« PreviousContinue »
courts in the time of King Edward I., which are not narrated by other writers; and, inter alia, it tells us that the ancient and accustomed punishment for heresy was burning, as to which again there is no independent proof whatever.
This remarkable work appears to have remained neglected and unknown to the profession until the apparent discovery of a MS. of it by Lord Coke after the publication of the 8th Reports, for no mention is made of it by him in his elaborate prefaces to the third and eighth volumes, wherein he enumerates the various legal authors of high repute. In his preface to the 9th Reports he commences by alluding to it as "a very ancient manuscript in my possession.'
It was first printed in 1642 from "an old MS. belonging to Francis Tate, Esq.," collated with another in the possession of Corpus Christi College, Cambridge. Notwithstanding its distinguished introduction to the legal world, it seems to have excited immediate suspicion. Fulbeck, for example, never mentions it in his well known "Study of the Law."
Of the next generation of lawyers and law writers, Lord Hale, as illustrious an antiquary as a lawyer, makes no use of it either in his "History of the Law," or in his more critical work on the "Pleas of the Crown," and this is the more remarkable, considering his evident conviction that to the Anglo-Saxons we owe the greater part of the elements of the law. There are some omissions, which appear to us manifestly intentional: see Hale, Pl. Cr., c. 11, and c. 30; compare Mirror, c. I., s. 4, and c. IV., s. 14.
After Lord Hale's time, the Mirror received some attention and examination from the .celebrated Dr. Hicks, perhaps the most learned Anglo-Saxon scholar of his day, and any one who will take the trouble to refer to his laborious investigation of the truth of one of the statements in the Mirror,
A cotemporary of Lord Coke's. The preface to 9 Rep. was written about 1612, Fulbeck's Study of the Law about 1620: Bridgman, Leg. Bibl. Sir Thomas Egerton and Lord Eldon both held a high opinion of this work by Fulbeck.
which is to be found at p. 42 of his "Dissertatio Epistolaris," will feel but little surprised at his calling Horne, in one passage, falsarius aliquis Horno, and, in another, at his speaking of the work attributed to him as quo nihil mendacius; or if the trouble should be too great, we venture to say that a moderate acquaintance with Anglo-Saxon names, and a cursory reference to and comparison of the semi-Frankish concoctions in the Mirror, will enable any intelligent person to see why Dr. Hicks used such strong language.
An analysis of this composition leads us to attribute it not to Horne but to some unknown lawyer, long posterior to the reign of Edward II. The elaboration of the reasons for this opinion would occupy too much of the space of this review, but we may mention one little bit of internal evidence which is very cogent. It will be seen that among the causes assigned, in Chapter III., section 6, for exception to the jurisdiction, is the following:-"That the writ is written on PAPER [Fr. papier], or parchment, which is prohibited." Now paper, in the reign of Edward II., was an article de luxe, entirely of foreign manufacture, and, with the exception of a very few royal letters and documents, most, if not all, of which were written abroad, was unknown in England; but there are extant writs to the sheriffs of the reign of Richard II. written upon paper, and enrolled among the public records, which are believed to be the first official employment of this material, and we do not find any authority before the time of Lord Coke for the statement that paper was prohibited in legal proceedings.
We will now turn to the Leges Henrici I. These will be found printed in the Record Edition of "Ancient Laws and Institutes of England," which was published in 1840. They are taken from the Red Book of the Exchequer, which is unquestionably of great antiquity, and has often been "admitted in the Court of Exchequer as evidence for certain
*See Co. Litt., 260 a. 2 Roll. Ab., 21. Note also that paper is spelt, not papier, but papire, in 4 P.R., p. 176: temp. 1 Hen. VI.
purposes. "These laws, somewhat like the Mirror, profess to be a code for the entire kingdom, and they are divided into paragraphs and subsections in a most systematic way.
Lord Hale frequently refers to them; Mr. Hallam† attributes them to a compiler in the reign of Stephen, and has made many citations from them; and lastly in the new edition of "Reeves's History," already mentioned, we find them repeatedly and largely quoted, and Mr. Reeves taken severely to task for omitting to make use of them.
Now what are these laws? We must first separate the Charta of Henry I. from the laws. The Charta probably is genuine, being found in the Textus Roffensis, which, it is generally agreed, was written between 1115 and 1125; but the laws, of which the only copy of so early a date as the reign of Henry III. is in the Red Book of the Exchequer, are not in the Textus Roffensis. They commence with a paragraph headed De Causarum Proprietatibus.
