The Portable Edmund Burke (Portable Library) (21 page)

But the truth is, the present system of our laws, like our language and our learning, is a very mixed and heterogeneous mass: in some respects our own; in more borrowed from the policy of foreign nations, and compounded, altered, and variously modified, according to the various necessities which the manners, the religion, and the commerce of the people have at different times imposed. It is our business, in some measure, to follow and point out these changes and improvements: a task we undertake, not from any ability for the greatness of such a work, but purely to give some short and plain account of these matters to the very ignorant.

The Law of the Romans seems utterly to have expired in this island together with their empire, and that, too, before the Saxon establishment. The Anglo-Saxons came into England as conquerors. They brought their own customs with them, and doubtless did not take laws from, but imposed theirs upon, the people they had vanquished. These customs of the conquering nation were without question the same, for the greater part, they had observed before their migration from Germany. The best image we have of them is to be found in Tacitus. But there is reason to believe that some changes were made suitable to the circumstances of their new settlement, and to the change their constitution must have undergone by adopting a kingly government, not indeed with unlimited sway, but certainly with greater powers than their leaders possessed whilst they continued in Germany. However, we know very little of what was done in these respects until their conversion to Christianity, a revolution which made still more essential changes in their manners and government. For immediately after the conversion of Ethelbert, King of Kent, the missionaries, who had introduced the use of letters, and came from Rome full of the ideas of the Roman civil establishment, must have observed the gross defect arising from a want of written and permanent laws. The king, from their report of the Roman method, and in imitation of it, first digested the most material customs of this kingdom into writing, without having adopted anything from the Roman law, and only adding some regulations for the support and encouragement of the new religion. These laws still exist, and strongly mark the extreme simplicity of manners and poverty of conception of the legislators. They are written in the English of that time; and, indeed, all the laws of the Anglo-Saxons continued in that language down to the Norman Conquest. This was different from the method of the other Northern nations, who made use only of the Latin language in all their codes. And I take the difference to have arisen from this. At the time when the Visigoths, the Lombards, the Franks, and the other Northern nations on the continent compiled their laws, the provincial Romans were very numerous amongst them, or, indeed, composed the body of the people. The Latin language was yet far from extinguished; so that, as the greatest part of those who could write were Romans, they found it difficult to adapt their characters to these rough Northern tongues, and therefore chose to write in Latin, which, though not the language of the legislator, could not be very incommodious, as they could never fail of interpreters; and for this reason, not only their laws, but all their ordinary transactions, were written in that language. But in England, the Roman name and language having entirely vanished in the seventh century, the missionary monks were obliged to contend with the difficulty, and to adapt foreign characters to the English language; else none but a very few could possibly have drawn any advantage from the things they meant to record. And to this it was owing that many, even the ecclesiastical constitutions, and not a few of the ordinary evidences of the land, were written in the language of the country.

This example of written laws being given by Ethelbert, it was followed by his successors, Edric and Lothaire. The next legislator amongst the English was Ina, King of the West Saxons, a prince famous in his time for his wisdom and his piety. His laws, as well as those of the above-mentioned princes, still subsist. But we must always remember that very few of these laws contained any new regulation, but were rather designed to affirm their ancient customs, and to preserve and fix them; and accordingly they are all extremely rude and imperfect. We read of a collection of laws by Offa, King of the Mercians; but they have been long since lost.

The Anglo-Saxon laws, by universal consent of all writers, owe more to the care and sagacity of Alfred than of any of the ancient kings. In the midst of a cruel war, of which he did not see the beginning nor live to see the end, he did more for the establishment of order and justice than any other prince has been known to do in the profoundest peace. Many of the institutions attributed to him undoubtedly were not of his establishment: this shall be shown, when we come to treat more minutely of the institutions. But it is clear that he raised, as it were, from the ashes, and put new life and vigor into the whole body of the law, almost lost and forgotten in the ravages of the Danish war; so that, having revived, and in all likelihood improved, several ancient national regulations, he has passed for their author, with a reputation perhaps more just than if he had invented them. In the prologue which he wrote to his own code, he informs us that he collected there whatever appeared to him most valuable in the laws of Ina and Offa and others of his progenitors, omitting what he thought wrong in itself or not adapted to the time; and he seems to have done this with no small judgment.

