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the reputation of being the original. If so, the code would be a testimony indeed both of English liberty and English servitude, for, whilst it proves that William respected the Saxon laws, it also seems to afford evidence of the plan which he is said to have formed for the extirpation of the English tongue; and it must be ranked as one of the main landmarks in the history of the French language. In the printed copies the text is evidently faulty, and the loss of the ancient manuscripts of Ingulphus, as will be seen below, seemed to prevent all chance of rendering it more correct except by conjecture. It fortunately happens that a manuscript formerly belonging to Archbishop Parker, and afterwards to Coke, and which preserves the greater part of the text of the laws repeated in Ingulphus, has recently been discovered amongst the literary remains of Holkham, and from this last mentioned manuscript, the following extracts are made:—
'Cez sunt les leis e les custumes que li Reis Will, grantad al pople tie Engleterre apres le cunquest de la terre; iceles meimes que li Reis Edward sun cusin tint devant lui.—Ceo est a saver—Pais a Seinte Iglise de quel forfeit que horn fet oust, e il poust venir a Seint Iglise, oust pais de vie e de membre Esi aucuns meist raein en celui ki la mere iglise requereit si ceo fust u evesque u abeie u iglise de religiun, rendist ceo qu'il aureit pris e cent souz le forfeit. E de mere iglise de parosse xx souz, e de chapele x souz. E ki enfreint pais le Rei, en Merchene-lahe, cent souz les ameudes. Autresi de hemfare e de agwait purpense.'
Such, if we can believe Ingulphus, are the laws of the Conqueror in the very idiom in which they were promulgated, and according to the copy brought by him from London. That the substance of the statute is authentic may be admitted. It is abundantly proved that William allowed the Anglo-Saxon law to remain unaltered; and, judging from internal evidence, the matter is uninterpolated. But the employment of the French language in this solemn instrument is so utterly contrary to the usage and practice of the eleventh century, as at least to awaken some suspicion. At that period no law in France was ever written in the rustic and colloquial Romance language. Whether the dialect can be referred to that age, must be ascertained by comparison with documents, if there be any, whose dates can be fixed by positive proof, and not by conjecture. The forms, it is true, have an archaic cast, but the idiomatic peculiarities, and the orthography of the French language as spoken in England during the reign of Edward I., exhibit them nearly to the same extent, and if we are to found our opinions upon the language alone, we cannot place the French text of the laws in any higher period than the early part of the reign of Henry III., which also appears to be the era of the Holkham manuscript. Nor are there any external arguments which can
n 3 weaken
weaken the conjecture. We are told that ' William entertained the project of abolishing the English language; he ordered, that, in all schools throughout the kingdom, the youth should be instructed in the French tongue. The pleadings in the supreme court of judicature were in French, the deeds often were drawn in the same language, and the laws were composed in that idiom.'* But this popular notion cannot be easily supported. The example of a Norman aristocracy and a Norman clergy, aided by the literary influence of the writers of the langue d'oil and the utility of that dialect as a medium of general intercourse, ultimately rendered it almost as familiar amongst the English as their own tongue. But before the reign of Henry III. we cannot discover a deed or law drawn or composed in French. Instead of prohibiting the English language, it was employed by the Conqueror and his successors in their charters, until the reign of Henry II.; when it was superseded, not by the French, but by the Latin language, which had been gradually gaining, or rather regaining, ground. All these circumstances taken together will induce a strong suspicion, that the French text, together with the introductory statement, must be numbered amongst the passages which place the work of Ingulphus amongst the apocrypha of English history.
The style of the Anglo-Saxon laws is confused, perplexed, and elliptical. A literal translation is impracticable; there is no mode of expressing the sense otherwise than by a paraphrase. It is a remarkable proof of the difficulty attending the interpretation of the Anglo-Saxon statutes, that the ancient translator, who certainly flourished when the Anglo-Saxon was yet a living tongue, frequently errs in his version;—and it therefore can excite no astonishment, that a modern should be at fault. We pay the utmost respect to the memory of Lambard and Wilkins. Had it not been for their exertions, the civil and ecclesiastical laws of our ancestors would probably yet remain unpublished; and the praise which is justly due to these zealous antiquaries is not diminished by acknowledging the infelicity of their interpretations. The Latin language is ill adapted to render the Anglo-Saxon idioms, and the translation departs still more widely from the original, when the translator, like Wilkins, attempts to attain an air of elegance, by rejecting the technical terms and phrases of the Anglo-Saxon law, and substituting others borrowed from a foreign jurisprudence; but such mistakes are more easily pointed out than avoided. Being regulations adapted to existing customs, the Anglo-Saxon statutes are concise and technical, alluding to the law rather than defining it. The same enactments are often repeated
* Hume, cliap. iv.
