An introduction to the study of early English History

Front matter

Bg tfje same author. THE HISTORY OP THE COMMON LAW OF GREAT BRITAIN AND GAUL, FROM THE EARLIEST PERIOD TO THE TIME OF ENGLISH LEGAL MEMORY. By JOHN PYM YEATMAN, OF LINCOLN'S INN, ESQUIRE, BARRISTER-AT-LAW ; AUTHOR OF "AN OUTLINE OF THE PRACTICE OF THE MAYOR'S COURT OF LONDON," ETO "Currat Lex communis sicut prius currere consuevit LONDON : STEVENS & SONS, 119 Chancery Lane, Fleet Street, E.C. To be published in Four Parts. The First Part 13 already published, price Ten Shillings and Sixpence ; and the Second Part will be published shortly. The whole work, price Two Guineas, bound in cloth, to be published, if possible, during the year. OPINIONS OF THE PRESS. " This work, the author assures us, embodies the labour of many years, and the subject is one of no small interest. It is the history of the common law of Great Britain and Gaul, from the earliest period to the time of English legal memory The object is to exhibit the primitive sources of our common law in its earliest state, and with that view Gaul is included as well as Great Britain.

The author's view, in a word, is, that the Saxons were barbarians, and that the elements of law and civilisation to be found in this country after their invasion must have been derived from other sources. He traces them, in a great degree, to the lengthened Roman occupation of Britain, during which it undoubtedly attained a high degree of civilisation. This is the view upheld by Mr Finlason. For a writer on the history of our laws to begin by denying the genuineness of all early records of it, is indeed hopeless, and Mr Yeatman is inconsistent in denying the genuineness of the Saxons' jaws, whilst upholding those of Howell Dda. Nevertheless, Mr Yeatman's work is, though unsound on these points, vigorous and lively, and embodies the results of much reading. This is only an instalment, being the first of four parts which are to be issued ; and no doubt, when completed, it will contain much that is interesting and valuable." — The Law Magazine and Review, April 1874.

" This is the first instalment of a work of apparently a similar character to Reeves' ' History of the English Law.' Of works of this class it is difficult to form a just opinion until the whole is presented to the reader, and always ungrateful to form a hostile one ; because, whatever their demerits, they are monuments in a way of considerable industry. The present work, however, cannot be read without serious doubts arising that its excessive originality will disqualify it for a very wide success. Its scope is the investigation of the ancient law of the ancient Britons, with a view to establishing that the Roman civil law was in a great measure derived from it. A large amount of learning is undoubtedly displayed by the pre sent work, and also considerable skill in the art of writing lucidly, which ought to be employed more profitably than in advocating the most hopeless of newly-invented theories. On many questions, a superficial acquaintance with which is creditable, this work discloses much knowledge." — The Law Times, 28th March 1874. AN

Introduction

TO THE STUDY OF EARLY ENGLISH HISTORY. PRINTED BV BALLANTYNE AND COMPANY EDINBURGH AND LONDON AN

INTRODUCTION.

TO THE STUDY OF EARLY ENGLISH HISTORY BY JOHN PYM YEATMAN of Lincoln's inn, esquire, barrister-at-law Author of '" Tfie History of the Common Law of Great Britain and Gaul,' "An Outline of the Practice of the Mayor's Court of London," &>c. "MAGNA EST VERITAS ET PREVALEBIT " LONDON LONGMANS, GREEN, AND CO. 1874 [All rights reserved]

Preface

. A considerable portion of this book has been already published as an introduction to the author's " History of the Common Law of Great Britain and Gaul," now in course of publication ; in that work the author was com pelled to travel somewhat out of the region of law, in which he is more versed, and to dabble in that of history. His views on the subject of the origin of our law are wholly at variance with those of any of our lawyers, whether of the past or the present time, and he was compelled to illus trate them by reference to historical matters. No modern writer, with the exception perhaps of

PREFACE.

. VI the late George Spence, has ever hinted that our law has any but a Saxon origin. George Spence has indeed indicated that we must look more to Eoman institutions, but none of them has gone beyond this. The author, however, found so much in our law which clearly could not be referred to the Komans, but which was obviously of much older date than the period of their occupation, that he looked farther into the mat ter, and satisfied himself that to British institutions alone are the bulk of our laws to be attributed. In order to prove this proposition, it became necessary to examine the early histories of our country, and a very slight examination, proved how erroneously, and upon what false theories, so many of them are written. To arrive at the truth, it was necessary to avoid the old well-beaten paths so patiently and complacently travelled in childhood, and to strike out entirely new ways and modes of thought. This was done diffidently, with a conscious-

PREFACE.

