378 L , 
to be by ordeal, by the corfned, or morfel of execration, 
or by wager of law cvith compurgators, if the party chofe 
it; but frequently they were alfo by jury : whether or not 
their juries coniifted precifely of twelve men, or were 
bound to a ftriit unanimity, is not certain ; but the ge¬ 
neral conftitution of this admirable criterion of truth, and 
moft important guardian both of public and private li¬ 
berty, we owe to our Saxon ancellors. Thus flood the 
genera! frame of our polity at the time of the Norman in- 
vafion, when the fecond period of our legal hittory com¬ 
mences. 
II. This remarkable event wrought as great an altera¬ 
tion in our laws as it did in our ancient line of kings; and, 
though the alteration of the former was effected rather by 
the confent of the people than any right of conqueft, yet 
that confent feems to have been partly extorted by fear, 
and partly given without any apprehenlion of the confe- 
quences which afterwards enfued. 
i. Among the firft of thefe alterations we may reckon 
the feparation of the ecclefiaflical courts from the civil ; 
effected in order to ingratiate the new king with the po- 
pifh clergy, who for l'ome time before had been endea¬ 
vouring ail over Europe to exempt the.mfelves from the 
fecular power; and whofe demands the conqueror, like a 
politic prince, thought it prudent to comply with, by 
reafon that their reputed fanflity had a great influence 
over the minds of the people; and becaufe all the little 
learning of the times was engrofled into their hands, 
■which made them neceffary men, and by all means to be 
gained over to his interefls. And this was the more ea¬ 
sily effected, becaufe, the difpofal of all the epifcopal fees 
being then in the bread of the king, he had taken care 
to fill them with Italian and Norman prelates. 
a. Another violent alteration of the Englifh conftitution 
confifted in the depopulation of whole countries for the 
purpofesof the king's royal diverfion ; and fubjefting both 
them, and all the ancient forefts of the kingdom, to the 
■unreafonable feverities of foreft-laws imported from the 
continent, whereby the (laughter of a bead was made 
almoft as penal as the death of a man. In the Saxon 
times, though no man was allowed to kill or chafe the 
king’s deer, yet he might ftart any game, purfue, and kill 
it, upon his own eftate. But the rigour of thefe new 
conftitutions veiled the foie property of all the game in 
England in the king alone; and no man was entitled to 
difturb any fowl of the air, or any bead of the field, of 
fuch kinds as were fpecially referved for the royal 
amufement of the fovereign, without exprefs licence from 
the king, by a grant of a chafe or free warren: and thofe 
franchifes were granted as much with a view to preferve 
the breed of animals as to indulge the fubjedt. See the 
article Game, vol. viii. 
3. A third alteration in the Englifh laws was by nar¬ 
rowing the remedial influence of the county-courts, the 
great feats of Saxon juftice, and extending the original 
jurifdiftion of the king’s juftices to all kinds of caufes 
arifing in all parts of the kingdom. To this end the 
aula regis, with all its multifarious authority, was erect¬ 
ed ; and a capital jujliciary appointed, with powers fo 
large and boundlefs, that he became at length a tyrant 
to the people, and formidable to the crown itfelf. The 
conftitution of this court, and the judges themfelves 
who prefided there, were derived from the duchy of 
Normandy; and the confequence naturally was, the or¬ 
daining that all proceedings in the king’s courts fhould 
be carried on in the Norman, inftead of the Englifh, 
language. A provifion the more neceffary, becaufe none 
of his Norman jufticiers underftood Englifh ; but as evi¬ 
dent a badge of flavery as ever was impofed upon a con¬ 
quered people. This lafted till king Edward the Third 
obtained a double victory, over the armies of France in 
their own country, and their language in our courts here 
at home. But there was one milchief too deeply rooted 
thereby, and which this caution of king Edward came 
too late to eradicate. Inftead of the plain and eafy me¬ 
thod of determining fuits in the county-courts, the chi- 
t W, 
canes and fubtilties of Norman jurifprudence had taker! 
