In the rude State of human Government, while perſonal Strength and Courage were chiefly held in Eſteem, as Qualities moſt conducive to Honour and Security, Men yielded with Reluctance to the Obligation of Civil Inſtitutions, which were calculated to abridge and reſtrain their natural Rights and Prerogatives.
During this early Dawn of Legiſlation, the unpoliſhed Genius of the People, is viſible even in the Conſtruction of their Laws, which are, moſt of them, haſtily drawn up without Order and without Preciſion.
The antient Statutes of this Kingdom, afford abundant Examples of ſuch Irregularity and Inaccuracy; being, moſt of them, formed without any ſettled Precedent; and ſeeming, in particular Inſtances, rather to be Proviſions extorted by ſome predominant Influence, than Laws inſtituted by the concurring Aſſent of a regular Legiſlature.
Some Degree of Order, however, beamed forth under the Reign of Edward I, many Laws of that Time being penned with a Brevity and Perſpicuity, which might do Honour to more enlightened Days. But ſtill the greater Part of the Statutes even of that Reign, and of thoſe immediately ſucceeding, are not only vague and unſettled in Point of Form, but are ſometimes defective in Subſtance. In many, there are no Words expreſſing by what Authority they were promulgated; and in thoſe wherein the enadling Authority is declared, it is variouſly deſcribed. In ſome Inſtances, the Laws ſeem to iſſue from the King alone; ſeveral Acts running in the Form of Charters and Patents. In others, they ſeem to proceed from the King and Lords jointly, without the concurring Aſſent of the Commons.
It is obſervable likewiſe, that Offences are ſometimes looſely and ambiguoiſly deſcribed; and, in many Statutes, no certain Penalty is inflicted on the Offender; whereby the Courts of Juſtice were not only entruſted with a Latitude of Conſtruction reſpecting the Offence, but with a dangerous diſcretionary Power of puniſhing the Delinquent; which afforded room for Partiality and Oppreſſion.
The Laws of thoſe Times were likewiſe extremely defective with regard to civil Proceedings, whereby, in many Inſtances, the Courts of Judicature were left open to Temptations, and expoſed to Menaces: And, even in the Decline of the feudal Policy, they were eaſily corrupted or overawed by the Influence of the Crown, or of ſome potent Baron.
- Many of the penal Statutes only enact that the Offender ſhall be puniſhed at the King's Pleaſure; ſome, that he ſhall make grievous Ranſom to the King: And others are merely prohibitory, or admonitory.
- See Maddox's Hiſt. of Exchequer