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the kingdom from abuses, by giving up the royal prerogative of sending mandates to interfere in private causes. 7. He settled the form, solemnities, and effect of fines levied in the Court of Common Pleas, though the thing itself was of Saxon original. 8. He first established a repository for the public records of the kingdom, few of which are ancienter than the reign of his father, and those were by him collected. 9. He improved upon the laws of King Alfred, by that great and orderly method of watch and ward, for preserving the public peace and preventing robberies, established by the statute of Winchester. 10. He settled and reformed many abuses incident to tenures, and removed some restraints on the alienation of landed property, by the statute of quia emptores. 11. He instituted a speedier way for the recovery of debts, by granting execution, not only upon goods and chattels, but also upon lands, by writ of elegit, which was of signal benefit to a trading people; and upon the same commercial ideas, he also allowed the charging of lands in a statute merchant, to pay debts contracted in trade, contrary to all feodal principles. 12. He effectually provided for the recovery of advowsons, as temporal rights, in which, before, the law was extremely deficient. 13. He also effectually closed the great gulf, in which all the landed property of the kingdom was in danger of being swallowed, by his reiterated statutes of mortmain; most admirably adapted to meet the frauds that had then been devised, though afterward con[427] trived to be evaded by the invention of uses. 14. He established a new limitation of property by the creation of estatestail, concerning the good policy of which modern times have. however, entertained a very different opinion. 15. He reduced all Wales to the subjection not only of the crown, but in great measure of the laws, of England (which was thoroughly completed in the reign of Henry the Eighth), and seems to have entertained a design of doing the like by Scotland, so as to have formed an entire and complete union of the island of Great Britain.

I might continue this catalogue much further; but, upon the whole, we may observe, that the very scheme and model of the administration of common justice between party and party was entirely settled by this king;k and has continued nearly the same in all succeeding ages to this day, abating some few alterations, which the humor or necessity of subsequent times hath occasioned. The forms of writs, by which actions are commenced, were perfected in his reign, and established as models for posterity. The pleadings consequent upon the writs were then short, nervous, and perspicuous; not intricate, verbose, and formal. The legal treatises, written in his time, as Britton, Fleta, Hengham, and the rest, are, for the most part, law at this day, or, at least, were so, till the alteration of tenures took place. Hal., Hist. C. L., 162.

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

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

From this time to that of Henry the Seventh the civil wars. and disputed titles to the crown gave no leisure for further juridical improvement: "nam silent leges inter arma.” And yet [429] it is to these very disputes that we owe the happy loss of all

the dominions of the crown on the continent of France, which turned the minds of our subsequent princes entirely to domestic concerns. To these, likewise, we owe the method of barring entails by the fiction of common recoveries, invented originally by the clergy to evade the statutes of mortmain, but introduced under Edward the Fourth for the purpose of unfettering estates, and making them more liable to forfeiture; while, on the other hand, the owners endeavored to protect them by the universal establishment of uses, another of the clerical inventions.

In the reign of King Henry the Seventh, his ministers (not to say the king himself) were more industrious in hunting out prosecutions upon old and forgotten penal laws, in order to extort money from the subject, than in framing any new beneficial regulations. For the distinguishing character of this reign was that of amassing treasure in the king's coffers by every means that could be devised; and almost every alteration in the laws, however salutary or otherwise in their future consequences, had this, and this only, for their great and immediate object. To this end the Court of Star Chamber was newmodeled, and armed with powers, the most dangerous and unconstitutional, over the persons and properties of the subject. Informations were allowed to be received, in lieu of indictments, at the assizes and sessions of the peace, in order to multiply fines and pecuniary penalties. The statute of fines for landed property was craftily and covertly contrived, to facilitate the destruction of entails, and make the owners of real estates more capable to forfeit as well as to aliene. The benefit of clergy (which so often intervened to stop attainders and save the inheritance) was now allowed only once to lay offenders, who only could have inheritances to lose. A writ of capias was permitted in all actions on the case, and the defendant might, in consequence, be outlawed; because, upon such outlawry, his goods became the property of the crown. In [430] short, there is hardly a statute in this reign, introductive of a new law or 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 history, viz., the reformation of religion, under Henry the Eighth and his children, which opens an entirely new scene in ecclesiastical matters, the usurped power of the pope being now forever routed and destroyed, all his connections with this island cut off, the crown restored to its supremacy over spiritual men and causes, and the patronage of bishoprics being once more indisputably vested in the king. And, had the spiritual courts been at this time reunited to the civil, we should have seen the old Saxon constitution, with regard to ecclesiastical polity, completely restored.

