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[To conclude: it is clear, that if, 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 (r). For the former hanging was no execution of the sentence; and if a false tenderness were to be indulged in such cases, a multitude of collusions might ensue. Nay, even while abjurations were in force, such a criminal, so reviving, was not allowed to take sanctuary and abjure the realm; but his fleeing to sanctuary was held an escape in the officer (s).]
And, having thus arrived at the last stage of criminal proceedings, or execution, which terminates our inquiry into the law of crimes, the subject of our sixth Book, we have also reached the end, properly speaking, of these Commentaries; yet it may be useful to endeavour to recall to the memory of the student some principal outlines of the legal constitution of this country, by a 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 shall be now attempted by way of conclusion.
(r) 2 Hale, P. C. 412; Hawk. P. C. b. 2, c. 51, s. 7.
(8) Fitzh. Abr. tit. “ Corone,”
335; Finch, L. 467. As to an escape, vide sup. p. 227.
OF THE RISE, PROGRESS, AND GRADUAL IMPROVEMENT,
OF THE LAWS OF ENGLAND.
[BEFORE we enter on our present subject, in which it is proposed, by way of supplement to the whole work, to attempt an historical review of the most remarkable changes and alterations that have happened in the laws of England,—it must be observed, 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, been particularly discussed already, it cannot be expected that they should be re-examined with any degree of minuteness, which would be a most tedious undertaking. What, therefore, is at present proposed, is only to mark out some outlines of our 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 we shall consider the state of our legal policy, are the following: 1. From the earliest times to the Norman Conquest: 2. From the Norman Conquest to the reign of king Edward the first: 3. From thence to the reformation : 4. From the reformation to the restoration of king Charles the second : 5. From thence to the revolution in 1688:] 6. From the era last mentioned to the present time.
1. [And, first, with regard to the antient Britons, the aborigines of our island, we have so little handed down to us concerning them with any tolerable certainty, that
[our inquiries here must needs be very fruitless and defective. However, from Cæsar's account of the tenets and discipline of the antient Druids in Gaul, in whom centred 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 Anglesea,) 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 writing: possibly for want of letters: since it is remarkable that in all the antiquities, unquestionably British, which the industry of the moderns has discovered, 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 gavelkind, which still obtains in many parts of England, and did universally over Wales till the reign of Henry the eighth, is undoubtedly of British original. So likewise is the antient 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 remember an instance of a slighter nature mentioned in the present volume, namely, that of burning a woman guilty of the crime of petty treason by killing her husband (a).
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, mutually communicated to each other their re
(a) Vide sup. p. 77.
[spective usages, in regard to the rights of property and the punishment of crimes (6). 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 (c). 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 restored by the Normans.
Wherever this can be done, it is a matter of great curiosity, and 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 of the times, suffer by degrees insensible variations in practice (d); so that, though upon comparison 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 alteration 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 (e). Thirdly, this uncertainty of the true origin of particular customs must also in part have arisen from the means whereby Christianity was propagated among our Saxon ancestors
(0) Hale, Hist. C. L. 62.
(c) “It is an impossible piece of “chemistry,” says Hale, “ to reduce "every caput legis to its true origi
“ nal, &c.”—Hale, ubi sup. 64.
(d) Hale, ubi sup. 57.
[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 state 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 further reason may also be given for the great variety, and of course the uncertain original, of our antient established customs ; even after the Saxon ment was firmly established in this island: viz. the subdivision of the kingdom into many independent kingdoms, peopled and governed by different clans and colonies (f ). This must necessarily create an infinite diversity of laws: even though all those colonies, of Jutes, Angles, AngloSaxons, 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. This multiplicity of laws will necessarily be the case in some degree, where any kingdom is cantoned out into provincial establishments: and not under one common dispensation of laws, though under the same sovereign power. Much more will it happen where so many unconnected states are to form their own constitution and superstructure of government, though they all begin to build upon the same or similar foundations.
(f) It has been strangely sup- gressive way in which England beposed from the above passage, by a
came reduced under the dominion writer who has paid some attention of the several Teutonic tribes by to historical research (see Growth whom it was invaded. There is, of the English Constitution, &c., however, no reason to believe that by E. J. Freeman, note, 31), that his views on this subject were Blackstone was ignorant of the pro- otherwise than correct.