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of the times, suffer by degrees insensible variations in practice :* 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 that the bed of a river undergoes which gradually and imperceptibly varies its shores by continual decreases and alluvions. Secondly, this becomes impractible, from the antiquity of the kingdom and its government which, although it had never been disturbed by foreign invasions, would alone make it impossible to search out the original of its laws, unless we had as effectual monuments thereof as the Jews had by the hands of Moses. Thirdly, this uncertainty of the true origin of particular customs must also in part have arisen from the means whereby Christianity was propagated among the Saxon inhabitants of England, by learned foreigners, brought over from Rome and other countries, who undoubtedly introduced many of their own national customs, and probably prevailed on the state to abrogate such usages as were inconsistent with our holy religion, and to introduce many others that were more in conformity with its precepts. And this may have been partly the cause, that we not only find some rules of the Mosaical, but also of the imperial and pontifical laws, blended with and adopted into our system.

A further reason may also be given for the great variety, and of course the uncertain original, of many ancient established customs; even after the Saxon government was firmly established in England, 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 sprang 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 magnificent and necessary work, which he is said to have executed in as masterly a mannner: no less than to new-model the constitution-to

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rebuild it on a plan that should endure for ages, and out of its old and discordant materials, which were heaped on each other in 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 immediate 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 sovereign, the king, in whom, as in a general reservoir, all the executive authority of the law was lodged, and from whom justice was dispensed to every part of the nation by distinct, yet communicating ducts and channels; which wise institution. has been preserved for upwards of a thousand years, from Alfred's time to the present. He also, like another Theodosius, collected the various cus toms 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 ju dicialis. This he compiled for the use of the court-baron, hundred, and county court, the court-leet and sheriff's tourn; tribunals which he estab lished for the trial of all causes, civil and criminal, in the very districts wherein the complaint arose; all of them subject, however, to be inspect ed, 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.

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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 laws: retaining, however, some few of the customs of their late visitants, which were denominated Dane-lage: as those compiled by Alfred was called the West-Saxonlage; 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 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 began what his grandson, Edward the

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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 incorporation of 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 fundamental code of the whole. And this appears to be the best supported and most plausible conjecture, (for certainty cannot 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, 1st, The constitution of parliaments, or rather general assemblies of the bishops and wisest men in the nation; "king Alfred obtained for a perpetual usage that these councils should meet twice in the year, or oftener, if need be, to treat of the government of God's people: how they should keep themselves from sin, should live in quiet, and should receive right;"* the Willena-gemotte of the ancient Germans, which was not yet reduced to the forms and distinctions of our modern parliament, without whose concurrence, however, no new law could be made, or old one altered. 2nd, The election of their magistrates by the people. But that of all subordinate magistrates, their military officers or heretocks, their sheriffs, their conservators of the peace, their coroners, their portereves, (since changed into mayors and bailiffs,) and even their tything men and householders 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 on which it has ever since continued: only that perhaps in cases of 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 punishments for the 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 the benefit of clergy afterwards 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 feudal 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

* Blackstone, Vol. I., 147.

primitive moderation and simplicity of the feudal 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 those 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 especially destructive to ancient families : which are necessary to be supported in monarchies, 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 and nicety the king's court held before himself in person, at the time of his parliaments; which were usually holden in different places, according to the place where he kept the three great festivals of Christmas, Easter, and Whitsuntide. An institution which was adopted by king Alonzo VII. of Castile, about a century after the conquest who at the same three great feasts, was in the habit of assembling his nobility and prelates in his court: who there heard and decided all controversies, and then having received his instructions departed home.* 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 which 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 their juries consisted of precisely twelve men or not, 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. In this state stood the general frame of our polity at the time of the Norman invasion; when the second period of the legal history of England com

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mences.

II. This important event wrought as great an alteration in the laws of England as it did in the ancient line of her kings: and though the alteration of the former was effected rather by the consent of the people than by any right of conquest, yet that consent seems to have been partly extorted by

* Modern Un. Hist. xx. 114.

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, which was 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 with whose demands the conqueror, like a politic prince, thought it prudent to comply, 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 interest. And this was the more easily effected, because the disposal of all 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 depopulation of whole counties for the purposes of the king's royal diversion, and subjecting both them and all the ancient forests of the kingdom to the unreasonable severities of forest laws imported from the continent, whereby the slaughter of a beast was made nearly as penal as the death of a man. In the Saxon times, though no man was allowed to kill or chase the king's deer, yet he might start any game, pursue, and kill it on his own estate. But the rigour of these new constitutions vested the sole property of all the game in England in the king alone; and no man was allowed to disturb any fowl of the air, or any beast of the field, of such kinds as were specially reserved for the amusement of the sovereign, without express license from the king by a grant of a chase or free warren; and those franchises were granted as much with a view to preserve the breed of animals as to indulge the subject. From a similar principle to which, though the forest laws are now mitigated, and by degrees grown entirely obsolete, yet from this root has sprung a bastard slip, known by the name of the game laws, now arrived to, and wantoning in, its highest vigour, both founded on the same notions of permanent property in wild creatures, and both productive of the same tyranny to the commons; but with this difference, that the forest laws established only one mighty hunter throughout the whole realm, whereas the game laws have raised up a little Nimrod in every manor. And in one respect the ancient law was much less unreasonable than the modern; for the king's grantee of a chase or free warren might kill game in any part of his franchise, but now though a freeholder of less than £100 per annum is forbidden to kill a partridge upon his own estate, yet nobody else (not even the lord of the manor, unless he has a grant of free warren) can do it without committing a trespass, and subjecting himself to an action.

3. A third alteration of the English laws was by narrowing the remedial

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