word for word, in the statutes of subsequent Kings, showing that enactments which bear, ex facie, the appearance of novelty, are merely declaratory. Consequently the appearance of a law, seemingly for the first time, is by no means to be considered as a proof that it is a new law, nor can we trace the progress of the AngloSaxon institutions with any degree of certainty from the date of the law in which we find them first noticed. All arguments thus founded are liable to the greatest fallacies. Furthermore, a considerable portion of the Anglo-Saxon law was never reduced into writing. There can be no doubt but that the laws of inheritance were perfectly well established; yet we have not a single law, and hardly a single document from which the course of descent of land can be inferred. Interspersed amongst the Anglo-Saxon Statutes in the Textus Roffensis are some few notices relating to forms, practices and legal customs, which have been quoted as authentic laws, but which have no public sanction or validity. The declaration that the Ceorl having five hides of land became a Thane, and that the Merchant who went three times over the sea withTiis own craft, should be promoted to the same dignity, is one of these traditionary notices or narrations. It has been thought that the latter regulation is a proof of the politic encouragement given to commerce by the Anglo-Saxon ancestors of our trading nation. This favourite quotation, which has supported many a fine theory, is, however, quite unauthenticated. It is neither the declaration of a lawgiver, nor the substance of a statute. The law, if such it be, is contained in the vague report or recital of an unknown scribe, who does not even state the law as it was in his own time, but as it had been anciently—' whilome it was the law of England'—at some undefined and unknown period. Whether this had really been the law or not cannot be ascertained, but it is evident that, in early times, great errors prevailed respecting the customs of earlier times. In the statute of Alfred, a document of unquestionable antiquity, and compiled by a Sovereign who was well versed in the history of his own people, the legislator asserts that the pecuniary commutations, or weres, were introduced after the conversion of the Anglo-Saxons, by a synod of holy Bishops and most worshipful sages, who for mercy's sake enacted that the culprit should be at liberty to purchase his indemnity, by the payment of the fines which they fixed, unless in case of treason.* It is hardly necessary to observe that there is no portion of the Anglo-Saxon jurisprudence which can be so assuredly referred to the pagan era, as the custom of accepting pecuniary compositions from criminals. And when such an error can be discovered, it is
• Wilk. Leg. Sax. p. 33.
• R 4 a cona convincing proof that we may be deluded by ancient, and apparently trustworthy traditions.'
In attempting to explain the constitutional history of the Anglo-Saxons we are involved in a perplexing labyrinth. The difficulties of understanding the text of the laws are increased by the deceitful aid which the reader receives from an inaccurate translation. Some of the most important technical terms are nearly unintelligible, and have received the most contradictory interpretations. No period or era can be defined. We can neither affirm nor deny. Positive proof cannot be obtained of the commencement of any institution, because the first written law relating to it may possibly be merely confirmatory or declaratory. Neither can the non-existence of any institutions be inferred from the absence of positive evidence. Much of the law which certainly existed was, as certainly, unrecorded and unevidenced. Written laws were modified and controlled by customs of which no trace can be discovered until after the lapse of centuries, although those usages must have been in constant vigour during the long interval of silence. Tribunals, dignities, and offices continue to retain the same names after their pristine character sustains a total transformation; or, changing their denomination,and yet continuing to hold the same place in the commonwealth, they elude us in obscurity. No labour or sagacity can entirely unravel these enigmas. We can only proceed by the comparison of probabilities. An approximation to the truth is all that can be effected or desired. And the fitness of the hypothesis framed by a modern inquirer, for no scheme of the Anglo-Saxon policy can be any thing but an hypothesis, must be judged,not only from its application to the particular page or chapter, but from its conformity to the entire system. The right exposition of the Anglo-Saxon laws may become an object of interest, not merely to the antiquary or the historian, but to the practical lawyer. Many questions of vital importance in our present form of government can only be decided by reference to laws or usages which have prevailed since the time ' whereof the memory of man runneth not to the contrary.' The rights of the electors of a Borough may depend upon the exposition of the most obsolete passages in the laws of King Canute. Such cases have lately occurred. Should they be mooted again, the truth of the most ingenious theory by which the zealous, learned and laborious advocate attempts to deduce universal suffrage from the Anglo-Saxon or Anglo-Norman freepledge, may be put to an easy and certain test by simply inquiring how far this political equality was possible, according to the general frame of the Anglo-Saxon or Anglo-Norman commonwealth. When any historical theory does not agree with the general structure ture of the Constitution, we may safely pronounce it to be unfounded. We may discover the error in the same manner that Linnaeus detected the ingenuity of his students, who produced to him a shrub composed of different plants so nicely adapted together, that the eye failed to discern the junction of the parts. But the factitious origin of the compound was immediately perceptible to the mind which saw that the functions, united by art, could never have been co-existent in living nature. The laws were enacted in the Witenagemot. In these assemblies, ecclesiastical affairs were discussed and transacted, sometimes by the clergy alone, sometimes in conjunction with the lay members. No inconsiderable number of the proceedings of these great councils have been preserved in authentic transcripts, and perhaps occasionally in the original declarations or memoranda which were drawn up in the presence of the assembly, and sanctioned by the signatures, that is to say, the crosses of the enacting parties. These relate almost wholly to the affairs of the church, being either public enactments or declarations of ecclesiastical rights, or judicial decisions of cases in which the church was a party, and hence the meetings themselves have been considered rather as ecclesiastical councils than as secular senates. But civil and ecclesiastical affairs were transacted in the same assembly,though few memorials of the former have been preserved. The vigilance of the clergy induced them to record the acts which concerned their order, whilst the laity neglected this precaution, and the history of their transactions has accordingly passed away. : Under the head of public instruments we must rank the scanty relics of the international policy of our ancestors. The most curious of these documents is a compact effected between the British and Anglo-Saxon inhabitants of the ancient Domtiania,* both of whom appear to have been known by the enchorial designation of Defnstettas, or Devnsattas. The mistake of one single letter, the permutation of the u and the v, has strangely caused this instrument to be considered, in despite of its tenor, as a treaty between the Anglo-Saxons and the inhabitants of the Welsh Mountains. In consequence of this error, the transaction has been referred to a district with which it had no connection, and its real importance in our national history has been entirely overlooked. In the translations given and adopted by Lambard and Wilkins, the following title is prefixed,' Senatusconsultum de Monticulis Walliae;' but if the Saxon original be rightly read, no doubt can be entertained respecting the meaning which is to be assigned to it.—Dis is seo gerajdnysse J>e Angelcynnes witan and Weal Jieode