CHAPTER THE THIRTY THIRD.

OF THE RISE, PROGRESS, AND GRADUAL
IMPROVEMENTS, OF THE LAWS OF
ENGLAND.

BEFORE we enter on the fubject of this chapter, in which I propofe, by way of fupplement to the whole, to attempt an hiftorical review of the moft remarkable changes and alterations, that have happened in the laws of England, I muft firft of all remind the ftudent, that the rife and progrefs of many principal points and doctrines have been already pointed out in the courfe of thefe commentaries, under their refpective divifions: thefe having therefore been particularly difcuffed already, it cannot be expected that I fhould re-examine them with any degree of minutenefs; which would be a moft tedious undertaking. What I therefore at prefent propofe, is only to mark out fome outlines of an Englifh juridical hiftory, by taking a chronological view of the ftate of our laws, and their fucceffive mutations at different periods of time.

THE feveral periods, under which I fhall confider the ftate of our legal polity, are the following fix: 1. From the earlieft times to the Norman conqueft: 2. From the Norman conqueft to the reign of king Edward the firft: 3. From thence to the
refor-
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reformation: 4. From the reformation to the reftoration of king Charles the fecond: 5. From thence to the revolution in 1688: 6. From the revolution to the prefent time.

I. AND, firft, with regard to the antient Britons, the aborigines of our ifland, we have fo little handed down to us concerning them with any tolerable certainty, that our enquiries here muft needs be very fruitlefs and defective. However, from Caefar's account of the tenets and difcipline of the antient Druids in Gaul, in whom centered all the learning of thefe weftern parts, and who were, as he tells us, fent over to Britain, (that is, to the ifland of Mona or Anglefey) to be inftructed; we may collect a few points, which bear a great affinity and refemblance to fome of the modern doctrines of our Englifh law. Particularly, the very notion itfelf of an oral unwritten law, delivered down from age to age, by cuftom and tradition merely, feems derived from the practice of the Druids, who never committed any of their inftructions to writing: poffibly for want of letters; fince it is remarkable that in all the antiquities, unqueftionably Britifh which the industry of the moderns has difcovered, there is not in any of them the leaft trace of any character or letter to be found. The partible quality alfo of lands, by the cuftom of gavelkind, which ftill obtains in many parts of England, and did univerfally over Wales till the reign of Henry VIII, is undoubtedly of Britifh original. So likewife is the antient divifion of the goods of an inteftate between his widow and children, or next of kin; which has fince been revived by the ftatute of diftributions. And we may alfo remember an inftance of a flighter nature mentioned in the prefent volume; where the fame cuftom has continued from Caefar's time to the prefent, that of burning a woman guilty of the crime of petit treafon by killing her hufband.

THE great variety of nations, that fucceffively broke in upon, and deftroyed both the Britifh inhabitants and conftitution, the

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Romans,

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Romans, the Picts, and, after them, the various clans of Saxons and Danes, muft neceffarily have caufed great confufion and uncertainty in the laws and antiquities of the kingdom; as they were very foon incorporated and blended together, and therefore, we may fuppofe, mutually communicated to each other their refpective ufages ^a, in regard to the rights of property and the punifhment of crimes. So that it is morally impoffible to trace out, with any degree of accuracy, when the feveral mutations of the common law were made, or what was the refpective original of thofe feveral cuftoms we at prefent ufe, by any chemical refolution of them to their firft and component principles. We can feldom pronounce, that this cuftom was derived from the Britons; that was left behind by the Romans; this was a neceffary precaution againft the Picts; that was introduced by the Saxons, difcontinued by the Danes, but afterwards reftored by the Normans.

WHEREVER this can be done, it is matter of great curiofity, and fome ufe: but this can very rarely be the cafe; not only from the reafon above-mentioned, but alfo from many others. Firft, from the nature of traditional laws in general; which, being accommodated to the exigences of the times, fuffer by degrees infenfible variations in practice ^b: fo that, though upon comparifon we plainly difcern the alteration of the law from what it was five hundred years ago, yet it is impoffible to define the precife period in which that alteration accrued, any more than we can difcern the changes of the bed of a river, which varies it's fhores by continual decreafes and alluvions. Secondly, this becomes impracticable from the antiquity of the kingdom and it's government: which alone, though it had been difturbed by no foreign invafions, would make it an impoffible thing to fearch out the original of it's laws; unlefs we had as authentic monuments thereof, as the Jews had by the hand of Mofes ^c.

.{FS}
^a Hal. Hift. C. L. 62.
^b Ibid. 57.
^c Ibid. 59.
.{FE}
Thirdly,
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Thirdly, this uncertainty of the true origin of particular cuftoms muft alfo in part have arifen from the means, whereby chriftianity was propagated among our Saxon anceftors in this ifland; by learned foreigners brought over from Rome and other countries: who undoubtedly carried with them many of their own national cuftoms; and probably prevailed upon the ftate to abrogate fuch ufages as were inconfiftent with our holy religion, and to introduce many others that were more conformable thereto. And this perhaps may have partly been the caufe, that we find not only fome rules of the mofaical, but alfo of the imperial and pontificial laws, blended and adopted into our own fyftem.

A FARTHER reafon may alfo be given for the great variety, and of courfe the uncertain original, of our antient eftablifhed cuftoms; even after the Saxon government was firmly eftablifhed in this ifland: viz. the fubdivifion of the kingdom into an heptarchy, confifting of feven independent kingdoms, peopled and governed by different clans and colonies. This muft neceffarily create an infinite diverfity of laws: even though all thofe colonies, of Jutes, Angles, proper Saxons, and the like, originally fprung from the fame mother country, the great northern hive; which poured forth it's warlike progeny, and fwarmed all over Europe, in the fixth and feventh centuries. This multiplicity of laws will neceffarily be the cafe in fome degree, where any kingdom is cantoned out into provincial eftablifhments; and not under one common difpenfation of laws, though under the fame fovereign power. Much more will it happen, where feven unconnected ftates are to form their own conftitution and fuperftructure of government, though they all begin to build upon the fame or fimilar foundations.

WHEN therefore the Weft-Saxons had fwallowed up all the reft, and king Alfred fucceeded to the monarchy of England, whereof his grandfather Egbert was the founder, his mighty genius prompted him to undertake a moft great and neceffary work, which he is faid to have executed in as mafterly a manner.
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No left than to new-model the conftitution; to rebuild it on a plan that fhould endure for ages; and, out of it's old difcordant materials, which were heaped upon each other in a vaft and rude irregularity, to form one uniform and well connected whole. This he effected, by reducing the whole kingdom under one regular and gradual fubordination of government, wherein each man was an anfwerable too his immediate fuperior for his own conduct and that of his neareft neighbours: for to him we owe that mafterpiece of judicial polity, the fubdivifion of England into tithings, and hundreds, if not into counties; all under the influence and adminiftration of one fupreme magiftrate, the king; in whom, as in a general refervoir, all the executive authority of the law was lodged, and from whom juftice was difperfed to every part of the nation b diftinct, yet communicating, ducts and chanels: which wife inftitution has been preferved for near a thoufand years unchanged, from Alfred's to the prefent time. He alfo, like another Theodofius, collected the various cuftom that he found difperfed in the kingdom, and reduced and digefted them into one uniform fyftem or code of laws, in his dom-bec, or liber judicialis. This he compiled for the ufe of the court-baron, hundred, and county court, the court-leet, and fheriff's town; tribunals, which he eftablifhed, for the trial of all caufes civil and criminal, in the very diftricts wherein the complaint arofe: all of them fubject however to be infpected, controlled, and kept within the bounds of the univerfal or common law, by the king's own courts; which were then itinerant, being kept in the king's palace, and removing with his houfhold in thofe royal progreffes, which he continually made from one end of the kingdom to the other.

