The Works of the Right Honourable Edmund Burke Volume VII Part 23

If we take a review of these ancient const.i.tutions, 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 t.i.tles; and it shows the ancient Saxons to have been a people extremely p.r.o.ne 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 quant.i.ty of the offence. For this purpose they cla.s.sed 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 superst.i.tious 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 t.i.thes and Church dues, and for the discovery and pursuit of stealers of cattle, comprise almost all the t.i.tles deserving notice in the Saxon laws. In those laws there are frequently to be observed particular inst.i.tutions, 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 maxims[86] 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 inst.i.tutions 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 const.i.tutions 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 const.i.tutions; 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 inst.i.tutions; 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.

FOOTNOTES:

[83] Decreta illi judiciorum juxta exempla Romanorum c.u.m consilio sapientium const.i.tuit.--Beda, Eccl. Hist. Lib. II. c. 5.

[84] Leg. aelfred. 38, De Pugna.

[85] Justum est ut proles matrem sequatur.--Edric and Lothaire.

[86] Negatio potior est affirmatione. Possessio proprior est habenti quam deinceps repetenti.--L. c.n.u.t.

END OF VOL. VII.