basis of our law and constitution; while the charter of John is only remembered as a monument of antiquity (a). One very striking provision of John's charter, which is omitted in that of Henry III., deserves our notice. It is there declared that no scutage or aid shall be levied on the subject nisi per commune concilium regni nostri; except in the three cases in which a feudal lord was entitled to the assistance of his vassal; namely, on marriage of his daughter; on making his son a knight, and to redeem his person from captivity, a restriction that was declared by the charter to hold good, not only between the king and his tenants, but between every lord and his tenants. In order to assemble the commune concilium regni to assess such scutages and aids, the king engaged to summon all archbishops, bishops, abbots, earls, and greater barons sigillatim per literas; et præterea, says he, faciemus summoneri in generali per vicecomites, et ballivos nostros, omnes illos qui de nobis tenent in capite; a passage that seems, beyond all controversy, to point out the constitutent members of the great council of the kingdom in those days.

Several originals of this charter were executed by the king. It is said that one was deposited in every county or at least in every diocese. In pursuance of one of the provisions in the charter, twenty-five barons were elected as guardians of the liberties of the people, who were to see the contents of it properly executed; but the troubles that soon followed, from the want of faith in the king, prevented this scheme of reformation. The king died in the next year, and left the kingdom in all the horrors of a civil war.

Characters of

We shall now consider the kings whose reigns fall within this period, in their character as legislators. We have before seen, that William the Conqueror, besides con- these kings as firming the laws of the Confessor, made some himself, legislators. which effected no inconsiderable alteration, by introducing tenures, and the trial by duel in criminal questions. Besides these express ordinances, he contrived all means of ingrafting the laws of Normandy upon the common law; for this purpose, he appointed all his judges from among his Norman subjects, and made that language be taught in schools. By the constitution of his courts of justice, and every act of his administration, he did all in his power to change the jurisprudence of the country.

the same land again to hold of the same house; nor shall it be lawful for any religious house to take the land of any, and to leave the same to him from whom they were received. Therefore, if any do give his land to any religious house, his gift shall be void, and the land shall accrue to the lord." Then there was a general saving to all persons, ecclesiastical or lay, the liberties and free customs they had formerly had.

(a) This is not quite so. On the contrary, as the charter of John was the original, it is of the greater importance in an historical point of view, and, at all events, it forms an important step or stage in our legal history; and the comparison of its terms with the articles and with subsequent charters, afford very interesting illus trations of the history of the subject, for which reason some account of them has been given.

1 Wilk. Leg. Sax. p. 289.

We hear nothing of Rufus as a legislator; nor are there any laws of Henry I. except his charter (a); but there is every reason to believe that the latter of these princes paid great regard to the improvement of the law. He was himself a man of learning, and had a disposition to quiet the minds of his subjects by a good administration; the laws, therefore, which go under his name may be considered as a compilation, at least, made in his reign, and as an instance of his attention to the subject of legislation.

The reign of Stephen was a period of continual war and disturbance, and of course gave little room for improvement in legal establishments. The introduction, however, of the books of canon and civil law must have contributed to the great advances made in the time of his successor, Henry II.; for, though there was always an extreme jealousy in the practisers of the common law, with respect to those two systems, it went no further than to an exclusion of their authority as governing laws; they were still cultivated by them as branches of the same science, and had a great effect in polishing and improving our municipal customs.

The wise administration of Henry II. operating on the advantageous circumstances concurring in the latter end of his reign, when all things were reduced to peace, contributed more to advance our legal polity than all the preceding times from the Conquest put together. Without recapitulating what has been before related, let any one compare the work of Glanville with the laws (or, as it might more properly be called, the treatise of law in the time) of Henry I., the great regularity in the order of proceeding, and the refinement with which notions of property are treated, and he will see the superiority of the later reign in point of knowledge. It is probable, that the additions and amendments made in the law of this kingdom were by this prince transplanted into Normandy, and occasioned a still further improvement in the law of tenures; as lawyers were, by these communications, engaged in a kind of competition to enlarge and polish the same subject of inquiry. The whole of our municipal law was improved to a high degree during the reign of Henry II. and afforded an ample foundation for the superstructure raised on it in the time of Richard and John, and more particularly in the reign of Henry III.

