Page images

ed in the American Jurist,* made by some person apparently desirous of denying the truth of Mr. J's positions, without directly contradicting him. It is treated there, however, strictly as a legal question, and therefore does not dispense with the necessity of a further examination.

The above quotations from Mr. J. contain two propositions : the first asserts, that christianity cannot be a part of the common-law, because that law existed among the Anglo-Saxons while they were pagans ; and the second, that the maxim which declares it to be so, is a "judicial usurpation," crept in through the mistake or chicanery of its judges.

That neither of these positions are true, we shall prove by showing,

1. That the common-law has been progressive, and that the principles which compose it, have been drawn from the customs of the primitive Britons, the Saxons, Danes and Normans.

2. That the Britons were christians long before they were conquered by the Saxons, and that the Saxons became so immediately after their settlement in Britain.

3. That crimes against the christian religion were punishable at common-law before the time of Prisot.

4. That christianity was considered as part of the common-law before the time of Prisot.

5. That the authorities cited by Mr. J. do not warrant the conclusion he has drawn.

1. The common-law has been progressive.

To determine ibis, we must Grst ascertain what composes the common-law. “ The common-law," says Chancellor Kent, “consists of a collection of principles, to be found in the opinions of sages, or deduced from universal and immemorial usage, and receiving progressively the sanction of the courts."| The definitions of Sir W. Blackstones and Lord Coke, $ are to the same effect. But it is not necessary to prove, that a given custom has been in existence from time immemorial, to justify courts and juries in finding such an usage ; for it has been repeatedly decided, that an usage for twenty-years, unexplained and uncontradicted, is sufficient for that purpose ;|| and is contradicted, need not date back farther than Richard I. 1189.T

The very definition of the common-law, shows, that it has been progressive, and consequently could not have existed among the Anglo-Saxons when they were pagans ; but we proceed to show from bistory, that the customs which make up that law, have been derived from various sources.

* Vol. 9. p. 336. + Com. Am Law, vol. i. p. 72. 2d edition. Com. Eng. Law, b. i. p. 62. § Coke Litt. sec. 171 and 214. Black. Com. 35. 6. East. Rep. 214. 2. Black. Com. 31. 1. Sanders Pl. and Ev. 399.

Fortescue, who was chief justice in the reign of Edward IV., and cotemporary with Prisot, says, "the realm of England was first inhabited by the Britons, then the Romans possessed it, then the Britons again. Afterwards the Saxons, then the Danes; after, the Saxons, and then the Normans had possession of the country; and yet during all these times the country has been governed by the same customs :** upon which Mr. Selden observes, that the truth seems to be, that there never was any formal exchange of one system of laws for another ; but that the Saxons made a mixture of their own customs with those of the Britons, the Danes those of their own with those of the Britons and Saxons, and the Normans likewise.

Upon every irruption and conquest by a foreign nation, new laws and customs were introduced, and incorporated with those already in force ; and therefore the common-law of England, like the language of that country, bas originated from a variety of sources. The histories of that period fully justify this view of the subject.

The variety of local customs prevalent in the days of Alfred, gave rise to the dome-boc, dom-boc, liber judicialis ; but in the eleventh century, this code of Alfred had fallen so much into disuse, or been superseded by other customs, that we find no less than three systems of laws prevailing in England, called the Mercian-lage, partaking most of the old British customs; the West Saxon-lage, coming nearer to the code of Alfred; and the Dane-lage, partaking, as its name imports, of the customs of the Danes. I

Upon the accession of William of Normandy, these three systems of laws were digested, and such alterations and additions made as the situation of the country required. One of the changes made at this time was the establishment, if not the introduction, of the feudal system, which has exerted such an extensive influence upon the estates of Europe for centuries.|| All these customs, with such modifications as a progressive state of civilization, of literature, science and the arts, would work, together with such as these things have given rise to now, compose the common-law. It follows, therefore, from the foregoing facts, that the first position of Mr J. and Major C. is entirely wrong.

* De Laudibus Legum Angliae, c. 17, p. 30. Eng. Trans. fol. Savoy, 1737.

Selden's Notes on For. abr. sup. and 1. Black. Com 64.
#1. Black. Com. 64, 65. Hale's Hist Com. Law, p. 55.
ş Crabb's Hist. Eng. Com. Law, c. v. p. 44. 8vo. Burlington. 1831.

11 Spelman Orig. Feudes. Hall. H. C. and 203. Black. Com. c. iv. Crabb, H"E.C. and c. v. Coke Litt. 191. a. Butler's Additional Notes.

We now proceed to show,

2. That the Britons were converted to christianity before their conquest by the Saxons, and the Saxons immediately after that conquest.

