[440] clearly defined), the people had as large a portion of real liberty as is consistent with a state of society, and sufficient power residing in their own hands to assert and preserve that liberty if invaded by the royal prerogative; for which I need but appeal to the memorable catastrophe of the next reign. For when King Charles's deluded brother attempted to enslave the nation, he found it was beyond his power; the people both could, and did, resist him; and, in consequence of such resistance, obliged him to quit his enterprise and his throne together. Which introduces us to the last period of our legal history, viz.:

VI. From the revolution in 1688 to the present time. in this period many laws have passed; as, the Bill of Rights, the Toleration Act, the Act of Settlement with its conditions, the act for uniting England with Scotland, and some others, which have asserted our liberties in more clear and emphatical terms; have regulated the succession of the crown by Parliament, as the exigencies of religious and civil freedom required; have confirmed and exemplified the doctrine of resistance when the executive magistrate endeavors to subvert the Constitution; have maintained the superiority of the laws above the king, by pronouncing his dispensing power to be illegal; have indulged tender consciences with every religious liberty consistent with the safety of the state; have established triennial, since turned into septennial, elections of members to serve in Parliament; have excluded certain officers from the House of Commons ; have restrained the king's pardon from obstructing parliamentary impeachments; have imparted to all the lords an equal right of trying their fellow-peers; have regulated trials for high treason; have afforded our posterity a hope that corruption of blood may one day be abolished and forgotten; have (by the desire of his present majesty) set bounds to the civil list, and placed the administration of that revenue in hands that are accountable to Parliament; and have (by the like desire) made the judges completely independent of the king, his ministers, and his successors. Yet, though these provisions have, in ap[441] pearance and nominally, reduced the strength of the executive power to a much lower ebb than in the preceding period; if, on the other hand, we throw into the opposite scale (what, perhaps, the immoderate reduction of the ancient prerogative may have rendered in some degree necessary) the vast acquisition of force arising from the Riot Act, and the annual expedience of a standing army; and the vast acquisition of personal attachment, arising from the magnitude of the national debt, and the manner of levying those yearly millions that are appropriated to pay the interest, we shall find that the crown has, gradually and imperceptibly, gained almost as much in influence as it has, apparently, lost in prerogative.

The chief alterations of moment (for the time would fail me to descend to minutiae) in the administration of private justice during this period are the solemn recognition of the law of nations with respect to the rights of embassadors; the cutting off, by the statute for the amendment of the law, a vast number of excrescences that in process of time had sprung 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 witnesses for prisoners upon oath; the further restraints upon alienation of lands in mortmain; the annihilation of the terrible judgment of peine fort et dure; the extension of the benefit of clergy, by abolishing the pedantic criterion of reading; the counterbalance to this mercy, by the vast increase of capital punishment; the new and effectual methods for the speedy recovery of rents; the improvements which have been made in ejectments for the trying of titles; the introduction and establishment of paper credit, by indorsements upon bills and notes, which have shown the legal possibility and convenience (which our ancestors so long doubted) of assigning a chose in action; the translation of all legal proceedings into the English language; the erection of courts of conscience for recovering small debts, and (which is much the better plan) the reformation of county courts; the great system of marine jurisprudence, of which the foundations have been [442] laid, by clearly developing the principles on which policies of insurance are founded, and by happily applying those principles to particular cases; and, lastly, the liberality of sentiment which (though late) has now taken possession of our courts of common law, and induced them to adopt (where facts can be clearly ascertained) the same principles of redress as have prevailed in our courts of equity from the time that Lord Nottingham presided there; and this, not only where specially empowered by particular statutes (as in the case of bonds, mortgages, and set-offs), but by extending the remedial influence of the equitable writ of trespass on the case according to its primitive institution by King Edward the First, to almost every instance of injustice not remedied by any other process. And these, I think, are all the material alterations that have happened with respect to private justice in the course of the present century.

