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 appearance and *nominally, reduced the [*441 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 minutia)(23) in the administration of private justice during this period are the solemn recognition of the law of nations with respect to the rights of ambassadors; 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(24) and informations in nature of quo warranto;(25) 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 forte et dure; (26) 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 endorsements 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 laid, by clearly developing the principles [*442 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

(23) [Unimportant detail.]

(24) [We command.]

(25) [By what warrant.]

(26) [A violent and severe punishment.]

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 setoffs,) 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. (27)

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 books, 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 acknowl

edged and defined till the era of the happy revolution. Of a consti*443] tution 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. (28)

(27) Carrol v. Green, 92 U. S. 509, 514 (1875).

(28) I wish it were in my power to finish this sketch of our legal history in the same faithful and spirited manner in which the author has begun and carried it down to bis own time. Since the year 1780, in which he died, the legislature has provided ample materials for one who saw things in so liberal and comprehensive a spirit and arranged them in such striking and lucid order. In regard to legal and judicial matters, he might have pointed out the restraint imposed on the arrest of the person, and the right given to a discharge on making a deposit with the arresting officer; the assistance afforded to inferior courts by arming them with the process of the superior where necessary; the prevention of delay in the trial of misdemeanors, and the salutary increase of severity in

their punishment; the great general diminution of the number of capital offences, and the necessary and wise addition made to the severity of substituted and inferior punishments; the making capital certain aggravated attempts at murder, and the simplifying the trial of certain enormous treasons; the abolition of many punishments, as that of the pillory and the burning or whipping of females, and of the barbarous and shocking parts of others, as that of embowelling in treason; the suppression of appeals in treason, murder, or felony, and of the trial by battle in civil suits; the taking away corruption of blood, except in cases of treason or murder; the provision for the expenses of prosecutions in felony and for the care and disposal of lunatic offenders; the great improvements in the system of gaols and houses of correction; the declaration of the functions of the jury in the case of libel; the regulation of the ecclesiastical courts; the trial and punishment of offences committed on the high seas or in the colonies; and last, not least, the revision and consolidation of the laws which regulate that great bulwark of our liberties, the trial by jury.

As measures calculated to secure the integrity of the representative body, Sir W. Blackstone would probably have noticed the act for securing the independence of the speaker, those which prevent public contractors and certain public officers from sitting in the house, which suspend or remove bankrupt members from their seats, and prohibit persons filling offices in the revenue from voting at elections.

In matters of general or internal polity, he would have pointed out the formation of a regular system and jurisdiction for the punishment as well as relief of insolvent debtors; the many amendments, and finally the consolidation, of the bankrupt-law; the great diminution of the disabilities of Roman Catholics and Dissenters; the liberal alterations in the spirit of the navigation-laws; the attempts to estimate accurately the increase of population, by a census taken at stated intervals and a more careful keeping of parochial registers; the sensible and humane attempts to modify and improve the poor laws; the protection and encouragement afforded to friendly societies, and the institution of banks for the savings of the poor; the grand measure of the union with Ireland; the honest renunciation of the slave-trade for ourselves, and the sincere and repeated endeavors to procure its abolition by all other nations.

These might form some of the features of the picture with which the Commentaries might have closed if they had been written in the present day. The system is still imperfect, and many things remain to be done which the author might, perhaps, have suggested with something of judicial authority. Without thinking myself entitled to do so, I may venture to express not only my wishes for the gradual perfecting of the English laws and constitution, but my strong conviction that they will continue to be improved with the increasing lights of the age. It is our great blessing to have the machinery of improvement always ready to work in a legislature, which, though almost permanently sitting, is yet drawn from the general body of the people, forms part of it, mixes in all its business and amusements, and is acted upon by all its hopes, fears, and interests. The very facility of legislation perhaps leads to inconvenience in the multiplying of laws, and in provoking attempts to remedy inconveniences which must be borne, or prevent evils which the unassisted prudence of individuals might more wisely be left to guard against. But these are comparatively slight evils, not counterbalancing the great good of possessing a power of improvement perpetually advancing with the age. It becomes not the commentator on the laws to indulge in a spirit of indiscriminate approbation: perhaps it was the leaning of Sir W. Blackstone's mind to take too favorable a view of his subject,- -a more excusable failing than the opposite one of a captious and querulous spirit; but I think he might have reasonably indulged the conviction which I have expressed above, because the characteristic of the legislature for the last fifty years has been a sincere desire of general improvement and a particular zeal for the bettering the condition of the lower or unfortunate classes of society. Fewer measures purely aristocratic have passed into laws than heretofore; while no proposition has been coldly received that was sensible in its details, and had for its object the reformation of the criminal, the instruction of the ignorant, the dissemination of sound religion, the vindicating the rights of the oppressed, or the gradual advancement of the laboring and mechanic orders of the population.-Coleridge.

