salutary statute (p), which enacts inter alia as follows: that judgment of death shall henceforth be executed on any prisoner sentenced on an indictment or inquisition for murder within the walls of the prison in which the offender is confined, in the presence of the sheriff or his deputy and certain other persons; that after execution the fact of death is to be certified by * the prison [*497] surgeon, and that a coroner's inquest is to be held upon the body, though the omission to comply with any such requirement of the act will not make the execution illegal in any case where it would otherwise have been legal. (761) We have now reached the end of criminal procedure, and in the remaining pages of our Volume propose to take a retrospective survey of some conspicuous features in the history of English law. THE RISE AND PROGRESS OF THE LAWS OF ENGLAND. IN this chapter (a) is attempted a brief historical review of the most remarkable changes and alterations that have happened in the law of England; first, however, the student must be reminded that the rise and progress of many of its doctrines have been already pointed out in the course of these Commentaries, under their respective divisions: these having been already particularly discussed will not here be re-examined with any degree of minuteness. What I at present purpose is rather to mark out some outlines of an 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 the state of our legal polity will be considered, are the following: I. From the earliest times to the Norman conquest: II. From the Norman conquest to the reign of king Edward I.: III. From thence to the reformation: IV. From the reformation to the restoration of (p) 31 & 32 Vict. c. 24. (a) As authenticating generally what is stated in the above chapter, the following works may be consulted:-Ancient Laws and Inst. Eng. A.D. 1840; Hale, Hist. C. L.; Hal- (761) In the United States the punishment of criminal offenses is fully regulated by stat ute. Felony, under the statutes, is usually punished by imprisonment in the State prison. If no punishment is specially directed by the statute the penalty is death. State v. Scott, 1 Hawks (N. C.), 24, In case of misdemeanor, if the law provides no other penalty, the punishment is fine and imprisonment, or either, at the discretion of the court. State v. Roberts, 1 Hayw. (N. C.) 176. The Constitution of the United States provides that "cruel and unusual punishment" shall not be inflicted (U. S. Const. Amend., art. 8); and some of the State Constitutions contain a similar provision. See State v. Adams, 1 Brev. (S. C.) 279; Turnipseed v. State, 6 Ala. 664; Barker v. People, 3 Cow. 688; James v. Com., 12 Serg. & R. (Penn.) 220; Com. v. Wyatt, 6 Rand. (Va.) 694; U. S. v. Collins, 2 Curtis' C. C. 194. king Charles II.: V. From thence to the revolution in 1688: VI. From the revolution to the passing of the Reform Act, A.D. 1832: and VII. From the passing of the Reform Act to the present time. *I. And, first, with regard to the ancient Britons, the aborigines of our island, we have so little handed down to us concerning them [*499] with any tolerable certainty, that our inquiries here must needs be very fruitless and defective. However, from Cæsar's account of the tenets and discipline of the Druids in Gaul, in whom centered 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 some few affinities and resemblances to our English law. The very notion indeed of an oral unwritten law, delivered down from age to age, by custom and tradition merely, may have been derived from the practice of the Druids, who seem never to have committed any of their instructions to writing, possibly for want of letters; since it is remarkable that in none of the antiquities, unquestionably British, which the industry of modern archæologists has discovered, is the least trace of any character or letter to be found. The partible quality also of lands by the custom of gravelkind, which still obtains in some parts of England, and did universally over Wales till the reign of Henry VIII., is probably of British origin. The various nations which successively broke in upon and destroyed the British inhabitants and constitution, the Romans, the Picts, and, after them, the various clans of Saxons and Danes, must necessarily have caused confusion and uncertainty in the laws and antiquities of the kingdom; forasmuch as they became gradually incorporated and blended together, and therefore, we may suppose, communicated to each other their respective usages, regarding the rights of property and the punishment of crimes. It is therefore morally impossible to trace out, with any degree of accuracy, when the several mutations of the common law were made, or whence respectively originated those several customs which we at present use, by any chemical resolution of them into their first and component principles. We can seldom pronounce, that this custom was derived from the Britons; that was left behind by [* 500 ] 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 it can rarely be done, partly for the reason above-mentioned, and also for the following reasons. 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: so that, though upon comparison we may plainly discern the alteration of a law from what it was five hundred years ago, yet it may be impossible to define the precise period in which that alteration occurred, 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 successfully to search out and to fix with certainty the origin of its laws. Thirdly, this uncertainty as to the true source of particu lar 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 doubtless carried with them many of their own national customs; and probably prevailed upon the state to abrogate such usages as were inconsistent with our religion, and to introduce others that were more conformable thereto. And this perhaps may have partly been the cause, that we find at an early period rules not only of the mosaical, but also of the imperial and pontifical laws, blended with and adopted into our own system. A further reason may also be given for the great * variety, and of [* 501] course the uncertain origin, of our ancient established customs: even after the Saxon government was firmly established in this island: viz. the subdivision of the country into a heptarchy, consisting of seven independent kingdoms, peopled and governed by different clans and colonies. This must have tended to create an infinite diversity of laws: even though all those colonies, of Jutes, Angles, Anglo-Saxons, 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. A multiplicity of laws must necessarily be where a kingdom is cantoned out into