thoroughly killed, but revives, the sheriff must hang him again". For the former hanging was no execution of the sentence; and, if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. Nay, even while abjurations were in force, such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm; but his fleeing to sanctuary was held an escape in the officer.

AND, having thus arrived at the last stage of criminal proceedings, or execution, the end and completion of human punishment, which was the sixth and last head to be considered under the division of public wrongs, the fourth and last object of the laws of England; it may now seem high time to put a period to these Commentaries, which, the author is very sensible, have already swelled to too great a length. But he cannot dismiss the student, for whose use alone these rudiments were originally compiled, without endeavouring to recall to his memory some principal outlines of the legal constitution of this country; by a short historical review of the most considerable revolutions that have happened in the laws of England, from the earliest to the present times. And this task he will attempt to discharge, however imperfectly, in the next or concluding chapter.

w 2 Hal. P. C. 412. 2 Hawk. P. C. c. 61. § 7.

* See page 332.

y Fitz. Abr. t. corone, 33. Finch. L. 467.

VOL. IV.

H H

CHAPTER THE THIRTY-THIRD.

THE RISE, PROGRESS, AND GRADUAL IMPROVEMENTS, OF THE LAWS OF ENGLAND,

BEFORE
EFORE we enter on the subject of this chapter, in which
I propose, by way of supplement to the whole, to attempt
an historical review of the most remarkable changes and
alterations, that have happened in the laws of England, I
must first of all remind the student, that the rise and progress
of many principal points and doctrines have been already
pointed out in the course of these Commentaries, under their
respective divisions; these having therefore been particularly
discussed already, it cannot be expected that I should re-
examine them with any degree of minuteness; which would
be a most tedious undertaking. What I therefore at present
propose, is only 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 I shall consider the state of our legal polity, are the following six: 1. From the earliest times to the Norman conquest: 2. From the Norman conquest to the reign of king Edward the first: 3. From thence to the reformation: 4. From the reformation to the res[408]toration of king Charles the second: 5. From thence to the revolution in 1688: 6. From the revolution to the present time.

I. AND, first, with regard to the antient Britons, the aborigines of our island, we have so little handed down to us concerning them 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 antient 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 a few points, which bear a great affinity and resemblance to some of the modern doctrines of our English law. Particularly the very notion itself of an oral unwritten law, delivered down from age to age, by custom and tradition merely, seems derived from the practice of the Druids, who never committed any of their instructions to writing: possibly for want of letters; since it is remarkable that in all the antiquities, unquestionably British, which the industry of the moderns has discovered, there is not in any of them the least trace of any character or letter to be found. The partible quality also of lands by the custom of gavelkind, which still obtains in many parts of England, and did universally over Wales till the reign of Henry VIII. is undoubtedly of British original. So likewise is the antient division of the goods of an intestate between his widow and children, or next of kin; which has since been revived by the statute of distributions. And we may also remember an instance of a slighter nature mentioned in the present volume, where the same custom has continued from Cæsar's time to the present; that of burning a woman guilty of the crime of petit treason by killing her husband. (1)

THE great variety of nations, that successively broke in upon and destroyed both the British inhabitants and constitution, the Romans, the Picts, and after them, the various [ 409 ] clans of Saxons and Danes, must necessarily have caused great confusion and uncertainty in the laws and antiquities of the kingdom; as they were very soon incorporated and blended together, and therefore we may suppose, mutually communicated to each other their respective usages, in

a Hal. Hist. C. L. 62.

(1) See ante, p. 204. n. (27).

regard to the rights of property and the punishment of crimes. So that it is morally impossible to trace out with any degree of accuracy, when the several mutations of the common law were made, or what was the respective original of those several customs we at present use, by any chemical resolution of them to their first and component principles. We can seldom pronounce, that this custom was derived from the Britons; that was left behind by 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 this can very rarely be the case; not only from the reason above-mentioned, but also from many others. 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 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 of the bed of a river, which varies it's shores by continual decreases and alluvions. Secondly, this becomes impracticable from the antiquity of the kingdom and it's government: which alone, though it had been disturbed by no foreign invasions, would make it impossible to search out the original of it's laws; unless we had as authentic monuments, thereof, as the Jews [410] had by the hand 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 our Saxon ancestors in this island; by learned foreigners brought over from Rome and other countries, who undoubtedly carried with them many of their own national customs; and probably prevailed upon the state to abrogate such usages as were inconsistent with our holy religion, and to introduce many others that were more conformable thereto. And this perhaps may have partly been the cause, that we find not only some rules of the mosaical, but also of the

imperial and pontifical laws, blended and adopted into our own system.

A FARTHER reason may also be given for the great variety, and of course the uncertain original, of our antient established customs; even after the Saxon government was firmly established in this island: viz. the subdivision of the kingdom into an heptarchy, consisting of seven independent kingdoms, peopled and governed by different clans and colonies. (2) This must necessarily 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 it's 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 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 (3), his mighty genius prompted him to undertake a most great and necessary work, which he is said to have executed in as masterly a manner: no less than to new-model the constitution; [ 411 ]

(2) The argument is equally strong, though the term heptarchy is improper; when the Saxon kingdoms were settled they were eight in number, Sussex, Kent, Wessex, East Anglia, Essex, Bernicia, Deira, and Mercia; and though Bernicia, and Deira were soon united, yet at the same time Essex, Kent, or Sussex ceased to be independent kingdoms. Turner's Hist. Anglo. Sax. vol.i. p.309. ed.3.

(3) Mr. Turner throws great discredit on the popular story that Egbert united all the rival states under his own sway, and entitled himself king of England; he observes that even to Alfred the monarchy of England cannot be justly attributed, because Danish sovereigns divided the island with him. Athelstan seems more properly the first king of England. Hist. Anglo Sax. 1. 441.