« SebelumnyaLanjutkan »
Alfred's code, with some improvements added. This is the original of that admirable system of maxims and unwritten customs, now known by the name of common law, which is of Saxon parentage.
Remarkable Saxon Laws. Among the most remarkable of the Saxon laws were:
1. The constitution of parliaments or general assemblies of the wisest men of the nation; the wittena gemote or commune consilium of the ancient Germans.
2. The election of magistrates by the people, and originally even that of their kings.
3. The descent of the crown upon hereditary principles ; 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 to the heir.
4. The great paucity of capital punishments for the first offence; even the most notorious offenders being allowed to commute it for a fine or weregild ; or in default of payment, perpetual bondage, to which our benefit of clergy has in some measure succeeded.
5. The prevalence of certain customs, as heriots and military services, in proportion to every man's land; which resembled the feudal constitution, yet were exempt from its rigorous hardships
6. That their estates were liable to forfeiture for treason, but that the doctrine of escheats and corruption of blood for felony or any other cause, was utterly unknown among them.
7. The descent of their lands 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, until the Norman conquest.
8. The courts of justice consisted principally of tbe county courts, and in cases of weight, the king's court, held before himself in person at the time of his parliaments; which were usually held at different places, where the king kept the three great festivals of Christmas, Easter and Whitsuntide. The ecclesiastical and civil jurisdiction were blended together in these county courts.
9. Trials among this superstitious people were permitted to be by ordeal, by the corsned or morsel of execration, or by wager
of law with compurgators, if the party chose it; but frequently they were also by jury.
II. THE NORMAN INVASION.
Effect, This event wrought a great alteration in our laws, which were effected rather by the consent of the people, than by any right of conquest; yet that consent was apparently partly extorted by fear, and partly from a misapprehension of consequences.
1. Separation of Ecclesiastical and Civil Courts. This was effected, in order to ingratiate the king with the clergy, who had been endeavoriug all over Europe to exempt themselves from the secular power. Many of the episcopal sees were filled by the king with Italian and Norman prelates.
2. Forest Laws. Another violent alteration of the Euglish constitution consisted in the depopulation of entire counties for the purposes of the king's royal diversion. The forest laws were imported from the continent, whereby the slaughter of a beast was made almost as penal as the death of a man.
3. Original Jurisdiction of the King's Courts. This was greatly extended, and the remedial influence of the county courts, the seats of Saxon justice, narrowed. To this end the aula regis was erected ; and a capital justiciary appointed with tyrannical powers. It was ordered, that proceediugs in the king's courts be conducted in the Norman language, which was a badge of slavery imposed upon a conquered people. This lasted, urtil Edward III had gained his victories over France.
Subtleties of Norman Jurisprudence. But there was one mischief the king could not eradicate; which were the chicanes and subtleties of Norman jurisprudence, that had taken possession of the king's courts. That age was the era of refinement and subtleties. The northern conquerors of Europe were emerging from the grossest intellectual ignorance; the scholars were cloistered in monasteries, the rest being soldiers or peasants. The first rudiments of science they imbibed were those of Aristotle's philosophy, conveyed through the medium of his Arabian commentators, brought from the east by the Saracens of Palestine and Spain, and translated into barbarous Latin.
Metaphysical Distinctions. The divinity and the law of those times were frittered into logical distinctions, and drawn out into metaphysical subtleties. Law became a science of the greatest intricacy; especially when blended with the refinements engrafted upon feudal property introduced by Norman practitioners. Statutes in later times have remedied these excrescences, but the scars are still visible; and our modern courts often have recourse to fictions and circuities to recover the justice so long buried under the niceties of Norman jurisprudence.
4. Introduction of Trial by Combat. This trial was for the decision in the last resort of all civil and criminal questions of fact. This was the immemorial practice of all the northern nations; but was first reduced to stated forms among the Burgundians, about the close of the fifth century, and from them it passed to the Franks and Normans.
5. Feudal Burdens. This was the most important alteration of our law. It drew after it a numerous and oppressive train of servile fruits and appendages, aids, reliefs, primer seisins, 'wardships, marriages, escheats, and fines for alienation; all based upon the maxim, that lands in England were derived from and held of the crown.
