YALE UNIVERSITY.
LIBRARY

AN

ANNIVERSARY DISCOURSE

DELIVERED BEFORE

Site J£efe=:gorft PHstorical Society

srtjasaos? M\^n

ANNIVERSARY DISCOURSE,

DKL1VEBED BEFORE TUB

yiMSfOt iCAl $*OCtrtl>

OF

ON SATURDAY, DECEMBER 6, 1883-,

SHOWING the

ORIGIN, PROGRESS, ANTIQUITIES, CURIOSITIES, AND NATURE

OF THE

COMMON 1AW,

BY WILLIAM SAMPSON, ESQ.

In nova fert animus mutatas dicere foi rnss
Corpora. Di cceptis (nam vos mutastis et illas)
Adspirate meis: primaque ab origine mundi
Ad mea perpetuum deducite tempore carmen. Ovib, MET. UB. i.

3lrt»=i>orft:
PUBLISHED BY E. BLISS AND E. WHITE, 128 BROADWAY.
Abraham Paul, pfinffcr.
1824-

Southern District of JYe7o-York, as.
BE IT REMEMBERED, that on the twenty-fourth day of December, in the forty- eighth
year of the Independence of the United States of America, WiUiam Sampson, of the said
district, hath deposited in this office the title of a book, the right whereof he claims as Author,
in the words following, to wit:
"An Anniversary Discourse, delivered before the Historical Society of New-York, on
Saturday, December 6, 1823 ; showing the origin, progress, antiquities, curiosities, and nature of
the Common Law. By William Sampson, Esq.
In nova fert animus mutatas dicere ("ormas
Corpora. Di cceptis (nam vos mutfjLstis et illas)
Adspirate meis : primaque ab origine mundi
Ad mea perpetuum deducite tempora carmen.... Ovid, Met. Lib. J.'*
In conformity to the Act of Congress of the United States, entitled "an Act for the en
couragement of Learning, by securing the copies of Maps, Charts, and Books to the authors
and proprietors of such copies, during the time therein mentioned." And also to an Act, enti
tled " an Act, supplementary to an Act, entitled an Act for the encouragement of Learning, by
securing the copies of Maps, Charts, and Books, to the authors and proprietors of such copies,
during the times therein mentioned, and extending the benefits thereof to the arts of designing,
engraving, and etching historical and other prints."
JAMES DILL, Clerk of the Southern District of JVew- York.

YALEl CU V^

/S2.3

At a meeting of the New- York Historical Society, held
at the hall of the college of physicians and surgeons, on the
sixth of December, 1823,
Resolved, that the thanks of the Society be presented to
William Sampson, Esq. for his learned and instructive oration,
delivered before them this day, and that he be requested to
furnish a copy for publication.
Resolved, that Henry Wheaton, John Anthon, and Anthony
JL. Bleecker Esqrs. be a committee to communicate to Mr.
Sampson the above resolution.
W. B. LAURENCE,
Recording Secretary, pro tern.

DISCOURSE.

~«*WRS!—

Mr. President, When honoured with the invitation, which
brings me now in the presence of this distinguished
audience, I did not hesitate to comply, for I consi
dered that our society in its young beginnings, might
need the co-operation of every member, and that the
promptest obedience to its call, would be the best
title to its indulgence ; and in the choice of a topic,
I preferred that branch of our history, in which my
education, and habits of study and reflection, might
best qualify me to occupy a vacant ground. The
subject is doubtless an important one, though it may
at first bring me but small countenance from some of
my polite hearers, when 1 announce to them, that
the discourse I have meditated, is on the history ©f
our law.
The law has, indeed, been too long banished from
the communion of the liberal sciences, proscribed as

a dry and crabbed art, interesting only to those who
practise it for gain ; as though its spirit were all disin
genuous mystery, its language a barbarous jargon, its
root in savage antiquity, its growth through ages of
darkness, its fruits but bitterness and vexation : and
this in despite of the high and lofty panegyrics hourly
bestowed upon it by its admirers.
It is time that these differences should be recon
ciled. The well-being of society requires that a sub
ject of such vital importance, should be brought to
the test of reason in the open light of day. The law
of a free people should never be a matter of indif
ference. It is supposed to be the public reason, ut
tered by the public voice ; and in proportion to its
wisdom, will be the dignity of the people. It is the
school of public morals ; and next to religion, that
which has most influence on the manners and happi
ness of a nation. It is the guide of all our 'actions,
and the rule of all our conduct. It is the part of a
good citizen to love the laws, and the duty of every
one to obey them; but that love should be without
bigotry, and that obedience without servility. The
efficacy of the law depends on the confidence it
creates, and it never will inspire so much confidence,
as when it lays aside the veil of mystery, and presents
itself in all the simple majesty of truth. Appearing

as a human, not a preternatural institution, its defects
will be excused, its excellencies acknowledged, and
what is most desirable, it will advance with a free
and unimpeded step towards perfection. Its stub
born forms will be taught to bend to the convenience
and exigencies of the people for whose use it sub
sists. It will be separated from the rubbish and der
cay of time, and stripped of the parasitical growths
that darken and disfigure it.
It is perhaps to be regretted, that the youth who
dedicate themselves to the study of our legal consti
tutions, should be greeted on the threshold with phra
ses strange to the ears of freedom : that they cannot
enter the vestibule without paying constrained devo
tion to idols which their fathers have levelled in the
dust. The Commentaries of Sir William Blackstone
are still the only clue whereby to tread the mazy
labyrinth through which they have to pass ; and the
fascinating eloquence of that author, conceals a thou
sand sophistries dangerous to the principles which
every citizen of our free republic ought, and every
professor of our laws is sworn, to maintain. Impres
sions thus stamped on young minds, are not quickly
eradicated, and if once taught to believe, that excel
lence is only to be found abroad, they will not care to
seek for it at home. The Commentaries, it is true,

deserve our admiration, and we owe some gratitude
to the author, who has rendered the complicated and
perplexed code upon which our wiser, though yet im
perfect system, has been engrafted, accessible and
tangible. What it was before he wrote, may be
gathered from this, that the benefactor and founder
whose intentions he was appointed to carry into effect,
spent half a century in compiling in the most con
densed form, four and twenty elephantine folios, to
serve as a brief index to the books which even then
composed the lawyers' libraries, but are tenfold in
creased with us, and continue to increase in the like
accumulated ratio. Various amendments also, first
suggested by Blackstone, have been carried into exe- •
cution with us, and from the able manner in which
he has laid bare many defects and anomalies of the
English law, though its professed apologist, we may
imagine how he would have written and taught, had
it been his fortune to witness, as we do, the wonder
ful effects of true liberty upon human prosperity and
happiness: how a people without hierarchy, nobi
lity, monarchy, distinction of condition, rank, or pri
vilege, can govern themselves, and flourish beyond
what hope or fancy could predict. Had he experi
enced this, and been endowed and appointed to eulo
gize our laws and constitutions, how ingeniously,
how impressively, would he have contrasted them with

9

the decayed and vicious institutions which he has
so extolled.
In soliciting admission for the common law into the
seats of academical learning, where its rival, the civil
law, had long been a favoured inmate, no advocate
ever pleaded his cause with more eloquence and
grace, but he could not make that a science, which
was reducible to no fixed rules or general principles ;
and the more he brought it into light, the more the
sunny rays of his bright genius fell upon it, the more
its grotesque forms became defined, the more they
proved to be the wild result of chance and rude
convulsions. The vices of the Norman jurisprudence he exposes
with no tender hand. The trial by battle, the forest
laws, the curfew, the dependence of the nobles oh
the crown, and their tyranny over the commons : the
feudal exactions and forfeitures; the 60,000 knights
bound upon pain of confiscation to quell all resist
ance ; the enslaving of mens' consciences by sour ec
clesiastics, who were themselves exempt from the se
cular power, and who had imported the whole far
rago of superstitious novelties engendered in the
blindness and superstition of the times between the
first mission of St. Augustine the monk,, and the Nor-
2-

man conquest. The administration of both the pray
ers of the church and the law of the land in a foreign
and unknown language: the frittering both law and
divinity into logical distinctions and metaphysical
subtleties, till what ought to be a plain rule of action,
became a science of the greatest intricacy : the inter
weaving by the scholastic reformers, as he calls them,
of their dialect and finesses into the body of the judi
cial polity, so that they could not be taken out with
out injury to the substance ; and that, though statute
after statute was made to pare off* the excrescences
and restore the common law to (what he calls) its
pristine vigour, the scars remained still deep and vi
sible : how the liberality of modern courts was fre
quently obliged to have recourse to unaccountable
fictions and circuities to recover that equitable and
substantial justice, which was long totally buried
under the narrow rules and fanciful niceties of the
metaphysical Norman jurisprudence.*
This picture, truly, is not seducing; and had the
author dealt the same measure to the jurisprudence
that preceded that of the Normans, instead of the
rhapsodies which he has uttered upon its antiquity,
its purity, and its pristine vigour, it would have been
t Comm. 419.