. VII ness of personal unfitness for the task ; and in introducing his work to the public, the author thus spoke of it and of his objects and hopes : — " It is, then, to recall, if possible, the atten tion of students to the true sources of history and law that these pages are written. They are launched upon the stream of time with hesita tion, from a conviction that in so much dark ness it is very dangerous to attempt to find the way ; but it is still thought that the rays of light which modern science holds up to us are sufficient to enable us to advance firmly and confidently ; and although much error may have crept in, and many facts have escaped notice, it is hoped that even a partial execution of the work is better than none at all, since it may incite some worthier student to enter the same path, and induce him to record more perfectly all that is good and true and noteworthy in our glorious history — a history that Niebuhr candidly admits, of all the histories of all the

PREFACE.

. nations of the earth, like that of old Rome, affects the whole human race." Since this publication, the author met with the great work of the Eev. William Whitaker, " The History of Manchester," under which title is given a wonderful account of Roman Britain. In this work the author found much to corrobo rate his own theories, with much to correct them, and he determined to work out the theories he had originated with more particularity, and to present them to the general reader in a form more popular and palatable, believing that there is a real necessity for the work, and that some good may arise from it. 2 Brick Court, Temple, E.C., 23d Sept. 1874. CONTENTS.

Chapter I. English Ignorance Of Early English History

study of early English history is not only the -*- most interesting that can occupy the attention of Englishmen, but it is one which affects the whole human race ; and, to our shame he it written, it is one which, in all its branches, has been most thoroughly neglected in this country, where it ought certainly to have obtained the most earnest attention. We have, indeed, many histories which purport to give us a true account of our race and origin, but, with one exception, they are unworthy of the name. They are mere compilations, the work of scissors and paste; one author copying directly the errors and lies of another, none of them going to the fountain-head, in order to weigh the evidence of which we are the happy possessors. The bright exception to this rule is the Rev. William Whitaker, who, in his '•' History of Man- A EARLY ENGLISH HISTORY. 2 Chester," has given a most valuable history of Roman Britain.

Few writers in this century are aware of the value of his hook, which was published above 100 years ago, or, like the author, they would have avoided many grievous errors. It is not too much to say that this writer is far, very far, in advance of the science of the present century, though writing in the last ; and too much honour cannot he paid to his work on this account. As the writer of this grand work is almost for gotten by this learned generation, and as the author of this book relies upon him as an authority for many of the -propositions adduced in support of his arguments, it may be as well to refer the reader to the testi monials in Dr Whitaker's favour given by various learned writers, some of which are recorded in " Alli bone's Dictionary of British and American Authors," vol. 3.

The great Gibbon frankly acknowledged that in writing his Roman History, the laborious Mr Carte, and the ingenious Mr Whitaker were the two modern writers to whom he was principally indebted (chap, xxxviii). Lord Brougham, speaking of another hook by the same author, " The Life of Mary Queen of Scots," says " it is the most learned work on the subject." The same work is described by a writer, in the London Monthly Review, as " unequalled in respect to acuteness, ingenuity, and candour," and Dr Whi taker's " Origin of Arianism," is described as a work "replete with erudition and deep research." The author has been much blamed by reviewers and others, for writing very plainly concerning the errors and lies of history. He is thankful that Mr Whitaker affords him an opportunity of stating the THE ERRORS AND LIES OF HISTORY. 3 same thing in much better language : for, in enter ing upon an inquiry into the study of English history, the first thing to be done is to draw atten tion to this miserable fact ; for unless men's eyes are opened to the disgraceful state of our present his tories, the newest as well as the eldest, there can be no hope of our attaining to the truth ; and the truth of history is the first and only thing to he sought after.

Let us tear down the trumpery, the ornaments and gilding with which the truth has been overlaid ; and let us look plainly at the facts, concealing nothing, and distorting nothing, but exhibiting the truth as it exists ; and assuredly we shall find that we are no losers by the process, but that our history — even though we must record, at particular periods, acts as foul, and deeds as black, as those mentioned in the sacred history of the Jews themselves — will tri umphantly bear the test of comparison with the his tories of other nations ; and the consciousness of this will enable us to look back proudly on our origin and race. But whatever may be the result, let us find out the truth, and having attained to it, let us publish it to the world. The conclusion at which the author arrived, he thus stated : "So numerous, so malignant are the lies of history, that the only safe plan to adopt is to discard everything, to treat every subject as a matter to be proved step by step, not, of course, by strict evidence, but by the only evidence that can be produced, by comparison, by criticism, by the aid of the rules of logic, of evidence, and of right reason, and especially by the internal evidence of the subjects themselves (Yeatman's " History of the Common Law," p. 6).

