by Edmund Burke
A most striking contrast presents itself between the conduct and fortune of John and his adversary Philip. Philip came to the crown when many of the provinces of Prance, by being in the hands of too powerful vassals, were in a manner dismembered from the kingdom; the royal authority was very low in what remained. He reunited to the crown a country as valuable as what belonged to it before; he reduced his subjects of all orders to a stricter obedience than they had given to his predecessors; he withstood the Papal usurpation, and yet used it as an instrument in his designs: whilst John, who inherited a great territory and an entire prerogative, by his vices and weakness gave up his independency to the Pope, his prerogative to his subjects, and a large part of his dominions to the King of France.
CHAPTER IX.
FRAGMENT. — AN ESSAY TOWARDS AN HISTORY OF THE LAWS OF ENGLAND.
There is scarce any object of curiosity more rational than the origin, the progress, and the various revolutions of human laws. Political and military relations are for the greater part accounts of the ambition and violence of mankind: this is an history of their justice. And surely there cannot be a more pleasing speculation than to trace the advances of men in an attempt to imitate the Supreme Ruler in one of the most glorious of His attributes, and to attend them in the exercise of a prerogative which it is wonderful to find intrusted to the management of so weak a being. In such an inquiry we shall, indeed, frequently see great instances of this frailty; but at the same time we shall behold such noble efforts of wisdom and equity as seem fully to justify the reasonableness of that extraordinary disposition by which men, in one form or other, have been always put under the dominion of creatures like themselves. For what can be more instructive than to search out the first obscure and scanty fountains of that jurisprudence which now waters and enriches whole nations with so abundant and copious a flood, — to observe the first principles of RIGHT springing up, involved in superstition and polluted with violence, until by length of time and favorable circumstances it has worked itself into clearness: the laws sometimes lost and trodden down in the confusion of wars and tumults, and sometimes overruled by the hand of power; then, victorious over tyranny, growing stronger, clearer, and more decisive by the violence they had suffered; enriched even by those foreign conquests which threatened their entire destruction; softened and mellowed by peace and religion; improved and exalted by commerce, by social intercourse, and that great opener of the mind, ingenuous science?
These certainly were great encouragements to the study of historical jurisprudence, particularly of our own. Nor was there a want of materials or help for such an undertaking. Yet we have had few attempts in that province. Lord Chief Justice Hale’s History of the Common Law is, I think, the only one, good or bad, which we have. But with all the deference justly due to so great a name, we may venture to assert that this performance, though not without merit, is wholly unworthy of the high reputation of its author. The sources of our English law are not well, nor indeed fairly, laid open; the ancient judicial proceedings are touched in a very slight and transient manner; and the great changes and remarkable revolutions in the law, together with their causes, down to his time, are scarcely mentioned.
Of this defect I think there were two principal causes. The first, a persuasion, hardly to be eradicated from the minds of our lawyers, that the English law has continued very much in the same state from an antiquity to which they will allow hardly any sort of bounds. The second is, that it was formed and grew up among ourselves; that it is in every respect peculiar to this island; and that, if the Roman or any foreign laws attempted to intrude into its composition, it has always had vigor enough to shake them off, and return to the purity of its primitive constitution.
These opinions are flattering to national vanity and professional narrowness; and though they involved those that supported them in the most glaring contradictions, and some absurdities even too ridiculous to mention, we have always been, and in a great measure still are, extremely tenacious of them. If these principles are admitted, the history of the law must in a great measure be deemed, superfluous. For to what purpose is a history of a law of which it is impossible to trace the beginning, and which during its continuance has admitted no essential changes? Or why should we search foreign laws or histories for explanation or ornament of that which is wholly our own, and by which we are effectually distinguished from all other countries? Thus the law has been confined, and drawn up into a narrow and inglorious study, and that which should be the leading science in every well-ordered commonwealth remained in all the barbarism of the rudest times, whilst every other advanced by rapid steps to the highest improvement both in solidity and elegance; insomuch that the study of our jurisprudence presented to liberal and well-educated minds, even in the best authors, hardly anything but barbarous terms, ill explained, a coarse, but not a plain expression, an indigested method, and a species of reasoning the very refuse of the schools, which deduced the spirit of the law, not from original justice or legal conformity, but from causes foreign to it and altogether whimsical. Young men were sent away with an incurable, and, if we regard the manner of handling rather than the substance, a very well-founded disgust. The famous antiquary, Spelman, though no man was better formed for the most laborious pursuits, in the beginning deserted the study of the law in despair, though he returned to it again when a more confirmed age and a strong desire of knowledge enabled him to wrestle with every difficulty.
