Part 12 (1/2)

[Footnote 39: Hallam says, ”It was, however, to the county court that an English freeman chiefly looked for the maintenance of his civil rights.”--_2 Middle Ages_, 392.

Also, ”This (the county court) was the great const.i.tutional judicature in all questions of civil right.”--_Ditto_, 395.

Also, ”The liberties of these Anglo-Saxon thanes were chiefly secured, next to their swords and their free spirits, by the inestimable right of deciding civil and criminal suits in their own county courts.”--_Ditto_, 399.]

[Footnote 40: ”Alfred may, in one sense, be called the founder of these laws, (the Saxon,) for until his time they were an unwritten code, but he expressly says, '_that I, Alfred, collected the good laws of our forefathers into one code, and also I wrote them down_'--which is a decisive fact in the history of our laws well worth noting.”--_Introduction to Gilbert's History of the Common Pleas_, p. 2, _note_.

Kelham says, ”Let us consult our own lawyers and historians, and they will tell us * * that Alfred, Edgar, and Edward the Confessor, were the great _compilers and restorers_ of the English Laws.”--_Kelham's Preliminary Discourse to the Laws of William the Conqueror_, p. 12.

_Appendix to Kelham's Dictionary of the Norman Language._

”He (Alfred) also, like another Theodosius, _collected the various customs_ that he found dispersed in the kingdom, and reduced and digested them into one uniform system, or code of laws, in his _som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for the use of the court baron, hundred and county court, the court-leet and sheriff's tourn, tribunals which he established for the trial of all causes, civil and criminal, in the very districts wherein the complaints arose.”--_4 Blackstone_, 411.

Alfred himself says, ”Hence I, King Alfred, gathered these together, and commanded many of those to be written down which our forefathers observed--those which I liked--and those which I did not like, by the advice of my Witan, I threw aside. For I durst not venture to set down in writing over many of my own, since I knew not what among them would please those that should come after us. But those which I met with either of the days of me, my kinsman, or of Offa, King of Mercia, or of aethelbert, who was the first of the English who received baptism--those which appeared to me the justest--I have here collected, and abandoned the others. Then I, Alfred, King of the West Saxons, showed these to all my Witan, and they then said that they were all willing to observe them.”--_Laws of Alfred, translated by R. Price, prefixed to Mackintosh's History of England_, _vol._ 1. _45 Lardner's Cab. Cyc._

”King Edward * * projected and begun what his grandson, King Edward the Confessor, afterwards completed, viz., one uniform digest or body of laws to be observed throughout the whole kingdom, _being probably no more than a revival of King Alfred's code_, with some improvements suggested by necessity and experience, particularly the incorporating some of the British, or, rather, Mercian _customs_, and also _such of the Danish_ (customs) as were reasonable and approved, into the _West Saxon Lage_, which was still the ground-work of the whole. And this appears to be the best supported and most plausible conjecture, (for certainty is not to be expected,) of the rise and original of that admirable system of maxims and unwritten customs which is now known by the name of the _common law_, as extending its authority universally over all the realm, and which is doubtless of Saxon parentage.”--_4 Blackstone_, 412.

”By the _Lex Terrae_ and _Lex Regni_ is understood the laws of Edward the Confessor, confirmed and enlarged as they were by William the Conqueror; and this Const.i.tution or Code of Laws is what even to this day are called '_The Common Law of the Land_.'”--_Introduction to Gilbert's History of the Common Pleas_, p. 22, _note_.]

[Footnote 41: Not the conqueror of the English people, (as the friends of liberty maintain,) but only of Harold the usurper.--See _Hale's History of the Common Law_, ch. 5.]

[Footnote 42: For all these codes see Wilkins' Laws of the Anglo-Saxons.