It does not appear that Richard took any part himself in contributing to further the great designs of his father, in matters of municipal regulation, but left things to the course they had been put in by him. This prince, however, stands very high in the history of maritime jurisprudence. Upon his return from the Holy Land, while he was in the Island of Oleron, on the coast of France, he compiled a body of maritime law. This was designed

(a) This is not so. There are, as already mentioned in the Leges Henrici Primi, many which are of his reign, though the whole is a compilation, and some have also been already alluded to as scattered in the Mirror of Justice. The Leges Henrici Primi, however, is rather a treatise of the laws, than a mere collection of them.

for the keeping of order, and the determination of controversies abroad; and the wisdom with which it was framed, has been evinced by the general reception it has obtained in other nations.1 King John did nothing memorable in the way of legislation in this kingdom; though he has the praise of having first introduced the English laws into Ireland, where he instituted sheriffs and other officers to interpret and execute them. He likewise appointed a grand justiciary to preside over the administration of justice in that kingdom.3

The monuments which remain of the jurisprudence of these times are not very numerous. They consist of some laws, charters, records, and law treatises.

Of the laws of William the Conqueror, some are in NormanFrench, and some in Latin. The first fifty capitula in Laws of WilNorman-French are what, Ingulphus says, he brought liam the Condown to his abbey of Croyland, as those which the king queror. had confirmed, and commanded to be observed throughout England.* Though the time when they were enacted is not mentioned, it is tolerably clear, that it was not long after Ingulphus went to London on the affairs of his monastery, in the sixteenth year of William's reign. These therefore were, probably, such alterations and additions as he chose to make in the laws of Edward, which had been allowed in the fourth year of his reign.5 There follow some other laws of William in the form of a charter; and as the first mostly concern the criminal code, these latter constitute some alterations in the civil. These are in Latin, and go from the fifty-first chapter to the sixty-seventh inclusive. There are also some others in the form of a charter, which, together with the preceding, make in all eighty-one capitula of laws of William the Conqueror.

There are no laws remaining of William Rufus, if any were made; nor of Henry I. except his charter. Those that usually go under the title of laws of this king, and are entered in the Red Book of the exchequer, seem to have been reduced into that form by some person of learning, as containing a sketch of the common law then in use; a manner of entitling treatises not then uncommon: for there is now to be seen, in the Cottonian collection, a manuscript of Glanville which bears the title of Laws of Henry 11.6 There is no evidence that these laws were enacted by the great council, or granted by any charter. They contain ninety-four capitula, and are to be found in the collection of Lambard and Wilkins.

We have no remains of legislation in the time of Stephen. The laws of Henry II. are the Constitutions made at Clarendon, anno 1164, and the statutes made at Northampton, anno 1176. The first fourteen of the Constitutions of Clarendon made several alterations in the civil and criminal part of our laws; the remaining

1 Black., vol. iv. p. 423.

2 Quare, if not Henry II., vide Harris's Hibernia, part ii. p. 215, et seq.

Tyrr. vol. ii. p. 809.

• Claud. D. 2.

5

Tyrr. vol. ii. p. 69.

sixteen concern ecclesiastical affairs, and contain those points which were disputed between Henry and Becket, and between this kingdom and the see of Rome.

Besides laws, there remain some public acts of this reign: as articles of inquiry concerning the extortion and abuses of sheriffs, and the assize of arms. During the reigns of Richard and John, there are no laws which can be properly so called; but there are commissions and ordinances of a public nature respecting the adminstration of justice. In the reign of the former, there are some articles of the crown, with the forms of proceeding in those pleas; and directions for preserving the laws of the forest.1

Besides the laws of these kings which have been mentioned, there are many other provisions made in these reigns which may be found, arranged in the order of time in which they passed, in the Codex Legum Veterum, intended for publication by Spelman, and now annexed to the end of Wilkins' Anglo-Saxon Laws.