THE Danifh invafion and conqueft, which introduced new foreign cuftoms, was a fevere blow to this noble fabric: but a plan, fo excellently concerted, could never be long thrown afide. So that, upon the expulfion of thefe intruders, the Englifh returned to their antient law: retaining however fome few of the cuftoms of their late vifitants; which went under the name of
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Dane-Lage: as the code compiled by Alfred was called the Weft-Saxon-Lage; and the local conftitutions of the antient kingdom of Mercia, which obtained in the counties neareft to Wales, and probably abounded with many Britifh cuftoms, were called the Mercen-Lage. And thefe three laws were, about the beginning of the eleventh century, in ufe in different counties of the realm: the provincial polity of counties, and their fubdivifions, having never been altered or difcontinued through all the fhocks and mutations of government, from the time of it's firft inftitution; though the laws and cuftoms therein ufed, have (as we fhall fee) often fuffered confiderable changes.

FOR king Edgar, (who befides his military merit, as founder of the Englifh navy, was alfo a moft excellent civil governor) obferving the ill effects of three diftinct bodies of laws, prevailing at once in feparate parts of his dominions, projected and begun, what his grandfon king Edward the confeffor afterwards completed; viz. one uniform digeft or body of laws, to be obferved throughout the whole kingdom: being probably no more than a revival of king Alfred's code, with fome improvements fuggefted by neceffity and experience; particularly the incorporating fome of the Britifh or rather Mercian cuftoms, and alfo fuch of the Danifh as were reafonable and approved, into the Weft-Saxon-Lage, which was ftill the groundwork of the whole. And this appears to me the beft fupported and moft plaufible conjecture (for certainty is not to be expected) of the rife and original of that admirable fyftem of maxims and unwritten cuftoms, which is now known by the name of the common law, as extending it's authority univerfally over all the realm; and which is doubtlefs of Saxon parentage.

AMONG the moft remarkable of the Saxon laws we may reckon, 1. The conftitution of parliaments, or rather, general affemblies of the principal and wifeft men in the nation; the wittena-gemote, or commune concilium of the antient Germans; which was not yet reduced to the forms and diftinctions of our
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modern parliament: without whofe concurrence however, no new law could be made, or old one altered. 2. The election of their magiftrates by the people; originally even that of their kings, till dearbought experience evinced the convenience and neceffity of eftablifhing an hereditary fucceffion to the crown. But that of all fubordinate magiftrates, their military officers or heretoches, their fheriffs, their confervators of the peace, their coroners, their port-reeves, (fince changed into mayors and bailiffs) and even their tythingmen and borfholders at the leet, continued, fome till the Norman conqueft, others for two centuries after, and fome remain to this day. 3. The defcent of the crown, when once a royal family was eftablifhed, upon nearly the fame hereditary principles upon which it has ever fince continued: only that perhaps, in cafe of minority, the next of kin of full age would afcend the throne, as king, and not as protector; though, after his death, the crown immediately reverted back to the heir. 4. The great paucity of capital punifhments for the firft offence: even the moft notorious offenders being allowed to commute it for a fine or weregild, or, in default of payment perpetual bondage; to which our benefit of clergy has now in fome meafure fucceeded. 5. The prevalence of certain cuftoms, as heriots and military fervices in proportion to every man's land, which much refembled the feodal conftitution; but yet were exempt from all it's rigorous hardfhips: and which may be well enough accounted for, by fuppofing them to be brought from the continent by the firft Saxon invaders, in the primitive moderation and fimplicity of the feodal law; before it got into the hands of the Norman jurifts, who extracted the moft flavifh doctrines, and oppreffive confequences, out of what was originally intended as a law of liberty. 6. That their eftates were liable to forfeiture for treafon, but that the doctrine of efcheats and corruption of blood for felony, or any other caufe, was utterly unknown amongft them. 7. The defcent of their lands was to all the males equally, without any right of primogeniture; a cuftom, which obtained among the Britons, was agreeable to the Roman law, and continued among the Saxons
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till the Norman conqueft: though really inconvenient, and more efpecially deftructive to antient families; which are in monarchies neceffary to be fupported, in order to form and keep up a nobility, or intermediate ftate between the prince and the common people. 8. The courts of juftice confifted principally of the county courts, and in cafes of weight or nicety the king's courts held before himfelf in perfon, at the time of his parliaments; which were ufually holden in different places, according as he kept the three great feftivals of chriftmans, eafter, and whitfuntide. An inftitution which was adopted by king Alonfo VII of Caftile about a century after the conqueft: who at the fame three great feafts was wont to affemble his nobility and prelates in his court; who there heard and decided all controverfies, and then, having received his inftructions, departed home ^d. Thefe county courts however differed from the modern ones, in that the ecclefiaftical and civil jurifdiction were blended together, the bifhop and the ealdorman of fheriff fitting in the fame county court; and alfo that the decifions and proceedings therein were much more fimple and unembarraffed: an advantage which will always attend the infancy of any laws, but wear off as they gradually advance to antiquity. 9. Trials, among a people who had a very ftrong tincture of fuperftition, were permitted to be by ordeal, by the corfned or morfel of execration, or by wager of law with compurgators, if the party chofe it; but frequently they were alfo by jury: for, whether or no their juries confifted precifely of twelve men, or were bound to a ftrict unanimity; yet the general conftitution of this admirable criterion of truth, and moft important guardian both of public and private liberty, we owe to our Saxon anceftors. Thus ftood the general frame of our polity at the time of the Norman invafion; when the fecond period of our legal hiftory commences.

II. THIS remarkable event wrought as great an alteration in our laws, as it did in our antient line of kings: and, though the alteration of the former was effected rather by the confent of the people,

.{FS}
^d Mod. Un. Hift. xx. 114.
.{FE}
than
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than any right of conqueft, yet that confent feems to have been partly extorted by fear, and partly given without any apprehenfion of the confequences which afterwards enfued.

1. AMONG the firft of thefe alterations we may reckon the feparation of the ecclefiaftical courts from the civil: effected in order to ingratiate the new king with the popifh clergy, who for fome time before had been endeavouring all over Europe to exempt themfelves from the fecular power; and whofe demands the conqueror, like a politic prince, thought it prudent to comply with, by reafon that their reputed fanctity had a great influence over the minds of the people; and becaufe all the little learning of the times was engroffed into their hands, which made them neceffary men, and by all means to be gained over to his interefts. And this was the more eafily effected, becaufe, the difpofal of all the epifcopal fees being then in the breaft of the king, he had taken care to fill them with Italian and Norman prelates.

2. ANOTHER violent alteration of the Englifh conftitution confifted in the depopulation of whole countries, for the purpofes of the king's royal diverfion; and fubjecting both them, and all the antient forefts of the kingdom, to the unreafonable feverities of foreft laws imported from the continent, whereby the flaughter of a beaft was made almoft as penal as the death of a man. In the Saxon times, though no man was allowed to kill or chafe the king's deer, yet he might ftart any game, purfue, and kill it, upon his own eftate. But the rigour of thefe new conftitutions vefted the fole property of all the game in England in the king alone; and no man was entitled to difturb any fowl of the air, or any beaft of the field, of fuch kinds as were fpecially referved for the royal amufement of the fovereign, without exprefs licence from the king, by a grant of a chafe or free warren: and thofe franchifes were granted as much with a view to preferve the breed of animals, as to indulge the fubject. From a fimilar principle to which, though the foreft
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laws are now mitigated, and by degrees grown intirely obfolete, yet from this root has fprung a baftard flip, known by the name of the game law, now arrived to and wantoning in it's higheft vigour: both founded upon the fame unreafonable notions of permanent property in wild creatures; and both productive of the fame tyranny to the commons: but with this difference; that the foreft laws eftablifhed only one mighty hunter throughout the land, the game laws have raifed a little Nimrod in every manor. And in one refpect the antient law was much lefs unreafonable than the modern: for the king's grantee of a chafe or free-warren might kill game in every part of his franchife; but now, though a freeholder of lefs than 100 /., a year is forbidden to kill a partridge upon his own eftate, yet nobody elfe (not even the lord of the manor, unlefs he hath a grant of free-warren) can do it without committing a trefpafs, and fubjecting himfelf to an action.

