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The realm of England, says Lord Chancellor For. tescue,e was first inhabited by the Britons ; it was afterwards ruled and civilized under the government of the Romans: then the Britons prevailed again: next it was possessed by the Saxons : afterwards the Danes lorded it over us : the Saxons were successful a second time: at last, the Norman conquest took place. But, duing all that time, England has been constantly governed by the same customs, by which it is governed at present. Neither the laws of the Romans, which are celebrated beyond all others for their antiquity; nor yet the laws of the Venetians ; nor, in short, the laws of any other kingdom in the world are so venerable for their antiquity. So that there is no pretence to insinuate to the contrary, but that the laws and customs of England are not only good, but the very best.-Thus far from the predilection of the chancellor.
But, in truth, it is extremely difficult, if not altogether impracticable, to trace the common law of England to the era of its commencement, or to the several springs, from which it has originally flowed. For this difficulty or impossibility, several reasons may be assigned. One may be drawn from the very nature of a system
of mon law. As it is accommodated to the situation and circumstances of the people, by whom it is appointed ; and as that situation and those circumstances insensibly change ; so, especially in a long series of time, a proportioned variation of the laws insensibly takes place ; and it is often impossible to ascertain the precise period, when the change began, or to mark the different steps of its progress. Another reason may be drawn from the great number of different nations, which, at different
e De Laud. c. 17.
successive periods, and sometimes even at the same period, possessed the government, or the divided governments of England. These added, undoubtedly, to the richness and variety of the common law; but they added likewise to the difficulty of investigating the origin of its different parts.
If this investigation is difficult, there is one consolation, that it is not of essential importance. For at whatever time the laws of England were introduced, from whatever person or country they were derived; their obligatory force arises not from any consideration of that kind, but from their free and voluntary reception in the kingdom.
Several writers, some of them very ingenious and learned, think they can discover, in the common law, features, which strongly indicate, that it is of a Grecian extraction. Without adopting implicitly the authenticity of this high descent, it may be well worth cur while to examine the particulars, on which the opinion is founded. If they lead us not to this conclusion, they may, perhaps, lead us to something else, which will be, at least, equally valuable and instructive.
The similarity between the idiom of our language and that of the Grecians has persuaded some very sensible men to believe, that the inhabitants of Great Britain were, in a very remote age, connected, in some manner, with the inhabitants of Greece. This similarity is, indeed, very striking. No one, I believe, who is acquainted with the Greek, the Latin, and the English languages, will hesitate to declare, that there is a closer affinity of idiom between the Greek and the English, than between the English and the Latin, or between the Latin and the Greek.
The very idea of a traditionary law, transmitted from generation to generation merely by custom and memory, may be considered as derived, in part at least, from the practice of the Druids, who considered it as unlawful to commit their religious instructions to writing. But we are informed by the penetrating and intelligent Cæsar, that, in other business, whether of a publick or of a private nature, they used the Grecian letters—“Græcis literis utuntur.'
Pliny conjectures that the name of Druid was derived from the Greek word deus, quercus, an oak, because they performed their solemn ceremonies in the deep recesses of groves formed by oaks; and because, in their sacrifices, they used the leaves of those trees. & The missletoe, it is well known, was of sacred import in their religious mysteries.
Nathaniel Bacon, a gentleman of Gray's inn, wrote a historical and political discourse of the laws and government of England, particularly during the early periods of its history. This discourse, we are informed, was collected from manuscript notes of Mr. Selden, so famed for his various and extensive erudition. To the notes of an antiquarian, so celebrated and so profound, attention will be expected in an investigation of the present kind.
In that discourse we are told, that, though it be both needless and fruitless to enter the lists concerning the
f De bel. Gal. 1. 6. C. 13.
8 3. Rep. Pref. 9 b.
original of the Saxons; yet, about the time of Tiberius, their government was, in general, so suitable to that of the Grecians, as if not by the remains of Alexander's army, which was supposed to emigrate into the north, nevertheless, by the neighbourhood of Greece, much of the Grecian wisdom was disseminated among them, before the Roman glory was mounted up to the full pitch; and because this wisdom could never be thus imported but in vessels of men's flesh, rigged according to the Grecian guise, it may well be supposed that there is some consanguinity between the Saxons and the Grecians, although the degrees be not known. h
Their country, continues he, they divided into counties or circuits, all under the government of twelve lords, like the Athenian territory under the archontes. These had the judicial power of distributive justice committed to them, together with one hundred of the commons out of each division. The election of these princes with their commission was concluded inter majora, by the general assembly, and they executed their commission in circuits, like unto the Athenian heliastick or subdial court, which was rural, and for the most part kept in the open air. In brief, their judicial proceedings were very suitable to the Athenian, but their military more like the Lacedæmonian, whom, above all others, in their manners, they most resembled.
Austin is generally considered as the apostle of the Saxons, who converted them to christianity : but our author suggests, that he was an apostle of another kindto reconcile them to the see of Rome. To prove this, he
ha Bac. on Gov. 9.
i Id. 10.
adduces a remarkable fact, that the Saxons kept Easter “more Asiatico;" and, against Austin's will, retained that custom fifty years after Austin began his mission
In enumerating the different manners of trial among the Saxons, he says, that the last and most usual one was by witnesses, before the jurors, and their votes thereupon: this made the verdict, and it determined the matter in fact. In former time, questionless, it was a confused manner of trial, by votes of the whole multitude; which made the votes hard to be discerned. But time taught them better advice, to bring the voters to a certain number, according to the Grecian way, who determined controversies by the suffrages of four and thirty, or the major part of them.”k
Speaking of a certain regulation concerning dower, which was derived from the Latins, he says; “but the Germans learned from the Greeks otherwise : for the laws both of Solon and Lycurgus forbade it, lest marriages should be made for reward, and not grounded on affection.”
After having described, in detail, a number of particulars relative to the Saxon government and laws, he makes this general remark: “Nor did the fundamentals alter, either by the diversity and mixture of people of several nations in the first entrance, nor from the Danes or Normans in their survenue ; not only because in their original they all breathed one air of the laws and government of Greece; but also they were no other than the