11
easy to conclude that the further we were from the
one or the other, the better for ourselves. The en
thusiasm, however, which grave writers indulge upon
this subject, makes it important for us to determine
for ourselves, whether there be such a long lost trea
sure, or whether it be but a fabulous tradition, or
fond dream.
If there be such a pure fountain, and that we have
profanely troubled it, or foolishly strayed from it, we
cannot too soon retrace our steps, and return with
penitent devotion,
" Fonti divino et Genio numinis fontis :"
we must prostrate ourselves before the offended
genii of the common law ; appease the celestial and
infernal deities of our wise ancestors, the druids;
sooth the angry sun and moon with human victims ;
and propitiate both Thor and Woden with costly offer
ings. The frowning oaks, the troubled fountains, and
the dreadful thunder must be placated by all the arts
of magic astrology, and augury, known and practised
in the times of the " pristine vigour" of the common
law. It is a matter of infinite importance for us to know
our own condition ; and whether we are to look for
the preservation and improvement of our laws, to the

12
experience of our own times and the lights of our own
age, or to times long past. It is to history we must
be indebted for this important knowledge. History,
by concentrating the lights of experience, and furnish
ing objects of comparison, strengthens the judgment,
informs the reason, extends our views of human ac
tion, and overturns the baleful sway of prejudice and
error : and under no fitter auspices can such an in
quiry be set on foot, than those of a society formed for
useful and patriotic purposes, composed of men in
relation with the learned of other countries, and
pledged to high duties in their own.
The plan proposed by the author of the Commen
taries, may very well serve for our legal historiogra
pher.* To trace the originals as far' as distance will
permit to the customs of the Britons and the Ger
mans, as recorded by Cesar and Tacitus; to the
codes of the northern nations on the continent, and
more especially, as he expresses it, to '¦'¦our own
Saxon princes;" to the rules of the Roman law, either
left in the days of Papinian, or imported by Vaca-
rius and his followers ; but, above all, to that inex
haustible reservoir of legal antiquity, the feudal law,
called by Spelman, the law of nations in the western
* 1 Comm. 3fi.

13
world. These primary rules and fundamental prin
ciples should be weighed and compared with the pre
cepts of the law of nature, and the practice of other
countries; should be explained by reasons, illustrated
by examples, and confirmed by undoubted authori
ties ; their history should be adduced, their changes
and revolutions observed, and it should be shown how
far they are connected with, or have been at any time,
affected by the civil transactions of the kingdom. A
plan of this nature, he adds, if executed with care,
cannot fail of administering a most useful entertain
ment to students of all ranks and professions.
If this ingenious author had pursued his plan by
impartially developing the history of these' ancient
nations, and their codes, we might by simply compa
ring them with our present condition, judge of the
obligations we owe to them, and of the propriety of
reverting to them. But he has rather contented him
self with certain flights of smooth and specious elo
quence, in which he excels all other writers ; and
where we most needed light, has left us most in
darkness. How far the bombastic encomiums upon the com
mon law, echoed and repeated to satiety, and with a
zeal that should render them suspected, have pro-

14
ceeded originally from pure conviction, or from inte
rested controversies, from which we are happily too
far removed to have any concern,* is not so import
ant to us, as to examine for ourselves. Blackstone
informs us, that after the Norman conquest, the na
tion was divided into two parties; the bishops and the
clergy, many of them foreigners, who applied them
selves solely to the civil and canon law, and the no
bility and gentry, who adhered with equal pertina
city to the old common law ; both reciprocally jea
lous of what they were unacquainted with, and nei
ther allowing to the opposite system the merit it pos-
sessed.f This observation is profound and true, for
the best part of what passes for common law at this
day, so far as respects civil transactions, is borrowed
from that civil law, although the loan is not ac
knowledged. No doubt great names were embarked in these
controversies, and their influence has, unfortunately,
continued to operate. But we must not be led astray
by their authority. Whether they were dupes of opi
nions that they did. not care to investigate too cap
tiously, or honest fanatics, or splenetic partizans who
* See the profound remarks 'of the learned and accomplished Duponceau,
in his Address at the opening of the Law Academy of Philadelphia, Feb.
21, 1821. (notis.)
f iComm. 19..

15
praised from hatred more than from love, it is time
we should assert our own independent judgment,
and act and think for ourselves. Some,, perhaps,
from a pious desire to reconcile the affections of
their countrymen to their own laws, have referred
them to such high antiquity, and, as it were, divine
origin, after the example of the great lawgivers of
antiquity, who dared not to trust their ignorant and
superstitious subjects with the truth, and therefore
feigned traditions, and fabulous communications, with
nymphs and goddesses. But with us such mummery
is out of date; the people know that their law is the
creature of their own power, the work of their own
hands, and that if it is not good it is to their own
shame, and that canting and ranting will never make
it better. We should reflect too, before we submit to man's
authority in matter of opinion, how few in any age
have risen above the superstitions of their day, and
how few of those have chosen to encounter the cur
rent of power, interest, or fashion. Sir Edward
Coke, as Blackstone delicately observes, though a
man of great learning, was strongly tinctured with
the pedantry of the times in which he wrote : he was
besides, engaged in bitter controversies, which ended
in his destitution. ' Lord Hale, though above corrup-

16
tion, was not above prejudice. For he laid down
those eruel rules for the conviction of witches, by
which innocent victims were put to death even in this-
land of refuge, even in that cradle of our liberties
where the pilgrims, flying from imputed guilt and real
persecution, first set their wandering feet.* As to
Chancellor Fortescue, who lived before the great dis
coveries that have since expanded the human facul
ties, his book in praise of the English Common Law,
were it now to fall into the hands of any of our intel
ligent citizens, without other recommendation than
that of its contents, would acquire a praise'to which
its author did not aspire ; and would pass for an in
genious caricature, a pleasant burlesque, and very
poignant satire. So it is that false gods, false wor
ship, and false opinions, have all Ijad their distin
guished votaries. So the greatest men of antiquity
have officiated in solemn devotion at the shrine of
idols, some with hoofs and some with horns. So the
ministers of the Gospel long worshipped in the tem
ples and vestments of the heathens. So the dialec
tics of the Stagyrite still govern some Christian
churches. Shall we then elevate our thoughts to
the dignity of our own independent condition, and
act accordingly, or shall we resemble slaves or male*
* 2 Hale, PI. Cr. 290. : and his convictions of supposed witches at Bury
St. Edmonds, in 1064.

17

factors recently escaped from justice, and still drag
ging at their heels the fragments of their broken
chains. Let us keep, in mind, that we too must become
ancestors and be judged by posterity. We eannot
altogether foresee what may be said of us, but part
we may imagine. These people, (it may be said,)
long after they had set the great example of self-
government upon principles of perfect equality, had
reduced the practice of religion to its purest princi
ples, executed mighty works, and acquired renown
in arts and arms, had still one pagan idol to which
they daily offered up much smoky incense. They
called it by the mystical and cabilistic name of
Common Law. A mysterious essence. Like the
Dalai Lama, not to be seen or visited in open
day ; of most indefinite antiquity ; sometimes in the
decrepitude of age, and sometimes in the bloom of
infancy, yet still the same that was, and was to be,
and evermore to sit cross-legged and motionless upon
its antique altar, for no use or purpose, but to be
praised and worshipped by ignorant and superstitious
votaries. Its attributes were all negative, its proper
ties all enigmatical, and its name a metaphor. Ta
ken in many senses, it had truly none. It was oral
tradition opposed to written law; it was written
3

18
law, but presuming the writing lost; it was that of
whose origin there was no record or memory, but of
which the evidence was both in books and records.
It was opposed to statute law, to civil law, to ec
clesiastical law, to military law, to maritime and
mercantile law, to the law of nations ; , but most fre
quently contrasted with equity itself. It was com
mon sense, but of an artificial kind, such as is not
the sense of any common man ; it was the perfection
of reason, but that meant artificial reason. And as
to its growth and progress, there is as little agreement
amongst its panygerists at this hour. Some tell us it
was perfect in its inception, and became corrupt
through time ; others that it had a barbarous origin,
but gradually grew to perfection. Some that it was
anciently wise, and then grew foolish, and from thence
has been in a state of convalescence. One speaks
of it in his day, as being the perfection of human
reason ; another shows it to have been at that
very period under a dark and fearful inumbration.
With false theories it must ever be so ; for there is
but one thing uniform, and that is truth, one thing
wise, and that is simplicity.
We have seen the historical plan with which Sir
William Blackstone sets out in his first volume, let
us now see how he winds up in his fourth and last.

19
" I have endeavoured," says he, "to delineate
some rude outlines of a plan for the history of our
laws and liberties, from their first rise and gradual
progress among our British and Saxon ancestors, till
their total eclipse at the Norman conquest, from which
they have gradually emerged. Our religious liberties
were not established till the reformation, our civil
and political liberties were not thoroughly regained
till the restoration of King Charles, nor fully and
explicitly acknowledged till the era of the happy
revolution."* Here then we find the laws and liberties of our
sky-blue British ancestors, of our ancestors the Picts
and Scots, which, being interpreted, means robbers
and rovers, of Jutes and Angles, and Saxon princes,
and Scandinavian sea kings, and such other barba
rians as successively invaded, plundered, extermi
nated, or enslaved each other in the long ages of
night and darkness, eclipsed by a body still more
opaque — the Norman jurisprudence; — a fearful and
ominous occupation ! Five centuries our civil and
religious liberties remained in total darkness; in
another half century a few digits of our political
liberties had emerged, but the eclipse was not fairly
* 4 Comm. 42.

