Finally, on this point. Conclusive proof that the legislation of
the king was of little or no authority, is found in the fact that
the kings enacted so few laws. If their laws had been received as
authoritative, in the manner that legislative enactments are at
this day, they would have been making laws continually. Yet the
codes of the most celebrated kings are very small, and were
little more than compilations of immemorial customs. The code of
Alfred would not fill twelve pages of the statute book of
Massachusetts, and was little or nothing else than a compilation
of the laws of Moses, and the Saxon customs, evidently collected
from considerations of convenience, rather than enacted on the
principle of authority. The code of Edward the Confessor would
not fill twenty pages of the statute book of Massachusetts, and,
says Blackstone, "seems to have been no more than a new edition,
or fresh promulgation of Alfred's code, or dome-book, with such
additions and improvements as the experience of a century and a
half suggested." 1 Blackstone, 66. [7]
The Code of Wiliiam the Conqueror [8] would fill less than seven
pages of the statute book of Massachusetts; and most of the laws
contained in it are taken from the laws of the preceding kings,
and especially of Edward the Confessor (whose laws William
swore to observe); but few of his own being added.
The codes of the other Saxon and Norman kings were, as a general
rule, less voluminous even than these that have been named; and
probably did not exceed them in originality. [9] The Norman
princes, from William the Conqueror to John, I think without
exception, bound themselves, and, in order to mqintain their
thrones, were obliged to bind themselves, to observe the ancient
laws and customs, in other words; the "lex terrae," or "common
law" of the kingdom. Even Magna Carta contains hardly anything
other than this same "common law," with some new securities for
its observance.
How is this abstinence from legislation, on the part of the
ancient kings, to be accounted for, except on the supposition
that the people would accept, and juries enforce, few or no new
laws enacted by their kings? Plainly it can be accounted. for in
no ether way. In fact, all history informs us that anciently the
attempts of the kings to introduce or establish new laws, met
with determined resistance from the people, and generally
resulted in failure "Nolumus Leges Angliae mutari" (we will that
the laws of England be not changed,) was a determined principle
with the Anglo-Saxons, from which they seldom departed, up to
the time of Magna Carta, and indeed until long after. [10]
SECTION II
The Ancient Common Law Juries were mere Courts of
Conscience.
Public-domain text, read in full here on John Shaqi.
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