Page:Catholic Encyclopedia, volume 9.djvu/94

 LAW

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LAW

which are based upon immemorial iisages and the de- taeioQB of the law courts as distinct from the lex 9cnpta; the latter consisting of imperial or kingly edicts or express acts of legislation. That pre-eminent English lawyer and law-writer, Sir *WilIiam Black- stone, states in his *' Commentaries upon the Laws of England" that the common law consists of rules properly called leges non scripUB, because their ori^nal institution and authority were not set down in writing as Acts of Parliament are, but they receive their binoing power and the force of laws, by long immemorial usage, and by their universal reception throughout the kingdom; and, quoting from a famous Roman author, Aulus Gellius, he follows him in defining the common law as did Gellius the Jus non scriptum as that which is "tacito illiterate hominum consensu et moribus ex- pressum" (expressed in the usage of the people, and accepted by the tacit imwritten consent of men).

Wnen a community emerges from the tribal con- dition into that degree of social development which constitutes a state and, consequently, the powers of government become defined with more or less distinct- ness as legislative, executive, and judicial, and the ar- bitration of disputes leads to the establishment of courts, the commimity finds itself conscious of certain rules regarding the conduct of life, the maintenance of liberty, and the securitv of property which come into heiDf at the very twilight of civilisation and have been consistently observed from age to age. Such were the usages and customs, having the^ force of law which became the inheritance of the English people and were first compiled and recorded by Alfred the Great in his famous "Dome-book" or "Liber JudiciaUs", pub- lished by him for the general use of the whole King- dom. That famous depositoiy of laws was referred to in a certain declaration of King Edward, the son of Alfred, with the injunction : " Omnibus qui reipublicse prsBSunt etiam atque etiam mando ut omnibus aequos se pnebeant judices, perinde ac in judiciali hbro scnptum habetur: nee quicquam formident quin jus commune audacter libereque dicant" (To all who are charged with the administration of public affairs I give the ei^ress command that they show themselves in all things to be just judges precisely as in the Liber Judi- dalis it is written; nor shall any of them fear to declare the common law freely and courageously).

In modern times the existence of the "Liber Judi- dalis" was the subject of ^reat doubt, and such doubt was expressed by many writers upon the constitutional history of England, including lx)th Hallam and Tur- ner. After their dav the manuscript of the work was brouf^t to light and waspublished both in Saxon and English by the Record Commissioners of England in the first volume of the books published by them under the title, " The Ancient Laws and Institutes of Eng- land". The profound religious spirit which governed King Alfred and his times clearly appears from the fact that the "Liber JudiciaHs" began with the Ten Commandments, followed by many of the Mosaic precepts, added to which is the express solemn sanction given to them by Christ in the Gospel: " Do not think that I am come to destroy the law, or the prophets; I am not come to destroy but to fulfil. " After quoting the canons of the Apostolic Council at Jerusalem, Al- fred refers to the Divine commancbnent, " As ye would that men should do to you, do ye also to them", and then declares, " From this one doom, a man may re- member that he judge every one righteously, he need heed no other doom-book." The original code of the common law compiled by Alfred was modified by reason of the Danish invasion, and from other causes, so that when the eleventh century began the common law of Englan d was not uniform but consisted of observances of different nature prevailing in various districts, viz: Meicen Lage, or Mercian laws, governing many of the midland counties of England and those Ix)rdoring Upon Wales, the country to which the ancient Britons

had retreated at the time of the Anglo-Saxon invasion. These laws were, probably, influenced by and inter- mixed with the British or Druidical customs. An- other distinct code was the West-Saxon Lage (Laws of the West-Saxons) governing counties in the south- em part of England irom Kent to Devonshire. This was, probably, identical for the most part with the code which was edited and published by Alfred. The wide extent of the Danish conquest is shown by the fact that the Dane Lage, or Danish law. was the code which prevailed in the rest of the mialand counties and, also, on the eastern coast. These three systems of law were codified and digested by Edward the Con- fessor into one system, which was promulgated throughout the entire kingdom and was universally observed. Alfred is designated by early historians as Legum Anglicanarum Conditor; Edward the Con- fessor as Legum Anglicanarum Restilutor.

In the days of the Anglo-Saxon kings the courts of justice consisted principally of the county courts. These county courts were presided over by the bishop of the diocese and the ealdorman or sherm, sitting en banc and exercising both ecclesiastical and civil juris- diction. In these courts originated and developed the custom of trial by jury. Prior to the invasion led by WiUiam the Norman, the common law of England pro- vided for the descent of lands to all the males without any right of primogeniture. Military service was re- quired in proportion to the area of each free man's land, a system resembling the feudal system but not accompanied by all its hardships. Penalties for crime were moderate; few capital punishments being in- flicted and persons convicted of their first offence being allowed to commute it for a fine or weregild; or in default of payment, by surrendering themselves to life-long bondage. The legal system which thus received form under the direction of the last Saxon King of England, was common to all the realm and was designated .as " Jus commune " or Folk-right.

In contradistinction to English jurisprudence the Civil Law of Rome prevailed throughout the Continent. William the Conqueror brought with him into England jurists and clerics thoroiighly imbued with the spirit of the civil law and distinctly adverse to the English ^tem. However, the ancient laws and customs of England prevailing before the Conquest, withstood the shock and stress of opposition and remained with- out impairment to any material extent. The first great court of judicature in England after the Con- quest was the Aula Regis or Eang's Court wherein the king either personally or constructively administered justice for the whole kingdom. The provision in Magna Charta to the effect that the King's Court of Justice should remain fixed and hold its sessions in one certain place, instead of being a peripatetic institu- tion, constitutes historic evidence of the existence of such a court and, also, gives expression to the public discontent created by the fact that its sessions were held at various places and thus entailed great expense and trouble upon litigants. In later days, the Aula Regis became obsolete and its functions were divided between the three great common-law courts of the realm, viz; the Court of King's Bench, the Court of Common Pleas, and the Court of Exchequer. The Court of King's Bench was considered the highest of these three tribunals, although an appeal might be taken from the decisions thereof to the House of Lords. The Court of Common Pleas had jurisdiction over or- dinary civil actions, while the Court of Exchequer was restricted in its j urisdiction to causes affectin g the royal revenues. Besides these courts the canon law was administered by the Catholic clergy of England in cer- tain ecclesiastical courts called " CurisB Christianitatis " or Courts Christian. These courts were presided oyer by the archbishop and bishops and their derivative officers. The canon law at an early date laid down the rule that ' ' Sacerdotes a regibus honorandi sunt« non