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[2. Another violent alteration of the English constitution consisted in the depopulation of whole counties for the purposes of the king's royal diversion, and subjecting both them, and all the antient forests of the kingdom, to the unreasonable severities of forest laws imported from the continent, whereby the slaughter of a beast was made almost as penal as the death of a man.
And though these laws were mitigated in the time of Henry the third and in succeeding reigns,—yet, from this root afterwards sprung a bastard slip, known by the name of the game laws,] by which none were permitted, in general, to take or sell game, even on his own estate, unless qualified by the ownership of land to the yearly value of at least 1001.; an arbitrary restraint under which the subjects of this realm continued to labour, until its tardy abolition in the reign of William the fourth.
3. [A third alteration in the English laws was by narrowing the remedial influence of the sheriff's county court, the great seat of Saxon justice, and extending the original jurisdiction of the king's justiciars to all kinds of causes, arising in all parts of the kingdom. To this end the aula regis, with all its multifarious authority, was erected, and a capital justiciary appointed, with powers so large and boundless, that he became at length a tyrant to the people, and formidable to the Crown itself. The constitution of this court, and the judges themselves who presided there, were fetched from the duchy of Normandy; and the consequence naturally was, that all proceedings in the king's court were ordained to be carried on in the Norman instead of the English language: a provision necessary, indeed, because none of his Norman justiciars understood English: but as evident a badge of slavery as ever was imposed upon a conquered people. This lasted till King Edward the third obtained a double victory, over the armies of France in their own country, and the language in our courts here at home: but there was one mischief too deeply rooted thereby, and which this caution [of King Edward came too late to eradicate. Instead of the plain and easy method of determining suits in the sherift's county court, the chicanes and subtleties of Norman jurisprudence had taken possession of the king's courts, to which every cause of consequence was drawn. Indeed that age, and those immediately succeeding it, were the era of refinement and subtlety. There is an active principle in the human soul, that will ever be exerting its faculties to the utmost stretch, in whatever employment, by the accidents of time and place, the general plan of education, or the customs and manners of the age and
untry, it may happen to find itself engaged. The northern conquerors of Europe were then emerging from the grossest ignorance in point of literature; and those who had leisure to cultivate its progress were such only as were cloistered in monasteries, the rest being all soldiers or peasants; and unfortunately, the first rudiments of science which they imbibed were those of Aristotle's philosophy, conveyed through the medium of his Arabian commentators ; which were brought from the East by the Saracens into Palestine and Spain, and translated into barbarous Latin. So that, though the materials upon which they were naturally employed, in the infancy of a rising state, were those of the noblest kind,—the establishment of religion, and the regulations of civil policy, yet, having only such tools to work with, their execution was trilling and flimsy. Both the divinity and the law of those times were therefore frittered into logical distinctions, and drawn out into metaphysical subtleties, with a skill most amazingly artificial; but which serves no other purpose than to show the vast powers of the human intellect, however vainly or, preposterously employed. Hence law in particular, which (being intended for universal reception) ought to be a plain rule of action, became a science of the greatest intricacy, especially when blended with the new refinements engrafted upon feudal property; which refinements were from time to time gradually intro
[duced by the Norman practitioners, with a view to supersede (as they did in great measure) the more homely but more intelligible maxims of distributive justice among the Saxons. And, to say the truth, these scholastic reformers have transmitted their dialect and finesses to posterity, so interwoven in the body of our legal policy, that they cannot now be taken out without a manifest injury to the substance, unless the greatest care be used in the operation. Statute after statute has in later times been made to pare
off these troublesome excrescences, and restore the common law to its pristine simplicity and vigour; and the endeavour has greatly succeeded; but still the scars are deep and visible; and the liberality of our modern courts of justice has been much called into action, in aid of the express enactments, in order to recover that equitable and substantial justice which for a long time was totally buried under the narrow rules and fanciful niceties of metaphysical and Norman jurisprudence.
4. A fourth innovation was the introduction of the trial by combat, for the decision of all civil and criminal questions of fact in the last resort. This was the immemorial practice of all the northern nations, but first reduced to regular and stated forms among the Burgundi, about the close of the fifth century; and from them it passed to other nations, particularly the Franks and the Normans; which last had the honour to establish it here, though clearly an unchristian, as well as most uncertain method of trial. But it was a sufficient recommendation of it to the conqueror and his warlike countrymen, that it was the usage of their native duchy of Normandy.
5. But the last and most important alteration, both in our civil and military policy, was the engrafting on all landed estates, a few only excepted, the fiction of feudal tenure, which drew after it a numerous and oppressive train of servile fruits and appendages : aids, reliefs, primer seisins, wardships, marriages, escheats and fines for alienation; the genuine consequences of the maxim then adopted, [that all the lands in England were derived from and holden mediately or immediately of the Crown.
The nation at this period seems to have groaned under as absolute a slavery as was in the power of a warlike, an ambitious and a politic prince to create. The consciences of men were enslaved by sour ecclesiastics, devoted to a foreign power, and unconnected with the civil state under which they lived; who now imported from Rome for the first time the whole farrago of superstitious novelties, which had been engendered by the blindness and corruption of the times, between the first mission of Augustin the monk and the Norman conquest ; such as transubstantiation, purgatory, communion in one kind, and the worship of saints and images; not forgetting the universal supremacy and dogmatical infallibility of the holy see. The laws, too, as well as the prayers, were administered in an unknown tongue. The antient trial by jury gave way to the impious decision by battle. The forest laws totally restrained all rural pleasures and manly recreations. And in cities and towns the case was no better; all company being obliged to disperse, and fire and candle to be extinguished, by eight at night, at the sound of the melancholy curfew. The ultimate property of all lands, and a considerable share of the present profits, were vested in the king, or by him granted out to his Norman favourites, who, by a gradual progression of slavery, were absolute vassals to the Crown, and as absolute tyrants to the com
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 consequence 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 confiscation of 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, became 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 insignificancy, happily retained, in their socage and burgage tenure, some points of their antient freedom. All the rest were villeins or bondmen.
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: 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 have 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, we now proceed to inquire.
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 feudal tenures; but reserved the tenures themselves, for the same military purposes that his father introduced them. He also abolished the curfew (k); for, though it is mentioned in our laws a full century afterwards (1),
(k) Spelm. Cod. LL. W. 1, 288, (1) Stat. Civ. Lond. 13 Edw. 1. Hen. 1, 299.