3. A THIRD alteration in the Englifh laws was by narrowing the remedial influence of the county courts, the great feats of Saxon juftice, and extending the original jurifdiction of the king's jufticiars to all kinds of caufes, arifing in all parts of the kingdom. To this end the cula regis, with all it's multifarious authority, was erected; and a capital jufticiary appointed, with powers fo large and boundlefs, that he became at length a tyrant to the people, and formidable to the crown itfelf. The conftitution of this court, and the judges themfelves who prefided there, were fetched from the duchy of Normandy: and the confequence naturally was, the ordaining that all proceedings in the king's courts fhould be carried on in the Norman, inftead of the Englifh, language. A provifion the more neceffary, becaufe none of his Norman jufticiars underftood Englifh; but as evident a badge of flavery, as ever was impofed upon a conquered people. This lafted 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 mifchief too deeply rooted thereby, and which this caution of

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king Edward came too late to eradicate. Inftead of the plain and eafy method of determining fuits in the county courts, the chicanes and fubtilties of Norman jurifprudence had taken poffeffion of the king's courts, to which ever caufe of confequence was drawn. Indeed that age, and thofe immediately fucceeding it, were the aera of refinement and fubtilty. There is an active principle in the human foul, that will ever be exerting it's faculties to the utmoft ftretch, in whatever employment, by the accidents of time and place, the general plan of education, or the cuftoms and manners of the age and county, it may happen to find itfelf engaged. The northern conquerors of Europe were then emerging from the groffeft ignorance in point of literature; and thofe, who had leifure to cultivate it's progrefs, were fuch only as were cloiftered in monafteries, the reft being all foldiers or peafants. And, unfortunately, the firft rudiments of fcience which they imbibed were thofe of Ariftotle's philofophy, conveyed through the medium of his Arabian commentators; which were brought from the eaft by the Saracens into Paleftine and Spain, and tranflated into barbarous Latin. So that, though the materials upon which they were naturally employed, in the infancy of a rifing ftate, were thofe of the nobleft kind; the eftablifhment of religion, and the regulations of civil polity; yet, having only fuch tools to work with, their execution was trifling and flimfey. Both the divinity and the law of thofe times were therefore frittered into logical diftinctions, and drawn out into metaphyfical fubtilties, with a fkill moft amazingly artificial; but which ferves no other purpofe, than to fhew the vaft powers of the human intellect, however vainly or prepofteroufly employed. Hence law in particular, which (being intended for univerfal reception) ought to be a plain rule of action, became a fcience of the greateft intricacy; efpecially when blended with the new refinements engrafted upon feodal property: which refinements were from time to time gradually introduced by the Norman practitioners, with a view to fuperfede (as they did in great meafure) the more homely, but more intelligible, maxims of diftributive juftice among the Saxons. And, to fay the truth thefe
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fcholaftic reformers have tranfmitted their dialect and fineffes to pofterity, fo interwoven in the body of our legal polity, that they cannot now be taken out without a manifeft injury to e fubftance. Statute after ftatute has in later times been made, to pare off thefe troublefome excrefcences, and reftore the common law to it's priftine fimplicity and vigour; and the endeavour has greatly fucceeded: but ftill the fears are deep and vifible; and the liberality of our modern courts of juftice is frequently obliged to have recourfe to unaccountable fictions and circuities, in order to recover that equitable and fubftantial juftice, which for a long time was totally buried under the narrow rules and fanciful niceties of metaphyfical and Norman jurifprudence.

4. A FOURTH innovation was the introduction of the trial by combat, for the decifion of all civil and criminal queftions of fact in the laft refort. This was the immemorial practice of all the northern nations; but firft reduced to regular and ftated forms among the Burgundi, about the clofe of the fifth century: and from them it paffed to other nations, particularly the Franks and the Normans; which laft had the honour to eftablifh it here, though clearly an unchriftian, as well as moft uncertain, method of trial. But it was a fufficient recommendation of it to the conqueror and his warlike countrymen, that it was the ufage of their native duchy of Normandy.

5. BUT the laft and moft important alteration, both in our civil and military polity, was the engrafting on all landed eftates, a few only excepted, the fiction of feodal tenure; which drew after it a numerous and oppreffive train of fervile fruits and appendages, aids, reliefs, primer feifins, wardfhips, marriages, efcheats, and fines for alienation; the genuine confequences 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 feems to have groaned under as abfolute a flavery, as was in the power of a warlike, an ambitious,
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and a politic prince to create. The confciences of men were enflaved by four ecclefiaftics, devoted to a foreign power, and unconnected with the civil ftate under which they lived: who now imported from Rome for the firft time the whole farrago of fuperftitious novelties, which had been engendered by the blindnefs and corruption of the times, between the firft miffion of Auguftin the monk, and the Norman conqueft; fuch as tranfubftantiation, purgatory, communion in one kind, and the worfhip of faints and images not forgetting the univerfal fupremacy and dogmatical infallibility of the holy fee. The laws too, as well as the prayers, were adminiftered in an unknown tongue. The antient trial by jury gave way to the impious decifion by battel. The foreft laws totally reftrained all rural pleafures and manly recreations. And in cities and towns the cafe was no better; all company being obliged to difperfe, and fire and candle to be extinguifhed, by eight at night, at the found of the melancholy curfeu. The ultimate property of al lands, and a confiderable fhare out of the prefent profits, were vefted in the king, or by him granted out to his Norman favourites; who, by a gradual progreffion of flavery, were abfolute vafals to the crown, and as abfolute tyrants to the commons, unheard of forfeitures, talliages, aids, and fines, were arbitrarily extracted from the pillaged landholders, in purfuance of the new fyftem of tenure. And, to crown all, as a confequence of the tenure by knight-fervice, the king had always ready at his command an army of fixty thoufand knights or milites: who were bound, upon pain of confifcating their eftates, to attend him in time of invafion, or to quell any domeftic infurrection. Trade, or foreign merchandize, fuch as it then was, was carried on by the Jews and Lombards; and the very name of an Englifh fleet, which king Edgar had rendered fo formidable, was utterly unknown to Europe: the nation confifting wholly of the clergy, who were alfo the lawyers; the baron, or great lords of the land; the knights or foldiery, who were the fubordinate landholders; and the burghers, or inferior tradefmen, who from their infignificancy happily retained, in their focage and burgage tenure, fome
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points of their antient freedom. All the reft were villains or bondmen.

FROM fo complete and well concerted a fcheme of fervility, it has been the work of generations, for our anceftors, to redeem themfelves and their pofterity into that ftate of liberty, which we now enjoy: and which therefore is not to be looked upon as confifting of mere incroachments on the crown, and infringements of the prerogative, as fome flavifh and narrow-minded writers in the laft century endeavoured to maintain; but as, in general, a gradual reftoration of that antient conftitution, whereof our Saxon forefathers had been unjuftly deprived, partly by the policy, and partly by the force, of the Norman. How that reftoration has, in a long feries of years, been ftep by ftep effected, I now proceed to enquire.

