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* 506 ]

in England in the crown, and no man was entitled to disturb any [* fowl of the air, or any beast of the field, of such kinds as were specially reserved for the amusement of the sovereign, without express licence from him, by the grant of a chase or free-warren: and those franchises were granted as much with a view to preserve the breed of animals as to indulge the subject. By degrees the forest laws became mitigated, and at length grew entirely obsolete, yet from this root sprung bastard slips, still known to us as the game laws.

3. A third alteration effected in the English laws was by narrowing the remedial 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 its multifarious authority, was erected; and a capital justiciary was appointed, with powers so large and boundless, that he became at length a tyrant to the people, and formidable to the crown itself. The constitution of this court, and the judges themselves who presided there, were fetched from the duchy of Normandy: and the consequence naturally was, the ordaining 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 justiciars understood English; but as evident a badge of slavery as ever was imposed upon 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 our courts at home (b). But there was one mischief [* 50% ] too deeply rooted thereby, and which this caution of king Edward came too late to eradicate. Instead of the plain and easy method of determining suits in the county courts, the chicanes and subtilties of Norman jurispru- . dence had taken possession of the king's courts, to which every cause of consequence was drawn. That age, indeed, was an era of refinement and subtilty. There is an active principle in the human soul, which will ever be exerting its faculties to the utmost stretch, in whatever employment, by the accidents of time and place, the general plan of education, or the customs and manners of the age and country, it may happen to find itself engaged. As regarded literature, the northern conquerors of Europe were then emerging from the grossest ignorance; and those who had leisure to cultivate its progress, were such only as were cloistered in monasteries, the rest being either soldiers

(b) By stat. 36 Edw. 3, c. 15, it was enacted that, for the future, all pleas should be pleaded, shown, defended, answered, debated, and judged in the English tongue; but be entered and enrolled in Latin. After this statute, however, the reports were still printed in law French. Law Latin, which succeeded the French, for the entry and enrolment of pleas continued in use for four centuries, viz., from the time of its first introduction, till the subversion of our ancient constitution under Cromwell; when, among many other innovations in the law, some for the better and some for the worse, the language of our records was altered and turned into English. But, at the restoration, this novelty was no longer countenanced; the practitioners finding it difficult to express themselves so concisely or significantly in

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any other language as in Latin. And this state of things continued till the year 1731; when it was again thought proper that the proceedings at law should be in English, and it was accordingly so ordered by statute 4 Geo. 2, c. 26. This provision was made according to the preamble of the statute, that the common people might have knowledge and understanding of what was alleged or done for and against them in the process and pleadings, the judgment and entries in a

cause.

Technical phrases, however, and the names of writs and other process, were found to be so incapable of wearing an English dress with any degree of propriety that in two years time it was found necessary to make a new act, 6 Geo. 2, c. 14, of which sect. 5 allowed all technical words to continue in the usual language.

or peasants. And, unfortunately, the first rudiments of science imbibed were drawn out of Aristotle's philosophy, and conveyed through the medium of his Arabian commentators; whose writings, brought from the east by the Saracens into Palestine and Spain, were translated into barbarous Latin. So that, [* 508 ] though the objects to which students naturally applied themselves * in the infancy of a rising state, were of the noblest kind; the establishment of religion, and the regulation 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 frittered into logical distinctions, and drawn out into metaphysical subtilties, with a skill most amazingly artificial; yet 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 did in great measure) the more homely, but more intelligible, maxims of distributive justice among the Saxons. And, to say the truth, these scholastic reformers transmitted their dialect and finesses to posterity, so interwoven in the body of our legal polity, that they have not yet been wholly shaken off and cast aside.

People even at the present day are apt to be angry at the want of simplicity in our laws, though they often mistake variety for confusion and complicated for contradictory decisions. In a nation of freemen, a polite and commercial people, the same paucity of laws, the same conciseness of practice, cannot, however, reasonably be looked for, as might suffice under other circumstances. Under an arbitrary despotic government, where lands are at the disposal of the prince, the rules of succession to, or the mode of enjoying them must depend upon his will and pleasure. Hence there can be but few legal determinations relating to the property, the descent, or the conveyance of real estates; and the same holds in a stronger degree with regard to goods and chattels, and the contracts thereto relating. Under a tyrannical sway *trade must be continually in jeopardy, and of consequence can [* 509 ] never be extensive: this therefore puts an end to the necessity of an infinite number of rules, which the English merchant daily recurs to for adjusting commercial differences. Marriages are then usually contracted with slaves; or at least women are treated as such: no laws can be therefore expected to regulate the rights of dower, jointures, and marriage settlements. Few also are the persons who can claim the privileges of any laws; the bulk of those inhabiting a country arbitrarily governed, viz. the commonalty, boors, or peasants, being merely villeins and bondmen. These are therefore left to the private coercion of their lords, are esteemed incapable either of enjoying rights or of sustaining injuries, and of consequence are entitled to no redress. Thus we may see under an arbitrary government, how large a field of legal contests is rooted up and destroyed.

Again: were we a poor and naked people, as the savages of Western America, strangers to science, commerce, and the arts as well of convenience as of luxury, we perhaps should be content to refer all disputes to the next man we might meet upon the road, and so put a short end to every controversy. For in a

state of nature there is no room for municipal laws; and the nearer any nation approaches to that state, the fewer they will have occasion for. When the people of Rome were little better than sturdy shepherds or herdsmen, all their laws are said to have been contained in ten or twelve tables; but as luxury, politeness, and dominion increased, the civil law increased in the same proportion; and, though successively pruned, retrenched, and digested by the Emperors Theodosius and Justinian, swelled to an enormous bulk.