Thus, therefore, for the amusement and instruction of the student, I have endeavored to delineate some rude outlines of a plan for the history of our laws and liberties, from their first rise and gradual progress among our British and Saxon ancestors till their total eclipse at the Norman Conquest; from which they have gradually emerged, and risen to the perfection they now enjoy, at different periods of time. We have seen, in the course of our inquiries in this and the former volVOL. IV.-H H

481

umes, that the fundamental maxims and rules of the law, which regard the rights of persons 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 wisdom of ages; that the forms of administering justice came to perfection under Edward the First, and have not been much varied, nor always for the better, since; that our religious liberties were fully established 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 restoration of King Charles, nor fully and explicitly acknowledged [ 443] and defined till the era of the happy revolution. Of a Constitution so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise which is justly and severely its due; the thorough and attentive contemplation of it will furnish its best panegyric. It hath been the endeavor of these Commentaries, however the execution may have succeeded, to examine its solid foundations, to mark out its extensive plan, to explain the use and distribution of its parts, and from the harmonious concurrence of those several parts to demonstrate the elegant proportion of the whole. We have taken occasion to admire at every turn the noble monuments of ancient simplicity, and the more curious refinements of modern art. Nor have its faults been concealed from view, for faults it has, lest we should be tempted to think it of more than human structure: defects chiefly arising from the decays of time, or the rage of unskillful improvements in later ages. To sustain, to repair, to beautify this noble pile, is a charge intrusted principally to the nobility, and such gentlemen of the kingdom as are delegated by their country to Parliament. The protection of THE LIBERTY OF BRITAIN is a duty which they owe to themselves, who enjoy it; to their ancestors, who transmitted it down; and to their posterity, who will claim at their hands this the best birthright and noblest inheritance of mankind.'

(4) The notes appended to this edi- its usefulness. In the department of tion sufficiently exhibit the extensive criminal law, improvements still more amendments which have been made, extensive-probably, indeed, a consoliboth in the civil and in the criminal law dation of the whole penal code-may of England, since the Commentaries be looked for in consequence of the rec were originally published. A recapitu- ommendations of the Criminal Law Comlation of them, after the manner of this missioners, in their important and valuchapter, would swell the bulk of the able Reports. work without, perhaps, adding much to 482

APPENDIX.

SECT. 1. RECORD OF AN INDICTMENT AND CONVICTION OF MURDER,
AT THE ASSIZES.

iner.

Warwickshire, Be it remembered, that at the general session of the Session of to wit, lord the king of oyer and terminer, holden at War- oyer and term wick in and for the said county of Warwick, on Friday, the twelfth day of March, in the second year of the reign of the Lord George the Third, now King of Great Britain, before Sir Machael Foster, Knight, one of the justices of the said lord the king, assigned to hold pleas before the king himself, Sir Edward Clive, Knight, one of the justices of the said lord the king, of his Court of Common Bench, and others their fellows, justices of the said lord the king, assigned by letters patent of the said lord the king, under his great seal of Great Britain, made to them the aforesaid justices and Commission others, and any two or more of them (whereof one of them, the said Sir of Michael Foster and Sir Edward Clive, the said lord the king would have to be one), to inquire (by the oath of good and lawful men of the county aforesaid, by whom the truth of the matter might be the better known, and by other ways, methods, and means, whereby they could or might the better know, as well within liberties as without) more fully the truth of all treasons, misprisions of treasons, insurrections, rebellions, counterfeitings, clippings, washings, false coinings, and other falsities of the moneys of Great Britain, and of other kingdoms or dominions whatsoever; and of all murders, felonies, manslaughters, killings, burglaries, rapes of women, unlawful meetings and conventicles, unlawful uttering of words, unlawful assemblies, misprisions, confederacies, false allegations, trespasses, riots, routs, retentions, escapes, contempts, falsities, negligences, concealments, maintenances, oppressions, champarties, deceits, and all other misdeeds, offenses, and injuries whatsoever, and also the accessories of the same, within the county aforesaid, as well within liberties as without, by whomsoever and howsoever done, had, perpetrated, and committed, and by whom, to whom, when, how, and in what manner; and of all other articles and circumstances in the said letters patent of the said lord the king specified, the premises and every or any of them howsoever concerning; and for this time to hear oyer and terand determine the said treasons and other the premises, according to the miner, law and custom of the realm of England; and also keepers of the peace, and of the and justices of the said lord the king, assigned to hear and determine divers peace felonies, trespasses, and other misdemeanors committed within the county aforesaid, by the oath of Sir James Thompson, Baronet, Charles Roper, Grand jury. Henry Dawes, Peter Wilson, Samuel Rogers, John Dawson, James Philips, John Mayo, Richard Savage, William Bell, James Morris, Laurence Hall, and Charles Carter, esquires, good and lawful men of the county aforesaid, then and there impaneled, sworn, and charged to inquire for the said lord the king and for the body of the said county, it is presented, that Peter Hunt, late of the parish of Lighthorne, in the said county, Indictment. gentleman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the fifth day of March, in the said second year of the reign of the said lord the king, at the parish of Lighthorne aforesaid, with force and arms, in and upon one Samuel Collins, in the peace of God and of the said lord the king, then and there being, feloniously, willfully, and of his malice aforethought, did make an as

Cap as.