When these words were written, the author had not seen Mr Whitaker's book, and he had arrived at these conclusions from the study, during many years, of our early records ; he rejoices to find how com pletely many of them are borne out by the evidence of this great writer. Mr Whitaker at page 7 of his preface thus writes : — " The period of our history before the Con quest is the most important and momentous in our annals. It most forcibly lays hold upon the passions by the quick succession and active variety of its incidents, and by the decisive greatness of its revolutions ; and what is more, it is that period of our history which gives the body and the form to all succeeding cen turies of it. It contains the actual commencement of every part of our public and private economy; and yet, this all-important period has been more wretchedly delineated than any other.

It has hitherto been delineated with all the hasty super ficialness of ignorance." And at page 5, vol. ii., he writes: — " Our best national accounts of the period, especially before the Conquest, call loudly, I think, for the correction of criticism. Prejudice and partiality, ignorance and inattention, dulness and refinement, have all co operated to throw their several false colours over the face of our annals, and disguise their real and genuine features ; and some bolder spirit has long been wanted amongst us that would dare to read, examine, and think for himself." And again at p. 11 : — " The interior condition of Roman Britain at the period of the departure of the Romans, has been strangely misrepresented by all our historians. The false representation (as to the building of the wall) was begun by Gildas, and IGNORANCE OF ENGLISH HISTORIANS. 5 copied afterwards by Bede, and has been faithfully transcribed by every historian from both.

"Absolutely false is the charge of barbarism against the Britons, which has been regularly transmitted from pen to pen through a succession of 1200 years " (to which another 100 may now he added); "and equally false are the other imputa tions upon them, though they have been equally repeated by all the historians from Gildas to Mr Hume." And this charge may be brought down also to our own day, to Sir Edward Creasy, Sir H. S. Maine, and to the remainder of modern historical writers. In vol. ii., p. 235, Mr Whitaker thus writes : — " The old British has been hitherto an unknown and unpractised wilderness to almost all our writers. On the origin of the English, scarcely one of them had obtained the smallest acquaintance with the ground, and some such had only skirted the borders, and hovered about the confines of it ; and yet, with a rashness which is very uncommon in some and highly condemnable in all, they have presumed to speak of what they knew themselves not to under stand, and to pronounce decisively on a subject of which they were conscious that they had obtained no information.

Hence the extermination of the Britons was asserted as a positive fact, or inferred as a strongly presumptive one, in opposition equally to good sense and decisive testimony ; and the English was affirmed to be genuine and unmixed Teutonic, though the traces and lineaments of the Celtic are plainly impressed on the front of it." These two propositions, that the English race was British and not Saxon, and that our tongue was the same, were adduced by the author to prove the fact he was then striving to prove — namely, the British origin of our laws ; for it requires little proof to induce the acceptance of the proposition, that if the true race and tongue of the English are British and not Saxon, that such is also the origin of the laws. And the author rejoices in the fact that simply by reading, examining, and thinking for himself, he had been able in all these matters to arrive at a correct conclusion; which, though novel, cannot now be con tradicted.

It is one thing for anonymous scribblers to assail an unknown writer with slander and abuse ; it is quite another thing to attack Dr Whitaker ; although he is an author of whom it is not rash to state that neither Stubbs nor Freeman, Creasy nor Maine, ever read a line ; and probably Dr Finslason has not done so either. Had any of them studied his hook, or had any writer of the present day copied by his example, it would be impossible for the shocking and gross ignorance, which Whitaker so ruthlessly exposes, to have survived to the present time; and his strictures, severe though they are, fall with double weight upon the present genera tion ; for to the charge of ignorance and presump tion must now be added a still lower characteristic, its natural offspring, calumny and slander. The present Prime Minister, in a speech the other day, whilst apparently complimenting the learned of our age, grimly insinuated that all our learning was not likely to be of much practical use to us.

Doubtless he covertly intended to sneer at our pre tensions to learning; and justly might he do so, whilst such shocking ignorance so extensively prevails. It is not incorrect to say that the strictures of Dr DR WHITAKER 'S WEAK POINT. 7 Whitaker apply with double force to this age; for men openly teach the same errors which he laboured to refute ; and our greatest writers, Creasy and Maine, are as innocent of the facts of history as were the scribblers of the last century. They appear to accept as gospel the histories of their predecessors, and to leave unnoticed and unexamined the records on which they profess to be based, which, if properly examined, are generally found to prove the very contrary of the propositions put forward by these so-called historians. It is only when Dr Whitaker arrives at the latter portion of his work, and when he has to treat of the subject of the Catholic Church, that he shows signs of failure.