The princes who succeeded him, having by his labors enjoyed more repose, turned their minds to the improvement of the law; and there are few of them who have not left us some collection more or less complete.

When the Danes had established their empire, they showed themselves no less solicitous than the English to collect and enforce the laws: seeming desirous to repair all the injuries they had formerly committed against them. The code of Canute the Great is one of the most moderate, equitable, and full, of any of the old collections. There was no material change, if any at all, made in their general system by the Danish conquest. They were of the original country of the Saxons, and could not have differed from them in the groundwork of their policy. It appears by the league between Alfred and Guthrum, that the Danes took their laws from the English, and accepted them as a favor. They were more newly come out of the Northern barbarism, and wanted the regulations necessary to a civil society. But under Canute the English law received considerable improvement. Many of the old English customs, which, as that monarch justly observes, were truly odious, were abrogated; and, indeed, that code is the last we have that belongs to the period before the Conquest. That monument called the Laws of Edward the Confessor is certainly of a much later date; and what is extraordinary, though the historians after the Conquest continually speak of the Laws of King Edward, it does not appear that he ever made a collection, or that any such laws existed at that time. It appears by the preface to the Laws of St. Edward, that these written constitutions were continually falling into disuse. Although these laws had undoubtedly their authority, it was, notwithstanding, by traditionary customs that the people were for the most part governed, which, as they varied somewhat in different provinces, were distinguished accordingly by the names of the West Saxon, the Mercian, and the Danish Law; but this produced no very remarkable inconvenience, as those customs seemed to differ from each other, and from the written laws, rather in the quantity and nature of their pecuniary mulcts than in anything essential.

If we take a review of these ancient constitutions, we shall observe that their sanctions are mostly confined to the following objects.

1st. The preservation of the peace. This is one of the largest titles; and it shows the ancient Saxons to have been a people extremely prone to quarrelling and violence. In some cases the law ventures only to put this disposition under regulations: prescribing that no man shall fight with another until he has first called him to justice in a legal way; and then lays down the terms under which he may proceed to hostilities. The other less premediated quarrels, in meetings for drinking or business, were considered as more or less heinous, according to the rank of the person in whose house the dispute happened, or, to speak the language of that time, whose peace they had violated.

2d. In proportioning the pecuniary mulcts imposed by them for all, even the highest crimes, according to the dignity of the person injured, and to the quantity of the offence. For this purpose they classed the people with great regularity and exactness, both in the ecclesiastic and the secular lines, adjusting with great care the ecclesiastical to the secular dignities; and they not only estimated each man’s life according to his quality, but they set a value upon every limb and member, down even to teeth, hair, and nails; and these are the particulars in which their laws are most accurate and best defined.

3d. In settling the rules and ceremonies of their oaths, their purgations, and the whole order and process of their superstitious justice: for by these methods they seem to have decided all controversies.

4th. In regulating the several fraternities of Frank-pledges, by which all the people were naturally bound to their good behavior to one another and to their superiors; in all which they were excessively strict, in order to supply by the severity of this police the extreme laxity and imperfection of their laws, and the weak and precarious authority of their kings and magistrates.

These, with some regulations for payment of tithes and Church dues, and for the discovery and pursuit of stealers of cattle, comprise almost all the titles deserving notice in the Saxon laws. In those laws there are frequently to be observed particular institutions, well and prudently framed; but there is no appearance of a regular, consistent, and stable jurisprudence. However, it is pleasing to observe something of equity and distinction gradually insinuating itself into these unformed materials, and some transient flashes of light striking across the gloom which prepared for the full day that shone out afterwards. The clergy, who kept up a constant communication with Rome, and were in effect the Saxon legislators, could not avoid gathering some informations from a law which never was perfectly extinguished in that part of the world. Accordingly we find one of its principles had strayed hither so early as the time of Edric and Lothaire. There are two maxims of civil law in their proper terms in the code of Canute the Great, who made and authorized that collection after his pilgrimage to Rome; and at this time, it is remarkable, we find the institutions of other nations imitated. In the same collection there is an express reference to the laws of the Werini. From hence it is plain that the resemblance between the polity of the several Northern nations did not only arise from their common original, but also from their adopting, in some cases, the constitutions of those amongst them who were most remarkable for their wisdom.