Degeneracy of the Times. The nation at this period groaned under an absolute slavery. The ecclesiastics were devoted to a foreign power, aud unconnected with the civil state, under which they lived. The prayers, as well as the law, were administered in an unknown tongue. The ancient trial by jury gave way to the impious decision by battel. The forest laws restrained rural pleasures. In towns, all companies had to disperse, and the fires in the houses be extinguished at eight o'clock, in the night, at the sound of the melancholy curfew.
General Demoralization. The ultimate property of all lands, and a share of the profits, were vested in the king, or by him granted to his Norman favorites, who were vassals to the crown, and tyrants to the commons. Forfeitures, talliages, aids and fines were arbitrarily exacted. The king had at his command an army of sixty thousand knights. Trade was carried on mainly by the Jews and Lombards, and there was no English fleet.
The nation consisted of the clergy, who were also the lawyers, the barons or great lords of the land, and the burghers or inferior tradesmen ; who in their socage tenure, still retained some points of their ancient freedom. All the rest were villeins or bondsmen.
Early Norman Reigns. It has been the work of generations, for our ancestors to redeem themselves from this scheme of servility; for the work of restoring the ancient constitution has been gradual. William Rufus proceeded on his father's plan, and extended the forest laws. Henry I found it expedient to restore some of the laws of Edward, the Confessor. He gave up the grievances of marriage, ward and relief, and abolished the curfew, and for a time united the civil and ecclesiastical courts; which union was soon dissolved by the Norman clergy. In the reign of Richard I, the civil and canon laws were introduced in the realm.
Reigns of Henry II and Edward I. In the reign of Henry II, the claims of marriage, ward and relief were revived, but much was done to methodize the laws, and to reduce them to regular order. A struggle was maintained, which continued until the reign of Edward I, between the laws of England and Rome; in which the English law was victorious. Four important things in this reign merit attention: the check given to the power of the clergy, which was stopped by the fatal dispute with Archbishop Becket; the institution of justices in eyre in itinere, the kingdom being divided into six circuits : the establishment of the grand assize, or trial by a special jury at the action of the defendant in a writ of right, instead of trial by battel; and the introduction of escuage or pecuniary commutation for military service.
Relgn of Richard I. Richard I enforced the forest laws with rigor, which occasioned discontent, though he repealed the penalties of castration, loss of eyes, and cutting off the hands and feet, inflicted on transgressors in hunting. He composed a body of naval laws at the Isle of Oleron, which are still extant and of high authority. His thoughts, however, were mainly concentrated on the crusade against the Saracens.
Magna Carta. Public Benefits. In the reign of John, the rigors of the feudal tenure and the forest laws caused insurrections of the barons, which finally brought about the magna carta and the carta de foresta, in John's reign, which were ratified by his son and successor, Henry III. The magna carta confirmed many liberties of the church, and redressed many grievances incident to feudal tenures ; and care was taken therein to protect the subject against other oppressions, as unjust amercements and illegal distresses. It settled the law of forfeitures for felony, established an uniformity of weights and measures, encouraged
commerce, and forbade the alienation of lands in mortmain. It continued the liberties of the cities and towns.
Other Blessings of the Great Charter. With respect to private rights, it established the testamentary power of the subject over part of his personal estate ; the rest being distributed among his wife and children. It also laid down the law of dower. With regard to the administration of justice; besides prohibiting denials or delays of it, it fixed the court of common pleas at Westminster, that suitors might not be harassed with following the king's person from place to place; and brought the trial of issues home to the very doors of the freeholder, by directing assizes to be taken in the proper counties, and establishing annual circuits. Lastly, it protected every individual in the nation in the free enjoyment of his life, liberty and property, unless declared to be forfeited by the judgment of his peers or the law of the land.
III. REIGN OF EDWARD I TO THE REFORMATION.
Acts of Edward I. Edward I has justly been styled our English Justinian. Sir Matthew Hale asserts, that more was done in the first thirteen years of his reign to establish the distributive justice of the kingdom, than in all the ages since that time.
1. He confirmed the great charter, and that of forests.
6. He discontinued the prerogative of interfering by mandates.
7. He settled the form and effect of fines.
10. He removed restraints on alienation by the statute guia emptores.
11. He instituted a speedy execution, by writ of elegit.