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. In the Saxon times, though no man was allowed to kill or chase the king's deer, yet he might start any game, pursue and kill it upon his own estate. But the rigour of these new constitutions vested the sole property of all the game in England in the king alone; and no man was entitled to disturb any fowl of the air, or any beast of the field, of such kinds as were specially reserved for the royal amusement of the sovereign, without express license from the king by a grant of a chase or free-warren; and those franchises were granted as much with a view to preserve the breed of animals as to indulge the subject. From a similar principle to which, though the forest-laws are now mitigated, and by degrees grown entirely obsolete, yet from this root has sprung a bastard slip, known by the name of the game-law, now arrived to and [*416 wantoning in its highest vigour: both founded upon the same unreasonable notions of permanent property in wild creatures, and both productive of the same tyranny to the commons, but with this difference, that the forest-laws established only one mighty hunter throughout the land, the game-laws have raised a little Nimrod in every manor. And in one respect the antient law was much less unreasonable than the modern; for the king's grantee of a chase or free-warren might kill game in every part of his franchise; but now, though a freeholder of less than 1007. a year is forbidden to kill a partridge upon his own estate, yet nobody else (not even the lord of the manor, urless he hath a grant of free-warren) can do it without committing a trespass and subjecting himself to an action.

3. A third alteration in the English laws was by narrowing the remedial influence of the county courts, the great seats 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, the ordaining that all proceedings in the king's courts should be carried on in the Norman instead of the English language; a provision the more necessary, 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 their 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. In[*417 stead of the plain and easy method of determining suits in the county courts, 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 subtility. 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 country, 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

'See this controverted, ante, 2 book, p. 419.-CHRISTIAN.

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 polity, yet, having only such tools to work with, their execution was trifling 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 the 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 1efinements engrafted upon feodal property: which refinements were from time to time gradually introduced 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 *418] posterity so interwoven in the body of our legal polity that they cannot now be taken out without a manifest injury to the substance. 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 is frequently obliged to have recourse to unaccountable fictions and circuities 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 Burgundii, about the close of the fifth century; and from them it passed to other nations, particularly the Franks and 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 polity, was the engrafting on all landed estates-a few only excepted-the fiction of feodal 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 *419] 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 battel. 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 curfeu. 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 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 consequer te 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

inen.

[*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 infringenents 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.

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, yet it is rather spoken of as a known time of night (so denominated from that abrogated usage) than as a still subsisting custom. There is 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. Ho, 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 eccle. siastical court. The rest remained as in his father's time; from whence we may easily perceive now 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 appea.s 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 primogeniture 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 regard ing 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

tne 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 other wise 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 [*425 John gained a still greater ascendant here than he ever had before enjoyed; 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 so 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 vei liber tatibus 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 terræ Nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam."-CHRISTIAN.