20
over for more than six hundred years! Who that
had a choice, would remain in a planet or a sphere
where such phenomena might be repeated? And,
considering that the reformation was not owing to
any virtue of the common law, but to the passions of
a murderous king seeking to destroy his wife, gratify
his lust, and bastardize his lawful issue ; that the
restoration of King Charles was preceded by the
decapitation of his father, and by long and bloody
civil wars ; and that the happy revolution was the
dethroning of a father by his son-in-law, and a bloody
civil war, it must be allowed that the going off of this
eclipse was little less portentous than its coming on.
Yet mark how the eloquent commentator, after thus
bringing us through six centuries of bondage and
darkness, concludes : "" Of this constitution, so wisely
contrived, so strongly raised, and so highly finished,
it is impossible to speak with that praise which is so
justly and severely its due ; but to sustain, to repair,
to beautify this noble pile is a charge entrusted prin
cipally to the nobility, and such gentlemen as are
delegated by their country to parliament !" Now, let
the pile be as beautiful and noble as it may, as we
have no nobility, and our legislative representatives
are to obey and not to judge of our constitution, this
may serve as one among many reasons, why we should
cease to deal in maxims that have no application to

21

our affairs: why, being of full growth and stature,
we should no longer go in leading strings, but man
fully take upon us the burthen of our own concerns:
and why we should not do as the foolish fowls who,
after the period of incubation is complete, and the
law of their nature protrudes them from the egg, still
carry the shell upon their backs.
Let us now take a rapid view of the antiquities of the
common law, as delivered to us by writers, to whorr*
we have so long submitted with almost stupid vene
ration, that we know not how to contradict them.
Sir Edward Coke says,* " the first king of the land
was King Brutus, who, as soon as he settled himself
in his kingdom, for the safe and peaceable govern
ment of his people, wrote a book in the Greek tongue-
calling it The Laws of the Britons ; and that he col
lected the same out of the laws of the Trojans. This
king died after the creation of the world 2860 years,
and before the incarnation of Christ 1103 years, Sa
muel being then judge of Israel : and that the laws
of the ancient Britons, their contracts, and other in
struments, and the records and other juridical pro
ceedings of .their judges, were wrought and sentenced
in the Greek tongue ; it is plain and evident," he says,
" by proofs luculent and uncontrollable." This tale is
* 3d Rep. Pref.

22

borrowed from Geoffrey of Monmouth, the greatest
fabulist of all the monkish chroniclers. According
to him, this Brutus was the great grandson of iEneas,
by his son Ascanius, but having accidentally killed
his father Sylvius with an arrow, he was forcedt to
leave Italy, and flying into Greece, he joined the
Trojans who had settled in that country after the
destruction of their city. There he married the
daughter of King Pandrossus, who gave him a fleet
with which he entered the Atlantic sea, performed
wonders in Gaul, drove King Goffarius from his king
dom, put to sea again, landed at Totness in Devon
shire, found the country peopled with giants, whose
king was Gog Magog, slew these, divided the land
among his people, and from his own name called it
Britannia, and the seat of his government Troja No
va, afterward Tribonantium. He had three sons ; to
his eldest, Locrinus, he bequeathed England, then
called from him Leogria ; to his second son Camber,
he bequeathed Wales, called from him Cambria, or
Wales ; to his third son Albinactus, he left Albania,
at this day called Scotland.
From this flimsy evidence, and an expression im
puted to Cesar* which the best critics and antiqua-
* De Bello Gallico, apud Godvinum, 1. 6. c. 13. Janus Anglorum c. 9.
Reliquiae Spelmannianae, p. 98, et seq. Epinomis, c. .2.

23

rians suppose to be interpolated into his text, touch
ing the Druids using Greek letters, and some far
fetched Greek etymons, too tedious to be repeated
here, my lord Coke determines this positively, that
the common law was all in Greek ; although the
Druids using Greek letters, no more proved that
the ancient Britons pleaded in Greek, than our alma
nacs being printed in Roman characters, proves that
their compilers speak Latin. But, quitting these
learned futilities, and this barren erudition, let us
begin where true history begins, with Julius Cesar;
whose writings are (in the words of Coke himself,)
as true, as his style and phrase is perfect.
The most civilized of our British . ancestors, ac
cording to him, were little different from the Gauls.*
The more inland were very barbarous, raised no
corn, lived on milk and game, and had no clothing.
Those of the southern coast, only covered their na
kedness with skins of wild beasts; thrown carelessly
over them, to avoid offence to strangers who came to
trade with them.f They all painted their bodies with
woad, to add to the horror of their looks. Ten or

* De Bel. Gal. 1. 5. c. 14. Seid. Epinomis, c. 2. s. 6. Diod. Sic. 1. 4.
Herodian, 1. 11.
+ Univ. Hist. vol. xiii. p. 230.

24
twelve had wives in common, brothers with brothers,-
and fathers w^th children; and the children that
were born were imputed to those who first knew the
virgin. Their towns were a few scattered huts in
the woods, defended by slight ramparts of earth or
logs. All the later Roman historians confirm these
accounts of the barbarous condition of our first legal
ancestors; and Tacitus says, that their divisions
were very advantageous to the Romans, and the
chief means whereby they were conquered* accord
ing to the ancient practice of the Romans, to make
kings the instruments of subjection and servitude.
The best lesson of Common Law we can derive from
these ancestors, is to avoid that fault of their's, to
shun their example, and to let no enemy ever take
advantage of our disunion.
They had abundance of gods and goddesses.t
Their thunderer was Taran, and their goddess of
Victory, to whom they sacrificed their prisoners, was
Andate. Their priests, the Druids, were absolute
over their consciences, and exacted their dues by
terrible excommunications.J They had Druidesses
also, of different orders.§ Some like nuns made
* Vita Agricote, c. 14. f Univ. Hist. Vol. xviii. b. 4. ch. J4. p. 233.
} Toland's Hist, of the Druids, p. 71, 72. Cesar, De Bel. Gal. 1. 6. c. 13.
? Tacit. Annal, I. 14. Mela, 1. 3. c. 2. Cesar, De Bel. Gal. 1. 1, c. 27.

•20

vows of virginity, and lived in sisterhoods seques
tered from the world. They addicted themselves to
miracles and prophecies, were consulted upon all
important occasions, and almost worshipped as divi-
mities. It was one of these sybils that foretold to
Dioclesian, then a private soldier, that he would
one day be an emperor.* They raised tempests by
their incantations, transformed themselves into ani
mals of all kinds, and cured the most inveterate dis
eases.! Like the Magi, the Gymnosophists, and all
other such impostors, they had two systems ; one for
the initiated, who were sworn to secrecy, which they
taught in the deep recesses of woods and caverns,
but never committed to writing : the other they used
in public, to astonish and bewilder the ignorant, and
add to the power and riches of their priesthood.f
Like the priests of Egypt, the Chaldeans, or Brah
mins, they had a farrago of enigmatical common law
verses, which they delivered to the multitude from
little eminences, and inspired into them a fanaticism,
that sometimes stood in the place of a more enlight
ened patriotism, and made them formidable to the
all-conquering Romans. The oak was sacred
amongst them, and the gathering of the mistletoe
* Univ. Hist. Vol. xviii. b. 4. c 13. p. 234.
f Mela, lib. 3. cap. 2. t Melft> '• 3- c- 2- Lucan, 1. i
4

26
was one of their most imposing mysteries : an an
cient truncated . tree of this species, stood for the
emblem of their Jupiter, and their bloody and awful
sacrifices were performed beneath the thickest
shades of their spreading foliage. Lucan gives the
following poetical description of the groves they fre
quented for these cruel practices :
Lucus erat, longo nunquam violatus ab oevo
Obscurum augens connexis aera ramis,
Et gelidas alte submotis solibus umbras,
Hunc non ruricolse Panes nemorumque potentes
Silvani nymphae quse tenent sed barbara ritu
Sacra deum structae diris altaribus arae,
Omnis et humanis lustrata cruoribus arbor, &c.
Lucan, Phars. 1. 3. v. 399.
It required twenty years to study their rubric, and
get all their mystic rhymes by heart;* the same
time that is required for a modern judge to read his
books, — Viginti annorum lucubrationes.
The difference is that the one had the carmina
necessaria in his head, the other on his shelves. One
of their favourite modes of divination, was slicing a
man in two by the diaphragm, and from his fall, con
vulsions, and bleeding, to predict events, and dis-
* Cesar, DeBel- Gal. 1. 6. c. 13.