WILLIAM Rufus proceeded on his father's plan, and in fome points extended it; particularly with regard to the foreft laws. but his brother and fucceffor, Henry the firft, found it expedient, when firft he came to the crown, to ingratiate himfelf with the people; by reftoring (as our monkifh hiftorians tell us) the laws of king Edward the confeffor. 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 referved the tenures themfelves, for the fame military purpofes that his father introduced them. He alfo abolifhed the curfeu ^e, yet it is rather fpoken of as a known time of night (fo denominated from that abrogated ufage) than as a ftill fubfifting cuftom. There is extant a code of laws in his name, confifting partly of thofe of the confeffor, but with great additions and alterations of his own; and chiefly calculated for the regulation of the county courts. It contains fome directions as to crimes and their punifhments, (that of theft being made capital in his reign) and a few things relating to eftates, parti-

.{FS}
^e Spelm. Cod. LIKEWIFE. W. l. 288. Hen. l. 299.
^f Stat. Civ. Lond. 13 Edw. I.
.{FE}
cularly
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cularly as to the defcent of lands: which being by the Saxon laws equally to all the fons, by the feodal or Norman to the eldeft only, king Henry here moderated the difference; directing the eldeft fon to have only the principal eftate, “primum “patris feudum” the reft of his eftates, 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 bifhops and mitred abbots; referving however thefe enfigns of patronage, conge d' eflire, cuftody of the temporalties when vacant, and homage upon their reftitution. He laftly united again for a time the civil and ecclefiaftical courts, which union was foon diffolved by him Norman clergy: and, upon that final diffolution, the cognizance of teftamentary caufes feems to have been firft given to the ecclefiaftical court. The reft remained as in his father's time: from whence we may eafily perceive how far fhort this was of a thorough reftitution of king Edward's, or the Saxon, laws.

THE ufurper Stephen, as the manner of ufurpers is, promifed much at his acceffion, efpecially with regard to redreffing the grievances of the foreft 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 canon laws into this realm: and at the fame 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 fecond, if not earlier, the charter of Henry the firft feems to have been forgotten: for we find the claim of marriage, ward, and relief, then flourifhing in full vigour. The right of primogeniture feems alfo to have tacitly revived, being found more convenient for the public than the parceling of eftates into a multitude of minute fubdivifions. 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 treatife of Glanvil: which, though fome of it be now antiquated and altered, yet, when compared with the code
of
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of Henry the firft, it carries a manifeft fuperiority ^g. Throughout his reign alfo was continued the important ftruggle, which we have had occafion fo often to mention, between the laws of England and Rome; the former fupported by the ftrength of the temporal nobility, when endeavoured too be fupplanted in favour of the latter by the popifh clergy. Which difpute was kept on foot till the reign of Edward the firft; when the laws of England, under the new difcipline introduced by that fkilful commander obtained a complete and permanent victory. In the prefent reign, of Henry the fecond, there are four things which peculiarly merit the attention of a legal antiquarian: 1. The conftitutions 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 fecular jurifdiction: though his farther progrefs was unhappily ftopped, by the fatal event of the difputes between him and archbifhop Becket. 2. The inftitution of the office of juftices in eyre, in itinere; the king having divided the kingdom into fix circuits (a little different from the prefent) and commiffioned thefe new created judges to adminifter juftice, and try writs of affife, in the feveral counties. Thefe remedies are faid to have been then firft invented: before which all caufes were ufually terminated in the county courts, according to the Saxon cuftom; or before the king's jufticiaries in the aula regis, in purfuance of the Norman regulations. The latter of which tribunals, travelling about with the king's perfon, occafioned intolerable expenfe and delay to the fuitors; and the former, however proper for little debts and minute actions, where even injuftice is better than procraftination, were now become liable to too much ignorance of the law, and too much partiality as to facts, to determine matters of confiderable moment. 3. The introduction and eftablifhment of the grand affife, or trial by a fpecial king of jury in a writ of right, at the option of the tenant or defendant, inftead of the barbarous and Norman trial by battel. 4. To this time muft alfo be referred the introduction of efcuage, or pecuniary com-

.{FS}
^g Hal. Hift. C. L. 138.
.{FE}
mutation
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mutation for perfonal military fervice; which in procefs of time was the parent of the antient fubfidies granted to the crown by parliament, and the land tax of later times.

RICHARD the firft, a brave and magnanimous prince, was a fportfman as well as a foldier; and therefore inforced the foreft laws with fome rigour; which occafioned many difcontents among his people: though (according to Matthew Paris) he repealed the penalties of caftration, lofs of eyes, and cutting off the hands and feet, before inflicted on fuch as tranfgreffed in hunting; probably finding that their feverity prevented profecutions. He alfo, when abroad, compofed a body of naval laws at the ifle of Oleron; which are ftill extant, and of high authority: for in his time we began again to difcover, that (as an ifland) 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 juftices in eyre: the king's thoughts being chiefly taken up by the knight errantry of a croifade againft the Saracens in the holy land.

IN king John's time, and that of his fon Henry the third, the rigours of the feodal tenures and the foreft laws were fo warmly kept up, that they occafioned many infurrections of the barons or principal feudatories: which at laft had this effect, that firft king John, and afterwards his fon, confented to the two famous charters of Englifh liberties, magna carta, and carta de forefta. Of thefe the latter was well calculated to redrefs many grievances, and encroachments of the crown, in the exertion of foreft-law: and the former confirmed many liberties of the church, and redreffed many grievances incident to feodal tenures, of no fmall moment at the time; though now, unlefs confidered attentively and with this retrofpect, they feem but of trifling concern. But, befides thefe feodal provifions, care was alfo taken therein to protect the fubject againft other oppreffions, then frequently arifing from unreafonable amercements, from illegal diftreffes or other procefs for debts or fervices due to the
crown
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crown, and from the tyrannical abufe of the prerogative of purveyance and pre-emption. It fixed the forfeiture of lands for felony in the fame manner as it ftill remains; prohibited for the future the grants of exclufive fifheries; and the erection of new bridges fo as to opprefs the neighbourhood. With refpect to private rights: it eftablifhed the teftamentary power of the fubject over part of his perfonal eftate, the reft being diftributed among his wife and children; it laid down the law of dower, as it hath continued ever fince; and prohibited the appeals of women, unlefs for the death of their hufbands. In matters of public police and national concern: it injoined an uniformity of weights and meafures; gave new encouragements to commerce, by the protection of merchant-ftrangers; and forbad the alienation of lands in mortmain. With regard to the adminiftration of juftice: befides prohibiting all denials or delays of it, it fixed the court of commonpleas at Weftminfter, that the fuitors might no longer be haraffed with following the king's perfon in all his progreffes; and at the fame time brought the trial of iffues home to the very doors of the freeholders, by directing affifes too be taken in the proper counties, and eftablifhing annual circuits: it alfo corrected fome abufes then incident to the trials by wager of law and of battel; directed the regular awarding of inquefts for life or member; prohibited the king's inferior minifters from holding pleas of the crown, or trying any criminal charge, whereby many forfeitures might otherwife have unjuftly accrued to the exchequer; and regulated the time and place of holding the inferior tribunals of juftice, the county court, fheriff's turn, and court-leet. It confirmed and eftablifhed the liberties of the city of London, and all other cities, boroughs, towns, and ports of the kingdom. And, laftly, (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, unlefs declared to be forfeited by the judgment of his peers or the law of the land.

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HOWEVER, by means of thefe ftruggles, the pope in the reign of king John gained a ftill greater afcendant here, than he ever before had enjoyed; which continued through the long reign of his fon Henry the third: in the beginning of whofe time the old Saxon trial by ordeal was alfo totally abolifhed. And we may by this time perceive, in Bracton's treatife, a ftill farther improvement in the method and regularity of the common law, efpecially in the point of pleadings ^h. Nor muft it be forgotten, that the firft traces which remain, of the feparation of the greater barons from the lefs, in the conftitution 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 thefe reigns, we find the firft record of any writ for fummoning knights, citizens, and burgeffes to parliament. And here we conclude the fecond period of our Englifh legal hiftory.

III. THE third commences with the reign of Edward the firft; who may juftly be ftiled our Englifh Juftinian. For in his time the law did receive fo fudden a perfection, that fir Matthew Hale does not fcruple to affirm ^I, that more was done in the firft thirteen years of his reign to fettle and eftablifh he diftributive juftice of the kingdom, than in all the ages fince that time put together.

