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influence of the county courts, the great seats of Saxon justice, and extending the original jurisdiction of the king's justiciars to all kinds of causes, arising in all parts of the kingdom. To this end, the aula regis, with all its multifarious authority, was erected; and a capital justiciary appointed, with powers so large and boundless, that he became at length a tyrant to the people, and even formidable to the crown itself. The constitution of this court, and the judges themselves who presided there, were imported from the duchy of Normandy; and the natural consequence was an ordination, that all proceedings in the king's courts should be carried on in the Norman, instead of the English language,-a provision the more necessary, because none of his Norman justiciaries understood English; but it was as evident a badge of slavery as ever was imposed on a conquered people. This lasted till king Edward III. obtained a double victory over the armies of France in their own country, and their language in the courts of law at home. But there was one mischief too deeply rooted thereby, and which king Edward's caution came too late to eradicate. Instead of the plain and easy method of determining suits in the county courts, the chicanes and subtleties of Norman jurisprudence had taken possession of the king's courts, to which every cause of consequence was drawn. Indeed, that age, and those immediately succeeding it, were the era of refinement and subtlety. There is an active principle in the human soul, that will ever be exerting its faculties to the utmost stretch in whatever employment, by the accidents of time or place, the general plan of education, or customs and manners of the age and country, it may happen to find itself engaged. The northern conquerors of Europe were then emerging from the grossest ignorance in point of literature; and those who had leisure to cultivate its progress, were such only as were cloistered in monasteries, the rest being all either soldiers or peasants. And, unfortunately, the first rudiments of science which they imbibed, were those of Aristotle's philosophy, conveyed through the medium of his Arabian commentators, which were brought from the east by the Saracens into Palestine and Spain, and translated into barbarous Latin. So that, though the materials upon which they were naturally employed in the infancy of a rising state, were those of the noblest kind,-the establishment of religion, and the regulations of civil polity,-yet having only such tools to work with, their execution was trifling and flimsy. Both the divinity and the law of those times were, therefore, frittered into logical distinctions, and drawn up into metaphysical subtleties, with a most amazingly artificial skill, but which serves no other purpose than to show the vast powers of the human intellect, however vainly or preposterously employed. Hence law in particular, which (being intended for universal reception) ought to be a plain rule of action, became a science of the greatest intricacy; especially when blended with the new refinements engrafted upon feudal property; which


refinements were from time to time gradually introduced by the Norman practitioners, with a view to supersede (as they in a great measure did) the more homely but more intelligible maxims of distributive justice among the Saxons. And to say the truth, these scholastic reformers have transmitted their dialect and finesse to posterity, so interwoven in the body of our legal polity, that they cannot be taken out without a manifest injury to the substance. Statute after statute has in later times been made, to pare off these troublesome excrescences, and restore the common law to its pristine simplicity and vigour; and the endeavour has greatly succeeded; but still the scars are deep and visible; and the liberality of our modern courts of Justice is frequently obliged to have recourse to unaccountable fictions and circuities, in order to recover that equitable and substantial justice, which, for a long time, was totally buried under the narrow rules and fanciful niceties of metaphysical and Norman jurisprudence.

4. A fourth innovation was the introduction of the trial by combat, for the decision of all civil and criminal questions of fact in the last resort. This was the immemorial practice of all the northern nations, but was first reduced to regular and stated forms among the Burgundi, about the close of the fifth century; and from them it passed to other nations, particularly the Franks and the Normans, which last had the honour to establish it here, though clearly an unchristian, as well as a most uncertain, method of trial. But it was a sufficient recommendation of it to the Conqueror and his warlike countrymen, that it was the usage of their native duchy of Normandy.

5. But the last and most important alteration, both in the civil and military polity of England, was the engrafting on all landed estates, a few only excepted, the fiction of feudal tenure; which drew after it a numerous and oppressive train of servile fruits and appendages; such as aids, reliefs, primer seisins, wardships, marriages, escheats, and fines for alienations; the genuine consequences of the maxim, that all the lands in England were derived from, and holden either mediately or immediately of, the crown.

