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THE

EDINBURGH REVIEW,

FEBRUARY, 1822.

N°. LXXII.

ART. I. 1. THE HISTORY OF THE COMMON LAW OF ENGLAND, and an Analysis of the Civil Part of the Law. By SIR MATTHEW HALE. Sixth Edition: With additional Notes and References, and some Account of the Life of the Author. By CHARLES RUNNINGTON, Serjeant at Law. London, 1820.

2. THE COMPLETE COURT KEEPER, or Land-Steward's Assist ant; containing the Nature of Courts-Leet and Courts-Baron: With a general Introduction to every thing incident to them, according to Law and Custom; the manner of holding CourtsLeet, Courts-Baron, and Courts of Survey; with the Charges to the Juries, &c. &c., and all other Proceedings, &c. By GILES JACOB, Gent. Thirteenth Edition. London, 1820. 3. A TREATISE ON THE LAW AND PRACTICE OF ELECTIONS. By ARTHUR MALE of Lincoln's Inn, M. A., Barrister-at-Law. Second Edition. London, 1820.

AT T this moment, there are few of the systems of legislation, either of ancient or modern times, which are not in force as living law within the British empire. Menu and Mohammed decide the civil rights of the Hindoo and the Mogul; and an appeal from India compels our Privy Councillors to consult the Koran and the Puranas, as authorities at Whitehall. Justinian is obeyed by the courts of the Ionian Republic. In the Norman Isles, the severed portions of the domains of the Conqueror, the Barbaric custumal framed by his Justiciars, still guides the Grand Bailiff and the Seneschal, who dispense the equity of Rollo, now forgotten in the hall of Rouen. Canada cherishes the volumes which have been cast forth from the Palace of Justice; and the legitimate representatives of the T

VOL. XXXVI. NO. 72.

proud and learned Presidents of the Parliament of Paris, are found in the court-house of a colonial town. Banished from the flowery meadows of the Seine, the ordinances expounded by Saint Louis beneath the oak tree at Vincennes, constitute the tenures of lands on the Gulf of St Lawrence; and, whilst every vestige of feudality has been blotted out of the title-deeds of the European Continent, it remains in full vigour in the wilds and wastes of the New World. In the opposite hemisphere, we bestow an equal protection on the codes of Napoleon; and it is possible that, in future ages, the speck of land, the Mauritius, in which they are now in force, may alone preserve the vestiges of the jurisprudence of the Great Empire. Our sovereign appoints his Alcades and his Corregidores in the Indies of Columbus; while his Landrosts in Southern Africa are guided by the Placets of the States-General of the departed Republic of the Netherlands. The laws of King Christian of Denmark are administered by British authority in the torrid zone. And the Deemsters assembled on the Tynwald of Man, have not abandoned the polity of the Sea-Kings of Scandinavia. It is difficult to question the policy which first induced England to sooth her stranger subjects, by thus indulging them with the exercise of the laws which habit had rendered dear to them. But our legislators should now begin, slowly and cautiously, to assimilate the institutions of the dependencies to those of the mother country. This end must be effected by the introduction of trial by Jury of twelve men, which, upon all accounts, as it is settled here in this kingdom, seems to be the best trial in the world. Acknowledging that, on particular occasions, trial by the country' has great inconveniences, these words of Hale should nevertheless be the Englishman's creed. Human institutions only possess a comparative excellence. And to justify our partiality towards the English common law, that is to say, to trial by Jury, it is sufficient that its practical value is not lessened by its remoteness from abstract perfection.

