Page images
PDF
EPUB

the commission of the crime, should instantly awake the attendant idea of punishment. Delay of execution only serves to separate these ideas : and then the execution itself affects the minds of the spectators rather as a terrible sight, than as the necessary consequence of transgression.

The sheriff cannot alter the manner of the execution by substituting one mode of death for another, without being himself guilty of felony. But the king can change one mode of death for another ; because this prerogative being founded in mercy, and immemoriably exercised by the crown, is part of the common law. For in every instance, these exchanges have been for more merciful kinds of deaih. It is observable that when lord Stafford was executed for the popish plot in the reign of Charles II., the three sheriffs of London having received the king's writ for beheading him, petitioned the house of lords for a command or order from their lordships how the said judgment should be executed; for having been prosecuted by impeachment, they entertained a notion, (which is said to have been countenanced by lord Russell,) that the king could not pardon any part of the sentence. The lords resolved that the sheriff's scruples were unnecessary, and declared that the king's writ ought to be obeyed. Disappointed of raising a flame in that assembly, they immediately signified to the house of commons, by one of the members, that they were not satisfied as to the power of the said writ. That house took two days to consider of it, and then sullenly resolved that the house was content that the sherills do execute lord Stafford, by severing his head from his body. It is further related, that when the same lord Russell was himself afterwards condemned for high treason upon indictment, the king, while he remitted the ignoininious part of the sentence, sarcastically observed, that “ his lordship would now find that he was possessed of that prerogative, which in the case of lord Stafford he had denied him.”

A common opinion prevails, that if after hanging the usual time, a person

should be cut down, and revive by any means, the law has no longer any demand on him, but this is a great mistake : for as he was sentenced to be hanged by the neck till he was dead, the former was not an execution of the sentence: and, therefore, the sheriff at his peril must hang him again till the law's extent be fulfilled ; for if a false tenderness were indulged in such cases, a multitude of collusions might ensue.

We have now attended the unhappy criminal, from his first apprehension by the constable, through all the stages of his trial to his final execution. How happily might not the felon have lived in society, had he not broken God's holy laws and commandments, and wilfully violated those wise and equitable human laws which are grounded on the ten commandments, and which merely required his obedience, in return for the constant protection which they afforded him against the oppressions of others. We have seen low surely and closely punishment treads on the heels of transgres

sion ; we have seen that the English code of criminal justice is not a system of relentless cruelty, but of wisdom and compassion ; we have ob served with what care and jealousy the laws watch over the life, the liberty, and the property even of the meanest subject ; we have seen that the guilty often escape the vengeance of the law through the most trifling circumstance; and that the wise institution of a grand as well as a petit jury, almost to a certainty secures an innocent man from punishment ; we have admired that clemency of the law which even after judgment creates a peradventure that the criminal may yet escape with his life ; we have beheld how the royal prerogative of pardon is calculated to soften the rigour of the law, when its strict execution would be too severe: and we contemplate with satisfaction and gratitude, that it cannot fail to be exercised upon all suitable occasions, whilst God himself keeps the hearts of kings in his own hand. *

THE RISE, PROGRESS, AND GRADUAL IMPROVEMENT

OF THE LAWS OF ENGLAND.

What is at present proposed is only to mark out some outlines of English juridical history, by taking a chronological view of the state of the laws, and their successive mutations at different periods of time ; and the several periods under which they will be considered are the following six :

I. From the earliest times to the Norman conquest.
II. From the Norman conquest to the reign of Edward I.
III. From thence to the Reformation.
IV. From the Reformation to the Restoration of king Charles II.
V. From thence to the Revolution, 1688.
VI. From thence to the present times.

I. 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 certainty, that our inquiries must necessarily be both fruitless and defective. However, from the account which Cæsar has handed down in his commentaries of the tenets and ancient 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

* Blackstone's Commentaries, with professor Christian's Notes_Custance on the Constitution--Statutes at large.

the English law. Particularly, the very notion itself of an oral unwritten law, delivered down from age to age by custom and tradition merely, seems to have been derived from Druidical practice, who never committed any of their instructions to writing, unquestionably from the want of letters, since it is remarkable that in all the antiquities (unquestionably British) which modern industry has discovered, there is not the least trace of any character or letter in any of them to be found. The partible quality, also, of lands, by the custom of gravel-kind, which still obtains in many parts of England, and universally prevailed all over Wales till the reign of Henry VIII., is undoubtedly of British original. So likewise is the ancient 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 mention an instance of a slighter nature, mentioned under the head of treason, where the same custom has continued since Cæsar's time, although it has now been altered by statute, 30 Geo. III., that of burning a woman guilty of the crime of petty treason by killing her husband. The law now determines by the above statute that women guilty of petit treason shall no longer be sentenced to be burnt, but that in all such cases they shall be subject besides to the same judgment with regard to dissection and the time of execution, as is customary in cases of murder.

