacon takes a pride in observing, "that our laws are as mixed as our language; and as our language is so much the richer on that account, so are the laws more complete." No writers have viewed more philosophically than Lord Bacon and Sir Matthew Hale, the alterations which must necessarily be made in the laws of a nation, during its progressive advancement in refinement and greatness; none have insisted with more energy on the policy of revising those forms and institutions which the varying manners of the age, the new wants of society, or a more enlightened system of jurisprudence render inexpedient.