the crown, and as absolute tyrants to the commons. Unheard-of forfeitures, talliages, aids, and fines were arbitrarily extracted from the pillaged landholders, in pursuance of the new system of tenure. And, to crown all, as a consequel ce of the tenure by knight-service, the king had always ready at his command an army of sixty thousand knights or milites, who were bound, upon pain of confiscating their estates, to attend him in time of invasion or to quell any domestic insurrection. Trade, or foreign merchandise, such as it then was, was carried on by the Jews and Lombards, and the very name of an English fleet, which king Edgar had rendered so formidable, was utterly unknown to Europe: the nation consisting wholly of the clergy, who were also the lawyers; the barons, or great lords of the land; the knights, or soldiery, who were the subordinate landholders; and the burghers, or inferior tradesmen, who from their insignificance happily retained, in their socage and burgage tenure, some *points of their antient freedom. All the rest were villeins or bond

jnen.

[*420

From so complete and well-concerted a scheme of servility it has been the work of generations for our ancestors to redeem themselves and their posterity into that state of liberty which we now enjoy, and which therefore is not to be looked upon as consisting of mere encroachments on the crown and infringements on the prerogative, as some slavish and narrow-minded writers in the last century endeavoured to maintain, but as, in general, a gradual restoration of that antient constitution whereof our Saxon forefathers had been unjustly deprived, partly by the policy and partly by the force of the Norman. How that restoration has in a long series of years been step by step effected, I now proceed to inquire.

There is

William Rufus proceeded on his father's plan, and in some points extended. it, particularly with regard to the forest-laws. But his brother and successor, Henry the First, found it expedient, when first he came to the crown, to ingratiate himself with the people, by restoring (as our monkish historians tell us) the laws of king Edward the Confessor. The ground whereof is this: that by charter he gave up the great grievances of marriage, ward, and relief, the beneficial pecuniary fruits of his feodal tenures, but reserved the tenures themselves, for the same military purposes that his father introduced them. He also abolished the curfeu ;(e) for, though it is mentioned in our laws a full century. afterwards, (f) yet it is rather spoken of as a known time of night (so denominated from that abrogated usage) than as a still subsisting custom. extant a code of laws in his name, consisting partly of those of the Confessor, but with great additions and alterations of his own, and chiefly calculated for the regulation of the county courts. It contains some directions as to crimes and their punishments, (that of theft being made capital in his reign,) and a few things relating to estates, *particularly as to the descent of lands: [*421 which being by the Saxon laws equally to all the sons, by the feodal or Norman to the eldest only, king Henry here moderated the difference, directing the eldest son to have only the principal estate, "primum patris feudum," the rest of his estates, if he had any others, being equally divided among them all. On the other hand, he gave up to the clergy the free election of bishops and mitred abbots, reserving, however, these ensigns of patronage, conge d'eslire, custody of the temporalities when vacant, and homage upon their restitution. He, lastly, united again for a time the civil and ecclesiastical courts, which union was soon dissolved by his Norman clergy; and, upon that final dissolution, the cognizance of testamentary causes seems to have been first given to the ecclesiastical court. The rest remained as in his father's time; from whence we may easily perceive how far short this was of a thorough restitution of king Edward's or the Saxon laws.

The usurper Stephen, as the manner of usurpers is, promised much at his accession, especially with regard to redressing the grievances of the forest-laws, but performed no great matter either in that or in any other point. It is from his reign, however, that we are to date the introduction of the Roman civil and

() Spelm. Cod. LL. W. I. 288. Hen. I. 299.

() Stat. Civ. Lond. 13 Edw. I.

canon laws into this realm; and at the same time was imported the doctrine of appeals to the court of Rome, as a branch of the canon law.