IT would be endlefs to enumerate all the particulars of thefe regulations but the principal may be reduced under the following general heads. 1. He eftablifhed, confirmed, and fettled, the great charter and charter of forefts. 2. He gave a mortal wound to the encroachments of the pope and his clergy, by limiting and eftablifhing the bounds of ecclefiaftical jurifdiction: and by obliging the ordinary, to whom all the goods of inteftates at that time belonged, to difcharge the debts of the deceafed. 3. He defined the limits of the feveral temporal courts of the higheft jurifdiction, thofe of the king's bench, common

.{FS}
^h Hal. Hift. C. L. 156.
^I Ibid. 158.
.{FE}
pleas,
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pleas, and exchequer; fo as they might not interfere with each other's proper bufinefs: to do which, they muft now have recourfe to a fiction, very neceffary and beneficial in the prefent enlarged ftate of property. 4. He fettled the boundaries of the inferior courts in counties, hundreds, and manors: confining them to caufes of no great amount, according to their primitive inftitution; though of confiderably greater, than by the alteration of the value of money they are now permitted to determine. 5. He fecured the property of the fubject, by abolifhing all arbitrary taxes, and talliages, levied without confent of the national council. 6. He guarded the common juftice of the kingdom from abufes, by giving up the royal prerogative of fending mandates to interfere in private caufes. 7. He fettled the form, folemnities, and effects, of fines levied in the court of common pleas; though the thing itfelf was of Saxon original. 8. He firft eftablifhed a repofitory for the public records of the kingdom; few of which are antienter than the reign of his father, and thofe were by him collected. 9. He improved upon the laws of king Alfred, by that great and orderly method of watch and ward, for preferving the public peace and preventing robberies, eftablifhed by the ftatute of Winchefter. 10. He fettled and reformed many abufes incident to tenures, and removed fome reftraints on the alienation of landed property, by the ftatute of quia emptores. 11. He inftituted a fpeedier way for the recovery of debts, by granting execution not only upon goods and chattels, but alfo upon lands, by writ of elegit; which was of fignal benefit to a trading people: and, upon the fame commercial ideas, he alfo allowed the charging of lands in a ftatute merchant, to pay debts contracted in trade, contrary to all feodal principles. 12. He effectually provided for the recovery of advowfons, as temporal rights; in which, before, the law was extremely deficient. 13. He alfo effectually clofed the great gulph, in which all the landed property of the kingdom was in danger of being fwallowed, by his re-iterated ftatutes of mortmain; moft admirably adapted to meet the frauds that had then been devifed, though afterwards contrived to be evaded by the
E e e 2
inven-
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invention of ufes. 14. He eftablifhed a new limitation of property by the creation of eftates tail; concerning the good policy of which, modern times have however entertained a very different opinion. 15. He reduced all Wales to the fubjection, not only of the crown, but in great meafure of the laws, of England; (which was thoroughly completed in the reign of Henry the eighth) and feems to have entertained a defign of doing the like by Scotland, fo as to have formed an intire and complete union of the ifland of Great Britain.

I MIGHT continue this catalogue much farther: --- but, upon the whole, we may obferve, that the very fcheme and model of the adminiftration of common juftice between party and party, was entirely fettled by this king ^k; and has continued nearly the fame, in all fucceeding ages, to this day; abating fome few alterations, which the humour or neceffity of fubfequent times hath occafioned. The forms of writs, by which actions are commenced, were perfected in his reign, and eftablifhed as models for pofterity. The pleadings, confequent upon the writs, were then fhort, nervous, and perfpicuous; not intricate, verbofe, and formal. The legal treatifes, written in his time, as Britton, Fleta, Hengham, and the reft, are for the moft part, law at this day; or at leaft were fo, till the alteration of tenures took place. And, to conclude, it is from this period, from the exact obfervation of magna carta, rather than from it's making or renewal, in the days of his grandfather and father, that the liberty of Englifhmen began again to rear it's 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 conftitutions, than that from his time to that of Henry the eighth there happened very few, and thofe not very confiderable, alterations in the legal forms of proceedings. As to matter of fubftance: the old Gothic powers of electing the principal fubor-

.{FS}
^k Hal. Hift. C. L. 162.
.{FE}
dinate
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dinate magiftrates, the fheriffs, and confervators of the peace, were taken from the people in the reigns of Edward II and Edward III; and juftices of the peace were eftablifhed inftead of the latter. In the reign alfo of Edward the third the parliament is fuppofed moft probably to have affumed it's prefent form; by a feparation of the commons from the lords. The ftatute for defining and afcertaining treafons was one of the firft productions of this new-modelled affembly; and the tranflation of the law proceedings from French into Latin another. Much alfo was done, under the aufpices of this magnanimous prince, for eftablifhing our domeftic manufactures; by prohibiting the exportation of Englifh wool, and the importation or wear of foreign cloth or furs; and by encouraging clothworkers from other countries to fettle here. Nor was the legiflature 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 ftatute ftaple; whereby he might the more readily pledge his lands for the fecurity of his mercantile debts. And, as perfonal property now grew, by the extenfion of trade, to be much more confiderable than formerly, care was taken, in cafe of inteftacies, to appoint adminiftrators particularly nominated by the law; to diftribute that perfonal property among the creditors and kindred of the deceafed, which before had been ufually applied, by the officers of the ordinary, to ufes then denominated pious. The ftatutes alfo of praemunire, for effectually depreffing the civil power of the pope, were the work of this and the fubfequent reign. And the eftablifhment of a laborious parochial clergy, by the endowment of vicarages out of the overgrown poffeffions of the monafteries, added luftre to the clofe of the fourteenth century: though the feeds of the general reformation, which were thereby firft fown in the kingdom, were almoft overwhelmed by the fpirit of perfecution, introduced into the laws of the land by the influence of the regular clergy.

FROM this time to that of Henry the feventh, the civil wars and difputed titles to the crown gave no leifure farther juri-
dical
.P 422
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dical improvement: “nam filent leges inter arma.” --- And yet it is to thefe very difputes that we owe the happy lofs of all the dominious of the crown on the continent of France; which turned the minds of our fubfequent princes entirely to domeftic concerns. To thefe likewife we owe the method of barring entails by the fiction of common recoveries; invented originally by the clergy, to evade the ftatutes of mortmain, but introduced under Edward the fourth, for the purpofe of unfettering eftates, and making them more liable to forfeiture: while, on the other hand, the owners endeavoured to protect them by the univerfal eftablifhment of ufes, another of the clerical inventions.

IN the reign of king Henry the feventh, his minifters (not to fay the king himfelf) were more induftrious in hunting out profecutions upon old and forgotten penal laws, in order to extort money from the fubject, than in framing any new beneficial regulations. For the diftinguifhing character of this reign was that of amaffing treafure into the king's coffers, by every means that could be devifed: and almoft every alteration in the laws, however falutary or otherwife in their future confequences, had this and this only for their great and immediate object. To this end the court of ftar-chamber was new-modelled, and armed with powers, the moft dangerous and unconftitutional, over the perfons and properties of the fubject. Informations were allowed to be received, in lieu of indictments, at the affifes and feffions of the peace, in order to multiply fines and pecuniary penalties. The ftatute of fines for landed property was craftily and covertly contrived, to facilitate the deftruction of entails, and make the owners of real eftates more capable to forfeit as well as to aliene. The benefit of clergy (which fo often intervened to ftop attainders and fave the inheritance) was now allowed only once to lay offenders, who only could have inheritances to lofe. A writ of capias was permitted in all actions on the cafe, and the defendant might in confequence be outlawed; becaufe upon fuch outlawry his goods became the property of the crown. In fhort, there is hardly a ftatute in this reign, introductive of a new law or
modifying
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Ch. 33.
modifying the old, but what either directly or obliquely tended to the emolument of the exchequer.

IV. THIS brings us to the fourth period of our legal hiftory, viz. the reformation of religion, under Henry the eighth, and his children: which opens an intirely new fcene in ecclefiaftical matters; the ufurped power of the pope being now for ever routed and deftroyed, all his connexions with this ifland cut off, the crown reftored to it's fupremacy over fpiritual men and caufes, and the patronage of bifhopricks being once more indifputably vefted in the king. And, had the fpiritual courts been at this time re-united to the civil, we fhould have feen the old Saxon conftitution with regard to ecclefiaftical polity completely reftored.