27

cover the will of the gods* They worshipped also
many symbolical objects of nature.t
The most cruel of all their rituals was burning in
colossal effigies of basket work, in human shape,
dozens of living men together, with hay or straw.J
But so many of these Druids themselves were burned
in the isle of Anglesea by Paulinus, in the time of
Nero, in the fires they had kindled for their Roman
prisoners, and so many were destroyed soon after, in
the great revolt under Queen Boadicea, that their
power declined, never to rise again. Such as would
not submit to build temples and worship the gods of
the Romans, fled to Ireland, Armorica, Caledonia,
and the smaller islands; and we hear no more of
them. What part of our common law do we then
derive from these our British ancestors ?
The next era is that of the Romans. If any rules
of their law were left in the days of Papinian, they
have disappeared with the cities, palaces, theatres,
roads, ramparts, and other great works of that mighty
people. But Gildas,§ one of the earliest Saxon
writers, who flourished in the sixth century, declares
* Diod. Sicul. 1. 5. c. 35. f Lucan, Phars. 1. 3. v. 399, & 412.
Cesar, De Bel. Gal. 1. 6. r. 16. « Univ. Hi'st. vol. xviii. p. 259.

28
that he could find no- British record of any of the
civil or ecclesiastical affairs of Britain whilst subject
to the power of the Romans ; and that, if any such
existed, they had been either destroyed by their
enemies, or carried into foreign parts by some of the
exiled Britons. That the Romans did so embellish
and improve the southern part of Britain, as to make
it an important province, is certain ; but what their
mode of administering the government and laws may
have been, no records remaining, must be looked for
in general history. What portion of their laws they
imparted to their provinces, what to their municipia,
what to their colonies, will be matter of curious
research.* The arts of corruption and disunion they
did practice on them, as Tacitus expressly admits :
but that they should allow them to participate in any
thing that would be consistent with patriotism or in
dependence, we cannot well believe. Whoever made
a brave resistance was condemned to chains and
slavery, and to grace the brutal and inhuman triumph
of his conqueror, f Those who submitted, like cow
ards, or betrayed, like sycophants, were rewarded
with the estate or petty kingdom of the betrayed, or
with mock honours, which lasted as long as he was

Montesq. Esp. L. 1. 11. c. 19. f pl«t- ?• iv. p. 271. Kennet's Antiq.
p. 218. Rolliii's An. Hist. p. 165. Adam's Rom. Antiq. p. 389.

29
useful.* The Romans were, in every stage of their
existence, a cruel and pitiless race ; and more likely
to encourage the vices of slaves than the virtues o/
freemen amongst a people, who had once fiercely
resisted them, and whom they had found it impossi-
sible, but for their vices, to 6ubdue. Tacitus says
there were no legions so innocent of the tumults of
the civil wars as those in Britain, because they were
taught, by so many expeditions, to hate the enemy .f
The Britons were not suffered to bear arms within
their own country, but the youth were drafted into
cohorts, to serve in subjecting other provinces. How
little of civil or military virtue was left among them,
how little they were used to the exercise of their
faculties, or to any rule of conduct whatever, appears
by this, that, even with the wall built for their pro
tection, they could not defend themselves against the
unsubdued barbarians, their northern neighbours,
but basely implored the protection of other barba
rians, who, despising their meanness, treated them
as a nation self-condemned to slavery.
If Papinian sat in judgment in Britain, it must
have been in the Roman colonies, and between Ro-t
man citizens, and in those times when the Roman
* Tacitus Vita Agricote, c. 14, t Tacitus Hist. lib. i. c. 9.

30
law was like our own at this day, as it appears from
Blackstone's quotations from Livy,* an immense
mountain, pile upon pile, and computed to be a
loading for many camels. It had then received no
ray of that light which since has shone upon it, and
upon us, nor been digested into order; and its only
religious sanction was the fear of gods, who were
themselves the types of every human vice. Some
Roman citizens in those days possessed many thou
sands of slaves, liable to be scourged, tortured, and
crucified, at the will of every brutal master ;t and to
put these wretches to the torture, without any charge,
was the common course of administration, whenever
it was hoped that any thing could be wrung from
their agonies, that might be desired for good or evil
ends. Nor did the Romans promote either commerce
or civilization among the conquered nations, but left
them in a state of lethargy, the powers of their native
genius extinguished and degraded, much below the
Bavage state in which they found them.
It is uncertain at what precise time Christianity
was first preached in Britain. Some would have it
as early as the primitive apostolic age. Gildas, on
* 1 Comm. p. 81.
f Adams' Rom. Antiq. p. 37, 274.

31
traditional evidence, refers it to as early a date as
the great revolt of Boadicea.* It is not certain
whether it had prevailed, or to what extent, among
the legions, prior to their recall. The earliest con
verts, (I mention it to the honour of the fair sex,)
appear to have been females, as they were the first
and most effective instruments of conversion. Pom-
ponia Graecina, an illustrious Roman lady, wife of
Aulus Plautius, the first governor of the province,
was accused of strange superstitions ; and her hus
band, according to usage, became her judge. He
tried her in presence of all her family, and acquitted
her; but, it is said, she ever after led a life of melan
choly. The relation of this, by Tacitus,t and the
manner in which he, and the other writers of those
times, speak of Christianity, make it very probable
it was that which she had embraced; and, from the
necessity of concealing it as a crime, she must have
suffered inward, and living martyrdom. There is
good reason to believe, that another lady of British
birth, highly celebrated at Rome, for her great
beauty, was among the converts of Saint Paul. In
writing, to Timothy, he says, Eubulus greeteth thee,
and Pudens, and Linus, and Claudia. And Martial,
in two different epigrams, compliments this British
* Gildae Hist. c. 6. f Annal. lib. xiii. c. 22,

32
Claudia, then newly married to his friend Pudens,
and asks, how it could be, that this Claudia, sprung
from the yellow-haired Britons, should have such
grace, such beauty, and such form, that the Italian
fair might make her their boast, and the Athenian
matrons claim her as their sister.
Claudia meo nupsit peregrina Pudenti
Macte esto tcedis O bymenaee tuis. L. iv. Epigr. 13.
Claudia ceruleis cum sit Rufina Brittannis
Edita, cur latiae pectora gentis habet
Quale decus formae, Romanam credere matres
Italides possunt, Attides esse suam. L. xi. Epigr. 54.
And afterward, in the conversion of the Saxons,
Birtha, daughter of Cherebert, king of France,
who married Ethelbert, king of Kent, overcame the
prejudices of that prince and his subjects against
Christianity.* I pass over the ridiculous stories of Nennius, and
Geoffrey, and others, about King Lucius and King
Coilus, and Bishops Faganus and Divanus, which
are crafty, but dull fictions, and only show how soon
* Bed. Hist. Eccles. lib. i. c. 15.

33
the pagan ostentations encroached upon the sim
plicity of apostolic manners. How easy the tran
sition was, from a flamen to a bishop ; from the lani-
ger apex to the mitre, and from the toga prcetexta to the
pontifical purple; and how much the kingdom of
these pious chroniclers was of this world.
The probability is, that the Christian church re
mained peaceful and united while exposed to vio
lence, and till after the Dioclesian persecution. But
when, under Constantine the Great, thr;r began to
taste of royal favour, wealth, security, and power,
they affected pomp, and knowing no other ceremo
nies, adopted those of the pagans, substituting pic
tures of canonized saints and martyrs, for Ihe pagan
images of deified heroes. A new superstition also
had arisen, that of long pilgrimages to Jerusalem,
and other places; and a new order of ecclesiastics,
which had its origin in Egypt, the prolific soil of su
perstition, who began by professing poverty, and
arrived at prodigious wealth. And our British an
cestors instead of uniting in brotherly and peaceful
worship of the one true God, and following the pre
cepts and example of Christ and his apostles, were
engaged in the midst of carnage, desolation, and fa
mine, in disputing whether Adam was mortal, and
whether children were born as pure as he was
5

34
created, and whether souls were saved by free-will
or by grace, when our Saxon ancestors, " our own
Saxon princes" who cared as little for the orthodox
as the schismatic, took possession of their country,
overturned their altars, pillaged their churches and
convents, where treasures were amassed, put their
clergy to death with as little remorse as the Romans
had formerly done the Druids, banished or exter
minated all whom they did not retain for slaves,
changed the name of their country,* scarcely leaving
one town to be called as they named it, or one British
word to creep into their language, until the name of
Briton or Gael, became synonymous with that of
slave. And this brings us to the Saxon era of our
common law.
Our Saxon ancestors were at this time, fierce pi
rates, and the wealth accumulated in convents and
churches, was a very tempting prey. Their religion
was much more gross than that of the Germans, as
generally described by Tacitus : for instead of one
God too great to be imaged or immured within walls,
they had many, both gods and goddesses. The prin
cipal was Odin' and his family, composed of his lady
Freya, their sons and their eleven daughters : and
* Reliquiae Spelmannianae, p. 100.

35

their theology consisted, in giving to each of these
their precise and peculiar attributes and due cere
monial worship. To Odin they sacrificed fat hogs,
to Thor oxen and horses, sprinkling the blood on the
assembly ; and from the entrails they discovered the
will and pleasure of their gods. Some of the flesh
was burned on altars, the remainder fed the priests,
who were much inferior to the Druids in their poe
try, much less devout and musical, and much less
honoured. They sometimes quarrelled and mutinied
against their gods, and shot up arrows at them, if not
to wound them, at least to show how little pirates
feared them. The first-born and bravest son of
Odin was Thor. He launched the thunder, pointed
the meteors, and governed the lightning. He had
five hundred and forty aerial halls.* They had also
their Pantheon of deified heroes, orators, and poets ;
a door-keeper of the gods, and a grand keeper of
the rainbow.f Their heaven was called Valhalla,
where their heroes were to spend their time in mar
tial sports, feed on the boar's scrimmer, and swill
plentifully of beer and mead, out of the skulls of
those they had slain.f They had old women who
consulted with the dead, and with familiar spirits,
* Edda, fable 11. < f Mallet, Introd. c. 6.
t Keysler, Antiq. septent. p. 117.