By the time of king Henry the Second, if not earlier, the charter of Henry the First seems to have been forgotten, for we find the claim of marriage, ward, and relief then flourishing in full vigour. The right of primogenituro seems also to have tacitly revived, being found more convenient for the public than the parcelling of estates into a multitude of minute subdivisions. However, in this prince's reign much was done to methodize the laws and reduce them into a regular order, as appears from that excellent treatise of Glanvil, which, though some of it be now antiquated and altered, yet, when compared with the *422] code of Henry the First, *it carries a manifest superiority.(g) Throughout his reign also was continued the important struggle, which we have had occasion so often to mention, between the laws of England and Rome: the former supported by the strength of the temporal nobility, when endeavoured to be supplanted in favour of the latter by the popish clergy; which dispute was kept on foot till the reign of Edward the First, when the laws of England, under the new discipline introduced by that skilful commander, obtained a complete and permanent victory. In the present reign of Henry the Second there are four things which peculiarly merit the attention of a legal antiquarian: 1. The constitutions of the parliament at Clarendon, A.D. 1164, whereby the king checked the power of the pope and his clergy, and greatly narrowed the total exemption they claimed from the secular jurisdiction, though his further progress was unhappily stopped by the fatal events of the disputes between him and archbishop Becket. 2. The institution of the office of justices in eyre,-in itinere; the king having divided the kingdom into six circuits, (a little different from the present,) and commissioned these new-created judges to administer justice and try writs of assize in the several counties. These remedies are said to have been then first invented; before which all causes were usually terminated in the county courts, according to the Saxon custom, or before the king's justiciaries in the aula regis, in pursuance of the Norman regulations. The latter of which tribunals, travelling about with the king's person, occasioned intolerable expense and delay to the suitors; and the former, however proper for little debts or minute actions, where even injustice is better than procrastination, were now become liable to too much ignorance of the law and too much partiality as to facts to determine matters of considerable moment. 3. The introduction and establishment of the grand assize, or trial by special kind of jury in a writ of right, at the option of the tenant or defendant, instead of the barbarous and Norman trial by battel. 4. To this time must also be referred *423] the introduction of escuage, or pecuniary *commutation for personal military service, which in process of time was the parent of the antient subsidies granted to the crown by parliament, and the land-tax of later times. Richard the First, a brave and magnanimous prince, was a sportsman as well as a soldier, and therefore enforced the forest-laws with some rigour, which occasioned many discontents among his people: though (according to Matthew Paris) he repealed the penalties of castration, loss of eyes, and cutting off the hands and feet, before inflicted on such as transgressed in hunting, probably finding that their severity prevented prosecutions. He also, when abroad, composed a body of naval laws at the isle of Oleron, which are still extant, and of high authority; for in his time we began again to discover that (as an island) we were naturally a maritime power. But with regard to civil proceedings we find nothing very remarkable in this reign, except a few regulations regarding the Jews and the justices in eyre, the king's thoughts being chiefly taken up by the knight-errantry of a croisade against the Saracens in the holy land.

In king John's time, and that of his son Henry the Third, the rigours of the feodal tenures and the forest-laws were so warmly kept up that they occasioned many insurrections of the barons or principal feudatories: which at last had this effect, that first king John, and afterwards his son, consented to the two famous charters of English liberties, magna carta and carta de foresta. Of these

() Hal. Hist. C. L. 138.

the latter was well calculated to redress many grievances and encroachments of the crown in the exertion of forest-law; and the former confirmed many liberties of the church, and redressed many grievances incident to feodal tenures, of no small moment at the time, though now, unless considered atten. tively and with this retrospect, they seem but of trifling concern. But, besides these feodal provisions, care was also taken therein to protect the subject against other oppressions, then frequently arising from unreasonable amercements, from illegal distresses, or other process for debts or services due to the crown, and *from the tyrannical abuse of the prerogative of purveyance and pre[*424 emption. It fixed the forfeiture of lands for felony in the same manner as it still remains; prohibited for the future the grants of exclusive fisheries, and the erection of new bridges, so as to oppress the neighbourhood. With respect to private rights, it established the testamentary power of the subject over part of his personal estate, the rest being distributed among his wife and children; it laid down the law of dower as it hath continued ever since, and prohibited the appeals of women, unless for the death of their husbands. In matters of public police and national concern it enjoined a uniformity of weights and measures, gave new encouragements to commerce, by the protection of merchant strangers, and forbade the alienation of lands in mortmain. With regard to the administration of justice, besides prohibiting all denials or delays of it, it fixed the court of common pleas at Westminster, that the suitors might no longer be harassed with following the king's person in all his progresses, and at the same time brought the trial of issues home to the very doors of the freeholders, by directing assizes to be taken in the proper counties, and establishing annual circuits; it also corrected some abuses then incident to the trials by wager of law and of battel, directed the regular awarding of inquest for life or member, prohibiting the king's inferior ministers from holding pleas of the crown or trying any criminal charge, whereby many forfeitures might otherwise have unjustly accrued to the exchequer, and regulated the time and place of holding the inferior tribunals of justice, the county-court, sheriff's tourn, and court-leet. It confirmed and established the liberties of the city of London and all other cities, boroughs, towns, and ports of the kingdom. And, lastly, (which alone would have merited the title that it bears, of the great charter,) it protected every individual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers or the law of the land.3

