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§ 91. English Legislation.
Wilkin: Leges Anglo-Saxonicae (1721). Thorpe: Ancient Laws and Institutes of England (London 1840). Matthew Hale: History of the Common Law (6th ed. by Runnington, 1820). Reeve: History of the English Law (new ed. by Finalson l869, 3 vols.). Blackstone: Commentaries on the Laws of England (London 1765, many ed. Engl. and Amer.). Burn: Ecclesiastical Law (9th ed. by Phillimore, 1842, 4 vols.). Phillimore: Ecclesiastical Law of the Church of England (Lond. 1873, 2 vols.). Wm. Strong (Justice of the Supreme Court of the U. S.): Two Lectures upon the Relations of Civil Law to Church Property (N. York 1875).
England never accepted the Roman civil law, and the canon law only in part. The island in its isolation was protected by the sea against foreign influence, and jealous of it. It built up its own system of jurisprudence on the basis of Anglo-Saxon habits and customs. The English civil law is divided into Common Law or lex non scripta (i.e. not written at first), and Statute Law or lex scripta. They are related to each other as oral tradition and the Bible are in theology. The Common Law embodies the ancient general and local customs of the English people, handed down by word of mouth from time immemorial, and afterwards recorded in the decisions of judges who are regarded as the living oracles of interpretation and application, and whose decisions must be adhered to in similar cases of litigation. It is Anglo-Saxon in its roots, and moulded by Norman lawyers, under the influence of Christian principles of justice and equity. Blackstone, the standard expounder of English law, says, “Christianity is a part of the Common Law of England.”417417 Comment. Bk IV. ch. 4. The same may be said of the United States as far as they have adopted the Common Law of the mother country. It is so declared by the highest courts of New York, Pennsylvania, and Massachusetts, and by many eminent judges, but with this essential modification that those parts of the Common Law of England which imply the union of church and state are inapplicable to the United States where they are separated. Justice Strong (l.c. p. 32) says: “The laws and institutions of all the States are built on the foundation of reverence for Christianity.” The court of Pennsylvania states the law in this manner: “Christianity is and always has been a part of the Common Law of this State. Christianity without the spiritual artillery of European countries—not Christianity founded on any particular religious tenets—not Christianity with an established church and titles and spiritual courts, but Christianity with liberty of conscience to all men.” Hence the laws against religious offences, as blasphemy, profane swearing, desecration of the Lord’s Day, apostasy from Christianity, and heresy.418418 The statute de haeretico comburendo, passed in 1401 (Henry IV. c. 15), was still in force under Elizabeth when two Anabaptists were burned alive, and under James I. when two Arians were burned.
The Christian character of English legislation is due in large measure to the piety of the Anglo-Saxon kings, especially Alfred the Great (849–901), and Edward III., the Confessor 1004–1066, canonized by Alexander III., 1166), who prepared digests of the laws of the realm. Their piety was, of course, ascetic and monastic, but enlightened for their age and animated by the spirit of justice and charity. The former is styled Legum Anglicanarum Conditor, the latter Legum Anglicanarum Restitutor.
Alfred’s Dome-Book or Liber justicialis was lost during the irruption of the Danes, but survived in the improved code of Edward the Confessor. Alfred was for England what Charlemagne was for France and Germany, a Christian ruler, legislator, and educator of his people. He is esteemed “the wisest, best, and greatest king that ever reigned in England.” Although he was a great sufferer from epilepsy or some similar bodily infirmity which seized him suddenly from time to time and made him despair of life, he performed, like St. Paul in spite of his thorn in the flesh, an incredible amount of work. The grateful memory of his people ascribed to him institutions and laws, rights and privileges which existed before his time, but in many respects he was far ahead of his age. When he ascended the throne, “hardly any one south of the Thames could understand the ritual of the church or translate a Latin letter.” He conceived the grand scheme of popular national education. For this end he rebuilt the churches and monasteries which had been ruined by the Danes, built new ones, imported books from Rome, invited scholars from the Continent to his court, translated with their aid Latin works (as Gregory’s Pastoral Care, Bede’s Ecclesiastical History, and Boethius’s Consolations of Philosophy) into the Anglo-Saxon, collected the laws of the country, and remodelled the civil and ecclesiastical organization of his kingdom.
His code is introduced with the Ten Commandments and other laws taken from the Bible. It protects the stranger in memory of Israel’s sojourn in Egypt; it gives the Christian slave freedom in the seventh year, as the Mosaic law gave to the Jewish bondman; it protects the laboring man in his Sunday rest; it restrains blood thirsty passions of revenge by establishing bots or fines for offences; it enjoins the golden rule (in the negative form), not to do to any man what we would not have done to us.419419 I For further information on Alfred see the biographies of Pauli (1851, Engl. transl. by Thorpe, 1853), Weiss (1852), Hughes (Lond. and Bost. 1869), Freeman’s Old English History, and Green’s Conquest of England (1884), ch. IV. 124-180.
“In all these words of human brotherhood, of piety, and the spirit of justice, of pity and humanity, uttered by the barbaric lawgivers of a wild race, there speaks a great Personality—the embodiment of the highest sympathy and most disinterested virtue of mankind. It cannot be said indeed that these religious influences, so apparently genuine, produced any powerful effect on society in Anglo-Saxon England, though they modified the laws. Still they began the history of the religious forces in England which, though obscured by much formalism and hypocrisy and weakened by selfishness, have yet worked out slowly the great moral and humane reforms in the history of that country, and have tended with other influences to make it one of the great leaders of modern progress.”420420 Brace, Gesta Christi, p. 216.
John Richard Green, in his posthumous work, The Conquest of England (N. York ed. 1884, p. 179 sq.), pays the following eloquent and just tribute to the character of King Aelfred (as he spells the name): “Aelfred stands in the forefront of his race, for he is the noblest as he is the most complete embodiment of all that is great, all that is lovable in the English temper, of its practical energy, its patient and enduring force, of the reserve and self-control that give steadiness and sobriety to a wide outlook and a restless daring, of its temperance and fairness, its frankness and openness, its sensitiveness to affection, its poetic tenderness, its deep and reverent religion. Religion, indeed, was the groundwork of Aelfred’s character. His temper was instinct with piety. Everywhere, throughout his writings that remain to us, the name of God, the thought of God, stir him to outbursts of ecstatic adoration. But of the narrowness, the want of proportion, the predominance of one quality over another, which commonly goes with an intensity of religious feeling or of moral purpose, he showed no trace. He felt none of that scorn of the world about him which drove the nobler souls of his day to monastery or hermitage. Vexed as he was by sickness and constant pain, not only did his temper take no touch of asceticism, but a rare geniality, a peculiar elasticity and mobility of nature, gave color and charm to his life .... Little by little men came to recognize in Aelfred a ruler of higher and nobler stamp than the world had seen. Never had it seen a king who lived only for the good of his people .... ’I desire,’ said the king, ’to leave to the men that come after me a remembrance of me in good works. His aim has been more than fulfilled .... While every other name of those earlier times has all but faded from the recollection of Englishmen, that of Aelfred remains familiar to every English child.’
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