36
whom they believed, and reverenced as divinities.
Odin's image wore a crown and drawn sword,
Freya's was an hermaphrodite, with a bow in one
hand and a sword in the other. The following song
of king Lodbrog, translated out of the Edda, by
Bartholine, gives a good picture of the religious sen
timents and manners of these ancestors.*
Pugnavimus ensibus
Hoc ridere me foot semper
Quod Balderi (Odin) patris scamna
Parata scio in aula
Bibemus cerevisiam brew,
Ex concavis crateribus cranwrwm
JVon, gemit mr fortis contra mortem
Magnifici in Odini domibus
JVon venio desperabundis
Verbis ad Odini aulam.

Fuit animus finire
Invitant me dece
Quas ex Othini aula
Othinus mihi misit
Lcetus cerevisiam cum Asis
In summa sede bibam
Vitas elapsce sunt hora
Ridens moriar.
Christianity however by degrees obtained amongst
them, and notwithstanding its corrupted condition,
tended to civilize and soften them. Several of their
kings became converts, and their subjects followed
their example, though they often relapsed, and were
* Univ. Hist. vol. xviii. p. 183.

37
generally engaged in quarrels and petty warfare.
The first written laws, however, were by the first
Christian kings. But so deeply was their ancient
superstition rooted in their nature, that we find in
the seventh and eighth, and even in the tenth cen
tury, in the laws of Canute, prohibitions of the wor
ship of stocks and stones, and rivers and hills, and
other objects of nature.* The union of the Heptar
chy, about ninety years after the coming of Saint
Austin, by delivering the clergy from conflicting
authorities, might have still more extended their
influence and promoted learning, which, such as it
was, remained entirely in their hands. Books had
become necessary for the clergy, and schools were
established for the sons and dependants of the rich
converts. But a new set of pirates, more fierce and
cruel than our Saxon ancestors themselves, even at
their first arrival, landed upon their shores, and put
an end to further improvement.
The state of the Christian church, at this time,
was very unfavourable to national defence. The
monasteries had become agreeable scenes of expi
ation to wealthy sinners, who flocked to them, and
there ended their days in idleness and ignoble indul
gences. There was little commerce, except that of
* Lambert, Archionomia. p. 108. 5.

33
slaves, and the gainful traffic in relics, without the
protection of which no person was safe from the
devil, no church was holy, and no house secure:
miracles were propagated, and believed, and trea
sures of the kingdom wasted ir^ offerings and pil
grimages. The road to Rome was the high road to
heaven ; and to such a pitch was this infatuation
carried, that we find Boniface, archbishop of Mentz,
writing to Cuthbert, archbishop of Canterbury, that
the nuns, and other good ladies of England, were
debauched before their return, and remained prosti
tutes in the cities of France and Italy.* The corpse
of a saint was the fortune of a convent; and the
monks of Saint Augustin came to open warfare with
the canons of Christ's church, in Canterbury, for
the dead bodies of their archbishops.f Patriotism
and military discipline were lost in these cloistered
affairs, when the Scandinavian pirates, who had long,
under their sea kings, triumphed in every European
sea, and made the proudest nations tremble, marked
our Saxon ancestors for their prey : and this brings
us to the Scandinavian era.
The description given of these invaders, is appal
ling. They had no fear of any death but a peaceful
one. To die a natural death, was to be for ever
* Spelm. Concil. t. 1. p. 237. f Godwin de praesul. Aug. p. 65.

39
excluded from the halls of the gods of fire and
slaughter. They therefore laughed, on receiving a
mortal wound, and Were congratulated by friends,
on the feasting, fighting, and carousing they were
going to partake of, where their heavenly joys would
be measured by the numbers they had killed*
The victories of the Danes were bloody in the ex
treme; they refused quarter even to those who en
treated to become their slaves ; and their insolence
to the Saxons, who were of the same original, was
extraordinary. They obliged them, when they met
a Dane, to bow down their bodies till he passed ;
and if a Saxon dared to drink in the presence of a
Dane, he was punished with instant death, unless the
Dane had pledged his honour to spare him ;f from
whence the phrase, " I pledge you," yet used amongst
drinkers. Desolation followed their steps ; old men
had their throats cut; children were tossed on
spears ; and the bodies of matrons and virgins were
first defiled, and afterward mangled.J The poor
native slave, the Briton, saw this vengeance on his
conquerors, but was himself only more and more
enslaved, and exposed to still greater sufferings. In
short, so great was the horror they inspired among
* Northern Antiq. t. 1. c. 6. f Pantopidan Gesta et vestigia Dan. t. 2.
p. 139, 209. t Anglia Sacra, t. 2. p. 135. Bartholin!, 1. 2. c. 9. p. 457.

40
the Christians, that this new prayer was added to
the Litany, A furore Danorum libera nos Domine.
Thus, through the lapse of long ages, it is not till
the time of Alfred, that we find any thing worthy of
imitation ; and therefore the virtues of this favourite
child of the historic muse shine out, " like good
deeds on a wicked world." The miracles related of
his adventures and achievements, his courage and
fortitude in prosperity and adversity, his skill and
success in war and government, the many battles he
fought, the many sciences he excelled in, and the
many books he wrote, although he knew no letter at
the age of twelve, and only began the sciences at
forty, and could find no man south of the Thames
with learning enough to go through the decrees of
the chancery, would make us doubt, if he could be a
being of our own imperfect nature. But it is fair to
deduct something for the exaggerations of his histo
rians, since they are the same that ascribe virtues
and qualities to Saint Dunstan, and other favourites,
and relate miracles of them, such as no man, who has
any reason left, will at this day give credit to, and
has made some to consider this heroic personage as
the Hercules, to whom ignorance was wont to ascribe
all wonderful achievements, real or imagined, of
elder time, which it could not otherwise account for.

41
Alfred is said to have been the founder 'of that con
stitution, which Blackstone says had remained one
thousand years unchanged ; and to have rebuilt it out
of the old discordant materials which he found piled
upon each other, in rude and vast irregularity. If
this be so, his example is well worthy of our imita
tion at this day, considering what piles of discordant
materials we have to dispose of.
He reduced the whole kingdom, says Blackstone,
into one regular and gradual subordination, wherein
each man was answerable to his own immediate
superior for his conduct, and that of his neighbours.
Now, this might have been a good plan of police,
to keep an unruly and marauding race from doing
mischief, and to pen them up like cattle ; but utterly
inconsistent with any advanced state of civilization.
What could be the liberty of a people who were all
like prisoners in the hands of manucaptors ? What
the commerce of those, who could not leave their
hundred to go to fair or market, or buy or sell with
out the permission of the borseholder ? Or what the
security of men not only amenable for their own sins,
but for those of their neighbours ? Nor was the sub
division into tithings and hundreds the invention of
Alfred; it was a kind of military police used in many

42
ancient nations; it was the- division of the army of
Cyrus, if we are to believe Xenophon ; it resembled
the centuria of the early Romans ; it was used among
the Gothic or Teutonic people ; it was too obvious
to be ranked as a discovery, and too inconvenient to
outlive the age for which it was instituted: and
when Blackstone Wrote, the word tithing was almost
obsolete, and little of the hundred remained in prac
tical use. Neither the one nor the other was known
on this side of the great water that unites us with
Europe in our commerce, while it separates us for
ever in our government. These specious phrases
therefore are deceitful, and we might as well be told
that the hut built by Robinson Crusoe out of the. ma
terials of his shipwreck, endured beyond the time of
their natural decay, as that the constitutions of Alfred
remained a thousand years unchanged. That Alfred
divided the kingdom into counties, is more than; ques
tionable. Sir Henry Spelman says, that the Saxons
though divided into many kingdoms, were all united
in their laws ; and that by the union of the heptarchy
as under Alfred, Ethelstan, &c. no notable change
was wrought.* And truly there is nothing in the text
of Alfred's laws to distinguish them from the Dane-
lage, Mercian-lage, or any of the other Codes of the
* Reliquiae SpehnaniaffiE,, p. 49.

43
Anglo-Saxon or Danish princes ; or those of the Bur-
gundians, Lombards, or Visigoths, or the old capitu
laries of France, which are all of the same original
type.* As all crimes and offences were atoheable by com
pensation and fine, and as these fines were a principal
source of revenue, the chief object of the temporal
laws was to regulate them. The refinement of the
laws of property, separated from fact, was unknown to
them; their commerce and civilization had not ad
vanced so far. Their laws, except what regarded
church dues, penance, and other ecclesiastical ordi
nances of synods or councils, which always stood
foremost, were but tariffs, in which we may learn
how much it cost to kill a man, of any given rank,
from a monarch to a slave ; what a live virgin cost,
and what a widow ;t how much for cutting off one or
two ears of a bishop ; how much for the ears of a
churl ; what the boring of one or both of the mem
branes of the nose of a person of any given rank;
how many scaetas for a certain joint of the thumb, or
the same of the ring-finger; how, when the great
toe-nail cost two shillings, the others were but a shil
ling a piece; how much for lying with the king's
* Vide Lambard's Archionomia, passim,
I Wilkin's Leges Anglo-Sax., p. 1—7.

