reason.

But, contrary to the true and mutable spirit of the common law, an attempt was made to harden and mould it into fixedness, to prevent its moving with, and adaptation to, the temporal circumstances of the age, and to set the past as an immaculate and unchangeable criterion and guide for the present and the future. The barbarous nations, when they settled in the provinces of the Eastern empire, began to collect and write down in a book their customary laws; and in so doing, yet perhaps with a good intent, they perpetuated an injury and a curse upon society. Like the child, who walled and fenced and protected its beloved flower from what it thought the rude and boisterous atmosphere, and thus reduced it to a stunted weakly thing, while its friendless fellow grew alone, inhaling the sweet fresh air, the brilliant sunshine, and the cooling showers, flourished forth in full-developed beauty; so the recorders of those customary laws, ignorant of the tendencies of their act, and not at all aware of the true nature of those customary laws they were recording, which, in fact, should be left, like the flower, to the ever-changing yet genial atmosphere of existing circumstances, tampered with and spoiled the beautiful flexibility of their spirit, by fixing it within the hard and drying influence of their proper protection.

In England, Alfred was the first who collected the customs of the country into the so-called Dome Book, which was extant in the time of Edward IV, but is now lost. Edward the Confessor caused to be made another, yet larger collection, the oldest groundwork of the present common law; and had the plan of making those written records and collections been steadily followed up, it could but have added effect to the pre-eminence of the Roman law, when compared with the rude efforts of uncivilized nations in the art of positive legislation. Happily for the fate of the common law, the Norman princes cared little concerning the records of customs which were not part and parcel of their policy, and which were not objects of interest to conquerors in general. The common law then gained some respite from further mischievous tampering by sheer neglect.

The impulse which had now been given to the art, if we may so express ourselves, of popular order, and which spread to, and enlarged the view of, judicial affairs and transitory customs, had its effect by imperceptibly transforming those customs into positive laws, and thus erecting a beacon for the guide of similar litigant cases in future ages. A series of those prejudications were officially recorded by the prothonotaries of the several courts, from the reign of Edward until Henry VIII, and afterwards, under James I, at the suggestion of Lord

Bacon, by particular recorders appointed to the task. These annual records formed at length the source, the fountain-head, of comnon law; which formed, in the course of time, receptacles of such breadth and depth as at once to defy the most indefatigable and indomitable mind, even though coupled with an insatiable thirst for knowledge and exploration.

The evil was still further augmented by the formality of the proceedings, which were maintained in strict accordance with ancient usage, and in the teeth of the altered spirit of the age. The forms and expressions, too, of the litigant parties, as regards the petitions of the latter and the judicial decisions, naturally of a narrow character, from the comparatively barbarous times in which they had their origin, and when there was scarcely any other property save the soil, and no other important branch of industry than agriculture, were yet further contracted by the introduction of the feudal system, and crippled down and narrowed in order to accord with the limited state of social intercourse. It may be naturally supposed that, with the increase of civilization, and with the growth of a trading and mercantile intercourse, and, above all, after the abolition of the feudal system, that such antiquated forms must have clashed with the expanding spirit of new affairs, or at least have been neutralized into a dead letter. In some degree, thus it was. The judges, lawyers, and parties themselves, were obliged to invent new names and means in order to facilitate in some degree the march of the new order of affairs; and in some instances the wisdom of these people was curiously displayed, particularly in the disposal and transfer of landed property. In this instance, a sort of learned comedy was played; new difficulties and involvements were generated, which rendered proceedings still more tedious. A sort of pedantic, juridical faction, now formed the base of a legislation from which the spark of life had fled. No wonder that the lack of forms suitable to the real character of affairs constituted one of the main obstacles to the distribution of justice with regard to the common law.

Thus in the same manner, and from the same cause, as the Pretorian jurisdiction was transformed at Rome into a peculiar species of legislation, was the judicial authority of the lord chancellor in England converted into a new and particular kind of legislation, called equity, the court of which extends its jurisdiction over all those civil affairs of the realm which are of a modern origin, and for which the ancient form of the common law could not have provided: such as insolvencies which required a judicial investigation; the care to be

taken of the person and property of individuals of nonage and insane mind; and, finally, all those commercial transactions for which no provisions are found in the common law, and which all fall under the jurisdiction of the court of equity, as a third species of legislation, also provided with peculiar regulations and forms.

Considering, then, the casualty to which the civil laws owe their introduction and formation, it may not be unreasonable to doubt whether the jury, the far-famed pillar of the English liberty, be really the true image of the ancient Germanic popular courts. This much is certain, that, long after the conquest, the juries were greatly limited and neglected, and that the mode of settling disputes by judicial single combat was very much preferred. The expression, also, in the twentyninth chapter of the Magna Charta, which was generally considered as referring to the confirmation of the jury, or rather its jurisdiction, and by which no freeman can be endangered in goods and person except per legale judicium parium suorum vel per legem terræ (by the decision of his peers and the laws of the country)—that expression, we say, has such a striking resemblance to that used by the Emperor Conrad II, about two centuries previously, in securing to his Italian inferior vassals the inviolate and perpetual possession of their benifices (nemo beneficium suum perdat nisi secundum consuetudinem antecessorum nostrorum et per judicium parium suorum.L. L. Longab., l. iii.; Tit., ii., i., 4), that it may be fairly questioned whether the jurisdiction of the jury was at all the subject of consideration. And if we add to it the remarkable circumstance that the exertions—or, as we may now term it, the spirit of the age of the feoffees of that period consisted chiefly in securing their independence against the encroachments of their superiors, and, further, that it was the feoffees who extorted the Magna Charta from King John, it is more than probable that the above expression refers to the irrevocability of the granted benefices (as those by the Emperor Conrad in Italy), rather than to aught pertaining to the jury, its privileges, or functions.

