HOWEVER, by means of these struggles, the pope in the reign of king John gained a still greater afcendant here, than he ever had before enjoyed; which continued through the long reign of his fon Henry the third; in the beginning of | whofe time the old Saxon trial by ordeal was alfo totally abolished. And we may by this time perceive, in Bracton's treatise, a still farther improvement in the method and regu larity of the common law, especially in the point of pleadings". Nor mult it be forgotten, that the first traces which | remain, of the feparation of the greater barons from the lefs, in the constitution of parliaments, are found in the great charter of king John; though omitted in that of Henry III: and that, towards the end of the latter of these reigns, we find the first record of any writ for fummoning knights, citizens, and burgeffes to parliament. And here we conclude the fecond period of our English legal hiftory.

III. THE third commences with the reign of Edward the firft; who hath justly been stiled our English Juftinian. For in his time the law did receive fo fudden a perfection, that fir Mathew Hale does not fcruple to affirm1, that more was done in the first thirteen years of his reign to settle and establish the distributive justice of the kingdom, than in all the ages fince that time put together.

It would be endless to enumerate all the particulars of these regulations; but the principal may be reduced under the following general heads. 1. He established, confirmed, and fettled, the great charter and charter of forests. 2. He gave a mortal wound to the encroachments of the pope and his clergy, by limiting and. establishing the bounds of ecclefiaftical jurifdiction: and by obliging the ordinary, to whom all the goods of inteftates at that time belonged, to discharge the debts of the deceased. 3. He defined the limits of the feveral temporal courts of the highest jurisdiction, those of the king's bench, common pleas, and exchequer; fo as

h Hal. Hift. C. L. 156, VOL. IV.

i Ibid. 158.

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they might not interfere with each other's proper business: to do which, they must now have recourse to a fiction, very neceffary and beneficial in the present enlarged state of property. 4. He fettled the boundaries of the inferior courts in counties, hundreds, and manors: confining them to caufes of no great amount, according to their primitive institution; though of confiderably greater, than by the alteration of the I value of money they are now permitted to determine. 5. He fecured the property of the subject, by abolishing all arbitrary taxes and talliages, levied without confent of the national council. 6. He guarded the common juftice of the kingdom from abuses, by giving up the royal prerogative of fending mandates to interfere in private caufes. 7. He fettled the form, folemnities, and effect, of fines levied in thecourt of common pleas; though the thing itself was of Saxon original. 8. He first established a repofitory for the public records of the kingdom; few of which are antienter than the reign of his father, and thofe were by him collected. 9. He improved upon the laws of king Alfred, by that great and orderly method of watch and ward, for preserving the public peace and preventing robberies, established by the ftatute of Winchester. 10. He fettled and reformed many abufes incident to tenures, and removed some restraints on the alienation of landed property, by the ftatute of quia emptores. 11. He inftituted a speedier way for the recovery of debts, by granting execution not only upon goods and chattels, but also upon lands, by writ of elegit; which was of fignal benefit to a trading people: and, upon the same commercial ideas, he alfo allowed the charging of lands in a statute merchant, to pay debts contracted in trade, contrary to all feodal principles. 12. He effectually provided for the recovery of advowfons, as temporal rights; in which, before, the law was extremely deficient. 13. He alfo effectually clofed the great gulph, in which all the landed property of the kingdom was in danger of being fwallowed, by his re-iterated ftatutes of mortmain; most admirably adapted to meet the frauds that had then been devised, though afterwards contrived to be evaded by the invention of uses.

14. He established a new limitation of property by the creation of estates tail; concerning the good policy of which, modern times have however entertained a very different opinion. 15. He reduced all Wales to the subjection, not only of the crown, but in great measure of the laws, of England (which was thoroughly completed in the reign of Henry the eighth); and seems to have entertained a design of doing the like by Scotland, fo as to have formed an entire and complete union of the island of Great Britain.