*However, by means of these struggles, the pope in the reign of king John gained a still greater ascendant here than he ever had before en- [*425 joyed; which continued through the long reign of his son Henry the Third, in the beginning of whose time the old Saxon trial by ordeal was also totally abolished. And we may by this time perceive, in Bracton's treatise, a still further improvement in the method and regularity of the common law, especially in the point of pleadings. (h) Nor must it be forgotten that the first traces which remain of the separation of the greater barons from the less, in the constitutions of parliaments, are found in the great charter of king John, though omitted in that of Henry III.; and that, towards the end of the latter of these reigns, we find the first record of any writ for summoning knights, citizens, and burgesses to parliament. And here we conclude the second period of our English legal history.

III. The third commences with the reign of Edward the First, who hath justly been styled our English Justinian. For in his time the law did receive 50 sudden a perfection, that Sir Matthew Hale does not scruple to affirm(i) that

The following is the celebrated 29th chapter of magna carta, the foundation of the liberty of Englishmen :

"Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis, aut utlagetur, aut exulet, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terra. Nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam.”—CHRISTIAN.

more was done in the first thirteen years of his reign to settle and establish the distributive justice of the kingdom than in all the ages since that time put together.

It would be endless to enumerate all the particulars of these regulations; but the principal may be reduced under the following general heads:-1. He established, confirmed, and settled the great charter and charter of forests. 2. He gave a mortal wound to the encroachments of the pope and his clergy, by limiting and establishing the bounds of ecclesiastical jurisdiction, and by obliging the ordinary, to whom all the goods of intestates at that time belonged, to discharge the debts of the deceased. 3. He defined the limits of the several temporal courts of the highest jurisdiction,-those of the king's bench, *426] common pleas, and exchequer, so as they might not interfere with each other's proper business: to do which they must now have recourse to a fiction, very necessary and beneficial in the present enlarged state of property. 4. He settled the boundaries of the inferior courts in counties, hundred, and manors, confining them to causes of no great amount, according to their primitive institution, though of considerably greater than by the alteration of the value of money they are now permitted to determine. 5. He secured the property of the subject, by abolishing all arbitrary taxes and talliages levied without consent of the national council. 6. He guarded the common justice of the kingdom from abuses, by giving up the royal prerogative of sending mandates to interfere in private causes. 7. He settled the form, solemnities, and effect of fines levied in the court of common pleas, though the thing in itself was of Saxon original. 8. He first established a repository for the public records of the kingdom, few of which are antienter than the reign of his father, and those were by him collected. 9. He improved upon the laws of king Alfred, by that great and orderly method of watch and ward, for preserving the public peace and preventing robberies, established by the statute of Winchester. 10. He settled and reformed many abuses incident to tenures, and removed some restraints on the alienation of landed property, by the statute of quia emptores. 11. He instituted a speedier way for the recovery of debts, by granting exe cution, not only upon goods and chattels, but also upon lands, by writ of elegit, which was of signal benefit to a trading people: and upon the same commercial ideas he also allowed the charging of lands in a statute merchant, to pay debts contracted in trade, contrary to all feodal principles. 12. He effectually provided for the recovery of advowsons as temporal rights, in which, before, the law was extremely deficient. 13. He also effectually closed the great gulf, in which all the landed property of the kingdom was in danger of being swallowed, by his reiterated statutes of mortmain; most admirably adapted to meet the frauds that had then been devised, though afterwards contrived to be evaded *427] by the invention of uses. *14. He established a new limitation of property by the creation of estates-tail, concerning the good policy of which modern times have, however, entertained a very different opinion. 15. He reduced all Wales to the subjection, not only of the crown, but in great measure of the laws, of England, (which was thoroughly completed in the reign of Henry the Eighth,) and seems to have entertained a design of doing the like by Scotland, so as to have formed an entire and complete union of the island of Great Britain.