At this period, the nation seems to have groaned under as absolute a slavery, as was in the power of a warlike, an ambitious, and a politic prince to create. Men's consciences were enslaved by four ecclesiastics, devoted to a foreign power, and unconnected with the civil state under which they lived, who imported from Rome, for the first time, the whole farrago of superstitious novelties, which had been engendered by the blindness and corruption of the times, between the first mission of Augustin the monk, and the Norman conquest; such as the doctrines of purgatory, communion in one kind, and the worship of saints and images, not forgetting the universal supremacy and dogmatical infallibility of the holy see. The laws too, as well as the prayers, were administered in an unknown tongue.

The ancient trial by jury gave way to the impious decision by battel. The forest laws totally restrained all rural pleasures and manly recreations. And in cities and towns the case was no better; all companies being obliged to disperse, and fires and candles to be extinguished by eight o'clock at night, at the sound of the melancholy curfew, which "toll'd the knell of parting day." The ultimate property of all lands, and a considerable share of the profits even, were vested in the king, or by him granted out to his Norman favourites, who, by a gradual progression of slavery, were absolute vassals to the crown, and as absolute tyrants to the commons. Unheard of forfeitures, talliages, aids, and fines, 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 the confiscation of 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 Romish clergy, who were besides 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 insignificance, happily retained in their soccage and burgage tenures, some points of their ancient freedom. All the rest were villeins or bondsmen.


From so complete and well concerted a scheme of servility, it has cost our ancestors the work of generations to redeem themselves and their posterity, and secure to us that state of liberty which we now enjoy, and which therefore not to be looked upon merely as encroachments on the crown, and infringements on the prerogative; but as, in general, a gradual restoration by royal grace, and concession of that ancient constitution whereof the Anglo-Saxons had been unjustly deprived, partly by the policy and partly by the violence of the Norman arms. How that restoration has, in a long series of years, been step by step effected, I now proceed to inquire.

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 I. found it expedient, when he first came to the crown, to ingratiate himself with the people by restoring, as the monkish historians relate, 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 feudal tenures: but reserved the tenures themselves for the same military purposes that induced his father to introduce them. He also abolished the obnoxious curfew;

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for though it is mentioned in the law a full century afterwards, yet it is rather spoken of as a known time of night, than as a still subsisting custom. A code of laws in his name is extant, 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, and, in this code, theft was made a capital crime: a few things relating to estates, particularly regulating the descent of lands, were inserted in this code. The descent of lands by the Saxon law being equally to all the sons, by the feudal 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 mitred abbots; reserving, however, those ensigns of patronage, conge d'elire, 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 the Romish clergy of Norman extraction; 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 respect to redressing the grievances of the forest laws, but performed no great matter 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 the realm of England; and at the same time, the absurd and pernicious doctrine of appeal to the court of Rome was, during this usurpation, first imported as a branch of the canon law.

By the time of Henry II., if not earlier, the charter of Henry I. seems to have been forgotten; for we find the claim of marriage, ward, and relief, then flourishing in full vigour. The right of primogeniture seems also to have tacitly revived, being, as all God's institutions undoubtedly are, 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 with the code of Henry I., it carries a manifest superiority. Throughout his reign the important struggle between the laws of England and of Rome was continued, and which will be more fully noticed under our notice of "The Supreme Head of the Church;" the former supported by the strength of the temporal nobility, when endeavoured to be supplanted in favour of the latter

by the popish clergy: which dispute was kept on foot till the reign of Edward I., when the laws of England, under the new discipline introduced by that skilful commander, obtained a complete and permanent victory. In the reign of Henry II., there are four things which particularly merit the attention of a legal antiquarian. 1. The constitutions of the parliament at Clarendon in the year 1164, whereby the king checked the power of the pope and his clergy, and greatly narrowed the total exemption which 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 differ ent from the present), and commissioned these newly 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 time all causes were usually terminated in the county courts, according to the Saxon custom; or before the king's judiciaries in the aula regis, in pursuance of the Norman regulations. The latter of which tribunals, travelling about with the king's person, occasioned intolerable expense and delay to the suitors; and the former, however suitable for little debts and minute actions, where procrastination is a very great evil, 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 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, 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 I., a brave and magnanimous prince, was a sportsman as wel as a soldier, and therefore enforced the forest laws with considerable rigour, 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. While abroad, he also composed a body of naval laws at the isle of Oleron, which are still extant, and of high authority; for in his time it was again discovered, that, being insular, 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,—this king's thoughts being chiefly taken up by the absurd popish knight-errantry of a crusade against the Saracens in the Holy Land.

In king John's time, and that of his son Henry III., the rigours of the

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