Session of

sault; and that the said Peter Hunt with a certain drawn sword, made of iron and steel, of the value of five shillings, which he, the said Peter Hunt,' in his right hand then and there had and held, him the said Samuel Collins, in and upon the left side of the belly of him, the said Samuel Collins, then and there feloniously, willfully, and of his malice aforethought, did strike, thrust, stab, and penetrate; giving unto the said Samuel Collins, then and there, with the sword drawn as aforesaid, in and upon the left side of the belly of him the said Samuel Collins, one mortal wound of the breadth of one inch, and the depth of nine inches, of which said mortal wound he, the said Samuel Collins, at the parish of Lighthorne aforesaid, in the said county, of Warwick, from the said fifth day of March in the year aforesaid until the seventh day of the same month in the same year, did languish, and languishing did live; on which said seventh day of March in the year aforesaid, the said Samuel Collins, at the parish of Lighthorne aforesaid, in the county aforesaid, of the said mortal wound did die : and so the jurors aforesaid, upon their oath aforesaid, do say that the said Peter Hunt him the said Samuel Collins, in manner and form aforesaid, feloniously, willfully, and of his malice aforethought, did kill and murder, against the peace of the said lord the now king, his crown and dignity. Whereupon the sheriff of the county aforesaid is commanded, that he omit not for any liberty in his bailiwick, but that he take the said Peter Hunt, if he may be found in his bailiwick, and him safely keep, to answer to the felony and murder, whereof he stands indicted. Which said indictment the said justices of the jail-delivery. lord the king above named, afterward, to wit, at the delivery of the jail of the said lord the king, holden at Warwick in and for the county aforesaid," on Friday the sixth day of August in the said second year of the reign of the said lord the king, before the Right Honorable William Lord Mansfield,' chief justice of the said lord the king, assigned to hold pleas before the king himself, Sir Sidney Stafford Smythe, Knight, one of the barons of the Exchequer of the said lord the king, and others their fellows, justices of the said lord the king, assigned to deliver his said jail of the county aforesaid of the prisoners therein being, by their proper hands to deliver here in court of Arraignment record in form of the law to be determined. And afterward, to wit, at the same delivery of the jail of the said lord the king of his county aforesaid, on the said Friday, the sixth day of August, in the said second year of the reign of the said lord the king, before the said justices of the lord the king last above named and others their fellows aforesaid, here cometh the said Peter Hunt, under the custody of William Browne, Esquire, sheriff of the county aforesaid (in whose custody in the jail of the county aforesaid, for the cause aforesaid, he had been before committed), being brought to the bar here in his proper person by the said sheriff, to whom he is here also committed: And forthwith being demanded concerning the premises in the said indictment above specified and charged upon him, how he will acquit himself thereof, he saith that he is not guilty thereof; and thereof for good and evil he puts himself upon the country: And John Blencowe, Esquire, clerk of the assizes for the county aforesaid, who prosecutes for the said lord the king in this behalf, doth the like: Therefore let a jury thereupon here immediately come before the said justices of the lord the king last above mentioned, and others their fellows aforesaid, of free and lawful men of the neighborhood of the said parish of Lighthorne, in the county of Warwick aforesaid, by whom the truth of the matter may be the better known, and who are not of kin to the said Peter Hunt, to recognize upon their oath, whether the said Peter Hunt be guilty of the felony and murder in the indictment aforesaid above specified, or not guilty: because as well the said John Blencowe, who prosecutes for the said lord the king in this behalf, as the said Peter Hunt, have put themselves upon the said jury. And the jurors of the said jury by the said sheriff for this purpose impaneled and returned, to wit, David Williams, John Smith, Thomas Horne, Charles Nokes, Richard May, Walter Duke, Matthew Lion, James White,

Plea: not guilty. Issue.

Venire.