OF ENGLISH LIBERTY. 13 



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 ihe future. The barbarous 

 nations, when they settled in the provinces of the Eastern empire, be- 

 gan 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 boiste- 

 rous atmosphere, and thus reduced it to a stunted weakly thing, while 

 its friendless fellow grew alone, inhaling the sweet fresh air, the bril- 

 liant sunshine, and the cooling showers, flourished forth in full-deve- 

 loped 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 ex- 

 isting 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 Booh, 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 pre; 

 sent common law ; and had the plan of making those written records 

 and collections been steadily followed up, it could but have added ef- 

 fect 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 par- 

 cel of their policy, and which were not objects of interest to conquer- 

 ors in general. The common law then gained some respite from fur- 

 ther mischievous tampering by sheer neglect. 



The impulse which had now been given to the art, if we may so ex- 

 press ourselves, of popular order, and which spread to, and enlarged 

 the view of, judicial affairs and transitory customs, had its effect by im- 

 perceptibly 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 pro" 

 thonotaries of the several courts, from the reign of Edward until 

 Henry VIII, and afterwards, under James I, at the suggestion of Lord 