Trial by Jury is usually 'considered only in relation to our judicial system; and figures in our eyes merely as a part of our civil and criminal jurisprudence. In its origin, however, its powers and functions were far more ample. If we develop the organization of the institutions out of which the modern Jury was framed, it will become probable, that they contain within them the groundwork of all our Constitutional forms of Government, and of the assemblies in which the powers of government are constitutionally vested. The web of history is entangled and decayed; and we must endeavour to unravel the broken threads, though we cannot weave them again into con

tinuity. Doubt must be balanced by doubt, and conjecture supplied by conjecture: but there is, fortunately, one loadstar which will assist us in winning our way athwart the idle desert of hypothesis. One leading principle pervades the primeval polity of the Goths. Where the law was administered, the law was made. By the gradual settlement of society, the legislative and judicial powers frequently appear to be disjoined. But, wherever either function is found, we may be certain that the other is still a latent element, or that it has been expelled by

extraneous causes.

Ingulphus, following a prevailing and favourite tradition, ascribes the origin of the political divisions of England to the wisdom of Alfred. Labouring to quell the turbulence and rapine of his subjects, Alfred is said to have first distributed the townships and provinces of England into Shires; the Shires into Hundreds; and the Hundreds into Tithings. Each lawworthy Englishman thus stood in his Tithing, and in his hundred; so that, if suspected, he could be condemned or acquitted by his Friborg, and incur or avoid the penalty of guilt. But if Alfred had been the inventor of the territorial division of England, he must also have been the creator of the common law itself, which only proceeds in conjunction with these divisions; and indeed the Jury trial has also been popularly considered as his ordinance. This, however, is an evident absurdity: and the existence of the Hundred Court amongst the Teutonic nations of the Continent of Europe, proves, without further contest, that such distributions of the people were originally adopted by all of the Gothic tribes.

Authors of great repute, however, have scarcely dared to reject the testimony of the monkish chronicler. Blackstone tells us, that when the West Saxons had swallowed up all the • rest, and King Alfred succeeded to the monarchy of England,

his mighty genius prompted him to undertake a most great ⚫ and necessary work, which is said to have been executed in as masterly a manner-no less than to new-model the consti'tution to rebuild it on a plan that should endure for agesand, 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 re'ducing the whole kingdom under one regular and gradual subordination of government, wherein each man was answer• able to his immediate superior for his own conduct and that of his neighbours: For to him we owe that masterpiece of judicial polity, the subdivision of England into tithings and hundreds, if not into counties; all under the influence and ad

'ministration 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.' Now, there are two propositions involved in this quotation-the subdivision of England, and the emanation of all power from the chief magistrate. Both are currently received; both are equally plausible; and both are equally unwarranted and groundless, as far as they concern the theory of our ancient polity. When admitted to be true, they confuse us in every endeavour which we make to investigate the origin of our forms of government. They are false quantities in the equation. If we reject them, we may approximate at least, to a clear and certain solution of many of our constitutional problems.

Before we proceed, however, we consider it quite necessary to warn our readers, that we enter the perilous field of constitutional inquiry with the chill technicality of the antiquary. Our discussions have not the slightest reference to existing circumstances. We may strive to diminish the power of the Crown, but the Radicals will not gain a straw by our researches. If our conjectures have any pertinence or truth, they will only convince Major Cartwright, that close boroughs and rotten boroughs are more majorum-the most respectable and genuine relics which we now possess of the Anglo-Saxon constitution; and shall compel him to admit, that the boroughmongers had as much influence in the Wittenagemote as they now possess in a certain Assembly which shall be nameless. We make this asseveration with an honest feeling of veracity: At the same time, we shall leave the worthy and independent electors of Barnstaple and St Albans as free as they chuse, to reward us and our friends with seats in the House, as a guerdon for the exertions which we make in upholding the antiquity of King Athelstane's charters, under which both these patriotic communities claim their elective franchises.

If we reflect upon the obligations imposed upon the community, in that stage of society which is usually termed half civilized life, it will appear that the Anglo-Saxon Shire, in spite of its etymology, was not a department cut out of a larger country, and then divided and subdivided into small and smaller districts; but that it was formed by the association of the lesser districts, originally organized without mutual subjection, but placed under a superinduced authority, for the purposes of political admi nistration. We would assimilate a Shire to a Governement, ac

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