One thing we think is clear, namely, that it is impossible to assign an earlier date to them than the reign of Henry II.; for, first, the "Decretum of Gratian," (not published in Italy until 1151,) is mentioned in this treatise, which sufficiently shows that the work was not compiled under Henry I., and taking into consideration this date so established, and the disturbed state of the country under Stephen, we may safely conclude that this compilation was not effected under that king; secondly, it is the opinion of a great scholar and painstaking critic, Mr. Sumner, for which he cites authorities, that this code could not have been constructed until the eighteenth year of Henry II.; this opinion is founded upon the internal evidence of the document.
For our own part we consider that it was not compiled until after the eighteenth year of Henry III., for the following reasons; according to Mr. Madox's statement (founded on much careful research), in the "Dissertatio Epistolaris,"
2 Hallam, Mid. Ages. Note xi., p. 413, 11th edition.
printed at the end of his "History of the Exchequer," the Red Book was compiled by one Alexander de Swereford, a canon of St. Paul's, and he, it is shown by Mr. Foss, was not appointed until 18 Hen. III. to the charge of the records of the Exchequer.* This fact, taken in conjunction with what we may infer from several passages in the Leges, quite inconsistent with the constitutions of Clarendon, but not at variance with the subsequent claims and usurped rights of the clergy in the reign of Henry III., tends to place the date of this collection of laws about the year 1230,† that is to say, one century after their commonly ascribed date.
In aid of the above surmise, we add the following extract from Bracton, who probably commenced his voluminous commentary about 1230:
"Fere in omnibus regionibus utantur legibus et jure scripto, sola Anglia usa est ut in suis finibus jure non scripto et consuetudine."
It being impossible to ascertain what were the materials of which the author availed himself, we must trust to analysis for the purpose of ascertaining the worth of his compilation. The first thing that we feel struck with is the horribly bad Latin of the text; next, the use of the first person singular in some of the sentences in a tone of apology (see cap. 8, ad fin.) for not having set forth "the laws of King Edward the Confessor in a more complete manner, as they merited," to which succeeds the expression of the hope that "these capitula have taught something worthy of attention to our profession, sive jure naturali, vel legali, vel morali," although, "as is admitted, in the various parts of the work, a great many laws have been omitted." (!) And there are other places, ex. gr., cap. 5, s. 31, where the pronoun tu is used, and cap. 6 (unfortunately almost altogether unintelligible), where the confused state of the laws is in equally confused language
*See "Foss's Judges," Alexander de Swereford.
†This is, in fact, the date given by Swereford himself in his preface to the Red Book.
inveighed against, from which it is manifest that the compiler considered himself rather a commentator than a codifier. And lastly, when we examine the substance of this singular composition, we find it made up of citations from St. Augustine, from St. Jerome, from the Leges Salicæ, from the Leges Longobardorum, from the Leges Wisi-gothorum, from the Theodosian Code, from the Frank Capitularies, and from the canon law, as well as from what are supposed to be Saxon laws.
Under these circumstances we feel inclined to disbelieve in these laws as "historic verities," and to agree with what seem to have been Lord Hale's second thoughts,* that they are "but disorderly, confused, and general things, rather the cases and shells of directing the way of administration, than institutes of law." At the same time we cannot regard them as valueless, nor can we hold them to be a mere literary figment of the time in which they seem to have been written, for they bear important evidence of the desire of the compiler to recover the wreck of the old Saxon laws, and put upon record some memoranda of the institutions which seemed fast giving place to the great, new, and overwhelming feudal system of the Norman kings, and to struggle against the introduction of its concomitants, foreign law, and the influence of Italian ecclesiastics: such we know, from the passage from the "Opus Majus" of Roger Bacon, so often quoted, was the earnest desire of many an English monk and scholar; and if the record be imperfect, we may attribute it to a prior and contemptuous obliteration and intentional neglect in the Norman Exchequer of the memorials of a past that was dear to the Anglo-Saxon.
It has recently been conjectured by a German writer on Anglo-Saxon law, that these laws ascribed to Henry I. may have been copied from an old Latin version then extant; but we think not. The internal evidence of this most miscellaneous composition,-certain expressions in it which indicate
* Hist. C.L., p. 137, 4th edition.