The opinions which have drawn the law into such narrowness, as they are weakly founded, so they are very easily refuted. With regard to that species of eternity which they attribute to the English law, to say nothing of the manifest contradictions in which those involve themselves who praise it for the frequent improvements it has received, and at the same time value it for having remained without any change in all the revolutions of government, it is obvious, on the very first view of the Saxon laws, that we have entirely altered the whole frame of our jurisprudence since the Conquest. Hardly can we find in these old collections a single title which is law at this day; and one may venture to assert, without much hazard, that, if there were at present a nation governed by the Saxon laws, we should find it difficult to point out another so entirely different from everything we now see established in England.
This is a truth which requires less sagacity than candor to discover. The spirit of party, which has misled us in so many other particulars, has tended greatly to perplex us in this matter. For as the advocates for prerogative would, by a very absurd consequence drawn from the Norman Conquest, have made all our national rights and liberties to have arisen from the grants, and therefore to be revocable at the will of the sovereign, so, on the other hand, those who maintained the cause of liberty did not support it upon more solid principles. They would hear of no beginning to any of our privileges, orders, or laws, and, in order to gain them a reverence, would prove that they were as old as the nation; and to support that opinion, they put to the torture all the ancient monuments. Others, pushing things further, have offered a still greater violence to them. N. Bacon, in order to establish his republican, system, has so distorted all the evidence he has produced, concealed so many things of consequence, and thrown such false colors upon the whole argument, that I know no book so likely to mislead the reader in our antiquities, if yet it retains any authority. In reality, that ancient Constitution and those Saxon laws make little or nothing for any of our modern parties, and, when fairly laid open, will be found to compose such a system as none, I believe, would think it either practicable or desirable to establish. I am sensible that nothing has been, a larger theme of panegyric with, all our writers on politics and history than the Anglo-Saxon government; and it is impossible not to conceive an high, opinion of its laws, if we rather consider what is said of them than what they visibly are. These monuments of our pristine rudeness still subsist; and they stand out of themselves indisputable evidence to confute the popular declamations of those writers who would persuade us that t
he crude institutions of an unlettered people had reached a perfection which the united efforts of inquiry, experience, learning, and necessity have not been able to attain in many ages.
But the truth is, the present system of our laws, like our language and our learning, is a very mixed and heterogeneous mass: in some respects our own; in more borrowed from the policy of foreign, nations, and compounded, altered, and variously modified, according to the various necessities which the manners, the religion, and the commerce of the people have at different times imposed. It is our business, in some measure, to follow and point out these changes and improvements: a task we undertake, not from any ability for the greatness of such a work, but purely to give some short and plain account of these matters to the very ignorant.
The Law of the Romans seems utterly to have expired in this island together with their empire, and that, too, before the Saxon establishment. The Anglo-Saxons came into England as conquerors. They brought their own customs with them, and doubtless did not take laws from, but imposed theirs upon, the people they had vanquished. These customs of the conquering nation were without question the same, for the greater part, they had observed before their migration from Germany. The best image we have of them is to be found in Tacitus. But there is reason to believe that some changes were made suitable to the circumstances of their new settlement, and to the change their constitution must have undergone by adopting a kingly government, not indeed with unlimited sway, but certainly with greater powers than their leaders possessed whilst they continued in Germany. However, we know very little of what was done in these respects until their conversion to Christianity, a revolution which made still more essential changes in their manners and government. For immediately after the conversion of Ethelbert, King of Kent, the missionaries, who had introduced the use of letters, and came from Rome full of the ideas of the Roman civil establishment, must have observed the gross defect arising from a want of written and permanent laws. The king, from their report of the Roman method, and in imitation of it, first digested the most material customs of this kingdom into writing, without having adopted anything from the Roman law, and only adding some regulations for the support and encouragement of the new religion. These laws still exist, and strongly mark the extreme simplicity of manners and poverty of conception of the legislators. They are written in the English of that time; and, indeed, all the laws of the Anglo-Saxons continued in that language down to the Norman Conquest. This was different from the method of the other Northern nations, who made use only of the Latin language in all their codes. And I take the difference to have arisen from this. At the time when the Visigoths, the Lombards, the Franks, and the other Northern nations on the continent compiled their laws, the provincial Romans were very numerous amongst them, or, indeed, composed the body of the people. The Latin, language was yet far from extinguished; so that, as the greatest part of those who could write were Romans, they found it difficult to adapt their characters to these rough Northern tongues, and therefore chose to write in Latin, which, though not the language of the legislator, could not be very incommodious, as they could never fail of interpreters; and for this reason, not only their laws, but all their ordinary transactions, were written in that language. But in England, the Roman name and language having entirely vanished in the seventh century, the missionary monks were obliged to contend with the difficulty, and to adapt foreign characters to the English language; else none but a very few could possibly have drawn any advantage from the things they meant to record. And to this it was owing that many, even the ecclesiastical constitutions, and not a few of the ordinary evidences of the land, were written in the language of the country.
