were arbitrarily extracted from the pillaged landholders, in pursuance of the new system of tenure. And, to crown all, as a consequence of the tenure by knight-service, the king had always ready at his command an army of sixty thousand knights or milites, who were bound, upon pain of 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 insignificancy, happily re- [420] tained, in their socage and burgage tenure, some points of their ancient freedom. All the rest were villeins or bondmen. From so complete and well-concerted a scheme of servility, it has been the work of generations for our ancestors to redeem themselves and their posterity into that state of liberty which we now enjoy, and which, therefore, is not to be looked upon as consisting of mere encroachments on the crown, and infringements on the prerogative, as some slavish and narrowminded writers in the last century endeavored to maintain; but as, in general, a gradual restoration of that ancient constitution, whereof our Saxon forefathers had been unjustly deprived, partly by the policy and partly by the force of the NorHow that restoration has, in a long series of years, been step by step effected, I now proceed to inquire. man. 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 afterward,f yet it is rather spoken of as a known time of night (so denominated from that abrogated usage) than as a still subsisting custom. 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 Spelm., Cod. LL. W. I., 288; Hen. f Stat. Civ. Lond., 13 Edw. I. I., 299. VOL. IV.-G G 465 few things relating to estates, particularly as to the descent [421] of lands, 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 mitered abbots, reserving, however, these ensigns of patronage, conge d'eslire, custody of the temporalities when vacant, and homage upon their restitution. He, lastly, united again for a time the civil and ecclesiastical courts, which union was soon dissolved by his Norman clergy, and upon that final dissolution the cognizance of testamentary causes seems to have been first given to the ecclesiastical court; the rest remained as in his father's time, from whence we may easily perceive how far short this was of a thorough restitution of King Edward's, or the Saxon, laws. The usurper Stephen, as the manner of usurpers is, promised much at his accession, especially with regard to redressing the grievances of the forest laws, but performed no great matter either in that or 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 same time was imported the doctrine of appeals to the court of Rome, as a branch of the canon law. By the time of King Henry the Second, if not earlier, the charter of Henry the First seems to have been forgotten; for we find the claim of marriage, ward, and relief then flourishing in full vigor. 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 [422] with the code of Henry the First, it carries a manifest superiority. 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 endeavored to be supplanted in favor 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 skillful 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 pow Hal., Hist. C. L., 138. er 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 event 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, traveling about with the king's person, occasioned intolerable expense and delay to the suitors; and the former, however proper for little debts and 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 a 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 the introduction of escuage, [423] or pecuniary commutation for personal military service, which, in process of time, was the parent of the ancient 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 rigor, which occasioned many discontents among his people, though (according to Matthew Paris) he repealed the penalties of castration, loss of eyes, and cutting off the hands and feet, before inflicted on such as transgressed in hunting, probably finding that their severity prevented prosecutions. He also, when abroad, composed a body of naval laws at the isle of Oleron, which are still extant, and of high authority; for in his time we began again to discover that (as an island) we were naturally a maritime power. But with regard to civil proceedings we find nothing very remarkable in this reign, except a few regulations regarding the Jews and the justices in eyre, the king's thoughts being chiefly taken up by the knight-errantry of a crusade against the Saracens in the Holy Land. In King John's time, and that of his son Henry the Third, the rigors 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 ef fect, that first King John, and afterward his son, consented to the two famous charters of English liberties, Magna Charta and Charta de Foresta. Of these the latter was well calculated to redress many grievances and encroachments of the crown, in the exertion of forest law; and the former confirmed many liberties of the Church, and redressed many grievances incident to feodal tenures, of no small moment at the time; though now, unless considered attentively 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 ty[424] rannical abuse of the prerogative of purveyance and pre-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 neighborhood. 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 inquests for life or member; prohibited the king's inferior ministers from holding pleas of the crown, or trying any criminal charge, whereby many forfeitures might otherwise have unjustly accrued to the Exchequer; and regulated the time and place of holding the inferior tribunals of justice, the county court, sheriff's tourn, and court leet. It confirmed and established the liberties of the city of London, and all other cities, boroughs, towns, and ports of the kingdom. And, lastly (which alone would have merited the title that it bears, of the Great Charter), it protected every individual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers or the law of the land." (3) The following is the celebrated 29th chapter of Magna Charta, the foundation of the liberty of Englishmen: "Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur de libero tenemento suo, vel libertatibus vel liberis However, by means of these struggles, the pope, in the reign [425] of King 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. Nor must it be forgotten that the first traces which remain of the separation of the greater barons from the less, in the constitution of Parliaments, are found in the Great Charter of King John, though omitted in that of Henry III.; and that, toward 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 affirmi that more was done in the first thirteen years of his reign to settle and establish the distributive justice of the kingdom, than in all the ages since that time put together. It would be endless to enumerate all the particulars of these regulations, but the principal may be reduced under the following general heads: 1. He established, confirmed, and settled. the Great Charter and Charter of Forests. 2. He gave a mortal wound to the encroachments of the pope and his clergy, by limiting and establishing the bounds of ecclesiastical jurisdiction; and by obliging the ordinary, to whom all the goods of intestates at that time belonged, to discharge the debts of the deceased. 3. He defined the limits of the several temporal courts of the highest jurisdiction, those of the King's Bench, Common Pleas, and Exchequer, so as they might not interfere with each other's proper business; to do which they must now [426] have recourse to a fiction, very necessary and beneficial in the present enlarged state of property. 4. He settled the boundaries of the inferior courts in counties, hundreds, and manors; confining them to causes of no great amount, according to their primitive institutions, though of considerably greater than by the alteration of the value of money they are now permitted to determine. 5. He secured the property of the subject, by abolishing all arbitrary taxes and talliages levied without consent of the national council. 6. He guarded the common justice of Hal., Hist. C. L., 156. consuetudinibus suis, aut utlagetur, aut exulet, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium i Ibid., 158. suorum vel per legem terræ. Nulli ven- |