I might continue this catalogue much further; but upon the whole we may observe that the very scheme and model of the administration of commou justice between party and party was entirely settled by this king,(k) and has continued nearly the same in all succeeding ages to this day, abating some few alterations which the humour or necessity of subsequent times hath occasioned. The forms of writs, by which actions are commenced, were perfected in his reign, and established as models for posterity. The pleadings consequent upon the writs were then short, nervous, and perspicuous, not intricate, verbose, and formal. The legal treatises written in his time, as Britton, Fleta, Hengham, and the rest, are, for the most part, law at this day; or at least were so till the

(*) Hal, Hist. C. L. 162.

alteration of tenures took place. And, to conclude, it is from this period-from the exact observation of magna carta, rather than from its making or renewal, in the days of his grandfather and father-that the liberty of Englishmen began again to rear its head, though the weight of the military tenures hung heavy upon it for many ages after.

I cannot give a better proof of the excellence of his constitutions than that from his time to that of Henry the Eighth there happened very few, and those not very considerable, alterations in the legal forms of proceedings. As to matter of substance, the old Gothic powers of electing the principal subordinate magistrates, the sheriffs, and *conservators of the peace were taken from [*428 the people in the reigns of Edward II. and Edward III., and justices of the peace were established instead of the latter. In the reign also of Edward the Third the parliament is supposed most probably to have assumed its present form, by a separation of the commons from the lords. The statute for defining and ascertaining treasons was one of the first productions of this new-modelled assembly, and the translation of the law proceedings from French into Latin another. Much also was done, under the auspices of this magnanimous prince, for establishing our domestic manufactures, by prohibiting the exportation of English wool, and the importation or wear of foreign cloth or furs, and by encouraging cloth-workers from other countries to settle here. Nor was the legislature inattentive to many other branches of commerce, or indeed to commerce in general; for, in particular, it enlarged the credit of the merchant, by introducing the statute staple, whereby he might the more readily pledge his lands for the security of his mercantile debts. And, as personal property now grew by the extension of trade to be much more considerable than formerly, care was taken, in case of intestacies, to appoint administrators particularly nominated by the law to distribute that personal property among the creditors and kindred of the deceased, which before had been usually applied, by the officers of the ordinary, to uses then denominated pious. The statutes also of præmunire, for effectually depressing the civil power of the pope, were the work of this and the subsequent reign. And the establishment of a laborious parochial clergy, by the endowment of vicarages out of the overgrown possessions of the monasteries, added lustre to the close of the fourteenth century, though the seeds of the general reformation, which were thereby first sown in the kingdom, were almost overwhelmed by the spirit of persecution introduced into the laws of the land by the influence of the regular clergy.

From this time to that of Henry the Seventh the civil wars and disputed titles to the crown gave no leisure for further *juridical improvement: [*429 “nam silent leges inter arma." And yet it is to these very disputes that we owe the happy loss of all the dominions of the crown on the continent of France, which turned the minds of our subsequent princes entirely to domestic concerns. To these likewise we owe the method of barring entails by the fiction of common recoveries, invented originally by the clergy to evade the statutes of mortmain, but introduced under Edward the Fourth for the purpose of unfettering estates and making them more liable to forfeiture; while, on the other hand, the owners endeavoured to protect them by the universal establishment of uses,-another of the clerical inventions.

In the reign of king Henry the Seventh, his ministers (not to say the king himself) were more industrious in hunting out prosecutions upon old and forgotten penal laws, in order to extort money from the subject, than in framing any new beneficial regulations. For the distinguishing character of this reign was that of amassing treasure in the king's coffers by every means that could be devised and almost every alteration in the laws, however salutary or otherwise in their future consequences, had this and this only for their great and immediate object. To this end the court of starchamber was new-modelled and armed with powers the most dangerous and unconstitutional over the persons and properties of the subject. Informations were allowed to be received, in lieu of indictments, at the assizes and sessions of the peace, in order to multiply fines and pecuniary penalties. The statute of fines for landed property was craftily

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