”Being regulations adapted to existing inst.i.tutions, the Anglo-Saxon statutes are concise and technical, alluding to the law which was then living and in vigor, rather than defining it. The same clauses and chapters are often repeated word for word, in the statutes of subsequent kings, showing that enactments which bear the appearance of novelty are merely declaratory. Consequently the appearance of a law, seemingly for the first time, is by no means to be considered as a proof that the matter which it contains is new; nor can we trace the progress of the Anglo-Saxon inst.i.tutions with any degree of certainty, by following the dates of the statutes in which we find them first noticed. All arguments founded on the apparent chronology of the subjects included in the laws, are liable to great fallacies. Furthermore, a considerable portion of the Anglo-Saxon law was never recorded in writing. There can be no doubt but that the rules of inheritance were well established and defined; yet we have not a single law, and hardly a single doc.u.ment from which the course of the descent of land can be inferred. * * Positive proof cannot be obtained of the commencement of any inst.i.tution, because the first written law relating to it may possibly be merely confirmatory or declaratory; neither can the non-existence of any inst.i.tution be inferred from the absence of direct evidence. Written laws were modified and controlled by customs of which no trace can be discovered, until after the lapse of centuries, although those usages must have been in constant vigor during the long interval of silence.”--_1 Palgrave's Rise and Progress of the English Commonwealth_, 58-9.]

[Footnote 43: Rapin says, ”The customs now practised in England are, for the most part, the same as the Anglo-Saxons brought with them from Germany.”--_Rapin's Dissertation on the Government of the Anglo-Saxons_, vol. 2, Oct. Ed., p. 198. See _Kelham's Discourse before named_.]

[Footnote 44: Hallam says, ”The county of Suss.e.x contains sixty-five ('hundreds'); that of Dorset forty-three; while Yorks.h.i.+re has only twenty-six; and Lancas.h.i.+re but six.”--_2 Middle Ages_, 391.]

[Footnote 45: Excepting also matters pertaining to the collection of the revenue, which were determined in the king's court of exchequer. But even in this court it was the law ”_that none be amerced but by his peers_.”--_Mirror of Justices_, 49.]

[Footnote 46: ”For the English laws, _although not written_, may, as it should seem, and that without any absurdity, be termed laws, (since this itself is law--that which pleases the prince has the force of law,) I mean those laws which it is evident were promulgated by the advice of the n.o.bles and the authority of the prince, concerning doubts to be settled in their a.s.sembly. For if from the mere want of writing only, they should not be considered laws, then, unquestionably, writing would seem to confer more authority upon laws themselves, than either the equity of the persons const.i.tuting, or the reason of those framing them.”--_Glanville's Preface_, p. 38. (Glanville was chief justice of Henry II., 1180.) _2 Turner's History of the Anglo-Saxons_, 280.]

[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet Cyclopaedia, 266.]

[Footnote 48: If the laws of the king were received as authoritative by the juries, what occasion was there for his appointing special commissioners for the trial of offences, without the intervention of a jury, as he frequently did, in manifest and acknowledged violation of Magna Carta, and ”the law of the land?” These appointments were undoubtedly made for no other reason than that the juries were not sufficiently subservient, but judged according to their own notions of right, instead of the will of the king--whether the latter were expressed in his statutes, or by his judges.]

[Footnote 49: Of course, Mr. Reeve means to be understood that, in the hundred court, and court-leet, _the jurors were the judges_, as he declares them to have been in the county court; otherwise the ”bailiff”

or ”steward” must have been judge.]

[Footnote 50: The jurors were sometimes called ”a.s.sessors,” because they a.s.sessed, or determined the amount of fines and amercements to be imposed.]

[Footnote 51: ”The barons of the Hundred” were the freeholders. Hallam says: ”The word _baro_, originally meaning only a man, was of very large significance, and is not unfrequently applied to common freeholders, as in the phrase _court-baron_.”--_3 Middle Ages_, 14-15.

_Blackstone_ says: ”The _court-baron_ * * is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called; for that it is held before the freeholders who owe suit and service to the manor.”--_3 Blackstone_, 33.]

[Footnote 52: The ancient jury courts kept no records, because those who composed the courts could neither make nor read records. Their decisions were preserved by the memories of the jurors and other persons present.]

[Footnote 53: Stuart says:

”The courts, or civil arrangements, which were modelled in Germany, preserved the independence of the people; and having followed the Saxons into England, and continuing their importance, they supported the envied liberty we boast of. * *