I MIGHT continue this catalogue much farther-but, | upon the whole, we may obferve, that the very scheme and model of the adminiftration of common juftice between party and party, was entirely fettled by this king; and has continued nearly the fame, in all fucceeding ages, to this day; abating fome few alterations, which the humour or neceffity of fubfequent times hath occafioned. The forms. of writs, by which actions are commenced, were perfected in his reign, and established as models for posterity. The pleadings, confequent upon the writs, were then short, nervous, and perfpicuous; not intricate, verbofe, and formal. The legal treatifes, written in his time, as Britton, Fleta, Hengham, and the reft, are, for the most part, law at this day; or at least were so, till the alteration of tenures took place. And, to conclude, it is from this period, from the exact obfervation of magna carta, rather than from it's making or renewal, in the days of his grandfather and father, that the liberty of Englishmen began again to rear it's head; though the weight of the military tenures hung heavy upon it for many ages after.

I CANNOT give a better proof of the excellence of his conftitutions, than that from his time to that of Henry the eighth there happened very few, and those not very confiderable, alterations in the legal forms of proceedings. As to matter of fubftance: the old Gothic powers of electing the principal fubordinate magiftrates, the fheriffs, and confer

vators of the peace, were taken from tl.e people in the reigns of Edward II and Edward III.; and juftices of the peace were established instead of the latter. In the reign alfo of Edward the third the parliament is fuppofed moft probably to have affumed it's prefent form; by a feparation of the commons from the lords. The statute for defining and ascertaining treasons was one of the first productions of this newmodelled affembly; and the tranflation of the law proceedings from French into Latin another. Much alfo was done, under the auspices of this magnanimous prince, for establishing our domestic manufactures; by prohibiting the exportation of English wool, and the importation or wear of foreign cloth or furs; and by encouraging clothworkers from other countries to fettle here. Nor was the legiflature inattentive to many other branches of commerce, or indeed to commerce in general: for, in particular, it enlarged the credit of the merchant, by introducing the ftatute staple; whereby he might the more readily pledge his lands for the fecurity of his mercantile debts. And, as perfonal property now grew, by the extenfion of trade, to be much moré confiderable than formerly, care was taken, in case of inteftacies, to appoint administrators particularly nominated by the law; to distribute that perfonal property among the creditors and kindred of the deceased, which before had been usually applied, by the officers of the ordinary, to uses then denominated pious. The statutes also of praemunire, for effectually depreffing the civil power of the pope, were the work of this and the subsequent reign. And the establishment of a laborious parochial clergy, by the endowment of vicarages out of the overgrown poffeffions of the monafteries, added luftre to the close of the fourteenth century: though the feeds of the general reformation, which were thereby first sown in the kingdom, were almoft overwhelmed by the fpirit of perfecution, introduced into the laws of the land by the influence of the regular clergy.

FROM this time to that of Henry the feventh, the civil wars and difputed titles to the crown gave no leifure for farther

juridical

juridical improvement: "nam filent leges inter arma."-And yet it is to these very difputes that we owe the happy lofs of all the dominions of the crown on the continent of France; which turned the minds of our fubfequent princes entirely to domeftic concerns. To thefe likewife we owe the method of barring entails by the fiction of common recoveries, invented originally by the clergy, to evade the ftatutes of mortmain, but introduced under Edward the fourth, for the purpose of unfettering eftates, and making them more liable to forfeiture: while, on the other hand, the owners endeavoured to protect them by the univerfal establishment of ufes, another of the clerical inventions.

In the reign of king Henry the feventh, his minifters (not to say the king himself) were more industrious in hunting out profecutions upon old and forgotten penal laws, in order to extort money from the subject, than in framing any new beneficial regulations. For the diftinguishing character of this reign, was that of amaffing treasure in the king's coffers, by every means that could be devised: and almost every alteration in the laws, however falutary or otherwise in their future confequences, had this and this only for their great and immediate object. To this end the court of star-chamber was new-modelled, and armed with powers, the most dangerous and unconftitutional, over the perfons and properties of the fubject. Informations were allowed to be received, in lieu of indictments, at the affifes and feffions of the peace, in order to multiply fines and pecuniary penalties. The statute of fines for landed property was craftily and covertly contrived, to facilitate the deftruction of entails, and make the owners of real estates more capable to forfeit as well as to aliene. The benefit of clergy (which fo often intervened to stop attainders and fave the inheritance) was now allowed only once to lay offenders, who only could have inheritances to lofe. A writ of capias was permitted in all actions on the cafe, and the defendant might in confequence be outlawed; because upon fuch outlawry his goods became the property of the crown. In short, there is hardly a ftatute in this reign, introductive

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