burgesses. In the parishes and the newly-organized vestries, the officials chosen by the local electoral bodies control the municipal relations. The social elements of all the power in the State are still composed of the gentry-of that class of proprietors which, by rents issuing out of land, money in the funds, and by higher professional capacity, are in a position to devote themselves to the concerns of local and general interest.

It is not the parliament, but the respective courts charged with the administration of the law in all its branches, which protect the freedom of the citizen-the parliamentary courts only intervening exceptionally. Added to this the enormous power of the press which, judge it as we may, cannot be gainsaid; the absence of a governing body in the nation distinct from the exclusively official class; and the truly law-loving sense of the nation fostered by the time-honoured national institution of the Jury; the opposition to all absolute political theories which, in the treatment of concrete questions and really free principles of political life, gives the English a pre-eminence over the Roman people; the respect paid to a law so long as it is endued with life, and the possibility of ignoring it immediately it has become mere paper;— these are the safeguards of the nation against a meddling governmental rule, safeguards which the continent generally is deprived of. By reason of the absence of such administrative rule, and of a governmental body which feels itself called upon to protect, at all hazards, purely abstract rights, a striking illustration of the manner in which statutes may be swept off, is afforded by an Act passed on July 21, 1856. By this single Act more than one hundred obsolete laws were abolished, for instance such as:—

13 Ed. I. c. 41, which required the chancellor and the judges of the King's Bench to follow the king.

5 Ed. III. c. 14, by which night-brawlers and suspicious persons were to be imprisoned.

4 Hen. IV. c. 29, which forbids Welshmen to carry arms; and, 1 Eliz. c. 15, forbidding the consumption of timber in the preparation of iron.

In like manner the trial by 'wager of battel,' was abolished by 59 Geo. III. c. 46, in consequence of an individual accused of murder having claimed it: whereupon it was found that, despite its non-user for many hundred years, no statute had ever been passed to set aside such medieval entering of proof.

External policy, as well as the protection of the nation against parliamentary ascendancy; the waning condition of the local institutions; the situation of the working-classes, and the inefficient solicitude bestowed on the poor in regard to their private rights and well-being, would seem to justify the desire for a strengthening of royal power in England. Queen Victoria, by reason of her good sense, virtues, and devotedness to the country, takes indeed a prominent position among the sovereigns of England; but what a bevy of tyrants and dullards range between her, Elizabeth, and William III.! And how great a display of material force, and what a series of great events is needful in order to avert from the royal authority the sentiment of distrust which a long series of bad or insignificant rulers has violently evoked!

Disraeli's dictum would pass muster, and the English constitution would be no better than that of Venice, if England only possessed her parliament as sole guardian of national rights, and had no local boards of self-dependent, albeit of aristocratic character, no common law, no independent law courts at Westminster, and above all, no jury. But because the parliament and the aristocracy are not absolute, because both are forced to recognize ascertained boundary lines, the English constitution remains far removed from the Venetian standard. The French, in 1789, endeavoured to imitate parliamentarism; they swept off the municipal groundwork, barricaded the law-courts with conflicting powers, and substituted a national assembly invested with supreme authority. Granting that Louis XVI. might never have been able to assume the character of a dangerous monarch, yet was Robespierre right in theory when, in the sitting of September 1, 1791, with trenchant criticism of the constitution of 1791, and launching condemnation against the constitution-mongers of the continent, who transferred all honour to the parliament, and assumed to believe that it was centred there, and that, by means of such visionary assembly, the overflow of absolutism might be kept in check, he exclaimed

"Louis receives, I doubt not, the constitution with rapture. The entire executive power is made over to him and his family as his patrimony; the right to uphold the measures of the several national assemblies; the power to direct them by motions which he may set aside; absolute control of the entire administrative body, who are made his mere agents; authority to regulate the interests and relationships of the people with foreign nations;

troops without number, of which to dispose; the public treasure, augmented by all the national domains, concentrated in his hands (loud murmurs): no calumny am I uttering, for the constitution says so! All this tells me that there exists no authority in the State which is not overshadowed; and everything assures me that we have refused nothing to render the constitution agreeable to him."

Without local self-government, and free, independent courts of law, trustworthy alike in regard to public and private rights, absolute rule, however covert the guise, cannot be withstood, whether that rule be wielded by the monarchy or the parliament. A parliament, apart from such safeguards, Bunsen rightly characterizes as "une mauvaise plaisanterie."

Second Part.

THE SOURCES OF ENGLISH LAW.

CHAPTER I.

COMMON LAW AND STATUTE LAW.

Scope and Origin of the Common Law.-Precedents.-People's Law.-Statute Law.— Relation between Statute and Common Law.-Writs, Orders in Council, ByeLaws.

THE Common Law is so called because it is the common municipal law or rule of justice throughout the kingdom. For although there are divers particular laws-some by custom applied to particular places, and some to particular causes-yet that law, which is common to the generality of all persons, things, and causes, and hath a superintendency over those particular laws that are admitted in relation to particular places or matters, is the common law of England.*

The Common law, which does not sever public from private law, is hence the informing spirit of the English constitution. The sources thereof are the unwritten customs of the land; but since the common law, as a law customary, is only recognizable in practice, the decisions of the courts afford means of evidence as to whether a legal conception accords with the common law.† The decisions of the courts and their rulings or "precedents" are to be scrutinized in relation to any after cases that may arise however absurd such precedents may appear.‡

The sources of the common law are, in the words of Lord Hale, "inscrutable as are the sources of the Nile." Englishmen invoke the revered name of Alfred and the hallowed name of the Confessor, as the supposed founders of the system of their law; but,

*Burns, Eccl. Law, vol. i., Pref. xxxvi., vii.

+ Bl. i. 163.

Toulmin Smith, i. 195.

in fact, the common law is more ancient still, the groundwork being the Saxon law, the customs of the Anglo-Saxons, which in their broad features resemble the laws of all the nations of the German stock.* St. Germain, an erudite Catholic jurist who flourished under Henry VII., enumerates five sources of the common law :

1. The law of nature and reason; 2. The divine law; 3. General customs; 4. General principles and maxims; 5. Particular law and local customs.

According to Biener's elaborate treatise,† the common law is based on the following foundations: Anglo-Saxon customary law as the main source; the statutes of the English kings fused therewith; customary law imported from Normandy; theoretical conceptions from the Roman law; the doctrines of legal writers and the decisions of the courts. It is with English law as with the language-one fourth, at most, is of foreign or non-Saxon origin.

The common law is limited by the local customs of certain counties, towns, and boroughs; these customs do not bear upon public law; yet, not only must their legality but their very existence be proved before the courts. The jury find the existence or otherwise of the custom, the court determines its validity. The custom of "gavelkind," whereby the sons inherit equally, and the custom of "borough-English," according to which the youngest son succeeds to the exclusion of the elder, are taken judicial notice of by the courts, and do not require to be proved. The customs of the city of London are admitted in evidence by certificate from the Lord Mayor and Aldermen by the mouth of their recorder.

A statute is either declaratory of the common law or introduces some new principle or modification; the statute law is the creature of parliament, and is established in the properly legislative mode. In what particulars this statute law, dating from about 1225, gradually encroaches on the common law, will be eventually shown. The great charters of the nation are usually a confirmation of ancient national law. Of Magna Charta we have previously treated. There are many acts successively confirmatory of its principles, and also of the "Charta de Forestâ.” The celebrated "Petition of Right," and the later statutes of

Bucher, Parlamentarismus, 47.

Biener, Das Englische Geschwornengericht, 263.