The few years which have elapsed since the above sentences were penned by the learned annotator have given birth to more and greater changes in the English law than are comprised in any entire century of its previous existence. At the head of those statutes which have produced important alterations in the cONSTITUTION is the act emancipating his majesty's Roman Catholic subjects from the disabilities under which they formerly labored. Next in order are the statutes for amending the representation of the people in parliament, which, by withdrawing the elective franchise from some classes, extending it to many others, altering the method of election, and prescribing means for ascertaining the qualification of electors, has wrought a great and organic change in the legislative system of this realm.

Among the enactments peculiarly affecting our COLONIAL interests must be distinguished the act which prohibits slavery throughout the British empire, providing at the

same time compensation for those whose property is injured by the consequences of that measure; the statute which provides a judicature for our West India colonies, and that which regulates the future government of British India, the care of which is still intrusted to the company,-stripped, however, of its commercial privileges; while the nations of that vast peninsula are allowed much more extensive capacities than they have heretofore enjoyed under our empire, and the trade with China is thrown open to the competition of all his majesty's subjects.

Among the important changes in our DOMESTIC POLITY must be pointed out the act of municipal reform, which has popularized and remodelled the various municipal corporations throughout the kingdom, with the exception only of the metropolis; the act for the amendment of the poor-laws, which, by confiding the administration of those laws to a central board, and accompanying the relief afforded to the indigent by circumstances which render it far less desirable than formerly, has tended-whether wisely or unwisely -to deter the applicant unless impelled by actual and pressing need, and to diminish the burden upon those classes who contribute to the fund destined for the relief of their indigent fellow-subjects; the abolition of the palatine peculiarities of the county of Durham; the tithe commutation act, which has enabled persons anxious to exempt their lauds from the payment of that species of ecclesiastical contributions to do so upon equitable and advantageous terms of compromise; the alteration in the law of marriages, effected to relieve the scruples of the dissenting classes of our population, and which points out a mode in which the matrimonial contract may be solemnized without the intervention of the Church of England; the erection of a general registry for births, deaths, and marriages, by which it is hoped that the memory of such events will be preserved more faithfully than heretofore; and the general highway act, providing a new system for the management of our great national thoroughfares.

Among the acts designed to benefit the COMMERCIAL INTERESTS of the nation may be reckoned that which renews the charter and defines the privileges of the Bank of England; that which erects a new tribunal denominated the Court of Bankruptcy, for the administration of that important branch of commercial law; the improvements effected in our maritime code by the alteration in our navigation and ship-registry acts, the consolidation of the custom-laws, and the act passed for the regulation of our merchantseamen; the partial abolition of the usury-laws, whereby bills and notes having no more than three months to run may be negotiated at any rate of interest; the improvement of our law of patents, which encourages the enterprise of inventors by affording additional protection to their ingenuity; that which settles the general standard of weights and measures; that which defines the liability of common carriers, and that which enables his majesty to bestow on trading-companies several important privileges which heretofore could only have been conferred by the transcendent authority of parliament.

Among changes respecting the GENERAL ADMINISTRATION OF THE LAWS may be enumerated the alteration of the amount for which a debtor may be legally arrested from the sum of ten to that of twenty pounds; the act which sweeps away the old, intricate system of process, and substitutes an easy and intelligible method of commencing actions in the courts of common law; the law amendment act, which destroys several antiquated forms, expedites and cheapens the trial of causes of slight importance, enables the judges to amend and obviate technical errors, arms them with a power (which they have not been slow to exercise) of introducing regulations calculated to render our system of pleading more effectually subservient to the ends of justice, and renders more efficient the tribunal of the arbitrator; the consolidation of the Welsh and English judicatures; the appointment of an additional judge to each of the superior courts; the act dispensing with a number of useless oaths, the multitude of which tended to induce disregard of those most solemn invocations of the Deity, by rendering their use too frequent in matters of trivial importance; the destruction of the numerous and antiquated tribe of real actions, and the remodelling of the Court of Privy Council for judicial purposes.

Among enactments concerning THE REGULATION OF PRIVATE PROPERTY may be enumerated the act which renders a man's real property liable after his death to the claims of all his creditors; the acts which ascertain the period at which rights and titles shall be rendered secure by lapse of time and uninterrupted continuance of possession; which define the right of the wife to dower out of her husband's, and that of the husband to curtesy, as it is called, out of the wife's, real property; which alters the law of descents, by allowing the parent to inherit to the child, and letting in the half-blood, who were formerly excluded by an arbitrary rule of feudal policy; and that which substitutes easy and simple forms for the complicated and abstruse ones of fine and recovery.

