Page:The American Cyclopædia (1879) Volume V.djvu/152

 148 COMMON LAW usages. This may be attributed in a consider- able degree to the large amount of business which continued to be transacted in the county courts, where the Saxon language and usages were strictly adhered to. The appointment of itinerant justices to go into the several counties of the kingdom for the trial of civil and criminal causes, which became a fixed cus- tom in the reign of Henry IL, must have also contributed largely to the perpetuation of pro- vincial forms. Hence it may be justly said that the laws continued to be formed as new cases arose, by the same habit of mind after the conquest as before, and that the common law continued to be developed from the Saxon original even under the Norman sovereigns. Of the collections of Saxon laws there are men- tioned: 1. The Dom Bole or Liber Judicialis of Alfred the Great, which was designed as a code for the government of the whole king- dom, and is supposed to have consisted of the local customs of different parts of the country, viz. : a, the Mercian laws, which prevailed in the counties bordering on "Wales, and which may have retained some of the old British customs; >, the West Saxon, which apper- tained to the southern and southwestern coun- ties ; Cj the Danish, which had been intro- duced on the eastern coast, where the Danes had settled. It appears that some laws were taken from the Old Testament, and it is likely that Alfred may have taken some liberty with existing regulations, particularly with the penal laws, as by a new enactment making murder a capital offence. But whatever was not in accordance with the spirit of the people came very little into use, and the whole was much interfered with by wars and consequent civil disorders. It has been said by some writers (Blackstone and others) that this code was extant as late as the reign of Edward IV., but it is now lost. Hallam, however, questions the authenticity of the work referred to. 2. The compilation of Edward the Confessor, the basis of which was the previous code of Al- fred, and was intended to be a complete collec- tion of laws both customary and statute. This obtained great celebrity, being the system which was in force immediately prior to the conquest, and consequently identified by the Saxons with their nationality. When there- fore they often demanded of the Norman kings confirmation of the laws of the confessor, they meant only the guarantee of the laws by which they had been formerly governed. This compilation is also lost. In some old writers there is a reference to a compilation begun by King Edgar, grandfather of the confessor, but this is supposed to be the same that was after- ward completed by the latter. 3. A collec- tion of ancient Saxon laws, canons, decrees of councils, and other public acts, was made by Lambard in the reign of Elizabeth, under the title of Apxaiovdfiia, sive de Priscis Anglorum Legibm. These laws are in Anglo-Saxon, and among them are some of Ethelbert, king of Kent (about 560). To this collection additions have been since made by Dr. Wilkins. The extent of the change of the laws made by the Normans has been the subject of much debate. It was chiefly in the tenure of real estate and the incidents resulting therefrom. On the one hand, it has been maintained by Coke, Selden, and others, that the feudal tenure existed among the Saxons before the conquest, but by Hale, and especially by Sir Martin Wright, that it was first introduced by the Normans. Without entering upon that dis- cussion, it will be sufficient here to say that principles relating to real estate are apparent soon after the conquest, radically differing from those recognized by the Saxons before that time. Among these may be specified, that landed property according to the Saxon laws was hereditary, that, with some excep- tions, it descended to all the sons, and that it could be aliened, mortgaged, or devised at the pleasure of the owner; whereas, not long after the accession of the Norman sovereigns, we find the descent of lands to the heir de- pending, at least in theory, upon the consent of the superior lord, as shown by the exaction of a compensation, called a relief, which the heir was compelled to pay; that the land descended to the eldest son, in exclusion of the others, and during the infancy of the heir the seignior or lord had the custody of his person and the care of his estate ; the land could not be aliened nor mortgaged, nor de- vised without the consent of the lord, nor sold under judgment for the payment of debts. Some of these restraints were relaxed in no long period afterward, as by a law of Henry I., which allowed a man to alien lands he had himself acquired, and which had not come to him by descent; this was modified in the reign of Henry II. by allowing alienation of purchased lands if he had other lands by de- scent sufficient to provide for his children, and if he had not, then he could only alien a part. So likewise in the reign of Henry II. aliena- tion of a part of the inheritance was allowed upon the same conditions. But disposal of lands by devise was never allowed until the reign of Henry VIII., when the statute rela- ting to wills was passed. In the system of judicature, among other changes was one which at the time was perhaps not designed to affect the mode of administering the laws, but which became the occasion of a vast extension of the jurisdiction of ecclesiastical courts and the bringing in of a foreign canon- ical law. This was an ordinance of William the Conqueror, by which the bishop, who had formerly sat in the county courts with the sheriff (the two together disposing of all causes, civil and ecclesiastical), was directed to hold a separate court -for the trial of ecclesiastical cases. The bishops, being thus made inde- pendent of the secular courts, proceeded to appropriate to their separate jurisdiction a large number of cases, under pretence of their