So we may observe, that, in petty states and narrow territories, fewer laws will suffice than in large ones, because there are fewer objects upon which the laws can operate. The regulations of a private family are few, simple, * and well-known; those of a prince's household are necessarily more various and diffuse.

[* 510 ] The main causes therefore of the multiplicity of the English laws are, the extent of the country which they govern; the commerce and refinment of its inhabitants; but above all, the liberty and rights of property of the subject. These will naturally produce an infinite fund of disputes, which must be judicially terminated, and it is essential to a free people, that these judicial determinations be published and adhered to; in order that their property may be as certain and fixed as the very constitution of their state. With us the judge is only to declare and pronounce, not to make or new-model, the law. Hence a multitude of decisions, or cases adjudged, will arise; for seldom will it happen that any one rule or precedent will exactly suit for many cases. And in proportion as the decisions of courts of judicature are multiplied, the law will be loaded with decrees, that may sometimes (though rarely) interfere with each other: either because succeeding judges may not be apprised of the prior adjudication; or because they may think differently from their predecessors; or because the same arguments did not occur formerly as at present; or, in fine, because of the natural imbecility and imperfection that attends all human proceedings. But wherever this happens to be the case in any material point, the legislature may intervene to remove the doubt, and, upon due deliberation had, to determine by a declaratory statute how the law shall be held for the future.

But is not (it will be asked) the multitude of law-suits an argument against the clearness and certainty of the law itself? Not altogether so, for among the various disputes and controversies which are daily to be met with, it is observable that comparatively few arise from obscurity in the rules or maxims of our law. But the dubious points, usually agitated in our courts, arise chiefly from the difficulty there is in ascertaining the intentions of individuals, in their solemn dispositions of property; in their con[* 511] tracts, conveyances, and testaments. It is an object indeed of the utmost importance in this free and commercial country, to lay as few restraints as possible upon the transfer of possessions from hand to hand, or upon the designations marked out for them by the prudence, convenience, necessities, or even by the caprice, of their owners: yet to determine the intention of the owner is frequently a matter of difficulty, and although our law rarely hesitates in declaring its own meaning, the judges are frequently puzzled to find out the meaning of others, who clothe their intentions in dark or new-fangled expressions.

But, notwithstanding the vast accession of legal controversies, arising from

And

so fertile a fund as the ignorance and wilfulness of individuals, these will bear no comparison in point of number with those which are caused by the dishonesty, and disingenuousness of parties: by either their suggesting complaints that are false in fact, and thereupon bringing groundless actions; or by their denying such facts as are true, in setting up unwarrantable defences. thus much, in passing, as to the alleged uncertainty of our English law. 4. A fourth innovation was the introduction of the trial by combat, for the decision of civil and criminal questions of fact in the last resort. This was the immemorial practice of the northern nations; but 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 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 our civil and military polity, was the engrafting on all * landed estates, a few only excepted, [*512] the fiction of feudal tenure; which drew after it a numerous and oppressive train of servile fruits and appendages; aids, reliefs, primer seisins, wardships, marriages, escheats, and fines for alienation; the genuine consequences of the maxim then adopted, that all the lands in England were derived from and holden, mediately or immediately, of the crown.

The nation at this period seems to have groaned under as absolute a slavery, as it was in the power of a warlike, an ambitious, and a politic prince to create. The consciences of men were enslaved by ecclesiastics, devoted to a foreign power, and unconnected with the civil state under which they lived. The laws, as well as the prayers, were administered in an unknown tongue. The ancient trial by the country gave way to the decision by battle. The forest laws unduly restrained rural pleasures and manly recreations. And in cities and towns the case was no better; all company being obliged to disperse, and fire and candle to be extinguished, by eight at night, at the sound of the melancholy curfew. The ultimate property in all lands, and a considerable share of their present profits, 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 people. Unheard-of forfeitures, tallages, 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: who were bound, upon pain of having their estates confiscated, to attend him in time of invasion, or to quell any domestic insurrection. Trade, or foreign merchandize, was carried on by the Jews and Lombards, and the very name of an English fleet was 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 burgh[* 513] ers, or inferior tradesmen, who from their insignificancy happily retained, in socage and burgage tenures, some symbols of their ancient freedom. 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 to be looked upon as resulting not from mere encroachments on the crown, and infringements on the prerogative, as some have endeavoured to maintain; but from 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 Norman. How that restoration has, in a long series of years, been step by step effected, I will now 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 first he came to the crown, to ingratiate himself with the people; by restoring, as our monkish historians tell us, or at all events partially restoring, the laws of King Edward the Confessor. By charter he gave up the great grievances of marriage, ward, and relief, the beneficial pecuniary fruits of feudal tenures; but reserved the tenures themselves, for the same military purposes that his father introduced them. He also abolished the curfew; for, though it is mentioned in our laws a full century afterwards, 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 charter in his name which contains some directions as to crimes and their punishments, and a few things relating to estates, particularly as to the descent of lands. Land descended by the Saxon laws equally to all the sons, by the feudal or Norman to the eldest only, and king Henry in this particular mod[* 514] erated the difference between them; 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 these ensigns of patronage, congé d'élire, 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.

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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 in any other point. It is to his reign, however, that we owe the introduction and systematic teaching of the Roman civil and canon laws within this realm; and at the same time was imported into it the doctrine of appeals to the court of Rome, as a branch of the canon law.

By the time of king Henry II., if not earlier, the charter of Henry I. seems to have been in part 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 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. Throughout this reign also was continued the important struggle, which we have had occasion before to mention, between the laws of England and Rome: the former supported by the strength of the temporal