With regard, also, to our civil polity, the statute of wills and the statute of uses (both passed in the reign of this prince) made a great alteration as to property: the former, by allowing the devise of real estates by will, which before was, in general, forbidden; the latter, by endeavoring to destroy the intricate nicety of uses, though the narrowness and pedantry of the courts of common law prevented this statute from having its full beneficial effect. And thence the courts of equity assumed a jurisdiction, dictated by common justice and common sense, which, however arbitrarily exercised or productive of jealousies in its infancy, has at length been matured into a most elegant system of rational jurisprudence, the principles of which (notwithstanding they may differ in forms) are now equally adopted by the courts of both law and equity. From the statute of uses, and another statute of the same antiquity (which protected estates for years from being destroyed by the reversioner), a remarkable alteration took place in the mode of conveyancing, the ancient assurance by feoffment and livery upon the land being now very seldom practiced, since the more easy and more private invention of transferring property, by secret conveyances to uses, and long terms of years, being now continually created in mortgages and family settlements, which [431] may be molded to a thousand useful purposes by the ingenuity of an able artist.

The further attacks in this reign upon the immunity of estates-tail, which reduced them to little more than the condi`tional fees at the common law before the passing of the statute De Donis; the establishment of recognizances in the nature of a statute staple for facilitating the raising of money upon landed security, and the introduction of the bankrupt laws, as well for the punishment of the fraudulent as the relief of the unfortunate trader: all these were capital alterations of our legal polity, and highly convenient to that character which the English began now to reassume, of a great commercial people. The incorporation of Wales with England, and the more uniform administration of justice, by destroying some counties palatine, and abridging the unreasonable privileges of such as remained, added dignity and strength to the monarchy; and, together with the numerous improvements, before observed upon, and the redress of many griev ances and oppressions which had been introduced by his father, will ever make the administration of Henry VIII. a very distinguished era in the annals of juridical history.

It must be, however, remarked, that (particularly in his latter years) the royal prerogative was then strained to a very tyrannical and oppressive height; and, what was the worst circumstance, its encroachments were established by law, under the sanction of those pusillanimous Parliaments, one of which, to its eternal disgrace, passed a statute whereby it was

enacted that the king's proclamations should have the force of acts of Parliament; and others concurred in the creation of that amazing heap of wild and new-fangled treasons which were slightly touched upon in a former chapter. Happily for the nation, this arbitrary reign was succeeded by the minority of an amiable prince, during the short sunshine of which great part of these extravagant laws were repealed. And, to do [432] justice to the shorter reign of Queen Mary, many salutary and popular laws, in civil matters, were made under her administration, perhaps the better to reconcile the people to the bloody measures which she was induced to pursue for the re-establishment of religious slavery, the well-concerted schemes for effecting which were (through the providence of God) defeated by the seasonable accession of Queen Elizabeth.

The religious liberties of the nation being, by that happy event, established (we trust) on an eternal basis (though obliged, in their infancy, to be guarded against papists and other non-conformists by laws of too sanguinary a nature); the forest laws having fallen into disuse, and the administration of civil rights in the courts of justice being carried on in a regu lar course, according to the wise institutions of King Edward the First, without any material innovations, all the principal grievances introduced by the Norman Conquest seem to have been gradually shaken off, and our Saxon constitution restored, with considerable improvements, except only in the continuation of the military tenures and a few other points, which still armed the crown with a very oppressive and dangerous prerogative. It is also to be remarked, that the spirit of enriching the clergy and endowing religious houses had (through the former abuse of it) gone over to such a contrary extreme, and the princes of the house of Tudor and their favorites had fallen with such avidity upon the spoils of the Church, that a decent and honorable maintenance was wanting to many of the bishops and clergy. This produced the restraining statutes, to prevent the alienations of lands and tithes belonging to the Church and universities. The number of indigent persons being also greatly increased by withdrawing the alms of the monasteries, a plan was formed in the reign of Queen Elizabeth, more humane and beneficial than even feeding and clothing of millions, by affording them the means (with proper industry) to feed and to clothe themselves. And the further any subsequent plans for maintaining the poor have departed from this institution, the more impracticable and even pernicious their visionary attempts have proved.

However, considering the reign of Queen Elizabeth in a great and political view, we have no reason to regret many subsequent alterations in the English Constitution; for though, in general, she was a wise and excellent princess, and loved 1 See page 86.


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