WITH regard alfo to our civil polity, the ftatute of wills, and the ftatute of ufes, (both paffed in the reign of this prince) made a great alteration as to property: the former, by allowing the devife of real eftates by will, which before was in general forbidden; the latter, by endeavouring to deftroy the intricate nicety of ufes, though the narrownefs and pedantry of the courts of common law prevented this ftatute from having it's full beneficial effect. And thence the courts of equity affumed a jurifdiction, dictated by common juftice and common fenfe: which, however arbitrarily exercifed or productive of jealoufies in it's infancy, has at length been matured into a moft elegant fyftem of rational jurifprudence; the principles of which (notwithftanding they may differ in forms) are now equally adopted by the courts of both law and equity. From the ftatute of ufes, and another ftatute of the fame antiquity, (which protected eftates for years from being deftroyed by the reverfioner) a remarkable alteration took place in the mode of conveyancing: the antient affiftance by feoffment and livery upon the land being now very feldom practiced, fince the more eafy and more private invention of transferring property, by fecret conveyances to ufes, and long terms of years being now continually created in mortgages and family fettle-
ments,
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ments, which may be moulded to a thoufand ufeful purpofes by the ingenuity of an able artift.

THE farther attacks in this reign upon the immunity of eftates-tail, which reduced them to little more than the conditional fees at the common law, before the paffing of the ftatute de donis; the eftablifhment of recognizances in the nature of a ftatute-ftaple, for facilitating the raifing of money upon landed fecurity; and the introduction of the bankrupt laws, as well for the punifhment of the fraudulent, as the relief of the unfortunate, trader; all thefe were capital alterations of our legal polity, and highly convenient to that character, which the Englifh began now to re-affume, of a great commercial people, the incorporation of Wales with England, and the more uniform adminiftration of juftice, by deftroying fome counties palatine, and abridging the unreafonable privileges of fuch as remained, added dignity and ftrength to the monarchy: and, together with the numerous improvements before obferved upon, and the redrefs of many grievances and oppreffions which had been introduced by his father, will ever make the adminiftration of Henry VIII a very diftinguifhed aera in the annals of juridical hiftory.

IT muft be however remarked, that (particularly in his later years) the royal prerogative was then ftrained to a very tyrannical and oppreffive height; and, what was the worft circumftance, it's encroachments were eftablifhed by law, under the fanction of thofe pufillanimous parliaments, one of which to it's eternal difgrace paffed a ftatute, whereby it was enacted that the king's proclamations fhould have the force of acts of parliament; and others concurred in the creation of that amazing heap of wild and new-fangled treafons which were flightly touched upon in a former chapter ^e. Happily for the nation, this arbitrary reign was fucceeded by the minority of an amiable prince; during the fhort funfhine of which, great part of thefe extravagant laws were repealed. And, to do juftice to the fhorter reign of queen Mary,

.{FS}
^e See pag. 86.
.{FE}
many
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many falutary and popular laws, in civil matters, were made under her adminiftration; perhaps the better to reconcile the people to the bloody meafures which fhe was induced to purfue, for the re-eftablifhment of religious flavery: the well concerted fchemes for effecting which, were (through the providence of God) defeated by the feafonable acceffion of queen Elizabeth.

THE religious liberties of the nation being, by that happy event, eftablifhed (we truft) on an eternal bafis; (though obliged in their infancy to be guarded, againft papifts and other non-conformifts, by laws of too fanguinary a nature) the foreft laws having fallen into difufe; and the adminiftration of civil right in the courts of juftice being carried on in a regular courfe, according to the wife inftitutions of king Edward the firft, without any material innovations; all the principal grievances introduced by the Norman conqueft feem to have been gradually fhaken off, and our Saxon conftitution reftored, with confiderable improvements: except only in the continuation of the military tenures, and a few other points, which ftill armed the crown with a very oppreffive and dangerous prerogative. It is alfo to be remarked, that the fpirit of inriching the clergy and endowing religious houfes had (through the former abufe of it) gone over to fuch a contrary extreme, and the princes of the houfe of Tudor and their favourites had fallen with fuch avidity upon the fpoils of the church, that a decent and honourable maintenance was wanting to many of the bifhops and clergy. This produced the reftraining ftatutes, to prevent the alienations of lands and tithes belonging to the church and univerfities. The number of indigent perfons being alfo greatly increafed, by withdrawing the alms of the monafteries, a plan was formed in the reign of queen Elizabeth, more humane and beneficial than even feeding and cloathing of millions; by affording them the means (with proper induftry) to feed and to cloath themfelves. And, the farther any fubfequent plans for maintaining the poor have departed from this inftitution, the more impracticable and even pernicious their vifionary attempts have proved.

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HOWEVER, confidering the reign of queen Elizabeth in a great and political view, we have no reafon to regret many fubfequent alterations in the Englifh conftitution. For, though in general fhe was a wife and excellent princefs, and loved her people; though in her time trade flourifhed, riches increafed, the laws were duly adminiftred, the nation was refpected abroad, and the people happy at home; yet, the encreafe of the power of the ftar-chamber, and the erection of the high commiffion court in matters ecclefiaftical, were the work of her reign. She alfo kept her parliaments at a very awful diftance: and in many particulars fhe, at times, would carry the prerogative as high as her moft arbitrary predeceffors. It is true, fhe very feldom exerted this prerogative, fo as to opprefs individuals; but ftill fhe had it to exert: and therefore the felicity of her reign depended more on her want of opportunity and inclination, than want of power, to play the tyrant. This is a high encomium on her merit; but at the fame time it is fufficient to fhew, that thefe were not thofe golden days of genuine liberty, that we formerly were taught to believe: for, furely, the true liberty of the fubject confifts not fo much in the gracious behaviour, as in the limited power, of the fovereign.

THE great revolutions that had happened, in manners and in property, had paved the way, by imperceptible yet fure degrees, for as great a revolution in government: yet, while that revolution was effecting, the crown became more arbitrary than ever, by the progrefs of thofe very means which afterwards reduced it's power. It is obvious to every obferver, that, till the clofe of the Lancaftrian civil wars, the property and the power of the nation were chiefly divided between the king, the nobility, and the clergy. The commons were generally in a ftate of great ignorance; their perfonal wealth, before the extenfion of trade, was comparatively fmall; and the nature of their landed property was fuch, as kept them in continual dependence upon their feodal lord, being ufually fome powerful baron, fome opulent abbey,
or
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or fometimes the king himfelf. Though a notion of general liberty had ftrongly pervaded and animated the whole conftitution, yet the particular liberty, the natural equality, and perfonal independence of individuals, were little regarded or thought of; nay even to affert them was treated as the height of fedition and rebellion. Our anceftors heard, with deteftation and horror, thofe fentiments rudely delivered, and pufhed to moft abfurd extremes, by the violence of a Cade and a Tyler; which have fince been applauded, with a zeal almoft rifing to idolatry, when foftened and recommended by the eloquence, the moderation, and the arguments of a Sidney, a Locke, and a Milton.