provincial establishments; not under one common dispensation of laws, though under the same sovereign power. Much more must it have existed where each of seven unconnected states had independently to form its own constitution and superstructure of government, though all these states began to build upon the same or similar foundations. When therefore the West Saxons had swallowed up all the rest, and the monarchy of England, whereof Egbert was the founder, came into existence, a great and necessary work was begun and gradually carried out, being no less than the modelling of a constitution, the building of it on a plan that should endure for ages, and the forming out of many old discordant materials, which were heaped upon each other in a vast and rude irregularity, of one uniform and well connected whole. This was effected, by reducing the kingdom under one regular subordination of government, wherein each man was answerable to his immediate superior for his own conduct and that of his nearest neighbours: by the subdivision of England into tithings and hundreds, if not into counties; all under the influence and administration of one supreme magistrate; 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: by collecting the various cus[* 502] toms dispersed throughout the kingdom, and reducing and digesting them into one uniform system: and by establishing tribunals for the trial of causes civil and criminal, in the very districts wherein complaints 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 held 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, dealt a severe blow to this noble fabric; but a plan so excellently concerted could not be altogether thrown aside. So that, upon the expulsion of these intruders, the English returned for the most part to their ancient la v; retaining, however, some few of the customs of their late visitants; which went under the name of Dane-Lage; as the code compiled during the heptarchy was called the West-Saxon-Lage; and the local constitutions of the ancient kingdom of Mercia, which obtained in the counties nearest to Wales, and probably included very many British customs, were called the Mercen-Lage. And these three collections of 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 not having been materially altered or discontinued through the shocks and mutations of government, though the laws and customs therein used, have (as we shall see) often suffered considerable changes. For King Edgar observing the ill effects of three distinct 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 of laws to be observed throughout the whole kingdom; being perhaps no more than a revival of some pre-existing code, with im * provements suggested by necessity and experience; particularly the [*503] 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 best supported and most plausible conjecture (for certainty is not to be expected) respecting the rise and origin of some considerable portion of that admirable system of maxims and unwritten customs which is now known to us as the common law. Among the most remarkable features of the Saxon system of government and laws we may reckon, 1. The holding of general assemblies of the principal and wisest men in the nation: the wittena-gemote, or commune consilium of the ancient Germans; without whose concurrence 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 a hereditary succession to the crown. But the right of electing 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 tythingmen and borseholders at the leet, was vested in the people, some till the Norman conquest, others for two centuries after it, whilst some remain so 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, perhaps, in case 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 a first offence; even the most notorious offender being allowed to commute his punishment for a fine or weregild, or, in default of payment, perpetual *bondage; to which the benefit of clergy afterwards [* 504] in some measure succeeded. 5. The prevalence of certain customs and military services which much resembled those under the feudal constitution, but yet were exempt from its rigorous hardships; and which may have been imported by the Saxons. 6. That estates were liable to forfeiture for treason, but that the doctrine of escheats and corruption of blood for felony, or any other cause, was unknown. 7. The descent of land 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 in some respects inconvenient, especially destructive to ancient families, and prejudicial to the maintenance of an 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 before himself in person, during the session of his parliament, which was usually held in different places, according as he kept the three great festivals of Christmas, Easter, and Whitsuntide. In these county courts the ecclesiastical and civil jurisdictions were blended together, the bishop and the ealdorman or sheriff sitting in the same county court; and the decisions and proceedings therein were simple and unembarrassed; an advantage which will always attend the infancy of laws, but wears off as they gradually advance to maturity. 9. Trials, among a people who had a very strong tincture of superstition, were permitted to be ordeal, by the corsned, or sel of execration, or by wager of law with compurgators, if the party chose it; but frequently a disputed question was settled in another tribunal composed of persons clothed with judicial authority over whom the shirereeve presided, though without taking part in their decision, and by whom the evidence of the litigants and the testimony of the neighbourhood were entertained. Thus stood the general frame of our polity at the time of the [* 505 ] Norman invasion; when the second period of our legal history com mences. II. This remarkable event wrought as great an alteration in our laws, as it did in our ancient line of 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 fear, and partly given without apprehension of the consequences which afterwards ensued. 1. Among the first of these alterations we may reckon the separation of the ecclesiastical from the civil courts; 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 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 large districts, for the purposes of the king's diversion; and subjecting both them, and 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 almost as penal as the death of a man. In the Saxon times; though no person was allowed to kill or chase the king's deer, yet he might start any game, pursue, and kill it, upon his own estate. But the rigour of these new constitutions vested the sole property of all the game |