In this state the law continued until the Norman Conquest. But we see that even before that period the English law began to be improved by taking in foreign learning; we see the canons of several councils mixed indiscriminately with the civil constitutions; and, indeed, the greatest part of the reasoning and equity to be found in them seems to be derived from that source.

Hitherto we have observed the progress of the Saxon laws, which, conformably to their manners, were rude and simple,—agreeably to their confined situation, very narrow,—and though in some degree, yet not very considerably, improved by foreign communication. However, we can plainly discern its three capital sources. First, the ancient traditionary customs of the North, which, coming upon this and the other civilized parts of Europe with the impetuosity of a conquest, bore down all the ancient establishments, and, by being suited to the genius of the people, formed, as it were, the great body and main stream of the Saxon laws. The second source was the canons of the Church. As yet, indeed, they were not reduced into system and a regular form of jurisprudence; but they were the law of the clergy, and consequently influenced considerably a people over whom that order had an almost unbounded authority. They corrected, mitigated, and enriched those rough Northern institutions; and the clergy having once bent the stubborn necks of that people to the yoke of religion, they were the more easily susceptible of other changes introduced under the same sanction. These formed the third source,—namely, some parts of the Roman civil law, and the customs of other German nations. But this source appears to have been much the smallest of the three, and was yet inconsiderable.

The Norman Conquest is the great era of our laws. At this time the English jurisprudence, which had hitherto continued a poor stream, fed from some few, and those scanty sources, was all at once, as from a mighty flood, replenished with a vast body of foreign learning, by which, indeed, it might be said rather to have been increased than much improved: for this foreign law, being imposed, not adopted, for a long time bore strong appearances of that violence by which it had been first introduced. All our monuments bear a strong evidence to this change. New courts of justice, new names and powers of officers, in a word, a new tenure of land as well as new possessors of it, took place. Even the language of public proceedings was in a great measure changed.

Between 1759 and 1761 Burke wrote book reviews for the extremely popular
Annual Register.
Included here are reviews of three important eighteenth-century writers: Rousseau, Adam Smith, and Hume. Of particular interest is the generally favorable tone of his two Rousseau reviews, given his later, post-French Revolution opinions on Rousseau.

 

A LETTER FROM M. Rousseau of Geneva, to M. d’Alembert, of Paris, concerning the effects of theatrical entertainments on the manners of mankind.
None of the present writers have a greater share of talents and learning than Rousseau; yet it has been his misfortune and that of the world, that those of his works which have made the greatest noise, and acquired to their author the highest reputation, have been of little real use or emolument to mankind. A tendency to paradox, which is always the bane of solid learning, and threatens now to destroy it, a splenetic disposition carried to misanthropy, and an austere virtue pursued to an unsociable fierceness, have prevented a great deal of the good effects which might be expected from such a genius. A satire upon civilized society, a satire upon learning, may make a tolerable sport for an ingenious fancy; but if carried farther it can do no more (and that in such a way is surely too much) than to unsettle our notions of right and wrong, and lead by degrees to universal scepticism. His having before attempted two such subjects, must make his attack upon the stage far less formidable than otherwise it would have been. This last subject has been often discussed before him; more good pieces have been written against the stage than in its favour; but this is by far the most ingenious, spirited, and philosophical performance that ever appeared on theatrical entertainments. The author has placed the matter in a light almost wholly new. So far as his remarks relate to small and indigent states in general, and to that of Geneva in particular, they are as just as they are ingenious; but with regard to the stage writers and performers in nations not so circumstanced, he seems to have pushed his objections much too far. There are certainly plays which show, that the stage may at least be made as innocent as any other public entertainments; as innocent as his favourite entertainment of dancing; and there are actors of both sexes, who (though it must be admitted their situation is a little dangerous) have proved by their conduct the injustice of his assertion, which makes vice inseparable from their profession, and its infamy not created, but only declared by the laws....