14
grinding-maid, and how much with his victualling-
maid, and how much for a yeoman's cup-bearer;
how a rich sinner might discharge the penance of a
seven years' fast, without losing one dinner, by making
his dependants fast it out at the rate of three days
each.* And the laws of the great Alfred are nothing
better than the rest of these semi-barbarous codes,
as may be seen by comparing their texts.t They
are chiefly distinguished by a long preface, borrowed
with great freedom from Exodus and the Acts of the
Apostles; the second commandment being left out
of the decalogue, as well as the injunction touching
neighbour's wives : the first omission, to comply with
the liturgy of the day, but what objection the king
had to the second inhibition history does not say.
To make up ten commandments this precept is in
serted at the end, " Thou shalt not make gold or sil
ver gods." Being so amended, it reads thus, " Thou
shalt bow down and worship images, if they be not of
gold or silver !"
* There is however instruction, as well as curiosity,
in these ancient codes. The laws of a country throw
light upon its civil history, and can only be perfectly
understood with reference to it. Nor can the laws
be understood so well, as by the state of manners
* Canones datae sub Edgaro Rege, Archionomia, p. 37.
t Leges Aluredi, ib. p. 15.

45
at the time of their establishment or growth. There
might be some wisdom in those disordered times, in
quieting deadly feuds or bloody vengeance by com
pensation to the injured party or his family; and good
policy in making offenders and offences the instru
ments and means of revenue : but when such juris
prudence is glorified with false praise, and we are at
this day exhorted to restore it to its "pristine vigour,'1''
it is time to put an end to such delusive cant, toge
ther with all other fictions or falsehoods that dis
grace our law, and give to that which should be all
faith, all purity, all truth, the character of juggling
and imposture.
The trial by jury is also referred to the Saxon ju
risprudence, but upon no satisfactory evidence. It
is in vain to look for it in their canonical purgations,
nor in the compurgation by twelve oaths,* since that
number was not more connected with trial by jury,
than with many other ecclesiastical ceremonies ; and
the oaths of compurgators were not confined to
twelve, but sometimes were of smaller number, and
sometimes multiplied to hundreds on each side.
Spelman tells of a Pope (Leof) who had twelve bi
shops as his compurgators, yet he was not surely on
his trial by jury. The same apostolical number was
* Spelman. Gloss, in voce Jurata. t Ibid.

46
used in the ordeal by red-hot plough-shares, for the
array of those terrible ministers of justice* This
last, with the choke-bit, the boiling water, cold wa
ter, and the ordeals by the cross, and by red-hot
balls, were the trials most in use amongst our Saxon
ancestors, and not the trial by jury, of which none
of their laws make the slightest mention.
As to the great Alfred, whose name is justly held
in honour, though his exploits may be exaggerated,
whatever his genius had effected for his country
seems too soon to have been lost. On his death the
Danes renewed the work of slaughter and destruc
tion, till Canute became monarch of all England ;
and, having embraced Christianity, made amends
for his past cruelties by a politic and a merciful
reign. The state of morals, even in his time, may
be judged of from his code, and in particular from
certain provisions against the worship of wood and
stone, and waters and ruins, and other such pagan
ish and idolatrous worship-t And here again, the
respite from disorder was but short. New struggles
for the crown, such as have in every century afflict
ed England, continued till the restoration of the
Saxon line, in the person of Edward the Confessor.

* Spelman. Gloss, voce Ordalium, &c. Ducange Gloss, in voce Judi.
cium Dei. f Lamb Archainomia. p. 108 — 5.

47
And, most assuredly, whether we look to the code
which bears his sainted name, or to his individual
story, we can find little to justify any violent predilec
tions for the one or the other. Those laws indeed,
which are at best a very meagre production, are said
to have been first composed, as well as his will, after
he was in his grave, by his politic successor. As to
his personal merits, he was so corrupt that he avowed
his taking bribes for his judgments or awards :* he
robbed his mother of her estates :t he was so great a
coward,:f that he would have fled back to Normandy
from the Danes, had not the most powerful and most
wicked of his subjects, Earl Godwin, taken him under
his protection, and married him to his daughter.
Having thus got a young and beautiful wife, he made
a superstitious vow of chastity, which gained him
the title of, a saint or confe'ssor.§ From this barren
marriage grew all these bloody contentions for the
succession between those that were of blood royal
and those that were not; which exposed the nation
to the most humiliating subjection, and brought upon
it that Norman jurisprudence so justly reprobated by
Blackstone, and which I shall not attempt to vindi-

* Hist. Ramsiens, c. 114.
,f Anglia Sacra, vol. i. p. 236.
\ Wm. Malms. 1. 2. c. 13.
\ Ingulf. Hist. Wm. Malms. 1. 2. c. 14. Anglia Sacra, vol. 1. p. 147.

48
cate. Such was that saint, and such those laws so
often made the boastful theme of our blind guides in
history; for the revival and restitution, and confirm
ation whereof there has been so much bickering,
bartering, and chartering: and this brings us to the
Norman era.
Odious as were the Norman kings ; at times tram
pling on the necks of their subjects, and then again
stooping their own beneath the foot of the minion of
a foreign hierarch : engaged from the beginning in
fraternal wars and parricidal attempts, yet still their
dominion was more favourable to general emanci
pation than that which preceded it; because their
interest led them to break the power of the nobles,
who, proud of their vassals, their slaves, and their
embattled castles* bearded their kings in their pa
laces, and defied their power. But those haughty
barons, who figured so proudly at Merton, or at
Runnimede, little thought of loosening one rivet in
the long chain of graduated dependence and subjec
tion, except in that one link that bound themselves
to their superior. It was, on the contrary, one of
their griefs, that the kings, in granting privileges to
towns and boroughs, in favour of commerce, were
setting slaves at liberty, to raise a counterpoise
against their power. It is true, that out of these

49
hard collisions, between mutiny and despotism, some
sparks of fpture liberty were then elicited, to which
England may afterwards have owed her superiority
over so many rival nations, and we ours, at this day,
over all others. With respect to the '•'¦liberties'''' of
our Saxon ancestors, it is all delusion. The great
majority of them were, in the most abject slavery,
bought and sold like cattle, and paid for, when put
to death, by compensation to their master.* The
slave trade was carried on with a degree of profli
gacy that would not bear to be told, so shocking is
it to decency. The provisions in the Saxon laws,
in favour of Christian slaves, as that the purcha
sers of a Christian, should manumit him at the end
of seven years ;f that Christians should not be sold
to Pagans, beyond the seas: and others, which the
spirit of Christianity had prorrioted, show what their
condition was ; as do the provisions, settling the du
ties or toll to be paid upon the sale of each man in
certain market towns. J What the proportion of our
enslaved, to that of our free ancestors was, it may be
difficult to say with precision. Some of the Romans
were possessed of many thousands of slaves ; but,
supposing that in England they were but three to
* Anglia Sacra, t. 2. p. 258. Murat. Antiq. t. 2. p. 885 Wm.
Malms. 1. 1. c. 3. fLamb Archaionom. p. 15. i 11. j Scriptor. Sax.
a T. Gale ed. 1. 1. p. 763.

50
one, which is a moderate computation, wherever agri
culture and the arts are committed to bondsmen, and
their masters only fight and get drunk, then this will
follow, that when a popular orator here declaims to
a jury or other assembly, composed of Dutchmen
mixed with Israelites and various Gentiles, about the
laws and liberties of their Saxon ancestors, probably
he is twice mistaken ; first, in supposing their ances
tors to have been Saxon; and, secondly, in supposing
his own to have been freemen: when the chances
are clearly three to one, that they were some poor
Gurths, perhaps of British race, the lineal inheritors
of the British soil, but whose armorial bearings
were no nobler than a dog collar, with no prouder
motto than the legend of their thraldrom and their
master's name : such things, in fact, as might be
played for with dice, or pledged at the alehouse for
beer. And it was during that long eclipse of liberty,
as it is called, that slavery wore out, and just about
the time when it is supposed to have emerged, and
the Saxon jurisprudence was returning to its pristine
vigour, that a new slave trade arose, and a new race
was devoted to its inhuman and ungodly exercise;
and so little did our Saxon ancestors know of the dig
nity of human liberty, that they sold their own chil
dren, and sometimes their own persons, to slavery.

