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[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, we are told, to undertake a most great and necessary work, which he is said to have executed in as masterly a manner; no less than to new model the constitution; to rebuild it on a plan that should endure for ages, and out of its old discordant materials, which were heaped upon each other in a vast and rude irregularity, to form 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 his immediate superior for his own conduct and that of his nearest neighbours; for to him we owe that masterpiece of judicial policy, the subdivision of England into tithings and hundreds, if not into counties, all under the influence and administration of one supreme magistrate the king : in whom, as in a general reservoir, all the executive authority of the law was lodged, and from whom justice was dispersed to every part of the nation by distinct, yet communicating ducts and channels; which wise institution has been preserved for near a thousand years unchanged, from Alfred's to the present time. He also, like another Theodosius, collected, it is said, 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 dom-bec, or liber judicialis. This he compiled for the use of the court-baron, the hundred court, the sheriff's county court, the court-leet, and the 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 antient law, retaining however some few of the customs of their late visitants, which went under the name of Dane Lage, as the code compiled by Alfred was called the West-Saxon Lage; and the local constitutions of the antient 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 policy of counties and their subdivisions having never been altered or discontinued through all the shocks and mutations of government, from the time of its first institution: though the laws and customs therein used have, as we shall see, often suffered considerable changes.
For King Edgar, (who 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 begun what his grandson King Edward the Confessor afterward 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 as were reasonable and approved, into the West-Saxon Lage, which was still the ground
(f) As to the claim of Alfred to Saxons, vol. ii. p. 149, 6th ed.; Halthe institutions mentioned in the lam's Middle Ages, vol. ii. pp. 890, text, see Turner's Hist. of the Anglo- 402, 7th ed.
[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.
Among the most remarkable of the Saxon laws we may reckon, 1. The constitution of parliament, or rather general assemblies of the principal and wisest men in the nation; the wittenagemote or commune consilium of the antient Germans, which was not yet reduced to the forms and distinctions of our modern parliament, without whose concurrence, however, no new law could be made or old one altered. 2. The election of their magistrates by the people; originally even that of their kings, till dearbought experience evinced the convenience and necessity of establishing an hereditary succession to the crown. But that of all subordinate magistrates,—their military officers or heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeves (since changed into mayors and bailiffs), and even their tithingmen and borsholders at the leet,-continued, some till the Norman conquest, others for two centuries after, and some remain to this day. 3. The descent of the crown, when once a royal family was established, upon nearly the same hereditary principles upon which it has ever since continued ; 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 back 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, in subsequent times, the benefit of clergy in some measure succeeded. 5. The prevalence of certain customs—as heriots and military services in proportion to every man's [land, which much resembled the feudal constitution, but yet were exempt from all its rigorous hardships; and which may be well enough accounted for by supposing them to be brought from the continent by the first Saxon invaders, in the primitive moderation and simplicity of the feudal law, before it got into the hands of the Norman jurists; who extracted the most slavish doctrines and oppressive consequences out of what was originally intended as a law of liberty. 6. The liability of their estates to forfeiture for treason, while the doctrine of escheats and corruption of blood for felony, or any other cause, was utterly unknown amongst 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 till the Norman conquest; though really inconvenient, and more especially destructive to antient families, which are in monarchies necessary to be supported, in order to form and keep up a nobility, or intermediate state between the prince and the common people. 8. The courts of justice-consisting principally of the sheriff's county court, and in cases of weight or nicety the king's court held before himself in person, at the time of his parliaments; which were usually holden in different places, according as he kept the three great festivals of Christmas, Easter, and Whitsuntide. An institution which was adopted by King Alonso the seventh, of Castile, about a century after the Conquest, who, at the same three great feasts, was wont to assemble his nobility and prelates in his court; who there heard and decided all controversies, and then, having received his instructions, departed home (9). In these antient courts the ecclesiastical and civil jurisdiction were blended together, the bishop and the sheriff originally sitting together, and the decisions and proceedings therein were simple and unembarrassed; an advantage which will always attend
[the infancy of any laws, but wears off as they gradually advance to antiquity. 9. The modes of trial—which, among a people who had a very strong tincture of superstition, were permitted to be by ordeal, by the corsned, or morsel of execration, or by wager of law with compurgators. And to these may be added the occasional resort to modes of determining controversies, resembling, in some respects, the celebrated institution now known to us under the name of trial by jury (i). Thus stood the general frame of our policy at the time of the Norman invasion, when the second period of our legal history commences.
II. This remarkable event wrought as great an alteration in our laws, as it did in our antient line of kings; and though the alteration of the former was effected rather by the consent of the people, than by any right of conquest, yet that consent seems to have been partly extorted by fear, and partly given without any apprehension of the consequences which afterwards ensued.
1. Among the first of these alterations, we may reckon the separation of the ecclesiastical courts from the civil: effected in order to ingratiate the new king with the popish clergy, who for some time before had been endeavouring all over Europe to exempt themselves from the secular power; and whose demands the conqueror, like a politic prince, thought it prudent to comply with, by reason that their reputed sanctity had a great influence over the minds of the people, and because all the little learning of the times was engrossed into their hands, which made them necessary men, and by all means to be gained over to his interests; and this was the more easily effected, because the disposal of all the episcopal sees being then in the breast of the king, he had taken care to fill them with Italian and Norman prelates.
(i) See Turner's Hist. Ang. Sax. vol. iii. p. 223, 6th edit.; Hallam's Mid. Ag. vol. ii. p. 396, 7th ed.