The Works of the Right Honourable Edmund Burke, Vol. 07 (of 12)

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,83 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:84 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.

4th. In regulating the several fraternities of Frank-pledges, by which all the people were naturally bound to their good behavior to one another and to their superiors; in all which they were excessively strict, in order to supply by the severity of this police the extreme laxity and imperfection of their laws, and the weak and precarious authority of their kings and magistrates.

These, with some regulations for payment of tithes and Church dues, and for the discovery and pursuit of stealers of cattle, comprise almost all the titles deserving notice in the Saxon laws. In those laws there are frequently to be observed particular institutions, well and prudently framed; but there is no appearance of a regular, consistent, and stable jurisprudence. However, it is pleasing to observe something of equity and distinction gradually insinuating itself into these unformed materials, and some transient flashes of light striking across the gloom which prepared for the full day that shone out afterwards. The clergy, who kept up a constant communication with Rome, and were in effect the Saxon legislators, could not avoid gathering some informations from a law which never was perfectly extinguished in that part of the world. Accordingly we find one of its principles had strayed hither so early as the time of Edric and Lothaire.85 There are two maxims86 of civil law in their proper terms in the code of Canute the Great, who made and authorized that collection after his pilgrimage to Rome; and at this time, it is remarkable, we find the institutions of other nations imitated. In the same collection there is an express reference to the laws of the Werini. From hence it is plain that the resemblance between the polity of the several Northern nations did not only arise from their common original, but also from their adopting, in some cases, the constitutions of those amongst them who were most remarkable for their wisdom.

In this state the law continued until the Norman Conquest. But we see that even before that period the English law began to be improved by taking in foreign learning; we see the canons of several councils mixed indiscriminately with the civil constitutions; and, indeed, the greatest part of the reasoning and equity to be found in them seems to be derived from that source.

Hitherto we have observed the progress of the Saxon laws, which, conformably to their manners, were rude and simple,—agreeably to their confined situation, very narrow,—and though in some degree, yet not very considerably, improved by foreign communication. However, we can plainly discern its three capital sources. First, the ancient traditionary customs of the North, which, coming upon this and the other civilized parts of Europe with the impetuosity of a conquest, bore down all the ancient establishments, and, by being suited to the genius of the people, formed, as it were, the great body and main stream of the Saxon laws. The second source was the canons of the Church. As yet, indeed, they were not reduced into system and a regular form of jurisprudence; but they were the law of the clergy, and consequently influenced considerably a people over whom that order had an almost unbounded authority. They corrected, mitigated, and enriched those rough Northern institutions; and the clergy having once, bent the stubborn necks of that people to the yoke of religion, they were the more easily susceptible of other changes introduced under the same sanction. These formed the third source,—namely, some parts of the Roman civil law, and the customs of other German nations. But this source appears to have been much the smallest of the three, and was yet inconsiderable.

The Norman Conquest is the great era of our laws. At this time the English jurisprudence, which, had hitherto continued a poor stream, fed from some few, and those scanty sources, was all at once, as from a mighty flood, replenished with a vast body of foreign learning, by which, indeed, it might be said rather to have been increased than much improved: for this foreign law, being imposed, not adopted, for a long time bore strong appearances of that violence by which it had been first introduced. All our monuments bear a strong evidence to this change. New courts of justice, new names and powers of officers, in a word, a new tenure of land as well as new possessors of it, took place. Even the language of public proceedings was in a great measure changed.

END OF VOL. VII

1

Lucan, I. 129 to 135.

2

The manuscript from which this Letter is taken is in Mr. Burke's own handwriting, but it does not appear to whom it was addressed, nor is there any date affixed to it. It has been thought proper to insert it here, as being connected with the subject of the foregoing Speech.

3

Sic in MS.

4

Sic in MS.

5

Some think this port to be Witsand, others Boulogne.

6

Coway Stakes, near Kingston-on-Thames.

7

Digest. Lib. I. Tit. ii. De Origine et Progressu Juris, § 6.

8

Cic. Tusc. Quest. Lib. I

9

See this point in the Divine Legation of Moses.

10

Παρὰ παντὶ νομιζομίνων παρ' ὑμῖν θεῶν ὄφις σύμβολον μέγα καὶ μιστήριον ἀναγράφεται—Justin Martyr, in Stillingfleet's Origines Sacræ.

11

Norden's Travels.

12

Scheffer's Lapland, p. 92, the translation.

13

Cic. de Divinatione, Lib. I.

14

Decor.... perficitur statione,.... cum Jovi Fulguri, et Cœlo, et Soli, et Lunæ ædificia sub divo hypæthraque constituentur. Horum enim deorum et species et effectus in aperto mundo atque lucenti præsentes videmus.—Vitruv. de Architect. p. 6. de Laet. Antwerp.