51
It was my intention here to have pointed out some
of the most curious and interesting subjects, con
nected with the history of our law, but time will not
permit. They will present themselves readily to the
historian who shall devote his labours to the useful
and honourable task of exploring, with a view to fu
ture improvement, the true foundations of our law.
And let none be deterred, by the supposed dryness
of the subject. The historic muse is not austere,
except when dulness woos her; invoked by genius,
she gives to the coldest subjects warmth and anima
tion. And as the geographical historian is not con
tent to determine the depth of the valley, or the
height of the mountain, but enriches his works with
moral instruction, by the history of the human beings
who lived and roved, and worshipped and fought,
and flourished and fell, by the mountain's side, upon
the verdant plain, by the river's bank, or the wide
ocean wave : so the historian of our law, derived as
it is from such an ancient and a distant source, will
find his subject abounding in those changeful events,
metamorphoses and transitions, which will impart to
real and most important history, all the high charms
of poetry and fiction. Whilst fancy roams at large,
through time and space, and " distance lends en
chantment to the view," reason will knit the chain
that binds effect with cause, and judgment will ap-

52
prove the generous design. This discourse is but a
short prelude, to challenge into the noblest field of
exertion the talent and genius of our country, much
of which is now lost in barren erudition. If the
hundredth part of that painful industry and acknow
ledged talent, which is wasted upon vain and ever
baffled efforts to reconcile the irregularities, explain
the anomalies, sustain the paradoxes, and solve the
riddles of our entangled jurisprudence, was bestowed
upon a science capable of improvement or advance
ment, what glorious fruits would it not, e'er now,
have brought forth, instead of that sickly and exotic
growth, that has no sap nor freshness ; upon whose
withering branches some faint pale blossoms may
appear, but rich fruit cannot ripen. We should have
had laws suited to our condition and high destinies ;
and our lawyers would have been the ornaments of
our country. No longer forced into the degrading
paths of Norman subtleties, nor to copy from models
of Saxon barbarity, but taught to resolve every argu*
ment into principles of natural reason, universal jus
tice, and present convenience, truth would have been
the constant object of their search ; chicane and
pettifogging would have found no dark crevices to:
lurk in; bad faith would have been banished from
the temple of Justice; good sense would not be
shocked with the failures of right, upon exceptions of

53
idle and unmeaning form ; and Justice would not be
seen for ever travelling upon by-paths, such as ne
cessity enforces by the sides of a broken road.
And what subject can' be at once so important,
and so amusing, as to trace our law through all its^
various and progressive chang- '¦.«- from its first rude
origin in the wilds of Gaul and Germany, and its'
first Crossing the salt wave, till after a long sojourn of
troubled ages, it again passed the wider expanses
of ocean, and arrived at this western continent.
Here, " like a tree set by the water side, it will
spread1 its roots towards the moisture, and will not
fear the heat when it eometh, for its leaf shall be
green, and it will not cease to bring forth its fruit."
To realize this boast, we have but to put our
hands to the good work of reformation which cannot
be long delayed, and which alone can satisfy the de
termined will of the people. Having adopted the
common law of England so far as it is not repugnant
to our constitutions, we have a mighty interest to
know clearly what it is, and from what stock it comes.
We must either be governed by laws made for us,
or made by us. If we do not credit the stories of
King Brutus, or King Lucius, or Doctors Faganue
or Divanus, or of the Graeco-Trojan coder translated

54
by the great-grandson of iEneas, who after slaying
the giants and their King Gog Magog, took posses
sion of Britain, and dying divided it among his three
sons : so neither should we believe that we can be
governed, at this day, by the oral traditions of semi-
savage Saxons who could have no knowledge nor
conception of the objects with which our law is con
versant. We cannot believe that those vast importa
tions, which come wet from the press, or new bound
in calves' skin, treating of bills of exchange, promis
sory notes, policies of insurance, charter-parties,
banks, steamboats, patent-rights, and such learning,
can be rationally connected with the oral traditions,
or ancient common laws, of which our Saxon ancestors
were so unjustly deprived, by the chicaning and finessing
Norman clergy.
If this common law is but oral tradition, how
comes it to fall about our ears in overwhelming show
ers of printing ? How came these ancestors by tra
ditions touching what they could have neither known
nor contemplated ? Had they possessed the arts and
sciences which time has since brought to light, we
might be justified in looking back to their times, their
manners, and their usages for instruction. Instead of
their judicial astrology, had they known the true
theory of the heavenly bodies, so as to interrogate

55
them with certainty as to their course and position
in remote and trackless oceans ; had they understood
the virtues of the magnetic needle, and by its guid
ance to explore all earthly regions, habitable and in
habitable; had any of their sages commanded the
fleeting clouds to discharge their latent fire; had any
of their artists yoked that fierce consuming element
to the peaceful car of commerce, or thundering en
gine of defensive war ; had they, for the cure of dis-
seases, instead of magical incantations, and impious
consultations with the dead, discovered the circula
tion of the blood, the structure of the human frame,
and its wonderful and delicate organization, and by
accurate experiment been taught to heal, to suc
cour, or to cure ; had they been acquainted with
that wonderful instrument, which multiplies intelli
gence, and renders ancient and foreign learning fami
liar and vernacular; had the use of letters, instead
of being unknown, or if known, confined to cloisters
or to subjects of scholastic and theological dispu
tation, been cultivated and extended to all ranks,
and all useful purposes, we might look back to them
for wisdom. If, instead of the skin-covered baskets,*
in which our Celtic ancestors carried on their trade
and navigation, or the barks in which our Saxon and
Scandinavian ancestors coasted along in their piratical
* Univ. Hist. v. 18. p. 232,

56
excursions, their merchant sitting at his desk, by the
simple agency of his pen, could have given impulse
and direction to ships of mighty magnitude and won
derful construction, rare and curious combinations
of art and elegance: preordain what seas they were
to traverse, what climes to visit, what ports to- enter,
what delays to make, when to return, and by what
route, with all the thousand details that the refine
ment of commerce has produced, and the free use of
letters can express; then we might derive from them
wise laws and ordinances of commercial intercourse.
Had their landed possessions been unfettered by feu
dal rules, and free to circulate for the purposes of
peaceful life, and had their personal possessions been
any thing more than their cattle and their arms, their
modes of contract and conveyance, whether express
ed in Greek, in Latin, in Erse, in Danish, in Saxon, in
Norman, or in forensic English mixed and compounded
of them all, might govern us in that variety of transfers
and modifications which refinement in commerce and
civilization renders necessary. And time and labour
would be better bestowed in searching for such pre
cious antiquities, as models of our legal forms and
and institutions, than in digging in subterraneous
ruins for vases, and torses, and columns, and sculp
tured ornaments, wherewith to embellish the arts of
luxury and pride.

57
It is the meagreness and insufficiency of this an
cient stock, that has obliged judges to legislate pro
re nata, upon every new point. It is the complication
of these stinted usages with the perverse intricacies
of the Norman jurisprudence, that has made decisions
less wise than if their authors had been more free to
follow the dictates of their own good sense, or less
restrained by the antisocial spirit of the common
law, from resorting to universal principles, and to
codes of approved and written reason. The colo
nial laws, and the constitution and statutes of the
state, have successively pruned the exorbitances and
strange peculiarities of the English jurisprudence:
and it is therefore that the decisions of our judges,
due regard had to their personal merits, stand so far
above those which we import. It is for that reason
also, that we should import no more ; for with every
deference due to the learning, wisdom, and integrity
of English judges, they are not fit persons to legislate
for us. If we are indebted to them for much good
learning, it is more becoming to pay them back with
interest, than run deeper in their debt. Dependence
can never cease if one nation is always to teach,
and the other always to learn. Our condition is
essentially different from theirs. They are appointed
by a king, and he is the fountain of their justice and
its administration. Some of them are stationed at
8

58
Westminster, and some are supposed to follow this
moveable fountain wherever it shall be. Must we
too follow ? Must we tread always in their steps,
go Where they go, be what they are, do what they do,
and say what they say ? Too much of this sympa
thy may endanger our very being. If we can only
be wise when they are wise, we must also be foolish
if they are foolish, doat when they doat, and die
when they die ; and then, if I may borrow for illus
tration the witty conceit of the author of Hudibras,
we shall be like him whose nose being made of
the porter's brawn, could not outlive the parent
substance,
" And when the date of knock was out.
Off dropped the sympathetic snout."
In despotic countries the will of the sovereign is
the law, and his glory the sole end : earth, air, and
sea, are referred to his dominion : time is measured
by the years of his reign: and his subjects are quan
tities to estimate his grandeur. His vices or his vir
tues, his battles and his sieges, his intrigues, usurpa
tions, and alliances, his pleasures and amours, ab
sorb all other interests ; and the servile pen of the
historian and the poet, is ever ready to pay divine
honours to successful crime. In a free country, tri
umphs and victories, are only valued as the means

59
of peace and safety ; and the glory of the hero, is to
have fought in the defence of his country's liberty
and laws. So thought the ever honoured patriot,
who in that farewell address, which breathes the
spirit of his wisdom and his virtues, anticipates as
the great reward of all his services, to enjoy in the
midst of his fellow citizens, the benign influence of
good laws, under a free government.*
There is one country then, whose history is yet
unstained with crime or usurpation, where the faith
ful chronicler of its short but bright career, may
invoke both liberty and truth to bear him company.
Need I name it ? No, for before I spoke, the exult
ing heart of every hearer had already answered, It
is ours — it is our own.
It may be asked, Why this censure upon our an
cestors and upon their usages, and whether there
is any code for which we would exchange our law.
I answer : as to our ancestors I hold them all in equal
honour, and treat them better than they have done
each other. I would not ruffle a feather in the cap
of any of them: but it is no disparagement to say,
that they were barbarous in times of universal dark
ness. And as to our laws, it is one thing to change,
* Washington's Farewell Address, adfinem.