poffeflion of the king’s courts, to which every caufe of 
confequence was drawn. Indeed, that age, and thofe im¬ 
mediately fucceeding it, were the era of refinement and 
fubtilty. There is an aftive principle in the human foul, 
that will ever be exerting its faculties to the utmoft ftretch, 
in whatever employment, by the accidents of time and 
place, the general plan of education, or the cuftoms and 
manners of the age and country, it may happen to find 
itfelf engaged. The northern conquerors of Europe were 
then emerging from the groffeft ignorance in point cf li¬ 
terature ; and thofe who had leifure to cultivate its pro- 
grefs, were fuch only as were cloiftered in monafteries, 
the reft being all foldiers or peafants. And, unfortu¬ 
nately, the firft rudiments of fcience which they imbibed 
were thofe of Ariftotle’s philofophy, conveyed through 
the medium of his Arabian commentators; which were 
brought from the eaft by the Saracens into Paleftine and 
Spain, and tranflated into barbarous Latin. So that, 
though the materials upon which they were naturally em¬ 
ployed, in the infancy of a rifing ftate, were thofe of the 
nobleft kind, the eftablifhment of religion, and the regu¬ 
lations of civil polity, yet, having only fuch tools to work 
with, their execution was trifling and flimfy. Both the 
divinity and the law of thofe times were therefore frittered 
into logical diftinctions, and drawn out into metaphyfical 
fubtilties, with a fkill moft amazingly artificial ; but 
which ferved no other purpofe, than to fhow the vaft 
powers of the human intellect, however vainly or prepof- 
teroufly employed. Hence law in particular, which (be¬ 
ing intended for univerfal reception) ought to be a plain 
rule of aftion, became a fcience of the greateft intricacy ; 
efpecially when blended with the new refinements en¬ 
grafted on feodal property ; which refinements were from 
time to time gradually introduced by the Norman prafti- 
tioners, with a view to fuperfede (as they did in great 
meafure) the more homely, but more intelligible, maxims 
of diftributive juftice among the Saxons. And, to fay the 
truth, thefe fcholaftic reformers have tranfmitted their 
dialefl and nneffes to pofterity fo interwoven in the body 
of our legal polity, that they cannot now be taken out 
without a manifeft injury to the fubftance. Statute after 
ftatute has in later times been made, to pare off thefe 
troublefome excrefcences, and reftore the common law to 
its priftine fimplicity and vigour; and the endeavour has 
greatly fucceeded ; but ftill the fears are deep and vifible; 
and the liberality of our modern courts of juftice is fre¬ 
quently obliged to have recourfe to unaccountable fic¬ 
tions and circuities, in order to recover that equitable and 
fubftantial juftice, which for a long time was totally buried 
under the narrow rules and fanciful niceties of metaphy¬ 
fical and Norman jurifprudence. 
4. A fourth innovation was the introduction of the 
trial by combat, for the decifion of all civil and criminal 
queftions of faff in the laft refort. This was the imme¬ 
morial practice of all the northern nations; but firft re¬ 
duced to regular and ftated forms among the Burgundi, 
about the clofe of the fifth century ; and from them it 
parted to other nations, particularly the Franks and the 
Normans; which laft had the honour to eftablifh it here, 
though clearly ah un-Chriftian as well as moft uncertain 
method of trial. But it was a fufficient recommendation 
of it to the conqueror, and his warlike countrymen, that 
it was the ufage of their native duchy of Normandy. 
5. But the laft and moft important alteration, both in 
our civil and military polity, was the engrafting on all 
landed eftates, a few only excepted, the fiction of fccdal 
tenure, (fee the article Tenure,) which drew after it a 
numerous and opprefiive train of fervile fruits and appen¬ 
dages; aids, reliefs, primer feifins, wardfhips, marriages, 
efeheats, and fines for alienation; the genuine confe- 
quences of the maxim then adopted, that all the lands 
in England were derived from and iiolden, mediately or 
immediately, of the crown. 
The nation at this period feems to have groaned under 
as abfblute a flavery as was in the power ot a warlike, an 
1 ambitious. 