Lastly: our CRIMINAL LAW has been improved by the abolition of the disabilities under which Quakers and Moravians formerly labored of giving evidence for or against the prisoner. The statutes which composed its bulk have been consolidated, the punishment of death abolished in numerous instances, and the accused has at length obtained the right. heretofore denied him in prosecutions for felony, of making his full defence by counsel and inspecting the depositions of those who charged him with the crime for which he stands indicted.

These are the most prominent of the alterations which have within the last ten years (1836) been effected in the English law and constitution. Experience will probably show that, like other human institutions, they contain good mixed with evil. But the very experience which detects the latter will help to point out the true method of correcting it; while the continuance of the former may, and, let us trust, will, be insured, by that willing obedience to existing law, that steady attachment to the constitution, that charity to fellow-subjects and loyalty to the crown, which have ever remarkably distinguished the English people.-JOHN WILLIAM SMITH.

This admirable sketch of our legal history having only extended to about the year 1780, I shall endeavor, however imperfectly, to bring it down to the present time, as it will not be disputed that the alterations which have been made in the law since Blackstone completed his Commentaries have been fully as important as those which he commemorates. It will be convenient for this purpose to consider the other changes which were made in the reign of George the Third and in the succeeding reigns.

During the greater portion of the reign of George the Third the energies of the country were devoted to the carrying on foreign wars of great magnitude, in the last of which her very existence as a nation was perilled. From these contests she eventually arose victorious; but the effects of the struggle were long felt, and are to be traced in the statute-book. The criminal code of the country, already sufficiently penal, became more and more bloody; the liberty of the subject was very considerably curtailed, and the close of the war, however glorious to our arms, cast adrift a multitude of unemployed and restless spirits; commerce, long diverted from her regular channels, returned with difficulty to them; and the light of political science was well-nigh extinguished in the general confusion. The reader who has perused the Commentaries will perceive that scarcely any of the blemishes in our laws pointed out by Blackstone-by no means a severe censor-were remedied in this reign. Some measures of great national importance, however, were carried through, and some improvements in the law were effected. The legislative union between Great Britain and Ireland was completed; and, although the burdens on the people were greatly increased, the mode of collecting the revenue was improved; the national funds were consolidated; the privilege of copyright in books and works of art was extended; the granting of annuities was placed under proper guards and restrictions; the Roman Catholics were relieved from some of their most severe restrictions; charities were investigated, and traders prevented from disposing of their real estates after their death to the prejudice of their simple-contract creditors; the punishment of pillory (except in cases of perjury) and the trial by battle and appeals in treason, murder, and felony were abolished, and certain minor improvements were made in the practice of the courts of equity, of which the appointment of one vice-chancellor may be considered the chief; the barbarous parts of the punishment of treason and corruption of blood in treason and murder were also taken away; some judicious improvements were made as to gaols and houses of correction; and copyhold estates were allowed to be devised without a surrender to the use of the will.

In the reign of George the Fourth, which was undisturbed by foreign wars, the alterations, especially in its later years, although few, were of greater importance than any in the preceding reign. Thus, the laws relating to trial by jury and to bankrupts were simplified, consolidated, and greatly improved; the criminal law was much ameliorated, the number of capital punishments diminished, the nature of crimes more accurately defined, and their punishment more distinctly ascertained and more certainly executed: benefit of clergy was also entirely abolished. The Insolvent Debtors' Court was established, with a regular system for the relief of insolvent debtors. I may also mention the consolidation of the law relating to the customs and excise; the establishment of a new body of police in the metropolis, which has since been taken as a model in most of the great towns in the empire; the repeal of the navigation act, and the new regulation of the merchant-service; the alterations in the law of marriage by the new marriage act; the repeal of the test and corporation acts, and subsequently the entire removal of the disabilities of the Roman Catholics. Two important commissions were also appointed in this reign for the express purpose of considering the necessary reforms in the law, and many most important acts have since been passed, founded on their recommendations.

But the reign of William the Fourth was still more remarkable for the progress of reform; and here I can only notice the principal changes. The mode of administering justice on circuit in Wales was entirely altered, being assimilated to that adopted in England. The number of judges was increased from twelve to fifteen, and the practice of all the superior courts was rendered uniform; the law relating to trustees was amended and simplified; the laws affecting the property of persons under disability and for facilitating the payment of debts were consolidated and improved, and the law as to contempts in chancery placed on a footing which protected the liberty of the subject. The number of capital offences was still further diminished, and the exemption from death, except in certain rare cases, was extended to the crime of forgery; and this great step towards a mitigation of the criminal code has been followed during subsequent years by