This example of written laws being given by Ethelbert, it was followed by his successors, Edric and Lothaire. The next legislator amongst the English, was Ina, King of the West Saxons, a prince famous in his time for his wisdom and his piety. His laws, as well as those of the above-mentioned princes, still subsist. But we must always remember that very few of these laws contained any new regulation, but were rather designed to affirm their ancient customs, and to preserve and fix them; and accordingly they are all extremely rude and imperfect. We read of a collection of laws by Offa, King of the Mercians; but they have been long since lost.
The Anglo-Saxon laws, by universal consent of all writers, owe more to the care and sagacity of Alfred than of any of the ancient kings. In the midst of a cruel war, of which he did not see the beginning nor live to see the end, he did more for the establishment of order and justice than any other prince has been known to do in the profoundest peace. Many of the institutions attributed to him undoubtedly were not of his establishment: this shall be shown, when we come to treat more minutely of the institutions. But it is clear that he raised, as it were, from the ashes, and put new life and vigor into the whole body of the law, almost lost and forgotten in the ravages of the Danish war; so that, having revived, and in all likelihood improved, several ancient national regulations, he has passed for their author, with a reputation perhaps more just than if he had invented them. In the prologue which he wrote to his own code, he informs us that he collected there whatever appeared to him most valuable in the laws of Ina and Offa and others of his progenitors, omitting what he thought wrong in itself or not adapted to the time; and he seems to have done this with no small judgment.
The princes who succeeded him, having by his labors enjoyed more repose, turned their minds to the improvement of the law; and there are few of them who have not left us some collection more or less complete.
When the Danes had established their empire, they showed themselves no less solicitous than the English to collect and enforce the laws: seeming desirous to repair all the injuries they had formerly committed against them. The code of Canute the Great is one of the most moderate, equitable, and full, of any of the old collections. There was no material change, if any at all, made in their general system by the Danish conquest. They were of the original country of the Saxons, and could not have differed from them in the groundwork of their policy. It appears by the league between Alfred and Guthrum, that the Danes took their laws from the English, and accepted them as a favor. They were more newly come out of the Northern barbarism, and wanted the regulations necessary to a civil society. But under Canute the English law received considerable improvement. Many of the old English customs, which, as that monarch justly observes, were truly odious, were abrogated; and, indeed, that code is the last we have that belongs to the period before the Conquest. That monument called the Laws of Edward the Confessor is certainly of a much later date; and what is extraordinary, though the historians after the Conquest continually speak of the Laws of King Edward, it does not appear that he ever made a collection, or that any such laws existed at that time. It appears by the preface to the Laws of St. Edward, that these written constitutions were continually falling into disuse. Although these laws had undoubtedly their authority, it was, notwithstanding, by traditionary customs that the people were for the most part governed, which, as they varied somewhat in different provinces, were distinguished accordingly by the names of the West Saxon, the Mercian, and the Danish Law; but this produced no very remarkable inconvenience, as those customs seemed to differ from each other, and from the written laws, rather in the quantity and nature of their pecuniary mulcts than in anything essential.
If we take a review of these ancient constitutions, we shall observe that their sanctions are mostly confined to the following objects.
1st. The preservation of the peace. This is one of the largest titles; and it shows the ancient Saxons to have been a people extremely prone to quarrelling and violence. In some cases the law ventures only to put this disposition under regulations: prescribing that no man shall fight with another until he has first called him to justice in a legal way; and then lays down the terms under which he may proceed to hostilities. The other less premeditated quarrels, in meetings for drinking or business, were considered as more or less heinous, according
to the rank of the person in whose house the dispute happened, or, to speak the language of that time, whose peace they had violated.
2d. In proportioning the pecuniary mulcts imposed by them for all, even the highest crimes, according to the dignify of the person injured, and to the quantity of the offence. For this purpose they classed the people with great regularity and exactness, both in the ecclesiastic and the secular lines, adjusting with great care the ecclesiastical to the secular dignities; and they not only estimated each man’s life according to his quality, but they set a value upon every limb and member, down even to teeth, hair, and nails; and these are the particulars in which their laws are most accurate and best defined.
3d. In settling the rules and ceremonies of their oaths, their purgations, and the whole order and process of their superstitious justice: for by these methods they seem to have decided all controversies.