Perhaps, if construed in that more probable sense, the jury might be nothing else than the continuation of that mode of judicial proceeding which was current when the courts of fees existed, and when the accused was judged by his peers. That mode of proceeding, however, soon sunk into oblivion in those countries where the feudal system was not of so comprehensive a character, and only included under its rule the nobles and other important subjects; whilst it could but serve as the basis of a progressive and lasting institution of liberty in a country like England, where, as we have already stated, the feudal system rami

fied throughout the whole kingdom, taking in and subjugating the whole mass, from the noble to the peasant; and the royal courts of fees were, from the beginning (Wales and the Isle of Man alone excepted), the only tribunals in the country which extended their immediate authority to all classes of society in all secular affairs.

Thus were formed three peculiar kinds of legislation, which extended their jurisdiction to certain distinct and well-defined branches in practical life; at the same time they were, and had been during many centuries, hinged upon, and subject to, the will of the monarch. The throne, which was regarded in England as the source of justice, was, at the same time, and truly in a less figurative sense, the source, also, of a most unlimited arbitrary power, the growth, or rather the abuse, of an ancient custom, arising, as we have before observed, from the most widely-spread and absolute system of feudalism in the world. Even to this present moment there is no perfect allodial property in England, and the king is still styled the lord paramount of the country. It was only under Charles II (by the statute 12th of Car. II, c. 24), in the latter part of the seventeenth century, that the oppressive conditions and drudgeries attached to landed property, by the rules of the ancient feudal system, were entirely abolished: a greater acquisition, says Blackstone, to the civil property of the kingdom, than even Magna Charta itself.

Notwithstanding the gradual accumulation of facts and experience as regards the customs or the laws of the country, the princes were but ill-disposed to respect any regulation which clashed with their individual interests, or thwarted their self-willed inclinations. The monarchs generally considered their rights of legitimacy more sacred, and of higher importance, than the customs or the established laws of the land. The first prince who showed a disposition to observe those laws which had been extorted from himself and his predecessors was Henry III, in whose reign, also, and records, first appeared the clause non obstante, by which means he and his successors at once acknowledged and violated the laws. Letters of protection, also, and mandates of various kinds, impeded or regulated the course of justice; and the repeated contrivances which were resorted to for the purpose of meeting that abuse plainly indicated the extent to which it had been carried, and the futility of the attempts which were made to resist it. The first regulation which was intended to counteract this evil, was made in the reign of Edward I; but it is very doubtful whether he or his successors paid any respect to it. The great number of letters of protection issued

under Edward I gave rise, in the reign of Edward II, to loud clamours and complaints, which had the effect, in the second year of Edward III, of reducing them under the ban of illegality. Yet so closely had they become entwined with the practices of the age, and the interest of individuals, that they were not easily suppressed, but were to be met with even as late as the times of Queen Elizabeth.

The management of judicial affairs, which, under the immediate care of the crown or cabinet, was considered, in other countries, as a violent but transitory encroachment upon the established institutions of the state, constituted, in England, supreme and regular tribunals, which existed for centuries under the presidency of the lord high constable and commissioner of the star chamber. The equerry (constabularius), in the early domiciles of the Germanic tribes, might probably have been one of the elevated and favoured officers of the opulent landholders, who had to maintain an extensive retinue. As those possessors of the land increased their domains and their lordly power in the provinces of the Roman Empire, it is very likely that it suited their dignity, as well as convenience, to assign a portion of their newly-acquired territory for the support of these upper servants of their household, instead of maintaining them under the lordly roof, as was hitherto the case. Thus the first step was laid for their exaltation. Then came another remove: the landholder was changed into a lord, and, as a matter of course, his domestic retinue rose in rank with himself, particularly the upper servants, who now, doubtless, assumed the appearance of court officers, retaining their ancient names as a sort of title of honour; while the services attached to their offices were abandoned to inferior servants, coachmen, and other upper menials, who might, also, in their turn, have climbed upwards in dignity, had there been another Roman Empire to be conquered and plundered.

In the course of time, the office of constable assumed a very high and important station at court; for we find, at a certain period of history, that the household of the court, which in England meant neither more nor less than all the subjects of the king, were placed under his direct care and management. This domestic discipline soon assumed, in the camps of the conquering princes, the character of a martial court, which soon became consolidated in the single person of the constable, who then became invested with such a plenitude of dictatorial power as to be at once incompatible with all rational and peaceful purposes, and at the same time to give cause of serious alarm even to the princes themselves. Henry VIII, the most arbitrary monarch of England, at length abolished the office; yet he could not entirely sweep it away, it still clung like an unVOL. X., NO. XXVIII. 3