15

There is a curious instance of a ceremony not unlike this in a fragment of an ancient Runic history, which it may not be disagreeable to compare with this part of the British manners. "Ne vero regent ex improviso adoriretur Ulafus, admoto sacculo suo, eundem quatere cœpit, carmen simul magicum obmurmurans, hac verborum formula: Duriter increpetur cum tonitru; stringant Cyclopia tela; injiciant manum Parcæ; … acriter excipient monticolæ genii plurimi, atque gigantes … contundent; quatient; procellæ …, disrumpent lapides navigium ejus...."—Hickesii Thesaur. Vol. II. p. 140.

16

Inhabitants of Norfolk and Suffolk.

17

Rem Romanam huc satietate gloriæ provectam, ut externis quoque gentibus quietem velit.—Tacit. Annal. XII. 11.

18

Nam duces, ubi impetrando triumphalium insigni sufficere res suas crediderant, hostam omittebant.—Tacit. Annal. IV. 23.

19

Sigonii de Antiquo Jure Provinciarum, Lib. 1 and 2.

20

Cic. in Verrem, I.

21

Duobus insuper inserviendum tyrannis; quorum legatus in sanguinem, procurator in bona sæviret—Tacit. Annal. XII. 60.

22

Ne vim principatus resolveret cuncta ad senatum vocando, eam conditionem esse imperandi, ut non aliter ratio constet, quam si uni reddatur.—Tacit. Annal. I. 6.

23

Tacit. Annal. XV. 21, 22.

24

The four roads they called Watling Street, Ikenild Street, Ermin Street, and the Fosseway.

25

Cod. lib. XII. Tit. lxii.

26

Neque conjugiis suscipiendis neque alendis liberis sueti, orbas sine posteris domos relinquebant. Non enim, ut olim, universæ legiones deducebantur cum tribunis et centurionibus et suis cujusque ordinis militibus, ut consensu et caritate rempublicam efficerent, sed ignoti inter se, diversis manipulis, sine rectore, sine affectibus mutuis, quasi ex alio genere mortalium repente in unum collecti, numerus magis quam colonia—Tacit. Annal. XIV. 27.

27

Leges Inæ, 32, De Cambrico Homine Agrum possidente.—Id. 54

28

"Veteri usus augurio," says Henry of Huntingdon, p. 321.

29

Bede, Hist. Eccl. Lib. II. c 13.

30

Deos gentiles, et solem vel lunam, ignem vel fluvium, torrentem vel saxa, vel alicujus generis arborum ligna.—L. Cnut. 5.—Superstitiosus ille conventus, qui Frithgear dicitur, circa lapidem, arborem, fontem.—Leg. Presb. Northumb.

31

Spelman's Glossary, Tit. eod.

32

The night-mare.

33

L. Inæ, 26.

34

Oslacus … promissâ cæsarie heros.—Chron. Saxon. 123.

35

L. Ælfred. 31. L. Cnut. apud Brompt. 27.

36

Eadgarus nobilibus torquium largitor.—Chron. Sax. 123 Bed. Hist. Eccl. Lib. IV. c. 29.

37

Inesse quinetiam sanctum aliquid et providum putant; nec aut consilia carum aspernantur aut responsa negligunt.—Tacit. de Mor. Ger. c. 8.

38

Bed. Hist. Eccl. Lib. I. c. 30.

39

Id. c. cod.

40

Dugdale's History of St. Paul's.

41

Bed. Hist. Eccl. Lib. IV. c. 13.

42

Bed. Hist. Eccl. Lib IV. c. 13.

43

Spelm. Concil. p. 329.

44

Instauret etiam Dei ecclesiam; … et instauret vias publicas pontibus super aquas profundas et super cænosas vias; … manumittat servos suos proprios, et redimat ab aliis hominibus servos suos ad libertatem.—L Eccl. Edgari, 14.

45

Aidanus, Finan, Colmannus miræ sanctitatis fuerunt et parsimoniæ.... Adeo autem sacerdotes erant illius temporis ab avaritia immunes, ut nec territoria nisi coacti acciperent.—Hen. Huntingd. Lib. III. p. 333. Bed. Hist. Eccl. Lib. III c. 26.

46

Icolmkill, or Iona.

47

No Saxon monarch until Athelstan.