The large-hearted, far-sighted historian sinks suddenly into the Protestant divine of the seventeenth century, a dismal caricature of an apostle of truth, happily very different from the Anglican Priest of to-day, and himself becomes a victim of that ignorance and inattention, prejudice and par tiality, which he had so justly and eloquently de nounced in the case of others. He writes as if Catholicity and superstition were convertible terms, and charges the immediate successors of St Augustine, if not the saint himself, with the old red-rag bugbear of Romanising tendencies ; as if our Blessed Lord Himself were not the first and greatest of Roman isers, having directly inspired His apostles there to plant that Church, which He had declared, in language which, to Protestant divines, if they possess any true knowledge of the facts of history, and believe in the statements of the Bible, must be fearfully charged with horror and apprehension.

For He de clared that His Church should remain, under the especial direction of the Holy Ghost, until the consummation of all things. " Amen, I say unto you, Thou art Peter, and upon thee, soft stone though thou art, I will found my Church, and the gates of hell shall not prevail against it. Behold, I am with you always, even unto the consummation of all things." Dr Whitaker, in spite of these awful words, had departed from the pale of the Church ; and, born and bred in antithesis, he was eating the fruit of Protest antism, that sickening, baleful sprout which, then at its highest growth, overshadowed God's Church, and cursed and withered the seventeenth century of England. Though he had strength of mind, where the question of religion was not concerned, to throw off the trammels of that narrow-minded and ignorant literature which the Protestant Church had nurtured, and to appeal boldly in secular matters for the truth ; yet, when he was compelled to treat upon religious affairs, he could only write with a pen bound down to his emasculated faith, circumscribed in its action, and with its ink envenomed ; and hence he himself displayed the very bigotry and ignorance which he had so loudly denounced in others.

Although he has been too honest to withhold facts, he has not scrupled to pervert their meaning ; that is, to deal with them in the miserable corroding spirit of Pro testantism. When we regard this portion of his work, we are irresistibly impelled to lament over the fall of the mighty, the failure of the strong and swift, the corruption of him who was deemed to be incorruptible. Lord Macaulay has noted the curious fact that it is only in British history that an age of fable com pletely separates two ages of truth ; we owe that mis- THE OBSCURITY CAUSED BY THE SAXONS. 9 fortune to the Saxons, to whom in their ignorance modern writers ascribe the merit of our institutions ; but every honest student of history knows that we owe the savage darkness of this horrible and sicken ing period to these wretched barbarians ; that cen turies before the Romans gained a footing in this country, the inhabitants were a polished and intellectual people, with a system of jurisprudence of their own, superior even to the law of Rome ; and that the Romans acknowledged this, spared and protected it ; and that the terribly thick darkness which now hangs over this period is solely owing to these Saxon savages.

To assume the contrary — to blot out our ancient history altogether — is to place us as a people lower in the scale of nations than even the Saxons ; but if, as it must be admitted, our intermediate his tory is wrapped in obscurity, the darkness is not im penetrable. Modern science and investigation has afforded us many lights by which we can approach it, and gain a clear insight and conception of its scope and details — lights of which the shallow writers of the present day boast the possession, whilst they only use them to baffle us, and to make the darkness more confused. Whilst the early period of our history, its brightest page, is thought unworthy the attention of scholars and professors, a chair is erected at Cam bridge to encourage the study of a barbarous tongue, with which we have nothing to do except to eliminate it from our own.

That wretched gibberish yclept Saxon is treated scientifically as an original language, an honour to which it has equal claims with the lingo of the Christy Minstrels, the wretched forgeries upon which its very existence depends receiving from the Professors almost divine honours. In truth, there is HISTORY. 10 as much to unlearn by the light of modern science as there is to learn, and its first application should be to sweep away the dust and cobwebs of ages, the effect too frequently of prejudice and lies. Modern writers discard the testimony of all our ancient chroniclers, in all matters except those of Saxon his tory, on the sweeping charge that they are monkish lies. We owe a deep debt of gratitude to the monks of old, for whatever is authentic in our history, from the departure of the Romans until the restoration of order by the Danes, is given to us by them.