BUT when learning, by the invention of printing and the progrefs of religious reformation, began to be univerfally diffeminated; when trade and navigation were fuddenly carried to an amazing extent, by the ufe of the compafs and the confequent difcovery of the Indies; the minds of men, thus enlightened by fcience and enlarged by obfervation and travel, began to entertain a more juft opinion of the dignity and rights of mankind. An inundation of wealth flowed in upon the merchants, and middling rank; while the two great eftates of the kingdom, which formerly had balanced the prerogative, the nobility and clergy, were greatly impoverifhed and weakened. The popifh clergy, detected in their frauds and abufes, expofed to the refentment of the populace, and ftripped of their lands and revenues, ftood trembling for their very exiftence. The nobles, enervated by the refinements of luxury, (which knowledge, foreign travel, and the progrefs of the politer arts, are too apt to introduce with themfelves) and fired with difdain at being rivaled in magnificence by the opulent citizens, fell into enormous expenfes: to gratify which they were permitted, by the policy of the times, to diffipate their overgrown eftates, and alienate their antient patrimonies. This gradually reduced their power and their influence within a very moderate bound: while the king, by the fpoil of the monafteries and the great increafe of the cuftoms, grew rich, independent, and haughty: and the commons
F f f 2
were
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were not yet fenfible of the ftrength they had acquired, nor urged to examine it's extent by new burthens or oppreffive taxations, during the fudden opulence of the exchequer. Intent upon acquiring new riches, and happy in being freed from the infolence and tyranny of the orders more immediately above them, they never dreamt of oppofing the prerogative, to which they had been fo little accuftomed; much lefs of taking the lead in oppofition, to which by their weight and their property they were now entitled. The latter years of Henry the eighth were therefore the times of the greateft defpotifm, that have been known in this ifland fince the death of William the Norman: the prerogative, as it then ftood by common law, (and much more when extended by act of parliament) being too large to be endured in a land of liberty.

QUEEN Elizabeth, and the intermediate princes of the Tudor line, had almoft the fame legal powers, and fometimes exerted them as roughly, as their father king Henry the eighth. But the critical fituation of than princefs with regard to her legitimacy, her religion, her enmity with Spain, and her jealoufy of the queen of Scots, occafioned greater caution in her conduct. She probably, or her able advifers, had penetration enough to difcern how the power of the kingdom had gradually fhifted it's chanel, and wifdom enough not to provoke the commons to difcover and feel their ftrength. She therefore drew a veil over the odious part of prerogative; which was never wantonly thrown afide, but only to anfwer fome important purpofe: and, though the royal treafury no longer overflowed with the wealth of the clergy, which had been all granted out, and had contributed to enrich the people, fhe afked for fupplies with fuch moderation, and managed them with fo much oeconomy, that the commons were happy in obliging her. Such, in fhort, were her circumftances, her neceffities, her wifdom, and her good difpofition, that never did a prince fo long and fo intirely, for the fpace of half a century together, reign in the affections of the people.
ON
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ON the acceffion of king James I, no new degree of royal power was added to, or exercifed by, him; but fuch a fceptre was too weighty to be wielded by fuch a hand. The unreafonable and imprudent exertion of what was then deemed to be prerogative, upon trivial and unworthy occafions, and the claim of a more abfolute power inherent in the kingly office than had ever been carried into practice, foon awakened the fleeping lion. The people heard with aftonifhment doctrines preached from the throne and the pulpit, fubverfive of liberty and property, and all the natural rights of humanity. They examined into he divinity of this claim, and found it weakly and fallacioufly fupported: and common reafon affured them, that, if it were of human origin, no conftitution could eftablifh it without power of revocation, no precedent could fanctify, no length of time could confirm it. The leader felt the pulfe of the nation, and found the had ability as well as inclination to refift it: and accordingly refifted and oppofed it, whenever the pufillanimous temper of the reigning monarch had courage to put it to the trial; and they gained fome little victories in the cafes of concealments, monopolies, and the difpenfing power. In the mean time very little was done for the improvement of private juftice, except the abolition of fanctuaries, and the extenfion of the bankrupt laws, the limitation of fuits and actions, and the regulating of informations upon penal ftatutes. For I cannot clafs the laws againft witchcraft and conjuration under the head of improvements; nor did the difpute between lord Ellefmere and fir Edward Coke, concerning the powers of the court of chancery, tend much to the advancement of juftice.

INDEED when Charles the firft fucceeded to the crown of his father, and attempted to revive fome enormities, which had been dormant in the reign of king James, the loans and benevolences extorted from the fubject, the arbitrary imprifonments for refufal, the exertion of martial law in time of peace, and other domeftic grievances, clouded the morning of that mif-
guided
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guided prince's reign; which, though the noon of it began a little to brighten, al laft went down in blood, and left the whole kingdom in darknefs. It muft be acknowleged that, by the petition of right, enacted to abolifh thefe encroachments, the Englifh conftitution received great alteration and improvement. But there ftill remained the latent power of the foreft laws, which the crown moft unfeafonably revived. The legal jurifdiction of the ftar-chamber and high commiffion courts was alfo extremely great; though their ufurped authority was ftill greater. And, if we adminiftration to thefe the difufe or parliaments, the ill-timed zeal and defpotic proceedings of the ecclefiaftical governors in matters of mere indifference, together with the arbitrary levies of tonnage and poundage, fhip money, and other projects, we may fee grounds moft amply fufficient for feeking redrefs in a legal conftitutional way. This redrefs, when fought, was alfo conftitutionally given: for all thefe oppreffions were actually abolifhed by the king in parliament, before the rebellion broke out, by the feveral ftatutes for triennial parliaments, for abolifhing the ftar-chamber and high commiffion courts, for afcertaining the extent of forefts and foreft-laws, for renouncing fhip-money and other exactions, and for giving up the prerogative of knighting the king's tenants in capite in confequence of their feodal tenures: though it muft be acknowleged that thefe conceffions were not made with fo good a grace, as to conciliate the confidence of the people. Unfortunately, either by his own mifmanagement, or by the arts of his enemies, the king had loft the reputation of fincerity; which is the greateft unhappinefs that can befall a prince. Though he formerly had ftrained his prerogative, not only beyond what the genius of the prefent times would bear, but alfo beyond the example of former ages, he had now confented to reduce it to a lower ebb than was confiftent with monarchical government. A conduct fo oppofite to his temper and principles, joined with fome rafh actions and unguarded expreffions, made the people fufpect that this condefcenfion was merely temporary. Flufhed therefore with the fuccefs they had gained, fired with refentment for paft oppreffions, and dreading
the
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the confequences if the king fhould regain his power, the popular leaders (who in all ages have called themfelves the people) began to grow infolent and ungovernable: their infolence foon rendered them defperate: and, joining with a fet of military hypocrites and enthufiafts, they overturned the church and monarchy, and proceeded with deliberate folemnity to the trial and murder of their fovereign.

I PASS by the crude and abortive fchemes for amending the laws in the times of confufion which followed; the moft promifing and fenfible whereof (fuch as the eftablifhment of new trials, the abolition of feodal tenures, the act of navigation, and fome others) were adopted in the

V. FIFTH period, which I am next to mention, viz. after the reftoration of king Charles II. Immediately upon which, the principal remaining grievance, the doctrine and confequences of military tenures, were taken away and abolifhed, except in the inftance of corruption of inheritable blood, upon attainder of treafon and felony. And though the monarch, in whofe perfon the royal government was reftored, and with it our antient conftitution, deferves no commendation from pofterity, yet in his reign, (wicked, fanguinary, and turbulent as it was) the concurrence of happy circumftances was fuch, that from thence we may date not only the re-eftablifhment of our church and monarchy, but alfo the complete reftitution of Englifh liberty, for the firft time, fince it's total abolition at the conqueft. For therein not only thefe flavifh tenures, the badge of foreign dominion, with all their oppreffive appendages, ere removed from incumbering the eftates of the fubject; but alfo an additional fecutiry of his perfon from imprifonment was obtained, by that great bulwark of our conftitution, the habeas corpus act. Thefe two ftatutes, with regard to our property and perfons, form a fecond magna carta, as beneficial and effectual as that of Runing-Mead. That only pruned the luxuriances of the feodal fyftem; but the ftatute of Charles the fecond extirpated all it's flaveries:
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except perhaps in copyhold tenure; and there alfo they are now in great meafure enervated by gradual cuftom, and the interpofition of our courts of juftice. Magna carta only, in general terms, declared, that no man fhall be imprifoned contrary to law: the habeas corpus act points him out effectual means, as well to releafe himfelf, though committed even by the king in council, as to punifh all thofe who fhall thus unconftitutionally mifufe him.