As early as A. D. 180, we find Tertullian declaring, that “the extremities of Spain, and the different nations of Gaul and Britain, inaccessible to the Roman arms, had been subdued 10 Cbrist."**

Eusebius, about 324, says, the first preachers of christianity "passed over the ocean, to those which are called the British isles.”+

Gildas, himself a Briton, who wrote about 560, dates the first introduction of christianity about 61,--and in this he is supported by the ancient British documents preserved in the Welsh Triads. I

Clement of Rome, about 90, says that Paul reached the furtherest extremity of the west, by which it seems that Britain was intended.

The Romans lest Britain about 410, and the Saxons were invited to England about 450. From this time war rayed with varied success between the Britons and those from whom they sought protection, unul about 590. As late as 527, the Britons obtained a considerable victory over the Saxons, which was followed by a peace of forty years; and in 585, they obtained anotber considerable victory. || The Saxons seem to have obtained a permanent settlement in Kent as early as 580; and in 596, St. Austin, with forty missionaries from Rome, lauded in that kingdom, and in two years converted and baptized the king of Kent, with more than ten thousand of bis Anglo-Saxon subjects. It

The way seems to have been prepared for the easy introduc

* Adv. Jud. c. 7. p. 189. fol. ed. 1675.
† Demons. Evang. c. 3. p. 112. fol. ed. 1628.
* Rob. Calinet. Bib. Dir. on Christianity.

Clem. Rom. Ep. 1. c.5 Trans. Chevalier, p. 4. 12mo. N. Y. 1634. p. 148. Le Clerc. Apos, Pat. vol i. fol 1698. Plutarchi Vit. Cæsar. Euscb. Viri Cons. lib. i. c. 25, 41. L. 2. “. 28. Nicephor. Hist. L. 1. c. 1. Theodoret in Ep. 2. ad Tim. iv. 7. Theod. Rol. Hist. c. 26. tom. 3. p. 881. D. Edit. Paris, 1642. Hier. in Ams. c. 5. tom. 3. p. 1412. Ed. Benedict Catullus Carmi. 29 and 11. Hor. ace, Carm. 1. 35. Stillingfleet, Antiq. Erit. Ecc. c. 1. vol. 3. fol. 1710, in 6 vols. froin which it will be evident, ihat by the furthest west, Briton was in. lended See also Bede's flirt. Ecc. lib. i. c. 4 p. 44. fol. Cont. 1722. Selden's Hist. Tiibes, c. 9, sec. 1. p. 1206. vol. iii ap. fol. Lond. 1726. Ledwich': An. liq. Ireland. p. 54. 410. Dublin. 1722. Stone's Chion. Eng. p. 36. fol. London. 1631. Mosheim by Murdock, b. 1. cent. 2. Par. 1. c. 1. livle. || Anc. Univ. Hist. vol. xvii. pp. 124, 129.

Bede's Ecc. Hist. lib. i. c. 27. lib. ii. c. 4. Hume's Hist. of Eng. vol. i. Gibbon's Dec. and Fall of the Rom Emp. vol. iii c. 45 p. 210. 4 vols. 8vo. N. Y. 1831. Turner's Hist. Anglo-Saxon, vol. i. B. 2d. 8vo. 3 vols. Loudon. 1828 It is common for those who desire the fact to be so, to represent this as the first introduction of christianity into Britain. So Hume and Gibbon are entirely silent as to the conversion of the Britons before their conquest by the Saxons. VOL. VIII.


tion of christianity among the Saxons, by the influence and example of the Britons, with whom the Saxons associated; and the latter appear to have borrowed their alphabet, literature, and much of their civilization, from the persons from whom they had taken their possessions.*

The christian religion was introduced into Northumbria by a resolution of the wittem-gemote, as the established religion, 625. It was introduced into Mercia 655, Essex 659, by a resolution of the king and bis counselors; and in less than a century from this time, it had become common for the Anglo-Saxon kings to abdicate their thrones, and give themselves up to religious pursuits.t

The piety of Alfred bad led him to introduce into his laws, not only the essential principles of christianity, not before recognized by law, but also many of the enactments of the Levitical code. I

It is not udreasonable to suppose, that a nation who had just emerged from barbarism, had acquired letters, literature, and a degree of civilization, would find it necessary to change many of those customs, which, before that time, had had the force of law. Indeed, we find that such was the fact; for among the Saxons, before their conversion, murder, and all other high crimes and misdemeanors, were only punished by a fine, varying in amount, according to the rank of the person injured. Every man had, in fact, at that period, a legal valuation set upon him.Ş But no man will pretend, that murder is not now punishable with death by the common-law. We might instance many other customs, prevalent among the Saxons, wbich the progressive state of the commonlaw has entirely changed; but it is unnecessary.


* Wood's Rel. in Brit. p. 75. 8vo. London. 1835. Cambrian Reg vol.iii. p. 150. Henry's Hist, Great Britain, b. ii. c. 2. sec. ii. Turner's Hist. Angl. Sax. b. iii. c. 7. vol. i. p. 358; b. iii. c. 8. p. 365; b.ix. c. 1. p. 389. Bede's Ecc. Hist. lib. iii. cc. 25 and 27 ; b. ii. c. 4. pp. 234—241. Camden. Brit. vol. p. 1316. fol. 2 vols. London. 1722.