It is doubtful whether there was one writer during this period of the Saxon race. It is certain that there was none of any authority; and if occasionally amongst these monkish histories we find errors and misstatements, they are not always to be attributed to an intention to deceive ; and where they are, in many instances, the purpose producing them is obvious and comparatively harmless. To take the works of the Venerable Bede, the greatest of all our monkish writers, how easy it is to separate whatever is fabulous from reality, and how clear it is that the writer, even when he was most wandering from the truth, was intending humbly and faithfully to do his duty. There is a mine of wealth in his works, the greater part of which in these enlightened days are unknown or forgotten. When shall we have a chair set apart for the study of early British literature ?

In later times, when the people, and especially the fat monasteries, were groaning under the exac tions and tyranny of the Normans, — we learn from Bede the reason for making so many of the fattest of these monastic houses, that indeed they were sham monasteries, which were not founded for religious THE LIES FALSELY IMPUTED TO THE CHURCH. II purposes, but which were erected simply to enable their founders to escape taxation and confiscation, and that they were inhabited by sham monks, — no doubt many gross lies and wicked forgeries were per petrated to protect these possessions, and hence it is that we have so many lies respecting the Saxons foisted upon us. From an unholy source we can only expect a foul outpouring ; but even the lies of these men, unfairly imputed to the Church, are of value to the historian, for many germs of truth may be sifted from them, though the process may be uninviting and dispiriting.

But what are all the lies of all these ages put together, compared to the infinite variety and enormous prodigality that has distinguished our writers since the " Great Reformation? " It is not too much to say that, compared to them, the monkish lies are as a molehill to a mountain, though no doubt this result is partly to be accounted for through the facility given for their propagation by the invention of printing. The monks were incited to lie in order to save their goods and themselves from the hands of the spoiler ; hut Protestants have lied to cover every iniquity, to assist the claim of every party, to vamp up the credentials of every monstrosity in religion. If we find educated and highly-trained men, taking down and worshipping the fragments of that poor idol Saxonism — from perhaps only a natural motive of flattering the great — how shall we be surprised to find that the facts of history are perverted, twisted, and converted into lies to serve the exigencies of party purposes ?

Since men have given up the faith, and have each of them set himself up as a Pope and guide for his own conscience, it is HISTOR Y. not to be wondered at that in mere matters of history and law they wander so wofully astray. They deviate from the truth unwittingly, because they acknowledge no authority but their own reason. Hence they worship themselves, instead of truth ; and in bowing down to what they are pleased to call intellect, they bow down in blind submission to every imposture ; instead of attaining to the truth, they only create a second Babel.

Chapter II. On The Evidence To Be Derived From The Laws Of

A NATION. TT is a self-evident proposition that the history of a -*■ people, of their race and language, is directly akin to a history of their law ; for it may be broadly laid down that no nation in the history of the world ever adopted and passed off as their own the laws of another. Whenever Roman or Grecian laws, or the laws of any other country, have been imposed upon a conquered state, that state has always acknowledged the paternity of such law. In Scotland, at this day, the Roman law is openly admitted to be the basis of the public law of the country ; so it is in Germany ; and in those parts of Germany which were conquered by France, and which still retain the French laws, although the name of France, and especially that of Napoleon, must be held in hitter hatred on account of the slavery to which he sub jected that people, the law is not called German or National, but openly and simply the Code Napoleon.

A nation which continues learned enough to retain the use of laws, necessarily retains with them their proper name ; hence it is of the greatest value to the English historian to examine the state and history of the English law, just as the lawyer is compelled to resort for proof of the law of his state to the annals of his race. These investigations should proceed pari passu, each counteracting and correcting the errors which inevitably creep into and corrupt the history of the other. A careful examination of the subject will discover that the same ignorance of true history which prevails amongst our annalists and historians is common to our greatest lawyers. The history of the Common Law of England has indeed yet to be written. No writer has attempted to give a full account of it, and very few have done more than point with an uncertain finger to a possible origin.

The few writers who have entered at all upon this field of inquiry have quietly ignored the period of our early history, taking for their starting point some safe spot within the period of legal memory ; whilst others, more rash or ignorant, have denied that our law had any ancient existence, upon the supposition that Cæsar's libels upon our fore fathers were actual historical facts. Some, more precise, give it a Saxon or Danish, and some a Roman origin ; but these writers forget that its very name is suggestive of a different source. It is clear that it is the law of no one nation, but the common law of many, although naturally enough, Britons or Angles called it the Common Law of Anglia, that it governed Britain and Gaul at a time when Wales was part of Britain, and that it was the common property of all the nations resident within their limits.