The great monuments of this period are the charters. Under this title might indeed be reckoned those laws of William the Conqueror which we have just noticed to have passed in that form. But the charters, properly so called, and which have become so famous on account of the object they all had in view, namely, the removal and redress of certain grievances, are the following:The charter of Henry I., containing eighteen chapters; that of Stephen, containing thirteen chapters; that of Henry II., containing only two chapters, and expressed in very general terms; the Capitula Baronum, being those heads of grievances which were proposed by the barons to John to be redressed; and the Magna Charta of that king, drawn up in pursuance of them; these are all to be found in the late Mr Justice Blackstone's correct edition of the charters, where that great ornament of English law has given a critical and very curious history of these valuable remains of antiquity. The laws, or assise, as they were called, made at this early period, Of the civil deserve a little further consideration. It has been before observed, that our law is composed of the custom of the realm, or leges non scripte, and the statutes, or leges scripta. Our lawyers have made a distinction among statutes themselves; they have distinguished between statutes made before the time of memory, and those made since. The time of memory has been fixed in conformity with a provision made in the time of Edward I. for settling the limitation in a writ of right; which was, by stat. 1 West. c. 39, fixed at the beginning of the reign of Richard. Though the limitation in a writ of right has been since altered, this period has been chosen as a distance of very high antiquity, at which has been fixed the time of memory, as it is called; so that everything before that period is said to have happened before the time of memory.

statutes.

1 Tyrr. vol. ii. p. 578.

3 Black. Tracts, vol. ii.

2 See the Preface to Wilk. Ang. -Saxon Laws.

Those statutes which were made before the time of memory, and have not since been repealed nor altered by contrary usage, or subsequent acts of parliament, are considered as a part of the leges non scriptæ; being, as it were, incorporated into, and become a part of, our common law: and notwithstanding copies of them may be found, their provisions obtain at this day, not as acts of parliament, but by immemorial usage and custom; of which kind is, no doubt, a great part of our common law,1

Laws were termed sometimes assisæ, sometimes constitutiones. Though the most solemn and usual way of ordaining laws was to get the concurrence of the commune concilium regni, it should seem that in these times the king took upon himself to do many legislative acts which, when conformable with the established order of things, were readily acquiesced in, and became the law of the land. The very frame, indeed, of such laws as were sanctioned with all possible formalities, carried in them the strongest appearance of regal acts: if a law passed concilio baronum suorum, it was still rex constituit. Of the laws of William the Conqueror, though in some parts they seem to have the authority of the great council, statuimus, volumus, præcipimus; yet in others they speak in the person of the king only, hoc quoque præcipio, et prohibeo. The form of a charter, in which the king is considered as a person granting, was a very common way of making laws at this time; and this carries in it the strongest proof of the sentiments entertained in those ages concerning legislation: nevertheless, it is to be remarked, that some of these charters, from the solemnities attending the execution of them, might be regarded as having all the validity of laws; as the charter of king John, to which the barons of the realm were parties. There were, however, several other charters which seem to have no authority but that of the sovereign. Indeed, several laws, or assise, even so low down as Henry II. and the reigns of Richard and John, vouch no other sanction but rex constituit, or rex præcipit, for everything they command or direct.

There is no way of accounting for this extraordinary appearance of the old statutes, but by supposing the state of our constitution and laws to have been this: That the judicature of the realm being in the hands, and under the guidance of the king and his justices, it remained with him to supply the defects that occasionally appeared in the course and order of proceeding; which, being founded originally on custom and usage, was, in its nature, more susceptible of modification than any positive institution, that could not be easily tampered with without a manifest discovery of the change. In an unlettered age, it was convenient and beneficial that the king should exercise such a superintendence over the laws as to declare, explain, and direct, what his justices should do in particular cases; such directions were very readily received as positive

1 Hale Hist. 3, 4.

2

Vide Schmidt der Deutchen, Geschichte, vol. i. 582.

Wilk. 217, 218.