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Commentaries on the Laws of England : in Four Books / by Sir William

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Commentaries on the Laws of England : in Four Books / by Sir William 405 Rise, Pbogress, &c, of the Laws. [Book IV. and then resolved that the house was content that the sheriff it; (t) sullenly do execute Lord Stafford, by severing his head from his body. It is further related, that when, afterwards, the same Lord Russell was condemned for high treason upon indictment, the king, while he remitted the ignominious part of " t^ie *sentence> observed, that his lordship would now find he was r *ao«1 L J possessed of that prerogative which in the case of Lord Stafford, he had denied him." (u) One can hardly determine, at this distance from those turbulent times, which most to disapprove of, the indecent and sanguinary zeal of the subject, or the cool and cruel sarcasm of the sovereign. if, is To conclude: it clear that upon judgment to be hanged by the neck till he is dead, the criminal be not thoroughly killed, but revives, the sheriff must hang him again. (w) For the former hanging was no execution of the sen tence; and if a false tenderness were to be indulged in such cases a multitude of collusions might ensue. Nay even while abjurations were in foroe, (a;) such a criminal, so reviving, was not allowed to take sanctuary and abjure the officer, realm; but his fleeing to sanctuary was held an escape in the (y) (3) And, having thus arrived at the last stage of criminal proceedings, or execu tion, 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 a memory some principal outlines of the legal constitution of this country; by 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. CHAPTER XXXIII. OF THE RISE, PROGRESS, AND GRADUAL IMPROVE MENTS OF THE LAWS OF ENGLAND. Befoek 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 re markable 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, it been particularly discussed already, cannot be expected that I should re-ex amine them with any degree of minuteness; which would be a most tedious I undertaking. What 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 pol ity, are the following six: 1. From the earliest times to the Norman con quest: 2. From the Norman conquest to the reign of King Edward the First: U) I bid. n Dec 1680. 2 (u) 2 Hume. 800. (u» Hat P. C. 412. 2 Hawk. P. a 488. (x) See page S32. (y) Fits. Abr. t. corone. 88. Finch. L. 467. (8) Executions in England are now private and within the walls of the prison. Statute 81 and 32 Vic. c. 24. And burning, as before stated, is abolished. See supra, 376, note. 522 Chap. 33.] Kise, Peogbess, &c, of the Laws. •tor 8. From thence to the reformation: 4. From the reformation to the *res- r *ina-t torationof King Charles the Second: 5. From thenoe to the revolution *- -* in 1688: 6. From the revolution to the present time. L And, first, with regard to the ancient Britons, the aborigines of our island, we have so little handed down to us concerning them with any tolerable cer tainty, that our inquiries here must needs be very fruitless and defective. However, from Caesar's account of the tenets and discipline of the ancient 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 writ ing: possibly for want of letters; since it is remarkable that in all the antiqui ties, unquestionably British, which the industry of the moderns has discov ered, 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 gavel-kind, which still obtains in many parts of England, and did universally over Wales- till the reign of Henry VHI, is undoubtedly of British original. So, likewise, is the ancient division of the goods of an intestate between his widow and or next of kin; which has since been revived the children, by statute of dis tributions. And we may also remember an instance of a slighter nature, men tioned in the present volume, where the same custom has continued from Caesar'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 the inhabitants and the the both British *constitution, Romans, Picts, r *.no-i and after them the various clans of Saxons and Danes, must necessar- *■ -* ily 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 re spective usages, (a) in regard to the rights of property and the punishment of crimes. So that it is morally impossible to trace out with any degree of accu racy, 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 re stored by the Normans. is a "Wherever this can be done, it matter of great curiosity, and some use: but this can very rarely be the case; not only from the reason above men tioned, 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: (b) so that, though upon compari son 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 alter ation accrued, 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 to search out the original of its laws; unless we had as authentic monuments thereof as the Jews had by the hand of Moses, (c) (a) Hal. Hist 0. L. CS. (») Ibid. 67. (e) Ibid., fiS. (1) Both petit treason, and burning as a mode of execution, are now abolished. 523 409 Rise, Pbogbess, <fcc, of the Laws. [Book IV. true customs *410i Thirdly, *this uncertainty of the origin of particular «- -I 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 «tate 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 coarse the uncertain original, of our anoient 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, peo pled 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 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.
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