It has been said, that the almost entire absence of Celtic words in our lan. guage, is good evidence that the primitive Britons were completely eradicated by ihe Saxons ; but to this it may be replied, that Britain was inhabiied by the Briions, Angles and Jutes, before the arrival of the Saxons, and that the iwo latter, together with the Saxons, were coeval iwigs of the same barbaric race, descended from the same Teutonic branch of ihe Scythian or Gothic tree, as ap.. pears from their identity of language. Turner's Hist. Angl. Sax. b. i. c. 5. Cam. den. Brit. c. lib. ix Procopius De. Bell. Goth. lib. iv. And further, the Cimbric, or German Celtic, the language of the Britons when conquered by the Ro. mans, though of a Celtic character, abounds with words of a Gothic origin - Varieties of the Human Race, by J. G. Percival, M. D. p. 3. in an appendix to Goldsmith's Geographical Viero of the World.

+ Turner's Hist. Angl. Sax. b. iii. cc. 2, 7, 8, 22, and others. Bede's Hist. Ecc. lib. y.

# Wilkins' Leges. Ang. Sax Leg. Alfred. fol. Lond. 1721. Turn. Hist. Ang!. Sax. b. v. c. 6. vol.ii. p. 149. Mr. J. pronounces these spurious; but Mr. Turner, than whom, no man living is better able to judge, declares them genuine, and Wilkins gives them without any doubt of their authenticity. See also Holt's Law of Libel, p. 32. 8vo. N. Y. 188.

f Wilkins' Leg. Angl. Sax. Turn. Hist. Angl. Sax. ap. 1. b. iii. c. 4 and 5.

We shall now show,

3. That crimes against the christian religion, were punishable at common-law, long before the time of Prisot, 1458. If we can prove this, it will not be contended, that some of the principles of christianity were not recognized by the common-law; for nothing can be more absurd, than the idea that crinies against religion are punishable at common-law, and yet that the common-law does not recognize the principles of religion, against which those crimes are committed.

Bracton, who was justice in eyre in the reign of Henry 3d, in a work entitled De Legibus et Consuetudinibus Anglie, written about 1266,* and which, it is said, “contains nothing but what bad been admitted by legal authorities into our jurisprudence," expressly declares, that " apostates from the christian religiou were to be burnt to death."+ So Britton, about 1280, declares that sorcerers, sodomites and heretics, were burnt, by the common-law. I It is also said by Fleta, about 1285, that apostates, sorcerers, and the like, are to be burnt. To the same effect, the Mirror, about 1300, says, that heresy was to be punished by excommunication, degradation, disinheriting and burning

The same author defines heresy to be a false and evil belief, arising out of error of the christian faith. It includes witchcraft and divination. I

The order by which such persons were consigned to the flames, was entitled the writ de hæretico comburendo, and was a commonlaw process.** In the time of Prisot, the definition of beresy was still more comprehensive, and included all disbelief of the Catholic faith, neglect to attend her worship, and disobedience of her decrees.ft

These authorities must remove all doubts concerning the question whether offenses against religion were punishable at commonlaw, before the time of Finch, who, Mr. J. says, mistook the meaning of Ch. J. Prisot.

4. Christianity was considered as part of the common-law, long before the time of Prisot. Horne, in the Mirror of Justice,

• Reeve's Hist. Com. Law. lib. lxxxvi. Crabb's Hist. Com. Law. pp. 164-5.

Tract. 2. c. 9. fol. 123. Lond. 1569. Crabb, p. 164 4 Black. Com. p. 43. | Britton, 8vo. Lond. 1762. c. 9. p. 60. and c. 17. Fitzherbert's Nalura Brevium. p. 601. 8vo. Dublin. 1793.

$ Fleta seu Commentarius Juris Anglicani. Jib. i. c. 37. 4to. Lond. 1685. Crabb's Hist. E. Com. Law. c. 14. Hale's Hist. Cum, Law. vol. i. p. 270. Holt's Law of Libel, p. 33. 8vo. 1818.

|| Mirror des Justices, c. 4. sec. 14. p. 194. 8vo. Lond. 1768. IC.). sec. 4.

** Hawkins' Pleas of the Crown, b. i. c. 2 Fitz. Nat. Brev. p. 601. Reeves' Hist. Com. Law. vol. iii. p. 235. 4 vols. 8vo Lond. 1787. Co. 3. Inst. p. 44. Crabb's Hist. E. Com. Law. pp. 314, 348. 4 Black. Com. p. 42–46. Wood's In. stitute, Eng. Law. b. iii. c. 3. p. 422. fol. Savoy. 1775.

1+ 4 Black. Com. p. 45. Lyndewoode of heretics. Stat. 2. Hen. 4. c. 15.

« PreviousContinue »