48

Historians, copying after one another, and examining little, have attributed to this monarch the institution of juries, an institution which certainly did never prevail amongst the Saxons. They have likewise attributed to him the distribution of England into shires, hundreds, and tithings, and of appointing officers over these divisions. But it is very obvious that the shires were never settled upon any regular plan, nor are they the result of any single design. But these reports, however ill imagined, are a strong proof of the high veneration in which this excellent prince has always been held; as it has been thought that the attributing these regulations to him would endear them to the nation. Be probably settled them in such an order, and made such reformations in his government, that some of the institutions themselves which he improved have been attributed to him: and, indeed, there was one work of his which serves to furnish us with a higher idea of the political capacity of that great man than any of these fictions. He made a general survey and register of all the property in the kingdom, who held it, and what it was distinctly: a vast work for an age of ignorance and time of confusion, which has been neglected in more civilized nations and settled times. It was called the Roll of Winton, and served as a model of a work of the same kind made by William the Conqueror.

49

They had no other nobility; yet several families amongst them were considered as noble.

50

Arma sumere non ante cuiquam moris, quàm civitas suffecturum probaverit.—Tacitus de Mor. Germ. 13.

51

Nihil autem neque publicæ neque privatæ rei nisi armati agunt.—Tacitus de Mor. Germ. 13.

52

Cæteri robustioribus ac jam pridem probatis aggregantur.—Id. ibid.

53

Illum defendere, tueri, sua quoque fortia facta gloriæ ejus as signare, præcipuum sacramentum est.—Id. 14.

54

Deputed authority, guardianship, &c., not known to the Northern nations; they gained this idea by intercourse with the Romans.

55

Jud. Civ. Lund. apud Wilk. post p. 68.

56

Spelman of Feuds, ch. 5.

57

Fuerunt etiam in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia vel per liberas consuetudines.—For the original of copyholds, see Bracton, Lib. I. fol. 7.

58

Ibi debent populi omnes et gentes universæ singulis annis, semel in anno scilicet, convenire, scilicet in capite Kal. Maii, et se fide et sacramento non fracto ibi in unam et simul confœderare, et consolidare sicut conjurati fratres ad defendendum regnum contra alienigenas et contra inimicos, unâ cum domino suo rege, et terras et honores illius omni fidelitate cum eo servare, et quod illi ut domino suo regi intra et extra regnum universum Britanniæ fideles esse volunt—LL. Ed. Conf. c. 35.—Of Heretoches and their election, vide Id. eodem.

Probibitum erat etiam in eadem lege, ne quis emeret vivum animal vel pannum usatum sine plegiis et bonis testibus.—Of other particulars of buying and selling, vide Leges Ed. Conf. 38.

59

Sheriff in the Norman times was merely the king's officer, not the earl's. The earl retained his ancient fee, without jurisdiction; the sheriff did all the business. The elective sheriff must have disappeared on the Conquest; for then all land was the king's, either immediately or mediately, and therefore his officer governed.

60

How this assembly was composed, or by what right the members sat in it, I cannot by any means satisfy myself. What is here said is, I believe, nearest to the truth.

61

Hence, perhaps, all men are supposed cognizant of the law.

62

Debet etiam rex omnia rite facere in regno, et per judicium procerum regni.—Debet … justitiam per consilium procerum regni sui tenere.—Leges Ed. 17.

63

The non-observance of a regulation of police was always heavily punished by barbarous nations; a slighter punishment was inflicted upon the commission of crimes. Among the Saxons moat crimes were punished by fine; wandering from the highway without sounding an horn was death. So among the Druids,—to enforce exactness in time at their meetings, he that came last after the time appointed was punished with death.

64

The Druids judged not as magistrates, but as interpreters of the will of Heaven. "Ceterum neque animadvertere, neque vincire, neque verberare quidem, nisi sacerdotibus permissum; non quasi in pœnam, nec ducis jussu, sed velut Deo imperante," says Tacitus, de Mor. German. 7.

65

Si quis emendationem oppidorum vel pontium vel profectionem militarem detrectaverit, compenset regi cxx solidis, … vel purget se, et nominentur ei xiv, et eligantur xi.—Leges Cnuti, 62.

66

Si accusatio sit, et purgatio male succedat, judicet Episcopus.—Leges Cnuti, 53.

67

Every man not privileged, whether he be paterfamilias, (heorthfest,[Heorthfeste,—the same with Husfastene, i.e. the master of a family, from the Saxon, Hearthfæst, i.e. fixed to the house or hearth]) or pedissequa, (folghere,[The Folgheres, or Folgeres, were the menial servants or followers of the Husfastene, or Housekeepers.—Bracton, Lib. III., Tract. 2, cap. 10. Leges Hen. I. cap. 8]) must enter into the hundred and tithing, and all above twelve to swear he will not be a thief or consenting to a thief.—Leges Cnuti, 19.