60
and another to reform them with a tender, patient,
kindly, and experienced hand ; and God forbid they
should be touched or meddled with, by any other
than the wise and honest.
Our law is justly dear to us — and why? because
it is the law of a free people, and has freedom for its
end, and under it we live both free and happy.
When we go forth, it walks silent and unobtrusive by
our side, covering us with its invisible shield from vio
lence and wrong. Beneath our own rOof, or by our
own fireside, it makes our home our castle. All ages,
sexes, and conditions, share its protecting influence.
It shadows with its wing the infant's cradle, and with
its arm upholds the tottering steps of age. Do the
smiles of the babe give gladness to the mother's
heart, her joy is perfect in the consciousness that no
tyrant's power dare snatch it from her arms; that
when she consigns it to repose, its innocent slumbers
are guarded by a nation's strength, and that it sleeps
more free from danger than kings amidst their armed
myrmidons. And when life's close draws near, we
feel the cheering certitude, that those we love and
leave shall possess the goods that we possessed, and
enjoy the same security in which we lived and died.
But that we are indebted for this, to Saxon, Scandi
navian, Gaul, Greek, or Trojan, is what unsophisti-

61

cated reason will not endure. We owe it to the
growth of knowledge, and to the struggles of virtu
ous patriots, many of whom have bled and died for
it : we owe it to fortunate occasion and favouring
providence. But even this part of our law which
thus secures our rights and liberties, is not untainted
with pedantry, nor free from all absurdity. A sister
state has already set on foot the experiment of a
penal code, and committed .its execution to the hands
of one of its most capable citizens.* Let us hail the
happy augury and prepare for a still nobler effort,
which imperious necessity will force upon us, and
which cannot and ought not to be long delayed.t
If the experiment had never before been made of
a judicial code, substituted in the place of antiqua
ted legends, usages, and customs, we might fear to
engage in an untried and hazardous undertaking. If
no attempt had ever yet been made, to reduce to a
body of written reason, the scattered fragments of a
nation's laws or usages, or if when such attempts
were made, disorder and mischief had constantly
ensued, we might take warning from such examples.
If no wise jurists had ever recommended the digest-

* Edward Livingston, Representative in Congress for Louisiana.
f See Cooper's Justinian, p. 410, ; and N. Am. Review, vol. iv. p. 1. &c.
an article imputed to the pen of Mr. Wheaton.

62

ing and new ordering of the law, there might be te
merity in the proposal, but Hale and Bacon have not
only approved, but offered their views and plans.
And are not our own written statutes periodically
revised; why not that part of our laws that rests
upon less solid evidence ? It has been the first glory
of the greatest sovereigns and the best policy of the
wisest people. The most celebrated lawgivers have
travelled into all regions where early civilization had
left its luminous traces, to gather the chosen flowers
and fruits of every clime. If the fathers of our
revolution at the peril of much more than life, of all
the vengeance that offended power can visit on the
unsuccessful patriot, dared to uproot the three great
pillars of the Common Law, the monarchy, the hie
rarchy, and privileged orders, shall we stand in
superstitious awe of unlaid spectres, shall we still
be amused by nursery tales, and tremble at the
thoughts of innovations upon institutions which their
admirers themselves assimilate to the practices of
the Gentoos, the Mexicans, and the children of the
Sun ; which have not half the imposing dignity
of those of our ancestors, the red men of the five
nations, as may be seen by any one who will read
the account of them by Mr. Colden* and compare
* See the Cordwainer's Trial, New- York, 1810.

63
it with the uncouth manners of the Saxon Heptar-
chists. It is true, at the same time, that the English
reports contain amidst a world of rubbish, rich trea
sures of experience, and that those of our own
courts contain materials of inestimable worth, and
require little more than regulation and systematic
order. This with fixing and determining the princi
ples on which they ought to depend, and settling by-
positive enactments all doubts that hang upon them,
abolishing for ever all forms that impede the march
of justice, and firmly establishing those which are
needful to its ends, and translating into plain and
intelligible language, those borrowed, ill-penned sta
tutes, of which every word gives rise to endless
commentaries, will complete the wished for object.
Particular cases will not then be resorted to instead
of general law. The law will govern the decisions
of judges, and not the decisions the law. Judg
ments will be legibus non exemplis. And it will not
be necessary that at least one victim should be sacri
ficed to the making of every new rule, which without
such immolation would have no existence.
Our jurisprudence then will be no longer intricate
and thorny ; nor will it need those fictions, which
give it the air of occult magic, or those queer and
awkward contrivances, which, by rendering it ridi-

64
culous, greatly diminish its dignity , and efficacy.
We shall be delivered from those odious volumes of
special pleading, which cannot be used without de
grading and lowering the tone of moral sentiment:
which destroy by their verbose jargon, the very end
of logical precision at which they profess to aim :
where the suitor's story is told in twenty different
ways, and answered in as many, and mustjbe hunted
for with fear and trembling in printed books, (but,
oh ! such books !) • and made conformable to prece?
dents composed before the party was in being, and
which, in no one single instance, conform to the truth :
insomuch, that he who dares to tell his case accor
ding to the simple and honest truth, will for that very
reason, if for no other, fail in his suit. We shall be
delivered too from those ever increasing swarms of
foreign reports and treatises, which darken the very
atmosphere by their multitude, and generate their
kind amongst us, and against which we must either
rise in arms, as certain oriental nations are said to
do against the flights of locusts, or else abandon our
own fair fields, and the fruits of our own genial soil,
to their pernicious action.
Sir Edward Coke,* complains, in the words of
Solomon, that of writing of books there is no end.
* 2 Rep. Pref.

65
He however wrote, and not sparingly. He also says,
quoting Seneca, " it matters not how many books thou
hast, but how good : multitude of books do rather
burden than instruct, and it is far better, thoroughly
to acquaint thyself with a few authors, than to wan
der through many." * " The ancient order of argu
ment," he says, " was altered, for formerly the citing
was general, but always true in the particular, and
now the citing is particular, and the matter many
times mistaken in general." " Few cases," he says,
" were cited of old, but very pithy and pertinent ; and
now, in such long arguments, with such a farrago of
authorities, it cannot be but there is much refuse.
This were easily holpen, if the matter, which ever
lieth in a narrow compass, were first discerned, and
then, that every one, that argueth at the bar, would
either speak to the purpose, or be short." What
would he say to us, in this land of common sense,
where all the books he enumerates would not be
missed off* the shelves of a young attorney, and
where the arguments of counsel are reported by
clouds of cyphers, indicating nothing but the pages
of books most commonly cited as law for both sides ?
Would he not say, that the evil required a speedy
cure ?

10 Rep. Pref. 9

66
The best reason urged for the adherence to En
glish precedents, is the preserving of uniformity
amongst the sister states. It has not, nor cannot
answer this end. This evil of divergence has already
begun,* and can only be remedied by erecting the
standard of simple wisdom, to which all may rally :
for there is nothing so uniform as truth, nor so simple
as wisdom. Folly cannot form a bond of union
amongst enlightened men, but reason may.
Of simplicity, be it observed however, there are
two periods. The first, where uncultivated human
beings, with few ideas and few wants, pursue, like
other gregarious animals, the instinctive habits of
their species. To that state we can no more return
than be again born of our mothers. The other
period of simplicity is that of mature wisdom, where
many ideas are referred to few and general princi
ples. To this we must labour to attain : to this per
fection we must endeavour to bring that law, which
•is our birthright, our blessing, and our safeguard.
And let us lose no time ; the moment is propitious.
Whilst darkness lowers, and war threatens, and
tyranny and superstition assert their ancient empire
over other nations, let us improve the auspicious
* See Judge Griffith's Annual Register.

67
moments of peace and happiness to strengthen our
selves with institutions worthy of our destinies.
Whilst yet a remnant of those patriot sages to
whom we owe the blessings we enjoy, still linger on
the stage where they so nobly have discharged their
part, let them perceive that their generous labours
are not lost, and that their children will be worthy of
their bright inheritance. It is for this generation to fill
up the outlines traced by the inspiration of their sires,
until the glowing canvas shall present one pure har
monious image of enduring wisdom, giving to all re
generated nations a model of judicial polity equal to
that already exhibited in our political institutions.
When this is done, and our untrammelled jurispru
dence shall expand to the measure of our growing
fortunes, its history will no longer resemble that re
servoir or fountain so often troubled, and so rarely
limpid, but rather be imaged, if we must speak in me
taphor, by a mighty river, which in some lonely barren
desert, first issues from its native rock. When yet a
slender stream it only serves to slake the tyger's
thirst, and that of his fellow savage man. Next a
foaming torrent, wild as the scenes through which it
drives its headlong desultory course. By a predes
tined ordinance descending still, it gains the fertile
plain. Uniting there with kindred waters and tri-

68

butary streams it takes a milder aspect, and on its
polished surface stand reflected, commerce, and arts,
and all that can embellish sublunary scenes, till last
of all it feels the ocean's swell, and bears upon its
heaving bosom the wealth of nations and treasures of
the earth.

ERRATA.
Page 36, line 18, for Fuit, read Fert.
Page 38, line 18, for affairs, read repairs.
Page 40, line 15, for decrees of the chancery, read service
of the Church.

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