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 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 materially communicated to each other their respective usages 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 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 with certainty, that this custom was derived from the Britons; that that was left behind by the Romans ; that this was a necessary precaution against the Picts; or that that was introduced by the Saxons, discontinued by the Danes, and afterwards restored by the Normans.

Wherever this can be done, it is matter of great curiosity, and perhaps of 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

* Hallan's Hist. c. L. 62

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 impossible to define the precise period in which that alteration accrued, any more than we can discern the changes that the bed of a river undergoes which gradually and imperceptibly varies its shores by continual decreases and alluvions. Secondly, this becomes impractible, from the antiquity of the kingdom and its government : which, although it had never been disturbed by foreign invasions, would alone make it impossible to search out the original of its laws, unless we had as effectual monuments thereof as the Jews had by the hands 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 the Saxon inbabitants of England, by learned foreigners, brought over from Rome and other countries, who undoubtedly introduced many of their own national customs, and probably prevailed on the state to abrogate such usages as were inconsistent with our holy religion, and to introduce many others that were more in conformity with its precepts. And this may have been partly the cause, that we not only find some rules of the Mosaical, but also of the imperial and pontifical laws, blended with and adopted into our system.

A further reason may also be given for the great variety, and of course the uncertain original, of many ancient established customs ; even after the Saxon government was firmly established in England, viz.the subdivision of the kingdom into a heptarchy, consisting of seven independent kingdoms, peopled 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 sprang 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. This multiplicity of laws will necessarily be the case in some degree, where any kingdom is cantoned out into any 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, his mighty genius prompted him to undertake a magnificent and necessary work, which he is said to have executed in as masterly a manner : no less than to new-model the constitution—to

[blocks in formation]

rebuild it on a plan that should endure for ages, and out of its old and discordant materials, which were heaped on each other in vast and rude irregularity, to forin one uniform and well connected whole. This he effected by reducing the whole kingdom under one regular and gradual subordination of government, wherein each man was answerable to bis immediate superior for his own conduct and that of his immediate neignbours ; for to him we owe that master-piece of judicial polity, the subdivision of England into tithings and hundreds, if not into counties : all under the influence and administration of one sovereign, the king, in whom, as in a general reservoir, all the executive authority of the law was lodged, and from whom justice was dispensed to every part of the nation by distinct, yet communicating ducts and channels ; which wise institution has been preserved for upwards of a thousand years, from Alfred's time to the present. He 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. 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 complaint arose; all of them subject, however, to be inspected, controlled, and kept within the bounds of the universal or common law, by the king's own courts: which were then itinerant, being kept in the king's palace, and removing with his household in those royal progresses which he continually made from one end of the kingdom to the other.

The Danish invasion and conquest, which introduced new foreign customs, was a severe blow to this noble fabric: but a plan so excellently concerted could never be long thrown aside, so that upon the expulsion of these intruders, the English returned to their ancient laws: retaining, however, some few of the customs of their late visitants, which were denominated Dane-lage: as those compiled by Alfred was called the West-Saxonlage; and the local constitutions of the ancient kingdom of Mercia, which obtained in the counties nearest to Wales, and probably abounded with many British customs, were called the Mercen-lage. And these three laws were, about the beginning of the eleventh century, in use in different counties of the realm ; the provincial polity of counties and their subdivisions having never been altered or discontinued through all the shocks and mutations of government, from its first institution : though the laws and customs therein used, have (as we shall see) often suffered considerable changes.

For king Edgar, (whio, besides his military merit as founder of the English navy, was also a most excellent civil governor,) observing the ill effects of three distinct bodies of laws prevailing at once in separate parts of his dominions, projected and began what his grandson, Edward the

« PreviousContinue »