To thefe I may add the abolition of the prerogatives of purveyance and pre-emption; the ftatute for holding triennial parliaments; the teft and corporation acts, which fecure both our civil and religious liberties; the abolition of the writ de haeretico comburendo; the ftatute of frauds and perjuries, a great and neceffary fecurity to private property; the ftatute for diftribution of inteftates' eftates; and that of amendments and jeofails, which cut off thofe fuperfluous niceties which fo long had difgraced our courts; together with many other wholfome acts, that were paffed in this reign, for the benefit of navigation and the improvement of foreign commerce: and the whole, when we likewife confider the freedom from taxes and armies which the fubject then enjoyed, will be fufficient to demonftrate this truth, “that the “conftitution of England had arrived to it's full vigour, and “the true balance between liberty and prerogative was happily “eftablifhed by law, in the reign of king Charles the fecond.”

IT is far from my intention to palliate or defend many very iniquitous proceedings, contrary to all law, in that reign, through the artifice of wicked politicians, both in and out of employment. What feems inconteftable is this; that by the law ^m, as it then ftood, (notwithftanding fome invidious, nay dangerous, branches of the prerogative have fince been lopped off, and the

.{FS}
^m The point of time, at which I would chufe to fix this theoretical perfection of our public law, is the year 1679; after the habeas corpus act was paffed, and that for licenfing the prefs had expired: though the years which immediately followed it were times of great practiced oppreffion.
.{FE}
reft
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reft more clearly defined) the people had as large a portion of real liberty, as is confiftent with a ftate of fociety; and fufficient power, refiding in their own hands, to affert and preferve that liberty, if invaded by the royal prerogative. For which I need but appeal to the memorable cataftrophe of the next reign. For when king Charles's deluded brother attempted to enflave the nation, he found it was beyond his power: the people both could, and did, refift him; and, in confequence of fuch refiftance, obliged him to quit his enterprise and his throne together. Which introduces us to the laft period of our legal hiftory; viz.

VI. FROM the revolution in 1688 to the prefent time. In this period many laws have paffed; as the bill of rights, the toleration-act, the act of fettlement with it's conditions, the act for uniting England with Scotland, and fome others: which have afferted our liberties in more clear and emphatical terms; have regulated the fucceffion of the crown by parliament, as the exigences of religious and civil freedom required; have confirmed, and exemplified, the doctrine of refiftance, when the executive magiftrate endeavours to fubvert the conftitution; have maintained the fuperiority of the laws above the king, by pronouncing his difpenfing power to be illegal; have indulged tender confciences with every religious liberty, confiftent with the fafety of the ftate; have eftablifhed triennial, fince turned into feptennial, elections of members to ferve in parliament; have excluded certain officers from the houfe of commons; have reftrained the king's pardon from obftructing parliamentary impeachments; have imparted to all the lords an equal right of trying their fellow peers; have regulated trials for high treafon; have afforded our pofterity a hope that corruption of blood may one day be abolifhed and forgotten; have (by the defire of his prefent majefty) fet bounds to the civil lift, and placed the adminiftration of that revenue in hands that are accountable to parliament; and have (by the like defire) made the judges completely independent of the king, his minifters, and his fucceffors. Yet, though thefe provifions have, in appearance and nomi-

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nally, reduced the ftrength of the executive power to a much lower ebb than in the preceding period; if on the other hand we throw into the oppofite fcale (what perhaps the immoderate reduction of the antient prerogative may have rendered in fome degree neceffary) the vaft acquifition of force, arifing from the riot-act, and the annual expedience of a ftanding army; and the vaft acquifition of perfonal attachment, arifing from the magnitude of the national debt, and the manner of levying thofe yearly millions that are appropriated to pay the intereft; we fhall find that the crown has, gradually and imperceptibly, gained almoft as much in influence, as it has apparently loft in prerogative.

THE chief alterations of moment, (for the time would fail me to defcent to minutiae) in the adminiftration of private juftice during this period, are the folemn recognition of the law of nations with refpect to the rights of embaffadors: the cutting off, by the ftatute for the amendment of the law, a vaft number of excrefcences, that in procefs of time had fprung out of the practical part of it: the protection of corporate rights by the improvements in writs of mandamus, and informations in nature of quo warranto: the regulations of trials by jury, and the admitting witneffes for prifoners upon oath: the farther reftraints upon alienation of lands in mortmain: the extenfion of the benefit of clergy, by abolifhing the pedantic criterion of reading: the counterbalance to this mercy, by the vaft encreafe of capital punifhment: the new and effectual methods for the fpeedy recovery of rents: the improvements which have been made in ejectments for the trying of titles: the introduction and eftablifhment of paper credit, by indorfments upon bills and notes, which have fhewn the poffibility (fo long doubted) of affigning a chofe in action: the tranflation of all legal proceedings into the Englifh language: the erection of courts of confcience for recovering fmall debts, and (which is much the better plan) the reformation of which the foundations have been laid, by clergy developing the principles on which policies of infurance are founded, and by happily ap-
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plying thofe principles to particular cafes: and, laftly, the liberality of fentiment, which (though late) has now taken poffeffion of our courts of common law, and induced then to adopt (where facts can be clearly afcertained) the fame principles of redrefs as have prevailed in our courts of equity, from the time that lord Nottingham prefided there; and this, not only where fpecially impowered by particular ftatutes, (as in the cafe of bonds, mortgages, and fet-offs) but by extending the remedial influence of the equitable writ of trefpafs on the cafe, according to it's primitive inftitution by king Edward the firft, to almoft every inftance of injuftice not remedied by any other procefs. And thefe, I think, are all the material alterations, that have happened with refpect to private juftice, in the courfe of the prefent century.

THUS therefore, for the amufement and inftruction of the ftudent, I have endeavoured to delineate fome rude outlines of a plan for the hiftory of our laws and liberties; from their firft rife, and gradual progrefs, among our Britifh and Saxon anceftors, till their total eclipfe at the Norman conqueft; from which they have gradually emerged, and rifen to the perfection they now enjoy, at different periods of time. We have feen, in the courfe of our enquiries, in this and the former volumes, that the fundamental maxims, and rules of the law, which regard the rights of perfons, and the rights of things, the private injuries that may be offered to both, and the crimes which affect the public, have been and are every day improving, and are now fraught with the accumulated wifdom of ages: that the forms of adminiftring juftice came to perfection under Edward the firft; and have not been much varied, nor always for the better, fince: that our religious liberties were fully eftablifhed at the reformation: but that the recovery of our civil and political liberties was a work of longer time; they not being thoroughly and completely regained, till after the reftoration of king Charles, nor fully and explicitly acknowleged and defined, till the aera of the happy revolution. Of a conftitution, fo wifely contrived, fo
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ftrongly raifed, and fo highly finifhed, it is hard to fpeak with that praife, which is juftly and feverely it's due: --- the thorough and attentive contemplation of it will furnifh it's beft panegyric. It hath been the endeavour of thefe commentaries, however the execution may have fucceeded, to examine it's folid foundations, to mark out it's extenfive plan, to explain the ufe and diftribution of it's parts, and from the harmonious concurrence of thofe feveral parts to demonftrate the elegant proportion of the whole. We have taken occafion to admire at every turn the noble monuments of antient fimplicity, and the more curious refinements of modern art. Nor have it's faults been concealed from view; for faults it has, left we fhould be tempted to think it of more than human ftructure: defects, chiefly arifing from the decays of time, or the rage of unfkilful improvements in later ages. To fuftain, to repair, to beautiful this noble pile, is a charge intrufted principally too the nobility, and fuch gentlemen of the kingdom, as are delegated by their country to parliament. The protection of THE LIBERTY OF BRITAIN is a duty which the owe to themfelves, who enjoy it; to their anceftors, who tranfmitted it down; and to their pofterity, who will claim at their hands this, the beft birthright, and nobleft inheritance of mankind.







THE END.